PROPERTY OF THE UNITED STATES GOVERNMENT I T * 5 4 1 L 0 1 b 0 2 * UNITED STATES REPORTS VOLUME 413 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1972 June 21 Through June 25, 1973 End of Term HENRY PUTZEL, jr. REPORTER of decisions UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1975 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402-Price $16.60 (Buckram) Stock Number 2801-00382 Errata 16 Wall. 75, last line: “1823” should be “1825.” 361 U. S. 460, line 15 of syllabus: “259 F. 2d 346, judgment modified.” should be “259 F. 2d 346, judgment affirmed by an equally divided Court in No. 19 and modified in No. 18.” 407 U. S. 963, line 9: “1” should be “I.” 409 U. S. 949, No. 72-224, line 2: “47” should be “471.” 411 U. S. 221, line 5: “[4.-2]” should be “[4.-1].” Il JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS WARREN E. BURGER, Chief Justice. WILLIAM 0. DOUGLAS, Associate Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. POTTER STEWART, Associate Justice. BYRON R. WHITE, Associate Justice. THURGOOD MARSHALL, Associate Justice. HARRY A. BLACKMUN, Associate Justice. 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 ELLIOTT L. RICHARDSON, Attorney General.* ERWIN N. GRISWOLD, Solicitor General. MICHAEL RODAK, Jr., Clerk. HENRY PUTZEL, jr., Reporter of Decisions. FRANK M. HEPLER, Marshal. EDWARD G. HUDON, Librarian. *Attorney General Richardson was presented to the Court on June 25, 1973 (see post, p. v). ni SUPREME COURT OF THE UNITED STATES Allotment of Justices It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, viz.: For the District of Columbia Circuit, Warren E. Burger, Chief Justice. For the First Circuit, William J. Brennan, Jr., Associate Justice. For the Second Circuit, Thurgood Marshall, Associate Justice. For the Third Circuit, William J. Brennan, Jr., Associate Justice. For the Fourth Circuit, Warren E. Burger, Chief Justice. For the Fifth Circuit, Lewis F. Powell, Jr., Associate Justice. For the Sixth Circuit, Potter Stewart, 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 PRESENTATION OF THE ATTORNEY GENERAL AND TRIBUTE TO THE SOLICITOR GENERAL Supreme Court of the United States MONDAY, JUNE 25, 1973 Present: Mr. Chief Justice Burger, Mr. Justice Douglas, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, Mr. Justice Marshall, Mr. Justice Blackmun, Mr. Justice Powell, and Mr. Justice Rehnquist. Mr. Solicitor General Griswold presented the Honorable Elliot L. Richardson, Attorney General of the United States. The Chief Justice said: Mr. Attorney General, the Court welcomes you to the performance of the important duties which devolve upon you as the chief law officer of the Government, and as an officer of this Court. Your commission will be recorded with the Clerk. The Chief Justice said: The Court takes note that Solicitor General Griswold today makes his final appearance as the incumbent of that high office. He has served with distinction for nearly six years, one of the longest tenures since the office of Solicitor General was created more than 100 years ago. On behalf of the Court, I wish to thank him for his services to the Court and wish him well in the years ahead. We include Mrs. Griswold in our good wishes for the future. v TABLE OF CASES REPORTED Note: All undesignated references herein to the United States Code are to the 1970 edition. Cases reported before page 901 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 901 et seq. are those in which orders were entered. Page Aberdeen & Rockfish R. Co. v. SCRAP......................... 917 Action Publishing Co. v. United States...................... 913 Adler v. California......................................... 912 Adult Book Store v. Sensenbrenner........................... 911 Albini v. Ohio.............................................. 912 Alexander v. Virginia....................................... 836 Alexander County State’s Attorney v. Littleton.............. 918 Alhambra Judicial District; Wasserman v..................... 911 Almeida-Sanchez v. United States............................ 266 Anderson v. Committee for Public Education.............. 472,756 Arizona Attorney General v. Miranda......................... 902 Arkansas Governor; Kelly v.................................. 901 Art Theater Guild v. Tennessee ex rel. Rhodes............... 904 Ash; United States v........................................ 300 Association. For labor union, see name of trade. Attorney General of Arizona v. Miranda...................... 902 Attorney General of Florida v. M & W Theatres, Inc........ 903 Attorney General of South Carolina; Durham v................ 902 Austin v. Meyer........................................... 905' Austin; Meyer v............................................ 902 Bailey; Grove Press v....................................... 904 Bamberger v. United States.................................. 919 Barron v. United States..................................... 920 Battin; Colgrove v.......................................... 149 Bell v. United States...................................... 917 B & H Dist. Corp.; United States v.......................... 909 Bigelow v. Virginia......................................... 909 Bird v. United States....................................... 919 Blair v. Ohio............................................... 905 VII VIII TABLE OF CASES REPORTED Page Bloss; Michigan v............................................ 909 Board of Education of Chicago; Lawlor v...................... 921 Board of Education of Little Rock School Dist. v. Clark.... 923 Board of Education, Tulsa County; Smith v.................... 916 Board of School Comm’rs of Indianapolis v. United States... 920 Bowen v. United States.................................... 915 Brandon v. New Jersey.................................... 920 Broadrick v. Oklahoma........................................ 601 Brown v. United States.................................... 912 Bryant v. North Carolina.................................. 913 Bumpers; Kelly v............................................. 901 Byrne v. P. B. I. C., Inc.................................... 905 Cady v. Dombrowski........................................... 433 California; Adler v.......................................... 912 California; Castner v........................................ 913 California; Elster v......................................... 912 California; Holt v........................................... 921 California; Kaplan v......................................... 115 California; Keith v.......................................... 912 California; Kuhns v.......................................... 913 California; Little v......................................... 913 California; Miller v.......................................... 15 California; Reitano v....................................... 911 California; Romanus v........................................ 914 California; Summers v........................................ 921 California; Tobalina v....................................... 912 California; Toutant v........................................ 913 Cangiano v. United States.................................... 913 Castner v. California........................................ 913 Cathedral Academy v. Committee for Public Education........ 472 Cenarrusa; Summers v....................................... 906 Cherry v. Committee for Public Education..................... 756 Chicago Board of Education; Lawlor v......................... 921 Circle Floor Co.; GAF Corp, v................................ 901 Cisneros v. Corpus Christi Independent School District..... 920 Cisneros; Corpus Christi Independent School District v..... 922 City. See name of city. Civil Service Comm’n v. Letter Carriers...................... 548 Clark; Board of Education of Little Rock School Dist. v.... 923 Clayton v. United States...........................•......... 920 Coiner; Walker v............................................. 901 Coleman v. United States..................................... 921 Colgrove v. Battin........................................... 149 TABLE OF CASES REPORTED IX Page Colorado Dept, of Social Services v. Vialpando............ 918 Columbus Mayor; Adult Book Store v.................... 911 Combs v. Johnson.......................................... 922 Commissioner; Fausner v................................... 838 Commissioner of Ed. of N. J., v. Public School Funds... 916 Commissioner of Ed. of N. Y. v. Committee for Pub. Ed.... 756 Commissioner of Ed. of N. Y.; Committee for Pub. Ed. v... 756 Commissioner of Internal Revenue. See Commissioner. Committee for Public Education; Anderson v............ 472,756 Committee for Public Education; Cathedral Academy v.... 472 Committee for Public Education; Cherry v................. 756 Committee for Public Education; Levitt v................. 472 Committee for Public Education v. Nyquist................ 756 Committee for Public Education; Nyquist v................ 756 Commonwealth. See name of Commonwealth. Comptroller of New York v. Committee for Public Education. 472 Conway v. Maryland........................................ 920 Cooley v. Strickland Transportation Co.................... 923 Corpus Christi Independent School District v. Cisneros.. 922 Corpus Christi Independent School District; Cisneros v.. 920 Corrections Commissioner. See name of commissioner. Cote v. United States..................................... 915 County. See name of county. Courier v. United States.................................. 923 Court v. Wisconsin........................................ 911 Crouter v. Lemon.............................,............ 825 Davis v. Parker........................................... 906 Davison v. Florida........................................ 915 Delaware; Johnson v....................................... 901 Denver School District No. 1 v. Keyes..................... 921 Denver School District No. 1; Keyes v..................... 189 Department of Agriculture v. Moreno..................... 528 Department of Agriculture v. Murry........................ 508 Department of Public Safety of Maryland v. Woodall...... 922 Department of Social Services of Colorado v. Vialpando.. 918 DeRamus; Learner v........................................ 917 DeSantis v. New Jersey.................................. 913 Deskins v. Kentucky....................................... 902 Director of penal or correctional institution. See name of director. District Attorney of Suffolk County v. P. B. I. C., Inc. 905 District Court. See U. S. District Court. District Judge. See U. S. District Judge. X TABLE OF CASES REPORTED Page Doe v. Planned Parenthood Assn, of Utah.................... 917 Dombrowski; Cady v......................................... 433 Dougall; Sugarman v........................................ 634 Dublino; New York Dept, of Social Services v............... 405 Dublino; Onondaga County Dept, of Social Services v....... 405 Durham v. McLeod.......................................... 902 Elder v. Rampton........................................... 902 Elster v. California....................................... 912 Essex v. Wolman............................................ 923 Ewing v. United States..................................... 913 Fausner v. Commissioner.................................... 838 Flask; Grove Press v...........................i........ 902 Flemings; Warner v......................................... 665 Florida; Davison v......................................... 915 Florida Attorney General v. M & W Theatres, Inc............ 903 Florida ex rel. Shevin v. M & W Theatres, Inc.............. 903 Foerster v. United States.................................. 915 Fortson v. Millican........................................ 909 GAF Corp. v. Circle Floor Co............................... 901 Gayety Books, Inc. v. Preller.............................. 905 Georgia Secretary of State v. Millican..................... 909 Getman v. Minnesota........................................ 912 G. I. Distributors, Inc. v. Murphy......................... 913 Gilligan v. Morgan........................................... 1 Goldstein v. Virginia...................................... 912 Gosa v. May den............................................ 665 Governor. See name of State. Gower v. United States..................................... 914 Grand Prairie School District v. Johnson................... 922 Greeley v. United States................................... 920 Griffiths, In re........................................... 717 Grit v. Wolman............................................. 901 Grove Press v. Bailey.................................... 904 Grove Press v. Flask....................................... 902 Guinn v, Kelly........................................... 919 Gulf States Theatres of Louisiana, Inc. v. Louisiana...... 913 Harrison; Norwood v...................................... 455 Heller v. New York......................................... 483 Holt v. California......................................... 921 Horowitz, In re............................................ 917 Huffman v. U. S. District Court............................ 918 Hunt v. McNair............................................ 734 Hunter v. United States.................................... 923 TABLE OF CASES REPORTED xi Page Idaho Secretary of State; Summers v...................... 906 Illinois; Ridens v......................................... 912 Indiana; Mohney v.......................................... 911 Indiana; Stroud v.......................................... 911 Indianapolis Board of School Comm’rs v. United States..... 920 In re. See name of party. Internal Revenue Service. See Commissioner. Interstate Com. Comm’n v. SCRAP............................ 917 Jimerson v. New York Dept, of Social Services.............. 910 Johnson; Combs v........................................... 922 Johnson v. Delaware........................................ 901 Johnson v. Kentucky....................................... 912 Johnson v. United States................................... 920 Kansas; Singleton v........................................ 920 Kaplan v. California....................................... 115 Kaplan v. United States.................................... 913 Keating; Motion Picture Film “Vixen” v..................... 905 Keith v. California........................................ 912 Kelly v. Bumpers........................................... 901 Kelly; Guinn v............................................. 919 Kentucky; Deskins v................................... 902 Kentucky; Johnson v..................................... 912 Kentucky; Roaden v..................................... 496 Keyes v. School District No. 1, Denver, Colorado........... 189 Keyes; School District No. 1, Denver, Colorado v........... 921 King; United States v...................................... 922 Knoxville Bookmart v. Tennessee ex rel. Webster............ 912 Krause v. Rhodes........................................... 919 Kuhns v. California...............:........................ 913 Lawlor v. Board of Education of Chicago.................... 921 Learner v. DeRamus........................................ 917 Lemon; Crouter v........................................... 825 Lemon; Sloan v............................................. 825 Letter Carriers; U. S. Civil Service Comm’n v.............. 548 Levitt v. Committee for Public Education................... 472 Little v. California....................................... 913 Little Rock School District v. Clark....................... 923 Littleton; Spomer v........................................ 918 Louisiana; Gulf States Theatres of Louisiana,, Inc. v..... 913 Louisiana; Texas v......................................... 918 Macken v. Ohio............................................. 912 Maine; New Hampshire v................................ 918 Marburger v. Public Funds for New Jersey Schools.......... 916 xn TABLE OF CASES REPORTED Page Marks v. Newport...............................;.......... 911 Marquez v. United States.................................. 921 Marshall; Village Books, Inc. v........................... 911 Maryland; Conway v........................................ 920 Maryland Dept, of Pub. Safety and Corrections v. Woodall.. 922 Mayden; Gosa v............................................ 665 Mayor of Columbus; Adult Book Store v................. 911 McDaniel v. United States................................. 919 McLeod; Durham v. 902 McNair; Hunt v............................................ 734 McNeal; Tate Educational Foundation v..................... 922 Meyer v. Austin........................................... 902 Meyer; Austin v........................................... 905 Michigan v. Bloss......................................... 909 Miller v. California....................................... 15 Miller v. United States................................... 913 Millican; Fortson v....................................... 909 Minnesota; Getman v....................................... 912 Miranda; Nelson v......................................... 902 Mitchum v. Tennessee...................................... 912 Mohney v. Indiana......................................... 911 Moreno; U. S. Dept, of Agriculture v..................... 528 Morgan; Gilligan v........................................ 1 Moseley; Schlomann v...................................... 919 Motion Picture Film “Vixen” v. Ohio ex rel. Keating..... 905 Municipal Court of Alhambra Jud. Dist.; Wasserman v..... 911 Murphy; G. I. Distributors, Inc. v........................ 913 Murry; U. S. Dept, of Agriculture v....*.................. 508 M & W Theatres, Inc.; Florida ex rel. Shevin v............ 903 NAACP v. New York...........................'............. 345 National Assn, of Letter Carriers; Civil Serv. Comm’n v. 548 Nelson v. Miranda......................................... 902 New Hampshire v. Maine.................................... 918 New Jersey; Brandon v..................................... 920 New Jersey; DeSantis v.................................... 913 New Jersey Comm’r of Education v. Public School Funds.... 916 Newport; Marks v.......................................... 911 Newport News School Board v. Thompson..................... 920 New York; Heller v........................................ 483 New York; NAACP v......................................... 345 New York; P. A. J. Theatres Corp, v....................... 912 New York; Yannucci v...................................... 912 New York City Human Resources Administration v. Dougall. 634 TABLE OF CASES REPORTED xin Page New York Comm’r of Education v. Committee for Pub. Ed.. 756 New York Comm’r of Education; Committee for Pub. Ed. v. 756 New York Comptroller v. Committee for Public Education.. 472 New York Dept, of Social Services v. Dublino............... 405 New York Dept, of Social Services; Jimerson v.............. 910 New York Police Comm’r; G. I. Distributors, Inc. v........ 913 North Carolina; Bryant v................................... 913 Norwood v. Harrison........................................ 455 Nyquist v. Committee for Public Education................. 756 Nyquist; Committee for Public Education v............... 756 Ohio; Albini v............................................. 912 Ohio; Blair v.............................................. 905 Ohio; Macken v............................................. 912 Ohio ex rel. Keating; Motion Picture Film “Vixen” v....... 905 Ohio Governor; Krause v.................................... 919 Ohio Governor v. Morgan...................................... 1 Ohio Governor; Scheuer v................................... 919 Oklahoma; Broadrick v...................................... 601 Onondaga County Dept, of Social Services v. Dublino....... 405 Orito; United States v..................................... 139 P. A. J. Theatres Corp. v. New York........................ 912 Paladini; United States v.................................. 123 Palladino; United States v................................. 916 Paris Adult Theatre I v. Slaton............................. 49 Parker; Davis v............................................ 906 P. B. I. C., Inc.; Byrne v................................. 905 Pennsylvania Treasurer v. Lemon............................ 825 Pettibone v. Woodall....................................... 922 Pinnock; Searcy v.......................................... 920 Pittsburgh Comm’n on Human Relations; Pittsburgh Press v. 376 Pittsburgh Press v. Pittsburgh Comm’n on Human Relations. 376 Planned Parenthood Assn, of Utah; Doe v.................... 917 Police Comm’r of New York; G. I. Distributors, Inc. v..... 913 Powell v. West............................................ 901 Preller; Gayety Books, Inc. v.............................. 905 Preller; Star v............................................ 905 Price v. Virginia.......................................... 912 Prince Georges County State’s Attorney; Village Books v.... 911 Public Funds for New Jersey Schools; Marburger v.......... 916 Rampton; Elder v........................................... 902 Reed v. United States...................................... 919 Reitano v. California...................................... 911 Rhodes; Art Theater Guild v............................. 904 XIV TABLE OF CASES REPORTED Page Rhodes; Krause v............................................ 919 Rhodes; Scheuer v........................................... 919 Rhodes; Studio Art Theater v................................ 904 Richardson; Wimberley v.................................. 921 Ridens v. Illinois.......................................... 912 Roaden v. Kentucky.......................................... 496 Romanus v. California....................................... 914 Rothfelder; United States v................................. 922 Scheuer v. Rhodes........................................... 919 Schlomann v. Moseley....................................... 919 School Board of Newport News v. Thompson.................... 920 School District No. 1, Denver, Colorado v. Keyes............ 921 School District No. 1, Denver, Colorado; Keyes v............ 189 SCRAP; Aberdeen & Rockfish R. Co. v......................... 917 SCRAP; Interstate Com. Comm’n v....................... 917 Scruggs v. United States.................................... 921 Searcy v. Pinnock........................................... 920 Secretary of Defense; Wimberley v....................... 921 Secretary of Navy v. Flemings............................... 665 Secretary of State of Georgia v. Millican................... 909 Secretary of State of Idaho; Summers v...................... 906 Sensenbrenner; Adult Book Store v........................... 911 Shea v. Vialpando........................................... 918 Sheffield v. United States................................... 919 Shevin v. M & W Theatres, Inc............................... 903 Shriver; Spivak v............................................ 904 Singleton v. Kansas.......■................................. 920 Slaton; Paris Adult Theatre I v.............................. 49 Sloan v. Lemon.............................................. 825 Smith v. Board of Education, Tulsa County................... 916 South Carolina; Watkins v.................................... 905 South Carolina Attorney General; Durham v................... 902 South Carolina Governor; Hunt v......................... 734 South Carolina Governor; Powell v........................... 901 South Carolina Governor; Stevenson v.................... 902 Spivak v. Shriver........................................... 904 Spomer v. Littleton............................*............ 918 Star v. Preller............................................. 905 State. See name of State. State’s Atty, for Prince Georges County; Village Books v.... 911 State’s Atty, of Alexander County v. Littleton.............. 918 Stevenson v. West........................................... 902 Strickland Transportation Co.; Cooley v..................... 923 TABLE OF CASES REPORTED xv Page Stroud v. Indiana........................................... 911 Students Chal’ging Reg. Agcy.; Aberdeen & R. R. Co. v...... 917 Students Chal’ging Reg. Agcy.; Interstate Com. Comm’n v.. 917 Studio Art Theater v. Tennessee ex rel. Rhodes.............. 904 Suffolk County District Attorney v. P. B. I. C., Inc....... 905 Sugarman v. Dougall......................................... 634 Summers v. California....................................... 921 Summers v. Cenarrusa........................................ 906 Superintendent of penal or correctional institution. See name of superintendent. Swinney v. Untreiner........................................ 921 Tate Educational Foundation v. McNeal..................... 922 Tennessee; Mitchum v........................................ 912 Tennessee ex rel. Rhodes; Art Theater Guild v............... 904 Tennessee ex rel. Rhodes; Studio Art Theater v.............. 904 Tennessee ex rel. Webster; Knoxville Bookmart v............. 912 Texas v. Louisiana.......................................... 918 Thomas v. Washington....................................... 921 Thompson; School Board of Newport News v.................... 920 Thompson v. United Artists Theatre Circuit.................. 903 Thompson; United Artists Theatre Circuit v............... 903 Tobalina v. California...................................... 912 Toutant v. California....................................... 913 Treasurer of Pennsylvania v. Lemon.......................... 825 Tulsa County Board of Education; Smith v.................... 916 12 200-ft. Reels of Super 8mm. Film; United States v....... 123 United Artists Theatre Circuit v. Thompson.................. 903 United Artists Theatre Circuit; Thompson v.................. 903 United States; Action Publishing Co. v..................... 913 United States; Almeida-Sanchez v........................ 266 United States v. Ash...................................... 300 United States; Bamberger v............................... 919 United States; Barron v.................................... 920 United States; Bell v...................................... 917 United States v. B & H Dist. Corp........................... 909 United States; Bird v...................................... 919 United States; Board of School Comm’rs of Indianapolis v... 920 United States; Bowen v..................................... 915 United States; Brown v..................................... 912 United States; Cangiano v.................................. 913 United States; Clayton v.................................. 920 United States; Coleman v.................................. 921 United States; Cote v...................................... 915 XVI TABLE OF CASES REPORTED Page United States; Courier ..................................... 923 United States; Ewing ....................................... 913 United States; Foerster .................................... 915 United States; Gower ....................................... 914 United States; Greeley ..................................... 920 United States; Hunter v..................................... 923 United States; Johnson v.................................... 920 United States; Kaplan ...................................... 913 United States v. King........................................ 922 United States; Marquez v.................................... 921 United States; McDaniel v.................................... 919 United States; Miller v..................................... 913 United States v. Orito...................................... 139 United States v. Paladini................................... 123 United States v. Palladino.................................. 916 United States; Reed v....................................... 919 United States v. Rothfelder................................. 922 United States; Scruggs v.................................... 921 United States; Sheffield v.................................. 919 United States v. 12 200-ft. Reels of Super 8mm. Film........ 123 U. S. Civil Service Comm’n v. Letter Carriers................. 548 U. S. Dept, of Agriculture v. Moreno......................... 528 U. S. Dept, of Agriculture v. Murry........................... 508 U. S. District Court; Huffman v............................... 918 U. S. District Judge; Colgrove v.......................... 149 Untreiner; Swinney v.......................................... 921 Utah Governor; Elder v........................................ 902 Vialpando; Shea v............................................. 918 Village Books, Inc. v. Marshall............................... 911 Virginia; Alexander v. 836 Virginia; Bigelow v........................................... 909 Virginia; Goldstein v.......................................- 912 Virginia; Price v............................................. 912 Virginia; Winslow v........................................... 913 Walker v. Coiner.............................................. 901 Warden. See name of warden. Warner v. Flemings............................................ 665 Washington; Thomas v.......................................... 921 Wasserman v. Municipal Court of Alhambra Jud. Dist.......... 911 Watkins v. South Carolina..................................... 905 Webster; Knoxville Bookmart v................................. 912 West; Powell v................................................ 901 West; Stevenson v............................................. 902 TABLE OF CASES REPORTED xvn Page Wimberley v. Richardson............................... 921 Winslow v. Virginia................................... 913 Wisconsin; Court v.................................... 911 Wolman; Essex v....................................... 923 Wolman; Grit v........................................ 901 Woodall; Pettibone v...............................;. 922 Yannucci v. New York.................................. 912 TABLE OF CASES CITED Page Abington School Dist. v. Schempp, 374 U. S. 203 750, 753, 755, 772-773, 784, 786, 797, 821-822 Adams v. Williams, 407 U. S. 143 268 Aday v. New York, 388 U. S. 447 82 Afroyim v. Rusk, 387 U. S. 253 659 Aiderman v. United States, 394 U. S. 165 454,615 Alexander v. Holmes County Bd. of Ed., 396 U. S. 19 201,467 Alexander v. United States, 362 F. 2d 379 126 Alexander v. Virginia, 413 U. S. 836 903- 906, 909, 911, 914r-916 Allen v. Rhay, 431 F. 2d 1160 301 Allen v. State Bd. of Elections, 393 U. S. 544 352,354 Almeida-Sanchez v. United States, 413 U. S. 266 451,454,916 Alvarado v. El Paso School Dist., 445 F. 2d 1011 197 American Fire & Casualty Co. v. Finn, 341 U. S. 6 707 American Power & Light Co. v. SEC, 329 U. S. 90 61,63,129 American Publishing Co. v. Fisher, 166 U. S. 464 157,166,171,179 Anderson v. Dunn, 6 Wheat. 204 682 Apache County v. United States, 256 F. Supp. 903 350,355,369 Apodaca v. Oregon, 406 U. S. 404 169-170 Page Aptheker v. Secretary of State, 378 U. S. 500 612, 629, 632 A Quantity of Books v. Kansas, 378 U. S. 205 80,90, 491-492,500, 502-503 A Quantity of Books v. Kansas, 388 U. S. 452 82,119 Argersinger v. Hamlin, 407 U. S. 25 308,689 Ash v. United States, 149 U. S. App. D. C. 1 301, 304-305, 313-314, 319, 321, 323, 327-328, 332, 334-335, 337 Ashton v. Cameron County Dist., 298 U. S. 513 690,710 Ashwander v. TVA, 297 U. S. 288 272 Askew v. American Waterways, 411 U. S. 325 415 Associated Press v. NLRB, 301 U, S. 103 382,400 Associated Press v. United States, 326 U. S. 1 383,397,400 Astro Cinema Corp. v. Mac-kell, 422 F. 2d 293 488 Astrup v. Immigration Service, 402 U. S. 509 645 Austin v. Aidermen, 7 Wall. 694 610 Avansino v. New York, 388 U. S. 446 82,119 Baggett v. Bullitt, 377 U. S. 360 48 Baker v. Carr, 369 U. S. 186 8,11,14 Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 33 Baldwin v. New York, 399 U. S. 66 166 Baldwin v. State, 5 Md. App. 22 301 XIX XX TABLE OF CASES CITED Page Baltimore & Carolina Line v. Redman, 295 U. S. 654 152,156,166,171 Bantam Books v. Sullivan, 372 U. S. 58 43, 79,84,90,490,492 Barba-Reyes v. United States, 387 F. 2d 91 296 Barenblatt v. United States, 360 U. S. 109 88-89 Barron v. Mayor of Balti- more, 7 Pet. 243 132 Beauharnais v. Illinois, 343 U. S. 250 60,67,79,403 Beckett v. School Board, 308 F. Supp. 1274 228 Bell v. Burson, 402 U. S. 535 514,516,524,644 Bell v. School City of Gary, 324 F. 2d 209 220 Benton v. Maryland, 395 U. S. 784 678 Beth view Amusement Corp. v. Cahn, 416 F. 2d 410 488 Blair v. California, 340 F. 2d 741 715 Bloom v. Illinois, 391 U. S. 194 676,696 Bloss v. Dykema, 398 U. S. 278 83,93 Bloss v. Michigan, 402 U. S. 938 83 Blount v. Rizzi, 400 U. S. 410 55,90,93,95,490,492 Blow v. North Carolina, 379 U. S. 684 65 Blythe v. Hinckley, 180 U. S. 333 644,653 Board of Education v. Allen, 392 U. S. 236 63,460,468, 481, 742, 747, 772, 775, 781-782, 784-785, 791, 795, 799-800, 803-804, 806, 810, 812, 821, 823 Bolling v. Sharpe, 347 U. S. 497 533,540 Bonner v. Texas City School Dist., 305 F. Supp. 600 210 Books, Inc., v. United States, 388 U. S. 449 82,119 Bouie v. Columbia, 378 U. S. 347 17,41-42 Page Boyd v. Thayer, 143 U. S. 135 647-648 Boyd v. United States, 116 U. S. 616 126,272,288,402 Bradfield v. Roberts, 175 U. S. 291 743 Bradlaugh v. Queen, [1878] L. R. 3 Q. B. 569 134 Bradley v. School Board, 345 F.2d310; 382U.S. 103 220 Bradwell v. State, 16 Wall. 130 719,733 Brady v. Maryland, 373 U. S. 83 320 Brandenburg v. Ohio, 395 U. S. 444 612 Branzburg v. Hayes, 408 U. S. 665 383,402,668 Breard v. Alexandria, 341 U. S. 622 19,23, 33-34,58,61,613 Bridges v. California, 314 U. S. 252 135-136 Briggs v. Elliott, 132 F. Supp. 776 200-201 Brinegar v. United States, 338U.S. 160 269,274,440-441 Broadrick v. Oklahoma, 338 F. Supp. 711 602,618 Broadrick v. Oklahoma, 413 U. S. 601 563,581 Brolan v. United States, 236 U. S. 216 126 Brooks v. United States, 267 U. S. 432 61,128,144-145 Brotherhood. For labor union, see name of trade. Brown *v. Allen, 344 U. S. 443 712 Brown v. Board of Education, 347 U. S. 483 200, 219-220, 222-223, 225, 251, 254, 460, 469, 722 Brown v. Board of Education, 349 U. S. 294 200- 201, 203, 220, 225, 239, 251, 255, 257 Brown v. Louisiana, 383 U. S. 131 614 Brown v. South Carolina Bd. of Ed., 296 F. Supp. 199 463,466 TABLE OF CASES CITED XXI Page Brusca v. Board of Educa- tion, 405 U. S. 1050 835 Bullock v. Carter, 405 U. S. 134 567 Burger v. United States, 295 U. S. 78 320 Burgin v. South Carolina, 404 U. S. 809 83 Burns v. Fortson, 410 U. S. 686 181 Bums v. Wilson, 346 U. S. 137 681,697,700 Butler v. Michigan, 352 U. S. 380 19 Byrne v. Karalexis, 396 U. S. 976 43 Cain v. Kentucky, 397 U. S. 319 33,81,83 Caldwell v. Sioux Falls Stock Yards, 242 U. S. 559 42,62 California v. LaRue, 409 U. S. 109 26 Camara v. Municipal Court, 387 U. S. 523 270,277- 280, 282-284, 289, 294, 439, 442, 451, 453-454 Cameron v. Johnson, 390 U. S. 611 607,613 Caminetti v. United States, 242 U. S. 470 68,128 Cammarano v. United States, 358 U. S. 498 401 Cammer v. United States, 350 U. S. 399 728-729 Camp-of-the-Pines v. New York Times, 184 Mise. 389 388 Cantwell v. Connecticut, 310 U. S. 296 88, 113,543,613-614,628 Capital Broadcasting Co. v. Acting Attorney General, 405 U. S. 1000 387-388 Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 387-388 Capital Traction Co. v. Hof, 174 U. S. 1 157, 163,166,172,178-179 Carafas v. LaVallee, 391 U. S. 234 670 Carleson v. Remillard, 406 U. S. 598 421,423-424 Page Carleson v. Taylor, 404 U. S. 980 425 Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 610 Carrington v. Rash, 380 U. S. 89 648-649 Carroll v. Princess Anne, 393 U. S. 175 492-493 Carroll v. United States, 267 U. S. 132 126,269, 272, 274-275, 281, 288, 439-441, 451, 453, 505 Cascade Natural Gas Co. v. El Paso Natural Gas Co., 386 U. S. 129 355,372,374 Central Magazine Sales v. United States, 389 U. S. 50 82—83 Chae Chan Ping v. United States, 130 U. S. 581 272,291 Chambers v. Hendersonville Bd. of Ed., 364 F. 2d 189 209,263 Chambers v. Maroney, 399 U. S. 42 269- 270, 279, 281, 439, 441, 444, 447-448, 451, 505 Chambers v. Mississippi, 410 U. S. 284 320 Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U. S. 210 834 Chance v. California, 389 U. S. 89 83 Chaplinsky v. New Hampshire, 315 U. S. 568 61,97,612 Chevron Oil Co. v. Huson, 404 U. S. 97 711 Chicot County Drainage Dist. v. Baxter Bank, 308 U. S. 371 675,690-691,710 Childs v. Oregon, 401 U. S. 1006 * 83,118 Chimel v. California, 395 U. S. 752 280,289,451,505 Cisneros v. Corpus Christi School Dist., 467 F. 2d 142 197,230 Citizen Publishing Co. v. United States, 394 U. S. 131 383,400 XXII TABLE OF CASES CITED Page Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 62 City. See name of city. CSC v. Letter Carriers, 413 U. S. 548 602,605,607-608, 610, 616, 618,622-623 Clark v. Allen, 331 U. S. 503 733 Clark v. Gabriel, 393 U. S. 256 124 Clarke v. Deckebach, 274 U. S. 392 643,653,720-721 Clayton v. Kervick, 56 N. J. 523 745 Coates v. Cincinnati, 402 U. S. 611 45-46,48, 615-616,622, 631-633 Cobert v. New York, 388 U. S. 443 82 Cochran v. Louisiana Bd. of Ed., 281 U. S. 370 464,468 Coffey v. State Educational Finance Comm’n, 296 F. Supp. 1389 463 Coffey v. State Educational Finance Comm’n, SD Miss., CA No. 2906 (1970) 463 Cohen v. California, 403 U. S. 15 98,107,112,612 Coleman v. Alabama, 399 U. S. 1 311-312,321-322,338 Coleman v. Tennessee, 97 U. S. 509 673,705 Colonnade Catering Corp. v. United States, 397 U. S. 72 270-271,280,289-291,294 Colten v. Kentucky, 407 U. S. 104 607 Columbia Broadcasting System v. Democratic Nat. Comm., 412 U. S. 94 403 Committee for Public Education v. Levitt, 342 F. Supp. 439 767 Committee for Public Education v. Nyquist, 413 U. S. 756 468,470, 479, 482, 741, 755, 798, 828, 830-832, 901, 916 Commonwealth. See also name of Commonwealth. Commonwealth v. Holmes, 17 Mass. 336 104,131 Page Commonwealth v. Ross, 282 N. E. 2d 70 301 Commonwealth v. Sharpless, 2 S. & R. 91 104,131 Commonwealth v. Whiting, 439 Pa. 205 302 Comstock v. Group of Institutional Investors, 335 U. S. 211 264 Connally v. General Construction Co., 269 U. S. 385 86,245,607,619 Conner v. Hammond, 389 U. S. 48 82 Cooley v. Strickland Transportation Co., 459 F. 2d 779 162,164,187 Coolidge v. New Hampshire, 403 U. S. 443 269, 280-281, 439, 441, 447, 451-452, 489, 501-502 Cooper v. Aaron, 358 U. S. 1 464 Cooper v. California, 386 U. S. 58 440,442, 444-448,450,452-453 Corinth Publications v. Wes-berry, 388 U. S. 446 119 County. See name of county. Cox v. Louisiana, 379 U. S. 536 613-614 Cox v. New Hampshire, 312 U. S. 569 613 Cox v. State, 219 So. 2d 762 302 Crandall v. Nevada, 6 Wall. 35 653 Crane v. New York, 239 U. S. 195 643, 653,720 Crawford v. United States, 380 U. S. 970 688 Crowell v. Benson, 285 U. S. 22 102,130,169 Crutcher v. Kentucky, 141 U. S. 47 653 Culombe v. Connecticut, 367 U. S. 568 102 Curtis, Ex parte, 106 U. S. 371 555 Cutler v. Rae, 7 How. 729 707 Dandridge v. Williams, 397 U. S. 471 412-414,421-423,515, 522-526,533,538,544 TABLE OF CASES CITED XXIII Page Daniel v. Paul, 395 U. S. 298 65 Darr v. Burford, 339 U. S. 200 709 Davis v. Beason, 133 U. S. 333 68 Davis v. Board of Ed. of North Little Rock, 328 F. Supp. 1197 244 Davis v. Board of School Comm’rs of Mobile County, 402 U. S. 33 205,244 Davis v. School Dist. of Pontiac, 309 F. Supp. 734 210 Davis v. United States, 411 U. S. 233 714-715 Day-Brite Lighting v. Missouri, 342 U. S. 421 64 Deal v. Cincinnati Bd. of Ed., 369 F. 2d 55 220,245-246 De Jonge v. Oregon, 299 U. S. 353 541 Desist v. United States, 394 U. S. 244 672, 679,688, 694,701,704 DeStefano v. Woods, 392 U. S. 631 676,679, 681-683,688,696,701 Diaz v. Southern Drilling Corp., 427 F. 2d 1118 374 Dimick v. Schiedt, 293 U. S. 474 166,171,179-180,187-188 District of Columbia v. Little, 85 U. S. App. D. C. 242 442 Doe v. Bolton, 410 U. S. 179 86,909 Dombrowski v. Pfister, 380 U. S. 479 48, 598, 608, 612-613, 629 Doolittle v. Clark, 47 Conn. 316 727 Doubleday & Co. v. New York, 335 U. S. 848 118 Downs v. Board of Education, 336 F. 2d 988 220 Drewry v. Commonwealth, 213 Va. 186 302 Dublino v. New York Dept, of Social Services, 348 F. Supp. 290 411-412 Duncan, In re, 139 U. S. 449 648 Page Duncan v. Kanahamoku, 327 U. S. 304 12 Duncan v. Louisiana, 391 U. S. 145 170,182,676, 679,696 Dunn v. Blumstein, 405 U S 330 537, 567,642,647,722 Duprez v. United States, 435 F. 2d 1276 296 Dyke v. Taylor Mfg. Co., 391 U. S. 216 269,451 Earley v. DiCenso, 403 U. S. 602 736,772,778,786 Eastern R. Conference v. Noerr Motor Freight, 365 U. S. 127 615 Edwards v. South Carolina, 372 U. S. 229 614 Eisenstadt v. Baird, 405 U. S. 438 65,86, 112,142,535,537,611 Engel v. Vitale, 370 U. S. 421 754,771-772 Engelhardt v. CSC, 197 F. Supp. 806 567 Engineers v. Chicago, R. I. & P. R. Co., 382 U. S. 423 414 Epperson v. Arkansas, 393 U. S. 97 479,772-773 Escobedo v. Illinois, 378 U. S. 478 340,342 Estate. See name of estate. Euclid v. Ambler Realty Co., 272 U. S. 365 109 Evans Theatre Corp. v. Sla- ton, 227 Ga. 377 51,54 Everson v. Board of Educa- tion, 330 U. S. 1 468,481,760, 770-772, 775, 777, 780-782, 785-786, 788, 791, 796-800, 803-804, 806, 810-812, 821, 823, 832 Ex parte. See name of party. Fausner v. Commissioner, 472 F. 2d 561 838 Fay v. Noia, 372 U. S. 391 709,713 Felton v. Pensacola, 390 U. S. 340 83 Ferguson v. Skrupa, 372 U. S. 726 61,64,525 xxrv TABLE OF CASES CITED Page Fernandez v. United States, 321 F. 2d 283 296 Fishkin v. CSC, 309 F. Supp. 40 567 Flast v. Cohen, 392 U. S. 83 9,707 Flax v. Potts, 464 F. 2d 865 238 Flemings v. Chafee, 458 F. 2d 544 696 Flemming v. Nestor, 363 U. S. 603 525 Fong Yue Ting v. United States, 149 U. S. 698 292 Fortier v. New Orleans Nat. Bank, 112 U. S. 439 707 Freedman v. Maryland, 380 U. S. 51 55,90, 93,119,489-490,492 Frick v. Webb, 263 U. S. 326 644,653 Friedman v. New York, 388 U. S. 441 82,118 Frontiero v. Richardson, 411 U. S. 677 533 Fumagalli v. United States, 429 F. 2d 1011 294-296 Funk v. United States, 290 U. S. 371 157,162 Gable v. Jenkins, 309 F. Supp. 998 51,128 Gaffney v. Cummings, 412 U. S. 735 906,908-909 Gaines v. Washington, 277 U. S. 81 668 Gallagher v. Crown Kosher Super Market, 366 U. S. 617 784 Galloway v. United States, 319 U. S. 372 156-157,162,166,180 Garland, Ex parte, 4 Wall. 333 663 Gamer v. Louisiana, 368 U. S. 157 614 Garrison v. Louisiana, 379 U. S. 64 97 Gasoline Products Co. v. Champlin Co., 283 U. S. 494 157 Gaston County v. United States, 395 U. S. 285 362,372 Gelling v. Texas, 343 U. S. 960 43 Page Georgia v. United States, 411 U. S. 526 352 Giboney v. Empire Storage Co., 336 U. S. 490 42,398 Gibson v. Berryhill, 411 U. S. 564 609 Gibson v. Florida Legislative Committee, 372 U. S. 539 541 Gideon v. Wainwright, 372 U. S. 335 308,689 Giglio v. United States, 405 U. S. 150 320 Gilbert v. California, 388 U. S. 263 305, 318,321,326,329,336 Ginsberg v. New York, 390 U. S. 629 19,27,39, 43, 60, 82. 87-88, 90, 101, 106-107, 137, 524 Ginzburg v. United States, 383 U. S.463 27-28,38-39,41, 43, 55-56,70,80-82,84, 87, 106, 121, 137, 387 Giordonello v. United States, 357 U. S. 480 489 Givens v. Zerbst, 255 U. S. 11 708 Goldberg v. Kelly, 397 U. S. 254 644,661 Gomillion v. Lightfoot, 364 U. S. 339 368 Gooding v. Wilson, 405 U. S. 518 47,97, 575,612, 627,629 Grafton v. United States, 206 U. S. 333 673,704 Graham v. Richardson, 403 U. S. 365 638,641-642,644-646;651,656,720-722 Grayned v. Rockford, 408 U. S. 104 607,612-613 Green v. Connally, 330 F. Supp. 1150 463,467 Green v. County School Board, 391 U. S. 430 200- 201, 213,221, 237, 257-258,461,464 Gregory v. Chicago, 394 U. S. Ill 88 Griffin v. Board of Education, 239 F. Supp. 560; 296 F. Supp. 1178 466 TABLE OF CASES CITED XXV Page Griffin v. Breckenridge, 403 U. S. 88 470 Griffiths, In re, 413 U. S. 717 641 Grisham v. Hagan, 361 U. S. 278 706 Griswold v. Connecticut, 381 U. S. 479 64-66, 85-86, 112, 140,142,247,535,542 Grosjean v. American Press, 297 U. S. 233 136,382-383,400 Grosso v. United States, 390 U. S. 62 677,701 Grove Press v. Gerstein, 378 U. S. 577 119 Gusik v. Schilder, 340 U. S. 128 697,712,716 Haerr v. United States, 240 F. 2d 533 298,442 Hailes v. United Air Lines, 464 F. 2d 1006 381 Haines v. Kerner, 404 U. S. 519 11 Hall v. Geiger-Jones Co., 242 U. S. 539 42,62 Hamilton v. Alabama, 368 U. S. 52 311-312,321,339-340 Hamm v. Rock Hill, 379 U. S. 241 65 Hardware Dealers Ins. Co. v. Glidden Co., 284 U. S. 151 169 Harper v. Virginia Bd. of Elections, 383 U. S. 663 649 Harris v. United States, 390 U. S. 234 442, 445-446,448,450,452 Hartstein v. Missouri, 404 U. S. 988 83 Hatch v. Reardon, 204 U. S. 152 610 Hauenstein v. Lynham, 100 U. S. 483 644,653 Hawk, Ex parte, 321 U. S. 114 711 Head v. New Mexico Board, 324 U. S. 474 33,387 Heart of Atlanta Motel v. United States, 379 U. S. 241 65 Page Heim v. McCall, 239 U. S. 175 643,653 Heller v. New York, 413 U. S. 483 504-506, 836, 903-906,909,911,914-916 Henry v. Louisiana, 392 U. S. 655 83 Hernandez v. Texas, 347 U. S. 475 197,232 Herndon v. Lowry, 301 U. S. 242 102,612 Hester v. United States, 265 U. S. 57 450 Hiatt v. Brown, 339 U. S. 103 688,709 Hobson v. Hansen, 269 F. Supp. 401 211 Hoke v. United States, 227 U. S. 308 61,68,128 Hosey v. Jackson, 309 F. Supp. 527; 401 U.S. 987 501 Hoyt v. Minnesota, 399 U. S. 524 33,81,83 H. P. Hood & Sons v. Du Mond, 336 U. S. 525 33 Hudson County Water Co. v. McCarter, 209 U. S. 349 127 Huffman v. United States, 152 U. S. App. D. C. 238 99 Hunt v. McNair, 413 U. S. 734 777,821-823 Huron Portland Cement Co. v. Detroit, 362 U. S. 440 33,411,414 Hurtado v. California, 110 U. S. 516 . 162,668 Husty v. United States, 282 U. S. 694 269 I. M. Amusement Corp v. Ohio, 389 U. S. 573 83 Industrial Addition Assn. v. Commissioner, 323 U. S. 310 707 In re. See name of party. Interstate Circuit v. Dallas 390 U. S. 676 16, 19, 22, 24, - 36, 41, 80, 87, 92, 101, 114 Iowa State Univ. Research Foundation v. Honeywell, Inc., 459 F. 2d 447 365-366 XXVI TABLE OF CASES CITED Page Jacobellis v. Ohio, 378 U. S. 184 19,23,25-26,28-33,38-39, 60, 69, 80-81, 84—85, 97, 101, 106, 118-119 Jacobs v. New York, 388 U. S. 431 43 Jalil v. Hampton, 148 U. S. App. D. C. 415 646 Jefferson v. Hackney, 406 U. S.535 413-414,422-423,533 Jenness v. Fortson, 403 U. S. 431 567 Johnson v. Louisiana, 406 U. S. 356 169-170,182,188 Johnson v. New Jersey, 384 U. S. 719 675-676,679-680 Johnson v. New York State Education Dept., 449 F. 2d 871 63 Johnson v. Sanders, 319 F. Supp. 421 752 Johnson v. Sayre, 158 U. S. 109 673,704-705 Johnson v. United States, 333 U. S. 10 489 Johnson v. Zerbst, 304 U. S. 458 309,339,689, 713,733 Jones v. Alfred H. Mayer Co., 392 U. S. 409 470 Jones v. Newlon, 81 Colo. 25 191 Jones v. Opelika, 319 U. S. 103 383 Joseph Burstyn, Inc. v. Wil- son, 343 U. S. 495 19,23,119 Juras v. Meyers, 404 U. S. 803 425 Kahm v. United States, 300 F. 2d 78 56 Kain v. State, 48 Wis. 2d 212 302 Kaplan v. California, 413 U. S. 115 69,903- 906,909,911,914-916 Karalexis v. Byrne, 306 F. Supp. 1363 128 Katz v. United States, 399 U. S. 347 451 Kearney v. Macy, 409 F. 2d 847 567 Kelley v. Metropolitan County Bd. of Ed., 317 F. Supp. 980 201 Page Kelly v. Guinn, 456 F. 2d 100 216 Kelly v. United States, 197 F. 2d 162 297 Keney v. New York, 388 U. S. 440 82,118 Kennedy v. Mendoza-Martinez, 372 U. S. 144 686 Keyes v. School Dist. No. 1, 413 U. S. 189 916,922 Keyishian v. Board of Re- gents, 385 U. S. 589 608,612,616 King v. Smith, 392 U. S. 309 413,421,423-425 Kingsley Books v. Brown, 354 U. S. 436 43,55,57,85, 101,119,488,491,837 Kingsley Pictures v. Re- gents, 360 U. S. 684 43,101,111-112,119 Kinsella v. Singleton, 361 U. S. 234 673-675,704,706 Kirby v. Illinois, 406 U. S. 682 303,322,326,337 Kleindienst v. Mandel, 408 U. S. 753 291-292 Knowles v. Butz, 358 F. Supp. 228 537 Knowles v. State, 3 Day 103 131 Kois v. Wisconsin, 408 U. S. 229 23-26,35,37,43,54,67 Konigsberg v. State Bar of California, 366 U. S. 36 663,723 Kosydar v. Wolman, 353 F. Supp. 744 792 Kovacs v. Cooper, 336 U. S. 77 19,60,656 Kozak v. Wells, 278 F. 2d 104 365-366 Kramer v. Union School Dist., 395 U. S. 621 648-649 Kunz v. New York, 340 U. S. 290 613,627,629 Labor Union. See name of trade. Laird v. Tatum, 408 U. S. 1 12-13 Lamont v. Postmaster General, 381 U. S. 301 85 TABLE OF CASES CITED XXVII Page Lanzetta v. New Jersey, 306 U. S. 451 86 Lassiter v. Northampton Election Bd., 360 U. S. 45 649 Law Students Research Council v. Wadmond, 401 U. S. 154 575,618,723,726 Ledesma v. Perez, 304 F. Supp. 662 501 Lee v. Macon County Bd. of Ed., 267 F. Supp. 458 463,465 Lee v. Runge, 404 U. S. 887 130 Lee Art Theatre v. Virginia, 392 U. S. 636 90,487- 488,493,500,503, 505 Leger v. Westinghouse Elec- tric Corp., 54 F. R. D. 574 158 Lem Moon Sing v. United States, 158 U. S. 538 292 Lemon v. Kurtzman, 403 U. S. 602 462, 464, 478, 480-482, 736, 741, 746, 749-750, 753, 761, 771-773, 778-780, 783, 785-786, 789-790, 794, 796-798, 800-801, 812, 815, 820, 822, 826-827, 829-830, 832, 835 Lemon v. Kurtzman, 411 U. S. 192 240,835 Lemon v. Sloan, 340 F. Supp. 1356 827-828,830 Levitt v. Committee for Public Education, 413 U.S. 472 468,470 Lincoln Union v. Northwestern Co., 335 U. S. 525 61 Linkletter v. Walker, 381 U. S. 618 675,688,694,711 Logan v. United States, 144 U. S. 263 653 Lorain Journal v. United States, 342 U. S. 143 390,400 Lottery Case, 188 U. S. 321 68 Lovell v. Griffin, 303 U. S. 444 383,613 Loving v. Virginia, 388 U. S. 1 65,112,142,722 Page Lumbermens Mutual Casualty Co. v. Rhodes, 403 F. 2d 2 365-366 Luther v. Borden, 7 How. 1 647-648 Mabee v. White Plains Publishing Co., 327 U. S. 178 382,400 Mahan v. Howell, 410 U. S. 315 906,908 Manual Enterprises v. Day, 370 U. S. 478 81,101 Mapp v. Ohio, 367 U. S. 643 440,493 Marbury v. Madison, 1 Cranch 137 611 Marchetti v. United States, 390 U. S. 39 677,701 Marcus v. Search Warrant, 367 U.S. 717 90,119,489, 491,500,502,504-506 Martin v. Struthers, 319 U. S. 141 85,383 Mason v. Missouri, 179 U. S. 328 649 Massiah v. United States, 377 U.S.201 311-312,338,340 Maxwell v. Dow, 176 U. S. 581 157,179 Mazes v. Ohio, 388 U.S. 453 82 McClaughry v. Deming, 186 U. S. 49 699-700,702,708 McCollum v. Board of Education, 333 U. S. 203 754,761,770,772 McCready v. Virginia, 94 U. S. 391 644 McDonald-v. E. J. Lavino Co., 430 F. 2d 1065 366 McElroy v. Guagliardo, 361 U. S. 281 706,712 McGee v. United States, 402 F. 2d 434 301 McGhee v. State, 48 Ala. App. 323 301 McGinnis v. Royster, 410 U. S. 263 234,261 McGowan v. Maryland, 366 U. S. 420 533,607,610,658, 771-773,775-776,784 McLaughlin v. Florida, 379 U. S. 184 68,721-722 xxvin TABLE OF CASES CITED Page Melancon v. McKeithen, 345 F. Supp. 1025 836-837 Memoirs v. Massachusetts, 383 U. S. 413 21-25,27,33,38, 43, 55, 58-60, 64, 81-82, 95-96, 106, 114, 118-119, 129, 134 Mercer v. Dillon, 19 U. S. C. M. A. 264 672,684,689,716 Merrick v. N. W. Halsey & Co., 242 U. S. 568 42, 62 Meyer v. Nebraska, 262 U. S. 390 66,110-111 Michigan v. Payne, 412 U. S. 47 675,678,680 Mienke v. United; States, 452 F. 2d 1076 296 Miller v. California, 413 U. S. 15 54-55,57,67,69- 70, 81, 95-96, 98-100, 114, 116, 120-122, 126, 130-131, 138, 143, 145, 148, 494, 836-837, 903-906, 909, 911, 913-916 Miller v. Pate, 386 U. S. 1 320 Miller v. United States, 431 F. 2d 655 127,142 Milligan, Ex parte, 4 Wall. 2 673,704 Mills v. Alabama, 384 U. S. 214 598 Miner v. Atlass, 363 U. S. 641 163-164,168 Mintz v. Baldwin, 289 U. S. 346 414 Miranda v. Arizona, 384 U. S. 436 312 Mishkin v. New York, 383 U. S. 502 18 27, 33-34,56,81,84-85’, 87, 89-90, 93, 118, 492 Mitchell v. Maurer, 293 U. S. 237 353 Mitchum v. Foster, 407 U. S. 225 904 Monitor Patriot Co. v. Roy, 401 U. S. 265 598 Monroe v. Board of Comm’rs, 391 U. S. 450 221 Mooney v. Holohan, 294 U. S. 103 320 Moose Lodge No. 107 v. Irvis, 407 U. S. 163 465 Page Morrissey v. Brewer, 408 U. S. 471 516-517 Mourning v. Family Publications Service, 411 U. S. 356 524,547 Murdock v. Pennsylvania, 319 U. S. 105 383,400,760 Murphy v. California, 225 U. S. 623 68 NAACP v. Alabama, 377 U. S. 288 113 NAACP v. Alabama, 357 U. S. 449 541,545,611 NAACP v. Button, 371 U. S. 415 48,88, 91, 541, 598, 628-629 National Broadcasting Co. v. United States, 319 U. S. 190 387 Near v. Minnesota, 283 U. S. 697 396,400,492 Neil v. Biggers, 409 U. S. 188 198,710 New York Dept, of Social Services v. Dublino, 413 U. S. 405 910 New York Post v. Moses, 12 App. Div. 2d 243 640 New York State Broadcasters Assn. v. United States, 414 F. 2d 990 387 New York Times v. Sullivan, 376 U. S. 254 25,97, 102,384-386,401,619 New York Times v. United States, 403 U. S. 713 382,390,396,402,491 New York Trust Co. v. Eisener, *256 U. S. 345 777 Ng Fung Ho v. White, 259 U. S. 276 102 Niemotko v. Maryland, 340 U. S. 268 88,627 Nierbo Co. v. Bethlehem Corp., 308 U. S. 165 353 North American Co. v. SEC, 327 U. S. 686 61,144 North Carolina v. Pearce, 395 U. S. 711 678 North Carolina Teachers Assn. v. Asheboro City Bd. of Ed., 393 F. 2d 736 210,263 TABLE OF CASES CITED XXIX Page Northcross v. Board of Ed. of Memphis Schools, 444 F. 2d 1179 244 Northcross v. Board of Ed. of Memphis Schools, 466 F. 2d 890 237-238,249 Northern Virginia Regional Park Authority v. CSC, 437 F. 2d 1346 567 Norwood v. Harrison, 413 U. S. 455 800,802 Noyd v. Bond, 395 U. S. 683 712,715 Nye & Nissen v. United States, 336 U. S. 613 207 O’Callahan v. Parker, 395 U. S. 258 667-668,673-674, 677,680,687,692-700 Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320 292 Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186 383,400 Olmstead v. United States, 277 U. S. 438 86,403 1024 Peachtree Corp. v. Slaton, 228 Ga. 102 51,54 Oregon v. Mitchell, 400 U. S. 112 357,647 Organization for a Better Austin v. Keefe, 402 U. S. 415 396,492 Orloff v. Willoughby, 345 U. S. 83 12 Oyama v. California, 332 U. S. 633 644 Palmer v. Thompson, 403 U. S. 217 234,261 Papachristou v. Jackson- ville, 405 U. S. 156 88 Paris Adult Theatre I v. Slaton, 413 U. S. 49 23, 27-29, 36, 47-48, 120-122,127, 129, 138,142-144, 147, 402, 494-495, 507, 836-837, 903-906, 909, 911, 913-916 Park, Application of, 484 P. 2d 690 729 Parsons v. Bedford, 3 Pet. 433 152-153 Page Patsone v. Pennsylvania, 232 U. S. 138 644,653 Patton v. United States, 281 U. S. 276 179 Pennsylvania ex rel. Raymond v. Rundle, 339 F. 2d 598 715 People v. Anderson, 389 Mich. 155 302 People v. Campise, 242 Cal. App. 2d 905 17 People v. Coles, 34 App. Div. 2d 1051 301 People v. Crane, 214 N. Y. 154 644,720 People v. Holiday, 47 Ill. 2d 300 301 People v. Lawrence, 4 Cal. 3d 273 301 People v. Pinkus, 256 Cal. App. 2d 941 17 People’s Bank v. Calhoun, 102 U. S. 256 707 Perez v. Ledesma, 401 U. S. 82 501 Perotta v. Gregory, 4 Mise. 2d 769 643 Perry v. Sindermann, 408 U. S. 593 597 Peterson, Ex parte, 253 U. S. 300 157,162,179 Pickering v. Board of Education, 391 U. S. 563 564,598,615 Pierce v. Society of Sisters, 268 U.S. 510 66,142,247,458, 461-462,788,802,814 Plessyv. Ferguson, 163 U. S. 537 193 Poe v. Ullman,* 367 U. S. 497 10,127,142 Poindexter v. Louisiana Financial Assistance Comm’n, 275 F. Supp. 833 463,466 Pope v. Williams, 193 U. S. 621 647-648 Porterfield v. Webb, 263 U. S. 225 644,653 Potomac News v. United States, 389 U. S. 47 82 XXX TABLE OF CASES CITED Page Powell v. Alabama, 287 U. S. 45 306-307, 309, 331, 338, 340, 663 Preston v. United States, 376 U. S. 364 434,443-444,452,505 Prince v. Massachusetts, 321 U. S. 158 19,66,142 Public Utilities Comm’n v. Pollak, 343 U. S. 451 19,44,72 Public Workers v. Mitchell, 330 U. S. 75 553-556,596- 597,606,616,622,641 Purdy & Fitzpatrick v. State, 71 Cal. 2d 566 638 Quarles, In re, 158 U. S. 532 653 Queen v. Read, 88 Eng. Rep. 953 135 Quick Bear v. Leupp, 210 U. S. 50 781,801,803 Quirin, Ex parte, 317 U. S. 1 686 Rabe v. Washington, 405 U. S. 313 19,87,106 Raffaelli v. Committee of Bar Examiners, 7 Cal. 3d 288 729 Railroad Trainmen v. Vir- ginia Bar, 377 U. S. 1 541 Railway Express Agency v. New York, 336 U. S. 106 517 Railway Mail Assn. v. Corsi, 328 U. S. 88 18 Ramirez v. United States, 263 F. 2d 385 297-298 Raney v. Board of Education, 391 U. S. 443 221 Rast v. Van Deman & Lewis Co., 240 U. S. 342 62 Ratner v. California, 388 U. S. 442 82 Red Lion Broadcasting v. FCC, 395 U. S. 367 421,615 Redmond v. United States, 384 U. S. 264 106 Redrup v. New York, 386 U. S. 767 19,22, 29,3 9,57, 76-77,82-85, 101, 105-106, 119, 140 Reed v. Anderson, 461 F. 2d 739 301,325 Page Reed v. Reed, 404 U. S. 71 517-518,541 Reed v. State, 281 A. 2d 142 301 Regina v. Hicklin, [1868] L. R. 3 Q. B. 360 33,89 Reid v. Covert, 354 U. S. 1 673,704,706,712 Relford v. Commandant, 401 U. S. 668 668, 672, 681, 693, 696, 705 Rex v. Curl, 93 Eng. Rep. 849 134-135 Rex v. Wilkes, 98 Eng. Rep. 327 135 Reynolds v. Sims, 377 U. S. 533 11,649,902 Richardson v. Belcher, 404 U. S. 78 533 Roaden v. Kentucky, 413 U. S. 496 493-494,903- 906,909,911,914-916 Roa-Rodriquez v. United States, 410 F. 2d 1206 278,294,298 Robert-Arthur Management Corp. v. Tennessee, 389 U. S. 578 83 Robinson v. DiCenso, 403 U. S. 602 736 Robinson v. Neil, 409 U. S. 505 678-679,692,700-701,703 Robinson v. United States, 324 U. S. 282 608 Rochin v. California, 342 U. S. 165 182 Roe v.* Wade, 410 U. S. 113 14, 65-66,109,909 Romero v. Weakley, 226 F. 2d 399 197 Rosario v. Rockefeller, 410 U. S. 752 567 Roth v. United States, 354 U. S. 476 18-21,23- 29, 32-33, 35-39, 43, 54, 61, 67, 69, 73, 76-80, 85, 87-91, 97, 100-103, 105-106, 118-120, 126, 129, 131, 143, 145 Rowan v. Post Office Dept., 397 U. S. 728 106 Royall, Ex parte, 117 U. S. 241 711 TABLE OF CASES CITED XXXI Page Salinger v. Loisel, 265 U. S. 224 709,711 San Antonio School Dist. v. Rodriguez, 411 U. S. 1 462 Savage v. Jones, 225 U. S. 501 414 Schackman v. California, 388 U. S. 454 82 Schenk v. United States, 249 U. S. 47 398 Schlomann v. Moseley, 457 F. 2d 1223 671 Schneckloth v. Bustamonte, 412 U. S. 218 322,339 Schneider v. Rusk, 377 U. S. 163 533 Schware v. Board of Bar Examiners, 353 U. S. 232 723,725 Schwartz v. Texas, 344 U. S. 199 413,417 Schwegmann Bros. v. Calvert Distillers, 341 U. S. 384 431 Scott v. Sanford, 19 How. 393 652 SEC v. Capital Gains Research Bureau, 375 U. S. 180 61 See v. Seattle, 387 U. S. 541 270,282,454 Shapiro v. Thompson, 394 U. S. 618 533,543,545,644 Shelton v. Tucker, 364 U. S. 479 612,628 Sheperd v. New York, 388 U. S. 444 82,119 Sherbert v. Verner, 374 U. S. 398 644 Shuttlesworth v. Birmingham, 394 U. S. 147 613 Sibbach v. Wilson & Co., 312 U. S. 1 163 Simmons v. United States, 390 U. S.377 320-321,332-335 Sir Charles Sydlyes Case, 83 Eng. Rep. 1146 134 Skinner v. Oklahoma, 316 U. S. 535 66,142 Slaughter-House Cases, 16 Wall. 36 649,653 Sligh v. Kirkwood, 237 U. S. 52 33 Page Sloan v. Lemon, 413 U. S. 825 482,755,798,901,917 Slocum v. New York Life Ins. Co., 228 U. S. 364 172 Smith v. California, 361 U. S. 147 18,43,56 88,90,119,121,385 Smith v. Whitney, 116 U. S. 167 673,705 Smith Petroleum Service v. Monsanto Chemical Co., 420 F. 2d 1103 365-366 Smuck v. Hobson, 132 U. S. App. D. C. 372 211 Snell v. Wyman, 281 F. Supp. 853 422 Soria v. Oxnard School Dist., 328 F. Supp. 155 197 South Carolina v. Katzen- bach, 383 U. S. 301 350,354,360 Southern Pacific Co. v. Arizona, 325 U. S. 761 33 Southern Surety Co. v. Oklahoma, 241 U. S. 582 68 Spano v. New York, 360 U. S. 315 340 Speiser v. Randall, 357 U. S. 513 79,88,104,628 Springville v. Thomas, 166 U. S. 707 179 Stanford v. Texas, 379 U. S. 476 503-505 Stanley v. Georgia, 394 U. S. 557 19,53,57,65-67,77,85, 106-108, 126, 129, 137, 140-142, 145-147, 535 Stanley v. Illinois, 405 U. S. 645 513-514,516,518,524 State. See also name of State. State v. Accor, 277 N. C. 65 302 State v. Amato, 49 Wis. 2d 638 56 State v. Appling, 25 Mo. 315 131 State v. Brookins, 468 S. W. 2d 42 301 State v. Moss, 187 Neb. 391 301-302 State v. Nettles, 81 Wash. 2d 205 302 xxxn TABLE OF CASES CITED Page State v. Yehling, 108 Ariz. 323 301 Sterling v. Constantin, 287 U. S. 378 12 Stevenson v. State, 244 So. 2d 30 301 Steward Machine Co. v. Davis, 301 U. S. 548 63 Stovall v. Denno, 388 U. S. 293 305,326,329,670, 678- 679, 688-689, 694, 701 Street v. New York, 394 U. S. 576 612 Stromberg v. California, 283 U. S. 359 132 Sugar Institute v. United States, 297 U. S. 553 42,62 Sullivan v. Commissioner, 368 F. 2d 1007 838 Sullivan v. Little Hunting Park, 396 U. S. 229 65 Superior Films v. Depart- ment of Education, 346 U. S. 587 43,119 Supervisors v. Stanley, 105 U. S. 305 610 Sutphen Estates v. United States, 342 U. S. 19 355 Swann v. Adams, 385 U. S. 440 902 Swann v. Charlotte-Mecklenburg Bd. of. Ed., 402 U. S. 1 200- 203, 208-209, 211-212, 217, 221-223, 235, 237-239, 241, 243-244, 259 Sweezy v. New Hampshire, 354 U. S. 234 598 Sydlyes Case, 83 Eng. Rep. 1146 134 Takahashi v. Fish Comm’n, 334 U. S. 410 638, 642, 645-655, 721 Tanner v. Little, 240 U. S. 369 62 Teamsters Union v. Vogt, Inc., 354 U. S. 284 614 Tehan v. Shott, 382 U. S. 406 679 Teitel Film Corp. v. Cusack, 390 U. S. 139 55,490 Terminiello v. Chicago, 337 U. S. 1 44,98,629 Page Terrace v. Thompson, 263 U. S. 197 644, 653 Terry v. Ohio, 392 U. S. 1 268,280,289 Thomas v. Collins, 323 U. S. 516 79 Thompson v. Parker, 308 F. Supp. 904 671 Thompson v. School Bd. of Newport News, 465 F. 2d 83 237 Thompson v. State, 85 Nev. 134 302 Thornhill v. Alabama, 310 U. S. 88 26,35, 67, 78, 88, 613, 630 Tidewater Oil Co. v. United States, 409 U. S. 151 355 Tilton v. Richardson, 403 U. S. 672 464,469, 736, 743-744, 753-754, 772-773, 775-776, 779, 782, 784-785, 822, 834 Times Film Corp. v. Chi- cago, 365 U. S. 43 23,43,119,488 Tinker v. Des Moines School Dist., 393 U. S. 503 112 Tollett v. Henderson, 411 U. S. 258 714 Toth v. Quarles, 350 U. S. 11 674,682,698,705,712 Townsend v. Swank, 404 U. S. 282 421,423-426,431 Tralins v. Gerstein, 378 U. S. 576 119 Trop v. Dulles, 356 U. S. 86 659 Truax v. Raich, 239 U. S. 33 641,654,720 Turner v. Williams, 194 U. S. 279 292 Two Guys v. McGinley, 366 U. S. 582 784 Tyne v. Commissioner, 385 F. 2d 40 838 Tyson & Brother v. Banton, 273 U. S. 418 60 United. For labor union, see name of trade. United States v. Alpers, 338 U. S. 680 144 TABLE OF CASES CITED XXXIII Page United States v. Anderson, 468 F. 2d 1280 298 United States v. Augenblick, 393 U. S. 348 31,670,688 United States v. Avey, 428 F. 2d 1159 296 United States v. Ballard, 423 F. 2d 127 301 United States v. Bennett, 409 F. 2d 888 301,316-317,325 United States v. Bird, 456 F. 2d 1023 297 United States v. Biswell, 406 U. S. 311 271,280- 281,290-291,294,442 United States v. Board of Ed. of Tulsa County, 429 F. 2d 1253 241 United States v. Brown, 328 F. Supp. 196 56 United States v. California Canneries, 279 U. S. 553 355 United States v. Carolene Products Co., 304 U. S. 144 655-656 United States v. Collins, 416 F. 2d 696 301 United States v. CIO, 335 U. S. 106 615 United States v. Crawford, 15 U. S. C. M. A. 31 688 United States v. Cruikshank, 92 U. S. 542 653 United States v. Darby, 312 U. S. 100 . 144 United States v. De Leon, 462 F. 2d 170 296-297 United States v. Donnelly Estate, 397 U. S. 286 711 United States v. Elder, 425 F. 2d 1002 296 United States v. Fragus, 428 F. 2d 1211 127-128 United States v. Griffin, 303 U. S. 226 707 United States v. Groner, 479 F. 2d 577 22,33,56,121-122 United States v. Harriss, 347 U. S. 612 87,579, 614 Page United States v. Jefferson County Bd. of Ed., 372 F. 2d 836; 380 F. 2d 385 209-210,230 United States v. Klaw, 350 F. 2d 155 56 United States v. Long, 449 F. 2d 288 301 United States v. Marin, 444 F. 2d 86 296 United States v. McCormick, 468 F. 2d 68 298 United States v. McDaniel, 463 F. 2d 129 297 United States v. Melvin, 419 F. 2d 136 128,142 United States v. Miranda, 426 F. 2d 283 278,296 United States v. Montgom- ery County Bd. of Ed., 395 U. S. 225 241 United States v. Munsing-wear, Inc., 340 U. S. 36 12 United States v. National Dairy Products, 372 U. S. 29 608,629 United States v. O’Brien, 391 U. S. 367 26,103,234 United States v. Orito, 413 U. S. 139 43,66,69, 120, 126-128, 130, 903-906, 909, 911, 914-916 United States v. Paramount Pictures, 333 F. Supp. 1100 369 United States v. Raines, 36*2 U. S. 17 48,610-611,628 United States v. Reidel, 402 U. S. 351 19,23, 53-54, 57, 64, 66, 68-69, 77, 106, 113, 121, 127-129, 141-143 United States v. Robel, 389 U. S. 258 612, 632 United States v. Robinson, 406 F. 2d 64 301 United States v. Roth, 237 F. 2d 796 no United States v. St. Paul, M. & M. R. Co., 247 U. S. 310 United States v. Sanchez-Mata, 429 F. 2d 1391 296 XXXIV TABLE OF CASES CITED Page United States v. School Dist. No. 151, 301 F. Supp. 201 210 United States v. Serio, 440 F. 2d 827 301 United States v. Spector, 343 U. S. 169 141 United States v. Texas Education Agency, 467 F. 2d 848 197,201,215,236,239 United States v. Thirtyseven Photographs, 309 F. Supp. 36 125,138 United States v. Thirtyseven Photographs, 402 U. S. 363 28, 55, 57, 66, 69, 90, 120, 125, 128-130, 137-138, 141-143, 489-490, 492, 613, 618, 627 United States v. Tunica County School Dist., 323 F. Supp. 1019 467 United States v. 12 200-ft. Reels of Film, 413 U. S. 123 24, 37, 43, 66, 69-70, 120, 122, 143, 145, 494, 836, 903-906, 909, 911, 914-916 United States v. U. S. Coin & Currency, 401 U. S. 715 677,689, 700-701,711 United States v. U. S. Dis- trict Court, 407 U. S. 297 280,282-285 United States v. Wade, 388 U. S. 218 305, 310-311, 313-316, 321-323, 325-326, 329-331, 334-338, 341-344 United States v. Watson Chapel School Dist., 446 F. 2d 933 244 United States v. Wild, 422 F. 2d 34 56 United States v. Wurzbach, 280 U. S. 396 608-610 United States v. Zacher, 332 F. Supp. 883 142 United States v. Zeiler, 427 F. 2d 1305 301 U. S. Dept, of Agriculture v. Moreno, 413 U. S. 528 515 Page U. S. Dept, of Agriculture v. Murry, 413 U. S. 522 545 U. S. ex rel. See name of real party in interest. Valentine v. Chrestensen, 316 U. S. 52 384-386,393,398,401 Valenzuela-Garcia v. United States, 425 F. 2d 1170 296 Ver Mehren v. Sirmyer, 36 F. 2d 876 708 Village. See name of village. Vlandis v. Kline, 412 U. S. 441 514, 516,518,524 Volpe v. Smith, 289 U. S. 422 292 Wagner Electric Mfg. Co. v. Lyndon, 262 U. S. 226 169 Walker v. New Mexico & S. P. R. Co., 165 U. S. 593 157,166,179 Walker v. Ohio, 398 U. S. 434 22,33,83,101,118 Wallace v. United States, 389 U. S. 215 463 Waller v. Florida, 397 U. S. 387 678,700 Walter v. Slaton, 227 Ga. 676 51,54 Walz v. Tax Comm’n, 397 U. S. 664 743,745,750, 760, 772-773, 770-777, 782, 788, 790-794, 796, 799, 806-808, 810, 813-814, 821, 823, 833, 835 Warden v. Hayden, 387 U. S. 294 716 Watkins, Ex parte, 3 Pet. 193 702 Weaver v. Doe, 404 U. S. 987 425 Webb v. O’Brien, 263 U. S. 313 644,653 Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 540-541,657 Weber v. Freed, 239 U. S. 325 126,144 Weeks v. United States, 232 U. S. 383 267 Whelchel v. McDonald, 340 U. S. 122 686 TABLE OF CASES CITED XXXV Page White v. Maryland, 373 U. S. 59 311-312,321,338 White v. Regester, 412 U. S. 755 906,908-909 Whitney v. California, 274 U. S. 357 108 Wiener v. California, 404 U. S. 988 83 Williams v. Florida, 399 U. S. 78 151-152, 156-160, 163-164, 169-171, 175-177, 180-182 Williams v. Kimbrough, 295 F. Supp. 578 210 Williams v. Rhodes, 393 U. S. 23 567 Williams v. United States, 341 U. S. 97 608 Williams v. United States, 401 U. S. 646 675,679 Williamson v. Lee Optical Co., 348 U. S. 483 524 Winsby v. John Oster Mfg. Co., 336 F. Supp. 663 158 Winters v. New York, 333 U. S. 507 85,87 Wisconsin v. Yoder, 406 U. S. 205 461,789 Wolf v. Colorado, 338 U. S. 25 440 Wolman v. Essex, 342 F. Supp. 399 783 Page Wong Sun v. United States, 371 U. S. 471 454 Wong Wing v. United States, 163 U. S. 228 641 Wood v. Georgia, 370 U. S. 375 598-599 Wright v. Council of the City of Emporia, 407 U. S. 451 231,466 Wright v. Rockefeller, 376 U. S. 52 368 Wyman v. James, 400 U. S. 309 422,424-425 Yamataya v. Fisher, 189 U. S. 86 292 Yarbrough, Ex parte, 110 U. S. 651 653 Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U. S. 217 610, 629 Yick Wo v. Hopkins, 118 U. S. 356 641,720 Younger v. Harris, 401 U. S. 37 611 Zeitlin v. Arnebergh, 59 Cal. 2d 901 97 Zorach v. Clauson, 343 U. S. 306 772,814 Zschernig v. Miller, 389 U. S. 429 733 Zwickler v. Koota, 389 U. S. 241 613 TABLE OF STATUTES CITED (A) Statutes of the United States Page 1842, Aug. 30, c. 270, 5 Stat. 548, §28 ...... 49,123 1871, Mar. 3, c. 114, 16 Stat. 495 ...................... 548 1883, Jan. 16, c. 27, 22 Stat. 403 ...................... 548 1903, Feb. 11, c. 544, 32 Stat. 823, as amended, § 2. 345 1909, Feb. 9, c. 100, 35 Stat. 614, as amended, §2. 266 1912, July 31, c. 263, 37 Stat. 240, §1........... 123 1916, Aug. 29, c. 418, 39 Stat. 619................. 665 1917, Feb. 5, c. 29, 39 Stat. 874, §16..........266 1930, June 17, c. 497, 46 Stat. 590, as amended, §305 .................... 123 1934, June 19, c. 651, 48 Stat. 1064............... 149 1935, Aug. 14, c. 531,49 Stat. 620, as amended, §§402, 407, 430 et seq..................... 405 1939, Aug. 2, c. 410, 53 Stat. 1147, as amended, §§ 1, 2........... 548 §9 ........ 548,601 §§12, 13, 15, 16, 18, 20........ 548 1940, July 19, c. 640, 54 Stat. 767 .................... 548 1946, Aug. 7, c. 768, 60 Stat. 865 .................... 266 1948, June 24, c. 625, 62 Stat. 605, as amended, § 4............. 634 June 25, c. 645, 62 Stat. 683........ 548 June 25, c. 646, 62 Stat. 869..... 149 Page 1950, Aug. 25, c. 784, 64 Stat. 475.................. 548 1952, June 27, c. 477, 66 Stat. 163, §§ 235, 287 ............... 266 §§312, 313, 316... 634 §319 .. 634,717 §329 ...... 634 §§334, 337.. 717 1956, July 18, c. 629, 70 Stat. 567, § 106.... 266 Aug. 1, c. 836, 70 Stat. 807, §312.................. 405 1957, Sept. 9, Pub. L. 85- 315, 71 Stat. 634... 345 §131 .................... 601 1958, Sept. 2, Pub. L. 85-864, 72 Stat. 1680, as amended, §205.. 756 1960, May 6, Pub. L. 86- 449, 74 Stat. 86.... 345 1961, May 8, Pub. L. 87-31, 75 Stat. 75, § 1..... 405 1962, July 25, Pub. L. 87- 543, 76 Stat. 172, §105 .............. 405 Oct. 5, Pub. L. 87-753, 76 Stat. 750......... 548 1964, July, Pub. L. 88-352, 78 Stat. 241, as amended .................. 345 §201 ........ 49,455 §§ 202-207,701-714, 716............... 455 Aug. 20, Pub. L. 88-452, 78 Stat. 508, as amended, § 603 ...... 548 Aug. 31, Pub. L. 88-525, 78 Stat. 703, as amended................ 508,528 1965, July 27, Pub. L. 89-92, 79 Stat. 282, as amended, §6............ 376 xxxvn XXXVIII TABLE OF STATUTES CITED Page 1965, Aug. 6, Pub. L. 89- 110, 79 Stat. 437, as amended, §§ 2, 4, 5, 202 ............... 345 1966, Sept. 6, Pub. L. 89- 554, 80 Stat. 378... 548 Oct. 3, Pub. L. SO- 617, 80 Stat. 868... 548 1968, Jan. 2, Pub. L. 90-248, 81 Stat. 821, § 204.. 405 Apr. 11, Pub. L. 90- 284, 82 Stat. 73, §801 .............. 455 1970, June 22, Pub. L. 91- 285, 84 Stat. 315, §6 345 Aug. 12, Pub. L. 91- 375, 84 Stat. 719... 548 Oct. 7, Pub. L. 91-439, 84 Stat. 890, § 502.. 634 1971, Jan. 2, Pub. L. 91-644, 84 Stat. 1880, § 14.. 139 Jan. 11, Pub. L. 91- 671, 84 Stat. 2048.. 508, 528 July 9, Pub. L. 92-49, 85 Stat. 108, § 602.. 634 July 12, Pub. L. 92-54, 85 Stat. 146, § 12... 548 Dec. 28, Pub. L. 92- 223, 85 Stat. 802.... 405 Revised Statutes. § 1979 ..................... 1,601 §2004 .................... 345 U. S. Code. Title 5, §§1502, 7326 ...... 548 §3301 ........ 634 §7324 .... 548,601 Title 7, § 2011 et seq.. 508, 528 Title 8, §§ 1225, 1357............. 266 §§1423, 1424, 1427, 1440 ......... 634 §1430 ................ 634,717 §§1445, 1448 ... 717 Title 10, § 331 et seq..... 1 §502 ..................... 717 Page U. S. Code—Continued. Title 10—Continued. §§ 802, 825, 832, 861, 866, 867, 876, 920 ................. 665 Title 15, §29 .................. 345 § 1335 .................. 376 Title 18 (1964 ed.), §3731 ............ 139 Title 18, §§ 594, 597, 602, 612 .................. 548 §§ 1461, 1465............. 913 § 1462 ... 129,139,913 §2113 ........... 300 §3731 ................... 139 Title 19, § 1305......... 123 Title 20, §425........... 756 Title 21 (1964 ed.), § 176a .............. 266 Title 26, §103 ...... 734 §§ 141 et seq., 151 et seq., 170, 2055, 2522 ...... 756 §§ 151, 152...... 508 §§162, 262...... 838 §7302 ...... 665 Title 26 (Supp. I), §151 ................ 508 Title 28, § 1253 ............. 345 §§1254, 2244..... 665 § 1343 ................ 1,634 §§2071, 2072..... 149 §2281 ............... 472,756 §2283 ................... 756 §2284 ................... 472 Title 32, §§105, 110, 501-507,701-714.... 1 Title 32 (Supp. I), §§502, 709............. 1 Title 38, § 1651......... 756 Title 39, §410........... 548 Title 42, §§602, 607, 630 et seq.................. 405 § § 1971, 1973, 1973b, 1973c, 1973aa.... 354 §1983 .......... 1,601 § 2000a ........ 49 TABLE OF STATUTES CITED XXXIX Page U. S. Code—Continued. Title 42—Continued. §§ 2000a et seq., 2000e et seq., 3601 et seq.....455 §2943 ................... 548 Title 42 (Supp. I), §§602, 630 et seq... 405 §4881 ................... 548 Title 50 App., §454... 634 Civil Rights Act of 1957.. 345, 601 Civil Rights Act of 1960... 345 Civil Rights Act of 1964.. 49, 345,455 Civil Service Act of 1883... 548 Economic Opportunity Act of 1964................... 548 Emergency Employment Act of 1971................... 548 Enabling Act of 1934..... 149 Expediting Act........... 345 Food Stamp Act of 1964.. 508, 528 Hatch Act............ 548,601 Immigration and Nationality Act.......... 266,634,717 Internal Revenue Code of 1954, § 103 ................. 734 Page Internal Revenue Code of 1954—Continued. §§ 141 et seq., 151 et seq., 170, 2055, 2522.. 756 §§ 151, 152.............. 508 §§ 162, 262.............. 838 §7302 ................. 665 Narcotic Control Act of 1956 ..................... 266 National Defense Education Act of 1958............... 756 Omnibus Crime Control Act of 1970.................. 139 Pendleton Act............ 548 Postal Reorganization Act.. 548 Public Welfare Amendments of 1962................... 405 Public Works Appropria- tions Act 1971............ 634 Social Security Act of 1935. 405 Social Security Amendments of 1956, 1967............. 405 Tariff Act of 1842..... 49,123 Tariff Act of 1930....... 123 Treasury, Postal Service, and General Government Appropriation Act, 1972. 634 Voting Rights Act Amendments of 1970............ 345 Voting Rights Act of 1965.. 345 (B) Constitutions and Statutes of the States and the District of Columbia Alabama. Code, Tit. 55, §317.... 601 Alaska. Stat. §39.25.160........... 601 Arizona. Rev. Stat. Ann. § 16- 1301 .................... 601 Arkansas. Stat. Ann. §83-119.... 601 California. Laws 1969, c. 249, § 1. • 15 Govt. Code §§ 19730- 19735 ................... 601 Penal Code §§311, 311.2 .......... 15,115 Penal Code §§ 313, 313.1 .............. 49 Colorado. Const., Art. IX, §8... 189 Rev. Stat. Ann. § 26-5-31 ................... 601 Connecticut. Gen. Stat. Rev. §§ 1-25, 20-250, 20-291, 20-361, 51-80, 52-90... 717 Gen. Stat. Rev. §5-266. 601 Gen. Stat. Rev. § 51-85. 634, 717 Delaware. Code Ann., Tit. 31, §110 ................. 601 District of Columbia. Code Ann. § 22-2001.. 913 Code Ann. § 22-2901.. 300 XL TABLE OF STATUTES CITED Page Florida. Stat. Ann. §110.092... 601 Georgia. Code Ann. § 26-2101... 49 Hawaii. Laws 1972, Act 9, c. 12, pt. II, §§ 1210-1216.. 15 Rev. Stat. §§76-1, 76- 91 .......................... 601 Penal Code, Tit. 37, §§1210-1216 .......... 15 Idaho. Code §67-5311............... 601 Illinois. Rev. Stat., c. 24%, § 38t ............... 601 Indiana. Ann. Stat. § 60-1341... 601 Iowa. Code Ann. § 19A. 18... 601 Kansas. Stat. Ann. § 75-2953... 601 Kentucky. Rev. Stat. § 18.310.... 601 Rev. Stat. §436.101... 496 Louisiana. Const., Art. 14, § 15 (N) ................ 601 Maine. Rev. Stat. Ann., Tit. 5, §679..................... 601 Massachusetts. Gen. Laws Ann., c. 55, §§ 1-15, c. 56, §§ 35-_ _. ,. ³⁶ ................ 601 Michigan. Stat. Ann. §28.575.... 909 Minnesota. Stat. Ann. §43.28 ......... 601 Mississippi. Code Ann. §6634 et seq............... Missouri. Ann. Stat. §36.150.... 601 Montana. Rev. Codes Ann. 88 94-1439, 94-1440, 94-XT u' ⁹⁴r-¹⁴⁷⁶............ 601 Nebraska. Rev. Stat. §81-1315... 601 Page New Hampshire. Rev. Stat. Ann. §§98: 18, 98:19......... 601 New Jersey. Stat. Ann. § 11:17-2... 601 New Mexico. Stat. Ann. § 5-4-42.... 601 New York. Const., Art. II, § 1. 345,634 Art. Ill, §7, Art. IV, §2, Art. V, §§ 1, 6.. 634 Laws 1939, c. 767, § 1.. 634 Laws 1970, c. 138......... 472 Laws 1972, cc. 11, 76.. 345 Laws 1972, c. 414 §§1-5 ............... 756 Laws 1972, cc. 683, 685, 941 ................. 405 Civ. Serv. Law §§35, 40-45, 53 ........... 634 Civ. Serv. Law § 107.. 601 Educ. Law, Art. 7, §305 .................472 Educ. Law, Art. 12 §§ 549-553, Art. 12A, §§559-563 .......... 763 Election Law 88 150, 168 .................. ....’345 Penal Law §§ 235.00, 235.05 .............. 483 Pub. Officers Law § 3.. 634 Soc. Serv. Law §§131, 350-k ................405 Tax Law § 612............. 756 North Carolina. Gen. Stat. §§ 126-13 to 126-15 ;............ 601 Ohio. Rev. Code Ann. §§ 143.-41, 143.44, 143.45, 143.46 ................ 601 Rev. Code Ann. 8 2923 - 55 .................... j Oklahoma. Stat. Ann., Tit. 74, §801etseq.................’601 Oregon. Laws 1971, c. 743, Art 29, §§255-262.... 15,49 Rev. Stat. §260.432... 601 Pennsylvania. Laws 1971, Act 92. 756,825 TABLE OF STATUTES CITED XLI Page Pennsylvania—Continued. Stat. Ann., Tit. 24, §5701 et seq... 756,825 Stat. Ann., Tit. 71, §741.904 ............... 601 Non-public Elementary and Secondary Education Act...... 825 Parent Reimbursement Act for nonpublic Education ...... 825 Rhode Island. Gen. Laws Ann. §§ 36-4-51 to 36-4-53. 601 South Carolina. Code Ann. §§ 22-41 et seq., 65-253.... 734 Educational Facilities Authority Act... 734 (C) Forel England. 7 Wm. 3, c. 3............. 300 6 & 7 Wm. 4, c. 114.... 300 16 & 17 Viet., c. 107... 123 20 & 21 Viet., c. 83.... 123 Page Tennessee. Code Ann. § 8-3121... 601 Texas. Penal Code, Arts. 195-197 ................ 601 Utah. Code Ann. §67-13-13. 601 Vermont. Laws 1824, c. XXXII, No. 1, §23........... 49 Virginia. Code, §18.1-236.3 ....... 836 Washington. Rev. Code Ann. § 41-06-250 ............. 601 West Virginia. Code Ann. §29-6-19.. 601 Wisconsin. Stat. Ann. § 16.30....... 601 Statutes England—Continued. Customs Consolidation Act ................ 123 Lord Campbell’s Act... 123 Trials for Felony Act.. 300 CASES ADJUDGED IN THE SUPBEME COUBT OF THE UNITED STATES AT OCTOBER TERM, 1972 GILLIGAN, GOVERNOR OF OHIO, et al. v. MORGAN et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 71-1553. Argued March 19, 1973—Decided June 21, 1973 Respondents filed this action on behalf of themselves and all other students at a state university, claiming that during a period of civil disorder on the campus in May 1970, the National Guard, called by the Governor to preserve order, violated students’ rights of speech and assembly and caused injury and death to some students. They sought injunctive relief to restrain the Governor in the future from prematurely ordering Guard troops to duty in civil disorders and an injunction to restrain Guard leaders from future violation of students’ rights. They also sought a declaratory judgment that § 2923.55 of the Ohio Revised Code is unconstitutional. The District Court dismissed the suit on the ground that the complaint failed to state a claim upon which relief could be granted. The Court of Appeals affirmed the dismissal with respect to both injunctive relief against the Governor’s “premature” employment of the Guard and the validity of the state statute, but held that the complaint stated a cause of action with respect to one issue, which was remanded to the District Court with directions to resolve the question whether there was and is “a pattern of training, weaponry and orders in the Ohio National Guard which . . . require . . . the use of fatal force in suppressing 1 2 OCTOBER TERM, 1972 Syllabus 413 U. S. civilian disorders when the total circumstances are such that non-lethal force would suffice to restore order . . . ” Since the complaint was filed, the named respondents have left the university; the officials originally named as defendants no longer hold offices in which they can exercise authority over the Guard; the Guard has adopted new and substantially different “use of force” rules; and the civil disorder training of Guard recruits has been revised. Held: 1. The case is resolved on the basis of whether the claims alleged in the complaint, as narrowed by the Court of Appeals’ remand, are justiciable, rather than on possible mootness. Pp. 4-5. 2. No justiciable controversy is presented in this case, as the relief sought by respondents, requiring initial judicial review and continuing judicial surveillance over the training, weaponry, and standing orders of the National Guard, embraces critical areas of responsibility vested by the Constitution, see Art. I, § 8, cl. 16, in the Legislative and Executive Branches of the Government. Pp. 5-12. 456 F. 2d 608, reversed. Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed a concurring opinion, in which Powell, J., joined, post, p. 12. Douglas, Brennan, Stewart, and Marshall, JJ., filed a dissenting statement, post, p. 12. Thomas V. Martin, Assistant Attorney General of Ohio, argued the cause for petitioners. With him on the briefs was William J. Brown, Attorney General. Michael E. Geltner argued the cause for respondents. With him on the briefs were Leonard J. Schwartz, Melvin L. Wulf, Sanford Jay Rosen, and Joel M. Gora. Solicitor General Griswold argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Wood, Robert E. Kopp, Robert W. Berry, and R. Kenly Webster* *Briefs of amici curiae urging affirmance were filed by David E. Engdahl for the Law Revision Center, and by Jack Greenberg, GILLIGAN v. MORGAN 3 1 Opinion of the Court Mr. Chief Justice Burger delivered the opinion of the Court. Respondents, alleging that they were full-time students and officers in the student government at Kent State University in Ohio, filed this action ¹ in the District Court on behalf of themselves and all other students on October 15, 1970. The essence of the complaint is that, during a period of civil disorder on and around the University campus in May 1970, the National Guard, called by the Governor of Ohio to preserve civil order and protect public property, violated students’ rights of speech and assembly and caused injury to a number of students and death to several, and that the actions of the National Guard were without legal justification. They sought injunctive relief against the Governor to restrain him in the future from prematurely ordering National Guard troops to duty in civil disorders and an injunction to restrain leaders of the National Guard from future violation of the students’ constitutional rights. They also sought a declaratory judgment that § 2923.55 of the Ohio Revised Code² is unconstitutional. The District Court held that the complaint failed to state a claim upon which relief could be granted and dismissed the suit. The Court of Appeals³ unanimously affirmed the District Court’s dismissal with respect to injunctive relief against the Governor’s “premature” employment of the Guard on future occasions and with respect to the James M. Nabrit III, Charles Stephen Ralston, and Drew S. Days III for the NAACP Legal Defense and Educational Fund, Inc. ¹ The complaint was brought under 42 U. S. C. § 1983 with jurisdiction asserted under 28 U. S. C. § 1343 (3). ² This section provides that, under certain circumstances, law enforcement personnel who are engaged in suppressing a riot are “guiltless” for the consequences of the use of necessary and proper force. Ohio Rev. Code Ann. §2923.55 (Supp. 1972). ³ The opinion of the Court of Appeals is reported sub nom. Morgan v. Rhodes, 456 F. 2d 608 (CA6 1972). 4 OCTOBER TERM, 1972 Opinion of the Court 413 IT. S. validity of the state statute.⁴ At the same time, however, the Court of Appeals, with one judge dissenting, held that the complaint stated a cause of action with respect to one issue which was remanded to the District Court with directions to resolve the following question: “Was there and is there a pattern of training, weaponry and orders in the Ohio National Guard which singly or together require or make inevitable the use of fatal force in suppressing civilian disorders when the total circumstances at the critical time are such that nonlethal force would suffice to restore order and the use of lethal force is not reasonably necessary?” ⁵ We granted certiorari to review the action of the Court of Appeals.⁶ I We note at the outset that since the complaint was filed in the District Court in 1970, there have been a number of changes in the factual situation. At the oral argument, we were informed that none of the named respondents is still enrolled in the University.⁷ Likewise, the officials originally named as party defendants no longer hold offices in which they can exercise any authority over the State’s National Guard,⁸ although the suit is against such parties and their successors in office. In addition, both the petitioners, and the Solicitor General appearing as amicus curiae, have informed us that since 1970 the Ohio National Guard has adopted new “use of force” rules substantially differing from those in ⁴ Respondents have not sought certiorari with respect to those claims. ⁵ Id., at 612. ⁶ 409 U. S. 947 (1972). ⁷ Tr. of Oral Arg. 25, 33. ⁸ Memorandum of Petitioners Suggesting a Question of Mootness 2. GILLIGAN v. MORGAN 5 1 Opinion of the Court effect when the complaint was filed; we are also informed that the initial training of National Guard recruits relating to civil disorder control⁹ has been revised. Respondents assert, nevertheless, that these changes in the situation do not affect their right to a hearing on their entitlement to injunctive and supervisory relief. Some basis, therefore, exists for a conclusion that the case is now moot; however, on the record before us we are not prepared to resolve the case on that basis and therefore turn to the important question whether the claims alleged in the complaint, as narrowed by the Court of Appeals’ remand, are justiciable. II We can treat the question of justiciability on the basis of an assumption that respondents’ claims, within the framework of the remand order, are true and could be established by evidence. On that assumption, we address the question whether there is any relief a District Court could appropriately fashion. It is important to note at the outset that this is not a case in which damages are sought for injuries sustained during the tragic occurrence at Kent State.. Nor is it an action seeking a restraining order against some specified and imminently threatened unlawful action. Rather, it is a broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard. This far-reaching demand for relief presents important questions of justiciability. Respondents continue to seek for the benefit of all Kent State students a judicial evaluation of the appropriateness of the “training, weaponry and orders” of the Ohio ⁹ In 1971, the Army began to give National Guard recruits 16 hours of additional special civil-disturbance-control training recognizing the peculiar role of the National Guard in this area. 6 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. National Guard. They further demand, and the Court of Appeals’ remand would require, that the District Court establish standards for the training, kind of weapons and scope and kind of orders to control the actions of the National Guard. Respondents contend that thereafter the District Court must assume and exercise a continuing judicial surveillance over the Guard to assure compliance with whatever training and operations procedures may be approved by that court. Respondents press for a remedial decree of this scope, even assuming that the recently adopted changes are deemed acceptable after an evidentiary hearing by the court. Continued judicial surveillance to assure compliance with the changed standards is what respondents demand. In relying on the Due Process Clause of the Fourteenth Amendment, respondents seem to overlook the explicit command of Art. I, § 8, cl. 16, which vests in Congress the power: “To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” (Emphasis added.) The majority opinion in the Court of Appeals does not mention this very relevant provision of the Constitution. Yet that provision is explicit that the Congress shall have the responsibility for organizing, arming, and disciplining the Militia (now the National Guard), with certain responsibilities being reserved to the respective States. Congress has enacted appropriate legislation pursuant to Art. I, § 8, cl. 16,¹⁰ and has also authorized the Presi ¹⁰ E. g., 32 U. S. C. §§ 105, 501-507, 701-714 (1970 ed. and Supp. I). GILLIGAN v. MORGAN 7 1 Opinion of the Court dent—as the Commander in Chief of the Armed Forces— to prescribe regulations governing organization and discipline of the National Guard.¹¹ The Guard is an essential reserve component of the Armed Forces of the United States, available with regular forces in time of war. The Guard also may be federalized in addition to its role under state governments, to assist in controlling civil disorders.¹² The relief sought by respondents, requiring initial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard, would therefore embrace critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches of the Government.¹³ The Court of Appeals invited the District Court on remand to survey certain materials not then in the record of the case: “[F]or example: Prevention and Control of Mobs and Riots, Federal Bureau of Investigation, U. S. Dept, of Justice, J. Edgar Hoover (1967) . . . ; 32 C. F. R. §501 (1971), ‘Employment of Troops in Aid of Civil Authorities’; Instructions for Members of the Force at Mass Demonstrations, Police Department, City of New York (no date); Report of the National Advisory Commission on Civil Disorders (1968).” 456 F. 2d, at 614. ¹¹32 u. S. C. §110. ¹² 10 U. S. C. § 331 et seq. ¹³ The initial and basic training of National Guard personnel is, by Regulation of the Department of the Army, pursuant to statutory authority, under federal jurisdiction. Commencing in 1971, National Guard units received, as part of the basic training, 16 hours of special civil-disturbance-control training, in recognition of the likelihood that the National Guard would be the primary source of military personnel called into civil disorder situations. See Dept, of the Army, Reserve Enlistment Program of 1963, CON Supp. 1 to AR350-1, App. XXV, Anx. F, Par. 3c (Aug. 31, 1972). 8 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. This would plainly and explicitly require a judicial evaluation of a wide range of possibly dissimilar procedures and policies approved by different law enforcement agencies or other authorities; and the examples cited may represent only a fragment of the accumulated data and experience in the various States, in the Armed Services, and in other concerned agencies of the Federal Government. Trained professionals, subject to the day-to-day control of the responsible civilian authorities, necessarily must make comparative judgments on the merits as to evolving methods of training, equipping, and controlling military forces with respect to their duties under the Constitution. It would be inappropriate for a district judge to undertake this responsibility in the unlikely event that he possessed requisite technical competence to do so. Judge Celebrezze, in dissent, correctly read Baker n. Carr, 369 U. S. 186 (1962), when he said: “I believe that the congressional and executive authority to prescribe and regulate the training and weaponry of the National Guard, as set forth above, clearly precludes any form of judicial regulation of the same matters. I can envision no form of judicial relief which, if directed at the training and weaponry of the National Guard, would not involve a serious conflict with a “‘coordinate political department; ... a lack of judicially discoverable and manageable standards for resolving [the question]; . . . the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; . . . the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; . . . an unusual need for unquestioning adherence to a GILLIGAN v. MORGAN 9 1 Opinion of the Court political decision already made; [and] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.’ Baker v. Carr, supra, 369 U. S. at 217 .... “Any such relief, whether it prescribed standards of training and weaponry or simply ordered compliance with the standards set by Congress and/or the Executive, would necessarily draw the courts into a nonjusticiahle political question, over which we have no jurisdiction.” 456 F. 2d, at 619 (emphasis added). In Flast n. Cohen, 392 U. S. 83 (1968), this Court noted that: “Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action. Yet it remains true that ‘[j justiciability is . . . not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures . . . .’ Poe v. Ullman, 367 U. S. 497, 508 (1961).” ¹⁴ In determining justiciability, the analysis in Flast thus suggests that there is no justiciable controversy (a) “when the parties are asking for an advisory opinion,” (b) “when the question sought to be adjudicated has been mooted by subsequent developments,” and ¹⁴392 U. S., at 95 (footnotes omitted). 10 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. (c) “when there is no standing to maintain the action.” As we noted in Poe n. Ullman, 367 U. S. 497 (1961), and repeated in Flast, “[j Justiciability is . . . not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures . . . .” 367 U. S., at 508. In testing this case by these standards drawn specifically from Flast, there are serious deficiencies with respect to each. The advisory nature of the judicial declaration sought is clear from respondents’ argument and, indeed, from the very language of the court’s remand. Added to this is that the nature of the questions to be resolved on remand are subjects committed expressly to the political branches of government. These factors, when coupled with the uncertainties as to whether a live controversy still exists and the infirmity of the posture of respondents as to standing, render the claim and the proposed issues on remand non justiciable. It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible—as the Judicial Branch is not—to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is this power of oversight and control of military force by elected representatives and officials which underlies our entire constitutional system; the majority opinion of the GILLIGAN v. MORGAN 11 1 Opinion of the Court Court of Appeals failed to give appropriate weight to this separation of powers.¹⁵ Voting rights cases such as Baker v. Carr, 369 U. S. 186 (1962), Reynolds v. Sims, 377 U. S. 533 (1964), and prisoner rights cases such as Haines n. Kerner, 404 U. S. 519 (1972), are cited by the court as supporting the “diminish [ing] vitality of the political question doctrine.” 456 F. 2d, at 613. Yet, because this doctrine has been held inapplicable to certain carefully delineated situations, it is no reason for federal courts to assume its demise. The voting rights cases, indeed, have represented the Court’s efforts to strengthen the political system by assuring a higher level of fairness and responsiveness to the political processes, not the assumption of a continuing judicial review of substantive political judgments entrusted expressly to the coordinate branches of government. In concluding that no justiciable controversy is presented, it should be clear that we neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific ¹⁵ In a colloquy with the Court on the scope of the relief sought under the remand, one Justice asked: “Would it be a fair characterization of your position that if the case goes back to the district court, you do not quarrel with the specific [National Guard] regulations now in force but (a) you want them made permanent and, (b) you want a continuing surveillance to see that they are carried out; is that a fair statement of your case?” Mr. Geltner, counsel for respondents, answered: “Yes, Your Honor, that is a fair statement of what we are seeking at this point, understanding that at the time the complaint was filed we were seeking a more specific change in what then existed.” Tr. of Oral Arg. 56. 12 OCTOBER TERM, 1972 Blackmun, J., concurring 413 U. S. unlawful conduct by military personnel,¹⁶ whether by way of damages or injunctive relief. We hold only that no such questions are presented in this case. We decline to require a United States District Court to involve itself so directly and so intimately in the task assigned that court by the Court of Appeals. Orloff v. Willoughby, 345 U. S. 83, 93-94 (1953). Reversed. Mr. Justice Douglas, Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall dissent. For many of the reasons stated in Part I of the Court’s opinion, they are convinced that this case is now moot. Accordingly, they would vacate the judgment of the Court of Appeals and remand the case to the District Court with directions to dismiss it as moot. See United States v. Munsing wear, Inc., 340 U. S. 36, 39. * Mr. Justice Blackmun, with whom Mr. Justice Powell joins, concurring. Respondents brought this action in 1970 seeking broad-ranging declaratory and injunctive relief. But the issue presently before the Court relates only to a portion of the relief sought in 1970. Under the Court of Appeals’ remand order the District Court was limited in its review to determining the existence of a pattern of “training, weaponry and orders in the Ohio National Guard which ¹⁶ See Duncan v. Kahanamoku, 327 U. S. 304 (1946); Sterling v. Constantin, 287 U. S. 378 (1932). In Laird v. Tatum, 408 U. S. 1, 15-16 (1972), we said: “[W]hen presented with claims of judicially cognizable injury 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.” GILLIGAN v. MORGAN 13 1 Blackmun, J., concurring singly or together require or make inevitable” the unjustifiable use of lethal force in suppressing civilian disorders. 456 F. 2d 608, 612. The Ohio use-of-force rules have now been changed, and are identical to the Army use-of-force rules. Counsel for respondents stated at oral argument that the use-of-force rules now in effect provide satisfactory safeguards against unwarranted use of lethal force by the Ohio National Guard. Tr. of Oral Arg. 31. And, as of 1971, special civil-disturbance-control training had been provided for the various National Guard units. It is in this narrowly confined setting that we are asked to decide the issues presented in this case. Respondents have informed us that they seek no change in the current National Guard regulations; rather, they wish to assure their continuance through constant judicial surveillance of the orders, training, and weaponry of the Guard. Were it not for the continuing surveillance respondents seek, I would have little difficulty concluding that the controversy is now moot. Except for that aspect of the case, all relief requested by respondents has been obtained. While one might argue that the likelihood of future changes in the rules is so attenuated that even the claim for continuing review by the District Court is moot, this issue need not be reached, as the District Court is clearly without power to grant the relief now sought. Respondents’ complaint rests upon a single, isolated, and tragic incident at Kent State University. The conditions that existed at the time of the incident no longer prevail. And respondents’ complaint contains nothing suggesting that they are likely to suffer specific injury in the future as a result of the practices they challenge. See Laird n. Tatum, 408 U. S. 1, 14 (1972). A complaint based on a single past incident, containing allega 14 OCTOBER TERM, 1972 Blackmun, J., concurring 413 U. S. tions of unspecified, speculative threats of uncertain harm that might occur at some indefinite time in the future, cannot support respondents’ standing to maintain this action. See Complaint, par. 11, App. 5-6; Roe v. Wade, 410 U. S. 113, 128 (1973). The relief sought by respondents, moreover, is beyond the province of the judiciary. Respondents would have the District Court, through continuing surveillance, evaluate and pass upon the merits of the Guard’s training programs, weapons, use of force, and orders. The relief sought is prospective only; an evaluation of those matters in the context of a particular factual setting as a predicate to relief in the form of an injunction against continuing activity or for damages would present wholly different issues. This case relates to prospective relief in the form of judicial surveillance of highly subjective and technical matters involving military training and command. As such, it presents an “[inappropriate] . . . subject matter for judicial consideration,” for respondents are asking the District Court, in fashioning that prospective relief, “to enter upon policy determinations for which judicially manageable standards are lacking.” Baker v. Carr, 369 U. S. 186, 198, 226 (1962). For these reasons the judgment of the Court of Appeals must be reversed. On the understanding that this is what the Court’s opinion holds, I join that opinion. MILLER v. CALIFORNIA 15 Syllabus MILLER v. CALIFORNIA APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE No. 70-73. Argued January 18-19, 1972—Reargued November 7, 1972—Decided June 21, 1973 Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U. S. 413, 418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant’s conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held: 1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476, reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 23-24. 2. The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 24—25. 3. The test of “utterly without redeeming social value” articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 24-25. 4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a “national standard.” Pp. 30-34. Vacated and remanded. 16 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 37. Brennan, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 47. Burton Marks reargued the cause and filed a brief for appellant. Michael R. Capizzi reargued the cause for appellee. With him on the brief was Cecil Hicks* Mr. Chief Justice Burger delivered the opinion of the Court. This is one of a group of “obscenity-pornography” cases being reviewed by the Court in a re-examination of standards enunciated in earlier cases involving what Mr. Justice Harlan called “the intractable obscenity problem.” Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 704 (1968) (concurring and dissenting). Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called “adult” material. After a jury trial, he was convicted of violating California Penal Code § 311.2 (a), a misdemeanor, by knowingly distributing obscene matter,¹ * Samuel Rosenwein, A. L. Wirin, Fred Okrand, Laurence R. Sperber, Melvin L. Wulf, and Joel M. Gora filed a brief for the American Civil Liberties Union of Southern California et al. as amici curiae urging reversal. ¹ At the time of the commission of the alleged offense, which was prior to June 25, 1969, §§ 311.2 (a) and 311 of the California Penal Code read in relevant part: “§311.2 Sending or bringing into state for sale or distribution; printing, exhibiting, distributing or possessing within state “(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to dis MILLER v. CALIFORNIA 17 15 Opinion of the Court and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant’s conviction was spe tribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . .” “§311. Definitions “As used in this chapter: “(a) ‘Obscene’ means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance. “(b) ‘Matter’ means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials. “(c) ‘Person’ means any individual, partnership, firm, association, corporation, or other legal entity. “(d) ‘Distribute’ means to transfer possession of, whether with or without consideration. “(e) ‘Knowingly’ means having knowledge that the matter is obscene.” Section 311 (e) of the California Penal Code, supra, was amended on June 25, 1969, to read as follows: “(e) ‘Knowingly’ means being aware of the character of the matter.” Cal. Amended Stats. 1969, c. 249, § 1, p. 598. Despite appellant’s contentions to the contrary, the record indicates that the new § 311 (e) was not applied ex post facto to his case, but only the old § 311 (e) as construed by state decisions prior to the commission of the alleged offense. See People v. Pinkus, 256 Cal. App. 2d 941, 948-950, 63 Cal. Rptr. 680, 685-686 (App. Dept., Superior Ct., Los Angeles, 1967); People v. Campise, 242 Cal. App. 2d 905,914, 51 Cal. Rptr. 815, 821 (App. Dept., Superior Ct., San Diego, 1966). Cf. Bouie v. City of Columbia, 378 U. S. 347 (1964). Nor did § 311.2, supra, as applied, create any “direct, immediate burden on the per- 18 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. cifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police. The brochures advertise four books entitled “Intercourse,” “Man-Woman,” “Sex Orgies Illustrated,” and “An Illustrated History of Pornography,” and a film entitled “Marital Intercourse.” While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed. I This case involves the application of a State’s criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material² formance of the postal functions,” or infringe on congressional commerce powers under Art. I, § 8, cl. 3. Roth v. United States, 354 IT. S. 476, 494 (1957), quoting Railway Mail Assn. v. Corsi, 326 U. S. 88, 96 (1945). See also Mishkin v. New York, 383 U. S. 502, 506 (1966); Smith v. California, 361 U. S. 147, 150-152 (1959). ² This Court has defined “obscene material” as “material which deals with sex in a manner appealing to prurient interest,” Roth v. United States, supra, at 487, but the Roth definition does not reflect the precise meaning of “obscene” as traditionally used in the English language. Derived from the Y&tin'obscaenus, ob, to, plus caenum, filth, “obscene” is defined in the Webster’s Third New International Dictionary (Unabridged 1969) as “la: dis MILLER v. CALIFORNIA 19 15 Opinion of the Court when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U. S. 557, 567 (1969); Ginsberg v. New York, 390 U. S. 629, 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 690; Redrup n. New York, 386 U. S. 767, 769 (1967); Jacobellis v. Ohio, 378 U. S. 184, 195 (1964). See Rabe v. Washington, 405 U. S. 313, 317 (1972) (Burger, C. J., concurring); United States v. Reidel, 402 U. S. 351, 360-362 (1971) (opinion of Marshall, J.); Joseph Burstyn, Inc. n. Wilson, 343 U. S. 495, 502 (1952); Breard v. Alexandria, 341 U. S. 622, 644-645 (1951); Kovacs v. Cooper, 336 U. S. 77, 88-89 (1949); Prince v. Massachusetts, 321 U. S. 158, 169-170 (1944). Cf. Butler v. Michigan, 352 U. S. 380, 382-383 (1957); Public Utilities Comm’n v. Pollak, 343 U. S. 451, 464-465 (1952). It is in this context that we are called gusting to the senses . . . b: grossly repugnant to the generally accepted notions of what is appropriate ... 2: offensive or revolting as countering or violating some ideal or principle.” The Oxford English Dictionary (1933 ed.) gives a similar definition, “[o]ffensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome.” The material we are discussing in this case is more accurately defined as “pornography” or “pornographic material.” “Pornography” derives from the Greek (pome, harlot, and graphos, writing). The word now means “1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of licentiojisness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.” Webster’s Third New International Dictionary, supra. Pornographic material which is obscene forms a sub-group of all “obscene” expression, but not the whole, at least as the word “obscene” is now used in our language. We note, therefore, that the words “obscene material,” as used in this case, have a specific judicial meaning which derives from the Roth case, i. e., obscene material “which deals with sex.” Roth, supra, at 487. See also ALI Model Penal Code § 251.4 (1) “Obscene Defined.” (Official Draft 1962.) 20 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment. The dissent of Mr. Justice Brennan reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court’s obscenity decisions. In Roth n. United States, 354 U. S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of “obscene, lewd, lascivious or filthy ...” materials. The key to that holding was the Court’s rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating: “All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568 571-572: “ . . 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 .... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social MILLER v. CALIFORNIA 21 15 Opinion of the Court 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. . . .’ [Emphasis by Court in Roth opinion.] “We hold that obscenity is not within the area of constitutionally protected speech or press.” 354 U. S., at 484-485 (footnotes omitted). Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a netv test of obscenity. The plurality held that under the Roth definition “as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” Id., at 418. The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by Mr. Justice White’s dissent, id., at 460-462, was further underscored when the Memoirs plurality went on to state: “The Supreme Judicial Court erred in holding that a book need not be ‘unqualifiedly worthless before it can be deemed obscene.’ A book cannot be proscribed unless it is found to be utterly without redeeming social value.” Id., at 419 (emphasis in original). While Roth presumed “obscenity” to be “utterly without redeeming social importance,” Memoirs required 22 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. that to prove obscenity it must be affirmatively established that the material is “utterly without redeeming social value.” Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i. e., that the material was “utterly without redeeming social value”—a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the “utterly without redeeming social value” test had any meaning at all. See Memoirs v. Massachusetts, id., at 459 (Harlan, J., dissenting). See also id., at 461 (White, J., dissenting); United States v. Groner, 479 F. 2d 577, 579-581 (CA5 1973). Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States’ police power. See, e. g., Redrup n. New York, 386 U. S., at 770-771. We have seen “a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.” Interstate Circuit, Inc. v. Dallas, 390 U. S., at 704-705 (Harlan, J., concurring and dissenting) (footnote omitted).³ This is not remarkable, for in the area ³ In the absence of a majority view, this Court was compelled to embark on the practice of summarily reversing convictions for the dissemination of materials that at least five members of the Court, applying their separate tests, found to be protected by the First Amendment. Redrup n. New York, 386 U. S. 767 (1967). Thirty-one cases have been decided in this manner. Beyond the necessity of circumstances, however, no justification has ever been offered in support of the Redrup “policy.” See Walker n. Ohio, 398 U. S. 434-435 (1970) (dissenting opinions of Burger, C. J., and Harlan, J.). The Redrup procedure has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before us. MILLER v. CALIFORNIA 23 15 Opinion of the Court of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities. The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author,⁴ and no Member of the Court today supports the Memoirs formulation. II This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U. S. 229 (1972); United States v. Reidel, 402 U. S., at 354; Roth v. United States, supra, at 485.⁵ “The First and Fourteenth Amendments have never been treated as absolutes [footnote omitted].” Breard v. Alexandria, 341 U. S., at 642, and cases cited. See Times Film Corp. v. Chicago, 365 U. S. 43, 47-50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U. S., at 502. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be ⁴ See the dissenting opinion of Mr. Justice Brennan in Paris Adult Theatre I v. Slaton, post, p. 73. ⁵ As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U. S. 184, 200 (1964): “For all the sound and fury that the Roth test has generated, it has not been proved unsound, and I believe that we should try to live with it—at least until a more satisfactory definition is evolved. No government—be it federal, state, or local—should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of reason in this as in other areas of the law, and we have attempted in the Roth case to provide such a rule.”- 24 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 682-685. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.⁶ A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts, ⁶ See, e. g., Oregon Laws 1971, c. 743, Art. 29, §§255-262, and Hawaii Penal Code, Tit. 37, §§ 1210-1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt. II, pp. 126-129, as examples of state laws directed at depiction of defined physical conduct, as opposed to expression. Other state formulations could be equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of them in all other respects nor as establishing their limits as the extent of state power. We do not hold, as Mr. Justice Brennan intimates, that all States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be adequate. See United States v. 12 200-ft. Reels of Film, post, at 130 n. 7. MILLER v. CALIFORNIA 25 15 Opinion of the Court 383 U. S., at 419; that concept has never commanded the adherence of more than three Justices at one time.