:MAHON]~Y LIBRA.RY COLLEGE OF SAINT ELIZABETH CONV.EN'r ST~TIONl N. J. l • DISCA Pn"QT'"\ APR 1 9 IP CSE ------------------ {/ ,J '",,. f..-tlVrf UNITED STATES REPORTS VOLUME 418 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1973 OPINIONS OF JUNE 24 (CONCLUDED) THROUGH JULY 25, 1974 ORDERS OF JUNE 21 THROUGH JULY 25, 1974 TOGETHER WITJI OPINION OF INDIVIDUAL JUSTICE IN CHAJdBEftS END OF TERM HENRY PUTZEL, jr. REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1976 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 - Price $13 (Buckram) Stock Number 028-001-00387-7 f..-tlVrf f..-tlVrf f..-tlVrf f..-tlVrf I $1 r .::::> JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS w ARREN E. BURGER, CHIEF JUSTICE. WILLIAM 0. DOUGLAS, ASSOCIATE JUSTICE. WILLIAM J. BRENNAN, JR., ASSOCIATE JUSTICE. POTTER STEW ART, ASSOCIATE JUSTICE. BYRON R. WHITE, ASSOCIATE JUSTICE. THURGOOD MARSHALL, ASSOCIATE JUSTICE. HARRY A. BLACKMUN, ASSOCIATE JUSTICE. LEWIS F. POWELL, JR ., ASSOCIATE JUSTICE. WILLIAM H. REHNQUIST, ASSOCIATE JUSTICE. RETIRED EARL WARREN, CHIEF JUSTICE.* STANLEY REED, ASSOCIATE JUSTICE. TOM C. CLARK, ASSOCIATE JUSTICE. OFFICERS OF THE COURT WILLIAM B. SAXBE, ATTORNEY GENERAL. ROBERT H. BORK, SOLICITOR GENERAL. MICHAEL RODAK, JR., CLERK. HENRY PUTZEL, jr., REPORTER OF DECISIONS. FRANK M. HEPLER, MARSHAL. EDWARD G. HUDON, LIBRARIAN. *Mr. Chief Justice Warren, who retired effective June 23, 1969 (395 U.S. m), died July 9, 1974. See post, p. v. III f..-tlVrf f..-tlVrff.. -tlVrf f..-tlVrf f..-tlVrf 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. BLACKMUN, 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 DEATH OF MR. CHIEF JUSTICE WARREN SUPREME COURT OF THE UNITED STATES WEDNESDAY, JULY 24, 1974 Present: MR. CHIEF JUSTICE BURGER, MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, MR ..J USTICE STEWART, MR. JusTICE WHITE, MR. J1,sncE MARSHALL, MR. Jus- TICE BLACKMUN, and MR. JUSTICE POWELL. THE CHIEF JUSTICE said: Before we proceed today with the regular business of the Court, it is my sad duty to take note for the record and the Journal of this Court of the death of our beloved colleague and friend Mr. Chief Justice Warren, who served as Chief Justice of the United States from 1953 to 1969. His retirement on June 23, 1969, completed a career of public service of more than a half-century, a public career that has few parallels in modern times. I speak for all the present and former members of the Court today in expressing our deep sorrow at his death, and our profound sympathy for Mrs. Warren and her family. On an appropriate occasion during the next Term of the Court, a memorial service will be conducted for Mr. Chief Justice Warren in this chamber. 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. The opinion reported on page 1301 was written in chambers by an individual Justice. Page Adult Film Assn. of America v. Lucas...................... 954 Adult Film Assn. of America v. Saxbe..................... 954 Alabama ; Trinkler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917 Allen Park Public Schools v. Bradley...................... 717 Amaya; U. S. Board of Parole v. . . . . . . . . . . . . . . . . . . . . . . . . . 902 American Civil Liberties Union; Staats v. . . . . . . . . . . . . . . . . . 910 Anchorage Board of Education v. Haycraft.... . . . . . . . . . . . . . 918 Arias v. United States................................... 905 Arkansas; Mississippi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903 Arkansas; Weston v..................................... 907 Association. For labor union, see name of trade. Attorney General; Adult Film Assn. of America v. . . . . . . . . . . 954 Austin; Letter Carriers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 Avrech; Secretary of Navy v............................. 676 Bach; Bensinger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910 Baxter v. Palmigia.no. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .. . . 908 Beaty; Weinberger v.................................... 901 Bell Supervisors Protective Assn. v. Labor Board............ 904 Bensinger v. Bach...................................... 910 Berry v. National Broadcasting Co........................ 911 Bigelow v. Virginia............... ... .................... 909 Board of Ed. of Anchorage v. Haycraft.................... 918 Board of Ed. of Jefferson County v. Newburg Area Council. .. 918 Board of Ed. of Louisville v. Haycraft........ . . . . . . . . . . . . . 918 Boyd v. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954 Bradas; Rapides Parish Police Jury v. . . . . . . . . . . . . . . . . . . . . 901 Bradley; Allen Park Public Schools v. . . . . . . . . . . . . . . . . . . . . . 717 Bradley; Grosse Pointe Public School System v. . . . . . . . . . . . . 717 Bradley; Milliken v. . . . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . . . . . 717 VII VIII TABLE OF CASES REPORTED Page Brotherhood. For labor union, see name of trade. Brown v. United States.................................. 928 Buckley v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910 Buckley v. New York................................... 944 Cahn v. Long Island Vietnam Moratorium Committee....... 906 California; Buckley v. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 910 California; Enskat v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937 California; Huguez v................................... 905 California; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915 California v. Welton..................................... 905 California Newspapers, Inc. v. Typographical Union. . . . . . . . 905 Callaway; Calley v...................................... 906 Calley v. Callaway......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906 Cameron v. North Carolina.............................. 905 Cangiano v. United States................................ 934 Cantrell v. Forest City Publishing Co. . . . . . . . . . . . . . . . . . . . . 909 Cargill, Inc.; Missouri Portland Cement Co. v. . . . . . . . . . . . . . 919 Carlson v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924 Carter v. Court of Criminal Appeals of Texas.............. 911 Carter v. Kern.......................................... 911 Chiles v. Weinberger... .. . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . . . 902 City. See name of city. Class of County Clerks and Registrars v. Ramirez. . . . . . . . . . . 904 Codispoti v. Pennsylvania................................ 506 Commissioner v. Idaho Power Co......................... 1 Commissioner of Internal Revenue. See Commissioner. Commonwealth. See name of Commonwealth. Comptroller General v. American Civil Liberties Union. . . . . . 910 Connecticut National Bank; United States v. . . . . . . . . . . . . . . . 656 Cote v. United States................................... 954 County. See name of county. Court of Criminal Appeals of Texas; Carter v. . . . . . . . . . . . . . 911 DeChamplain; McLucas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 DeFunis v. Odegaard.................................... 903 Dillenburg v. Kramer................................... 901 Director of penal or correctional institution. See name of director. Director of Public Aid of Illinois v. Wilson................. 910 District Atty., Nassau County v. Long Island Vietnam Com.. 906 District Judge. See U. S. District Judge. Dorszynski v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424 East Hampton; Gwathmey v............................. 907 Electrical Workers v. Labor Board. . . . . . . . . . . . . . . . . . . . . . . . 902 I . I l TABLE OF CASES REPORTED Ellison v. United States ................................. . Enskat v. California. .................................... . Farrell v. Iowa ......................................... . Ferguson v. United States ............................... . Forest City Publishing Co.; Cantrell v . ................... . Fry v. United States .................................... . Georgia; Jenkins v . .................................... . Gertz v. Robert Welch, Inc .............................. . Gomes v. Travisono .................................... . Gomes; Travisono v . ................................... . Governor. See name of State. IX Page 906 937 907 910 909 904 153 323 910 909 Grand Jury Proceedings, In re.... . . . . . . . . . . . . . . . . . . . . . . . . 1301 Gribble; Warm Springs Dam Task Force v................. 910 Grosse Pointe Public School System v. Bradley............. 717 Grossman v. Striepeke. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908 Guam Publications, Inc.; Porter v. . . . . . . . . . . . . . . . . . . . . . . . 908 Gwathmey v. East Hampton.............. ... ............ 907 Hamling v. United States................................ 87 Haycraft; Board of Ed. of Anchorage v. ................... 918 Haycraft; Board of Ed. of Louisville v. . . . . . . . . . . . . . . . . . . . 918 Hayes; Taylor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488 Heffernan v. Thoms..................................... 908 Hip Magazine v. United States........................... 947 Hopkins; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 Huguez v. California.................................... 905 Idaho Power Co.; Commissioner v. . . . . . . . . . . . . . . . . . . . . . . . 1 Illinois; Meeks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905 Illinois; Sutherland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 Illinois Director of Public Aid v. Wilson... . . . . . . . . . . . . . . . . . 910 In re. See name of party. Internal Revenue Service. See Commissioner. International. For labor union, see name of trade. Interstate Commerce Comm'n v. Oregon Pacific Industries.... 904 Iowa; Farrell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 J efferson County Board of Ed. v. Newburg Area Council..... 918 Jenkins v. Georgia...................................... 153 J-R Distributors, Inc. v. Washington..................... 949 Justices of Supreme Court of New York; Toporoff v......... 905 Kaplan v. United States.................................. 942 Kern; Carter v......................................... 911 Kerner v. United States.................................. 955 Kingswood; Michelman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902 Knight Newspapers, Inc. v. Tornillo....................... 241 X TABLE OF CASE, REPORTED Page Kramer; Dillenburg v.................................... 901 Labor Board; Bell Supervisors Protective Assn. v. . . . . . . . . . . 904 Labor Board; Electrical Workers v................ . ...... 902 Labor Board v. Typographical Union..................... 905 Labor Union. See name of trade. Lehman v. Shaker Heights................................ 298 Letter Carriers v. Austin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 Lewis, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1301 Local. For labor union, see name of trade. Long Island Vietnam Moratorium Committee; Cahn v. . . . . . 906 Louisville Board of Education v. Haycraft......... . . . . . . . . . 918 Lucas; Adult Film As.sn. of America v. . . . . . . . . . . . . . . . . . . . . 954 Marine Bancorporation, Inc.; United States v.... . . . . . . . . . . . 602 Marshall; Village Books, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 930 McDonnell; Wolff v..................................... 539 McLaughlin v. Prieto.................................... 903 McLucas v. DeChamplain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Meeks v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905 Mendocino County Clerk v. Ramirez...................... 24 Miami Herald Publishing Co. v. Tornillo.................... 241 Michelman v. Kingswood. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902 Michigan Governor v. Bradley............................ 717 Miller v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915 Millican v. United States................................. 947 Milliken v. Bradley. . . . . .. . .. . .. . .. . .. . . . . . . . . .. . . . . .. . .. 717 Minnesota v. Reserve Mining Co.......................... 911 Mississippi v. Arkansas................................... 903 Missouri Portland Cement Co. v. Cargill, Inc............... 919 Mitchell v. Sirica. . . . . . . .. . .. . .. . . . . .. . .. . .. . .. . . . . .. . . . 955 ~assau County District Atty. v. Long Island Vietnam Com.. 906 National Broadcasting Co.; Berry v....................... 911 National Labor Relations Board. See Labor Board. Newburg Area Council; Board of Ed. of Jefferson County v.. 918 New York; Buckley v.................................... 944 New York Supreme Court Justices; Toporoff v............. 905 New York Times Co.; Typographical Union v............. 901 Nixon v. United States ............................. 683,904,909 Nixon; United States v ....... ..................... 683,904, 909 North Carolina; Cameron v. . . . . . . . . . . . . .. . .. . .. . . . . . . . .. 905 Norton v. Weinberger................................... 902 Odegaard; DeFunis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903 Ohio; Boyd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954 Oregon Pacific Industries; Interstate Commerce Comm'n v... 904 TABLE OF CASES REPORTED XI Page Palmigiano; Baxter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908 Paris Adult Theatre I v. Slaton. . . . . . . . . . . . . . . . . . . . . . . . . . . 939 Peachtree News Co. v. United States...................... 932 Pennsylvania; Codispoti v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506 Phillips Petroleum Co. v. United States.................... 906 Porter v. Guam Publications, Inc......................... 908 President of the United States v. United States ...... 683,904,909 President of the United States; United States v ...... 683,904,909 Prieto; McLaughlin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903 Prince Georges County State's Atty.; Village Books v. . . . . . . . 930 Ramirez; Class of County Clerks and Registrars v. . . . . . . . . . . 904 Ramirez; Richardson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Rapides Parish Police Jury v. Bradas. . . . . . . . . . . . . . . . . . . . . . 901 Reserve Mining Co.; Minnesota v . . . . . . . . . . . . . . . . . . . . . . . . . 911 Reservists Committee to Stop the War; Schlesinger v... . .. . . 208 Richardson v. Ramirez.................................. 24 Richardson; United States v.. .. . . .. .. . .. . .. . .. . .. .. .. . . . 166 Robert Welch, Inc.; Gertz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 San Rafael Independent Journal v . Typographical Union.... 905 Saxbe; Adult Film Assn. of America v. . . . . . . . . . . . . . . . . . . . . 954 Scata v. United States................................... 903 Schlesinger v. Reservists Committee to Stop the War. . . . . . . . 208 Secretary of Air Force v. DeChamplain.................... 904 Secretary of Army; Calley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906 Secretary of Defense v. Reservists Com. to Stop the War. . . . 208 Secretary of Health, Education, and Welfare v. Beaty. . . . . . . 901 Secretary of Health, Education, and Welfare; Chiles v . . . . . . 902 Secretary of Health, Education, and Welfare; Norton v . .... 902 Secretary of Navy v. Avrech................ . ............ 676 Secretary of State of Washington; Dillenburg v............. 901 Shaker Heights; Lehman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Sians v. United States................................... 926 Sirica; Mitchell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955 Slaton; Paris Adult Theatre I v. . . . . . . . . . . . . . . . . . . . . . . . . . . 939 South Carolina; Watkins v............................... 911 Spence v. Washington. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405 Staats v. American Civil Liberties Union................... 910 State. See name of State. State's Atty. for Prince Georges County; Village Books v . . . 930 Striepeke; Grossman v................. . ................. 908 Sutherland v. Illinois.................................... 907 Taylor v. Hayes......................................... 488 Terry v. United States................................... 911 XII TABLE OF CASES REPORTED Page Texas; Van Slyke v..................................... 907 Texas Court of Criminal Appeals; Carter v................. 911 Thevis v. United States.................................. 932 Thoms; Heffernan v..................................... 908 Tidewater Oil Co. v. United States........................ 906 Toporoff v. Justices of Supreme Court of New York......... 905 Tornillo; Knight Newspapers, Inc. v. . . . . . . . . . . . . . . . . . . . . . . 241 Tornillo; Miami Herald Publishing Co. v. . . . . . . . . . . . . . . . . . 241 Town. See name of town. Travisono v. Gomes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 Travisono; Gomes v..................................... 910 Trinkler v. Alabama................................ . .... 917 Typographical Union; California Newspapers, Inc. v. . . . . . . . 905 Typographical Union; Labor Board v..................... 905 Typographical Union v. New York Times Co............... 901 Typographical Union; San Rafael Independent Journal v. . . . 905 Union. For labor union, see name of trade. United States; Arias v......... ... .. .. .. .. . . . . . . . .. .. . . .. 905 United States; Brown v.................................. 928 United States; Cangiano v. . . . .. . .. . . .. .. . . . .. .. .. . . . . . .. 934 United States; Carlson v................................. 924 United States v. Connecticut National Bank....... . . . . . . . . 656 United States; Cote v........................... . ....... 954 United States; Dorszynski v............................. 424 United States; Ellison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906 United States; Ferguson v............................... . 910 United States; Fry v.................................... 904 United States; Hamling v................................ 87 United States; Hip Magazine v.......... .. .. .. . . . . . . . .. . . 947 United States v. Hopkins................................ 909 United States; Kaplan v................................. 942 United States; Kerner v................................. 955 United States v. Marine Bancorporation, Inc............... 602 United States; Millican v................................ 947 United States v. Nixon ........................... 683,904,909 United States; Nixon v. . . . . . . . . . . . . . . . . . . . . . . . . . . 683, 904, 909 United States; Peachtree News Co. v...................... 932 United States; Phillips Petroleum Co. v . . . • . • . . . . • . • . . . . . . 906 United States v. Richardson.......... . . . . . . . . . . . . . . . . . . . . 166 United States; Scata v................................... 903 United States; Sians v................................... 926 United States; Terry v.................................. 911 United States; Thevis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932 TABLE OF CASES REPORTED xm Page United States; Tidewater Oil Co. v........................ 906 United States v. Wilson... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924 U. S. Board of Parole v. Amaya........................... 902 U.S. District Judge; Adult Film Assn. of America v......... 954 U. 8. District Judge; Mitchell v........................... 955 Van Slyke v. Texas...................................... 907 Village Books, Inc. v. Marshall........................... 930 Virginia; Bigelow v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 Warden. See name of warden. Warm Springs Dam Task Force v. Gribble................. 910 Washington; J-R Distributors, Inc. v. . . . . . . . . . . . . . . . . . . . . 949 Washington; Spence v................................... 405 Washington Secretary of State; Dillenburg v. . . . . . . . . . . . . . . 901 Watkins v. South Carolina. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911 Weaver v. ·wilson....................................... 910 Wedding; Wingo v...................................... 461 Weinberger v. Beaty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901 Weinberger; Chiles v.................................... 902 Weinberger; Norton v................................... 902 Welch, Inc.; Gertz v. .. . .. . .. . .. . .. . . . . . . .. . .. . .. . .. . .. . . 323 Welton; California v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905 Weston v. Arkansas...................................... 907 Wilson; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924 Wilson: Weaver v....................................... 910 Wingo v. Wedding...................................... 461 Wolff v. McDonnell...................................... 539 TABLE OF CASES CITED Page Abbott Labs. v. Gardner, 387 U. S. 136 236 Abrams v. United States, 250 u. s. 616 387 Accardi v. Shaughnessy, 347 U. S. 260 695 Adams v. Carlson, 368 F. Supp. 1050 594 Adderley v. Florida, 385 U. S. 39 303, 312-313 Aetna Life Ins. v. Haworth, 300 U. S. 227 35 Alabama Power v. Ickes, 302 U. S. 464 194 Aldridge v. United States, 283 U. S. 308 140 Alexander v. Holmes County Bd. of Ed., 396 U. S. 19 774 Alexander v. Louisiana, 405 U.S. 625 138 Alexander v. United States, 201 U. S. 117 691 All-Steel Equipment v. Commissioner, 54 T. C. 1749 18 American Automobile Assn. v. United States, 367 U.S. 687 15 American Fed. of Govt. Employees v. Hampton, 77 L. R. R. M. 2977 273 Anti-Fascist Committee v. McGrath, 341 U. S. 123 558,594 Aptheker v. Secretary of State, 378 U. S. 500 143 Argersinger v. Hamlin, 407 U.S. 25 496 Arkansas Louisiana Gas v. Public Utilities Dept., 304 U.S. 61 698 Arnett v. Kennedy, 416 U. S. 134 558,567, 584-585 Arnold Tours v. Camp, 400 U. S. 45 194 Page Ashwander v. TVA, 297 U. S. 288 698 Associated Press v. United States, 326 U. S. 1 251-252,2-54,398 Associated Press v. Walker, 388 U. S. 130 336, 353, 377 Associates & Aldrich Co. v. Times Mirror, 440 F. 2d 133 256 Association of Data Processing Orgs. v. Camp, 397 U. S. 150 171,176,193, 196,218,223--224,236 Atlee v. Laird, 339 F Supp. 1347 223 Attorney General ex rel. Kies v. Lowrey, 199 U.S. 233 794,796 Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639 726,770,796 Attorney General ex rel. Zacharias v. Detroit Bd. of Ed., 154 Mich. 584 726, 770 Auto buses Internacionales v. El Continental Publishing, 483 S. W. 2d 506 379 Avery v. Georgia, 345 U. S. 5W IB8 Bailey v. Patterson, 369 U. S. 31 39,216 Baker v. Carr, 369 U. S. 186 171,178, 180- 181, 194-197, 213--215, 217-218, 220, 223-224, 236, 693, 704 Baker v. Warner, 231 U. S. 588 384 Baldwin v. New York, 399 U. S. 66 495, 511, 535 Barlow v. Collins, 397 U. S. 159 181,185, 194,235-238 xv XVI TABLE OF CASES CITED Page Barnes v. Smith, 305 F. 2d 226 108 Barr v. Matteo, 360 U. S. 564 338 Barrows v. Jackson, 346 u. s. 249 196 Bartels v. Birmingham, 332 U.S. 1~ 22 Beacham v. Braterman, 300 F. Supp. 182 53, 83-84 Beauharnais v. Illinois, 343 U. S. 250 383,385 Beckley Newspapers v. Hanks, 389 U. S. 81 281,332,335 Bell v. Burson, 402 U. S. 535 558,594 Belli v. Curtis Publishing, 25 Cal. App. 3d 384 377 Berger v. United States, 2!}5 U. S. 78 694, 709 Biddle v. Commissioner, 302 U. & 573 Birzon v. King, 469 F. 2d 1241 590 Black v. United States, 385 U. S. 26 576 Blockburger v. United States, 284 U. S. 299 432,441-442 Bloom v. Illinois, 391 U. S. 194 495-496, 500, 511, 513-514, 516, 520, 522--523, 532--534, 537 Blount v. Rizzi, 400 U. S. 410 142 Blumenthal v. United States, 332 U. s. 539 124 Board of Ed. v. Barnette, 319 U.S. 624 410, 412-413, 422 Board of Regents v. New Left Project, 404 U.S. 541 542 Board of Regents v. Roth, 408 U. S. 564 558 Bollman, Ex parte, 4 Cranch 75 468 Bouie v. Columbia, 378 U.S. 347 115-116 Bowman D a iry v. United States, 341 U. S. 214 698, 702 Boyd v. United States, 271 U. S. 104 108, 145 Page Bradley v. Richmond School Bd., 416 U. S. 696 102 Bradley v. Richmond School Bd., 462 F. 2d 1058 736, 758 Branzburg v. Hayes, 408 u. s. 665 254, 709, 1301 Braxton v. Carlson, 483 F. 2d 933 572- 573 Breard v. Alexandria, 341 U. S. 622 302--303, 314 Brewer v. Hearst Publishing, 185 F. 2d 846 375 Briarcliff Candy v. Commissioner, 475 F. 2d 775 13 Bridges v. California, 314 U.S. 252 305,359 Broadrick v. Oklahoma, 413 U. S. 601 556 Brockington v. Rhodes, 396 U. 8. 41 40, 71 Brookhart v. Janis, 384 U. S. 1 517 Brooks v. Commissioner, 50 T. C. 927 13 Brooks v. United States, 497 F. 2d 1059 425,451,453-454 Brotherhood. For labor union, see name of trade. Brown v. Allen, 344 U. S. 443 469,477-479 Brown v. Board of F.d., 347 U. S. 483 737, 746,757,761,777,781 Brown v. Board of Ed., 349 U. S. 294 737-738, 753,755, 772-773,800 Brown Shoe Co. v. United States, 370 U. 8. 294 618,620,622-623,653 Bryant v. Harris, 465 F. 2d 365 594 Bullock v. Carter, 405 U. S. 134 54 Burgin v. South Carolina, 404 U. S. 806 126 Byers v. Sun Savings Bank, 41 Okla. 728 86 Ca feteria Employees v. Angelos, 320 U. S. 293 284 Cafeteria Workers v. Mc- Elroy, 367 U. S. 886 557,560 TABLE OF CASES CITED XVII Page Calafut v. Commissioner, 23 T. C. M. 1431 22 Cammarano v. United States, 358 u. s. 498 314-315, 420 Campbell v. U. S. District Court, 501 F. 2d 196 475, 587 Cantrell v. Forest City Publishing, 484 F. 2d 150 379 Carbo v. United States, 314 F. 2d 718 701 Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F. R. D. 318 708 Carrington v. Rash, 380 U. S. 89 54, 74, 82 Carter v. United States, 113 U. S. App. D. C. 123 448 Carter v. West Feliciana School Bd., 396 U.S. 290 774 Carwile v. Richmond Newspapers, 196 Va. 1 269 Cervantes v. Time, Inc., 464 F. 2d 986 379 Chambers v. Mississippi, 410 U. S. 284 583,585 Chaplinsky v. New Hampshire, 315 U. S. 568 340,385,417 Chapman v. FPC, 345 U. S. 153 693 Chase v. Daily Record, 83 Wash. 2d 37 379 Cheff v. Schnackenberg, 384 U. S. 373 495-496, 505,535 Child Welfare Society v. Kennedy School Dist., 220 Mich. 290 797 Cincinnati, N. 0. & T. P. R. Co. v. United States, 191 Ct. Cl. 572 15 Cipriano v. Houma, 395 U.S.701 54,80,82 City. See name of city. CSC v. Letter Carriers, 413 U. 8. 548 273, 556 Clark v. United States, 289 U.S. I 712 Clutchette v. Procunier, 497 F. 2d 809 572-573, 583,586,589,592,595 Cobbledick v. United States, 309 U. S. 323 690-691 552-191 0. 76 - 2 Page Codispoti v. Pennsylvania, 418 U. S. 506 495,500 Cohen v. California, 403 U.S. 15 320,412 Collins v. Detroit, 195 Mich. 330 797 CBS v. Democratic Committee, 412 U.S. 94 255,303 Commissioner v. Lincoln Savings, 403 U. S. 345 15 Commissioner of In tern al Revenue. See Commissioner. Commonwealth. See name of Commonwealth. Communist Party v. Whitcomb, 414 U. S. 441 82 Confiscation Cases, 7 Wall. 454 693 Cooke v. United States, 267 U. S. 517 498,527,530 Cooper v. Aaron, 358 U. S. 1 773-774, 782, 792-793 Cooper v. Illinois Publishing, 218 Ill. App. 95 375 Cooper v. Pate, 378 U. S. 546 556,576 Coors v. Commissioner, 60 T. C. 368 12,14 Coplon v. United States, 89 U. S. App. D. C. 103 576 Covington v. Harris, 136 U. S. App. D. C. 35 596 Cox v. Louisiana, 379 U. S. 536 311,313 Cox v. Louisiana, 379 U. S. 559 303,316 Cox v. New Hampshire, 312 U. S. 569 303,311 Cox v. United States, 473 F. 2d 334 425,446,451,454 Cruz v. Beto, 405 U. S. 319 556,576 C. & S. Air Lines v. Waterman S. S. Corp., 333 U. S. 103 710,715 Curtis Publishing v. Butts, 388 U. 8. 130 292,328,336 DaCosta ,·. Laird, 471 F. 2d 1146 215 Davis v. Alaska, 415 U. S. 308 586-588 XVIII TABLE OF CASES CITED Page Davis v. Beason, 133 U. S. 333 53,81-82 Davis v. NBC, 447 F. 2d 981 379 Davis v. School Comm'rs, 402 u. s. 33 774-775, 802,807 DeGregory v. Attorney General, 383 U. S. 825 359 Dennis v. United States, 341 U. S. 494 115,387 Dent v. West Virginia, 129 u. s. 114 558 De Stefano v. Woods, 392 u. s. 631 513,533 Detroit Bd. of Ed. v. Superintendent of Pub. Inst., 319 Mich. 436 793 Detroit Edison Co. v. Commissioner, 319 U. S. 98 11 Dillenberg v. Kramer, 469 F. 2d 1222 76, 79 Dills v. Delira Corp., 145 Cal. App. 2d 124 61 Dobson v. Commissioner, 320 U. S. 489 19 Doe v. McMillan, 412 U. S. 306 704 Doremus v. Board of Ed., 342 u. s. 429 226 Dorr v. United States, 195 U.S. 138 384 Dorszynski v. United States, 418 u. s. 424 909 Duncan v. Louisiana, 391 U. S. 145 511,513, 515- 516,518, 532-535, 537 Dunn v. Blumstein, 405 u. s. 330 54, 62, 65-66, 76-78,80,82,317 Dunn v. United States, 284 u. s. 390 101 Dutton v. Evans, 410 U. S. 74 701 Dyke v. Taylor Implement Co., 391 U. S. 216 495 Ecko Products v. FTC, 347 F. 2d 745 922 Edelman v. Jordan, 415 U.S. 651 83 Edwards v. South Carolina, 372 u. s. 229 313 Page Elfbrandt v. Russell, 384 U. S. 11 305,359 Elkins v. United States, 364 U.S. 206 710 EPAv.Mink,410U.S.73 175 Evans v. Cornman, 398 U.S. 419 82 Ex parte. See name of party. Fairchild v. Hughes, 258 U. S. 126 181-182, 192,220 Farkas v. Texas Instruments, 375 F. 2d 629 273 Farmer v. Philadelphia Electric, 329 F. 2d 3 273 Fay v. Noia, 372 U. S. 391 468 FCC v. Sanders Bros. Radio, 309 u. s. 470 193 FMB v. Isbrandtsen Co., 356 U. S. 481 693 FTC v. Procter & Gamble, 386 U. S. 568 623-624,628,637,922 Fincher v. Scott, 352 F. Supp. 117 53, 83 Firestone v. Time, Inc., 460 F. 2d 712 379 Firestone v. Time, Inc., 271 So. 2d 745 378 First Nat. Bank v. Dickinson, 396 U. S. 122 610 First Nat. Bank v. Walker Bank, 385 U. S. 252 610 Fisher v. Pace, 336 U. S. 155 527 Flast v. Cohen, 392 U. S. 83 72, 169-175,178,180- 189, 193-197,202,204- 205, 207, 214-218, 222, 224-225, 227-229, 231- 232, 237 Florida Power v. Electrical Workers, 417 U. S. 790 902 Fluery, In re, 67 Cal. 2d 600 62 Ford Motor v. United States, 405 u. s. 562 624, 922 Fowler v. Rhode Island, 345 U.S. 67 316 Frank v. United States, 395 U. S. 147 495,511 TABLE OF CASES CITED XIX Po.ge Fribourg Navigation v. Commissioner, 383 U. S. 272 11 Frink v. McEldowney, 29 N. Y. 2d 720 378 Frothingham v. Mellon, 262 u. s. 447 171-172, 181, 186, 192, 202, 205, 220, 229-231 Fuentes v. Shevin, 407 U. S. 67 583 Gagnon v. Scarpelli, 411 U. S. 778 544, 559- 560, 570, 590--591, 594 Gallman v. Carnes, 254 Ark. 987 377 Garrison v. Louisiana, 379 U. S. 64 282, 311,332,335,341,344 Gault, In re, 387 U. S. 1 564,585 Gay v. Ruff, 292 U. S. 25 692 General Foods v. FTC, 386 F. 2d 936 922 General Talking Picturoo v. Western Electric, 304 U.S. 175 206 George Moore Ice Cream v. Rose, 289 U. S. 373 143 Gertz v. Robert Welch, Inc., 418 u. s. 323 262,270,284, 28(}-290,297,907-908 Gibson v. Florida Legislative Comm'n, 372 U. S. 539 1301 Giles v. Harris, 189 U. S. 475 220 Gilligan v. Morgan, 413 U. S. 1 174 Ginsberg v. New York, 390 U. S. 629 123,949 Ginzburg v. United States, 383 u. s. 463 99- 100, 110,112,130,949 Gitlow v. New York, 268 U.S. 652 413 Glasser v. United States, 315 U. S. 60 124 Goldberg v. Kelly, 397 U. S. 254 585,592,594,598 Gomillion v. Lightfoot, 364 U.S. 339 778,808 Paga Gonsalves, In re, 48 Cal. 2d 638 41 Gonzalez v. Zelker, 477 F. 2d 797 475 Goosby v. Osser, 409 U. S. 512 34 Gordon v. Commissioner, 37 T. C. 986 16,22 Gordon v. Random House, 486 F. 2d 1356 380 Gore v. United States, 357 U. S. 386 431, 441--442 Grannis v. Ordean, 234 U.S. 385 558 Gravel v. United States, 408 U.S. 606 704 Grayned v. Rockford, 408 U. S. 104 303,311,317 Great Northern R. Co. v. Commissioner, 40 F. 2d 372 7, 12 Green v. Board of Elections, 380 F. 2d 445 53, 81, 84 Green v. County School Bd., 391 U. S. 430 737, 746-747, 754, 774, 798, 803, 807, 809 Greenbelt Coop. Pub. Assn. v. Bresler, 398 U. S. 6 282,284-286 Greene v. McElroy, 360 U. S. 474 567, 585--586, 596 Griffin v. School Board, 377 U.S. 218 774 Groppi v. Leslie, 404 U. S. 496 498-499,515,528 Grosjean v. American Press, 297 U. S. 233 256 Gurera v. United States, 40 F. 2d 338 441 Hagner v. United States, 285 U.S. 427 117 Hague v. CIO, 307 U. 8. 496 305,313 Haines v. Kerner, 404 U. S. 579 556-557,579 Hall v. Beals, 396 U. S. 45 35,66,68 Hall v. United Statoo, 378 F. 2d 349 133 xx TABLE OF CASES CITED Page Halter v. Nebraska, 205 U.S. 34 413,418-419,421 Ham v. South Carolina, 409 u. s. 524 140 Hamling v. United States, 418 u. s. 87 151,914, 916-917, 926-927, 930, 934, 936, 939, 942, 944, 946, 949 Haney v. County Board of Ed., 429 F. 2d 364 744, 755 Hannegan v. Esquire, Inc., 327 U. S. 146 126 Harlem River Consumers v. Associated Grocers, 54 F. R. D. 551 487 Harman v. Forssenius, 380 u. s. 528 80 Harnish v. Herald-Mail Co., 264 N. E. 2d 326 378 Harper v. Virginia Bd. of Elertions, 383 U. S. 663 77 Harris v. United States, 382 U. S. 162 499 Hayakawa v. Brown, 415 U.S. 1304 86 Healy v. James, 408 U. S. 169 411 Heller v. New York, 413 U. S. 48.1 914,916,918,927 929, 932--933, 936, 938, 941, 943, 946, 948, 953 Henry v. Collins, 380 U. S. 356 282 Herb v. Pitcairn, 324 U. S. 117 59-61 Hernandez v. Texas, 347 U. S. 475 137 Hertz Corp. v. United States, 364 U. S. 122 10 Hill v. Florida ex rel. Watson, 325 U. S. 538 282 Hillside Communitv Church v. Tacoma, 76 Wash. 2d 63 301,315 Hobson v. Hansen, 269 F. Supp. 401 808 Hodges v. United States, 243 F. 2d 281 133-134 Hoffman, In re, 67 Cal. 2d 845 313 Page Holiday v. Johnston, 313 U.S. 342 466-467,474,477-478 Holt v. Sarver, 309 F. Supp. 362 599 Hotz v. Alton Telegraph, 324 Ill. App. 1 375 Hull, Ex parte, 312 U. S. 546 556,576 Humphrey's Executor v. United States, 295 U . S. 602 706 Illinois v. Allen, 397 U. S. 337 514,520,522 Imlay Township Dist. v. State Bd. of Ed., 359 Mich. 478 797 Indiana Employment Div. v. Burney, 409 U. S. 540 39, 69,216 In re. See name of party. International. For labor union, see name of trade. Interstate Circuit v. Dallas, 390 u. s. 676 162 ICC v. Jersey City, 322 U. S. 503 693 Investment Co. Institute v. Camp, 401 U. S. 617 194 Irvine v. California, 347 U. S. 128 206,432 Jacobellis v. Ohio, 378 U. S. 184 107,143,949 Jaffa v. United States, 198 F. Supp. 234 13 Jamison v. Texas, 318 U. S. 413 313 Jenkins v. Delaware, 395 U. S. 213 513,532 Jenkins v. Georgia, 418 U. S. 153 114,914,917, 925, 929, 932-933, 936, 938, 943, 946, 948, 953 Jenkins v. McKeithen, 395 U. S. 411 150 Jimenez v. Weinberger, 417 U. S. 628 902 Johnson v. Avery, 393 U. S. 483 544,556,576-578,591 .Tohnson v. New Jersey, 384 U. S. 719 532--533 Kaiser Aluminum v. United States, 141 Ct. Cl. 38 708 TABLE OF CASES CITED XXI Pagn Kansas City S. R. Co. v. Jones, 241 U. S. 181 108 Kaplan v. California, 413 u. s. 115 97, 100 Kennecott Copper v. FTC, 467 F. 2d 67 922 Kent v. Buffalo, 29 N. Y. 2d 818 378 Kent v. United States, 383 U. S. 541 457 Keyes v. School Dist. No. 1, 413 U.S. 189 738,741, 754- 755, 761, 771, 785-786, 793, 798, 804, 806, 812 Kilbourn v. Thompson, 103 u. s. 168 706 Kirstowsky v. Superior Court, 143 Cal. App. 2d 745 63 Kissinger v. New York Transit Auth. , 274 F. Supp. 438 301, 315 Knoxville v. Knoxville Water Co., 212 u. s. 1 11 Kokoszka v. Belford, 417 U.S. 642 902 Konigsberg v. State Bar, 366 U. S. 36 386 Kovacs v. Cooper, 336 U.S. 77 320 Kramer v. Union Free Dist., 395 U. S. 621 54, 78-79, 746 Labor Board. See NLRB. Laird v. Tatum, 408 U. S. 1 177,220 Lamm v. Volpe, 449 F. 2d 1202 223 Landman v. Royster, 333 F. Supp. 621 585, 588, 593, 595 LaReau v. MacDougall, 473 F. 2d 974 595 Lassiter v. Northampton Bd. of Elections, 360 U. S. 45 53 Lee v. Macon County Bd. of Ed., 267 F. Supp. 458 798 Lee v. Washington, 390 U.S. 333 556 Legislature v. Reinecke, 6 Cal. 3d 595 63 Lehman v. Shaker Heights, 418 u. s. 298 419 Pago Levitt, Ex parte, 302 U. S. 633 177-178, 180, 192,219- 220, 223-225, 234-235, 239 Linda R. S. v. Richard D., 410 u. s. 614 194,224 Linkletter v. Walker, 381 U. 8. 618 102 Linn v. Plant Workers, 383 U. s. 53 269-272, 275-276, 278, 281,283-284,287-293 Little, In re, 404 U. S. 553 513 Liverpool S. S. Co. v. Emigration Comm'rs, 113 U.S. 33 223 Local. For labor union, see name of trade. Lopez v. United States, 373 U. S. 427 108, 147 Lovely v. United States, 169 F. 2d 386 133-134 Manhattan-Bronx Postal Union v. Gronouski, 121 U. S. App. D. C. 321 273 Manual Enterprises v. Day, 370 U. S. 478 99, 104, 112, 118-119, 121-122, 142 Mapp v. Ohio, 367 U. S. 643 398,403 M'Ara v. Magistrates of Edinburgh, [1913] Sess. Cas. 1059 302 '.vlarbury v. Madison, 1 Cranch 137 171,191,703,705 Marshall v. Gordon, 243 U.S. 521 706 Martin v. Struthers, 319 U. S. 141 314 Massey Motors v. United States, 364 U. S. 92 11 Maters v. Triangle Publications, 445 Pa. 384 378 Mayberry v. Pennsylvania, 400 U. S. 455 498,501,503, 507, 514-515, 517-518, 523, 528, 530-532, 536 .'.V!azer v. Stein, 347 U. S. 201 206 McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151 222 McConnell, In re, 370 U. S. 230 513 XXII TABLE OF CASES CITED Page Mead v. Horvitz Publishing (9th Dist., Ohio Ct. App., 1973) 378 Memoirs v. Massachusetts, 383 U. s. 413 98- 99,130,154,162,949 Memorial Hospital v. Maricopa County, 415 U. S. 250 78 Meyers v. Alldredge, 492 F. 2d 296 572-573 Miami Herald Publishing v. Tornillo, 418 U. S. 241 306,347,398,401 Michelson v. United States 335 u. s. 469 125 Miller v. Argus Publishing, 79 Wash. 2d 816 379 Miller v. California, 413 u. s. 15 97-98, 101- 104, 106-107, 112, 114- 116, 129-130, 151, 155, 159-160, 162, 164, 913- 914, 918, 925, 927-929, 931, 933, 935-936, 938, 941-943, 945, 948, 953 Miller v. Twomey, 479 F. 2d 701 572-573, 592 Milliken v. Bradley, 418 U. S. 717 918 Mills v. Alabama, 384 U. S. 214 247,257,259-260,305,359 Mine Workers v. Illinois Bar, 389 U. S. 217 359 Miranda v. Arizona, 384 U. S. 436 513, 532 Mishkin v. New York, 383 U.S. 502 107, 122-123, 128-129,949 Mitchell v. Commissioner, 42 T. C. 953 16, 21 Monitor Patriot Co. v. Roy, 401 U. S. 265 367 Monroe v. Board of Comm'rs, 391 U. S. 450 737,767,802 Moore v. Ogilvie, 394 U. S. 814 35-36, 68 Moriarty v. Lippe, 162 Conn. 371 378 Page Morrissey v. Brewer, 408 U. S. 471 500, 544, 556, 559-560, 564, 573, 582-583, 585, 587, 589, 592, 594-595, 597 Murchison, In re, 349 U. S. 133 501 Murdock v. Pennsylvania, 319 U. S. 105 359 Murphy v. Ramsey, 114 U. S. 15 53, 81-82 Nalle v. Oyster, 230 U. S. 165 384 Namet v. United States, 373 U. S. 179 108, 147 Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249 42 NAACP v. Button, 371 U. S. 415 78,342,361 NLRB v. Donnelly Co., 330 u. s. 219 125 NLRB v. Drivers, 362 U.S. 274 277,280 National Licorice v. NLRB, 309 U. s. 350 206 :'\Tear v. Minnesota ex rel. Olson, 283 U. S. 697 385,401 Newman v. Frizzell, 238 U. S. 537 220, 222 New York Times v. Sullivan, 376 U. S. 254 252, 257, 262, 272, 281-282, 291-292, 311, 327-328, 334-335, 340-341, 343, 347, 353-354, 357, 361, 365, 377, 384, 386-387 New York Times v. United States, 403 U. S. 713 259, 261 Niemotko v. Maryland, 340 U. S. 268 316 Nixon v. Sirica, 159 U. S. App. D. C. 58 689, 708 Noorlander v. Ciccone, 489 F. 2d 642 473, 475 Nor f o 1 k Shipbuilding v. United States, 321 F. Supp. 222 13 North Carolina v. Pearce, 395 U. S. 711 457 North Carolina v. Rice, 404 U. S. 244 71 TABLE OF CASES CITED XXIII Page North Carolina Bd. of Ed. v. Swann, 402 U. S. 43 771, 791 North Dakota Pharmacy Bd. v. Snyder's Stores, 414 U. S. 156 35,246 Northern Pacific R. Co. v. Helvering, 83 F. 2d ,508 8 O'Brien v. United States, 386 U. S. 345 576 O'Connor v. Ohio, 385 U.S. 92 147 Offutt v. United States, 348 u. s. 11 497,500,503,530 Old Colony R. Co. v. Commis. sioner, 284 U. S. 552 15 Old Dominion Branch v. Austin, 213 Va. 377 379 Oliver, In re, 333 U. S. 257 498,528,583 On Lee v. United States, 343 U. S. 747 701 Oregon v. Mitchell, 400 u. s. 112 75 Organization for a Better Austin v. Keefe, 402 U. S. 415 247 Orr v. United States, 343 F. 2d 553 16, 21 O'Shea v. Littleton, 414 U. S. 488 65, 219-220, 224 O'Shea v. Unit€d States, 491 F. 2d 774 473-475 Otsuka v. Hite, 64 Cal. 2d 596 33, 75 Packer Corp. v. Utah, 285 U. S. 105 302,308,315 Palko v. Connecticut, 302 U. S. 319 290,358 Palmigiano v. Baxter, 487 F. 2d 1280 573,581,589-590 Palmore v. United States, 411 U. S. 389 487 Paris Adult Theatre v. Slaton, 413 U. S. 49 97, 100, 104, 142, 159-160, 162-163, 165,386, 912-913, 915- 918, 930-931, 937-939, 943-945, 949, 953, 955 Parker v. Levy, 417 U. S. 733 556,678,681 Page Parnell v. Wainwright, 464 F. 2d 735 475 Patterson v. Colorado ex rel. Attorney Gener al, 205 U.S. 454 385 Pauling v. McElroy, 107 U. S. App. D. C. 372 223 Payne v. Wingo, 442 F. 2d 1192 469 Pennekamp v. Florida, 328 U.S. 331 143,263,386 Pennsylvania v. Board of Trusts, 353 U. S. 230 793 People v. Finkelstein, 9 N. Y. 2d 342 122 People ex rel. Workman v. Board of Ed., 18 Mich. 400 749 Perlman v. United States, 2~ U.S. 7 ~1 Perlmutter v. Commissioner, 44 T. C. 382 13 Phillips Co. v. Dumas School Dist., 361 U. S. 376 432 Pickering v. Board of Ed., 391 u. s. 563 282 Pietsch v. President of the United States, 434 F. 2d 861 223 Pinkus v. Pitchess, 429 F. 2d 416 126 Pittsburgh Press v. Human Relations Comm' n, 413 U. S. 376 255-256,261,303,315 Plessy v. Ferguson, 163 U. S. 537 759 Poe v. Ullman, 367 U. S. 497 174 Pointer v. Texas, 380 U. S. 400 567 Police Dept. v. Mosley, 408 u. s. 92 303,311, 315-317 Pollard v. Lyon, 91 U. S. 225 384 Polzin v. Helmbrecht, 54 Wis. 2d 578 379 Porter v. Guam Publications, 475 F. 2d 744 379 Poulos v. New Hampshire, 345 U. S. 395 303,311 XXIV TABLE OF CASES CITED Page Powell v. McCormack, 395 u. s. 486 213,215,693, 703-704 Preiser v. Rodriguez, 411 U. S. 475 544,554,557,579,600 Price v. Johnston, 334 U. S. 266 555 Priestly v. Hastings & Sons Publishing, 271 N. E. 2d 628 378 Procunier v. Martinez, 416 u. s. 396 411,575,580,601 Producers Chemical v. Commissioner, 50 T. C. 940 13, 17 Public Utilities Comm'n v. Pollak, 343 U. S. 451 302-304,307,320,402 Radio Officers v. NLRB, 347 U. 8. 17 432 Raley v. Ohio, 360 U. S. 423 157 Raney v. Board of Ed., 391 U. S. 443 737 Red Lion Broadcasting v. FCC, 395 U.S. 367 303 Retail Clerks v. Schermerhorn, 375 U. S. 96 267 Reynolds v. Pegler, 123 F. Supp. 36 397 Reynolds v. Sims, 377 U. S. 533 54, 74, 77, 777- 778,807-808 Roe v. Wade, 410 U. S. 113 34,67 Rosario v. Rockefeller, 410 U.S. 7~ 6~78 Rosen v. United States, 161 U. S. 29 120-121 Rosenblatt v. Baer, 383 u. s. 75 261,282,289,335, 341,356,377,400,402 Rosenbloom v. Metromedia, Inc., 403 U. S. 29 252,281, 330, 332, 334, 337-339, 343, 346--347, 353,361- 364, 367-369, 371, 377 Rosenbloom v. Metromedia, Inc., 415 F. 2d 892 333 Page Roth v. United States, 354 u. s. 476 99, 102, 107, 111, 114, 117-118, 162, 380, 386, 417, 931, 949 Roviaro v. United States, 353 U. S. 53 600 Rowan v. U. S. Post Office, 397 u. s. 728 131 Ruffalo, In re, 390 U. S. 544 558 Russell v. United States, 369 U. S. 749 118 Sacher v. United States, 343 U. S. 1 498, 500-- 501,517,524,526, 529 Saia v. New York, 334 U.S. 558 305,320,359 St. Amant v. Thompson, 390 U. S. 727 332,335 Salem v. United States Lines, 370 U.S. 31 125 Salinger v. Loisel, 265 U. S. 224 479 Samuels v. Mackell, 401 U. S. 66 907 San Antonio School Dist. v. Rodriguez, 411 U. S. 1 742,751,760 Sanders v. Harris, 213 Va. 369 379 San Diego Trades Council v. Garmon, 359 U. S. 236 271,293 Saunders v. Shaw, 244 U. S. 317 110, 149 Savin, In re, 131 U. S. 267 527 Scheuer v. Rhodes, 416 U.S. 232 410 Schick v. United States, 195 U. S. 65 381 Schlude v. Commissioner, 372 u. s. 128 15 Schneckloth v. Bustamante, 412 U. S. 218 678 Schneider v. State, 308 U. S. 147 80,311 , 314,316,411 School Dist. :No. 6, In re, 284 Mich. 132 795 School Dist. of Lansing v. State Bd. of Ed., 367 .Mich. 591 793-794, 797 Schulz v. Pennsylvania R. Co., 350 U. S. 523 105 TABLE OF CASES CITED XXV Page Screws v. United States, 325 u. s. 91 556 Scripps-Howard Radio v. FCC, 316 U. S. 4 184, 193 Secretary of Agriculture v. United States, 347 U. S. 645 693 Serrano v. Priest, 5 Cal. 3d 584 760 Service v. Dulles, 354 U. S. 363 696 Shapiro v. Thompson, 394 U. S. 618 Sharrow v. Brown, 447 F. 76 2d 94 223 Shelley v. Kraemer, 334 u. s. 1 793 Shelton v. Tucker, 364 U. S. 479 Shepard v. United States, 78 257 F. 2d 293 456 Shotkin v. Nelson, 146 F. 2d 402 702 Shuttlesworth v. Birmingham, 394 U. S. 147 317 Sierra Club v. Morton, 405 U. S. 727 177, 180, 191, 194- 195,215,219,222,226 Small v. United States, 304 A. 2d 641 425,451 Smith v. California, 361 U. S. 147 121, 123, 145 Smith v. Goguen, 415 U. S. 566 414,421-422,907- 908 Smith v. Texas, 311 U. S. 128 Sniadach v. Family Finance, 138 395 U. S. 337 594 Snow v. Commissioner, 416 U.S. 500 Sostre v. McGinnis, 442 F. 18 2d 178 572- 573,594 Southern Nat. Gas v. United States, 188 Ct. Cl. 302 4, 6, 8, 12, 14 Southern Pacific Terminal v. ICC, 219 U. S. 498 Speiser v. Randall, U. S. 513 Spence v. Washington, U. S. 416 65 357 365,474 418 906-908 Pago Spencer v. Kugler, 404 U.S. 1027 741 Standke v. B. E. Darby & Sons, 291 ::Vlinn. 468 378 :-:,tanley v. Georgia, 394 U. S. 557 386 Stanley v. Illinois, 405 U. S. 645 558 State. See also name of State. State v. Kool, 212 N. W. 2d 518 415-416 State v. News-Journal Corp., 36 Fla. Supp. 164 247 State v. Snyder, 277 So. 2d 660 378 Steffel v. Thompson, 415 U.S. 452 908 Stillwell Mfg. v. Phelps, 130 U. S. 520 108 Stone v. New York, C. & St. L. R. Co., 344 U. S. 407 105 Storer v. Brown, 415 U. S. 724 68 Street v. New York, 394 U. S. 576 412,422 Stromberg v. California, 283 u. s. 359 158,289,311,357,410 Sturgis v. Allegan County, 343 Mich. 209 797 Sue v. Chicago Transit Auth., 279 F. 2d 416 702 Sultan v. United States, 249 F. 2d 385 133 Swain v. Boeing Airplane, 337 F. 2d 940 133 Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U . S. I 737-738, 740-741, 744, 746, 757, 769, 771-772, 774-775, 788,798, 802- 803, 806, 809, 812- 814 Talley v. California, 362 U.S. 60 359 Taylor v. Hayes, 418 U. S. 488 512,515, 523,525,534,908 Teamsters v. Oliver, 358 U.S. 283 282 Tennessee Electric v. TVA, 306 u. s. 118 194- Terminiello v. Chicago, 337 U.S. 1 319 XXVI TABLE OF CASES CITED Page Terry, Ex parte, 128 U. S. 289 497,527 Thiel v. Southern Pacific Co., 328 U. S. 217 138 Thornhill v. Alabama, 310 u. s. 88 288,362 Time, Inc. v. Hill, 385 U. S. 374 335-336, 348, 354,362,364,366,402 Times Film Corp. v. Chicago, 365 U. S. 43 386 Tinker v. Des Moines School Dist., 393 U. S. 503 317, 410--411 Torres v. New York Labor Dept., 405 U. S. 949 70 Townsend v. Burke, 334 U. S. 736 432,441 Townsend v. Swain, 372 U. S. 293 468 TPO, Inc. v. McMillen, 460 F. 2d 348 470 Trafficante v. Metropolitan Life Ins., 409 U. S. 205 193 Trails West v. Wolff, 32 N. Y. 2d 207 378 Troutman v. Shriver, 417 F. 2d 171 223 Tumey v. Ohio, 273 U. S. 510 501 Turner v. Warren County Board of Ed., 313 F. Supp. 380 755 Twenty-five East 40th St. Corp. v. Forbes, Inc., 30 N. Y. 2d 595 378 Twohig v. Boston Herald- Traveler, 291 N. E. 2d 398 378 Tyler v. Judges of Court of Registration, 179 U. S. 405 193,220 Ungar v. Sarafiro, 376 U. S. 575 501,503,529-530 United. For labor union, see name of trade. United States, In re, 207 F. 2d 567 41 United States, In re, 257 F. 2d 844 41 United States v. Alcoa, 377 U. S. 271 619 Page United States v. Augenblick, 393 U. S. 348 678 United States v. Barnett, 376 U. s. 681 527 United States v. Brewster, 408 U. S. 501 704 United States v. Brown, 479 F. 2d 1170 455, 457 United States v. Burr, 25 F. Cas. 30 702, 714--715 United States v. Burr, 25 F. Cas. 187 707-708, 713, 715 United States v. Butera, 420 F. 2d 564 137 United States v. Camara, 451 F. 2d 1122 137 United States v. Carll, 105 u. s. 611 117 United States v. Carter, 15 F.R D.3~ ro1 United States v. Chicago, B. & Q. R. Co., 412 U.S. 401 11-12 United States v. Coefield, 155 U. S. App. D. C. 205 425,432, 451,453-454,458-459 United States v. Concentrated Phosphate Assn., 393 u. s. 199 71 United States v. Connecticut Nat. Bank, 418 U. S. 656 693,804 United States v. Connecticut Nat. Bank, 362 F. Supp. 240 627 United States v. Continental Can, 378 U. S. 441 621, 623-624,628,661-662 United States v. Cox, 342 F. 2d 167 693 United States v. Crocker- Anglo Bank, 277 F. Supp. 133 628 United States v. Daniels, 446 F. 2d 967 443 United States v. Debrow, 346 U. S. 374 117 United States v. Dotterweich, 320 U. S. 277 101 United States v. Du Pont, 353 U. S. 586 618 TABLE OF CASES CITED XXVII Page United States v. El Paso Gas, 376 U. S. 651 615-616, 623,922 United States v. Falstaff Brewing, 410 U. S. 526 621, 623-625, 628, 636-637, 639-640, 648, 675, 922 United States v. Fernandez, 456 F. 2d 638 133, 135 United States v. First City Nat. Bank, 386 U.S. 361 626 United States v. First Nat. Bancorporation, 329 F. Supp. 1003 627 United States v. First Nat. Bank, 376 U. S. 665 619, 626 United States v. First Nat. Bank of Jackson, 301 F. Supp. 1161 628 United States v. First Nat. Bank of Md., 310 F. Supp. 157 628 United States v. Gast, 457 F. 2d 141 137 United States v. General Dyna mi cs Corp., 415 U. S. 486 616,631,642 United States v. Gooding, 473 F. 2d 425 137-138 United States v. Gross, 24 F. R. D. 138 700 United States v. Hall, 200 F. 2d 957 133 United States v. Hartford, 489 F. 2d 652 443 United States v. Hartwell, 6 Wall. 385 231 United States v. Hayman, 342 U.S. 205 469,476-477,479-480 United States v. Hess, 124 U.S. 483 118 United States v. Hoffa, 349 F. 2d 20 701 United States v. Idaho First Nat. Bank, 315 F. Supp. 261 627 United States v. ICC, 337 U. s. 426 693, 697 United States v. Iozia, 13 F. R. D. 335 699, 702 Page United States v. Jarratt, 471 F. 2d 226 425,455 United States v. Johnson, 383 U. s. 169 704 United States v. Kaylor, 491 F. 2d 1133 425, 448,451,453-454,459 United States v. Kuhn, 441 F. 2d 179 137-138 United States v. Kurzyna, 485 F. 2d 517 429 United States v. Ludey, 274 U.S. 295 11 United States v. Luros, 243 F. Supp. 160 118 United States v. MacDonald, 455 F. 2d 1259 451,454 United States v. Manarite, 448 F. 2d 583 126 United States v. Marine Bancorporation, 418 U. S. 602 659-660, 667,669,671-674,693 United States v. Matlock, 415 u. s. 164 701 United States v. Morton, 483 F. 2d 573 701 United States v. Norcome, 375 F. Supp. 215 459 United States v. O'Brien, 391 U. S. 367 409,414 United States v. Orito, 413 U. S. 139 97,104,119,925,927, 929,933,935,947-948 United States v. Pabst Brewing, 384 U. S. 546 621,669,674 United States v. Palladino, 490 F. 2d 499 104, 144 United States v. Penn-Olin Chemical, 378 l'. S. 158 621-622,624,653,922 United States v. Pentado, 463 F. 2d 355 138 United States v. Philadelphia Nat. Bank, 374 U. S. 321 610, 619-621, 626, 628-630, 648, 653, 66(}..663, 666-670, 674 United States v. Phillips, 156 U. S. App. D. C. 217 457 XXVIII TABLE OF CASES CITED Page United States v. Phillipsburg Nat. Bank, 399 U.S. 350 619, 621, 626-B27, 653, 660- 664, 666, 668, 670, 673 United States v. Phillipsburg Nat. Bank, 306 F. Supp. 645 663 United States v. Pink, 315 u. s. 203 273 United States v. Reidel, 402 U. S. 478 99, 112, 117 United States v. Reynolds, 345 U. S. 1 710-711, 715 United States v. Richardson, 418 U. S. 166 220,227,235,238 United States v. Ross, 205 F. 2d 619 143 United States v. Ryan, 402 U. S. 530 691 United States v. Santos, 385 F. 2d 43 701 United States v. Schartner, 426 F. 2d 470 133-135 United States v. Schenker, 486 F. 2d 318 425,451,455 United States v. Schooner Peggy, 1 Cranch 103 102 United States v. Scotland Neck Bd. of Ed., 407 U. S. 484 737, 744, 746-747, 755,776 United States v. SCRAP, 412 U. S. 669 194, 204,223,229,235,239 United States v. Seale, 461 F. 2d 345 514 United States v. Spanos, 462 F. 2d 1012 701 United States v. Texas, 321 F. Supp. 1043 744, 755 United States v. Thevis, 484 F. 2d 1149 118 United States v. Third Nat. Bank, 390 U. S. 171 619,626,673 United States v. Tillman, 374 F. Supp. 215 459 Pag0 United States v. Titus, 221 F. 2d 571 133 United States v. Tucker, 404 U. S. 443 431, 455 United States v. 12 200-ft. Reels, 413 U. S. 123 97, 104-106, 113-115, 924, 926, 928, 932, 934, 942, 947, 954 United States v. United Virginia Bankshares, 347 F. Supp. 91 627 United States v. Vaught, 485 F. 2d 320 701 United States v. Velazquez, 482 F. 2d 139 455,457 United States v. Von's Grocery, 384 U. S. 270 622,667 United States v. Vuitch, 402 U. S. 62 354 United States v. Walker, 469 F. 2d 1377 425, 451 United States v. Waters, 141 U.S. App. D. C. 289 448,450-451 United States v. Williams, 407 F. 2d 940 443 United States v. W. T. Grant Co., 345 U. S. 629 71 United States v. Wurzbach, 280 U. S. 396 124 U. S. ex rel. See name of real party in interest. United States Steel v. FTC, 426 F. 2d 592 922 Valentine v. Chrestensen, 316 U. S. 52 314 Van. Fleet v. Oltman, 244 Mich. 241 797 Vclvel v. Nixon, 415 F. 2d 236 223 Virginia, Ex parte, 100 U. S. 339 792-793 Virginia v. Rives, 100 U. S. 313 793 Vitarelli v. Seaton, 359 U. S. 535 696 Wagonheim v. Marvland Censors, 255 Md. 297 931 Warden. See also name of warden. __ J TABLE OF CASES CITED XXIX Page Warden v. Marrero, 417 U. S. 653 902-903 Washington v. Texas, 388 U. S. 14 583 Washington v. World Publishing, 506 P. 2d 913 378 Washington Post v. Chaloner, 250 U. S. 290 384 West v. Northern Publishing, 487 P. 2d 1304 377 White v. Nicholls, 3 How. 266 384 Whitmore v. Kansas City Star, 499 S. W. 2d 45 378 Whitney v. California, 274 U. S. 357 259 Whitus v. Georgia, 385 U. S. 545 138 William M., In re, 3 Cal. 3d 16 41,62 Williams v. Rhodes, 393 u. s. 23 317,321 Williams v. United States, 476 F. 2d 970 425,451,454 Wilwording v. Swenson, 404 u. 8. 