⁷ See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 232; Memoirs v. Massachusetts, supra, at 459-460 (Harlan, J., dissenting) ; Jacobellis v. Ohio, 378 U. S., at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254, 284-285 (1964); Roth v. United States, supra, at 497-498 (Harlan, J., concurring and dissenting). We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can ⁷ “A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication . . . .” Kois v. Wisconsin, 408 U. S. 229, 231 (1972). See Memoirs v. Massachusetts, 383 U. S. 413, 461 (1966) (White, J., dissenting). We also reject, as a constitutional standard, the ambiguous concept of “social importance.” See id., at 462 (White, J., dissenting). 26 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. be exhibited or sold without limit in such public places.⁸ At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 230-232; Roth n. United States, supra, at 487; Thornhill n. Alabama, 310 U. S. 88, 101-102 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.⁹ Mr. Justice Brennan, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United ⁸ Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. In United States v. O’Brien, 391 U. S. 367, 377 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be “sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” See California v. LaRue, 409 U. S. 109, 117-118 (1972). ⁹ The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U. S., at 492 n. 30, “it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U. S. 486, 499-500.” MILLER v. CALIFORNIA 27 15 Opinion of the Court States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former position and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression, Paris Adult Theatre I n. Slaton, post, p. 73 (Brennan, J., dissenting). Paradoxically, Mr. Justice Brennan indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a willing “adult” one month past the state law age of majority and a willing “juvenile” one month younger. Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra, at 491-492. Cf. Ginsberg v. New York, 390 U. S., at 643.¹⁰ If ¹⁰ As Mr. Justice Brennan stated for the Court in Roth v. United States, supra, at 491-492: “Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote omitted.] This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘. . . [T]he Constitution does not require impossible standards’; all that is required is that the 28 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then “hard core” pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, Mr. Justice Douglas contends. As to Mr. Justice Douglas’ position, see United States v. Thirty-seven Photographs, 402 U. S. 363, 379-380 (1971) (Black, J., joined by Douglas, J., dissenting); Ginzburg v. United States, supra, at 476, 491-492 (Black, J., and Douglas, J., dissenting); Jacobellis v. Ohio, supra, at 196 (Black, J., joined by Douglas, J., concurring); Roth, supra, at 508-514 (Douglas, J., dissenting). In this belief, however, Mr. Justice Douglas now stands alone. Mr. Justice Brennan also emphasizes “institutional stress” in justification of his change of view. Noting that “[t]he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court,” he quite rightly remarks that the examination of contested materials “is hardly a source of edification to the members of this Court.” Paris Adult language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . .’ United States v. Petrillo, 332 U. S. 1, 7-8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark . . boundaries sufficiently distinct for judges and juries fairly to administer the law .... That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . .’ Id., at 7. See also United States v. Harriss, 347 U. S. 612, 624, n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 340; United States v. Ragen, 314 U. S. 513, 523-524; United States v. Wurzbach, 280 U. S. 396; Hygrade Provision Co. v. Sherman, 266 U. S. 497; Fox v. Washington, 236 U. S. 273; Nash v. United States, 229 U. S. 373.” MILLER v. CALIFORNIA 29 15 Opinion of the Court Theatre I n. Slaton, post, at 92, 93. He also notes, and we agree, that “uncertainty of the standards creates a continuing source of tension between state and federal courts . . . “The problem is . . . that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so.” Id., at 93, 92. It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, foir the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate “hard core” pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New York, 386 U. S. 767 (1967), and attempt to provide positive guidance to federal and state courts alike. This may not be an easy road, free from difficulty. But no amount of “fatigue” should lead us to adopt a convenient “institutional” rationale—an absolutist, “anything goes” view of the First Amendment—because it will lighten our burdens.¹¹ “Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees.” Jacobellis v. Ohio, supra, at 187-188 (opinion of Brennan, J.). Nor should we remedy “tension between state and federal courts” by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, at 482-485. “Our duty admits of no ‘substitute for facing up ¹¹ We must note, in addition, that any assumption concerning the relative burdens of the past and the probable burden under the standards now adopted is pure speculation. 30 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. to the tough individual problems of constitutional judgment involved in every obscenity case.’ [Roth v. United States, supra, at 498]; see Manual Enterprises, Inc. n. Day, 370 U. S. 478, 488 (opinion of Harlan, J.) [footnote omitted].” Jacobellis v. Ohio, supra, at 188 (opinion of Brennan, J.). Ill Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility. As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Meinoirs. This, a “national” standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case MILLER v. CALIFORNIA 31 15 Opinion of the Court law. The jury, however, was explicitly instructed that, in determining whether the “dominant theme of the material as a whole . . . appeals to the prurient interest” and in determining whether the material “goes substantially beyond customary limits of candor and affronts contemporary community standards of decency,” it was to apply “contemporary community standards of the State of California.” During the trial, both the prosecution and the defense assumed that the relevant “community standards” in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the State’s expert on community standards¹² or to the instructions of the trial judge on “statewide” standards. On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments. We conclude that neither the State’s alleged failure to offer evidence of “national standards,” nor the trial court’s charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a mat ¹² The record simply does not support appellant’s contention, belatedly raised on appeal, that the State’s expert was unqualified to give evidence on California “community standards.” The expert, a police officer with many years of specialization in obscenity offenses, had conducted an extensive statewide survey and had given expert evidence on 26 occasions in the year prior to this trial. Allowing such expert testimony was certainly not constitutional error. Cf. United States v. Augenblick, 393 U. S. 348, 356 (1969). 32 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. ter of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200: “It is my belief that when the Court said in Roth that obscenity is to be defined by reference to ‘community standards,’ it meant community standards—not a national standard, as is sometimes argued. I believe that there is no provable ‘national standard’ .... At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.” It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.¹³ ¹³ In Jacobellis v. Ohio, 378 U. S. 184 (1964), two Justices argued that application of “local” community standards would run the risk of preventing dissemination of materials in some places because sellers would be unwilling to risk criminal conviction by testing variations in standards from place to place. Id., at 193-195 (opinion of Brennan, J., joined by Goldberg, J.). The use of “national” standards, however, necessarily implies that materials found tolerable in some places, but not under the “national” criteria, will nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression, the potential for suppression seems at least as great in the application of a single nationwide standard as in allowing distribution in accordance with local tastes, a point which Mr. Justice Harlan often emphasized. See Roth v. United States, 354 U. S., at 506. Appellant also argues that adherence to a “national standard” is necessary “in order to avoid unconscionable burdens on the free flow of interstate commerce.” As noted supra, at 18 n. 1, the application of domestic state police powers in this case did not intrude on any congressional powers under Art. I, § 8, cl. 3, for there is no indication that appellant’s materials were ever distributed interstate. Appellant’s argument would appear without substance in any event. Obscene material may be validly regulated by a State in the exercise of its traditional local power to protect the MILLER v. CALIFORNIA 33 15 Opinion of the Court See Hoyt v. Minnesota, 399 U. S. 524-525 (1970) (Black-mun, J., dissenting); Walker v. Ohio, 398 U. S. 434 (1970) (Burger, C. J., dissenting); id., at 434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U. S. 319 (1970) (Burger, C. J., dissenting); id., at 319-320 (Harlan, J., dissenting); United States v. Groner, 479 F. 2d, at 581-583; O’Meara & Shaffer, Obscenity in The Supreme Court : A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U. S., at 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 505-506 (Harlan, J., concurring and dissenting). People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U. S., at 508-509, the primary concern with requiring a jury to apply the standard of “the average person, applying contemporary community standards” is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person—or indeed a totally insensitive one. See Roth n. United States, supra, at 489. Cf. the now discredited test in Regina v. Hicklin, [1868] L. R. 3 Q. B. 360. We hold that the requirement that the jury evaluate the materials with reference to “contemporary general welfare of its population despite some possible incidental effect on the flow of such materials across state lines. See, e. g., Head v. New Mexico Board, 374 U. S. 424 (1963); Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960); Breard v. Alexandria, 341 U. S. 622 (1951); H. P. Hood & Sons v. Du Mond, 336 U. S. 525 (1949); Southern Pacific Co. v. Arizona, 325 U. S. 761 (1945); Baldwin n. G. A. F. Seelig, Inc., 294 U. S. 511 (1935); Sligh v. Kirkwood, 237 U. S. 52 (1915). 34 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. standards of the State of California” serves this protective purpose and is constitutionally adequate.¹⁴ IV The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a “misuse of the great guarantees of free speech and free press . . . .” Breard v. Alexandria, 341 U. 8., at 645. The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of ¹⁴ Appellant’s jurisdictional statement contends that he was subjected to “double jeopardy” because a Los Angeles County trial judge dismissed, before trial, a prior prosecution based on the same brochures, but apparently alleging exposures at a different time in a different setting. Appellant argues that once material has been found not to be obscene in one proceeding, the State is “collaterally estopped” from ever alleging it to be obscene in a different proceeding. It is not clear from the record that appellant properly raised this issue, better regarded as a question of procedural due process than a “double jeopardy” claim, in the state courts below. Appellant failed to address any portion of his brief on the merits to this issue, and appellee contends that the question was waived under California law because it was improperly pleaded at trial. Nor is it totally clear from the record before us what collateral effect the pretrial dismissal might have under state law. The dismissal was based, at least in part, on a failure of the prosecution to present affirmative evidence required by state law, evidence which was apparently presented in this case. Appellant’s contention, therefore, is best left to the California courts for further consideration on remand. The issue is not, in any event, a proper subject for appeal. See Mishkin v. New York, 383 U. S. 502, 512-514 (1966). MILLER v. CALIFORNIA 35 15 Opinion of the Court political and social changes desired by the people,” Roth v. United States, supra, at 484 (emphasis added). See Kois v. Wisconsin, 408 U. S., at 230-232; Thornhill v. Alabama, 310 U. S., at 101-102. But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter.¹⁵ There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, see Roth n. United States, supra, at 482-485, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an “extraordinarily vigorous period,” not just in economics and politics, but in belles lettres and in “the outlying fields of social and political philosophies.” ¹⁶ We do not see the harsh hand ¹⁵ In the apt words of Mr. Chief Justice Warren, appellant in this case was “plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide.” Roth v. United States, supra, at 496 (concurring opinion). ¹⁶ See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th century, Parrington observed “A new age had come and other dreams—the age and the dreams of a middle-class sovereignty .... From the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of realistic criticism, seeking to evaluate the worth of this new America, and discover if possible other philosophies to take the place of those which had gone down in the fierce battles of the Civil War.” Id., at 474. Cf. 2 S. Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic 197-233 (6th ed. 1969); Paths of American Thought 123-166, 203-290 (A. Schlesinger & M. White ed. 1963) (articles of Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and Thought in Modern America 337-386 (1952). 36 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. of censorship of ideas—good or bad, sound or unsound— and “repression” of political liberty lurking in every state regulation of commercial exploitation of human interest in sex. Mr. Justice Brennan finds “it is hard to see how state-ordered regimentation of our minds can ever be forestalled.” Paris Adult Theatre I n. Slaton, post, at 110 (Brennan, J., dissenting). These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation which Mr. Justice Brennan finds constitutionally permissible, has all the elements of “censorship” for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U. S., at 690.¹⁷ One can concede that the “sexual revolution” of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive “hard core” materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphine. In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated ¹⁷“[W]e have indicated . . . that because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults. Ginsberg n. New York, . . . [390 U. S. 629 (1968)].” Interstate Circuit, Inc. n. Dallas, 390 U. S. 676, 690 (1968) (footnote omitted). MILLER v. CALIFORNIA 37 15 Douglas, J., dissenting above, without a showing that the material is “utterly without redeeming social value”; and (c) hold that obscenity is to be determined by applying “contemporary community standards,” see Kois v. Wisconsin, supra, at 230, and Roth v. United States, supra, at 489, not “national standards.” The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-ft. Reels of Film, post, at 130 n. 7. Vacated and remanded. Mr. Justice Douglas, dissenting. I Today we leave open the way for California¹ to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today’s decision were never the part of any law. The Court has worked hard to define obscenity and con-cededly has failed. In Roth v. United States, 354 U. S. 476, it ruled that “[o]bscene material is material which deals with sex in a manner appealing to prurient interest.” Id., at 487. Obscenity, it was said, was rejected by the First Amendment because it is “utterly without redeem ¹ California defines “obscene matter” as “matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social im-portance.” Calif. Penal Code §311 (a). 38 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. ing social importance.” Id., at 484. The presence of a “prurient interest” was to be determined by “contemporary community standards.” Id., at 489. That test, it has been said, could not be determined by one standard here and another standard there, Jacobellis v. Ohio, 378 U. S. 184, 194, but “on the basis of a national standard.” Id., at 195. My Brother Stewart in Jacobellis commented that the difficulty of the Court in giving content to obscenity was that it was “faced with the task of trying to define what may be indefinable.” Id., at 197. In Memoirs v. Massachusetts, 383 U. S. 413, 418, the Roth test was elaborated to read as follows: “[T]hree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” In Ginzburg v. United States, 383 U. S. 463, a publisher was sent to prison, not for the kind of books and periodicals he sold, but for the manner in which the publications were advertised. The “leer of the sensualist” was said to permeate the advertisements. Id., at 468. The Court said, “Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity.” Id., at 470. As Mr. Justice Black said in dissent, “. . . Ginzburg ... is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal.” Id., at 476. That observation by Mr. Justice Black is underlined by the fact that the Ginzburg decision was five to four. MILLER v. CALIFORNIA 39 15 Douglas, J., dissenting A further refinement was added by Ginsberg v. New York, 390 U. S. 629, 641, where the Court held that “it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.” But even those members of this Court who had created the new and changing standards of “obscenity” could not agree on their application. And so we adopted a per curiam treatment of so-called obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redrup v. New York, 386 U. S. 767. Some condemn it if its “dominant tendency might be to ‘deprave or corrupt’ a reader.” ² Others look not to the content of the book but to whether it is advertised “ ‘to appeal to the erotic interests of customers.’ ”³ Some condemn only “hardcore pornography”; but even then a true definition is lacking. It has indeed been said of that definition, “I could never succeed in [defining it] intelligibly,” but “I know it when I see it.” ⁴ Today we would add a new three-pronged test: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Those are the standards we ourselves have written into the Constitution.⁵ Yet how under these vague tests can ² Roth v. United States, 354 U. S. 476, 502 (opinion of Harlan, J.). ³ Ginzburg v. United States, 383 U. S. 463, 467. ⁴Jacobellis v. Ohio, 378 U. S. 184, 197 (Stewart, J., concurring). ⁵ At the conclusion of a two-year study, the U. S. Commission on 40 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene? Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal with constitutional terms, since “obscenity” is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from “the press” which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated “obscene” publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not “obscene.” The Court is at large because we deal with tastes and standards of literature. What shocks me may Obscenity and Pornography determined that the standards we have written interfere with constitutionally protected materials: “Society’s attempts to legislate for adults in the area of obscenity have not been successful. Present laws prohibiting the consensual sale or distribution of explicit sexual materials to adults are extremely unsatisfactory in their practical application. The Constitution permits material to be deemed ‘obscene’ for adults only if, as a whole, it appeals to the ‘prurient’ interest of the average person, is ‘patently offensive’ in light of ‘community standards,’ and lacks ‘redeeming social value.’ These vague and highly subjective aesthetic, psychological and moral tests do not provide meaningful guidance for law enforcement officials, juries or courts. As a result, law is inconsistently and sometimes erroneously applied and the distinctions made by courts between prohibited and permissible materials often appear indefensible. Errors in the application of the law and uncertainty about its scope also cause interference with the communication of constitutionally protected materials.” Report of the Commission on Obscenity and Pornography 53 (1970). MILLER v. CALIFORNIA 41 15 Douglas, J., dissenting be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people. Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime a publisher would know when he was on dangerous ground. Under the present regime— whether the old standards or the new ones are used—the criminal law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg and has all the evils of an ex post facto law. My contention is that until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said: “The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court’s decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment.” Interstate Circuit, Inc. n. Dallas, 390 U. S. 676, 707. In Bouie v. City of Columbia, 378 U. S. 347, we upset a conviction for remaining on property after being asked to leave, while the only unlawful act charged by the statute was entering. We held that the defendants had received no “fair warning, at the time of their con 42 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. duct” while on the property “that the act for which they now stand convicted was rendered criminal” by the state statute. Id., at 355. The same requirement of “fair warning” is due here, as much as in Bouie. The latter involved racial discrimination; the present case involves rights earnestly urged as being protected by the First Amendment. In any case—certainly when constitutional rights are concerned—we should not allow men to go to prison or be fined when they had no “fair warning” that what they did was criminal conduct. II If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does⁶ and my views ⁶ It is said that “obscene” publications can be banned on authority of restraints on communications incident to decrees restraining unlawful business monopolies or unlawful restraints of trade, Sugar Institute v. United States, 297 U. S. 553, 597, or communications respecting the sale of spurious or fraudulent securities. Hall v. Geiger-Jones Co., 242 U. S. 539, 549; Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559, 567; Merrick n. Halsey & Co., 242 U. S. 568, 584. The First Amendment answer is that whenever speech and conduct are brigaded—as they are when one shouts “Fire” in a crowded theater—speech can be outlawed. Mr. Justice Black, writing for a unanimous Court in Giboney v. Empire Storage Co., 336 U. S. 490, stated that labor unions could be restrained from picketing a firm in support of a secondary boycott which a State had validly outlawed. Mr. Justice Black said: “It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.” Id., at 498. MILLER v. CALIFORNIA 43 15 Douglas, J., dissenting on the issue have been stated over and over again.⁷ But at least a criminal prosecution brought at that juncture would not violate the time-honored void-for-vagueness test.⁸ No such protective procedure has been designed by California in this case. Obscenity—which even we cannot define with precision—is a hodge-podge. To send ⁷ See United States v. 12 200-ft. Reels of Film, post, p. 123; United States v. Orito, post, p. 139; Kois n. Wisconsin, 408 U. S. 229; Byrne v. Karalexis, 396 U. S. 976, 977; Ginsberg n. New York, 390 U. S. 629, 650; Jacobs n. New York, 388 U. S. 431, 436; Ginzburg v. United States, 383 U. S. 463, 482; Memoirs v. Massachusetts, 383 U. S. 413, 424; Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 72; Times Film Corp. v. Chicago, 365 U. S. 43, 78; Smith v. California, 361 U. S. 147, 167; Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 697; Roth v. United States, 354 U. S. 476, 508; Kingsley Books, Inc. v. Brown, 354 U. S. 436, 446; Superior Films, Inc. n. Department of Education, 346 U. S. 587, 588; Gelling v. Texas, 343 U. S. 960. ⁸ The Commission on Obscenity and Pornography has advocated such a procedure: “The Commission recommends the enactment, in all jurisdictions which enact or retain provisions prohibiting the dissemination of sexual materials to adults or young persons, of legislation authorizing prosecutors to obtain declaratory judgments as to whether particular materials fall within existing legal prohibitions .... “A declaratory judgment procedure . . . would permit prosecutors to proceed civilly, rather than through the criminal process, against suspected violations of obscenity prohibition. If such civil procedures are utilized, penalties would be imposed for violation of the law only with respect to conduct occurring after a civil declaration is obtained. The Commission believes this course of action to be appropriate whenever there is any existing doubt regarding the legal status of materials; where other alternatives are available, the crim-inal process should not ordinarily be invoked against persons who might have reasonably believed, in good faith, that the books or films they distributed were entitled to constitutional protection, for the threat of criminal sanctions might otherwise deter the free distribution of constitutionally protected material.” Report of the Commission on Obscenity and Pornography 63 (1970). 44 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process. Ill While the right to know is the corollary of the right to speak or publish, no one can be forced by government to listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities Common v. Pollak, 343 U. S. 451, 467, where I protested against making streetcar passengers a “captive” audience. There is no “captive audience” problem in these obscenity cases. No one is being compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a ban. The idea that the First Amendment permits government to ban publications that are “offensive” to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed “to invite dispute,” to induce “a condition of unrest,” to “create dissatisfaction with conditions as they are,” and even to stir “people to anger.” Terminiello n. Chicago, 337 U. S. 1, 4. The idea that the First Amendment permits punishment for ideas that are “offensive” to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for MILLER v. CALIFORNIA 45 15 Douglas, J., dissenting dispensing tranquilizers to the people. Its prime function was to keep debate open to “offensive” as well as to “staid” people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard “offensive” gives authority to government that cuts the very vitals out of the First Amendment.⁹ As is intimated by the Court’s opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment—and solely because of it— speakers and publishers have not been threatened or subdued because their thoughts and ideas may be “offensive” to some. The standard “offensive” is unconstitutional in yet another way. In Coates v. City of Cincinnati, 402 U. S. 611, we had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and conduct themselves “in a manner annoying to persons ⁹ Obscenity law has had a capricious history: “The white slave traffic was first exposed by W. T. Stead in a magazine article, ‘The Maiden Tribute.’ The English law did absolutely nothing to the profiteers in vice, but put Stead in prison for a year for writing about an indecent subject. When the law supplies no definite standard of criminality, a judge in deciding what is indecent or profane may consciously disregard the sound test of present injury, and proceeding upon an entirely different theory may condemn the defendant because his words express ideas which are thought liable to cause bad future consequences. Thus musical comedies enjoy almost unbridled license, while a problem play is often forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has been used against Shelley’s Queen Mab and the decorous promulgation of pantheistic ideas, on the ground that to attack religion is to loosen the bonds of society and endanger the state. This is simply a roundabout modern method to make heterodoxy in sex matters and even in religion a crime.” Z. Chafee, Free Speech in the United States 151 (1942). 46 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. passing by.” We struck it down, saying: “If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct. “Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all.” Id., at 614. How we can deny Ohio the convenience of punishing people who “annoy” others and allow California power to punish people who publish materials “offensive” to some people is difficult to square with constitutional requirements. If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it. We deal with highly emotional, not rational, questions. To many the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires MILLER v. CALIFORNIA 47 15 Brennan, J., dissenting that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections. Mr. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall join, dissenting. In my dissent in Paris Adult Theatre I v. Slaton, post, p. 73, decided this date, I noted that I had no occasion to consider the extent of state power to regulate the distribution of sexually oriented material to juveniles or the offensive exposure of such material to unconsenting adults. In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code § 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that under my dissent in Paris Adult Theatre I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face.* “[T]he transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Gooding v. Wilson, 405 U. S. 518, 521 (1972), quoting *Cal. Penal Code § 311.2 (a) provides that “Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.” 48 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. from Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). See also Baggett v. Bullitt, 377 U. S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611, 616 (1971); id., at 619-620 (White, J., dissenting); United States v. Raines, 362 U. S. 17, 21-22 (1960); NAACP v. Button, 371 U. S. 415, 433 (1963). Since my view in Paris Adult Theatre I represents a substantial departure from the course of our prior decisions, and since the state courts have as yet had no opportunity to consider whether a “readily apparent construction suggests itself as a vehicle for rehabilitating the [statute] in a single prosecution,” Dombrowski v. Pfister, supra, at 491, I would reverse the judgment of the Appellate Department of the Superior Court and remand the case for proceedings not inconsistent with this opinion. See Coates v. City of Cincinnati, supra, at 616. PARIS ADULT THEATRE I v. SLATON 49 Syllabus PARIS ADULT THEATRE I et al. v. SLATON, DISTRICT ATTORNEY, et al. CERTIORARI TO THE SUPREME COURT OF GEORGIA No. 71-1051. Argued October 19, 1972—Decided June 21, 1973 Respondents sued under Georgia civil law to enjoin the exhibiting by petitioners of two allegedly obscene films. There was no prior restraint. In a jury-waived trial, the trial court (which did not require “expert” affirmative evidence of obscenity) viewed the films and thereafter dismissed the complaints on the ground that the display of the films in commercial theaters to consenting adult audiences (reasonable precautions having been taken to exclude minors) was “constitutionally permissible.” The Georgia Supreme Court reversed, holding that the films constituted “hard core” pornography not within the protection of the First Amendment. Held: 1. Obscene material is not speech entitled to First Amendment protection. Miller v. California, ante, p. 15; Roth n. United States, 354 U. S. 476. P. 54. 2. The Georgia civil procedure followed here (assuming use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment) comported with the standards of Teitel Film Corp. n. Cusack, 390 U. S. 139; Freedman v. Maryland, 380 U. S. 51; and Kingsley Books, Inc. v. Brown, 354 U. S. 436. Pp. 54-55. 3. It was not error to fail to require expert affirmative evidence of the films’ obscenity, since the films (which were the best evidence of what they depicted) were themselves placed in evidence. P. 56. 4. States have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including “adult” theaters. Pp. 57-69. (a) There is a proper state concern with safeguarding against crime and the other arguably ill effects of obscenity by prohibiting the public or commercial exhibition of obscene material. Though conclusive proof is lacking, the States may reasonably determine that a nexqs does or might exist between antisocial behavior and obscene material, just as States have acted on unprovable assumptions in other areas of public control. Pp. 57-63. (b) Though States are free to adopt a laissez-faire policy toward commercialized obscenity, they are not constitutionally obliged to do so. P. 64. 50 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. (c) Exhibition of obscene material in places of public accommodation is not protected by any constitutional doctrine of privacy. A commercial theater cannot be equated with a private home; nor is there here a privacy right arising from a special relationship, such as marriage. Stanley v. Georgia, 394 U. S. 557; Griswold v. Connecticut, 381 U. S. 479, distinguished. Nor can the privacy of the home be equated with a “zone” of “privacy” that follows a consumer of obscene materials wherever he goes. United States v. Orito, post, p. 139; United States v. 12 200-ft. Reels of Film, post, p. 123. Pp. 65-67. (d) Preventing the unlimited display of obscene material is not thought control. Pp. 67-68. (e) Not all conduct directly involving “consenting adults” only has a claim to constitutional protection. Pp. 68-69. 5. The Georgia obscenity laws involved herein should now be re-evaluated in the light of the First Amendment standards newly enunciated by the Court in Miller v. California, ante, p. 15. Pp. 69-70. 228 Ga. 343, 185 S. E. 2d 768, vacated and remanded. Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 70. Brennan, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 73. Robert Eugene Smith argued the cause for petitioners. With him on the brief were Mel S. Friedman and D. Freeman Hutton. Thomas E. Moran argued the cause for respondents. With him on the brief was Joel M. Feldman* Mr. Chief Justice Burger delivered the opinion of the Court. Petitioners are two Atlanta, Georgia, movie theaters and their owners and managers, operating in the * Charles H. Keating, Jr., pro se, Richard M. Bertsch, James J. Clancy, and Albert S. Johnston III filed a brief for Charles H. Keating, Jr., as amicus curiae urging affirmance. PARIS ADULT THEATRE I v. SLATON 51 49 Opinion of the Court style of “adult” theaters. On December 28, 1970, respondents, the local state district attorney and the solicitor for the local state trial court, filed civil complaints in that court alleging that petitioners were exhibiting to the public for paid admission two allegedly obscene films, contrary to Georgia Code Ann. § 26-2101.¹ The two films in question, “Magic Mirror” and “It All Comes Out in the End,” depict sexual conduct char ¹ This is a civil proceeding. Georgia Code Ann. § 26-2101 defines a criminal offense, but the exhibition of materials found to be “obscene” as defined by that statute may be enjoined in a civil proceeding under Georgia case law. 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S. E. 2d 144 (1971); Walter v. Slaton, 227 Ga. 676, 182 S. E. 2d 464 (1971); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S. E. 2d 712 (1971). See infra, at 54. Georgia Code Ann. §26-2101 reads in relevant part: “Distributing obscene materials. “(a) A person commits the offense of distributing obscene materials when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who offers to do so, or who possesses such material with the intent so to do ... . “(b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters. . . . “(d) A person convicted of distributing obscene material shall for the first offense be punished as for a misdemeanor, and for any subsequent offense shall be punished by imprisonment for not less than one nor more than five years, or by a fine not to exceed $5,000, or both.” The constitutionality of Georgia Code Ann. § 26-2101 was upheld against First Amendment and due process challenges in Gable v. Jenkins, 309 F. Supp. 998 (ND Ga. 1969), aff’d per curiam, 397 U. S. 592 (1970). 52 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. acterized by the Georgia Supreme Court as “hard core pornography” leaving “little to the imagination.” Respondents’ complaints, made on behalf of the State of Georgia, demanded that the two films be declared obscene and that petitioners be enjoined from exhibiting the films. The exhibition of the films was not enjoined, but a temporary injunction was granted ex parte by the local trial court, restraining petitioners from destroying the films or removing them from the jurisdiction. Petitioners were further ordered to have one print each of the films in court on January 13, 1971, together with the proper viewing equipment. On January 13, 1971, 15 days after the proceedings began, the films were produced by petitioners at a jury-waived trial. Certain photographs, also produced at trial, were stipulated to portray the single entrance to both Paris Adult Theatre I and Paris Adult Theatre II as it appeared at the time of the complaints. These photographs show a conventional, inoffensive theater entrance, without any pictures, but with signs indicating that the theaters exhibit “Atlanta’s Finest Mature Feature Films.” On the door itself is a sign saying: “Adult Theatre—You must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not Enter.” The two films were exhibited to the trial court. The only other state evidence was testimony by criminal investigators that they had paid admission to see the films and that nothing on the outside of the theater indicated the full nature of what was shown. In particular, nothing indicated that the films depicted—as they did— scenes of simulated fellatio, cunnilingus, and group sex intercourse. There was no evidence presented that minors had ever entered the theaters. Nor was there evidence presented that petitioners had a systematic policy of barring minors, apart from posting signs at the entrance. On April 12, 1971, the trial judge dismissed PARIS ADULT THEATRE I v. SLATON 53 49 Opinion of the Court respondents’ complaints. He assumed “that obscenity is established,” but stated: “It appears to the Court that the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible.” On appeal, the Georgia Supreme Court unanimously reversed. It assumed that the adult theaters in question barred minors and gave a full warning to the general public of the nature of the films shown, but held that the films were without protection under the First Amendment. Citing the opinion of this Court in United States v. Reidel, 402 U. S. 351 (1971), the Georgia court stated that “the sale and delivery of obscene material to willing adults is not protected under the first amendment.” The Georgia court also held Stanley n. Georgia, 394 U. S. 557 (1969), to be inapposite since it did not deal with “the commercial distribution of pornography, but with the right of Stanley to possess, in the privacy of his home, pornographic films.” 228 Ga. 343, 345, 185 S. E. 2d 768, 769 (1971). After viewing the films, the Georgia Supreme Court held that their exhibition should have been enjoined, stating: “The films in this case leave little to the imagination. It is plain what they purport to depict, that is, conduct of the most salacious character. We hold that these films are also hard core pornography, and the showing of such films should have been enjoined since their exhibition is not protected by the first amendment.” Id., at 347, 185 S. E. 2d, at 770. I It should be clear from the outset that we do not undertake to tell the States what they must do, but 54 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. rather to define the area in which they may chart their own course in dealing with obscene material. This Court has consistently held that obscene material is not protected by the First Amendment as a limitation on the state police power by virtue of the Fourteenth Amendment. Miller v. California, ante, at 23-25; Kois n. Wisconsin, 408 U. S. 229, 230 (1972); United States v. Reidel, supra, at 354; Roth v. United States, 354 U. S. 476, 485 (1957). Georgia case law permits a civil injunction of the exhibition of obscene materials. See 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S. E. 2d 144 (1971) ; Walter v. Slaton, 227 Ga. 676, 182 S. E. 2d 464 (1971) ; Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S. E. 2d 712 (1971). While this procedure is civil in nature, and does not directly involve the state criminal statute proscribing exhibition of obscene material,² the Georgia case law permitting civil injunction does adopt the definition of “obscene materials” used by the criminal statute.³ Today, in Miller v. California, supra, we have ² See Georgia Code Ann. §26-2101, set out supra, at 51 n. 1. ³ In Walter v. Slaton, 227 Ga. 676, 182 S. E. 2d 464 (1971), the Georgia Supreme Court described the cases before it as follows: “Each case was commenced as a civil action by the District Attorney of the Superior Court of Fulton County jointly with the Solicitor of the Criminal Court of Fulton County. In each case the plaintiffs alleged that the defendants named therein were conducting a business of exhibiting motion picture films to members of the public; that they were in control and possession of the described motion picture film which they were exhibiting to the public on a fee basis; that said film ‘constitutes a flagrant violation of Ga. Code §26-2101 in that the sole and dominant theme of the motion picture film . . . considered as a whole, and applying contemporary standards, appeals to the prurient interest in sex and nudity, and that said motion picture film is utterly and absolutely without any redeeming social value whatsoever and transgresses beyond the customary limits of candor in describing and discussing sexual matters.’ ” Id., at 676-677, 182 S. E. 2d, at 465. PARIS ADULT THEATRE I v. SLATON 55 49 Opinion of the Court sought to clarify the constitutional definition of obscene material subject to regulation by the States, and we vacate and remand this case for reconsideration in light of Miller. This is not to be read as disapproval of the Georgia civil procedure employed in this case, assuming the use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment. On the contrary, such a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation.⁴ See Kingsley Books, Inc. v. Brown, 354 U. S. 436, 441-444 (1957). Here, Georgia imposed no restraint on the exhibition of the films involved in this case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected.⁵ Thus the standards of Blount n. Rizzi, 400 U. S. 410, 417 (1971); Teitel Film Corp. v. Cusack, 390 U. S. 139, 141-142 (1968); Freedman v. Maryland, 380 U. S. 51, 58-59 (1965), and Kingsley Books, Inc. n. Brown, supra, at 443-445, were met. Of. United States v. Thirty-seven Photographs, 402 U. S. 363, 367-369 (1971) (opinion of White, J.). ⁴ This procedure would have even more merit if the exhibitor or purveyor could also test the issue of obscenity in a similar civil action, prior to any exposure to criminal penalty. We are not here presented with the problem of whether a holding that materials were not obscene could be circumvented in a later proceeding by evidence of pandering. See Memoirs v. Massachusetts, 383 U. S. 413, 458 n. 3 (1966) (Harlan, J., dissenting); Ginzburg v. United States, 383 U. S. 463, 496 (1966) (Harlan, J., dissenting). ⁵ At the specific request of petitioners’ counsel, the copies of the films produced for the trial court were placed in the “administrative custody” of that court pending the outcome of this litigation. 56 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. Nor was it error to fail to require “expert” affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence. United States v. Groner, 479 F. 2d 577, 579-586 (CA5 1973); id., at 586-588 (Ainsworth, J., concurring); id., at 588-589 (Clark, J., concurring); United States n. Wild, 422 F. 2d 34, 35-36 (CA2 1969), cert, denied, 402 U. S. 986 (1971); Kahm n. United States, 300 F. 2d 78, 84 (CA5), cert, denied, 369 U. S. 859 (1962); State v. Amato, 49 Wis. 2d 638, 645, 183 N. W. 2d 29, 32 (1971), cert, denied sub nom. Amato v. Wisconsin, 404 U. S. 1063 (1972). See Smith v. California, 361 U. S. 147, 172 (1959) (Harlan, J., concurring and dissenting); United States n. Brown, 328 F. Supp. 196, 199 (ED Va. 1971). The films, obviously, are the best evidence of what they represent.⁶ “In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question.” Ginzburg v. United States, 383 U. S. 463, 465 (1966). G This is not a subject that lends itself to the traditional use of expert testimony. Such testimony is .usually admitted for the purpose of explaining to lay jurors what they otherwise could not understand. Cf. 2 J. Wigmore, Evidence §§ 556, 559 (3d ed. 1940). No such assistance is needed by jurors in obscenity cases; indeed the “expert witness” practices employed in these cases have often made a mockery out of the otherwise sound concept of expert testimony. See United States v. Groner, 479 F. 2d 577, 585-586 (CA5 1973); id., at 587-588 (Ainsworth, J., concurring). “Simply stated, hard core pornography . . . can and does speak for itself.” United States v. Wild, 422 F. 2d 34, 36 (CA2 1970), cert, denied, 402 U. S. 986 (1971). We reserve judgment, however, on the extreme case, not presented here, where contested materials are directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge whether the material appeals to the prurient interest. See Mishkin v. New York, 383 U. S. 502, 508-510 (1966); United States N. Klaw, 350 F. 2d 155, 167-168 (CA2 1965). PARIS ADULT THEATRE I v. SLATON 57 49 Opinion of the Court II We categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. This holding was properly rejected by the Georgia Supreme Court. Although we have often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconsenting adults, see Miller v. California, ante, at 18-20; Stanley v. Georgia, 394 U. S., at 567; Redrup v. New York, 386 U. S. 767, 769 (1967), this Court has never declared these to be the only legitimate state interests permitting regulation of obscene material. The States have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions. See United States v. Thirty-seven Photographs, supra, at 376-377 (opinion of White, J.); United States n. Reidel, 402 U. S., at 354-356. Cf. United States v. Thirty-seven Photographs, supra, at 378 (Stewart, J., concurring). “In an unbroken series of cases extending over a long stretch of this Court’s history, it has been accepted as a postulate that ‘the primary requirements of decency may be enforced against obscene publications.’ [Near v. Minnesota, 283 U. S. 697, 716 (1931)].” Kingsley Books, Inc. v. Brown, supra, at 440. In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to pass 58 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. ersby.⁷ Rights and interests “other than those of the advocates are involved.” Breard v. Alexandria, 341 U.S. 622, 642 (1951). These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. The Hill-Link Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime.⁸ Quite ⁷ It is conceivable that an “adult” theater can—if it really insists— prevent the exposure of its obscene wares to juveniles. An “adult” bookstore, dealing in obscene books, magazines, and pictures, cannot realistically make this claim. The Hill-Link Minority Report of the Commission on Obscenity and Pornography emphasizes evidence (the Abelson National Survey of Youth and Adults) that, although most pornography may be bought by elders, “the heavy users and most highly exposed people to pornography are adolescent females (among women) and adolescent and young adult males (among men).” The Report of the Commission on Obscenity and Pornography 401 (1970). The legitimate interest in preventing exposure of juveniles to obscene material cannot be fully served by simply barring juveniles from the immediate physical premises of “adult” bookstores, when there is a flourishing “outside business” in these materials. ⁸ The Report of the Commission on Obscenity and Pornography 390-412 (1970). For a discussion of earlier studies indicating “a division of thought [among behavioral scientists] on the correlation between obscenity and socially deleterious behavior,” Memoirs v. Massachusetts, supra, at 451, and references to expert opinions that obscene material may induce crime and antisocial conduct, see id., at 451-453 (Clark, J., dissenting). Mr. Justice Clark emphasized: “While erotic stimulation caused by pornography may be legally insignificant in itself, there are medical experts who believe that such stimulation frequently manifests itself in criminal sexual behavior or other antisocial conduct. For example, Dr. George W. Henry of Cornell University has expressed the opinion that obscenity, with its exaggerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic pres PARIS ADULT THEATRE I v. SLATON 59 49 Opinion of the Court apart from sex crimes, however, there remains one problem of large proportions aptly described by Professor Bickel: “It concerns the tone of the society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently there . . . . We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places—discreet, if you will, but accessible to all—with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies. Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not.” 22 The Public Interest 25-26 (Winter 1971).⁹ (Emphasis added.) As Mr. Chief Justice Warren stated, there is a “right of the Nation and of the States to maintain a decent soci entation of sexual behavior and attitudes, may induce antisocial conduct by the average person. A number of sociologists think that this material may have adverse effects upon individual mental health, with potentially disruptive consequences for the community, “Congress and the legislatures of every State have enacted measures to restrict the distribution of erotic and pornographic material, justifying these controls by reference to evidence that antisocial behavior may result in part from reading obscenity.” Id., at 452-453 (footnotes omitted). ⁹ See also Berns, Pornography vs. Democracy: The Case for Censorship, in 22 The Public Interest 3 (Winter 1971); van den Haag, in Censorship: For & Against 156-157 (H. Hart ed. 1971). 60 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. ety . . . ,” Jacobellis v. Ohio, 378 U. S. 184, 199 (1964) (dissenting opinion).¹⁰ See Memoirs v. Massachusetts, 383 U. S. 413, 457 (1966) (Harlan, J., dissenting); Beauharnais v. Illinois, 343 U. S. 250, 256-257 (1952); Kovacs v. Cooper, 336 U. S. 77, 86-88 (1949). But, it is argued, there are no scientific data which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society. It is urged on behalf of the petitioners that, absent such a demonstration, any kind of state regulation is “impermissible.” We reject this argument. It is not for us to resolve empirical uncertainties underlying state legislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself.¹¹ Mr. Justice Brennan, speaking for the Court in Ginsberg v. New York, 390 U. S. 629, 642-643 (1968), said: “We do not demand of legislatures ‘scientifically certain criteria of legislation.’ Noble State Bank v. Haskell, 219 U. S. 104,110.” Although there is no conclusive proof of a connection between antisocial behavior ¹⁰ “In this and other cases in this area of the law, which are coming to us in ever-increasing numbers, we are faced with the resolution of rights basic both to individuals and to society as a whole. Specifically, we are called upon to reconcile the right of the Nation and of the States to maintain a decent society and, on the other hand, the right of individuals to express themselves freely in accordance with the guarantees of the First and Fourteenth Amendments.” Jacobellis v. Ohio, supra, at 199 (Warren, C. J., dissenting). ¹¹ Mr. Justice Holmes stated in another context, that: “[T]he proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” Tyson & Brother v. Banton, 273 U. S. 418, 446 (1927) (dissenting opinion joined by Brandeis, J.). PARIS ADULT THEATRE I v. SLATON 61 49 Opinion of the Court and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect “the social interest in order and morality.” Roth v. United States, 354 U. S., at 485, quoting Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942) (emphasis added in Roth)}² From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs. See Ferguson n. Skrupa, 372 U. S. 726, 730 (1963); Breard v. Alexandria, 341 U. S., at 632-633, 641-645; Lincoln Federal Labor Union v. Northwestern Iron Ac Metal Co., 335 U. S. 525, 536-537 (1949). The same is true of the federal securities and antitrust laws and a host of federal regulations. See SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180, 186-195 (1963); American Power & Light Co. v. SEC, 329 U. S. 90, 99-103 (1946); North American Co. n. SEC, 327 U. S. 686, 705-707 (1946), and cases cited. See also Brooks v. United States, 267 U. S. 432, 436-437 (1925), and Hoke v. United States, 227 U. S. 308, 322 (1913). On the basis of these assumptions both Congress and state legislatures have, for example, drastically restricted associational rights by adopting antitrust laws, and have strictly regulated public expression by issuers of and dealers in securities, profit sharing “coupons,” and “trading stamps,” ¹² “It has been well observed that such [lewd and obscene] 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.” Roth v. United States, 354 U. S. 476, 485 (1957), quoting Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942) (emphasis added in Roth). 62 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. commanding what they must and must not publish and announce. See Sugar Institute, Inc. v. United States, 297 U. S. 553, 597-602 (1936); Merrick v. N: W. Halsey & Co., 242 U. S. 568, 58«89 (1917); Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559, 567-568 (1917); Hall v. Geiger-Jones Co., 242 U. S. 539, 548-552 (1917); Tanner n. Little, 240 U. S. 369, 383-386 (1916); Rast n. Van Deman & Lewis Co., 240 U. S. 342, 363-368 (1916). Understandably those who entertain an absolutist view of the First Amendment find it uncomfortable to explain why rights of association, speech, and press should be severely restrained in the marketplace of goods and money, but not in the marketplace of pornography. Likewise, when legislatures and administrators act to protect the physical environment from pollution and to preserve our resources of forests, streams, and parks, they must act on such imponderables as the impact of a new highway near or through an existing park or wilderness area. See Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 417-420 (1971). Thus, § 18 (a) of the Federal-Aid Highway Act of 1968, 23 U. S. C. § 138, and the Department of Transportation Act of 1966, as amended, 82 Stat. 824, 49 U. S. C. § 1653 (f), have been described by Mr. Justice Black as “a solemn determination of the highest law-making body of this Nation that the beauty and health-giving facilities of our parks are not to be taken away for public roads without hearings, factfindings, and policy determinations under the supervision of a Cabinet officer . . . .” Citizens to Preserve Overton Park, supra, at 421 (separate opinion joined by Brennan, J.). The fact that a congressional directive reflects unprovable assumptions about what is good for the people, including imponderable aesthetic assumptions, is not a sufficient reason to find that statute unconstitutional. PARIS ADULT THEATRE I v. SLATON 63 49 Opinion of the Court If we accept the improvable assumption that a complete education requires the reading of certain books, see Board of Education v. Allen, 392 U. S. 236, 245 (1968), and Johnson v. Nevi) York State Education Dept., 449 F. 2d 871,882-883 (CA2 1971) (dissenting opinion), vacated and remanded to consider mootness, 409 U. S. 75 (1972), id., at 76-77 (Marshall, J., concurring), and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior? “Many of these effects may be intangible and indistinct, but they are nonetheless real.” American Power Ac Light Co. v. SEC, supra, at 103. Mr. Justice Cardozo said that all laws in Western civilization are “guided by a robust common sense . . . .” Steward Machine Co. n. Davis, 301 U. S. 548, 590 (1937). The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data. It is argued that individual “free will” must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual’s desire to see or acquire obscene plays, movies, and books. We do indeed base our society on 64 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. certain assumptions that people have the capacity for free choice. Most exercises of individual free choice— those in politics, religion, and expression of ideas— are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. We have just noted, for example, that neither the First Amendment nor “free will” precludes States from having “blue sky” laws to regulate what sellers of securities may write or publish about their wares. ’ See supra, at 61-62. Such laws are to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition. Nor do modern societies leave disposal of garbage and sewage up to the individual “free will,” but impose regulation to protect both public health and the appearance of public places. States are told by some that they must await a “laissez-faire” market solution to the obscenitypornography problem, paradoxically “by people who have never otherwise had a kind word to say for laissez-faire,” particularly in solving urban, commercial, and environmental pollution problems. See I. Kristol, On the Democratic Idea in America 37 (1972). The States, of course, may follow such a “laissez-faire” policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can ignore consumer protection in the marketplace, but nothing in the Constitution compels the States to do so with regard to matters falling within state jurisdiction. See United States v. Reidel, 402 U. S., at 357; Memoirs v. Massachusetts, 383 U. S., at 462 (White, J., dissenting). “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” Griswold v. Connecticut, 381 U. S. 479, 482 (1965). See F erguson v. Skrupa, 372 U. S., at 731; Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952). PARIS ADULT THEATRE I v. SLATON 65 49 Opinion of the Court It is asserted, however, that standards for evaluating state commercial regulations are inapposite in the present context, as state regulation of access by consenting adults to obscene material violates the constitutionally protected right to privacy enjoyed by petitioners’ customers. Even assuming that petitioners have vicarious standing to assert potential customers’ rights, it is unavailing to compare a theater open to the public for a fee, with the private home of Stanley v. Georgia, 394 U. S., at 568, and the marital bedroom of Griswold v. Connecticut, supra, at 485-486. This Court, has, on numerous occasions, refused to hold that commercial ventures such as a motion-picture house are “private” for the purpose of civil rights litigation and civil rights statutes. See Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 236 (1969); Daniel v. Paul, 395 U. S. 298, 305-308 (1969); Blow v. North Carolina, 379 U. S. 684, 685-686 (1965); Hamm v. Rock Hill, 379 U. S. 306, 307-308 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 247, 260-261 (1964). The Civil Rights Act of 1964 specifically defines motion-picture houses and theaters as places of “public accommodation” covered by the Act as operations affecting commerce. 78 Stat. 243, 42 U. S. C. §§ 2000a (b)(3), (c). Our prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment included “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’ Palko v. Connecticut, 302 U. S. 319, 325 (1937).” Roe v. Wade, 410 U. S. 113, 152 (1973). This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing. Cf. Eisenstadt v. Baird, 405 U. S. 438, 453-454 (1972); id., at 460, 463-465 (White, J., concurring); Stanley v. Georgia, supra, at 568; Loving v. Virginia, 388 66 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. U. S. 1,12 (1967); Griswold v. Connecticut, supra, at 486; Prince v. Massachusetts, 321 U. S. 158, 166 (1944); Skinner v. Oklahoma, 316 U. S. 535, 541 (1942); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925); Meyer v. Nebraska, 262 U. S. 390, 399 (1923). Nothing, however, in this Court’s decisions intimates that there is any “fundamental” privacy right “implicit in the concept of ordered liberty” to watch obscene movies in places of public accommodation. If obscene material unprotected by the First Amendment in itself carried with it a “penumbra” of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the “privacy of the home,” which was hardly more than a reaffirmation that “a man’s home is his castle.” Cf. Stanley v. Georgia, supra, at 564.¹³ Moreover, we have declined to equate the privacy of the home relied on in Stanley with a “zone” of “privacy” that follows a distributor or a consumer of obscene materials wherever he goes. See United States v. Orito, post, at 141— 143; United States v. 12 200-ft. Reels of Film, post, at 126-129; United States n. Thirty-seven Photographs, 402 U. S., at 376-377 (opinion of White, J.); United States v. Reidel, supra, at 355. The idea of a “privacy” right and a place of public accommodation are, in this context, ¹³ The protection afforded by Stanley v. Georgia, 394 U. S. 557 (1969), is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor’s office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved. Cf. Roe v. Wade, 410 U. S. 113, 152-154 (1973); Griswold v. Connecticut, 381 U. S. 479, 485-486 (1965). Obviously, there is no necessary or legitimate expectation of privacy which would extend to marital intercourse on a street corner or a theater stage. PARIS ADULT THEATRE I v. SLATON 67 49 Opinion of the Court mutually exclusive. Conduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a “live” theater stage, any more than a “live” performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue. It is also argued that the State has no legitimate interest in “control [of] the moral content of a person’s thoughts,” Stanley v. Georgia, supra, at 565, and we need not quarrel with this. But we reject the claim that the State of Georgia is here attempting to control the minds or thoughts of those who patronize theaters. Preventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value as communication, Miller n. California, ante, at 24, 34, is distinct from a control of reason and the intellect. Cf. Kois v. Wisconsin, 408 U. S. 229 (1972); Roth v. United States, supra, at 485-487; Thornhill v. Alabama, 310 U. S. 88, 101— 102 (1940); Finnis, “Reason and Passion”: The Constitutional Dialectic of Free Speech and Obscenity, 116 U. Pa. L. Rev. 222,229-230,241-243 (1967). Where communication of ideas, protected by the First Amendment, is not involved, or the particular privacy of the home protected by Stanley, or any of the other “areas or zones” of constitutionally protected privacy, the mere fact that, as a consequence, some human “utterances” or “thoughts” may be incidentally affected does not bar the State from acting to protect legitimate state interests. Cf. Roth v. United States, supra, at 483, 485-487; Beau-harnais v. Illinois, 343 U. S., at 256-257. The fantasies of a drug addict are his own and beyond the reach of government, but government regulation of drug sales is not 68 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. prohibited by the Constitution. Cf. United States v. Reidel, supra, at 359-360 (Harlan, J., concurring). Finally, petitioners argue that conduct which directly involves "consenting adults” only has, for that sole reason, a special claim to constitutional protection. Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation,¹⁴ is a step we are unable to take.¹⁵ Commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State’s broad power to regulate commerce and protect the public ¹⁴ Cf. J. Mill, On Liberty 13 (1955 ed.). ¹⁵ The state statute books are replete with constitutionally unchallenged laws against prostitution, suicide, voluntary self-mutilation, brutalizing “bare fist” prize fights, and duels, although these crimes may only directly involve “consenting adults.” Statutes making bigamy a crime surely cut into an individual’s freedom to associate, but few today seriously claim such statutes violate the First Amendment or any other constitutional provision. See Davis v. Beason, 133 U. S. 333, 344-345 (1890). Consider also the language of this Court in McLaughlin v. Florida, 379 U. S. 184, 196 (1964), as to adultery; Southern Surety Co. v. Oklahoma, 241 U. S. 582, 586 (1916), as to fornication; Hoke v. United States, 227 U. S. 308, 320-322 (1913), and Caminetti v. United States, 242 U. S. 470, 484-487, 491-492 (1917), as to “white slavery”; Murphy v. California, 225 U. S. 623, 629 (1912), as to billiard halls; and the Lottery Case, 188 U. S. 321, 355-356 (1903), as to gambling. See also the summary of state statutes prohibiting bearbaiting, cock-fighting, and other brutalizing animal “sports,” in Stevens, Fighting and Baiting, in Animals and Their Legal Rights 112-127 (Leavitt ed. 1970). As Professor Irving Kristol has observed: “Bearbaiting and cockfighting are prohibited only in part out of compassion for the suffering animals; the main reason they were abolished was because it was felt that they debased and brutalized the citizenry who flocked to witness such spectacles.” On the Democratic Idea in America 33 (1972). PARIS ADULT THEATRE I v. SLATON 69 49 Opinion of the Court environment. The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as “wrong” or “sinful.” The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize, in Mr. Chief Justice Warren’s words, the States’“right . . . to maintain a decent society.” Jacobellis v. Ohio, 378 U. S., at 199 (dissenting opinion). To summarize, we have today reaffirmed the basic holding of Roth v. United States, supra, that obscene material has no protection under the First Amendment. See Miller v. California, supra, and Kaplan v. California, post, p. 115. We have directed our holdings, not at thoughts or speech, but at depiction and description of specifically defined sexual conduct that States may regulate within limits designed to prevent infringement of First Amendment rights. We have also reaffirmed the holdings of United States v. Reidel, supra, and United States v. Thirty-seven Photographs, supra, that commerce in obscene material is unprotected by any constitutional doctrine of privacy. United States v. Orito, post, at 141-143; United States v. 12 200-ft. Reels of Film, post, at 126-129. In this case we hold that the States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including so-called “adult” theaters from which minors are excluded. In light of these holdings, nothing precludes the State of Georgia from the regulation of the allegedly obscene material exhibited in Paris Adult Theatre I or II, provided that the applicable Georgia law, as written or authoritatively interpreted by the Georgia courts, meets the First Amendment standards set forth in Miller v. California, ante, at 23-25. The 70 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. judgment is vacated and the case remanded to the Georgia Supreme Court for further proceedings not inconsistent with this opinion and Miller v. California, supra. See United States v. 12 200-ft. Reels of Film, post, at 130 n. 7. Vacated and remanded. Mr. Justice Douglas, dissenting. My Brother Brennan is to be commended for seeking a new path through the thicket which the Court entered when it undertook to sustain the constitutionality of obscenity laws and to place limits on their application. I have expressed on numerous occasions my disagreement with the basic decision that held that “obscenity” was not protected by the First Amendment. I disagreed also with the definitions that evolved. Art and literature reflect tastes; and tastes, like musical appreciation, are hardly reducible to precise definitions. That is one reason I have always felt that “obscenity” was not an exception to the First Amendment. For matters of taste, like matters of belief, turn on the idiosyncrasies of individuals. They are too personal to define and too emotional and vague to apply, as witness the prison term for Ralph Ginzburg, Ginzburg v. United States, 383 U. S. 463, not for what he printed but for the sexy manner in which he advertised his creations. The other reason I could not bring myself to conclude that “obscenity” was not covered by the First Amendment was that prior to the adoption of our Constitution and Bill of Rights the Colonies had no law excluding “obscenity” from the regime of freedom of expression and press that then existed. I could find no such laws; and more important, our leading colonial expert, Julius Goebel, could find none, J. Goebel, Development of Legal Institutions (1946); J. Goebel, Felony and Misdemeanor (1937). So I became convinced that the PARIS ADULT THEATRE I v. SLATON 71 49 Douglas, J., dissenting creation of the “obscenity” exception to the First Amendment was a legislative and judicial tour de force; that if we were to have such a regime of censorship and punishment, it should be done by constitutional amendment. People are, of course, offended by many offerings made by merchants in this area. They are also offended by political pronouncements, sociological themes, and by stories of official misconduct. The list of activities and publications and pronouncements that offend someone is endless. Some of it goes on in private; some of it is inescapably public, as when a government official generates crime, becomes a blatant offender of the moral sensibilities of the people, engages in burglary, or breaches the privacy of the telephone, the conference room, or the home. Life in this crowded modern technological world creates many offensive statements and many offensive deeds. There is no protection against offensive ideas, only against offensive conduct. “Obscenity” at most is the expression of offensive ideas. There are regimes in the world where ideas “offensive” to the majority (or at least to those who control the majority) are suppressed. There life proceeds at a monotonous pace. Most of us would find that world offensive. One of the most offensive experiences in my life was a visit to a nation where bookstalls were filled only with books on mathematics and books on religion. I am sure I would find offensive most of the books and movies charged with being obscene. But in a life that has not been short, I have yet to be trapped into seeing or reading something that would offend me. I never read or see the materials coming to the Court under charges of “obscenity,” because I have thought the First Amendment made it unconstitutional for me to act as a censor. I see ads in bookstores and neon lights over theaters that resemble bait for those who OCTOBER TERM, 1972 72 Douglas, J., dissenting 413 U. S. seek vicarious exhilaration. As a parent or a priest or as a teacher I would have no compunction in edging my children or wards away from the books and movies that did no more than excite man’s base instincts. But I never supposed that government was permitted to sit in judgment on one’s tastes or beliefs—save as they involved action within the reach of the police power of government. I applaud the effort- of my Brother Brennan to forsake the low road which the Court has followed in this field. The new regime he would inaugurate is much closer than the old to the policy of abstention which the First Amendment proclaims. But since we do not have here the unique series of problems raised by government-imposed or government-approved captive audiences, cf. Public Utilities Comm’n v. Pollak, 343 U. S. 451, I see no constitutional basis for fashioning a rule that makes a publisher, producer, bookseller, librarian, or movie house operator criminally responsible, when he fails to take affirmative steps to protect the consumer against literature, books, or movies offensive* to those who temporarily occupy the seats of the mighty. *What we do today is rather ominous as respects librarians. The net now designed by the Court is so finely meshed that, taken literally, it could result in raids on libraries. Libraries, I had always assumed, were sacrosanct, representing every part of the spectrum. If what is offensive to the most influential person or group in a community can be purged from a library, the library system would be destroyed. A few States exempt librarians from laws curbing distribution of “obscene” literature. California’s law, however, provides: “Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes to or sends or causes to be sent to, or exhibits to, or offers to distribute or exhibit any harmful matter to a minor, is guilty of a misdemeanor.” Calif. Penal Code §313.1. A “minor” is one under 18 years of age; the word “distribute” means “to transfer possession”; “matter” includes “any book, maga- PARIS ADULT THEATRE I v. SLATON 73 49 Brennan, J., dissenting When man was first in the jungle he took care of himself. When he entered a societal group, controls were necessarily imposed. But our society—unlike most in the world—presupposes that freedom and liberty are in a frame of reference that makes the individual, not government, the keeper of his tastes, beliefs, and ideas. That is the philosophy of the First Amendment; and it is the article of faith that sets us apart from most nations in the world. Mr. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall join, dissenting. This case requires the Court to confront once again the vexing problem of reconciling state efforts to suppress sexually oriented expression with the protections of the First Amendment, as applied to the States through the Fourteenth Amendment. No other aspect of the First Amendment has, in recent years, demanded so substantial a commitment of our time, generated such disharmony of views, and remained so resistant to the formulation of stable and manageable standards. I am convinced that the approach initiated 16 years ago in Roth v. United States, 354 U. S. 476 (1957), and culminating in the Court’s decision today, cannot bring stability to this area of the law without jeopardizing fundamental First Amendment values, and I have concluded that the zine, newspaper, or other printed or written material.” Id., §§ 313(b), (d), (g). “Harmful matter” is defined in § 313 (a) to mean “matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance for minors.” 74 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. time has come to make a significant departure from that approach. In this civil action in the Superior Court of Fulton County, the State of Georgia sought to enjoin the showing of two motion pictures, It All Comes Out In The End, and Magic Mirror, at the Paris Adult Theatres (I and II) in Atlanta, Georgia. The State alleged that the films were obscene under the standards set forth in Georgia Code Ann. § 26-2101.¹ The trial court denied injunctive relief, holding that even though the films could be considered obscene, their commercial presentation could not constitutionally be barred in the absence of proof that they were shown to minors or unconsenting adults. Reversing, the Supreme Court of Georgia found the films obscene, and held that the care taken to avoid exposure to minors and unconsenting adults was without constitutional significance. I The Paris Adult Theatres are two commercial cinemas, linked by a common box office and lobby, on Peachtree Street in Atlanta, Georgia. On December 28, 1970, investigators employed by the Criminal Court of Fulton County entered the theaters as paying customers and viewed each of the films which are the subject of this action. Thereafter, two separate complaints, one for ¹ Ga. Code Ann. § 26-2101 provides in pertinent part that “(b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters. Undeveloped photographs, molds, printing plates and the like shall be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it.” PARIS ADULT THEATRE I v. SLATON 75 49 Brennan, J., dissenting each of the two films, were filed in the Superior Court seeking a declaration that the films were obscene and an injunction against their continued presentation to the public. The complaints alleged that the films were “a flagrant violation of Georgia Code Section 26-2101 in that the sole and dominant theme [s] of the said motion picture film[s] considered as a whole and applying contemporary community standards [appeal] to the prurient interest in sex, nudity and excretion, and that the said motion picture film[s are] utterly and absolutely without any redeeming social value whatsoever, and [transgress] beyond the customary limits of candor in describing and discussing sexual matters.” App. 20, 39. Although the language of the complaints roughly tracked the language of § 26-2101, which imposes criminal penalties on persons who knowingly distribute obscene materials,² this proceeding was not brought pursuant to that statute. Instead, the State initiated a nonstatutory civil proceeding to determine the obscenity of the films and to enjoin their exhibition. While the parties waived jury trial and stipulated that the decision of the trial court would be final on the issue of obscenity, the State has not indicated whether it intends to bring a criminal action under the statute in the event that it succeeds in proving the films obscene. Upon the filing of the complaints, the trial court scheduled a hearing for January 13, 1971, and entered an order temporarily restraining the defendants from concealing, destroying, altering, or removing the films ² Ga. Code § 26-2101 (a): “A person commits the offense of distributing obscene materials [as described in subsection (b), n. 1, supra] when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who offers to do so, or who possesses such material with the intent so to do ... .” 76 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. from the jurisdiction, but not from exhibiting the films to the public pendente lite. In addition to viewing the films at the hearing, the trial court heard the testimony of witnesses and admitted into evidence photographs that were stipulated to depict accurately the facade of the theater. The witnesses testified that the exterior of the theater was adorned with prominent signs reading “Adults Only,” “You Must Be 21 and Able to Prove It,” and “If the Nude Body Offends You, Do Not Enter.” Nothing on the outside of the theater described the films with specificity. Nor were pictures displayed on the outside of the theater to draw the attention of passersby to the contents of the films. The admission charge to the theaters was $3. The trial court heard no evidence that minors had ever entered the theater, but also heard no evidence that petitioners had enforced a systematic policy of screening out minors (apart from the posting of the notices referred to above). On the basis of the evidence submitted, the trial court concluded that the films could fairly be considered obscene, “[a]ssuming that obscenity is established by a finding that the actors cavorted about in the nude indiscriminately,” but held, nonetheless, that “the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible.” ³ ³ The precise holding of the trial court is not free from ambiguity. After pointing out that the films could be considered obscene, and that they still could not be suppressed in the absence of exposure to juveniles or unconsenting adults, the trial court concluded that “[i]t is the judgment of this court that the films, even though they display the human body and the human personality in a most degrading fashion, are not obscene.” It is not clear whether the trial court found that the films were not obscene in the sense that they were protected expression under the standards of Roth n. United States, 354 U. S. 476 (1957), and Redrup v. New York, 386 U. S. PARIS ADULT THEATRE I v. SLATON 77 49 Brennan, J., dissenting Since the issue did not arise in a statutory proceeding, the trial court was not required to pass upon the constitutionality of any state statute, on its face or as applied, in denying the injunction sought by the State. The Supreme Court of Georgia unanimously reversed, reasoning that the lower court’s reliance on Stanley v. Georgia, 394 U. S. 557 (1969), was misplaced in view of our subsequent decision in United States v. Reidel, 402 U. S. 351 (1971): “In [Reidel] the Supreme Court expressly held that the government could constitutionally prohibit the distribution of obscene materials through the mails, even though the distribution be limited to willing recipients who state that they are adults, and, further, that the constitutional right of a person to possess obscene material in the privacy of his own home, as expressed in the Stanley case, does not carry with it the right to sell and deliver such material. . . . Those who choose to pass through the front door of the defendant’s theater and purchase a ticket to view the films and who certify thereby that they are more than 21 years of age are willing recipients of the material in the same legal sense as were those in the Reidel case, who, after reading the newspaper advertisements of the material, mailed an order to the defendant accepting his solicitation to sell them the obscene booklet there. That case clearly establishes once and for all that the sale and delivery of obscene material to willing adults is not 767 (1967), or whether it used the expression “not obscene” as a term of art to indicate that the films could not be suppressed even though they were not protected under the Roth-Redrup standards. In any case, the Georgia Supreme Court viewed the trial court’s opinion as holding that the films could not be suppressed, even if they were unprotected expression, provided that they were not exhibited to juveniles or unconsenting adults. 78 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. 8. protected under the first amendment.” 228 Ga. 343, 346, 185 S. E. 2d 768, 769-770 (1971). The decision of the Georgia Supreme Court rested squarely on its conclusion that the State could constitutionally suppress these films even if they were displayed only to persons over the age of 21 who were aware of the nature of their contents and who had consented to viewing them. For the reasons set forth in this opinion, I am convinced of the invalidity of that conclusion of law, and I would therefore vacate the judgment of the Georgia Supreme Court. I have no occasion to consider the extent of state power to regulate the distribution of sexually oriented materials to juveniles or to unconsenting adults. Nor am I required, for the purposes of this review, to consider whether or not these petitioners had, in fact, taken precautions to avoid exposure of films to minors or unconsenting adults. II In Roth v. United States., 354 U. S. 476 (1957), the Court held that obscenity, although expression, falls outside the area of speech or press constitutionally protected under the First and Fourteenth Amendments against state or federal infringement. But at the same time we emphasized in Roth that “sex and obscenity are not synonymous,” id., at 487, and that matter which is sexually oriented but not obscene is fully protected by the Constitution. For we recognized that “[s]ex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” Ibid.⁴ Roth rested, in ⁴ “As to all such problems, this Court said in Thornhill v. Alabama, 310 U. 8. 88, 101-102 (1940): “ ‘The freedom of speech and of the press guaranteed by the PARIS ADULT THEATRE I v. SLATON 79 49 Brennan, J., dissenting other words, on what has been termed a two-level approach to the question of obscenity.⁵ While much criticized,⁶ that approach has been endorsed by all but two members of this Court who have addressed the question since Roth. Yet our efforts to implement that approach demonstrate that agreement on the existence of something called “obscenity” is still a long and painful step from agreement on a workable definition of the term. Recognizing that “the freedoms of expression . . . are vulnerable to gravely damaging yet barely visible encroachments,” Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 66 (1963), we have demanded that “sensitive tools” be used to carry out the “separation of legitimate from illegitimate speech.” Speiser n. Randall, 357 U. S. 513, 525 (1958). The essence of our problem in the obscenity area is that we have been unable to provide “sensitive tools” to separate obscenity from other sexually oriented but constitutionally protected speech, 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. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’ (Emphasis added.)” Roth, 354 U. S., at 487-488. See also, e. g., Thomas v. Collins, 323 U. S. 516, 531 (1945) (“the rights of free speech and a free press are not confined to any field of human interest”). ⁵ See, e. g., Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup. Ct. Rev. 1, 10-11; cf. Beauharnais v. Illinois, 343 U. S. 250 (1952). ⁶ See, e. g., T. Emerson, The System of Freedom of Expression 487 (1970); Kalven, supra, n. 5; Comment, More Ado About Dirty Books, 75 Yale L. J. 1364 (1966). 80 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. so that efforts to suppress the former do not spill over into the suppression of the latter. The attempt, as the late Mr. Justice Harlan observed, has only “produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.” Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 704-705 (1968) (separate opinion). To be sure, five members of the Court did agree in Roth that obscenity could be determined by asking “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U. S., at 489. But agreement on that test—achieved in the abstract and without reference to the particular material before the Court, see id., at 481 n. 8—was, to say the least, short lived. By 1967 the following views had emerged: Mr. Justice Black and Mr. Justice Douglas consistently maintained that government is wholly powerless to regulate any sexually oriented matter on the ground of its obscenity. See, e. g., Ginzburg v. United States, 383 U. S. 463, 476, 482 (1966) (dissenting opinions); Jacobellis v. Ohio, 378 U. S. 184, 196 (1964) (concurring opinion); Roth n. United States, supra, at 508 (dissenting opinion). Mr. Justice Harlan, on the other hand, believed that the Federal Government in the exercise of its enumerated powers could control the distribution of “hard core” pornography, while the States were afforded more latitude to “[ban] any material which, taken as a whole, has been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner', under rationally established criteria for judging such material.” Jacobellis v. Ohio, supra, at 204 (dissenting opinion). See also, e. g., Ginzburg v. United States, supra, at 493 (dissenting opinion); A Quantity of Books v. Kansas, 378 U. S. 205, 215 (1964) (dissenting opinion joined by Clark, J.); Roth, supra, at 496 PARIS ADULT THEATRE I v. SLATON 81 49 Brennan, J., dissenting (separate opinion). Mr. Justice Stewart regarded “hard core” pornography as the limit of both federal and state power. See, e. g., Ginzburg v. United States, supra, at 497 (dissenting opinion); Jacobellis v. Ohio, supra, at 197 (concurring opinion). The view that, until today, enjoyed the most, but not majority, support was an interpretation of Roth (and not, as the Court suggests, a veering “sharply away from the Roth concept” and the articulation of “a new test of obscenity,” Miller v. California, ante, at 21) adopted by Mr. Chief Justice Warren, Mr. Justice Fortas, and the author of this opinion in Memoirs v. Massachusetts, 383 U. S. 413 (1966). We expressed the view that Federal or State Governments could control the distribution of material where “three elements . . . coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” Id., at 418. Even this formulation, however, concealed differences of opinion. Compare Jacobellis v. Ohio, supra, at 192-195 (Brennan, J., joined by Goldberg, J.) (community standards national), with id., at 200-201 (Warren, C. J., joined by Clark, J., dissenting) (community standards local).⁷ Moreover, it did not provide a definition covering all situations. See Mishkin v. New York, 383 U. S. 502 (1966) ⁷ On the question of community standards see also Hoyt v. Minnesota, 399 U. S. 524 (1970) (Blackmun, J., joined by Burger, C. J., and Harlan, J., dissenting) (flexibility for state standards); Cain n. Kentucky, 397 U. S. 319 (1970) (Burger, C. J., dissenting) (same); Manual Enterprises v. Day, 370 U. S. 478, 488 (1962) (Harlan, J., joined by Stewart, J.) (national standards in context of federal prosecution). 82 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. (prurient appeal defined in terms of a deviant sexual group); Ginzburg v. United States, supra (“pandering” probative evidence of obscenity in close cases). See also Ginsberg v. New York, 390 U. S. 629 (1968) (obscenity for juveniles). Nor, finally, did it ever command a majority of the Court. Aside from the other views described above, Mr. Justice Clark believed that “social importance” could only “be considered together with evidence that the material in question appeals to prurient interest and is patently offensive.” Memoirs n. Massachusetts, supra, at 445 (dissenting opinion). Similarly, Mr. Justice White regarded “a publication to be obscene if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor,” id., at 460-461 (dissenting opinion), and regarded “ ‘social importance’ . . . not [as] an independent test of obscenity but [as] relevant only to determining the predominant prurient interest of the material . . . .” Id., at 462. In the face of this divergence of opinion the Court began the practice in Redrup v. New York, 386 U. S. 767 (1967), of per curiam reversals of convictions for the dissemination of materials that at least five members of the Court, applying their separate tests, deemed not to be obscene.⁸ This approach capped the attempt in ⁸ No fewer than 31 cases have been disposed of in this fashion. Aside from the three cases reversed in Redrup, they are: Keney v. New York, 388 U. S. 440 (1967); Friedman v. New York, 388 U. S. 441 (1967); Ratner v. California, 388 U. S. 442 (1967); Cobert v. New York, 388 U. S. 443 (1967); Sheperd v. New York, 388 U. S. 444 (1967); Avansino v. New York, 388 U. S. 446 (1967); Aday v. New York, 388 U. S. 447 (1967); Books, Inc. v. United States, 388 U. S. 449 (1967); A Quantity of Books v. Kansas, 388 U. S. 452 (1967); Mazes v. Ohio, 388 U. S. 453 (1967); Schack-man v. California, 388 U. S. 454 (1967); Potomac News Co. v. United States, 389 U. S. 47 (1967); Conner v. City of Hammond, 389 U. S. 48 (1967); Central Magazine Sales, Ltd. v. United States, PARIS ADULT THEATRE I v. SLATON 83 49 Brennan, J., dissenting Roth to separate all forms of sexually oriented expression into two categories—the one subject to full governmental suppression and the other beyond the reach of governmental regulation to the same extent as any other protected form of speech or press. Today a majority of the Court offers a slightly altered formulation of the basic Roth test, while leaving entirely unchanged the underlying approach. Ill Our experience with the Roth approach has certainly taught us that the outright suppression of obscenity cannot be reconciled with the fundamental principles of the First and Fourteenth Amendments. For we have failed to formulate a standard that sharply distinguishes protected from unprotected speech, and out of necessity, we have resorted to the Redrup approach, which resolves cases as between the parties, but offers only the most obscure guidance to legislation, adjudication by other courts, and primary conduct. By disposing of cases through summary reversal or denial of certiorari we have deliberately and effectively obscured the rationale underlying the decisions. It comes as no surprise that judicial attempts to follow our lead conscientiously have often ended in hopeless confusion. Of course, the vagueness problem would be largely of our own creation if it stemmed primarily from our 389 U. S. 50 (1967); Chance v. California, 389 U. S. 89 (1967); 1. M. Amusement Corp. v. Ohio, 389 U. S. 573 (1968); Robert-Arthur Management Corp. v. Tennessee, 389 U. S. 578 (1968); Felton v. City of Pensacola, 390 U. S. 340 (1968); Henry v. Louisiana, 392 U. S. 655 (1968); Cain v. Kentucky, supra; Bloss v. Dykema, 398 U. S, 278 (1970); Walker v. Ohio, 398 U. S. 434 (1970); Hoyt v. Minnesota, supra; Childs v. Oregon, 401 U. S. 1006 (1971); Bloss v. Michigan, 402 U. S. 938 (1971); Burgin v. South Carolina, 404 U. S. 809 (1971); Hartstein v. Missouri, 404 U. S. 988 (1971); Wiener v. California, 404 U. S. 988 (1971). 84 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. failure to reach a consensus on any one standard. But after 16 years of experimentation and debate I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and on the other the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as “prurient interest,” “patent offensiveness,” “serious literary value,” and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist and that we “know it when [we] see it,” Jacobellis v. Ohio, supra, at 197 (Stewart, J., concurring), we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech. We have more than once previously acknowledged that “constitutionally protected expression ... is often separated from obscenity only by a dim and uncertain line.” Bantam Books, Inc. n. Sullivan, 371 U. S., at 66. See also, e. g., Mishkin n. New York, supra, at 511. Added to the “perhaps inherent residual vagueness” of each of the current multitude of standards, Ginzburg v. United States, supra, at 475 n. 19, is the further complication that the obscenity of any particular item may depend upon nuances of presentation and the context of its dissemination. See ibid. Redrup itself suggested that obtrusive exposure to unwilling individuals, distribution to juveniles, and “pandering” may also bear upon the determination of PARIS ADULT THEATRE I v. SLATON 85 49 Brennan, J., dissenting obscenity. See Redrup v. New York, supra, at 769. As Mr. Chief Justice Warren stated in a related vein, obscenity is a function of the circumstances of its dissemination: “It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant’s conduct, but the materials are thus placed in context from which they draw color and character.” Roth, 354 U. S., at 495 (concurring opinion). See also, e. g., Jacobellis v. Ohio, supra, at 201 (dissenting opinion); Kingsley Books, Inc. v. Brown, 354 U. S. 436,445-446 (1957) (dissenting opinion). I need hardly point out that the factors which must be taken into account are judgmental and can only be applied on “a case-by-case, sight-by-sight” basis. Mishkin n. New York, supra, at 516 (Black, J., dissenting). These considerations suggest that no one definition, no matter how precisely or narrowly drawn, can possibly suffice for all situations, or carve out fully suppressible expression from all media without also creating a substantial risk of encroachment upon the guarantees of the Due Process Clause and the First Amendment.⁹ ⁹ Although I did not join the opinion of the Court in Stanley v. Georgia, 394 U. S. 557 (1969), I am now inclined to agree that “the Constitution protects the right to receive information and ideas,” and that “[t]his right to receive information and ideas, regardless of their social worth ... is fundamental to our free society.” Id., at 564. See Martin v. City of Struthers, 319 U. S. 141,143 (1943); Winters v. New York, 333 U. S. 507, 510 (1948); Lamont v. Postmaster General, 381 U. S. 301, 307-308 (1965) (concurring opinion). This right is closely tied, as Stanley recognized, to “the right to be free, except in very limited circumstances, from unwarranted governmental intrusions into one’s privacy.” 394 U. S., at 564. See Griswold v. 86 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. The vagueness of the standards in the obscenity area produces a number of separate problems, and any improvement must rest on an understanding that the problems are to some extent distinct. First, a vague statute fails to provide adequate notice to persons who are engaged in the type of conduct that the statute could be thought to proscribe. The Due Process Clause of the Fourteenth Amendment requires that all criminal laws provide fair notice of “what the State commands or forbids.” Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939); Connally n. General Construction Co., 269 U. S. 385 (1926). In the service of this general principle we have repeatedly held that the definition of obscenity must provide adequate notice of exactly what Connecticut, 381 U. S. 479 (1965); Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting). It is similarly related to “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” (italics omitted), Eisenstadt n. Baird, 405 U. S. 438, 453 (1972), and the right to exercise “autonomous control over the development and expression of one’s intellect, interests, tastes, and personality.” (Italics omitted.) Doe v. Bolton, 410 U. S. 179, 211 (1973) (Douglas, J., concurring). It seems to me that the recognition of these intertwining rights calls in question the validity of the two-level approach recognized in Roth. After all, if a person has the right to receive information without regard to its social worth—that is, without regard to its obscenity— then it would seem to follow that a State could not constitutionally punish one who undertakes to provide this information to a willing, adult recipient. See Eisenstadt v. Baird, supra, at 443-446. In any event, I need not rely on this line of analysis or explore all of its possible ramifications, for there is available a narrower basis on which to rest this decision. Whether or not a class of “obscene” and thus entirely unprotected speech does exist, I am forced to conclude that the class is incapable of definition with sufficient clarity to withstand attack on vagueness grounds. Accordingly, it is on principles of the void-for-vagueness doctrine that this opinion exclusively relies. PARIS ADULT THEATRE I v. SLATON 87 49 Brennan, J., dissenting is prohibited from dissemination. See, e. g., Rabe v. Washington, 405 U. S. 313 (1972); Interstate Circuit, Inc. N. Dallas, 390 U. S. 676 (1968); Winters v. New York, 333 U. S. 507 (1948). While various tests have been upheld under the Due Process Clause, see Ginsberg v. New York, 390 U. S., at 643; Mishkin n. New York, 383 U. S., at 506-507; Roth v. United States, 354 U. S., at 491-492, I have grave doubts that any of those tests could be sustained today. For I know of no satisfactory answer to the assertion by Mr. Justice Black, “after the fourteen separate opinions handed down” in the trilogy of cases decided in 1966, that “no person, not even the most learned judge much less a layman, is capable of knowing in advance of an ultimate decision in his particular case by this Court whether certain material comes within the area of ‘obscenity’ . . . .” Ginzburg v. United States, 383 U. S., at 480-481 (dissenting opinion). See also the statement of Mr. Justice Harlan in Interstate Circuit, Inc. v. Dallas, supra, at 707 (separate opinion). As Mr. Chief Justice Warren pointed out, “[t]he constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U. S. 612, 617 (1954). In this context, even the most painstaking efforts to determine in advance whether certain sexually oriented expression is obscene must inevitably prove unavailing. For the insufficiency of the notice compels persons to guess not only whether their conduct is covered by a criminal statute, but also whether their conduct falls within the constitutionally permissible reach of the statute. The resulting level of uncertainty is utterly intolerable, not alone because it makes 88 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. “[b]ookselling ... a hazardous profession,” Ginsberg v. New York, supra, at 674 (Fortas, J., dissenting), but as well because it invites arbitrary and erratic enforcement of the law. See, e. g., Papachristou v. City of Jacksonville, 405 U. S. 156 (1972); Gregory n. City of Chicago, 394 U. S. Ill, 120 (1969) (Black, J., concurring); Niemotko v. Maryland, 340 U. S. 268 (1951); Cantwell v. Connecticut, 310 U. S. 296, 308 (1940); Thornhill v. Alabama, 310 U. S. 88 (1940). In addition to problems that arise when any criminal statute fails to afford fair notice of what it forbids, a vague statute in the areas of speech and press creates a second level of difficulty. We have indicated that “stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.” ¹⁰ Smith v. California, 361 U. S. 147, 151 (1959). That proposition draws its strength from our recognition that “[t]he fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar . . . .” Roth, supra, at 488.¹¹ ¹⁰ In this regard, the problems of vagueness and overbreadth are, plainly, closely intertwined. See NAACP v. Button, 371 U. S. 415, 432-433 (1963); Note, The First Amendment Overbreadth Doctrine, 83 Harv. E. Rev. 844, 845 (1970). Cf. infra, at 93-94. ¹¹ See also Speiser v. Randall, 357 U. S. 513 (1958); cf. Baren-blatt v. United States, 360 U. S. 109, 137-138 (1959) (Black, J., dissenting): “This Court . . . has emphasized that the ‘vice of vagueness’ is PARIS ADULT THEATRE I v. SLATON 89 49 Brennan, J., dissenting To implement this general principle, and recognizing the inherent vagueness of any definition of obscenity, we have held that the definition of obscenity must be drawn as narrowly as possible so as to minimize the interference with protected expression. Thus, in Roth we rejected the test of Regina n. Hicklin, [1868] L. R. 3 Q. B. 360, that “[judged] obscenity by the effect of isolated passages upon the most susceptible persons.” 354 U. S., at 489. That test, we held in Roth, “might well encompass material legitimately treating with sex . . . Ibid. Cf. Mishkin v. New York, supra, at 509. And we have supplemented the Roth standard with additional tests in an effort to hold in check the corrosive effect of vagueness on the guarantees of the First Amendment.¹² We have held, for example, that “a State is not free to adopt whatever procedures it pleases especially pernicious where legislative power over an area involving speech, press, petition and assembly is involved. . . . For a statute broad enough to support infringement of speech, writings, thoughts and public assemblies, against the unequivocal command of the First Amendment necessarily leaves all persons to guess just what the law really means to cover, and fear of a wrong guess inevitably leads people to forego the very rights the Constitution sought to protect above all others. Vagueness becomes even more intolerable in this area if one accepts, as the Court today does, a balancing test to decide if First Amendment rights shall be protected. It is difficult at best to make a man guess—at the penalty of imprisonment—whether a court will consider the State’s need for certain information superior to society’s interest in unfettered freedom. It is unconscionable to make him choose between the right to keep silent and the need to speak when the statute supposedly establishing the ‘state’s interest’ is too vague to give him guidance.” (Citations omitted.) ¹² Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 885-886 and n. 158 (1970) (“Thus in the area of obscenity the overbreadth doctrine operates interstitially, when no line of privilege is apposite or yet to be found, to control the impact of schemes designed to curb distribution of unprotected material”). 90 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. for dealing with obscenity . . . .” Marcus v. Search Warrant, 367 U. S. 717, 731 (1961). “Rather, the First Amendment requires that procedures be incorporated that ‘ensure against the curtailment of constitutionally protected expression ....’” Blount v. Rizzi, 400 U. S. 410, 416 (1971), quoting from Bantam Books, Inc., n. Sullivan, 372 U. S., at 66. See generally Rizzi, supra, at 417; United States v. Thirty-seven Photographs, 402 U. S. 363, 367-375 (1971); Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636 (1968); Freedman v. Maryland, 380 U. S. 51, 58-60 (1965); A Quantity of Books v. Kansas, 378 U. S. 205 (1964) (plurality opinion). Similarly, we have held that a State cannot impose criminal sanctions for the possession of obscene material absent proof that the possessor had knowledge of the contents of the material. Smith v. California, supra. “Proof of scienter” is necessary “to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity.” Mishkin v. New York, supra, at 511; Ginsberg n. New York, supra, at 644—645. In short, “[t]he objectionable quality of vagueness and overbreadth . . . [is] the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. Cf. Marcus v. Search Warrant, 367 U. S. 717, 733. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith n. California, [361 U. S.], at 151-154; Speiser v. Randall, 357 U. S. 513, 526. Because First Amendment freedoms need breathing space to survive, government PARIS ADULT THEATRE I v. SLATON 91 49 Brennan, J., dissenting may regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U. S. 296, 311.” NAACP v. Button, 371 U. S. 415, 432-433 (1963). The problems of fair notice and chilling protected speech are very grave standing alone. But it does not detract from their importance to recognize that a vague statute in this area creates a third, although admittedly more subtle, set of problems. These problems concern the institutional stress that inevitably results where the line separating protected from unprotected speech is excessively vague. In Roth we conceded that “there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls . . . .” 354 U. S., at 491-492. Our subsequent experience demonstrates that almost every case is “marginal.” And since the “margin” marks the point of separation between protected and unprotected speech, we are left with a system in which almost every obscenity case presents a constitutional question of exceptional difficulty. “The suppression of a particular writing or other tangible form of expression is ... an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards.” Roth, supra, at 497 (separate opinion of Harlan, J.). Examining the rationale, both explicit and implicit, of our vagueness decisions, one commentator has viewed these decisions as an attempt by the Court to establish an “insulating • buffer zone of added protection at the peripheries of several of the Bill of Rights freedoms.” Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75 (1960). The buffer zone enables the Court to fend off legislative attempts 92 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. “to pass to the courts—and ultimately to the Supreme Court—the awesome task of making case by case at once the criminal and the constitutional law.” Id., at 81. Thus, “[b] ecause of the Court’s limited power to reexamine fact on a cold record, what appears to be going on in the administration of the law must be forced, by restrictive procedures, to reflect what is really going on; and because of the impossibility, through sheer volume of cases, of the Court’s effectively policing law administration case by case, those procedures must be framed to assure, as well as procedures can assure, a certain overall probability of regularity. Id., at 89 (emphasis in original). As a result of our failure to define standards with predictable application to any given piece of material, there is no probability of regularity in obscenity decisions by state and lower federal courts. That is not to say that these courts have performed badly in this area or paid insufficient attention to the principles we have established. The problem is, rather, that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so. The number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court. But the sheer number of the cases does not define the full extent of the institutional problem. For, quite apart from the number of cases involved and the need to make a fresh constitutional determination in each case, we are tied to the “absurd business of perusing and viewing the miserable stuff that pours into the Court . . . Interstate Circuit, Inc. v. Dallas, 390 U. S., at 707 (separate opinion of Harlan, J.). While the material may have varying degrees of social importance, PARIS ADULT THEATRE I v. SLATON 93 49 Brennan, J., dissenting it is hardly a source of edification to the members of this Court who are compelled to view it before passing on its obscenity. Cf. Mishkin v. New York, 383 U. S., at 516-517 (Black, J., dissenting). Moreover, we have managed the burden of deciding scores of obscenity cases by relying on per curiam reversals or denials of certiorari—a practice which conceals the rationale of decision and gives at least the appearance of arbitrary action by this Court. See Bloss v. Dykema, 398 U. S. 278 (1970) (Harlan, J., dissenting). More important, no less than the procedural schemes struck down in such cases as Blount v. Rizzi, supra, and Freedman v. Maryland, supra, the practice effectively censors protected expression by leaving lower court determinations of obscenity intact even though the status of the allegedly obscene material is entirely unsettled until final review here. In addition, the uncertainty of the standards creates a continuing source of tension between state and federal courts, since the need for an independent determination by this Court seems to render superfluous even the most conscientious analysis by state tribunals. And our inability to justify our decisions with a persuasive rationale—or indeed, any rationale at all—necessarily creates the impression that we are merely second-guessing state court judges. The severe problems arising from the lack of fair notice, from the chill on protected expression, and from the stress imposed on the state and federal judicial machinery persuade me that a significant change in direction is urgently required. I turn, therefore, to the alternatives that are now open. IV 1. The approach requiring the smallest deviation from our present course would be to draw a new line between protected and unprotected speech, still permit 94 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. ting the States to suppress all material on the unprotected side of the line. In my view, clarity cannot be obtained pursuant to this approach except by drawing a line that resolves all doubt in favor of state power and against the guarantees of the First Amendment. We could hold, for example, that any depiction or description of human sexual organs, irrespective of the manner or purpose of the portrayal, is outside the protection of the First Amendment and therefore open to suppression by the States. That formula would, no doubt, offer much fairer notice of the reach of any state statute drawn at the boundary of the State’s constitutional power. And it would also, in all likelihood, give rise to a substantial probability of regularity in most judicial determinations under the standard. But such a standard would be appallingly overbroad, permitting the suppression of a vast range of literary, scientific, and artistic masterpieces. Neither the First Amendment nor any free community could possibly tolerate such a standard. Yet short of that extreme it is hard to see how any choice of words could reduce the vagueness problem to tolerable proportions, so long as we remain committed to the view that some class of materials is subject to outright suppression by the State. 2. The alternative adopted by the Court today recognizes that a prohibition against any depiction or description of human sexual organs could not be reconciled with the guarantees of the First Amendment. But the Court does retain the view that certain sexually oriented material can be considered obscene and therefore unprotected by the First and Fourteenth Amendments. To describe that unprotected class of expression, the Court adopts a restatement of the Roth-Memoirs definition of obscenity: “The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the PARIS ADULT THEATRE I v. SLATON 95 49 Brennan, J., dissenting work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, ante, at 24. In apparent illustration of “sexual conduct,” as that term is used in the test’s second element, the Court identifies “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and “(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Id., at 25. The differences between this formulation and the threepronged Memoirs test are, for the most part, academic.¹³ The first element of the Court’s test is virtually identical to the Memoirs requirement that “the dominant theme of the material taken as a whole [must appeal] to a prurient interest in sex.” 383 U. S., at 418. Whereas the second prong of the Memoirs test demanded that the material be ¹³ While the Court’s modification of the Memoirs test is small, it should still prove sufficient to invalidate virtually every state law relating to the suppression of obscenity. For, under the Court’s restatement, a statute must specifically enumerate certain forms of sexual conduct, the depiction of which is to be prohibited. It seems highly doubtful to me that state courts will be able to construe state statutes so as to incorporate a carefully itemized list of various forms of sexual conduct, and thus to bring them into conformity with the Court’s requirements. Cf. Blount v. Rizzi, 400 U. S. 410, 419 (1971). The statutes of at least one State should, however, escape the wholesale invalidation. Oregon has recently revised its statute to prohibit only the distribution of obscene materials to juveniles or unconsenting adults. The enactment of this principle is, of course, a choice constitutionally open to every State, even under the Court’s decision. See Oregon Laws 1971, c. 743, Art. 29, §§255-262. 96 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. “patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters,” ibid., the test adopted today requires that the material describe, “in a patently offensive way, sexual conduct specifically defined by the applicable state law.” Miller v. California, ante, at 24. The third component of the Memoirs test is that the material must be “utterly without redeeming social value.” 383 U. S., at 418. The Court’s rephrasing requires that the work, taken as a whole, must be proved to lack “serious literary, artistic, political, or scientific value.” Miller, ante, at 24. The Court evidently recognizes that difficulties with the Roth approach necessitate a significant change of direction. But the Court does not describe its understanding of those difficulties, nor does it indicate how the restatement of the Memoirs test is in any way responsive to the problems that have arisen. In my view, the restatement leaves unresolved the very difficulties that compel our rejection of the underlying Roth approach, while at the same time contributing substantial difficulties of its own. The modification of the Memoirs test may prove sufficient to jeopardize the analytic underpinnings of the entire scheme. And today’s restatement will likely have the effect, whether or not intended, of permitting far more sweeping suppression of sexually oriented expression, including expression that would almost surely be held protected under our current formulation. Although the Court’s restatement substantially tracks the three-part test announced in Memoirs v. Massachusetts, supra, it does purport to modify the “social value” component of the test. Instead of requiring, as did Roth and Memoirs, that state suppression be limited to materials utterly lacking in social value, the Court today PARIS ADULT THEATRE I v. SLATON 97 49 Brennan, J., dissenting permits suppression if the government can prove that the materials lack “serious literary, artistic, political or scientific value.” But the definition of “obscenity” as expression utterly lacking in social importance is the key to the conceptual basis of Roth and our subsequent opinions. In Roth we held that certain expression is obscene, and thus outside the protection of the First Amendment, precisely because it lacks even the slightest redeeming social value. See Roth v. United States, 354 U. S., at 484-485;¹⁴ Jacobellis v. Ohio, 378 U. S., at 191; Zeitlin v. Arnebergh, 59 Cal. 2d 901, 920, 383 P. 2d 152, 165; cf. New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Garrison v. Louisiana, 379 U. S. 64, 75 (1964); Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup. Ct. Rev. 1. The Court’s approach necessarily assumes that some works will be deemed obscene—even though they clearly have some social value—because the State was able to prove that the value, measured by some unspecified standard, was not sufficiently “serious” to warrant constitutional protection. That result is not merely inconsistent with our holding in Roth; it is nothing less than a rejection of the fundamental First Amendment premises and rationale of the Roth opinion and an invitation to widespread suppression of sexually oriented speech. Before today, the protections of the First Amendment have never been thought limited to expressions of serious literary or political value. See Gooding v. Wilson, 405 U. S. 518 ¹⁴ “All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” Roth v. United States, supra, at 484. 98 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. (1972); Cohen v. California, 403 U. S. 15, 25-26 (1971) ; Terminiello v. Chicago, 337 U. S. 1, 4-5 (1949). Although the Court concedes that “Roth presumed ‘obscenity’ to be ‘utterly without redeeming social importance,’ ” it argues that Memoirs produced “a drastically altered test that called on the prosecution to prove a negative, i. e., that the material was ‘utterly without redeeming social value’—a burden virtually impossible to discharge under our criminal standards of proof.” ¹⁵ One should hardly need to point out that under the third component of the Court’s test the prosecution is still required to “prove a negative”—i. e., that the material lacks serious literary, artistic, political, or scientific value. Whether it will be easier to prove that material lacks “serious” value than to prove that it lacks any value at all remains, of course, to be seen. In any case, even if the Court’s approach left undamaged the conceptual framework of Roth, and even if it clearly barred the suppression of works with at least some social value, I would nevertheless be compelled to reject it. For it is beyond dispute that the approach can have no ameliorative impact on the cluster of problems that grow out of the vagueness of our current standards. Indeed, even the Court makes no argument that the reformulation will provide fairer notice to booksellers, theater owners, and the reading and viewing public. Nor does the Court contend that the approach will provide clearer guidance to law enforcement officials or reduce the chill on protected expression. Nor, finally, does the Court suggest that the approach will mitigate to the slightest degree the institutional problems that have plagued this Court and the state and federal judiciary as a direct result of the uncertainty inherent in any definition of obscenity. r⁵ Miller v. California, ante, at 22. PARIS ADULT THEATRE I v. SLATON 99 49 Brennan, J., dissenting Of course, the Court’s restated Roth test does limit the definition of obscenity to depictions of physical conduct and explicit sexual acts. And that limitation may seem, at first glance, a welcome and clarifying addition to the Roth-Memoirs formula. But, just as the agreement in Roth on an abstract definition of obscenity gave little hint of the extreme difficulty that was to follow in attempting to apply that definition to specific material, the mere formulation of a “physical conduct” test is no assurance that it can be applied with any greater facility. The Court does not indicate how it would apply its test to the materials involved in Miller v. California, supra, and we can only speculate as to its application. But even a confirmed optimist could find little realistic comfort in the adoption of such a test. Indeed, the valiant attempt of one lower federal court to draw the constitutional line at depictions of explicit sexual conduct seems to belie any suggestion that this approach marks the road to clarity.¹⁶ The Court surely demonstrates little sensitivity to our own institutional problems, much less the other vagueness-related difficulties, in establishing a system that requires us to consider whether a description of human genitals is sufficiently “lewd” to deprive it of constitutional protection; whether a sexual act is “ultimate”; whether the conduct depicted in materials before us fits within one of the categories of conduct whose depiction the State and Federal Governments have attempted to suppress; and a host of equally pointless inquiries. In addition, adoption of such a test does not, presumably, obviate the need for consideration of the ¹⁶ Huffman v. United States, 152 U. S. App. D. C. 238, 470 F. 2d 386 (1971). The test apparently requires an effort to distinguish between “singles” and “duals,” between “erect penises” and “semi-erect penises,” and between “ongoing sexual activity” and “imminent sexual activity.” 100 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. nuances of presentation of sexually oriented material, yet it hardly clarifies the application of those opaque but important factors. If the application of the “physical conduct” test to pictorial material is fraught with difficulty, its application to textual material carries the potential for extraordinary abuse. Surely we have passed the point where the mere written description of sexual conduct is deprived of First Amendment protection. Yet the test offers no guidance to us, or anyone else, in determining which written descriptions of sexual conduct are protected, and which are not. Ultimately, the reformulation must fail because it still leaves in this Court the responsibility of determining in each case whether the materials are protected by the First Amendment. The Court concedes that even under its restated formulation, the First Amendment interests at stake require “appellate courts to conduct an independent review of constitutional claims when necessary,” Miller v. California, ante, at 25, citing Mr. Justice Harlan’s opinion in Roth, where he stated, “I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based.” 354 U. S., at 498. Thus, the Court’s new formulation will not relieve us of “the awesome task of making case by case at once the criminal and the constitutional law.”¹⁷ And the careful efforts of state and lower federal courts to apply the standard will remain an essentially pointless exercise, in view of the need for an ultimate decision by this Court. In addition, since the status of sexually oriented material will necessarily remain in doubt until final ¹⁷ Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 81 (1960). PARIS ADULT THEATRE I v. SLATON 101 49 Brennan, J., dissenting decision by this Court, the new approach will not diminish the chill on protected expression that derives from the uncertainty of the underlying standard. I am convinced that a definition of obscenity in terms of physical conduct cannot provide sufficient clarity to afford fair notice, to avoid a chill on protected expression, and to minimize the institutional stress, so long as that definition is used to justify the outright suppression of any material that is asserted to fall within its terms. 3. I have also considered the possibility of reducing our own role, and the role of appellate courts generally, in determining whether particular matter is obscene. Thus, we might conclude that juries are best suited to determine obscenity vel non and that jury verdicts in this area should not be set aside except in cases of extreme departure from prevailing standards. Or, more generally, we might adopt the position that where a lower federal or state court has conscientiously applied the constitutional standard, its finding of obscenity will be no more vulnerable to reversal by this Court than any finding of fact. Cf. Interstate Circuit, Inc. v. Dallas, 390 U. S., at 706-707 (separate opinion of Harlan, J.). While the point was not clearly resolved prior to our decision in Redrup v. New York, 386 U. S. 767 (1967),¹⁸ it is implicit in that decision that the First Amendment requires ¹⁸ Compare Ginsberg v. New York, 390 U. S. 629, 672 (1968) (Fortas, J., dissenting); Jacobellis v. Ohio, 378 U. S. 184, 187-190 (1964) (Brennan, J., joined by Goldberg, J.); Manual Enterprises v. Day, 370 U. 8., at 488 (Harlan, J., joined by Stewart, J.); and Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 696-697 (1959) (Frankfurter, J., concurring); id., at 708 (Harlan, J., joined by Frankfurter, J., and Whittaker, J., concurring), with Jacobellis v. Ohio, supra, at 202-203 (Warren, C. J., joined by Clark, J., dissenting) ; Roth v. United States, 354 U. 8., at 492 n. 30; and Kingsley Books, Inc. n. Brown, 354 U. S. 436, 448 (1957) (Brennan, J., dissenting). See also Walker v. Ohio, 398 U. S. 434 (1970) (Burger, C. J., dissenting). 102 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. an independent review by appellate courts of the constitutional fact of obscenity.¹⁹ That result is required by principles applicable to the obscenity issue no less than to any other area involving free expression, see, e. g., New York Times Co. v. Sullivan, 376 U. S., at 284-285, or other constitutional right.²⁰ In any event, even if the Constitution would permit us to refrain from judging for ourselves the alleged obscenity of particular materials, that approach would solve at best only a small part of our problem. For while it would mitigate the institutional stress produced by the Roth approach, it would neither offer nor produce any cure for the other vices of vagueness. Far from providing a clearer guide to permissible primary conduct, the approach would inevitably lead to even greater uncertainty and the consequent due process problems of fair notice. And the approach would expose much protected, sexually oriented expression to the vagaries of jury determinations. Cf. Herndon v. Lowry, 301 U. S. 242, 263 (1937). Plainly, the institutional gain would be more than offset by the unprecedented infringement of First Amendment rights. 4. Finally, I have considered the view, urged so forcefully since 1957 by our Brothers Black and Douglas, that the First Amendment bars the suppression of any sexually oriented expression. That position would effect a sharp reduction, although perhaps not a total elimination, of the uncertainty that surrounds our current ¹⁹ Mr. Justice Harlan, it bears noting, considered this requirement critical for review of not only federal but state convictions, despite his view that the States were accorded more latitude than the Federal Government in defining obscenity. See, e. g., Roth, supra, at 502-503 (separate opinion). ²⁰ See generally Culombe v. Connecticut, 367 U. S. 568, 603-606 (1961) (opinion of Frankfurter, J.) ♦ cf. Crowell n. Benson, 285 U. S. 22, 54-65 (1932); Ng Fung Ho n. White, 259 U. S. 276, 284-285 (1922). PARIS ADULT THEATRE I v. SLATON 103 49 Brennan, J., dissenting approach. Nevertheless, I am convinced that it would achieve that desirable goal only by stripping the States of power to an extent that cannot be justified by the commands of the Constitution, at least so long as there is available an alternative approach that strikes a better balance between the guarantee of free expression and the States’ legitimate interests. V Our experience since Roth requires us not only to abandon the effort to pick out obscene materials on a case-by-case basis, but also to reconsider a fundamental postulate of Roth: that there exists a definable class of sexually oriented expression that may be totally suppressed by the Federal and State Governments. Assuming that such a class of expression does in fact exist,²¹ I am forced to conclude that the concept of “obscenity” cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms. Given these inevitable side effects of state efforts to suppress what is assumed to be unprotected speech, we must scrutinize with care the state interest that is asserted to justify the suppression. For in the absence of some very substantial interest in suppressing such speech, we can hardly condone the ill effects that seem to flow inevitably from the effort.²² ²¹ See n. 9, supra. ²² Cf. United States v. O’Brien, 391 U. S. 367, 376-377 (1968): “This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize 104 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. Obscenity laws have a long history in this country. Most of the States that had ratified the Constitution by 1792 punished the related crime of blasphemy or profanity despite the guarantees of free expression in their constitutions, and Massachusetts expressly prohibited the “Composing, Writing, Printing or Publishing, of any Filthy Obscene or Prophane Song, Pamphlet, Libel or Mock-Sermon, in Imitation or in Mimicking of Preaching, or any other part of Divine Worship.” Acts and Laws of Massachusetts Bay Colony (1726), Acts of 1711-1712, c. 1, p. 218. In 1815 the first reported obscenity conviction was obtained under the common law of Pennsylvania. See Commonwealth v. Sharpless, 2 S. & R. 91. A conviction in Massachusetts under its common law and colonial statute followed six years later. See Commonwealth v. Holmes, 17 Mass. 336 (1821). In 1821 Vermont passed the first state law proscribing the publication or sale of “lewd or obscene” material, Laws of Vermont, 1824, c. XXXII, No. 1, § 23, and federal legislation barring the importation of similar matter appeared in 1842. See Tariff Act of 1842, §28, 5 Stat. 566. Although the number of early obscenity laws was small and their enforcement exceedingly lax, the situation significantly changed after about 1870 when Federal and State Governments, mainly as a result of the efforts the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” (Footnotes omitted.) See also Speiser v. Randall, 357 U. S. 513 (1958). PARIS ADULT THEATRE I v. SLATON 105 49 Brennan, J., dissenting of Anthony Comstock, took an active interest in the suppression of obscenity. By the end of the 19th century at least 30 States had some type of general prohibition on the dissemination of obscene materials, and by the time of our decision in Roth no State was without some provision on the subject. The Federal Government meanwhile had enacted no fewer than 20 obscenity laws between 1842 and 1956. See Roth v. United States, 354 U. S., at 482—483, 485; Report of the Commission on Obscenity and Pornography 300-301 (1970). This history caused us to conclude in Roth “that the unconditional phrasing of the First Amendment [that ‘Congress shall make no law . . . abridging the freedom of speech, or of the press . . .’] was not intended to protect every utterance.” 354 U. S., at 483. It also caused us to hold, as numerous prior decisions of this Court had assumed, see id., at 481, that obscenity could be denied the protection of the First Amendment and hence suppressed because it is a form of expression “utterly without redeeming social importance,” id., at 484, as “mirrored in the universal judgment that [it] should be restrained . . . .” Id., at 485. Because we assumed—incorrectly, as experience has proved—that obscenity could be separated from other sexually oriented expression without significant costs either to the First Amendment or to the judicial machinery charged with the task of safeguarding First Amendment freedoms, we had no occasion in Roth to probe the asserted state interest in curtailing unprotected, sexually oriented speech. Yet, as we have increasingly come to appreciate the vagueness of the concept of obscenity, we have begun to recognize and articulate the state interests at stake. Significantly, in Redrup v. New York, 386 U. S. 767 (1967), where we set aside findings 106 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. 8. of obscenity with regard to three sets of material, we pointed out that “[i]n none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Massachusetts, 321 U. S. 158; cf. Butler v. Michigan, 352 U. S. 380. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. Alexandria, 341 U. S. 622; Public Utilities Common v. Pollak, 343 U. S. 451. And in none was there evidence of the sort of ‘pandering’ which the Court found significant in Ginzburg v. United States, 383 U. S. 463.” 386 U. S., at 769. See Rowan n. Post Office Dept., 397 U. S. 728 (1970); Stanley v. Georgia, 394 U. S., at 567.²³ The opinions in Redrup and Stanley reflected our emerging view that the state interests in protecting children and in protecting unconsenting adults may stand on a different footing from the other asserted state interests. It may well be, as one commentator has argued, that “exposure to [erotic material] is for some persons an intense emotional experience. A communication of this nature, imposed upon a person contrary to his wishes, ²³ See also Rabe n. Washington, 405 U. S. 313, 317 (1972) (concurring opinion); United States v. Reidel, 402 U. S. 351, 360-362 (1971) (separate opinion); Ginsberg n. New York, 390 U. S. 629 (1968); id., at 674-675 (dissenting opinion); Redmond v. United States, 384 U. S. 264, 265 (1966); Ginzburg v. United States, 383 U. S. 463 (1966); id., at 498 n. 1 (dissenting opinion); Memoirs v. Massachusetts, 383 U. S. 413, 421 n. 8 (1966); Jacobellis v. Ohio, 378 U. S., at 195 (1964) (opinion of Brennan, J., joined by Goldberg, J.); id., at 201 (dissenting opinion). See also Report of the Commission on Obscenity and Pornography 300-301 (1970) (focus of early obscenity laws on protection of youth). PARIS ADULT THEATRE I v. SLATON 107 49 Brennan, J., dissenting has all the characteristics of a physical assault. . . . [And it] constitutes an invasion of his privacy . . . .”²⁴ But cf. Cohen n. California, 403 U. S., at 21-22. Similarly, if children are “not possessed of that full capacity for individual choice which is the presupposition of the First Amendment guarantees,” Ginsberg n. New York, 390 U. S., at 649-650 (Stewart, J., concurring), then the State may have a substantial interest in precluding the flow of obscene materials even to consenting juveniles.²⁵ But cf. id., at 673-674 (Fortas, J., dissenting). But, whatever the strength of the state interests in protecting juveniles and unconsenting adults from exposure to sexually oriented materials, those interests cannot be asserted in defense of the holding of the Georgia Supreme Court in this case. That court assumed for the purposes of its decision that the films in issue were exhibited only to persons over the age of 21 who viewed them willingly and with prior knowledge of the nature of their contents. And on that assumption the state court held that the films could still be suppressed. The justification for the suppression must be found, therefore, in some independent interest in regulating the reading and viewing habits of consenting adults. At the outset it should be noted that virtually all of the interests that might be asserted in defense of suppression, laying aside the special interests associated with distribution to juveniles and unconsenting adults, were also posited in Stanley v. Georgia, supra, where we held that the State could not make the “mere private possession of obscene material a crime.” Id., at 568. That decision presages the conclusions I reach here today. In Stanley we pointed out that “[t]here appears to be ²⁴ T. Emerson, The System of Freedom of Expression 496 (1970). ²⁵ See ibid. 108 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. little empirical basis for” the assertion that “exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence.” Id., at 566 and n. 9.²⁶ In any event, we added that “if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that ‘[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law . . . .’ Whitney v. California, 274 U. S. 357, 378 (1927) (Brandeis, J., concurring).” Id., at 566-567. Moreover, in Stanley we rejected as “wholly inconsistent with the philosophy of the First Amendment,” id., at 566, the notion that there is a legitimate state concern in the “control [of] the moral content of a person’s thoughts,” id., at 565, and we held that a State “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Id., at 566. That is not to say, of course, that a State must remain utterly indifferent to—and take no action bearing on— the morality of the community. The traditional descrip- ²⁶ Indeed, since Stanley was decided, the President’s Commission on Obscenity and Pornography has concluded: “In sum, empirical research designed to clarify the question has found no evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal behavior among youth or adults. The Commission cannot conclude that exposure to erotic materials is a factor in the causation of sex crime or sex delinquency.” Report of the Commission on Obscenity and Pornography 27 (1970) (footnote omitted). To the contrary, the Commission found that “[o]n the positive side, explicit sexual materials are sought as a source of entertainment and information by substantial numbers of American adults. At times, these materials also appear to serve to increase and facilitate constructive communication about sexual matters within marriage ” Id., at 53. PARIS ADULT THEATRE I v. SLATON 109 49 Brennan, J., dissenting tion of state police power does embrace the regulation of morals as well as the health, safety, and general welfare of the citizenry. See, e. g., Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 395 (1926). And much legislation—compulsory public education laws, civil rights laws, even the abolition of capital punishment—is grounded, at least in part, on a concern with the morality of the community. But the State’s interest in regulating morality by suppressing obscenity, while often asserted, remains essentially unfocused and ill defined. And, since the attempt to curtail unprotected speech necessarily spills over into the area of protected speech, the effort to serve this speculative interest through the suppression of obscene material must tread heavily on rights protected by the First Amendment. In Roe v. Wade, 410 U. S. 113 (1973), we held constitutionally invalid a state abortion law, even though we were aware of “the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.” Id., at 116. Like the proscription of abortions, the effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion.²⁷ The existence of these assumptions can ²⁷ See Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Col. L. Rev. 391, 395 (1963). 110 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. not validate a statute that substantially undermines the guarantees of the First Amendment, any more than the existence of similar assumptions on the issue of abortion can validate a statute that infringes the constitutionally protected privacy interests of a pregnant woman. If, as the Court today assumes, “a state legislature may . . . act on the . . . assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior,” ante, at 63, then it is hard to see how state-ordered regimentation of our minds can ever be forestalled. For if a State, in an effort to maintain or create a particular moral tone, may prescribe what its citizens cannot read or cannot see, then it would seem to follow that in pursuit of that same objective a State could decree that its citizens must read certain books or must view certain films. Cf. United States v. Roth, 237 F. 2d 796, 823 (CA2 1956) (Frank, J., concurring). However laudable its goal—and that is obviously a question on which reasonable minds may differ—the State cannot proceed by means that violate the Constitution. The precise point was established a half century ago in Meyer v. Nebraska, 262 U. S. 390 (1923). “That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution—a desirable end cannot be promoted by prohibited means. PARIS ADULT THEATRE I v. SLATON 111 49 Brennan, J., dissenting “For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: ‘That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.’ In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.” Id., at 401-402. Recognizing these principles, we have held that so-called thematic obscenity—obscenity which might persuade the viewer or reader to engage in “obscene” conduct—is not outside the protection of the First Amendment: “It is contended that the State’s action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is 112 OCTOBER TERM, 1972 Brennan, J., dissenting 413U.S. not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 688-689 (1959). Even a legitimate, sharply focused state concern for the morality of the community cannot, in other words, justify an assault on the protections of the First Amendment. Cf. Griswold n. Connecticut, 381 U. S. 479 (1965); Eisenstadt n. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967). Where the state interest in regulation of morality is vague and ill defined, interference with the guarantees of the First Amendment is even more difficult to justify.²⁸ In short, while I cannot say that the interests of the State—apart from the question of juveniles and unconsenting adults—are trivial or nonexistent, I am compelled to conclude that these interests cannot justify the substantial damage to constitutional rights and to this Nation’s judicial machinery that inevitably results ²⁸“[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U. S. 1 (1949); and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Tinker n. Des Moines School District, 393 U. S. 503, 508-509 (1969). See also Cohen v. California, 403 U. S. 15, 23 (1971). PARIS ADULT THEATRE I v. SLATON 113 49 Brennan, J., dissenting from state efforts to bar the distribution even of unprotected material to consenting adults. NAACP n. Alabama, 3T7 U. S. 288, 307 (1964); Cantwell v. Connecticut, 310 U. S., at 304. I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly “obscene” contents. Nothing in this approach precludes those governments from taking action to serve what may be strong and legitimate interests through regulation of the manner of distribution of sexually oriented material. VI Two Terms ago we noted that “there is developing sentiment that adults should have complete freedom to produce, deal in, possess and consume whatever communicative materials may appeal to them and that the law’s involvement with obscenity should be limited to those situations where children are involved or where it is necessary to prevent imposition on unwilling recipients of whatever age. The concepts involved are said to be so elusive and the laws so inherently unenforceable without extravagant expenditures of time and effort by enforcement officers and the courts that basic reassessment is not only wise but essential.” United States v. Reidel, 402 U. S., at 357. Nevertheless, we concluded that “the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances.” Ibid. But the law of obscenity has been fashioned by this Court—and necessarily so under our duty to enforce the Constitution. 114 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. It is surely the duty of this Court, as expounder of the Constitution, to provide a remedy for the present unsatisfactory state of affairs. I do not pretend to have found a complete and infallible answer to what Mr. Justice Harlan called “the intractable obscenity problem.” Interstate Circuit, Inc. v. Dallas, 390 U. S., at 704 (separate opinion). See also Memoirs v. Massachusetts, 383 U. S., at 456 (dissenting opinion). Difficult questions must still be faced, notably in the areas of distribution to juveniles and offensive exposure to unconsenting adults. Whatever the extent of state power to regulate in those areas,²⁹ it should be clear that the view I espouse today would introduce a large measure of clarity to this troubled area, would reduce the institutional pressure on this Court and the rest of the State and Federal Judiciary, and would guarantee fuller freedom of expression while leaving room for the protection of legitimate governmental interests. Since the Supreme Court of Georgia erroneously concluded that the State has power to suppress sexually oriented material even in the absence of distribution to juveniles or exposure to unconsenting adults, I would reverse that judgment and remand the case to that court for further proceedings not inconsistent with this opinion. ²⁹ The Court erroneously states, Miller n. California, ante, at 27, that the author of this opinion “indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults . . . and to juveniles . . . ” I defer expression of my views as to the scope of state power in these areas until cases squarely presenting these questions are before the Court. See n. 9, supra; Miller v. California, supra (dissenting opinion), KAPLAN v. CALIFORNIA 115 Syllabus KAPLAN v. CALIFORNIA CERTIORARI TO THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES No. 71-1422. Argued October 19, 1972—Decided June 21, 1973 Petitioner, a proprietor of an “adult” bookstore, was convicted of violating a California obscenity statute by selling a plain-covered unillustrated book containing repetitively descriptive material of an explicitly sexual nature. Both sides offered testimony as to the nature and content of the book, but there was no “expert” testimony that the book was “utterly without redeeming social importance.” The trial court used a state community standard in applying and construing the statute. The appellate court, affirming, held that the book was not protected by the First Amendment. Held: 1. Obscene material in book form is not entitled to First Amendment protection merely because it has no pictorial content. A State may control commerce in such a book, even distribution to consenting adults, to avoid the deleterious consequences it can reasonably conclude (conclusive proof is not required) result from the continuing circulation of obscene literature. See Paris Adult Theatre I v. Slaton, ante, p. 49. Pp. 118—120. 2. Appraisal of the nature of the book by “the contemporary community standards of the State of California” was an adequate basis for establishing whether the book here involved was obscene. See Miller v. California, ante, p. 15. P. 121. 3. When, as in this case, material is itself placed in evidence, “expert” state testimony as to its allegedly obscene nature, or other ancillary evidence of obscenity, is not constitutionally required. Paris Adzdt Theatre I n. Slaton, supra. P. 121. 4. The case is vacated and remanded so that the state appellate court can determine whether the state obscenity statute satisfies the constitutional standards newly enunciated in Miller, supra. P. 122. 23 Cal. App. 3d Supp. 9, 100 Cal. Rptr. 372, vacated and remanded. Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., would vacate and remand for dismissal of the criminal complaint, post, p. 122. Brennan, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 122. 116 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. Stanley Fleishman argued the cause for petitioner. With him on the briefs were David M. Brown and Sam Rosenwein. Ward Glen McConnell argued the cause for respondent. With him on the brief were Roger Arnebergh and David M. Schacter. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to the Appellate Department of the Superior Court of California for the County of Los Angeles to review the petitioner’s conviction for violation of California statutes regarding obscenity. Petitioner was the proprietor of the Peek-A-Boo Bookstore, one of the approximately 250 “adult” bookstores in the city of Los Angeles, California.¹ On May 14, 1969, in response to citizen complaints, an undercover police officer entered the store and began to peruse several books and magazines. Petitioner advised the officer that the store “was not a library.” The officer then asked petitioner if he had “any good sexy books.” Petitioner replied that “all of our books are sexy” and exhibited a lewd photograph. At petitioner’s recommendation, and after petitioner had read aloud a sample paragraph, the officer purchased the book Suite 69. On the basis of this sale, petitioner was convicted by a jury of violating California Penal Code § 311.2,² a misdemeanor. The book, Suite 69, has a plain cover and contains no pictures. It is made up entirely of repetitive descriptions of physical, sexual conduct, “clinically” explicit ¹The number of these stores was so estimated by both parties at oral argument. These stores purport to bar minors from the premises. In this case there is no evidence that petitioner sold materials to juveniles. Cf. Miller v. California, ante, at 18-20. ² The California Penal Code § 311.2, at the time of the commission of the alleged offense, read in relevant part: “(a) Every person who knowingly: sends or causes to be sent, or KAPLAN v. CALIFORNIA 117 115 Opinion of the Court and offensive to the point of being nauseous; there is only the most tenuous “plot.” Almost every conceivable variety of sexual contact, homosexual and heterosexual, is described. Whether one samples every 5th, 10th, or 20th page, beginning at any point or page at random, the content is unvarying. At trial both sides presented testimony, by persons accepted to be “experts,” as to the content and nature of the book. The book itself was received in evidence, and read, in its entirety, to the jury. Each juror inspected the book. But the State offered no “expert” evidence that the book was “utterly without socially redeeming value,” or any evidence of “national standards.” brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . .” California Penal Code §311, at the time of the commission of the alleged offense, provided as follows: “As used in this chapter: “(a) 'Obscene’ means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance. “(b) 'Matter’ means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials. “(c) 'Person’ means any individual, partnership, firm, association, corporation, or other legal entity. “(d) 'Distribute’ means to transfer possession of, whether with or without consideration. “(e) ‘Knowingly’ means having knowledge that the matter is obscene.” 118 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. On appeal, the Appellate Department of the Superior Court of California for the County of Los Angeles affirmed petitioner’s conviction. Relying on the dissenting opinions in Jacobellis v. Ohio, 378 U. S. 184, 199, 203 (1964), and Mr. Justice White’s dissent in Memoirs v. Massachusetts, 383 U. S. 413, 462 (1966), it concluded that evidence of a “national” standard of obscenity was not required. It also decided that the State did not always have to present “expert” evidence that the book lacked “socially redeeming value,” and that “[i]n light. .. of the circumstances surrounding the sale” and the nature of the book itself, there was sufficient evidence to sustain petitioner’s conviction. Finally, the state court considered petitioner’s argument that the book was not “obscene” as a matter of constitutional law. Pointing out that petitioner was arguing, in part, that all books were constitutionally protected in an absolute sense, it rejected that thesis. On “independent review,” it concluded “Suite 69 appeals to a prurient interest in sex and is beyond the customary limits of candor within the State of California.” It held that the book was not protected by the First Amendment. We agree. This case squarely presents the issue of whether expression by words alone can be legally “obscene” in the sense of being unprotected by the First Amendment.³ When ³ This Court, since Roth n. United States, 354 U. S. 476 (1957), has only once held books to be obscene. That case was Mishkin n. New York, 383 U. S. 502 (1966), and the books involved were very similar in content to Suite 69. But most of the Mishkin books, if not all, were illustrated. See id., at 505, 514-515. Prior to Roth, this Court affirmed, by an equally divided Court, a conviction for sale of an unillustrated book. Doubleday & Co., Inc. v. New York, 335 U. S. 848 (1948). This Court has always rigorously scrutinized judgments involving books for possible violation of First Amendment rights, and has regularly reversed convictions on that basis. See Childs v. Oregon, 401 U. S. 1006 (1971); Walker n. Ohio, 398 U. S. 434 (1970); Keney n. New York, 388 U. S. 440 (1967); Friedman v. New York, 388 U. S. 441 KAPLAN v. CALIFORNIA 119 115 Opinion of the Court the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression. See Roth v. United States, 354 U. S. 476, 481-485 (1957). Obscenity can, of course, manifest itself in conduct, in the pictorial representation of conduct, or in the written and oral description of conduct. The Court has applied similarly conceived First Amendment standards to moving pictures, to photographs, and to words in books. See Freedman n. Maryland, 380 U. S. 51, 57 (1965); Jacobellis v. Ohio, supra, at 187-188; Times Film Corp. v. Chicago, 365 U. S. 43, 46 (1961); id., at 51 (Warren, C. J., dissenting) ; Kingsley Pictures Corp. n. Regents, 360 U. S. 684, 689-690 (1959); Superior Films, Inc. v. Dept, of Education, 346 U. S. 587, 589 (1954) (Douglas, J., concurring) ; Joseph Burstyn, Inc. n. Wilson, 343 U. S. 495/503 (1952). Because of a profound commitment to protecting communication of ideas, any restraint on expression by way of the printed word or in speech stimulates a traditional and emotional response, unlike the response to obscene pictures of flagrant human conduct. A book seems to have a different and preferred place in our hierarchy of values, and so it should be. But this generalization, like so many, is qualified by the book’s content. As with pictures, films, paintings, drawings, and engravings, both oral utterance and the printed word have First Amend- (1967); Sheperd v. New York, 388 U. S. 444 (1967); Avansino v. New York, 388 U. S. 446 (1967); Corinth Publications, Inc. v. Wesberry, 388 U. S. 448 (1967); Books, Inc. v. United States, 388 U. S. 449 (1967); A Quantity of Books n. Kansas, 388 U. S. 452 (1967); Redrup v. New York, 386 U. S. 767 (1967); Memoirs v. Massachusetts, 383 U. S. 413 (1966); Tralins n. Gerstein, 378 U. S. 576 (1964); Grove Press, Inc. n. Gerstein, 378 U. S. 577 (1964); A Quantity of Books v. Kansas, 378 U. S. 205 (1964); Marcus v. Search Warrant, 367 U. S. 717 (1961); Smith v. California, 361 U. S. 147 (1959); Kingsley Books, Inc. n. Brown, 354 U. S. 436 (1957). 120 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. ment protection until they collide with the long-settled position of this Court that obscenity is not protected by the Constitution. Miller v. California, ante, at 23-25; Roth v. United States, supra, at 483-485. For good or ill, a book has a continuing life. It is passed hand to hand, and we can take note of the tendency of widely circulated books of this category to reach the impressionable young and have a continuing impact.⁴ A State could reasonably regard the “hard core” conduct described by Suite 69 as capable of encouraging or causing antisocial behavior, especially in its impact on young people. States need not wait until behavioral experts or educators can provide empirical data before enacting controls of commerce in obscene materials unprotected by the First Amendment or by a constitutional right to privacy. We have noted the power of a legislative body to enact such regulatory laws on the basis of unprovable assumptions. See Paris Adult Theatre I v. Slaton, ante, at 60-63. Prior to trial, petitioner moved to dismiss the complaint on the basis that sale of sexually oriented material to consenting adults is constitutionally protected. In connection with this motion only, the prosecution stipulated that it did not claim that petitioner either disseminated any material to minors or thrust it upon the general public. The trial court denied the motion. Today, this Court, in Paris Adult Theatre I n. Slaton, ante, at 68-69, reaffirms that commercial exposure and sale of obscene materials to anyone, including consenting adults, is subject to state regulation. See also United States v. Orito, post, at 141-144; United States v. 12 200-ft. Reels of Film, post, at 128; United States v. Thirty-seven Photographs, 402 U. S. 363, 376 (1971) (opinion of ⁴ See Paris Adult Theatre I n. Slaton, ante, at 58 n. 7; Report of the Commission on Obscenity and Pornography 401 (1970) (Hill-Link Minority Report). KAPLAN v. CALIFORNIA 121 115 Opinion of the Court White, J.); United States v. Reidel, 402 U. S. 351, 355-356 (1971). The denial of petitioner’s motion was, therefore, not error. At trial the prosecution tendered the book itself into evidence and also tendered, as an expert witness, a police officer in the vice squad. The officer testified to extensive experience with pornographic materials and gave his opinion that Suite 69, taken as a whole, predominantly appealed to the prurient interest of the average person in the State of California, “applying contemporary standards,” and that the book went “substantially beyond the customary limits of candor” in the State of California. The witness explained specifically how the book did so, that it was a purveyor of perverted sex for its own sake. No “expert” state testimony was offered that the book was obscene under “national standards,” or that the book was “utterly without redeeming social importance,” despite “expert” defense testimony to the contrary. In Miller v. California, ante, p. 15, the Court today holds that the “ ‘contemporary community standards of the State of California,’ ” as opposed to “national standards,” are constitutionally adequate to establish whether a work is obscene. We also reject in Paris Adult Theatre I v. Slaton, ante, p. 49, any constitutional need for “expert” testimony on behalf of the prosecution, or for any other ancillary evidence of obscenity, once the allegedly obscene material itself is placed in evidence. Paris Adult Theatre I, ante, at 56. The defense should be free to introduce appropriate expert testimony, see Smith v. California, 361 U. S. 147,164-165 (1959) (Frankfurter, J., concurring), but in “the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question.” Ginzburg n. United States, 383 U. S. 463, 465 (1966). See United States n. Groner, 479 122 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. F. 2d 577, 579-586 (CA5 1973). On the record in this case, the prosecution’s evidence was sufficient, as a matter of federal constitutional law, to support petitioner’s conviction.⁵ Both Miller v. California, supra, and this case involve California obscenity statutes. The judgment of the Appellate Department of the Superior Court of California for the County of Los Angeles is vacated, and the case remanded to that court for further proceedings not inconsistent with this opinion, Miller v. California, supra, and Paris Adult Theatre I n. Slaton, supra. See United States v. 12 200-ft. Reels of Film, post, at 130 n. 7, decided to a^’ Vacated and remanded. Mr. Justice Douglas would vacate and remand for dismissal of the criminal complaint under which petitioner was found guilty because “obscenity” as defined by the California courts and by this Court is too vague to satisfy the requirements of due process. See Miller v. California, ante, p. 37 (Douglas, J., dissenting). Mr. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall join, dissenting. I would reverse the judgment of the Appellate Department of the Superior Court of California and remand the case for further proceedings not inconsistent with my dissenting opinion in Paris Adult Theatre I v. Slaton, ante, p. 73. See my dissent in Miller v. California, ante, p. 47. ⁵ As the prosecution’s introduction of the book itself into evidence was adequate, as a matter of federal constitutional law, to establish the book’s obscenity, we need not consider petitioner’s claim that evidence of pandering was wrongly considered on appeal to support the jury finding of obscenity. Petitioner’s additional claims that his conviction was affirmed on the basis of a “theory” of “pandering” not considered at trial and that he was subjected to retroactive application of a state statute are meritless on the record. UNITED STATES v. 12 200-FT. REELS OF FILM 123 Syllabus UNITED STATES v. 12 200-FT. REELS OF SUPER 8MM. FILM et al. (PALADINI, CLAIMANT) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA No. 70-2. Argued January 19, 1972—Reargued November 7, 1972— Decided June 21, 1973 Congress, which has broad powers under the Commerce Clause to prohibit importation into this country of contraband, may constitutionally proscribe the importation of obscene matter, notwithstanding that the material is for the importer’s private, personal use and possession. Cf. United States v. Orito, post, p. 139. Stanley v. Georgia, 394 U. S. 557, distinguished. The District Court consequently erred in holding 19 U. S. C. § 1305 (a) unconstitutional. This case is remanded to the District Court for reconsideration in light of the First Amendment standards newly enunciated by this Court in Miller n. California, ante, p. 15, which equally apply to federal legislation, and this opinion. Pp. 124-130. Vacated and remanded. Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 130. Brennan, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 138. Solicitor General Griswold reargued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Deputy Solicitor General Greenawalt, and Sidney M. Glazer. Thomas H. Kuchel, by invitation of the Court, 404 U. S. 813, reargued the cause as amicus curiae in support of the judgment below. With him on the brief were Edward Weinberg, George Miron, and Ezra C. Levine* *Briefs of amici curiae urging affirmance were filed by Melvin L. Wulf and Joel M. Gora for the American Civil Liberties Union; by 124 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. Mr. Chief Justice Burger delivered the opinion of the Court. We noted probable jurisdiction to review a summary decision of the United States District Court for the Central District of California holding that § 305(a) of the Tariff Act of 1930, 46 Stat. 688, as amended, 19 U. S. C. § 1305 (a) was “unconstitutional on its face” and dismissing a forfeiture action brought under that statute.¹ The statute provides in pertinent part: “All persons are prohibited from importing into the United States from any foreign country . . . any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral .... No such articles whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the appropriate customs officer that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee, the entire contents of the package in which such articles are contained, shall be subject to seizure and forfeiture as hereinafter provided .... Provided further, That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, Joel Hirschhorn, Ralph J. Schwarz, Jr., and Mel S. Friedman for the First Amendment Lawyers’ Assn.; and by Harvey A. Silver glate for Christopher W. Walker. ¹ The United States brought this direct appeal under 28 U. S. C. § 1252. See Clark v. Gabriel, 393 U. S. 256, 258 (1968). UNITED STATES v. 12 200-FT. REELS OF FILM 125 123 Opinion of the Court in his discretion, admit such classics or books only when imported for noncommercial purposes.” On April 2, 1970, the claimant Paladini sought to carry movie films, color slides, photographs, and other printed and graphic material into the United States from Mexico. The materials were seized as being obscene by customs officers at a port of entry, Los Angeles Airport, and made the subject of a forfeiture action under 19 U. S. C. § 1305 (a). The District Court dismissed the Government’s complaint, relying on the decision of a three-judge district court in United States v. Thirty-seven Photographs, 309 F. Supp. 36 (CD Cal. 1970), which we later reversed, 402 U. S. 363 (1971). That case concerned photographs concededly imported for commercial purposes. The narrow issue directly presented in this case, and not in Thirty-seven Photographs, is whether the United States may constitutionally prohibit importation of obscene material which the importer claims is for private, personal use and possession only.² Import restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations. The Constitution gives Congress broad, comprehensive powers “[t]o regulate Commerce with foreign Nations.” Art. I, § 8, cl. 3. Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry. See United States n. Thirty-seven Photographs, 402 U. S., at 376-377 ² On the day the complaint was dismissed, claimant filed an affidavit with the District Court stating that none of the seized materials “were imported by me for any commercial purpose but were intended to be used and possessed by me personally.” In conjunction with the Government’s motion to stay the order of dismissal, denied below but granted by Mr. Justice Brennan, the Government conceded it had no evidence to contradict claimant’s affidavit and did not “contest the fact that this was a private importation.” 126 OCTOBER, TERM, 1972 Opinion of the Court 413 U. S. (opinion of White, J.); Carroll v. United States, 267 U. S. 132, 154 (1925); Brolan v. United States, 236 U. S. 216, 218 (1915); Boyd v. United States, 116 U. S. 616, 623-624 (1886); Alexander n. United States, 362 F. 2d 379, 382 (CA9), cert, denied, 385 U. S. 977 (1966). The plenary power of Congress to regulate imports is illustrated in a holding of this Court which sustained the validity of an Act of Congress prohibiting the importation of “any film or other pictorial representation of any prize fight . . . designed to be used or [that] may be used for purposes of public exhibition” ³ in view of “the complete power of Congress over foreign commerce and its authority to prohibit the introduction of foreign articles .... Buttfield v. Stranahan, 192 U. S. 470; The Abby Dodge, 223 U. S. 166, 176; Brolan n. United States, 236 U. S. 216.” Weber n. Freed, 239 U. S. 325, 329 (1915). Claimant relies on the First Amendment and our decision in Stanley v. Georgia, 394 U. S. 557 (1969). But it is now well established that obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476, 485 (1957), reaffirmed today in Miller n. California, ante, at 23. As we have noted in United States n. Orito, post, at 141-143, also decided today, Stanley depended, not on any First Amendment right to purchase or possess obscene materials, but on the right to privacy in the home. Three concurring Justices indicated that the case could have been disposed of on Fourth Amendment grounds without reference to the nature of the materials. Stanley v. Georgia, supra, at 569 (Stewart, J., joined by Brennan and White, JJ., concurring). In particular, claimant contends that, under Stanley, the right to possess obscene material in the privacy of ³ Act of July 31, 1912, c. 263, § 1, 37 Stat. 241. UNITED STATES v. 12 200-FT. REELS OF FILM 127 123 Opinion of the Court the home creates a right to acquire it or import it from another country. This overlooks the explicitly narrow and precisely delineated privacy right on which Stanley rests. That holding reflects no more than what Mr. Justice Harlan characterized as the law’s “solicitude to protect the privacies of the life within [the home].” Poe v. Ullman, 367 U. S. 497, 551 (1961) (dissenting opinion).⁴ The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth, or fifth “logical” extension occurs. Each step, when taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance.⁵ This kind of gestative propensity calls for the “line drawing” familiar in the judicial, as in the legislative process: “thus far but not beyond.” Perspectives may change, but our conclusion is that Stanley represents such a line of demarcation; and it is not unreasonable to assume that had it not been so delineated, Stanley would not be the law today. See United States v. Reidel, 402 U. S. 351, 354-356 (1971); id., at 357-360 (Harlan, J., concurring). See also Miller v. United States, 431 F. 2d 655, 657 (CA9 1970); United States v. Fragus, 428 F. 2d ⁴ Nor can claimant rely on any other sphere of constitutionally protected privacy, such as that which encompasses the intimate medical problems of family, marriage, and motherhood. See Paris Adult Theatre I v. Slaton, ante, at 65-67, and United States v. Orito, post, at 142-143. ⁵ Mr. Justice Holmes had this kind of situation in mind when he said: “All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.” Hudson County Water Co. n. McCarter, 209 U. S. 349, 355 (1908). 128 OCTOBER TERM, 1972 Opinion of the Court 413 U. 8. 1211, 1213 (CA5 1970); United States v. Melvin, 419 F. 2d 136, 139 (CA4 1969); Gable v. Jenkins, 309 F. Supp. 998, 1000-1001 (ND Ga. 1969), aff’d, 397 U. S. 592 (1970). Cf. Karalexis v. Byrne, 306 F. Supp. 1363, 1366 (Mass. 1969), vacated on other grounds, 401 U. S. 216 (1971). We are not disposed to extend the precise, carefully limited holding of Stanley to permit importation of admittedly obscene material simply because it is imported for private use only. To allow such a claim would be not unlike compelling the Government to permit importation of prohibited or controlled drugs for private consumption as long as such drugs are not for public distribution or sale. We have already indicated that the protected right to possess obscene material in the privacy of one’s home does not give rise to a correlative right to have someone sell or give it to others. United States n. Thirty-seven Photographs, supra, at 376 (opinion of White, J.), and United States v. Reidel, supra, at 355. Nor is there any correlative right to transport obscene material in interstate commerce. United States v. Orito, post, at 142-144.⁶ It follows that Stanley does not permit one to go abroad and bring such material into the country for private purposes. “Stanley’s emphasis was on the freedom of thought and mind in the privacy of the home. But a port of entry is not ⁶ In Caminetti v. United States, 242 U. S. 470 (1917), and Hoke v. United States, 227 U. S. 308 (1913), this Court upheld the “so-called White Slave Traffic Act, which was construed to punish any person engaged in enticing a woman from one State to another for immoral ends, whether for commercial purposes or otherwise, . . . because it was intended to prevent the use of interstate commerce to facilitate prostitution or concubinage, and other forms of immorality.” Brooks v. United States, 267 U. S. 432, 437 (1925) (emphasis added). UNITED STATES v. 12 200-FT. REELS OF FILM 129 123 Opinion of the Court a traveler’s home.” United States v. Thirty-seven Photographs, supra, at 376 (opinion of White, J.). This is not to say that Congress could not allow an exemption for private use, with or without appropriate guarantees such as bonding, or permit the transportation of obscene material under conditions insuring privacy. But Congress has not seen fit to do so, and the holding in Roth n. United States, supra, read with the narrow holding of Stanley n. Georgia, supra, does not afford a basis for claimant’s arguments. The Constitution does not compel, and Congress has not authorized, an exception for private use of obscene material. See Paris Adult Theatre I v. Slaton, ante, at 64-69; United States v. Reidel, supra, at 357; Memoirs n. Massachusetts, 383 U. S. 413, 462 (1966) (White, J., dissenting). The attack on the overbreadth of the statute is thus foreclosed, but, independently, we should note that it is extremely difficult to control the uses to which obscene material is put once it enters this country. Even single copies, represented to be for personal use, can be quickly and cheaply duplicated by modern technology thus facilitating wide-scale distribution. While it is true that a large volume of obscene material on microfilm could rather easily be smuggled into the United States by mail, or otherwise, and could be enlarged or reproduced for commercial purposes, Congress is not precluded from barring some avenues of illegal importation because avenues exist that are more difficult to regulate. See American Power & Light Co. v. SEC, 329 U. S. 90, 99-100 (1946). As this case came to us on the District Court’s summary dismissal of the forfeiture action, no determination of the obscenity of the materials involved has been made. We have today arrived at standards for testing the constitutionality of state legislation regulating obscenity. 130 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. See Miller v. California, ante, at 23-25. These standards are applicable to federal legislation.⁷ The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion, Miller v. California, supra, and United States v. Orito, supra, both decided today. Vacated and remanded. Mr. Justice Douglas, dissenting. I know of no constitutional way by which a book, tract, paper, postcard, or film may be made contraband because of its contents. The Constitution never purported to give the Federal Government censorship or oversight over literature or artistic productions, save as they might be governed by the Patent and Copyright Clause of Art. I, § 8, cl. 8, of the Constitution.¹ To be ⁷ We further note that, while we must leave to state courts the construction of state legislation, we do have a duty to authoritatively construe federal statutes where “ ‘a serious doubt of constitutionality is raised’ ” and “ 'a construction of the statute is fairly possible by which the question may be avoided.’ ” United States v. Thirtyseven Photographs, 402 U. S. 363,369 (1971) (opinion of White, J.), quoting from Crowell v. Benson, 285 U. S. 22, 62 (1932). If and when such a “serious doubt” is raised as to the vagueness of the words “obscene,” “lewd,” “lascivious,” “filthy,” “indecent,” or “immoral”. as used to describe regulated material in 19 U. S. C. § 1305 (a) and 18 U. S. C. § 1462, see United States v. Orito, post, at 140 n. 1, we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific “hard core” sexual conduct given as examples in Miller y. California, ante, at 25. See United States v. Thirty-seven Photographs, supra, at 369-374 (opinion of White, J.). Of course, Congress could always define other specific “hard core” conduct. ¹Even the copyright power is limited by the freedoms secured by the First Amendment. Lee v. Runge, 404 U. S. 887, 892-893 (Douglas, J., dissenting); Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 U. C. L. A. L. Rev. 1180 (1970). UNITED STATES v. 12 200-FT. REELS OF FILM 131 123 Douglas, J., dissenting sure, the Colonies had enacted statutes which limited the freedom of speech, see Roth v. United States, 354 U. S. 476, 482-484, nn. 10-13, and in the early 19th century the States punished obscene libel as a common-law crime. Knowles v. State, 3 Day 103 (Conn. 1808) (signs depicting “monster”); Commonwealth v. Holmes, 17 Mass. 336 (1821) (John Cleland’s Memoirs of a Woman of Pleasure); State v. Appling, 25 Mo. 315, 316 (1857) (utterance of words “too vulgar to be inserted in this opinion”) ; Commonwealth v. Sharpless, 2 S. & R. 91, 92 (1815) (“lewd, wicked, scandalous, infamous, . . . and indecent posture with a woman”). To construe this history, as this Court does today in Miller v. California, ante, p. 15, as qualifying the plain import of the First Amendment is both a non sequitur and a disregard of the Tenth Amendment. “[W] hatever may [have been] the form which the several States . . . adopted in making declarations in favor of particular rights,” James Madison, the author of the First Amendment, tells us, “the great object in view [was] to limit and qualify the powers of [the Federal] Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.” 1 Annals of Cong. 437. Surely no one should argue that the retention by the States of vestiges of established religions after the enactment of the Establishment and Free Exercise Clauses saps these clauses of their meaning.² Yet it was precisely upon such reasoning that this Court, in Roth, exempted the bawdry from the protection of the First Amendment. ² Thus, the suggestion that most of the States that had ratified the Constitution punished blasphemy or profanity, is irrelevant to our inquiry here. 132 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. When it was enacted, the Bill of Rights applied only to the Federal Government, Barron v. Mayor of Baltimore, 7 Pet. 243, and the Tenth Amendment reserved the residuum of power to the States and the people. That the States, at some later date, may have exercised this reserved power in the form of laws restricting expression in no wise detracts from the express prohibition of the First Amendment. Only when the Fourteenth Amendment was passed did it become even possible to argue that through it the First Amendment became applicable to the States. But that goal was not attained until the ruling of this Court in 1931 that the reach of the Fourteenth Amendment included the First Amendment. See Stromberg v. California, 283 U. S. 359, 368. At the very beginning, however, the First Amendment applied only to the Federal Government and there is not the slightest evidence that the Framers intended to put the newly created federal regime into the role of ombudsman over literature. Tying censorship to the movement of literature or films in interstate commerce or into foreign commerce would have been an easy way for a government of delegated powers to impair the liberty of expression. It was to bar such suppression that we have the First Amendment. I dare say Jefferson and Madison would be appalled at what the Court espouses today. The First Amendment was the product of a robust, not a prudish, age. The four decades prior to its enactment “saw the publication, virtually without molestation from any authority, of two classics of pornographic literature.” D. Loth, The Erotic in Literature 108 (1961). In addition to William King’s The Toast, there was John Cleland’s Memoirs of a Woman of Pleasure which has been described as the “most important work of genuine pornography that has been published in English . . . .” L. Markun, Mrs. Grundy 191 (1930). In England, Harris’ List of Covent Garden Ladies, a catalog UNITED STATES v. 12 200-FT. REELS OF FILM 133 123 Douglas, J., dissenting used by prostitutes to advertise their trade, enjoyed open circulation. N. St. John-Stevas, Obscenity and the Law 25 (1956). Bibliographies of pornographic literature list countless erotic works which were published in this time. See, e. g., A. Craig, Suppressed Books (1963); P. Fraxi, Catena Librorum Tacendorum (1885); W. Gallichan, The Poison of Prudery (1929); D. Loth, supra; L. Markun, supra. This was the age when Benjamin Franklin wrote his “Advice to a Young Man on Choosing a Mistress” and “A Letter to the Royal Academy at Brussels.” “When the United States became a nation, none of the fathers of the country were any more concerned than Franklin with the question of pornography. John Quincy Adams had a strongly puritanical bent for a man of his literary interests, and even he wrote of Tom Jones that it was ‘one of the best novels in the language.’ ” Loth, supra, at 120. It was in this milieu that Madison admonished against any “distinction between the freedom and licentiousness of the press.” S. Padover, The Complete Madison 295 (1953). The Anthony Comstocks, the Thomas Bowdlers and Victorian hypocrisy—the predecessors of our present obscenity laws—had yet to come upon the stage.³ ³ Separating the worthwhile from the worthless has largely been a matter of individual taste because significant governmental sanctions against obscene literature are of relatively recent vintage, not having developed until the Victorian Age of the mid-19th century. N. St. John-Stevas, Obscenity and the Law 1-85 (1956). See T. Emerson, The System of Freedom of Expression 468-469 (1970); J. Paul & M. Schwartz, Federal Censorship, c. 1 (1961); Report of the Commission on Obscenity and Pornography 349-354 (1970). In this country, the first federal prohibition on obscenity was not until the Tariff Act of 1842, c. 270, § 28, 5 Stat. 566. England, which gave us the infamous Star Chamber and a history of licensing of publishing, did not raise a statutory bar to the importation of obscenity until 1853, Customs Consolidation Act, 16 & 17 Viet., c. 107, and waited until 1857 to enact a statute which banned obscene literature outright. Lord Campbell’s Act, 20 & 21 Viet., c. 83. 134 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. Julius Goebel, our leading expert on colonial law, does not so much as allude to punishment of obscenity.⁴ J. Goebel, Development of Legal Institutions (1946); J. Goebel, Felony and Misdemeanor (1937); J. Goebel & T. Naughton, Law Enforcement in Colonial New York (1944). Nor is there any basis in the legal history antedating the First Amendment for the creation of an obscenity exception. Memoirs v. Massachusetts, 383 U. S. 413, 424 (Douglas, J., concurring). The first reported case involving obscene conduct was not until 1663. There, the defendant was fined for “shewing himself naked in a balkony, and throwing down bottles (pist in) vi & armis among the people in Convent Garden, contra pacem, and to the scandal of the Government.” Sir Charles Sydlyes Case, 83 Eng. Rep. 1146-1147 (K. B. 1663). Rather than being a fountainhead for a body of law proscribing obscene literature, later courts viewed this case simply as an instance of assault, criminal breach of the peace, or indecent exposure. E. g., Bradlaugh v. Queen, L. R. 3 Q. B. 569, 634 (1878); Rex n. Curl, 93 Eng. Rep. 849, 851 (K. B. 1727) (Fortescue, J., dissenting). The advent of the printing press spurred censorship in England, but the ribald and the obscene were not, at first, within the scope of that which was officially banned. The censorship of the Star Chamber and the licensing of ⁴ The only colonial statute mentioning the word “obscene” was Acts and Laws of the Province of Mass. Bay, c. CV, §8 (1712), in Mass. Bay Colony Charter & Laws 399 (1814). It did so, however, in the context of “composing, writing, printing or publishing . . . any filthy, obscene, or profane song, pamphlet, libel or mock sermon, in imitation or in mimicking of preaching, or any other part of divine worship” and must, therefore, be placed with the other colonial blasphemy laws. E. g., An Act for the Punishment of divers capital and other Felonies, Conn. Acts, Laws, Charter & Articles of Confederation 66, 67 (1784); Act of 1723, c. 16, § 1, Digest of the Laws of Md. 92 (Herty 1799). UNITED STATES v. 12 200-FT. REELS OF FILM 135 123 Douglas, J., dissenting books under the Tudors and Stuarts was aimed at the blasphemous or heretical, the seditious or treasonous. At that date, the government made no effort to prohibit the dissemination of obscenity. Rather, obscene literature was considered to raise a moral question properly cognizable only by ecclesiastical, and not the common-law, courts.⁵ “A crime that shakes religion (a), as profaneness on the stage, &c. is indictable (b); but writing an obscene book, as that intitled, ‘The Fifteen Plagues of a Maidenhead,’ is not indictable, but punishable only in the Spiritual Court (c).” Queen v. Read, 88 Eng. Rep. 953 (K. B. 1707). To be sure, Read was ultimately overruled and the crime of obscene libel established. Rex v. Curl, supra. It is noteworthy, however, that the only reported cases of obscene libel involved politically unpopular defendants. Ibid.; Rex v. Wilkes, 98 Eng. Rep. 327 (K. B. 1770). In any event, what we said in Bridges v. California, 314 U. S. 252, 264r-265, would dispose of any argument that earlier restrictions on free expression should be read into the First Amendment: “[T]o assume that English common law in this field became ours is to deny the generally accepted historical belief that ‘one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press.’ . . . “More specifically, it is to forget the environment in which the First Amendment was ratified. In presenting the proposals which were later embodied in the Bill of Rights, James Madison, the leader in the preparation of the First Amendment, said: ‘Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, ⁵ Lord Coke’s De Libellis Famosis, 77 Eng. Rep. 250 (1605), for example, was the definitive statement of the mmipnn law of libel but made no mention of the misdemeanor of obscene libel. 136 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution.’ ” This Court has nonetheless engrafted an exception upon the clear meaning of words written in the 18th century. But see ibid.; Grosjean v. American Press Co., 297 U. S. 233, 249. Our efforts to define obscenity have not been productive of meaningful standards. What is “obscene” is highly subjective, varying from judge to judge, from juryman to juryman. “The fireside banter of Chaucer’s Canterbury Pilgrims was disgusting obscenity to Victorian-type moralists whose co-ed granddaughters shock the Victorian-type moralists of today. Words that are obscene in England have not a hint of impropriety in the United States, and vice versa. The English language is full of innocent words and phrases with obscene ancestry.” I. Brant, The Bill of Rights 490 (1965). So speaks our leading First Amendment historian; and he went on to say that this Court’s decisions “seemed to multiply standards instead of creating one.” Id., at 491. The reason is not the inability or mediocrity of judges. “What is the reason for this multiple sclerosis of the judicial faculty? It is due to the fact stated above, that obscenity is a matter of taste and social custom, not of fact.” Id., at 491-492. UNITED STATES v. 12 200-FT. REELS OF FILM 137 123 Douglas, J., dissenting Taste and custom are part of it; but, as I have said on other occasions,® the neuroses of judges, lawmakers, and of the so-called “experts” who have taken the place of Anthony Comstock, also play a major role. Finally, it is ironic to me that in this Nation many pages must be written and many hours spent to explain why a person who can read whatever he desires, Stanley v. Georgia, 394 U. S. 557, may not without violating a law carry that literature in his briefcase or bring it home from abroad. Unless there is that ancillary right, one’s Stanley rights could be realized, as has been suggested, only if one wrote or designed a tract in his attic and printed or processed it in his basement, so as to be able to read it in his study. United States n. Thirty-seven Photographs, 402 U. S. 363, 382 (Black, J., dissenting). Most of the items that come this way denounced as “obscene” are in my view trash. I would find few, if any, that had by my standards any redeeming social value. But what may be trash to me may be prized by others.⁷ Moreover, by what right under the Constitution do five of us have to impose our set of values on the literature of the day? There is danger in that course, the danger of bending the popular mind to new norms of conformity. There is, of course, also danger in tolerance, for tolerance often leads to robust or even ribald productions. Yet that is part of the risk of the First Amendment. Irving Brant summed the matter up: “Blessed with a form of government that requires universal liberty of thought and expression, blessed with a social and economic system built on that ⁶ Ginsberg v. New York, 390 U. S. 629,655-656,661-671 (Douglas, J., dissenting). ⁷ Ginzburg v. United States, 383 U. S. 463, 491 (Douglas, J., dissenting). 138 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. same foundation, the American people have created the danger they fear by denying to themselves the liberties they cherish.” Brant, supra, at 493. Mr. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall join, dissenting. We noted probable jurisdiction to consider the constitutionality of 19 U. S. C. § 1305(a), which prohibits all persons from “importing into the United States from any foreign country . . . any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral.” Pursuant to that provision, customs authorities at Los Angeles seized certain movie films, color slides, photographs, and other materials, which claimant sought to import into the United States. A complaint was filed in the United States District Court for the Central District of California for forfeiture of these items as obscene. Relying on the decision in United States v. Thirty-seven Photographs, 309 F. Supp. 36 (CD Cal. 1969), which held the statute unconstitutional on its face, the District Court dismissed the complaint. Although we subsequently reversed the decision in United States v. Thirty-seven Photographs, 402 U. S. 363 (1971), the reasoning that led us to uphold the statute is no longer viable, under the view expressed in my dissent today in Paris Adult Theatre I v. Slaton, ante, p. 73. Whatever the extent of the Federal Government’s power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is, in my view, clearly overbroad and unconstitutional on its face. See my dissent in Miller v. California, ante, at 47. I would therefore affirm the judgment of the District Court. UNITED STATES v. ORITO 139 Syllabus UNITED STATES v. ORITO APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN No. 70-69. Argued January 19, 1972—Reargued November 7, 1972—Decided June 21, 1973 Appellee was charged with knowingly transporting obscene material by common carrier in interstate commerce, in violation of 18 U. S. C. § 1462. The District Court granted his motion to dismiss, holding the statute unconstitutionally overbroad for failing to distinguish between public and nonpublic transportation. Appellee relies on Stanley n. Georgia, 394 U. S. 557. Held: Congress has the power to prevent obscene material, which is not protected by the First Amendment, from entering the stream of commerce. The zone of privacy that Stanley protected does not extend beyond the home. See United States n. 12 200-ft. Reels of Film, ante, p. 123; Paris Adult Theatre I n. Slaton, ante, p. 49. This case is remanded to the District Court for reconsideration of the sufficiency of the indictment in light of Miller v. California, ante, p. 15; United States n. 12 200-ft. Reels of Film, supra, and this opinion. Pp. 141-145. 338 F. Supp. 308, vacated and remanded. Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 145. Brennan, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 147. Solicitor General Griswold reargued the cause for the United States. With him on the brief were Acting Assistant Attorney General Petersen, Jerome M. Feit, and Roger A. Pauley. R. Kent Greenawalt argued the cause for the United States on the original argument. James M. Shellow reargued the cause for appellee. With him on the brief was James A. Walrath* *Melvin L. Wulf and Joel M. Gora filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance. 140 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. Mr. Chief Justice Burger delivered the opinion of the Court. Appellee Orito was charged in the United States District Court for the Eastern District of Wisconsin with a violation of 18 U. S. C. § 1462¹ in that he did “knowingly transport and carry in interstate commerce from San Francisco ... to Milwaukee ... by means of a common carrier, that is, Trans-World Airlines and North Central Airlines, copies of [specified] obscene, lewd, lascivious, and filthy materials . . . ” The materials specified included some 83 reels of film, with as many as eight to 10 copies of some of the films. Appellee moved to dismiss the indictment on the ground that the statute violated his First and Ninth Amendment rights.² The District Court granted his motion, holding that the statute was unconstitutionally overbroad since it failed to distinguish between “public” and “non-public” transportation of obscene material. The District Court interpreted this Court’s decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Redrup v. New York, 386 U. S. 767 (1967) ; and Stanley v. Georgia, 394 U. S. 557 (1969), to establish ¹ Title 18 U. S. C. § 1462 provides in pertinent part: “Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce— “(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; . . . “Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.” ² Appellee also moved to dismiss the indictment on the grounds that 18 U. S. C. § 1462 does not require proof of scienter. That issue was not reached by the District Court and is not before us now. UNITED STATES v. ORITO 141 139 Opinion of the Court the proposition that “non-public transportation” of obscene material was constitutionally protected.³ Although the District Court held the statute void on its face for overbreadth, it is not clear whether the statute was held to be overbroad because it covered transportation intended solely for the private use of the transporter, or because, regardless of the intended use of the material, the statute extended to “private carriage” or “nonpublic” transportation which in itself involved no risk of exposure to children or unwilling adults. The United States brought this direct appeal under former 18 U. S. C. § 3731 (1964 ed.) now amended, Pub. L. 91-644, § 14 (a), 84 Stat. 1890. See United States v. Spector, 343 U. S. 169, 171 (1952). The District Court erred in striking down 18 U. S. C. § 1462 and dismissing appellee’s indictment on these “privacy” grounds. The essence of appellee’s contentions is that Stanley has firmly established the right to possess obscene material in the privacy of the home and that this creates a correlative right to receive it, transport it, or distribute it. We have rejected that reasoning. This case was decided by the District Court before our decisions in United States v. Thirty-seven Photographs, 402 U. S. 363 (1971), and United States v. Reidel, 402 U. S. 351 (1971). Those holdings negate the idea that some zone of constitutionally protected privacy ³ The District Court stated: “By analogy, it follows that with the right to read obscene matters comes the right to transport or to receive such material when done in a fashion that does not pander it or impose it upon unwilling adults or upon minors. “I find no meaningful distinction between the private possession which was held to be protected in Stanley and the non-public transportation which the statute at bar proscribes.” 338 F. Supp. 308, 310 (1970). 142 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. follows such material when it is moved outside the home area protected by Stanley* United States v. Thirty-seven Photographs, supra, at 376 (opinion of White, J.). United States v. Reidel, supra, at 354-356. See United States v. Zacher, 332 F. Supp. 883, 885-886 (ED Wis. 1971). But cf. United States n. Thirty-seven Photographs, supra, at 379 (Stewart, J., concurring). The Constitution extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, child rearing, and education. See Eisenstadt v. Baird, 405 U. S. 438, 453-454 (1972); Loving v. Virginia, 388 U. S. 1, 12 (1967); Griswold v. Connecticut, supra, at 486; Prince n. Massachusetts, 321 U. S. 158, 166 (1944); Skinner n. Oklahoma, 316 U. S. 535, 541 (1942); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925). But viewing obscene films in a commercial theater open to the adult public, see Paris Adult Theatre I v. Slaton, ante, at 65-67, or transporting such films in common carriers in interstate commerce, has no claim to such special consideration.⁵ It is hardly necessary to catalog the myriad activities that may be lawfully con- ⁴ “These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Stanley v. Georgia, 394 U. S. 557, 565 (1969). (Emphasis added.) ⁵ The Solicitor General indicates that the tariffs of most, if not all, common carriers include a right of inspection. Resorting to common carriers, like entering a place of public accommodation, does not involve the privacies associated with the home. See United States v. Thirty-seven Photographs, 402 U. S. 363, 376 (1971) (opinion of White, J.); United States v. Reidel, 402 U. S. 351, 359-360 (1971) (Harlan, J., concurring); Poe v. Ullman, 367 U. S. 497, 551-552 (1961) (Harlan, J., dissenting); Miller n. United States, 431 F. 2d 655, 657 (CA9 1970); United States v. Melvin, 419 F. 2d 136, 139 (CA4 1969). UNITED STATES v. ORITO 143 139 Opinion of the Court ducted within the privacy and confines of the home, but may be prohibited in public. The Court has consistently rejected constitutional protection for obscene material outside the home. See United States v. 12 200-ft. Reels of Film, ante, at 126-129; Miller v. California, ante, at 23; United States v. Reidel, supra, at 354-356 (opinion of White, J.); id., at 357-360 (Harlan, J., concurring) ; Roth v. United States, 354 U. S. 476, 484-485 (1957). Given (a) that obscene material is not protected under the First Amendment, Miller v. California, supra; Roth v. United States, supra, (b) that the Government has a legitimate interest in protecting the public commercial environment by preventing such material from entering the stream of commerce, see Paris Adult Theatre I, ante, at 57-64, and (c) that no constitutionally protected privacy is involved, United States n. Thirty-seven Photographs, supra, at 376 (opinion of White, J.), we cannot say that the Constitution forbids comprehensive federal regulation of interstate transportation of obscene material merely because such transport may be by private carriage, or because the material is intended for the private use of the transporter. That the transporter has an abstract proprietary power to shield the obscene material from all others and to guard the material with the same privacy as in the home is not controlling. Congress may regulate on the basis of the natural tendency of material in the home being kept private and the contrary tendency once material leaves that area, regardless of a transporter’s professed intent. Congress could reasonably determine such regulation to be necessary to effect permissible federal control of interstate commerce in obscene material, based as that regulation is on a legislatively determined risk of ultimate exposure to juveniles or to the public and the harm that exposure 144 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. could cause. See Paris Adult Theatre I n. Slaton, ante, at 57-63. See also United States v. Alpers, 338 U. S. 680, 681-685 (1950); Brooks v. United States, 267 U. S. 432, 436-437 (1925); Weber v. Freed, 239 U. S. 325, 329-330 (1915). “The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control. McCray v. United States, 195 U. S. 27; Sonzinsky v. United States, 300 U. S. 506, 513 and cases cited.” United States v. Darby, 312 U. S. 100, 115 (1941). “It is sufficient to reiterate the well-settled principle that Congress may impose relevant conditions and requirements on those who use the channels of interstate commerce in order that those channels will not become the means of promoting or spreading evil, whether of a physical, moral or economic nature.” North American Co. n. SEC, 327 U. S. 686, 705 (1946).⁶ ⁶ “Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other States from the State of origin. In doing this it is merely exercising the police power, for the benefit of the public, within the field of interstate commerce, ... In the Lottery Case, 188 U. S. 321, it was held that Congress might pass a law punishing the transmission of lottery tickets from one State to another, in order to prevent the carriage of those tickets to be sold in other States and thus demoralize, through a spread of the gambling habit, individuals who were likely to purchase. ... In Hoke v. United States, 227 U. S. 308 and Caminetti v. United States, 242 U. S. 470, the so-called White Slave Traffic Act, which was construed to punish any person engaged in enticing a woman from one State to another for immoral ends, whether for commercial purposes or otherwise, was valid because it was intended to prevent the use of interstate commerce to facilitate prostitution or concubinage, and other forms of immorality. ... In Weber v. Freed, 239 U. S. 325, it was held that Congress had power to prohibit the importation of pictorial representations of prize fights designed for UNITED STATES v. ORITO 145 139 Douglas, J., dissenting As this case came to us on the District Court’s summary dismissal of the indictment, no determination of the obscenity of the material involved has been made. Today, for the first time since Roth v. United States, supra, we have arrived at standards accepted by a majority of this Court for distinguishing obscene material, unprotected by the First Amendment, from protected free speech. See Miller v. California, ante, at 23-25; United States v. 12 200-ft. Reels of Film, ante, at 130 n. 7. The decision of the District Court is therefore vacated and the case is remanded for reconsideration of the sufficiency of the indictment in light of Miller v. California, supra; United States v. 12 200-ft. Reels, supra; and this opinion. Vacated and remanded. Mr. Justice Douglas, dissenting. We held in Stanley v. Georgia, 394 U. S. 557, that an individual reading or examining “obscene” materials in the privacy of his home is protected against state prosecution by reason of the First Amendment made applicable to the States by reason of the Fourteenth. We said: “These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the public exhibition, because of the demoralizing effect of such exhibitions in the State of destination.” Brooks v. United States, 267 U. S. 432, 436-437 (1925). 146 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. films in the present case are obscene. But we think that mere categorization of these films as ‘obscene’ is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Id., at 565. By that reasoning a person who reads an “obscene” book on an airline or bus or train is protected. So is he who carries an “obscene” book in his pocket during a journey for his intended personal enjoyment. So is he who carries the book in his baggage or has a trucking company move his household effects to a new residence. Yet 18 U. S. C. § 1462* makes such interstate carriage unlawful. Appellee therefore moved to dismiss the indictment on the ground that § 1462 is so broad as to cover “obscene” material designed for personal use. The District Court granted the motion, holding that § 1462 was overbroad and in violation of the First Amendment. The conclusion is too obvious for argument, unless we are to overrule Stanley. I would abide by Stanley and affirm the judgment dismissing the indictment. *“Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce— “(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other mat-ter of indecent character.” UNITED STATES v. ORITO 147 139 Brennan, J., dissenting Mr. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall join, dissenting. We noted probable jurisdiction to consider the constitutionality of 18 U. S. C. § 1462, which makes it a federal offense to “[bring] into the United States, or any place subject to the jurisdiction thereof, or knowingly [use] any express company or other common carrier, for carriage in interstate or foreign commerce—(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character.” Appellee was charged in a one-count indictment with having knowingly transported in interstate commerce over 80 reels of allegedly obscene motion picture film. Relying primarily on our decision in Stanley v. Georgia, 394 U. S. 557 (1969), the United States District Court for the Eastern District of Wisconsin dismissed the indictment, holding the statute unconstitutional on its face: “To prevent the pandering of obscene materials or its exposure to children or to unwilling adults, the government has a substantial and valid interest to bar the non-private transportation of such materials. However, the statute which is now before the court does not so delimit the government’s prerogatives; on its face, it forbids the transportation of obscene materials. Thus, it applies to non-public transportation in the absence of a special governmental interest. The statute is thus overbroad, in violation of the first and ninth amendments, and is therefore unconstitutional.” 338 F. Supp. 308, 311 (ED Wis. 1970). Under the view expressed in my dissent today in Paris Adult Theatre I v. Slaton, ante, p. 73, it is clear that the statute before us cannot stand. Whatever the extent of 148 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. the Federal Government’s power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is clearly overbroad and unconstitutional on its face. See my dissent in Miller v. California, ante, p. 47. I would therefore affirm the judgment of the District Court. COLGROVE v. BATTIN 149 Opinion of the Court COLGROVE v. BATTIN, U. S. DISTRICT JUDGE CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 71-1442. Argued January 17, 1973—Decided June 21, 1973 Local federal court rule providing that a jury for the trial of civil cases shall consist of six persons comports with the Seventh Amendment requirement and the coextensive statutory requirement of 28 U. S. C. § 2072 that the right of trial by jury be preserved in suits at common law, and is not inconsistent with Fed. Rule Civ. Proc. 48 that deals only with parties’ stipulations regarding jury size. Pp. 151-164. 456 F. 2d 1379, affirmed. Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, in which Powell, J., joined, post, p. 165. Marshall, J., filed a dissenting opinion, in which Stewart, J., joined, post, p. 166. Powell, J:, filed a dissenting opinion, post, p. 188. Lloyd J. Skedd argued the cause and filed a brief for petitioner. Cale Crowley argued the cause and filed a brief for respondent.* Mr. Justice Brennan delivered the opinion of the Court. Local Rule 13(d)(1) of the Revised Rules of Procedure of the United States District Court for the District of *Briefs of amici curiae were filed by William A. Wick, Alston Jennings, and John C. Elam for the International Association of Insurance Counsel; by Joseph W. Cotchett, David Daar, Leonard Sacks, Siegfried Hesse, Edward I. Pollock, Theodore A. Horn, and Marvin E. Lewis for the California Trial Lawyers Assn.; by Leonard Boudin and Alan Scheflin for the National Emergency Civil Liberties Committee; and by the Nooter Corp. 150 OCTOBER TERM, 1972 Opinion of the Court 413U.S. Montana provides that a jury for the trial of civil cases shall consist of six persons.¹ When respondent District Court Judge set this diversity case for trial before a jury of six in compliance with the Rule, petitioner sought mandamus from the Court of Appeals for the Ninth Circuit to direct respondent to impanel a 12-mem-ber jury. Petitioner contended that the local Rule (1) violated the Seventh Amendment;² (2) violated the statutory provision, 28 U. S. C. § 2072, that rules “shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment . . ³ xRule 13(d)(1) provides: “A jury for the trial of civil cases shall consist of six persons plus such alternate jurors as may be impaneled.” Similar local rules have been adopted by 54 other federal district courts, at least as to some civil cases. See the appendix to Fisher, The Seventh Amendment and the Common Law: No Magic in Numbers, 56 F. R. D. 507, 535-542 (1973) (the District Court of Delaware has since adopted a rule effective January 1, 1973). In addition, two bills were introduced in the 92d Congress to reduce to six the number of jurors in all federal civil cases. H. R. 7800, 92d Cong., 1st Sess. (1971); H. R. 13496, 92d Cong., 2d Sess. (1972). H. R. 7800, insofar as it related to civil juries, has received the approval of the Committee on the Operation of the Jury System of the Judicial Conference of the United States. 1971 Annual Report of the Director of the Administrative Office of the United States Courts 41. That Conference itself at its March 1971 meeting endorsed “in principle” a reduction in the size of civil juries. Ibid. ² The Seventh Amendment provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” State court decisions have usually turned on the interpretation of state constitutional provisions. See Ann., 47 A. L. R. 3d 895 (1973). ³ Title 28 U. S. C. §2072 provides: “The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the COLGROVE v. BATTIN 151 149 Opinion of the Court and (3) was rendered invalid by Fed. Rule Civ. Proc. 83 because “inconsistent with” Fed. Rule Civ. Proc. 48 that provides for juries of less than 12 when stipulated by the parties.⁴ The Court of Appeals found no merit in these contentions, sustained the validity of local Rule 13 (d) (1), and denied the writ, 456 F. 2d 1379 (1972). We granted certiorari, 409 U. S. 841 (1972). We affirm. I In Williams v. Florida, 399 U. S. 78 (1970), the Court sustained the constitutionality of a Florida statute providing for six-member juries in certain criminal cases. The constitutional challenge rejected in that case relied on the guarantees of jury trial secured the accused by Art. Ill, § 2, cl. 3, of the Constitution and by the Sixth Amendment.⁵ We expressly reserved, however, the ques practice and procedure of the district courts and courts of appeals of the United States in civil actions .... “Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.” ⁴ Fed. Rule Civ. Proc. 48 provides: “The parties may stipulate that the jury shall consist of any number less than twelve or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict- or finding of the jury.” Fed. Rule Civ. Proc. 83 provides: “Each district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with these rules. ... In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.” ⁵ Art. Ill, §2, cl. 3, provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to 152 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. tion whether “additional references to the 'common law’ that occur in the Seventh Amendment might support a different interpretation” with respect to jury trial in civil cases. Id., at 92 n. 30. We conclude that they do not. The pertinent words of the Seventh Amendment are: “In Suits at common law . . . the right of trial by jury shall be preserved . ...”⁶ On its face, this language is not directed to jury characteristics, such as size, but rather defines the kind of cases for which jury trial is preserved, namely, “suits at common law.” And while it is true that “[w]e have almost no direct evidence concerning the intention of the framers of the seventh amendment itself,” ⁷ the historical setting in which the Seventh Amendment was adopted highlighted a controversy that was generated, not by concern for preservation of jury characteristics at common law, but by fear that the civil jury itself would be abolished unless protected in express words. Almost a century and a half ago, this Court recognized that “[o]ne of the strongest a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” ⁶ The reference to “common law” contained in the second clause of the Seventh Amendment is irrelevant to our present inquiry because it deals exclusively with the prohibition contained in that clause against the indirect impairment of the right of trial by jury through judicial re-examination of factfindings of a jury other than as permitted in 1791. Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 657 (1935); Parsons v. Bedford, 3 Pet. 433, 447-448 (1830); 5 J. Moore, Federal Practice T 38.08 [5], pp. 86-90 (2d ed. 1971). ⁷ Henderson, The Background of the Seventh Amendment, 80 Harv. L. Rev. 289, 291 (1966). COLGROVE v. BATTIN 153 149 Opinion of the Court objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases.” Parsons v. Bedford, 3 Pet. 433, 445 (1830). But the omission of a protective clause from the Constitution was not because an effort was not made to include one. On the contrary, a proposal was made to include a provision in the Constitution to guarantee the right of trial by jury in civil cases but the proposal failed because the States varied widely as to the cases in which civil jury trial was provided, and the proponents of a civil jury guarantee found too difficult the task of fashioning words appropriate to cover the different state practices.⁸ The ⁸ See 2 M. Farrand, Records of the Federal Convention 587 (1911). See also Henderson, supra, n. 7, at 292-294. The question of a provision for the protection of the right to trial by jury in civil cases apparently was not presented at the Constitutional Convention until a proposed final draft of the Constitution was reported out of the Committee on Style and Arrangement. At that point, Mr. Williamson of North Carolina “observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it.” 2 Farrand, supra, at 587. This provoked the following discussion: “Mr. Gorham. It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter. “Mr. Gerry urged the necessity of Juries to guard [against] corrupt Judges. He proposed that the Committee last appointed should be directed to provide a clause for securing the trial by Juries. “Col. Mason perceived the difficulty mentioned by Mr. Gorham. The jury cases cannot be specified. A general principle laid down on this and some other points would be sufficient. He wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose . . . .” Ibid. Three days later, a proposal was made by Mr. Gerry and Mr. Pinckney to add the following language to the Art. Ill guarantee of trial by jury in criminal cases: “And a trial by jury shall be pre 154 OCTOBER TERM, 1972 Opinion of the Court 413 U. 8. strong pressures for a civil jury provision in the Bill of Rights encountered the same difficulty. Thus, it was agreed that, with no federal practice to draw on and served as usual in civil cases.” This proposal prompted the following reaction: “Mr. Gorham. The constitution of Juries is different in different States and the trial itself is usual in different cases in different States. “Mr. King urged the same objections. “Genl. Pinckney also. He thought such a clause in the Constitution would be pregnant with embarrassments. “The motion was disagreed to nem. con.” Id., at 628. James Wilson of Pennsylvania defended the omission at the Pennsylvania Convention convened to ratify the Constitution: “The cases open to a jury, differed in the different states; it was therefore impracticable, on that ground, to have made a general rule. The want of uniformity would have rendered any reference to the practice of the states idle and useless: and it could not, with any propriety, be said, that ‘the trial by jury shall be as heretofore:’ since there has never existed any foederal system of jurisprudence, to which the declaration could relate. Besides, it is not in all cases that the trial by jury is adopted in civil questions: for causes depending in courts of admiralty, such as relate to maritime captures, and such as are agitated in the courts of equity, do not require the intervention of that tribunal. How, then, was the line of discrimination to be drawn? The convention found the task too difficult for them; and they left the business as it stands—in the fullest confidence, that no danger would possibly ensue, since the proceedings of the supreme court are'to be regulated by the congress, which is a faithful representation of the people: and the oppression of government is effectually barred, by declaring that in all criminal cases, the trial by jury shall be preserved.” 3 M. Farrand, Records of the Federal Convention 101 (1911). A proponent of a guarantee responded: “The second and most important objection to the federal plan, which Mr. Wilson pretends to be made in a disingenuous form, is the entire abolition of the trial by jury in civil cases. It seems to me that Mr. Wilson’s pretended answer is much more disingenuous than the objection itself .... He says, ‘that the cases open to trial by jury differing in the different States, it was therefore impracticable to have made a general rule.’ This answer is extremely futile, because a reference might easily have been made to the com COLGROVE v. BATTIN 155 149 . Opinion of the Court since state practices varied so widely, any compromising language would necessarily have to be general. As a result, although the Seventh Amendment achieved the primary goal of jury trial adherents to incorporate an explicit constitutional protection of the right of trial by jury in civil cases, the right was limited in general words to “suits at common law.”⁹ We can only conclude, therefore, that by referring to the “common law,” the Framers of the Seventh Amendment were concerned with preserving the right of trial by jury in civil cases where it existed at common law, rather than the various inci mon law of England, which obtains through every State, and cases in the maritime and civil law courts would, of course, be excepted. . . .” Quoted in Henderson, supra, n. 7, at 296-297. See also 1 J. Elliot, The Debates in the Several State Conventions, on the Adoption of the Federal Constitution (2d ed. 1836). ⁹ That the words “common law” were used merely to establish a general rule of trial by jury in civil cases was the view of Mr. Justice Story in the discussion in his Commentaries of the Seventh Amendment and the Judiciary Act of 1789: “The phrase, ‘common law,’ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. The constitution had declared, in the third article, ‘that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority,’ &c., and ‘to all cases of admiralty and maritime jurisdiction.’ It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene; and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find, that the amendment requires, that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that the distinction was present to the minds of the framers of the amendment. By common law they meant, what the constitution denominated in the third article ‘law’ .... And congress seem to have acted with reference to this exposition in the judiciary act of 1789, ch. 20, (which was contemporaneous with the proposal of this amendment;) . . . .” 3 J. Story, Commentaries on the Constitution of the United States 645-646 (1833). 156 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. dents of trial by jury.¹⁰ In short, what was said in Williams with respect to the criminal jury is equally applicable here: constitutional history reveals no intention on the part of the Framers “to equate the constitutional and common-law characteristics of the jury.” 399 U. S., at 99. Consistently with the historical objective of the Seventh Amendment, our decisions have defined the jury right preserved in cases covered by the Amendment, as “the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure . . . .” Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 657 (1935).¹¹ The Amendment, therefore, does not “bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791,” Galloway v. United States, 319 ¹⁰ Constitutional history does not reveal a single instance where concern was expressed for preservation of the traditional number 12. Indeed, James Wilson of Pennsylvania, a member of the Constitutional Convention and later a Justice of this Court, stated: “When I speak of juries, I feel no peculiar predilection for the number twelve . . . .” 2 The Works of James Wilson 503 (R. McCloskey ed. 1967). ¹¹ See also Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv. L. Rev. 669, 671 (1918): “Although the incidents of trial by jury which existed at the time of the adoption of the constitutional guaranty are not thereby abolished, yet those incidents are not necessarily made unalterable. Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature. The question of the constitutionality of any particular modification of the law as to trial by jury resolves itself into a question of what requirements are fundamental and what are unessential, a question which is necessarily, in the last analysis, one of degree. The question, it is submitted, should be approached in a spirit of open-mindedness, of readiness to accept any changes which do not impair the fundamentals of trial by jury. It is a question of substance, not of form.” COLGROVE v. BATTIN 157 149 Opinion of the Court U. S. 372, 390 (1943); see also Ex parte Peterson, 253 U. S. 300, 309 (1920); Walker n. New Mexico & S. P. R. Co., 165 U. S. 593, 596 (1897), and “[n]ew devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. ...” Ex parte Peterson, supra, at 309-310; Funk n. United States, 290 U. S. 371, 382 (1933). Our inquiry turns, then, to whether a jury of 12 is of the substance of the common-law right of trial by jury. Keeping in mind the purpose of the jury trial in criminal cases to prevent government oppression, Williams, 399 U. S., at 100, and, in criminal and civil cases, to assure a fair and equitable resolution of factual issues, Gasoline Products Co. N. Champlin Co., 283 U. S. 494, 498 (1931), the question comes down to whether jury performance is a function of jury size. In Williams, we rejected the notion that “the reliability of the jury as a factfinder . . . [is] a function of its size,” 399 U. S., at 100-101, and nothing has been suggested to lead us to alter that conclusion. Accordingly, we think it cannot be said that 12 members is a substantive aspect of the right of trial by jury. It is true, of course, that several earlier decisions of this Court have made the statement that “trial by jury” means “a trial by a jury of twelve ....” Capital Traction Co. v. Hof, 174 U. S. 1, 13 (1899); see also American Publishing Co. v. Fisher, 166 U. S. 464 (1897); Maxwell v. Dow, 176 U. S. 581, 586 (1900). But in each case, the reference to “a jury of twelve” was clearly dictum and not a decision upon a question presented or litigated. Thus, in Capital Traction Co. v. Hof, supra, the case most often cited, the question presented was whether a civil action brought before a justice of the peace of the District of Columbia was triable by jury, 158 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. and that question turned on whether the justice of the peace was a judge empowered to instruct them on the law and advise them on the facts. Insofar as the Hof statement implied that the Seventh Amendment required a jury of 12, it was at best an assumption. And even if that assumption had support in common-law doctrine,¹² our canvass of the relevant constitutional history, like the history canvassed in Williams concerning the criminal jury, “casts considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law . . . then it was necessarily preserved in the Constitution.” 399 U. S., at 92-93. We cannot, therefore, accord the unsupported dicta of these earlier decisions the authority of decided precedents.¹³ There remains, however, the question whether a jury of six satisfies the Seventh Amendment guarantee of “trial by jury.” We had no difficulty reaching the conclusion in Williams that a jury of six would guarantee an accused the trial by jury secured by Art. Ill and the Sixth Amendment. Significantly, our determination that there was “no discernible difference between the results reached by the two different-sized juries,” 399 U. S., at 101, drew largely upon the results of studies of the operations of juries of six in civil cases.¹⁴ Since then, ¹² Although Williams proceeded on the premise that the commonlaw jury was composed of 12 members, juries of less than 12 were common in this country throughout colonial times. See the cases and statutes cited in Fisher, supra, n. 1, at 529-532. ¹³ See Devitt, The Six Man Jury in the Federal Court, 53 F. R. D. 273, 274 (1971); Augelli, Six-Member Juries in Civil Actions in the Federal Judicial System, 3 Seton Hall L. Rev. 281, 285 (1972); Croake, Memorandum on the Advisability and Constitutionality of Six Man Juries and 5/6 Verdicts in Civil Cases, 44 N. Y. State B. J. 385 (1972). See also Leger v. Westinghouse Electric Corp., 54 F. R. D. 574 (WD La. 1972); contra, Winsby v. John Oster Mjg. Co., 336 F. Supp. 663 (WD Pa. 1972). ¹⁴ Williams v. Florida, 399 U. S. 78, 101 n. 48 (1970). COLGROVE v. BATTIN 159 149 Opinion of the Court much has been written about the six-member jury, but nothing that persuades us to depart from the conclusion reached in Williams.¹⁵ Thus, while we express no view ¹⁵ Arguments, pro and con, on the effectiveness of a jury of six compared to a jury of 12 will be found in Devitt, supra, n. 13; Augelli, supra, n. 13; Croake, supra, n. 13; Fisher, supra, n. 1; Bogue & Fritz, The Six-Man Jury, 17 S. D. L. Rev. 285 (1972); Moss, The Twelve Member Jury in Massachusetts—Can it be Reduced?, 56 Mass. L. Q. 65 (1971); Zeisel, . . . And Then There Were None: The Diminution of the Federal Jury, 38 U. Chi. L. Rev. 710 (1971); Zeisel, The Waning of the American Jury, 58 A. B. A. J. 367 (1972); Gibbons, The New Minijuries: Panacea or Pandora’s Box?, 58 A. B. A. J. 594 (1972); Kaufman, The Harbingers of Jury Reform, 58 A. B. A. J. 695 (1972); Whalen, Remarks on Resolution of 7th Amendment Jury Trial Requirement, 54 F. R. D. 148 (1972); Note, Right to Twelve-Man Jury, 84 Harv. L. Rev. 165 (1970); Note, Reducing the Size of Juries, 5 U. Mich. J. L. Reform 87 (1971); Note, The Effect of Jury Size on the Probability of Conviction: An Evaluation of Williams v. Florida, 22 Case W. Res. L. Rev. 529 (1971); Comment, Defendant’s Right to a Jury Trial—Is Six Enough?, 59 Ky. L. J. 997 (1971). Professor Zeisel has suggested that the six-member jury is more limited than the 12-member jury in representing the full spectrum of the community, and this in turn may result in differences between the verdicts reached by the two panels. Zeisel, supra, 38 U. Chi. L. Rev., at 716-719. On the other hand, one study suggests that the decrease in the size of the jury from 12 to six is conducive to a more open discussion among the jurors, thereby improving the quality of the deliberative process. Note, supra, 5 U. Mich. J. L. Reform, at 99-106. See also C. Joiner, Civil Justice and the Jury 31, 83 (1962) (concluding prior to Williams that the deliberative process should be the same in either six- or 12-member juries). In addition, four very recent studies have provided convincing empirical evidence of the correctness of the Williams conclusion that “there is no discernible difference between the results reached by the two different-sized juries.” Note, Six-Member and Twelve-Member Juries: An Empirical Study of Trial Results, 6 U. Mich. J. L. Reform 671 (1973); Institute of Judicial Administration, A Comparison of Six- and Twelve-Member Civil Juries in New Jersey Superior and County Courts (1972); Note, An Empirical Study of 160 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. as to whether any number less than six would suffice,¹⁶ we conclude that a jury of six satisfies the Seventh Amendment’s guarantee of trial by jury in civil cases.