249 556,579 Winship, In re, 397 U. S. ~8 SITT Page Wirta v. Alameda-Contra Costa Dist., 68 Cal. 2d 51 301,315,318,321 Wolff v. rvicDonnell, 418 u. s. 539 908-909 Wolin v. Port Authority, 392 F. 2d 83 313 Woodward v. Commissioner, 397 U. S. 572 12 Wright v. Emporia City Council, 407 U. 8. 451 737, 742, 744, 746-747, 755, 776, 798, 801, 803, 805, 808 Wright v. McMann, 387 F. 2d 519 595 Yates v. United States, 355 U. S. 66 517 Yates v. United States, 356 u. s. 363 443 Young v. Gnoss, 7 Cal. 3d 18 41, 62 Younger v. Gilmore, 404 u. s. 15 556,576,578 Younger v. Harris, 401 U. 8. 37 404,907 Youngstown Sheet & Tube v. Sawyer, 343 U. S. 579 273,703,707 TABLE OF STAT UTffi CITED (A) STATUTES OF THE UNITED STATES Pnge 1798, July 14, c. 74, 1 Stat. 591:.l .... ... ....... 323 1840, J uly 4, c. 45, 6 Stat. 802 .. . ........... 323 1867, Feb. 5, c. 28, 14 Stat. 385, § I. .......... 461 Mar. 2, c. 153, 14 Stat. 428, § 5... . ..... . . 24 1868, June 22, c. 69, 15 Stat. 72 ...... .. .. .. ... 24 June 25, c. 70, 15 Stat. 73 . ......... .. ... 24 1870, Jan. 26, c. 10, 16 Stat. 62 . . . . . . . . . . . . . . . 24 Feb. 1, c. 12, 16 Stat. 63 ............... 24 Feb. 23, c. 19, 16 Stat. 67 . . . . . . . . . . . . . . . 24 Mar. 30, c. 39, 16 Stat. 80 ... . ...... .. ... 24 July 15, c. 299, 16 Stat. 363 . . . . . . . . . . . . . . 24 1871, Apr . 20, c. 22, 17 Stat. 13, § 1 ....... .. .. . 539 1876, July 12, c. 186, 19 Stat. 90........... 87 1903, Feb . 11, c. 544, 32 Stat. 823, § 2. . 60'2, 656 1914, Oct. 15, c. 323, 38 Stat. 730, as amended, § 7 .. . .. . . 602, 656, 919 1921, Nov. 23, c. 135, 42 Stat. 224 ...... . ... 166 1928, May 29, c. 852, 45 Stat. 791, § 23.... . 1 1930,June 17, c. 497, 46 Stat. 590, as amended, §305 . . . . .. . . . . .. . 87 1935, July 5, c. 372, 49 Stat. 449, as amended, §§ 7-9, 14 ..... .. .. 264 1937, Mar. 1, c. 21, 50 Stat. 24 ............... 208 l'age 1946, Aug. 1, c. 724, 60 Stat. 755, as amended, § 261 ............. 166 1947, June 23, c. 120, 61 Stat. 136, as amended, § 101 ............. 264 1948, June 25, c. 646, 62 Stat. 869, § 36. . . . . 1 §§ 637, 3401. ..... 461 1949, June 20, c. 227, 63 Stat. 208. . . . . . . . . . 166 1950, Sept. 21 , c. 967, 64 Stat. 873, § 2 . . 60'2, 656 Sept. 30, c. 1115, 64 Stat. 1085, § 2 ..... 424 Dec. 29, c. 1184, 64 Stat. 1125. 602,656,919 1952, Apr. 8, c. 163, 66 Stat. 45 ........ . . . .... 424 1954, Aug. 30, c. 1073, 68 Stat. 919, § 1. . . . . . . 166 1962, Oct. 23, Pub. L. 87- 856, 76 Stat. 1132, §§ 1, 4 ............ 166 1965, Oct. 22, Pub. L . 89- 285, 79 Stat. 1028, 1966, Fet 0 ~1,. -P~b.·. 1:. sO.:- 298 356, 80 Stat. 7, § 1 . 602, 656 1968, Mar. 27, Pub. L. 90-- 274, 82 Stat. 53, § 101 . . . . . . . . . . . . . 87 Oct. 17, Pub. L. 90-- 578, 82 Stat. 1107, § 101 . . . ........ . . 461 1970, July 24, Pub. L. 91- 353, 84 Stat. 466 .. . 241 Aug. 12, Pub. L. 91- 375, 84 Stat. 719. . . 87, 264 Oct. 27, Pub. L. 91- 513, 84 Stat. 1236, §404 ............ . 424 XXXI xxxu TABLE OF STATUTES CITED 1971, Oct. 27, Pub. L. 92- 145, 85 Stat. 394, Paga § 801 et seq. . . . . . . 208 1972, Apr. 6, Pub. L. 92-269, 86 Stat. 117, § 2... 87 Oct. 25, Pub. L. 92- 545, 86 Stat. 1135, § 801 et seq ....... 208 Revised Statutes. §§ 102, 3893........... 87 § 291 ................ 166 §§ 755, 761. ........... 461 § 1979 ............... 539 §§ 5155, 5168--5169 ..... 602 U. S. Code. Title 2, § 192......... 87 Title 5, § 552 ............ 166 §§ 701-706 ........ 676 § 7301 ........... 264 Title 10, §§ 269, 593, 672-675. 208 §§ 880, 934 ......... 676 Title 12, §§ 26-27, 36 ....... 602 § 1828 . . . . . . . 602, 656 §§ 1861, 1864 ...... 166 Title 15, § 18 . . . . . 602, 656, 919 § 29 . . . . . . . . . 602, 656 § 1801 et seq. . . . . 241 Title 18, §§ 1, 3401. ........ 461 § 2 ........ . .. 87,424 §§ 371, 3237. . . . . . . 87 § 1461 .... 87,924,947 § 1462 ........ 87, 924, 926,928,932,934,947 § 1465 ........... 934 §§ 3651, 4209, 5005 et seq .......... 424 Title 19, § 1305....... 87 Title 21, § 844 ........ 424 Title 23, § 131. . . . . . . . 298 Title 26, §§ 161-162, 167, 170, 213, 261, 263, 266, 404, 446, 615 . . . . . . . . . . . . . . . 1 Title 28 (1940 ed.), § 461 .............. 461 Title 28, §§ 46, 537 .......... 166 §§ 294-295 . . . . . . . . 955 Paga U.S. Code-Continued. Title 28--Cont.inued. §§ 509-510, 515--516, 533, 1254, 2101. . 683 §§ 631-639, 2 2 4 3, 2254 ........... 461 § 1257 ........ 24, 241 § 1291 ....... 602,683 § 1292 ....... 602, 717 §§ 1331, 1361 ...... 676 § 1863 . . . . . . . . . . . 87 § 2255 ....... 424, 461 Title 28 (Supp. II), § 1863 . . . . . . . . . . . . . 87 Title 29, §§ 157-159, 164 ............... 264 Title 31, § 107 ........ 166 Title 39 ( 1964 ed.), § 4354 . . . . . . . . . . . . . 87 Title 39, §§ 201, 1201-1209 .. 264 §§ 3008, 3011. . . . . . 87 Title 42, § 1983 ........... 539 § 2017 ........... 166 Title 50, § 403a et seq. . 166 Bank Merger Act of 1966 .. 602, 656 Bank Service Corporation Act ................... 166 Central Intelligence Agency Act of 1949. . . . . . . . . . . . . 166 Civil Rights Act of 1871. .. 539 Clayton Act ...... 602,656,919 Expediting Act. . . . . . . . 602, 656 Federal Deposit Insurance Act . . . . . . . . . . . . . . . 602, 656 Federal Magistrates Act. . . 461 Federal Youth Correct ions Act ................... 424 Freedom of Information Act . . ................. 166 Habeas Corpus Act ........ 461 Highway Beautification Act of 1965 ................. 298 Internal Revenue Code of 1939, § 1141. . . . . . . . . . . . 1 Internal Revenue Code of 1954, §§ 161-162, 167, 170, 213, 261, 263, 266, 404, 446, 615.... . . . . . . . . . . . . 1 TABLE OF STATUTES CITED XXXIII Page Judiciary Act of 1867 ...... 461 Labor Management Relations Act, 1947 .......... 264 Maternity Act ............ 166 National Lab o r Relations Act ................... 264 e w s p a p e r Preservation Act ................... 241 Page Postal Reorganization Act.. 87, 264 Reconstruction Act. . . . . . . . 24 Revenue Act of 1928...... 1 Sedition Act of 1798. . . . . . . 323 Taft-Hartley Act. . . . . . . . . . 264 Uniform Code of Military Justice, Arts. 80, 134 .... 676 (B) CONSTITUTIONS AND STATUTES OF THE STATES AND THE DISTRICT OF COLUMBIA Alabama. Const., Art. 6, § 5 (1819) . . . . . . . . . . . . 24 Code, Tit. 14, § 374 ... 917 Arkansas. Stat. Ann. § 3-707. . . . 24 California. Const., Art. 2, § 5 (1849) . .. . .. . . . .. . . 24 Const., Art. II, §§ 1, 3; Art. VI, § 10; Art. XX, § 11........... 24 Civil Code § 48a ...... 323 Code Civ. Proc. §§ 1060, 1097 . . . . . . . . . . . . . . 24 Elections Code §§ 310, 321, 350, 383, 389- 390, 14240, 14246 . . . 24 Penal Code §§ 311, 311.2 .......... 915,937 Penal Code §§ 1203.4, 4852.01, 4852.13, 4852.16---4852.17 . . . . 24 Colorado. Const., Art. VII, § 10.. 24 Rev. Stat. Ann. § 49- 3- 2 . . . . . . . . . . . . . . . 24 Connecticut. Con s t . , A rt . 6, § 3 (1818) . . . .. . . .. . . . . 24 Pub. Act No. 73-195 .. 656 Gen. Stat. Rev. § 36- 59 ... . ...... . ...... 656 Delaware. Const., Art. 4, § 1 (1831) . . . . . . . . . . . . 24 District of Columbia. Code Ann. § 1-1102. . . 24 Code Ann. § 22-2001.. 942 Code Ann. § 22-3202. . 424 552-191 0 - 76 - 3 Florida. Const., Art. 6, § 4 (1838) . . . . . . . . . . . . 24 Stat. Ann. § 104.38 .... 241 Stat. Ann. § 940.05.... 24 Georgia. Const., Art. 2, § 6 (1868) . . . . . . . . . . . . 24 Code Ann. §§ 26-2011, 26-2105, 27-704 ..... 153 Code Ann. § 26-2101 .. 153, 939 Hawaii. Rev. Stat. § 716-5. . . . . 24 Illinois. Const., Art. 2, § 30 (1818) . . . . . . . . . . . . 24 Rev. Stat., c. 46, § 3-5. 24 Indiana. Const. , Art. 6, § 4 (1816) .. . . . . . . . . . . 24 Ann. Stat. § 29-4804... 24 Iowa. Const., Art. 2 , § 5 (1846) . . . . . . . . . . . . 24 Code § 32.1. . . . .. .. . . . 405 Kansas. Const., Art. 5, § 2 (1859) . .. . . . . . . . .. 24 Stat. Ann. § 22-3722.. 24 Kentucky. Const., Art. 6, § 4 (1799) .. . . . . . .. .. . 24 Louisiana. Const., Art. 6, §4 (1812) . . . . . . . . . . .. 24 Maine. Rev. Stat. Ann., Tit. 21, § 245 . . . . . . . . . . . . . . 24 xxxrv TABLE OF STATUTES CITED Page Maryland. Const., Art. l, § 5 (1851) . . . . . . . . . . . . 24 Ann. Code, Art. 27, §§ 418, 418A. . . . .. . . 930 Massachusetts. Gen. Laws Ann., c. 51, § 1 . . . . . . . . . .. . . . . . 24 Michigan. Const., Art. 2, § 2. . . . . 24 Const., Art. 8, §§ 2-3 .. 717 1867 Pub. Act No. 34, § 28; 1927 Pub. Act No. 319, pt. 2, c. 2, § 9; 1949 Pub. Act No. 231; 1962 Pub. Act No. 175; 1970 Pub. Act No. 48, § 12; 1973 Pub. Act No. 101. ........... 717 Comp. Laws §§ 132.1- 132.2, 211.34, 257.811, 340.26--340.27, 340.55, 340.69, 340.77, 340.- 107, 340.113, 340.121, 340.148--340.149, 340.- 165, 340.188, 340.192, 340.253, 340.330--340.- 330u, 340.352, 340.- 355-340.356, 340.359, 340.361, 340.401-340.- 415, 340.431--340.449, 340.461-340.468, 340.- 563, 340.567, 340.569, 340.574-340.575, 340.- 582-340.586, 340.589-- 340.591, 340.594, 340.- 600, 340.605, 340.609, 340.613-340.614, 340.- 643a, 340.681, 340.711 et seq., 340.781-340.- 782, 340.882, 340.887, 388.182, 388.371, 388.- 611, 388.629, 388.681, 388.851,388.1171, 388.- 1179 .............. 717 Comp. Laws § 168.10.. 24 Minnesota. Const., Art. 7, §2 (1857) . .. . . . . . . . . . 24 Stat. § 609.165........ 24 Page Mississippi. Const., Art. 6, § 5 (1817) . .. . . . . .. . .. 24 Missouri. Const., Art. 3, § 14 (1820) . . .. .. . . . . . . 24 Montana. Const., Art. IV, § 2... 24 Rev. Codes Ann. § 23- 2701 .. .. . . . . . . . .. . 24 Nebraska. Laws 1973, LB57, § 1. . 539 Rev. Stat. §§ 29--2264, 83-1118 . .. . .. . . . . . 24 Rev. Stat. §§ 83-176, 83-185, 83-1107, 83- 1109 .............. 539 Treatment and Corrections Act, §§ 7, 16, 38 ................ 539 Nevada. Const., Art. 2, § 1 (1864) .. . . .. . . .. .. 24 New Hampshire. Rev. Stat. Ann. § 607- A:2 ............... 24 New Jersey. Const., Art. 2, § 1 (1844) . . . .. .. .. . . . 24 Stat. Ann. § 19:4-1.... 24 New York. Const., Art. 2, § 2 (1821) .. .. .. . . .. . . 24 Election Law 152. . . . 24 Penal Law §§ 235.00, 235.05 ............. 944 North Carolina. Const., Art. 6 , § 5 (1868) . .. .. .. .. .. . 24 Gen. Stat. § 13-1...... 24 Ohio. Const., Art. 4 , § 4 (1802) . . . . .. . .. . . . 24 Rev. Code Ann. § 2967.- 16 . . . . . . . . . . . . . . . . 24 Rev. Code Ann. § 5516.- 01 et seq ........... 298 Oregon. Const., Art. 2, § 3 (1857) .. .. .. . . . .. . 24 Rev. Stat. §§ 137.240, 137.250 . .. .. . . . . . .. 24 TABLE OF STATUTES CITED XXXV Page I Pennsylvania. Const., Art. VII, § 1. . 24 Stat. Ann., Tit. 19, §893; Tit. 25,§3552. 24 Rhode Island. Const., Art. 2, § 4 (1842) . . . . . . . . . . . . 24 South Carolina. Const., Art. 4 (1865).. 24 Code Ann. §§ 16-414.1 to 16-414.2 ......... 911 South Dakota. Comp. Laws Ann . §§ 23-57-7, 24-5-2.. 24 Tennessee. Const., Art. 4, § 2 (1834) .. . .. . . . . . . . 24 Code Ann. § 2-202.... 24 Texas. I Const., Art. 7, § 4 (1845) .. . . • . . . . . . . 24 Utah. Const., Art. IV, § 6... 24 Pago Vermont. Const., c. II, § 51. . . . . 24 Virginia. Const., Art. 3, § 14 (1830) . . . . . . .. . . . . 24 Code Ann. § 8-630 .... 264 Washington. Rev. Code § 9.68.010 .. 949 Rev. Code §§ 9.86.10, 9.86.020, 9.86.030 .... 405 Rev. Code § 9.96.050. . 24 Rev. Code §§ 30.04.230, 30.08.020, 30.40.020 .. 602 West Virginia. Const., Art. 3, § I (1863) .. . . . . .. .. . . 24 Const., Art. IV, § 1.... 24 Wisconsin. Const., Art. 3, §2 (1848) . . . .. . .. . . . . 24 Stat. Ann. § 57--078.... 24 Wyoming. Stat. Ann. § 7--311. . . . . 24 (C) RESOLUTION 1818, Mar. 27, Res. 8, 3 Stat. 475 ........................... 683 (D) FonEmN CoNsTITUTION AND STATUTES England. 11 & 12 Geo. 6, C. 58 .. 424 1 9 & 10 Eliz. 2, c. 39 ... 424 Criminal Justice Acts of 1948, 1961 ....... 424 India. Const., Art. 19........ 67 --------- CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1973 COMMISSIONER OF INTERNAL REVENUE v. IDAHO POWER CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 73-263. Argued February 27, 1974-Decided June 24, 1974 Section 167 (a) of the Internal Revenue Code of 1954 allows a depreciation deduction from gross income for "property used in the [taxpayer's] trade or business" or "held for the production of income," whereas § 263 (a) (1) of the Code disallows a deduction for "[a]ny amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate," expenditures which, the regulations state, include the "cost of acquisition, construction, or erection of buildings." Section 161 makes the deductions specified in that part of the Code, including § 167 (a), subject to the exceptions provided in the part including § 263. Respondent public utility claimed a deduction from gross income under § 167 (a) for au the depreciation for the year on its transportation equipment ( cars, trucks, etc.), including that portion attributable to its use in constructing capital facilities, although on its books, as required by the regulatory agencies, it charged such equipment, to the extent it was used in construction, to the capital assets so constructed. The Commissioner of Internal Revenue disallowed the deduction for the construction-related depreciation, ruling that that depreciation was a nondeductible capital expenditure under § 263 1 2 OCTOBER TERM, 1973 Syllabus 418 U.S. (a). The Commissioner was upheld by the Tax Court, but the Court of Appeals reversed, holding that a deduction expressly enumerated in the Code, such as that for depreciation, may properly be taken even if it relates to a capital item, and that § 263 (a) (I) was inapplicable because depreciation is not an "amount paid out" as required by that section. Held: The equipment depreciation allocable to the taxpayer's construction of capital facilities must be capitalized under § 263 (a) (1). Pp. 10-19. (a) Accepted accounting practice and established tax principles require the capitalization of the cost of acquiring a capital asset, including the cost incurred in a taxpayer's construction of capital facilities. The purpose of depreciation accounting is the allocation of the expense of using an asset over the tax periods benefited by that asset. Pp. 10-13. (b) Construction-related depreciation is not unlike expenditure for other construction-related items, such as construction workers' wages, which must be treated as part of the cost of acquiring a capital asset. The significant fact is that the exhaustion of the construction equipment does not represent the final disposition of the taxpayer's investment in that equipment; rather such investment is assimilated into the cost of the capital asset constructed, and this capitalization prevents the clistortion of income that would otherwise occur if depreciation properly allocable to asset acquisition were deducted from gross income currently realized. Pp. 13-14. (c) Capitalization of construction-related equipment depreciation by the taxpayer which does its own construction work maintains tax parity with the taxpayer which has such work done independently. P. 14. (d) Where a taxpayer's generally accepted method of accounting is made compulsory by the regulatory agency a:nd that method clearly reflects income, as here, it is almost presumptively controlling of federal income tax consequences. Pp. 14-15. (e) Considering § 263 (a) (1) 's literal language in denying a deduction for "[a]ny amount paid out" for construction or permanent improvement of facilities, and its purpose to reflect the basic principle that a capital expenditure may not be deducted from current income, as well as the regulations indicating that for purposes of § 263 (a) ( I) "amount paid out" equates with "cost incurred," there is no question that the cost of the transportation equipment was "paid out" in the same manner as the cost of other 1 COMMISSIONER v. IDAHO POWER CO. 3 Opinion of the Court construction-related items, such as supplies, materials, and wages, which the taxpayer capitalized. Pp. 16-17. (f) The priority-ordering directive of § 161 requires that § 263 (a) 's capitalization provision take precedence, on the facts, over § 167 (a). Pp. 17-19. 477 F. 2d 688, reversed. BLACKMUN, J., delivered the opm1on of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. DouGLAS, J., filed a dissenting opinion, post, p. 19. Keith A. Jones argued the cause for petitioner. With him on the briefs were Solicitor General Bork, Assistant Attorney General Crampton, and Elmer J. Kelsey. Frank Norton Kern argued the cause for respondent. With him on the brief was Lawrence Chase Wilson. MR. JusTICE BLACKMUN delivered the opinion of the Court. This case presents the sole issue whether, for federal income tax purposes, a taxpayer is entitled to a deduction from gross income, under § 167 (a) of the Internal Revenue Code of 1954, 26 U.S. C. § 167 (a),1 for depreciation on equipment the taxpayer owns and uses in the construction of its own capital facilities, or whether the capitalization provision of § 263 (a)( I) of the Code, 26 U. S. C. § 263 (a)(l),2 bars the deduction. 1 "§ 167. Depreciation. "(a) GBneral rule. "There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (induding a reasonable allowance for obsolescence)- " ( 1) of property used in the trade or business, or "(2) of property held for the production of income." 2 "§ 263. Capital expenditures. "(a) GBneral rule. [Footnote 2 is continued on p. 4] 4 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. The taxpayer claimed the deduction, but the Commissioner of Internal Revenue disallowed it. The Tax Court (Scott, J., in an opinion not reviewed by the full court) upheld the Commissioner's determination. 29 T. C. M. 383 (1970). The United States Court of Appeals for the Ninth Circuit, declining to follow a Court of Claims decision, Southern Natural Gas Co. v. United States, 188 Ct. Cl. 302, 372-380, 412 F. 2d 1222, 1264-1269 (1969), reversed. 477 F. 2d 688 (1973). We granted certiorari in order to resolve. the apparent conflict between the Court of Claims and the Court of Appeals. 414 U. S. 999 ( 1973). I Nearly all the relevant facts are stipulated. The taxpayer- respondent, Idaho Power Company, is a Maine corporation organized in 1915, with its principal place of business at Boise, Idaho. It is a public utility engaged in the production, transmission, distribution, and sale of electric energy. The taxpayer keeps its books and files its federal income tax returns on the calendar year accrual basis. The tax years at issue are 1962 and 1963. For many years, the taxpayer has used its own equipment and employees in the construction of improvements and additions to its capital facilities.3 The major work has consisted of transmission lines, transmission switching stations, distribution lines, distribution stations, and connecting facilities. "No deduction shall be allowed for- " (1) Any amount paid out for new buildings or for permanent improvements or betterments made to increase tbe value of any property or estate." 3 For a period near the end of World War II, the taxpayer constructed all its capital improvements. At other times, outside contractors have performed part of this work. At the time of the trial of this tax case, the taxpayer had 140 employees engaged in new construction; it has had as many as 300 employees so engaged. L COMMISSIONER v. IDAHO POWER CO. 5 Opinion of the Court During 1962 and 1963, the tax years in question, taxpayer owned and used in its business a wide variety of automotive transportation equipment, including passenger cars, trucks of all descriptions, power-operated equipment, and trailers. Radio communication devices were affixed to the equipment and were used in its daily operations. The transportation equipment was used in part for operation and maintenance and in part for the construction of capital facilities having a useful life of more than one year. On its books, the taxpayer used various methods of charging costs incurred in connection with its transportation equipment either to current expense or to capital accounts. To the extent the equipment was used in construction, the taxpayer charged depreciation of the equipment, as well as all operating and maintenance costs ( other than pension contributions and social security and motor vehicle taxes) to the capital assets so constructed. This was done either directly or through clearing accounts in accordance with procedures prescribed by the Federal Power Commission and adopted by the Idaho Public Utilities Commission. For federal income tax purposes, however, the taxpayer treated the depreciation on transportation equipment differently. It claimed as a deduction from gross income all the year's depreciation on such equipment, including that portion attributable to its use in constructing capital facilities. The depreciation was computed on a composite life of IO years and under straight-line and declining- balance methods. The other operating and maintenance costs the taxpayer had charged on its books to capital were not claimed as current expenses and were not deducted. To summarize: On its books, in accordance with Federal Power Commission-Idaho Public Utilities Commis6 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. sion prescribed methods, the taxpayer capitalized the construction- related depreciation, but for income tax purposes that depreciation increment was claimed as a deduction under § 167 (a).• Upon audit, the Commissioner of Internal Revenue disallowed the deduction for the construction-related depreciation. He ruled that that depreciation was a nondeductible capital expenditure to which § 263 ( a) ( 1) had application. He added the amount of the depreciation so disallowed to the taxpayer's adjusted basis in its capital facilities, and then allowed a deduction for an appropriate amount of depreciation on the addition, computed over the useful life ( 30 years or more) of the property constructed. A deduction for depreciation of the transportation equipment to the extent of its use in day-to-day operation and maintenance was also allowed. The result of these adjustments was the disallowance of depreciation, as claimed by the taxpayer on its returns, in the net amounts of $140,429.75 and $96,811.95 for 1962 and 1963, respectively. This gave rise to asserted deficiencies in taxpayer's income taxes for those two years of $73,023.47 and $50,342.21. The Tax Court agreed with the decision of the Court of Claims in Southern Natural Gas, supra, and described that holding as one to the effect that "depreciation allocable to the use of the equipment in the construction of capital improvements was not deductible in the year the 4 For 1962 and 1963 the taxpayer's gross construction additions were $8,235,440.22 and $5,988,139.56, respectively. Of these amounts, the taxpayer itself constructed $7,139,940.72 and $5,642,342.79. The self-construction portion, therefore, obviously was a substantial part of the gross. The equipment depreciation for those years, to the extent allocated to use in construction and capitalized on the taxpayer's books, amounted to $150,047.42 and $130,523.99, respectively. These were the depreciation amounts deducted for income tax purposes, the major portions of which are presently at issue. COMMISSIONER v. IDAHO POWER CO. 7 1 Opinion of the Court equipment was so used but should be capitalized and recovered over the useful life of the assets constructed." 29 T. C. M., at 386. The Tax Court, accordingly, held that the Commissioner "properly disallowed as a deduction . . . this allocable portion of depreciation and that such amount should be capitalized as part of [taxpayer's] basis in the permanent improvements in the construction of which the equipment was used." Ibid. The Court of Appeals, on the other hand, perceived in the Internal Revenue Code of 1954 the presence of a liberal congressional policy toward depreciation, the underlying theory of which is that capital assets used in business should not be exhausted without provision for replacement. 477 F. 2d, at 690-693. The court concluded that a de one unless it can be sho,vn that the language of § 2, "except for participation in rebellion, or other crime," was intended to have a different meaning than would appear from its face. The problem of interpreting the "intention" of a constitutional provision is, as countless cases of this Court recognize, a difficult one. Not only are there deliberations of congressional committees and floor debates in the House and Senate, but an amendment must thereafter be ratified by the necessary number of States. The legislative history bearing 011 the meaning of the relevant language of § 2 is scant indeed; the framers of the Amendment were primarily concerned with the effect of reduced representation upon the States, rather than with the two forms of disenfranchisement which ,vere exempted from that consequence by the language with which we are concerned here. X onetheless, what legislative history there is indicates that this language was intended by Congress to mean what it says. A predecessor of § 2 ,vas contained in an earlier draft of the proposed amendment, which passed the House of Representatives, but was defeated in the Senate early in 1866. The Joint Committee of Fifteen on Recon44 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. struction then reconvened, and for a short period in April 1866, revised and redrafted what ultimately became the Fourteenth Amendment. The Journal of that Committee's proceedings shows only what motions were made and how the various members of the Committee voted on the motions; it does not indicate the nature or content of any of the discussion in the Committee. While the Journal thus enables us to trace the evolution of the draft language in the Committee, it throws only indirect light on the intention or purpose of those who drafted § 2. See B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 104-120 (1914). We do know that the particular language of § 2 upon which petitioner relies was first proposed by Senator Williams of Oregon to a meeting of the Joint Committee on April 28, 1866. Senator Williams moved to strike out what had been § 3 of the earlier version of the draft, and to insert in place thereof the following: "Representatives shall be apportioned among the several states which may be included within this Union according to their respective numbers, counting the whole number of persons in each State excluding Indians not taxed. But whenever in any State the elective franchise shall be denied to any portion of its male citizens, not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age." Id., at 102. The Joint Committee approved this proposal by a lopsided margin, and the draft Amendment was reported to the House floor with no change in the language of § 2. RICHARDSON v. RAMIREZ 45 24 Opinion of the Court Throughout the floor debates in both the House and the Senate, in which numerous changes of language in § 2 were proposed, the language "except for participation in rebellion, or other crime" was never altered. The language of § 2 attracted a good deal of interest during the debates, but most of the discussion was devoted to its foreseeable consequences in both the Northern and Southern States, and to arguments as to its necessity or wisdom. What little comment there was on the phrase in question here supports a plain reading of it. Congressman Bingham of Ohio, who was one of the principal architects of the Fourteenth Amendment and an influential member of the Committee of Fifteen, commented with respect to § 2 as follows during the floor debates in the House: "The second section of the amendment simply provides for the equalization of representation among all the States of the Union, North, South, East, and West. It makes no discrimination. New York has a colored population of fifty thousand. By this section, if that great State discriminates against her colored population as to the elective franchise, ( except in cases of crime,) she loses to that extent her representative power in Congress. So also will it be with every other State." Cong. Globe, 39th Cong., 1st Sess., 2543 ( 1866). Two other Representatives who spoke to the question made similar comments. Representative Eliot of Massachusetts commented in support of the enactment of § 2 as follows: "Manifestly no State should have its basis of national representation enlarged by reason of a portion of citizens within its borders to which the elective franchise is denied. If political power shall be lost because of such denial, not imposed because of 552-19 1 0 - 76 - 0 46 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. participation in rebellion or other crime, it is to be hoped that political interests may work in the line of justice, and that the end will be the impartial enfranchisement of all citizens not disqualified by crime." Id., at 2511. Representative Eckley of Ohio made this observation: "Under a congressional act persons convicted of a crime against the laws of the United States, the penalty for which is imprisonment in the penitentiary, are now and always have been disfranchised, and a pardon did not restore them unless the warrant of pardon so provided. ". . . But suppose the mass of the people of a State are pirates, counterfeiters, or other criminals, would gentlemen be willing to repeal the laws now in force in order to give them an opportunity to land their piratical crafts and come on shore to assist in the election of a President or members of Congress because they are numerous? And let it be borne in mind that these latter offenses are only crimes committed against property; that of treason is against the nation, against the whole people- the highest known to the law." Id., at 2535. The debates in the Senate did not cover the subject as exhaustively as did the debates in the House, apparently because many of the critical decisions were made by the Republican Senators in an unreported series of caucuses off the floor. Senator Saulsbury of Delaware, a Democrat who was not included in the majority caucus, observed: "It is very well known that the majority of the members of this body who favor a proposition of this character have been in very serious delibera24 RICHARDSON v. RAMIREZ 47 Opinion of the Court tion for several days in reference to these amendments, and have held some four or five caucuses on the subject." Id., at 2869. Nonetheless, the occasional comments of Senators on the language in question indicate an understanding similar to that of the House members. Senator Johnson of Maryland, one of the principal opponents of the Fourteenth Amendment, made this argument: "Now it is proposed to deny the right to be represented of a part, simply because they are not permitted to exercise the right of voting. You do not put them upon the footing of aliens, upon the footing of rebels, upon the footing of minors, upon the footing of the females, upon the footing of those who may have committed crimes of the most heinous character. Murderers, robbers, houseburners, counterfeiters of the public securities of the United States, all who may have committed any crime, at any time, against the laws of the United States or the laws of a particular State, are to be included within the basis; but the poor black man, unless he is permitted to vote, is not to be represented, and is to have no interest in the Government." Id., at 3029. Senator Henderson of Missouri, speaking in favor of the version of § 2 which had been reported by the Joint Committee in April, as opposed to the earlier provision of the proposal which had been defeated in the Senate, said this: "The States under the former proposition [ the corresponding provision of the original Amendment reported by the Committee of Fifteen, which passed the House of Representatives but was defeated in the Senate] might have excluded the negroes under 48 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. an educational test and yet retained their power in Congress. Under this they cannot. For all practical purposes, under the former proposition loss of representation followed the disfranchisement of the negro only; under this it follows the disfranchisement of white and black, unless excluded on account of 'rebellion or other crime.' " Id., at 3033. Further light is shed on the understanding of those who framed and ratified the Fourteenth Amendment, and thus on the meaning of § 2, by the fact that at the time of the adoption of the Amendment, 29 States had provisions in their constitutions which prohibited, or authorized the legislature to prohibit, exercise of the franchise by persons convicted of felonies or infamous crimes.1• More impressive than the mere existence of the state constitutional provisions disenfranchising felons at the time of the adoption of the Fourteenth Amendment is the congressional treatment of States readmitted to the Union following the Civil War. For every State thus readmitted, affirmative congressional action in the form of an enabling act was taken, and as a part of the 14 Ala. Const., Art. 6, § 5 (1819); Cal. Const., Art. 2, § 5 (1849); Conn. Const., Art. 6, § 3 (1818); Del Const., Art. 4, § 1 (1831); Fla. Const., Art. 6, §4 (1838); Ga. Const., Art. 2, §6 (1868); lll. Const., Art. 2, § 30 ( 1818); Ind. Const , Art. 6, § 4 ( 1816); Iowa Const., Art. 2, § .5 (1846) ; Kan. Const., Art. 5, § 2 (1859) ; Ky. Const., Art. 6, § 4 (1799); La. Const., Art. 6, § 4 (1812); Md. Const., Art. 1, §5 (1851); :Winn. Const., Art. 7, §2 (1857); Miss. Const., Art. 6, § 5 (1817); Mo. Const., Art. 3, § 14 (1820); Nev. Const., Art. 2, § 1 (1864) ; N. J. Const., Art. 2, § 1 (1844); N. Y. Const., Art. 2, §2 (1821); N. C. Const., Art. 6, §5 (1868); Ohio Const., Art. 4, § 4 (1802); Ore. Const., Art. 2, § 3 (1857); R. I. Const., Art. 2, § 4 (1842); S. C. Const., Art . 4 (1865); Tenn. Const ., Art. 4, § 2 (1834); Tex. Const., Art. 7, § 4 (1845); Va. Const., Art. 3, § 14 (18:m) ; W. Va. Const., Art. 3, § 1 (1863); Wis. Const., Art. 3, § 2 (1848) . RICHARDSON v. RAMIREZ 49 24 Opinion of the Court readmission process the State seeking readmission was required to submit for the approval of the Congress its proposed state constitution. In March 1867, before any State was readmitted, Congress passed "An act to provide for the more efficient Government of the Rebel States," the so-called Reconstruction Act. Act of Mar. 2, 1867, c. 153, 14 Stat. 428. Section 5 of the Reconstruction Act established conditions on which the former Confederate States would be readmitted to representation in Congress. It provided: "That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution 50 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State . . . ." (Emphasis supplied.) Section 5 was introduced as a Senate amendment to the House bill, which was concerned only with the establishment of military government in the former Confederate States. Cong. Globe, 39th Cong., 2d Sess., 1360-1361 ( 1867). The legislative history of the Reconstruction Act was recounted by Senator Henderson of Missouri, who ultimately voted for it: "As the bill originally came from the House it was a bald and naked proposition to establish without limitation of power or the time of its duration a purely military government for the ten States now unrepresented. This, in my judgment, was a most dangerous experiment. . . . "The Senate, being unwilling to embark on the experiment of pure military rule, modified the House bill by adopting what is known as the Blaine or Sherman amendment. This amendment conceded military rule, as asked by the House, but put some sort of limit to its duration. It provided that when the rebel States should adopt universal suffrage, regardless of color or race, excluding none, white or black, except for treason or such crimes as were felony at the common law, the regulation of exclusion to be left to the States themselves, and should adopt the constitutional amendment proposed at the last session of Congress . . . and so soon as a sufficient number of said States should adopt it to make it a 24 RICHARDSON v. RAMIREZ 51 Opinion of the Court part of the Constitution of the United States, then military law should cease and the .States should be admitted, provided that Congress even then should see fit to receive them." Id., at 1641. A series of enabling acts in 1868 and 1870 admitted those States to representation in Congress. The Act admitting Arkansas, the first State to be so admitted, attached a condition to its admission. Act of June 22, 1868, c. 69, 15 Stat. 72. That Act provided: "WHEREAS the people of Arkansas, in pursuance of the provisions of an act entitled 'An act for the more efficient government of the rebel States,' passed March second, eighteen hundred and sixty-seven, and the act supplementary thereto, have framed and adopted a constitution of State government, which is republican, and the legislature of said State has duly ratified the amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as article fourteen: Therefore, "Be it enacted ... That the State of Arkansas is entitled and admitted to representation in Congress as one of the States of the Union upon the following fundamental condition: That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted, under laws equally applicable to all the inhabitants of said State: Provided, That any alteration of said constitution prospective in its effect may be made in regard to the time and place of residence of voters." 52 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. The phrase "under laws equally applicable to all the inhabitants of said State" was introduced as an amendment to the House bill by Senator Drake of Missouri. Cong. Globe, 40th Cong., 2d Sess., 2600 (1868). Senator Drake's explanation of his reason for introducing his amendment is illuminating. He expressed concern that without that restriction, Arkansas might misuse the exception for felons to disenfranchise Negroes: "There is still another objection to the condition as expressed in the bill, and that is in the exception as to the punishment for crime. The bill authorizes men to be deprived of the right to vote 'as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted.' There is one fundamental defect in that, and that is that there is no requirement that the laws under which men shall be duly convicted of these crimes shall be equally applicable to all the inhabitants of the State. It is a very easy thing in a State to make one set of laws applicable to white men, and another set of laws applicable to colored men." Ibid. The same "fundamental condition" as was imposed by the act readmitting Arkansas was also, with only slight variations in language, imposed by the Act readmitting North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, enacted three days later. Act of June 25, 1868, c. 70, 15 Stat. 73. That condition was again imposed by the Acts readmitting Virginia, Mississippi, Texas, and Georgia early in 1870. Act of Jan. 26, 1870, c. 10, 16 Stat. 62; Act of Feb. I, 1870, c. 12, 16 Stat. 63; Act of Feb. 23, 1870, c. 19, 16 Stat. 67; Act of Mar. 30, 1870, c. 39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363. RICHARDSON v. RAMIREZ 53 24 Opinion of the Court This convincing evidence of the historical understanding of the Fourteenth Amendment is confirmed by the decisions of this Court which have discussed the constitutionality of provisions disenfranchising felons. Although the Court has never given plenary consideration to the precise question of whether a State may constitutionally exclude some or all convicted felons from the franchise, we have indicated approval of such exclusions on a number of occasions. In two cases decided toward the end of the last century, the Court approved exclusions of bigamists and polygamists from the franchise under territorial laws of Utah and Idaho. Murphy v. Ramsey, 114 U.S. 15 (1885); Davis v. Beason, 133 U.S. 333 (1890). Much more recently we have strongly suggested in dicta that exclusion of convicted felons from the franchise violates no constitutional provision. In Lassiter v. Northampton County Board of Elections, 360 U. S. 45 (1959), where we upheld North Carolina's imposition of a literacy requirement for voting, the Court said, id., at 51: "Residence requirements, age, previous criminal record (Davis v. Beason, 133 U. S. 333, 345-347) are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters." Still more recently, we have summarily affirmed two decisions of three-judge District Courts rejecting constitutional challenges to state laws disenfranchising convicted felons. Fincher v. Scott, 352 F. Supp. 117 (MDNC 1972), aff'd, 411 U. S. 961 (1973); Beacham v. Braterman, 300 F. Supp. 182 (SD Fla.). aff'd, 396 U. 8. 12 (1969). Both District Courts relied on Green v. Board of Elections, 380 F. 2d 445 (1967), cert. denied, 389 U. S. 1048 (1968), where the Court of Appeals for the 54 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. Second Circuit held that a challenge to New York's exclusion of convicted felons from the vote did not require the convening of a three-judge district court. Despite this settled historical and judicial understanding of the Fourteenth Amendment's effect on state laws disenfranchising convicted felons, respondents argue that our recent decisions invalidating other state-imposed restrictions 011 the franchise as violative of the Equal Protection Clause require us to invalidate the disenfranchisement of felons as well. They rely on such cases as Dunn v. Blumstein, 405 U. S. 330 (1972), Bullock v. Carter, 405 U. S. 134 (1972), Kramer v. Union Free School District, 395 U. S. 621 (1969), and Cipriano v. City of Houma, 395 17. S. 701 ( 1969) , to support the conclusions of the Supreme Court of California that a State must show a "compelling state interest" to justify exclusion of ex-felons from the franchise and that California has not done so here. As we have seen, however, the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated in the cases on which respondents rely. We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment's applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court. We do not think that the Court's refusal to accept Mr. Justice Harlan's position in his dissents in Reynolds v. Sims, 377 U. S. 533, 589 (1964), and Carrington v. Rash, 380 U. S. 89, 97 ( 1965), that § 2 is the only part of the AmendRICHARDSON v. RAMIREZ 55 24 Opinion of the Court ment dealing with voting rights, dictates an opposite result. We need not go nearly so far as Mr. Justice Harlan would to reach our conclusion, for we may rest on the demonstrably sound proposition that § 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement. Nor can we accept respondents' argument that because § 2 was made part of the Amendment " 'largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment,'" we must not look to it for guidance in interpreting § 1. It is as much a part of the Amendment as any of the other sections, and how it became a part of the Amendment is less important than what it says and what it means. Pressed upon us by the respondents, and by amici curiae, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to tlw legislative forum which may properly weigh and balance them against those advanced in support of California's present constitutional provisions. But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument. ~-------------------------------~~ 56 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. We therefore hold that the Supreme Court of California erred in concluding that California may no longer, consistent with the Equal Protection Clause of the Fourteenth Amendment, exclude from the franchise convicted felons who have completed their sentences and paroles. The California court did not reach respondents' alternative contention that there was such a total lack of uniformity in county election officials' enforcement of the challenged state laws as to work a separate denial of equal protection, and we believe that it should have an opportunity to consider the claim before we address ourselves to it. Accordingly, we reverse and remand for further proceedings not inconsistent with this op1mon. It is so ordered. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting. The Court today holds that a State may strip ex-felons who have fully paid their debt to society of their fundamental right to vote without running afoul of the Fourteenth Amendment. This result is, in my view, based on an unsound historical analysis which already has been rejected by this Court. In straining to reach that result, I believe that the Court has also disregarded important limitations on its jurisdiction. For these reasons, I respectfully dissent. I A brief retracing of the procedural history of this case is necessary to a full understanding of my views. Each of the respondents, the plaintiffs below/ had been con- 1 The proceeding below was a petition for a writ of mandate in the California Supreme Court, hence the moving parties should properly be described as petitioners rather than plaintiffs. However, to avoid confusion, since the petitioners below are the reRICHARDSON v. RAMIREZ 57 24 MARSHALL, J., dissenting victed of a felony unrelated to voting and had fully served his term of incarceration and parole. Each applied to register to vote in his respective county-Ramirez in San Luis Obispo County, Lee in Monterey County, and Gill in Stanislaus County. All three were refused registration because, under applicable provisions of the California Constitution, "no person convicted of any infamous crime ... shall ever exercise the privileges of an elector." 