¹⁷ Six- and Twelve-Member Jury Decision-Making Processes, 6 U. Mich. J. L. Reform 712 (1973); Bermant & Coppock, Outcomes of Six-and Twelve-Member Jury Trials: An Analysis of 128 Civil Cases in the State of Washington, 48 Wash. L. Rev. 593 (1973). ¹⁶ What is required for a “jury” is a number large enough to facilitate group deliberation combined with a likelihood of obtaining a representative cross section of the community. Williams v. Florida, 399 U. S., at 100. It is undoubtedly true that at some point the number becomes too small to accomplish these goals, but, on the basis of presently available data, that cannot be concluded as to the number six. See Tamm, A Proposal for Five-Member Civil Juries in the Federal Courts, 50 A. B. A. J. 162 (1964); Tamm, The Five-Man Civil Jury: A Proposed Constitutional Amendment, 51 Geo. L. J. 120 (1962). ¹⁷ My Brother Marshall argues in dissent that the various incidents of trial by jury as they existed at common law are immutably saved by the Seventh Amendment’s use of the word “preserved.” But obviously the Amendment commands only that the right of trial by jury be “preserved.” Since a jury of 12 is, as has been shown, not of the substance of the common-law right of trial by jury and since there is “no discernible difference between the results reached by the two different-sized juries,” Williams v. Florida, supra, at 101, the use of a six-member civil jury does not impair the right “preserved” by the Seventh Amendment. Indeed, as my Brother Marshall himself recognizes, post, at 179, several devices designed to improve the jury system and unknown to the common law have been approved by this Court over the years. See also Henderson, supra, n. 7; Scott, supra, n. 11. In each case, the determining factor was that the new device did not impair the right preserved by the Seventh Amendment. As Mr. Justice Brandeis aptly stated in response to the argument that a federal court was prevented by the Seventh Amendment from utilizing a special master because it would infringe upon the right of trial by jury: “The command of the Seventh Amendment that ‘the right of trial by jury shall be preserved’ . . . does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence. Changes COLGROVE v. BATTIN 161 149 Opinion of the Court II The statute, 28 U. S. C. § 2072, authorizes this Court to promulgate the Federal Rules of Civil Procedure but provides that “[s]uch rules . . . shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.” ¹⁸ Petitioner argues that in securing trial by jury “as at common law” and also “as declared by the Seventh Amendment,” Congress meant to provide a jury having the characteristics of the common-law jury even if the Seventh Amendment did not require a jury with those characteristics. As the Court of Appeals observed, “ [t]his would indeed be a sweeping limitation.” 456 F. 2d, at 1380. Petitioner would impute to Congress an intention to saddle archaic and presently unworkable common-law procedures upon the federal courts ¹⁹ and thereby to nullify innovative changes approved by this Court over the years that have now become commonplace and, for in these may be made. New devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. Indeed, such changes are essential to the preservation of the right. The limitation imposed by the Amendment is merely that enjoyment of the right of trial by jury be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with.” Ex parte Peterson, 253 U. S. 300, 309-310 (1920). ¹⁸ Section 2072 is in terms applicable only to the general Federal Rules of Civil Procedure prescribed by this Court. However, 28 U. S. C. § 2071, which authorizes federal district courts to prescribe local rules of practice and procedure, see Part III, infra, requires such rules to be “consistent with Acts of Congress” as well as the general Federal Rules. Thus, if § 2072 prohibits a jury of less than 12, the local rule in question would conflict with an Act of Congress and would therefore be invalid. See 3A W. Barron & A. Holtzoff, Federal Practice and Procedure § 1171, p. 179 (C. Wright ed. 1958). ¹⁹ See Henderson, supra, n. 7; Scott, supra, n. 11. 162 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. all practical purposes, “essential to the preservation of the right” of trial by jury in our modern society. Ex parte Peterson, 253 U. S., at 310; Galloway v. United States, 319 U. S., at 390-391. For to say that Congress chose this means to render our system of civil jury trial immutable as of 1791, or some other date, is to say the Congress meant to deny the judiciary the “flexibility and capacity for growth and adaptation [which] is the peculiar boast and excellence of the common law.” Hurtado n. California, 110 U. S. 516, 530 (1884); Funk n. United States, 290 U. S., at 382. But petitioner’s extravagant contention has not the slightest support in the legislative history of the provision. Section 2072 is derived from the Enabling Act of 1934, 48 Stat. 1064.²⁰ Section 2 of that Act gave this Court the “power to unite the general rules prescribed . . . for cases in equity with those in actions at law so as to secure one form of civil action and procedure for both.” H. R. Rep. No. 1829, 73d Cong., 2d Sess., 1 (1934). As emphasized by the Court of Appeals, the language of § 2 preserving the right of trial by jury was included “to assure that with such union [of law and equity] the right of trial by jury would be neither expanded nor contracted.” 456 F. 2d, at 1381, citing 5 J. Moore, Federal Practice fl 38.06, p. 44 (2d ed. 1971). See also Cooley v. Strickland Transportation Co., 459 F. 2d 779, 785 (CA5 1972). In other words, Congress used the language in question for the sole purpose of creating a statutory right coextensive with that under the Seventh ²⁰ See 5 J.'Moore, Federal Practice T[ 38.06 (2d ed. 1971). The pertinent provisions of the Enabling Act of 1934 were carried forward by the codifying act of 1948, 62 Stat. 961, and later became § 2072 of the Judicial Code, 28 U. S. C. § 1 et seq. Section 2072 has been amended several times since 1947, but none of the amendments is relevant to our present discussion. COLGROVE v. BATTIN 163 149 Opinion of the Court Amendment itself.²¹ If Congress had meant to prescribe a jury number or to legislate common-law features generally, “it knew how to use express language to that effect.²¹ Williams v. Florida, 399 U. S., at 97. Ill Petitioner’s argument that local Rule 13(d)(1)²² is inconsistent with Fed. Rule Civ. Proc. 48 rests on the proposition that Rule 48 implies a direction to impanel a jury of 12 in the absence of a stipulation of the parties for a lesser number. Rule 48 was drafted at the time the statement in Capital Traction Co. n. Hof, supra, that trial by jury means a “jury of twelve,” was generally accepted. Plainly the assumption of the draftsmen that such was the case cannot be transmuted into an implied direction to impanel juries of 12 without regard to whether a jury of 12 was required by the Seventh Amendment. Our conclusion that the Hof statement lacks precedential weight leaves Rule 48 without the support even of the draftsmen’s assumption and thus there is nothing in the Rule with which the local Rule is inconsistent.²³ ²¹ Cf. Sibbach v. Wilson & Co., 312 U. S. 1, 10 (1941): “The second [proviso of the Enabling Act of 1934] is that if the rules are to prescribe a single form of action for cases at law and suits in equity, the constitutional right to jury trial inherent in the former must be preserved.” ²² This Rule was adopted pursuant to Fed. Rule Civ. Proc. 83, which in turn is derived from 28 U. S. C. § 2071: “The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall.be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court.” ²³ An amicus argues that the local Rule is invalid under our decision in Miner v. Atlass, 363 U. S. 641 (1960). That argument is misplaced. Miner struck down a local rule authorizing discoverydeposition practice in admiralty cases. A court of admiralty had 164 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. See Cooley v. Strickland Transportation Co., supra, at 783-785; Devitt, The Six Man Jury in the Federal Court, 53 F. R. D. 273, 274 n. 1 (1971). Similarly, we reject the argument that the local Rule conflicts with Rule 48 because it deprives petitioner of the right to stipulate to a jury of “any number less than twelve.” Aside from the fact that there is no indication in the record that petitioner ever sought a jury of less than 12, Rule 48 “deals only with a stipulation by ‘\t]he parties.’ It does not purport to prevent court rules which provide for civil juries of reduced size.” Cooley v. Strickland Transportation Co., supra, at 784. Affirmed. no inherent power, independent of statute or rule, to order the taking of depositions for the purpose of discovery. In 1939, this Court omitted this “basic procedural innovation” from among the Civil Rules adopted as part of the Admiralty Rules. Miner held that this omission “must be taken as an advertent declination of the opportunity to institute the discovery-deposition procedure of Civil Rule 26 (a) throughout courts of admiralty,” id., at 648, and therefore, for this and additional reasons stated in the opinion, that the local rule “is not consistent with the present General Admiralty Rules . . . .” Id., at 647. In contrast, we hold in this case that Local Rule 13 (d)(1) is not inconsistent with Fed. Rule Civ. Proc. 48. Amicus also suggests that Miner should be read to hold that all “basic procedural innovations” are beyond local rulemaking power and are exclusively matters for general rulemaking. We need not consider the suggestion because, in any event, we conclude that the requirement of a six-member jury is not a “basic procedural innovation.” The “basic procedural innovations” to which Miner referred are those aspects of the litigatory process which bear upon the ultimate outcome of the litigation and thus, “though concededly ‘procedural,’ may be of as great importance to litigants as many a ‘substantive’ doctrine . _. . .” 363 U. S., at 650. Since there has been shown to be “no discernible difference between the results reached by the two different-sized juries,” Williams v. Florida, supra, at 101 (see also n. 15, supra), a reduction in the size of the civil jury from 12 to six plainly does not bear on the ultimate outcome of the litigation. COLGROVE v. BATTIN 165 149 Douglas, J., dissenting Mr. Justice Douglas, with whom Mr. Justice Powell concurs, dissenting. Rule 13(d)(1) of the Revised Rules of Procedure of the United States District Court for the District of Montana provides: “A jury for the trial of civil cases shall consist of six persons . . . .” Federal Rule Civ. Proc. 48—which came into being as a result of a recommendation of this Court to Congress which Congress did not reject*—rests on a federal statute. The two Rules do not mesh; they collide. Rule 48 says that the only way to obtain a trial with less than 12 jurors or a verdict short of a unanimous one is by stipulation. As Mr. Justice Marshall makes clear in his dissent, while the parties under Rule 48 could stipulate for trial by an 11-man jury, under the Montana District Court rule only six jurors could be required. Since all apparently agree that the framers of Rule 48 presumed there would be a jury of 12 in the absence of stipulation, the only authority which could reduce 12 to six would be the authority that created Rule 48. Neither we nor the District Court, nor the Judicial Conference, nor a circuit court council has the authority to make that change. Whether the change, if made, would be constitutional is a question I therefore do not reach. *At the time the Rules of Civil Procedure became effective they had to be submitted to Congress by the Court and Congress had 90 days to reject them. 28 U. S. C. § 2072. At that time § 2072 provided that these Rules “shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.” It seems clear beyond peradventure that the draftsmen thought a jury of 12 was required, save as the parties by stipulation waived that right by stipulating to a lesser number. 166 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. Mr. Justice Marshall, with whom Mr. Justice Stewart joins, dissenting. Some 30 years ago, Mr. Justice Black warned his Brethren against the “gradual process of judicial erosion which . . . has slowly worn away a major portion of the essential guarantee of the Seventh Amendment.” Galloway v. United States, 319 U. S. 372, 397 (1943) (dissenting opinion). Today, the erosion process reaches bedrock. In the past, this Court has sanctioned changes in “mere matters of form or procedure” in jury trials, Baltimore & Carolina Line, Inc. n. Redman, 295 U. S. 654, 657 (1935), and in “pleading or practice” before juries, Walker v. New Mexico & S. P. R. Co., 165 U. S. 593, 596 (1897). But before today, we had always insisted that “[w] hatever may be true as to legislation which changes any mere details of a jury trial, it is clear that a statute which destroys [a] substantial and essential feature thereof is one abridging the right.” American Publishing Co. v. Fisher, 166 U. S. 464, 468 (1897). See also Dimick n. Schiedt, 293 U. S. 474 (1935); Capital Traction Co. v. Hof, 174 U. S. 1 (1899). Now, however, my Brethren mount a frontal assault on the very nature of the civil jury as that concept has been understood for some seven hundred years. No one need be fooled by reference to the six-man trier of fact utilized in the District Court for the District of Montana as a “jury.” This six-man mutation is no more a “jury” than the panel of three judges condemned in Baldwin v. New York, 399 U. S. 66 (1970), or the 12 laymen instructed by a justice of the peace outlawed in Capital Traction Co. v. Hof, supra. We deal here not with some minor tinkering with the role of the civil jury, but with its wholesale abolition and replacement with a different institution which functions differently, produces different COLGROVE v. BATTIN 167 149 Marshall, J., dissenting results,¹ and was wholly unknown to the Framers of the Seventh Amendment.² In my judgment, if such a radical restructuring of the ¹ Although I consider it ultimately irrelevant to the constitutional issue, see infra, at 180, it is still of some interest that variations in jury size do seem to produce variations in function and result. It is, of course, intuitively obvious that the smaller the size of the jury, the less likely it is to represent a fair cross-section of community viewpoints. What is less obvious but nonetheless statistically demonstrable is that the difference between a 12-man and six-man jury in this respect is quite dramatic and likely to produce different results. Professor Zeisel, perhaps our leading authority on the civil jury, has demonstrated this fact through use of a model in which he assumes that 90% of a hypothetical community shares the same viewpoint, while 10% has a different viewpoint. Of 100 12-man juries picked randomly from such a community, 72 would have at least one member of the minority group, while of the 100 six-man juries so selected, only 47 would have minority representation. Moreover, the differences in minority representation produce significant differences in result. Professor Zeisel posits a case in which the community is divided into six groups of equal size with respect to the monetary value they place on a given personal injury claim, with one-sixth evaluating the claim at $1,000, another sixth at $2,000, etc. He also assumes that the damages a jury will award lie close to the average assessment of the damages each individual juror would choose. If one accepts these hypotheses, “ [i]t is easy to see that the six-member juries show a considerably wider variation of 'verdicts’ than the twelve-member juries. For instance, 68.4% of the twelve-member jury evaluations fall between $3,000 and $4,000, while only 51.4% of the six-member jury evaluations fall in this range. Almost 16% of the six-member juries will reach verdicts that will fall into the extreme levels of more than $4,500 or less than $2,500, as against only a little over 4% of the 'twelve-member juries. The appropriate statistical measure of this variation is the so-called standard deviation. The actual distribution pattern will always depend on the kind of stratification that is relevant in a particular case but, whatever the circumstances, the six-member jury will always have a standard deviation that is greater by about 42%. This is the result of a more general principle [Footnote 2 is on p. 168} 168 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. judicial process is deemed wise or necessary, it should be accomplished by constitutional amendment. See, e. g., Tamm, The Five-Man Civil Jury: A Proposed Constitutional Amendment, 51 Geo. L. J. 120 (1962). It appears, however, that the common-law jury is destined to expire, not with a bang, but a whimper. The proponents of the six-man jury have not secured the approval of two-thirds of both Houses of Congress and three-fourths of the state legislatures for their proposal. Indeed, they have not even secured the passage of simple legislation to accomplish their goal. Instead, they have relied upon the interstitial rulemaking power of the majority of the district court judges sitting in a particular district to rewrite the ancient definition of a civil jury.³ They have done so, moreover, in the teeth of an Act of Congress and a Federal Rule promulgated by this Court that is by now well known to readers of such statistics as public opinion polls—namely, that the size of any sample is inversely related to its margin of error.” Zeisel, . . . And Then There Were None: The Diminution of the Federal Jury, 38 U. Chi. L. Rev. 710, 717-718 (1971). ² See infra, at 176-177. ³ Even in the absence of constitutional difficulties, I view this course as an improper use of the local rulemaking power. In Miner v. Atlass, we held that the statutory procedures surrounding the rulemaking process were “designed to insure that basic procedural innovations shall be introduced only after mature consideration of informed opinion from all relevant quarters, with all the opportunities for comprehensive and integrated treatment which such consideration affords.” 363 U. S. 641, 650 (1960). We therefore declined to construe the local rulemaking power as extending to such innovations. Ibid. The Court seeks to escape the force of this precedent with the assertion that “the requirement of a six-member jury is not a ‘basic procedural innovation.’ ” I find this statement startling to say the least. Whatever one’s view of the constitutionality of six-man juries, surely it cannot be doubted that this shift in a practice of seven hundred years’ standing, likely to affect the outcome of hundreds of cases, see n. 1, supra, and infra, at 177, constitutes a “basic procedural innovation.” COLGROVE v. BATTIN 169 149 Marshall, J., dissenting which, in my judgment, were designed to guarantee the 12-man civil jury. By approving this mode of procedure, the Court turns the so-called “clear statement” rule on its head. Instead of requiring a clear statement from Congress when it legislates at the limit of its constitutional powers, see, e. g., Crowell v. Benson, 285 U. S. 22, 62 (1932), my Brethren approve a departure from settled constitutional understanding despite a clear statement from Congress that it intended no such thing. I must respectfully dissent. I At the outset, it should be noted that the constitutional issue in this case is not settled by the prior decisions of this Court upholding nonunanimous and six-man criminal juries. See Apodaca v. Oregon, 406 U. S. 404 (1972); Johnson v. Louisiana, 406 U. S. 356 (1972); Williams v. Florida, 399 U. S. 78 (1970). This is true for at least three reasons. First, Apodaca, Johnson, and Williams all involved state trials and, therefore, the requirements of the Fourteenth Amendment rather than the Sixth. This case is, of course, distinguishable in that it deals with a federal trial and, therefore, with Bill of Rights guarantees which are directly applicable, rather than applicable only through the incorporation process.⁴ Thus, neither Apodaca, Johnson, nor Williams squarely presented the Court with the problem of defining the meaning of jury trial in a federal context.⁵ Indeed, as ⁴ Indeed, the Seventh Amendment is one of the few remaining provisions in the Bill of Rights which has not been held to be applicable to the States. See, e. g., Hardware Dealers Mutual Fire Ins. Co. v. Glidden Co., 284 U. S. 151, 158 (1931); Wagner Electric Mjg. Co. v. Lyndon, 262 U. S. 226, 232 (1923). ⁵ The author of this opinion believes that the Fourteenth Amendment was intended to incorporate fully Sixth Amendment guarantees. 170 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. my Brother Powell’s concurring opinion in Apodaca and Johnson makes plain, there were, as of last Term at least, five Members of this Court who thought that the Sixth Amendment required unanimous jury verdicts in federal cases. See also Johnson n. Louisiana, supra, at 395 (Brennan, J., dissenting). Mr. Justice Powell argued in that opinion that the “process of determining the content of the Sixth Amendment right to jury trial has long been one of careful evaluation of, and strict adherence to the limitations on, that right as it was known in criminal trials at common law.” Id., at 370 n. 6 He concluded that the Sixth Amendment required unanimous federal juries because “[a]t the time the Bill of Rights was adopted, unanimity had long been established as one of the attributes of a jury conviction at common law.” Id., at 371. See also Williams n. Florida, supra, at 123-125 (opinion of Harlan, J.). It is apparently uncontested that in 1791, common-law civil juries consisted of 12 men. See infra, at 177. Thus, to the extent that Sixth Amendment precedent is applicable to Seventh Amendment problems, Johnson and Apodaca would seem to cut strongly in favor of a 12-man jury requirement in federal court, rather than against such a requirement. Moreover, even if it is assumed that the holdings in Apodaca, Williams, and Johnson are readily transferable to a federal context, it still does not follow that the definitions of trial by jury for purposes of the Sixth and Seventh Amendments are necessarily coextensive. The two Amendments use different language and they guarantee different rights. Indeed, as the Williams court itself recognized, the approval of six-man juries in crim See Duncan v. Louisiana, 391 U. S. 145 (1968). Nonetheless, the fact remains that this Court has yet to decide the issues posed by majority verdicts and six-man juries in a purely Sixth Amendment context. COLGROVE v. BATTIN 171 149 Marshall, J., dissenting inal cases did not resolve “whether, for example, additional references to the ‘common law’ that occur in the Seventh Amendment might support a different interpretation.” 399 U. S., at 92 n. 30. The Court today goes to great lengths to show that the reference in the Seventh Amendment to “Suits at common law” speaks only to the type of suit in which a jury is required, not to the type of jury which is required in such suits. However, my brethren totally ignore another textual difference between the Sixth and Seventh Amendments which I consider to be of at least equal significance. Whereas the Sixth Amendment refers only to “an impartial jury,” the Seventh Amendment states that “the right of trial by jury shall be preserved” (emphasis added). The Seventh Amendment’s additional reference to the preservation of the right strongly suggests that the content of that right is to be judged by historical standards. Certainly, that has been this Court’s understanding in the past. In Dimick v. Schiedt, for example, the Court held that the Seventh Amendment “in effect adopted the rules of the common law, in respect of trial by jury, as these rules existed in 1791,” 293 U. S., at 487, and the dissent agreed that the purpose of the Seventh Amendment was “to preserve the essentials of the jury trial as it was known to the common law before the adoption of the Constitution.” Id., at 490. In Baltimore & Carolina Line, Inc. v. Redman, the Court held that the “right of trial by jury thus preserved [by the Seventh Amendment] is the right which existed under the English common law when the Amendment was adopted.” 295 U. S., at 657. And in American Publishing Co. v. Fisher, the Court held that what was guaranteed by the Seventh Amendment was “the peculiar and essential features of trial by jury at the common law.” 166 U. S., at 468. It should therefore be 172 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. clear that, whereas the words of the Sixth Amendment might be read as permitting a functional approach which measures “Sixth Amendment values,” the Seventh Amendment requires a historical analysis geared toward determination of what the institution was in 1791 which the Framers intended to “preserve.” See also Slocum v. New York Life Ins. Co., 228 U. S. 364 (1913); Capital Traction Co. v. Hof, 174 U. S. 1 (1899). Finally, it is important to note that, whereas the legislative history of the Sixth Amendment tended to support the Court’s decision in favor of six-man criminal juries, it is at best ambiguous in the Seventh Amendment context. As the Court pointed out in Williams, the Sixth Amendment as originally introduced by James Madison in the House provided “[t]he trial of all crimes . . . shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites.” 1 Annals of Cong. 435 (1789) (emphasis added). The Amendment passed the House in this form, but when it reached the Senate, that body expressly rejected the “accustomed requisites” language, see Senate Journal, Sept. 9, 1789, 1st Cong., 1st Sess., 77, and the Amendment as ultimately adopted contained no reference to the common-law features of jury trial. In contrast, the history of the Seventh Amendment contains no express rejection of language which would fix the common-law attributes of the civil jury. Indeed, as the Court itself recognizes, the extant history of the Amendment is exceedingly sketchy. See generally Henderson, The Background of the Seventh Amendment, 80 Harv. L. Rev. 289 (1966). Undeterred by the absence of source material, however, my Brethren concoct an elaborate theory designed to demonstrate that the Framers did not intend to fix the nature of the civil jury as it existed at common law. As I read the COLGROVE v. BATTIN 173 149 Marshall, J., dissenting majority opinion, the theory is based on the following syllogism: 1. The delegates to the Constitutional Convention considered a clause which would have protected the right to a civil jury, but declined to adopt such a provision because state practice varied widely as to the cases in which a civil jury was provided. 2. When the Seventh Amendment was passed, Congress overrode the arguments of those opposed to a constitutional jury guarantee and decided to provide a federal right of jury trial despite differences between the States as to when jury rights attached. 3. Therefore, in the words of the Court “[w]e can only conclude . . . that . . . the Framers of the Seventh Amendment were concerned with preserving the right of trial by jury in civil cases where it existed at common law, rather than the various incidents of trial by jury.” It hardly requires demonstration that this “logic” rests on the flimsiest of inferences. It simply does not follow that because the Amendment was, at one stage rejected because of disparities among the States in the instances in which the jury right attached, its scope is therefore limited to the surmounting of these disparities. Indeed, the opposite conclusion is equally plausible. One could argue that, whereas there was dispute as to the cases in which the jury-trial right would attach, it was common ground between opponents and proponents of the measure that when it did attach, its incidents would be as at common law. Thus, whatever the meaning of the Amendment as to jury usage, the nature of the jury is, by this argument, at its core and agreed to by all parties. Moreover, even if the Court’s chain of reasoning were correct, the argument would still fall, since it is grounded on a faulty major premise. True, the opponents of a jury guarantee at the Constitutional Convention rested 174 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. their argument in part on the varying practice in the States as to the cases in which the right of jury trial attached. But a more detailed examination of the debates than the Court’s highly selective quotations permit makes clear that the opponents also rested on the differences in the characteristics of jury trial between the States. Thus, when a jury guarantee was first proposed, Mr. Gorham, one of the principal drafters of the Constitution, argued against the proposal, stating: “It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter.” 2 M. Farrand, Records of the Federal Convention 587 (1911) (hereinafter cited as Farrand). But when the proposal came to a final vote, Mr. Gorham made a somewhat different argument: “The constitution of Juries is different in different States.” Id., at 628 (emphasis added). Similarly, while at one stage James Wilson defended the absence of a jury requirement on the ground that “[t]he cases open to a jury, differed in different states,” 3 Farrand 101, he also made a quite different argument: “By the constitution of the different States, it will be found that no particular mode of trial by jury could be discovered that would suit them all. The manner of summoning jurors, their. qualifications, of whom they should consist, and the course of their proceedings, are all different, in the different States; and I presume it will be allowed a good general principle, that in carrying into effect the laws of the general government by the judicial department, it will be proper to make the regulations as agreeable to the habits and wishes of the particular States as possible; and it is easily discovered that it would have been impracticable, by any general regulation, to have given satisfaction to all. 3 Farrand 164. COLGROVE v. BATTIN 175 149 Marshall, J., dissenting Thus, it is clear that opponents of a jury guarantee were concerned not only with the differing rules for when juries were required among the States, but also with the differing content of the jury right itself.⁶ To the extent that anything at all can be inferred from the rejection of these arguments, it follows by the Court’s own chain of reasoning that the Framers intended to override state differences as to both the cases in which a jury right would attach and the characteristics of the jury itself. I should hasten to add that I do not mean to embrace that chain of reasoning. In fact, as indicated above, I view the legislative history as far too fragmentary to support any firm conclusion. But I would have thought that the very uncertainty of the legislative history would support a mode of analysis which looked to the jury as it existed at the time the Seventh Amendment was written in order to determine the intent of the Framers. As Mr. Justice Harlan argued: “[I]t is common sense and not merely the blessing of the Framers that explains this Court’s frequent reminders that: ‘The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.’ Smith v. Alabama, 124 U. S. ⁶ See also George Washington’s contemporaneous explanation in a letter to Lafayette for the absence of a jury guarantee (“ [I]t was only the difficulty of establishing a mode which should not interfere with the fixed modes of any of the States, that induced the Convention to leave it, as a matter of future adjustment”) 3 Farrand 298; and Edmund Randolph’s explanation to the Virginia Convention (“I will risk my property on the certainty, that [Congress] will institute the trial by jury in such manner as shall accommodate the conveniences of the inhabitants of every state: the difficulty of ascertaining this accommodation, was the principal cause of its not being provided for”) 3 Farrand 309 176 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. 465, 478 (1888). This proposition was again put forward by Mr. Justice Gray speaking for the Court in United States v. Wong Kim Ark, 169 U. S. 649 (1898), where the Court was called upon to define the term ‘citizen’ as used in the Constitution. ‘The Constitution nowhere defines the meaning of these words [the Citizenship Clause]. ... In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.’ 169 U. S., at 654. History continues to be a wellspring of constitutional interpretation. Indeed, history was even invoked by the Court in such decisions as Townsend v. Sain, 372 U. S. 293 (1963), and Fay v. Noia, 372 U. S. 391 (1963), where it purported to interpret the constitutional provision for habeas corpus according to the ‘historic conception of the writ’ and took note that the guarantee was one rooted in common law and should be so interpreted. Cf. United States v. Brown, 381 U. S. 437, 458 (1965).” Williams v. Florida, 399 U. S., at 123-124. When a historical approach is applied to the issue at hand, it cannot be doubted that the Framers envisioned a jury of 12 when they referred to trial by jury. It is true that at the time the Seventh Amendment was adopted, jury usage differed in several respects among the States. See generally Henderson, The Background of the Seventh Amendment, 80 Harv. L. Rev. 289 (1966). But, for the most part at least, these differences did not extend to jury size which seems to have been uniform and, indeed, had remained so for centuries. One authority has noted that as early as 1164, the Constitutions of Clarendon provided that “where, in the case of a layman so rich and powerful that no individual dares COLGROVE v. BATTIN 177 149 Marshall, J., dissenting to appear against him, ‘the sheriff shall cause twelve legal men of the neighbourhood, or of the vill, to take an oath in the presence of the bishop that they will declare the truth about it.’ ” Wells, The Origin of the Petit Jury, 27 L. Q. Rev. 347 (1911). As Professor Scott wrote, “At the beginning of the thirteenth century twelve was indeed the usual but not the invariable number. But by the middle of the fourteenth century the requirement of twelve had probably become definitely fixed. Indeed this number finally came to be regarded with something like superstitious reverence.” A. Scott, Fundamentals of Procedure in Actions at Law 75-76 (1922) (footnotes omitted). See also 1 W. Holdsworth, A History of English Law 324-325 (7th ed. 1956). To be sure, not every element of English common law was carried over without change in the Colonies. In the case of jury trial, however, “in general this venerable and highly popular institution was adopted in the colonies in its English form at an early date.” Reinsch, The English Common Law in the Early American Colonies, in 1 Select Essays in Anglo-American Legal History 412 (1907). As the Court concluded in Williams v. Florida, “[t]he States that had adopted Constitutions by the time of the Philadelphia Convention in 1787 appear for the most part to have either explicitly provided that the jury would consist of 12, see Va. Const, of 1776, § 8, in 7 F. Thorpe, Federal and State Constitutions 3813 (1909), or to have subsequently interpreted their jury trial provisions to include that requirement.” 399 U. S., at 98-99, n. 45.⁷ ⁷1 do not mean to suggest that isolated experiments with juries of different sizes cannot be found in colonial history. Indeed, when one considers the number of jurisdictions and the span of time involved, it would be surprising if there were no aberrations. Some scholars have argued from the few cases involving juries consisting of more or less than 12 that there was no common-law requirement 178 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. On the basis of this historical record, this Court has more than once concluded that the Seventh Amendment guarantees the preservation of 12-man juries. As the Court, speaking through Mr. Justice Gray, said in Capital Traction Co. v. Hof, “ ‘Trial by jury,’ in the primary and usual sense of the term at the common law and in the American constitutions, is ... a trial by a jury of twelve men before an officer vested with authority to cause them as to jury size in the Colonies. See, e. g., Fisher, The Seventh Amendment and the Common Law: No Magic in Numbers, 56 F. R. D. 507 (1973). In fact, however, the cases cited for this proposition seem to constitute no more than the exceptions which prove the rule. Fisher, for example, bases his thesis on the fact that Maryland used a jury of 10 in one case in 1682 and a jury of 11 in another case that year and that Delaware used juries of 11, 7, and 13 in three cases tried between 1676 and 1705. See id., at 530. But when one remembers that thousands of civil and criminal cases were tried during the prerevolutionary period, these five apparently isolated instances prove virtually nothing. Similarly, South Carolina’s provision for a jury of less than 12 in the “Court for the Trial of Slaves and Persons of Color,” ibid., was obviously limited to the peculiar circumstance of persons who, at that time, were considered to be without civil rights of any kind. Fisher’s reliance on petitions from the citizens of Anson, Orange, and Rowan Counties for juries of less than 12, ibid., is unaccountable since these petitions were in fact rejected and the smaller juries never impaneled. See id., at 530-531, n. 87. Fisher’s final example is particularly revealing. Just prior to the Revolution, New Jersey passed an act providing for six-man juries in small-court cases. Id., at 531. The law was challenged in the case of Holmes n. Walton, in 1780, in which the defendant argued “the jury sworn to try the above cause and on whose verdict judgment was entered, consisted of six men only, when by the laws of the land it should have consisted of twelve men.” Id., at 532 n. 88. The New Jersey Supreme Court rejected this argument and upheld the verdict. A scant month later, however, the New Jersey Legislature reversed this decision and reinstituted the right to 12-man juries. See ibid. COLGROVE v. BATTIN 179 149 Marshall, J., dissenting to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict . . . . This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion. Yet there are unequivocal statements of it to be found in the books.” 174 U. S., at 13-14. Cf. Patton n. United States, 281 U. S. 276 (1930); Maxwell v. Dow, 176 U. S. 581 (1900); American Publishing Co. v. Fisher, 166 U. S. 464 (1897); Springville v. Thomas, 166 U. S. 707 (1897). The Court today elects to abandon the certainty of this historical test, as well as the many cases which support it, in favor of a vaguely defined functional analysis which asks not what the Framers meant by “trial by jury” but rather whether some substitute for the common-law jury performs the same functions as a jury and serves as an adequate substitute for one. It is true that some of our prior cases support a functional approach to an evaluation of procedural innovations which surround jury trials. The Court has in the past upheld such devices as jury interrogatories and reports of special masters as not interfering with the functioning of a common-law jury. See, e. g., Ex parte Peterson, 253 U. S. 300 (1920); Walker v. New Mexico & S. P. R. Co., 165 U. S. 593 (1897). But see Dimick v. Schiedt, 293 U. S. 474 (1935). But I know of no prior case which has utilized a functional analysis to evaluate the very composition of the civil jury. I submit that the reason for the absence of such cases derives from the inherent nature of the problem. It is possible to determine in a principled fashion whether the appurtenances which surround a jury interfere with the essential functioning of that institution. One can 180 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. evaluate whether additur, for example, or directed verdicts interfere with the jury’s role as it existed at common law. See, e. g., Galloway v. United States, 319 U. S. 372 (1943); Dimick v. Schiedt, supra. But the composition of the jury itself is a matter of arbitrary, a priori definition. As Mr. Justice Harlan argued “[t]he right to a trial by jury . . . has no enduring meaning apart from historical form.” Williams n. Florida, 399 U. S., at 125 (separate opinion). It is senseless, then, to say that a panel of six constitutes a “jury” without first defining what one means by a jury, and that initial definition must, in the nature of things, be arbitrary. One could, of course, define the term “jury” as being a body of six or more laymen. But the line between five and six would then be just as arbitrary as the line between 11 and 12. There is no way by reference to abstract principle or “function” that one can determine that six is “enough,” five is “too small,” and 20 “too large.”⁸ These evaluations can only be made by reference to a hypothetical ideal jury of some arbitrarily chosen size. All one can say is that a jury of six functions less like a jury of 12 than would ⁸ The Court asserts that “[w]hat is required for a ‘jury’ is a number large enough to facilitate group deliberation combined with a likelihood of obtaining a representative cross section of the community.” See ante, at 160 n. 16. We can bypass for the moment the intriguing question of where the majority finds this requirement in the words of the Seventh Amendment. For our purposes, it is sufficient to note that, upon examination, this “test” turns out to be no test at all. It may be that the ideal jury would provide “enough” group deliberation and community representation. But the question in this case is how much is “enough.” Obviously, the larger the jury the more group representation it will provide. See n. 1, supra. Merely observing that a certain level of group representation is constitutionally required fails to tell us what that level is. And, more significantly, it fails to tell us how to go about deciding what that level is. COLGROVE v. BATTIN 181 149 Marshall, J., dissenting a jury of, say eight, but more like a jury of 12 than would a jury of three.⁹ Although I think it clear that my Brethren would reject, for example, a jury of one, the Court does not begin to tell us how it would go about drawing a line in a nonarbitrary fashion, and it is obvious that in matters of degree of this kind, nonarbitrary line drawing is a logical impossibility. Of course, there is nothing intrinsically wrong with drawing arbitrary lines and, indeed, as argued above, in order to resolve certain problems they are essential. Thus, this Court has not hesitated in the past to rely on arbitrary demarcations in cases where constitutional rights depend on matters of degree. See, e. g., Burns v. Fortson, 410 U. S. 686 (1973). But in cases where arbitrary lines are necessary, I would have thought it more consonant with our limited role in a constitutional democracy to draw them with reference to the fixed bounds of the Constitution rather than on a wholly ad hoc basis. I think history will bear out the proposition that when constitutional rights are grounded in nothing more solid than the intuitive, unexplained sense of five Justices that a certain line is “right” or “just,” those rights are certain to erode and, eventually, disappear altogether. Today, a majority of this Court may find six-man juries to represent a proper balance between competing demands of expedition and group representation. But as dockets become more crowded and pressures on jury trials grow, who is to say that some future Court will not find three, or two, or one a number large enough to satisfy its unexplicated sense of justice? It should ⁹ It thus will not do to argue, as has my Brother White, that one “can get off the 'slippery slope’ before he reaches the bottom. . . .” Williams v. Florida, 399 U. S. 78, 91 n. 28 (1970). This begs the question how one knows at what point to get off—a question for which the Court apparently has no answer. 182 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. be clear that constitutional rights which are so vulnerable to pressures of the moment are not really protected by the Constitution at all. As Mr. Justice Black never tired of arguing, “the accordion-like qualities of this philosophy must inevitably imperil all the individual liberty safeguards specifically enumerated in the Bill of Rights.” Rochin v. California, 342 U. S. 165, 177 (1952) (Black, J., concurring). See also Duncan v. Louisiana, 391 U. S. 145, 169 (1968) (Black, J., concurring). Since some definition of “jury” must be chosen, I would therefore rely on the fixed bounds of history which the Framers, by drafting the Seventh Amendment, meant to “preserve.” I agree with Mr. Justice Powell’s observation in the Sixth Amendment context that determining the content of the right to jury trial should involve a “careful evaluation of, and strict adherence to the limitations on, that right as it was known ... at common law.” Johnson n. Louisiana, 406 U. S., at 370 n. 6 (separate opinion). It may well be that the number 12 is no more than a “historical accident” and is “wholly without significance ‘except to mystics.’ ” Williams n. Florida, supra, at 102. But surely there is nothing more significant about the number six, or three, or one. The line must be drawn somewhere, and the difference between drawing it in the light of history and drawing it on an ad hoc basis is, ultimately, the difference between interpreting a constitution and making it up as one goes along. II The arbitrary nature of the line which must be drawn in determining permissible jury size highlights another anomaly in the Court’s opinion. Normally, in our system we leave the inevitable process of arbitrary line drawing to the Legislative Branch, which is far better equipped to make ad hoc compromises. In the past, we COLGROVE v. BATTIN 183 149 Marshall, J., dissenting have therefore given great deference to legislative decisions in cases where the line must be drawn somewhere and cannot be precisely delineated by reference to principle. This Court has involved itself in the sticky business of separating cases along a continuum only when the Constitution clearly compels it to do so and when the legislature has plainly defaulted. Today, the Court turns this practice inside out. It rejects what I take to be a clearly articulated legislative decision—a decision, incidentally, which is fully consonant with constitutional requirements—in order to draw its own arbitrary line. It does so, moreover, without any explanation for why it finds the legislative determination unsatisfactory and, indeed, with barely any explanation at all. A Title 28 U. S. C. § 2072 requires that the Rules of Civil Procedure promulgated by this Court “shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.” As the Court recognizes, this requirement is made applicable to local rules of procedure by 28 U. S. C. §2071, which requires that “[s]uch rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court.” The Court’s treatment of this statutory requirement is, to say the least, peculiar. When explicating the Seventh Amendment, my Brethren hold that the Framers intended to govern only the types of trials in which the jury right attaches rather than to fix the common-law characteristics of the jury. Their reason for reaching this conclusion is that the Seventh Amendment, by its terms, guarantees the right to a jury trial “[i]n suits at common law” and not as it existed at common law. This language, the Court says, “is not directed to jury 184 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. characteristics, such as size, but rather defines the kind of cases for which jury trial is preserved, namely, ‘suits at common law.’ ” Ante, at 152. This argument from the language of the Seventh Amendment is fair enough, although for the reasons given in the preceding section, I find it ultimately unpersuasive. But what, then, are we to say when interpreting a provision which guarantees jury trials, not “in suits at common law,” but “as at common law”? By the Court’s own reasoning, it would seem that this phrase should be read to guarantee the preservation of jury characteristics as they existed at common law. Uninhibited by the seeming restraints of its own logic, however, my Brethren proceed to read this phrase to preserve juries in cases tried at common law in the face of the merger of law and equity. But if we are again to take the Court at its own word, this is precisely the result achieved by the Seventh Amendment of its own force. There is, of course, a well-recognized canon of construction which requires courts to read statutory provisions so that, when possible, no part of the statute is superfluous. See, e. g., 2 J. Sutherland, Statutes and Statutory Construction § 4705 (3d ed. 1943), and cases cited therein. Yet the Court’s reading of this statute creates not just a redundancy, but a double redundancy. If the framers of § 2072 had intended merely to preserve jury trials in cases at common law, then no statute at all would have been necessary since, as the Court recognizes, the Seventh Amendment by itself is sufficient to accomplish this purpose. Yet Congress not only passed a statute—it adopted a provision securing trial by jury both “as declared by the Seventh Amendment” and “as at common law.” If one accepts for the moment the Court’s premise that the Seventh Amendment preserves only the right to juries in common-law cases, COLGROVE v. BATTIN 185 149 Marshall, J., dissenting Congress’ addition of the phrase “as at common law” is explicable only if the legislature also intended to protect jury characteristics from change. My Brethren chose to reject this clear meaning of the statute and to read it instead in a manner which not only makes it redundant but also, as demonstrated in the previous section, raises the gravest constitutional questions. Yet the only argument I can discern for reaching this result is the Court’s stated reluctance to “saddle archaic and presently unworkable common-law procedures upon the federal courts.” With all respect, I had not thought it our function to determine which statutory requirements are “archaic” and “unworkable” and to enforce only those which we find to be efficient and up to date. The Court asserts that “ [i] f Congress had meant to prescribe . . . common-law features [for juries] . . . fit knew how to use express language to that effect.’ ” But I, for one, would be hard pressed to think of language which more expressly guarantees the jury’s common-law features than the statement that the right of trial by jury shall be preserved “as at common law.” So long as this is the command of Congress, I had thought it our duty to obey, no matter how “archaic” and “unworkable” the statutory requirement. B Nor is the statute the end of the matter. Federal Rule Civ. Proc. 48 provides in relevant part that “[t]he parties may stipulate that the jury shall consist of any number less than twelve.” It hardly need be demonstrated that this provision is flatly inconsistent with local Rule 13 (d) (1). The number 11, for example, falls within the class of “any number less than twelve,” so that Rule 48 requires that the parties be permitted to stipulate to a jury of 11. Yet the local rule, which requires that “[a] 186 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. jury for the trial of civil cases shall consist of six persons” clearly would not permit a jury of 11, even if the parties stipulated to such a jury. The Court’s contention that Rule 48 “deals only with a stipulation by ‘[t\he parties’” and “does not purport to prevent court rules which provide for civil juries of reduced size,” ante, at 164, therefore passes my understanding. It is true enough that Rule 48 deals with stipulations by the parties, but it expressly says that the court rules must permit such stipulations so long as the number stipulated is “any number less than twelve.” Since the numbers seven through 11 are numbers less than 12, and since the local rule does not permit stipulations of these numbers, the two rules are in conflict and the local rule must therefore fall. See 28 U. S. C. § 2071; Fed. Rule Civ. Proc. 83. Of course, Rule 48 does not on its face guarantee a jury of 12. That function is arguably performed by Rule 38 (a) which provides that “[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.” But as the Court itself recognizes, the framers of Rule 48 clearly presupposed a jury of 12 in the absence of stipulation. Indeed, there is no way to make sense of a provision which permits stipulations of any number less than 12 unless one assumes that in the absence of a stipulation, the jury would consist of 12. I am thus once again at a loss to understand why the Court strains to escape the plain intention of the Rule’s drafters in order to wrestle with grave constitutional questions that could easily have been avoided. Ill It might appear to some anomalous after Williams to hold that 12-man civil juries are constitutionally required in federal cases. As Judge Wisdom has argued, “[w]hat COLGROVE v. BATTIN 187 149 Marshall, J., dissenting ever one considers the role of a civil jury and whatever importance attaches to that role, ... no one has ever contended that the function of the civil jury is more important than that of the criminal jury.” Cooley v. Strickland Transportation Co., 459 F. 2d 779, 781 (1972). There is, of course, force to that point and a certain rudimentary logic to the proposition that if a man is entitled to a jury of only six when his very liberty is at stake, he should not be entitled to more when mere property hangs in the balance. But our function is limited to interpreting the Constitution. We are not empowered to decide as a matter of policy the cases in which 12-man juries should be guaranteed. As argued above, our prior decision on jury size arose in the state context and involved interpretation of a different constitutional provision. That decision simply does not require that we approve six-man federal juries in civil cases. As Mr. Justice Sutherland observed almost 40 years ago when the common-law jury was under attack from a different source, “this court in a very special sense is charged with the duty of construing and upholding the Constitution; and in the discharge of that important duty, it ever must be alert to see that a doubtful precedent be not extended by mere analogy to a different case if the result will be to weaken or subvert what it conceives to be a principle of the fundamental law of the land.” Dimick v. Schiedt, 293 U. S., at 485. I find that response dispositive. The Constitution is, in the end, a unitary, cohesive document and every time any piece of it is ignored or interpreted away in the name of expedience, the entire fragile endeavor of constitutional government is made that much more insecure. This observation is as pertinent to the Seventh Amendment as it is to the First, or Fourteenth, or any other part of the Constitution. Indeed, as the Dimick court held, “[m]aintenance of the jury as a fact-finding body is of 188 OCTOBER TERM, 1972 Powell, J., dissenting 413 U. S. such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.” Id., at 486. In my judgment, my Brethren have not given this curtailment of the jury right the careful scrutiny which the problem demands. I must, therefore, respectfully dissent. Mr. Justice Powell, dissenting. I share the view of Mr. Justice Douglas that local Rule 13 (d)(1) is incompatible with the Federal Rules of Civil Procedure, and this would require a reversal of the present case. Accordingly I do not reach the constitutional issue under the Seventh Amendment which is addressed by Mr. Justice Brennan and Mr. Justice Marshall in their scholarly opinions, ante, pp. 149, 166. Cf. Johnson v. Louisiana, 406 U. S. 356, 366-380 (1972) (opinion of Powell, J.). KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 189 Syllabus KEYES ET AL. v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 71-507. Argued October 12, 1972—Decided June 21, 1973 Petitioners sought desegregation of the Park Hill area schools in Denver and, upon securing an order of the District Court directing that relief, expanded their suit to secure desegregation of the remaining schools of the Denver school district, particularly those in the core city area. The District Court denied the further relief, holding that the deliberate racial segregation of the Park Hill schools did not prove a like segregation policy addressed specifically to the core city schools and requiring petitioners to prove de jure segregation for each area that they sought to have desegregated. That court nevertheless found that the segregated core city schools were educationally inferior to “white” schools elsewhere in the district and, relying on Plessy v. Ferguson, 163 IT. S. 537, ordered the respondents to provide substantially equal facilities for those schools. This latter relief was reversed by the Court of Appeals, which affirmed the Park Hill ruling and agreed that Park Hill segregation, even though deliberate, proved nothing regarding an overall policy of segregation. Held: 1. The District Court, for purposes of defining a “segregated” core city school, erred in not placing Negroes and Hispanos in the same category since both groups suffer the same educational inequities when compared with the treatment afforded Anglo students. Pp. 195-198. 2. The courts below did not apply the correct legal standard in dealing with petitioners’ contention that respondent School Board had the policy of deliberately segregating the core city schools. Pp. 198-213. (a) Proof that the school authorities have pursued an intentional segregative policy in a substantial portion of the school district will support a finding by the trial court of the existence of a dual system, absent a showing that the district is divided into clearly unrelated units. Pp. 201-203. (b) On remand the District Court should decide initially whether respondent School Board’s deliberately segregative policy 190 OCTOBER TERM, 1972 Syllabus 413 U. S. respecting the Park Hill schools constitutes the whole Denver school district a dual school system. Pp. 204r-205. (c) Where, as in this case, a policy of intentional segregation has been proved with respect to a significant portion of the school system, the burden is on the school authorities (regardless of claims that their “neighborhood school policy” was racially neutral) to prove that their actions as to other segregated schools in the system were not likewise motivated by a segregative intent. Pp. 207-213. 445 F. 2d 990, modified and remanded. Brennan, J., delivered the opinion of the Court, in which Douglas, Stewart, Marshall, and Blackmun, J J., joined. Douglas, J., filed a separate opinion, post, p. 214. Burger, C. J., concurred in the result. Powell, J., filed an opinion concurring in part and dissenting in part, post, p. 217. Rehnquist, J., filed a dissenting opinion, post, p. 254. White, J., took no part in the decision of the case. James M. Nabrit III and Gordon G. Greiner argued the cause for petitioners. With them on the brief were Jack Greenberg, Charles Stephen Ralston, Norman J. Chachkin, Robert T. Connery, and Anthony G. Amsterdam. William K. Ris argued the cause for respondents. With him on the brief were Thomas E. Creighton, Benjamin L. Craig, and Michael H. Jackson* *Briefs of amici curiae urging reversal were filed by Melvin L. Wulf, Sanford Jay Rosen, and Edwin S. Kahn for the American Civil Liberties Union et al.; by Stephen J. Pollak, Richard M. Sharp, David Rubin, Larry F. Hobbs, and Leonard N. Wcddbaum for the National Education Association et al.; by Arnold Forster, Paul Hartman, Paul S. Berger, Joseph B. Robison, and Samuel Rabinove for the Anti-Defamation League of B’nai B’rith et al.; and by Mario G. Obledo and Michael Mendelson for the Mexican American Legal Defense and Educational Fund. Briefs of amici curiae urging affirmance were filed by Theodore L. Sendak, Attorney General, Wendell C. Hamacher, Deputy Attorney General, and William F. Harvey for the State of Indiana; by KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 191 189 Opinion of the Court Mr. Justice Brennan delivered the opinion of the Court. This school desegregation case concerns the Denver, Colorado, school system. That system has never been operated under a constitutional or statutory provision that mandated or permitted racial segregation in public education.¹ Rather, the gravamen of this action, brought in June 1969 in the District Court for the District of Colorado by parents of Denver schoolchildren, is that respondent School Board alone, by use of various techniques such as the manipulation of student attendance zones, schoolsite selection and a neighborhood school policy, created or maintained racially or ethnically (or both racially and ethnically) segregated schools throughout the school district, entitling petitioners to a decree directing desegregation of the entire school district. The boundaries of the school district are coterminous with the boundaries of the city and county of Denver. There were in 1969, 119 schools² with 96,580 pupils Thomas A. Shannon, Donald R. Lincoln, and Paul D. Engstrand for San Diego Unified School District; and by Willis Hannawalt and Vivian Hannawalt for Robert G. Nelson et al. Briefs of amici curiae were filed by Solicitor General Griswold, Assistant Attorney General Norman, James P. Turner, Brian K. Landsberg, and Thomas M. Keeling for the United States, and by David I. Caplan for the Jewish Rights Council, Inc. ¹ To the contrary, Art. IX, § 8, of the Colorado Constitution expressly prohibits any “classification of pupils ... on account of race or color.” As early as 1927, the Colorado Supreme Court held that a Denver practice of excluding black students from school programs at Manual High School and Morey Junior High School violated state law. Jones v. Newlon, 81 Colo. 25, 253 P. 386. ² There were 92 elementary schools, 15 junior high schools, 2 juniorsenior high schools, and 7 senior high schools. In addition, the Board operates an Opportunity School, a Metropolitan Youth Education Center, and an Aircraft Training Facility. 192 OCTOBER TERM, 1972 Opinion of the Court — 413 U. S. in the school system. In early 1969, the respondent School Board adopted three resolutions, Resolutions 1520, 1524, and 1531, designed to desegregate the schools in the Park Hill area in the northeast portion of the city. Following an election which produced a Board majority opposed to the resolutions, the resolutions were rescinded and replaced with a voluntary student transfer program. Petitioners then filed this action, requesting an injunction against the rescission of the resolutions and an order directing that the respondent School Board desegregate and afford equal educational opportunity “for the School District as a whole.” App. 32a. The District Court found that by the construction of a new, relatively small elementary school, Barrett, in the middle of the Negro community west of Park Hill, by the gerrymandering of student attendance zones, by the use of so-called “optional zones,” and by the excessive use of mobile classroom units, among other things, the respondent School Board had engaged over almost a decade after 1960 in an unconstitutional policy of deliberate racial segregation with respect to the Park Hill schools.³ The court therefore ordered the Board to desegregate those schools through the implementation of the three rescinded resolutions. 303 F. Supp. 279 and 289 (1969). Segregation in Denver schools is not limited, however, to the schools in the Park Hill area, and not satisfied with their success in obtaining relief for Park Hill, petitioners pressed their prayer that the District Court order desegregation of all segregated schools in the city of Denver, particularly the heavily segregated schools in the core city area.⁴ But that court concluded that its ³ The so-called “Park Hill schools” are Barrett, Stedman, Hallett, Smith, Philips, and Park Hill Elementary Schools; and Smiley Junior High School. East High School serves the area but is located outside of it. (See map following p. 214.) ⁴ The so-called “core city schools” which are said to be segregated KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 193 189 Opinion of the Court finding of a purposeful and systematic program of racial segregation affecting thousands of students in the Park Hill area did not, in itself, impose on the School Board an affirmative duty to eliminate segregation throughout the school district. Instead, the court fractionated the district and held that petitioners had to make a fresh showing of de jure segregation in each area of the city for which they sought relief. Moreover, the District Court held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city. Under this restrictive approach, the District Court concluded that petitioners’ evidence of intentionally discriminatory School Board action in areas of the district other than Park Hill was insufficient to “dictate the conclusion that this is de jure segregation which calls for an all-out effort to desegregate. It is more like de facto segregation, with respect to which the rule is that the court cannot order desegregation in order to provide a better balance.” 313 F. Supp. 61, 73 (1970). Nevertheless, the District Court went on to hold that the proofs established that the segregated core city schools were educationally inferior to the predominantly “white” or “Anglo” schools in other parts of the district—that is, “separate facilities . . . unequal in the quality of education provided.” Id., at 83. Thus, the court held that, under the doctrine of Plessy v. Ferguson, 163 U. S. 537 (1896), respondent School Board constitutionally “must at a minimum . . . offer an equal educational opportunity,” 313 F. Supp., at 83, and, therefore, are Boulevard, Bryant-Webster, Columbine, Crofton, Ebert, Elmwood, Elyria, Fairmont, Fairview, Garden Place, Gilpin, Greenlee, Harrington, Mitchell, Smedley, Swansea, Whittier, Wyatt, and Wyman Elementary Schools; Baker, Cole, and Morey Junior High Schools; and East, West, and Manual High Schools. (See map following p. 214.) 194 OCTOBER TERM, 1972 • Opinion of the Court 413 U. S. although all-out desegregation “could not be decreed, . . . the only feasible and constitutionally acceptable program—the only program which furnishes anything approaching substantial equality—is a system of desegregation and integration which provides compensatory education in an integrated environment.” 313 F. Supp. 90, 96 (1970). The District Court then formulated a varied remedial plan to that end which was incorporated in the Final Decree.⁵ Respondent School Board appealed, and petitioners cross-appealed, to the Court of Appeals for the Tenth Circuit. That court sustained the District Court’s finding that the Board had engaged in an unconstitutional policy of deliberate racial segregation with respect to the Park Hill schools and affirmed the Final Decree in that respect. As to the core city schools, however, the Court of Appeals reversed the legal determination of the District Court that those schools were maintained in violation ⁵ The first of the District Court’s four opinions, 303 F. Supp. 279, was filed July 31, 1969, and granted petitioners’ application for a preliminary injunction. The second opinion, 303 F. Supp. 289, was filed August 14, 1969, and made supplemental findings and conclusions. The third opinion, 313 F. Supp. 61, filed March 21, 1970, was the opinion on the merits. The fourth opinion, 313 F. Supp. 90, was on remedy and was filed May 21, 1970. The District Court filed an unreported opinion on October 19, 1971, in which relief was extended to Hallett and Stedman Elementary Schools which were found by the court in its July 31, 1969, opinion to be purposefully segregated but were not included within the scope of the three 1969 Board resolutions. The Court of Appeals filed five unreported opinions: on August 5, 1969, vacating preliminary injunctions; on August 27, 1969, staying preliminary injunction; on September 15, 1969, on motion to amend stay; on October 17, 1969, denying motions to dismiss; and on March 26, 1971, granting stay. Mr. Justice Brennan, on August 29, 1969, filed an opinion reinstating the preliminary injunction, 396 U. S. 1215, and on April 26, 1971, this Court entered a per curiam order vacating the Court of Appeals’ stay, 402 U. S. 182. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 195 189 Opinion of the Court of the Fourteenth Amendment because of the unequal educational opportunity afforded, and therefore set aside so much of the Final Decree as required desegregation and educational improvement programs for those schools. 445 F. 2d 990 (1971). In reaching that result, the Court of Appeals also disregarded respondent School Board’s deliberate racial segregation policy respecting the Park Hill schools and accepted the District Court’s finding that petitioners had not proved that respondent had a like policy addressed specifically to the core city schools. We granted petitioners’ petition for certiorari to review the Court of Appeals’ judgment insofar as it reversed that part of the District Court’s Final Decree as pertained to the core city schools. 404 U. S. 1036 (1972). The judgment of the Court of Appeals in that respect is modified to vacate instead of reverse the Final Decree. The respondent School Board has cross-petitioned for certiorari to review the judgment of the Court of Appeals insofar as it affirmed that part of the District Court’s Final Decree as pertained to the Park Hill schools. Docket No. 71-572, School District No. 1 v. Keyes. The cross-petition is denied. I Before turning to the primary question we decide today, a word must be said about the District Court’s method of defining a “segregated” school. Denver is a triethnic, as distinguished from a bi-racial, community. The overall racial and ethnic composition of the Denver public schools is 66% Anglo, 14% Negro, and 20% Hispano.⁶ The District Court, in assessing the question of ⁶ The parties have used the terms “Anglo,” “Negro,” and “Hispano” throughout the record. We shall therefore use those terms. “Hispano” is the term used by the Colorado Department of Education to refer to a person of Spanish, Mexican, or Cuban heritage. Colorado Department of Education, Human Relations in Colorado, 196 OCTOBER TERM, 1972 413 U. S. Opinion of the Court de jure segregation in the core city schools, preliminarily resolved that Negroes and Hispanos should not be placed in the same category to establish the segregated character of a school. 313 F. Supp., at 69. Later, in determining the schools that were likely to produce an inferior educational opportunity, the court concluded that a school would be considered inferior only if it had “a concentration of either Negro or Hispano students in the general area of 70 to 75 percent.” Id., at 77. We intimate no opinion whether the District Court’s 70%-to-75% requirement was correct. The District Court used those figures to signify educationally inferior schools, and there is no suggestion in the record that those same figures were or would be used to define a “segregated” school in the de jure context. What is or is not a segregated school will necessarily depend on the facts of each particular case. In addition to the racial and ethnic composition of a school’s student body, other factors, such as the racial and ethnic composition of faculty and staff and the community and administration attitudes toward the school, must be taken into consideration. The District Court has recognized these specific factors as elements of the definition of a “segregated” school, id., at 74, and we may therefore infer that the court will consider them again on remand. A Historical Record 203 (1968). In the Southwest, the “Hispanos” are more commonly referred to as “Chicanos” or “Mexican-Americans.” The more specific racial and ethnic composition of the Denver public schools is as follows: Anglo Negro Hispano Pupils No. , % No. % No. % Elementary 33,719 61.8 8,297 15.2 12,570 23.0 Junior High 14,848 68.7 2,893 13.4 3,858 17.9 Senior High 14,852 72.8 2,442 12.0 3,101 15.2 Total 63,419 65.7 13,632 14.1 19,529 20.2 KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 197 189 Opinion of the Court We conclude, however, that the District Court erred in separating Negroes and Hispanos for purposes of defining a “segregated” school. We have held that Hispanos constitute an identifiable class for purposes of the Fourteenth Amendment. Hernandez v. Texas, 347 U. S. 475 (1954). See also United States v. Texas Education Agency, 467 F. 2d 848 (CA5 1972) (en banc); Cisneros v. Corpus Christi Independent School District, 467 F. 2d 142 (CA5 1972) (en banc); Alvarado v. El Paso Independent School District, 445 F. 2d 1011 (CA5 1971); Soria v. Oxnard School District, 328 F. Supp. 155 (CD Cal. 1971); Romero n. Weakley, 226 F. 2d 399 (CA9 1955). Indeed, the District Court recognized this in classifying predominantly Hispano schools as “segregated” schools in their own right. But there is also much evidence that in the Southwest Hispanos and Negroes have a great many things in common. The United States Commission on Civil Rights has recently published two Reports on Hispano education in the Southwest.⁷ Focusing on students in the States of Arizona, California, Colorado, New Mexico, and Texas, the Commission concluded that Hispanos suffer from the same educational inequities as Negroes and American Indians.⁸ In fact, the District Court itself recognized that “[o]ne of the things which the Hispano has in common with the Negro is economic and cultural deprivation ⁷ United States Commission on Civil Rights, Mexican American Education Study, Report 1, Ethnic Isolation of Mexican Americans in the Public Schools of the Southwest (Apr. 1971); United States Commission on Civil Rights, Mexican American Educational Series, Report 2, The Unfinished Education (Oct. 1971). ⁸ The Commission’s second Report, on p. 41, summarizes its findings: “The basic finding of this report is that minority students in the Southwest—Mexican Americans, blacks, American Indians—do not obtain the benefits of public education at a rate equal to that of their Anglo classmates.” 198 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. and discrimination.” 313 F. Supp., at 69. This is agreement that, though of different origins, Negroes and Hispanos in Denver suffer identical discrimination in treatment when compared with the treatment afforded Anglo students. In that circumstance, we think petitioners are entitled to have schools with a combined predominance of Negroes and Hispanos included in the category of “segregated” schools. II In our view, the only other question that requires our decision at this time is that subsumed in Question 2 of the questions presented by petitioners, namely, whether the District Court and the Court of Appeals applied an incorrect legal standard in addressing petitioners’ contention that respondent School Board engaged in an unconstitutional policy of deliberate segregation in the core city schools. Our conclusion is that those courts did not apply the correct standard in addressing that contention.⁹ Petitioners apparently concede for the purposes of this case that in the case of a school system like Denver’s, where no statutory dual system has ever existed, plaintiffs must prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action. Petitioners proved that for almost a decade after 1960 respondent School Board had engaged in an unconstitutional policy of deliberate racial segregation in the Park Hill schools. Indeed, the District Court found that “[b]etween 1960 and 1969 the Board’s policies ⁹ Our Brother Rehnquist argues in dissent that the Court somehow transgresses the “two-court” rule. Post, at 264. But at this stage, we have no occasion to review the factual findings concurred in by the two courts below. Cf. Neil v. Biggers, 409 U. S. 188 (1972). We address only the question whether those courts applied the correct legal standard in deciding the case as it affects the core city schools. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 199 189 Opinion of the Court with respect to these northeast Denver schools show an undeviating purpose to isolate Negro students” in segregated schools “while preserving the Anglo character of [other] schools.” 303 F. Supp., at 294. This finding did not relate to an insubstantial or trivial fragment of the school system. On the contrary, respondent School Board was found guilty of following a deliberate segregation policy at schools attended, in 1969, by 37.69% of Denver’s total Negro school population, including one-fourth of the Negro elementary pupils, over two-thirds of the Negro junior high pupils, and over two-fifths of the Negro high school pupils.¹⁰ In addition, ¹⁰ The Board was found guilty of intentionally segregative acts of one kind or another with respect to the schools listed below. (As to Cole and East, the conclusion rests on the rescission of the resolutions.) PUPILS 1968-1969 Anglo Negro Hispano Total Barrett 1 410 12 423 Stedman 27 634 25 686 Hallett 76 634 41 751 Park Hill 684 223 56 963 Philips 307 203 45 555 Smiley Jr. High 360 1,112 74 1,546 Cole Jr. High 46 884 289 1,219 East High 1,409 1,039 175 2,623 Subtotal Elementary 1,095 2,104 179 . 3,378 Subtotal Jr. High 406 1,996 363 2,765 Subtotal Sr. High 1,409 1,039 175 2,623 Total 2,910 5,139 717 8,766 The total Negro school enrollment in 1968 was: Elementary 8,297 Junior High 2,893 Senior High 2,442 Thus, the above-mentioned schools included: Elementary 25.36% of all Negro elementary pupils Junior High 68.99% of all Negro junior high pupils Senior High 42.55% of all Negro senior high pupils Total 37.69% of all Negro pupils 200 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. there was uncontroverted evidence that teachers and staff had for years been assigned on the basis of a minority teacher to a minority school throughout the school system. Respondent argues, however, that a finding of state-imposed segregation as to a substantial portion of the school system can be viewed in isolation from the rest of the district, and that even if state-imposed segregation does exist in a substantial part of the Denver school system, it does not follow that the District Court could predicate on that fact a finding that the entire school system is a dual system. We do not agree. We have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system. Rather, we have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), the State automatically assumes an affirmative duty “to effectuate a transition to a racially nondiscriminatory school system,” Brown v. Board of Education, 349 U. S. 294, 301 (1955) (Brown II), see also Green v. County School Board, 391 U. S. 430, 437-438 (1968), that is, to eliminate from the public schools within their school system “all vestiges of state-imposed segregation.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15 (1971).¹¹ ¹¹ Our Brother Rehnquist argues in dissent that Brown n. Board of Education did not impose an “affirmative duty to integrate” the schools of a dual school system but was only a “prohibition against discrimination” “in the sense that the assignment of a child to a particular school is not made to depend on his race . . . .” Infra, at 258. That is the interpretation of Brown expressed 18 years ago by a three-judge court in Briggs v. Elliott, 132 F. Supp. 776, 777 KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 201 189 Opinion of the Court This is not a case, however, where a statutory dual system has ever existed. Nevertheless, where plaintiffs prove that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system. Several considerations support this conclusion. First, it is obvious that a practice of concentrating Negroes in certain schools by structuring attendance zones or designating “feeder” schools on the basis of race has the reciprocal effect of keeping other nearby schools predominantly white.¹² Similarly, the practice of building a school—such as the Barrett Elementary School in this case—to a certain size and in a certain location, “with conscious knowledge that it would (1955): “The Constitution, in other words, does not require integration. It merely forbids discrimination.” But Green v. County School Board, 391 U. S. 430, 437-438 (1968), rejected that interpretation insofar as Green expressly held that “School boards .. . operating state-compelled dual systems were nevertheless clearly charged [by Brown II] with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green remains the governing principle. Alexander v. Holmes County Board of Education, 396 U. S. 19 (1969); Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15 (1971). See also Kelley v. Metropolitan County Board of Education, 317 F. Supp. 980, 984 (1970). ¹² As a former School Board President who testified for the respondents put it: “Once you change the boundary of any one school, it is affecting all the schools . . . .” Testimony of Mrs. Lois Heath Johnson on cross-examination. App. 951a-952a. Similarly, Judge Wisdom has recently stated: “Infection at one school infects all schools. To take the most simple example, in a two school system, all blacks at one school means all or almost all whites at the other.” United States v. Texas Education Agency, 467 F. 2d 848, 888 (CA5 1972). 202 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. be a segregated school,” 303 F. Supp., at 285, has a substantial reciprocal effect on the racial composition of other nearby schools. So also, the use of mobile classrooms, the drafting of student transfer policies, the transportation of students, and the assignment of faculty and staff, on racially identifiable bases, have the clear effect of earmarking schools according to their racial composition, and this, in turn, together with the elements of student assignment and school construction, may have a profound reciprocal effect on the racial composition of residential neighborhoods within a metropolitan area, thereby causing further racial concentration within the schools. We recognized this in Swann when we said: “They [school authorities] must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods. “In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown, closed schools KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 203 189 Opinion of the Court which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of ‘neighborhood zoning.’ Such a policy does more than simply influence the short-run composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with ‘neighborhood zoning,’ further lock the school system into the mold of separation of the races. Upon a proper showing a district court may consider this in fashioning a remedy.” 402 U. S., at 20-21. In short, common sense dictates the conclusion that racially inspired school board actions have an impact beyond the particular schools that are the subjects of those actions. This is not to say, of course, that there can never be a case in which the geographical structure of, or the natural boundaries within, a school district may have the effect of dividing the district into separate, identifiable and unrelated units. Such a determination is essentially a question of fact to be resolved by the trial court in the first instance, but such cases must be rare. In the absence of such a determination, proof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of the existence of a dual system. Of course, where that finding is made, as in cases involving statutory dual systems, the school authorities have an affirmative duty “to effectuate a transition to a racially nondiscriminatory school system.” Brown II, supra, at 301. 204 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. On remand, therefore, the District Court should decide in the first instance whether respondent School Board’s deliberate racial segregation policy with respect to the Park Hill schools constitutes the entire Denver school system a dual school system. We observe that on the record now before us there is indication that Denver is not a school district which might be divided into separate, identifiable and unrelated units. The District Court stated, in its summary of findings as to the Park Hill schools, that there was “a high degree of interrelationship among these schools, so that any action by the Board affecting the racial composition of one would almost certainly have an effect on the others.” 303 F. Supp., at 294. And there was cogent evidence that the ultimate effect of the Board’s actions in Park Hill was not limited to that area: the three 1969 resolutions designed to desegregate the Park Hill schools changed the attendance patterns of at least 29 schools attended by almost one-third of the pupils in the Denver school system.¹³ This suggests that the official segregation in Park Hill affected the racial composition of schools throughout the district. On the other hand, although the District Court did not state this, or indeed any, reason why the Park Hill finding was disregarded when attention was turned to the core city schools—beyond saying that the Park Hill and core city areas were in its view “different”— the areas, although adjacent to each other, are separated by Colorado Boulevard, a six-lane highway. From the record, it is difficult to assess the actual significance of Colorado Boulevard to the Denver school system. The Boulevard runs the length of the school district, but at ¹³ See the chart in 445 F. 2d, at 1008-1009, which indicates that 31,767 pupils attended the schools affected by the resolutions. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 205 189 Opinion of the Court least two elementary schools, Teller and Steck, have attendance zones which cross the Boulevard. Moreover, the District Court, although referring to the Boulevard as “a natural dividing line,” 303 F. Supp., at 282, did not feel constrained to limit its consideration of de jure segregation in the Park Hill area to those schools east of the Boulevard. The court found that by building Barrett Elementary School west of the Boulevard and by establishing the Boulevard as the eastern boundary of the Barrett attendance zone, the Board was able to maintain for a number of years the Anglo character of the Park Hill schools. This suggests that Colorado Boulevard is not to be regarded as the type of barrier that of itself could confine the impact of the Board’s actions to an identifiable area of the school district, perhaps because a major highway is generally not such an effective buffer between adjoining areas. Cf. Davis v. Board of School Commissioners of Mobile County, 402 U. S. 33 (1971). But this is a factual question for resolution by the District Court on remand. In any event, inquiry whether the District Court and the Court of Appeals applied the correct legal standards in addressing petitioners’ contention of deliberate segregation in the core city schools is not at an end even if it be true that Park Hill may be separated from the rest of the Denver school district as a separate, identifiable, and unrelated unit. Ill The District Court proceeded on the premise that the finding as to the Park Hill schools was irrelevant to the consideration of the rest of the district, and began its examination of the core city schools by requiring that petitioners prove all of the essential elements of de jure segregation—that is, stated simply, a current condition of segregation resulting from intentional state action 206 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. directed specifically to the core city schools.¹⁴ The segregated character of the core city schools could not be and is not denied. Petitioners’ proof showed that at the time of trial 22 of the schools in the core city area were less than 30% in Anglo enrollment and 11 of the schools were less than 10% Anglo.¹⁵ Petitioners also introduced substantial evidence demonstrating the existence of a disproportionate racial and ethnic composition of faculty and staff at these schools. On the question of segregative intent, petitioners presented evidence tending to show that the Board, through its actions over a period of years, intentionally created and maintained the segregated character of the core city schools. Respondents countered this evidence by arguing that the segregation in these schools is the result of a racially neutral “neighborhood school policy” ¹⁴ Our Brother Rehnquist argues in dissent that the District Court did take the Park Hill finding into account in addressing the question of alleged de jure segregation of the core city schools. Post, at 262. He cites the following excerpt from a footnote to the District Court’s opinion of March 21, 1970, 313 F. Supp., at 74-75, n. 18: “Although past discriminatory acts may not be a substantial factor contributing to present segregation, they may nevertheless be probative on the issue of the segregative purpose of other discriminatory acts which are in fact a substantial factor in causing a present segregated situation.” But our Brother Rehnquist omits the rest of the footnote: “Thus, in part I of this opinion, we discussed the building of Barrett; boundary changes and the use of mobile units as they relate to the purpose for the rescission of Resolutions 1520, 1524 and 1531.” Obviously, the District Court was carefully limiting the comment to the consideration being given past discriminatory acts affecting the Park Hill schools in assessing the causes of current segregation of those schools. ¹⁵ In addition to these 22 schools, see 313 F. Supp., at 78, two more schools, Elyria and Smedley Elementary Schools, became less than 30% Anglo after the District Court’s decision on the merits. These two schools were thus included in the list of segregated schools. 313 F. Supp., at 92. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 207 189 Opinion of the Court and that the acts of which petitioners complain are explicable within the bounds of that policy. Accepting the School Board’s explanation, the District Court and the Court of Appeals agreed that a finding of de jure segregation as to the core city schools was not permissible since petitioners had failed to prove “(1) a racially discriminatory purpose and (2) a causal relationship between the acts complained of and the racial imbalance admittedly existing in those schools.” 445 F. 2d, at 1006. This assessment of petitioners’ proof was clearly incorrect. Although petitioners had already proved the existence of intentional school segregation in the Park Hill schools, this crucial finding was totally ignored when attention turned to the core city schools. Plainly, a finding of intentional segregation as to a portion of a school system is not devoid of probative value in assessing the school authorities’ intent with respect to other parts of the same school system. On the contrary, where, as here, the case involves one school board, a finding of intentional segregation on its part in one portion of a school system is highly relevant to the issue of the board’s intent with respect to other segregated schools in the system. This is merely an application of the well-settled evidentiary principle that “the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent.” 2 J. Wigmore, Evidence 200 (3d ed. 1940). “Evidence that similar and related offenses were committed . . . tend[s] to show a consistent pattern of conduct highly relevant to the issue of intent.” Nye & Nissen v. United States, 336 U. S. 613, 618 (1949). Similarly, a finding of illicit intent as to a meaningful portion of the item under consideration has substantial probative value on the question of illicit intent as to 208 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. the remainder. See, for example, the cases cited in 2 Wigmore, supra, at 301-302. And “[t]he foregoing principles are equally as applicable to civil cases as to criminal cases . . . Id., at 300. See also C. McCormick, Evidence 329 (1954). Applying these principles in the special context of school desegregation cases, we hold that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions. This is true even if it is determined that different areas of the school district should be viewed independently of each other because, even in that situation, there is high probability that where school authorities have effectuated an intentionally segregative policy in a meaningful portion of the school system, similar impermissible considerations have motivated their actions in other areas of the system. We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation to which we referred in Swann¹⁶ is purpose or intent to segregate. Where school authorities have been found to have practiced purposeful segregation in part of a school system, they may be expected to oppose system-wide desegregation, as did the respondents in this case, on the ground that their purposefully segregative actions were isolated and individual events, thus leaving plaintiffs with the burden of proving otherwise. But at that point where an intentionally segrega- ¹⁶ 402 U. S. 1, 17-18 (1971). KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 209 189 Opinion of the Court tive policy is practiced in a meaningful or significant segment of a school system, as in this case,, the school authorities cannot be heard to argue that plaintiffs have proved only “isolated and individual” unlawfully segregative actions. In that circumstance, it is both fair and reasonable to require that the school authorities bear the burden of showing that their actions as to other segregated schools within the system were not also motivated by segregative intent. This burden-shifting principle is not new or novel. There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, “is merely a question of policy and fairness based on experience in the different situations.” 9 J. Wigmore, Evidence § 2486, at 275 (3d ed. 1940). In the context of racial segregation in public education, the courts, including this Court, have recognized a variety of situations in which “fairness” and “policy” require state authorities to bear the burden of explaining actions or conditions which appear to be racially motivated. Thus, in Swann, 402 U. S., at 18, we observed that in a system with a “history of segregation,” “where it is possible to identify a ‘white school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.” Again, in a school system with a history of segregation, the discharge of a disproportionately large number of Negro teachers incident to desegregation “thrust [s] upon the School Board the burden of justifying its conduct by clear and convincing evidence.” Chambers v. Hendersonville City Board of Education, 364 F. 2d 189, 192 (CA4 1966) (en banc). See also United States v. Jefferson County Board of Education, 372 F. 210 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. 2d 836, 887-888 (CA5 1966), aff’d en banc, 380 F. 2d 385 (1967); North Carolina Teachers Assn. n. Asheboro City Board of Education, 393 F. 2d 736, 743 (CA4 1968) (en banc); Williams v. Kimbrough, 295 F. Supp. 578, 585 (WD La. 1969); Bonner v. Texas City Independent School District, 305 F. Supp. 600, 621 (SD Tex. 1969). Nor is this burden-shifting principle limited to former statutory dual systems. See, e. g., Davis v. School District of the City of Pontiac, 309 F. Supp. 734, 743, 744 (ED Mich. 1970), aff’d, 443 F. 2d 573 (CA6 1971); United States v. School District No. 151, 301 F. Supp. 201, 228 (ND Ill. 1969), modified on other grounds, 432 F. 2d 1147 (CA7 1970). Indeed, to say that a system has a “history of segregation” is merely to say that a pattern of intentional segregation has been established in the past. Thus, be it a statutory dual system or an allegedly unitary system where a meaningful portion of the system is found to be intentionally segregated, the existence of subsequent or other segregated schooling within the same system justifies a rule imposing on the school authorities the burden of proving that this segregated schooling is not also the result of intentionally segregative acts. In discharging that burden, it is not enough, of course, that the school authorities rely upon some allegedly logical, racially neutral explanation for their actions. Their burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions. The courts below attributed much significance to the fact that many of the Board’s actions in the core city area antedated our decision in Brown. We reject any suggestion that remoteness in time has any relevance to the issue of intent. If the actions of school authorities were to any degree motivated by segregative intent and the segregation resulting from those actions continues to exist, the fact of remote- KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 211 189 Opinion of the Court ness in time certainly does not make those actions any less “intentional.” This is not to say, however, that the prima facie case may not be met by evidence supporting a finding that a lesser degree of segregated schooling in the core city area would not have resulted even if the Board had not acted as it did. In Swann, we suggested that at some point in time the relationship between past segregative acts and present segregation may become so attenuated as to be incapable of supporting a finding of de jure segregation warranting judicial intervention. 402 U. S., at 31-32. See also Hobson n. Hansen, 269 F. Supp. 401, 495 (DC 1967), aff’d sub nom. Smuck v. Hobson, 132 U. S. App. D. C. 372, 408 F. 2d 175 (1969).¹⁷ We made it clear, however, that a connection between past segregative acts and present segregation may be present even when not apparent and that close examination is required before concluding that the connection does not exist. Intentional school segregation in the past may have been a factor in creating a natural environment for the growth of further segregation. Thus, if respondent School Board cannot disprove segregative intent, it can rebut the prima facie case only by showing that its past segregative acts did not create or contribute to the current segregated condition of the core city schools. The respondent School Board invoked at trial its “neighborhood school policy” as explaining racial and ethnic concentrations within the core city schools, arguing ¹⁷ It may be that the District Court and Court of Appeals were applying this test in holding that petitioners had failed to prove that the Board’s actions “caused” the current condition of segregation in the core city schools. But, if so, certainly plaintiffs in a school desegregation case are not required to prove “cause” in the sense of “non-attenuation.” That is a factor which becomes relevant only after past intentional actions resulting in segregation have been established. At that stage, the burden becomes the school authorities’ to show that the current segregation is in no way the result of those past segregative actions. 212 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. that since the core city area population had long been Negro and Hispano, the concentrations were necessarily the result of residential patterns and not of purposefully segregative policies. We have no occasion to consider in this case whether a “neighborhood school policy” of itself will justify racial or ethnic concentrations in the absence of a finding that school authorities have committed acts constituting de jure segregation. It is enough that we hold that the mere assertion of such a policy is not dispositive where, as in this case, the school authorities have been found to have practiced de jure segregation in a meaningful portion of the school system by techniques that indicate that the “neighborhood school” concept has not been maintained free of manipulation. Our observations in Swann, supra, at 28, are particularly instructive on this score: “Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. . . . “. . . ‘Racially neutral’ assignment plans proposed by school authorities to a district court may be inadequate ; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a ‘loaded game board,’ affirmative action in the form of remedial altering of attendance zones is proper to achieve truly nondiscriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral.” KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 213 189 Opinion of the Court Thus, respondent School Board having been found to have practiced deliberate racial segregation in schools attended by over one-third of the Negro school population, that crucial finding establishes a prima facie case of intentional segregation in the core city schools. In such case, respondent’s neighborhood school policy is not to be determinative “simply because it appears to be neutral.” IV In summary, the District Court on remand, first, will afford respondent School Board the opportunity to prove its contention that the Park Hill area is a separate, identifiable and unrelated section of the school district that should be treated as isolated from the rest of the district. If respondent School Board fails to prove that contention, the District Court, second, will determine whether respondent School Board’s conduct over almost a decade after 1960 in carrying out a policy of deliberate racial segregation in the Park Hill schools constitutes the entire school system a dual school system. If the District Court determines that the Denver school system is a dual school system, respondent School Board has the affirmative duty to desegregate the entire system “root and branch.” Green v. County School Board, 391 U. S., at 438. If the District Court determines, however, that the Denver school system is not a dual school system by reason of the Board’s actions in Park Hill, the court, third, will afford respondent School Board the opportunity to rebut petitioners’ prima facie case of intentional segregation in the core city schools raised by the finding of intentional segregation in the Park Hill schools. There, the Board’s burden is to show that its policies and practices with respect to schoolsite location, school size, school renovations and additions, student-attendance zones, student assignment and transfer options, mobile classroom units, transportation of students, as 214 OCTOBER TERM, 1972 Opinion of Douglas, J. 413 U. S. signment of faculty and staff, etc., considered together and premised on the Board’s so-called “neighborhood school” concept, either were not taken in effectuation of a policy to create or maintain segregation in the core city schools, or, if unsuccessful in that effort, were not factors in causing the existing condition of segregation in these schools. Considerations of “fairness” and “policy” demand no less in light of the Board’s intentionally segregative actions. If respondent Board fails to rebut petitioners’ prima facie case, the District Court must, as in the case of Park Hill, decree all-out desegregation of the core city schools. The judgment of the Court of Appeals is modified to vacate instead of reverse the parts of the Final Decree that concern the core city schools, and the case is remanded to the District Court for further proceedings consistent with this opinion.¹⁸ It is so ordered. [Map of elementary school boundaries follows this page.] Mr. Chief Justice Burger concurs in the result. Mr. Justice White took no part in the decision of this case. Mr. Justice Douglas. While I join the opinion of the Court, I agree with my Brother Powell that there is, for the purposes of the ¹⁸ We therefore do not reach, and intimate no view upon, the merits of the holding of the District Court, premised upon its erroneous finding that the situation “is more like de facto segregation,” 313 F. Supp., at 73, that nevertheless, although all-out desegregation “could not be decreed . . . the only feasible and constitutionally acceptable program ... is a system of desegregation and integration which provides compensatory education in an integrated environment.” Id., at 96. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 215 189 Opinion of Douglas, J. Equal Protection Clause of the Fourteenth Amendment as applied to the school cases, no difference between de facto and de jure segregation. The school board is a state agency and the lines that it draws, the locations it selects for school sites, the allocation it makes of students, the budgets it prepares are state action for Fourteenth Amendment purposes. As Judge Wisdom cogently stated in United States v. Texas Education Agency, 467 F. 2d 848, segregated schools are often created, not by dual school systems decreed by the legislature, but by the administration of school districts by school boards. Each is state action within the meaning of the Fourteenth Amendment. “Here school authorities assigned students, faculty, and professional staff; employed faculty and staff; chose sites for schools; constructed new schools and renovated old ones; and drew attendance zone lines. The natural and foreseeable consequence of these actions was segregation of Mexican-Americans. Affirmative action to the contrary would have resulted in desegregation. When school authorities, by their actions, contribute to segregation in education, whether by causing additional segregation or maintaining existing segregation, they deny to the students equal protection of the laws. “We need not define the quantity of state participation which is a prerequisite to a finding of constitutional violation. Like the legal concepts of ‘the reasonable man,’ ‘due care,’ ‘causation,’ ‘preponderance of the evidence,’ and ‘beyond a reasonable doubt,’ the necessary degree of state involvement is incapable of precise definition and must be defined on a case-by-case basis. Suffice it to say that school authorities here played a significant role in causing or perpetuating unequal educational opportunities for Mexican-Americans, and did so on a system-wide basis.” Id., at 863-864. 216 OCTOBER TERM, 1972 Opinion of Douglas, J. 413 U. S. These latter acts are often said to create de facto as contrasted with de jure segregation. But, as Judge Wisdom observes, each is but another form of de jure segregation. I think it is time to state that there is no constitutional difference between de jure and de facto segregation, for each is the product of state actions or policies. If a “neighborhood” or “geographical” unit has been created along racial lines by reason of the play of restrictive covenants that restrict certain areas to “the elite,” leaving the “undesirables” to move elsewhere, there is state action in the constitutional sense because the force of law is placed behind those covenants. There is state action in the constitutional sense when public funds are dispersed by urban development agencies to build racial ghettoes. Where the school district is racially mixed and the races are segregated in separate schools, where black teachers are assigned almost exclusively to black schools, where the school board closed existing schools located in fringe areas and built new schools in black areas and in distant white areas, where the school board continued the “neighborhood” school policy at the elementary level, these actions constitute state action. They are of a kind quite distinct from the classical de jure type of school segregation. Yet calling them de facto is a misnomer, as they are only more subtle types of state action that create or maintain a wholly or partially segregated school system. See Kelly v. Guinn, 456 F. 2d 100. When a State forces, aids, or abets, or helps create a racial “neighborhood,” it is a travesty of justice to treat that neighborhood as sacrosanct in the sense that its creation is free from the taint of state action. The Constitution and Bill of Rights have described the design of a pluralistic society. The individual has the KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 217 189 Opinion of Powell, J. right to seek such companions as he desires. But a State is barred from creating by one device or another ghettoes that determine the school one is compelled to attend. Mr. Justice Powell concurring in part and dissenting in part. I concur in the remand of this case for further proceedings in the District Court, but on grounds that differ from those relied upon by the Court. This is the first school desegregation case to reach this Court which involves a major city outside the South. It comes from Denver, Colorado, a city and a State which have not operated public schools under constitutional or statutory provisions which mandated or permitted racial segregation.¹ Nor has it been argued that any other legislative actions (such as zoning and housing laws) contributed to the segregation which is at issue.² The Court has inquired only to what extent the Denver public school authorities may have contributed to the school segregation which is acknowledged to exist in Denver. The predominantly minority schools are located in two areas of the city referred to as Park Hill and the core city area. The District Court considered that a school ¹ Article IX, § 8, of the Colorado Constitution has expressly prohibited any “classification of pupils ... on account of race or color.” ² See, e. g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 23 (1971): “We do not reach . . . the question whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree.” The term “state action,” as used herein, thus refers to actions of the appropriate public school authorities. 218 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. with a concentration of 70% to 75% “Negro or Hispano students” was identifiable as a segregated school. 313 F. Supp. 61, 77. Wherever one may draw this line, it is undisputed that most of the schools in these two areas are in fact heavily segregated in the sense that their student bodies are overwhelmingly composed of non-Anglo children. The city-wide school mix in Denver is 66% Anglo, 14% Negro, and 20% Hispano. In areas of the city where the Anglo population largely resides, the schools are predominantly Anglo, if not entirely so. The situation in Denver is generally comparable to that in other large cities across the country in which there is a substantial minority population and where desegregation has not been ordered by the federal courts. There is segregation in the schools of many of these cities fully as pervasive as that in southern cities prior to the desegregation decrees of the past decade and a half. The focus of the school desegregation problem has now shifted from the South to the country as a whole. Unwilling and footdragging as the process was in most places, substantial progress toward achieving integration has been made in Southern States.³ No comparable progress has been made in many nonsouthern cities with large minority populations⁴ primarily because of the de Jacto/de jure ³ According to the 1971 Department of Health, Education, and Welfare (HEW) estimate, 43.9% of Negro pupils attended majority white schools in the South as opposed to only 27.8% who attended such schools in the North and West. Fifty-seven percent of all Negro pupils in the North and West attend schools with over 80% minority population as opposed to 32.2% who do so in the South. 118 Cong. Rec. 564 (1972) . ⁴ The 1971 HEW Enrollment Survey dramatized the segregated character of public school systems in many nonsouthern cities. The percentage of Negro pupils which attended schools more than 80% black was 91.3 in Cleveland, Ohio; 97.8 in Compton, California; 78.1 in Dayton, Ohio; 78.6 in Detroit, Michigan; 95.7 in Gary, KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 219 189 Opinion of Powell, J. distinction nurtured by the courts and accepted complacently by many of the same voices which denounced the evils of segregated schools in the South.⁵ But if our national concern is for those who attend such schools, rather than for perpetuating a legalism rooted in history rather than present reality, we must recognize that the evil of operating separate schools is no less in Denver than in Atlanta. I In my view we should abandon a distinction which long since has outlived its time, and formulate constitutional principles of national rather than merely regional application. When Brown n. Board of Education, 347 U. S. 483 (1954) (Brown I), was decided, the distinction between Indiana; 86.4 in Kansas City, Missouri; 86.6 in Los Angeles, California; 78.8 in Milwaukee, Wisconsin; 91.3 in Newark, New Jersey; 89.8 in St. Louis, Missouri. The full data from the Enrollment Survey may be found in 118 Cong. Rec. 563-566 (1972). ⁵ As Senator Ribicoff recognized: “For years we have fought the battle of integration primarily in the South where the problem was severe. It was a long, arduous fight that deserved to be fought and needed to be won. “Unfortunately, as the problem of racial isolation has moved north of the Mason-Dixon line, many northerners have bid an evasive farewell to the 100-year struggle for racial equality. Our motto seems to have been ‘Do to southerners what you do not want to do to yourself.’ “Good reasons have always been offered, of course, for not moving vigorously ahead in the North as well as the South. “First, it was that the problem was worse in the South. Then the facts began to show that that was no longer true. “We then began to hear the de facto-de jure refrain. “Somehow residential segregation in the North was accidental or de facto and that made it better than the legally supported de jure segregation of the South. It was a hard distinction for black children in totally segregated schools in the North to understand, but it allowed us to avoid the problem.” 118 Cong. Rec. 5455 (1972). 220 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. de jure and de facto segregation was consistent with the limited constitutional rationale of that case. The situation confronting the Court, largely confined to the Southern States, was officially imposed racial segregation in the schools extending back for many years and usually embodied in constitutional and statutory provisions. The great contribution of Brown I was its holding in unmistakable terms that the Fourteenth Amendment forbids state-compelled or state-authorized segregation of public schools. 347 U. S., at 488, 493-495. Although some of the language was more expansive, the holding in Brown I was essentially negative: It was impermissible under the Constitution for the States, or their instrumentalities, to force children to attend segregated schools. The forbidden action was de jure, and the opinion in Brown I was construed—for some years and by many courts—as requiring only state neutrality, allowing “freedom of choice” as to schools to be attended so long as the State itself assured that the choice was genuinely free of official restraint.⁶ But the doctrine of Brown I, as amplified by Brown II, 349 U. S. 294 (1955), did not retain its original meaning. In a series of decisions extending from 1954 to 1971 the ⁶ See, e. g., Bradley v. School Board, 345 F. 2d 310, 316 (CA4 1965) (en banc): “It has been held again and again . . . that the Fourteenth Amendment prohibition is not against segregation as such. . . . A state or a school district offends no constitutional requirement when it grants to all students uniformly an unrestricted freedom of choice as to schools attended, so that each pupil, in effect, assigns himself to the school he wishes to attend.” The case was later vacated and remanded by this Court, which expressed no view on the merits of the desegregation plans submitted. 382 U. S. 103, 105 (1965). See also Bell v. School City of Gary, Ind., 324 F. 2d 209 (CA7 1963); Downs v. Board of Education, 336 F. 2d 988 (CAIO 1964); Deal v. Cincinnati Board of Education, 369 F. 2d 55 (CA6 1966). KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 221 189 Opinion of Powell, J. concept of state neutrality was transformed into the present constitutional doctrine requiring affirmative state action to desegregate school systems.⁷ The keystone case was Green v. County School Board, 391 U. S. 430, 437-438 (1968), where school boards were declared to have “the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” The school system before the Court in Green was operating in a rural and sparsely settled county where there were no concentrations of white and black populations, no neighborhood school system (there were only two schools in the county), and none of the problems of an urbanized school district.⁸ The Court properly identified the freedom-of-choice program there as a subterfuge, and the language in Green imposing an affirmative duty to convert to a unitary system was appropriate on the facts before the Court. There was, however, reason to question to what extent this duty would apply in the vastly different factual setting of a large city with extensive areas of residential segregation, presenting problems and calling for solutions quite different from those in the rural setting of New Kent County, Virginia. But the doubt as to whether the affirmative-duty concept would flower into a new constitutional principle of general application was laid to rest by Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971), in which the duty articulated in Green was applied to the ⁷ For a concise history and commentary on the evolution, see generally A. Bickel, The Supreme Court and the Idea of Progress 126-130 (1970). ⁸ See also the companion cases in Raney v. Board of Education, 391 U. S. 443 (1968), and Monroe v. Board of Commissioners, 391 U. S. 450 (1968), neither of which involved large urban or metropolitan areas. 222 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. urban school system of metropolitan Charlotte, North Carolina. In describing the residential patterns in Charlotte, the Court noted the “familiar phenomenon” in the metropolitan areas of minority groups being “concentrated in one part of the city,” 402 U. S., at 25, and acknowledged that: “Rural areas accustomed for half a century to the consolidated school systems implemented by bus transportation could make adjustments more readily than metropolitan areas with dense and shifting population, numerous schools, congested and complex traffic patterns.” 402 U. S., at 14. Despite this recognition of a fundamentally different problem from that involved in Green, the Court nevertheless held that the affirmative-duty rule of Green was applicable, and prescribed for a metropolitan school system with 107 schools and some 84,000 pupils essentially the same remedy—elimination of segregation “root and branch”—which had been formulated for the two schools and 1,300 pupils of New Kent County. In Swann, the Court further noted it was concerned only with States having “a long history” of officially imposed segregation and the duty of school authorities in those States to implement Brown I. 402 U. S., at 5-6. In so doing, the Court refrained from even considering whether the evolution of constitutional doctrine from Brown I to Green/Swann undercut whatever logic once supported the de J act o/de jure distinction. In imposing on metropolitan southern school districts an affirmative duty, entailing large-scale transportation of pupils, to eliminate segregation in the schools, the Court required these districts to alleviate conditions which in large part did not result from historic, state-imposed de jure segregation. Rather, the familiar root cause of segregated schools in all the biracial metropolitan areas of our country is essen- KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 223 189 Opinion of Powell, J. tially the same: one of segregated residential and migratory patterns the impact of which on the racial composition of the schools was often perpetuated and rarely ameliorated by action of public school authorities. This is a national, not a southern, phenomenon. And it is largely unrelated to whether a particular State had or did not have segregative school laws.⁹ Whereas Brown I rightly decreed the elimination of state-imposed segregation in that particular section of the country where it did exist, Swann imposed obligations on southern school districts to eliminate conditions which are not regionally unique but are similar both in origin and effect to conditions in the rest of the country. As the remedial obligations of Swann extend far beyond the elimination of the outgrowths of the state-imposed segregation outlawed in Brown, the rationale of Swann points inevitably toward a uniform, constitutional approach to our national problem of school segregation. II The Court’s decision today, while adhering to the de jure/de facto distinction, will require the application ⁹ As Dr. Karl Taeuber states in his article, Residential Segregation, 213 Scientific American 12, 14 (Aug. 1965): “No elaborate analysis is necessary to conclude from these figures that a high degree of residential segregation based on race is a universal characteristic of American cities. This segregation is found in the cities of the North and West as well as of the South; in large cities as well as small; in nonindustrial cities as well as industrial; in cities with hundreds of thousands of Negro residents as well as those with only a few thousand, and in cities that are progressive in their employment practices and civil rights policies as well as those that are not.” In his book, Negroes in Cities (1965), Dr. Taeuber stated that residential segregation exists “regardless of the character of local laws and policies, and regardless of the extent of other forms of segregation or discrimination.” Id., at 36. 224 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. of the Green/Swann doctrine of “affirmative duty” to the Denver School Board despite the absence of any history of state-mandated school segregation. The only evidence of a constitutional violation was found in various decisions of the School Board. I concur in the Court’s position that the public school authorities are the responsible agency of the State, and that if the affirmative-duty doctrine is sound constitutional law for Charlotte, it is equally so for Denver. I would not, however, perpetuate the de jure/de facto distinction nor would I leave to petitioners the initial tortuous effort of identifying “segregative acts” and deducing “segregative intent.” I would hold, quite simply, that where segregated public schools exist within a school district to a substantial degree, there is a prima facie case that the duly constituted public authorities (I will usually refer to them collectively as the “school board”) are sufficiently responsible¹⁰ to warrant imposing upon them a nationally applicable burden to demonstrate they nevertheless are operating a genuinely integrated school system. A The principal reason for abandonment of the de jure/ de facto distinction is that, in view of the evolution of the holding in Brown I into the affirmative-duty doctrine, the distinction no longer can be justified on a principled basis. In decreeing remedial requirements for the Charlotte/Mecklenburg school district, Swann dealt with a metropolitan, urbanized area in which the basic ¹⁰ A prima facie case of constitutional violation exists when segregation is found to a substantial degree in the schools of a particular district. It is recognized, of course, that this term is relative and provides no precise standards. But circumstances, demographic and otherwise, vary from district to district and hard-and-fast rules should not be formulated. The existence of a substantial percentage of schools populated by students from one race only or predominantly so populated, should trigger the inquiry. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 225 189 Opinion of Powell, J. causes of segregation were generally similar to’ those in all sections of the country, and also largely irrelevant to the existence of historic, state-imposed segregation at the time of the Brown decision.' Further, the extension of the affirmative-duty concept to include compulsory student transportation went well beyond the mere remedying of that portion of school segregation for which former state segregation laws were ever responsible. Moreover, as the Court’s opinion today abundantly dem-' onstrates, the facts deemed necessary to establish de jure discrimination present problems of subjective intent which the courts cannot fairly resolve. At the outset, one must try to identify the constitutional right which is being enforced. This is not easy, as the precedents have been far from explicit. In Brown I, after emphasizing the importance of education, the Court said that: “Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” 347 U. 8., at 493. In Brown II, the Court identified the “fundamental principle” enunciated in Brown I as being the unconstitutionality of “racial discrimination in public education,” 349 U. 8., at 298, and spoke of “the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis.” 349 U. S., at 300. Although this and similar language is ambiguous as to the specific constitutional right, it means—as a minimum—that one has the right not to be compelled by state action to attend a segregated school system. In the evolutionary process since 1954, decisions of this Court have added a significant gloss to this original right. Although nowhere expressly articulated in these terms, I would now define it as the right, derived from the Equal Protection Clause, to expect that once the State has as 226 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. sumed responsibility for education, local school boards will operate integrated school systems within their respective districts.¹¹ This means that school authorities, consistent with the generally accepted educational goal of attaining quality education for all pupils, must make and implement their customary decisions with a view toward enhancing integrated school opportunities. The term “integrated school system” presupposes, of course, a total absence of any laws, regulations, or policies supportive of the type of “legalized” segregation condemned in Brown. A system would be integrated in accord with constitutional standards if the responsible authorities had taken appropriate steps to (i) integrate faculties and administration; (ii) scrupulously assure equality of facilities, instruction, and curriculum opportunities throughout the district; (iii) utilize their authority to draw attendance zones to promote integration; and (iv) locate new schools, close old ones, and determine the size and grade categories with this same objective in mind. Where school authorities decide to undertake the transportation of students, this also must be with integrative opportunities in mind. The foregoing prescription is not intended to be either definitive or all-inclusive, but rather an indication of the contour characteristics of an integrated school system in which all citizens and pupils may justifiably be confident that racial discrimination is neither practiced nor tolerated. An integrated school system does not ¹¹ See discussion in Part III, infra, of the remedial action which is appropriate to accomplish desegregation where a court finds that a school board has failed to operate an integrated school system within its district. Plaintiffs must, however, establish the failure of a school board to operate an integrated school system before a court may order desegregative steps by way of remedy. These are two distinct steps which recognize the necessity of proving the constitutional violation before desegregative remedial action can be ordered. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 227 189 Opinion of Powell, J. mean—and indeed could not mean in view of the residential patterns of most of our major metropolitan areas—that every school must in fact be an integrated unit. A school which happens to be all or predominantly white or all or predominantly black is not a “segregated” school in an unconstitutional sense if the system itself is a genuinely integrated one. Having school boards operate an integrated school system provides the best assurance of meeting the constitutional requirement that racial discrimination, subtle or otherwise, will find no place in the decisions of public school officials. Courts judging past school board actions with a view to their general integrative effect will be best able to assure an absence of such discrimination while avoiding the murky, subjective judgments inherent in the Court’s search for “segregative intent.” Any test resting on so nebulous and elusive an element as a school board’s segregative “intent” provides inadequate assurance that minority children will not be shortchanged in the decisions of those entrusted with the non-discriminatory operation of our public schools. Public schools are creatures of the State, and whether the segregation is state-created or state-assisted or merely state-perpetuated should be irrelevant to constitutional principle. The school board exercises pervasive and continuing responsibility over the long-range planning as well as the daily operations of the public school system. It sets policies on attendance zones, faculty employment and assignments, school construction, closings and consolidations, and myriad other matters. School board decisions obviously are not the sole cause of segregated school conditions. But if, after such detailed and complete public supervision, substantial school segregation still persists, the presumption is strong that the school board, by its acts or omissions, is in some part responsible. Where state action and supervision are so 228 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. pervasive and where, after years of such action, segregated schools continue to exist within the district to a substantial degree, this Court is justified in finding a prima facie case of a constitutional violation. The burden then must fall on the school board to demonstrate it is operating an “integrated school system.” It makes little sense to find prima facie violations and the consequent affirmative duty to desegregate solely in those States with state-imposed segregation at the time of the Brown decision. The history of state-imposed segregation is more widespread in our country than the de jure/de facto distinction has traditionally cared to recognize.¹² As one commentator has noted: “[T]he three court of appeals decisions denying a constitutional duty to abolish de facto segregation all arose in cities—Cincinnati, Gary, and Kansas City, Kansas—where racial segregation in schools was formerly mandated by state or local law. [Deal v. Cincinnati Board of Education, 369 F. 2d 55 (CA6 1966), cert, denied, 389 U. S. 847 (1967); Downs v. Board of Education, 336 F. 2d 988 (CAIO 1964), cert, denied, 380 U. S. 914 (1965); Bell v. School City of Gary, Ind., 324 F. 2d 209 (CA7 1963), cert, denied, 377 U. S. 924 (1964).] Ohio discarded its statute in 1887, Indiana in 1949, and Kansas City not until the advent of Brown. If Negro and white parents in ¹² Indeed, if one goes back far enough, it is probable that all racial segregation, wherever occurring and whether or not confined to the schools, has at some time been supported or maintained by government action. In Beckett v. School Board, 308 F. Supp. 1274, 1311-1315 (ED Va. 1969), Judge Hoffman compiled a summary of past public segregative action which included examples from a great majority of States. He concluded that “[o]nly as to the states of Maine, New Hampshire, Vermont, Washington, Nevada, and Hawaii does it appear from this nonexhaustive research that no discriminatory laws appeared on the books at one time or another.” Id., at 1315. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 229 189 Opinion of Powell, J. Mississippi are required to bus their children to distant schools on the theory that the consequences of past de jure segregation cannot otherwise be dissipated, should not the same reasoning apply in Gary, Indiana, where no more than five years before Brown the same practice existed with presumably the same effects?” Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 Calif. L. Rev. 275, 297 (1972).¹³ Not only does the de jure/de jacto distinction operate inequitably on communities in different sections of the country, more importantly, it disadvantages minority children as well. As the Fifth Circuit stated: “ ‘The Negro children in Cleveland, Chicago, Los Angeles, Boston, New York, or any other area of the nation which the opinion classifies under de facto segregation, would receive little comfort from the assertion that the racial make-up of their school system does not violate their constitutional rights because they were born into a de facto society, while the exact same racial make-up of the school system in the 17 Southern and border states violates the ¹³ The author continues: “True, the earlier the policy of segregation was abandoned the less danger there is that it continues to ^operate covertly, is significantly responsible for present day patterns of residential segregation, or has contributed materially to present community attitudes toward Negro schools. But there is no reason to suppose that 1954 is a universally appropriate dividing line between de jure segregation that may safely be assumed to have spent itself and that which may not. For many remedial purposes, adoption of an arbitrary but easily administrable cutoff point might not be objectionable. But in a situation such as school desegregation, where both the rights asserted and the remedial burdens imposed are of such magnitude, and where the resulting sectional discrimination is passionately resented, it is surely questionable whether such arbitrariness is either politically or morally acceptable.” 230 OCTOBER TERM, 1972 Opinion of Powell, J. 413U.S. constitutional rights of their counterparts, or even their blood brothers, because they were born into a de jure society. All children everywhere in the nation are protected by the Constitution, and treatment which violates their constitutional rights in one area of the country, also violates such constitutional rights in another area.’ ” Cisneros v. Corpus Christi Independent School District, 467 F. 2d 142, 148 (CA5 1972) (en banc), quoting United States v. Jefferson County Board of Education, 380 F. 2d 385, 397 (CA5 1967) (Gewin, J., dissenting).¹⁴ The Court today does move for the first time toward breaking down past sectional disparities, but it clings tenuously to its distinction. It searches for de jure action in what the Denver School Board has done or failed to do, and even here the Court does not rely upon the results or effects of the Board’s conduct but feels compelled to find segregative intent:¹⁵ “We emphasize that the differentiating factor between de jure segregation and so-called de facto ¹⁴ See Bickel, supra, n. 7, at 119: “If a Negro child perceives his separation as discriminatory and invidious, he is not, in a society a hundred years removed from slavery, going to make fine distinctions about the source of a particular separation.” ¹⁵ The Court today does not require, however, a segregative intent with respect to the entire school system, and indeed holds that if such an intent is found with respect to some schools in a system, the burden—normally on the plaintiffs—shifts to the defendant school authorities to prove a negative: namely, that their purposes were benign, ante, at 207-209. The Court has come a long way since Brown I. Starting from the unassailable de jure ground of the discriminatory constitutional and statutory provisions of some States, the new formulation—still professing fidelity to the de jure doctrine-—is that desegregation will be ordered despite the absence of any segregative laws if: (i) segregated schools in fact exist; (ii) a court finds that they result from KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 231 189 Opinion of Powell, J. segregation to which we referred in Swann is purpose or intent to segregate.” Ante, at 208 (emphasis is the Court’s). The Court’s insistence that the “differentiating factor” between de jure and de facto segregation be “purpose or intent” is difficult to reconcile with the language in so recent a case as Wright v. Council of the City of Emporia, 407 U. S. 451 (1972). In holding there that “motivation” is irrelevant, the Court said: “In addition, an inquiry into the ‘dominant’ motivation of school authorities is as irrelevant as it is fruitless. The mandate of Brown II was to desegregate schools, and we have said that ‘[t]he measure of any desegregation plan is its effectiveness.’ Davis v. School Commissioners of Mobile County, 402 U. S. 33, 37. Thus, we have focused upon the effect—not the purpose or motivation—of a school board’s action in determining whether it is a permissible method of dismantling a dual system. . . . “. . . Though the purpose of the new school districts was found to be discriminatory in many of these cases, the courts’ holdings rested not on motivation or purpose but on the effect of the action upon the dismantling of the dual school systems involved. That was the focus of the District Court in this case, and we hold that its approach was proper.” 407 U. S., at 462. I can discern no basis in law or logic for holding that the motivation of school board action is irrelevant in Virginia and controlling in Colorado. It may be argued, of course, that in Emporia a prior constitutional viola- some action taken with segregative intent by the school board; (iii) such action relates'to any “meaningful segment” of the school system; and (iv) the school board cannot prove that its intentions with respect to the remainder of the system were nonsegregative. 232 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. tion had already been proved and that this justifies the distinction. The net result of the Court’s language, however, is the application of an effect test to the actipns of southern school districts and an intent test to those in other sections, at least until an initial de jure finding for those districts can be made. Rather than straining to perpetuate any such dual standard, we should hold forthrightly that significant segregated school conditions in any section of the country are a prima facie violation of constitutional rights. As the Court has noted elsewhere: “Circumstances or chance may well dictate that no persons in a certain class will serve on a particular jury or during some particular period. But it taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner” Hernandez v. Texas, 347 U. S. 475, 482 (1954). (Emphasis added.) B There is thus no reason as a matter of constitutional' principle to adhere to the de jure/de facto distinction in school desegregation cases. In addition, there are reasons of policy and prudent judicial administration which point strongly toward the adoption of a uniform national rule. The litigation heretofore centered in the South already is surfacing in other regions. The decision of the Court today, emphasizing as it does the elusive element of segregative intent, will invite numerous desegregation suits in which there can be little hope of uniformity of result. The issue in these cases will not be whether segregated education exists. This will be conceded in most of them. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 233 189 Opinion of Powell, J. The litigation will focus as a consequence of the Court’s decision on whether segregation has resulted in any “meaningful or significant” portion of a.school system from a school board’s “segregative intent.” The intractable problems involved in litigating this issue are obvious to any lawyer. The results of litigation—often arrived at subjectively by a court endeavoring to ascertain the subjective intent of school authorities with respect to action taken or not taken over many years—will be fortuitous, unpredictable and even capricious. The Denver situation is illustrative of the problem. The courts below found evidence of de jure violations with respect to the Park Hill schools and an absence of such violations with respect to the core city schools, despite the fact that actions taken by the school board with regard to those two sections were not dissimilar. It is, for example, quite possible to contend that both the construction of Manual High School in the core city area and Barrett Elementary School in the Park Hill area operated to serve their surrounding Negro communities and, in effect, to merge school attendance zones with segregated residential patterns. See Brief for Petitioners 80-83. Yet findings even on such similar acts will, under the de jure/de facto distinction, continue' to differ, especially since the Court has never made clear what suffices to establish the requisite “segregative intent” for an initial constitutional violation. Even if it were possible to clarify this question, wide and unpredictable differences of opinion among judges would be inevitable when dealing with an issue as slippery as “intent” or “purpose,” especially when related to hundreds of decisions made by school authorities under varying conditions over many years. This Court has recognized repeatedly that it is “extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a 234 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. legislative enactment,” Palmer v. Thompson, 403 U. S. 217, 224 (1971); McGinnis v. Royster, 410 U. S. 263, 276-277 (1973); United States v. O’Brien, 391 U. S. 367, 381 (1968). Whatever difficulties exist with regard to a single statute will be compounded in a judicial review of years of administration of a large and complex school system.¹⁶ Every act of a school board and school administration, and indeed every failure to act where affirmative action is indicated, must now be subject to scrutiny. The most routine decisions with respect to the operation of schools, made almost daily, can affect in varying degrees the extent to which schools are initially segregated, remain in that condition, are desegregated, or—for the long term future—are likely to be one or the other. These decisions include action or nonaction with respect to school building construction and location; the timing of building new schools and their size; the closing and consolidation of schools; the drawing or gerrymandering of ¹⁶ As one commentator has expressed it: “If the courts are indeed prepared to inquire into motive, thorny questions will arise even if one assumes that racial motivation is capable of being proven at trial. What of the case in which one or more members of a school board, but less than a majority, are found to have acted on racial grounds? What if it appears that the school board’s action was prompted by a mixture of motives, including constitutionally innocent ones that alone would have prompted the board to act? What if the members of the school board were not themselves racially inspired but wished to please their constituents, many of whom they knew to be so? If such cases are classified as unconstitutional de jure segregation, there is little point in preserving the de jure-de facto distinction at all. And it may well be that the difference between any of these situations and one in which racial motivation is altogether lacking is too insignificant, from the standpoint of both the moral culpability of the state officials and the impact upon the children involved, to support a difference in constitutional treatment.” Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 Calif. L. Rev. 275, 284-285 (1972). KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 235 189 Opinion of Powell, J. student attendance zones; the extent to which a neighborhood policy is enforced; the recruitment., promotion and assignment of faculty and supervisory personnel; policies with respect to transfers from one school to another; whether, and to what extent, special schools will be provided, where they will be located, and who will qualify to attend them; the determination of curriculum, including whether there will be “tracks” that lead primarily to college or to vocational training, and the routing of students into these tracks; and even decisions as to social, recreational, and athletic policies. In Swann the Court did not have to probe into segregative intent and proximate cause with respect to each of these “endless” factors. The basis for its de jure finding there was rooted primarily in the prior history of the desegregation suit. 402 U. S., at 5-6. But in a case of the present type, where no such history exists, a judicial examination of these factors will be required under today’s decision. This will lead inevitably to uneven and unpredictable results, to protracted and inconclusive litigation, to added burdens on the federal courts, and to serious disruption of individual school systems. In the absence of national and objective standards, school boards and administrators will remain in a state of uncertainty and disarray, speculating as to what is required and when litigation will strike. C Rather than continue to prop up a distinction no longer grounded in principle, and contributing to the consequences indicated above, we should acknowledge that whenever public school segregation exists to a substantial degree there is prima facie evidence of a constitutional violation by the responsible school board. It is true, of course, that segregated schools—wherever located—are not solely the product of the action or 236 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. inaction of public school authorities. Indeed, as indicated earlier, there can be little doubt that principal causes of the pervasive school segregation found in the major urban areas of this country, whether in the North, West, or South, are the socio-economic influences which have concentrated our minority citizens in the inner cities while the more mobile white majority disperse to the suburbs. But it is also true that public school boards have continuing, detailed responsibility for the public school system within their district and, as Judge John Minor Wisdom has noted, “[w]hen the figures [showing segregation in the schools] speak so eloquently, a prima facie case of discrimination is established.” United States v. Texas Education Agency, 467 F. 2d 848, 873 (CA5 1972) (en banc). Moreover, as foreshadowed in Swann and as implicitly held today, school boards have a duty to minimize and ameliorate segregated conditions by pursuing an affirmative policy of desegregation. It is this policy which must be applied consistently on a national basis without regard to a doctrinal distinction which has outlived its time. Ill The preceding section addresses the constitutional obligation of public authorities in the school districts throughout our country to operate integrated school systems. When the schools of a particular district are found to be substantially segregated, there is a prima facie case that this obligation has not been met. The burden then shifts to the school authorities to demonstrate that they have in fact operated an integrated system as this term is defined, supra, at 227-228. If there is a failure successfully to rebut the prima facie case, the question then becomes what reasonable affirmative desegregative steps district courts may require to KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 237 189 Opinion of Powell, J. place the school system in compliance with the constitutional standard. In short, what specifically is the nature and scope of the remedy? As the Court’s opinion virtually compels the finding on remand that Denver has a “dual school system,” that city will then be under an “affirmative duty” to desegregate its entire system “root and branch.” Green v. County School Board, 391 U. S., at 437-438. Again, the critical question is, what ought this constitutional duty to entail? A The controlling case is Swann, supra, and the question which will confront and confound the District Court and Denver School Board is what, indeed, does Swann require? Swann purported to enunciate no new principles, relying heavily on Brown I and II and on Green. Yet it affirmed a district court order which had relied heavily on “racial ratios” and sanctioned transportation of elementary as well as secondary pupils. Lower federal courts have often read Swann as requiring far-reaching transportation decrees ¹⁷ “to achieve the greatest possible degree of actual ¹⁷ See, e. g., Thompson v. School Board of Newport News, 465 F. 2d 83, 87 (1972), where the Fourth Circuit en banc upheld a district court assignment plan where “travel time, varying from a minimum of forty minutes and a maximum of one hour, each way, would be required for busing black students out of the old City and white students into the old City in order to achieve a racial balancing of the district.” This transportation was decreed for children from the third grade up, involving children as young as eight years of age. In Northcross v. Board of Education of Memphis City Schools, 466 F. 2d 890, 895 (1972), the Sixth Circuit affirmed a district court assignment plan which daily transported 14,000 children with “the maximum time to be spent on the buses by any child [being] 34 minutes . . . presumably each way. But as Judge Weick noted in dissent the Sixth Circuit instructed the district judge to implement yet further desegregation orders. Plans presently under consideration by that court call for the busing of 39,085 and 61,530 238 OCTOBER TERM, 1972 Opinion of Powell, J. 413U.S. desegregation.” 402 U. S., at 26. In the context of a large urban area, with heavy residential concentrations of white and black citizens in different—and widely separated—sections of the school district, extensive dispersal and transportation of pupils is inevitable if Swann is read as expansively as many courts have been reading it to date. To the extent that Swann may be thought to require large-scale or long-distance transportation of students in our metropolitan school districts, I record my profound misgivings. Nothing in our Constitution commands or encourages any such court-compelled disruption of public education. It may be more accurate to view Swann as having laid down a broad rule of reason under which desegregation remedies must remain flexible and other values and interests be considered. Thus the Court recognized that school authorities, not the federal judiciary, must be charged in the first instance with the task of desegregating local school systems. Id., at 16. It noted that school boards in rural areas can adjust more readily to this task than those in metropolitan districts “with dense and shifting population, numerous schools, congested and complex traffic patterns.” Id., at 14. Although the use of pupil transportation was approved as a remedial device, transportation orders are suspect “when the time or distance of travel is so great children respectively, for undetermined lengths of time. Id., at 895-896. Petitioners before this Court in Potts v. Flax, No. 72-288, cert, denied, 409 U. S. 1007 (1972), contended that the implementation of the Fifth Circuit’s directive in Flax v. Potts, 464 F. 2d 865 (1972), would require bus rides of up to two hours and 20 minutes each day and a round trip of up to 70 miles. Pet. for Cert. 14. While respondents contended these figures represent an “astounding inflation,” Brief in Opposition 7, transportation of a significant magni-tude seems inevitable. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 239 189 Opinion of Powell, J. as to either risk the health of the children or significantly impinge on the educational process.” Id., at 30-31. Finally, the age of the pupils to be transported was recognized by the Court in Swann as one important limitation on the time of student travel. Id., at 31. These factors were supposed to help guide district courts in framing equitable remedies in school desegregation cases.¹⁸ And the Court further emphasized that equitable decrees are inherently sensitive, not solely to the degree of desegregation to be achieved, but to a variety of other public and private interests: “[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution. Id., at 15-16. Those words echoed a similar expression in Brown II, 349 U. S., at 300: “In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.” Thus, in school desegregation cases, as elsewhere, equity counsels reason, flexibility, and balance. See, e. g., Lemon ¹⁸ See United States v. Texas Education Agency, 467 F. 2d 848, 883 (CA5 1972) (Bell, J., concurring in an opinion in which seven other judges joined): In our view the remedy which the district court is required to formulate should be formulated within the entire context of the opinion in Swann v. Charlotte-Mecklenburg Board of Education . . . .” (Emphasis added.) 240 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. v. Kurtzman, 411 U. S. 192 (1973). I am aware, of course, that reasonableness in any area is a relative and subjective concept. But with school desegregation, reasonableness would seem to embody a balanced evaluation of the obligation of public school boards to promote desegregation with other, equally important educational interests which a community may legitimately assert. Neglect of either the obligation or the interests destroys the even-handed spirit with which equitable remedies must be approached.¹⁹ Overzealousness in pursuit of any single goal is untrue to the tradition of equity and to the “balance” and “flexibility” which this Court has always respected. , B Where school authorities have defaulted in their duty to operate an integrated school system, district courts must insure that affirmative desegregative steps ensue. Many of these can be taken effectively without damaging state and parental interests in 'having children attend schools within a reasonable vicinity of home. Where desegregative steps are possible within the framework of a system of “neighborhood education,” schoql authorities must pursue them. For example, boundaries of neighborhood attendance zones should be drawn to integrate, to the extent practicable, the school’s student body. Construction of new schools should be of ¹⁹ The relevant inquiry is “whether the costs of achieving desegregation in any given situation outweigh the legal, moral, and educational considerations favoring it. . . . It is clear . . . that the Constitution should not be held to require any transportation plan that keeps children on a bus for a substantial part of the day, consumes significant portions of funds otherwise spendable directly on education, or involves a genuine element of danger to the safety of the child.” Comment, School Desegregation After Swann: A Theory of Government Responsibility, 39 U. Chi. L. Rev. 421, 422 443 (1972). KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 241 189 Opinion of Powell, J. such a size and at such a location as to encourage the likelihood of integration, Swann, supra, at 21. Faculty integration should be attained throughout the school system, id., at 19; United States v. Montgomery County Board of Education, 395 U. S. 225 (1969). An optional majority-to-minority transfer program, with the State providing free transportation to desiring students, is also a helpful adjunct to a desegregated school system. Swann, supra, at 26-27. It hardly need be repeated that allocation of resources within the school district must be made with scrupulous fairness among all schools. The above examples are meant to be illustrative, not exhaustive. The point is that the overall integrative impact of such school board decisions must be assessed by district courts in deciding whether the duty to desegregate has been met. For example, “neighborhood school plans are constitutionally suspect when attendance zones are superficially imposed upon racially defined neighborhoods, and when school construction preserves rather than eliminates the racial homogeny [sic] of given schools.”²⁰ Keyes v. School District No. 1, 445 F. 2d 990, 1005 (CAIO 1971). See also United States v. Board of Education of Tulsa County, 429 F. 2d 1253, 1258-1259 (CAIO 1970). This does not imply that decisions on faculty assignment, attendance zones, school construction, closing and consolidation, must be made to the detriment of all neutral, nonracial considerations. But these considerations can, with proper school board initiative, generally be met in a manner that will enhance the degree of school desegregation. C Defaulting school authorities would have, at a minimum, the obligation to take affirmative steps of the sort ²⁰ A useful study of the historical uses and abuses of the neighborhood school concept is M. Weinberg, Race & Place (1967). 242 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. outlined in the above section. School boards would, of course, be free to develop and initiate further plans to promote school desegregation. In a pluralistic society such as ours, it is essential that no racial minority feel demeaned or discriminated against and that students of all races learn to play, work, and cooperate with one another in their common pursuits and endeavors. Nothing in this opinion is meant to discourage school boards from exceeding minimal constitutional standards in promoting the values of an integrated school experience. A constitutional requirement of extensive student transportation solely to achieve integration presents a vastly more complex problem. It promises, on the one hand, a greater degree of actual desegregation, while it infringes on what may fairly be regarded as other important community aspirations and personal rights. Such a requirement is also likely to divert attention and resources from the foremost goal of any school system: the best quality education for all pupils. The Equal Protection Clause does, indeed, command that racial discrimination not be tolerated in the decisions of public school authorities. But it does not require that school authorities undertake widespread student transportation solely for the sake of maximizing integration.²¹ ²¹ In fact, due to racially separate residential patterns that characterize our major urban areas it is quite unrealistic to think of achieving in many cities substantial integration throughout the school district without a degree of student transportation which would have the gravest economic and educational consequences. As Professor Bickel notes: “In most of the larger urban areas, demographic conditions are such that no policy that a court can order, and a school board, a city, or even a state has the capability to put into effect, will in fact result in the foreseeable future in racially balanced public schools. Only a reordering of the environment involving economic and social policy on the broadest conceivable front might have an appreciable impact.” Bickel, supra, n. 7, at 132. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 243 189 Opinion of Powell, J. This obviously does not mean that bus transportation has no place in public school systems or is not a permissible means in the desegregative process. The transporting of school children is as old as public education, and in rural and some suburban settings it is as indispensable as the providing of books. It is presently estimated that approximately half of all American children ride buses to school for reasons unrelated to integration.²² At the secondary level in particular, where the schools are larger and serve a wider, more dispersed constituency than elementary schools, some form of public or privately financed transportation is often necessary. There is a significant difference, however, in transportation plans voluntarily initiated by local school boards for educational purposes and those imposed by a federal court. The former usually represent a necessary or convenient means of access to the school nearest home; the latter often require lengthy trips for no purpose other than to further integration.²³ Yet the ²² Estimates vary. Swann, 402 U. S., at 29, noted that “[eighteen million of the Nation’s public school children, approximately 39%, were transported to their schools by bus in 1969-1970 in all parts of the country.” Senator Ribicoff, a thoughtful student of this problem, stated that “[t]wo-thirds of all American children today ride buses to schools for reasons unrelated to integration.”- 118 Cong. Rec. 5456 (1972). ²³ Historically, distant transportation was wrongly used to promote segregation. “Negro children were generally considered capable of traveling longer distances to school and without the aid of any vehicle. What was too far for a white child became reasonably near for a Negro child,” Weinberg, supra, n. 20, at 87. This deplorable history has led some to argue that integrative bus rides are justified as atonement for past segregative trips arid that neighborhood education is now but a code word for racial segregation. But misuse of transportation in the past does not imply neighborhood schooling has no valid nonsegregative uses for the present. Nor would wrongful transportation in the past justify detrimental transportation for the children of today. 244 OCTOBER TERM, 1972 Opinion of Powell, J. • 413 U. S. Court in Swann was unquestionably right in describing bus transportation as “one tool of school desegregation.” 402 U. S., at 30.²⁴ The crucial issue is when, under what circumstances, and to what extent such transportation may appropriately be ordered. The answer to this turns—as it does so often in the law—upon a sound exercise of discretion under the circumstances. Swann itself recognized limits to desegregative obligations. It noted that a constitutional requirement of “any particular degree of racial balance or mixing . . . would be disapproved . . . ,” and sanctioned district court use of mathematical ratios as “no more than a starting point in the process of shaping a remedy . . . .” Id., at 24, 25. Thus, particular schools may be all white or all black and still not infringe constitutional rights if the system is genuinely integrated and school authorities are pursuing integrative steps short of extensive and disruptive transportation. The refusal of the Court in Swann to require racial balance in schools throughout the district or the arbitrary elimination of all “one-face schools,” id., at 26, is grounded in a recognition that ²⁴ Some communities had transportation plans in effect at the time of court desegregation orders. See Swann, supra, at 29 n. 11; Davis v. Board of School Commissioners of Mobile County, 402 U. S. 33, 34-35 (1971). Courts have used the presence or absence of existing transportation in a district as one factor in framing and implementing desegregation decrees. United States v. Watson Chapel School District, 446 F. 2d 933, 937 (CA8 1971); Northcross v. Board of Education of Memphis City Schools, 444 F. 2d 1179, 1182-1183 (CA6 1971); Davis v. Board of Education of North Little Rock, 328 F. Supp. 1197, 1203 (ED Ark. 1971). Where a school board is voluntarily engaged in transporting students, a district court is, of course, obligated to insure that such transportation is not undertaken with segregative effect. Where, also, voluntary transportation programs are already in progress, there may be greater justification for court-ordered transportation of students for a comparable time and distance to achieve greater integration. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 245 189 Opinion of Powell, J. the State, parents, and children all have at stake in school desegregation decrees, legitimate and recognizable interests. The personal interest might be characterized as the desire that children attend community schools near home. Dr. James Coleman testified for petitioners at trial that “most school systems organize their schools in relation to the residents by having fixed school districts and some of these are very ethnically homogeneous.” App. 1549a. In Deal v. Cincinnati Board of Education, 369 F. 2d, at 60, the Sixth Circuit summarized the advantages of such a neighborhood system of schools: ²⁵ “Appellants, however, pose the question of whether the neighborhood system of pupil placement, fairly administered without racial bias, comports with the requirements of equal opportunity if it nevertheless results in the creation of schools with predominantly or even exclusively Negro pupils. The neighborhood system is in wide use throughout the nation and has been for many years the basis of school administration. This is so because it is acknowledged to have several valuable aspects which are an aid to education, such as minimization of safety hazards to children in reaching school, economy of cost in reducing transportation needs, ease of pupil ²⁵ The term “neighborhood school” should not be supposed- to denote solely a walk-in school or one which serves children only in the surrounding blocks. The Court has noted, in a different context, that “[t]he word 'neighborhood’ is quite as susceptible of variation as the word ‘locality.’ Both terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles.” Connally v. General Construction Co., 269 U. S. 385, 395 (1926). In the school context, “neighborhood” refers to relative proximity, to a preference for a school nearer to, rather than more distant from, home. 246 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. placement and administration through the use of neutral, easily determined standards, and better home-school communication.” The neighborhood school does provide greater ease of parental and student access and convenience, as well as greater economy of public administration. These are obvious and distinct advantages, but the legitimacy of the neighborhood concept rests on more basic grounds.²⁰ Neighborhood school systems, neutrally administered, reflect the deeply felt desire of citizens for a sense of community in their public education. Public schools have been a traditional source of strength to our Nation, and that strength may derive in part from the identification of many schools with the personal features of the surrounding neighborhood. Community support, interest, and dedication to public schools may well run higher with a neighborhood attendance pattern: distance may encourage disinterest. Many citizens sense today a decline in the intimacy of our institutions—home, church, and school—which has caused a concomitant decline in the unity and communal spirit of our people. I pass no judgment on this viewpoint, but I do believe that this Court should be wary of compelling in the name of constitutional law what may seem to many a dissolution in the traditional, more personal fabric of their public schools. Closely related to the concept of a community and neighborhood education, are those rights and duties parents have with respect to the education of their children. The law has long recognized the parental duty to nurture, support, and provide for the welfare of children, includ- ²⁶1 do not imply that the neighborhood concept must be embodied in every school system. But where a school board has chosen it, federal judges should accord it respect in framing remedial decrees. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 247 189 Opinion of Powell, J. ing their education. In Pierce v. Society of SisterSf 268 U. S. 510, 534—535, a unanimous Court held that: “Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . . The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” And in Griswold v. Connecticut, 381 U. S. 479, 482 (1965), the Court noted that in Pierce, “the right to educate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments.” I do not believe recognition of this right can be confined solely to a parent’s choice to send a child to public or private school. Most parents cannot afford the luxury of a private education for their children, and the dual obligation of private tuitions and public taxes. Those who may for numerous reasons seek public education for their children should not be forced to forfeit all interest or voice in the school their child attends. It would, of course, be impractical to allow the wishes of particular parents to be controlling. Yet the interest of the parent in the enhanced parentschool and parent-child communication allowed by the neighborhood unit ought not to be suppressed by force of law. In the commendable national concern for alleviating public school segregation, courts may have overlooked the fact that the rights and interests of children affected by a desegregation program also are entitled to consideration. Any child, white or black, who is compelled to leave his neighborhood and spend significant time each 248 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. day being transported to a distant school suffers an impairment of his liberty and his privacy. Not long ago, James B. Conant wrote that “[a]t the elementary school level the issue seems clear. To send young children day after day to distant schools by bus seems out of the question.” ²⁷ A community may well conclude that the portion of a child’s day spent on a bus might be used more creatively in a classroom, playground, or in some other extracurricular school activity. Decisions such as these, affecting the quality of a child’s daily life, should not lightly be held constitutionally errant. Up to this point I have focused mainly on the personal interests of parents and children which a community may believe to be best protected by a neighborhood system of schools. But broader considerations lead me to question just as seriously any remedial requirement of extensive student transportation solely to further integration. Any such requirement is certain to fall disproportionately on the school districts of our country, depending on their degree of urbanization, financial resources, and their racial composition. Some districts with little nr no bi-racial population will experience little or no educational disruption, while others, notably in large, biracial metropolitan areas, must at considerable expense undertake extensive transportation to achieve the type of integration frequently being ordered by district courts.²⁸ At a time when public education generally is suffering serious financial malnutrition, the economic burdens of such transportation can be severe, requiring both initial capital outlays and annual operating costs in the millions of dollars.²⁹ And while constitutional requirements have ²⁷ Slums and Suburbs 29 (1961). ²⁸ See n. 21, supra. ²⁹ In Memphis, for example, which has no history of busing students, the minimum transportation plan ordered by the courts will require, in the School Board’s estimate, an initial capital expenditure KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 249 189 Opinion of Powell, J. often occasioned uneven burdens, never have they touched so sensitive a matter as wide differences in the compulsory transportation requirements for literally hundreds of thousands of school children. The argument for student transportation also overlooks the fact that the remedy exceeds that which may be necessary to redress the constitutional evil. Let us use Denver as an example. The Denver School Board, by its action and nonaction, may be legally responsible for some of the segregation that exists. But if one assumes a maximum discharge of constitutional duty by the Denver Board over the past decades, the fundamental problem of residential segregation would persist.³⁰ It is, indeed, a novel application of equitable power—not to mention a dubious extension of constitutional doctrine— to require so much greater a degree of forced school integration than would have resulted from purely natural and neutral nonstate causes. The compulsory transportation of students carries a further infirmity as a constitutional remedy. With most constitutional violations, the major burden of remedial action falls on offending state officials. Public officials who act to infringe personal rights of speech, voting, or religious exercise, for example, are obliged to cease the offending act or practice and, where necessary-, institute corrective measures. It is they who bear the brunt of remedial action, though other citizens will to varying de of $1,664,192 for buses plus an annual operating cost of $629,192. The Board estimates that a more extensive transportation program to be considered by the district court will require initial capital investments of $3,924,000 and annual operating costs of $1,783,490. The most drastic transportation plan before the district court requires estimated annual operating costs of from $2,354,220, $2,431,710, or $3,463,100 depending on the Board’s transportation arrangements. Northcross v. Board of Education of Memphis City Schools, 466 F. 2d, at 898 (Weick, J., dissenting). ³⁰ See n. 9, supra. 250 OCTOBER TERM, 1972 Opinion of Powell, J. 413U.S. grees feel its effects. School authorities responsible for segregation must, at the very minimum, discontinue segregative acts. But when the obligation further extends to the transportation of students, the full burden of the affirmative remedial action is borne by children and parents who did not participate in any constitutional violation. Finally, courts in requiring so far-reaching a remedy as student transportation solely to maximize integration, risk setting in motion unpredictable and unmanageable social consequences. No one can estimate the extent to which dismantling neighborhood education will hasten an exodus to private schools, leaving public school systems the preserve of the disadvantaged of both races. Or guess how much impetus such dismantlement gives the movement from inner city to suburb, and the further geographical separation of the races. Nor do we know to what degree this remedy may cause deterioration of community and parental support of public schools, or divert attention from the paramount goal of quality in education to a perennially divisive debate over who is to be transported where. The problem addressed in this opinion has perplexed courts, school officials, other public authorities, and students of public education for nearly two decades. The problem, especially since it has focused on the “busing issue,” has profoundly disquieted the public wherever extensive transportation has been ordered. I make no pretense of knowing the best answers. Yet, the issue in this and like cases comes to this Court as one of constitutional law. As to this issue, I have no doubt whatever. There is nothing in the Constitution, its history, or—until recently—in the jurisprudence of this Court that mandates the employment of forced transportation of young and teenage children to achieve a single interest, KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 251 189 Opinion of Powell, J. as important as that interest may be. We have strayed, quite far as I view it, from the rationale of Brown I and II, as reiterated in Swann, that courts in fashioning remedies must be “guided by equitable principles” which include the “adjusting and reconciling [of]' public and private needs,” Brown II, 349 U. S., at 300. I urge a return to this rationale. This would result, as emphasized above, in no prohibition on court-ordered student transportation in furtherance of desegregation. But it would require that the legitimate community interests in neighborhood school systems be accorded far greater respect. In the balancing of interests so appropriate to a fair and just equitable decree, transportation orders should be applied with special caution to any proposal as disruptive of family life and interests— and ultimately of education itself—as extensive transportation of elementary-age children solely for desegregation purposes. As a minimum, this Court should not require school boards to engage in the unnecessary transportation away from their neighborhoods of elementary-age children.³¹ It is at this age level that neighborhood education performs its most vital role. It is with respect to children of tender years that the greatest concern exists for their physical and psychological health. It is also here, at the elementary school, ³¹ There may well be advantages in commencing the integrative experiences at an early age, as young children may be less likely than older children and adults to develop an inhibiting racial consciousness. These advantages should be considered as school boards make the various decisions with the view to achieving and preserving an integrated school system. Supra, at 226-227. But in the balancing of all relevant interests, the advantages of an early integrative experience must, and in all fairness should, ..be weighed against other relevant advantages and disadvantages and in light of the demographic characteristics of the particular community. 252 OCTOBER TERM, 1972 Opinion of Powell, J. 413 U. S. that the rights of parents and children are most sharply implicated.³² The existing state of law has failed to shed light and provide guidance on the two issues addressed in this opinion: (i) whether a constitutional rule of uniform, national application should be adopted with respect to our national problem of school desegregation and (ii), if so, whether the ambiguities of Swann, construed to date almost uniformly in favor of extensive transportation, should be redefined to restore a more viable balance among the various interests which are involved. With all deference, it seems to me that the Court today has addressed neither of these issues in a way that will afford adequate guidance to the courts below in this case or lead to a rational, coherent national policy. The Court has chosen, rather, to adhere to the de facto/ de jure distinction under circumstances, and upon a rationale, which can only lead to increased and inconclusive litigation, and—especially regrettable—to deferment of a nationally consistent judicial position on this subject. There is, of course, state action in every school district in the land. The public schools always have been funded and operated by States and their local subdivisions. It is true that segregated schools, even in the cities of the South, are in large part the product of social and economic factors—and the resulting residential patterns. But there is also not a school district in the United States, with any significant minority school population, in which the school authoritie's—in one way or the other—have not contributed in some ³² While greater transportation of secondary school students might be permitted, even at this level the desire of a community for racially neutral neighborhood schools should command judicial respect. It would ultimately be wisest, where there is no absence of good faith, to permit affected communities to decide this delicate issue of student transportation on their own. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 253 189 Opinion of Powell, J. measure to the degree of segregation which still prevails. Instead of recognizing the reality of similar, multiple segregative causes in school districts throughout the country, the Court persists in a distinction whose duality operates unfairly on local communities in one section of the country and on minority children in the others. The second issue relates to the ambiguities of Swann * and the judicial disregard of legitimate community and individual interests in framing equitable decrees. In the absence of a more flexible and reasonable standard than that imposed by district courts after Swann, the desegregation which will now be decreed in Denver and other major cities may well involve even more extensive transportation than has been witnessed up to this time. It is well to remember that the course we are running is a long one and the goal sought in the end—so often overlooked—is the best possible educational opportunity for all children. Communities deserve the freedom and the incentive to turn their attention and energies to this goal of quality education, free from protracted and debilitating battles over court-ordered student transportation. The single most disruptive element in education today is the widespread use of compulsory transportation, especially at elementary grade levels. This has risked distracting and diverting attention from basic educational ends, dividing and embittering communities, and exacerbating, rather than ameliorating, interracial friction and misunderstanding. It is time to return to a more balanced evaluation of the recognized interests of our society in achieving desegregation with other educational and societal interests a community may legitimately assert. This will help assure that integrated school systems will be established and maintained by rational action, will be better understood and supported by parents and children of both races, and will promote the enduring qualities of an integrated society so essential to its genuine success. 254 OCTOBER TERM, 1972 Rehnquist, J., dissenting 413 U. S. Mr. Justice Rehnquist, dissenting. I The Court notes at the outset of its opinion the differences between the claims made by the plaintiffs in this case and the classical “de jure” type of claims made by plaintiffs in cases such as Brown v. Board of Education, 347 U. S. 483 (1954), and its progeny. I think the similarities and differences, not only in the claims, but in the nature of fhe constitutional violation, deserve somewhat more attention than the Court gives them. In Brown, the Court held unconstitutional statutes then prevalent in Southern and border States mandating that Negro children and white children attend separate schools. Under such a statute, of course, every child in the school system is segregated by race, and there is no racial mixing whatever in the population of any particular school. It is conceded that the State of Colorado and the city of Denver have never had a statute or ordinance of that description. The claim made by these plaintiffs, as described in the Court’s opinion, is that the School Board by “use of various techniques such as the manipulation of student attendance zones, schoolsite selection and a neighborhood school policy” took race into account in making school assignments in such a way as to lessen » that mixing of races which would have resulted from a racially neutral policy of school assignment. If such claims are proved, those minority students who as' a result of such manipulative techniques are forced to attend schools other than those that they would have attended had attendance zones been neutrally drawn are undoubtedly deprived of their constitutional right to equal protection of the laws just as surely as were the plaintiffs in Brown v. Board of Education by the statutorily required segregation in that case. But the fact that invid- KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 255 189 Rehnquist, J., dissenting ious racial discrimination is prohibited by the Constitution in the North as well as the South must not be allowed to obscure the equally important fact that the consequences of manipulative drawing of attendance zones in a school district the size of Denver does not necessarily result in denial of equal protection to all minority students within that district. There are significant differences between the proof which would support a claim such as that alleged by plaintiffs in this case, and the total segregation required by statute which existed in Brown. The Court’s opinion obscures these factual differences between the situation shown by the record to have existed in Denver and the situations dealt with in earlier school desegregation opinions of the Court. The Court states, ante, at 200, that “[w]e have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system. Rather, we have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), the State automatically assumes an affirmative duty ‘to effectuate a transition to a racially nondiscriminatory school system,’ Brown v. Board of Education, 349 U. S. 294, 301 (1955) (Brown II) • • • ” That statement is, of course, correct in the Brown context, but in the Brown cases and later ones that have come before the Court the situation which had invariably obtained at one time was a “dual” school system mandated by law, by a law which prohibited Negroes and whites from attending the same schools. Since under Brown such a law deprived each Negro child of the equal protection of the laws, there was no need to prove “the 256 OCTOBER TERM, 1972 Rehnquist, J., dissenting 413 U. S. elements of de jure segregation as to each and every school,” since the law itself had required just that sort of segregation. But in a school district the size of Denver’s, it is quite ’ conceivable that the School Board might have engaged in the racial gerrymandering of the attendance boundary between two particular schools in order to keep one largely Negro and Hispano, and the other largely Anglo, as the District Court found to have been the fact in this case. Such action would have deprived affected minority students who were the victims of such gerrymandering of their constitutional right to equal protection of the laws. But if the school board had been evenhanded in its drawing of the attendance lines for other schools in the district, minority students required to attend other schools within the district would have suffered no such deprivation. It certainly would not reflect normal English usage to describe the entire district as “segregated” on such a state of facts, and it would be a quite unprecedented application of principles of equitable relief to determine that if the gerrymandering of one attendance zone were proved, particular racial mixtures could be required by a federal district court for every school in the district. It is quite possible, of course, that a school district purporting to adopt racially neutral boundary zones might, with respect to every such zone, invidiously discriminate against minorities, so as to produce substantially the same result as was produced by the statutorily decreed segregation involved in Brown. If that were the case, the consequences would necessarily have to be the same as were the consequences in Brown. But, in the absence of a statute requiring segregation,' there must necessarily be the sort of factual inquiry which was unnecessary in those jurisdictions where racial mixing in the schools was forbidden by law. KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 257 189 Rehnquist, J., dissenting Underlying the Court’s entire opinion is its apparent thesis that a district judge is at least permitted to find that if a single attendance zone between two individual schools in the large metropolitan district is found by him to have been “gerrymandered,” the school district is guilty of operating a “dual” school system, and is apparently a candidate for what is in practice a federal receivership. Not only the language of the Court in the opinion, but its reliance on the case of Green n. County School Board, 391 U. S. 430, 437-438 (1968), indicates that such would be the case. It would therefore presumably be open to the District Court to require, inter alia, that pupils be transported great distances throughout the district to and from schools whose attendance zones have not been gerrymandered. Yet, unless the Equal Protection Clause of the Fourteenth Amendment now be held to embody a principle of “taint,” found in some primitive legal systems but discarded centuries ago in ours, such a result can only be described as the product of judicial fiat. Green, supra, represented a marked extension of the principles of Brown v. Board of Education, supra. The Court in Green said: “It is of course true that for the time immediately after Brown II [349 U. S. 294] the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. . . . Under Brown II that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about . . . .” 391 U. S., at 435-436. Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise 258 OCTOBER TERM, 1972 Rehnquist, J., dissenting 413 U. S. which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Id., at 437-438. The drastic extension of Brown which Green represented was barely, if at all, explicated in the latter opinion. To require that a genuinely “dual” system be disestablished, in the sense that the assignment of a child to a particular school is not made to depend on his race, is one thing. To require that school boards affirmatively undertake to achieve racial mixing in schools where such mixing is not achieved in sufficient degree by neutrally drawn boundary lines is quite obviously something else. The Court’s own language in Green makes it unmistakably clear that this significant extension of Brown’s prohibition against discrimination, and the conversion of that prohibition into an affirmative duty to integrate, was made in the context of a school system which had for a number of years rigidly excluded Negroes from attending the same schools as were attended by whites. Whatever may be the soundness of that decision in the context of a genuinely “dual” school system, where segregation of the races had once been mandated by law, I can see no constitutional justification for it in a situation such as that which the record shows to have obtained in Denver. II The Court’s opinion gives lip service to the notion that the inquiry as to whether or not the Denver school district was “segregated” is a factual one, though it refers KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 259 189 Rehnquist, J., dissenting in various critical language to the District Court’s refusal to find that minority concentration in the core area schools was the result of discriminatory action on the part of the school board. The District Court is said to have “fractionated” the district, ante, at 193, and to have “held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city,” ibid. It is difficult to know what the Court means by the first of these references, and even more difficult to justify the second in the light of the District Court’s opinion. If by “fractionating” the district, the Court means that the District Court treated together events that occurred during the same time period, and that it treated those events separately from events that occurred during another time span, this is undoubtedly correct. This is the approach followed by most experienced and careful finders of fact. In commencing that part of its comprehensive opinion which dealt with the “core area” schools, the District Court observed: “The evidentiary as well as the legal approach to the remaining schools is quite different from that which has been outlined above. For one thing, the concentrations of minorities occurred at an earlier date and, in some instances, prior to the Brown decision by the Supreme Court. Community attitudes were different, including the attitudes of the School Board members. Furthermore, the transitions were much more gradual and less perceptible than they were in the Park Hill schools.” 313 F. Supp. 61, 69. (Emphasis supplied.) The District Court noted, in its opinion of July 31, 1969, the differentiation that the plaintiffs themselves had made between the so-called “Park Hill” schools and 260 OCTOBER TERM, 1972 Rehnquist, J., dissenting 413 U. S. the “core area” schools. The plaintiffs had sought a preliminary injunction prohibiting the school board from rescinding three resolutions which had been adopted by a differently composed school board earlier in 1969 and which would have redrawn school boundary lines in the Park Hill area to achieve greater integration. In its opinion granting that injunction, the District Court said: “Attention at this hearing has focused primarily on the schools in northeast Denver, and particularly on the area which is commonly called Park Hill. The alleged segregated schools, elementary and junior high schools in this area, have acquired their character as such during the past ten years. The primary reason for this has been the migration of the Negro community eastward from a confined community surrounding what is commonly called ‘Five Points.’ Before 1950 the Negroes all lived in a community bounded roughly by 20th Avenue on the south, 20th Street on the west, York Street on the east, and 38th Avenue on the north. The schools in this area were, and are now, largely Negro schools. However, we are not presently concerned with the validity of this condition. During this period the Negro population was relatively small, and this condition had developed over a long period of time. However, by 1960 and, indeed, at the present time this population is sizeable. As the population has expanded the move has been to the east, first to Colorado Boulevard, a natural dividing line, and later beyond Colorado Boulevard, but within a narrow corridor—more or less fixed north-south boundaries. The migration caused these areas to become substantially Negro and segregated.” 303 F. Supp. 279, 282. Further reference to the District Court’s several opin- KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 261 189 Rehnquist, J., dissenting ions shows that the allegedly discriminatory acts of the School Board in the Park Hill area occurred between 1960 and 1969, in the context of a steadily expanding Negro school population in the Park Hill area and heightened sensitivity on the part of the community to the problems raised by integration and segregation. The allegedly discriminatory acts with respect to the “core area” schools—New Manual High School, Cole Junior High School, Morey Junior High School, and Boulevard and Columbine Elementary Schools—took place between the years 1952 and 1961. They took place, as indicated by the references to the District Court’s opinion noted above, not in a context of a rapidly expanding Negro population, but in a context of a relatively fixed area of the city that had for an indefinite period of time been predominantly Negro. Thus, quite contrary to the intimation of virtual arbitrariness contained in the Court’s opinion, the District Court’s separate treatment of the claims respecting these two separate areas was absolutely necessary if a careful factual determination, rather than a jumbled hash of unrelated events, was to emerge from the fact-finding process. The “intent” with which a public body performs an official act is difficult enough to ascertain under the most favorable circumstances. See Palmer v. Thompson, 403 U. S. 217 (1971); McGinnis v. Royster, 410 U. S. 263 (1973). Far greater difficulty is encountered if we are to assess the intentions with which official acts of a school board are performed over a period of years. Not only does the board consist of a number of members, but the membership customarily turns over as a result of frequent periodic elections. Indeed,, it was as a result of the 1969 election for membership on the Denver School Board that the Board’s policy which had previously favored the correction of racial imbalance by 262 OCTOBER TERM, 1972 Rehnquist, J., dissenting 413 U. S. implementation of resolutions was reversed by the election of new members to the Board. These difficulties obviously do not mean that the inquiry must be abandoned, but they do suggest that the care with which the District Court conducted it in this case is an absolutely essential ingredient to its successful conclusion. The Court’s bald statement that the District Court “held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city” is flatly belied by the following statement in the District Court’s opinion: “Although past discriminatory acts may not be a substantial factor contributing to present segregation, they may nevertheless be probative on the issue of the segregative purpose of other discriminatory acts which are in fact a substantial factor in causing a present segregated situation.” 313 F. Supp., at 74-75, n. 18. Thus, it is apparent that the District Court was fully aware that it might take into consideration the intention with which it found the School Board to have performed one act in assessing its intention in performing another act. This is the most that the references in the Court’s opinion to evidentiary treatises such as Wigmore and McCormick support. And it should be noted that the cases cited by the Court, and by the authors of the treatises, almost invariably deal with the intention of a particular individual or individuals, and not with the “intention” of a public body whose membership is constantly changing. The Court’s opinion totally confuses the concept of a permissible inference in such a situation, of which the District Court indicated it was well aware, with what KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 263 189 Rehnquist, J., dissenting the Court calls a “presumption,” which apparently “shifts . . . the burden of proving” to the defendant school authority. No case from this Court has ever gone further in this area than to suggest that a finding of intent in one factual situation may support a finding of fact in another related factual situation involving the same factor, a principle with which, as indicated above, the District Court was thoroughly familiar. The District Court cases cited by the Court represent almost entirely the opinions of judges who were themselves finders of fact, concluding as a part of the fact-finding process that intent with respect to one act may support a conclusion of a like intent with respect to another. This is but a restatement of the principle of which the District Court showed it was aware. And, obviously, opinions of courts of appeals upholding such findings of the District Court do not themselves support any broader proposition than do the opinions of the District Court in question. Chambers v. Hendersonville City Board of Education, 364 F. 2d 189 (CA4 1966), and North Carolina Teachers Assn. n. Asheboro City Board of Education, 393 F. 2d 736 (CA4 1968), involved a background of segregation by a law in the State of North Carolina and “the failure of the public school system to desegregate in compliance with the mandate of Brown until forced to do so by litigation.” 364 F. 2d, at 192. The courts held that the decimation in the ranks of the Negro teachers while white teachers were unaffected, raised an inference of discrimination which cast upon the school board the burden of justifying such decimation. In each case, the school board had offered virtually no evidence supporting any nondiscriminatory basis for the result reached. The cases are thus wholly different in their factual background from the case now before the Court. 264 OCTOBER TERM, 1972 Rehnquist, J., dissenting 413 U. S. Also worthy of note is the fact that neither in Chambers nor in Asheboro did the Court of Appeals remand for a further hearing, but in effect ordered judgments for the appellants on the issues considered. This amounted to a determination that the factual finding of the District Court on that issue was “clearly erroneous,” and the statement as to presumption was a statement as to the appellate court’s method of evaluating the factual finding. This Court is in quite a different position in reviewing this case, with the factual finding of the District Court having been affirmed by the Court of Appeals for the Tenth Circuit, than was the Court of Appeals for the Fourth Circuit in reviewing the factual findings of the District Courts that were before it in Chambers and in Asheboro. Indeed, it would be contrary to settled principles for this Court to upset a factual finding sustained by the Court of Appeals. “A seasoned and wise rule of this Court makes concurrent findings of two courts below final here in the absence of very exceptional showing of error.” Comstock n. Group of Institutional Investors, 335 U. S. 211, 214 (1948). The Court, doubtless realizing the difficulty of justifying an outright reversal, instead remands for further factual determination under newly enunciated standards governing the evidentiary treatment of the finding as to Park Hill by the District Court. These standards call in some parts of the opinion for establishing a presumption, in other parts for shifting the burden of proof, and in other parts for recognizing a prima facie case. Quite apart from my disagreement with the majority on its constitutional law, I cannot believe it is a service to any of the parties to this litigation to require further factual determination under such a vague and imprecise mandate. But, more fundamentally, I believe that a District Judge thoroughly sympathetic to the plaintiffs’ claims gave them the full evidentiary hearing to which KEYES v. SCHOOL DISTRICT NO. 1, DENVER, COLO. 265 189 Rehnquist, J., dissenting they were entitled and carefully considered all of the evidence before him. He showed full awareness of the evidentiary principle that he might infer from the “segregative intent” with which he found the Board to have acted in the Park Hill area a like intent with respect to the core area, but he deliberately declined to do so. This was his prerogative as the finder of fact, and his conclusion upon its affirmance by the Court of Appeals is binding upon us. Ill The Court has taken a long leap in this area of constitutional law in equating the district-wide consequences of gerrymandering individual attendance zones in a district where separation of the races was never required by law with statutes or ordinances in other jurisdictions which did so require. It then adds to this potpourri a confusing enunciation of evidentiary rules in order to make it more likely that the trial court will on remand reach the result which the Court apparently wants it to reach. Since I believe neither of these steps is justified by prior decisions of this Court, I dissent. 266 OCTOBER TERM, 1972 Syllabus 413 U. S. ALMEIDA-SANCHEZ v, UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 71-6278. Argued March 19 and 28, 1973— Decided June 21, 1973 Petitioner, a Mexican citizen and holder of a valid work permit, challenges the constitutionality of the Border Patrol’s warrantless search of his automobile 25 air miles north of the Mexican border. The search, made without probable cause or consent, uncovered marihuana, which was used to convict petitioner of a federal crime. The Government seeks to justify the search on the basis of § 287 (a)(3) of the Immigration and Nationality Act, which provides for warrantless searches of automobiles and other conveyances “within a reasonable distance from any external boundary of the United States,” as authorized by regulations to be promulgated by the Attorney General. The Attorney General’s regulation defines “reasonable distance” as “within 100 air miles from any external boundary of the United States.” The Court of Appeals upheld the search on the basis of the Act and regulation. Held: The warrantless search of petitioner’s automobile, made without probable cause or consent, violated the Fourth Amendment. Pp. 269-275. (a) The search cannot be justified on the basis of any special rules applicable to automobile searches, as probable cause was lacking; nor can it be justified by analogy with administrative inspections, as the officers had no warrant or reason to believe that petitioner had crossed the border or committed an offense, and there was no consent by petitioner. Pp. 269-272. (b) The search was not a border search or the functional equivalent thereof. Pp. 272-275. 452 F. 2d 459, reversed. Stewart, J., delivered the opinion of the Court, in which Douglas, Brennan, Marshall, and Powell, JJ., joined. Powell, J., filed a concurring opinion, post, p. 275. White, J., filed a dissenting opinion, in which Burger, C. J., and Blackmun and Rehnquist, JJ., joined, post, p. 285. ALMEIDA-SANCHEZ v. UNITED STATES 267 266 Opinion of the Court James A. Chanoux, and John J. Cleary by appointment of the Court, 411 U. S. 903, argued the cause for petitioner. Mr. Chanoux was on the brief. Deputy Solicitor General Lacovara argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, Mark L. Evans, Beatrice Rosenberg, and Roger A. Pauley* Mr. Justice Stewart delivered the opinion of the Court. The petitioner in this case, a Mexican citizen holding a valid United States work permit, was convicted of having knowingly received, concealed, and facilitated the transportation of a large quantity of illegally imported marihuana in violation of 21 U. S. C. § 176a (1964 ed.). His sole contention on appeal was that the search of his automobile that uncovered the marihuana was unconstitutional under the Fourth Amendment and that, under the rule of Weeks v. United States, 232 U. S. 383, the marihuana should not have been admitted as evidence against him. The basic facts in the case are neither complicated nor disputed. The petitioner was stopped by the United States Border Patrol on State Highway 78 in California, and his car was thoroughly searched. The road is essentially an east-west highway that runs for part of its course through an undeveloped region. At about the point where the petitioner was stopped the road meanders north as well as east—but nowhere does the road reach the Mexican border, and at all points it lies north of U. S. 80, a major east-west highway entirely within the *Luke McKissack filed a brief as amicus curiae urging reversal. Arthur Wells, Jr., filed a brief for Gilbert Foerster as amicus curiae. 268 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. United States that connects the Southwest with the west coast. The petitioner was some 25 air miles north of the border when he was stopped. It is undenied that the Border Patrol had no search warrant, and that there was no probable cause of any kind for the stop or the subsequent search—not even the “reasonable suspicion” found sufficient for a street detention and weapons search in Terry v. Ohio, 392 U. S. 1, and Adams v. Williams, 407 U. S. 143. The Border Patrol conducts three types of surveillance along inland roadways, all in the asserted interest of detecting the illegal importation of aliens. Permanent checkpoints are maintained at certain nodal intersections; temporary checkpoints are established from time to time at various places; and finally, there are roving patrols such as the one that stopped and searched the petitioner’s car. In all of these operations, it is argued, the agents are acting within the Constitution when they stop and search automobiles without a warrant, without probable cause to believe the cars contain aliens, and even without probable cause to believe the cars have made a border crossing. The only asserted justification for this extravagant license to search is § 287 (a) (3) of the Immigration and Nationality Act, 66 Stat. 233, 8 U. S. C. §1357 (a)(3), which simply provides for warrantless searches of automobiles and other conveyances “within a reasonable distance from any external boundary of the United States,” as authorized by regulations to be promulgated by the Attorney General. The Attorney General’s regulation, 8 CFR § 287.1, defines “reasonable distance” as “within 100 air miles from any external boundary of the United States.” The Court of Appeals for the Ninth Circuit recognized that the search of petitioner’s automobile was not a “border search,” but upheld its validity on the basis of ALMEIDA-SANCHEZ v. UNITED STATES 269 266 Opinion of the Court the above-mentioned portion of the Immigration and Nationality Act and the accompanying regulation. 452 F. 2d 459, 461. We granted certiorari, 406 U. S. 944, to consider the constitutionality of the search. I No claim is made, nor could one be, that the search of the petitioner’s car was constitutional under any previous decision of this Court involving the search of an automobile. It is settled, of course, that a stop and search of a moving automobile can be made without a warrant. That narrow exception to the warrant requirement was first established in Carroll v. United States, 267 U. S. 132. The Court in Carroll approved a portion of the Volstead Act providing for warrantless searches of automobiles when there was probable cause to believe they contained illegal alcoholic beverages. The Court recognized that a moving automobile on the open road presents a situation “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Id., at 153. Carroll has been followed in a line of subsequent cases,¹ but the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobile or no automobile, there must be probable cause for the search.² As Mr. Justice White wrote for the Court in Chambers v. Maroney, 399 ¹E. g., Chambers v. Maroney, 399 U. S. 42; Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216; Brinegar v. United States, 338 U. S. 160; Husty v. United States, 282 U. S. 694. ² Moreover, “[n] either Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords.” Chambers v. Maroney, supra, at 50. See also Coolidge v. New Hampshire, 403 U. S. 443, 458-464. 270 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. U. S. 42, 51: “In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.” In seeking a rationale for the validity of the search in this case, the Government thus understandably sidesteps the automobile search cases. Instead, the Government relies heavily on cases dealing with administrative inspections. But these cases fail to support the constitutionality of this search. In Camara v. Municipal Court, 387 U. S. 523, the Court held that administrative inspections to enforce community health and welfare regulations could be made on less than probable cause to believe that particular dwellings were the sites of particular violations. Id., at 534-536, 538. Yet the Court insisted that the inspector obtain either consent or a warrant supported by particular physical and demographic characteristics of the areas to be searched. Ibid. See also See v. City of Seattle, 387 U. S. 541. The search in the present case was conducted in the unfettered discretion of the members of the Border Patrol, who did not have a warrant,³ probable cause, or consent. The search thus embodied precisely the evil the Court saw in Camara when it insisted that the “discretion of the official in the field” be circumscribed by obtaining a warrant prior to the inspection. Camara, supra, at 532-533. Two other administrative inspection cases relied upon ' by the Government are equally inapposite. Colonnade Catering Corp. v. United States, 397 U. S. 72, and United States v. Biswell, 406 U. S. 311, both approved ³ The Justices who join this opinion are divided upon the question of the constitutionality of area search warrants such as described in Mr. Justice Powell’s concurring opininn ALMEIDA-SANCHEZ v. UNITED STATES 271 266 Opinion of the Court warrantless inspections of commercial enterprises engaged in businesses closely regulated and licensed by the Government. In Colonnade, the Court stressed the long history of federal regulation and taxation of the manufacture and sale of liquor, 397 U. S., at 76-77. In Biswell, the Court noted the pervasive system of regulation and reporting imposed on licensed gun dealers, 406 U. S., at 312 n. 1, 315-316. A central difference between those cases and this one , is that businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of their trade, whereas the petitioner here was not engaged in any regulated or licensed business. The businessman in a regulated industry in effect consents to the restrictions placed upon him. As the Court stated in Biswell: “It is also plain that inspections for compliance with the Gun Control Act pose only limited threats to the dealer’s justifiable expectations of privacy. When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection. Each licensee is annually furnished with a revised compilation of ordinances that describe his obligations and define the inspector’s authority. . . . The dealer is not left to wonder about the purposes of the inspector or the limits of his task.” Id., at 316. Moreover, in Colonnade and Biswell, the searching officers knew with certainty that the premises searched, were in fact utilized for the sale of liquor or guns. In the present case, by contrast, there was no such assurance that the individual searched was within the proper scope of official scrutiny—that is, there was no reason 272 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. whatever to believe that he or his automobile had even crossed the border, much less that he was guilty of the commission of an offense. II Since neither this Court’s automobile search decisions nor its administrative inspection decisions provide any support for the constitutionality of the stop and search in the present case, we are left simply with the statute that purports to authorize automobiles to be stopped and searched, without a warrant and “within a reasonable distance from any external boundary of the United States.” It is clear, of course, that no Act of Congress can authorize a violation of the Constitution. But under familiar principles of constitutional adjudication, our duty is to construe the statute, if possible, in a manner consistent with the Fourth Amendment. Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 348 (Brandeis, J., concurring). It is undoubtedly within the power of the Federal Government to exclude aliens from the country. Chae Chan Ping v. United States, 130 U. S. 581, 603-604. It is also without doubt that this power can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders. As the Court stated in Carroll v. United States: “Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.” 267 U. 8., at 154. See also Boyd v. United States, 116 U. S. 616. Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. For ALMEIDA-SANCHEZ v. UNITED STATES 273 266 Opinion of the Court example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.⁴ But the search of the petitioner’s automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border,⁵ was of a wholly different sort. In the absence of probable cause or consent, that search violated the petitioner’s Fourth Amendment right to be free of “unreasonable searches and seizures.” It is not enough to argue, as does the Government, that the problem of deterring unlawful entry by aliens across long expanses of national boundaries is a serious one. The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards. It ⁴ With respect to aircraft, 8 CFR §281.1 defines “reasonable distance” as “any distance fixed pursuant to paragraph (b) of this section.” Paragraph (b) authorizes the Commissioner of Immigration and Naturalization to approve searches at a greater distance than 100 air miles from a border “because of unusual circumstances/’ ⁵ The Government represents that the highway on which this search occurred is a common route for illegally entered aliens to travel, and that roving patrols apprehended 195 aliens on that road in one year. But it is, of course, quite possible that every one of those aliens was apprehended as a result of a valid search made upon probable cause. On the other hand, there is no telling how many perfectly innocent drivers have been stopped on this road without any probable cause, and been subjected to a search in the trunks, under the hoods, and behind the rear seats of their automobiles. 274 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg Trials: “These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” Brinegar v. United States, 338 U. S. 160, 180 (Jackson, J., dissenting). The Court that decided Carroll v. United States, supra, sat during a period in our history when the Nation was confronted with a law enforcement problem of no small magnitude—the enforcement of the Prohibition laws. But that Court resisted the pressure of official expedience against the guarantee of the Fourth Amendment. Mr. Chief Justice Taft’s opinion for the Court distinguished between searches at the border and in the interior, and clearly controls the case at bar: “It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is ALMEIDA-SANCHEZ v. UNITED STATES 275 266 Powell, J., concurring known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.” 267 U. S., at 153-154. Accordingly, the judgment of the Court of Appeals is Reversed. Mr. Justice Powell, concurring. While I join the opinion of the Court, which sufficiently establishes that none of our Fourth Amendment decisions supports the search conducted in this case, I add this concurring opinion to elaborate on my views as to the meaning of the Fourth Amendment in this context. We are confronted here with the all-too-familiar necessity of reconciling a legitimate need of government with constitutionally protected rights. There can be no question as to the seriousness and legitimacy of the law enforcement problem with respect to enforcing along thousands of miles of open border valid immigration and related laws. Nor can there be any question as to the necessity, in our free society, of safeguarding persons against searches and seizures proscribed by the Fourth Amendment. I believe that a resolution of the issue raised by this case is possible with due recognition of both of these interests, and in a manner compatible with the prior decisions of this Court.¹ I The search here involved was carried out as part of a roving search of automobiles in an area generally proximate to the Mexican border. It was not a border search, ¹1 am in accord with the Court’s conclusion that nothing in § 287 (a) (3) of the Immigration and Nationality Act, 8 U. S. C. § 1357 (a) (3), or in 8 CFR § 287.1 serves to authorize an otherwise unconstitutional search. 276 OCTOBER TERM, 1972 Powell, J., concurring 413 U. S. nor can it fairly be said to have been a search conducted at the “functional equivalent” of the border. Nor does this case involve the constitutional propriety of searches at permanent or temporary checkpoints removed from the border or its functional equivalent. Nor, finally, was the search based on cause in the ordinary sense of specific knowledge concerning an automobile or its passengers? The question posed, rather, is whether and under what circumstances the Border Patrol may lawfully conduct roving searches of automobiles in areas not far removed from the border for the purpose of apprehending aliens illegally entering or in the country. The Government has made a convincing showing that large numbers of aliens cross our borders illegally at places other than established crossing points, that they are often assisted by smugglers, that even those who cross on foot are met and transported to their destinations by automobiles, and that roving checks of automobiles are the only feasible means of apprehending them. It would, of course, be wholly impracticable to maintain a constant patrol along thousands of miles of border. Moreover, because many of these aliens cross the border on foot, or at places other than established checkpoints, it is simply not possible in most cases for the Government to obtain specific knowledge that a person riding or stowed in an automobile is an alien illegally in the coun- ² The Solicitor General’s brief in this Court states explicitly that “We ... do not take the position that the checking operations are justified because the officers have probable cause or even 'reasonable suspicion’ to believe, with respect to each vehicle checked, that it contains an illegal alien. Apart from the reasonableness of establishment of the checking operation in this case, there is nothing in the record to indicate that the Border Patrol officers had any special or particular reason to stop petitioner and examine his car.” Brief for the United States 9-10. ALMEIDA-SANCHEZ v. UNITED STATES 277 266 Powell, J., concurring try. Thus the magnitude of the problem is clear. An answer, reconciling the obvious needs of law enforcement with relevant constitutional rights, is far less clear. II The Government’s argument to sustain the search here is simply that it was reasonable under the circumstances. But it is by now axiomatic that the Fourth Amendment’s proscription of “unreasonable searches and seizures” is to be read in conjunction with its command that “no Warrants shall issue, but upon probable cause.” Under our cases, both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, though in certain limited circumstances neither is required. Before deciding whether a warrant is required, I will first address the threshold question of whether some functional equivalent of probable cause may exist for the type of search conducted in this case. The problem of ascertaining the meaning of the probable-cause requirement in the context of roving searches of the sort conducted here is measurably assisted by the Court’s opinion in Camara v. Municipal Court, 387 U. S. 523 (1967), on which the Government relies heavily. The Court was there concerned with the nature of the probable-cause requirement in the context of searches to identify housing code violations and was persuaded that the only workable method of enforcement was periodic inspection of all structures: “It is here that the probable cause debate is focused, for the agency’s decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building.” Id., at 536. 278 OCTOBER TERM, 1972 Powell, J., concurring 413 U. S. In concluding that such general knowledge met the probable-cause requirement under those circumstances, the Court took note of a “long history of judicial and public acceptance,” of the absence of other methods for vindicating the public interest in preventing or abating dangerous conditions, and of the limited invasion of privacy occasioned by administrative inspections which are “neither personal in nature nor aimed at the discovery of evidence of crime.” Id., at 537. Roving automobile searches in border regions for aliens, likewise, have been consistently approved by the judiciary. While the question is one of first impression in this Court, such searches uniformly have been sustained by the courts of appeals whose jurisdictions include those areas of the border between Mexico and the United States where the problem has been most severe. See, e. g., United States v. Miranda, 426 F. 2d 283 (CA9 1970) ; Roa-Rodriquez v. United States, 410 F. 2d 1206 (CAIO 1969). Moreover, as noted above, no alternative solution is reasonably possible. The Government further argues that such searches resemble those conducted in Camara in that they are undertaken primarily for administrative rather than prosecutorial purposes, that their function is simply to locate those who are illegally here and to deport them. Brief for the United States 28 n. 25. This argument is supported by the assertion that only 3% of aliens apprehended in this country are prosecuted. While the low rate of prosecution offers no great solace to the innocent whose automobiles are searched or to the few who are prosecuted, it does serve to differentiate this class of searches from random area searches which are no more than “fishing expeditions” for evidence to support prosecutions. The possibility of prosecution does not distinguish such searches from those involved in Camara. Despite the Court’s assertion in that case that the searches ALMEIDA-SANCHEZ v. UNITED STATES 279 266 Powell, J., concurring were not “aimed at the discovery of evidence of crime,” 387 U. S., at 537, violators of the housing code there were subject to criminal penalties. Id., at 527 n. 2. Of perhaps greater weight is the fact that these searches, according to the Government, are conducted in areas where the concentration of illegally present aliens is high, both in absolute terms and in proportion to the number of persons legally present. While these searches are not border searches in the conventional sense, .they are incidental to the protection of the border and draw a large measure of justification from the Government’s extraordinary responsibilities and powers with respect to the border. Finally, and significantly, these are searches of automobiles rather than searches of persons or buildings. The search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one’s person or of a building. This Court “has long distinguished between an automobile and a home or office.” Chambers v. Maroney, 399 U. S. 42, 48 (1970). As the Government has demonstrated, and as those in the affected areas surely know, it is the automobile which in most cases makes effective the attempts to smuggle aliens into this country. The conjunction of these factors—consistent judicial approval, absence of a reasonable alternative for the solution of a serious problem, and only a modest intrusion on those whose automobiles are searched—persuades me that under appropriate limiting circumstances there may exist a constitutionally adequate equivalent of probable cause to conduct roving vehicular searches in border areas. Ill The conclusion that there may be probable cause to conduct roving searches does not end the inquiry, for “except in certain carefully defined classes of cases, a search of private property without proper consent is 280 OCTOBER TERM, 1972 Powell, J., concurring 413 U. S. ‘unreasonable’ unless it has been authorized by a valid search warrant.” Camara v. Municipal Court, supra, at 528-529. I expressed the view last Term that the warrant clause reflects an important policy determination: “The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility is to enforce the laws, to investigate, and to prosecute. . . . But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.” United States v. United States District Court, 407 U. S. 297, 317 (1972). See also Coolidge v. New Hampshire, 403 U. S. 443, 481 (1971); Chimel v. California, 395 U. S. 752, 763-764 (1969). To justify warrantless searches in circumstances like those presented in this case, the Government relies upon several of this Court’s decisions recognizing exceptions to the warrant requirement. A brief review of the nature of each of these major exceptions illuminates the relevant considerations in the present case. In Terry y. Ohio, 392 U. S. 1 (1968), the Court held that a policeman may conduct a limited “pat down” search for weapons when he has reasonable grounds for believing that criminal conduct has taken or is taking place and that the person he searches is armed and dangerous. “The sole justification [for such a] search ... is the protection of the police officer and others nearby . . . .” Id., at 29. Nothing in Terry supports an exception to the warrant requirement here. Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970), and United States v. Biswell, 406 U. S. 311 (1972), on which the Government also relies, both concerned the standards which govern inspections of the business premises of those with federal licenses to engage in the sale of liquor, Colonnade, or the sale of guns, ALMEIDA-SANCHEZ v. UNITED STATES 281 266 Powell, J., concurring Biswell. In those cases, Congress was held to have power to authorize warrantless searches. As the Court stated in Biswell: “When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection.” 406 U. S., at 316. Colonnade and Biswell cannot fairly be read to cover cases of the present type. One who merely travels in regions near the borders of the country can hardly be thought to have submitted to inspections in exchange for a special perquisite. More closely in point on their facts are the cases involving automobile searches. E. g., Carroll v. United States, 267 U. S. 132 (1925); Chambers v. Maroney, supra; Coolidge v. New Hampshire, supra. But while those cases allow automobiles to be searched without a warrant in certain circumstances, the principal rationale for this exception to the warrant clause is that under those circumstances “it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, supra, at 153. The .Court today correctly points out that a warrantless search under the Carroll line of cases must be supported by probable cause in the sense of specific knowledge about a particular automobile. While, as indicated above, my view is that on appropriate facts the Government can satisfy the probable cause requirement for a roving search in a border area without possessing information about particular automobiles, it does not follow that the warrant requirement is inapposite. The very fact that the Government’s supporting information relates to criminal activity in certain areas rather than 282 OCTOBER TERM, 1972 Powell, J., concurring 413 U. S. to evidence about a particular automobile renders irrelevant the justification for warrantless searches relied upon in Carroll and its progeny. Quite simply, the roving searches are justified by experience with obviously non-mobile sections of a particular road or area embracing several roads. None of the foregoing exceptions to the warrant requirement, then, applies to roving automobile searches in border areas. Moreover, the propriety of the warrant procedure here is affirmatively established by Camara. See also See v. City of Seattle, 387 U. S. 541 (1967). For the reasons outlined above, the Court there ruled that probable cause could be shown for an area search, but nonetheless required that a warrant be obtained for unconsented searches. The Court indicated its general approach to exceptions to the warrant requirement: “In assessing whether the public interest demands creation of a general exception to the Fourth Amendment’s warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” Camara v. Municipal Court, supra, at 533. See also United States n. United States District Court, supra, at 315. The Government argues that Camara and See are distinguishable from the present case for the purposes of the warrant requirement. It is true that while a building inspector who is refused admission to a building may easily obtain a warrant to search that building, a member of the Border Patrol has no such opportunity when ALMEIDA-SANCHEZ v. UNITED STATES 283 266 Powell, J., concurring he is refused permission to inspect an automobile. It is also true that the judicial function envisioned in Camara did not extend to reconsideration of “the basic agency decision to canvass an area,” Camara v. Municipal Court, supra, at 532, while the judicial function here would necessarily include passing on just such a basic decision. But it does not follow from these distinctions that “no warrant system can be constructed that would be feasible and meaningful.” Brief for the United States 3'6. Nothing in the papers before us demonstrates that it would not be feasible for the Border Patrol to obtain advance judicial approval of the decision to conduct roving searches on a particular road or roads for a reasonable period of time.³ According to the Government, the incidence of illegal transportation of aliens on certain roads is predictable, and the roving searches are apparently planned in advance or carried out according to a predetermined schedule. The use of an area warrant procedure would surely not “frustrate the governmental purpose behind the search.” Camara v. Municipal Court, supra, at 533. It would of course entail some inconvenience, but inconvenience alone has never been thought to be an adequate reason for abrogating the warrant requirement. E. g., United States v. United States District Court, supra, at 321. Although standards for probable cause in the context of this case are relatively unstructured (cf. id., at 322), there are a number of relevant factors which would merit consideration: they include (i) the frequency with which aliens illegally in the country are known or reasonably believed to be transported within a particular area; ³ There is no reason why a judicial officer could not approve where appropriate a series of roving searches over the course of several days or weeks. Experience with an initial search or series of searches would be highly relevant in considering applications for renewal of a warrant. 284 OCTOBER TERM, 1972 Powell, J., concurring 413 U. S. (ii) the proximity of the area in question to the border; (iii) the extensiveness and geographic characteristics of the area, including the roads therein and the extent of their use,⁴ and (iv) the probable degree of interference with the rights of innocent persons, taking into account the scope of the proposed search, its duration, and the concentration of illegal alien traffic in relation to the general traffic of the road or area. In short, the determination of whether a warrant should be issued for an area search involves a balancing of the legitimate interests of law enforcement with protected Fourth Amendment rights. This presents the type of delicate question of constitutional judgment which ought to be resolved by the Judiciary rather than the Executive. In the words of Camara, “This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search.” 387 U. S., at 532-533. Nor does the novelty of the problem posed by roving searches in border areas undermine the importance of a prior judicial determination. When faced with a similarly unconventional problem last Term in United States District Court, supra, we recognized that the focus of the search there involved was “less precise than that directed against more conventional types of crime,” and that “ [different standards may be compatible with the Fourth Amendment if they are reasonable both in rela- ⁴ Depending upon the circumstances, there may be probable cause for the search to be authorized only for a designated portion of a particular road or such cause may exist for a designated area which may contain one or more roads or tracks. Particularly along much of the Mexican border, there are vast areas of uninhabited desert and arid land which are traversed by few, if any, main roads or highways, but which nevertheless may afford opportunities—by virtue of their isolated character—for the smuggling of aliens. ALMEIDA-SANCHEZ v. UNITED STATES 285 266 White, J., dissenting tion to the legitimate need of Government . . . and the protected rights of our citizens.” 407 U. S., at 322-323. Yet we refused to abandon the Fourth Amendment commitment to the use of search warrants whenever this is feasible with due regard to the interests affected. For the reasons stated above, I think a rational search warrant procedure is feasible in cases of this kind. As no warrant was obtained here, I agree that the judgment must be reversed. I express no opinion as to whether there was probable cause to issue a warrant on the facts of this particular case. Mr. Justice White, with whom The Chief Justice, Mr. Justice Blackmun, and Mr. Justice Rehnquist join, dissenting. Trial and conviction in this case were in the United States District Court for the Southern District of California under an indictment charging that petitioner, contrary to 21 U. S. C. § 176a (1964 ed.), had knowingly received, concealed, and facilitated the transportation of approximately 161 pounds of illegally imported marihuana. He was sentenced to five years’ imprisonment. He appealed on the sole ground that the District Court had erroneously denied his motion to suppress marihuana allegedly seized from his automobile in violation of the Fourth Amendment. The motion to suppress was heard on stipulated evidence in the District Court.¹ United States Border Patrol Officers Shaw and Carrasco stopped petitioner’s car shortly after midnight as it was traveling from Calexico, on the California-Mexico border, toward Blythe, Cali ¹ The facts, except for when petitioner was stopped, are taken from the oral stipulation in open court. See App. 11—14. The time petitioner was stopped is given by the Complaint as 12:15 a. m., App. 4, while petitioner testified at trial that he was “stopped about 1:00.” 3 Tr. of Rec. 62. 286 OCTOBER TERM, 1972 White, J., dissenting 413 U. S. fornia. The stop was made on Highway 78 near Glamis, California, 50 miles by road from Calexico. The highway was “about the only north-south road in California coming from the Mexican border that does not have an established checkpoint.” ² Because of that, “it is commonly used to evade check points by both marijuana and alien smugglers.” On occasions “but not at all times,” officers of the Border Patrol “maintain a roving check of vehicles and persons on that particular highway.” Pursuant to this practice “they stopped this vehicle for the specific purpose of checking for aliens.” Petitioner’s identification revealed that he was a resident of Mexicali, Mexico, but that he held a work permit for the United States. Petitioner had come from Mexicali, had picked up the car in Calexico and was on his way to Blythe to deliver it. He intended to return to Mexicali by bus.³ The officers had been advised by an official bulletin that aliens illegally entering the United States sometimes concealed themselves by sitting upright behind the back seat rest of a car, with their legs folded under the back seat from which the springs had been removed. While looking under the rear seat of petitioner’s car for aliens, the officers discovered packages believed by them to contain marihuana. Petitioner was placed under arrest and advised of his rights. His car was then searched for additional marihuana, which was found in substantial amounts. On this evidence, the motion to suppress was denied, ² West of Glamis the prevailing direction of the highway is eastwest. At the point of the stop west of Glamis, the highway is only approximately 20 miles north of the border, running parallel to it. East of Glamis, the highway proceeds sharply northeast to Blythe, a distance of over 50 miles ³ It appears, see App. 12, 13, that the officers were informed of these facts before initiating any search for aliens, and hence before finding any contraband. ALMEIDA-SANCHEZ v. UNITED STATES 287 266 White, J., dissenting and petitioner was convicted. A divided Court of Appeals affirmed, 452 F. 2d 459 (CA9 1971), relying on its prior cases and on § 287 (a)(3) of the Immigration and Nationality Act, 8 U. S. C. § 1357 (a)(3), which provides that officers of the Immigration and Naturalization Service shall have the power, without warrant, to search any vehicle for aliens within a reasonable distance from.any external boundary of the United States.⁴ I dissent from the reversal of this judgment. I The Fourth Amendment protects the people “in their persons, houses, papers, and effects, against unreasonable searches and seizures” and also provides that “no Warrants shall issue, but upon probable cause . . . .” The ordinary rule is that to be reasonable under the Amendment a search must be authorized by warrant issued by a magistrate upon a showing of probable cause. The ⁴ Title 8 U. S. C. § 1357 (a) provides in pertinent part: “Any officer or employee of the [Immigration and Naturalization] Service authorized under regulations prescribed by the Attorney General shall have power without warrant— “(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States . . . .” The Court of Appeals also relied on 8 CFR § 287.1, which in relevant part provides: “(a)(2) Reasonable distance. The term ‘reasonable distance,’ as used in section 287 (a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the district director, or, so far as the power to board and search aircraft is concerned, any distance fixed pursuant to paragraph (b) of this section.” 288 OCTOBER TERM, 1972 White, J., dissenting 413 U. S. Amendment’s overriding prohibition is nevertheless against “unreasonable” searches and seizures; and the legality of searching, without warrant and without probable cause, individuals and conveyances seeking to enter the country has been recognized by Congress and the courts since the very beginning. Boyd n. United States, 116 U. S. 616 (1886), said as much; and in Carroll v. United States, 267 U. S. 132, 154 (1925), the Court repeated that neither warrant nor probable cause was required to authorize a stop and search at the external boundaries of the United States: “Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.” This much is undisputed in this case. Persons and their effects may be searched at the border for dutiable articles or contraband. Conveyances may be searched for the same purposes, as well as to determine whether they carry aliens not entitled to enter the country. Neither, apparently, is it disputed that warrantless searches for aliens without probable cause may be made at fixed checkpoints away from the border. The problem in this case centers on the roving patrol operating away from, but near, the border. These patrols may search for aliens without a warrant if there is probable cause to believe that the vehicle searched is carrying aliens illegally into the country. But without probable cause, the majority holds the search unreasonable, although at least one Justice, Mr. Justice Powell, would uphold searches by roving patrols if authorized by an area warrant issued on less than probable cause in the traditional sense. I agree with Mr. Justice Powell that such a warrant so issued would satisfy the Fourth Amendment, and I would expect that such warrants would be readily issued. But I disagree with him ALMEIDA-SANCHEZ v. UNITED STATES 289 266 White, J., dissenting and the majority that either a warrant or probable cause is required in the circumstances of this case. As the Court has reaffirmed today in Cady n. Dombrowski, post, p. 433, the governing standard under the Fourth Amendment is reasonableness, and in my view, that standard is sufficiently flexible to authorize the search involved in this case. In Terry n. Ohio, 392 U. S. 1 (1968), the Court proceeding under the “general proscription against unreasonable searches and seizures,” id., at 20 (footnote omitted), weighed the governmental interest claimed to justify the official intrusion against the constitutionally protected interest of the private citizen. Id., at 20-21. The “ ‘need to search’ ” was balanced “ ‘against the invasion which the search . . . entails,’ ” quoting from Camara v. Municipal Court, 387 U. S. 523, 534-535, 536-537 (1967). Terry, supra, at 21. In any event, as put by Mr. Chief Justice Warren, the “question is whether in all the circumstances of this on-the-street encounter, his right to personal security was violated by an unreasonable search and seizure.” Id., at 9 (emphasis added). Warrantless but probable-cause searches of the person and immediate surroundings have been deemed reasonable when incident to arrest, see Chimel v. California, 395 U. S. 752 (1969); and in Terry, the stop of a suspected individual and a pat-down for weapons without a warrant were thought reasonable on less than traditional probable cause. In Camara n. Municipal Court, supra, an inspection of every structure in an entire area to enforce the building codes was deemed reasonable under the Fourth Amendment without probable cause, or suspicion that any particular house or structure was in violation of law, although a warrant, issuable without probable cause, or reasonable suspicion of a violation, was required with respect to nonconsenting property owners. Also, in Colonnade Catering Corp. v. United 290 OCTOBER TERM, 1972 White, J., dissenting 413 U. S. States, 397 U. S. 72 (1970), Mr. Justice Douglas, writing for the Court and recognizing that the Fourth Amendment bars only unreasonable searches and seizures, ruled that the historic power of the Government to control the liquor traffic authorized warrantless inspections of licensed premises without probable cause, or reasonable suspicion, not to check on liquor quality or conditions under which it was sold, but solely to enforce the collection of the federal excise tax.⁵ United States v. Biswell, 406 U. S. 311 (1972), involved the Gun Control Act of 1968 and its authorization to federal officers to inspect firearms dealers. The public need to enforce an important regulatory program was held to justify random inspections of licensed establishments without warrant and probable cause. The Court has been particularly sensitive to the Amendment’s broad standard of “reasonableness” where, as in Biswell and Colonnade, authorizing statutes permitted the challenged searches. We noted in Colonnade that “Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary ⁵ In Colonnade Catering Corp. n. United States, 397 U. S. 72 (1970), the conviction was set aside because it was thought that Congress, with all the authority it had to prescribe standards of reasonableness under the Fourth Amendment, had not intended federal inspectors to use force in carrying out warrantless, non-probable-cause inspections. In dissent, The Chief Justice, joined by Justices Black and Stewart, would have sustained the search, saying: “I assume we could all agree that the search in question must be held valid, and the contraband discovered subject to seizure and forfeiture, unless (a) it is 'unreasonable’ under the Constitution or (b) it is prohibited by a statute imposing restraints apart from those in the Constitution. The majority sees no constitutional violation; I agree.” Id., at 78. In a separate dissent Mr. Justice Black, joined by The Chief Justice and Mr. Justice Stewart, also emphasized that the ultimate test of legality under the Fourth Amendment was whether the search and seizure were reasonable. Id., at 79-81. ALMEIDA-SANCHEZ v. UNITED STATES 291 266 White, J., dissenting to meet the evils at hand,” 397 U. S., at 76; and in Biswell we relied heavily upon the congressional judgment that the authorized inspection procedures played an important part in the regulatory system. 406 U. S., at 315-317. In the case before us, 8 U. S. C. § 1357 (a)(3), authorizes Border Patrol officers, without warrant, to search any vehicle for aliens “within a reasonable distance from any external boundary of the United States” and within the distance of 25 miles from such external boundary to have access to private lands, but not dwellings “for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States . . . .” At the very least, this statute represents the considered judgment of Congress that proper enforcement of the immigration laws requires random searches of vehicles without warrant or probable cause within a reasonable distance of the international borders of the country. It is true that “[u]ntil 1875 alien migration to the United States was unrestricted.” Kleindienst n. Mandel, 408 U. S. 753, 761 (1972). But the power of the National Government to exclude aliens from the country is undoubted and sweeping. “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power.” Chae Chan Ping n. United States, 130 U. S. 581, 603-604 (1889). “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 ... is settled by our previous ad 292 OCTOBER TERM, 1972 White, J., dissenting 413 U. S. judications.” Lem Moon Sing n. United States, 158 U. S. 538, 547 (1895). See also Fong Yue Ting v. United States, 149 U. S. 698, 711 (1893); Yamataya n. Fisher, 189 U. S. 86, 97-99 (1903); United States ex rel. Turner n. Williams, 194 U. S. 279,289-290 (1904); Oceanic Steam Navigation Co. n. Stranahan, 214 U. S. 320, 335-336 (1909); United States ex rel. Volpe v. Smith, 289 U. S. 422, 425 (1933). Since 1875, Congress has given “almost continuous attention ... to the problems of immigration and of excludability of certain defined classes of aliens. The pattern generally has been one of increasing control . . . .” Kleindienst v. Mandel, supra, at 761-762. It was only as the illegal entry of aliens multiplied that Congress addressed itself to enforcement mechanisms. In 1917, immigration authorities were authorized to board and search all conveyances by which aliens were being brought into the United States. Act of Feb. 5, 1917, § 16, 39 Stat. 886. This basic authority, substantially unchanged, is incorporated in 8 U. S. C. § 1225 (a). In 1946, it was represented to Congress that “[i]n the enforcement of the immigration laws it is at times desirable to stop and search vehicles within a reasonable distance from the boundaries of the United States and the legal right to do so should be conferred by law.” H. R. Rep. No. 186, 79th Cong., 1st Sess., 2 (1945). The House Committee on Immigration and Naturalization was “of the opinion that the legislation is highly desirable,” ibid., and its counterpart in the Senate, S. Rep. No. 632, 79th Cong., 1st Sess., 2 (1945), stated that “[t]here is no question but that this is a step in the right direction.” The result was express statutory authority, Act of Aug. 7, 1946, 60 Stat. 865, to conduct searches of vehicles for aliens within a reasonable distance from the border without warrant or possible cause. Moreover, in the Immigration and Nationality Act of 1952, 66 Stat. ALMEIDA-SANCHEZ v. UNITED STATES 293 266 White, J., dissenting 163, Congress permitted the entry onto private lands, excluding dwellings, within a distance of 25 miles from any external boundaries of the country “for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States . . . ” §287 (a)(3), 66 Stat. 233. The judgment of Congress obviously was that there are circumstances in which it is reasonably necessary, in the enforcement of the immigration laws, to search vehicles and other private property for aliens, without warrant or probable cause, and at locations other than at the border. To disagree with this legislative judgment is to invalidate 8 U. S. C. § 1357 (a)(3) in the face of the contrary opinion of Congress that its legislation comported with the standard of reasonableness of the Fourth Amendment. This I am quite unwilling to do. The external boundaries of the United States are extensive. The Canadian border is almost 4,000 miles in length; the Mexican, almost 2,000. Surveillance is maintained over the established channels and routes of communication. But not only is inspection at regular points of entry not infallible, but it is also physically impossible to maintain continuous patrol over vast stretches of our borders. The fact is that illegal crossings at other than the legal ports of entry are numerous and recurring. If there is to be any hope of intercepting illegal entrants and of maintaining any kind of credible deterrent, it is essential that permanent or temporary checkpoints be maintained away from the borders, and roving patrols be conducted to discover and intercept illegal entrants as they filter to the established roads and highways and attempt to move away from the border area. It is for this purpose that the Border Patrol maintained the roving patrol involved in this case and conducted random, spot checks of automobiles and other vehicular traffic. 294 OCTOBER TERM, 1972 White, J., dissenting 413 U. S. The United States in this case reports that in fiscal year 1972, Border Patrol traffic checking operations located over 39,000 deportable aliens, of whom approximately 30,000 had entered the United States by illegally crossing the border at a place other than a port of entry. This was said to represent nearly 10% of the number of such aliens located by the Border Patrol by all means throughout the United States.⁶ Section 1357 (a) (3) authorizes only searches for aliens and only searches of conveyances and other property. No searches of the person or for contraband are authorized by the section. The authority extended by the statute is limited to that reasonably necessary for the officer to assure himself that the vehicle or other conveyance is not carrying an alien who is illegally within this country; and more extensive searches of automobiles without probable cause are not permitted by the section. Roa-Rodriquez v. United States, 410 F. 2d 1206 (CAIO 1969); see Fumagalli v. United States, 429 F. 2d 1011, 1013 (CA9 1970). Guided by the principles of Camara, Colonnade, and Biswell, I cannot but uphold the judgment of Congress that for purposes of enforcing the immigration laws it is reasonable to treat the exterior boundaries of the country as a zone, not a line, and that there are recurring circumstances in which the search of vehicular traffic without warrant and without probable cause may be reasonable under the Fourth Amendment although not carried out at the border itself. ⁶ In fiscal year 1972, 398,000 aliens who had entered the United States without inspection were located by Immigration and Naturalization officers; and of the 39,243 deportable aliens located through traffic checking operations, about one-third, 11,586, had been assisted by smugglers. In fiscal year 1972, 2,880 such smugglers were discovered through traffic checking operations. Ninety-nine percent of all aliens illegally entering the United States by land crossed our border with Mexico. ALMEIDA-SANCHEZ v. UNITED STATES 295 266 White, J., dissenting This has also been the considered judgment of the three Courts of Appeals whose daily concern is the enforcement of the immigration laws along the Mexican-American border, and who, although as sensitive to constitutional commands as we are, perhaps have a better vantage point than we here on the Potomac to judge the practicalities of border-area law enforcement and the reasonableness of official searches of vehicles to enforce the immigration statutes. The Court of Appeals for the Ninth Circuit, like other circuits, recognizes that at the border itself, persons may be stopped, identified, and searched without warrant or probable cause and their effects and conveyances likewise subjected to inspection. There seems to be no dissent on this proposition. Away from the border, persons and automobiles may be searched for narcotics or other contraband only on probable cause; but under § 1357 (a)(3), automobiles may be stopped without warrant or probable cause and a limited search for aliens carried out in those portions of the conveyance capable of concealing any illegal immigrant. This has been the consistent view of that court. In Fumagalli v. United States, supra, Fumagalli was stopped at a checkpoint in Imperial, California, 49 miles north of the international boundary. In the course of looking in the trunk for an illegal entrant, the odor of marihuana was detected and marihuana discovered. Fumagalli contended that the trunk of the automobile could not be examined to locate an illegal entrant absent probable cause to believe that the vehicle carried such a person. The court, composed of Judges Merrill, Hufstedler, and Byrne, rejected the position, stating that “[w]hat all of these cases make clear is that probable cause is not required for an immigration search within approved limits [footnote omitted] but is generally required to sustain the legality of a search for contraband 296 OCTOBER TERM, 1972 White, J., dissenting 413 U. S. in a person’s automobile conducted away from the international borders. . . . Appellant has confused the two rules in his attempt to graft the probable cause standards of the narcotics cases . . . onto the rules justifying immigration inspections . . . .” 429 F. 2d, at 1013. Among prior cases reaffirmed was Fernandez v. United States, 321 F. 2d 283 (1963), where an automobile was stopped 18 miles north of Oceanside, California, on Highway 101 at a point 60 to 70 miles north of the Mexican border. An inspection for illegally entering aliens was conducted, narcotics were discovered and seized, and the stop and seizure were sustained under the statute. The Immigration Service, it was .noted, had been running traffic checks in this area for 31 years, many illegal entrants had been discovered there, and there were at least a dozen other such checkpoints operating along the border between the United States and Mexico.⁷ The Courts of Appeal for the Fifth and Tenth Circuits share the problem of enforcing the immigration laws along the Mexican-American border. Both courts agree with the Ninth Circuit that § 1357 (a) (3) is not void and that there are recurring circumstances where, as the statute permits, a stop of an automobile without warrant or probable cause and a search of it for aliens are constitutionally permissible. In United States v. De Leon, 462 F. 2d 170 (CA5 1972), De Leon was stopped without warrant or probable cause, ⁷ In the Court of Appeals for the Ninth Circuit, 8 U. S. C. § 1357 (a) (3) has also been sustained in, e. g., Mienke v. United States, 452 F. 2d 1076 (1971); United States v. Marin, 444 F. 2d 86 (1971); Duprez v. United States, 435 F. 2d 1276 (1970); United States v. Sanchez-Mata, 429 F. 2d 1391 (1970); United States v. Avey, 428 F. 2d 1159 (1970); United States v. Miranda, 426 F. 2d 283 (1970); and United States v. Elder, 425 F. 2d 1002 (1970). See also Valenzuela-Garcia v. United States, 425 F. 2d 1170 (1970), and Barba-Reyes v. United States, 387 F. 2d 91 (1967). ALMEIDA-SANCHEZ v. UNITED STATES 297 266 White, J., dissenting while driving on the highway leading north of Laredo, Texas, approximately 10 miles from the Mexican border. The purpose of the stop was to inspect for illegally entering aliens. De Leon opened the trunk as he was requested to do. A false bottom in the trunk and what was thought to be an odor of marihuana were immediately noticed and some heroin was seized. Judge Wisdom, writing for himself and Judges Godbold and Roney, concluded that: “Stopping the automobile ten miles from the Mexican border to search for illegal aliens was reasonable. See United States v. McDaniel, [463 F. 2d 129 (CA5 1972)]; United States v. Warner, 5 Cir. 1971, 441 F. 2d 821; Marsh v. United States, 5 Cir. 1965, 344 F. 2d 317, 8 U. S. C. §§ 1225, 1357; 19 U. S. C. §§ 482, 1581, 8 C. F. R. § 287.1 [1973]; 19 C. F. R. §§ 23.1(d), 23.11 [1972]. Once the vehicle was reasonably stopped pursuant to an authorized border check the agents were empowered to search the vehicle, including the trunk, for aliens.” Id., at 171. Similarly, United States n. McDaniel, 463 F. 2d 129 (CA5 1972), upheld a stop and an ensuing search for aliens that uncovered another crime. Judge Goldberg, with Judges Wisdom and Clark, was careful to point out, however, that the authority granted under the statute must still be exercised in a manner consistent with the standards of reasonableness of the Fourth Amendment. “Once the national frontier has been crossed, the search in question must be reasonable upon all of its facts, only one of which is the proximity of the search to an international border.” Id., at 133. This view appears to have been the law in the Fifth Circuit for many years.⁸ ⁸£. g., Kelly v. United States, 197 F. 2d 162 (1952). See also United States v. Bird, 456 F. 2d 1023, 1024 (1972); Ramirez v. 298 OCTOBER TERM, 1972 White, J., dissenting 413 U. S. The Court of Appeals for the Tenth Circuit has expressed similar views. In Roa-Rodriquez, supra, the automobile was stopped in New Mexico some distance from the Mexican border, the purpose being to search for aliens. Relying on the statute, the court, speaking through Judge Breitenstein, concluded that “[i]n the circumstances the initial stop and search for aliens were proper.” Id., at 1208. However, when it was determined by the officers that there were no occupants of the car illegally in the country, whether in the trunk or elsewhere, the court held that the officers had no business examining the contents of a jacket found in the trunk. The evidence in this case was excluded. The clear rule of the circuit, however, is that conveyances may be stopped and examined for aliens without warrant or probable cause when in all the circumstances it is reasonable to do so.⁹ Congress itself has authorized vehicle searches at a reasonable distance from international frontiers in order to aid in the enforcement of the immigration laws. Congress has long considered such inspections constitutionally permissible under the Fourth Amendment. So, also, those courts and judges best positioned to make intelligent and sensible assessments of the requirements of reasonableness in the context of controlling illegal entries into this country have consistently and almost without dissent come to the same conclusion that is embodied in the judgment that is reversed today.¹⁰ United States, 263 F. 2d 385, 387 (1959); and Haerr n. United States, 240 F. 2d 533, 535 (1957). ⁹^. g., United States v. Anderson, 468 F. 2d 1280 (1972); and United States v. McCormick, 468 F. 2d 68 (1972). ¹⁰ Without having undertaken an exhaustive survey, in the 20 court of appeals cases I have noted, including the one before us, 35 different judges of the three Courts of Appeals found inspection ALMEIDA-SANCHEZ v. UNITED STATES 299 266 White, J., dissenting II I also think that § 1357 (a)(3) was validly applied in this case and that the search for aliens and the discovery of marihuana were not illegal under the Fourth Amendment. It was stipulated that the highway involved here was one of the few roads in California moving away from the Mexican border that did not have an established check station and that it is commonly used by alien smugglers to evade regular checkpoints. The automobile, when stopped sometime after midnight, was 50 miles along the road from the border town of Calexico, proceeding toward Blythe, California; but as a matter of fact it appears that the point at which the car was stopped was approximately only 20 miles due north of the Mexican border. Given the large number of illegal entries across the Mexican border at other than established ports of entry, as well as the likelihood that many illegally entering aliens cross on foot and meet prearranged transportation in this country, I think that under all the circumstances the stop of petitioner’s car was reasonable, as was the search for aliens under the rear seat of the car pursuant to an official bulletin suggesting search procedures based on experience. Given a valid search of the car for aliens, it is in no way contended that the discovery and seizure of the marihuana were contrary to law.¹¹ I would affirm the judgment of the Court of Appeals, of vehicles for illegal aliens without warrant or probable cause to be constitutional. Only one judge has expressed a different view. ¹¹ The United States does not contend, see Tr. of Oral Arg. 29, and I do not suggest that any search of a vehicle for aliens within 100 miles of the border pursuant to 8 CFR §287.1 would pass constitutional muster. The possible invalidity of the regulation and of 8 U. S. C. § 1357 (a) (3) in other circumstances is not at issue here. 300 OCTOBER TERM, 1972 Opinion of the Court 413U.S. UNITED STATES v. ASH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 71-1255. Argued January 10, 1973—Decided June 21, 1973 The Sixth Amendment does not grant an accused the right to have counsel present when the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. A pretrial event constitutes a “critical stage” when the accused requires aid in coping with legal problems or help in meeting his adversary. Since the accused is not present at the time of the photographic display, and, as here, asserts no right to be present, there is no possibility that he might be misled by his lack of familiarity with the law or overpowered by his professional adversary. United States v. Wade, 388 U. S. 218, distinguished. Pp. 306-321. 149 U. S. App. D. C. 1, 461 F. 2d 92, reversed and remanded. Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and Rehnquist, JJ., joined. Stewart, J., filed an opinion concurring in the judgment, post, p. 321. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 326. Edward R. Korman argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, and Jerome M. Feit. Sherman L. Cohn, by appointment of the Court, 408 U. S. 942, argued the cause and filed a brief for respondent. Mr. Justice Blackmun delivered the opinion of the Court. In this case the Court is called upon to decide whether UNITED STATES v. ASH 301 300 Opinion of the Court the Sixth Amendment¹ grants an accused the right to have counsel present whenever the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held, by a 5-to-4 vote, that the accused possesses this right to counsel. 149 U. S. App. D. C. 1, 461 F. 2d 92 (1972). The court’s holding is inconsistent with decisions of the courts of appeals of nine other circuits.² We granted certiorari ¹ “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” ² United States v. Bennett, 409 F. 2d 888, 898-900 (CA2), cert, denied sub nom. Haywood v. United States, 396 U. S. 852 (1969); United States ex rel. Reed v. Anderson, 461 F. 2d 739 (CA3 1972) (en banc); United States n. Collins, 416 F. 2d 696 (CA4 1969), cert, denied, 396 U. S. 1025 (1970); United States v. Ballard, 423 F. 2d 127 (CA5 1970); United States v. Serio, 440 F. 2d 827, 829-830 (CA6 1971); United States v. Robinson, 406 F. 2d 64, 67 (CA7), cert, denied, 395 U. S. 926 (1969); United States v. Long, 449 F. 2d 288,301-302 (CA8 1971), cert, denied, 405 U. S. 974 (1972); Allen v. Rhay, 431 F. 2d 1160, 1166-1167 (CA9 1970); McGee n. United States, 402 F. 2d 434, 436 (CAIO 1968), cert, denied, 394 U. S. 908 (1969). The en banc decision of the Third Circuit in Anderson overruled in part a panel decision in United States v. Zeiler, 427 F. 2d 1305 (CA3 1970). The question has also produced conflicting decisions in state courts. The majority view, as in the courts of appeals, rejects the claimed right¹ to counsel. See, e. g., McGhee v. State, 48 Ala. App. 330,264 So. 2d 560 (Ala. Crim. App. 1972); State v. Yehling, 108 Ariz. 323,498 P. 2d 145 (1972); People v. Lawrence, 4 Cal. 3d 273, 481 P. 2d 212 (1971), cert, denied, 407 U. S. 909 (1972); Reed v. State, — Del. —, 281 A. 2d 142 (1971); People n. Holiday, 47 Ill. 2d 300, 265 N. E. 2d 634 (1970); Baldwin v. State, 5 Md. App. 22, 245 A. 2d 98 (1968) (dicta); Commonwealth v. Ross, ---Mass. —, 282 N. E. 2d 70 (1972), vacated on other grounds and remanded, 410 U. S. 901 (1973); Stevenson v. State, 244 So. 2d 30 (Miss. 1971); State v. Brookins, 468 S. W. 2d 42 (Mo. 1971) (dicta); People v. Coles, 34 App. Div. 2d 1051, 312 N. Y. S. 2d 621 (1970) (dicta); State v. 302 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. to resolve the conflict and to decide this important constitutional question. 407 U. S. 909 (1972). We reverse and remand. I On the morning of August 26, 1965, a man with a stocking mask entered a bank in Washington, D. C., and began waving a pistol. He ordered an employee to hang up the telephone and instructed all others present not to move. Seconds later a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers’ drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes. A Government informer, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr., the respondent here. Acting on this information, an FBI agent, in February 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash’s picture. At this time Ash was not in custody and had not been charged. On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to this Moss, 187 Neb. 391, 191 N. W. 2d 543 (1971); Drewry v. Commonwealth, 213 Va. 186, 191 S. E. 2d 178 (1972); State v. Nettles, 81 Wash. 2d 205, 500 P. 2d 752 (1972); Kain v. State, 48 Wis. 2d 212, 179 N. W. 2d 777 (1970). Cf. State v. Accor, 277 N. C. 65, 175 S. E. 2d 583 (1970). Several state courts, however, have granted a right to counsel at photographic identifications. See, e. g., Cox v. State, 219 So. 2d 762 (Fla. App. 1969) (video tapes); People v. Anderson, 389 Mich. 155, 205 N. W. 2d 461 (1973); Thompson n. State, 85 Nev. 134, 451 P. 2d 704, cert, denied, 396 U. S. 893 (1969); Commonwealth n. Whiting, 439 Pa. 205, 266 A. 2d 738, cert, denied, 400 U. S. 919 (1970). UNITED STATES v. ASH 303 300 Opinion of the Court bank robbery, in violation of D. C. Code Ann. § 22-2901 and 18 U. S. C. §2113 (a). Trial was finally set for May 1968, almost three years after the crime. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. This post-indictment³ identification provides the basis for respondent Ash’s claim that he was denied the right to counsel at a “critical stage” of the prosecution. No motion for severance was made, and Ash and Bailey were tried jointly. The trial judge held a hearing on the suggestive nature of the pretrial photographic displays.⁴ The judge did not make a clear ruling on suggestive nature, but held that the Government had demonstrated by “clear and convincing” evidence that in-court identifications would be “based on observation of ³ Respondent Ash does not assert a right to counsel at the black-and-white photographic display in February 1966 because he recognizes that Kirby v. Illinois, 406 U. S. 682 (1972), forecloses application of the Sixth Amendment to events before the initiation of adversary criminal proceedings. Tr. of Oral Arg. 21-22; Brief for Respondent 32 n. 21. ⁴ At this hearing both the black-and-white and color photographs were introduced as exhibits. App. 44. The FBI agents who conducted the pretrial displays were called as witnesses and were cross-examined fully. App. 10, 28. Two of the four witnesses who were expected to make in-court identifications also testified and were cross-examined concerning the photographic identifications. App. 55, 65. 304 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. the suspect other than the intervening observation.” App. 63-64. At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-court identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive incourt identifications of both Ash and Bailey. Bailey’s counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey’s counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey’s counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of Ash. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. The Court of Appeals held that this constituted the introduction of a post-indictment identification at the prosecutor’s request and over the objection of defense counsel.® ⁵ The majority of the Court of Appeals concluded that Ash’s counsel properly had preserved his objection to introduction of the photographs. 149 U. S. App. D. C., at 6 n. 6, 461 F. 2d, at 97 n. 6. Although the contrary view of the dissenting judges has been noted here by the Government, the majority’s ruling on this issue is not asserted by the Government as a basis for reversal. Pet. for Cert. 4 n. 5; Brief for United States 6 n. 6. Under these circumstances, we are not inclined to disturb the ruling of the Court of Appeals on this close procedural question. App. 104, 126-131. UNITED STATES v. ASH 305 300 Opinion of the Court McFarland testified as a Government witness. He said he had discussed plans for the robbery with Ash before the event and, later, had discussed the results of the robbery with Ash in the presence of Bailey. McFarland was shown to possess an extensive criminal record and a history as an informer. The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years. The five-member majority of the Court of Appeals held that Ash’s right to counsel, guaranteed by the Sixth Amendment, was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. The majority relied on this Court’s lineup cases, United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), and on Stovall v. Denno, 388 U. S. 293 (1967). The majority did not reach the issue of suggestiveness; their opinion implies, however, that they would order a remand for additional findings by the District Court. 149 U. S. App. D. C., at 7, 461 F. 2d, at 98. The majority refrained from deciding whether the in-court identifications could have independent bases, id., at 14-15 and nn. 20, 21, 461 F. 2d, at 105-106 and nn. 20, 21, but expressed doubt that the identifications at the trial had independent origins. Dissenting opinions, joined by four judges, disagreed with the decision of the majority that the photographic identification was a “critical stage” requiring counsel, and criticized the majority’s suggestion that the in-court identifications were tainted by defects in the photographic identifications. Id., at 14-43, 461 F. 2d, at 106-134. 306 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. II The Court of Appeals relied exclusively on that portion of the Sixth Amendment providing, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The right to counsel in Anglo-American law has a rich historical heritage, and this Court has regularly drawn on that history in construing the counsel guarantee of the Sixth Amendment. We re-examine that history in an effort to determine the relationship between the purposes of the Sixth Amendment guarantee and the risks of a photographic identification. In Powell v. Alabama, 287 U. S. 45, 60-66 (1932), the Court discussed the English common-law rule that severely limited the right of a person accused of a felony to consult with counsel at trial. The Court examined colonial constitutions and statutes and noted that “in at least twelve of the thirteen colonies the rule of the English common law, in the respect now under consideration, had been definitely rejected and the right to counsel fully recognized in all criminal prosecutions, save that in one or two instances the right was limited to capital offenses or to the more serious crimes.” Id., at 64-65. The Sixth Amendment counsel guarantee, thus, was derived from colonial statutes and constitutional provisions designed to reject the English common-law rule. Apparently several concerns contributed to this rejection at the very time when countless other aspects of the common law were being imported. One consideration was the inherent irrationality of the English limitation. Since the rule was limited to felony proceedings, the result, absurd and illogical, was that an accused misdemeanant Could rely fully on counsel, but UNITED STATES v. ASH 307 300 Opinion of the Court the accused felon, in theory at least,⁶ could consult counsel only on legal questions that the accused proposed to the court. See Powell v. Alabama, 287 U. S., at 60. English writers were appropriately critical of this inconsistency. See, for example, 4 W. Blackstone, Commentaries *355. A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The function of counsel as a guide through complex legal technicalities long has been recognized by this Court. Mr. Justice Sutherland’s well-known observations in Powell bear repeating here: “Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” 287 U. S., at 69. The Court frequently has interpreted the Sixth Amend ⁶ Although the English limitation was not expressly rejected until 1836, the rule appears to have been relaxed in practice. 9 W. Holdsworth, History of English Law 235 (1926); 4 W. Blackstone, Commentaries *355-356. 308 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. ment to assure that the “guiding hand of counsel” is available to those in need of its assistance. See, for example, Gideon n. Wainwright, 372 U. S. 335, 344—345 (1963), and Argersinger v. Hamlin, 407 U. S. 25, 31 (1972). Another factor contributing to the colonial recognition of the accused’s right to counsel was the adoption of the institution of the public prosecutor from the Continental inquisitorial system. One commentator has explained the effect of this development: “'[E]arly in the eighteenth century the American system of judicial administration adopted an institution which was (and to some extent still is) unknown in England: while rejecting the fundamental juristic concepts upon which continental Europe’s inquisitorial system of criminal procedure is predicated, the colonies borrowed one of its institutions, the public prosecutor, and grafted it upon the body of English (accusatorial) procedure embodied in the common law. Presumably, this innovation was brought about by the lack of lawyers, particularly in the newly settled regions, and by the increasing distances between the colonial capitals on the eastern seaboard and the ever-receding western frontier. Its result was that, at a time when virtually all but treason trials in England were still in the nature of suits between private parties, the accused in the colonies faced a government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court.” F. Heller, The Sixth Amendment 20-21 (1951) (footnote omitted). UNITED STATES v. ASH 309 300 Opinion of the Court Thus, an additional motivation for the American rule was a desire to minimize the imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official. Mr. Justice Black, writing for the Court in Johnson n. Zerbst, 304 U. S. 458, 462-463 (1938), spoke of this equalizing effect of the Sixth Amendment’s counsel guarantee: “It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” This historical background suggests that the core purpose of the counsel guarantee was to assure “Assistance” at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.⁷ Later developments have led this Court ⁷ Similar concerns eventually led to abandonment of the commonlaw rule in England. That rule originated at a time when counsel was said to be “hardly necessary” because expert knowledge of the law was not required at trial and systematic examination of witnesses had not yet developed. T. Plucknett, A Concise History of the Common Law 410 (4th ed. 1948). Confrontation with legal technicalities became common at English trials when complex rules developed for attacking the indictment. Ibid. The English response was not an unlimited right to counsel, however, but was rather a right for counsel to argue only legal questions. See Powell x. Alabama, 287 U. S. 45, 60 (1932). A plea in abatement directed at insufficiency of the indictment, for example, allowed a prisoner to “pray counsel to be assigned to him to manage his exceptions and take more.” 2 M. Hale, Pleas of the Crown 236 (1736). Confrontation with a professional prosecutor arose in English treason trials before it appeared in ordinary criminal trials. See 1 J. Stephen, History of the Criminal Law of England 348-350 (1883). In 1695 this imbalance in the adversary process was corrected by a 310 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. to recognize that “Assistance” would be less than meaningful if it were limited to the formal trial itself. This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In Wade, the Court explained the process of expanding the counsel guarantee to these confrontations: “When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to ‘critical’ statute granting prisoners the right to counsel at treason trials. 7 Wm. 3, c. 3 (1695). Hawkins explained that the professional ability of king’s counsel motivated this reform because it had “been found by experience that prisoners have been often under great disadvantages from the want of counsel, in prosecutions of high treason against the king’s person, which are generally managed for the crown with greater skill and zeal than ordinary prosecutions . . . .” 2 W. Hawkins, Pleas of the Crown 566 (Leach ed. 1787). The 1695 statute weakened the English rule and, after a century of narrowing practical application, see n. 6, supra, the rule was finally abrogated by statute in 1836. The Trials for Felony Act, 6 & 7 Wm. 4, c. 114 (1836). UNITED STATES v. ASH 311 300 Opinion of the Court stages of the proceedings.” 388 U. S., at 224 (footnote omitted). The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself. Recent cases demonstrate the historical method of this expansion. In Hamilton v. Alabama, 368 U. S. 52 (1961), and in White v. Maryland, 373 U. S. 59 (1963), the accused was confronted with the procedural system and was required, with definite consequences, to enter a plea. In Massiah v. United States, 377 U. S. 201 (1964), the accused was confronted by prosecuting authorities who obtained, by ruse and in the absence of defense counsel, incriminating statements. In Coleman v. Alabama, 399 U. S. 1 (1970), the accused was confronted by his adversary at a “critical stage” preliminary hearing at which the uncounseled accused could not hope to obtain so much benefit as could his skilled adversary. The analogy between the unrepresented accused at the pretrial confrontation and the unrepresented defendant at trial, implicit in the cases mentioned above, was explicitly drawn in Wade: “The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness—That’s the man.’” 388 U. S., at 235-236. 312 OCTOBER TERM, 1972 Opinion of the Court 413 U. 8. Throughout this expansion of the counsel guarantee to trial-like confrontations, the function of the lawyer has remained essentially the same as his function at trial. In all cases considered by the Court, counsel has continued to act as a spokesman for, or advisor to, the accused. The accused’s right to the “Assistance of Counsel” has meant just that, namely, the right of the accused to have counsel acting as his assistant. In Hamilton and White, for example, the Court envisioned the lawyer as advising the accused on available defenses in order to allow him to plead intelligently. 368 U. S., at 54-55; 373 U. S., at 60. In Massiah counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the prosecution. 377 U. S., at 205. Cf. Miranda n. Arizona, 384 U. S. 436, 466 (1966). In Coleman the skill of the lawyer in examining witnesses, probing for evidence, and making legal arguments was relied upon by the Court to demonstrate that, in the light of the purpose of the preliminary hearing under Alabama law, the accused required “Assistance” at that hearing. 399 U. S., at 9. The function of counsel in rendering “Assistance” continued at the lineup under consideration in Wade and its companion cases. Although the accused was not confronted there with legal questions, the lineup offered opportunities for prosecuting authorities to take advantage of the accused. Counsel was seen by the Court as being more sensitive to, and aware of, suggestive influences than the accused himself, and as better able to reconstruct the events at trial. Counsel present at lineup would be able to remove disabilities of the accused in precisely the same fashion that counsel compensated for the disabilities of the layman at trial. Thus, the Court mentioned that the accused’s memory might be dimmed by “emotional tension,” that the accused’s credibility at UNITED STATES v. ASH 313 300 Opinion of the Court trial would be diminished by his status as defendant, and that the accused might be unable to present his version effectively without giving up his privilege against compulsory self-incrimination. United States n. Wade, 388 U. S., at 230-231. It was in order to compensate for these deficiencies that the Court found the need for the assistance of counsel. This review of the history and expansion of the Sixth Amendment counsel guarantee demonstrates that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. Against the background of this traditional test, we now consider the opinion of the Court of Appeals. Ill Although the Court of Appeals’ majority recognized the argument that “a major purpose behind the right to counsel is to protect the defendant from errors that he himself might make if he appeared in court alone,” the court concluded that “other forms of prejudice,” mentioned and recognized in Wade, could also give rise to a right to counsel. 149 U. S. App. D. C., at 10, 461 F. 2d, at 101. These forms of prejudice were felt by the court to flow from the possibilities for mistaken identification inherent in the photographic display.⁸ ⁸“[T]he dangers of mistaken identification from uncounseled lineup identifications set forth in Wade are applicable in large measure to photographic as well as corporeal identifications. These include, notably, the possibilities of suggestive influence or mistake—particularly where witnesses had little or no opportunity for detailed observation during the crime; the difficulty of reconstructing sug-gestivity—even greater when the defendant is not even present; the tendency of a witness’s identification, once given under these circumstances, to be frozen. While these difficulties may be somewhat mitigated by preserving the photograph shown, it may also be said that a photograph can preserve the record of a lineup; yet this does 314 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. We conclude that the dangers of mistaken identification, mentioned in Wade, were removed from context by the Court of Appeals and were incorrectly utilized as a sufficient basis for requiring counsel. Although Wade did discuss possibilities for suggestion and the difficulty for reconstructing suggestivity, this discussion occurred only after the Court had concluded that the lineup constituted a trial-like confrontation, requiring the “Assistance of Counsel” to preserve the adversary process by compensating for advantages of the prosecuting authorities. The above discussion of Wade has shown that the traditional Sixth Amendment test easily allowed extension of counsel to a lineup. The similarity to trial was apparent, and counsel was needed to render “Assistance” in counterbalancing any “overreaching” by the prosecution. After the Court in Wade held that a lineup constituted a trial-like confrontation requiring counsel, a more difficult issue remained in the case for consideration. The same changes in law enforcement that led to lineups and pretrial hearings also generated other events at which the accused was confronted by the prosecution. The Government had argued in Wade that if counsel was required at a lineup, the same forceful considerations would mandate counsel at other preparatory steps in the “gathering of the prosecution’s evidence,” such as, for not justify a lineup without counsel. The same may be said of the opportunity to examine the participants as to what went on in the course of the identification, whether at lineup or on photograph. Sometimes this may suffice to bring out all pertinent facts, even at a lineup, but this would not suffice under Wade to offset the constitutional infringement wrought by proceeding without counsel. The presence of counsel avoids possibilities of suggestiveness in the manner of presentation that are otherwise ineradicable.” 149 U. S. App. D. C., at 9-10, 461 F. 2d, at 100-101. UNITED STATES v. ASH 315 300 Opinion of the Court particular example, the taking of fingerprints or blood samples. 388 U. S., at 227. The Court concluded that there were differences. Rather than distinguishing these situations from the lineup in terms of the need for counsel to assure an equal confrontation at the time, the Court recognized that there were times when the subsequent trial would cure a one-sided confrontation between prosecuting authorities and the uncounseled defendant. In other words, such stages were not “critical.” Referring to fingerprints, hair, clothing, and other blood samples, the Court explained: “Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts.” 388 U. S., at 227-228. The structure of Wade, viewed in light of the careful limitation of the Court’s language to “confrontations,” ⁹ ⁹ The Court rather narrowly defined the issues under consideration: “The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an ‘identification parade’ or ‘showup,’ as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra. It is obvious that risks of suggestion attend either form of confrontation .... But as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations.” . United States v. Wade, 388 U. S. 218, 229-230 (1967) (emphasis added). The. photographic identification could hardly have been overlooked by inadvertence since the Government stressed the similarity between lineups and photographic identifications. Brief for United States in Wade, No. 334, 0. T. 1966, pp. 7, 14, 19, 24. 316 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. makes it clear that lack of scientific precision and inability to reconstruct an event are not the tests for requiring counsel in the first instance. These are, instead, the tests to determine whether confrontation with counsel at trial can serve as a substitute for counsel at the pretrial confrontation. If accurate reconstruction is possible, the risks inherent in any confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to cease to be “critical.” The opinion of the Court even indicated that changes in procedure might cause a lineup to cease to be a “critical” confrontation: “Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as ‘critical.’ ” 388 U. S., at 239 (footnote omitted). See, however, id., at 262 n. (opinion of Fortas, J.). The Court of Appeals considered its analysis complete after it decided that a photographic display lacks scientific precision and ease of accurate reconstruction at trial. That analysis, under Wade, however, merely carries one to the point where one must establish that the trial itself can provide no substitute for counsel if a pretrial confrontation is conducted in the absence of counsel. Judge Friendly, writing for the Second Circuit in United States v. Bennett, 409 F. 2d 888 (1969), recognized that the “criticality” test of Wade, if applied outside the confrontation context, would result in drastic expansion of the right to counsel: “None of the classical analyses of the assistance to be given by counsel, Justice Sutherland’s in Powell v. Alabama . . . and Justice Black’s in Johnson v. UNITED .STATES v. ASH 317 300 Opinion of the Court Zerbst . . . and Gideon v. Wainwright . . . suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant’s absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other aspects of the prosecution’s interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense’s interviews, notably with alibi witnesses.” Id., at 899-900. We now undertake the threshhold analysis that must be addressed. IV A substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present, Brief for Respondent 40, no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Rather, the guarantee was used by the Court of Appeals to produce confrontation at an event that previously was not analogous to an adversary trial. Even if we were willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, we would be unwilling to go so far as to extend the right to a portion of the prosecutor’s trialpreparation interviews with witnesses. Although pho 318 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. tography is relatively new, the interviewing of witnesses before trial is a procedure that predates the Sixth Amendment. In England in the 16th and 17th centuries counsel regularly interviewed witnesses before trial. 9 W. Holdsworth, History of English Law 226-228 (1926). The traditional counterbalance in the American adversary system for these interviews arises from the equal ability of defense counsel to seek and interview witnesses himself. That adversary mechanism remains as effective for a photographic display as for other parts of pretrial interviews.¹⁰ No greater limitations are placed on defense counsel in constructing displays, seeking witnesses, and conducting photographic identifications than those applicable to the prosecution.¹¹ Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of ¹⁰ Duplication by defense counsel is a safeguard that normally is not available when a formal confrontation occurs. Defense counsel has no statutory authority to conduct a preliminary hearing, for example, and defense counsel will generally be prevented by practical considerations from conducting his own lineup. Even in some confrontations, however, the possibility of duplication may be important. The Court noted this in holding that the taking of handwriting exemplars did not constitute a “critical stage”: “If, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through the adversary process at trial since the accused can make an unlimited number of additional exemplars for analysis and comparison by government and defense handwriting experts.” Gilbert v. Cdijornia, 388 U. S. 263, 267 (1967). ¹¹ We do not suggest, of course, that defense counsel has any greater freedom than the prosecution to abuse the photographic identification. Evidence of photographic identifications conducted by the defense may be excluded as unreliable under the same standards that would be applied to unreliable identifications conducted by the Government. UNITED STATES v. ASH 319 300 Opinion of the Court a picture of the defendant would be useful to the prosecution.¹² In this very case, for example, the initial tender of the photographic display was by Bailey’s counsel, who sought to demonstrate that the witness had failed to make a photographic identification. Although we do not suggest that equality of access to photographs removes all potential for abuse,¹³ it does remove any inequality in the adversary process itself and thereby fully satisfies the historical spirit of the Sixth Amendment’s counsel guarantee. The argument has been advanced that requiring counsel might compel the police to observe more scientific procedures or might encourage them to utilize corporeal rather than photographic displays.¹⁴ This Court has ¹² The Court of Appeals deemed it significant that a photographic identification is admissible as substantive evidence, whereas other parts of interviews may be introduced only for impeachment. 149 U. S. App. D. C., at 10, 461 F. 2d, at 101. In this case defense counsel for Bailey introduced the inability to identify, and that was received into evidence. Thus defense counsel still received benefits equivalent to those available to the prosecution. Although defense counsel may be concerned that repeated photographic displays containing the accused’s picture as the only common characteristic will tend to promote identification of the accused, the defense has other balancing devices available to it, such as the use of a sufficiently large number of photographs to counteract this possibility. ¹³ Although the reliability of in-court identifications and the effectiveness of impeachment may be improved by equality of access, we do not suggest that the prosecution’s photographic identification would be more easily reconstructed at trial simply because defense counsel could conduct his own photographic display. But, as we have explained, supra, at 315-316, the possibility of perfect reconstruction is relevant to the evaluation of substitutes for counsel, not to the initial designation of an event as a “critical stage.” ¹⁴ Sobel, Assailing the Impermissible Suggestion: Evolving Limita-tions on the Abuse of Pre-Trial Criminal Identification Methods, 38 Brooklyn L. Rev. 261, 299 (1971); Comment, 43 N. Y. U. L. Rev. 1019, 1022 (1968); Note, 2 Rutgers Camden L. J. 347, 359 (1970) ; Note, 21 Syracuse L. Rev. 1235, 1241-1242 (1970). A variant of 320 OCTOBER TERM, 1972 Opinion of the Court 4131^. 8. recognized that improved procedures can minimize the dangers of suggestion. Simmons n. United States, 390 U. S. 377, 386 n. 6 (1968). Commentators have also proposed more accurate techniques.¹⁵ Pretrial photographic identifications, however, are hardly unique in offering possibilities for the actions of the prosecutor unfairly to prejudice the accused. Evidence favorable to the accused may be withheld; testimony of witnesses may be manipulated; the results of laboratory tests may be contrived. In many ways the prosecutor, by accident or by design, may improperly subvert the trial. The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor,¹⁰ who, as so often has been said, may “strike hard blows” but not “foul ones.” Berger v. United States, 295 U. S. 78, 88 (1935); Brady v. Maryland, 373 U. S. 83, 87-88 (1963). If that safeguard fails, review remains available under due process standards. See Giglio v. United States, 405 U. S. 150 (1972); Mooney v. Holohan, 294 U. S. 103, 112 (1935); Miller v. Pate, 386 U. S. 1 (1967); Chambers v. Mississippi, 410 U. S. 284 (1973). These same safeguards apply to misuse of photographs. See Simmons v. United States, 390 U. S., at 384. this argument is that photographic identifications may be used to circumvent the need for counsel at lineups. Brief for Respondent 44-45. ¹⁵ E. g., P. Wall, Eye-Witness Identification in Criminal Cases 77-85 (1965); Sobel, supra, n. 14, at 309-310; Comment, 56 Iowa L. Rev. 408, 420-421 (1970). ¹⁶ Throughout a criminal prosecution the prosecutor’s ethical responsibility extends, of course, to supervision of any continuing investigation of the case. By prescribing procedures to be used by his agents and by screening the evidence before trial with a view to eliminating unreliable identifications, the prosecutor is able to minimize abuse in photographic displays even if they are conducted in his absence. UNITED STATES v. ASH 321 300 Stewart, J., concurring in judgment We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required. We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. This holding requires reversal of the judgment of the Court of Appeals. Although respondent Ash has urged us to examine this photographic display under the due process standard enunciated in Simmons v. United States, 390 U. S., at 384, the Court of Appeals, expressing the view that additional findings would be necessary, refused to decide the issue. 149 U. S. App. D. C., at 7, 461 F. 2d, at 98. We decline to consider this question on this record in the first instance. It remains open, of course, on the Court of Appeals’ remand to the District Court. Reversed and remanded. Mr. Justice Stewart, concurring in the judgment. The issue in the present case is whether, under the Sixth Amendment, a person who has been indicted is entitled to have a lawyer present when prosecution witnesses are shown the person’s photograph and asked if they can identify him. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” This Court’s decisions make it clear that a defendant is entitled to the assistance of counsel not only at the trial itself, but at all “critical stages” of his “prosecution.” See Coleman v. Alabama, 399 U. S. 1; United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; Hamilton v. Alabama, 368 U. S. 52. The requirement 322 OCTOBER TERM, 1972 Stewart, J., concurring in judgment 413 U. S. that there be a “prosecution,” means that this constitutional “right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against [an accused]. . . .” “It is this point . . . that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” Kirby v. Illinois, 406 U. S. 682, 688,690 (plurality opinion). Since the photographic identification in the present case occurred after the accused had been indicted, and thus clearly after adversary judicial proceedings had been initiated, the only question is whether that procedure was such a “critical stage” that the Constitution required the presence of counsel. In United States v. Wade, supra, the Court determined that a pretrial proceeding is a “critical stage” if “the presence of . . . counsel is necessary to preserve the defendant’s . . . right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” 388 U. S., at 227. Pretrial proceedings are “critical,” then, if the presence of counsel is essential “to protect the fairness of the trial itself.” Schneckloth v. Bustamonte, 412 U. S. 218, 239; cf. Coleman v. Alabama, 399 U. S. 1, 27-28 (Stewart, J., dissenting). The Court held in Wade that a post-indictment, pretrial lineup at which the accused was exhibited to identifying witnesses was such a critical stage, because of the substantial possibility that the accused’s right to a fair trial would otherwise be irretrievably lost. The hazard of unfair suggestive influence at a lineup, which, because of the nature of the proceeding, could seldom be reconstructed at trial, left little doubt, the Court thought, “that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” 388 U. S., at 237. UNITED STATES v. ASH 323 300 Stewart, J., concurring in judgment The Court stressed in JFade that the danger of mistaken identification at trial was appreciably heightened by the “degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Id., at 228. There are numerous and subtle possibilities for such improper suggestion in the dynamic context of a lineup. Judge Wilkey, dissenting in the present case, accurately described a lineup as: “a little drama, stretching over an appreciable span of time. The accused is there in the flesh, three-dimensional and always full-length. Further, he isn’t merely there, he acts. He walks on stage, he blinks in the glare of lights, he turns and twists, often muttering asides to those sharing the spotlight. He can be required to utter significant words, to turn a profile or back, to walk back and forth, to doff one costume and don another. All the while the potentially identifying witness is watching, a prosecuting attorney and a police detective at his elbow, ready to record the witness’ every word and reaction.” 149 U. S. App. D. C. 1, 17, 461 F. 2d 92, 108. With no attorney for the accused present at this “little drama,” defense counsel at trial could seldom convincingly discredit a witness’ courtroom identification by showing it to be based on an impermissibly suggestive lineup. In addition to the problems posed by the fluid nature of a lineup, the Court in Wade pointed out that neither the witnesses nor the lineup participants were likely to be alert for suggestive influences or schooled in their detection. “In short, the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” 388 U. 8., at 231-232. 324 OCTOBER TERM, 1972 Stewart, J., concurring in judgment 413 U. S. The Court held, therefore, that counsel was required at a lineup, primarily as an observer, to ensure that defense counsel could effectively confront the prosecution’s evidence at trial. Attuned to the possibilities of suggestive influences, a lawyer could see any unfairness at a lineup, question the witnesses about it at trial, and effectively reconstruct what had gone on for the benefit of the jury or trial judge.* A photographic identification is quite different from a lineup, for there are substantially fewer possibilities of impermissible suggestion when photographs are used, and those unfair influences can be readily reconstructed at trial. It is true that the defendant’s photograph may be markedly different from the others displayed, but this unfairness can be demonstrated at trial from an actual comparison of the photographs used or from the witness’ description of the display. Similarly, it is possible that the photographs could be arranged in a suggestive manner, or that by comment or gesture the prosecuting authorities might single out the defendant’s picture. But these are the kinds of overt influence that a witness can easily recount and that would serve to impeach the identification testimony. In short, there are few possibilities for unfair suggestiveness—and those rather blatant and easily reconstructed. Accordingly, an accused would not be foreclosed from an effective cross-examination of an identification witness simply because his counsel was *1 do not read Wade as requiring counsel because a lineup is a “trial-type” situation, nor do I understand that the Court required the presence of an attorney because of the advice or assistance he could give to his client at the lineup itself. Rather, I had thought the reasoning of Wade was that the right to counsel is essentially a protection for the defendant at trial, and that counsel is necessary at a lineup in order to ensure a meaningful confrontation and the effective assistance of counsel at trial. UNITED STATES v. ASH 325 300 Stewart, J., concurring in judgment not present at the photographic display. For this reason, a photographic display cannot fairly be considered a “critical stage” of the prosecution. As the Court of Appeals for the Third Circuit aptly concluded: “If . . . the identification is not in a live lineup at which defendant may be forced to act, speak or dress in a suggestive way, where the possibilities for suggestion are multiplied, where the ability to reconstruct the events is minimized, and where the effect of a positive identification is likely to be permanent, but at a viewing of immobile photographs easily reconstructible, far less subject to subtle suggestion, and far less indelible in its effect when the witness is later brought face to face with the accused, there is even less reason to denominate the procedure a critical stage at which counsel must be present.” United States ex rel. Reed v. Anderson, 461 F. 2d 739, 745. Preparing witnesses for trial by checking their identification testimony against a photographic display is little different, in my view, from the prosecutor’s other interviews with the victim or other witnesses before trial. See United States v. Bennett, 409 F. 2d 888, 900. While these procedures can be improperly conducted, the possibility of irretrievable prejudice is remote, since any unfairness that does occur can usually be flushed out at trial through cross-examination of the prosecution witnesses. The presence of defense counsel at such pretrial preparatory sessions is neither appropriate nor necessary under our adversary system of justice “to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” United States v. Wade, supra, at 227. 326 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. Mr. Justice Brennan, with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting. The Court holds today that a pretrial display of photographs to the witnesses of a crime for the purpose of identifying the accused, unlike a lineup, does not constitute a “critical stage” of the prosecution at which the accused is constitutionally entitled to the presence of counsel. In my view, today’s decision is wholly unsupportable in terms of such considerations as logic, consistency, and, indeed, fairness. As a result, I must reluctantly conclude that today’s decision marks simply another ¹ step towards the complete evisceration of the fundamental constitutional principles established by this Court, only six years ago, in United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Stovall v. Denno, 388 U. S. 293 (1967). I dissent. I On the morning of August 26, 1965, two men wearing stocking masks robbed the American Security and Trust Co. in Washington, D. C. The robbery lasted only about three or four minutes and, on the day of the crime, none of the four witnesses was able to give the police a description of the robbers’ facial characteristics. Some five months later, on February 3, 1966, an FBI agent showed each of the four witnesses a group of black and white mug shots of the faces of five black males, including respondent, all of generally the same age, height, and weight. Respondent’s photograph was included because of information received from a Government informant charged with other crimes.² None of the wit- ¹See Kirby v. Illinois, 406 U. S. 682 (1972). ² At the time of respondent’s trial, the informant, one Clarence McFarland, was serving a sentence for bank robbery. According to the Court of Appeals, “McFarland had been before the grand jury UNITED STATES v. ASH 327 300 Brennan, J., dissenting nesses was able to make a “positive” identification of respondent.³ On April 1, 1966, an indictment was returned charging respondent and a codefendant in five counts relating to the robbery of the American Security and Trust Co. Trial was finally set for May 8, 1968, almost three years after the crime and more than two years after the return of the indictment. During the entire two-year period between indictment and trial, although one of the witnesses expressly sought an opportunity to see respondent in person, the Government never attempted to arrange a corporeal lineup for the purposes of identification. Rather, less than 24- hours before trial, the FBI agent, accompanied by the prosecutor, showed five color photographs to the witnesses, three of whom identified the picture of respondent. At trial, all four witnesses made in-court identifications of respondent, but only one of these witnesses was “positive” of her identification. The fact that three of the witnesses had previously identified respondent from the color photographs, and the photographs themselves, were also admitted into evidence. The only other evi-with regard to five separate offenses, in addition to his bank robbery, and had not been indicted on any of them, including one in which he had confessed guilt. The Assistant United States Attorney had arranged to have McFarland transferred from the D. C. Jail to a local jail in Rockville, Maryland, and in addition had helped McFarland’s wife move from Southeast Washington to an apartment near the parochial school that McFarland’s children were due to attend. 149 U. S. App. D. C. 1, 6 n. 7, 461 F. 2d 92, 97 n. 7 (1972). The Assistant United States Attorney also testified that he “had indicated he would testify before the parole board in McFarland’s behalf.” Id., at 6, 461 F. 2d, at 97. ³ Respondent does not contend that he was denied his Sixth Amendment right to counsel at the pre-indictment display of the black and white photographs. Tr. of Oral Arg. 21-22; Brief for Respondent 32 n. 21. 328 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. dence implicating respondent in the crime was the testimony of the Government informant.⁴ On the basis of this evidence, respondent was convicted on all counts of the indictment. On appeal, the United States Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed respondent’s conviction. 149 U. S. App. D. C. 1, 461 F. 2d 92 (1972). Noting that “the dangers of mistaken identification from uncounseled lineup identifications . . . are applicable in large measure to photographic as well as corporeal identifications,” ⁵ the Court of Appeals reasoned that this Court’s decisions in Wade, Gilbert, and Stovall, compelled the conclusion that a pretrial photographic identification, like a lineup, is a “critical” stage of the prosecution at which the accused is constitutionally entitled to the attendance of counsel. Accordingly, the Court of Appeals held that respondent was denied his Sixth Amendment right to “the Assistance of Counsel for his defence” when his attorney was not given an opportunity to attend the display of the color photographs on the very eve of trial.⁶ In my view, both the reasoning and conclusion of the Court of Appeals were unimpeachably correct, and I would therefore affirm. II In June 1967, this Court decided a trilogy of “lineup” cases which brought into sharp focus the problems of ⁴ As the Court of Appeals noted, this testimony was of at least questionable credibility. See n. 2, supra. ⁵149 U. S. App. D. C., at 9, 461 F. 2d, at 100. ⁶ The Court of Appeals also noted “that there are at the very least strong elements of suggestiveness in this color photo confrontation,” and that “it is hard to see how the Government can be held to have shown, by clear and convincing evidence, that these color photographs did not affect the in-court identification made one day later.” Id., at 7, 14 n. 20, 461 F. 2d, at 98, 105 n. 20. UNITED STATES v. ASH 329 300 Brennan, J., dissenting pretrial identification. See United States v. Wade, supra; Gilbert v. California, supra; Stovall v. Denno, supra. In essence, those decisions held (1) that a pretrial lineup is a “critical stage” in the criminal process at which the accused is constitutionally entitled to the presence of counsel; (2) that evidence of an identification of the accused at such an uncounseled lineup is per se inadmissible; and (3) that evidence of a subsequent in-court identification of the accused is likewise inadmissible unless the Government can demonstrate by clear and convincing evidence that the in-court identification was based upon observations of the accused independent of the prior uncounseled lineup identification. The considerations relied upon by the Court in reaching these conclusions are clearly applicable to photographic as well as corporeal identifications. Those considerations bear repeating here in some detail, for they touch upon the very heart of our criminal justice system—the right of an accused to a fair trial, including the effective “Assistance of Counsel for his defence.” At the outset, the Court noted that “identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” United States v. Wade, supra, at 228. Indeed, “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” Ibid. Apart from “the dangers inherent in eyewitness identification,” id., at 235, such as unreliable memory or perception, the Court pointed out that “[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Id., at 228. The Court recognized that the dangers of suggestion are not necessarily due to “police 330 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. procedures intentionally designed to prejudice an accused.” Id., at 235. On the contrary, “[suggestion can be created intentionally or unintentionally in many subtle ways.” Id., at 229. And the “ ‘fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense . . . involves a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way ....’” Id., at 235, quoting Williams & Hammelmann, Identification Parades-I, [1963] Crim. L. Rev. 479, 483. The Court also expressed concern over the possibility that a mistaken identification at a pretrial lineup might itself be conclusive on the question of identity, thereby resulting in the conviction of an innocent man. The Court observed that “ ‘once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.’ ” United States v. Wade, supra, at 229, quoting Williams & Hammelmann, supra, at 482. Moreover, “the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial.” United States v. Wade, supra, at 230. For “as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups . . . .” Ibid. Although the accused is present at such corporeal identifications, he is hardly in a position to detect many of the more subtle “improper influences” that might infect the identification.⁷ In addition, the Court empha ⁷ The Court pointed out that “ [i] mproper influences may go undetected by a suspect, guilty or not, who experiences the emotional tension which we might expect in one being confronted with potential accusers. Even when he does observe abuse, if he has a criminal UNITED STATES v. ASH 331 300 Brennan, J., dissenting sized that “neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And, if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences.” Ibid. As a result, “even though cross-examination is a precious safeguard to a fair trial, it cannot [in this context] be viewed as an absolute assurance of accuracy and reliability.” Id., at 235. With these considerations in mind, the Court reasoned that “the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” Id., at 231-232. And “[i]nsofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.” Id., at 235. Thus, noting that “presence of counsel [at the lineup] can often avert prejudice and assure a meaningful confrontation at trial,” the Court concluded that a pretrial corporeal identification is “a critical stage of the prosecution at which [the accused is] ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” Id., at 236, 237, quoting Powell v. Alabama, 287 U. S. 45, 57 (1932). record he may be reluctant to take the stand and open up the admission of prior convictions. Moreover, any protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain; the jury’s choice is between the accused’s unsupported version and that of the police officers present.” United States v. Wade, 388 U. S. 218, 230-231 (1967). 332 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. Ill As the Court of Appeals recognized, “the dangers of mistaken identification ... set forth in Wade are applicable in large measure to photographic as well as corporeal identifications.” 149 U. S. App. D. C., at 9, 461 F. 2d, at 100. To the extent that misidentification may be attributable to a witness’ faulty memory or perception, or inadequate opportunity for detailed observation during the crime, the risks are obviously as great at a photographic display as at a lineup.⁸ But “[b]ecause of the inherent limitations of photography, which presents its subject in two dimensions rather than the three dimensions of reality, ... a photographic identification, even when properly obtained, is clearly inferior to a properly obtained corporeal identification.” P. Wall, Eye-Witness Identification in Criminal Cases 70 (1965). Indeed, noting “the hazards of initial identification by photograph,” we have expressly recognized that “a corporeal identification ... is normally more accurate” than a photographic identification. Simmons n. United States, 390 U. S. 377, 384, 386 n. 6 (1968).⁹ Thus, in this sense at ⁸ Thus, “[a] witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures . . . there is some danger that the witness may make an incorrect identification.” Simmons v. United States, 390 U. S. 377, 383 (1968). ⁹ See also Sobel, Assailing the Impermissible Suggestion: Evolving Limitations on the Abuse of Pre-Trial Criminal Identification Methods, 38 Brooklyn L. Rev. 261, 264, 296 (1971); Williams, Identification Parades, [1955] Crim. L. Rev. 525, 531; Comment, Photographic Identification: The Hidden Persuader, 56 Iowa L. Rev. 408, 419 (1970); Note, Pretrial Photographic Identification—A “Critical Stage” of Criminal Proceedings?, 21 Syracuse L. Rev. 1235, 1241 (1970). Indeed, recognizing the superiority of corporeal to photographic identifications, English courts have long held that once the accused is in custody, pre-lineup photographic identification is “in- UNITED STATES v. ASH 333 300 Brennan, J., dissenting least, the dangers of misidentification are even greater at a photographic display than at a lineup. Moreover, as in the lineup situation, the possibilities for impermissible suggestion in the context of a photographic display are manifold. See id., at 383. Such suggestion, intentional or unintentional, may derive from three possible sources. First, the photographs themselves might tend to suggest which of the pictures is that of the suspect. For example, differences in age, pose, or other physical characteristics of the persons represented, and variations in the mounting, background, lighting, or markings of the photographs all might have the effect of singling out the accused.¹⁰ Second, impermissible suggestion may inhere in the manner in which the photographs are displayed to the witness. The danger of misidentification is, of course, “increased if the police display to the witness . . . the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.” Ibid. And, if the photographs are arranged in an asymmetrical pattern, or if they are displayed in a time sequence that tends to emphasize a particular photograph, “any identification of the photograph which stands out from the rest is no more reliable than an identification of a single photograph, exhibited alone.” P. Wall, supra, at 81. Third, gestures or comments of the prosecutor at the time of the display may lead an otherwise uncertain defensible” and grounds for quashing the conviction. Rex v. Haslam, 19 Crim. App. Rep. 59, 60 (1925); Rex v. Goss, 17 Crim. App. Rep. 196, 197 (1923). See also P. Wall, Eye-Witness Identification in Criminal Cases 71 (1965). ¹⁰ See, e. g., Comment, supra, n. 9, at 410-411; Note, Criminal Procedure—Photo-Identification—Stovall Prospectivity Rule Tn-voked to Avoid Extension of Right to Counsel, 43 N. Y. U. L. Rev. 1019, 1021 (1968). 334 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. witness to select the “correct” photograph. For example, the prosecutor might “indicate to the witness that [he has] other evidence that one of the persons pictured committed the crime,”¹¹ and might even point to a particular photograph and ask whether the person pictured “looks familiar.” More subtly, the prosecutor’s inflection, facial expressions, physical motions, and myriad other almost imperceptible means of communication might tend, intentionally or unintentionally, to compromise the witness’ objectivity. Thus, as is the case with lineups, “[i]mproper photographic identification procedures, ... by exerting a suggestive influence upon the witnesses, can often lead to an erroneous identification . . . .” P. Wall, supra, at 89.¹² And “[r]egardless of how the initial misidentification comes about, the wit ¹¹ Simmons v. United States, supra, at 383. ¹² The Court maintains that “the ethical responsibility of the prosecutor” is in itself a sufficient “safeguard” against impermissible suggestion at a photographic display. See ante, at 320. The same argument might, of course, be made with respect to lineups. Moreover, it is clear that the “prosecutor” is not always present at such pretrial displays. Indeed, in this very case, one of the four eyewitnesses was shown the color photographs on the morning of trial by an agent of the FBI, not in the presence of the “prosecutor.” See 149 U. S. App. D. C., at 5, 461 F. 2d, at 96. And even though “the ethical responsibility of the prosecutor” might be an adequate “safeguard” against intentional suggestion, it can hardly be doubted that a “prosecutor” is, after all, only human. His behavior may be fraught with wholly unintentional and indeed unconscious nuances that might effectively suggest the “proper” response. See P. Wall, supra, n. 9, at 26-65; Napley, Problems of Effecting the Presentation of the Case for a Defendant, 66 Col. L. Rev. 94, 98-99 (1966); Williams & Hammelmann, Identification Parades-I, [1963] Crim. L. Rev. 479, 483. See also United States v. Wade, supra, at 229, 235, 236. And, of course, as Wade itself makes clear, unlike other forms of unintentional prosecutorial “manipulation,” even unintentional suggestiveness at an identification procedure involves serious risks of “freezing” the witness’ mistaken identification and creates almost insurmountable obstacles to reconstruction at trial. UNITED STATES v. ASH 335 300 Brennan, J., dissenting ness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen . . . ” Simmons v. United States, supra, at 383-384.¹³ As a result, “ ‘the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.’ ” United States n. Wade, supra, at 229, quoting Williams & Hammelmann, supra, at 482. Moreover, as with lineups, the defense can “seldom reconstruct” at trial the mode and manner of photographic identification. It is true, of course, that the photographs used at the pretrial display might be preserved for examination at trial. But “it may also be said that a photograph can preserve the record of a lineup; yet this does not justify a lineup without counsel.” 149 U. S. App. D. C., at 9-10,461 F. 2d, at 100-101. Cf. United States v. Wade, supra, at 239 and n. 30. Indeed, in reality, preservation of the photographs affords little protection to the unrepresented accused. For, although retention of the photographs may mitigate the dangers of misidentification due to the suggestiveness of the photographs themselves, it cannot in any sense reveal to defense counsel the more subtle, and therefore more dangerous, suggestiveness that might derive from the manner in which the photographs were displayed or any accompanying comments or gestures. Moreover, the accused cannot rely upon the witnesses themselves to expose these latter sources of suggestion, for the witnesses are not “apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect” since the witnesses are hardly “likely to be schooled in the detection of suggestive influences.” Id., at 230. ¹³ See also P. Wall, supra, n. 9, at 68; Napley, supra, n. 12, at 98-99; Williams & Hammelmann, supra, n. 12, at 484; Comment, supra, n. 9, at 411-413; Note, supra, n. 10, at 1023. 336 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. Finally, and unlike the lineup situation, the accused himself is not even present at the photographic identification, thereby reducing the likelihood that irregularities in the procedures will ever come to light. Indeed, in Wade, the Government itself observed: ¹⁴ “When the defendant is present—as he is during a lineup—he may personally observe the circumstances, report them to his attorney, and (if he chooses to take the stand) testify about them at trial. ... [I]n the absence of an accused, on the other hand, there is no one present to verify the fairness of the interview or to report any irregularities. If the prosecution were tempted to engage in ‘sloppy or biased or fraudulent’ conduct . . . , it would be far more likely to do so when the accused is absent than when he himself is being ‘used.’ ” Thus, the difficulties of reconstructing at trial an uncounseled photographic display are at least equal to, and possibly greater than, those involved in reconstructing an uncounseled lineup.¹⁵ And, as the Government ar ¹⁴ Brief for United States 24-25 in United States V. Wade, No. 334, 0. T. 1966. ¹⁵ The Court’s assertion, ante, at 317-319 and n. 10, that these diffi-culties of reconstruction are somehow minimized because the defense can “duplicate” a photographic identification reflects a complete misunderstanding of the issues in this case. Aside from the fact that lineups can also be “duplicated,” the Court’s assertion is wholly inconsistent with the underlying premises of both Wade and Gilbert. For, unlike the Court today, the Court in both of those decisions recognized a critical difference between “systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like,” on the one hand, and eyewitness identification, on the other. United States v. Wade, supra, at 227; Gilbert v. California, 388 U. S. 263, 267 (1967). In essence, the Court noted in Wade and Gilbert that, in the former situations, the accused can preserve his right to a fair trial simply by “duplicating” the tests of the Government, thereby enabling him to expose any errors in the Gov- UNITED STATES v. ASH 337 300 Brennan, J., dissenting gued in Wade, in terms of the need for counsel, “[t]here is no meaningful difference between a witness’ pretrial identification from photographs and a similar identification made at a lineup.” ¹⁶ For, in both situations “the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the [pretrial identification] may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” United States v. Wade, supra, at 231-232. As ermnent’s analysis. Such “duplication” is possible, however, only because the accused’s tests can be made independently of those of the Government—that is, any errors in the Government’s analyses cannot affect the reliability of the accused’s tests. That simply is not the case, however, with respect to eyewitness identifications, whether corporeal or photographic. Due to the “freezing effect” recognized in Wade, once suggestion has tainted the identification, its mark is virtually indelible. For once a witness has made a mistaken identification, “ ‘he is not likely to go back on his word later on.’ ” United States v. Wade, supra, at 229. As a result, any effort of the accused to “duplicate” the initial photographic display will almost necessarily lead to a reaffirmation of the initial misidentification. The Court’s related assertion, that “equality of access” to the results of a Government-conducted photographic display “remove [s] any inequality in the adversary process,” ante, at 319, is similarly flawed. For due to the possibilities for suggestion, intentional or unintentional, the so-called “equality of access” is, in reality, skewed sharply in favor of the prosecution. ¹⁶ Brief for United States 7, in United States v. Wade, supra. The Court seems to suggest that, under no circumstances, would it be willing “to go so far as to extend the right [to counsel] to a portion of the prosecutor’s trial-preparation interviews with witnesses.” Ante, at 317. This suggestion illustrates once again the Court’s readiness in this area to ignore “real-world” considerations for the sake of “mere formalism.” Kirby v. Illinois, 406 U. S., at 699 (Brennan, J., dissenting). Moreover, this suggestion demonstrates the Court’s failure to appreciate the essential differences, outlined persuasively by the Court of Appeals, between “the prosecutor’s trialpreparation interviews with witnesses” and pretrial identification procedures. See 149 U. S. App. D. C., at 10, 461 F. 2d, at 101. 338 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. a result, both photographic and corporeal identifications create grave dangers that an innocent defendant might be convicted simply because of his inability to expose a tainted identification. This being so, considerations of logic, consistency, and, indeed, fairness compel the conclusion that a pretrial photographic identification, like a pretrial corporeal identification, is a “critical stage of the prosecution at which [the accused is] ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” Id., at 237, quoting Powell v. Alabama, 287 U. S., at 57. IV Ironically, the Court does not seriously challenge the proposition that presence of counsel at a pretrial photographic display is essential to preserve the accused’s right to a fair trial on the issue of identification. Rather, in what I can only characterize a triumph of form over substance, the Court seeks to justify its result by engrafting a wholly unprecedented—and wholly unsupportable—limitation on the Sixth Amendment right of “the accused ... to have the Assistance of Counsel for his defence.” Although apparently conceding that the right to counsel attaches, not only at the trial itself, but at all “critical stages” of the prosecution, see ante, at 309-311, the Court holds today that, in order to be deemed “critical,” the particular “stage of the prosecution” under consideration must, at the very least, involve the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused requires the “guiding hand of counsel.” According to the Court a pretrial photographic identification does not, of course, meet these criteria. In support of this rather crabbed view of the Sixth Amendment, the Court cites our decisions in Coleman v. Alabama, 399 U. S. 1 (1970), Massiah v. United States, 377 U. S. 201 (1964), White v. Maryland, 373 U. S. 59 UNITED STATES v. ASH 339 300 Brennan, J., dissenting (1963), and Hamilton v. Alabama, 368 U. S. 52 (1961). Admittedly, each of these decisions guaranteed the assistance of counsel in pretrial proceedings at least arguably involving the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused required the “guiding hand of counsel.” ¹⁷ Moreover, as the Court points out, these decisions are consistent with the view that the Sixth Amendment “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” Johnson n. Zerbst, 304 U. S. 458, 462-463 (1938). But, contrary to the Court’s assumption, this is merely one facet of the Sixth Amendment guarantee, and the decisions relied upon by the Court represent, not the boundaries of the right to counsel, but mere applications of a far broader and more reasoned understanding of the Sixth Amendment than that espoused today. The fundamental premise underlying all of this Court’s decisions holding the right to counsel applicable at “critical” pretrial proceedings, is that a “stage” of the prosecution must be deemed “critical” for the purposes of the Sixth Amendment if it is one at which the presence of counsel is necessary “to protect the fairness of the trial itself ” Schneckloth v. Bustamonte, 412 U. S., 218, 239 (1973) (emphasis added). Thus, in Hamilton v. Ala ¹⁷ Coleman, White, and Hamilton, guaranteed the assistance of counsel at preliminary hearings and arraignments. Massiah held that incriminating statements of a defendant should have been excluded from evidence when it appeared that they were overheard by federal agents who, without notice to the defendant’s lawyer, arranged a meeting between the defendant and an accomplice turned informant. Thus, it is at least questionable whether Massiah involved a “trial-like confrontation” with the Government. 340 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. bama, supra, for example, we made clear that an arraignment under Alabama law is a “critical stage” of the prosecution, not only because the accused at such an arraignment requires “the guiding hand of counsel,” but, more broadly, because “[w]hat happens there may affect the whole trial.” Id., at 54. Indeed, to exclude counsel from a pretrial proceeding at which his presence might be necessary to assure the fairness of the subsequent trial would, in practical effect, render the Sixth Amendment guarantee virtually meaningless, for it would “deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Mas-siah v. United States, supra, at 204, quoting Spano n. New York, 360 U. S. 315,326 (1959) (Douglas, J., concurring); see Escobedo n. Illinois, 378 U. S. 478, 484-485 (1964). This established conception of the Sixth Amendment guarantee is, of course, in no sense dependent upon the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused requires the “guiding hand of counsel.” On the contrary, in Powell v. Alabama, 287 U. S. 45 (1932), the seminal decision in this area, we explicitly held the right to counsel applicable at a stage of the pretrial proceedings involving none of the three criteria set forth by the Court today. In Powell, the defendants in a state felony prosecution were not appointed counsel until the very eve of trial. This Court held, in no uncertain terms, that such an appointment could not satisfy the demands of the Sixth Amendment, for “ ‘ [i] t is vain ... to guarantee [the accused] counsel without giving the latter any opportunity to acquaint himself with the facts or law of the case.’ ” Id., at 59. In other words, Powell made clear that, in order to preserve the accused’s right to a fair trial and to “effective and substantial” ¹⁸ assist ¹⁸ 287 U. S., at 53. UNITED STATES v. ASH 341 300 Brennan, J., dissenting ance of counsel at that trial, the Sixth Amendment guarantee necessarily encompasses a reasonable period of time before trial during which counsel might prepare the defense. Yet it can hardly be said that this preparatory period of research and investigation involves the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused requires the “guiding hand of counsel.” Moreover, despite the Court’s efforts to rewrite Wade so as to suggest a precedential basis for its own analysis,¹⁹ the rationale of Wade lends no support whatever to today’s decision. In Wade, after concluding that compelled participation in a lineup does not violate the accused’s right against self-incrimination,²⁰ the Court addressed the argument “that the assistance of counsel at the lineup was indispensable to protect Wade’s most basic right as a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined.” 388 U. 8., at 223-224. The Court then surveyed the history of the Sixth Amendment, and specifically concluded that that Amendment guarantees “counsel’s assistance whenever necessary to assure a meaningful ‘defence.’” Id., at 225 (emphasis added). ¹⁹ See ante, at 313-316. In an effort to justify its contention that Wade itself in some way supports the Court’s wooden analysis of the counsel guarantee, the Court points to the so-called “careful limitation of the Court’s language [in Wade] to ‘confrontations.’ ” Ante, at 315. But Wade involved a lineup which is, of course, a “confrontation.” Thus, it is neither surprising, nor significant, that the Court interchangeably used such terms as “lineup,” “confrontation” and “pretrial identification” as descriptive of the facts. Indeed, the Wade dissenters recognized that Wade logically applies, not only to lineups, but “to any other techniques employed to produce an identification . . . .” United States v. Wade, supra, at 251 (White, J., concurring and dissenting). ²⁰ See United States v. Wade, supra, at 221-223. 342 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. Then, after examining this Court’s prior decisions concerning the applicability of the counsel guarantee,²¹ the Court stressed once again that a pretrial proceeding is a “critical stage” of the prosecution if “the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” Id., at 227. The Court next addressed the Government’s contention that a lineup is “a mere preparatory step in the gathering of the prosecution’s evidence, not different—for Sixth Amendment purposes—from various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like.” Id., at 227. If the Court in Wade had even the remotest intention of embracing the wooden interpretation of the Sixth Amendment ascribed to it today, it could have rejected the Government’s contention simply by pointing out the obvious fact that such “systematized or scientific analyzing” does not in any sense involve the physical “presence of the accused,” at a “triallike confrontation” with the Government, at which the accused requires the “guiding hand of counsel.” But the Court offered not even the slightest hint of such ²¹ See id., at 225-227. The Court’s quotation of Escobedo v. Illinois, 378 U. S. 478 (1964), is particularly instructive: “ The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the “right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination” .... “One can imagine a cynical prosecutor saying: ‘Let them have the most illustrious counsel, now. They can’t escape the noose. There is nothing that counsel can do for them at the trial.’ ” ’ ” United States v. Wade, supra, at 226, quoting Escobedo v. Illinois, supra, at 487-488. UNITED STATES v. ASH 343 300 Brennan, J., dissenting an approach. Instead, the Court reasoned that, in light of the scientific nature of such analyses, “the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.’