2 The three named plaintiffs filed a petition for a writ of mandate in the California Supreme Court, invoking its original jurisdiction. Plaintiffs challenged the State's disenfranchisement of ex-felons as being violative of the Equal Protection Clause of the Fourteenth Amendment and sought issuance of a peremptory writ of mandate to compel their registration. The complaint labeled the suit as brought "individually and on behalf of all other persons who are ineligible to register to vote in California solely by reason of a conviction of a felony other than an election code felony" and who had fully served their terms of incarceration and parole. The complaint named, as defendants, the election officials who had refused to register them, "individually and as representatives of the class of all other County Clerks and Registrars of Voters who have the duty of determining for their respective counties whether any ex-felon will be denied the right to vote." spondcnts here and vice versa, the parties in the California court will be referred to herein simply as plaintiffs and defendants. 2 California Const., Art. II, § 1, provided, in part, that "no person convicted of any infamous crime . . . shall ever exercise the privileges of an elector in this State." Article II,§ 1, was repealed by referendum at the November 7, 1972, general election and was replaced by a new Art. II, § 3, containing the same prohibition. The state implementing statutes include California Elections Code §§ 310, 321, 383, 389, 390, and 14240. 58 OCTOBER TERM, 1973 :\1ARSHALL, J., dissenting 418 u. s. The three named election officials did not contest the action and represented to the state court that they would permit the named plaintiffs and all similarly situated exfelons in their counties to register and to vote. The representative of the Secretary of State of California, also named as a defendant, has similarly agreed not to contest the suit.3 At this point in the litigation all of the named plaintiffs had been voluntarily afforded the relief they were seeking by the election officials in their respective counties. Subsequently, the petitioner in this Court, Viola Richardson, as County Clerk of Mendocino County, filed a motion to intervene in the proceedings before the California Supreme Court. She indicated to the court that she was being sued in a separate action in a lower state court by an ex-felon seeking to register in her county and that the decision in this case would be dispositive of the legal issue in that controversy. The State Supreme Court ordered Richardson added as a named defendant in the instant action, but did not name the ex-felon suing her as a plaintiff or named class representative herein. In its opinion, the California Supreme Court found the case not to be moot and took the opportunity to address the merits of the Fourteenth Amendment issue. It indicated that, in its view, the ex-felon disenfranchisement provision of the California Constitution and its implementing statutes violated the Equal Protection Clause. The state court did not, however, afford the plaintiffs the relief they sought. The court denied the peremptory writ of mandate. Although the California Supreme Court did not issue a writ ordering Richardson to register either the ex-felon 3 The Attorney General filed a separate petition for certiorari, No. 73-324, to review the judgment of the California Supreme Court. The Secretary of State filed a memorandum opposing that petition for certiorari. The petition was denied today, post, p. 904. RICHARDSON v. RAMIREZ 59 24 MARSHALL, J., dissenting suing her or any other potential elector in her county, she sought review of the state court's decision by way of writ of certiorari in this Court. The election officials in the named plaintiffs' counties did not seek review and the Secretary of State filed a memorandum opposing review by this Court. A There are a number of reasons why I do not believe this case is properly before us at this time. First, I am persuaded that the judgment of the California Supreme Court rests on an adequate and independent state ground. "This Court from the time of its foundation has adhered to the principle that it will not review judgments of state courts that rest on adequate and independent state grounds. . . . Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct \Vrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion." Herb v. Pitcairn, 324 U. S. 117, 125-126 (1945). Plaintiffs sought, from the California Supreme Court, a writ of mandate compelling their registration. The state court denied that relief. The entirety of the judgment of that court is as follows: "The alternative writ, having served its purpose, is discharged, and the petition for peremptory writ is denied." Ramirez v. Brown, 9 Cal. 3d 199,217,507 P. 2d 1345. 1357 (1973) .4 • The judgment of the California Supreme Court is by custom the final paragraph of its opinion. The alternative writ referred to is merely a show-cause order, requiring the respondent to com60 OCTOBER TERM:, 1973 MARSHALL, J., dissenting 418 U.S. The accompanying opinion indicates that the California court did not consider the case before it to be moot and that, in its view, the plaintiffs' assertion that the disenfranchisement provisions were unconstitutional was well taken. Since the court nonetheless denied plaintiffs the relief they sought, we can only conclude that it did so on independent state law grounds. Cf. Brockington v. Rhodes, 396 U. S. 41, 44 (1969). For example, a writ of mandate being discretionary, the state court may have declined its issuance simply because the named plaintiffs had already been registered and mandate relief seemed unnecessary." There is certainly no indication that the decision to deny the writ was based on the state court's view on any federal question. This Court creates an interesting anomaly by purporting to reverse the judgment of the California court. Since that court denied a writ of mandate to compel the registration of ex-felons, the only disposition consistent with this Court's view that the California disenfranchisement provisions are constitutional would be to affirm the judgment below. By reversing, the Court apparently directs the issuance of the peremptory writ. This anomaly demonstrates that this is a classic example of a case where "the same judgment would be rendered by the state court after we corrected its views of federal laws," Herb v. Pitcairn, supra, at 126; hence we can but offer an advisory opinion here. Whether we agree or disagree with the state court's view of the constitutionality of the challenged provisions, the judgment of the state court will necessarily remain to deny the writ of mandate. The Court is aware of this problem and purports to resolve it by speculating that the California court may ply with the petitioner's demand or show cause why it should not be ordered to do so. 5 See 5 B. Witkin, Cal. Proc. 2d, Extraordinary Writs § 22, pp. 3796- 3797, and§ 123, p. 3899 (1971). RICHARDSON v. RA:\1IREZ 61 24 :\lARSHALL, J., dissenting have afforded plaintiffs declaratory relief. Such speculation is totally unfounded. Neither the opinion nor the judgment of the court below even mentions declaratory relief. The plaintiffs did not seek a declaratory judgment. The California Constitution on its face appears to bar the State Supreme Court from issuing a declaratory judgment in an original proceeding such as the one before us, since it limits that court's original jurisdiction to "proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition." Calif. Const., Art. 6, § 10 (Supp. 1974). Exclusive jurisdiction for suits seeking declaratory relief is vested, by statute, in the State Superior Courts." This Court's basis for construing the judgment of the court below as affording declaratory relief is its argument that because the California Supreme Court is the highest court of the State, its observations on the constitutionality of the challenged disenfranchisement provisions are apt to be heeded by state officials. It is true that the opinion of the California court did indicate a view on the merits of the plaintiffs' constitutional claim. But this Court's power "is to correct wrong judgments, not to revise opinions." Herb v. Pitcairn, supra, at 126. One could always argue that where a state court had commented on a matter of federal law, state officials would heed those comments. To say that such comments are a "declaration of federal law" reviewable by this Court is a rationale that would reach every case in which the state court decision rests on adequate ° Calif. Code Civ. Proc. § 1060; see 15 Cal. .Jur. 2d, Declaratory Relief § 13; 3 B. Witkin, Cal. Proc. 2d, Pleading § 705 (c), p. 2329 (1971); see, e.g., Dills v. Delira Corp., 145 Cal. App. 2d 124, 129, 302 P. 2d 397, 400 (1956). The difference between "mandamus and declaratory relief [is] that appellate courts cannot give the latter." 5 B. Witkin, Cal. Proc. 2d, Extraordinary Writs § 21, p. 3796 (1971). 552 -191 0 - '7£ - 7 62 OCTOBER TER.:VI, 1973 MARSHALL, J., dissenting 418 u. s. state grounds, rendering that doctrine a virtual nullity. The Court also cites two cases for the proposition that the California Supreme Court can issue a declaratory judgment in an original proceeding. But, on closer inspection the cases cited by the Court, ante, at 41 n. 13, mer~ly demonstrate that California courts, whose jurisdiction is not limited by any equivalent to Art. III, are free to render advisory opinions.' There is little doubt 7 In the first case relied on by the majority, In re William M., 3 Cal. 3d 16, 473 P. 2d 737 (1970), the California Supreme Court had previously granted a writ of habeas corpus which effectively mooted the petitioner's rlaim for relief. The court, nonetheless, later issued an opinion on the issue posed by the case while denying further relief. In a footnote, the court observed that as a general proposition, courts should avoid advisory opinions, but, in the very next sentence, reaffirmed its inherent discretion to issue such opinions. In the accompanying text, the court noted that it could render a decisicn in a moot case which would not be binding on a party before it, where the case involved issues of particular public importance. Although the court referred to its "declaratory use of habeas corpus in a number of cases," citing B. Wit.kin, Cat. Crim. Proc.§ 790 (1963),and In re Fluery, 67 Cal. 2d 600, 432 P. 2d 986 (1967), the Witkin treatise refers to the court's "declaratory use of habeas corpus" and In re Fluery, supra, in particular, as examples of the "use of the writ to render a purely advisory opinion unnecessary to the determination of the particular controversy." B. Witkin, Cat. Crim. Proc., Habeas Corpus and Other Extraordinary Writs § 790, p. 247 (Supp. 1967). The second case relied on by the majority is Young v. Gnoss, 7 Cal. 3d 18, 496 P. 2d 445 ( 1972), cited by the court below solely for the proposition that mandamus is an appropriate remedy to seek in an original proceeding. In that case, the petitioners had sought mandamus relief from the a.pplication of a state durational residence requirement for voting in order that they might vote in a June prima.ry. The California Supreme Court, in a lengthy opinion, indicated that the challenged requirement was unconstitutional on the authority of our decision in Dunn v. Blumstein, 405 U. S. 330 ( 1972), but exercised its equitable discretion not to order a change in the residence requirements for the June primary RICHARDSON v. RAMIREZ 63 24 ~IARSHALL, J., dissenting that many public officials would heed such an advisory opinion from the California Supreme Court and they would also heed an advisory opinion issued by this Court, but that does not free us from the constitutional limitations on our jurisdiction. Because I believe that the judgment of the California court was based on adequate and independent state grounds, I do not think we have jurisdiction to consider any other issues presented by this case. B Assuming, arguendo, that the California Supreme Court did grant a declaratory judgment, I still believe that we are without jurisdiction because no case or controversy is presented. The Court seems willing to concede that the claims of the named plaintiffs may well be moot. Ante, at 36. The Court, however, premises its because too little time remained for such a change to be implemented in an orderly fashion. AccordinglY, mandamus relief was denied. The court recommended that the necessary changes in residence requirements be effected before the November election but did not so order to give the "Legislature the opportunity to address itself to the problem ... . " 7 Cal. 3d, at 28, 496 P. 2d, at 452-453. The court relied on its earlier decision in Legi,slature v. Reinecke, 6 Cal. 3d 595, 492 P. 2d 385 (1972), where the court had expressed its views on a legislative reapportionment problem, denied a writ of mandate, and retained jurisdiction to allow the legislature an opportunity to act before providing any judicial relief. Each of these cases involves examples of advisory opinions rather than declaratory relief. In the latter, what the California Supreme Court did was to provide some guidance to the legislature while staying its hand and not affording judicial relief for the claimed deprivation. It seems well settled that California courts have "inherent discretion" to issue such advisory opinions. See 2 B. Witkin, Cal. Proc. 2d, Actions § 44, p. 920 (1970); id., § 42, p. 916; 5 B. Wit.kin, Cal. Proc. 2d, Extraordinary Writs § 117, p. 3894; cf. Kirstowsky v. Superior Court, 143 Cal. App. 2d 745, 749, 300 P. 2d 163, 166 (1956). 64 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. jurisdiction on the assumption that there is a live controversy between the named petitioner in this Court and the unnamed plaintiff class members in her own county. To reach this conclusion, it is essential for the Court to conclude that this case is, in fact, a class action and that, in the circumstances of this case, it is appropriate to look to unnamed class members to determine whether there is a live controversy. I am forced to point out that one of the crucial premises upon which the Court bases its assumption of jurisdiction- the existence of a class action-is highly speculative. I am persuaded that the California court never treated this case as a class action. As the majority notes, the case was titled a class action by its originators and the show-cause order merely tracked the language of the complaint. But the California court was, of course, not bound by that designation. In the entirety of its lengthy opinion, the California court does not once refer to this suit as a class action, to respondents as class representatives, to the existence of unnamed parties or to any other indicia of class-action status. Rather, the state court describes the case as simply "a proceeding for writ of mandate brought by three ex-felons to compel respondent election officials to register them as voters." 9 Cal. 3d, at 201, 507 P. 2d, at 1346. The opinion proceeds to list the three plaintiffs and, in a footnote, to explain that the only other plaintiffs were the League of Women Voters and three nonprofit organizations which support the interests of ex-felons. The opinion describes the defendants as the election officials of San Luis Obispo, Monterey, and Stanislaus Counties and the Secretary of State "in his capacity [as] chief elections officer of California," and notes that " [ u] pon application we ordered the Mendocino County clerk [ the petitioner here] joined as an additional party [defendant]." Id., at 202 n. 1, 507 P. 2d, at 1346 n. 1. This description of the parties RICHARDSON v. RAMIREZ 65 24 MARSHALL, J ., dissenting plainly indicates that this suit was not treated as a class action by the state court. I think it highly inappropriate that on the basis of nothing but speculation, this case be fashioned into a class action, for the first time, in this Court. C Even assuming that this case is a class action, I still would not agree that it is properly before us. I do not believe that we can look beyond the named class members to find a case or controversy in the circumstances of this case. The Court seems to hold that review is not foreclosed by the possible mootness of the named plaintiffs' claim because, but for the California Supreme Court's decision, unnamed class members would still be subject to the challenged disenfranchisement, hence the case presents, as to unnamed class members, an issue capable of repetition, yet evading review. I disagree. As the Court properly notes, a general rule of justiciability is that one may not represent a class of which he is not a part. Thus, as a general proposition, a federal court will not look to unnamed class members to establish the case-or-controversy requirement of Art. Ill." But, the "evading review" doctrine of Southern Pacific Terminal Co. v. ICC, 219 U.S. 498,515 (1911), as recently applied in Dunn v. Blumstein, 405 U. S. 330, 333 n. 2 (1972), provides a limited exception to the general rule-- an exception necessary to insure that judicial review is not foreclosed in cases where intervening events threaten invariably to moot the named plaintiff's claim for relief. 8 The Court has held, for example, that Art. III restricts standing to bring a class action to tllC' actual members of the class. O'Shea v. Littleton, 414 U.S. 488 (1974). The named plaintiffs here had been disenfranchised at the time they filed suit, and there is thus no question concerning their standing to challenge the California disenfranchisement provisions. 66 OCTOBER TERM, 1973 MARSHALL, J ., dissenting 418U. 8. The necessity for looking beyond the named class members in this limited category of cases is evidenced by our decision in Dunn v. Blumstein, supra, in which the Court struck down a durational residence requirement for voting. The suit had been brought to compel the registration of the named plaintiff and the members of the class he represented in order that they might participate in an election scheduled for August 6, 1970. The Federal District Court did not order preliminary relief in time for the August election and, by the time the District Court decided the case, the next election was scheduled for November 1970. By then, the named plaintiff would have met the challenged three-month requirement. The District Court, nonetheless, rejected the State's argument that the controversy over the validity of the three-month requirement was therefore moot. By the time the appeal reached this Court, the only named plaintiff had also satisfied the one-year state residence requirement. We nonetheless reached the merits, observing that "[a]lthough appellee [the only named plaintiff] now can vote, the problem to voters posed by the Tennessee residence requirements is '"capable of repetition, yet evading review."' Moore v. Ogilvie, 394 U.S. 814,816 (1969)." 405 U.S., at 333 n. 2. Both this Court and the District Court found that, although the named plaintiff had satisfied the challenged residence requirements and would no longer be disenfranchised thereby, the case was not moot. The challenged requirement remained applicable to unnamed class members,9 and the 9 The Court distinguished its decision in Hai,l v. Beal,s, 396 U. 8. 45 (1969), finding a challenge to Colorado's durational residence requirement moot, on the grounds that, in Hall, there had been an intervening change in law reducing the residence requirements from six months to two while the case was on appeal. Accordingly, application of the six-month requirement was incapable of repetition as to the named plaintiff or any other member of his class, and, having RICHARDSON v. RAMIREZ 67 24 MARSHALL, J., dissenting issue presented was likely to evade review. Obviously the mere passage of a few months would invariably have rendered a challenge to the residence requirements by individual named plaintiffs moot-threatening virtually to foreclose judicial review. A similar situation was presented in Roe v. Wade, 410 U.S. 113 (1973), relied on by the California court. We there held that although a woman who was not pregnant at the time the suit was filed did not have standing to challenge the constitutionality of the Texas abortion laws, a continuing controversy over the constitutionality of those laws existed as to a named plaintiff who was pregnant when the suit was filed, even though she may not have been pregnant at later stages of the appeal. We concluded that this case provided a classic example of an issue capable of repetition, yet evading review, hence the termination of the plaintiff's pregnancy while the case was on appeal did not render the case mooteven though a woman whose pregnancy has ended is no more affected by the abortion laws than one who was not pregnant at the time the suit was filed. "[T] he ... human gestation period is so short that ... pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, ... appellate review will be effectively denied." Id., at 125. There are two common threads running through these cases-in each the challenged statute would continue to be applied, but the named plaintiff's claim would inevitably mature into mootness pending resolution of the lawsuit. In Roe, the termination of pregnancy, in Dunn, the passage of the residence requirement period, and in other voting cases, the occurrence of an election,10 deprived never been disenfranchised thereby, the named plaintiff had no standing to challenge the two-month requirement. 10 The Court has found a live controversy in other voting cases in which intervening circumstances seemed to have mooted the named 68 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 U.S. the named plaintiff of a continuing controversy over the application of the challenged statute. In each instance, the mere passage of time threatened to insulate a constitutional deprivation from judicial review, and it is that danger which served as the rationale for rejecting suggestions of mootness. Where an invalid statute would thus continue to be applied simply because judicial review of a live controversy involving the named plaintiff was invariably foreclosed-the issue would be capable of repetition yet evading review. Accordingly, the Southern Pacific doctrine requires the satisfaction of two tests in order to provide an answer to a suggestion of mootness. First, the claimed deprivation must, in fact, be "capable of repetition." This element is satisfied where, even though the named plaintiff's immediate controversy has been mooted by intervening events, either he or unnamed class members may continue to suffer the alleged constitutional deprivation in the future. The case before us clearly satisfies this first element of the Southern Pacific doctrine test. Since the California court declined to order any county clerk to plaintiff's claim for relief. Moore v. Ogilvie, 394 U.S. 814 (1969), for example, was an appeal from a decision denying relief to appellants who had unsuccessfully sought to be certified, as required by state law, as independent candidates for Presidential elector on the 1968 ballot. Appellants asserted that the Illinois certification requirement violated the State's constitutional obligation not to discriminate against voters in less populous counties. By the time their appeal reached this Court, the 1968 election had already taken place, but we held the case was not moot because "while the 1968 election is over, [.the challenged burden] remains and controls future elections ... ," id., at 816; see Hall v. Beals, supra, at 49, and the short span of time between the denial of certification for candidacy and actual balloting threatens to moot all future attacks on the questioned candidacy requirements. 394 U. S., at 816. Sec also Storer v. Brown, 415 U. S. 724, 737 n. 8 (1974); Rosario v. Rockefeller, 410 U. S. 752, 756 n. 5 (1973). RICHARDSON v. RAMIREZ 69 24 MARSHALL, J., dissenting register ex-felons, presumably the challenged disenfranchisement provisions could continue to be applied to unnamed class members in counties other than those in which the named plaintiffs reside.1·1 Second, the issue presented must be likely to evade review, but for invocation of the Southern Pacific doctrine. It is on the "evading review" element that the Court's analysis fails. Because the claim raised in this case concerns not a time-related but rather a statusbased deprivation, there is no issue evading review and no reason to look beyond the named plaintiffs.n This is 11 The extent of continuing disenfranchisement is apt to be minimal. A survey conducted by the Secretary of State of California indicated that the election officials of 52 of the 58 counties in California, representing counties which contain 97.39% of the registered vowrs in the State, agreed with the clerks in the named plaintiffs' counties that ex-felons should not be barred from voting in their counties. Brief for Respondents 30. 12 The Court's opinion cites our decision in Indiana Employment Security Div. v. Burney, 409 U.S. 540 (1973), for the proposition that unnamed class members may not be looked to in cases a.rising from the federal system, but the case does not support that proposition. Burney concerned a constitutional challenge to the termination of unemployment insurance benefits without a prior hearing. The only named class representative received a post-termination hearing at which she obtained a reversal of the initial determination of ineligiblity and full retroactive benefits. The Court remanded for consideration of mootness. The jurisdictional issue in this Court revolved around whether the case presented issues "capable of repetition, yet evading review." The Court did not have to find the alleged constitutional deprivation incapable of repetition, hence was not concerned with the problem of whether a future application to the named class representative wa.s required. Rather, it appeared that the prior-hearing issue was not one which would evade review. But see id., at 542- 546 (dissenting opinion). The Court reasoned that a post-termination hearing, afforded as a matter of course, would not invariably moot all cla.ims for relief from members of the class. If the post-termination hearing did not result in an award of retroactive payments, as it had in the named plain70 OCTOBER TERM, 1973 MARSHALL, .J., dissenting 418 u. s. not a situation where, by the time a case reaches this Court, it will always be too late to grant the named plaintiff relief. If and when an ex-felon is refused access to the voting rolls because of his past criminal record, an intervening election will not moot his claim for relief and the status giving rise to his disenfranchisement will not inevitably terminate pending review. There are clearly ways in which a challenge to the California disenfranchisement provisions could reach this Court. The California Supreme Court has not issued a writ of mandate compelling the registration of any ex-felon.13 If such a potential voter is, in fact, refused registration, a controversy suitable for resolution by this Court will be presented. The suit brought against petitioner Richardson, by an ex-felon resident of her own county, raising the same issues as those presented by this case, is presently pending in a California intermediate appellate court.'4 In that case, petitioner Richardson did, in fact, deny the plai11tiff registration because he was an ex-felon. Once that case completes its passage through the state courts, it could well serve as a vehicle for our review of the California disenfranchisement provisions. tiff's case, a live and continuing controversy would be presented as to the insured's claim to the benefits allegedly wrongfully withheld pending the hearing. A case had already come t-0 this Court in just such a posture, and the Court had summarily affirmed the judgment of the three-judge court. Torres v. New York State Department of Labor, 405 U. S. 949 (1972), but see 410 U. S. 971 (1973) (dissenting opinion to denial of rehearing). It was a failure to satisfy the "evading review" element of the test that led the Court to remand Burney for consideration of mootness. 13 In the absence of such an order, petitioner Richardson is under no compulsion to register ex-felons in her county nor subject to any penalty for failing to do so. See Cal. Code Civ. Proc. § 1097 (1955). 14 The suit against petitioner, Richardson v. James, l Civ. 32283, is presently pending in Division 3 of the Court of Appeal for the First Appellate District of California. RICHARDSON v. RAMIREZ 71 24 MARSHALL, J., dissenting That is, of course, but one example of how the issue presented here could properly reach this Court. This case does not therefore benefit from the Southern Pacific doctrine's authority to look to unnamed class members to establish a case or controversy. That the California Supreme Court appears to have found the plaintiffs' claims not to be moot does not detract from this conclusion since "[e]ven in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction." North Carolina v. Rice, 404 U. S. 244, 246 (1971). Thus, unlike the Court, I am persuaded that we can look only to the named plaintiffs to satisfy the case-or-controversy requirement of Art. III. D The named plaintiffs here were registered only because the clerks in their counties had voluntarily abandoned an allegedly illegal practice of disenfranchising ex-felons, and we have said that "[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ' [ t] he defendant ... free to return to his old ways.' . . . [But a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 ( 1968); accord, United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953). Accordingly, whether the named plaintiffs have a live controversy with the clerks in their own counties would depend on the likelihood of future disenfranchisement. 15 But we need not consider that question here be- 15 If claims of the named plaintiffs are moot, the proper disposition of this case would seem to be to vacate the judgment of the California Supreme Court and remand for such proceedings as that court deems appropriate. Brockington v. Rhodes, 396 U.S. 41, 44 (1969). 72 OCTOBER TERM, 1973 MARSHALL, .J., dissenting 418 U.S. cause none of the election officials in the named plaintiffs' counties sought review in this Court and none is now before us. The sole petitioner before this Court is Viola Richardson. None of the named plaintiffs are residents of her county. While those named plaintiffs may or may not have a live controversy with the clerks in their own counties, they surely do not have one with petitioner Richardson. While Richardson may well have a live controversy with ex-felons in her own county over the validity of the disenfranchisement laws, those ex-felons are not before this Court, and she has no dispute with the named plaintiffs. In sum, there is no controversy between the parties before this Court. Petitioner Richardson seeks to use the named plaintiffs' controversy with their own county clerks as a vehicle for this Court to issue an advisory opinion on the issue presented by the suit brought against her by an ex-felon in her own county. Such a decision would violate the " 'oldest and most consistent thread in the federal law of justiciability ... that the federal courts will not give advisory opinions.' " Flast v. Cohen, 392 U.S. 83, 96 (1968). II Since the Court nevertheless reaches the merits of the constitutionality of California's disenfranchisement of ex-felons, I find it necessary to register my dissent on the merits as well. The Court construes § 2 of the Fourteenth Amendment as .an express authorization for the States to disenfranchise former felons. Section 2 does except disenfranchisement for "participation in rebellion, or other crime" from the operation of its penalty provision. As the Court notes, however, there is little independent legislative history as to the crucial words "or RICHARDSON v. RAMIREZ 73 24 MARSHALL, J., dissenting other crime"; the proposed § 2 went to a joint committee containing only the phrase "participation in rebellion" and emerged with "or other crime" inexplicably tacked on.10 In its exhaustive review of the lengthy legislative history of the Fourteenth Amendment, the Court has come upon only one explanatory reference for the "other crimes" provision-a reference which is unilluminating at best.11 The historical purpose for § 2 itself is, however, relatively clear and, in my view, dispositive of this case. The Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States which would result from the abolition of slavery might weaken their own political dominance.18 There were two alternatives available-either to limit southern representation, which was unacceptable on a long-term basis,19 or to insure that southern Negroes, sympathetic to the Republican ca.use, would be enfranchised; but an explicit grant of suffrage to Negroes was thought politically unpalatable at the time.2° Section 2 of the Fourteenth Amendment was the resultant com- 16 See, e. g., l'fote, Restoring the Ex-offender's Right to Vote: Background and Developments, 11 Am. Crim. L. Rev. 721, 746-747, n. 158 (1973). 1 7 Stat1.>ment of Rep. Eckley, quoted, ante, at 46. 18 Bonfield, The Right to Vote and Judicial Enforcement of Section Two of the Fourteenth Amendment, 46 Cornell L. Q. 108, 109 (1960); H. Flack, The Adoption of the Fourteenth Amendment 98, 126 (1908); B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 290--291 (1914); J. James, The Framing of the Fourteenth Amendment 185 (1956); Van Alstyne, The Fourteenth Amendment, the "Right " to Vote, and the Understanding of the Thirty-ninth Congress, 1965 Sup. Ct .. Rev. 33, 44 (1965) . 19 James, n. 18, supra, at 138-139. 2° Kendrick, n. 18, supra, at 291; cf. Flack, n. 18, supra, at 111, 118. 74 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. promise. It put Southern States to a choice-enfranchise Negro voters or lose congressional representation.21 The political motivation behind § 2 was a limited one. It had little to do with the purposes of the rest of the Fourteenth Amendment. As one noted commentator explained: "'It became a part of the Fourteenth Amendment largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment.' " 22 "[I] t seems quite impossible to conclude that there was a clear and deliberate understanding in the House that § 2 was the sole source of national authority to protect voting rights, or that it expressly recognized the states' power to deny or abridge the right to vote." 23 It is clear that § 2 was not intended and should not be construed to be a limitation on the other sections of the Fourteenth Amendment. Section 2 provides a special remedy-reduced representation-to cure a particular form of electoral abuse-the disenfranchisement of Negroes. There is no indication that the framers of the provisions intended that special penalty to be the exclusive remedy for all forms of electoral discrimination. This Court has repeat<>dly rejected that rationale. See Reynolds v. Sims, 377 U. S. 533 (1964); Carrington v. Rash, 380 U.S. 89 (1965). Rather, a discrimination to which the penalty provision of § 2 is inapplicable must still be judged against the Equal Protection Clause of § 1 to determine whether judicial or congressional remedies should be invoked. 21 Bonfield, n. 18, supra, at 111; James, n. 18, supra, at 185; Van Alstyne, n. 18, supra, at 43-44, 58, 65. 22 ld., at 43-44 (quoting from Mathews, Legislative and Judicial History of the Fifteenth Amendment ( 1909)). 23 Id., at 65. I l RICHARDSON v. RAMIREZ 75 24 MARSHALL, J., dissenting That conclusion is compelled by this Court's holding in Oregon v. Mitchell, 400 U. S. 112 (1970). Although § 2 excepts from its terms denial of the franchise not only to ex-felons but also to persons under 21 years of age, we held that the Congress, under § 5, had the power to implement the Equal Protection Clause by lowering the voting age to 18 in federal elections. As MR. JusTICE BRENNAN, joined by MR. JuSTICE WHITE, as well as myself, there observed, § 2 was intended as no more "than a remedy supplementary, and in some conceivable circumstances indispensable, to other congressional and judicial remedies available under § § 1 and 5." 400 U. S., at 278. The Court's references to congressional enactments contemporaneous to the adoption of the Fourteenth Amendment, such as the Reconstruction Act and the readmission statutes, are inapposite. They do not explain the purpose for the adoption of § 2 of the Fourteenth Amendment. They merely indicate that disenfranchisement for participation in crime was not uncommon in the States at the time of the adoption of the Amendment. Hence, not surprisingly, that form of disenfranchisement was excepted from the application of the special penalty provision of § 2. But because Congress chose to exempt one form of electoral discrimination from the reductionof- representation remedy provided by § 2 does not necessarily imply congressional approval of this disenfranchisement. 24 By providing a special remedy for disenfran- 24 To say that § 2 of the Fourteenth Amendment is a direct limitation on the protection afforded voting rights by § 1 leads to absurd results. If one accepts the premise that § 2 authorizes disenfranchisement for any crime, the challenged California provision could, as the California Supreme Court has observed, require disenfranchisement for seduction under promise of marriage, or conspiracy to operate a motor vehicle without a muffler. Otsuka v. Hite, 64 Cal. 2d 596, 414 P. 2d 412 (1966). Disenfranchisement extends to convictions for vagrancy in Alabama or breakmg a water pipe in North 76 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 U.S. chisement of a particular class of voters in § 2, Congress did not approve all election discriminations to which the § 2 remedy was inapplicable, and such discriminations thus are not forever immunized from evolving standards of equal protection scrutiny. Cf. Shapiro v. Thompson, 394 U.S. 618, 638-639 (1969). There is no basis for concluding that Congress intended by § 2 to freeze the meaning of other clauses of the Fourteenth Amendment to the conception of voting rights prevalent at the time of the · adoption of the Amendment. In fact, one form of disenfranchisement- one-year durational residence requirements- specifically authorized by the Reconstruction Act, one of the contemporaneous enactments upon which the Court relies to show the intendment of the framers of the Fourteenth Amendment, has already been declared unconstitutional by this Court in Dunn v. Blumstein, 405 u. s. 330 ( 1972). Disenfranchisement for participation in crime, like durational residence requirements, was common at the time of the adoption of the Fourteenth Amendment. But "constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber." Dillenburg v. Kramer, 469 F. 2d 1222, 1226 (CA9 1972). We have repeatedly observed: "[TJ he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed Dakota, to note but two examples. Note, Disenfranchisement of Ex-felons: A Reassessment, 25 Stan. L. Rev. 845,846 (1973). Even a jaywalking or traffic conviction could conceivably lead to disenfranchisement, since § 2 does not differentiate between felonies and misdemeanors. 24 RICHARDSON v. RAMIREZ 77 MARSHALL, J., dissenting to be the limits of fundamental rights." Harper v. Virginia Board of Elections, 383 U.S. 663,669 (1966). Accordingly, neither the fact that several States had exfelon disenfranchisement laws at the time of the adoption of the Fourteenth Amendment, nor that such disenfranchisement was specifically excepted from the special remedy of § 2, can serve to insulate such disenfranchisement from equal protection scrutiny. III In my view, the disenfranchisement of ex-felons must be measured against the requirements of the Equal Protection Clause of § 1 of the Fourteenth Amendment. That analysis properly begins with the observation that because the right to vote "is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government," Reynolds v. Sims, 377 U. S., at 555, voting is a "fundamental'' right. As we observed in Dunn v. Blumstein, supra, at 336: "There is no need to repeat now the labors undertaken in earlier cases to analyze [the] right to vote and to explain in detail the judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e. g., Evans v. Cornman, 398 U.S. 419, 421-422, 426 (1970); Kramer v. Union Free School District, 395 U. S. 621, 626-628 (1969); Cipriano v. City of Houma, 395 U. S. 701, 706 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 667 (1966); Carrington v. Rash, 380 U. S. 89, 93-94 (1965); Reynolds v. Sims, supra." 552-191 0 • 76 • 8 78 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418U. S. We concluded: "[I]f a challenged statute grants the right to vote to some citizens and denies the franchise to others, 'the Court must determine whether the exclusions are necessary to promote a compelling state interest.'" 405 U. S., at 337. (Emphasis in original.) To determine that the compelling-state-interest test applies to the challenged classification is, however, to settle only a threshold question. "Compelling state interest" is merely a shorthand description of the difficult process of balancing individual and state interests that the Court must embark upon when faced with a classification touching on fundamental rights. Our other equal protection cases give content to the nature of that balance. The State has the heavy burden of showing, first, that the challenged disenfranchisement is necessary to a legitimate and substantial state interest; second, that the classification is drawn with precision- that it does not exclude too many people who should not and need not be excluded; and, third, that there are no other reasonable ways to achieve the State's goal with a lesser burden on the constitutionally protected interest. E. g., Dunn v. Blumstein, supra, 1;1t 343, 360; Kramer v. Union Free School District, 395 U. S. 621, 632 (1969); see Rosario v. Rockefeller, 410 U. S. 752, 770 (1973) (PowELL, J., dissenting); cf. Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); NAACP v. Button, 371 U.S. 415, 438 (1963); Shelton v. Tucker, 364 U. S. 479, 488 (1960). I think it clear that the State has not met its burden of justifying the blanket disenfranchisement of former felons presented by this case. There is certainly no basis for asserting that ex-felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government. See Kramer, supra, at 627. As the Secretary of State of California observed in his RICHARDSON v. RAMIREZ 79 24 MARSHALL, J., dissenting memorandum to the Court in support of respondents in this case: "It is doubtful ... whether the state can demonstrate either a compelling or rational policy interest in denying former felons the right to vote. The individuals involved in the present case are persons who have fully paid their debt to society. They are as much affected by the actions of government as any other citizens, and have as much of a right to participate in governmental decision-making. Furthermore, the denial of the right to vote to such persons is a hindrance to the efforts of society to rehabilitate former felons and convert them into lawabiding and productive citizens." 25 It is argued that disenfranchisement is necessary to prevent vote frauds. Although the State has a legitimate and, in fact, compelling interest in preventing election fraud. the challenged provision is not sustainable on that ground. First, the disenfranchisement provisions are patently both overinclusive and underinclusive. The provision is not limited to those who have demonstrated a marked propensity for abusing the ballot by violating election laws. Rather, it encompasses all former felons and there has been no showing that ex-felons generally are any more likely to abuse the ballot than the remainder of the population. See Dillenburg v. Kramer, 469 F. 2d, at 1225. In contrast, many of those convicted of violating election laws are treated as misdemeanants and are not barred from voting at all. It seems clear that the classification here is not tailored to achieve its articulated goal, since it crudely excludes large numbers of otherwise qualified voters. See Kramer v. Union Free 25 Memorandum of the Secretary of State of California in Opposition to Certiorari, in Class of County Clerks (ind Registrars of Voters of California v. Ramirez, No. 73-324. 80 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. School District, supra, at 632; Ciprmno v. City of Houma, 395 u. s. 701, 706 (1969). Moreover, there are means available for the State to prevent voting fraud which are far less burdensome on the constitutionally protected right to vote. As we said in Dunn, supra, at 353, the State "has at its disposal a variety of criminal laws that are more than adequate to detect and deter whatever fraud may be feared." Cf. Harman v. Forssenius, 380 U. S. 528, 543 (1965); Schneider v. State, 308 U.S. 147, 164 (1939). The California court's catalogue of that State's penal sanctions for election fraud surely demonstrates that there are adequate alternatives to disenfranchisement. "Today ... the Elections Code punishes at least 76 different acts as felonies, in 33 separate sections; at least 60 additional acts are punished as misdemeanors, in 40 separate sections; and 14 more acts are declared to be felony-misdemeanors. Among this plethora of offenses we take particular note, in the present connection, of the felony sanctions against fraudulent registrations ( § 220), buying and selling of votes ( § § 12000-12008), intimidating voters by threat or bribery (§§ 29130-29135), voting twice, or fraudulently voting without being entitled to do so, or impersonating another voter (§§ 14403, 29430- 29431), fraud or forgery in casting absentee ballots (§§ 14690-14692), tampering with voting machines ( § 15280) or ballot boxes ( § § 17090-17092), forging or altering election returns (§§ 29100-29103), and so interfering 'with the officers holding an election or conducting a canvass, or with the voters lawfully exercising their rights of voting at an election, as to prevent the election or canvass from being fairly held and lawfully conducted' (§ 17093)." 9 Cal. 3d, at 24 RICHARDSON v. RAMIREZ 81 MARSHALL, J., dissenting 215-216, 507 P. 2d, at 1355-1356 (1973) (footnotes omitted). Given the panoply of criminal offenses available to deter and to punish electoral misconduct, as well as the statutory reforms and technological changes which have transformed the electoral process in the last century, election fraud may no longer be a serious danger.26 Another asserted purpose is to keep former felons from voting because their likely voting pattern might be subversive of the interests of an orderly society. See Green v. Board of Elections, 380 F. 2d 445, 451 (CA2 1967). Support for the argument that electors can be kept from the ballot box for fear they might vote to repeal or emasculate provisions of the criminal code, is drawn primarily from this Court's decisions in Murphy v. Ramsey, 114 U. S. 15 (1885), and Davis v. Beason, 133 U. S. 333 (1890). In Murphy, the Court upheld the disenfranchisement of anyone who had ever entered into a bigamous or polygamous marriage and in Davis, the Court sanctioned, as a condition to the exercise of franchise, the requirement of an oath that the elector did not "teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy." The Court's intent was clear-"to withdraw all political influence from those who are practically hostile to" the goals of certain criminal laws. Murphy, supra, at 45; Davis, supra, at 348. To the extent Murphy and Davis approve the doctrine that citizens can be barred from the ballot box because they would vote to change the existing criminal law, those decisions are surely of minimal continuing precedential value. We have since explicitly held that such "differences of opinion cannot justify excluding [any] group 26 Ramirez v. Brown, 9 Cal. 3d 199, 215-216, 507 P. 2d 1345, 1355- 1356 (1973). 82 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. from ... 'the franchise,' " Cipriano v. City of Houma, 395 U. S .. at 705-706; see Communist Party of Indiana v. Whitcomb, 414 U. S. 441 (1974); Evans v. Cornman, 398 L". S. 419, 423 (1970). "[l]f they are ... residents, ... they, as all other qualified residents, have a right to an equal opportunity for political representation. . . . 'Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible." Carrington v. Rash, 380 F. S., at 94. See Dunn, 405 U. S., at 355. Although, in the last century, this Court may have justified the exclusion of voters from the electoral process for fear that they would vote to change laws considered important by a temporal majority, I have little doubt that we would not countenance such a purpose today. The process of democracy is one of change. Our laws are not frozen into immutable form, they are constantly in the process of revision in response to the needs of a changing society. The public interest, as conceived by a majority of the voting public, is constantly undergoing reexamination. This Court's holding in Davis, supra, and Murphy, supra, that a State may disenfranchise a class of voters to "withdraw all political influence from those who are practically hostile" to the existing order, strikes at the very heart of the democratic process. A temporal majority could use such a power to preserve inviolate its view of the social order simply by disenfranchising those with different views. Voters who opposed the repeal of prohibition could have disenfranchised those who advocated repeal "to prevent persons from being enabled by their votes to defeat the criminal laws of the country." Davis, SUJ)Ta, at 348. Today, presumably those who support the legalization of marihuana could be barred RICHARDSON v. RAMIREZ 83 24 MARSHALL, J., dissenting from the ballot box for much the same reason. The ballot is the democratic system's coin of the realm. To condition its exercise on support of the established order is to debase that currency beyond recognition. Rather than resurrect Davis and Murphy, I would expressly disavow any continued adherence to the dangerous notions therein expressed. 27 The public purposes asserted to be served by disenfranchisement have been found wanting in many quarters. When this suit was filed, 23 States allowed ex-felons full access to the ballot. Since that time, four more States have joined their ranks.28 Shortly after lower federal 27 The Court also notes that the disenfranchisement of ex-felons has received su'pport in the dicta of this Court and that we have only recently affirmed without opinion the decisions of two threejudge District Courts upholding disenfranchisement provisions. Fincher v. Scott, 352 F. Supp. 117 (MDNC 1972), aff'd mem., 411 U.S.961 (1973); Beacham v. Braterman,300 F.Supp.182 (SD Fla.), aff'd per curiam, 396 U.S. 12 (1969). But, dictum is not precedent and as MR. JusTICE REHNQUIST has only recently reminded us, summary affirmances are obviously not of the same precedential value as would be an opinion of this Court treating the question on the merits. Edelman v. Jordan, 415 U. S. 651, 671 ( 1974). See F. Frankfurter & J. Landis, The Business of the Supreme Court at October Term, 1929, 44 Harv. L. Rev. 1, 14 (1930). 28 The following States do not disenfranchise all former felons: Arkansas, Ark. Stat. Ann. § 3-707 (Supp. 1973); Colorado, Colo. Const., Art. VII, § 10, and Colo. Rev. Stat. Ann. § 49-3-2 (Perm. Cum. Supp. 1971); Florida, Fla. Stat. Ann. § 940.05 (1973); Hawaii, Hawaii Rev. Stat. § 716-5 (Supp. 1972); Illinois, Ill. Rev. Stat., c. 46, § 3-5 (1973); Indiana, Ind. Ann. Stat.§ 29-4804 (1969); Kansas, Kan. Stat. Ann. § 22-3722 (Supp. 1973); Maine, Me. Rev. Stat. Ann., Tit. 21, § 245 (1964); Massachusetts, Mass. Gen. Laws Ann., c. 51, § 1 (Supp. 1974-1975) (except election code offenders); Michigan, Mich. Const., Art. II, § 2, and Mich. Comp. Laws Ann. § 168.10 (1970); Minnesota, Minn. Stat. § 609.165 (1971); Kebraska, Neb. Rev. Stat. § 29-2264 (Supp. 1972) and Neb. Rev. St.at. § 83- 1118 (1971); New Hampshire, N. H. Rev. Stat. Ann. § 607-A:2 (Supp. 1973); New Jersey, N. J. Stat. Ann. § 19:4-1 (Supp. 1974- 84 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 U.S. courts sustained New York's and Florida's disenfranchisement provisions, the legislatures repealed those laws. Congress has recently provided for the restoration of felons' voting rights at the end of sentence or parole in the District of Columbia. D. C. Code § 1-1102 (7) (1973). The National Conference on Uniform State 1975) (except election code offenders); Ohio Rev. Code Ann.§ 2967.16 (Supp. 1972); Oregon, Ore. Rev. Stat.§§ 137.240 and 137.250 (1973); Pennsylvania, Pa. Const., Art. VII,§ I, Pa. Stat. Ann., Tit. 19, § 893 (1964), and Tit. 25, § 3552 (1963) (except election code offenders for four years); South Dakota, S. D. Comp. Laws Ann. §§ 24-5-2 and 23-57-7 (1969); Utah, Utah Const., Art. IV, §6 (except those convicted of treason or election code offenses); Vermont, Vt. Const., c. II, § 51 (except election code offenders); Washington, Wash. Rev. Code Ann. § 9.96.050 (Supp. 1972); West Virginia, 51 Op. W. Va. Atty. Gen. No. 42, p. 182 (1965) (construing W. Va. Const., Art. IV, § 1); Wisconsin, Wis. Stat. Ann. § 57--078 (Supp. 1974-1975); Wyoming, Wyo. Stat. Ann. § 7-311 ( 1957). In 1972 I\fontana amended its constitution to disenfranchise potential electors only while "serving a sentence for a felony." Mont. Const., Art. IV,§ 2; Mont. Rev. Codes Ann.§ 23-2701 (Supp. 1973). In 1973, New York amended its laws to allow former felons whose sentence had expired or who were released from parole to vote. N. Y. Election Law § 152 (Supp. 1973-1974). Also in 1973, North Carolina amended its laws to restore all civil rights including the franchise to former felons discharged from prison or parole. N. C. Gen. Stat. § 13-1 (Supp. 1973). And, in the same year, the Tennessee Legislature amended its ex-felon disenfranchisement statutes. See Tenn. Code Ann. § 2-202 (Supp. 1973). The New York ex-felon disenfranchisement provision was upheld in Green v. Board of Elections, 380 F. 2d 445 (CA2 1967), and shortly thereafter the New York Legislature repealed that law. N. Y. Election Law § 152 (Supp. 1973-1974). Similarly the Florida. disenfranchisement provisions were upheld in Beacham v. Braterman, 300 F. Supp. 182 (SD Fla.), aff'd per curiam, 396 U.S. 12 (1969). Subsequently, Florida statutes were amended to provide for the automatic restoration of all civil rights, including the franchisr, upon the completion of sentence or release from parole or probation. Fla. Stat. Ann. § 940.05 (1973). RICHARDSON v. RAMIREZ 85 24 MARSHALL, J., dissenting Laws,29 the American Law Institute,3° the National Probation and Parole Association,31 the National Advisory Commission on Criminal Justice Standards and Goals,32 the President's Commission on Law Enforcement and the Administration of Justice,33 the California League of Women Voters,3• the National Democratic Party,35 and the Secretary of State of California 36 have all strongly endorsed full suffrage rights for former felons. The disenfranchisement of ex-felons had "its origin in the fogs and fictions of feudal jurisprudence and 29 National Conference of Commissioners on Uniform State Laws, Uniform Act on Status of Convicted Persons §§ 2-3 ( 1964). 30 American Law Institute, Model Penal Code § 306.3 (Proposed Official Draft 1962). 31 National Probation and Parole Association, Standard Probation and Parole Act §§ 12 and 27 ( 1955). 32 National Advisory Commission on Criminal Justice Standards and Goals, Corrections, Standard 16.17, p. 592 (1973). The Report observed: "Loss of citizenship rights-[including] the right to vote . , . -inhibits reformative efforts. If correction is to reintegrate an offender into free society, the offender must retain all attributes of citizenship. In addition, his respect for law and the legal system may well depend, in some measure, on his ability to participate in that system. Mandatory denials of that participation serve no legitimate public interest." Id., at 593. 33 President's Commission on Law Enforcement and the Administration of Justice, Task Force Report: Corrections 89-90 (1967): "[T]here seems no justification for permanently depriving all convicted felons of the vote . . . . [T]o be deprived of the right to representation in a democratic society is an important symbol. Moreover, rehabilitation might be furthered by encouraging convicted persons to participate in society by exercising the vote." 34 California League of Women Voters, Policy Statement, Feb. 16, 1972. 35 National Democratic Party, Party Platform 1972. 36 Memorandum of the Secretary of State of California in Opposition to Certiorari in Class of County Clerks and Registrars of Voters of Cal,ifornia v. Ramirez, No. 73-324. 86 OCTOBER TERM, 1973 MARSHALL, J., diss enting 418 U.S. doubtless has been brought forward into modern statutes without fully realizing either the effect of its literal significance or the extent of its infringement upon the spirit of our system of government." Byers v. Sun Savings Bank, 41 Okla. 728, 731, 139 P. 948, 949 ( 1914). I think it clear that measured against the standards of this Court's modern equal protection jurisprudence, the blanket disenfranchisement of ex-felons cannot stand. I respectfully dissent. MR. JusTICE DouaLAs, agreeing with Part I- A of this opinion, dissents from a reversal of the judgment below as he cannot say that it does not rest on an independent state ground. See Hayakawa v. Brown, 415 U. S. 1304 (DOUGLAS, J., in chambers). HAMLING v. UNITED STATES 87 Syllabus HAMLING ET AL. V. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 73-507. Argued April 15, 1974--Decided June 24, 1974 Petitioners were convicted of mailing and conspiring to mail an obscene advertising brochure with sexually explicit photographic material relating to their illustrated version (hereafter Illustrated Report) of an official report on obscenity, in violation of 18 U. S. C. §§ 2, 371, and 1461. The indictment under § 1461 charged petitioners in the language of the statute, which provides in pertinent part that obscene material and written information as to where it may be obtained is nonmailable and that "[w]hoever knowingly uses the maiLs for the mailing ... of anything declared by this section . . . to be nonmailable . . ." commits a crime. The jury was unable to reach a verdict on the counts charging the mailing of the allegedly obscene Illustrated Report. Following aflirmance of the convictions by the Court of AppeaLs, this Court decided Miller v. Califorma, 413 U . S. 15, and companion cases (hereafter collectively the Miller cases), after considering which, the Court of Appeals denied a petition for rehearing. Petitioners challenge their convictions based upon the pre-Miller obscenity test in Memoirs v. MIJ,8Sachusetts, 383 U. S. 413, and also as failing to meet the standards of the Miller cases; and challenge various procedural and evidentiary rulings of the District Court, as well as its instructions. Held: 1. Title 18 U. S. C. § 1461, "applied according to the proper standard for judging obscenity, do[es] not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited," Roth v. United States, 354 U. S. 476, 492. Pp. 98-99. 2. The jury's determination that the brochure was obscene was supported by the evidence and was consistent with the Memoirs obscenity formulation. P. 100. 3. The inability of the jury to reach a verdict on the counts charging distribution of the Illustrated Report had no relevance to its finding that the brochure was obscene, consistency in verdicts not being required, and the brochure being separable from the Illustrated Report. Pp. 100-101. 88 OCTOBER TERM, 1973 Syllabus 418 U.S. 4. The standards established in the Miller cases do not, as applied to petitioner;;' pre-Miller conduct, require a reversal of their convictions. Pp. 101-117. (a) Defendants like petitioners, who were convicted prior to the decisions in the Miller cases but whose convictions were on direct appeal at that time, should receive any benefit available to them from those decisions. Pp. 101-102. (b) The instruction to the jury on the application of national community standards of obscenity was not constitutionally improper, since in rejecting the view that the First and Fourteenth Amendments require that the proscription of obscenity be based on uniform national standards, the Court in the Miller cases did not require as a constitutional matter the substitution of some smaller geographical area into the same sort of formula; the test was stated in terms of the understanding of the "average person, applying contemporary community standards." The Court's holding in Miller that California could constitutionally proscribe obscenity in terms of a "statewide" standard did not mean that any such precise geographic area is required as a matter of constitutional law. Reversal is required in pre-Miller cases only where there is a probability that the excision of the references to the "nation as a whole" in the instruction dealing with community standards would have materially affected the deliberations of the jury. Pp. 103-110. (c) Construing 18 U. S. C. § 1461 as being limited to the sort of "patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California," the statute is not unconstitutionally vague, it being plain that the brochure is a form of hard-core pornography well within the permissibly proscribed depictions described in Miller. The enumeration of specific categories of obscene material in Miller did not purport to proscribe, for purposes of 18 U. S. C. § 1461, conduct that had not previously been thought criminal but instead added a "clarifying gloss" to the prior construction, making the statute's meaning "more definite." Bouie v. City of Columbia. 378 U. S. 347, 353. Pp. 110-116. (d) Miller's rejection of Memoirs' "social value" formulation did not mean that 18 U. S. C. § 1461 was unconstitutionally vague at the time of petitioners' convictions because it did not provide them with sufficient guidance a,, to the proper test of "social value," that formula having been rejected not for vagueness 87 HAMLING v. UNITED STATES 89 Syllabus reasons but because it departed from Roth's obscenity definition and entailed a virtually impossible prosecutorial burden. Pp. 116-117. 5. The indictment was sufficiently definite. Pp. 117-119. (a) The language of § 1461 was not "too vague to support conviction for crime," Roth v. United States, supra, at 480. P. 117. (b) The indictment gave petitioners adequate notice of the charges against them, since at the time petitioners were indicted the statutory term "obscene," a legal term of art and not a generic expression, had a definite legal meaning. Russell v. United States, 369 U. S. 749, distinguished. Pp. 117-119. 6. The District Court did not err in its instructions to the jury on scienter, including its instruction that "[petitioners'] belief as to the obscenity or non-obscenity of the material is irrelevant," it being constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of materials that he distributes, and that he knew the character and nature of the materials. Rosen v. United States, 161 U. S. 29, followed; Smith v. California, 361 U. S. 147, distinguished. Pp. 119-124. 7. The Court of Appeals correctly concluded that there was substantial evidence to support the jury's verdict. P. 124. 8. The District Court did not abuse its discretion in excluding allegedly comparable materials (materials with second-class mailing privileges, or judicially found to have been nonobscene, or available on newsstands), since, inter alia, expert testimony had been allowed on relevant community standards; and similar materials or judicial determinations with respect thereto do not necessarily prove nonobscenity of the materials the accused is charged with circulating; and with respect to whether proffered evidence is cumulative, clearly relevant, or confusing, the trial court has considerable latitude. Pp. 125-127. 9. The District Court's instruction that in deciding whether the predominant appeal of the brochure was to a prurient interest in sex the jury could consider whether some portions appealed to a specifically defined deviant group as well as to the average person was not erroneous, since in measuring prurient appeal, the jury (which was instructed that it must find that the material as a whole appealed generally to a prurient interest in sex) may consider the material's prurient appeal to clearly defined deviant sexual groups. Mishkin v. New York, 383 U. S. 502, 508-509. Pp. 127-130. 90 OCTOBER TERM, 1973 Syllabus 418 u. 8. 10. Since evidence of pandering can be relevant in determining obscenity, as long as the proper constitutional definition of obscenity is applied, Ginzburg v. United States, 383 U. S. 463, it was not improper for the District Court to instruct the jury in ~onnection with the Memoirs test that it could also consider whether the brochure had been pandered by looking to the manner of its distribution and editorial intent. Pp. 130-131. 11. The Court of Appeals did not err in refusing to reverse petitioners' convictions for the District Court's failure to comply with Fed. Rule Crim. Proc. 30 by denying petitioners' counsel's request to make additional objections to the instructions out of the presence of the jury, since this Court's independent examination of the record confirms the Court of Appeals' view that petitioners were not prejudiced thereby. Pp. 131-135. 12. Petitioners' argument that the District Court abused its discretion in refusing to grant a continuance until a new jury with a presumably greater ratio of young people could be drawnit having been almost four years since the jury wheel had last been filled-is without merit, since there was no showing of a discriminatory exclusion of an identifiable group entitled to a group-based protection. Pp. 135-138. 13. The District Court's voir dire examination was sufficient to test the qualifications and competency of the prospective jurors and complied with Fed. Rule Crim. Proc. 24 (a), and that court did not constitutionally err in not asking certain questions propounded by petitioners. Pp. 138-140. 481 F. 2d 307, affirmed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, and PowELL, JJ., joined. DouoLAs, J., filed a dissenting opinion, post, p. 140. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 141. Stanley Fleishman argued the cause for petitioners Hamling et al. With him on the briefs was &m Rosenwein. Mr. Rosenwein argued the cause for petitioners Kemp et al. With him on the briefs were Mr. Fleishman and Louis S. Katz. Allan Abbott Tuttle argued the cause for the United States. With him on the brief were Solicitor General HAMLING v. UNITED STATES 91 87 Opinion of the Court Bork, Assistant Attorney General Petersen, Jerome M. Feit, and Shirley Baccus-Lobel.* MR. JusTICE REHNQUIST delivered the opinion of the Court. On March 5, 1971, a grand jury in the United States District Court for the Southern District of California indicted petitioners William L. Hamling, Earl Kemp, Shirley R. Wright, David L. Thomas, Reed Enterprises, Inc., and Library Service, Inc., on 21 counts of an indictment charging use of the mails to carry an obscene book, The Illustrated Presidential Report of the Commission on Obscenity and Pornography, and an obscene advertisement, which gave information as to where, how, and from whom and by what means the Illustrated Report might be obtained, and of conspiracy to commit the above offenses, in violation of 18 U. S. C. §§ 2, 371, and 1461.1 Prior to trial, petitioners moved to dismiss the indictment on the grounds that it failed to inform them of the charges, and that the grand jury had insufficient evidence before it to return an indictment and was improperly instructed on the law. Petitioners also challenged the petit jury panel and moved to strike the venire on the ground that there had been an unconstitutional exclusion of all persons under 25 years of age. The District Court denied all of these motions. Following a jury trial, petitioners were convicted on 12 counts of mailing and conspiring to mail the obscene *Briefs of amici curiae urging reversal were filed by Melvin L. Wulf, Joel M. Gora, and Fred Okrand for the American Civil Liberties Union et al.; by Ira M. Millstein for the Association of American Publishers, Inc.; and by William D. North for the American Library Assn. 1 The indictment is reproduced in full at App. 14-31. 92 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. advertisement.2 On appeal, the United States Court of Appeals for the Ninth Circuit affirmed. 481 F. 2d 307 (1973). The jury was unable to reach a verdict with regard to the counts of the indictment which charged the mailing of the allegedly obscene Illustrated Report.3 The advertisement found obscene is a single sheet brochure mailed to approximately 55,000 persons in various parts of the United States; one side of the brochure contains a collage of photographs from the Illusstrated Report; the other side gives certain information and an order blank from which the Illustrated Report could be ordered. The Court of Appeals accurately described the photographs in the brochure as follows: "The folder opens to a full page splash of pictures portraying heterosexual and homosexual intercourse, sodomy and a variety of deviate sexual acts. Specifically, a group picture of nine persons, one male engaged in masturbation, a female masturbating two 2 Each petitioner was convicted on counts 1-5 and 7-13 of the indictment. App. 9. Petitioner Hamling was sentenced to imprisonment for one year on the conspiracy count, and consecutive to that, concurrent terms of three years each on the 11 substantive counts, and he was fined $32,000. Petitioner Kemp was sentenced to imprisonment for one year and one day on the conspiracy count, and consecutive to that, concurrent terms of two years each on the 11 substantive counts. Petitioners Wright and Thomas received suspended sentences of one and one-half years, and were placed on probation for five years. Petitioners Reed Enterprises, Inc., and Library Services, Inc., were fined $43,000 and $12,000, respectively. 3 Those counts on which the jury was unable to reach a verdict and upon which a mistrial was declared were counts 15, 16, 17, 19, and 21. App. IO. After presentation of the Government's case, the District Court dismissed four of the substantive counts (6, 14, 18, and 20) for lack of proof. App. 7; Brief for United States 6 n. 4. The obscenity vel non of the Illustrated Report was thus not at issue in the Court of Appeals nor is it at issue in this Court. 87 HAMLIKG v. UNITED STATES 93 Opinion of the Court males, two couples engaged in intercourse in reverse fashion while one female participant engages in fellatio of a male; a second group picture of six persons, two males masturbating, two f ellatrices practicing the act, each bearing a clear depiction of ejaculated seminal fluid on their faces; two persons with the female engaged in the act of fellatio and the male in female masturbation by hand; two separate pictures of males engaged in cunnilinction; a film strip of six frames depicting lesbian love scenes including a cunnilinguist in action and female masturbation with another's hand and a vibrator, and two frames, one depicting a woman mouthing the penis of a horse, and a second poising the same for entrance into her vagina." 481 F. 2d, at 316-317.4 The reverse side of the brochure contains a facsimile of the Illustrated Report's cover, and an order form for the 1llustrated Report. It also contains the following language: "THANKS A LOT, MR. PRESIDENT. A monumental work of research and investigation has now become a giant of a book. All the facts, all the statistics, presented in the best possible format ... and ... completely illustrated in black and white and full color. Every facet of the most controversial public report ever issued is covered in detail. • The only printed words appearing on the interfold of pictures are: "In the Katzman Studies (1970) for the Commission (see page 180), some 90 photographs were rated on five-point scales for 'obscene' and 'sexually stimulating' by the control group. Group activity sC'enes of the type here illustrated could have been part of the 90. Doth these group sex pictures are from the Danish magazine Porno Club No. 3, supposedly this was filmed at a 'live show' night club in Copenhagen. There are many similar clubs." 94 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. "The book is a MUST for the research shelves of every library, public or private, seriously concerned with full intellectual freedom and adult selection. "Millions of dollars in public funds were expended to determine the PRECISE TRUTH about eroticism in the United States today, yet every possible attempt to suppress this information was made from the very highest levels. "Even the President dismissed the facts, out of hand. The attempt to suppress this volume is an inexcusable insult directed at every adult in this country. Each individual MUST be allowed to make his own decision; the facts are inescapable. Many adults, MANY OF THEM, will do just that after reading this REPORT. In a truly free society, a book like this wouldn't even be necessary." The Court of Appeals indicated that the actual report of the Commission on Obscenity and Pornography is an official Government document printed by the United States Government Printing Office. The major difference between the Illustrated Report, charged to be obscene in the indictment, and the actual report is that the Illustrated Report contained illustrations, which the publishers of the Illustrated Report said were included " 'as examples of the type of subject matter discussed and the type of material shown to persons who were part of the research projects engaged in for the Commission as basis for their Report.' " 481 F. 2d, at 315. The facts adduced at trial showed that postal patrons in various parts of the country received the brochure advertising the Illustrated Report. The mailings these persons received consisted of an outer envelope, an inner return envelope addressed to Library Service, Inc., at a post office box in San Diego, California, and the brochure itself, which also identified Library Service, Inc., at the HAMLING v. UNITED STATES 95 87 Opinion of the Court same address, as the party responsible for the mailing. The outer envelopes bore a postmark that indicated they were mailed from North Hollywood, California, on or about January 12, 1971, and that the postage was affixed to the envelopes by a Pitney-Bowes meter number. The mailing of these brochures was accomplished by petitioners through the use of other businesses. Approximately 55,000-58,000 of these brochures were placed in envelopes, and postage was affixed to them by one Richard and one Venita Harte, who operate the Academy Addressing and Mailing Service. The brochures and the Pitney-Bowes meter number, with which they affixed the postage, were supplied to them by one Bernard Lieberman of Regent House, Inc., of North Hollywood, California, who, on January 11, 1971, had paid the United States Postal Service to set $3,300 worth of postage on the meter number. Regent House was billed $541.15 by the Hartes for their services. Regent House in turn charged its services and costs for the postage and the Hartes' mailing service to Reed Enterprises, Inc., which paid the bill on January 19, 1971, with a check signed by petition.er Hamling. Those individuals responding to the brochure would be sent copies of the Illustrated Report, which would be mailed with postage affixed by a second Pitney-Bowes meter number which was installed at Library Service, Inc., at the direction of an employee of Pitney-Bowes. The rental agreement for this meter was signed for Library Service by petitioner David Thomas, whom that employee identified as the person with whom he had dealt on the matter. The evidence indicated that the individual petitioners were officers in the corporate petitioners, and also indicated that they were involved with selling the Illustrated Report, which entailed mailing out the advertising bro96 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. chure. Petitioner Hamling, as president of Reed Enterprises, Inc., signed the check on the corporation's behalf in payment to Regent House for the mailing of the advertisement. Petitioner Kemp was the editor of the Illustrated Report, and was vice president of Library Service, Inc., and Greenleaf Classics, Inc., which is the publisher of the Illustrated Report.5 He signed the application on behalf of Library Service, Inc., for the post office box in San Diego, which was the same post office box on the return envelope sent with the advertisement and on the advertisement itself. Petitioner Thomas signed the rental agreement for the postage meter which was used in affixing postage for sending copies of the Illustrated Report, and which Thomas directed to be installed at Library Service. Petitioner Wright was the secretary of Reed Enterprises, Inc., and Greenleaf Classics, Inc. Wright assisted the postal superintendent in obtaining Kemp's signature on the application for the post office box in San Diego. Wright also received a memorandum from London Press, Inc., the printer of the Illustrated Report, addressed to her as representative of Reed Enterprises, Inc., confirming the shipment of 28,537 copies of the Illustrated Report. Various other corporate documents tended to show the individual petitioners' involvement with the corporate petitioners. Both the Government and the petitioners introduced testimony from various expert witnesses concerning the obscenity vel non of both the Illustrated Report and the brochure. In affirming the convictions of these petitioners for the distribution of the obscene brochure, the Com·t of 5 Greenleaf Classics, Inc., was also indicted, but was acquitted on the counts involving the brochure, including the conspiracy count. As mentioned above, the jury was unable to reach a verdict on the counts involving the Illustrated Report. See n. 3, supra. HAMLING v. UNITED STATES 97 87 Opinion of the- Court Appeals rejected various contentions made by the petitioners. The Court of Appeals also rejected petitioners' petition for rehearing and suggestion for rehearing en bane. We granted certiorari, 414 U. S. 1143 (1974), and now affirm the judgment of the Court of Appeals. I These petitioners were convicted by a jury on December 23, 1971. App. 9. The Court of Appeals affirmed their convictions in an opinion filed on June 7, 1973. The Court of Appeals originally denied rehearing and suggestion for rehearing en bane on July 9, 1973. That order was withdrawn by the Court of Appeals to be reconsidered in light of this Court's decisions, announced June 21, 1973, in Miller v. Califomia, 413 U. S. 15, and related cases,6 and was submitted to the en bane court, by order dated August 20, 1973.7 On August 22, 1973, the Court of Appeals entered an order denying the 6 Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. CoJ,ifornia, 413 U. S. 115 (1973); United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U.S. 139 (1973). 'Upon withdrawing the original order denying rehearing for reconsideration in light of Miller v. CaJ,ifornia, supra, and the related cases, the Court of Appeals stated (Pet. for Cert. App. 39-40): "We heretofore determined that the evidence was abundantly sufficient to meet, and the District Court's jury instructions in full compliance with, the essential elements of the Roth-Memoirs test. United States v. One Reel of Film, et al., - F. 2d - (1st Cir. July 16, 1973, No. 73-1181) at pages 5 and 7 of the slip opinion, in considering the same problem, succinctly states: " 'A fortiori the more relaxed standards announced by the Supreme Court were met. "'[W]e see no possible reason to remand, especially as the Supreme Court has just addressed itself to the construction and adequacy of the federal statute involved. See United States v. 12 200-Ft. Reels of Super 8mm. Film, supra, 41 U. S. L. W. at 4963, n. 7.'" 98 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. petition for rehearing and the suggestion for rehearing en bane. The principal question presented by this case is what rules of law shall govern obscenity convictions that occurred prior to the date on which this Court's decision in Miller v. California, supra, and its companion cases were handed down, but which had not at that point become final. Petitioners mount a series of challenges to their convictions based upon the so-called Memoirs test for the proscription of obscenity. (Memoirs v. Massachusetts, 383 U. S. 413 (1966).) They also attack the judgments as failing to comply with the standards enunciated in the Miller cases, and conclude by challenging other procedural and evidentiary rulings of the District Court. Questions as to the constitutionality of 18 U. S. C. § 1461,8 the primary statute under which petitioners 8 Title 18 U.S. C. § 1461 provides in pertinent part: "Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and- "Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made .... "Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. "Whoever knowingly uses the mails for the mailing, carriage in 1he mails, or delivery of anything declared by this section or section 3001 (e) of Title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such HAMLING v. UNITED STATES 99 87 Opinion of the Court were convicted, were not strangers to this Court prior to the Miller decision. In Roth v. United States, 354 U. S. 476 (1957), the Court held that this statute did not offend the free speech and free press guarantees of the First Amendment, and that it did not deny the due process guaranteed by the Fifth Amendment because it was "too vague to support conviction for crime." Id., at 480. That holding was reaffirmed in United States v. Reidel, 402 U.S. 351 (1971). See also Manual Enterpru;es, Inc. v. Day, 370 U.S. 478 (1962); Ginzburg v. United States, 383 U. S. 463 (1966). Prior to Miller, therefore, this Court had held that 18 U.S. C. § 1461, "applied according to the proper standard for judging obscenity, do[es] not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited." Roth v. United States, supra, at 492. These petitioners were tried and convicted under the definition of obscenity originally announced by the Court in Roth v. United States, supra, and significantly refined by the plurality opinion in Memoirs v. Massachusetts, supra. The Memoirs 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. offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter .... " 100 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. Petitioners make no contention that the instructions given by the District Court in this case were inconsistent with the test of the Memoirs plurality. They argue instead that the obscenity vel non of the brochure has not been established under the Memoirs test. The Court of Appeals ruled against petitioners on this score, concluding that the jury's finding that the brochure was obscene under the Memoirs plurality test was correct. Petitioners argue at length that their expert witnesses established that the brochure did not appeal to a prurient interest in sex, that it was not patently offensive, and that it had social value. Examining the record below, we find that the jury could constitutionally find the brochure obscene under the Memoirs test. Expert testimony is not necessary to enable the jury to judge the obscenity of material which, as here, has been placed into evidence. See Paris Adult Theatre Iv. Slaton, 413 U. S. 49, 56 (1973); Kaplan v. California, 413 U. S. 115, 120- 121 (1973); Ginzburg v. United States, supra, at 465. In this case, both the Government and the petitioners introduced testimony through expert witnesses concerning the alleged obscenity of the brochure. The jury was not bound to accept the opinion of any expert in ·weighing the evidence of obscenity, and ,ve conclude that its determination that the brochure was obscene was supported by the evidence and consistent with the Memoirs formulation of obscenity. Petitioners nevertheless contend that since the jury was unable to reach a verdict on the counts charging the obscenity vel non of the Illustrated Report itself, that report must be presumed to be nonobscene, and therefore protected by the First Amendment. From this premise they contend that since the brochure fairly advertised the Illustrated Report, the brochure must also be nonobscene. The Court of Appeals rejected this conHAMLING v. UNITED STATES 101 87 Opinion of the Court tention, noting that "[t]he premise is false. The jury made no finding on the charged obscenity of the Report." 481 F. 2d, at 315. The jury in this case did not acquit the petitioners of the charges relating to the distribution of the allegedly obscene Illustrated Report. It instead was unable to reach a verdict on the counts charging the distribution of the Illustrated Report, and accordingly, the District Court declared a mistrial as to those counts. App. 9-10. It has, of course, long been the rule that consistency in verdicts or judgments of conviction is not required. United States v. Dotterweich, 320 U. S. 277, 279 (1943); Dunn v. United States, 284 U.S. 390, 393 ( 1932). "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, 413 U. S., at 26 n. 9. The brochure in this case stands by itself, and must accordingly be judged. It is not, as petitioners suggest, inseparable from the Illustrated Report, and it cannot be seriously contended that an obscene advertisement could not be prepared for some type of nonobscene material. If consistency in jury verdicts as to the obscenity vel non of identical materials is not constitutionally required, Miller v. California, supra, the same is true a fortiori of verdicts as to separate materials, regardless of their similarities. Our Miller decisions dealing with the constitutional aspects of obscenity prosecutions were announced after the petitioners had been found guilty by a jury, and their judgment of conviction affirmed by a panel of the Court 102 OCTOBER TER:Vl, 1973 Opinion of the Court 418 U.S. of Appeals. Our prior decisions establish a general rule that a change in the law occurring after a relevant event in a case will be given effect while the case is on direct review. United States v. Schooner Peggy, 1 Cranch 103 (1801); Linkletter v. Walker, 381 U.S. 618, 627 (1965); Bradley v. School Board of Richmond, 416 U. S. 696, 711 (1974). Since the judgment in this case has not become final, we examine the judgment against petitioners in the light of the principles laid down in the Miller cases. While the language of 18 U. S. C. § 1461 has remained the same throughout this litigation, the statute defines an offense in terms of "obscenity," and this Court's decisions, at least since Roth v. United States, supra, indicate that there are constitutional limitations which must be borne in mind in defining that statutory term. Thus any constitutional principle enunciated in Miller which would serve to benefit petitioners must be applied in their case. Recognizing that the Memoirs plurality test had represented a sharp break with the test of obscenity as announced in Roth v. United States, supra, our decision in Miller v. California reformulated the test for the determination of obscenity vel non: "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 . . . ; (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 a.s a whole, lacks serious literary, artistic, political, or scientific value." 413 U.S., at 24. The Court of Appeals held on rehearing that the Miller cases generally prescribed a more relaxed standard of reHAMLING v. UNITED STATES 103 87 Opinion of the Court view under the Federal Constitution for obscenity convictions, and that therefore petitioners could derive no benefit from the principles enunciated in those cases. Seen. 7, supra. Petitioners concede that this observation may be true in many particulars, but that in at least two it is not. They contend that the Miller treatment of the concept of "national standards" necessarily invalidates the District Court's charge to the jury in their case relating to the standard by which the question of obscenity was to be judged, and they further contend that the general language of 18 U. S. C. § 1461 is, in the light of the holding in the Miller cases, unconstitutionally vague. A The trial court instructed the jury that it was to judge the obscenity vel non of the brochure by reference to "what is reasonably accepted according to the contemporary standards of the community as a whole. . . . Contemporary community standards means the standards generally held throughout this country concerning sex and matters pertaining to sex. This phrase means, as it has been aptly stated, the average conscience of the time, and the present critical point in the compromise between candor and shame, at which the community may have arrived here and now." App. 241. Petitioners describe this as an instruction embodying the principle of "national standards" which, although it may have been proper under the law as it existed when they were tried, cannot be sustained under the law as laid down in Miller, where the Court stated: "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 matter of fact." 413 U.S., at 31-32. 104 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. Paradoxically, however, petitioners also contend that in order to avoid serious constitutional questions the standards in federal obscenity prosecutions must be national ones, relying on Manual Enterprises, Inc. v. Day, 370 U. S., at 488 (opinion of Harlan, J.), and United States v. Palladino, 490 F. 2d 499 (CAI 1974). Petitioners assert that our decisions in the two federal obscenity cases decided with Miller 9 indicate that this Court has not definitively decided whether the Constitution requires the use of nationwide standards in federal obscenity prosecutions. We think that both of these contentions evidence a misunderstanding of our Miller holdings. Miller rejected the view that the First and Fourteenth Amendments require that the proscription of obscenity be based on uniform nationwide standards of what is obscene, describing such standards as "hypothetical and unascertainable," 413 U. S., at 31. But in so doing the Court did not require as a constitutional matter the substitution of some smaller geographical area into the same sort of formula; the test was stated in terms of the understanding of "the average person, applying contemporary community standards." Id., at 24. When this approach is coupled with the reaffirmation in Paris Adult Theatre I v. Slaton, 413 U.S., at 56, of the rule that the prosecution need not as a matter of constitutional law produce "expert" witnesses to testify as to the obscenity of the materials, the import of the quoted language from Miller becomes clear. A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a "reasonable" per- 9 United States v. Orito, 413 U. S. 139 (1973); United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973). HAMLING v. UKITED STATES 105 87 Opinion of the Court son in other areas of the law. Stone v. New York, C. & St. L. R. Co., 344 U. S. 407, 409 (1953); Schulz v. Pennsylvania R. Co., 350 U. S. 523, 525-526 (1956). Our holding in Miller that California could constitutionally proscribe obscenity in terms of a "statewide" standard did not mean that any such precise geographic area is required as a matter of constitutional law. Our analysis in Miller of the difficulty in formulating uniform national standards of obscenity, and our emphasis on the ability of the juror to ascertain the sense of the "average person, applying contemporary community standards" without the benefit of expert evidence, clearly indicates that 18 U. S. C. § 1461 is not to be interpreted as requiring proof of the uniform national standards which were criticized in JVliller. In United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973 ), a federal obscenity case decided with Miller, we said: "We have today arrived at standards for testing the constitutionality of state legislation regulating obscenity. See Miller v. California, ante, at 23-25. These standards are applicable to federal legislation." Id., at 129-130. Included in the pages referred to in Miller is the standard of "the average person, applying contemporary community standards." In view of our holding in 12 200-ft. Reels of Film, we hold that 18 U. S. C. § 1461 incorporates this test in defining obscenity. The result of the Miller cases, therefore, as a matter of constitutional law and federal statutory construction, is to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion "the average person, applying contemporary community standards" would reach in a given case. Since this case was tried in the Southern District of California, and presumably jurors 106 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. from throughout that judicial district were avrulable to serve on the panel which tried petitioners, it would be the standards of that "community" upon which the jurors would draw. But this is not to say that a district court would not be at liberty to admit evidence of standards existing in some place outside of this particular district, if it felt such evidence would assist the jurors in the resolution of the issues which they were to decide. Our Brother BRENNAN suggests in dissent that in holding that a federal obscenity case may be tried on local community standards, we do violence both to congressional prerogative and to the Constitution. Both of these arguments are foreclosed by our decision last Term in United States v. 12 200-ft. Reels of Film, supra, that the Miller standards, including the "contemporary community standards" formulation, applied to federal legislation. The fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity. Those same distributors may be subjected to such varying degrees of criminal liability in prosecutions by the States for violations of state obscenity statutes; we see no constitutional impediment to a similar rule for federal prosecutions. In Miller v. California, 413 U. S., at 32, we cited with approval Mr. Chief Justice Warren's statement: "[W]hen 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,' and perhaps there should be none. At all events, this Court has not 87 HAMLING v. UNITED STATES 107 Opinion of the Court been able to enunciate one, and it would be unreasonable to expect local courts to divine one. It is said that such a 'community' approach may well result in material being proscribed as obscene in one community but not in another, and, in all probability, that is true. But communities throughout the Nation are in fact diverse, and it must be remembered that, in cases such as this one, the Court is confronted with the task of reconciling conflicting rights of the diverse communities within our society and of individuals." Jacobellis v. Ohio, 378 U.S. 184, 200- 201 ( 1964) ( dissenting opinion). Judging the instruction given by the District Court in this case by these principles, there is no doubt that its occasional references to the community standards of the "nation as a whole" delineated a wider geographical area than would be warranted by Miller, 12 200-ft. Reels of Film, and our construction of § 1461 herein, supra, at 105. Whether petitioners were materially prejudiced by those references is a different question. Certainly the giving of such an instruction does not render their convictions void as a matter of constitutional law. This Court has emphasized on more than one occasion that a principal concern in requiring that a judgment be made on the basis of "contemporary community standards" is to assure that the material is judged neither on the basis of each juror's personal opinion, nor by its effect on a particularly sensitive or insensitive person or group. Miller v. California, supra, at 33; Mishkin v. New York, 383 U. S. 502, 508-509 (1966); Roth v. United States, 354 U. S., at 489. The District Court's instruction in this case, including its reference to the standards of the "nation as a whole," undoubtedly accomplished this purpose. We have frequently held that jury instructions are to be judged as a whole, rather than by picking isolated 108 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. phrases from them. Boyd v. United States, 271 U. S. 104, 107 ( 1926). In the unusual posture of this case, in which petitioners agree that the challenged instruction was proper at the time it was given by the District Court, but now seek to claim the benefit of a change in the law which casts doubt on the correctness of portions of it, we hold that reversal is required only where there is a probability that the excision of the references to the "nation as a whole" in the instruction dealing with community standards would have materially affected the deliberations of the jury. Cf. Namet v. United States, 373 U. S. 179, 190--191 (1963); Lopez v. United States, 373 U.S. 427, 436 (1963). Our examination of the record convinces us that such a probability does not exist in this case. Our Brother BRENNAN takes us to task for reaching this conclusion, insisting that the District Court's instructions and its exclusion of the testimony of a witness, Miss Carlsen, who had assertedly conducted a survey of standards in the San Diego area require that petitioners be accorded a new trial. As we have noted, infra, at 124--125, the District Court has wide discretion in its determination to admit and exclude evidence, and this is particularly true in the case of expert testimony. Stillwell Mfg. Co. v. Phelps, 130 U. S. 520, 527 (1889); Barnes v. Smith, 305 F. 2d 226, 232 (CAlO 1962); 2 J. Wigmore, Evidence § 561 (3d ed. 1940).10 But even assuming that the Dis- 10 The stated basis for the District Court's exclusion of the testimony of Miss Carlsen was that her survey was not framed in terms of "national" standards, but it is not at all clear that the District Court would have admitted her testimony had it been so framed. "[A] specific objection sustained ... is sufficient, though naming an untenable ground, if some other tenable one existed." 