¹ Id., at 227-228 (emphasis added). Finally, after discussing the dangers of misidentification arising out of lineup procedures and the difficulty of reconstructing the lineup at trial, the Court noted that “[i]nsofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.” Id., at 235. The Court therefore concluded that “[s]ince it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” Id., at 236-237. Thus, contrary to the suggestion of the Court, the conclusion in Wade that a pretrial lineup is a “critical stage” of the prosecution did not in any sense turn on 344 OCTOBER TERM, 1972 Brennan, J., dissenting 413U.S. the fact that a lineup involves the physical “presence of the accused” at a “trial-like confrontation” with the Government. And that conclusion most certainly did not turn on the notion that presence of counsel was necessary so that counsel could offer legal advice or “guidance” to the accused at the lineup. On the contrary, Wade envisioned counsel’s function at the lineup to be primarily that of a trained observer, able to detect the existence of any suggestive influences and capable of understanding the legal implications of the events that transpire. Having witnessed the proceedings, counsel would then be in a position effectively to reconstruct at trial any unfairness that occurred at the lineup, thereby preserving the accused’s fundamental right to a fair trial on the issue of identification. There is something ironic about the Court’s conclusion today that a pretrial lineup identification is a “critical stage” of the prosecution because counsel’s presence can help to compensate for the accused’s deficiencies as an observer, but that a pretrial photographic identification is not a “critical stage” of the prosecution because the accused is not able to observe at all. In my view, there simply is no meaningful difference, in terms of the need for attendance of counsel, between corporeal and photographic identifications. And applying established and well-reasoned Sixth Amendment principles, I can only conclude that a pretrial photographic display, like a pretrial lineup, is a “critical stage” of the prosecution at which the accused is constitutionally entitled to the presence of counsel. NAACP v. NEW YORK 345 Syllabus NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, NEW YORK CITY REGION OF NEW YORK CONFERENCE OF BRANCHES, et al. v. NEW YORK et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 72-129. Argued February 27-28, 1973—Decided June 21, 1973 Sections 4 and 5 of the Voting Rights Act of 1965, as amended, are designed to prohibit the use of tests or devices, or the alteration of voting qualifications or procedures, when the purpose or effect is to deprive a citizen of his right to vote. Sections 4 and 5 apply in any State or political subdivision thereof which the Attorney General determines maintained on November 1, 1964, or November 1, 1968, any “test or device,” and with respect to which the Director of the Census Bureau determines that less than half the voting-age residents were registered, or that less than half voted in the presidential election of that November. These determinations are effective on publication and are not judicially reviewable. Publication suspends the effectiveness of the test or device, which may not then be utilized unless a three-judge District Court for the District of Columbia determines that no such test or device has been used during the 10 preceding years “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” Section 4 (a) provides for direct appeal to the Supreme Court. The State or political subdivision may also institute an action pursuant to § 5 in the District Court for the District of Columbia, for a declaratory judgment that a proposed alteration in voting qualifications or procedures “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” The statute also permits the change to be enforced without the court proceeding if it has been submitted to the Attorney General and he has not interposed an objection within 60 days. Neither the Attorney General’s failure to object nor a § 5 declaratory judgment bars a subsequent private action to enjoin enforcement of the change. Such an action shall also be determined by a three-judge court and is appealable to the Supreme 346 OCTOBER TERM, 1972 Syllabus 413 U. S. Court. The Attorney General, on July 31, 1970, filed with the Federal Register his determination that New York on November 1, 1968, maintained a test or device as defined in the Act, and this was published the next day. On March 27, 1971, the Federal Register published the Census Director’s determination that in the counties of Bronx, Kings, and New York, “less than 50 per centum of the persons of voting age residing therein voted in the presidential election of November 1968.” New York State filed an action on December 3, 1971, seeking a judgment declaring that during the preceding 10 years the three counties had not used the State’s voting qualifications “for the purpose or with the effect of denying or abridging the right to vote on account of race or color” and that §§ 4 and 5 were thus inapplicable to the counties. Pursuant to stipulation, the United States filed its answer on March 10, 1972, alleging, inter alia, that it was without knowledge or information to form a belief as to the truth of New York’s allegation that the literacy tests were not administered discriminatorily. On March 17, New York filed a motion for summary judgment, supported by affidavits, and on April 3 the United States formally consented to the entry of the declaratory judgment sought by the State. Appellants filed their motion to intervene on April 7. New York opposed the motion claiming that: it was untimely, as the suit had been pending for more than four months; it had been publicized in early February, and appellants did not deny that they knew the action was pending; appellants failed to allege appropriate supporting facts; no appellant claimed to be a victim of voting discrimination; appellants’ interests were adequately represented by the United States; delay would prejudice impending elections; and appellants still could raise discrimination issues in the state and federal courts of New York. On April 13 the three-judge court denied the motion tn intervene and granted summary judgment for New York. While the appeal was pending, it was disclosed that the attorney who executed affidavits for appellants had not begun employment with appellant NAACP Legal Defense & Education Fund, Inc., until March 9,1972, and that Justice Department attorneys met with two individual appellants in January 1972 during the course of their investigation. Held: 1. The words “any appeal” in § 4 (a) encompass an appeal by a would-be, but unsuccessful, intervenor, and appellants’ appeal properly lies to this Court. Pp. 353-356. 2. The motion to intervene was untimely, and in the light of that fact and all the other circumstances of this case, the District NAACP v. NEW YORK 347 345 Opinion of the Court Court did not abuse its discretion in denying the motion. Pp. 364-369. Affirmed. Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined. Douglas, J., post, p. 369, and Brennan, J., post, p. 372, filed dissenting opinions. Marshall, J., took no part in the consideration or decision of the case. Jack Greenberg argued the cause for appellants. With him on the briefs were James M. Nabrit III, Eric Schnap-per, Nathaniel R. Jones, and Wiley Branton. A. Raymond Randolph, Jr., argued the cause for the United States. With him on the brief were Solicitor General Griswold and Assistant Attorney General Norman. George D. Zuckerman, Assistant Attorney General of New York, argued the cause for appellee the State of New York. With him on the brief were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, John G. Proudfit, Assistant Attorney General, and Judith T. Kramer, Deputy Assistant Attorney General. Mr. Justice Blackmun delivered the opinion of the Court. This appeal from a three-judge district court for the District of Columbia comes to us pursuant to the direct-review provisions of § 4 (a) of the Voting Rights Act of 1965, Pub. L. 89-110, 79 Stat. 438, as amended, 42 U. S. C. § 1973b (a).¹ The appellants² seek review of ¹ “To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made [Footnote 2 is on p. 3482 348 OCTOBER TERM, 1972 Opinion of the Court 413 U. S an order dated April 13, 1972, unaccompanied by any opinion, denying their motion to intervene³ in a suit that had been instituted against the United States by under subsection (b) of this section or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia in an action for a declaratory judgment brought by such State or subdivision against the United States has determined that no such test or device has been used during the ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color .... “An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any action pursuant to this subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been used for the purpose or with the effect of denying or abridging the right to vote on account of race or color. “If the Attorney General determines that he has no reason to believe that any such test or device has been used during the ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color, he shall consent to the entry of such judgment.” ² The appellants describe themselves, in their motion to intervene, as the National Association for the Advancement of Colored People, New York City Region of New York State Conference of Branches; four duly qualified black voters in Kings County, New York; and one duly qualified Puerto Rican voter in that county. Two of the individual appellants are also members of the New York State Assembly and another is a member of the New York State Senate. App. 44a. ³ The motion, App. 44a-47a, does not differentiate between intervention of right and permissive intervention, under subdivisions (a) and (b), respectively, of Fed. Rule Civ. Proc. 24. Neither does it state that one, rather than the other, is claimed. At oral argument, counsel said that in the District Court the appellants sought intervention as of right. Tr. of Oral Arg. 8. In this Court appellants suggest that they were also entitled to permis NAACP v. NEW YORK 349 345 Opinion of the Court the State of New York, on behalf of its counties of New York, Bronx, and Kings. New York’s action was one for a judgment declaring that, during the 10 years preceding the filing of the suit, voter qualifications prescribed by the State had not been used by the three named counties “for the purpose or with the effect of denying or abridging the right to vote on account of race or color,” within the language and meaning of § 4 (a), and that the provisions of §§ 4 and 5 of the Act, as amended, 42 U. S. C. §§ 1973b and 1973c, are, therefore, inapplicable to the three counties. In addition to denying the appellants’ motion to intervene, the District Court, by the same order, granted New York’s motion for summary judgment. This was based upon a formal consent by the Assistant Attorney General in charge of the Civil Rights Division, on behalf of the United States, consistent with the Government’s answer theretofore filed, “to the entry of a declaratory judgment under Section 4 (a) of the Voting Rights Act of 1965 (42 U. S. C. 1973b (a)),” App. 39a. The consent was supported by an accompanying affidavit reciting, “I conclude, on behalf of the Acting Attorney General that there is no reason to believe that a literacy test has been used in the past 10 years in the counties of New York, Kings and Bronx with the purpose or effect of denying or abridging the right to vote on account of race or color, except for isolated instances which have been substantially corrected and which, under present practice cannot reoccur.” App. 42a-43a. Appellants contend here that their motion to intervene should have been granted because (1) the United States unjustifiably declined to oppose New York’s mo sive intervention. Tr. of Oral Arg. 9; Brief for Appellants 26 n. 39. In view of our ruling on the issue of timeliness, we make no point of the distinction between the two types of intervention. 350 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. tion for summary judgment; (2) the appellants had initiated other litigation in the United States District Court for the Southern District of New York to compel compliance with §§ 4 and 5 of the Act; and (3) the appellants possessed “substantial documentary evidence,” Jurisdictional Statement 7, to offer in opposition to the entry of the declaratory judgment. Faced with the initial question whether this Court has jurisdiction, on direct appeal, to review the denial of the appellants’ motion to intervene, we postponed determination of that issue to the hearing of the case on the merits. 409 U. S. 978. I Section 2 of the Voting Rights Act of 1965, 42 U. S. C. § 1973,⁴ clearly indicates that the purpose of the Act is to assist in the effectuation of the Fifteenth Amendment, even though that Amendment is self-executing, and to insure that no citizen’s right to vote is denied or abridged on account of race or color. South Carolina v. Katzen-bach, 383 U. S. 301 (1966); Apache County n. United States, 256 F. Supp. 903 (DC 1966). Sections 4 and 5, 42 U. S. C. §§ 1973b and 1973c, are designed to prohibit the use of tests or devices, or the alteration of voting qualifications or procedures, when the effect is to deprive a citizen of his right to vote. Section 4 (c) defines the phrase “test or device” to mean “any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational ⁴ “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” NAACP v. NEW YORK 351 345 Opinion of the Court achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” 42 U. S. C. § 1973b (c). Section 4 (b), as amended, now applies in any State or in any political subdivision of a State which the Attorney General determines maintained on November 1, 1964, or November 1, 1968, any “test or device,” and with respect to which the Director of the Bureau of the Census determines that less than half the residents of voting age there were registered on the specified date, or that less than half of such persons voted in the presidential election of that November. These determinations are effective upon publication in the Federal Register and are not reviewable in any court. 42 U. S. C. § 1973b (b). The prescribed publication in the Federal Register suspends the effectiveness of the test or device, and it may not then be utilized unless a three-judge district court for the District of Columbia determines, by declaratory judgment, that no such test or device has been used during the 10 years preceding the filing of the action “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” § 4 (a), 42 U. S. C. § 1973b (a). The same section states that “any appeal shall lie to the Supreme Court.” And the District Court “shall retain jurisdiction of any action pursuant to this subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been used for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” Section 5, 42 U. S. C. § 1973c, applies whenever a State or political subdivision with respect to which a determination has been made under § 4 (b) “shall enact 352 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect” on November 1, 1964, or November 1, 1968.⁵ The State or political subdivision may then institute an action in the United States District Court for the District of Columbia for a declaratory judgment that what was done “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” Unless and until the court enters such judgment “no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure.” The statute contains a proviso, however, that the change may be enforced without the court proceeding if it has been submitted to the Attorney General of the United States and he “has not interposed an objection within sixty days after such submission.” Neither the Attorney General’s failure to object nor a declaratory judgment entered under § 5 shall bar a subsequent action by a private party to enjoin enforcement of the change. Here again, the action shall be determined by a three-judge court “and any appeal shall lie to the Supreme Court.” II On July 31, 1970, the Attorney General filed with the Federal Register his determination that New York on November 1, 1968, maintained a test or device as defined in § 4 (c) of the Act. This was published the following day. 35 Fed. Reg. 12354. On March 27, 1971, there was published in the Federal Register the determination ⁵ In Georgia v. United States, 411 U. S. 526 (1973), the Court held that a State’s reapportionment plan, which has the potential for diluting Negro voting power, is a “standard, practice, or procedure with respect to voting,” within the meaning of § 5 of the Act. See Allen v. State Board of Elections, 393 U. S. 544 (1969). NAACP v. NEW YORK 353 345 Opinion of the Court by the Director of the Bureau of the Census that in the counties of Bronx, Kings, and New York, in the State of New York, “less than 50 per centum of the persons of voting age residing therein voted in the presidential election of November 1968.” 36 Fed. Reg. 5809. The present action was instituted by the State of New York with the filing of its original complaint on December 3, 1971, in the United States District Court for the District of Columbia. The appellants contend that the District Court’s order denying them intervention in that action is directly appealable to this Court under § 4 (a) of the Act. The United States “substantially” agrees that this Court has jurisdiction to review on direct appeal the denial of intervention in an action of this kind.⁶ Brief for United States 21 n. 15. New York suggests that the appeal should be dismissed because the appellants have not established intervention as of right and have not demonstrated an abuse of discretion by the District Court in denying permissive intervention. Brief for Appellee 22-23. We must determine for ourselves, of course, the scope of our jurisdiction, since “jurisdiction of the federal courts—their power to adjudicate—is a grant of authority to them by Congress and thus beyond the scope of litigants to confer.” Neirbo Co. v. Bethlehem Corp., 308 U. S. 165, 167 (1939); Mitchell v. Maurer, 293 U. S. 237, 244 (1934). The jurisdictional issue is simply phrased: whether “any appeal,” within the language of the second paragraph of § 4 (a), includes ah appeal by a would-be, but unsuccessful, intervenor. Certainly, the words “any appeal” are subject to broad construction; they could be said to include review of any meaningful judicial determi ⁶ But see Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, pp. 90-91 (1965). 354 OCTOBER TERM, 1972 Opinion of the Court 413 U. S nation made in the progress of the § 4 lawsuit. That Congress intended a broad meaning is apparent from its expressed concern that voting restraints on account of race or color should be removed as quickly as possible in order to “open the door to the exercise of constitutional rights conferred almost a century ago.” H. R. Rep. No. 439, 89th Cong., 1st Sess., 11 (1965). See S. Rep. No. 162, pt. 3, 89th Cong., 1st Sess., 6-7 (1965). Indeed, the Voting Rights Act of 1965 was an addition to, and buttressed, § 2004 of the Revised Statutes, as that section had been amended by the respective Civil Rights Acts of 1957, 1960, and 1964, 71 Stat. 637, 74 Stat. 90, and 78 Stat. 241, codified as 42 U. S. C. § 1971. When the 1965 Act was under consideration by the Congress, § 1971 (c) already empowered the Attorney General to institute a civil action to protect the right to vote from deprivation because of race or color or from interference by threat, coercion, or intimidation. Section 1971 (g) further provided that, in such a suit, the Attorney General could request a three-judge court, and “it shall be the duty of the judges so designated to assign the case for hearing at the earliest practicable date . . . and to cause the case to be in every way expedited.” Further, an appeal from the final judgment of that court was to the Supreme Court. Despite this existing statutory provision designed to hasten the removal of barriers to the right to vote, the Congress determined, in 1965, that the enforcement of the voting rights statutes “has encountered serious obstacles in various regions of the country,” and progress “has been painfully slow, in part because of the intransigence of State and local officials and repeated delays in the judicial process.” H. R. Rep. No. 439, supra, at 9. See South Carolina v. Katzenbach, 383 U. S., at 309-315, and Allen v. State Board of Elections, 393 U. S. 544, 556 n. 21 (1969). Congress thus produced NAACP v. NEW YORK 355 345 Opinion of the Court the Voting Rights Act of 1965 in response to this recognized problem and provided in that Act that “any appeal” in a § 4 (a) three-judge proceeding shall lie to this Court. This contrasts with the language in the earlier theretofore existing statute providing for an appeal here only “from the final judgment” of the three-judge court. § 1971 (g). The broader language of §4 (a), when viewed in the light of Congress’ concern about hastening the resolution of suits involving voting rights, see Apache County v. United States, 256 F. Supp., at 907, prompts us to conclude that the unsuccessful intervenor’s § 4 (a) appeal is directly here and not to the Court of Appeals. This conclusion is not without other relevant statutory precedent. It has long been settled that an unsuccessful intervenor in a government-initiated civil antitrust action may appeal directly to this Court under § 2 of the Expediting Act, 15 U. S. C. § 29.⁷ United States v. California Canneries, 279 U. S. 553, 559 (1929); Sutphen Estates v. United States, 342 U. S. 19, 20 (1951); Cascade Natural Gas Corp. n. El Paso Natural Gas Co., 386 U. S. 129,132 (1967). Earlier this Term, in Tidewater Oil Co. n. United States, 409 U. S. 151 (1972), we held that § 2 of the Expediting Act lodged in this Court exclusive appellate jurisdiction over interlocutory, as well as final, orders in Government civil antitrust cases. In so holding, we emphasized Congress’ determination “to speed appellate review.” Id., at 155. As we have noted above, Congress has expressed a similar need for speed in adjudicating voting rights cases. We could not justify dissimilar treatment to an unsuccessful intervenor under the parallel § 4 (a) of the Civil Rights Act. ⁷ “In every civil action brought in any district court of the United States under any of said Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court.” 356 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. Further support for this result is supplied when one contrasts the specific appeal provision of § 4 (a) with 28 U. S. C. § 1253,⁸ allowing for a direct appeal to this Court from an order granting or denying an interlocutory or permanent injunction “in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” That section provides that “any party” may appeal here except “as otherwise provided by law.” Section 4 (a) does not incorporate or refer to § 1253. The former relates to “any appeal”; the latter speaks only of “any party.” The difference is obvious, and the broader purport of Congress under § 4 (a) is manifest. We conclude, therefore, that this Court has jurisdiction, on direct appeal by one denied intervention in a § 4 (a) action, to determine whether the District Court erred in denying the motion to intervene. Ill As originally enacted, §§ 4 and 5 of the Voting Rights Act of 1965 related only to a period of five preceding years, to a test or device in effect on November 1, 1964, to a paucity of persons registered on that date, and to a paucity of voters in the presidential election of 1964. 79 Stat. 438, 439. In 1970, however, Congress enacted the Voting Rights Act Amendments of 1970. Pub. L. 91-285, 84 Stat. 314. This new legislation, among other things, related § § 4 and 5 to ten, rather than five, preceding years and, in addition to the November 1, 1964, date and the presidential election of that year, to No ⁸ “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” NAACP v. NEW YORK 357 345 Opinion of the Court vember 1, 1968, and the 1968 election. Also, the 1970 Act suspended the use of any test or device “in any Federal, State, or local election” prior to August 6, 1975, without regard to whether a determination has been made that § 4 covered a particular State or political subdivision. 42 U. S. C. § 1973aa. See Oregon v. Mitchell, 400 U. S. 112, 131-132 (1970) (opinion of Black, J.). The three New York counties that the present litigation concerns were not covered by §§ 4 and 5 of the original 1965 Act. They became subject thereto because of the provisions of the 1970 Act and the respective published determinations, hereinabove described, of the Attorney General and the Director of the Bureau of the Census. Indeed, it is clear that the three counties were a definite target of the 1970 amendments. See, e. g., 116 Cong. Rec. 6659 (1970) (remarks of Sen. Cooper), id., at 20161 and 20165 (remarks of Congs. Celler and Albert, respectively). It was in December 1971, during the pendency of state legislative proceedings for the redrafting of congressional and state senate and assembly district lines,⁹ that the State of New York filed its complaint in the present ⁹ Although the Director of the Bureau of the Census determined, on March 15, 1971, that less than 50% of the persons of voting age residing in the three named New York counties voted in the presidential election of November 1968, it was stated on behalf of the appellees in oral argument that a complete set of census statistics was not available to the State of New York until October 15, 1971. Tr. of Oral Arg. 41. The appellants, however, in the complaint filed by them in the United States District Court for the Southern District of New York in their § 5 suit against the New York City Board of Elections and others, No. 72 Civ. 1460, alleged that census information on which reapportionment was based was made available to the State no later than September 1, 1971. App. 59a. We do not know which of these dates is correct. It is clear, in any event, that census data for the redrawing of congressional and legislative district lines was not available to New York until the fall of 1971. 358 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. action.¹⁰ The amended complaint, filed 13 days later, alleged that certain of the State’s qualifications for registration and voting, prescribed by New York’s Constitution, Art. II, § 1, and by its Election Law, §§ 150 and 168, as amended (the ability to read and write English, the administration of a literacy test, and the presentation of evidence of literacy in lieu of the test), had not been used during the preceding 10 years “for the purpose or with the effect of denying or abridging the right to vote on account of race or color,” App. 6a; that the State’s literacy requirements were suspended in 1970 and remained suspended; that after enactment of the 1965 Act, the New York City Board of Elections provided English-Spanish affidavits to be executed in lieu of a diploma or certificate in conformity with the requirements of the Act; and that, beginning in 1964 and continuing through 1971, with the exception of 1967, there were voter registration drives every summer designed to increase the number of registered voters in the three named counties. New York and the United States stipulated that the Government could file its answer or other pleading by March 10,1972. The answer was filed on that day. The Government therein admitted that English-Spanish affidavits were provided by the City Board of Elections but averred, on information and belief, that such affidavits ¹⁰ New York claims that the primary reason for filing its § 4 (a) suit was to insure that the imminent 1972 elections would be held on the basis of district lines drawn according to population figures from the 1970 census. It is said that the lateness in obtaining the figures, see n. 9, supra, and the concomitant impossibility of redrawing lines before early 1972 made it highly unlikely that the State would be able to obtain from the Attorney General of the United States any § 5 clearance for the redistricting legislation prior to April 4, the first day for circulating nominating petitions for the June 20 primary. Thus, by obtaining a favorable result in a § 4 (a) suit, New York could bypass the submission of its redistricting plan to the Attorney General. Tr. of Oral Arg. 41-42. NAACP v. NEW YORK 359 345 Opinion of the Court were not so provided prior to 1967. The answer also alleged that the United States was without knowledge or information sufficient to form a belief as to the truth of the plaintiff’s allegation that the literacy tests were administered with no intention or effect to abridge or deny the right to vote on the basis of race or color. On March 17 New York filed its motion for summary judgment. This was supported by affidavits from the Administrator for the Board of Elections in the City of New York “which includes the counties of New York, Bronx and Kings,” the Chief of the Bureau of Elementary and Secondary Educational Testing of the New York State Education Department, and the respective Chief Clerks of the New York, Bronx, and Brooklyn Borough Offices of the New York City Board of Elections. App. 15a-32a. These affidavits stated that those instances where the suspension of literary tests had been ignored or overlooked by election officials were isolated and that steps had been taken to resolve that problem. The affidavits also stated that since 1964, with the exception of 1967, the Board of Electionshad conducted summer voterregistration drives directed particularly to high-density black population areas. In its memorandum, filed with the District Court, in support of its motion, New York presented a history of its use of literacy tests¹¹ and concluded, “[s]ince it was never the practice of administering the tests to discriminate against any person on account ¹¹ The New York Election Law, § 168, as amended, provides that “a new voter may present as evidence of literacy” a certificate that he has completed the sixth grade of an approved elementary school or of a school “accredited by the Commonwealth of Puerto Rico in which school instruction is carried on predominately in the English language.” On July 28, 1966, the State’s Attorney General issued an opinion to the effect that New York may not require literacy in English from persons educated in Puerto Rico. Op. Atty. Gen. N. Y., 1966, pp. 121, 123. 360 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. of race or color, and since the filing requirements of the Voting Rights Act are leading to delays which may well disrupt the political process in New York, this action for declaratory judgment has been brought.” Memorandum 4-5. See South Carolina v. Katzenbach, 383 U. S., at 332. Two and one-half weeks later, on April 3, the United States filed its formal consent, hereinabove described, to the entry of the declaratory judgment for which New York had moved. The accompanying affidavit of the Assistant Attorney General stated that the Department of Justice had conducted “an investigation which consisted of examination of registration records in selected precincts in each covered county, interviews of certain election and registration officials and interviews of persons familiar with registration activity in black and Puerto Rican neighborhoods in those counties.” App. 40a. The Assistant Attorney General then reached the conclusion, App. 42a-43a, quoted supra, at 349. Appellants’ motion to intervene was filed April 7. Appellants asserted that if New York were successful in the present action, the appellants would be deprived of the protections afforded by §§ 4 arid 5; that they “would be legally bound” thereby in their simultaneously filed § 5 action in the Southern District of New York; and that the latter action “would necessarily fail.” App. 45a.¹² ¹² While the present case was pending in the District Court, the New York Legislature on January 14, 1972, completed its work of redrawing assembly and senate district lines and enacted legislation altering those boundaries. N. Y. Laws -1972, c. 11. On January 24, the State’s Attorney General submitted the redistricting plan to the Attorney General of the United States pursuant to § 5 of the 1965 Act, as amended, 42 U. S. C. § 1973c. On March 14, three days before New York’s motion for summary judgment was filed, the United States Attorney General rejected New York’s submission on the ground that it was lacking in information required by the applicable regulations set forth at 36 Fed. Reg. 18186-18190 (1971). On March 28 NAACP v. NEW YORK 361 345 Opinion of the Court The appellants also alleged that the § 5 suit asserted that New York “has gerrymandered Assembly, Senatorial and Congressional districts in Kings, Bronx and New York counties so that, on purpose and in effect, the right to vote will be denied on account of race or color.” Ibid. Thus, it was said, the disposition of the present suit might impair or impede the appellants’ ability to protect their interests in registering to vote, voting, and seeking public office. App. 46a. It was further claimed that during the preceding three weeks attorneys in the Department of Justice thrice had represented to appellants’ counsel that the United States would oppose New York’s motion for summary judgment.¹³ “At no time did any of the three Justice Department attorneys . . . inquire of counsel for [appellants] whether he or any of the [appellants] had information or evidence which would support the government’s alleged position that sections 4 and 5 of the Voting Rights Act should continue to be applied to Kings, Bronx and New York counties.” Ibid. There was also filed an affidavit of Eric Schnapper, one of the attorneys for the appellants. This repeated the allegations contained in the motion to intervene and also asserted that on March 21 the affiant advised a Department of Justice attorney that when the New York redistricting laws were submitted to the Department, he wished to submit material and arguments in opposition to their approval; that on March 23 he was advised by another Department attorney that papers were being the New York Legislature enacted legislation redefining the boundaries of the State’s congressional districts. N. Y. Laws 1972, c. 76. The congressional changes were not submitted for approval under § 5. ¹³ The United States takes the position “that the statements of appellants’ counsel are not an accurate representation of the conversations between him and these government attorneys.” Brief for United States 47. 362 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. prepared in opposition to New York’s motion for summary judgment; that he informed the attorney that the appellants were considering the institution of an action in the Southern District of New York; that on April 3 he was advised by the Department of Justice that it would have no objection to the institution of the New York suit; and that in the afternoon of April 5 he was informed by telephone for the first time that two days earlier the United States had consented to New York’s motion for summary judgment. App. 48a-51a. With the motion to intervene the appellants filed a proposed answer to appellees’ amended complaint and a brief memorandum of points and authorities. The latter suggested the failure of the Attorney General “to investigate the relevant facts,” namely, “whether there are differences in the literacy rates of whites and nonwhites, particularly if they are do [sic] to unequal or discriminatory public education. Gaston County v. United States, 395 U. S. 285 (1969).” This suggestion was also made in the proposed answer. App. 65a-66a. The United States took no position with respect to the appellants’ motion to intervene. New York opposed the motion on six grounds. The first was untimeliness in that the suit had been pending for more than four months, an article about it had appeared in early February in the New York. Times, and the appellants did not deny that they had knowledge of the pendency of the action. The second was failure to allege appropriate supporting facts. The third was the lack of a requisite interest in that none of the appellants asserted he was a victim of discriminatory application of the literacy test; rather, the motion to intervene was subordinate to the appellants’ real interest in invalidating New York’s reapportionment of its assembly, senate, and congressional districts, as evidenced by the institution of their action in the Southern District of New York. The fourth NAACP v. NEW YORK 363 345 Opinion of the Court was adequate representation of the appellants’ interest by the United States. The fifth was that delay in the granting of the motion for summary judgment would prejudice New York and jeopardize the impending primary elections for offices of Assembly, Senate, and Congress, as well as for delegates to the upcoming Democratic National Convention. The sixth was that the appellants and others who claimed discrimination still could raise those issues in the state and federal courts of New York. Plaintiff’s Memorandum of Law in Opposition to the Motion to Intervene 1-8. Like reasons were asserted in a supporting affidavit of an Assistant New York Attorney General. App. 67a-70a. On April 13 the three-judge court entered its order denying the appellants’ motion to intervene and granting summary judgment for New York. App. 71a-72a. On April 24 the appellants filed a motion to alter judgment on the ground, among others, that their motion to intervene was timely since neither the appellants nor their counsel knew of the § 4 (a) action until March 21.¹⁴ The appellants now asserted that evidence was available to demonstrate that in the three counties education af ¹⁴ Mr. Schnapper filed a further affidavit on April 24, 1972. In it he stated (1) that prior to March 21, 1972, he had no knowledge whatever of the commencement, pendency, or existence of the § 4 (a) action; (2) that throughout December 1971 and January and February 1972 he was in New Hampshire and the daily paper he regularly read there did not carry any story about the present suit; (3) that to the best of his knowledge neither co-counsel nor any of the appellants knew of the suit prior to March 21; (4) that he did not receive New York’s memorandum in opposition to the motion to intervene until April 13, after the District Court already had ruled on the motion; (5) that he did not learn of the consent by the United States to the entry of judgment until April 5; and (6) that the motion to intervene, as well as the papers in the § 5 action in the Southern District of New York, was drafted “throughout the night of April 6-7.” App. 91a-92a. 364 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. forded non white children by New York was substantially inferior to that afforded white children and that “this difference resulted in disparities in white and non-white illiteracy rates among persons otherwise eligible to vote in those counties during the 10 years prior to the filing of the instant action.” App. 73a-74a. Thus “a full evidentiary hearing is required before making any finding of fact as to whether plaintiff’s literacy tests discriminated on the basis of race.” Finally, the appellants asserted that the District Court “should not have approved the consent judgment desired by plaintiff and defendant without first soliciting the intervention of responsible interested parties and requiring the United States to undertake a more thorough investigation of the relevant facts.” Ibid. The District Court promptly denied the Motion to Alter Judgment. App. 117a. Subsequently, while the appeal was pending in this Court, two additional facts came to light and are authorized by the parties for our consideration. The first is that Mr. Schnapper, who executed the above-described affidavits, did not begin his employment as an attorney with the NAACP Legal Defense and Education Fund, Inc., until March 9, 1972. The second is that “Justice Department attorneys met with appellants Stewart and Fortune in January 1972 during the course of their investigation; although the Justice Department attorneys recall informing Stewart and Fortune that this case was pending, neither Stewart nor Fortune can remember being so informed.” Reply Brief for Appellants 3 n. 1; Brief for United States 36. IV The foregoing detailed recital of the facts and of the history of the case is necessary because of the discretionary nature of the District Court’s order we are called upon to review. Our task is to determine whether, upon NAACP v. NEW YORK 365 345 Opinion of the Court the facts available to it at that time, the court erred in denying the appellants’ motion to intervene. Intervention in a federal court suit is governed by Fed. Rule Civ. Proc. 24.¹⁵ Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of both Rule 24 (a) and Rule 24 (b), that the application must be “timely.” If it is untimely, intervention must be denied. Thus, the court where the action is pending must first be satisfied as to timeliness.¹⁶ Although the point to which ¹⁵ “Rule 24.—Intervention “(a) Intervention of right. “Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. “(b) Permissive intervention. “Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene;. or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” ¹⁶ Iowa State University Research Foundation v. Honeywell, Inc., 459 F. 2d 447, 449 (CA8 1972); Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F. 2d 1103, 1115 (CA5 1970); Lumbermens Mutual Casualty Co. v. Rhodes, 403 F. 2d 2, 5 (CAIO), cert, denied, 394 U. S. 965 (1969); Kozak v. Wells, 278 F. 2d 104, 108-109 (CA8 1960); 7A C. Wright & A. Miller, Federal Practice and Pro- 366 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. the suit has progressed is one factor in the determination of timeliness, it is not solely dispositive. Timeliness is to be determined from all the circumstances.¹⁷ And it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court’s ruling will not be disturbed on review.¹⁸ With these accepted principles in mind, we readily conclude that the District Court’s denial of the appellants’ motion to intervene was proper because of the motion’s untimeliness, and that the denial was not an abuse of the court’s discretion: 1. The court could reasonably have concluded that appellants knew or should have known of the pendency of the § 4 (a) action because of an informative February article in the New York Times discussing the controversial aspect of the suit;¹⁹ public comment by community leaders; the size and astuteness of the membership and staff of the organizational appellant; and the ques- cedure § 1916 (1972); 3B J. Moore, Federal Practice If 24.13 [1] (2d. ed. 1969). ¹⁷ Iowa State University Research Foundation v. Honeywell, Inc., 459 F. 2d, at 449; Smith Petroleum Service, Inc. n. Monsanto Chemical Co., 420 F. 2d, at 1115; Kozak n. Wells, 278 F. 2d, at 109. ¹⁸ McDonald v. E. J. Lavino Co., 430 F. 2d 1065,1071 (CA5 1970); Lumbermens Mutual Casualty Co. v. Rhodes, 403 F. 2d, at 5; 3B J. Moore, Federal Practice If 24.13, p. 24-524. ¹⁹ The New York Times, Feb. 6, 1972, p. 48. This was the only news article on the page. Its three-column headline read, “Lefkowitz Acts to Bar Voting Watch.” The article recited that New York’s Attorney General “had moved in Federal Court in Washington to have the state exempted from potential Federal supervision over registration and voting” in the three counties. It mentioned an attack upon the suit by the Chairman of the Citizens Voter Education Committee, a Congressman, and the Manhattan and Bronx Borough Presidents, and described the Attorney General’s reply to that attack. NAACP v. NEW YORK 367 345 Opinion of the Court tioning of two of the individual appellants themselves by Department of Justice attorneys investigating the use of literacy tests in New York. 2. We, however, need not confine our evaluation of abuse of discretion to the facts just mentioned, for the record amply demonstrates that appellants failed to protect their interest in a timely fashion after March 21, 1972, the date they allegedly were first informed of the pendency of the action. At that point, the suit was over three months old and had reached a critical stage. The United States had answered New York’s complaint on March 10 and in that answer had clearly indicated that it was without knowledge or information sufficient to form a belief as to the truth of New York’s allegation that the State’s literacy tests were administered without regard to race or color. App. 13a. New York, in reliance upon this answer, then filed its motion for summary judgment. The only step remaining was for the United States either to oppose or to consent to the entry of summary judgment. This was the status of the suit at the time the appellants concede they were aware of its existence. It was obvious that there was a strong likelihood that the United States would consent to the entry of judgment since its answer revealed that it was without information with which it could oppose the motion for summary judgment. Thus, it was incumbent upon the appellants, at that stage of the proceedings, to take immediate affirmative steps to protect their interests either by supplying the Department of Justice with any information they possessed concerning the employment of literacy tests in a way designed to deny New York citizens of the right to vote on account of race or color, or by presenting that information to the District Court itself by way of an immediate motion to intervene.²⁰ Appel ²⁰ See Hearings on H. R. 6400 before Subcommittee No. 5 of the 368 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. lants failed to take either of these affirmative steps. They chose, rather, to rely on representations said to have been made by Department of Justice attorneys during the course of telephone conversations. The content of the representations allegedly made by the attorneys is a matter of dispute. Brief for United States 46-47. Indeed, it appears from the affidavit filed by appellants’ counsel in support of the motion to alter judgment that appellants were not preparing, prior to the “night of April 6-7,” to file a motion to intervene or even to file their New York federal action seeking to enjoin the 1972 elections. See n. 14, supra. 3. It is also apparent that there were no unusual circumstances warranting intervention since (a) no appellant alleged an injury, personal to him, resulting from the discriminatory use of a literacy test, (b) appellants’ claim of inadequate representation by the United States was unsubstantiated, (c) appellants would not be foreclosed from challenging congressional and state legislative redistricting plans on the grounds that they were the product of improper racial gerrymandering, cf. Gomil-lion v. Lightfoot, 364 U. S. 339 (1960), and Wright v. Rockefeller, 376 U. S. 52 (1964), (d) appellants were free to renew their motion to intervene following the entry of summary judgment since the District Court was required, under § 4 (a) of the Act, 42 U. S. C. § 1973b (a), to retain jurisdiction for five years after judgment, and, (e) in any event, no citizen of New York could be denied the right to vote in the near future since all literacy tests House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, pp. 91-93. Appellants at oral argument acknowledged that they were not precluded from seeking intervention prior to the date on which the United States filed its consent to the entry of summary judgment. Tr. of Oral Arg. 18-19. NAACP v. NEW YORK 369 345 Douglas, J., dissenting have been suspended until August 6, 1975. 42 U. S. C. § 1973aa. 4. Finally, in view of the then rapidly approaching primary elections in New York and of the final date for filing nominating petitions to participate in those elections, the granting of a motion to intervene possessed the potential for seriously disrupting the State’s electoral process with the result that primary and general elections would then have been based on population figures from the 1960 census and more than 10 years old. We therefore conclude that the motion to intervene was untimely and that the District Court did not abuse its discretion in denying the appellants’ motion. See Apache County v. United States, 256 F. Supp. 903 (DC 1966); United States v. Paramount Pictures, Inc., 333 F. Supp. 1100 (SDNY), aff’d sub nom. Syufy Enterprises n. United States, 404 U. S. 802 (1971). This makes it unnecessary for us to consider whether other conditions for intervention under Rule 24 were satisfied. Affirmed. Mr. Justice Marshall took no part in the consideration or decision of this case. Mr. Justice Douglas, dissenting. When two mighty political agencies such as the Department of Justice in Washington, D. C., and the Attorney General of New York in Albany agree that there is no racial discrimination in voting in three New York counties although the historic record¹ suggests it, it ¹ The Attorney General of New York protests this statement. But the 90-year-long segregated school system of last century is not the point; the reference is to the offer of proof made by the appellants. The Attorney General also states that the federal investigation showed that the inference has no basis in fact. He asserts moreover that New York’s literacy requirement has no racial cast in 370 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. is time to take a careful look and not let this litigation be ended by an agreement between friendly political allies. The Voting Rights Act Amendments of 1970 were specifically aimed at New York—particularly Bronx, Kings, and New York Counties. It was pointed out in the debates that under the earlier Act these counties were not included, that while in the 1964 election more than 50% of the voters were registered and more than 50% voted, in the 1968 election 50% were not registered or voting. 116 Cong. Rec. 6654, 6659. It was pointed out that New York’s literacy requirement was enacted with the view of discriminating on the basis of race. Id., at 6660. New York blacks were illiterate because their education, if any, had been in second-class schools elsewhere. Id., at 6661. It was emphasized that wherever the blacks had been educated it was unconstitutional to discriminate against them on the basis of race even though illiterate. Id., at 5533. The use of literacy tests in New York tended to deter blacks from registering, it was said. Ibid. And it was pointed out that literacy tests had a greater impact on blacks and other minorities than on any white because literacy was higher among whites. Id., at 5532-5549. In the face of this history, the United States did not call one witness or submit a single document or make even a feeble protest to New York’s claim that it was lily-white. The United States has no defense to offer. The desultory way in which the United States acted is illustrated by the fact that although the Act requires practice. But appellants’ offer of proof is disturbing to say the least. The case was disposed of on a motion for summary judgment. The case is in my view a classic example of the inappropriateness of such a procedure. As I state in my dissent, a hearing should have been held and findings of fact made. NAACP v. NEW YORK 371 345 Douglas, J., dissenting the District Court to retain jurisdiction of the cause for five years, 42 U. S. C. § 1973b (a), the United States did not even make the request. It capitulated completely. And yet the blacks, the Americans of Puerto Rican ancestry, and other minorities victimized by illiteracy tests clamor in their way for representation. Only NAACP offers it in this case. The investigation made by the Department of Justice has all the earmarks of a whitewash. The Attorney General had testified before Congress: ² “[I]t is clear that Negro voting in most Deep South Counties subjected to both literacy test suspension and on-scene enrollment by Federal registrars is now higher than Negro vote participation in the ghettos of the two Northern cities—New York and Los Angeles—where literacy tests are still in use. In non-literacy test Northern jurisdictions like Chicago, Cleveland and Philadelphia, Negro registration and voting ratios are higher than in Los Angeles and (especially) New York. . . .” Yet, none of these assertions were given the District Court nor was any attempt made to develop evidence along these lines. This suit by the State of New York to get an exemption for the three counties started on December 3, 1971. On March 10, 1972, the United States filed its answer and on March 17, 1972, New York moved for summary judgment. On March 21, 1972, NAACP was advised by the Department of Justice that the latter would oppose New York’s motion for summary judgment. Out of the blue the Department of Justice on April 4, 1972, consented to the entry of a decree exempting the three New ² Hearings on H. R. 4249, etc.,’ before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., ser. 3, p. 296 (1969). 372 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. York counties from the Act. The motion to intervene was promptly filed April 7, 1972. The answer filed by NAACP on April 7, 1972, alleges that the literacy test administered by New York deterred minorities from registering, that it was administered by whites, that social gerrymandering was so widespread and successful that minorities were discouraged from voting, and that New York produced illiterate blacks through operating inferior black schools—inferior in educational facilities, inferior in teachers, and inferior in expenditures per capita. It is assumed, of course, that the United States adequately represents the public interest in cases of this sort. But on the face of this record of transactions that the United States has approved or does not contest, it is clear that it does not adequately represent the public interest. Intervention as of right under Rule 24 (a) (2) should therefore be allowed. See Cascade Natural Gas Corp. n. El Paso Natural Gas Co., 386 U. S. 129, 135-136. Here it is plainly evident that the United States is an eager and willing partner with its allies in New York to foreclose inquiry into barriers to minority voting. What the facts may produce, no one knows. All that is requested is a hearing on the merits. The fresh air of publicity that only a fair and full trial in court can produce should be allowed to ventilate a case that has all the earmarks of a cozy arrangement to suppress the facts—evidence which, if proved, would be adequate as a basis for relief in a case from the South. See Gaston County v. United States, 395 U. S. 285. This evidence, if proved, should be equally adequate in the North. Mr. Justice Brennan, dissenting. In my view, the District Court erred in denying appellants’ motion for leave to intervene in this suit under § 4 (a) of the Voting Rights Act of 1965, as amended, 42 NAACP v. NEW YORK 373 345 Brennan, J., dissenting U. S. C. § 1973b (a). The case plainly turns on its facts, and its impact on the development of principles governing intervention will doubtless be small. But what is ultimately at stake in this suit by New York to obtain an exemption under the Voting Rights Act is the applicability of the protections of the Act to 2.2 million minority-group members residing in three New York counties. According to appellants, the total number of minority-group members affected by all previous exemptions combined was less than 100,000. At the same time that the District Court denied the motion to intervene, it granted the State’s motion for summary judgment, thereby exempting these three counties from the coverage of the Act. The United States, defendant in the suit, consented to the entry of summary judgment. As a result, the contention that appellants were prepared to urge—namely, that the grant of an exemption would nullify the specific congressional intent to extend the protections of the Act to the class represented by appellants—was never laid before the Court. In upholding the denial of leave to intervene, the Court reasons that appellants’ motion, filed four days after the United States consented to a grant of summary judgment, was untimely. In the Court’s view, appellants should have made their motion during the brief period between the filing of New York’s motion for summary judgment and the announcement by the United States that it would not contest that motion. The Court states, with the benefit of hindsight, that it was “obvious that there was a strong likelihood that the United States would consent to the entry of judgment since its answer revealed that it was without information with which it could oppose the motion for summary judgment. Thus, it was in 374 OCTOBER TERM, 1972 Brennan, J., dissenting 413 U. S. cumbent upon the appellants, at that stage of the proceedings, to take immediate affirmative steps to protect their interests either by supplying the Department of Justice with any information they possessed concerning the employment of literacy tests in a way designed to deny New York citizens of the right to vote on account of race or color, or by presenting that information to the District Court itself by way of an immediate motion to intervene.” Ante, at 367. The timeliness of a motion to intervene is determined, not by reference to the date on which the suit began or the date on which the would-be intervenors learned that it was pending, but rather by reference to the date when the movants learned that intervention was needed to protect their interests. See Diaz n. Southern Drilling Corp., 427 F. 2d 1118, 1125 (CA5 1970); cf. Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U. S. 129 (1967). Prior to the announcement that the United States would not contest the motion for summary judgment, appellants could not have known that intervention was needed to protect their interests and the interests of the class they represent. In an affidavit filed in connection with the motion to intervene, appellants’ attorney stated that he had been advised by three different Justice Department attorneys that the United States would oppose New York’s motion for summary judgment. App. 48a-51a. The Court suggests that the contents of the representations made by these attorneys is “a matter of dispute.” Ante, at 368. The matter was not in dispute, however, at the time the affidavit was filed,* nor did it become the subject of dispute until five months later *“The United States filed no response to appellants’ motion to intervene and did not otherwise object to the motion.” Brief for United States 10. NAACP v. NEW YORK 375 345 Brennan, J., dissenting when the Government filed in this Court its Motion to Dismiss or Affirm. Even then, the United States did not deny that appellants had been offered certain assurances by Government attorneys, but stated only that the affidavit was not “an accurate representation of the substance of the conversations between counsel for appellants and attorneys for the government.” Motion to Dismiss or Affirm, filed Sept. 13, 1972, p. 4 n. 3. Thus, the record before the District Court indicated reasonable reliance on the Government’s assurances that the suit would not be settled. And appellants did move to intervene within four days of learning that they could no longer rely on the Government to protect their interests. On that record, the District Court was obligated to conclude that the motion was timely filed. Since the allegation of untimeliness was, in my view, the only non-frivolous objection to the motion, the District Court’s denial of the motion was unquestionably erroneous. I dissent. 376 OCTOBER TERM, 1972 Syllabus 413 U. S. PITTSBURGH PRESS CO. v. PITTSBURGH COMMISSION ON HUMAN RELATIONS et al. CERTIORARI TO THE COMMONWEALTH COURT OF PENNSYLVANIA No. 72-419. Argued March 20, 1973—Decided June 21, 1973 Following a complaint and hearing, respondent Pittsburgh Commission on Human Relations held that petitioner had violated a city ordinance by using an advertising system in its daily newspaper whereby employment opportunities are published under headings designating job preference by sex. On appeal from affirmance of the Commission’s cease-and-desist order, the court below barred petitioner from referring to sex in employment headings, unless the want ads placed beneath them relate to employment opportunities not subject to the ordinance’s prohibition against sex discrimination. Petitioner contends that the ordinance contravenes its constitutional rights to freedom of the press. Held: The Pittsburgh ordinance as construed to forbid newspapers to carry sex-designated advertising columns for nonexempt job opportunities does not violate petitioner’s First Amendment rights. Pp. 381-391. (a) The advertisements here, which did not implicate the newspaper’s freedom of expression or its financial viability, were “purely commercial advertising,” which is not protected by the First Amendment. Valentine v. Chrestensen, 316 U. S. 52, 54. New York Times Co. v. Sullivan, 376 U. S. 254, distinguished. Pp. 384-387. (b) Petitioner’s argument against maintaining the Chrestensen distinction between commercial and .other speech is unpersuasive in the context of a case like this, where the regulation of the want ads was incidental to and coextensive with the regulation of employment discrimination. Pp. 387-389. (c) The Commission’s order, which was clear and no broader than necessary, is not a prior restraint endangering arguably protected speech. Pp. 389-390. 4 Pa. Commw. 448, 287 A. 2d 161, affirmed. Powell, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Rehnquist, JJ., joined. Burger, C. J., PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 377 376 Opinion of the Court post, p. 393, and Douglas, J., post, p. 397, filed dissenting opinions. Stewart, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 400. Blackmun, J., filed a dissenting opinion, post, p. 404. Charles R. Volk argued the cause for petitioner. With him on the briefs was Ralph T. DeStefano. Eugene B. Strassburger III argued the cause and filed a brief for respondents Pittsburgh Commission on Human Relations et al. Marjorie H. Matson argued the cause for respondent National Organization of Women, Inc. With her on the brief was Sylvia Roberts* Mr. Justice Powell delivered the opinion of the Court. The Human Relations Ordinance of the City of Pittsburgh (the Ordinance) has been construed below by * Arthur B. Hanson and Ralph N. Albright, Jr., filed a brief for the American Newspaper Publishers Assn, as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed by Solicitor General Griswold, Assistant Attorney General Pottinger, Deputy Solicitor General Wallace, Harriet S. Shapiro, John C. Hoyle, Julia P. Cooper, and Beatrice Rosenberg for the United States; by Evelle J. Younger, Attorney General of California, Robert H. O’Brien and Carl Boronkay, Assistant Attorneys General, and Judith T. Ashmann, Deputy Attorney General, for the California Fair Employment Practice Commission; by George F. Kugler, Jr., Attorney General, Stephen Skillman, Assistant Attorney General, and David S. Litwin, Deputy Attorney General, for the State of New Jersey; by Israel Packet, Attorney General of Pennsylvania, and Roy Yaffe and Michael L. Golden, Jr., Assistant Attorneys General, for the Pennsylvania Commission on the Status of Women et al.; by Norman Dorsen, Ruth Bader Ginsburg, and Jeffrey A. Kay for the American Civil Liberties Union et al.; by Phineas Indritz, Elizabeth Boyer, Marguerite Rawalt, Martha W. Griffiths, Margaret M. Heckler, and Donald M. Fraser for the American Veterans Committee, Inc., et al.; by Philip J. Tierney for the International Association of Official Human Rights Agencies; and by Rita Page Reuss and Jane M. Picker for the Women’s Law Fund, Inc. 378 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. the courts of Pennsylvania as forbidding newspapers to carry “help-wanted” advertisements in sex-designated columns except where the employer or advertiser is free to make hiring or employment referral decisions on the basis of sex. We are called upon to decide whether the Ordinance as so construed violates the freedoms of speech and of the press guaranteed by the First and Fourteenth Amendments. This issue is a sensitive one, and a full understanding of the context in which it arises is critical to its resolution. I The Ordinance proscribes discrimination in employment on the basis of race, color, religion, ancestry, national origin, place of birth, or sex.¹ In relevant part, § 8 of the Ordinance declares it to be unlawful employment practice, “except where based upon a bona fide occupational exemption certified by the Commission”: “(a) For any employer to refuse to hire any person or otherwise discriminate against any person with respect to hiring . . . because of . . . sex. “(e) For any ‘employer,’ employment agency or labor organization to publish or circulate, or to cause to be published or circulated, any notice or advertisement relating to ‘employment’ or membership which indicates any discrimination because of . . . sex. “(j) For any person, whether or not an employer, employment agency or labor organization, to aid . . . in the doing of any act declared to be an unlawful employment practice by this ordinance . . . .” ¹ For the full text of the Ordinance and the 1969 amendment adding sex to the list of proscribed classifications, see App. 410a-436a. PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 379 376 Opinion of the Court The present proceedings were initiated on October 9, 1969, when the National Organization for Women, Inc. (NOW) filed a complaint with the Pittsburgh Commission on Human Relations (the Commission), which is charged with implementing the Ordinance. The complaint alleged that the Pittsburgh Press Co. (Pittsburgh Press) was violating § 8 (j) of the Ordinance by “allowing employers to place advertisements in the male or female columns, when the jobs advertised obviously do not have bona fide occupational qualifications or exceptions . . . .” Finding probable cause to believe that Pittsburgh Press was violating the Ordinance, the Commission held a hearing, at which it received evidence and heard argument from the parties and from other interested organizations. Among the exhibits introduced at the hearing were clippings from the help-wan ted advertisements carried in the January 4, 1970, edition of the Sunday Pittsburgh Press, arranged by column.² In many cases, the advertisements consisted simply of the job title, the salary, and the employment agency carrying the listing, while others included somewhat more extensive job descriptions.³ On July 23, 1970, the Commission issued a Decision and Order.⁴ It found that during 1969 Pittsburgh Press carried a total of 248,000 help-wanted advertisements; that its practice before October 1969 was to use columns captioned “Male Help Wanted,” “Female Help Wanted,” and “Male-Female Help Wanted”; that it thereafter used the captions “Jobs—Male Interest,” “Jobs—Female Interest,” and “Male-Female”; and that the advertise- ² These exhibits are reproduced in App. 299a-333a. ³ For examples of these want ads, see the Appendix to this opinion, infra, at 392-393. ⁴ The full text of the Commission’s Decision and Order is set forth in the Appendix to the Petition for Certiorari, at la-18a. 380 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. merits were placed in the respective columns according to the advertiser’s wishes, either volunteered by the advertiser or offered in response to inquiry by Pittsburgh Press.⁵ The Commission first concluded that § 8 (e) of the Ordinance forbade employers, employment agencies, and labor organizations to submit advertisements for placement in sex-designated columns. It then held that Pittsburgh Press, in violation of § 8 (j), aided the advertisers by maintaining a sex-designated classification system. After specifically considering and rejecting the argument that the Ordinance violated the First Amendment, the Commission ordered Pittsburgh Press to cease and desist such violations and to utilize a classification system with no reference to sex. This order was affirmed in all relevant respects by the Court of Common Pleas.⁶ On appeal in the Commonwealth Court, the scope of the order was narrowed to allow Pittsburgh Press to carry advertisements in sex-designated columns for jobs exempt from the antidiscrimination provisions of the Ordinance. As pointed out in that court’s opinion, the Ordinance does not apply to employers of fewer than five persons, to employers outside the city of Pittsburgh, or to religious, fraternal, charitable, or sectarian organizations, nor does it apply to employment in domestic service or in jobs for which the Commission has certified a bona fide occupational exception. The modified order bars “all reference to sex in employment advertising column ⁵ The Commission specifically found that: “5. The Pittsburgh Press permits the advertiser to select the column within which its advertisement is to be inserted. “6. When an advertiser does not indicate a column, the Press asks the advertiser whether it wants a male or female for the job and then inserts the advertisement in the jobs—male interest or jobs—female interest column accordingly.” Id., at 16a. ⁶ See id., at 19a. PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 381 376 Opinion of the Court headings, except as may be exempt under said Ordinance, or as may be certified as exempt by said Commission.” 4 Pa. Commw. 448, 470, 287 A. 2d 161, 172 (1972). The Pennsylvania Supreme Court denied review, and we granted certiorari to decide whether, as Pittsburgh Press contends, the modified order violates the First Amendment by restricting its editorial judgment. 409 U. S. 1036 (1972).⁷ We affirm. II There is little need to reiterate that the freedoms of speech and of the press rank among our most cherished liberties. As Mr. Justice Black put it: “In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our ⁷ Pittsburgh Press also argues that the Ordinance violates due process in that there is no rational connection between sex-designated column headings and sex discrimination in employment. It draws attention to a disclaimer which it runs at the beginning of each of the “Jobs—Male Interest” and “Jobs—Female Interest” columns: “Notice to Job Seekers” “Jobs are arranged under Male and Female classifications for the convenience of our readers. This is done because most jobs generally appeal more to persons of one sex than the other. Various laws and ordinances—local, state, and federal, prohibit discrimination in employment because of sex unless sex is a bona fide occupational requirement. Unless the advertisement itself specifies one sex or the other, job seekers should assume that the advertiser will consider applicants of either sex in compliance with the laws against discrimination.” It suffices to dispose of this contention by noting that the Commis-sion’s commonsense recognition that the two are connected is supported by evidence in the present record. See App. 236a-239a. See also Hailes v. United Air Lines, 464 F. 2d 1006, 1009 (CA5 1972). The Guidelines on Discrimination Because of Sex of the Federal Equal Employment Opportunity Commission reflect a similar conclusion. See 29 CFR § 1604.4. 382 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. democracy.” New York Times Co. v. United States, 403 U. S. 713, 717 (1971) (concurring opinion). The durability of our system of self-government hinges upon the preservation of these freedoms. “[S]ince informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. ... A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.” Grosjean v. American Press Co., 297 U. S. 233, 250 (1936). The repeated emphasis accorded this theme in the decisions of this Court serves to underline the narrowness of the recognized exceptions to the principle that the press may not be regulated by the Government. Our inquiry must therefore be whether the challenged order falls within any of these exceptions. At the outset, however, it is important to identify with some care the nature of the alleged abridgment. This is not a case in which the challenged law arguably disables the press by undermining its institutional viability. As the press has evolved from an assortment of small printers into a diverse aggregation including large publishing empires as well, the parallel growth and complexity of the economy have led to extensive regulatory legislation from which “[t]he publisher of a newspaper has no special immunity.” Associated Press v. NLRB, 301 U. S. 103, 132 (1937). Accordingly, this Court has upheld application to the press of the National Labor Relations Act, ibid.; the Fair Labor Standards Act, Mabee n. White Plains Publishing Co., 327 U. S. 178 (1946); PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 383 376 Opinion of the Court Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186 (1946); and the Sherman Antitrust Act, Associated Press v. United States, 326 U. S. 1 (1945); Citizen Publishing Co. v. United States, 394 U. S. 131 (1969). See also Branzburg v. Hayes, 408 U. S. 665 (1972). Yet the Court has recognized on several occasions the special institutional needs of a vigorous press by striking down laws taxing the advertising revenue of newspapers with circulations in excess of 20,000, Grosjean v. American Press Co., supra; requiring a license for the distribution of printed matter, Lovell v. Griffin, 303 U. S. 444 (1938); and prohibiting the door-to-door distribution of leaflets, Martin v. Struthers, 319 U. S. 141 (1943).⁸ But no suggestion is made in this case that the Ordinance was passed with any purpose of muzzling or curbing the press. Nor does Pittsburgh Press argue that the Ordinance threatens its financial viability⁹ or impairs in any significant way its ability to publish and distribute its newspaper. In any event, such a contention would not be supported by the record. Ill In a limited way, however, the Ordinance as construed does affect the makeup of the help-wanted section of the newspaper. Under the modified order, Pittsburgh Press will be required to abandon its present policy of providing ⁸ See also Jones v. Opelika, 319 U. S: 103 (1943); Murdock v. Pennsylvania, 319 U. S. 105 (1943). ⁹ In response to questioning at oral argument, counsel for Pittsburgh Press stated only: “Now, I’m not prepared to answer whether the company makes money on [want ads] or not. I suspect it does. They charge for want-ads, and they do make a lot of their revenue in the newspaper through advertising, of course; and I suspect it is profitable.” Tr. of Oral Arg. 10. 384 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. sex-designated columns and allowing advertisers to select the columns in which their help-wanted advertisements will be placed. In addition, the order does not allow Pittsburgh Press to substitute a policy under which it would make an independent decision regarding placement in sex-designated columns. Respondents rely principally on the argument that this regulation is permissible because the speech is commercial speech unprotected by the First Amendment. The commercial-speech doctrine is traceable to the brief opinion in Valentine v. Chrestensen, 316 U. S. 52 (1942), sustaining a city ordinance which had been interpreted to ban the distribution by handbill of an advertisement soliciting customers to pay admission to tour a submarine. Mr. Justice Roberts, speaking for a unanimous Court, said: “We are . . . clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.” Id., at 54. Subsequent cases have demonstrated, however, that speech is not rendered commercial by the mere fact that it relates to an advertisement. In New York Times Co. N. Sullivan, 376 U. S. 254 (1964), a city official of Montgomery, Alabama, brought a libel action against four clergymen and the New York Times. The names of the clergymen had appeared in an advertisement, carried in the Times, criticizing police action directed against members of the civil rights movement. In holding that this political advertisement was entitled to the same degree of protection as ordinary speech, the Court stated: “That the Times was paid for publishing the advertisement is as immaterial in this connection as PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 385 376 Opinion of the Court is the fact that newspapers and books are sold.” Id., at 266. See also Smith v. California, 361 U. S. 147 (1959); Ginzburg v. United States, 383 U. S. 463, 474 (1966). If a newspaper’s profit motive were determinative, all aspects of its operations—from the selection of news stories to the choice of editorial position—would be subject to regulation if it could be established that they were conducted with a view toward increased sales. Such a basis for regulation clearly would be incompatible with the First Amendment. The critical feature of the advertisement in Valentine v. Chrestensen was that, in the Court’s view, it did no more than propose a commercial transaction, the sale of admission to a submarine. In New York Times Co. n. Sullivan, Mr. Justice Brennan, for the Court, found the Chrestensen advertisement easily distinguishable: “The publication here was not a ‘commercial’ advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern.” 376 U. S., at 266. In the crucial respects, the advertisements in the present record resemble the Chrestensen rather than the Sullivan advertisement. None expresses a position on whether, as a matter of social policy, certain positions ought to be filled by members of one or the other sex, nor does any of them criticize the Ordinance or the Commission’s enforcement practices. Each is no more than a proposal of possible employment. The advertisements are thus classic examples of commercial speech. 386 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. But Pittsburgh Press contends that Chrestensen is not applicable, as the focus in this case must be upon the exercise of editorial judgment by the newspaper as to where to place the advertisement rather than upon its commercial content. The Commission made a finding of fact that Pittsburgh Press defers in every case to the advertiser’s wishes regarding the column in which a want ad should be placed. It is nonetheless true, however, that the newspaper does make a judgment whether or not to allow the advertiser to select the column. We must therefore consider whether this degree of judgmental discretion by the newspaper with respect to a purely commercial advertisement is distinguishable, for the purposes of First Amendment analysis, from the content of the advertisement itself. Or, to put the question differently, is the conduct of the newspaper with respect to the employment want ad entitled to a protection under the First Amendment which the Court held in Chrestensen was not available to a commercial advertiser? Under some circumstances, at least, a newspaper’s editorial judgments in connection with an advertisement take on the character of the advertisement and, in those cases, the scope of the newspaper’s First Amendment protection may be affected by the content of the advertisement. In the context of a libelous advertisement, for example, this Court has held that the First Amendment does not shield a newspaper from punishment for libel when with actual malice it publishes a falsely defamatory advertisement. New York Times Co. v. Sullivan, supra, at 279-280. Assuming the requisite state of mind, then, nothing in a newspaper’s editorial decision to accept an advertisement changes the character of the falsely defamatory statements. The newspaper may not defend a libel suit on the ground that the falsely defamatory statements are not its own. PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 387 376 Opinion of the Court Similarly, a commercial advertisement remains commercial in the hands of the media, at least under some circumstances.¹⁰ In Capital Broadcasting Co. v. Acting Attorney General, 405 U. S. 1000 (1072), aff’g 333 F. Supp. 582 (DC 1971), this Court summarily affirmed a district court decision sustaining the constitutionality of 15 U. S. C. § 1335, which prohibits the electronic media from carrying cigarette advertisements. The District Court there found that the advertising should be treated as commercial speech, even though the First Amendment challenge was mounted by radio broadcasters rather than by advertisers. Because of the peculiar characteristics of the electronic media, National Broadcasting Co. v. United States, 319 U. S. 190, 226-227 (1943), Capital Broadcasting is not dispositive here on the ultimate question of the constitutionality of the Ordinance. Its significance lies, rather, in its recognition that the exercise of this kind of editorial judgment does not necessarily strip commercial advertising of its commercial character.¹¹ As for the present case, we are not persuaded that either the decision to accept a commercial advertisement which the advertiser directs to be placed in a sex-designated column or the actual placement there lifts the newspaper’s actions from the category of commercial speech. By implication at least, an advertiser whose want ad appears in the “Jobs—Male Interest” column ¹⁰ In Head v. New Mexico Board, 374 U. S. 424 (1963), this Court upheld an injunction prohibiting a newspaper and a radio station from carrying optometrists’ advertisements which violated New Mexico law. But because the issue had not been raised in the lower courts, this Court did not consider the appellant’s First Amendment challenge. Id., at 432 n. 12. ¹¹ See also New York State Broadcasters Assn. n. United States, 414 F. 2d 990 (CA2 1969), cert, denied, 396 U. S. 1061 (1970) (refusing to strike down a ban on broadcasts promoting a lottery). 388 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. is likely to discriminate against women in his hiring decisions. Nothing in a sex-designated column heading sufficiently dissociates the designation from the want ads placed beneath it to make the placement severable for First Amendment purposes from the want ads themselves. The combination, which conveys essentially the same message as an overtly discriminatory want ad, is in practical effect an integrated commercial statement. Pittsburgh Press goes on to argue that if this package of advertisement and placement is commercial speech, then commercial speech should be accorded a higher level of protection than Chrestensen and its progeny would suggest. Insisting that the exchange of information is as important in the commercial realm as in any other, the newspaper here would have us abrogate the distinction between commercial and other speech. Whatever the merits of this contention may be in other contexts, it is unpersuasive in this case. Discrimination in employment is not only commercial activity, it is illegal commercial activity under the Ordinance.¹² We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes. Nor would the result be different if the nature of the transaction were indicated by placement under columns captioned “Narcotics for Sale” and “Prostitutes Wanted” rather than stated within the four corners of the advertisement. The illegality in this case may be less overt, but we see no difference in principle here. Sex discrimination in nonexempt employment has been declared illegal under ¹² See Note, Freedom of Expression in a Commercial Context, 78 Harv. L. Rev. 1191, 1195-1196 (1965). Cf. Capital Broadcasting Co. n. Mitchell, 333 F. Supp. 582, 593 n. 42 (D. C. 1971) (Wright, J., dissenting); Camp-oj-the-Pines, Inc. v. New York Times Co., 184 Mise. 389, 53 N. Y. S. 2d 475 (1945). PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 389 376 Opinion of the Court § 8 (a) of the Ordinance, a provision not challenged here. And § 8 (e) of the Ordinance forbids any employer, employment agency, or labor union to publish or cause to be published any advertisement “indicating” sex discrimination. This, too, is unchallenged. Moreover, the Commission specifically concluded that it is an unlawful employment practice for an advertiser to cause an employment advertisement to be published in a sex-designated column. Section 8 (j) of the Ordinance, the only provision which Pittsburgh Press was found to have violated and the only provision under attack here, makes it unlawful for “any person ... to aid ... in the doing of any act declared to be an unlawful employment practice by this ordinance.” The Commission and the courts below concluded that the practice of placing want ads for nonexempt employment in sex-designated columns did indeed “aid” employers to indicate illegal sex preferences. The advertisements, as embroidered by their placement, signaled that the advertisers were likely to show an illegal sex preference in their hiring decisions. Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity. IV It is suggested, in the brief of an amicus curiae, that apart from other considerations, the Commission’s order should be condemned as a prior restraint on expression.¹³ As described by Blackstone, the protection against prior ¹³ Brief for Amicus Curiae American Newspaper Publishers Association 22 n. 32. 390 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. restraint at common law barred only a system of administrative censorship: “To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, . . . is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.” 4 W. Blackstone, Commentaries *152. While the Court boldly stepped beyond this narrow doctrine in Near v. Minnesota, 283 U. S. 697 (1931), in striking down an injunction against further publication of a newspaper found to be a public nuisance, it has never held that all injunctions are impermissible. See Lorain Journal Co. v. United States, 342 U. S. 143 (1951). The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment. The present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication. Cf. New York Times Co. v. United States, 403 U. S. 713 (1971). Moreover, the order is clear and sweeps no more broadly than necessary. And because no interim relief was granted, the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected.¹⁴ ¹⁴ The dissent of The Chief Justice argues that Pittsburgh Press is in danger of being “subject to summary punishment for contempt for having made an ‘unlucky’ legal guess.” Post, at 396-397. The Commission is without power to punish summarily for contempt. When it concludes that its order has been violated, “the Commission PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 391 376 Opinion of the Court V We emphasize that nothing in our holding allows government at any level to forbid Pittsburgh Press to publish and distribute advertisements commenting on the Ordinance, the enforcement practices of the Commission, or the propriety of sex preferences in employment. Nor, a fortiori, does our decision authorize any restriction whatever, whether of content or layout, on stories or commentary originated by Pittsburgh Press, its columnists, or its contributors. On the contrary, we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views on these and other issues, however controversial. We hold only that the Commission’s modified order, narrowly drawn to prohibit placement in sex-designated columns of advertisements for nonexempt job opportunities, does not infringe the First Amendment rights of Pittsburgh Press. Affirmed. [For Appendix to opinion of the Court, see post, p. 392.] shall certify the case and the entire record of- its proceedings to the City Solicitor, who shall invoke the aid of an appropriate court to secure enforcement or compliance with the order or to impose [a fine of not more than $300] or both.” § 14 of the Ordinance; Appendix to Pet. for Cert. 103a. But, more fundamentally, it was the newspaper’s policy of allowing employers to place advertisements in sex-designated columns without regard to the exceptions or exemptions contained in the Ordinance, not its treatment of particular want ads, which was challenged in the complaint and was found by the Commission and the courts below to be violative of the Ordinance. Nothing in the modified order or the opinions below prohibits the newspaper from relying in good faith on the representation of an advertiser that a particular job falls within an exception to the Ordinance. 392 OCTOBER TERM, 1972 Appendix to Opinion of the Court 413 U. S. APPENDIX TO OPINION OF THE COURT Among the advertisements carried in the Sunday Pittsburgh Press on January 4, 1970, was the following one, submitted by an employment agency and placed in the “JOBS—MALE INTEREST” column: ACAD. INSTRUCTORS............... $13,000 ACCOUNTANTS ...................... 10,000 ADM. ASS’T, CPA................... 15,000 ADVERTISING MGR.................. 10,000 BOOKKEEPER F-C.................... 9,000 FINANCIAL CONSULTANT.............. 12,000 MARKETING MANAGER................. 15,000 MGMT. TRAINEE..................... 8,400 OFFICE MGR. TRAINEE............... 7,200 LAND DEVELOPMENT.................. 30,000 PRODUCT. MANAGER................. 18,000 PERSONNEL MANAGER......... OPEN SALES-ADVERTISING ........ 8,400 SALES-CONSUMER .......... 9,600 SALES-INDUSTRIAL .......... 12,000 SALES-MACHINERY ......... 8,400 RETAIL MGR........................ 15,000 Most Positions Fee Paid EMPLOYMENT SPECIALISTS 2248 Oliver Bldg. 261-2250 Employment Agency App. 311a. On the same day, the same agency’s advertisement in the “JOBS— FEMALE INTEREST” column was as follows: ACAD. INSTRUCTORS...... $13,000 ACCOUNTANTS ....'................. 6,000 AUTO-INS. UNDERWRITER............. OPEN BOOKKEEPER-INS ................... 5,000 CLERK-TYPIST ..................... 4,200 DRAFTSMAN......................... 6,000 KEYPUNCH D. T..................... 6,720 KEYPUNCH BEGINNER....'............ 4,500 PROOFREADER ...................... 4,900 RECEPTIONIST—Mature D. T.... OPEN EXEC. SEC................ 6,300 SECRETARY ............... 4,800 SECRETARY, Equal Oppor............ 6,000 SECRETARY D. T.................... 5,400 TEACHERS-Pt. Time........ day 33. TYPIST-Statistical ............... 5,000 Most Positions Fee Paid EMPLOYMENT SPECIALISTS 2248 Oliver Bldg. 261-2250 Employment Agency Ibid. [Appendix continued on p. 393.] PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 393 376 Burger, C. J., dissenting Characteristic of those offering fuller job descriptions was the following advertisement, carried in the “JOBS—MALE INTEREST” column: STAFF MANAGEMENT TRAINEE TO $12,000 If you have had background in the management of small business then this could be the stepping stone you have been waiting for. You will be your own boss with no cash outlay. Call or write today. App. 313a. Mr. Chief Justice Burger, dissenting. Despite the Court’s efforts to decide only the narrow question presented in this case, the holding represents, for me, a disturbing enlargement of the “commercial speech” doctrine, Valentine v. Chrestensen, 316 U. S. 52 (1942), and a serious encroachment on the freedom of press guaranteed by the First Amendment. It also launches the courts on what I perceive to be a treacherous path of defining what layout and organizational decisions of newspapers are “sufficiently associated” with the “commercial” parts of the papers as to be constitutionally unprotected and therefore subject to governmental regulation. Assuming, arguendo, that the First Amendment permits the States to place restrictions on the content of commercial advertisements, I would not enlarge that power to reach the layout and organizational decisions of a newspaper. Pittsburgh Press claims to have decided to use sex-designated column headings in the classified advertising section of its newspapers to facilitate the use of classified ads by its readers. Not only is this purpose conveyed to the readers in plain terms, but the newspaper also explicitly cautions readers against interpreting the column headings as indicative of sex discrimination. Thus, 394 OCTOBER TERM, 1972 Burger, C. J., dissenting 413 U. S. before each column heading the newspaper prints the following “Notice to Job Seekers”: “Jobs are arranged under Male and Female classifications for the convenience of our readers. This is done because most jobs generally appeal more to persons of one sex than the other. Various laws and ordinances—local, state and federal, prohibit discrimination in employment because of sex unless sex is a bona fide occupational requirement. Unless the advertisement itself specifies one sex or the other, job seekers should assume that the advertiser will consider applicants of either sex in compliance with the laws against discrimination.” To my way of thinking, Pittsburgh Press has clearly acted within its protected journalistic discretion in adopting this arrangement of its classified advertisements. Especially in light of the newspaper’s “Notice to Job Seekers,” it is unrealistic for the Court to say, as it does, that the sex-designated column headings are not “sufficiently dissociate [d]” from the “want ads placed beneath [them] to make the placement severable for First Amendment purposes from the want ads themselves.”¹ Ante, at 388. In any event, I believe the First Amendment ¹ The Court and the opinions under review place great stress on the finding of the Pittsburgh Commission on Human Relations that the Pittsburgh Press “permits the advertiser to select the column within which its advertisement is to be inserted.” That finding, however, does not disprove Pittsburgh Press’ claim that it uses column headings for the convenience of its readers. In any event, the order under review, as the Court acknowledges, “does not allow Pittsburgh Press to substitute a policy under which it would make an independent decision regarding placement in sex-designated columns.” Ante, at 384. Thus, even if the newspaper became actively involved in selecting the appropriate column for each advertisement, presumably the Commission’s order would still prohibit Pittsburgh Press from using the column headings. PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 395 376 Burger, C. J., dissenting freedom of press includes the right of a newspaper to arrange the content of its paper, whether it be news items, editorials, or advertising, as it sees fit.² In the final analysis, the readers are the ultimate “controllers” no matter what excesses are indulged in by even a flamboyant or venal press; that it often takes a long time for these influences to bear fruit is inherent in our system. The Court’s conclusion that the Commission’s cease-and-desist order does not constitute a prior restraint gives me little reassurance. That conclusion is assertedly based on the view that the order affects only a “continuing course of repetitive conduct.” Ante, at 390. Even if that were correct, I would still disagree since the Commission’s order appears to be in effect an outstanding injunction against certain publications—the essence of a prior restraint. In any event, my understanding of the effects of the Commission’s order differs from that of the Court. As noted in the Court’s opinion, the Commonwealth Court narrowed the injunction to permit Pittsburgh Press to use sex-designated column headings for want ads dealing with jobs exempt under the Ordinance. The Ordinance does not apply, for example, “to employers of fewer than five persons, to employers outside the city of Pittsburgh, or to religious, fraternal, charitable or sectarian organizations, nor does it apply to employment in domestic service or in jobs for which the Commission has certified a bona fide occupational exception.” Ante, at 380. ² There would be time enough to consider whether this principle would apply to the situation hypothesized by the Court, for example, where a newspaper gives “notice” of narcotics transactions by placing certain advertisements under a “Narcotics for Sale” caption. For now, I need only state that the two situations strike me as being entirely different. We do not have here, in short, such a blatant involvement by a newspaper in a criminal transaction. 396 OCTOBER TERM, 1972 Burger, C. J., dissenting 413 U. S. If Pittsburgh Press chooses to continue using its column headings for advertisements submitted for publication by exempted employers, it may well face difficult legal questions in deciding whether a particular employer is or is not subject to the Ordinance. If it makes the wrong decision and includes a covered advertisement under a sex-designated column heading, it runs the risk of being held in summary contempt for violating the terms of the order.³ In practical effect, therefore, the Commission’s order in this area may have the same inhibiting effect as the injunction in Near v. Minnesota, 283 U. S. 697 (1931), which permanently enjoined the publishers of a newspaper from printing a “malicious, scandalous or defamatory newspaper, as defined by law.” Id., at 706. We struck down the injunction in Near as a prior restraint. In 1971, we reaffirmed the principle of presumptive unconstitutionality of prior restraint in Organization for a Better Austin v. Keefe, 402 U. S. 415* (1971). Indeed, in New York Times Co. v. United States, 403 U. S. 713 (1971), every member of the Court, tacitly or explicitly, accepted the Near and Keefe condemnation of prior restraint as presumptively unconstitutional. In this case, the respondents have, in my view, failed to carry their burden. I would therefore hold the Commission’s order to be impermissible prior restraint. At the very least, we ought to make clear that a newspaper may not be subject to summary punishment for contempt for having made an ³ The Court’s statement that the “Commission is without power to punish summarily for contempt,” ante, at 390 n. 14, is hardly reassuring to me in a First Amendment setting. We are still left with no assurance that an enforcement action initiated at the request of the Commission will not be summary in nature. It is helpful that the Court expresses a caveat on this score. However, the weighty presumption of unconstitutionality of prior restraint of the press seems to be given less regard than we have traditionally accorded it. PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 397 376 Douglas, J., dissenting “unlucky” legal guess on a particular advertisement or for having failed to secure advance Commission approval of a decision to run an advertisement under a sex-designated column. Mr. Justice Douglas, dissenting. While I join the dissent of Mr. Justice Stewart, I add a few words. As he says, the press, like any other business, can be regulated on business and economic matters. Our leading case on that score is Associated Press v. United States, 326 U. S. 1, which holds that a news-gathering agency may be made accountable for violations of the antitrust laws. By like token, a newspaper, periodical, or TV or radio broadcaster may be subjected to labor relations laws. And that regulation could constitutionally extend to the imposition of penalties or other sanctions if any unit of the press violated laws that barred discrimination in employment based on race or religion or sex. Pennsylvania has a regulatory regime designed to eliminate discrimination in employment based on sex; and the commission in charge of that program issues cease-and-desist orders against violators. There is no doubt that Pittsburgh Press would have no constitutional defense against such a cease-and-desist order issued against it for discriminatory employment practices. But I believe that Pittsburgh Press by reason of the First Amendment may publish what it pleases about any law without censorship or restraint by Government. The First Amendment does not require the press to reflect any ideological or political creed reflecting the dominant philosophy, whether transient or fixed. It may use its pages and facilities to denounce a law and urge its repeal or, at the other extreme, denounce those who do not respect its letter and spirit. Commercial matter, as distinguished from news, was 398 OCTOBER TERM, 1972 Douglas, J., dissenting 413 U. S. held in Valentine v. Chrestensen, 316 U. S. 52, not to be subject to First Amendment protection. My views on that issue have changed since 1942, the year Valentine was decided. As I have stated on earlier occasions, I believe that commercial materials also have First Amendment protection. If Empire Industries Ltd., doing business in Pennsylvania, wanted to run full-page advertisements denouncing or criticizing this Pennsylvania law, I see no way in which Pittsburgh Press could be censored or punished for running the ad, any more than a person could be punished for uttering the contents of the ad in a public address in Independence Hall. The pros and cons of legislative enactments are clearly discussion or dialogue that is highly honored in our First Amendment traditions. The want ads which gave rise to the present litigation express the preference of one employer for the kind of help he needs. If he carried through to hiring and firing employees on the basis of those preferences, the state commission might issue a remedial order against him, if discrimination in employment was shown. Yet he could denounce that action with impunity and Pittsburgh Press could publish his denunciation or write an editorial taking his side also with impunity. Where there is a valid law, the Government can enforce it. But there can be no valid law censoring the press or punishing it for publishing its views or the views of subscribers or customers who express their ideas in letters to the editor or in want ads or other commercial space. There comes a time, of course, when speech and action are so closely brigaded that they are really one. Falsely shouting “fire” in a theater, the example given by Mr. Justice Holmes, Schenck v. United States, 249 U. S. 47, 52, is one example. Giboney v. Empire Storage Co., 336 U. S. 490, written by Mr. Justice Black, is another. There are here, however, no such unusual circumstances. PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 399 376 Douglas, J., dissenting As Mr. Justice Stewart says, we have witnessed a growing tendency to cut down the literal requirements of First Amendment freedoms so that those in power can squelch someone out of step. Historically, the miscreant has usually been an unpopular minority. Today it is a newspaper that does not bow to the spreading bureaucracy that promises to engulf us. It may be that we have become so stereotyped as to have earned, that fate. But the First Amendment presupposes free-wheeling, independent people whose vagaries include ideas spread across the entire spectrum of thoughts and beliefs.* I would let any expression in that broad spectrum flourish, unrestrained by Government, unless it was an integral part of action—the only point which in the Jeffersonian philosophy marks the permissible point of governmental intrusion. I therefore dissent from affirmance of this judgment. *As Alexander Meiklejohn has stated: “The First Amendment was not written primarily for the protection of those intellectual aristocrats who pursue knowledge solely for the fun of the game, whose search for truth expresses nothing more than a private intellectual curiosity or an equally private delight and pride in mental achievement. It was written to clear the way for thinking which serves the general welfare. It offers defense to men who plan and advocate and incite toward corporate action for the common good. On behalf of such men it tells us that every plan of action must have a hearing, every relevant idea of fact or value must have full consideration, whatever may be the dangers which that activity involves. It makes no difference whether a man is advocating conscription or opposing it, speaking in favor of a war or against it, defending democracy or attacking it, planning a communist reconstruction of our economy or criticising it. So long as his active words are those of participation in public discussion and public decision of matters of public policy, the freedom of those words may not be abridged. That freedom is the basic postulate of a society which is governed by the votes of its citizens.” Free Speech and Its Relation to Self-Government 45-46 (1948). 400 OCTOBER TERM, 1972 Stewart, J., dissenting 413 U. S. Mr. Justice Stewart, with whom Mr. Justice Douglas joins, dissenting. I have no doubt that it is within the police power of the city of Pittsburgh to prohibit discrimination in private employment on the basis of race, color, religion, ancestry, national origin, place of birth, or sex. I do not doubt, either, that in enforcing such a policy the city may prohibit employers from indicating any such discrimination when they make known the availability of employment opportunities. But neither of those propositions resolves the question before us in this case. That question, to put it simply, is whether any government agency—local, state, or federal—can tell a newspaper in advance what it can print and what it cannot. Under the First and Fourteenth Amendments I think no government agency in this Nation has any such power.¹ It is true, of course, as the Court points out, that the publisher of a newspaper is amenable to civil and criminal laws of general applicability. For example, a newspaper publisher is subject to nondiscriminatory general taxation,² and to restrictions imposed by the National Labor Relations Act,³ the Fair Labor Standards Act,⁴ and the Sherman Act.⁵ In short, as businessman or em- ¹1 put to one side the question of governmental power to prevent publication of information that would clearly imperil the military defense of our Nation, e. g., “the publication of the sailing dates of transports or the number and location of troops.” Near n. Minnesota, 283 U. S. 697, 716. ² See Grosjean v. American Press Co., 297 U. S. 233, 250; Murdock v. Pennsylvania, 319 U. S. 105, 112. ³ See Associated Press v. NLRB, 301 U. S. 103, 132-133. ⁴ See Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 192-193; Mabee v. White Plains Publishing Co., 327 U. S. 178. ⁵ See Associated Press v. United States, 326 U. S. 1; Lorain Journal Co. n. United States, 342 U. S. 143, 155-157; Citizen Publishing Co. v. United States, 394 U. S. 131, 139. PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 401 376 Stewart, J., dissenting ployer, a newspaper publisher is not exempt from laws affecting businessmen and employers generally. Accordingly, I assume that the Pittsburgh Press Co., as an employer, can be and is completely within the coverage of the Human Relations Ordinance of the city of Pittsburgh. But what the Court approves today is wholly different. It approves a government order dictating to a publisher in advance how he must arrange the layout of pages in his newspaper. Nothing in Valentine v. Chrestensen, 316 U. S. 52, remotely supports the Court’s decision. That case involved the validity of a local sanitary ordinance that prohibited the distribution in the streets of “commercial and business advertising matter.” The Court held that the ordinance could be applied to the owner of a commercial tourist attraction who wanted to drum up trade by passing out handbills in the streets. The Court said it was “clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment.” Id., at 54. Whatever validity the Chrestensen case may still retain when limited to its own facts,⁶ it certainly does not stand for the proposition that the advertising pages of a newspaper are outside the protection given the newspaper by the First and Fourteenth Amendments. Any possible doubt on that score was surely laid to rest in New York Times Co. v. Sullivan, 376 U. S. 254.⁷ ⁶ Mr. Justice Douglas has said that “[t]he [Chrestensen] ruling was casual, almost offhand. And it has not survived reflection.” Cammarano v. United States, 358 U. S. 498, 514 (concurring opinion). ⁷ The Court acknowledges, as it must, that what it approves today 402 OCTOBER TERM, 1972 Stewart, J., dissenting 413 U. S. So far as I know, this is the first case in this or any other American court that permits a government agency to enter a composing room of a newspaper and dictate to the publisher the layout and makeup of the newspaper’s pages. This is the first such case, but I fear it may not be the last. The camel’s nose is in the tent. “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way. . . .” Boyd v. United States, 116 U. S. 616, 635. So long as Members of this Court view the First Amendment as no more than a set of “values” to be balanced against other “values,” that Amendment will remain in grave jeopardy. See Paris Adult Theatre I v. Slaton, ante, p. 49 (First and Fourteenth Amendment protections outweighed by public interest in “quality of life,” “total community environment,” “tone of commerce,” “public safety”); Branzburg n. Hayes, 408 U. S. 665 (First Amendment claim asserted by newsman to maintain confidential relationship with his sources outweighed by obligation to give information to grand jury); New York Times Co. v. United States, 403 U. S. 713, 748 (Burger, C. J., dissenting) (First Amendment outweighed by judicial problems caused by “unseemly haste”); Columbia is not a restriction on a purely commercial advertisement but on the editorial judgment of the newspaper, for “the newspaper does make a judgment whether or not to allow the advertiser to select the column.” Ante, at 386. The effect of the local ordinance and the court order is to affect the makeup of the help-wanted section of the newspaper, and to preclude Pittsburgh Press from placing advertisements in sex-designated columns. The Court justifies this restriction on the newspaper’s editorial judgment by arguing that it had taken on the “character of the advertisement” so that the combination conveyed “an integrated commercial statement.” But the stark fact remains that the restriction here was placed on the editorial judgment of the newspaper, not the advertisement. PITTSBURGH PRESS CO. v. HUMAN REL. COMM’N 403 376 Stewart, J., dissenting Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 199 (Brennan, J., dissenting) (balancing of “the competing First Amendment interests”). It is said that the goal of the Pittsburgh ordinance is a laudable one, and so indeed it is. But, in the words of Mr. Justice Brandeis, “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Olmstead v. United States, 277 U. S. 438, 479 (dissenting opinion). And, as Mr. Justice Black once pointed out, “The motives behind the state law may have been to do good. But . . . [h]istory indicates that urges to do good have led to the burning of books and even to the burning of ‘witches.’ ” Beauharnais v. Illinois, 343 U. S. 250, 274 (dissenting opinion). The Court today holds that a government agency can force a newspaper publisher to print his classified advertising pages in a certain way in order to carry out governmental policy. After this decision, I see no reason why government cannot force a newspaper publisher to conform in the same way in order to achieve other goals thought socially desirable. And if government can dictate the layout of a newspaper’s classified advertising pages today, what is there to prevent it from dictating the layout of the news pages tomorrow? Those who think the First Amendment can and should be subordinated to other socially desirable interests will hail today’s decision. But I find it frightening. For I believe the constitutional guarantee of a free press is more than precatory. I believe it is a clear command 404 OCTOBER TERM, 1972 Blackmun, J., dissenting 413 U. S. that government must never be allowed to lay its heavy editorial hand on any newspaper in this country. Mr. Justice Blackmun, dissenting. I dissent substantially for the reasons stated by Mr. Justice Stewart in his opinion. But I do not subscribe to the statements contained in that paragraph of his opinion which begins on p. 402 and ends on p. 403. NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 405 Syllabus NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES et al. v. DUBLINO et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK No. 72-792. Argued April 17-18, 1973—Decided June 21, 1973* The 1967 amendments to the Social Security Act included the Federal Work Incentive Program (WIN), designed to help individuals on welfare become wage-earning members of society. The States were required to incorporate this program into their Aid to Families With Dependent Children (AFDC) program, to provide that certain “employable” individuals, as a condition for receiving aid, shall register for manpower services, training, and employment. In 1971 New York enacted provisions of its Social Welfare Law, commonly referred to as the New York Work Rules, which similarly required cooperation by employable individuals to continue to receive assistance. Appellees, New York public assistance recipients subject to the Work Rules, challenge those Rules as having been pre-empted by the WIN provisions of the Social Security Act. The three-judge District Court ruled that “for those in the AFDC program, WIN pre-empts the New York Work Rules.” Held: 1. The WIN provisions of the Social Security Act do not preempt the New York Work Rules of the New York Social Welfare Law. Pp. 412-423. (a) There is no substantial evidence that Congress intended, either expressly or impliedly, to pre-empt state work programs. More is required than the apparent comprehensiveness of the WIN legislation to show the “clear manifestation of [congressional] intention” that must exist before a federal statute is held “to supersede the exercise” of state action. Schwartz v. Texas, 344 U. S. 199, 202-203. Pp. 412-417. (b) Affirmative evidence exists to establish Congress’ intention not to terminate all state work programs and foreclose future state cooperative programs: WIN is limited in scope and appli *Together with No. 72-802, Onondaga County Department of Social Services et al. v. Dublino et al., also on appeal from the same court. 406 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. cation; it is a partial program, with state supplementation, as illustrated by New York; and the Department of Health, Education, and Welfare, responsible for administering the Social Security Act, has never considered WIN as pre-emptive. Pp. 417-421. (c) Where coordinate state and federal efforts exist within a complementary administrative framework in the pursuit of common purposes, as here, the case for federal pre-emption is not persuasive. Pp. 421-422. 2. The question of whether some particular sections of the Work Rules might contravene the specific provisions of the Social Security Act is not resolved, but is remanded to the District Court for consideration. Pp. 422-423. 348 F. Supp. 290, reversed and remanded. Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, Stewart, White, Blackmun, and Rehnquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 423. Jean M. Coon, Assistant Solicitor General of New York, argued the cause for appellants in both cases. With her on the briefs in No. 72-792 were Louis J. Lefkowitz, Attorney General, and Ruth Kessler Toch, Solicitor General. Philip C. Pinsky filed a brief for appellants in No. 72-802. Dennis R. Yeager argued the cause and filed briefs for appellees in both cases, f Mr. Justice Powell delivered the opinion of the Court. The question before us is whether the Social Security Act of 1935, 49 Stat. 620, as amended, bars a State from ^Briefs of amici curiae urging reversal in both cases were filed by Solicitor General Griswold, Wilmot R. Hastings, and St. John Barrett for the United States, and by Evelle J. Younger, Attorney General, Elizabeth Palmer, Assistant Attorney General, and John J. Klee, Jr., Deputy Attorney General, for the State of California. Steven J. Cole and Henry A. Freedman filed a brief for the National Welfare Rights Organization et al. as amici curiae urging affirmance in both cases. NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 407 405 Opinion of the Court independently requiring individuals to accept employment as a condition for receipt of federally funded aid to families with dependent children. More precisely, the issue is whether that part of the Social Security Act known as the Federal Work Incentive Program (WIN) preempts the provisions of the New York Social Welfare Law commonly referred to as the New York Work Rules. A brief description of both the state and federal programs will be necessary. The Work Rules were enacted by New York in 1971¹ ¹ The basic provisions of the Work Rules at the time this action was brought are set forth in § 131 of the New York Social Services Law (Supp. 1971-1972): “4. No assistance or care shall be given to an employable person who has not registered with the nearest local employment agency of the department of labor or has refused to accept employment in which he is able to engage. “A person shall be deemed to have refused to accept such employment if he: “a. fails to obtain and file with the social services district at least semi-monthly a new certificate from the appropriate local employment office of the • state department of labor stating that such employment office has no order for an opening in part-time, full-time, temporary or permanent employment in which the applicant is able to engage, or “b. willfully fails to report for an interview at an employment office with respect to employment when requested to do so by such office, or “c. willfully fails to report to such office the result of a referral to employment, or “d. willfully fails to report for employment. Such willful failures or refusals as above listed shall be reported immediately to the social services district by such employment office. “For the purposes of this subdivision and subdivision five, a person shall be deemed employable if such person is not rendered unable to work by: illness or significant and substantial incapacitation, either mental or physical, to the extent and of such duration that such illness or incapacitation prevents such person from performing services; advanced age; full-time attendance at school in the case of minor, in accordance with provisions of this chapter; full-time, satisfactory participation in an approved program of voca- 408 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. as part of Governor Rockefeller’s efforts to reorganize the New York Welfare Program. Their aim, as explained by the Governor, is to encourage “the young and able-bodied, temporarily in need of assistance through no fault of their own, to achieve the education and the skills, the motivation and the determination that will make it possible for them to become increasingly self-sufficient, independent citizens who can contribute to and share in the responsibility for their families and our society.” ² To achieve this, the Work Rules establish a presumption that certain recipients of public assistance are employable ³ and require those recipients to report every two weeks to pick up their assistance checks in person; to file every two weeks a certificate from the appropriate public employment office stating that no suitable employment opportunities are available; to report for tional training or rehabilitation; the need of such person to provide full-time care for other members of such person’s household who are wholly incapacitated, or who are children, and for whom required care is not otherwise reasonably available, notwithstanding diligent efforts by such person and the appropriate social services department to obtain others to provide such care. A person assigned to and participating in a public works project under the provisions of section one hundred sixty-four or three hundred fifty-k of this chapter shall be deemed to be employable but not employed. “Every employable recipient of public assistance or person who is deemed not to be employable by reason of full-time satisfactory participation in an approved program of vocational training or rehabilitation shall receive his public assistance grants and allowances in person from the division of employment of the state department of labor, in accordance with regulations of the department.” Section 350-k of New York Social Services Law provides for public works project employment for employable recipients of AFDC who cannot be placed in regular employment. ² Special Message to the New York State Legislature, Mar. 29, 1971 (Brief for Appellant N. Y. State Depts. 9). ³ For the statutory definition of persons deemed “employable” see n. 1, supra. NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 409 405 Opinion of the Court requested employment interviews; to report to the public employment office the result of a referral for employment; and not to fail willfully to report for suitable employment, when available. In addition to establishing a system of referral for employment in the private sector of the economy, the Work Rules permit the establishment of public works projects in New York’s social service districts.⁴ Failure of “employable” persons to participate in the operation of the Work Rules results in a loss of assistance.⁵ Like the Work Rules, WIN is designed to help individuals on welfare “acquire a sense of dignity, self-worth, and confidence which will flow from being recognized as a wage-earning member of society . . . 42 U. S. C. § 630 (1970 ed., Supp. I). The program was enacted as part of the 1967 amendments to the Social Security Act,⁶ whereby States were required to incorporate WIN into their Aid to Families With Dependent Children (AFDC) ⁴ See ibid. These provisions for employment of recipients in public works projects have not been implemented, as the HEW Regional Commissioner indicated that such projects would not be approved for federal aid. Brief for Appellant N. Y. State Depts. 13. ⁵ See n. 1, supra, and Social Services Administrative Letter, 71 PWD-43 which reads in relevant part: “[T]he Laws of 1971 place a renewed and expanded emphasis on restoring all employable recipients of public assistance to employment in the regular economy. Accordingly, all unemployed employable persons applying for or receiving public assistance are not only required to register at the New York State Employment Service district office in their community, and report there regularly for appropriate employment counseling services and job referral, but, effective July 1, they will also pick up their assistance checks there. The penalty for not cooperating in this procedure is ineligibility for public assistance whether the individual is the grantee head of family, single person living alone, or non-grantee non-head of family.” App. 53-54. ⁶ In 1971, further amendments dealing with WIN were enacted. Act of Dec. 28, 1971, Pub. L. 92-223, § 3, 85 Stat. 803. 410 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. plans. 42 U. S. C. §§ 602 (a) (19), 630 et seq. (1970 ed. and Supp. I). Every state AFDC plan must provide that certain “employable” individuals, as a condition for receiving aid, shall register for manpower services, training, and employment under regulations promulgated by the Secretary of Labor. 42 U. S. C. § 602 (a) (19) (A) (1970 ed., Supp. I).⁷ Available services, to be provided by the State, must include “such health, vocational rehabilitation, counseling, child care, and other social and supportive services as are necessary to enable such indi-dividuals to accept employment or receive manpower training . . . ” 42 U. S. C. § 602 (a)(19)(G) (1970 ed., ⁷ “§ 602. State plans for aid and services to needy families with children; contents; approval by Secretary. “(a) A State plan for aid and services to needy families with children must . . . “(19) provide— “(A) that every individual, as a condition of eligibility for aid under this part, shall register for manpower services, training, and employment as provided by regulations of the Secretary of Labor, unless such individual is— “(i) a child who is under age 16 or attending school full time; “(ii) a person who is ill, incapacitated, or of advanced age; “(iii) a person so remote from a work incentive project that his effective participation is precluded; “(iv) a person whose presence in the home is required because of illness or incapacity of another member of the household; “(v) a mother or other relative of a child under the age of six who is caring for the child; or “ (vi) the mother or other female caretaker of a child, if the father or another adult male relative is in the home and not excluded by clause (i), (ii), (iii), or (iv) of this subparagraph (unless he has failed to register as required by this subparagraph, or has been found by the Secretary of Labor under section 633 (g) of this title to have refused without good cause to participate under a work incentive program or accept employment as described in subparagraph (F) of this paragraph).” NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 411 405 Opinion of the Court Supp. I). After the required services have been provided, the State must certify to the Secretary of Labor those individuals who are ready for employment or training programs, 42 U. S. C. §§ 602 (a)(19)(G), 632, 633 (1970 ed. and Supp. I).⁸ Employment consists both of work in the regular economy and participation in public service programs. 42 U. S. C. §§ 630, 632, 633 (1970 ed. and Supp. I). As with the Work Rules, cooperation in WIN is necessary for employable individuals to continue to receive assistance. In the court below, appellees, New York public assistance recipients subject to the Work Rules, challenged those Rules as violative of several provisions of the Constitution and as having been pre-empted by the WIN provisions of the Federal Social Security Act. The three-judge District Court rejected all but the last contention. 348 F. Supp. 290 (WDNY 1972). On this point, it held that “for those in the AFDC program, WIN preempts” ⁹ the New York Work Rules. Id., at 297.¹⁰ As ⁸ States are penalized by a reduction in assistance if they fail to certify to the Secretary of Labor at least 15% of the average number of those registered each year. 42 U. S. C. § 603 (c) (1970 ed., Supp. I). ⁹ The District Court and the parties in this case have used the word “pre-emption” in a rather special sense. This litigation does not involve arguable federal pre-emption of a wholly independent state program dealing with the same or a similar problem. Cf., e. g., Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 446 (1960). AFDC is a federal statutory program, of which the WIN program is a part. The State Work Rules also were promulgated as part of the implementation of AFDC, and are therefore not wholly independent of the federal program. With this caveat, however, we will preserve the District Court’s usage, which has the advantage of focusing attention on the critical question: whether Congress intended WIN to provide the exclusive mechanism for establishing work rules under AFDC. ¹⁰ The court found additional points of conflict between the state and federal programs with regard to procedures for termination of 412 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. this holding not only affected the continued operation of the New York Rules but raised serious doubts as to the viability of the supplementary work programs in 22 States, we set the cause for argument, 409 U. S. 1123 (1973).¹¹ We now reverse this holding. I The holding of the court below affects the Work Rules only insofar as they apply to AFDC recipients. 348 F. Supp., at 297, 300 and n. 5. New York’s Home Relief program, for example—a general state assistance plan for which there is no federal reimbursement or support ¹²—remains untouched by the court’s pre-emption ruling. As to AFDC participants, however, the decision below would render the Work Rules inoperative and hold WIN “the exclusive manner of applying the carrot and stick” in efforts to place such recipients in gainful employment. Id., at 300.¹³ benefits and the presence of certain hearings and counseling services under WIN which were absent from the Work Rules. 348 F. Supp. 290, 295-297. ¹¹ We postponed consideration of the question of jurisdiction to the hearing on the merits. We now conclude that the constitutional questions raised by appellees were not so insubstantial as to deprive the three-judge District Court of jurisdiction. As to appellees’ due process claim, the court below directed the State to implement suitable means of informing Home Relief recipients of their hearing rights. Id., at 299. The State stipulates that this has been done. Tr. of Oral Arg. 19-20. The only issue which we address on this appeal is whether the state program is superseded in whole or in part by federal law. ¹² The AFDC program is jointly financed by the States and the Federal Government. Dandridge x. Williams, 397 U. S. 471, 473 (1970). ¹³ Appellees’ position is also one of “complete exclusion” of the Work Rules, at least with regard to AFDC recipients. Tr. of Oral Arg. 34; Brief for Appellees in Response to Brief for the United States as Amicus Curiae 2-3. NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 413 405 Opinion of the Court This is a sweeping step that strikes at the core of state prerogative under the AFDC program—a program which this Court has been careful to describe as a “scheme of cooperative federalism.” King n. Smith, 392 U. S. 309, 316 (1968); Dandridge v. Williams, 397 U. S. 471, 478 (1970); Jefferson v. Hackney, 406 U. S. 535, 542 (1972). It could impair the capacity of the state government to deal effectively with the critical problem of mounting welfare costs and the increasing financial dependency of many of its citizens. New York has a legitimate interest in encouraging those of its citizens who can work to do so, and thus contribute to the societal well-being in addition to their personal and family support. To the extent that the Work Rules embody New York’s attempt to promote self-reliance and civic responsibility, to assure that limited state welfare funds be spent on behalf of those genuinely incapacitated and most in need, and to cope with the fiscal hardships enveloping many state and local governments, this Court should not lightly interfere. The problems confronting our society in these areas are severe, and state governments, in cooperation with the Federal Government, must be allowed considerable latitude in attempting their resolution. This Court has repeatedly refused to void state statutory programs, absent congressional intent to pre-empt them. “If Congress is authorized to act in a field, it should manifest its intention clearly. It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed.” Schwartz v. Texas, 344 U. S. 199, 202-203 (1952). 414 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. See also Engineers v. Chicago, R. I. & P. R. Co., 382 U. S. 423, 429 (1966); Huron Portland Cement Co. v. City of Detroit, 362 U. S. 440, 446 (1960); Mintz v. Baldwin, 289 U. S. 346, 350 (1933); Savage v. Jones, 225 U. S. 501, 533 (1912). This same principle relates directly to state AFDC programs, where the Court already has acknowledged that States “have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.” King v. Smith, supra, at 318-319; Dandridge n. Williams, supra, at 478; Jefferson v. Hackney, supra, at 541. Moreover, at the time of the passage of WIN in 1967, 21 States already had initiated welfare work requirements as a condition of AFDC eligibility.¹⁴ If Congress had intended to pre-empt state plans and efforts in such an important dimension of the AFDC program as employment referrals for those on assistance, such intentions would in all likelihood have been expressed in direct and unambiguous language. No such expression exists, however, either in the federal statute or in the committee reports.¹⁵ Appellees argue, nonetheless, that Congress intended to pre-empt state work programs because of the comprehensive nature of the WIN legislation, its legislative his- ¹⁴ See Brief for the United States as Amicus Curiae 12. The information was derived from a survey of state plans conducted by the Department of Health, Education, and Welfare. ¹⁵ No express intention to eliminate co-existing state work programs appears either at the time of the original 1967 enactment oi WIN, see S. Rep. No. 744, 90th Cong., 1st Sess., 26, 145-157; H. R. Rep. No. 1030, 90th Cong., 1st Sess., 58-59, or at the time of the 1971 amendments, n. 6, supra. NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 415 405 Opinion of the Court tory,¹⁶ and the alleged conflicts between certain sections of the state and federal laws.¹⁷ We do not agree. We reject, to begin with, the contention that pre-emption is to be inferred merely from the comprehensive character of the federal work incentive provisions, 42 U. S. C. §§ 602 (a)(19), 630 et seq. (1970 ed. and Supp. I). The subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem, cf. Askew v. American Waterways, 411 U. S. 325 (1973). Given the complexity of the matter addressed by Congress in WIN, a detailed statutory scheme was both likely and appropriate, completely apart from any questions of pre-emptive intent. This would be especially the case when the federal work incentive provisions had to be sufficiently comprehensive to authorize and govern programs in States which had no welfare work requirements of their own as well as cooperatively in States with such requirements. Appellees also rely, as did the District Court, on the legislative history as supporting the view that “the WIN legislation is addressed to all AFDC recipients, leaving no employable recipients to be subject to state work rules.” Brief for Appellees 29. The court below pointed to no specific legislative history as supportive of its conclusion. Appellees do cite fragmentary statements ¹⁶ The court below asserted that the legislative history was supportive of a pre-emptive intent, 348 F. Supp., at 297. ¹⁷ In view of our remand, Part III, infra, we do not reach the issue of specific alleged conflicts. In sum, however, they are not sufficient, to indicate pre-emptive intent, especially in light of the impressive evidence to the contrary. 416 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. which we find unpersuasive. Reliance is placed, for example, on a statement in the Report of the House Ways and Means Committee on the WIN legislation as follows: “Under your committee’s bill, States would be required to develop a program for each appropriate relative and dependent child which would assure, to the maximum extent possible, that each individual would enter the labor force in order to become self-sufficient. To accomplish this, the States would have to assure that each adult in the family and each child over age 16 who is not attending school is given, when appropriate, employment counseling, testing, and job training.” H. R. Rep. No. 544, 90th Cong., 1st Sess., 16 (1967).¹⁸ (Emphasis supplied.) At best, this statement is ambiguous as to a possible congressional intention to supersede all state work programs.¹⁹ “Appropriateness,” as used in the Committee ¹⁸ Other citations to similar effect appear in Brief for Appellees 29-30. ¹⁹ Perhaps the most revealing legislative expressions confirm, subsequent to enactment, a congressional desire to preserve supplementary state work programs, not to supersede them. In the wake of the invalidation of the New York Work Rules by the three-judge District Court, members of the New York congressional delegation became concerned that the court had misconstrued the intent of Congress. The following colloquy occurred between Senator Buckley of New York and Senator Long of Louisiana, Chairman of the Finance Committee which considered WIN prior to approval by the Senate: “Mr. Buckley. Was it ever the intention of Congress at that time to have the provisions of the WIN statutes preempt the field of employment and training for ADC recipients? “Mr. Long. I did not have that in mind. . . . “Mr. Buckley. ... So far as the distinguished chairman is con NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 417 405 Opinion of the Court Report, may well mean “appropriateness” solely within the scope and confines of WIN. Furthermore, the language employed by Congress in enacting WIN must be considered in conjunction with its operational scope and level of funding, which, as will be shown, is quite limited with respect to the total number of employable AFDC recipients, Part II, infra. In sum, our attention has been directed to no relevant argument which supports, except in the most peripheral way, the view that Congress intended, either expressly or impliedly, to pre-empt state work programs. Far more would be required to show the “clear manifestation of [congressional] intention” which must exist before a federal statute is held “to supersede the exercise” of state action. Schwartz v., Texas, 344 U. S., at 202-203. cerned, was it ever the intention of at least this body to have a preemption in this field? “Mr. Long. It was never our intention to prevent a State from requiring recipients to do something for their money if they were employable. . . .” 118 Cong. Rec. 36819 (1972). In the House of Representatives, a similar dialogue took place between Congressman Carey of New York and Congressman Mills, Chairman of the House Ways and Means Committee, which considered the WIN program: “Mr. Carey of New York. . . . My specific question for the chairman has to do with the intent of the Congress in authorizing the WIN program in 1967 and in amendments to that program in subsequent years. It is my understanding that Congress intended, through the WIN program, merely to assist the States in the critical area of guiding able-bodied welfare recipients toward self-sufficiency—and not to supersede individual State programs designed to achieve the same end. Under this interpretation, New York and other States could operate their own programs as supplementary to the Federal WIN program. Is my understanding of the congressional intent in this area correct? "Mr. Mills of Arkansas. I agree with the interpretation of my friend, the gentleman from New York, on the matter, so long as the State program does not contravene the provisions of Federal law.” 118 Cong. Rec. 36931 (1972). 418 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. II Persuasive affirmative reasons exist in this case which also strongly negate the view that Congress intended, by the enactment of the WIN legislation, to terminate all existing state work programs and foreclose additional state cooperative programs in the future. We note, first, that WIN itself was not designed on its face to be all embracing. Federal work incentive programs were to be established only in States and political subdivisions “in which [the Secretary of Labor] determines there is a significant number of individuals who have attained age 16 and are receiving aid to families with dependent children. In other political subdivisions, he shall use his best efforts to provide such programs either within such subdivisions or through the provision of transportation for such persons to political subdivisions of the State in which such programs are established.” 42 U. S. C. §632 (a) (1970 ed., Supp. I). This section constitutes an express recognition that the federal statute probably would be limited in scope and application.²⁰ In New York, this has meant operation of WIN in only 14 of New York’s 64 social service districts, though these 14 districts do service approximately 90% of the welfare recipients in the State. Yet the Secretary of Labor has not authorized additional WIN programs for the other districts, resulting in a lack of federal job placement opportunities in the more lightly populated areas of States and in those without adequate ²⁰ The WIN guidelines, issued by the United States Department of Labor, provide, according to appellants, for establishment of WIN programs only in those areas where there are at least 1,100 potential WIN enrollees. Brief for Appellant N. Y. State Depts. 37. NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 419 405 Opinion of the Court transportation of potential enrollees to districts with WIN programs.²¹ Even in the districts where WIN does operate, its reach is limited. In New York, according to federal estimates, there are 150,000 WIN registrants for the current fiscal year, but the Secretary of Labor has contracted with the State to provide services to only 90,000 registrants, of whom the majority will not receive full job training and placement assistance.²² In fiscal 1971, New York asserts that “17,511 individuals were referred for participation in the WIN Program, but the Federal government allowed only 9,600 opportunities for enrollment.” ²³ California claims “over 122,000 employable AFDC recipients” last year, but only 18,000 available WIN slots.²⁴ It is evident that WIN is a partial program which stops short of providing adequate job and training opportunities for large numbers of state AFDC recipients. It would be incongruous for Congress on the one hand to promote work opportunities for AFDC recipients and on the other to prevent States from undertaking supplementary efforts toward this very same end. We cannot ²¹ See id., at 37-38. Title 42 U. 8. C. § 602 (a) (19) (A) (iii) (1970 ed., Supp. I) , may also have contemplated limited application of WIN, since it exempts from WIN registration “a person so remote from a work incentive project that his effective participation is precluded.” ²² See Brief for the United States as Amicus Curiae 15, citing U. S. Dept, of Labor, Manpower Administration, contract No. 36-2-0001-188, modification No. 3, June 30, 1972. The Government contends further that “the current level of WIN funding is such that no more than one-fifth of the WIN registrants will receive the full job training and placement assistance contemplated by the Act.” Ibid. ²³ Brief for Appellant N. Y. State Depts. 38, 17. ²⁴ Brief for California as Amicus Curiae 3. 420 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. interpret federal statutes to negate their own stated purposes. The significance of state supplementation is illustrated by the experience in New York, where the Work Rules have aided the objectives of federal work incentives: from July 1 through September 30, 1971, the first months of the Work Rules’ operation, the State Employment Service claimed job placements for approximately 9,376 recipients.²⁵ Moreover, the Department of Health, Education, and Welfare, the agency of Government responsible for administering the Federal Social Security Act—including reviewing of state AFDC programs—has never considered the WIN legislation to be pre-emptive. HEW has followed consistently the policy of approving state plans containing welfare work requirements so long as those requirements are not arbitrary or unreasonable.²⁶ Congress presumably knew of this settled administrative policy at the time of enactment of WIN, when 21 States had welfare work programs. Subsequent to WIN’s passage, HEW has continued to approve state work requirements. Pursuant to such approval, New York has re- ²⁵ Brief for Appellant N. Y. State Depts. 15; App. 192. Appellants claim further that from January to June 1972, “there were 2,657 job placements under the WIN Program,” and 5,323 placements under the Work Rules. Id., at 18. These figures must be qualified, however, with the observation that many of the job placements are temporary; that many of those placed under the Work Rules may have been recipients of forms of assistance other than AFDC (while the number of WIN placements counts only AFDC recipients); and that single recipients may have been referred or placed—and thus statistically tabulated—on more than one occasion. See Brief for Appellees 33-36. None of these observations, however, obscures the basic fact that the Work Rules materially contribute toward attainment of the objective of WIN in restoring employable AFDC recipients as wage-earning members of society. See 42 U. S. C. § 630 (1970 ed., Supp. I). ²⁶ See Brief for the United States as Amicus Curiae 3, filed by the Solicitor General and joined in by the General Counsel of HEW. NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 421 405 Opinion of the Court ceived federal grants-in-aid for the operation of its AFDC plan, including its work provisions.²⁷ In interpreting this statute, we must be mindful that “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . . Red Lion Broadcasting Co. n. FCC, 395 U. S. 367, 381 (1969); Dandridge v. Williams, 397 U. S., at 481-482. In this case, such indications are wholly absent. New York, furthermore, has attempted to operate the Work Rules in such a manner as to avoid friction and overlap with WIN. Officials from both the State Department of Labor and a local Social Service Department testified below that every AFDC recipient appropriate for WIN was first referred there, that no person was to be referred to the state program who was participating in WIN, and that only if there was no position available for him under WIN, was a recipient to be referred for employment pursuant to state statute.²⁸ Where coordinate state and federal efforts exist within a complementary administrative framework, and in the pursuit of common purposes, the case for federal pre-emption becomes a less persuasive one. In this context,, the dissenting opinion’s reliance on Townsend v. Swank, 404 U. S. 282 (1971), Carleson v. Remillard, 406 U. S. 598 (1972), and King v. Smith, 392 U. S. 309 (1968), is misplaced. In those cases it was clear that state law excluded people from AFDC benefits who the Social Security Act expressly provided would be eligible. The Court found no room either in the Act’s ²⁷ Ibid. ²⁸ Excerpts from depositions of Nelson Hopper, Director of the Employment Service Bureau of the New York State Dept, of Labor, and George Demmon, Senior Employment Counsellor, Erie County Dept, of Social Services, App. 226, 234. See also Brief for Appellant N. Y. State Depts. 17, and Tr. of Oral Arg. 7. 422 OCTOBER TERM, 1972 Opinion of the Court 413 U. S. language or legislative history to warrant the States’ additional eligibility requirements. Here, by contrast, the Act allows for complementary state work incentive programs and procedures incident thereto—even if they become conditions for continued assistance. Such programs and procedures are not necessarily invalid, any more than other supplementary regulations promulgated within the legitimate sphere of state administration. See Wyman v. James, 400 U. S. 309 (1971); Snell v. Wyman, 281 F. Supp. 853 (SDNY), aff’d, 393 U. S. 323 (1969). See also Dandridge v. Williams, supra; Jefferson v. Hackney, 406 U. S. 535 (1972). Ill We thus reverse the holding below that WIN preempts the New York Work Rules. Our ruling establishes the validity of a state work program as one means of helping AFDC recipients return to gainful employment. We do not resolve, however, the question of whether some particular sections of the Work Rules might contravene the specific provisions of the Federal Social Security Act. This last question we remand to the court below. That court did not have the opportunity to consider the issue of specific conflict between the state and federal programs, free from its misapprehension that the Work Rules had been entirely pre-empted. Further, the New York Legislature amended the Work Rules in 1972 to provide, among other things, for exemption of persons engaged in full-time training and vocational rehabilitation programs from the reporting and check pickup requirements (N. Y. Laws 1972, c. 683), for monthly rather than semi-monthly payments of shelter allowances (id., c. 685) and, most significantly, for a definition of an “employable” AFDC recipient which is claimed by New York to be identical to that now used NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 423 405 Marshall, J., dissenting under WIN (id., c. 941). Inasmuch as the court below did not have the opportunity to consider the 1972 amendments as they related to the issue of potential state-federal conflict, the remand should afford it. We deem it unnecessary at the present time to intimate any view on whether or to what extent particular provisions of the Work Rules may contravene the purposes or provisions of WIN. Such a determination should be made initially by the court below, consistent with the principles set forth in this opinion.²⁹ The judgment of the three-judge District Court is reversed and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting. Because the Court today ignores a fundamental rule for interpreting the Social Security Act, I must respectfully dissent. As we said in Townsend v. Swank, 404 U. S. 282, 286 (1971), “in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state ²⁹ In considering the question of possible conflict between the state and federal work programs, the court below will take into account our prior decisions. Congress “has given the States broad discretion,” as to the AFDC program, Jefferson v. Hackney, 406 U. S. 535, 545 (1972); see also Dandridge v. Williams, 397 U. S., at 478; King v. Smith, 392 U. S. 309, 318-319 (1968), and “[s]o long as the State’s actions are not in violation of any specific provision of the Constitution or the Social Security Act,” the courts may not void them. Jefferson, supra, at 541. Conflicts, to merit judicial rather than cooperative federal-state resolution, should be of substance and not merely trivial or insubstantial. But if there is a conflict of substance as to eligibility provisions, the federal law of course must control. King v. Smith, supra; Townsend n. Swank, 404 U. S. 282 (1971); Carleson v. Remillard, 406 U. S. 598 (1972). 424 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.” See also King v. Smith, 392 U. S. 309 (1968); Carleson v. Remillard, 406 U. S. 598, 600 (1972). The New York Work Rules fall squarely within this statement; they clearly exclude persons eligible for assistance under federal standards, and it could hardly be maintained that they did not impose additional conditions of eligibility.¹ For example, under federal standards, it is irrelevant to a determination of eligibility that a recipient has or has not filed every two weeks a certificate from the local employment office that no suitable employment opportunities are available, yet under the Work Rules, a recipient who fails to file such a certificate is “deemed” to have refused to accept suitable employment, and so is not eligible for assistance. N. Y. Soc. Serv. Law §131 (4)(a) (Supp. 1971-1972).² Thus, according to the rules of interpretation we have heretofore followed, the proper inquiry is whether the Social Security Act or its legislative history clearly shows congressional authorization for state employment requirements other than those involved in WIN.³ ¹ Appellants state that the Work Rules do not “constitute an additional condition of eligibility for public assistance.” Reply Brief for Appellant N. Y. State Depts. 9. The arguments they present, however, relate entirely to the purported congressional authorization for additional conditions of this sort. ² The federal conditions of eligibility relating to registration for employment are found in 42 U. S. C. §602 (a) (19) (1970 ed., Supp. I). ³ The United States, as amicus curiae, argues that the rule stated in Townsend v. Swank, 404 U. S. 282 (1971), does not fairly characterize the course of our interpretation of the Social Security Act. It relies primarily on the Court’s decision in Wyman v. James, NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 425 405 Marshall, J., dissenting The answer is that neither the Act nor its legislative history shows such an authorization. The only relevant work-related conditions of eligibility in the Act are found at 42 U. S. C. § 602 (a) (19) (1970 ed., Supp. I). In addition to exempting certain persons from registration for and participation in WIN,⁴ the Act permits States to 400 U. S. 309 (1971). But, for reasons that escaped me at the time, see id., at 345 n. 7, the Court did not address the statutory argument. Wyman does not, therefore, express any limitation on the rule in Townsend. Similarly, our summary affirmance in Snell n. Wyman, 393 U. S. 323 (1969), where the District Court did not have before it our opinion in King v. Smith, 392 U. S. 309 (1968), is at least offset by the summary affirmances in Carleson n. Taylor, 404 U. S. 980 (1971), Juras v. Meyers, 404 U. S. 803 (1971), and Weaver v. Doe, 404 U. S. 987 (1971). The United States’ argument from authority is weak, and its argument as a matter of logic is even weaker. The United States suggests that, while States may not narrow the class of persons eligible for assistance under federal standards, they may impose additional conditions of eligibility in pursuit of independent state policies. This distinction will not withstand analysis, for it makes decision turn on meaningless verbal tricks. One could just as easily find an independent state policy in Townsend as a narrowing of the class of eligible persons: the State might have a policy of minimizing subsidies to persons with a clear prospect of future income well above the poverty level, by denying assistance to persons attending four-year colleges while granting it to those attending vocational training schools. Such a system of subsidies would almost certainly be held constitutional under the Due Process Clause, and the position of the United States seems to be that States may impose conditions of eligibility, not squarely in conflict with federal standards, in the pursuit of some constitutional state interest. ⁴ For example, no child under 16 or attending school full time need register. 42 U. S. C. § 602 (a) (19) (A) (i) (1970 ed., Supp. I). I take it that the Court would find a conflict “of substance,” ante, at 423 n. 29, between this provision and a state work requirement applicable to children under 16. For the legislative history is clear that Congress, in defining the work-related conditions of eligibility, “spell [ed] out those people we think should not be required to go to 426 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. disregard the needs of persons otherwise eligible for assistance who “have refused without good cause to participate under a work incentive program . . . or . . . to accept employment in which he is able to engage.” 42 U. S. C. § 602 (a)(19)(F) (1970 ed., Supp. I). The Act thus makes actual refusal to participate in a WIN Program or to accept employment a permissible ground for denying assistance. In contrast, New York has adopted the none-too-subtle technique of “deeming” persons not to have accepted employment because they have not, for example, obtained a certain certificate from the local employment office every two weeks. “Deeming” is a familiar legal device to evade applicable requirements by saying that they have been satisfied when they have not in fact been satisfied. But the federal requirement, which the State may not alter without clear congressional authorization,⁵ requires an actual refusal to participate in a WIN Program or to accept employment, not a refusal to participate in some other program or a fictitious refusal of employment.⁶ The legislative history of the Social Security Act confirms this interpretation, for whenever Congress legislated work,” as Senator Long put it. 113 Cong. Rec. 32593 (1967). See also S. Rep. No. 744, 90th Cong., 1st Sess., 26. The United States’ position would be, I assume, that such a provision would narrow the class of persons eligible for assistance. ⁵ Appellants argue that “the provision of section 602 (a) (10) that aid be furnished 'to all eligible individuals’ when read within the context of the Social Security Act means individuals 'eligible’ under State requirements, not Federal.” Reply Brief for Appellant N. Y. State Depts. 13. We expressly rejected this argument in Townsend, 404 U. S., at 286. ⁶ The States may, of course, adopt procedures necessary to insure that offers of employment are transmitted to recipients of public assistance. It hardly needs extended argument, however, to show that the New York Work Rules, taken as a whole, are not necessary to do that. NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 427 405 Marshall, J., dissenting with respect to work requirements, it focused on actual refusals to accept employment or to participate in certain special programs clearly authorized by Congress. At no time has Congress authorized States to adopt other work-referral programs or to make refusal to participate in such programs a condition of eligibility, even under the guise of “deeming” such a refusal a refusal to accept employment. At its inception, the program of Aid to Dependent Children was designed to lessen somewhat the burden of supporting such children. The program provided assistance to children who had been deprived of parental support by reason of the absence of a parent. 49 Stat. 629 (1935). Assistance was provided to supply the needs of such children, thus “releas[ing the parent] from the wage-earning role.” H. R. Doc. No. 81, 74th Cong., 1st Sess., 30 (1935). See also H. R. Rep. No. 615, 74th Cong., 1st Sess., 10 (1935). Thus, the program’s purposes were in many ways inconsistent with a requirement that the parent leave the home to accept employment. Yet, in operation, the original program failed to provide sufficient inducement for the parent to remain at home, since the amount of assistance was measured solely by the child’s needs. In order further to relieve the pressures on the parent to leave the home and accept work, Congress amended the Act in 1950 so that the aid would include payments “to meet the needs of the relative with whom any dependent child is living.” 42 U. S. C. §606 (b)(1). Until 1961, then, the sole emphasis of the Social Security Act’s provisions for assistance to dependent children was on preserving the integrity of the family unit.⁷ ⁷ In 1956, Congress required States to adopt plans to provide social services to strengthen family life. Pub. L. 880, §312, 70 Stat 848. 428 OCTOBER TERM, 1972 Marshall, J., dissenting 413 U. S. In that year, Congress expanded the definition of dependent child to include children deprived of parental support by reason of the unemployment of a parent. 42 U. S. C. § 607. Families with two parents present could, for the first time, receive assistance, and one parent could leave the home to work without impairing the integrity of the family unit. Congress therefore required States participating in the program for aid to families with an unemployed parent to deny assistance under this provision to individuals who refused to accept bona fide offers of employment. Pub. L. 87-31, 75 Stat. 76 (1961). Refusal of actual offers of employment was clearly the contemplated condition. See S. Rep. No. 165, 87th Cong., 1st Sess., 3 (1961). Congress then developed this concept, permitting States to establish “Community Work and Training Programs” of work on public projects, Pub. L. 87-543, § 105, 76 Stat. 186, rendered inapplicable by Pub. L. 90-248,81 Stat. 892. Refusal to accept a work assignment on such a project without good cause would be a ground for denial of public assistance. See H. R. Rep. No. 1414, 87th Cong., 2d Sess., 15 (1962). When Congress established WIN, it did not abandon its previous policies. Recipients of public assistance could be required only to accept bona fide offers of employment or placement in specified programs. There is no indication whatsoever in the legislative history that Congress intended to permit States to deny assistance because potential recipients had refused to participate in programs not supervised by the Secretary of Labor, as WIN Programs are. The parameters of the WIN Program were designed to accommodate Congress’ dual interests p guaranteeing the integrity of the family and in maximizing the potential for employment of recipients of public assistance. Without careful federal supervision, of the sort contemplated by the delegation to NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 429 405 Marshall, J., dissenting the Secretary of Labor to establish testing and counseling services and to require that States design employability plans, 81 Stat. 885, state work programs might upset the accommodation that Congress sought. The Work Incentive Program was thus a carefully coordinated system, whose individual parts fit into an integrated whole. It is hardly surprising that Congress did not expressly or impliedly authorize States to develop independent work programs, since the WIN Program represented Congress’ recognition that such programs had to be kept under careful scrutiny if the variety of goals Congress sought to promote were to be achieved.⁸ I believe that the Court seriously misconceives the purposes of the federal programs of public assistance, in its apparent belief that Congress had the sole purpose of promoting work opportunities, a purpose that precluding additional state programs would negate. Ante, at 418-420. ⁸ The original proposal for a Work Incentive Program would have permitted a State to operate Community Work and Training Programs only if a federal WIN Program were not operated in the State. H. R. 5710, 90th Cong., 1st Sess., §204 (a). Thus, either a WIN Program or a state program could operate within a State, but not both. In the final version, the pre-existing authorization for Community Work and Training Programs was eliminated, and the Federal WIN Program was to be implemented in every State. Again, Congress recognized that federal and state work programs could not coexist. The 1971 Amendments to the WIN Program, Pub. L. 92-223, 85 Stat. 802, further demonstrate Congress’ desire to have federal control of work requirements. Each State must estabfish a “separate administrative unit” to provide social services only in connection with WIN. 42 U. S. C. § 602 (a) (19) (G) (1970 ed., Supp. I). It would be anomalous for Congress to require the States to devote substantial resources to such a unit in connection with the WIN Program, and yet to permit the States to operate independent work programs using federal funds without providing the special services that Congress thought so important. 430 OCTOBER TERM, 1972 Marshall, J., dissenting 413U.S. Instead, Congress has consistently indicated its desire to adopt programs that will enhance the employability of recipients of public assistance while maintaining the integrity of families receiving assistance. A work-referral program can do this only if it is regulated, both as to the persons required to participate and as to the terms on which they must participate. And Congress has consistently recognized that such regulation requires close federal supervision of work programs. In my view, this course of legislation, which is not mentioned by the Court, is neither “ambiguous,” “fragmentary,” nor “peripheral,” ante, at 415, 416, 417. No matter how it is viewed, however, one cannot fairly say that the Social Security Act or its legislative history clearly evidences congressional authorization for making participation in state work programs a condition of eligibility for public assistance.⁹ ⁹ It is unnecessary for me to discuss at any length the Court’s analysis of the pre-emption problem. I note, as the Court does, ante, at 411 n. 9, that this case does not present the classic question of pre-emption, that is, does the enactment of a statute by Congress preclude state attempts to regulate the same subject? There is no question that New York may impose whatever work requirements it wishes, consistent only with constitutional limitations, when it gives public assistance solely from state funds. See ante, at 412. The question here relates to the conditions that Congress has placed on state programs supported by federal funds. The distinction is not without importance, for it makes inapposite the strictures in our earlier cases and relied on by the Court, against lightly interfering with state programs. Ante, at 413-414. For we must, of course, be cautious when we prevent a State from regulating in an area where, in the absence of congressional action, it has important interests. Holding that the Federal WIN Program is the exclusive method of imposing work requirements in conjunction with federally funded programs of public assistance would have no such impact; New York would remain free to operate public assistance programs with state funds, with whatever work requirements it chose. NEW YORK DEPT. OF SOCIAL SERVICES v. DUBLINO 431 405 Marshall, J., dissenting The policy of clear statement¹⁰ in Townsend serves a useful purpose. It informs legislators that, if they wish to alter the accommodations previously arrived at in an Act of major importance, they must indicate clearly that wish, since what may appear to be minor changes of narrow scope may in fact have ramifications throughout the administration of the Act. A policy of clear statement insures that Congress will consider those ramifications,¹¹ but only if it is regularly adhered to. Finally, it is particularly appropriate to require clear statement of authorization to impose additional conditions of eligibility for public assistance. Myths abound in this area. It is widely yet erroneously believed, for ¹⁰ See H. Hart & A. Sacks, The Legal Process 1240 (tent. ed. 1958). ¹¹ In this connection, I cannot let pass without comment the extraordinary use the Court makes of legislative “history,” in relying on exchanges on the floor of the House and Senate that occurred after the decision by the District Court in this case. Ante, at 416-417, n. 19. Although reliance on floor exchanges has been criticized in this Court, Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 395-397 (1951) (Jackson, J., concurring), there is some force to the more generally accepted proposition that such exchanges, particularly when sponsors of a bill or committee chairmen are involved, are relevant to a determination of the purpose Congress sought to achieve in enacting the bill. United States v. St. Paul, M. 1 T Sh 1 a. X 1 S £ 1 a b 1 or a 1 a c «2 a tK s a d CD c o ¹ Includes No. 9 Orig. (pending) ³ Includes 4 which were argued in O.T. 1971 ³ Includes A-483 and No. 50 Orig. ⁴ Includes A-483 and No. 9 Orig. July 18, 1973 924 INDEX ABSENCE FROM DUTY STATION. See Courts-Martial; Procedure, 1. ABUSE OF DISCRETION. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. ABUSING FOOD STAMP PROGRAM. See Constitutional Law, II, 1-2; Food Stamp Act, 1-2. ADMINISTRATIVE INSPECTIONS. See Constitutional Law, IV, 11-12; V, 1. ADMISSION TO THE BAR. See Constitutional Law, III, 1. ADULT AUDIENCES. See Constitutional Law, IV, 16; Evidence, 1-2; Obscenity, 6, 16. “ADULT” BOOKS. See Constitutional Law, IV, 16; Evidence, 1; Obscenity, 6. ADVANCEMENT OF RELIGION. See Constitutional Law, III, 2; IV, 3-5, 7-14. ADVERSARY HEARINGS. See Constitutional Law, IV, 18; Obscenity, 4, 8. ADVERTISING. See Constitutional Law, IV, 1-2, 20. AFFIDAVITS. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. AGRICULTURE DEPARTMENT. See Constitutional Law, II, 1-2; Food Stamp Act, 1-2. AID TO EDUCATION. See Constitutional Law, III, 2-4; IV, 3-14; Relief. AID TO FAMILIES WITH DEPENDENT CHILDREN. See Federal-State Relations, 1-2; Pre-emption; Social Security Act. AID TO PRIVATE SCHOOLS. See Constitutional Law, III, 2-4; IV, 3-14; Relief. AID TO RELIGION. See Constitutional Law, III, 2; IV, 3-5, 7-14. AIRLINE PILOTS. See Taxes. ALIENS. See Constitutional Law, III, 1, 5; Government Employees, 3-4. 925 926 INDEX ALLOCATIONS. See Taxes. ALLOTMENTS. See Constitutional Law, IV, 7-10. ALTERATION OF VOTING QUALIFICATIONS OR PROCE- DURES. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. ANGLOS. See School Desegregation, 1-3. ANTISOCIAL BEHAVIOR. See Constitutional Law, IV, 15-16; Evidence, 1-2; Obscenity, 2-3, 6,16. APPEALS. See also Procedure, 2, 4; Voting Rights Act of 1965. Voting Rights Act of 1965—Unsuccessful intervenors.—The words “any appeal” in § 4 (a) of the Act encompass an appeal by a would-be, but unsuccessful, intervenor, and appellants’ appeal properly lies to this Court. NAACP v. New York, p. 345. APPEALS TO PRURIENT INTEREST. See Constitutional Law, IV, 19; Obscenity, 7,10, 14. ASSISTANCE OF COUNSEL. See Constitutional Law, VII. ASSUMPTIONS. See Constitutional Law, IV, 16; Evidence, 1-2; Obscenity, 2-3, 6. ATTORNEY GENERAL. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. ATTORNEYS. See Constitutional Law, III, 1; VII. AUTOMOBILE ACCIDENTS. See Constitutional Law, V, 2, 4. AUTOMOBILE SEARCHES. See Constitutional Law, V, 1-2. AUTOMOBILE THEFT. See Courts-Martial; Procedure, 1. BAPTIST-CONTROLLED COLLEGE. See Constitutional Law, IV, 11-12. BAR EXAMINATIONS. See Constitutional Law, III, 1. BOND PAYMENTS. See Constitutional Law, IV, 11-12. BOOKS. See Constitutional Law, III, 3-4; IV, 6, 16; Obscenity, 6, 11, 13; Relief. BORDER PATROL. See Constitutional Law, IV, 1. BURDEN OF PROOF. See School Desegregation, 1, 3. BUSINESS EXPENSES. See Taxes. CALIFORNIA. See Constitutional Law, IV, 16, 19; Evidence, 1; Obscenity, 2,6,7,10,13-14, 17 a INDEX 927 CERTIFICATION PROCEDURE. See Constitutional Law, III, 3-4, 6; Relief. CHICAGO POLICEMAN. See Constitutional Law, V, 2, 4. CHILDREN OF WEALTHY PARENTS. See Constitutional Law, II, 1-2; Food Stamp Act, 1-2. CHURCH-AFFILIATED SCHOOLS. See Constitutional Law, III, 2-4, 7-14. CHURCH-STATE ENTANGLEMENT. See Constitutional Law, * III, 2-4, 7-14. CITIZENSHIP. See Constitutional Law, III, 1, 5; Government Employees, 3-4. CITY SCHOOLS. See School Desegregation, 1-3. CIVIL ACTIONS. See Obscenity, 8, 11; Procedure, 3. CIVIL DISORDERS. See Justiciability; National Guard. CIVIL SERVANTS. See Constitutional Law, III, 5; Government Employees, 1-6. CIVIL SERVICE ACT. See Government Employees, 1-2. CIVIL SERVICE COMMISSION. See Government Employees, 1-2. CIVIL SERVICE LAW. See Constitutional Law, III, 5; Government Employees, 3-4. CIVIL TRIALS. See Constitutional Law, VI; Juries. CLASS ACTIONS. See Constitutional Law, II, 1-2; Food Stamp Act, 1-2. CLASSIFICATIONS. See Constitutional Law, II, 2; III, 1; Food Stamp Act, 1. CLASSIFIED CIVIL SERVICE. See Constitutional Law, III, 5; Government Employees, 1-6. COLLEGE FACILITIES. See Constitutional Law, IV, 11-12. COLLEGE STUDENTS. See Constitutional Law, II, 2; Food Stamp Act, 1; Justiciability; National Guard. COLOR SLIDES. See Constitutional Law, I, 1; Obscenity, 9. COMMERCE CLAUSE. See Constitutional Law, I, 1-2; Obscenity, 1, 9. COMMERCIAL-SPEECH DOCTRINE. See Constitutional Law, IV, 1-2. 928 INDEX COMMERCIAL THEATERS. See Constitutional Law, IV, 15, 17-18; V, 3; Evidence, 2; Obscenity, 3-5,12,16. COMMON CARRIERS. See Constitutional Law, I, 2; Obscenity, 1. COMMUNITY STANDARDS. See Constitutional Law, IV, 16, 19; Evidence, 1-2; Obscenity, 2-3, 7,10,14. COMMUTING EXPENSES. See Taxes. COMPETITIVE SERVICE. See Constitutional Law, III, 5; Government Employees, 1-6. CONCLUSIVE PRESUMPTIONS. See Constitutional Law, II, 2; III, 1; Food Stamp Act, 1. CONDITION FOR RECEIVING AID. See Federal-State Relations, 1-2; Pre-emption; Social Security Act. CONNECTICUT. See Constitutional Law, III, 1. CONSENTING ADULTS. See Constitutional Law, IV, 16; Evidence, 1-2; Obscenity, 6. CONSTITUTIONAL LAW. See also Courts-Martial; Evidence, 1-2; Food Stamp Act, 1-2; Government Employees, 3-6; Juries; Obscenity, 1-2, 4-7, 9, 12, 14, 17; Procedure, 3; Relief; School Desegregation, 1-3. I. Commerce Clause. 1. Obscenity—Importation of contraband.—Congress, which has broad powers under the Commerce Clause to prohibit importation into this country of contraband, may constitutionally proscribe the importation of obscene matter, notwithstanding that the material is for the importer’s private, personal use and possession. United States v. 12 200-ft. Reels Film, p. 123. 2. Obscenity—Privacy.—Congress has the power to prevent obscene material, which is not protected by the First Amendment, from entering the stream of commerce. The zone of privacy that Stanley v. Georgia, 394 U. S. 557, protected does not extend beyond the home. United States v. Orito, p. 139. II. Due Process. 1. Food Stamp Act—Tax deductions.—Tax deduction taken for benefit of parent in a prior year is not a rational measure of need of a different household with which the child of the tax-deducting parent lives, and the administration of the Act allows no hearing to show that the tax deduction is irrelevant to the need of the household. Section 5 (b) of the Act therefore violates due process. U. S. Dept, of Agriculture v. Murry, p. 508. INDEX 929 CONSTITUTIONAL LAW—Continued. 2. Food Stamp Act—Unrelated persons.—The legislative classification here involved, excluding households whose members are not “all related to each other,” cannot be sustained, the classification being clearly irrelevant to stated purposes of the Act and not rationally furthering any other legitimate governmental interest. In practical operation, the Act excluded not those who are “likely to abuse the program” but, rather, only those who so desperately need aid that they cannot even afford to alter their living arrangements so as to retain their eligibility. U. S. Dept, of Agriculture v. Moreno, p. 528. III. Equal Protection of the Laws. 1. Admission to the bar—Aliens.—Connecticut’s exclusion of aliens from practice of law violates the Equal Protection Clause of the Fourteenth Amendment. Classifications based on alienage, being inherently suspect, are subject to ’close judicial scrutiny, and here the State through appellee bar committee has not met burden of showing the classification to have been necessary to vindicate State’s undoubted interest in maintaining high professional standards. In re Griffiths, p. 717. 2. Establishment Clause—Aid to sectarian schools.—Pennsylvania’s Parent Reimbursement Act for Nonpublic Education is not severable, but even if it were clearly severable, valid aid to nonpublic, nonsectarian schools can provide no basis for sustaining aid to sectarian schools. The Equal Protection Clause cannot be relied upon to sustain a program violative of the Establishment Clause. Sloan v. Lemon, p. 825. 3. Mississippi textbook loan program—Private schools.—Private schools have the right to exist and to operate, but the State is not required by the Equal Protection Clause to provide assistance to private schools equal to that it provides to public schools without regard to whether private schools discriminate on racial grounds. Norwood v. Harrison, p. 455. 4. Mississippi textbook loan program—Tangible school assistance.— Free textbooks, like tuition grants directed to students in private schools, are a form of tangible financial assistance benefiting schools themselves, and the State’s constitutional obligation requires it to avoid not only operating old dual system of racially segregated schools but also providing tangible aid to schools that practice racial or other invidious discrimination. Norwood v. Harrison, p. 455. 5. New York Civil Service Law—Citizenship.—Section 53 of the Law violates the Equal Protection Clause of the Fourteenth Amendment since, in the context of New York’s statutory civil service scheme, it sweeps indiscriminately and is not narrowly limited to the 930 INDEX CONSTITUTIONAL LAW—Continued. accomplishment of substantial state interests. The “special public interest” doctrine has no applicability to this case. Sugarman v. Dougall, p. 634. IV. First Amendment. 1. Commercial advertising—Freedom of expression.—The advertisements here, which did not implicate the newspaper’s freedom of expression or its financial viability, were “purely commercial advertising,” which is not protected by the First Amendment. Pittsburgh Press Co. v. Human Rel. Comm’n, p. 376. 2. Commercial speech—Employment discrimination.—Petitioner’s argument against maintaining the Valentine v. Chrestensen, 316 U. S. 52, distinction between commercial and other speech is unpersuasive in the context of a case like this, where the regulation of the want ads was incidental to and coextensive with the regulation of employment discrimination. Pittsburgh Press Co. v. Human Rel. Comm’n, p. 376. 3. Establishment Clause—Aid to nonpublic schools—Legislative purpose.—The propriety of legislature’s purpose may not immunize from further scrutiny a law that either has a primary effect that advances religion, or that fosters excessive Church-State entanglement. Committee for Public Education v. Nyquist, p. 756. 4. Establishment Clause—Entanglement with religion.—Because the challenged sections of New York law have the impermissible effect of advancing religion, it is not necessary to consider whether such aid would yield an entanglement with religion. But it should be noted that assistance of the sort involved here carries grave potential for entanglement in the broader sense of continuing and expanding political strife over aid to religion. Committee for Public Education v. Nyquist, p. 756. 5. Establishment Clause—Maintenance and repair of nonpublic schools.—Maintenance and repair provisions of New York statute violate the Establishment Clause because their inevitable effect is to subsidize and advance the religious mission of sectarian schools. This section does not properly guarantee the secularity of state aid by limiting the percentage of assistance to 50% of comparable aid to public schools. Such statistical assurances fail to provide an adequate guarantee that aid will not be utilized to advance the religious activities of sectarian schools. Committee for Public Education v. Nyquist, p. 756. INDEX 931 CONSTITUTIONAL LAW—Continued. 6. Establishment Clause—Mississippi textbook loan program.— Assistance carefully limited so as to avoid prohibitions of the “effect” and “entanglement” tests may be confined to the secular functions of sectarian schools and does not substantially promote religious mission of those schools in violation of the Establishment Clause. In this case, however, legitimate educational function of private discriminatory schools cannot be isolated from their alleged discriminatory practices; discriminatory treatment exerts pervasive influence on entire educational process. Establishment Clause permits greater degree of state assistance to sectarian schools than may be given to private schools which engage in discriminatory practices. Norwood v. Harrison, p. 455. 7. Establishment Clause—New York’s plan to reimburse nonpublic schools.—New York’s statute constitutes an impermissible aid to religion contravening the Establishment Clause, since no attempt is made and no means are available to assure that internally prepared tests, which are “an integral part of the teaching process,” are free of religious instruction and avoid inculcating students in the religious precepts of the sponsoring church. Levitt v. Committee for Public Education, p. 472. 8. Establishment Clause—New York’s plan to reimburse private schools.—The inquiry is not whether the State should be permitted to pay for any “mandated” activity, but whether the challenged state aid has the primary purpose or effect of advancing religion or religious education or whether it leads to excessive entanglement by the State in the affairs of religious institutions. Levitt v. Committee for Public Education, p. 472. 9. Establishment Clause—Reimbursement of nonpublic school tuition.—There is no constitutionally significant difference between Pennsylvania’s tuition grant scheme, with its intended consequence of preserving and supporting religion-oriented institutions, and New York’s tuition reimbursement program held violative of the Establishment Clause in Committee for Public Education v. Nyquist, ante, p. 756. Sloan v. Lemon, p. 825. 10. Establishment Clause—Reimbursing private schools for “secular” services.—The Act provides only for a single per-pupil allotment for a variety of services, some secular and some potentially religious, and the courts cannot properly reduce that allotment to correspond to the actual costs of performing reimbursable secular services, as that is a legislative and not a judicial function. Levitt v. Committee for Public Education, p. 472. 932 INDEX CONSTITUTIONAL LAW—Continued. 11. Establishment Clause—South Carolina Educational Facilities Act.—The Act, as construed by the South Carolina Supreme Court, does not, under guidelines of Lemon v. Kurtzman, 403 U. S. 602, 612-613, violate the Establishment Clause. The purpose of the Act is secular, the benefits of the statute being available to all institutions of higher learning in the State, whether or not they have a religious affiliation. The Act does not have the primary effect of advancing or inhibiting refigion. The college involved has no significant sectarian orientation and the project must be confined to a secular purpose, with the lease agreement, enforced by inspection provisions, forbidding religious use. Hunt v. McNair, p. 734. 12. Establishment Clause—South Carolina Educational Facilities Act—Entanglement with religion.—The Act does not foster an excessive entanglement with religion. The record here does not show that religion so permeates the college that inspection by the Educational Facilities Authority to insure that the project is not used for religious purposes would necessarily lead to such entanglement. Authority’s power to participate in certain management decisions also does not have that effect, in view of narrow construction by State Supreme Court, limiting such power to insuring that college’s fees suffice to meet bond payments. Absent default, lease agreement would leave full responsibility with college regarding fees and general operations. Hunt v. McNair, p. 734. 13. Establishment Clause—Tax benefits to parents of nonpublic school students.—System of providing income tax benefits to parents of children attending New York’s nonpublic schools violates the Establishment Clause because, like tuition reimbursement program, it is not sufficiently restricted to assure that it will not have the impermissible effect of advancing the sectarian activities of religious schools. Committee for Public Education v. Nyquist, p. 756. 14. Establishment Clause—Tuition reimbursement grants.—Tuition reimbursement grants, if given directly to sectarian schools, would violate the Establishment Clause, and the fact that they are delivered to parents rather than the schools does not compel a contrary result, as the effect of the aid is unmistakably to provide financial support for nonpublic, sectarian institutions. The State must maintain an attitude of “neutrality,” neither “advancing” nor “inhibiting” religion, and it cannot, by designing a program to promote the free exercise of religion, erode the limitations of the Establishment Clause. Committee for Public Education v. Nyquist, p. 756. INDEX 933 CONSTITUTIONAL LAW—Continued. 15. Freedom of speech—Obscenity.—Obscene material is not speech entitled to First Amendment protection. Paris Adult Theatre I v. Slaton, p. 49. 16. Freedom of the press—Obscenity.—Merely because it has no pictorial content, obscene material in book form is not entitled to First Amendment protection. A State may control commerce in such a book, even distribution to consenting adults, to avoid the deleterious consequences it can reasonably conclude (conclusive proof is not required) result from the continuing circulation of obscene literature. Kaplan v. California, p. 115. 17. Obscene films—Prior restraint.—The seizure by the sheriff, without the authority of a constitutionally sufficient warrant, was unreasonable under Fourth and Fourteenth Amendment standards. Seizure is not unreasonable simply because it would have been easy to secure a warrant, but rather because prior restraint of right of expression, whether by books or films, calls for higher hurdle of reasonableness. This case does not present an exigent circumstance in which police action must be “now or never” to preserve evidence of crime, and where it may be reasonable to permit action without prior judicial approval. Roaden v. Kentucky, p. 496. 18. Obscene films—Safeguards.—Where film is seized for bona fide purpose of preserving it as evidence in criminal proceeding, and it is seized pursuant to warrant issued after a determination of probable cause by a neutral magistrate, and following seizure a prompt judicial determination of obscenity issue is available, the seizure is constitutionally permissible. On showing to trial court that other copies of film are not available for exhibition, court should permit seized film to be copied so that exhibition can be continued pending judicial resolution of obscenity issue in an adversary proceeding. Otherwise, film must be returned. With such safeguards, a preseizure adversary hearing is not mandated by the First Amendment. Heller v. New York, p. 483. 19. Obscene material—State regulation.—Obscene material is not protected by the First Amendment. Roth n. United States, 354 U. S. 476, reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Miller v. California, p. 15. 20. Want ads—Sex discrimination.—The Pittsburgh ordinance as construed to forbid newspapers to carry sex-designated advertising 934 INDEX CONSTITUTIONAL LAW—Continued. columns for non-exempt job opportunities does not violate petitioner’s First Amendment rights. Pittsburgh Press Co. v. Human Rei. Comm’n, p. 376. V. Fourth Amendment. 1. Search and seizure—Automobile searches—Probable cause.— Warrantless search of petitioner’s automobile made without probable cause or consent, violated the Fourth Amendment. The search cannot be justified on basis of any special rules applicable to automobile searches, as probable cause was lacking; nor can it be justified by analogy with administrative inspections, as officers had no warrant or reason to believe that petitioner crossed the border, or committed an offense. The search was not a border search or the functional equivalent thereof. Almeida-Sanchez v. United States, p. 266. 2. Search and seizure—Automobile searches—Reasonableness.— The warrantless search of Ford did not violate Fourth Amendment as made applicable to States by the Fourteenth. The search was not unreasonable since police had exercised form of custody of the car, which constituted a hazard on the highway, and the disposition of which by respondent was precluded by his intoxicated and later comatose condition; and the revolver search was standard police procedure to protect public from a weapon’s possibly falling into improper hands. Cady v. Dombrowski, p. 433. 3. Search and seizure—Obscene films—Reasonableness.—The seizure by the sheriff, without the authority of a constitutionally sufficient warrant, was unreasonable under Fourth and Fourteenth Amendment standards. Seizure is not unreasonable simply because it would have been easy to secure a warrant, but rather because prior restraint of right of expression, whether by books or films, calls for higher hurdle of reasonableness. This case does not present an exigent circumstance in which police action must be “now or never” to preserve evidence of crime, and where it may be reasonable to permit action without prior judicial approval. Roaden v. Kentucky, p. 496. 4. Search and seizure—Warrant—Automobile search.—Seizure of sock and floor mat from the Dodge was not invalid, since the Dodge, the item “particularly described,” was subject of proper search warrant. It is not constitutionally significant that sock and mat were not fisted in the warrant’s return, which (contrary to the assumption of the Court of Appeals) was not filed prior to the search, and the warrant was thus validly outstanding at the time the articles were discovered. Cady v. Dombrowski, p. 433. INDEX 935 CONSTITUTIONAL LAW—Continued. VI. Seventh Amendment. Size of juries—Federal court rules.—Local federal court rule providing that a jury for the trial of civil cases shall consist of six persons comports with the Seventh Amendment requirement and the coextensive statutory requirement of 28 U. S. C. § 2072 that the right of trial by jury be preserved in suits at common law, and is not inconsistent with Fed. Rule Civ. Proc. 48 that deals only with parties’ stipulations regarding jury size. Colgrove v. Battin, p. 149. VII. Sixth Amendment. Assistance of counsel—Post-indictment photographic display.— Sixth Amendment does not grant accused the right to have counsel present when Government conducts post-indictment photographic display, containing a picture of the accused, for purpose of allowing witness to attempt an identification of the offender. Pretrial event constitutes “critical stage” when accused requires aid in coping with legal problems or help in meeting his adversary. Since accused is not present at time of photographic display, and, as here, asserts no right to be present, there is no possibility that he might be misled by lack of familiarity with law or overpowered by his professional adversary. United States v. Ash, p. 300. CONTEMPORARY COMMUNITY STANDARDS. See Constitutional Law, IV, 16,19; Obscenity, 2-3, 7,10,14. CONTRABAND. See Constitutional Law, I, 1-2; IV, 18-19; V, 1-2, 4; Obscenity, 1, 4, 6, 9. CONTRIBUTIONS. See Government Employees, 5-6. COPIES OF FILMS. See Constitutional Law, IV, 18; Obscenity, 4. CORE CITY SCHOOLS. See School Desegregation, 1-3. CORPORATION COMMISSION. See Government Employees, 5-6. COUNSEL. See Constitutional Law, VII. COURT RULES. See Constitutional Law, VI; Juries. COURTS-MARTIAL. See also Procedure, 1. Service-connected offenses—Retroactivity.—Denial of habeas corpus to petitioner in No. 71-6314, who was convicted of rape by court-martial, on ground that O’Callahan v. Parker, 395 U. S. 258, was not retroactive, is affirmed. Judgment in No. 71-1398, holding that O’Callahan was to be applied retroactively to serviceman who 936 INDEX COURTS-MARTIAL—Continued. was convicted by court-martial on charges of unauthorized absence from duty station and theft of an automobile from a civilian, is reversed. Gosa v. Mayden, p. 665. CRIMINAL LAW. See Constitutional Law, I, 1-2; IV, 18; V, 1-4; VII; Courts-Martial; Evidence, 1-2; Obscenity, 1-2, 4-7, 9, 12, 16; Procedure, 1, 3. ‘ ‘ CRITICAL STAGES. ’ ’ See Constitutional Law, VII. CROSSING BORDERS. See Constitutional Law, I, 1; V, 1. CUSTODY OF AUTOMOBILE. See Constitutional Law, V, 2. CUSTOMS OFFICERS. See Constitutional Law, I, 1; V, 1; Obscenity, 9. DECLARATORY JUDGMENTS. See Appeals; Justiciability; National Guard; Procedure, 2, 4; Voting Rights Act of 1965. DEDUCTIONS. See Taxes. DE JURE SEGREGATION. See School Desegregation, 1-3. DELIBERATE SEGREGATION. See School Desegregation, 1-3. DENVER. See School Desegregation, 1-3. DEPARTMENT OF AGRICULTURE. See Constitutional Law, II, 1-2; Food Stamp Act, 1-2. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. See Federal-State Relations, 1-2; Pre-emption; Social Security Act. DEPARTMENT OF JUSTICE. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. DEPENDENT CHILDREN. See Constitutional Law, II, 1; Food Stamp Act, 2. DEPRIVATION OF RIGHT TO VOTE. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. DESEGREGATION OF SCHOOLS. See Constitutional Law, III, 3-4; IV, 6; Relief; School Desegregation, 1-3. DIRECTOR OF CENSUS BUREAU. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. DISCRETION. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. INDEX 937 DISCRIMINATION. See Constitutional Law, III, 3-4; IV, 6; Relief; School Desegregation, 1-3. DISCRIMINATION IN EMPLOYMENT. See Constitutional Law, IV, 2, 20. DISSEMINATION OP OBSCENE MATERIAL. See Constitutional Law, 1,2; IV, 16,19; Obscenity, 1, 6-7. DISTRICT COURTS. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. DRIVE-IN THEATERS. See Constitutional Law; IV, 17; V, 3; Obscenity, 5. DRUNKEN DRIVING. See Constitutional Law, V, 2, 4. DUAL SCHOOL SYSTEMS. See School Desegregation, 1-3. DUE PROCESS. See Constitutional Law, II, 1-2; III, 5; Food Stamp Act; Government Employees, 2-6. EDITORIAL JUDGMENT. See Constitutional Law, IV, 2, 20. EDUCATIONAL ASSISTANCE. See Constitutional Law, III, 2-4; IV, 3-14; Relief. EDUCATIONAL FACILITIES ACT. See Constitutional Law, IV, 11-12. EDUCATIONAL INEQUITIES. See School Desegregation, 2. ELECTIONS. See Government Employees, 1-2, 5-6. ELIGIBILITY FOR FOOD STAMPS. See Constitutional Law, II, 2; Food Stamp Act, 1. “EMPLOYABLE” PERSONS. See Federal-State Relations, 2; Pre-emption; Social Security Act. EMPLOYEES. See Constitutional Law, III, 5; IV, 2, 20; Government Employees, 1-6. EMPLOYMENT ADVERTISING. See Constitutional Law, IV, 2, 20. ENTANGLEMENT IN RELIGION. See Constitutional Law, III, 2; IV, 3-5, 7-14. EQUAL PROTECTION OF THE LAWS. See Constitutional Law, II, 2; III, 1, 3-5; Food Stamp Act, 1; Government Employees, 3-4; Relief; School Desegregation, 2-3. ESTABLISHMENT OF RELIGION CLAUSE. See Constitutional Law, III, 2; IV, 3-14. 938 INDEX EVIDENCE. See also Constitutional Law, IV, 18-19; V, 2, 4; Obscenity, 2-4; School Desegregation, 1-3. 1. Obscenity—Books—Expert testimony.—When, as in this case, material is itself placed in evidence, “expert” state testimony as to its allegedly obscene nature, or other ancillary evidence of obscenity, is not constitutionally required. Kaplan v. California, p. 115. 2. Obscenity—Films—Expert evidence.—It was not error not to require expert affirmative evidence of the films’ obscenity, since the films (which were the best evidence of what they depicted) were themselves placed in evidence. Paris Adult Theatre I v. Slaton, p. 49. EXAMINATIONS. See Constitutional Law, IV, 7. EXCLUSIONS. See Taxes. EXHIBITION OF FILMS. See Constitutional Law, IV, 17-18; V, 3; Obscenity, 4-5, 12, 16. EXIGENT CIRCUMSTANCES. See Constitutional Law, IV, 17; V, 3; Obscenity, 5. EX PARTE WARRANTS. See Constitutional Law, IV, 18; Obscenity, 4. EXPENSES OF COMMUTING. See Taxes. EXPERT EVIDENCE. See Constitutional Law, IV, 16, 18-19; Evidence, 1-2; Obscenity, 2-3. EXTERNAL BOUNDARIES. See Constitutional Law, V, 1. FACIAL UNCONSTITUTIONALITY. See Government Employees, 5. FEDERAL COURT RULES. See Constitutional Law, VI; Juries. FEDERAL EMPLOYEES. See Government Employees, 1-2. FEDERAL RULES OF CIVIL PROCEDURE. See Constitutional Law, VI; Juries. FEDERAL-STATE RELATIONS. See also Constitutional Law, III, 5; Government Employees, 3-4; Pre-emption; Social Security Act. 1. Pre-emption—Social Security Act—New York Work Rules.— Where coordinate state and federal efforts exist within a complementary administrative framework in the pursuit of common purposes, as here, the case for federal pre-emption is not persuasive. New York Dept, of Social Services v. Dublino, p. 405. 2. Social Security Act—Pre-emption—New York Work Rules.— The Work Incentive provisions of the Act do not pre-empt the Work INDEX 939 FEDERAL-STATE RELATIONS—Continued. Rules of the New York State Welfare Law. Affirmative evidence exists to establish Congress’ intention not to terminate all state work programs and foreclose future state cooperative programs. New York Dept, of Social Services v. Dublino, p. 405. FEDERAL WORK INCENTIVE PROGRAM. See Federal-State Relations, 1-2; Pre-emption; Social Security Act. FEES. See Constitutional Law, IV, 11-12. FIFTH AMENDMENT. See Constitutional Law, II, 2; Courts-Martial; Food Stamp Act, 1; Procedure, 1. FILMS. See Constitutional Law, IV, 17-18; V, 3; Evidence, 2; Obscenity, 3-5, 12, 16. “FINAL RESTRAINT.’’ See Constitutional Law, IV, 17-18; V, 3; Obscenity, 4-5. FINANCIAL AID TO NONPUBLIO SCHOOLS. See Constitutional Law, III, 2-4; IV, 3-14. FINANCING TRANSACTIONS. See Constitutional Law, IV, 11-12. FIRST AMENDMENT. See Constitutional Law, IV, 1-20; Evidence, 1-2; Obscenity, 7; Procedure, 3; Relief. FOOD STAMP ACT. See also Constitutional Law, II, 1-2. 1. Low-income households—Unrelated persons—Due process.— The legislative classification here involved, excluding households whose members are not “all related to each other,” cannot be sustained, the classification being clearly irrelevant to stated purposes of the Act and not rationally furthering any other legitimate governmental interest. In practical operation, Act excludes not those who are “likely to abuse the program” but, rather, only those who so desperately need aid that they cannot even afford to alter their living arrangements so as to retain their eligibility. U. S. Dept, of Agriculture v. Moreno, p. 528. 2. Needy households—Tax deductions—Due process.—Tax deduction taken for benefit of parent in a prior year is not a rational measure of need of a different household with which the child of the taxdeducting parent lives, and the administration of the Act allows no hearing to show that the tax deduction is irrelevant to the need of the household. Section 5 (b) of the Act therefore violates due process. U. S. Dept, of Agriculture v. Murry, p. 508. FORFEITURE ACTIONS. See Constitutional Law, IV, 17-18; V, 3; Obscenity, 4-5. 940 INDEX FOURTEENTH AMENDMENT. See Constitutional Law, III, 1-5; IV, 1-14, 17; V, 2-4; Government Employees, 3-4; Obscenity, 5; Procedure, 3; Relief. FOURTH AMENDMENT. See Constitutional Law, IV, 17; V, 1-4; Obscenity, 5. FREEDOM OF ASSEMBLY. See Justiciability; National Guard. FREEDOM OF EXPRESSION. See Constitutional Law, IV, 1-2, 15-20; V, 3; Obscenity, 4-7. FREEDOM OF SPEECH. See Constitutional Law, IV, 1-2, 15-20; V, 3; Evidence, 1-2; Justiciability; National Guard; Obscenity, 2, 6-7. FREEDOM OF THE PRESS. See Constitutional Law, IV, 1-2, 16, 20; Evidence, 1; Obscenity, 6, 11. FREE TEXTBOOKS. See Constitutional Law, III, 3-4; IV, 6; Relief. GEORGIA. See Constitutional Law, IV, 15; Evidence, 2; Obscenity, 3, 8,12,16. GOVERNMENT EMPLOYEES. See also Constitutional Law, III, 5. 1. Hatch Act—Political activities of federal employees.—Holding of Public Workers v. Mitchell, 330 U. S. 75, that federal employees can be prevented from holding party office, working at the polls, and acting as party paymaster for other party workers is reaffirmed. Congress can also constitutionally forbid federal employees from engaging in plainly identifiable acts of political management and political campaigning. CSC v. Letter Carriers, p. 548. 2. Hatch Act—Political activities of federal employees—Civil Service Commission regulations.—It is the Civil Service Commission’s regulations regarding political activity, the legitimate descendants of the 1940 restatement adopted by the Congress, and, in most respects, the reflection of longstanding interpretations of the statute by the agency charged with its interpretation and enforcement, and the statute itself, that are the bases for rejecting the claim that the Act is unconstitutionally vague and overbroad. CSC v. Letter Carriers, p. 548. 3. New York Civil Service Law—Citizenship.—Section 53 of the Law violates the Equal Protection Clause of the Fourteenth Amendment since, in the context of New York’s statutory civil service scheme, it sweeps indiscriminately and is not narrowly limited to the accomplishment of substantial state interests. The “special pub- INDEX 941 GOVERNMENT EMPLOYEES—Continued. lie interest” doctrine has no applicability to this case. Sugarman v. Dougall, p. 634. 4. New York Civil Service Law—Qualifications—Citizenship.— While the State has an interest in defining its political community, and a corresponding interest in establishing the qualifications for persons holding state elective or important nonelective executive, legislative, and judicial positions, the broad citizenship requirement established by § 53 of the Law cannot be justified on this basis. Sugarman v. Dougall, p. 634. 5. State of Oklahoma employees—Political activities.—Section 818 of the Oklahoma merit system Act is not unconstitutional on its face, The statute, which gives adequate warning of what activities it proscribes and sets forth explicit standards for those who must apply it, is not impermissibly vague. Broadrick v. Oklahoma, p. 601. 6. State of Oklahoma employees—Political activities—Overbreadth.—Although appellants contend that the statute reaches activities that are constitutionally protected as well as those that are not, it is clearly constitutional as applied to conduct with which they are charged and because it is not substantially overbroad they cannot challenge statute on ground that it might be applied unconstitutionally to others, in situations not before the Court. Appellants’ conduct falls squarely within the proscriptions of § 818 of the state merit system Act, which deals with activities the State has ample power to regulate, and the operation of the statute has been administratively confined to clearly partisan political activity. Broadrick v. Oklahoma, p. 601. GUIDELINES. See Constitutional Law, IV, 18-19; V, 3; Obscenity, 4-5, 7,10,13-15,17. HARD-CORE PORNOGRAPHY. See Constitutional Law, I, 1-2; IV, 15-16, 19; Evidence, 1-2; Obscenity, 1-3, 6-7, 9, 14, 17. HATCH ACT. See Government Employees, 1-2. HEARINGS. See Constitutional Law, II, 1; IV, 18; Food Stamp Act, 2; Obscenity, 4. “HELP-WANTED” ADVERTISEMENTS. See Constitutional Law, IV, 1-2, 20. HIGHER EDUCATION FACILITIES. See Constitutional Law, IV, 11-12. HISPANOS. See School Desegregation, 2. 942 INDEX HOUSEHOLDS. See Constitutional Law, II, 1-2; Food Stamp Act, 1-2. HUMAN RESOURCES ADMINISTRATION. See Constitutional Law, III, 5; Government Employees, 3-4. IDENTIFICATION OF ACCUSED. See Constitutional Law, VII. IMMIGRATION AND NATIONALITY ACT. See Constitutional Law, III, 5; V, 1; Government Employees, 3-4. IMMIGRATION AND NATURALIZATION. See Constitutional Law, III, 5; Government Employees, 3-4. IMPORTATION OF OBSCENE MATTER. See Constitutional Law, 1,1-2; Obscenity, 1, 9. INCOME TAXES. See Constitutional Law, II, 1; IV, 13; Food Stamp Act, 2; Taxes. INCOME TAX RELIEF. See Constitutional Law, IV, 13. INDICTMENT BY GRAND JURY. See Courts-Martial; Procedure, 1. INJUNCTIONS. See Constitutional Law, III, 3-4; IV, 6; Justiciability; National Guard; Relief. INSPECTION OF EDUCATIONAL FACILITIES. See Constitutional Law, IV, 11. INTERNAL REVENUE CODE. See Taxes. INTERSTATE COMMERCE. See Constitutional Law, I, 2; Obscenity, 1. INTERVENTION. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. INVALIDITY OF STATUTE. See Government Employees, 1-2. IRRATIONAL CLASSIFICATIONS. See Constitutional Law, II, 2; Food Stamp Act, 1. JUDGES. See Constitutional Law, IV, 18; Obscenity, 4. JUDICIAL DETERMINATION OF OBSCENITY. See Constitutional Law, IV, 18; Obscenity, 4,11. JUDICIAL FUNCTIONS. See Constitutional Law, IV, 18. JUDICIAL REVIEW. See Constitutional Law, IV, 3-4, 6, 10; Relief. JUDICIAL SURVEILLANCE. See Justiciability; National Guard. INDEX 943 JURIES. See also Constitutional Law, VI; Obscenity, 10. Seventh Amendment—Six-man juries—Federal court rules.—Local federal court rule providing that a jury for the trial of civil cases shall consist of six persons comports with the Seventh Amendment requirement and the coextensive statutory requirement of 28 U. S. C. § 2072 that the right of trial by jury be preserved in suits at common law, and is not inconsistent with Fed. Rule Civ. Proc. 48 that deals only with parties’ stipulations regarding jury size. Colgrove v. Battin, p. 149. JURISDICTION. See Courts-Martial; Procedure, 1. JURY TRIALS. See Courts-Martial; Procedure, 1. JUSTICIABILITY. See also National Guard. Kent State University—Civil disorders—Suit to restrain use oj National Guard.—No justiciable controversy is presented in this case, as the relief sought by respondents, requiring initial judicial review and continuing judicial surveillance over the training, weaponry, and standing orders of the National Guard, embraces critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches. Gilligan v. Morgan, p. 1. KENT STATE UNIVERSITY. See Justiciability; National Guard. KENTUCKY. See Constitutional Law, IV, 17; V, 3; Obscenity, 5. LACKING IN LITERARY VALUE. See Constitutional Law, IV, 19; Obscenity, 7, 14. LAWYERS. See Constitutional Law, III, 1; VII. LEASE-BACK ARRANGEMENTS. See Constitutional Law, IV, 11-12. LEGISLATIVE FINDINGS. See Constitutional Law, IV, 3, 16. LEGISLATIVE FUNCTIONS. See Constitutional Law, IV, 7-8, 10. LEGISLATIVE PURPOSES. See Constitutional Law, IV, 3. LEGITIMATE GOVERNMENTAL INTERESTS. See Constitutional Law, II, 2; Food Stamp Act, 1. LIVING ARRANGEMENTS. See Constitutional Law, II, 1-2; Food Stamp Act, 1-2. LOW-INCOME HOUSEHOLDS. See Constitutional Law, II, 2; Food Stamp Act, 1. 944 INDEX MAGAZINES. See Obscenity, 11; Procedure, 3. MAINTENANCE AND REPAIR OF NONPUBLIC SCHOOLS. See Constitutional Law, IV, 5. “MANDATED” SERVICES. See Constitutional Law, IV, 8, 10. MARIHUANA. See Constitutional Law, V, 1. MEMBERS OF HOUSEHOLD. See Constitutional Law, II, 2; Food Stamp Act, 1. MERIT SYSTEMS. See Government Employees, 3-6. MEXICANS. See Constitutional Law, V, 1. MILITARY TRIBUNALS. See Courts-Martial; Procedure, 1. MILITIA. See Justiciability; National Guard. MISSISSIPPI. See Constitutional Law, III, 3-4; IV, 6; Relief. MONTANA. See Constitutional Law, VI; Juries. MOOTNESS. See Justiciability; National Guard. MOTION PICTURE FILMS. See Constitutional Law, I, 1; IV, 17-18; V, 3; Evidence, 2; Obscenity, 3-5,12,16. MOTION TO INTERVENE. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. MUNICIPAL BONDS. See Constitutional Law, IV, 11-12. MUNICIPAL ORDINANCES. See Constitutional Law, IV, 1, 2, 20. MURDER. See Constitutional Law, V, 2, 4. NATIONAL GUARD. See also Justiciability. Kent State University students—Suit to restrain use of Guard.— No justiciable controversy is presented in this case, as the relief sought by respondents, requiring initial judicial review and continuing judicial surveillance over the training, weaponry, and standing orders of the National Guard, embraces critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches. Gilligan v. Morgan, p. 1. NATIONAL STANDARD. See Constitutional Law, IV, 16, 19; Obscenity, 6-7, 10, 13. NEEDY HOUSEHOLDS. See Constitutional Law, II, 1-2; Food Stamp Act, 1-2. NEGROES. See School Desegregation, 2. INDEX 945 NEIGHBORHOOD SCHOOL POLICY. See School Desegregation, 1. NEUTRALITY. See Constitutional Law, IV, 3-5, 7-8, 10, 13-14. NEUTRAL SERVICES. See Constitutional Law, IV, 7-8, 10. NEWSPAPERS. See Constitutional Law, IV, 1-2, 20. NEW YORK. See Appeals; Constitutional Law, III, 5; IV, 3-5, 7-8, 10, 13-14, 18; Government Employees, 3-4; Obscenity, 4, 15; Procedure, 2, 4; Voting Rights Act of 1965. NEW YORK EDUCATION LAW. See Constitutional Law, IV, 3-5, 7-8, 10, 14. NEW YORK TAX LAW. See Constitutional Law, IV, 13. NEW YORK WORK RULES. See Federal-State Relations, 1-2; Pre-emption; Social Security Act. NONCITIZENS. See Constitutional Law, III, 1, 5; V, 1; Government Employees, 3-4. NONIDEOLOGICAL SERVICES. See Constitutional Law, IV, 7-8, 10. NONNEEDY HOUSEHOLDS. See Constitutional Law, II, 1-2; Food Stamp Act, 1-2. NONPUBLIC SCHOOLS. See Constitutional Law, III, 2-4; IV, 3-14; Relief. NONPUBLIC TRANSPORTATION. See Constitutional Law, I, 2; Obscenity, 1. NONSECTARIAN SCHOOLS. See Constitutional Law, III, 2; IV, 9. NONSECTARIAN USE. See Constitutional Law, IV, 11-12. NONSERVICE-CONNECTED OFFENSES. See Courts-Martial; Procedure, 1. OBSCENITY. See also Constitutional Law, I, 1-2; IV, 15-20; V, 3; Evidence, 1-2; Procedure, 3. 1. Commerce—Congressional power—Privacy.—Congress has the power to prevent obscene material, which is not protected by the First Amendment, from entering the stream of commerce. The zone of privacy that Stanley v. Georgia, 394 U. S. 557, protected does not extend beyond the home. United States v. Orito, p. 139. 2. Evidence—Expert testimony.—When, as in this case, material is itself placed in evidence, “expert” state testimony as to its alleg- 946 INDEX OBSCENITY—Continued. edly obscene nature, or other ancillary evidence of obscenity, is not constitutionally required. Kaplan v. California, p. 115. 3. Films—Expert evidence.—It was not error to fail to require expert affirmative evidence of the films’ obscenity, since the films (which were the best evidence of what they depicted) were themselves placed in evidence. Paris Adult Theatre I v. Slaton, p. 49. 4. Films—Seizure pursuant to warrant—Preservation of evidence.—Where film is seized for bona fide purpose of preserving it as evidence in criminal proceeding, and it is seized pursuant to warrant issued after a determination of probable cause by a neutral magistrate, and following seizure a prompt judicial determination of obscenity issue is available, the seizure is constitutionally permissible. On showing to trial court that other copies of film are not available for exhibition, court should permit seized film to be copied so that exhibition can be continued pending judicial resolution of obscenity issue in an adversary proceeding. Otherwise, film must be returned. With such safeguards, a preseizure adversary hearing is not mandated by the First Amendment. Heller v. New York, p. 483. 5. Films—Warrantless seizure—Prior restraint.—The seizure by the sheriff, without the authority of a constitutionally sufficient warrant, was unreasonable under Fourth and Fourteenth Amendment standards. Seizure is not unreasonable simply because it would have been easy to secure a warrant, but rather because prior restraint of right of expression, whether by books or films, calls for higher hurdle of reasonableness. This case does not present an exigent circumstance in which police action must be “now or never” to preserve evidence of crime, and where it may be reasonable to permit action without prior judicial approval. Roaden v. Kentucky, p. 496. 6. First Amendment—No pictorial content.—Merely because it has no pictorial content, obscene material in book form is not entitled to First Amendment protection. A State may control commerce in such a book, even distribution to consenting adults, to avoid the deleterious consequences it can reasonably conclude (conclusive proof is not required) result from the continuing circulation of obscene literature. Kaplan v. California, p. 115. 7. First Amendment—State regulation.—Obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476, reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does INDEX 947 OBSCENITY—Continued. not have serious literary, artistic, political, or scientific value. Miller v. California, p. 15. 8. Georgia civil procedure—Standards.—The Georgia civil procedure followed here (assuming use of a constitutionally acceptable standard for determining the issue of obscenity vel non) comported with the standards of Teitel Film Corp. v. Cusack, 390 U. S. 139; Freedman v. Maryland, 380 U. S. 51; and Kingsley Books, Inc. v. Brown, 354 U. S. 436. Paris Adult Theatre I v. Slaton, p. 49. 9. Importation of contraband—Commerce Clause—Personal use.— Congress, which has broad powers under the Commerce Clause to prohibit importation into this country of contraband, may constitutionally proscribe the importation of obscene matter, notwithstanding that the material is for the importer’s private, personal use and possession. United States v. 12 200-ft. Reels Film, p. 123. 10. Juries—Community standard—National standard.—The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a “national standard.” Miller v. California, p. 15. 11. Magazines—Obscenity adjudication—Remand.—Judgment of Supreme Court of Virginia, affirming trial court’s order adjudging certain magazines obscene and restraining their sale, is vacated and remanded for further proceedings consistent with Miller n. California, ante, p. 15; Paris Adult Theatre I n. Slaton, ante, p. 49; and Heller v. New York, ante, p. 483. Alexander v. Virginia, p. 836. 12. Public exhibition—Privacy.—Exhibition of obscene material in places of public accommodation is not protected by any constitutional doctrine of privacy. A commercial theater cannot be equated with a private home; nor is there here a privacy right arising from a special relationship, such as marriage. Nor can the privacy of the home be equated with a “zone” of “privacy” that follows a consumer of obscene materials wherever he goes. Paris Adult Theatre I v. Slaton, p. 49. 13. Standards—State community standard.—Appraisal of the nature of the book by the “contemporary community standards of the State of California” was an adequate basis for establishing whether the book here involved was obscene. Kaplan v. California, p. 115. 14. State regulation—Guidelines.—Basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct spe- 948 INDEX OBSCENITY—Continued. cifically defined by applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Miller v. California, p. 15. 15. State regulation—Guidelines.—Case is remanded to afford state courts an opportunity to reconsider petitioner’s substantive challenges in light of Miller n. California, ante, p. 15, and Paris Adult Theatre I v. Slaton, ante, p. 49, which establish guidelines for lawful state regulation of obscene material. Heller v. New York, p. 483. 16. State regulation—Public exhibition—“Adult” theaters.—States have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including “adult” theaters. There is a proper state concern with safeguarding against crime and other arguably ill effects of obscenity by prohibiting the public or commercial exhibition of obscene material. Though conclusive proof is lacking, States may reasonably determine that a nexus does or might exist between antisocial behavior and obscene material, just as States have acted on unprovable assumptions in other areas of public control. Paris Adult Theatre I v. Slaton, p. 49. 17. “Utterly without redeeming social value”—Constitutional standard.—The test of “utterly without redeeming social value” articulated in Memoirs v. Massachusetts, 383 U. S. 413, is rejected as a constitutional standard. Miller v. California, p. 15. OHIO. See Justiciability; National Guard. OKLAHOMA. See Government Employees, 5-6. ORDINANCES. See Constitutional Law, IV, 1-2,20. ORDINARY AND NECESSARY EXPENSES. See Taxes. OVERBREADTH. See Constitutional Law, III, 5; IV, 19; Government Employees, 3-4, 6; Obscenity, 7. PARENT REIMBURSEMENT ACT FOR NONPUBLIC EDUCATION. See Constitutional Law, III, 2; IV, 9. PARENTS AND CHILDREN. See Constitutional Law, II, 1; Food Stamp Act, 2. PARENTS OF NONPUBLIC SCHOOL STUDENTS. See Constitutional Law, III, 2-4; IV, 3-5,9-10,13-14. PARTISAN ACTIVITIES. See Government Employees, 1-2, 5-6. PARTY ACTIVITIES. See Government Employees, 1-2, 5-6. INDEX 949 PATENT OFFENSIVENESS. See Constitutional Law, I, 1-2; IV, 15-16,19; Obscenity, 1-3, ^-1, 9,14,17. PATTERN OF TRAINING-. See Justiciability; National Guard. PENDLETON ACT. See Government Employees, 1-2. PENNSYLVANIA. See Constitutional Law, III, 2; IV, 9. “PERSONAL” EXPENSES. See Taxes. PHOTOGRAPHIC DISPLAYS. See Constitutional Law, VII. PHOTOGRAPHS. See Constitutional Law, IV, 16; Obscenity, 2-3, 6. PICTORIAL CONTENT. See Constitutional Law, IV, 16; Evidence, 1-2; Obscenity, 2-3, 6. PILOTS. See Taxes. PITTSBURGH PRESS. See Constitutional Law, IV, 1-2, 20. POLICE OFFICERS. See Constitutional Law, V, 2, 4. POLITICAL CAMPAIGNS. See Government Employees, 1-2, 5-6. POLITICAL MANAGEMENT. See Government Employees, 1. POLITICAL STRIFE. See Constitutional Law, IV, 4. PORNOGRAPHY. See Constitutional Law, I, 1-2; IV, 15-16, 19; Evidence, 1-2; Obscenity, 1-3, 6-7, 9,14,17. POST-INDICTMENT PHOTOGRAPHIC DISPLAYS. See Constitutional Law, VII. PRACTICE OF LAW. See Constitutional Law, III, 1. PRE-EMPTION. See also Federal-State Relations, 1-2; Social Security Act. Social Security Act—Work Incentive Program—New York Work Rules.—The Work Incentive provisions of the Act do not pre-empt the Work Rules of the New. York Social Welfare Law. Where coordinate state and federal efforts exist within a complementary administrative framework in the pursuit of common purposes, as here, the case for federal pre-emption is not persuasive. New York Dept, of Social Services v. Dublino, p. 405. PRESENCE OF ACCUSED. See Constitutional Law, VII. PRESERVATION OF EVIDENCE. See Constitutional Law, IV, 18; Obscenity, 4. PRESUMPTIONS. See Constitutional Law, II, 2; Food Stamp Act, 1. 950 INDEX PRIOR JUDICIAL APPROVAL. See Constitutional Law, IV, 17-18; V, 3; Obscenity, 4-5. PRIOR RESTRAINT. See Constitutional Law, IV, 17; V, 3; Obscenity, 5. PRIVACY. See Constitutional Law, I, 1-2; Evidence, 1-2; Obscenity, 1-3, 9, 12. PRIVATE SCHOOLS. See Constitutional Law, III, 2-4; IV, 3-14; Relief. PRIVATE USE. See Constitutional Law, I, 1-2; Obscenity, 1, 9. PROBABLE CAUSE. See Constitutional Law, V, 1. PROCEDURE. See also Appeals; Constitutional Law, IV, 6-7, 12, 14, 18; Courts-Martial; Juries; Justiciability; National Guard; Obscenity, 4, 8, 11; Relief; Voting Rights Act of 1965. 1. Courts-martial — Service-connected offenses — Retroactivity.— Denial of habeas corpus to petitioner in No. 71-6314, who was convicted of rape by court-martial, on ground that O’Callahan v. Parker, 395 U. S. 258, was not retroactive, is affirmed. Judgment in No. 71-1398, holding that O’Callahan was to be applied retroactively to serviceman who was convicted by court-martial on charges of unauthorized absence from duty station and theft of an automobile from a civilian, is reversed. Gosa v. Mayden, p. 665. 2. Motion to intervene—Untimeliness—Discretion of District Court.—The motion to intervene was untimely, and in the light of that fact and all the other circumstances of this case, the District Court did not abuse its discretion in denying the motion. NAACP v. New York, p. 345. 3. Obscenity trial—Civil action—Trial by jury.—Judgment of Supreme Court of Virginia, affirming trial court’s order adjudging certain magazines obscene and restraining their sale, is vacated and remanded for further proceedings consistent with Miller n. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; and Heller v. New York, ante, p. 483. Trial by jury is not constitutionally required in this civil action pursuant to Va. Code Ann. § 18.1-236.3. Alexander v. Virginia, p. 836. 4. Voting Rights Act of 1965—Appeals—Unsuccessful intervenors.—The words “any appeal” in § 4 (a) of the Act encompass an appeal by a would-be, but unsuccessful, intervenor, and appellants’ appeal properly lies to this Court. NAACP v. New York, p. 345. PROFESSIONAL STANDARDS. See Constitutional Law, III, 1. INDEX 951 PROMPT JUDICIAL DETERMINATION. See Constitutional Law, IV, 18; Obscenity, 4. PROOF. See Constitutional Law, IV, 18-19; Evidence, 1-2; Obscenity, 4,10,13-14,17. PROSPECTIVITY. See Courts-Martial; Procedure, 1. PUBLIC ASSISTANCE RECIPIENTS. See Federal-State Relations, 1-2; Pre-emption; Social Security Act. PUBLIC EMPLOYEES. See Constitutional Law, III, 5; Government Employees, 1-6. PUBLIC SCHOOLS. See Constitutional Law, III, 3; IV, 5; Relief ; School Desegregation, 1-3. PUBLIC TRANSPORTATION. See Constitutional Law, I, 2; Obscenity, 1. QUALIFICATIONS. See Constitutional Law, III, 1, 5; Government Employees, 3-4. QUALIFICATIONS FOR VOTING. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. RACIAL DISCRIMINATION. See Constitutional Law, III, 3-4; IV, 6; Relief. RACIAL SEGREGATION. See School Desegregation, 1-3. RAPE. See Courts-Martial; Procedure, 1. REASONABLE DISTANCES. See Constitutional Law, V, 1. REASONABLENESS. See Constitutional Law, IV, 16-17; V, 2-3; Obscenity, 5-6. RECORDKEEPING. See Constitutional Law, IV, 7-8. REGULATIONS. See Constitutional Law, V, 1; Government Em- ployees, 1-2. REIMBURSEMENT OF TUITION EXPENSES. See Constitutional Law, IV, 3,9,14. REIMBURSING PRIVATE SCHOOLS. See Constitutional Law, IV, 7-8, 10. RELIEF. See also Constitutional Law, III, 3-4; IV, 6; Justiciability; National Guard; School Desegregation, 2. Private schools—Mississippi textbook loan program—Certification procedure.—Proper injunctive relief can be granted without implying that all private schools alleged to be receiving textbook aid have 952 INDEX RELIEF—Continued. restrictive admission policies. District Court can direct appellees to submit for approval a certification procedure whereby schools may apply for textbooks on behalf of pupils, affirmatively declaring admission policies and practices, and stating number of their racially and religiously identifiable minority students and other relevant data. Certification of eligibility will be subject to judicial review. Norwood v. Harrison, p. 455. RELIGIOUS-AFFILIATED COLLEGES. See Constitutional Law, IV, 11-12. RELIGIOUS INSTRUCTIONS. See Constitutional Law, III, 2; IV, 3-5, 7-8,10,13. RELIGIOUS SCHOOLS. See Constitutional Law, III, 2; IV, 3-5, 9. REMANDS. See Obscenity, 11,15; Procedure, 3. RESIDENT ALIENS. See Constitutional Law, III, 1, 5; Government Employees, 3-4. RES JUDICATA. See Courts-Martial; Procedure, 1. RESTRAINT OF EXPRESSION. See Constitutional Law, IV, 17; V, 3; Obscenity, 5. RETROACTIVITY. See Courts-Martial; Procedure, 1. RETURN OF WARRANT. See Constitutional Law, V, 2, 4. REVENUE BONDS. See Constitutional Law, IV, 11-12. REVOLVERS. See Constitutional Law, V, 2, 4. RIGHT TO COUNSEL. See Constitutional Law, VII. RIGHT TO VOTE. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. RULES OF CIVIL PROCEDURE. See Constitutional Law, VI; Juries. SCHOOL BOARDS. See School Desegregation, 1, 3. SCHOOL DESEGREGATION. See also Constitutional Law, III, 3-4; IV, 6. 1. Policy of intentional segregation—Burden of proof.—Where, as here, policy of intentional segregation has been proved with respect to a significant portion of the school system, burden is on school authorities (regardless of claims that their “neighborhood school policy” was racially neutral) to prove that their actions as to other segregated schools in the system were not likewise motivated by a INDEX 953 SCHOOL DESEGREGATION—Continued. segregative intent. Keyes v. School District No. 1, Denver, Colo., p. 189. 2. Segregated schools—Educational inequities—Negroes and Hispanos.—District Court, for purposes of defining a “segregated” core city school, erred in not placing Negroes and Hispanos in the same category since both groups suffer the same educational inequities when compared with the treatment afforded Anglo students. Keyes v. School District No. 1, Denver, Colo., p. 189. 3. Segregation of core city schools—Deliberate policy.—Courts below did not apply correct legal standard in dealing with petitioners’ contention that respondent School Board had the policy of deliberately segregating the core city schools. Proof that school authorities have pursued an intentional segregative policy in a substantial portion of school district will support a finding by trial court of the existence of dual system, absent a showing that the district is divided into clearly unrelated units. Keyes v. School District No. 1, Denver, Colo., p. 189. SCHOOLS. See Constitutional Law, III, 2—4; IV, 3-14; School Desegregation, 1-3. SCHOOL TEXTBOOKS. See Constitutional Law, III, 3-4; IV, 6; Relief. SEARCH AND SEIZURE. See Constitutional Law, V, 1-4. SEARCH WARRANTS. See Constitutional Law, V, 2, 4. SECRETARY OF AGRICULTURE. See Constitutional Law, II, 1-2; Food Stamp Act, 1-2. SECTARIAN COLLEGES. See Constitutional Law, IV, 11-12. SECTARIAN SCHOOLS. See Constitutional Law, III, 2; IV, 3-5, 7-10, 13-14. SECULAR PURPOSES. See Constitutional Law, IV, 11-12. SECULAR SERVICES. See Constitutional Law, IV, 10. SEGREGATED SCHOOLS. See Constitutional Law, III, 3^; IV, 6; Relief; School Desegregation, 1-3. SEIZURE OF FILMS. See Constitutional Law, IV, 17-18; V, 3; Obscenity, 4-5. SERVICE-CONNECTED OFFENSES. See Courts-Martial; Procedure, 1. 954 INDEX SERVICEMEN. See Courts-Martial; Procedure, 1. SERVICES OF PRIVATE SCHOOLS. See Constitutional Law, IV, 8, 10. SEVENTH AMENDMENT. See Constitutional Law, VI; Juries. SEVERABILITY OF STATUTE. See Constitutional Law, III, 2. SEX-DESIGNATED WANT AD COLUMNS. See Constitutional Law, IV, 1-2, 20. SEX DISCRIMINATION. See Constitutional Law, IV, 1-2, 20. SEXUALLY EXPLICIT MATERIAL. See Constitutional Law, IV, 19; Obscenity, 7,14. SHERIFFS. See Constitutional Law, IV, 17; V, 3; Obscenity, 5. SIX-MAN JURIES. See Constitutional Law, VI; Juries. SIXTH AMENDMENT. See Constitutional Law, VII; Courts- Martial; Procedure, 1. SIZE OF JURIES. See Constitutional Law, VI; Juries. SOCIAL SECURITY ACT. See also Federal-State Relations, 1-2; Pre-emption. Work Incentive Program—New York Work Rules—Pre-emption.— The Work Incentive (WIN) provisions of the Act do not pre-empt New York Work Rules of the New York Social Welfare Law. There is no substantial evidence that Congress intended, either expressly or impliedly, to pre-empt state work programs. More is required than the apparent comprehensiveness of the WIN legislation to show the “clear manifestation of [congressional] intention” that must exist before a federal statute is held “to supersede the exercise” of state action. New York Dept, of Social Services v. Dublino, p. 405. SOCIAL VALUE. See Constitutional Law, IV, 19; Obscenity, 7, 14. SOCIAL WELFARE LAW. See Federal-State Relations, 1-2; Pre-emption; Social Security Act. SOUTH CAROLINA. See Constitutional Law, IV, 11-12. “SPECIAL PUBLIC INTEREST’’ DOCTRINE. See Constitutional Law, III, 5; Government Employees, 3-4. STAMP PROGRAMS. See Constitutional Law, II, 1-2; Food Stamp Act, 1-2. STANDARDS. See Constitutional Law, IV, 19; Evidence, 1-2; Obscenity, 2-3, 7,10, 13-14. INDEX 955 STATE CIVIL SERVICE. See Constitutional Law, III, 5; Government Employees, 3-6. STATE COMMUNITY STANDARDS. See Constitutional Law, IV, 16, 19; Evidence, 1-2; Obscenity, 10, 13. STATE EMPLOYEES. See Government Employees, 3-6. STATE PERSONNEL BOARD. See Government Employees, 5-6. STATE TAX RELIEF. See Constitutional Law, IV, 13. STATE TEXTBOOK LOAN PROGRAM. See Constitutional Law, III, 3-4; IV, 6; Relief. STATE UNIVERSITIES. See Justiciability; National Guard. STATE WORK PROGRAMS. See Federal-State Relations, 1-2; Pre-emption; Social Security Act. STIPULATIONS. See Constitutional Law, VI; Juries. STUDENTS. See Constitutional Law, III, 3-4; IV, 6; Justiciability; National Guard; Relief. SUBSTANTIAL STATE INTERESTS. See Constitutional Law, III, 5; Government Employees, 3-4. SUMMARY JUDGMENTS. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. SUPERVISORY RELIEF. See Justiciability; National Guard. SUPPORTING RELIGION-ORIENTED SCHOOLS. See Constitutional Law, III, 2; IV, 3-5, 9, 13-14. SUPREMACY CLAUSE. See Constitutional Law, III, 5; Government Employees, 3-4. SUPREME COURT. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. SUSPECT CLASSIFICATIONS. See Constitutional Law, III, 1. TAX DEDUCTIONS. See Constitutional Law, II, 1; Food Stamp Act, 2; Taxes. TAXES. Income taxes—Deduction of business expenses—Commuting expenses.—Airline pilot taxpayer is not entitled under § 262 of the Internal Revenue Code to an exclusion from “personal” expenses for the costs of commuting by car from his home to his place of employment because by happenstance he must carry incidentals of his occupation with him. Fausner v. Commissioner, p. 838. TAX-EXEMPT BONDS. See Constitutional Law, IV, 11-12. 956 INDEX TAX RELIEF. See Constitutional Law, IV, 3-4, 13. TEACHER-PREPARED TESTS. See Constitutional Law, IV, 7. TESTS OR DEVICES. See Appeals; Constitutional Law, IV, 7; Procedure, 2, 4; Voting Rights Act of 1965. TEXTBOOKS. See Constitutional Law, III, 3-4; IV, 6; Relief. THEATERS. See Constitutional Law, IV, 15, 17-18; V, 3; Obscenity, 4—5, 8,12,16. THOUGHT CONTROL. See Constitutional Law, IV, 15, 17, 19; V, 3; Evidence, 1-2; Obscenity, 8. TIMELINESS. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. TRAINING OF NATIONAL GUARD. See Justiciability; National Guard. TRANSPORTING INCIDENTALS OF OCCUPATION. See Taxes. TRANSPORTING OBSCENE MATERIAL. See Constitutional Law, 1,1-2; Obscenity, 1, 9. TRIAL BY JURY. See Constitutional Law, VI; Courts-Martial; Juries; Obscenity, 10; Procedure, 1, 3. TRIAL IN VICINAGE. See Courts-Martial; Procedure, 1. TUITION EXPENSES. See Constitutional Law, IV, 9. TUITION-REIMBURSEMENT PLANS. See Constitutional Law, IV, 3, 9, 14. UNITED STATES CITIZENS. See Constitutional Law, III, 1, 5; Government Employees, 3-4. UNIVERSITY STUDENTS. See Justiciability; National Guard. UNPROVABLE ASSUMPTIONS. See Constitutional Law, IV, 16; Evidence, 1-2; Obscenity, 2-3, 6. UNRELATED PERSONS. See Constitutional Law, II, 2; Food Stamp Act, 1. UNSUCCESSFUL INTERVENORS. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. UNTIMELINESS. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. UNWILLING RECIPIENTS. See Constitutional Law, IV, 19; Obscenity, 7, 10, 14. INDEX 957 “USE OF FORCE” RULES. See Justiciability; National Guard. UTTERLY WITHOUT REDEEMING SOCIAL VALUE. See Constitutional Law, IV, 16, 19; Evidence, 1-2; Obscenity, 2-3, 6,14,17. VAGUENESS. See Government Employees, 5-6. VICINAGE. See Courts-Martial; Procedure, 1. VIRGINIA. See Obscenity, 11; Procedure, 3. VOTING RIGHTS ACT OF 1965. See also Appeals; Procedure, 2, 4. Appeals—Unsuccessful intervenors.—The words “any appeal” in § 4 (a) of the Act encompass an appeal by a would-be, but unsuccessful, intervenor, and appellants’ appeal properly lies to this Court. NAACP v. New York, p. 345. WANT ADS. See Constitutional Law, IV, 1-2, 20. WARRANTLESS SEARCHES. See Constitutional Law, V, 1-4. WARRANTLESS SEIZURES. See Constitutional Law, V, 1-4; Obscenity, 5. WARRANTS. See Constitutional Law, V, 1-4; Obscenity, 5. WARTIME OFFENSES. See Courts-Martial; Procedure, 1. WEAPONS. See Constitutional Law, V, 2,4. WELFARE. See Federal-State Relations, 1-2; Pre-emption; Social Security Act. WISCONSIN. See Constitutional Law, V, 2, 4. WITNESSES. See Constitutional Law, VII. WORK INCENTIVE PROGRAM. See Federal-State Relations, 1-2; Pre-emption; Social Security Act. WORK PERMITS. See Constitutional Law, V, 1. WORK PROGRAMS. See Federal-State Relations, 1-2; Preemption; Social Security Act. WOULD-BE INTERVENORS. See Appeals; Procedure, 2, 4; Voting Rights Act of 1965. ZONE OF PRIVACY. See Constitutional Law, I, 1-2; Obscenity, 1, 9, 12. U. S. GOVERNMENT PRINTING OFFICE : 1975 O - 507-137