1 J. Wigmore, Evidence § 18, p. 32 (3d ed. 1940), citing Kansas City S. R. Co. v. Jones, 241 U.S. 181 (1916). Miss Carlsen was a student at San Diego State University who worked part time at F. W. Woolworth, doing HAMLING v. UNITED STATES 109 87 Opinion of the Court trict Court may have erred in excluding the witness' testimony in light of the Miller cases, we think arguments made by petitioners' counsel urging the admission of the survey re-emphasize the confusing and often gossamer distinctions between "national" standards and other types of standards. Petitioners' counsel, in urging the District Court to admit the survey, stated: "We have already had experts who have testified and expect to bring in others who have testified both for the prosecution and the defense that the material that they found was similar in all cities .... " Tr. 3931. "This witness can testify about experiences she had in one particular city. Whether this is or not a typical city is for the jury to decide." Id., at 3932. "Now this supports the national survey. It is not something that stands alone. The findings here are consistent with the national survey and as part of the overall picture, taking into account, of course, that this is something that has taken place after the national survey, ,vhich was about tv.ro years ago, that Dr. Abelson performed." Id., at 3934-3935. The District Court permitted Dr. Wilson, one of the four expert witnesses who testified on behalf of petitioners, to testify as to materials he found available in San Diego, as a result of having spent several days there. Id., at 3575. He was then asked by petitioners' counsel whether this material was "similar to or different than" composition layouts of newspaper advertising for the company's store in Fashion Valley. She had undertaken a "Special Studies" course with her journalism professor, Mr. Haberstroh, who was also offered by petitioners as an expc>rt witness at the trial. Miss Carlsen had circulated through the San Diego area and asked various persons at random whether they thought "adults should be able to buy and view this book and material." Tr. 3926. 552-191 0 - 76 - 10 110 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. the material found in other cities where he had also visited adult bookstores. The witness responded that he thought "essentially the same kinds of material are found throvghout the "Cnited States." Id., at 3577. These statements, in colloquies between counsel and Dr. Wilson, only serve to confirm our conclusion that while there may have been an error in the District Court's references to the "community standards of the nation as a whole" in its instructions, and in its stated reasons for excluding the testimony of Miss Carlsen, these errors do not require reversal under the standard previously enunciated.11 B Petitioners next argue that prior to our decision in Miller, 18 U. S. C. § 1461 did not contain in its language, nor had it been construed to apply to, the specific types of sexual conduct referred to in Miller, and therefore the section was unconstitutionally vague as applied to them 11 The sequence of events in this case is quite different from that in Saunders v. Shaw, 244 U.S. 317 (1917), upon which our Brother BRENNAN relies. There the Supreme Court of Louisiana directed the entry of judgment against an intervening defendant who had prevailed in the trial court, on the basis of testimony adduced merely as an offer of proof by the plaintiff, and to which the intervening defendant had therefore had no occasion to respond. Since the trial court had ruled that the issue to which plaintiff's proof was addressed was irrelevant, this Court reversed the Supreme Court of Louisiana in order that the intervening defendant might have an opportunity to controvert the plaintiff's proof. Here petitioners were given full latitude in rebutting every factual issue dealt with in the Government's case, and l!O claim is made that the jury was permitted to rely on evidence introduced merely by way of offer of proof which was not subject to cross-examination or to contradiction by countervailing evidence offered by the petitioners. The present case seems to us much closer to Ginzburg v. United States, 383 U.S. 463 (1966), than to Saunders. HAMLING v. UNITED STATES 111 87 Opinion of the Court in the prosecution of these cases. Such an argument, however, not only neglects this Court's decisions prior to Miller rejecting vagueness challenges to the federal statute, but also fundamentally misconceives the thrust of our decision in the Miller cases. In Roth v. United States, 354 U. S., at 491, we upheld the constitutionality of 18 U. S. C. § 1461 against a contention that it did "not provide reasonably ascertainable standards of guilt and therefore violate [s] the constitutional requirements of due process." In noting that the federal obscenity statute made punishable the mailing of material that is "obscene, lewd, lascivious, or filthy ... [and of] other publication [s] of an indecent character," the Court stated in Roth: "Many decisions have recognized that these terms of obscenity statutes are not precise. 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 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." 354 U. S., at 491--492 (footnote omitted). Other decisions dealing with the pre-Miller constitution112 OCTOBER TER'.\1, 1973 Opinion of the Court 418 u. s. ality or interpretation of 18 U. S. C. § 1461 in other contexts have not retreated from the language of Roth. See, e. g., United States v. Reidel, 402 U.S. 351 (1971); Ginzburg v. United States, 383 U.S. 463 (1966); Manual Enterprises, Inc. v. Day, 370 U. S. 478 (1962). And as made clear by the opinion of Mr. Justice Harlan in Manual Enterprises, the language of 18 U. S. C. § 1461 had been, prior to the date of our decision in Miller, authoritatively construed in a manner consistent ,vith Miller: "The words of section 1461, 'obscene, lewd, lascivious, indecent, filthy or vile,' connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed. Cas. 1093 (No. 14571), put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, at 489, 'taken as a whole appeals to prurient interest.'" 370 U.S., at 482-484 (footnotes omitted) ( emphasis in original). At no point does Miller or any of the other obscenity decisions decided last Term intimate that the constitutionality of pre-Miller convictions under statutes such as 18 U. S. C. § 1461 was to be cast in doubt. Indeed, the contrary is readily apparent from the opinions in those cases. We made clear in Miller, 413 U. S., at 24 n. 6, that our decision was not intended to hold all state statutes inadequate, and we clearly recognized that existing statutes HA~ILING v. UNITED STATES 113 87 Opinion of the Court "as construed heretofore or hereafter, may well be adequate." That recognition is emphasized in our opinion in United States v. 12 200-ft. Reels of Film, 413 U.S. 123 ( 1973). That case had come to this Court on appeal from the District Court's dismissal of the Government's forfeiture action under 19 U. S. C. § 1305 (a), which statute the District Court had found unconstitutional. In vacating the District Court's constitutional decision and remanding the case to the District Court for a determination of the obscenity vel non of the materials there involved, we stated: "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. Thirty-seven 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, [ 413 U.S.,] 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 v. California, [ 413 U. S.,] 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." 413 U. S., at 130 n. 7. Miller undertook to set forth examples of the types of 114 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. material which a statute might proscribe as portraying sexual conduct in a patently offensive way, 413 U. S., at 25-26, and went on to say that no one could be prosecuted 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." Id., at 27. As noted above, we indicated in United States v. 12 200-ft. Reels of Film, supra, at 130 n. 7, that we were prepared to construe the generic terms in 18 U. S. C. § 1462 to be limited to the sort of "patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California." We now so construe the companion provision in 18 U. S. C. § 1461, the substantive statute under which this prosecution was brought. As so construed, we do not believe that petitioners' attack on the statute as unconstitutionally vague can be sustained. Miller, in describing the type of material which might be constitutionally proscribed, 413 U.S., at 25, was speaking in terms of substantive constitutional law of the First and Fourteenth Amendments. See Jenkins v. Georgw, post, at 160-161. While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is "patently offensive" within the meaning of the obscenity test set forth in the Miller cases. And while the Court in Miller did refer to "specific prerequisites" which "will provide fair notice to a dealer in such materials," 413 U. S., at 27, the Court immediately thereafter quoted the language of the Court in Roth v. United States, 354 U. S., at 491-492, concluding with these words: "'That there may be marginal cases in which it is difficult to determine the side of the line on which 87 HAMLING v. UNITED STATES 115 Opinion of the Court a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense .... ' " 413 U. S., at 28 n. 10. The Miller cases, important as they were in enunciating a constitutional test for obscenity to which a majority of the Court subscribed for the first time in a number of years, were intended neither as legislative drafting handbooks nor as manuals of jury instructions. Title 18 U.S.C. § 1461 had been held invulnerable to a challenge on the ground of unconstitutional vagueness in Roth; the language of Roth was repeated in Miller, along with a description of the types of material which could constitutionally be proscribed and the adjuration that such statutory proscriptions be made explicit either by their own language or by judicial construction; and United States v. 12 200-jt. Reels of Film, supra, made clear our willingness to construe federal statutes dealing with obscenity to be limited to material such as that described in Miller. It is plain from the Court of Appeals' description of the brochure involved here that it is a form of hard-core pornography well within the types of permissibly proscribed depictions described in Miller, and which we now hold § 1461 to cover. Whatever complaint the distributor of material which presented a more difficult question of obscenity vel non might have as to the lack of a previous limiting construction of 18 U. S. C. § 1461, these petitioners have none. See Dennis v. United States, 341 U. S. 494, 511-515 (1951) (opinion of Vinson, C. J.). Nor do we find merit in petitioners' contention that cases such as Bouie v. City of Columbia, 378 U. S. 347 (1964), require reversal of their convictions. The Court in Bouie held that since the crime for which the petitioners there stood convicted was "not enumerated in the statute" at the time of their conduct, their conviction could not be sustained. Id., at 363. The Court noted that "a 116 OCTOBER TERM, 1973 Opinion of the Court 41 8 U. S. deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and re troactive judicial expansion of narrow and precise statutory language." Id., at 352. But the enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for th e purpose of 18 U. S. C. § 1461, conduct which had not previously been thought criminR.I. That requirement instead added a " clarifying gloss" to the prior construction and therefore made the meR.ning of the federal statute involved here " more definite" in its application to federal obscenity prosecutions. Bouie v. City of Columbia, supra, at 353. Judged by both the judicial construction of § 1461 prior to Miller, and by the construction of that section which we adopt today in the light of Miller, petitioners' claims of vagueness and lack of fair notice as to the proscription of the material which they were distributing must fail. C Petitioners' final Miller-based contention is that our rejection of the third part of the Memoirs test and our revision of that tes t in J1illcr indicate that 18 e. S. C. § 1461 was at the time of their convictions unconstitutionally vague for the additional reason that it provided insufficient guidance to them as to the proper test of "social value." But our opinion in Miller plainly indicates that we rejected the Memoirs ''social value" formulation, not because it was so vague as to deprive criminal defendants of adequate notice, but instead because it represented a departure from the definition of obscenity in Roth, and because in calling on the prosecution to "prove a negative." it imposed a " [proscrutorial] burden virtually impossible to discharge '' and not con stitutionally required. 413 r. S., at 22. Since M iller perHAMLIKG v. UKITED STATES 117 87 Opinion of the Court mits the imposition of a lesser burden on the prosecution in this phase of the proof of obscenity than did Memoirs, and since the jury convicted these petitioners on the basis of an instruction concedely based on the Memoirs test, petitioners derive no benefit from the revision of that test in Miller. II Petitioners attack the sufficiency of the indictment under which they were charged for two reasons: first, that it charged them only in the statutory language of 18 U. S. C. § 1461, which they contend was unconstitutionally vague as applied to them; and, second, that the indictment failed to give them adequate notice of the charges against them. As noted above, however, at the time of petitioners' convictions. Roth v. United States had held that the language of § 1461 was not "too vague to support conviction for crime." 354 U. S., at 480. See United States v. Reidel, 402 U. S., at 354. Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hagner v. United States, 285 l;, S. 427 (1932); United States v. Debrow, 346 U. S. 374 ( 1953). It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as "those ,vords of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." United States v. Carll, 105 U.S. 611, 612 (1882). "Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused 118 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. of the specific offence, coming under the general description, with which he is charged." United States v. Hess, 124 u. s. 483, 487 (1888). Russell v. United States, 369 U. S. 749 (1962), relied upon by petitioners, does not require a finding that the indictment here is insufficient. In Russell, the indictment recited the proscription of 2 U. S. C. § 192, and charged that the defendants had refused to answer questions that "were pertinent to the question then under inquiry" by a committee of Congress. In holding that the indictment was insufficient because it did not state the subject which was under inquiry, this Court stated: "[TJ he very core of criminality under 2 U. S. C. § 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer. What the subject actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute." 369 U.S., at 764 ( emphasis added). The definition of obscenity, however, is not a question of fact, but one of law; the word "obscene," as used in 18 U. S. C. § 1461, is not merely a generic or descriptive term, but a legal term of art. See Roth v. United States, 354 U. S., at 487-488; Manual Enterprises, Inc. v. Day, 370 U. S., at 482-487 (opinion of Harlan, J.); United States v. Thev-is, 484 F. 2d 1149, 1152 (CA5 1973), cert. pending, No. 73-1075; United States v. Luros, 243 F. Supp. 160, 167 (ND Iowa), cert. denied, 382 U. S. 956 ( 1965). The legal definition of obscenity does not change with each indictment; it is a term sufficiently definite in legal meaning to give a defendant notice of the charge against him. Roth v. United States, supra, HAMLING v. UNITED STATES 119 87 Opinion of the Court at 491-492; Manual Enterprises, Inc. v. Day, supra, at 482-487 (opinion of Harlan, J.). Since the various component parts of the constitutional definition of obscenity need not be alleged in the indictment in order to establish its sufficiency, the indictment in this case was sufficient to adequately inform petitioners of the charges against them.12 Petitioners also contend that in order for them to be convicted under 18 U.S. C. § 1461 for the crime of mailing obscene materials, the Government must prove that they knew the materials mailed were obscene. That statute provides in pertinent part that "[w]hoever knowingly uses the mails for the mailing ... of anything declared by this section ... to be nonmailable ... " is guilty of the proscribed offense. Consistent with the statute, the District Court instructed the jury, inter ali,a,, that in order to prove specific intent on the part of these petitioners, the Government had to demonstrate that petitioners "knew the envelopes and packages containing the subject materials were mailed or placed . . . in Interstate Commerce, and ... that they had knowledge of the character of the 1 2 Petitioners' further contention that our rf'mand to the District Court in United States v. Orito, 413 U. S. 139 (1973), for reconsideration of the sufficiency of the indictment in light of Miller and United States v. 12 200-jt. Reels of Film, indicates that the sufficiency of their indictment is in question misses the mark. In Orito, we reviewed a District Court judgment which had dismissed an indictment under 18 U. S. C. § 1462 and held the statute unconstitutional. In upholding the statute and vacating the judgment of the District Court, we remanded the case for reconsideration of the indictment in light of Miller and 12 200-ft. Reels, which had, of course, enunciated new standards for state and federal obscenity prosecutions, and for reconsideration in light of our opinion reversing the District Court's holding that the statute was unconstitutional. Here of course, the District Court and the Court of Appeals have already upheld both the sufficiency of the indictment and the constitutionality of 18 U. S. C. § 1461, and we agree with their rulings. r--------------------------- --~ 120 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. materials." App. 236. The District Court further instructed that the "[petitioners'] belief as to the obscenity or non-obscenity of the material is irrelevant." Ibid. Petitioners contend that this instruction was improper and that proof of scienter in obscenity prosecutions requires, "at the very least, proof both of knowledge of the contents of the material and awareness of the obscene character of the material." Brief for Petitioner Kemp 31-32. In support of this contention, petitioners urge, as they must, that we overrule our prior decision in Rosen v. United States, 161 U. S. 29 (1896). We decline that invitation, and hold that the District Court in this case properly instructed the jury on the question of scienter. In Rosen v. United States, supra, this Court was faced with the question of whether, under a forerunner statute to the present 18 U. S. C. § 1461, see Rev. Stat. § 3893, 19 Stat. 90, c. 186, a charge of mailing obscene material must be supported by evidence that a defendant "knew or believed that such [material] could be properly or justly characterized as obscene .... " 161 e. S., at 41. The Court rejected this contention, stating: "The statute is not to be so interpreted. The inquiry under the statute is whether the paper charged to have been obscene, lewd, and lascivious was in fact of that character, and if it was of that character and was deposited in the mail by one who knew or had notice at the time of its contents, the offence is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails. Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of its contents, assumed the responsibility of putting it in the mails of the United States. The evils that Congress sought to 87 HAMLING v. UNITED STATES 121 Opinion of the Court remedy would continue and increase in volume if the belief of the accused as to what was obscene, lewd, and lascivious was recognized as the test for determining whether the statute has been violated." Id., at 41-42. Our subsequent cases have not retreated from this general rule, as a matter of either statutory or constitutional interpretation, nor have they purported to hold that the prosecution must prove a defendant's knowledge of the legal status of the materials he distributes. In Smith v. California, 361 U.S. 147 (1959), this Court was faced with a challenge to the constitutionality of a Los Angeles ordinance which had been construed by the state courts as making the proprietor of a bookstore absolutely liable criminally for the mere possession in his store of a book later judicially determined to be obscene, even though he had no knowledge of the contents of the book. The Court held that the ordinance could not constitutionally eliminate altogether a scienter requirement, and that, in order to be constitutionally applied to a book distributor, it must be shown that he had "knowledge of the contents of the book." Id., at 153. The Court further noted that " [ w] e need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock." Id., at 154. Smith does not support petitioners' claim in this case, since it dealt with an ordinance which totally dispensed with any proof of scienter on the part of the distributor of obscene material. Nor did the Court's decision in Manual Enterprises, Inc. v. Day, supra, also relied upon by petitioners, suggest otherwise. There Mr. Justice Harlan's opinion, recognizing that scienter was required for a criminal prosecution under 18 U. S. C. § 1461, rejected the Government's contention that such a require122 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. ment was unnecessary in an administrative determination by the Post Office Department that certain materials were nonmailable under that section. That opinion concluded that the obscene advertising proscription of the federal statute was not applicable in such an administrative determination unless the publisher of the materials knew that at least some of his advertisers were offering to sell obscene material. Such proof was deemed lacking and therefore the publishers could not be administratively prohibited from mailing the publications.13 Significantly, a substantially similar claim to the instant one was rejected by this Court in Mishkin v. New York, 383 U. S. 502 (1966). In examining a New York statute, the Court there noted that the New York Court of Appeals had "authoritatively interpreted" the statutory provision to require the "vital element of scienter" and that it had defined the required mental element as follows: " 'A reading of the [New York] statute ... as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised ... .'" Id., at 510 (emphasis in original), quoting from People v. Finkelstein, 9 N. Y. 2d 342, 344-345, 174 N. E. 2d 470,471 (1961). The Court emphasized that this construction of the New York statute "foreclosed" the defendant's challenge to 13 MR. JusTICE BRENNAN, joined by Mr. Chief Justice Warren and MR. JusTICE DouoLAs, concluded that 18 U. S. C. § 1461 does not authorize the Postmaster General to employ any administrative process of his own to close the mails to matter which, in his view, falls within the ban of that section. Manual Enterprises, Inc. v. Day, 370 U.S. 478, 495-519 (1962) (separate opinion). HAMLING v. UNITED STATES 123 87 Opinion of the Court the statute based on Smith v. California, supra, and stated: "The Constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity. The New York definition of the scienter required by [the New York statute] amply serves those ends, and therefore fully meets the demands of the Constitution. Cf. Roth v. United States, 354 U. S., at 495-496 (WARREN, C. J., concurring)." 383 U. S., at 511. The Mishkin holding was reaffirmed in Ginsberg v. New York, 390 U.S. 629 (1968). There the Court was again faced with the sufficiency of the scienter requirement of another New York statute, which proscribed the "knowing" distribution of obscene materials to minors. "Knowingly" was defined in the statute as "knowledge" of, or "reason to know" of, the character and content of the material. Citing Mishkin, and the New York Court of Appeals' construction of the other similar statutory language, the Court rejected the challenge to the scienter provision. We think the "knowingly" language of 18 U. S. C. § 1461, and the instructions given by the District Court in this case satisfied the constitutional requirements of scienter. It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. To require proof of a defendant's knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law. Such a formulation of the scienter requirement 124 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. is required neither by the language of 18 U. S. C. § 1461 nor by the Constitution. "Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk." United States v. Wurzbach, 280 U.S. 396,399 (1930). Petitioners also make a broad attack on the sufficiency of the evidence. The general rule of application is that "[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942). The primary responsibility for reviewing the sufficiency of the evidence to support a criminal conviction rests with the Court of Appeals, which in this case held that the Government had satisfied its burden. We agree. Based on the evidence before it, the jury was entitled to conclude that the individual petitioners, as corporate officials directly concerned with the activities of their organizations, were aware of the mail solicitation scheme, and of the contents of the brochure. The evidence is likewise sufficient to establish the existence of a conspiracy to mail the obscene brochure. The existence of an agreement may be shown by circumstances indicating that criminal defendants acted in concert to achieve a common goal. See, e.g., Blumenthal v. United States, 332 U. S. 539, 556-558 ( 1947). III We turn now to petitioners' attack on certain evidentiary rulings of the District Court. Petitioners have very much the laboring oar in showing that such rulings constitute reversible error, since "in judicial trials, the HAMLING v. UNITED STATES 125 87 Opinion of the Court whole tendency is to leave rulings as to the illuminating relevance of testimony largely to the discretion of the trial court that hears the evidence." NLRB v. Donnelly Co., 330 U.S. 219,236 (1947); Michelson v. United States, 335 U. S. 469, 480 (1948); Salem v. United States Lines Co., 370 U. S. 31, 35 (1962). Petitioners offered in evidence at trial three categories of allegedly comparable materials argued to be relevant to community standards: (1) materials which had received second-class mailing privileges; (2) materials which had previously been the subject of litigation and had been found to be "constitutionally protected"; and (3) materials openly available on the newsstands. The District Court, after examining the materials, refused to admit them into evidence on the grounds that "they tend to confuse the jury" and "would serve no probative value in comparison to the amount of confusion and deluge of material that could result therefrom." App. 158. The Court of Appeals concluded that the District Court was correct in rejecting the proffered evidence, stating that any abuse of discretion in refusing to admit the materials themselves had been "cured by the District Court's offer to entertain expert testimony with respect to the elements to be shown for the advice of the jury." 481 F. 2d, at 320. Here the District Court permitted four expert witnesses called by petitioners to testify extensively concerning the relevant community standards. The defendant in an obscenity prosecution, just as a defendant in any other prosecution, is entitled to an opportunity to adduce relevant, competent evidence bearing on the issues to be tried. But the availability of similar materials on the newsstands of the community does not automatically make them admissible as tending to prove the nonobscenity of the materials which the defendant is charged with circulating. As stated by 552-191 0 - 16 - 11 126 OCTOBER TERM, 1973 Opinion of the Court 418U.S. the Court of Appeals, the mere fact that materials similar to the brochure at issue here "are for sale and purchased at book stores around the country does not make them witnesses of virtue." Ibid. Or, as put by the Court of Appeals in United States v. Manarite, 448 F. 2d 583 (CA2 1971): "Mere availability of similar material by itself means nothing more than that other persons are engaged in similar activities." Id., at 593. Nor do we think the District Court erred in refusing petitioners' offer of a magazine which had received a second-class mailing privilege.14 While federal law, see former 39 U. S. C. § 4354 (1964 ed.); 39 CFR Pt. 132 ( 1973), may lay down certain standards for the issuance of a second-class mailing permit, this Court has held that these standards give postal inspectors no power of censorship. Hannegan v. Esquire, Inc., 327 U. S. 146 (1946). The mere fact that a publication has acquired a secondclass mailing privilege does not therefore create any presumption that it is not obscene. Finally, we do not think the District Court abused its discretion in refusing to admit certain allegedly comparable materials, a film and two magazines,15 which had been found to be nonobscene by this Court. See Pinkus v. Pitchess, 429 F. 2d 416 (CA9), aff'd sub nom. California v. Pinkus, 400 U. S. 922 (1970); Burgin v. South Carolina, 404 U. S. 806 (1971), rev'g 255 S. C. 237, 178 S. E. 2d 325 (1970). A judicial determination that particular matters are not obscene does not necessarily make them relevant to the determination of the obscenity of 14 The magazine offered was entitled Nude Living, No. 63. The foundation alleged for its admissibility was that it had received a second-class mailing privilege. App. 212-213. 15 Brief for Petitioner Kemp 69. HAMLING v. UNITED STATES 127 87 Opinion of the Court other materials, much less mandate their admission into evidence. Much of the material offered by petitioners was not of demonstrated relevance to the issues in this case. Such of it as may have been clearly relevant was subject to the District Court's observation that it would tend to create more confusion than enlightenment in the minds of the jury, and to the court's expressed willingness to permit the same material to be treated in the testimony of expert witnesses. The District Court retains considerable latitude even with admittedly relevant evidence in rejecting that which is cumulative, and in requiring that which is to be brought to the jury's attention to be done so in a manner least likely to confuse that body. We agree with the Court of Appeals that the District Court's discretion was not abused.16 Petitioners' second contention is that the District Court erred in instructing the jury as to the determination of the prurient appeal of the brochure. At the trial, the Government introduced, over petitioners' objection, testimony from an expert witness that the material in the Illustrated Report appealed to the prurient interest of various deviant sexual groups." The testimony concerning the brochure was that it appealed to a prurient 16 Other proffered materials, alleged to be comparable, included numerous magazines and films, and also the survey (see n. 10, supra) conducted by the student at San Diego State University of the reactions of people in the San Diego area to the Illustrated Report and the brochure. Brief for Petitioner Kemp 64-71. 17 Petitioners also contend that this evidence was at variance with the Government's answer to their Bill of Particulars. Brief for Petitioner Hamling 49-50. The Court of Appeals assumed, without deciding, that such evidence did constitute a variance, but concluded that "such variance was in no wise a surprise or prejudice to the defendants as their own expert opinion testimony interwove and covered the same field completely." 481 F. 2d, at 322. We agree with the Court of Appeals. 128 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. interest in general, and not specifically to some deviant group. Petitioners concede, however, that each of the pictures said to appeal to deviant groups did in fact appear in the brochure.18 The District Court accordingly instructed the jury that in deciding whether the predominant appeal of the Illustrated Report and the brochure was to a prurient interest in sex, it could consider whether some portions of those materials appealed to a prurient interest of a specifically defined deviant group as well as whether they appealed to the prurient interest of the average person. App. 239--241. The Court of Appeals found no error in the instruction, since it was "manifest that the District Court considered that some of the portrayals in the Brochure might be found to have a prurient appeal" to a deviant group. 481 F. 2d, at 321. Petitioners contend that the District Court's instruction was improper because it allowed the jury to measure the brochure by its appeal to the prurient interest not only of the average person but also of a clearly defined deviant group. Our decision in Mishkin v. New York, 383 U. S. 502 (1966), clearly indicates that in measuring the prurient appeal of allegedly obscene materials, i. e., whether the "dominant theme of the material taken as a whole appeals to a prurient interest in sex," consideration may be given to the prurient appeal of the material to clearly defined deviant sexual groups. Petitioners appear to argue that if some of the material appeals to the prurient interest of sexual deviants while other parts appeal to the prurient interest of the average person, a general finding that the material appeals to a prurient interest in sex is somehow precluded. But we stated in Mishkin v. New York: "Where the material is designed for and primarily disseminated to a clearly defined deviant sexual 18 Brief for Petitioner Hamling 49-50. 87 HAMLING v. UNITED STATES 129 Opinion of the Court group, rather than the public at large, the prurientappeal requirement of the Roth test is satisfied if the domjna.nt. theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. The reference to the 'average' or 'normal' person in Roth, 354 U. S., at 489-490, does not foreclose this holding. . . . We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group; and since our holding requires that the recipient group be defined with more specificity than in terms of sexually immature persons, it also avoids the inadequacy of the most-susceptible-person facet of the [Regina v.] Hicklin [ [1868] L. R. 3 Q. B. 360] test." 383 U. S., at 508-509 (footnotes omitted). The District Court's instruction was consistent with this statement in Mishkin. The jury was instructed that it must find that the materials as a whole appealed generally to a prurient interest in sex. In making that determination, the jury was properly instructed that it should measure the prurient appeal of the materials as to all groups. Such an instruction was also consistent with our recent decision in the Miller cases. We stated in Miller: "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--0r indeed 130 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. a totally insensitive one." 413 U. S., at 33 ( emphasis added). Finally, we similarly think petitioners' challenge to the pandering instruction given by the District Court is without merit. The District Court instructed the jurors that they must apply the three-part test of the plurality opinion in Memoirs v. Massachusetts, 383 U. S., at 418, and then indicated that the jury could, in applying that test, if it found the case to be close, also consider whether the materials had been pandered, by looking to their "[m] anner of distribution, circumstances of production, sale, ... advertising .... [and] editorial intent .... " App. 245. This instruction was given with respect to both the Illustrated Report and the brochure which advertised it, both of which were at issue in the trial. Petitioners contend that the instruction was improper on the facts adduced below and that it caused them to be "convicted" of pandering. Pandering was not charged in the indictment of the petitioners, but it is not, of course, an element of the offense of mailing obscene matter under 18 U. S. C. § 1461. The District Court's instruction was clearly consistent with our decision in Ginzburg v. United States, 383 U.S. 463 (1966), which held that evidence of pandering could be relevant in the determination of the obscenity of the materials at issue, as long as the proper constitutional definition of obscenity is applied. Nor does the enactment by Congress of 39 U.S. C. § 3008, enabling the Postal Service to cease forwarding pandering advertisements at the request of an addressee, authorize, as contended by petitioners, the pandering of obscene advertisements. That statute simply gives a postal recipient the means to insulate himself from advertisements which offer for sale matter "which the addressee in his sole discretion believes to be erotically arousing or sexually provocative," by HAMLING v. UNITED STATES 131 87 Opinion of the Court instructing the Post Office to order the sender to refrain from mailing any further advertisements to him. See Rowan v. U.S. Post Office Dept., 397 U.S. 728 (1970). The statute does not purport to authorize the mailing of legally obscene pandering advertisements, which continues to be proscribed by 18 U. S. C. § 1461. See 39 U. S. C. § 3011 (e). IV Petitioners' final contentions are directed at alleged procedural irregularities said to have occurred during the course of the trial. They first contend that the District Court committed reversible error by denying their request to make additional objections to the court's instructions to the jury out of the presence of the jury. Prior to closing arguments and instructions to the jury the parties had made a record with respect to the instructions which the Court indicated it would give. After argument and instructions, but before the jury had retired, petitioners' counsel approached the bench and requested that the jury be excused in order that he might present further objections to the charge. The court declined to excuse the jury, saymg: "You have made all the objections suitable that I can think of. I want to send this Jury out. If you want to make a statement, make a statement." App. 257. Petitioners contend that the court's refusal to excuse the jury violated the provisions of Fed. Rule Crim. Proc. 30, and requires reversal. Rule 30 provides: "At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the re132 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. quests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury." (Emphasis added.) Nothing in Rule 30 transfers from the district court to counsel the function of deciding at what point in the trial, consistent with established practice, counsel shall be given the opportunity required by Rule 30 to make a record on the instructions given by the court. But when counsel at the close of the court's instruction to the jury indicates that he wishes to make objections of a kind which could not previously have been brought to the court's attention, he runs the risk of waiving a claim of error under the fourth sentence of the Rule unless the court indicates that it will permit such objections to be made after the jury retires. Since the court here asked counsel for comments, and did not indicate that it would permit objections which could not have been previously formulated to be made after the jury retired, we agree with the Court of Appeals that the District Court erred in refusing to permit such objections to be made out of the presence of the jury. We also agree with the Court of Appeals' conclusion that such procedural error does not mandate reversal. The courts of appeals have taken varying approaches to the question of when a failure to comply with the proHAMLING v. UNITED STATES 133 87 Opinion of the Court visions of Rule 30 constitutes reversible error.19 Some appear to have applied a general rule that such a violation is not reversible error unless the defendant demonstrates that he has been prejudiced. United States v. Hall, 200 F. 2d 957 (CA2 1953); United States v. Titus, 221 F. 2d 571 (CA2), cert. denied, 350 U.S. 832 (1955); United States v. Fernandez, 456 F. 2d 638 (CA2 1972); Hodges v. United States, 243 F. 2d 281 (CA5 1957); Sultan v. United States, 249 F. 2d 385 (CA5 1957). Others appear to have adopted a rule whereby a violation is not reversible error where it affirmatively appears that the defendant was not prejudiced. United States v. Schartner, 426 F. 2d 470 (CA3 1970); Lovely v. United States, 169 F. 2d 386 (CA4 1948). At least one Court of Appeals appears to take the position that the failure to comply with Rule 30 is automatic grounds for reversal, regardless of attenuating circumstances. Hall v. United States, 378 F. 2d 349 (CAlO 1967). 19 Federal Rule Civ. Proc. 51 states that "[o]pportunity shall be given to make the objection out of the hearing of the jury." Though the "out of the presence of the jury" language is not contained in that Rule, t,he Advi~ory Committee's note attending Fed. Rule Crim. Proc. 30 states that it is to "correspond to Rule 51 of the Federal Rules of Civil Procedure . . . . It seemed appropriate that on a point such as instructions to juries there should be no difference in procedure between civil and <'rimina.J cases." The Government argues that in considering whether failure to comply with Fed. Rule Crim. Proc. 30 requires reversal, the appropriate test should be similar to the general standard of consideration where there is a failure to comply with Fed. Rule Civ. Proc. 51, i. e., reversal is required "if there is reasonable basis for concluding that the colloquy had in the presence of the jury as a result of the judge's ignoring or denying a proper request was prejudicial." Swain v. Boeing Airplane Co., 337 F. 2d 940, 943 (CA2 1964), cert. denied, 380 U. S. 951 (1965). This approach was used by a panel of the Court of Appeals for the Second Circuit in a case involving failure to comply with Fed. Rule Crim. Proc. 30. United States v. Fernandez, 456 F. 2d 638 (1972). 134 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. The Court of Appeals in this case felt that the rule announced by the Third Circuit in United States v. Schartner, supra, was the appropriate one for application where Rule 30 has not been complied with. The court in Schartner held that a District Court's failure to comply with the "out of the presence of the jury" requirement of Rule 30, upon proper request by a party, constitutes reversible error "unless it be demonstrable on an examination of the whole record that the denial of the right did not prejudice" the defendant's case. 426 F. 2d, at 480. Applying that rule, the Court of Appeals here concluded that there was no prejudice to any of the petitioners as a result of the District Court's failure to comply with Rule 30. The language in Rule 30 at issue here was added to that Rule by a 1966 amendment; prior to that time the Rule had only provided that a party should be given the opportunity to make the objection out of the hearing of the jury. The significance of the change was not elaborated by the Advisory Committee in its note accompanying the Rule, which merely mentioned the change. Courts examining the Rule have found that it is principally designed to avoid the subtle psychological pressures upon the jurors which would arise if they were to view and hear defense counsel in a posture of apparent antagonism toward the judge. Lovely v. United States, supra, at 391; Hodges v. United States, supra, at 283-284; United States v. Schartner, supra, at 479. While that goal might be served in many cases by a sufficiently lowtone bench conference, the ultimate way to assure the goal is to comply with the Rule. Petitioners urge that we adopt a strict approach and declare that any noncompliance with the Rule requires reversal. We think such an approach would be unduly mechanical, and would be inconsistent with interpretation HAMLING v. UNITED STATES 135 87 Opinion of the Court in pari materia of Rule 30 and other relevant provisions of the Federal Rules of Criminal Procedure, since Rule 52 (a) specifically provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." This provision suggests the soundness of an approach similar to that of the Court of Appeals here and the various other Courts of Appeals, supra, which have in some manner examined the prejudice to the defendant in deciding whether reversal is required where there is a failure to comply with Rule 30. We conclude that the Court of Appeals did not err in refusing to reverse petitioners' convictions for the failure to comply with the provisions of Rule 30. The Court of Appeals felt that it should apply the somewhat stricter test of the Schartner case, supra; the court felt that "the rule of Fernandez, [ 456 F. 2d 638 (CA2 1972) ,] places a burden upon a defendant in a criminal case that he may not be able to carry." 481 F. 2d, at 324. Applying the Schartner test, the Court of Appeals determined that there was no prejudice to petitioners from the failure to hold the instruction-objection session out of the presence of the jury. Our independent examination of that bench conference convinces us that the holding of the Court of Appeals was correct. The bench conference was one of many at the trial and there is no indication in the record that the discussion was heard by the jury. The colloquy between petitioners' counsel and the court concerned purely legal issues, App. 257-265, and the District Court had prior to that point indicated its rulings with respect to the instructions requested by counsel. We express no view, of course, as to whether a court of appeals may follow the apparently more lenient standard of requiring the defendant to demonstrate that he was prejudiced. See United States v. Fernandez, 456 F. 2d, at 643-644. Petitioners' second procedural contention is that the 136 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. trial jury was improperly constituted because an allegedly cognizable class of citizens, "young adults," which petitioners define as those between the ages of 18 and 24 years, were systematically excluded.20 Petitioners therefore argue that the District Court abused its discretion in refusing to grant a continuance until a new jury, which would have presumably contained a greater ratio of young persons, was drawn. At the time of petitioners' indictment and trial, the jury-selection plan of the Southern District of California, adopted pursuant to 28 U. S. C. § § 1863 (b )(2) and ( 4), 82 Stat. 55, provided for the periodic emptying and refilling of the master jury wheel from voter registration lists. At that point, it had been slightly less than four years since the jury wheel in the District had last been filled. Petitioners' argument is that because the jury wheel had last been filled in 1968, the youngest potential juror for their trial was at least 24 years old. The petitioner called as a witness the Clerk of the Southern District of California, who testified that within one month the master wheel would be refilled with the names of persons who then appeared on the voters' registration list and that the master list would then contain the names of persons 21 years of age and over. Tr. 94-98. A 1972 amendment to 28 U.S. C. § 1863 (b) ( 4) (1970 ed., Supp. II) provided that the periodic emptying and refilling of the master wheel should occur at specified intervals, "not [ to j exceed four years." Pub. L. No. 92--269, § 2, 86 Stat. 117. The District Court denied petitioners' motion to strike the venire, but stated that the evidence presented 20 In connection with their motion to strike the venire, petitioners introduced evidence which they contended established that "young persons were a cognizable group and that they were more tolerant than older persons in matters pertaining to the depiction of sexually explicit material." Brief for Petitioner Hamling 88. HAMLING v. UNITED STATES 137 87 Opinion of the Court indicated that "it is time to change the jury master wheel." Tr. 93. The petitioners then moved for a continuance of approximately one month, so that their jury would be drawn from a master wheel that included the names of persons 21 years of age or over. Id., at 95-98. The District Court denied the motion. The Court of Appeals assumed, without deciding, that the young do constitute a cognizable group or class, but concluded that petitioners had "failed to show, let alone establish, a purposeful systematic exclusion of the members of that class whose names, but for such systematic exclusion would otherwise be selected for the master jury wheel," and therefore that the District Court's refusal to grant a continuance was not an abuse of discretion. 481 F. 2d, at 314. We agree with the Court of Appeals. Petitioners do not cite case authority for the proposition that the young are an identifiable group entitled to a group-based protection under our prior cases, see Hernandez v. Texw;, 347 U.S. 475, 479-480 (1954); claims of exclusion of the young from juries have met with little success in the federal courts.21 Assuming, as did the Court of Appeals, that the young are such a group, we do not believe that there is evidence in this case sufficient to make out a prima facie case of discrimination which would in turn place the burden on the Government to overcome it. The master wheel under the Southern District of California plan, as under plans in other judicial districts, is periodically emptied and then refilled with names from the available voter lists. Persons added to the voter lists subsequent to one filling of the jury 21 See, e. g., United States v. Butera, 420 F. 2d 564 (CAI 1970); United States v. Camara, 451 F. 2d 1122 (CA! 1971); United States v. Gooding, 473 F. 2d 425 (CA5 1973); United States v. Kuhn, 441 F. 2d 179 (CA5 1971); United States v. Gast, 457 F. 2d 141 (CA7), cert. denied, 406 U. S. 969 ( 1972). 138 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. wheel are therefore not added to the wheel until the next refilling. But some play in the joints of the jury-selection process · is necessary in order to accommodate the practical problems of judicial administration. Congress could reasonably adopt procedures which, while designed to assure that "an impartial jury [is] drawn from a crosssection of the community," Thiel v. Southern Pacific Co., 328 U.S. 217,220 (1946); Smith v. Texas, 311 U.S. 128, 130 (1940), at the same time take into account practical problems in judicial administration. Unless we were to require the daily refilling of the jury wheel, Congress may necessarily conclude that some periodic delay in updating the wheel is reasonable to permit the orderly administration of justice.22 Invariably of course, as time goes on, the jury wheel will be more and more out of date, especially near the end of the statutorily prescribed time period for updating the wheel. But if the jury wheel is not discriminatory when completely updated at the time of each refilling, a prohibited "purposeful discrimination" does not arise near the end of the period simply because the young and other persons have belatedly become eligible for jury service by becoming registered voters. Whitus v. Georgia, 385 U. S. 545, 551 (1967); see Avery v. Georgia, 345 U.S. 559 (1953); Alexander v. Louisiana, 405 U. S. 625 ( 1972). Since petitioners failed to establish a discriminatory exclusion of the young from their jury, the District Court properly exercised its discretion in refusing to grant petitioners' motion for a continuance. Petitioners' third procedural contention is that the District Court erred in refusing to ask certain questions on 22 Various delays in refilling jury wheels have been upheld by the federal courts. E. g., United States v. Pentado, 463 F. 2d 355 (CA5 1972) (three years); United States v. Gooding, supra (three years, four months); United States v. Kuhn, supra (five years). HAMLING v. UNITED STATES 139 87 Opinion of the Court voir dire concerning possible religious and other biases of the jurors.23 Specifically, petitioners requested the court to ask questions as to whether the jurors' educational, political, and religious beliefs might affect their views on the question of obscenity. App. 78-81. The Court of Appeals concluded that the District Court's examination on the voir dire of the prospective jurors "was full, complete and ... fair to the [petitioners] as contemplated by Rule 24 (a), Federal Rules of Criminal Procedure." 481 F. 2d, at 314. Noting that petitioners had requested the submission of numerous questions to the petit panel, the Court of Appeals stated: "The District Court asked many of the questions as submitted, many in altered and consolidated form, and declined to ask many others which were cumulative and argumentative. The handling of those questions not asked was clearly within the range of the District Court's discretion in the matter and no clear abuse of the discretion nor prejudice to the [petitioners] has been shown." Ibid. We agree with the Court of Appeals. Federal Rule Crim. Proc. 24 (a) permits a district court to conduct the voir dire examination, making such use of questions submitted by the parties as it deems proper. The District Court here asked questions similar to many of those sub- 23 Petitioners also contend that certain actions of the Government's attorney before the grand jury prejudiced that body against them. The Court of Appeals, in rejecting this contention, stated: "The record before us is totally lacking of any evidence or showing of any kind that any member of the Grand Jury was biased or prejudiced in any degree against any of the [petitioners], except only a supposition as to how the members may have reacted upon a view of the Brochure and Report. The presumption of regularity which attaches to Grand Jury proceedings still abides. . . . [T]he assignment has no merit." 481 F. 2d, at 313 ( citations omitted). We agree with the Court of Appeals. 140 OCTOBER TERM, 1973 DouGLAs, J., dissenting 418 U.S. mitted by petitioners, and its examination was clearly sufficient to test the qualifications and competency of the prospective jurors. Petitioners' reliance on this Court's decisions in Aldridge v. United States, 283 U. S. 308 (1931), and Ham v. South Carolina, 409 U.S. 524 (1973), is misplaced. Those cases held that in certain situations a judge must inquire into possible racial prejudices of the jurors in order to satisfy the demands of due process. But in Ham v. South Carolina, supra, we also rejected a claim that the trial judge had erred in refusing to ask the jurors about potential bias against beards, noting our inability "to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices .... " Id., at 528. Here, as in Ham, the trial judge made a general inquiry into the jurors' general views concerning obscenity. Failure to ask specific questions as to the possible effect of educational, political, and religious biases did "not reach the level of a constitutional violation," ibid., nor was it error requiring the exercise of our supervisory authority over the administration of justice in the federal courts. We hold that the District Court acted within its discretion in refusing to ask the questions. The judgment of the Court of Appeals for the :Ninth Circuit in this case is Affirmed. MR. JUSTICE DOUGLAS, dissenting. In 1970 the President's Commission on Obscenity and Pornography issued its report. Dean William D. Lockhart was chairman. Eighteen others were members. It was a 646-page report. One member, Charles I-I. Keating, Jr., filed a dissenting report of some 60 pages with at least as many pages of exhibits. The report contains many references to many facets of sex: e. g., petting, HAMLING v. UNITED STATES 141 87 BRENNAN, .J., dissenting coitus, oral sexuality, masturbation, and homosexual activities. What petitioners did was to supply the report with a glossary-not in dictionary terms but visually. Every item in the glossary depicted explicit sexual material within the meaning of that term as used in the report. Perhaps we should have no reports on obscenity. But imbedded in the First Amendment is the philosophy that the people have the right to know.* Sex is more important to some than to others but it is of some importance to all. If officials may constitutionally report on obscenity, I see nothing in the First Amendment that allows us to bar the us2 of a glossary factually to illustrate what the report discusses. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting. I Whatever the constitutional power of government to regulate the distribution of sexually oriented materials, the First and Fourteenth Amendments, in my view, deny the Federal and State Governments power wholly to suppress their distribution. For I remain of the view 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 *The Constitution of India (Mar. 1, 1963) provides in Art. 19 (1) that "[a]ll citizens shal! have the right-(a) to freedom of speech and expression"; but Art. 19 (2) provides that nothing in that clause bars "reasonable restrictions on the exercise" of those rights "in the interests of ... decency or morality." Our First Amendment contains no such qualification and certainly when J e:fferson and Madison drafted it, sex had as great a potential for vulgarity as for beauty. If they had wanted a federal censor to edit our publications, they certainly would have made it explicit. 552 - rnl O - 76 ... 12 142 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 U.S. Governments from attempting ·wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents." Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (BRENNAN, J., dissenting). Since amended 18 U. S. C. § 1461, as construed by the Court, aims at total suppression of distribution by mail of sexually oriented materials, it is, in my view, unconstitutionally overbroad and therefore invalid on its face. On that ground alone, I would reverse the judgment of the Court of Appeals and direct the dismissal of the indictment. Several other reasons, however, also compel the conclusion that petitioners' convictions should be set aside. II At least since 1962 the accepted construction of amended § 1461 has been that of Mr. Justice Harlan and MR. JusTICE STEWART "that the proper test under this federal statute, [§ 1461,] reaching as it does to all parts of the United States whose population reflects many different ethnic and cultural backgrounds, is a national standard of decency"; further, they said, "[t]he 1958 amendments ... authorizing criminal prosecution at the place of delivery evince no purpose to make the standard less than national." Manual Enterprises, Inc. v. Day, 370 U. S. 478, 488, and n. 10 (1962). The Court today overrules that construction and construes amended § 1461 to permit a juror to "draw on knowledge of the community or vicinage from which he comes in deciding what conclusion 'the average person, applying contemporary community standards' would reach in a given case." Ante, at 105. Apart from the questions whether the Court's new construction trespasses upon the congressional prerogative, see Blount v. Rizzi, 400 U.S. 410,419 (1971),1 1 The Court is, of course, obliged to strain to construe congressional enactments to avoid constitutional attacks. It cannot, howHAMLING v. UNITED STATES 143 87 BRENNAN, J., dissenting and whether constitutionally any "local" standard under amended § 1461 can properly be employed to delineate the area of expression protected by the First Amendment, see Pennekamp v. Florida, 328 U. S. 331, 335 (1946)- since "[i] t is, after all, a national Constitution we are expounding," Jacobellis v. Ohio, 378 U. S. 184, 195 (1964) ( opinion of BRENN AN, J. )-the construction that a "local" standard applies in § 1461 cases raises at least another serious First Amendment problem. The 1958 amendments to § 1461 constituted the mailing of obscene matter a continuing offense under 18 U. S. C. § 3237.2 The practical effect of this amendever, emasculate a statute to avoid a perceived constitutional difficulty, see Aptheker v. Secretary of State, 378 U. 8. 500, 515 (1964); George Moore Ice Cream Co. v. Rose, 289 U. S. 373,379 (1933). The legislative history of § 1461 gives not the slightest indication that the application of local standards was contemplated. Indeed, the remarks of an early sponsor of the provision indicate that application of a national standard was intended: "If there be a trial in this country or anywhere else of an obscene character-of that character that a report of it would corrupt the morals of the youth and the morals of the country generally-then I do not think the United States should provide the means to circulate that kind of literature in whatever paper or in whatever book it may be published." 4 Cong. Rec. 696 (1876) (remarks of Rep. Cannon) (emphasis added). 2 Prior to the amendment § 1461 read, "[w]hoever knowingly deposits for mailing or delivery . . ." ( emphasis added). This was changed to read " [ w J hoever knowingly uses the mails . . . . " The amendment overruled United States v. Ross, 205 F. 2d 619 (CAlO 1953), which held that the unlawful a.ct proscribed in § 1461 was "the deposit for mailing and not a. use of the mails which may follow such deposit," id., at 621, and thus brought § 1461 with.in 18 U. S. C. § 3237, which provides in relevant part that "[a]ny offense involving the use of the mails, or transporta.tion in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such 144 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 U.S. ment---intentionally adopted by Congress for that express purpose-is to permit prosecution "in the Federal district in which [ the disseminator J mailed the obscenity, in the Federal district in which the obscenity was received, or in any Federal district through which the obscenity passed while it was on its route through the mails." 104 Cong. Rec. 15610-15611 (1958) (remarks of Rep. Hillings); see H. R. Rep. No. 2624, 85th Cong., 2d Sess. (1958); 104 Cong. Rec. 8991 (remarks of Rep. Keating); id., at 17832; id., at 8992 (remarks of Rep. Poff). Under today's "local" standards construction, therefore, the guilt or innocence of distributors of identical materials mailed from the same locale can now turn on the chancy course of transit or place of delivery of the materials. See United States v. Palladino, 490 F. 2d 499, 503 (CAI 1974) (Coffin, C. J.). National distributors choosing to send their products in interstate travels will be forced to cope with the community standards of every hamlet into which their goods may wander. Because these variegated standards are impossible to discern, national distributors, fearful of risking the expense and difficulty of defending against prosecution in any of several remote communities, must inevitably be led to retreat to debilitating selfcensorship that abridges the First Amendment rights of the people. For it "would tend to restrict the public's access to forms [ of sexually oriented materials] which the [United States] could not constitutionally suppress directly ... a censorship ... hardly less virulent for being privately administered[, for] [tlhrough it, the distribution of all [sexually oriented materials], both obscene and not obscene, would be impeded." Smith v. California, 361 U. S. 147, 154 (1959). Thus, the people of many communities will be "protected" far beyond govcommerce or mail matter moves." See generally Note, Venue: Its Impact on Obscenity, 11 S. D. L. Rev. 363 (1966). HAMLING v. UNITED STATES 145 87 BRENNAN, .T., dissenting ernment's constitutional power to deny them access to sexually oriented materials. A construction that has such consequences necessarily renders the constitutionality of amended § 1461 facially suspect under the First Amendment. III But even on the assumption that amended § 1461 is invulnerable to constitutional attack, the Court's affirmance of these convictions is a patently indefensible denial to these petitioners of due process of law. The trial judge followed Manual Enterprise's construction of amended § 1461 that required a determination of guilt upon the basis of a "national" standard of decency. The Court holds that under today's new "local" standards construction, this was error. Yet, says the Court, the error in effect was harmless because the references in the instructions to "national" standards could not have "materially affected ( the jurors'] deliberations .... " Ante, at 108. The trial transcript lays bare the utter fallacy of that conclusion. First, the Court appraises the trial court's references to "national" standards as "isolated," and cites Boyd v. United States, 271 U.S. 104, 107 (1926), ante, at 107-108, where the Court held that an ambiguous statement in a charge in a criminal case, which, interpreted one way, would be erroneous, but which considered with the charge as a whole, probably was understood by the jurors in a harmless sense, is not a ground for reversal. But to represent the references to "national" standards in the court's instructions as "isolated," and probably understood by the jury in a harmless sense, is completely to misread the instructions. The emphasis on "national" standards is the very core of the instructions, because the trial judge made "national" standards the central criterion of the determination of the obscenity of the brochure. 146 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 U.S. He referred to "national" standards in his instructions no less than 18 times, 14 of them within the space of four transcript pages.3 Indeed, his emphasis made such an 3 The portion of the instructions containing the 14 references is as follows: "Now, as to the second test, another requirement to be applied in determining whether the material in evidence is obscene, is whether the material is patently offensive in that it goes substantially beyond what is reasonably accepted according to the contemporary standards of the community as a whole, the national community as a whole. In applying this test you must consider each book or advertisement as a whole and not part by part. You must measure the material by contemporary or current national community standards and determine whether the material so exceeds the customary limits of candor in the descriptions and representations of sex and nudity which are reasonably acceptable in the national community, that they are patently offensive. "Contemporary community standards means the standards generally held throughout this country concerning sex and matters pertaining to sex. The phrase means, as it has been aptly stated, the average conscience of the time, and the present critical point in the compromise between candor and shame, at which the community may have arrived here and now. "You are the sole judges of the contemporary community standards of thw country. In arriving at and applying your judgment, however, you are not to consider your own standards. That is, of what is good or what is bad. You are not to condemn by your own standards, if you know and believe them to be stricter than those generally held, and you are not to exculpate or excuse by your own standards, if you know and believe them to be more tolerant than those that are generally held. You are not t-0 limit yourself to what you have learned while residing in your present locality or what you have learned or observed from and about people residing in your present locality. Rather, you a.re to call upon everything you have learned, seen, read, and observed from both the evidence presented at the trial and the experience you have gained from your own observations and experience in your affairs of life. "If you find the materials in evidence to substantially exceed the limits of candor in the descriptions and representations of sex which HAMLING v. UNITED STATES 147 87 BRENNAN, J., dissenting impression upon the jurors' minds that they returned from the jury room and requested that the trial judge reread them this portion of the instructions. See Tr. 4989---49 90. 4 are acceptable in the national community, then you may find the material to be patently offensive. "You will note that the book and advertisement here involved cannot be found to be obscene unless the evidence shows beyond a reasonable doubt that these materials substantially exceed customary limits of candor in the nation as a whole in the description and representation of sex and nudity. "The word 'substantially' has been defined as greatly or considerably, or largely. The contemporary community standards of the nation, are set by what is, in fact, reasonably accepted by the national community as a whole. That is to say, by society at large or people in general throughout the nation, and not by what some persons or groups of persons may believe the national community as a whole ought to accept or refuse to accept. It is a matter of common knowledge of which the Court takes judicial notice, that the customs change and that the national community as a whole may, from time to time, find acceptable that which was formerly unacceptable. "Now, in determining and applying contemporary national community ~tandards, you must consider what appears generally in magazines, books, newspapers, television, burlesque, night clubs, novels, motion pictures, the stage, and other media of communicatioDB in the nation as a whole, insofar as social value is concerned." Tr. 4948-4951; App. 241-243 (emphasis supplied). Four additional references to national standards appear at pages 4945, 4953, and 4960 of the trial transcript. 4 Petitioners' failure to object to the national-standards instmctions can hardly be used to shift to their shoulders any burden of demonstrating prejudice. See O'Connor v. Ohio, 385 U. S. 92 (1966). The Court's reliance upon Namet v. United States, 373 U. S. 179, 190-191 (1963), and Lopez v. United States, 373 U. S. 427, 436 (1963), cases in which defendants failed to object to instructions which were erroneous at the time the jury was instmcted and in which the defendants were therefore required to demonstrate that the instructions constituted "plain error," are thus inapt. 148 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 u. s. Of at least as much-if not more-significance, the trial judge's refusal to permit the defense to offer proof of "local" standards evidences how utterly mistaken is the Court's surmise that the emphasis upon "national" standards in the instructions could not have "materially affected" the deliberations of the jurors. Virginia Carlsen was offered as a defense witness. Trial was in the Southern District of California which covers San Diego and Imperial Counties. :\fiss Carlsen testified that, under the supervision of a professor at San Diego State University, she polled San Diego residents to ascertain their reaction to the brochure. The trial judge refused to admit the results of her survey in evidence, despite a side-bar offer of proof that it would demonstrate that a substantial majority of the 718 persons interviewed had expressed the view that the brochure should be generally available to the public. Significantly, the survey was excluded by the trial judge solely on the ground that "[y]ou can't use a piece of a standard as the standard," thus emphasizing that guilt was to be predicated on violation of a national standard, or not at all. The colloquy at side bar was as follows: "MR. KATZ. . . . The questions on the survey I think are self-explanatory. She showed people the Illustrated Report; she showed people the survey- I mean the advertisement in the questionnaire, and recorded their responses and calculated them on the basis of sex and on the basis of age, and I think the jury should be entitled, your Honor, to use this as one of the tests they use in deciding what is [sic] community standards and what weight should be given to it is a question for the jury. "THE COURT. Well, I don't agree with you, Mr. Katz, at all. "I think you have a national standard here. You 87 HAMLING v. UNITED STATES 149 BRENNAN, J., dissenting are going to have to stay with your national standard. "I think it does go to the admissibility. You can't use a piece of a standard as the standard. If that were true, you would defeat the entire general standard. "So I am not going to permit you to go any further with this witness with respect to this." Tr. 3932-3933 (emphasis supplied). "MR. FLEISHMAN. . . . I think whatever limitations your Honor would put on it would be correct, but I think it would be and should be admitted for whatever weight it has. "THE COURT. No. It is a national standard and I don't think this is the proper way to go about determining the national standard." Id., at 3937 ( emphasis supplied). The affirmance of petitioners' convictions in these circumstances plainly denies petitioners due process of law in violation of the principle of Saunders v. Shaw, 244 U.S. 317 (1917). There, the plaintiff sought to enjoin collection of a drainage tax. At trial, the trial judge ruled inadmissible plaintiff's evidence that his land would not benefit from certain drainage improvements. Defendant therefore offered no proof that the plaintiff's lands would benefit and prevailed at trial. The State Supreme Court reversed and granted a permanent injunction against the tax upon finding from the answer and testimony before it that the land had not been, and could not be, benefited. We reversed, holding that it was a violation of due process of law for a State Supreme Court to reverse a case and render judgment absolute, against a defendant who succeeded in the trial court, upon a proposition of fact that was ruled to be immaterial at the trial and concerning 150 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 U.S. which the defendant had therefore no occasion and no proper opportunity to introduce rebuttal evidence. Petitioners' situation in this case is identical with that of the defendant in Saunders. Petitioners, too, were denied at trial admission of evidence upon a proposition of fact that was ruled immaterial and concerning which they therefore had no proper opportunity to introduce their proof. Had petitioners been aware that the proper criterion was the "local" standard, not only were they prepared to offer proof of the "local" standard, but obviously the strategy of their defense would have been completely different. To affirm their convictions without affording them opportunity to try the case on the "local" standards basis is a clear denial of due process. Saunders was, of course, a civil case. But the principle there announced surely has even greater application where, as here, criminal convictions carrying long prison sentences are involved. "The right to present evidence is, of course, esrnntial to the fair hearing required by the Due Process Clause. . . . And ... this right becomes particularly fundamental when the proceeding allegedly results in a finding that a particular individual was guilty of a crime." Jenkins v. McKeithen, 395 U.S. 411, 429 (1969) (opinion of MARSHALL, J.). But in addition to the palpable absurdity of the Court's surmises that introduction of the San Diego study could not have affected the jurors' deliberations, and that petitioners would not have introduced additional evidence or done anything materially different had they known the jurors would be instructed on local standards, the Court's assertion that the jurors could not have ruled differently if instructed to apply local, not national, standards evinces a claim of omniscience hardly mortal. It is the more remarkable in light of the contrary HAMLING v. UNITED STATES 151 87 BRENNAN' J., dis.senting supposition of Miller v. California, 413 U. S. 15 ( 1973), that a jury instructed to apply national standards could indeed reach a different conclusion from what it might if instructed to apply local standards: "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. . . . People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity." Id., at 32-33. Indeed, Miller rejected the "national" standards test on the ground, inter alia, that a "local" standard would allow a given community to apply a more permissive test: "The use of 'national' standards ... necessarily implies that materials found tolerable in some places, but not under the 'national' criteria, will nevertheless be unavailable where they are acceptable." Id., at 32 n. 13. Yet for the purpose of affirming these convictions the Court holds in effect that the local standards of jurors drawn from the Southern District of California could not possibly be more permissive than those of the Nation as a whole.5 5 It may be that the Court's unarticulated assumption is that jurors instructed t-0 apply "national" standards will inevitably apply the standards of their local community, because national standards are simply "unascertainable." But t-0 say that it may be difficult or even impossible to determine national standards is a far cry from saying that the jurors-instructed that it is their solemn duty to apply the law as pronounced by the Court-would not attempt to do so; or, indeed, that they would not reach a conclusion that the national standards differed from those of their local mrnmunit.y. 152 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 U. 8. The Court's affirmance, in addition to denying due process in its refusal to apply the SaundfY!'s principle, also denies petitioners due process in another way. It is abundantly clear that petitioners' convictions are sustained upon a charge wholly different from that upon which they were tried. They were tried upon a charge of violating "national" standards and their convictions are affirmed as if they were tried for violating "local" standards. Under the law long settled by our cases, treating a conviction as a conviction upon a charge not made is a denial of due process of law. Cole v. Arkansas, 333 U. S. 196 (1948); Eaton v. Tulsa, 415 U. S 697 (1974). A distaste, however strong, for commercial vendors of alleged pornography is no justification for denying petitioners the application of the principle imposed upon the courts of Arkansas and Oklahoma in those cases. Ours may be the final voice, but that is the greater reason for meticulous discharge of our responsibility to dispense evenhanded justice. The least to which petitioners are entitled is vacation of their convictions and a remand for a new trial. JENKINS v. GEORGIA Syllabus JENKINS v. GEORGIA 153 APPEAL FROM THE SUPREME COURT OF GEORGIA No. 73-557. Argued April 15, 1974-Decided June 24, 1974 Appellant was convicted, prior to the announcement of Miller v. California, 413 U. S. 15, and companion cases, of violating Georgia's obscenity statute for showing the film "Carnal Knowledge" in a motion picture theater. The jury had been instructed on obscenity under that statute, which defines obscene material in terms similar to the definition in Memoirs v. M assac,husetts, 383 U. S. 413, 418. The Georgia Supreme Court affirmed. Held: 1. Appellant, whose conviction was on appeal at the time of the announcement of Miller, is entitled to any benefit available thereunder. Hamli11{1 v. United States, ante, p. 87. P. 155. 2. There is no constitutional requirement that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community-Miller approving, but not mandating, such an instruction-and jurors may properly be instructed to apply "community standards," without a specification of the "community" by the trial court. P. 157. 3. The film is not obscene under the constitutional standards announced in Miller and appellant's conviction therefore contravened the First and Fourteenth Amendments. Pp. 157-161. (a) Juries do not have unbridled discretion in determining what is "patently offensive" since "no one will be subject to prosecution for the sale or exposure of obscene materials [ that do not] depict or describe patently offensive 'hard core' sexual conduct .... " Miller, supra, at 27. Pp. 160-161. (b) This Court's own view of the film impels the conclusion that the film'R depiction of sexual conduct is not patently offensive. The camera does not focus on the bodies of actors during scenes of "ultimate sexual acts," nor are the actors' genitals exhibited during those scenes. The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards. P. 161. 230 Ga. 726, 199 S. E. 2d 183, reversed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, and PowELL, JJ., joined. 154 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. DouGI,AS, J., filed a statement concurring in the result, post, p. 162. BRENNAN, J., filed an opinion concurring in the result, in which STEWART and MARSHALL, J.T., joined, post, p. 162. Louis Nizer argued the cause for appellant. With him on the briefs were Tench C. Coxe, William H. Schroder, Jr., and James Bouras. Tony H. Hight argued the cause and filed a brief for appellee.* MR. JusTrCE REHNQUIST delivered the opinion of the Court. Appellant was convicted in Georgia of the crime of distributing obscene material. His conviction, in March 1972, was for showing the film "Carnal Knowledge" in a movie theater in Albany, Georgia. The jury that found appellant guilty was instructed on obscenity pursuant to the Georgia statute, which defines obscene material in language similar to that of the definition of obscenity set forth in this Court's plurality opinion in Memoirs v. Massachusetts, 383 U.S. 413,418 (1966): "Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid *Briefs of amici curiae urging reversal were filed by Peter M. Fishbein and Lester Pollack for the National Association of Theatre Owners; by Stanley Fleishman and Sam Rosenwein for the Adult Film Association of America, Inc.; by Ephraim London for the Directors Guild of America, Inc.; by William D. North for the American Library Assn.; by Maxwell .I. Lillienstein for the American Booksellers Assn., Inc., et al.; by Michael A. Bamberger for the Council for Periodical Distributors Assns., Inc., et al.; by Ira M. Millstein for the Association of American Publishers, Inc.; and by Irwin Karp for the Authors League of America, Inc. Charles H. Keating, Jr., pro se, Richard M. Bertsch, James J. Clancy, and Albert S. Johnston Ill filed a brief for Charles H. Keating, Jr., as amicus curiae urging affirmance. 153 JENKINS v. GEORGIA 155 Opinion of the Court 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." Ga. Code Ann.§ 26--2101 (b) (1972).1 We hold today in Hamlingv. United States, ante, p. 87, that defendants convicted prior to the announcement of our Miller decisions but whose convictions were on direct appeal at that time should receive any benefit available to them from those decisions. We conclude here that the film "Carnal Knowledge" is not obscene under the constitutional standards announced in Miller v. California, 413 U. S. 15 (1973), and that the First and Fourteenth Amendments therefore require that the judgment of the Supreme Court of Georgia affirming appellant's conviction be reversed. Appellant was the manager of the theater in which "Carnal Knowledge" was being shown. While he was exhibiting the film on January 13, 1972, local law enforcement officers seized it pursuant to a search warrant. Appellant was later charged by accusation, Ga. Code Ann. § 27~704 (1972), with the offense of distributing obscene material.2 After his trial in the Superior Court of Dough- 1 Section 26-2101 is entitled "Distributing obscene materials." Subsection (a) of § 26-2101 provides in relevant part: "A person commits the offense of distributing obscene materials when he .. exhibits or otherwise disseminates to any person any obsrene material of any description, knowing the obscene nature thereof .... " Subsection ( c) of § 26-2101 provides that " [material], not otherwise obscene, may be obscene under this sertion if the distribut10n thereof . . is a commerrial exploitation of erotica solely for the sake of their prurient appeal." Subsection (d) provides that a first offense under the section shall be punished as a misdemeanor and that any subsequent offense shall be punished by one to five years' imprisonment and/ or a fine not to exceed $5,000. 2 The accusation, App. 8, charged appellant "with the offense of Distributing Obscene Material" for knowingly ex156 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. erty County, the jury, having seen the film and heard testimony, returned a general verdict of guilty on March 23, 1972.3 Appellant was fined $750 and sentenced to 12 months' probation. He appealed to the Supreme Court of Georgia, which by a divided vote affirmed the judgment of conviction on July 2, 1973. That court stated that the definition of obscenity contained in the Georgia statute was "considerably more restrictive" than the new test set forth in the recent case of Miller v. California, supra, and that the First Amendment does not protect the commercial exhibition of "hard core" pornography. The dissenting Justices, in addition to other disagreements with the court, thought that "Carnal Knowledge" was entitled to the protection of the First and Fourteenth Amendments. Appellant then appealed hibiting a motion picture to the general public which contained conduct showing "(a) an act of sexual intercourse, (b) a lewd exposure of the sexual organs, (c) a lewd appearance in a state of partial or complete nudity, (d) a lewd caress or indecent fondling of another person" contrary to the laws of Georgia. The latter-quoted language appears in Ga. Code Ann. § 26-2011, entitled "Public indecency," which makes performance of any of the listed acts in a public place a misdemeanor. Under Ga. Code Ann. § 26-2105, it is a crime to exhibit a motion picture portraying acts which would constitute " public indecency" under § 26-2011 if performed in a public place. Appellant's arrest warrant specified § 26- 2105 as the statute he was charged with violating. In view of our holding today, we need not reach appellant's contention that he was denied due proress because the warrant specified only § 26-2105, while the jury was allowed to convict under § 26-2101. However, we note that appellant's demurrer to the accusation demonstrates his awareness that he was being charged with tho § 26-2101 offense, App. 9, and that he requested numerous instructions on obscenity, id., at 47-49. a Appellant's trial jury was alternatively instructed under subsections (a) and (c) of §26-2101 (pandering), seen. 1, supra, and under § 26-2105, sec n. 2, supra. JENKINS v. GEORGIA 157 153 Opinion of the Court to this Court and we noted probable jurisdiction, 414 u. s. 1090 (1973). We agree with the Supreme Court of Georgia's implicit ruling that the Constitution does not require that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community. Miller approved the use of such instructions; it did not mandate their use. What Miller makes clear is that state juries need not be instructed to apply "national standards." We also agree with the Supreme Court of Georgia's implicit approval of the trial court's instructions directing jurors to apply "community standards" without specifying what "community." Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision. A State may choose to define an obscenity offense in terms of "contemporary community standards" as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller. We now turn to the question of whether appellant's exhibition of the film was protected by the First and Fourteenth Amendments, a question which appellee asserts is not properly before us because appellant did not raise it on his state appeal. But whether or not appellant argued this constitutional issue below, it is clear that the Supreme Court of Georgia reached and decided it. That is sufficient under our practice. Raley v. Ohio, 360 U.S. 423, 436 ( 1959). We also note that the trial court instructed the jury on charges other than the distribution charge.• However, the jury returned a general verdict • See n. 3, supra. 552- 191 0 • 76 - 13 158 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. and appellee does not suggest that appellant's conviction can be sustained on these alternative grounds. Cf. Stromberg v. California, 283 U. S. 359, 367-368 (1931). There is little to be found in the record about the film "Carnal Knowledge" other than the film itself.5 However, appellant has supplied a variety of information and critical commentary, the authenticity of which appellee does not dispute. The film appeared on many "Ten Best" lists for 1971, the year in which it was released. Many but not all of the reviews were favorable. We believe that the following passage from a review which appeared in the Saturday Review is a reasonably accurate description of the film: "[It is basically a story] of two young college men, roommates and lifelong friends forever preoccupied with their sex lives. Both are first met as virgins. Nicholson is the more knowledgeable and attractive of the two; speaking colloquially, he is a burgeoning bastard. Art Garfunkel is his friend, the nice but troubled guy straight out of those early Feiffer cartoons, but real. He falls in love with the lovely Susan (Candice Bergen) and unknowingly shares her with his college buddy. As the 'safer' one of the two, he is selected by Susan for marriage. "The time changes. Both men are in their thirties, pursuing successful careers in New York. Nicholson has been running through an average of a dozen women a year but has never managed to meet the right one, the one with the full bosom, the good legs, 5 Appellant testified that the film was "critically acclaimed as one of the ten best pictures of 1971 and Ann Margret has received an Academy Award nomination for her performance in the picture." He further testified that "Carnal Knowledge" had played in 29 towns in Georgia and that it was booked in 50 or 60 more theaters for spring and summer showing. App. 24. 153 JENKINS v. GEORGIA 159 Opinion of the Court the properly rounded bottom. More than that, each and every one is a threat to his malehood and peace of mind, until at last, in a bar, he finds Ann-Margret, an aging bachelor girl with striking cleavage and, quite obviously, something of a past. 'Why don't we shack up?' she suggests. They do and a horrendous relationship ensues, complicated mainly by her paranoidal desire to marry. Meanwhile, what of Garfunkel? The sparks have gone out of his marriage, the sex has lost its savor, and Garfunkel tries once more. And later, even more foolishly, again." 6 Appellee contends essentially that under Miller the obscenity vel non of the film "Carnal Knowledge" was a question for the jury, and that the jury having resolved the question against appellant, and there being some evidence to support its findings, the judgment of conviction should be affirmed. We turn to the language of Miller to evaluate appellee's contention. Miller states that the questions of what appeals to the "prurient interest" and what is "patently offensive" under the obscenity test which it formulates are "essentially questions of fact." 413 U. S., at 30. "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 . . . . To require a State to structure obscenity proceedings around evidence of a national 'community standard' would be an exercise in futility." Ibid. We held in Paris Adult Theatre I v. Slaton, 413 U. S. 49 ( 1973), decided on the same day, that expert testimony 8 Review of "Carnal Knowledge" by Hollis Alpert, Saturday Review, July 3, 1971, p. 18. 160 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. as to obscenity is not necessary when the films at issue are themselves placed in evidence. Id., at 56. But all of this does not lead us to agree with the Supreme Court of Georgia's apparent conclusion that the jury's verdict against appellant virtually precluded all further appellate review of appellant's assertion that his exhibition of the film was protected by the First and Fourteenth Amendments. Even though questions of appeal to the "prurient interest" or of patent offensiveness are "essentially questions of fact," it would be a serious misreading of Miller to conclude that juries have unbndled discretion in determining what is "patently offensive." Not only did we there say that "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," 413 U. S., at 25, but we made it plain that under that holding "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 .... " Id., at 27. We also took pains in Miller to "give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced," that is, the requirement of patent offensiveness. Id., at 25. These examples included "representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated," and "representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." Ibid. While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a JENKINS v. GEORGIA 161 153 Opinion of the Court determination. It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant's depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty. Our own viewing of the film satisfies us that "Carnal Knowledge" could not be found under the Miller standards to depict sexual conduct in a patently offensive way. Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the "patently offensive" element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including "ultimate sexual acts" is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards. Appellant's showing of the film "Carnal Knowledge" is simply not the "public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain" ·which we said was punishable in Miller. Id., at 35. We hold that the film could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene. No other basis appearing in the record upon which the judgment of conviction can be sustained, we reverse the judgment of the Supreme Court of Georgia. Reversed. 162 OCTOBER TERM, 1973 BRENNAN, J., concurring in result 418 U.S. MR. JUSTICE DouGLAS, being of the view that any ban on obscenity is prohibited by the First Amendment, made applicable to the States through the Fourteenth, concurs in the reversal of this conviction. See Paris Adult Theatre Iv. Slaton, 413 U. S. 49, 70-73 ( 1973) (DOUGLAS, J., dissenting). MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, concurring in the result. Adopting a rest:;.+,ement of the Roth-Memoirs* definition of "obscenity," the Court in Miller v. Californ'ia, 413 U. S. 15 ( 1973), held that obscene material could be regulated, provided that" (a) ... 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and ( c) ... the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id., at 24. It was my view then-and it remains so-that the Court's reformulation hardly represented a solution to what Mr. Justice Harlan called "the intractable obscenity problem," Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (concurring and dissenting opinion). Today's decision confirms my observation in Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973), that the Court's new formulation does not extricate us from the mire of case-by-case determinations of obscenity. I there noted, in dissent: "Ultimately, the reformulation must fail because it still leaves in this Court the responsibility of determining in each case whether the materials are pro- *See Roth v. United States, 354 U. S. 476 (1957), and Memoirs v. Massachusetts, 383 U.S. 413 (1966). 153 JENKINS v. GEORGIA 163 BRENNAN, J., concurring in result tected 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[, 413 U. S. 15, 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.' 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 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.'' 413 U. S., at 100-101. (Footnote omitted.) After the Court's decision today, there can be no doubt that Miller requires appellate courts-including this Court-to review independently the constitutional fact of obscenity. Moreover, the Court's task is not limited to 164 OCTOBER TERM, 1973 BRENNAN, J., concurring in result 418 U.S. reviewing a jury finding under part (c) of the Miller test that "the work, taken as a whole, lack[ed] serious literary, artistic, political, or scientific value." 413 U. S., at 24. Miller also requires independent review of a jury's determination under part (b) of the Miller test that "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law." Ibid. As the Court notes, ante, at 160: "Even though questions of ... patent offensiveness are 'essentially questions of fact,' it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is 'patently offensive.' Not only did we there say that '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,' 413 U.S., at 25, but we made it plain that under that holding '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 .... ' Id., at 27." In order to make the review mandated by Miller, the Court was required to screen the film "Carnal Knowledge" and make an independent determination of obscenity vel non. Following that review, the Court holds that "Carnal Knowledge" "could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene." Ante, at 161. Thus, it is clear that as long as the Miller test remains in effect "one cannot say with certainty that material is obscene until at least five members of this Court, applyJENKINS v. GEORGIA 165 153 BRENNAN, J., concurring in result ing inevitably obscure standards, have pronounced it so." Paris Adult Theatre I v. Slaton, 413 U. S., at 92 (BRENNAN, J., dissenting). Because of the attendant uncertainty of such a process and its inevitable institutional stress upon the judiciary, I continue to adhere to my view 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." Id., at 113. It is clear that, tested by that constitutional standard, the Georgia obscenity statutes under which appellant Jenkins was convicted are constitutionally overbroad and therefore facially invalid. I therefore concur in the result in the Court's reversal of Jenkins' conviction. 166 OCTOBER TERM, 1973 Syllabus 418 U.S. UNITED ST ATES ET AL. V. RICHARDSON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 72-885. Argued October 10, 1973-Decided June 25, 1974 Respondent, as a federal taxpayer, brought this suit for the purpose of obtaining a declaration of unconstitutionality of the Central Intelligence Agency Act, which permits the CIA to account for its expenditures "solely on the certificate of the Director .... " 50 U. S. C. § 403j (b). The complaint alleged that the Act violated Art. I, § 9, cl. 7, of the Constitution insofar as that clause requires a regular statement and account of public funds. The District Court's dismissal of the complaint for, inter alia, respondent's lack of standing under Flast v. Cohen, 392 U. S. 83, was reversed by the Court of Appeals. That court held that respondent had standing as a taxpayer on the ground that he satisfied Flast's requirements that the allegations (1) challenge an enactment under t.he Ta.xing and Spending Clause of Art I,§ 8, and show (2) a "nexus" between the plaintiff's status and a specific constitutional limitation on the taxing and spending power. Held: Respondent lacks standing to maintain this suit. Pp. 171- 180. (a) Flwt, which stressed the need for meeting the requirements of Art. III, did not "undermine the salutary principle ... established by Frothingham [ v. Mellon, 262 U. S. 447] ... that a taxpayer may not 'employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.'" Pp. 171-174. (b) Respondent's challenge, not being addressed to the taxing or spending power but to the statutes regulating the CIA's accounting and reporting procedures, provides no "logical nexus" between his status as "taxpayer" and the asserted failure of Congress to require more detailed reports of expenditures of the CIA. Pp. 174-175. (c) Respondent's claim that without detailed information on the CIA's expenditures he cannot properly follow legislative or executive action and thereby fulfill his obligations as a voter is a generalized grievance insufficient under Frothingham or Fla.st to show that "he has sustained or is immediately in danger of UNITED STATES v. RICHARDSON 167 166 Opinion of the Court sustaining a direct injury as the re,mlt" of such action. Ex parte Levitt, 302 U. S. 633, 634. Pp. 176-178. 465 F. 2d 844, reversed. BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, PowELL, and REHNQUIST, JJ., joined. PowELL, J., filed a concurring opinion, post, p. 180. DouaLAs, J., filed a dissenting opinion, post, p. 197. BRENNAN, J., filed a dissenting opinion, post, p. 235. STEWART, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 202. Solicitor General Bork argued the cause for the United States et al. On the brief were former Solicitor General Griswold, Assi.stant Attorney General Wood, Deputy Solicitor General Lacovara, Harriet S. Shapiro, Walter H. Flei.scher, and William D. A.ppler. Osmond K. Fraenkel argued the cause for respondent. With him on the brief were _Melvin L. Wulf, Burt Neuborne, and James R. Kelley. MR. CHIEF JusTICE BURGER delivered the opm10n of the Court. We granted certiorari in this case to determine whether the respondent has standing to bring an action as a federal taxpayer 1 alleging that certain provisions concerning public reporting of expenditures under the Central Intelligence Agency Act of Hl49, 63 Stat. 208, 50 1 Respondent's complaint alleged that he was "a mrmber of the electorate, :rnd a Joyal ritizrn of the United States." At the same time, he states that he ''does not challenge the formulation of the issue contained in the petition for certiorari." Brief for Respondent in Opposition to Pet. for Cert. 1. The question presented there was: "Whether a federal taxpayer has standing to challenge the provisions of the Central Intelligence Act which provide that [\ppropriations to and expenditures by that Agenc>· shall not be made public, on the ground that such secrecy contravenes Article I, section 9, clause 7 of the Constitution." Pet. for Cert. 2. 168 OCTOBER TERM, 19i3 Opinion of the Court 418 U.S. U. S. C. § 403a. et seq., violate Art. I, § 9, cl. 7, of the Constitution which provides: "Ko Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of a11 public Money shall be published from time to time." Respondent brought this suit in the United States District Court on a complaint in which he recites attempts to obtain from the Government information concerning detailed expenditures of the Central Intelligence Agency. According to the complaint, respondent wrote to the Government Printing Office in 1967 and requested that he be provided with the documents "published by the Government in compliance with Article I, section 9, clause (7) of the United States Constitution." The Fiscal Service of the Bureau of Accounts of the Department of the Treasury replied, explaining that it published the document known as the Combined Statement of Receipts, Expenditures, and Balances of the United States Government. Several copies of the monthly and daily reports of the office were sent with the letter. Respondent then wrote to the same office and, quoting part of the CIA Act, asked whether this statute did not "cast reflection upon the authenticity of the Treasury's Statement." He also inquired as to how he could receive further information on the expenditures of the CIA. The Bureau of Accounts replied stating that it had no other available information. In another letter, respondent asserted that the CIA Act was repugnant to the Constitution and requested that the Treasury Department seek an opinion of the Attorney General. The Department answered declining to seek such an opinion and this suit followed. Respondent's complaint asked the court to "issue a permaU~ ITED STATES v. RICHARDSON 169 166 Opinion of the Court nent injunction enjoining the defendants from publishing their 'Combined Statement of Receipts, Expenditures and Balances of the United States Government' and representing it as the fulfillment of the mandates of Article I Section 9 Clause 7 until same fully complies with those mandates." 2 In essence, the respondent asked the federal court to declare unconstitutional that provision of the Central Intelligence Agency Act which permits the Agency to account for its expenditures "solely on the certificate of the Director .... " 50 U. S. C. § 403j (b). The only injury alleged by respondent was that he "cannot obtain a document that sets out the expenditures and receipts" of the CIA but on the contrary was "asked to accept a fraudulent document." The District Court granted a motion for dismissal on the ground respondent lacked standing under Flast v. Cohen, 392 U. S. 83 ( 1968), and that the subject matter raised political questions not suited for judicial disposition. The Court of Appeals sitting en bane, with three judges dissenting, reversed, 465 F. 2d 844 (CA3 1972), holding that the respondent had standing to bring this action.3 The majority relied chiefly on Flast v. Cohen, App. 15-16. Respondent's complaint also asked for a threejudge district court and this application was denied by a single District Judge with directions to place the case on the calendar in the usual manner. The Court of Appeals, in the judgment under revi1:w, ordered that, on remand, the case be considered by a threejudge court. The District Court has granted a stay of respondent's motion to convene a three-judge court, pending disposition of this petition for writ of certiorari. On September 26, 1972, the Third Circuit denied a petition for mandamus, filed by respondent, to com pd the immediate convening of a three-judge court. 3 The majority found that the respondent had standing to bring this suit as a taxpayer. One judge held that he had standing as a citizen. This case was originally argut>d before a panel ronsisting of two Circuit .Judges and one District Judge sitting by designa170 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. supra, and its two-tier test that taxpayer standing rests on a showing of (a) a "logical link" between the status as a taxpayer and the challenged legislative enactment, i. e., an attack on an enactment under the Taxing and Spending Clause of Art. I , § 8, of the Constitution; and (b) a "nexus" between the plaintiff's status and a specific constitutional limitation imposed on the taxing and spending power. 392 U. S., at 102-103. While noting that the respondent did not directly attack an appropriations act, as did the plaintiff in Flast, the Court of Appeals concluded that the CIA statute challenged by the respondent was "integrally related," 465 F. 2d, at 853, to his ability to challenge the appropriations since he could not question an appropriation about which he had no knowledge. The Court of Appeals seemed to rest its holding on an assumption that this case was a prelude to a later case challenging, on the basis of information obtained in this suit, some particular appropriation for or expenditure of the CIA; respondent stated no such an intention in his complaint. The dissenters took a different approach urging denial of standing principally because, in their view, respondent alleged no specific injury but only a general interest common to all members of the public. We conclude that respondent lacks standing to maintain a suit for the relief sought and we reverse. tion. After a second round of briefs, the Court of Appeals determined sua spcmte to hear the case en bane without further argument. The District Judge sat with the Court of Appeals en bane. This point was not raised in the question presented in the petition for certiorari but the Solicitor General, in a footnote, called attention to the District Judge's participation. He expressed the view that, although 28 U. 8 . C. § 4G (c) limits en bane hearings to circuit judges in active service (and any retired circuit judge who participated in the initial hearing), the error was harmless. Brief for United States 5-6, n. 4. In these circumstances we need not reach the question. UNITED STATES v. RICHARDSON 171 166 Opinion of the Court I As far back as Marbury v. M adi,son, 1 Cranch 137 (1803), this Court held that judicial power may be exercised only in a case properly before it-a "case or controversy" not su:ff ering any of the limitations of the political-question doctrine, not then moot or calling for an advisory opinion. In Baker v. Carr, 369 U. S. 186, 204 (1962), this limitation was described in terms that a federal court cannot " 'pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.' Liverpool Steamship Co. v. Commwsioners of Emigration, 113 U. S. 33, 39.'' Recently in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970), the Court, while noting that "[g] eneralizations about standing to sue are largely worthless as such," id., at 151, emphasized that " [ o] ne generalization is, however, necessary and that is that the question of standing in the federal courts is to be considered in the framework of Article III which restricts judicial power to 'cases' and 'controversies.' " • Although the recent holding of the Court in Flast v. Cohen, supra, is a starting point in an examination of respondent's claim to prosecute this suit as a taxpayer, that case must be read with reference to its principal predecessor, Frothingham v. Mellon, 262 U. S. 447 (1923). In Frothingham, the injury alleged was that the congressional enactment challenged as unconstitutional would, if implemented, increase the complain- • 397 U.S., at 151. See also K. Davis, Administrative Law Treatise § 22.09-6, p. 753 (Supp. 1970). 172 OCTOBER TERM, 1973 Opinion of the Court 418U.S. ant's future federal income taxes.5 Denying standing, the Frothingham Coi:rt rested on the "comparatively minute[,] remote, fluctuating and uncertain," id., at 487, impact on the taxpayer, and the failure to allege the kind of direct injury required for standing. "The party who invokes the [judicial] power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury a.s the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." Id., at 488. When the Court addressed the question of standing in Flast, Mr. Chief Justice Warren traced what he described as the "confusion" following Frothingham as to whether the Court had announced a constitutional doctrine barring suits by taxpayers challenging federal expenditures as unconstitutional or simply a policy rule of judicial self-restraint. In an effort to clarify the confusion and to take into account intervening developments, of which class actions and joinder under the Federal Rules of Civil Procedure were given as examples, the Court embarked on "a fresh examination of the limitations upon standing to sue in a federal court and the application of those limitations to taxpayer suits." 392 U. S., at 94. That re-examination led, however, to the holding that a ''.taxpayer will have standing consistent with Article III to invoke federal 5 In Frothingham, the plaintiff sought to enjoin enforcement of the Federal Maternity Act of 1921, 42 Stat. 224, which provided for financial grants to States with programs for reducing maternal and infant mortality. She alleged violation of the Fifth Amendment's Due Process Clause on the ground that the legislation encroached on an area reserved to the States. UNITED STATES v. RICHARDSON 173 166 Opinion of the Court judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power." Id., at 105-106. (Emphasis supplied.) In so holding, the Court emphasized that Art. III requirements are the threshold inquiry: "The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness ... upon which the court so largely depends for illumination of difficult constitutioval questions.' " Id., at 99, citing Baker v. Carr, 369 U.S., at 204. The Court then announced a two-pronged standing test which requires allegations: (a) challenging an enactment under the Taxing and Spending Clause of Art. I, § 8, of the Constitution; and (b) claiming that the challenged enactment exceeds specific constitutional limitations imposed on the taxing and spending power. 392 U. S., at 102-103. While the "impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers," id., at 85, had been slightly lowered, the Court made clear it was reaffirming the principle of Frothingham precluding a taxpayer's use of "a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System." Id., at 106. The narrowness of that holding is emphasized by the concurring opinion of MR. JusTICE SrEWART in Flast: "In concluding that the appellants therefore have standing to sue, we do not undermine the salutary principle, established by Frothingham and reaffirmed 552 -1 91 0 - 76 - ld in terms of prohibitions. The Sixth Amendment and portions of the Sevmth can be classified ns duties. The Ninth defies classification. Rational rules for standing in public actions are, it seems to me, unlikely to emerge from an effort to make the format of a particular Amendment determinative. 188 OCTOBER TERM, 1973 POWELL, J., concurring 418 U.S. of their rights under the Fourth Amendment or the Fourteenth or under any other guarantee in the Constitution itself or in the Bill of Rights." Flast v. Cohen, 392 U. S., at 114 (concurring opinion). My view is to the contrary. III Relaxation of standing requirements is directly related to the expansion of judicial power.7 It seems to me inescapable that allowing unrestricted taxpayer or citizen standing would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government. I also believe that repeated and essentially head-on confrontations between the lifetenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches. We should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.8 Moreover, the 7 One commentRtor predicted this phenomenon and its possible implications at the outset of the past decade of dramatic changes in standing doctrine: "[J]udicial power expands as the requirements of standing are relaxed. . . . [I]f the so-called public action ... were allowed with respect to constitutional challenges to legislation, then the halls of Congress and of the state legislatures would become with regularity only Act I of any contest to enact legislation involving public officials in its enforcement or application. Act II would, with the usual brief interlude, follow in the courts .... " Brown, Quis Custodiet lpsos Custodes?-The School-Prayer Cases, 1963 Sup. Ct. Rev. 1, 15-16. 8 Cf. A. Bickel, The Least Dangerous Branch 122 (1962). UNITED STATES v. RICHARDSON 189 166 POWELL, J., concurring argument that the Court should allow unrestricted taxpayer or citizen standing underestimates the ability of the representative branches of the Federal Government to respond to the citizen pressure that has been responsible in large measure for the current drift toward expanded standing. Indeed, taxpayer or citizen advocacy, given its potentially broad base, is precisely the type oi leverage that in a democracy ought to be employed against the branches that were intended to be responsive to public attitudes about the appropriate operation of government. "We must as judges recall that, as Mr. Justice Holmes wisely observed, the other branches of the Government 'are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.' Missouri, Kansa.s & Texas R. Co. v. May, 194 U. S. 267, 270." Fla.st v. Cohen, 392 U. S., at 131 (Harlan, J., dissenting). Unrestrained standing in federal taxpayer or citizen suits would create a remarkably illogical system of judicial supervision of the coordinate branches of the Federal Government. Randolph's proposed Council of Revision, which was repeatedly rejected by the Framers, at least had the virtue of being systematic; every law passed by the legislature automatically would have been previewed by the Judiciary before the law could take effect.9 On the other hand, since the Judiciary cannot 9 Randolph's Resolutions, also referred to as the Virginia Plan, served as the "matrix" for the document ultimately developed by the Constitutional Convention. See 1 .J. Goebel, History of the Supreme Court of the United States 204 (1971). The eighth of Mr. Randolph's 15 proposals was as follows: "8. Resd. that the Executive and a convenient number of the National .Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the di&5ent of the said 552-l91 0 - 76 - 15 190 OCTOBER TERM, 1973 PowELL, J., concurring 418U.S. select the taxpayers or citizens who bring suit or the nature of the suits, the allowance of public actions would produce uneven and sporadic review, the quality of which Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by [an unspecified number] of the members of each branch." 1 M. Farrand, The Records of the Federal Convention of 1787, p. 21 (1911) (hereafter Farrand). See 1 J. Elliot, Debates on the Federal Constitution 144 (1836). Madison ably supported the proposal, but it was defeated on three separate votes. 1 Farrand 140, 2 Farrand 71-72, 298. The analogy between the proposed Council of Revision and unrestricted taxpayer or citizen standing is not complete. For example, Randolph proposed to link the Judiciary directly to the Executive, in large measure to enhance the Executive and to protect it from legislative encroachments. See, e. g., 1 Farrand 108, 138; 2 Farrand 74, 79. Thus, reliance on the Framers' rejection of the Council must be approached with caution. Nevertheless, the arguments advanced at the Convention in support of and in opposition to the Council provide an interesting parallel to present contentions regarding unrestrained public actions. For example, Madison spoke of the " good" that would "proceed from the perspicuity, the conciseness, and the systematic character wch. the Code of laws wd. receive from the Judiciary talents." 1 Farrand 139. He declared that the proposal would be useful "to restrain the Legislature from encroaching on the other co-ordinate Departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form . . . ," ibid., and that such a system would be "useful to the Community at large as an additional check" against unwise legislative measures. 2 Farrand 74. Those opposed to the proposal, including Gerry, Martin, and Rutledge, preferred to rely "on the Representatives of the people as the guardians of their Rights & interests." Id., at 75. Judges were not presumed "to possess any peculiar knowledge of the mere policy of public measures ... ," id., at 73, or any "higher ... degree" of knowledge of mankind and of "Legislative affairs . . . . " Id., at 76. It was "necessary that the Supreme Judiciary should have the confidence of the people ... ," id., at 76-77, and this would "soon be lost, if they are employed in the task of remonstrating UNITED STATES v. RICHARDSON 191 166 PowELL, J., concurring would be influenced by the resources and skill of the particular plaintiff. And issues would be presented in abstract form, contrary to the Court's recognition that "judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury." Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972).10 The power recognized in Marbury v. Madison, 1 Cranch 137 (1803), is a potent one. Its prudent use seems to me incompatible with unlimited notions of taxpayer and citizen standing. Were we to utilize this power as indiscriminately as is now being urged, we may witness efforts by the representative branches drastically to curb its use. Due to what many have regarded as the unresponsiveness of the Federal Government to recognized needs or serious inequities in our society, recourse to the federal courts has attained an unprecedented popularity in recent decades. Those courts have often acted as a major instrument of social reform. But this has not always been the case, as experiences under the New Deal illustrate. The public reaction to the substantive due process holdings of the federal courts during that period requires no elaboration, and it is not unusual for history to repeat itself. agst. popular measures of the Legislature." Id., at 77. Moreover, the "Judges ought never to give their opinion on a law till it comes before them." Id., at 80. The arguments adduced at the Convention in opposition to the Council of Revision ultimately prevailed. I believe that analogous arguments should guide us in refusing as a general matter to entertain public actions. 10 Some Western European democracies have experimented with forms of constitutional judicial review in the abstract, see, e. g., M. Cappelletti, Judicial Review in the Contemporary World 71-72 ( 1971), but that has not been our experience, and I think for good reasons. Cf. Bickel, supra, n. 8, at 115-116. 192 OCTOBER TERM, 1973 PowELL, J ., concurring 418 U, S. Quite apart from this pos.sibility, we risk a progressive impairment of the effectiveness of the federal courts if their limited resources are diverted increasingly from their historic role to the resolution of public-interest suits brought by litigants who cannot distinguish themselves from all taxpayers or all citizens. The irreplaceable value of the power articulated by Mr. Chief Justice Marshall lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests. The considerations outlined above underlie, I believe, the traditional hostility of the Court to federal taxpayer or citizen standing where the plaintiff has nothing at stake other than his interest as a taxpayer or citizen. It merits noting how often and how unequivocally the Court has expressed its antipathy to efforts to convert the Judiciary into an open forum for the resolution of political or ideological disputes about the performance of government. See, e. g., Ex parte Levitt, 302 U. S. 633, 634 (1937); 11 Frothingham v. Mellon, 262 U. S. 447, 488 ( 1923); 12 Fairchild v. Hughes, 258 U. S. 126, 129 11 "It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." 12 "The party who invokes the power [of the Judiciary to declare a statute unconstitutional] must be able to show not only that the UNITED STATES v. RICHARDSON 193 166 PowELL, J., concurring ( 1922) ; 13 Tyler v. Judges of Court of Registration, 179 U. S. 405, 406 ( 1900) .14 These holdings and declarations reflect a wise view of the need for judicial restraint if we are to preserve the Judiciary as the branch "least dangerous to the political rights of the Constitution .... " Federalist No. 78, p. 483 (Lodge ed. 1908). To be sure standing barriers have been substantially lowered in the last three decades. The Court has confirmed the power of Congress to open the federal courts to representatives of the public interest through specific statutory grants of standing. E. g., FCC v. Sanders Bros. Radio Station, 309 U. S. 470 (1940); Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4 (1942); Flast v. Cohen, 392 U. S., at 130-133 (Harlan, J., dissenting); Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205,212 (1972) (WHITE, J., concurring). Even in the absence of specific statutory grants of standing, economic interests that at one time would not have conferred standing have been re-examined and found sufficient. Compare, e.g., Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970), and statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." 1 3 " [Standing will be denied where a plaintiff] has only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted." 14 '·Save in a few instances where, by statute or the settled practice of the courts, the plaintiff is permitted to sue for the benefit of another, he is bound to show an interest in the suit personal to himself, and even in a proceeding which he prosecutes for the benefit of the public, as, for example, in cases of nuisance, he must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens." 194 OCTOBER TERM, 1973 PowELL, J., concurring 418 U.S. Barlow v. Collins, 397 U.S. 159 ( 1970), with, e.g., Tennessee Electric Power Co. v. TVA, 306 U. S. 118 (1939), and Alabama Power Co. v. Ickes, 302 U. S. 464 (1938). See also Investment Co. Institute v. Camp, 401 U. S. 617 (1971); Arnold Tours, Inc. v. Camp, 400 U.S. 45 (1970). Noneconomic interests have been recognized. E. g., Baker v. Carr, 369 U. S. 186 (1962); Sierra Club v. Morton, 405 U. S. 727 (1972). A stringently limited exception for federal taxpayer standing has been created. Flast v. Cohen, supra. The concept of particularized injury has been dramatically diluted. E. g., United States v. SCRAP, 412 U.S. 669 (1973). The revolution in standing doctrine that has occurred, particularly in the 12 years since Baker v. Carr, supra, has not meant, however, that standing barriers have disappeared altogether. As the Court noted in Sierra Club, "broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." 405 U. S., at 738. Accord, Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973).'5 Indeed, despite the diminution of standing requirements in the last decade, the Court has not broken with the traditional requirement that, in the absence of a specific statutory grant of the right of review, a plaintiff must allege some particularized injury that sets him apart from the man on the street.16 15 See ibid.: ''Although the law of standing has been greatly changed in the last 10 years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction." (Footnotes omitted.) 16 For example, as the Court noted in Sierra Club v. Morton, 405 UNITED STATES v. RICHARDSON 195 166 POWELL, J., concurring I recognize that the Court's allegiance to a requirement of particularized injury has on occasion required a reading of the concept that threatens to transform it beyond recognition. E. g., Baker v. Carr, supra; Fla.st v. Cohen, supra.11 But despite such occasional digressions, the requirement remains, and I think it does so for the reasons outlined above. In recognition of those considerations, we should refuse to go the last mile toward abolition of standing requirements that is implicit in broadening the "precarious opening" for federal taxpayers created by Fla.st, see 392 U. S., at 116 (Fortas, J., concurring), or in allowing a citizen qua citizen to invoke the power of the federal courts to negative unconstitutional acts of the Federal Government. U. S. 727 (1972), "if any group with a bona fide 'special interest' could initiate ... litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so." Id., at 739-740. The clear implication is that allowing "any individual citizen with [a] . . . bona fide special interest" to trigger federal court litigation is a result to be avoided. All standing cases, even the most recent ones, include references to the need for particularized injury or similar language. None of them as yet has equated the interest of a taxpayer or citizen, suing in that status alone, with the particularized interest that standing doctrine has traditionally demanded. To take that step, it appears to me, would render the requirement of direct or immediate injury meaningless and would reduce the Court's consistent insistence on such an injury to mere talk. 17 Baker v. Carr may have a special claim to sui generis status. It was perhaps a necessary response to the manifest distortion of democratic principles practiced by malapportioned legislatures and to abuses of the political system so pervasive as to undermine democratic processes. Flast v. Cohen may also have been a reaction to what appeared at the time as an immutable political logjam that included unsuccessful efforts to confer specific statutory grants of standing. See, e. g., C. Wright, The Law of Federal Courts 40 (2d ed. 1970). Cf. 392 U.S., at 115--116 (Fortas, J., concurring). 196 OCTOBER TERM, 1973 POWELL, J., concurring 418 U.S. In sum, I believe we should limit the expansion of federal taxpayer and citizen standing in the absence of specific statutory authorization to an outer boundary drawn by the results in Fla.st and Bake,r v. Carr. I think we should face up to the fact that all such suits are an effort "to employ a federal court as a forum in which to air . . . generalized grievances about the conduct of government or the allocation of power in the Federal System." Flast v. Cohen, 392 U. S., at 106. The Court should explicitly reaffirm traditional prudential barriers against such public actions.18 My reasons for this view are rooted in respect for democratic processes and in the conviction that "[t]he powers of the federal judiciary 18 The doctrine of standing has always reflected prudential as well as constitutional limitations. Indeed, it might be said that the correct reading of the Flast nexus test is as a prudential limit, given the Baker v. Carr definition of the constitutional bare minima. The same is undoubtedly true of, for example, the second test created in Association of Data Processing 8ervice Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970)-"whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." See also Barrows v. Jackson, 346 U. S. 249, 255 ( 1953): "Apart from the [ constitutional] requirement, this Court has developed a complementary rule of self-restraint for its own governance ... which ordinarily precludes a person from challenging the constitutionality of state action by invoking the rights of others." See Flast v. Cohen, 392 U. S., at 120, 130--133 (Harlan, J ., dissenting). Whatever may have been the Court's initial perception of the intent of the Framers, see n. 1, supra, it is now settled that such rules of self-restraint are not required by Art. III but are "judicially created overlays that Congress may strip away . . . . " G. Gunther &: ~- Dowling, Cases and Materials on Constitutional Law 106 (8th ed. 1970). But where Congress does so, my objections to public actions are ameliorated by the congressional mandate. Specific statutory grants of standing in such cases alleviate the conditions that make "judicial forbearance the part of wisdom." Fla.st, supra, at 132 (Harlan, J., dissenting) (footnote omitted). UNITED STATES v. RICHARDSON 197 166 DouGLAS, J., dissenting will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of representative government." Id., at 131 (Harlan, J., dissenting). MR. JUSTICE DouGLAS, dissenting. I would affirm the judgment of the Court of Appeals on the "standing" issue. My views are expressed in my dissent to the Schlesinger case, post, p. 229, decided this day. There a citizen and taxpayer raised a question concerning the Incompatibility Clause of the Constitution which bars a person from "holding any Office under the United States" if he is a Member of Congress, Art. I, § 6, cl. 2. That action was designed to bring the Pentagon into line with that constitutional requirement by requiring it to drop "reservists" who were Members of Congress. The present action involves Art. I, § 9, cl. 7, of the Constitution which provides: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." We held in Flast v. Cohen, 392 U. S. 83, that a taxpayer had "standing" to challenge the constitutionality of taxes raised to finance the establishment of a religion contrary to the command of the First and Fourteenth Amendments. A taxpayer making such outlays, we held, had sufficient "personal stake" in the controversy, Baker v. Carr, 369 U. S. 186, 204, to give the case the "concrete adverseness" necessary for the resolution of constitutional issues. Ibid. Respondent in the present case claims that he has 198 OCTOBER TERM, 1973 DOUGLAS, J., dissenting 418 U.S. a right to "a regular statement and account" of receipts and expenditures of public moneys for the Central Intelligence Agency. As the Court of Appeals noted, Flast recognizes "standing" of a taxpayer to challenge appropriations made in the face of a constitutional prohibition, and it logically asks, "how can a taxpayer make that challenge unless he knows how the money is being spent?" 465 F. 2d 844, 853. History shows that the curse of government is not always venality; secrecy is one of the most tempting coverups to save regimes from criticism. As the Court of Appeals said: "The Framers of the Constitution deemed fiscal information essential if the electorate was to exercise any control over its representatives and meet their new responsibilities as citizens of the Republic; and they mandated publication, although stated in general terms, of the Government's receipts and expenditures. Whatever the ultimate scope and extent of that obligation, its elimination generates a sufficient, adverse interest in a taxpayer." Ibid. (Footnote omitted.) Whatever may be the merits of the underlying claim, it seems clear that the taxpayer in the present case is not making a generalized complaint about the operation of Government. He does not even challenge the constitutionality of the Central Intelligence Agency Act. He only wants to know the amount of tax money exacted from him that goes into CIA activities. Secrecy of the Government acquires new sanctity when his claim is denied. Secrecy has, of course, some constitutional sanction. Article I, § 5, cl. 3, provides that "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy .... " UNITED STATES v. RICHARDSON 199 166 DouGLAs, J., dissenting But the difference was great when it came to an accounting of public money. Secrecy was the evil at which Art. I, § 9, cl. 7, was aimed. At the Convention, Mason took the initiative in moving for an annual account of public expenditures. 2 M. Farrand, The Records of the Federal Convention of 1787, p. 618 (1911). Madison suggested it be "from time to time," id., at 618-619, because it was thought that requiring publication at fixed intervals might lead to no publication at all. Indeed under the Articles of Confederation "[a] punctual compliance being often impossible, the practice ha[ d] ceased altogether." Id., at 619. During the Maryland debates on the Constitution, McHenry said: "[T]he People who give their Money ought to know in what manner it is expended," 3 Farrand, supra, at 150. In the Virginia debates Mason expressed his belief that while some matters might require secrecy (e. g., ongoing diplomatic negotiations and military operations) "he did not conceive that the receipts and expenditures of the public money ought ever to be concealed. The people, he affirmed, had a right to know the expenditures of their money." 3 J. Elliot, Debates on the Federal Constitution 459 ( 1836). Lee said that the clause "must be supposed to mean, in the common acceptation of language, short, convenient periods" and that those "who would neglect this provision would disobey the most pointed directions." Ibid. Madison added that an accounting from "time to time" insured that the accounts would be "more full and satisfactory to the public, and would be sufficiently frequent." Id., at 460. Madison thought "this provision went farther than the constitution of any state in the Union, or perhaps in the world." Ibid. In New York, Livingston said: "Will not the representatives . . . consider it as essential to their popularity, to gratify their con200 OCTOBER TERM, 1973 DOUGLAS, J., dissenting 418 U.S. stituents with full and frequent statements of the public accounts? There can be no doubt of it," 2 Elliot, supra, at 347.* From the history of the clause it is apparent that the Framers inserted it in the Constitution to give the public knowledge of the way public funds are expended. No one has a greater "personal stake" in policing this protective measure than a taxpayer. Indeed, if a taxpayer may not raise the question, who may do so? The Court states that discretion to release information is in the first instance "committed to the surveillance of Congress," and that the right of the citizenry to information under Art. I, § 9, cl. 7, cannot be enforced directly, but only through the" [sJlow, cumbersome, and unresponsive" electoral process. One has only to read constitutional history to realize that statement would shock Mason and Madison. Congress of course has discretion; but to say that it has the power to read the clause out of the Consti- *Livingston used the proposed Art. I, § 9, cl. 7, to combat the idea that the new Congress would be corrupt. He said in part: "You will give up to your state legislatures everything dear and valuable; but you will give no power to Congress, because it may be abused; you will give them no revenue, because the public treasures may be squandered. But do you not see here a capital check? Congress a.re to publish, from time to time, an account of their receipts and expenditures. These may be compared together; and if the former, year after year, exceed the latter, the corruption will be detected, and the people may use the constitutional mode of redress. The gentleman admits that corruption will not take place immPrliately: its operations can only be conducted by a long series and a steady system of measures. These measures will be easily defeated, even if the people are unapprized of them. They will be defeated by that continual change of members, which naturally takes plac<' in free governments, arising from the disaffection and inconstancy of the people. A changeable assembly will be entirely incapable of conducting a system of mischief ; they will meet with obstacles and embarrassments on every side." 2 Elliot, supra, at 345-346. UNITED STATES v. RICHARDSON 201 166 DouGLAS, .J., dissenting tution when it comes to one or two or three agencies is astounding. That is the bare-bones issue in the present case. Does Art. I. § 9, cl. 7, of the Constitution permit Congress to withhold "a regular Statement and Account" respecting any agency it chooses? Respecting all federal agencies? What purpose, what function is the clause to perform under the Court's construction? The electoral process already permits the removal of legislators for any reason. Allowing their removal at the polls for failure to comply with Art. I, § 9, cl. 7, effectively reduces that clause to a nullity, giving it no purpose at all. The rnvereign in this ~ation is the people, not the bureaurrary. The statement of accounts of public expenditures goes to the heart of the problem of sovrreignty. If taxpayers may not ask that rudimentary question, their sovereignty becomes an empty symbol an franchise unless it has a basic kuowledge concerning at least the generality of the accounts under every head of government. :N' o greater crisis in confidence can be generated than today's decision. Its consequences are grave because it relegates to secrecy vast operations of government and kePps the 202 OCTOBER TERM, 1973 STEWART, J., dissenting 418 u. s. public from knowing what secret plans concerning this Nation or other nations are afoot. The fact that the result is serious does not, of course, make the issue "justiciable." But resolutions of any doubts or ambiguities should be toward protecting an individual's stake in the integrity of constitutional guarantees rather than turning him away without even a chance to be heard. I would affirm the judgment below. MR. JusTICE STEWART, with whom MR. JusTICE MARSHALL joins, dissenting. The Court's decisions in Flast v. Cohen, 392 U. S. 83 (1968), and Frothingham v. Mellon, 262 U.S. 447 (1923), throw very little light on the question at issue in this case. For, unlike the plaintiffs in those cases, Richardson did not bring this action asking a court to invalidate a federal statute on the ground that it was beyond the delegated power of Congress to enact or that it contravened some constitutional prohibition. Richardson's claim is of an entirely different order. It is that Art. I, § 9, cl. 7, of the Constitution, the Statement and Account Clause, gives him a right to receive, and imposes on the Government a corresponding affirmative duty to supply, a periodic report of the receipts and expenditures "of all public Money." 1 In support of his standing to litigate this claim, he has asserted his status both as a taxpayer and as a citizen-voter. Whether the Statement and Account Clause imposes upon the Government an affirmative duty to supply the information requested and whether that duty runs to every taxpayer or citizen are questions that go to the substantive merits of this liti- 1 "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." UNITED STATES v. RICHARDSON 203 166 STEWART, J., dissenting gation. Those questions are not now before us, but I think that the Court is quite wrong in holding that the respondent was without standing to raise them in the trial court. Seeking a determination that the Government owes him a duty to supply the information he has requested, the respondent is in the position of a traditional Hohfeldian plaintiff.2 He contends that the Statement and Account Clause gives him a right to receive the information and burdens the Government with a correlative duty to supply it. Courts of law exist for the resolution of such right-duty disputes. When a party is seeking a judicial determination that a defendant owes him an affirmative duty, it seems clear to me that he has standing to litigate the issue of the existence vel non of this duty once he shows that the defendant has declined to honor his claim. If the duty in question involved the payment of a sum of money, I suppose that all would agree that a plaintiff asserting the duty would have standing to litigate the issue of his entitlement to the money upon a showing that he had not been paid. I see no reason for a different result when the defendant is a Government official and the asserted duty relates not to the payment of money, but to the disclosure of items of information. When the duty relates to a very particularized and explicit performance by the asserted obligor, such as the payment of money or the rendition of specific items of information, there is no necessity to resort to any extended analysis, such as the Flast nexus tests, in order to find standing in the obligee. Under such circumstances, the duty itself, running as it does from the defendant to the "Jaffe, The Citizen as Litigant in Public Actions: The Non- Hohfeldian or Ideological Plaintiff, 116 U. Pa. L. Rev. 1033 (1968). See Hohfeld, Some Fundamental Legal Conceptions as Applied m Judicial Reasoning, 23 Yale L. J. 16 (1913). 204 OCTOBER TERM, 1973 STEWART, J., dissenting 418 U.S. plaintiff, provides fully adequate assurance that the plaintiff is not seeking to "employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System." Flast, supra, at 106. If such a duty arose in the context of a contract between private parties, no one would suggest that the obligee should be barred from the courts. It seems to me that when the asserted duty is, as here, as particularized, palpable, and explicit as those which courts regularly recognize in private contexts, it should make no difference that the obligor is the Government and the duty is embodied in our organic law. Certainly after United States v. SCRAP, 412 U. S. 669 ( 1973), it does not matter that those to whom the duty is owed may be many. "[S] tanding is not to be denied simply because many people suffer the same injury." Id., at 687. For example, the Freedom of Information Act creates a private cause of action for the benefit of persons who have requested certain records from a public agency and whose request has been denied. 5 U.S. C. § 552 (a) (3). The statute requires nothing more than a request and the denial of that request as a predicate to a suit in the district court. The provision purports to create a duty in the Government agency involved to make those records covered by the statute available to "any person." Correspondingly, it confers a right on "any person" to receive those records, subject to published regulations regarding time, place, fees, and procedure. The analogy, of course, is clear. If the Court is correct in this case in holding that Richardson lacks standing under Art. III to litigate his claim that the Statement and Account Clause imposes an affirmative duty that runs in his favor, it would follow that a person whose request under 5 U. S. C. § 552 has been denied would similarly lack standing under Art. III deUNITED STATES v. RICHARDSON 205 166 STEWART, J., dissenting spite the clear intent of Congress to confer a right of action to compel production of the information. The issue in Flast and its predecessor, Frothingham, supra, related solely to the standing of a federal taxpayer to challenge allegedly unconstitutional exercises of the taxing and spending power. The question in those cases was under what circumstances a federal taxpayer whose interest stemmed solely from the taxes he paid to the Treasury "[would] be deemed to have the personal stake and interest that impart the necessary concrete adverseness to such litigation so that standing can be conferred on the taxpayer qua taxpayer consistent with the constitutional limitations of Article III." 392 U. S., at 101. But the "nexus" criteria developed in Flast were not intended as a litmus test to resolve all conceivable standing questions in the federal courts; they were no more than a response to the problem of taxpayer standing to challenge federal legislation enacted in the exercise of the taxing and spending power of Congress. Richardson is not asserting that a taxing and spending program exceeds Congress' delegated power or violates a constitutional limitation on such power. Indeed, the constitutional provision that underlies his claim does not purport to limit the power of the Federal Government in any respect, but, according to Richardson, simply imposes an affirmative duty on the Government with respect to all taxpayers or citizen-voters of the Republic. Thus, the nexus analysis of Flast is simply not relevant to the standing question raised in this case. The Court also seems to say that this case is not justiciable because it involves a political question. Ante, at 179. This is an issue that is not before us. The "Question Presented" in the Government's petition for certiorari was the respondent's "standing to challenge the provisions of the Central Intelligence Agency 552-\91 0,. 76 - 16 206 OCTOBER TERM, 1973 STEWART, J., dissenting 418 U.S. Act which provide that appropriations to and expenditures by that Agency shall not be made public, on the ground that such secrecy contravenes Article I, section 9, clause 7 of the Constitution." 3 The issue of the justiciability of the respondent's claim was thus not presented in the petition for certiorari, and it was not argued in the brief s. 4 At oral argument, in response to questions about whether the Government was asking this Court to rule on the justiciability of the respondent's claim, the following colloquy occurred between the Court and the Solicitor General: "MR. BORK: ... I think the Court of Appeals was correct that the political question issue could be resolved much more effectively if we were in the full merits of the case than we can at this stage. I think standing is a11 that really can be effectively discussed in the posture of the case now. "Q: ... [I]f we disagree with you on standing, the Government agrees then that the case should go back to the District Court? "MR. BORK: I think that is correct." 3 The Court has often indicated that, except in the most extraordinary circumstances, it will not consider questions that have not been presented in the petition for certiorari. E. g., General, Talking Pictures Corp. v. Western Electric Co., 304 U. S. 175, 177- 178 (1938); National Licorice Co. v. NLRB, 309 U. S. 350, 357 n. 2 (1940); Irvine v. California, 347 U. S. 128, 129 (1954) (opinion of Jackson, J.); Mazer v. Stein, 347 U.S. 201, 206 n. 5 (1954). • The District Court dismissed the complaint on the alternative grounds of lack of standing and nonjusticiability (because the court thought that the question involved was a political one). The Court of Appeals reversed the standing holding, but concluded that the justiciability issue was so intertwined with the merits that it should await consideration of the merits by the District Court on remand. The Government then brought the cfille here on petition for certiorari. UNITED STATES v. RICHARDSON 207 166 STEWART, J., dissenting The Solicitor General's answer was clearly right. "[W] hen standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." Flast, supra, at 99-100. On the merits, I presume that the Government's position would be that the Statement and Account Clause of the Constitution does not impose an affirmative duty upon it; that any such duty does not in any event run to Richardson; that any such duty is subject to legislative qualifications, one of which is applicable here; and that the question involved is political and thus not justiciable. Richardson might ultimately be thrown out of court on any one of these grounds, or some other. But to say that he might ultimately lose his lawsuit certainly does not mean that he had no standing to bring it. For the reasons expressed, I believe that Richardson had standing to bring this action. Accordingly, I would affirm the judgment of the Court of Appeals. 208 OCTOBER TERM, 1973 Syllabus 418 U.S. SCHLESINGER, SECRETARY OF DEFENSE, ET AL. v. RESERVISTS COMMITTEE TO STOP THE w AR ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 72-1188. Argued January 14, 1974-Decided June 25, 1974 Respondents-an association of present and former members of the Armed Forces Reserve opposing United States involvement in Vietnam, and five association members who were United States citizens and taxpayers-brought a class action on behalf, inter a/,ia, of all United States citizens and taxpayers against petitioners, the Secretary of Defense and the three Service Secretaries, challenging the Reserve membership of Members of Congress as violating the Incompatibility Clause of Art. I, § 6, cl. 2, of the Constitution, which provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." The District Court held that respondents had standing to sue as citizens but not as taxpayers, and on the merits granted partial relief. The Court of Appeals affirmed. Held: 1. Respondents had no standing to sue as citizens, since the claimed nonobservance of the Incompatibility Clause which they assert deprives citizens of the faithful discharge of the legislative duties of reservist Members of Congress implicates only the generalized interest of all citizens in constitutional governance and is thus merely an abstract injury rather than the concrete injury that is essential to satisfy Art. Ill's "case or controversy" requirement. Pp. 216-227. 2. Respondents also lacked standing to sue as taxpayers, since they failed to establish the required "logical nexus between the [taxpayer] status asserted and the claim sought to be adjudicated." Fla.st v. Cohen, 392 U. S. 83, 102. Pp. 227-228. 162 U. S. App. D. C. 19, 495 F. 2d 1075, rrversed and remanded. BURGER, C. J ., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 228. DouGLAS, J., SCHLESINGER v. RESERVISTS TO STOP THE WAR 209 208 Opinion of the Court filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 229. BRENNAN, J., post, p. 235, and MARSHALL, J., post, p. 238, filed dissenting opinions. Solicitor General Bork argued the cause for petitioners. With him on the brief were Acting Assistant Attorney General Jaffe, Deputy Solicitor General Friedman, Leonard Schaitman, and William D. Appler. William A. Dobrovir argued the cause and filed a brief for respondents.* MR. CHIEF JUSTICE BURGER delivered the op1mon of the Court. We granted certiorari, sub nom. Richardson v. Reservists Committee to Stop the War, 411 U. S. 947 (1973), to review the judgment of the Court of Appeals affirming, without opinion, the District Court's partial summary judgment for respondents declaring that "Article I, Section 6, Clause 2 of the Constitution renders a member of Congress ineligible to hold a commission in the Armed Forces Reserve during his continuance in office." Rese-rvists Committee to Stop the 1'Var v. Laird, 323 F. Supp. 833, 843 (DC 1971). We hold that respondents do not have standing to sue as citizens or taxpayers. The judgment of the Court of Appeals is therefore reversed. I Article I, § 6, cl. 2, of the Federal Constitution provides: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments *ThomCI.'; H. King, Maurice F. Biddle, and Harold Shapiro filed a brief for the Reserve Officers Association of the United States as arnicus curiae. 210 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." The Constitution thereby makes Members of Congress ineligible for appointment to certain offices through the limitation of the Ineligibility Clause, and prohibits Members of Congress from holding other offices through the latter limitation , the Incompatibility Clause. Respondents, the Reservists Committee to Stop the War and certain named members thereof, l challenged the Reserve membership of Members of Congress 2 as being 1 The Committr.e, located in California, is a national unincorporated association of present and former officers and enlisted members of the Reserves, organized for the purpose of opposing the military involvement of the Umted States in Vietnam and of using all lawful means to end that involvement, including efforts by its members individually to take all steps necessary and appropriate to end that involvement. The five individual respondents were all members of the Committee, residents of California, and United States citizens and taxpayers. At the time suit was filed, four of the individuals were in active Ready Reserve status; the status of the fifth, then the Committee cochairman, was unspecified. 2 At the time suit was filed, 130 Members of the 91st Congress were also members of the Reserves, which are divided into Ready, Standby, and Retired components. By the end of the 92d Congress, 119 Members were reservists. As of November 2, 1973, t he 93d Congress has seen t he number of its reservists reduced to 107, all but one of whom are commissioned officers, App. 5, and none of whom can occupy the Ready Re.serve status of the individual respondents, supra, n. 1. Dept. of Defense Directive 1200.7 § v, c. 2 (July 2, 1970); 32 CFR § 125.4 (c)(2). Of the 107, 20 (including the one enlisted man) are in the active, and 12 in the in active, Standby Reserve; and 73 are in the Retired Reserve, 16 of whom receive retirement pay. Two other Members are in the Army National Guard, and thus in the Ready Reserve, 10 U. S. C. § 269 (b), but since the governors of the various States control appointments to offices in the Guard, petitioners could not provide SCHLESINGER v. RESERVISTS TO STOP THE WAR 211 208 Opinion of the Court in violation of the Incompatibility Clause. They commenced a class action in the District Court against petitioners, the Secretary of Defense and the three Service Secretaries, seeking ( 1) an order in the nature of mandamus directed to petitioners requiring them to strike from the rolls of the Reserves all Members of Congress presently thereon, to discharge any member of the Reserves who subsequently became a Member of Congress, and to seek to reclaim from Members and former Members of Congress any Reserve pay said Members received while serving as Members of Congress, (2) a permanent injunction preventing petitioners from placing on the rolls of the Reserves any Member of Congress while serving in Congress, and (3) a declaration that membership in the Reserves is an office under the United States prohibited to Members of Congress by Art. I,§ 6, cl. 2, and incompatible with membership in the Congress. Respondents sought the above relief on behalf of four classes of persons. The Committee and the individual respondents sought to represent the interests of ( 1) all persons opposed to United States military involvement in Vietnam and purporting to use lawful means, including communication with and persuasion of Members of Congress, to end that involvement. The individual respondents alone sought to represent the interests of (2) all officers and enlisted members of the Reserves who were not Members of Congress, (3) all taxpayers of the United States, and (4) all citizens of the United States. The interests of these four classes were alleged to be adversely affected by the Reserve membership of Members of Congress in various ways. relief regarding such reservists. The judgment of the District Court did not therefore extend to this category of reser\'ist. 323 F. Supp. 833, 838 n. 3 (DC 1971). 212 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. As relevant here, citizens and taxpayers were alleged in respondents' complaint to have suffered injury because Members of Congress holding a Reserve position in the Executive Branch were said to be subject to the possibility of undue influence by the Executive Branch,3 in violation of the concept of the independence of Congress implicit in Art. I of the Constitution. Reserve membership was also said to place upon Members of Congress possible inconsistent obligations which might cause them to violate their duty faithfully to perform as reservists or as Members of Congress. Reserve membership by Members of Congres. s thus, according to respondents' complaint, "deprives or may deprive the individual named plaintiffs and all other citizens and taxpayers of the United States of the faithful discharge by members of Congress who are members of the Reserves of their duties as members of Congress, to which all citizens and taxpayers are entitled." Pet. for Cert. 46. Petitioners filed a motion to dismiss respondents' complaint on the ground that respondents lacked standing to bring the action, and because the complaint failed to state a cause of action upon which relief could be granted. The latter ground was based upon the contention that the Incompatibility Clause sets forth a qualification for Membership in the Congress, U. S. Const., Art. I, § 5, cl. 1, not a qualification for a position in the Executive Branch. The power to judge that qualification was as- 3 Respondents appear to have had reference in part to pressure that, conceivabl~- could be applied to reservist :vicmbers of Congress through surh offires as the President's powrr to call reservists to active duty without their consent, 10 U. S. C. §§ 672-675, or his power to discharge commissioned recxacerbate the rule of self-censorship of legitimate utterance as publishers "steer far wider of the unlawful zone," Speiser v. Randall, 357 U.S. 513, 526 (1958). We recognized in New York Times Co. v. Sullivan, supra, at 279, that a rule requiring a critic of official conduct to guarantee the truth of all of his factual contentions would inevitably lead to self-censorship when 2 A respected commentator has observed that factors other than purely legal constraints operate to control the press: "Traditions, attitudes, and general rules of political conduct are far more important controls. The fear of opening a credibility gap, and thereby lessening one's influence, holds some participants in check. Institutional pressures in large organizations, including Rome of the press, have a similar effect; it is difficult for an organization to have an open policy of making inten1ionall~· falsE> accusations." T. Emerson, The System of Freedom of Expression 538 (1970). Typical of thP prrss' own ongoing sdf-rvaluation is a proposal to establish a national news council, composed of membrrs drawn from the public and the journalism profession, to examine and report on c·omplaints concerning the ac('uracy and fairness of nC'w$ reporting by the largest newsgathering sources. Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press (1973). See also Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation: Predictability and the New Synthesis, 70 Mich. L. Rev. 1547, 1569-1570 (1972). 552-191 0 - ?6 - 26 366 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 U.S. publishers, fearful of being unable to prove truth or unable to bear the expense of attempting to do so, simply eschewed printing controversial articles. Adoption, by many States, of a reasonable-care standard in cases where private individuals are involved in matters of public interest- the probable result of today's decision-will likewise lead to self-censorship since publishers will be required carefully to weigh a myriad of uncertain factors before publication. The reasonable-care standard is "elusive," Time, Inc. v. Hill, supra, at 389; it saddles the press with "the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait." Ibid. Under a reasonable-care regime, publishers and broadcasters will have to make pre-publication judgments about juror assessment of such diverse considerations as the size, operating procedures, and financial condition of the newsgathering system, as well as the relative costs and benefits of instituting less frequent and more costly reporting at a higher level of accuracy. See The Supreme Court, 1970 Term, 85 Harv. L. Rev. 3,228 (1971). Moreover, in contrast to proof by clear and convincing evidence required under the New York Times test, the burden of proof for reasonable care will doubtless be the preponderance of the evidence. "In the normal civil suit where [ the preponderance of the evidence] standard is employed, 'we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor.' In re Winship, 397 U. S. 358, 371 (1970) (HARLAN, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement ... but the 323 GERTZ v. ROBERT WELCH, INC. 367 BRENNAN, J ., dis.~enting possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate." Rosenbloom, 403 U. S., at 50. And, most hazardous, the flexibility which inheres in the reasonable-care standard will create the danger that a jury will convert it into "an instrument for the suppression of those 'vehement, caustic, and sometimes unpleasantly sharp attacks,' ... which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail." Monitor Patriot Co. v. Roy, 401 1!. S. 265,277 (1971). The Court does not discount altogether the danger that jurors will punish for thP expression of unpopular opm1ons. This probability accounts for tht> Court's limitation that "the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.'' Ante, at 349. But plainly a jury's latitude to impose liability for want of due care poses a far greater threat of suppressing unpopular views than does a possible recovery of presumed or punitive damages. Moreover, the Court's broad-ranging examples of "actual injury," including impairment of reputation and standing in the community, as well as personal humiliation, and mental anguish and suffering, inevitably allow a jury bent on punishing expression of unpopular views a formidable weapon for doir.g so. Finally, even a limitation of recovery to "actual injury"- however much it reduces the size or frequency of recoveries-will not provide the necessary elbowroom for First Amendment expression. "It is not simply the possibility of a judgment for damages that results in self-censorship. The very 368 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 U.S. possibility of having to engage in litigation, an expensive and protracted process, is threat enough to cause discussion and debate to 'steer far wider of the unlawful zone' thereby keeping protected discussion from public cognizance. . . . Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be 'actual' or 'punitive.' " Rosenbloom, supra, at 52-53. On the other hand, the uncertainties which the media face under today's decision are largely avoided by the New York Times standard. I reject the argument that my Rosenbloom view improperly commits to judges the task of determining what is and what is not an issue of "general or public interest." 3 I noted in Rosenbloom 3 The Court, taking a novel step, would not limit application of First Amendment protection to private libels involving issues of general or public interest, but would forbid the States from imposing liability without fault in any case where the substance of the defamatory statement made substantial danger to reputation apparent. As in Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 44 n. 12, 48-49, n. 17 (1971), I would leave open the question of what constitutional standard, if any, applies when defamatory falsehoods are published or broadcast concerning either a private or public person's activities not within the scope of the general or public interest. Parenthetically, my Brother WHITE argues that the Court's view and minA will prevent a. plaintiff-unable to demonstrate some degree of fault-from vindicating his reputation by securing a judgment that the publication was false. This argument overlooks the possible enactment of statutes, not requiring proof of fault, which provide for an action for retraction or for publication of a court's determination of falsity if the plaintiff is able to demonstrate that false statements have been published concerning his activities. Cf. Note, Vindication of the Reputation of a Public Official, 80 Harv. L. Rev. 1730, 1739-1747 (1967). Although it may be that questions could be raised concerning the constitutionality of such statutes, certainly nothing I have said today (and, as I read the Court's opinion, nothing said there) should be read to i.mply that a private plaintiff, unable to prove fault, must inevitably be denied the opporGERTZ v. ROBERT WELCH, INC. 369 323 WHITE, J., dissenting that performance of this task would not always be easy. Id., at 49 n. 17. But surely the courts, the ultimate arbiters of all disputes concerning clashes of constitutional values, would only be performing one of their traditional functions in undertaking this duty. Also, the difficulty of this task has been substantially lessened by that "sizable body of cases, decided both before and after Rosenbloom, that have employed the concept of a matter of public concern to reach decisions in ... cases dealing with an alleged libel of a private individual that employed a public interest standard ... and ... cases that applied Butts to the alleged libel of a public figure." Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation: Predictability and the New Synthesis, 70 Mich. L. Rev. 1547, 1560 (1972). The public interest is necessarily broad; any residual selfcensorship that may result from the uncertain contours of the "general or public interest" concept should be of far less concern to publishers and broadcasters than that occasioned by state laws imposing liability for negligent falsehood. Since petitioner failed, after having been given a full and fair opportunity, to prove that respondent published the disputed article with knowledge of its falsity or with reckless disregard of the truth, see ante, at 329-330, n. 2, I would affirm the judgment of the Court of Appeals. MR. JusTICE WHITE, dissenting. For some 200 years- from the very founding of the Nation-the law of defamation and right of the ordinary citizen to recover for false publication injurious to his reputation have been almost exclusively the business of tunity to secure a judgment upon the truth or falsity of statements published about him. Cf. Rosenbloom v. Metromedia, Inc., supra, at 47, and n. 15. 370 OCTOBER TERM, 1973 WHITE, J., dissenting 418 u. s. state courts and legislatures. Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule. Given such publication, general damage to reputation was presumed, while punitive damages required proof of additional facts. The law governing the defamation of private citizens remained untouched by the First Amendment because until relatively recently, the consistent view of the Court was that libelous words constitute a class of speech wholly unprotected by the First Amendment, subject only to limited exceptions carved out since 1964. But now, using that Amendment as the chosen instrument, the Court, in a few printed pages, has federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States. That result is accomplished by requiring the plaintiff in each and every defamation action to prove not only the defendant's culpability beyond his act of publishing defamatory material but also actual damage to reputation resulting from the publication. Moreover, punitive damages may not be recovered by showing malice in the traditional sense of ill will; knowing falsehood or reckless disregard of the truth will now be required. I assume these sweeping changes will be popular with the press, but this is not the road to salvation for a court of law. As I see it, there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves. I do not suggest that the decision is illegitimate or beyond the bounds of judicial review, but it is an ill-considered exercise of the power entrusted to this Court, particularly when the GERTZ v. ROBERT WELCH, INC. 371 323 WHITE, J., dissenting Court has not had the benefit of briefs and argument addressed to most of the major issues which the Court now decides. I respectfully dissent. I Lest there be any mistake about it, the changes wrought by the Court's decision cut very deeply. In 1938, the Restatement of Torts reflected the historic rule that publication in written form of defamatory materialmaterial tending "so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him" 1-subjected the publisher to liability although no special harm to reputation was actually proved.2 Re- 1 Restatement of Torts § 559 (1938); see also W. Prosser, Law of Torts § 111, p. 739 (4th ed. 1971); 1 A. Hanson, Libel and Related Torts ,r 14, pp. 21-22 (1969); 1 F. Harper & F. James, The Law of Torts §5.1, pp. 349-350 (1956). 2 The observations in Part I of this opinion as to the current state of the law of defamation in the various States are partially based upon the Restatement of Torts, first published in 1938, and Tentative Drafts Nos. 11 and 12 of Restatement of Torts (Second), released in 1965 and 1966, respectively. The recent transmittal of Tentative Draft No. 20, dated April 25, 1974, to the American Law Institute for it.s consideration has resulted in the elimination of much of the discussion of the prevailing defamation rules and the suggested changes in many of the rules themselves previously found in the earlier Tentative Drafts. This development appears to have been largely influenced by the draftsmen's "sense for where the law of this important subject should be thought to stand." Restatement (Second) of Torts, p. vii (Tent. Draft No. 20, Apr. 25, 1974). It is evident that, to a large extent, these latest views are colored by the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971). See, e. g., Restatement (Second) of Torts, supra, at xiii, §§ 569, 580, 581A, 581B, 621. There is no indication in the latest draft, however, that the conclusions reached in Tentative Drafts Nos. 11 and 12 are not an accurate reflection of the case law in the States in the mid-1960's prior to the developments occasioned by the plurality opinion in Rosenbloom. See infra, at 374-375. 372 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. statement of Torts § 569 (1938).3 Truth was a defense, and some libels were privileged; but, given a false circulation, general damage to reputation was presumed and damages could be awarded by the jury, along with any special damages such as pecuniary loss and emotional distress. At the very least, the rule allowed the recovery of nominal damages for any defamatory publication actionable per se and thus performed "a vindicatory function by enabling the plaintiff publicly to brand the defamatory publication as false. The salutary social value of this rule is preventive in character since it often permits a defamed person to expose the groundless character of a defamatory rumor before harm to the reputation has resulted therefrom." Id., § 569, comment b, p. 166. If the defamation was not libel but slander, it was actionable per se only if it imputed a criminal offense; a venereal or loathsome and communicable disease; improper conduct of a lawful business; or unchastity by a woman. Id., § 570. To be actionable, all other types of slanderous statements required proof of special damage other than actual loss of reputation or emotional distress, that special damage almost always being in the form of material or pecuniary loss of some kind. Id., § 575 and comment b, pp. 185-187. Damages for libel or slander per se included "harm caused thereby to the reputation of the person defamed or in the absence of proof of such harm, for the harm which normally results from such a defamation." Id., § 621. At the heart of the libel-and-slander-per-se 8 See also W. Prosser, supra, n. 1, § 112, p. 752 and n. 85; Murnaghan, From Figment to fiction to Philosophy-The Requirement of Proof of Damages in Libel Actions, 22 Cath. U. L. Rev. 1, 11-13 (1972). GERTZ v. ROBERT WELCH, INC. 373 323 WHITE, J., dissenting damage scheme lay the award of general damages for loss of reputation. They were granted without special proof because the judgment of history was that the content of the publication itself was so likely to cause injury and because "in many cases the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed." Id.,§ 621, comment a, p. 314.4 Proof of actual injury to reputation was itself insufficient proof of that special damage necessary to support liability for slander not actionable per se. But if special damage in the form of material or pecuniary loss were proved, general damages for injury to reputation could be had without further proof. "The plaintiff may recover not only for the special harm so caused, but also for general loss of reputation." Id.,§ 575, comment a, p. 185.5 The right to recover for emotional distress depended upon the defendant's otherwise being liable for either libel or slander. Id.,§ 623. Punitive damages were recoverable upon proof of special facts amounting to express malice. Id., § 908 and comment b, p. 555. 4 Proof of the defamation itself established the fact of injury and the existence of some damage to the right of reputation, and the jury was permit.ted, even without any other evidence, to assess damages that were considered to be the natural or probable consequences of the defamatory words. Restatement of Torts § 621, comment a, p. 314 (1938); see also C. Gatley, Libel and Slander 1004 (6th ed. 1967); M. Newell, Slander and Libel§ 721, p. 810 (4th ed. 1924) ; see generally C. McCormick, Law of Damages § 116, pp. 422- 430 (1935). In this respect, therefore, the damages were presumed because of the impossibility of affixing an exact monetary amount for present and future injury to the plaintiff's reputation, wounded feelings and humiliation, loss of business, and any consequential physical illness or pain. Ibid. 5 See also Prosser, supra, n. 1, § 112, p. 761; Harper & James, supra, n. 1, § 5.14, p. 388; Note, Developments in the Law- Defamation, 69 Harv. L. Rev. 875, 939-940 (1956). OCTOBER TERM, 1973 WHITE, J., dissenting 418 u. s. Preparations in the mid-1960's for Restatement (Second) of Torts reflected what were deemed to be substantial changes in the law of defamation, primarily a trend toward limiting per se libels to those where the defamatory nature of the publication is apparent on its face, i. e., where the "defamatory innuendo is apparent from the publication itself without reference to extrinsic facts by way of inducement." Restatement (Second) of Torts§ 569, p. 29 (Tent. Draft No. 12, Apr. 27, 1966). Libels of this sort and slanders per se continued to be recognized as actionable without proof of special damage or injury to reputation.6 All other defamations would require proof of special injury in the form of material or pecuniary loss. Whether this asserted change reflected the prevailing law was heavily debated,7 but it was unquestioned at the time that there are recurring situations in which libel and slander are and should be actionable per se. In surveying the current state of the law, the proposed Restatement (Second) observed that "[a]ll courts except Virginia agree that any libel which is defamatory upon its face is actionable without proof of damage . . . ." Restatement (Second) of Torts § 569, p. 84 (Tent. Draft No. 11, Apr. 15, 1965). Ten jurisdictions continued to support the old rule that libel not defamatory on its face and whose innuendo depends on extrinsic facts is actionable without proof of damage although slander would not be. Twenty-four jurisdictions were said to hold that libel not defamatory on its face is to be treated like slander and thus not actionable without proof of damage where 6 Also actionable per se were those libels where the imputation, although not apparent from the material itself, would have been slander per se if spoken rather than written. 7 Restatement (Second) of Torts § 569, pp. 29-45, 47-48 (Tent. Draft No. 12, Apr. 27, 1966); see also Murnaghan, supra, n. 3. GERTZ v. ROBERT WELCH, INC. 375 323 WHITE, J., dissenting slander would not be. Id., § 569, p. 86. The law in six jurisdictions was found to be in an unsettled state but most likely consistent with the Restatement (Second). Id., § 569, p. 88. The law in Virginia was thought to consider libel actionable without proof of special damage only where slander would be, regardless of whether the libel is defamatory on its face. Id., § 569, p. 89. All States, therefore, were at that time thought to recognize important categories of defamation that were actionable per se.8 Nor was any question apparently raised at that time that upon proof of special damage in the form of material or pecuinary loss, general damages to reputation could be recovered without further proof. unquestionably, state law continued to recognize some absolute, as well as some conditional, privileges to publish defamatory materials, including the privilege of fair comment in defined situations. But it remained true that in a wide range of situations, the ordinary citizen could make out a prima facie case without proving more than a defamatory publication and could recover general damages for injury to his reputation unless defeated by the defense of truth.9 The impact of today's decision on the traditional law of libel is immediately obvious and indisputable. No longer will the plaintiff be able to rest his case with proof of a libel defamatory on its face or proof of a slander historically actionable per se. In addition, he must prove some further degree of culpable conduct on the part of the 8 Applying settled Illinois law, the District Court in this case held that it is libel per se to label someone a Comm11niRt. 306 F. Supp. 310 (ND Ill. 1969). 9 This appears to have been the law in Illinois at the time Gertz brought his libel suit. See, e. g., Brewer v. Hearst Publi.shing Co., 185 F. 2d 846 (CA7 1950); Hotz v. Alton Telegraph Printing Co., 324 Ill. App. 1, 57 N. E. 2d 137 (1944); Cooper v. Illinois Publishing & Printing Co., 218 Ill. App. 95 (1920). 376 OCTOBER TERJVI, 1973 WHITE, J., dissenting 418 U.S. publisher, such as intentional or reckless falsehood or negligence. And if he succeeds in this respect, he faces still another obstacle: recovery for loss of reputation will be conditioned upon "competent" proof of actual injury to his standing in the community. This will be true regardless of the nature of the defamation and even though it is one of those particularly reprehensible statements that have traditionally made slanderous words actionable without proof of fault by the publisher or of the damaging impact of his publication. The Court rejects the judgment of experience that some publications are so inherently capable of injury, and actual injury so difficult to prove, that the risk of falsehood should be borne by the publisher, not the victim. Plainly, with the additional burden on the plaintiff of proving negligence or other fault, it will be exceedingly difficult, perhaps impossible, for him to vindicate his reputation interest by securing a judgment for nominal damages, the practical effect of such a judgment being a judicial declaration that the publication was indeed false. Under the new rule the plaintiff can lose, not because the statement is true, but because it was not negligently made. So too, the requirement of proving special injury to reputation before general damages may be awarded will clearly eliminate the prevailing rule, worked out over a very long period of time, that, in the case of def amations not actionable per se, the recovery of general damages for injury to reputation may also be had if some form of material or pecuniary loss is proved. Finally, an inflexible federal standard is imposed for the award of punitive damages. No longer will it be enough to prove ill will and an attempt to injure. These are radical changes in the law and severe invasions of the prerogatives of the States. They should GERTZ v. ROBERT WELCH, INC. 377 323 WHITE, J ., dissenting at least be shown to be required by the First Amendment or necessitated by our present circumstances. Neither has been demonstrated. Of course, New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Rosenblatt v. Baer, 383 U.S. 75 (1966), and Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U. S. 130 (1967), have themselves worked major changes in defamation law. Public officials and public figures, if they are to recover general damages for injury to reputation, must prove knowing falsehood or reckless disregard for the truth. The States were required to conform to these decisions. Thereafter in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), three Members of the Court urged that the same standard be applied whenever the publication concerned an event of public or general concern. But none of these cases purported to foreclose in all circumstances recovery by the ordinary citizen on traditional standards of liability, and until today, a majority of the Court had not supported the proposition that, given liability, a court or jury may not award general damages in a reasonable amount without further proof of injury. In the brief period since Rosenbloom was decided, at least 17 States and several federal courts of appeals have felt obliged to consider the New York Times constitutional privilege for liability as extending to, in the words of the Rosenbloom plurality, "all discussion and communication involving matters of public or general concern." Id., at 44.10 Apparently, however, general 10 See, e. g., West v. Northern Publishing Co., 487 P. 2d 1304, 1305--1306 (Alaska 1971) (article linking owners of taxicab companies to illegal liquor sales to minors); Gallman v. Carnes, 254 Ark. 987, 992, 497 S. W. 2d 47, 50 (1973) (matter concerning state law school professor and assistant dean); Belli v. Curtis Publishing Co., 25 Cal. App. 3d 384, 102 Cal. Rptr. 122 (1972) (article concerning attorney 378 OCTOBER TER~I, 1973 WHITE, J., dissenting 418 U.S. damages still remain recoverable once that standard of liability is satisfied. Except where public officials and public figures are concerned, the Court now repudiwith national reputation); Moriarty v. Lippe, 162 Conn. 371, 378-- 379, 294 A. 2d 326, 330-331 (1972) (publication about certain police officers); Firestone v. Time, Inc., 271 So. 2d 745, 750-751 (Fla. 1972) (divorce of prominent citizen not a matter of legitimate public concern); State v. Snyder, 277 So. 2d 660, 666-668 (La. 1973) ( criminal defamation prosecution of a defeated mayoral candidate for statements made about another candidate); Twohig v. Boston Herald-Traveler Corp., - Mass. - , - , 291 N. E. 2d 398, 400-401 (1973) (article concerning a candidate's votes in the legislature); Priestley v. Hastings & Sons Publwhing Co. of Lynn, 360 Mass. 118, 271 N. E. 2d 628 (1971) (article about an architect commissioned by a town to build a school); Harnwh v. Herald- Mail Co., Inc., 264 Md. 326, 334-336, 286 A. 2d 146, 151 (1972) (article concerning substandard rental property owned by a membRr of a city housing authority); Standke v. B. E. Darby & Sons, Inc., 291 Minn. 468, 476-477, 193 N. W. 2d 139, 145 (1971) (newspaper editorial concerning performance of grand jurors) ; Whitmore v. Kansas City Star Co., 499 S. W. 2d 45, 49 (Mo. Ct. App. 1973) (article concerning a juvenile officer, the operation of a detention home, and a grand jury im·estigation); Trails West, Inc. v. Wolff, 32 N. Y. 2d 207, 214-218, 298 N. E. 2d 52, 55-58 (1973) (suit against a Congressman for an investigation into the death of schoolchildren in a bus accident); Twenty-five East 40th Street Restaurant Corp. v. Forbes, Inc., 30 N. Y. 2d 595, 282 N. E. 2d 118 (1972) (magazine article concerning a restaurant's food); Kent v. City of Buffalo, 29 N. Y. 2d 818, 277 N. E. 2d 669 (1971) (television station film of plaintiff as a captured robber); Frink v. McEldowney, 29 l\'. Y. 2d 720, 275 N. E. 2d 337 (1971) (article concerning an attorney representing a town); Mead v. Horvitz Publi.shing Co. (9th Dist. Ohio Ct. App. ,Tune 13, 1973) (unpublished), cert. denied, 416 U. S. 985 (1974) (financial condition of participants in the development of a large apartment complex involving numerous local contract-Ors) ; Washington v. World Publishing Co., 506 P. 2d 913 (Okla. 1973) (article about contract dispute between a candidate for United States Senate and his party's county chairman); Matus v. Triangle Publications, Inc., 445 Pa. 384, 395-399, 286 A. 2d 357, 363-365 (1971) GERTZ v. ROBERT WELCH, INC. 379 323 WHITE, J., dissenting ates the plurality opinion in Rosenbloom and appears to espouse the liability standard set forth by three other Justices in that case. The States must now struggle to (radio "talk show" host's discussion of gross overcharging for snowplowing a driveway not considered an event of public or general concern); Autobuses Internacionol,es S. De R.L., Ltd. v. El Continental Publishing Co., 483 S. W. 2d 506 (Tex. Ct. Civ. App. 1972) (newspaper article concerning a bus company's raising of fares without notice and in violation of law); Sanders v. Harris, 213 Va. 369, 372- 373, 192 S. E. 2d 754, 757-758 (1972) (article concerning English professor at a community college); Old Dominion Branch No. J/)6 v. Austin, 213 Va. 377, 192 S. E. 2d 737 (1972), rev'd, ante, p. 264 (plaintiff's failure to join a labor union considered not an issue of public or general concern); Chase v. Daily Record, Inc., 83 Wash. 2d 37, 41, 515 P. 2d 154, 156 (1973) (article concerning port district commissioner); Miller v. Argus Publi.shing Co., 79 Wash. 2d 816, 827, 490 P. 2d 101, 109 (1971) (article concerning the backer of political candidates); Polzin v. Helmbrecht, 54 Wis. 2d 578, 586, 196 N. W. 2d 685, 690 (1972) (letter to editor of newspaper concerning a reporter and the financing of pollution control measures). The following United States Courts of Appeals have adopted the plurality opinion in Ro8enbloom: Cantrell v. Forest City Publi.shing Co., 484 F. 2d 150 (CA6 1973), cert. pending, No. 73-5520 (article concerning family members of the victim of a highly publicized bridge disaster not actionable absent proof of actual malice) ; Porter v. Guam Publications, Inc., 475 F. 2d 744, 745 (CA9 1973) (article concerning citizen's arrest for theft. of a cash box considered an event of general or public interest); Cervantes v. Time, Inc., 464 F. 2d 986, 991 (CA8 1972) (article concerning mayor and alleged organized <'rime connections conceded to be a matter of public or general concern); Firestone v. Time, Inc., 460 F. 2d 712 (CA5 1972) (magazine article concerning prominent citizen's use of detectives and electronic surveillance in connection with a divorce); Davis v. NationoJ, Broadcasting Co., 447 F. 2d 981 (CA5 1971), aff'g 320 F. Supp. 1070 (ED La. 1970) (television report about a person caught up in the events surrounding the assassination of President Kennedy considered a matter of public interest). However, at least one Court of Appeals, faced with an appeal from summary judgment in favor of a publisher in a diversity libel suit brought by a Philadelphia retailer, has expressed "discom380 OCTOBER TERM, 1973 WHITE, J., dissenting 418 u. s. discern the meaning of such ill-defined concepts as "liability without fault" and to fashion novel rules for the recovery of damages. These matters have not been briefed or argued by the parties and their workability has not been seriously explored. Nevertheless, yielding to the apparently irresistible impulse to announce a new and different interpretation of the First Amendment, the Court discards history and precedent in its rush to refashion defamation law in accordance with the inclinations of a perhaps evanescent majority of the Justices. II The Court does not contend, and it could hardly do so, that those who wrote the First Amendment intended to prohibit the Federal Government, within its sphere of influence in the Territories and the District of Columbia, from providing the private citizen a peaceful remedy for damaging falsehood. At the time of the adoption of the First Amendment, many of the consequences of libel law already described had developed, particularly the rule that libels and some slanders were so inherently injurious that they were actionable without special proof of damage to reputation. As the Court pointed out in Roth v. United States, 354 U. S. 476, 482 (1957), 10 of the 14 States that had ratified the Constitution by 1792 had themselves provided constitutional guarantees for free fort in accepting the Rosenbloom plurality opinion as a definitive statement of the appropriate law .... " Gordon v. Random House, Inc., 486 F. 2d 1356, 1359 (CA3 1973). As previously discussed in n. 2, supra, the latest proposed draft of Restatement (Second) of Torts substantially reflects the ,·iews of the Rosenbloom plurality. It also anticipates "that the Supreme Court will hold that strict liability for defamation is inconsistent with the free-speech provision of the First Amendment . . . ," Restatement (Second) of Torts § 569, p. 59 (Tent. Draft No. 20, Apr. 25, 1974), as well as the demise of pre-Rosenbloom damages rules. See id., § 621, pp. 285-288. GERTZ v. ROBERT WELCH, INC. 381 323 WHITE, J., dissenting expression, and 13 of the 14 nevertheless provided for the prosecution of libels. Prior to the Revolution, the American Colonies had adopted the common law of libel.11 Contrary to some popular notions, freedom of the press was sharply curtailed in colonial America.12 Seditious libel was punished as a contempt by the colonial legislatures and as a criminal offense in the colonial courts.'" Scant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers. On the contrary, "[i]t is conceded on all sides that the common-law rules that subjected the libeler to responsibility for the private injury, or the public scandal or disorder occasioned by his conduct, are not abolished by the protection extended to the press in our constitutions." 2 T. Cooley, Constitutional Limitations 883 (8th ed. 1927). Moreover, consistent with the Blackstone formula,14 these 11 Merin, Libel and the Supreme Court, 11 Wm. & Mary L. Rev. 371, 373 (1969). 12 A. Sutherland, Constitutionalism in America: Origin and Evolution of Its Fundamental Ideas 118-119 (1965). 13 See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History ( 1960). u The men who wrote and adopted the First Amendment were steeped in the common-law tradition of England. They read Blackstone, "a classic tradition of the bar in the United States" and "the oracle of the common law in the minds of the American Framers . . . . " J. Hurst, The Growth of American Law: The Law Makers 257 (1950); Levy, supra, n. 13, at 13; see also Sutherland, supra, n. 12, at 124-125; Schick v. United States, 195 U. S. 65, 69 ( 1904). From him they learned that the major means of accomplishing free speech and press was to prevent prior restraints, the publisher later being subject to legal action if his publication was injurious. 4 W. Blackstone, CommPntaries ·"150-153. 552-191 0 - 76 - ~7 382 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. common-law actions did not abridge freedom of the press. See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 247-248 (1960); Merin, Libel and the Supreme Court, 11 Wm. & Mary L. Rev. 371,376 (1969); Hallen, Fair Comment, 8 Tex. L. Rev. 41, 56 (1929). Alexander Meiklejohn, who accorded generous reach to the First Amendment, nevertheless acknowledged: "No one can doubt that, in any well-governed society, the legislature has both the right and the duty to prohibit certain forms of speech. Libelous assertions may be, and must be, forbidden and punished. So too must slander. . . . All these necessities that speech be limited are recognized and provided for under the Constitution. They were not unknown to the writers of the First Amendment. That amendment, then, we may take it for granted, does not forbid the abridging of speech. But, at the same time, it does forbid the abridging of the freedom of speech. It is to the solving of that paradox, that apparent self-contradiction, that we are summoned if, as free men, we wish to know what the right of freedom of speech is." Political Freedom, The Constitutional Powers of the People 21 ( 1965). See also Leflar, The Free-ness of Free Speech, 15 Vand. L. Rev. 1073, 1080-1081 (1962). Professor Zechariah Chafee, a noted First Amendment scholar, has persuasively argued that conditions in 1791 "do not arbitrarily fix the division between lawful and unlawful speech for all time." Free Speech in the United States 14 (1954).15 At the same time, however, 15 See also Meiklejohn, The First Amendment Is An Absolute, 1961 Sup. Ct. Rev. 245, 264: "First, the Framers initiated a political revolution whose develop~ ment is still in process throughout the world. Second, like most GERTZ v. ROBERT WELCH, INC. 383 323 WHITE, J., dis~nting he notes that while the Framers may have intended to abolish seditious libels and to prevent any prosecutions by the Federal Government for criticism of the Government, 16 "the free speech clauses do not wipe out the common law as to obscenity, profanity, and defamation of individuals." 11 The debates in Congress and the States over the Bill of Rights are unclear and inconclusive on any articulated intention of the Framers as to the free press guarantee.18 We know that Benjamin Franklin, John Adams, and William Cushing favored limiting freedom of the press to truthful statements, while others such as James "Wilson suggested a restatement of the Blackstone standard.19 revolutionaries, the Framers could not foresee the specific issues which would arise as their 'novel idea' exercised its domination over the govrrning actrvities of a rapidly dneloping nation in a rapidly and fundamentally changmg world. In that tiense, the Framers did not know what they were doing. And in the same sense, it is still true that, after two centunes of experience, we do not know what they were doinJ!:, or what we ourselves are now doing. "In a more abstract and more significant sense, however, both they and we have bef>n aware that the adoption of the principle of srlf-government by 'The People' of this nation set loose upon us and upon the world at large an idea which is still transforming men's conceptions of what they arr and how they may best be governed." 16 See Beauharnais v. Illinois, 343 U. S. 250, 272 (1952) (Black, .r., dis,entinitl. Brant, who intNprets the Framers' intention more liberally than Chafee, neverth('lcss saw the free> speech protection as bearing upon <'rihcism of 11:overnment and other political speech. I. Brant, The Bill of Right:s 236 ( 1965). 17 Z. Chafee, Fref' 1'peech in the- t:nited States 14 (1954). i& See 1 Annals of Cong. 729-789 ( 17'>9). ::3ee also Brant, supra, n. 16, at 224; Levy, supra, n. 13, at 214, 224. 19 Merin, supra, n. 11, at 377. Franklin, for example, observed: "If by the Liberty of the Press were understood merely the Liberty of discussing the Propriety of Public Measures and political opinions, let us have as much of it ab you please: But if it means the Liberty of affronting, calumniating, and defamin~ one another, I, for my 384 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. Jefferson endorsed Madison's formula that "Congress shall make no law . . . abridging the freedom of speech or the press" only after he suggested: "The people shall not be deprived of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty, or reputation of others .... " F. Mott, Jefferson and the Press 14 (1943).20 Doubt has been expressed that the Members of Congress envisioned the First Amendment as reaching even this far. Merin, Libel and the Supreme Court, 11 Wm. & Mary L. Rev. 371, § 379-380 (1969). This Court in bygone years has repeatedly dealt with libel and slander actions from the District of Columbia and from the Territories. Although in these cases First Amendment considerations were not expressly discussed, the opinions of the Court unmistakably revealed that the classic law of libel was firmly in place in those areas where federal law controlled. See, e.g., Ww;hington Post Co. v. Chaloner, 250 U. S. 290 (1919); Baker v. Warner, 231 U. S. 588 ( 1913); Nalle v. Oyster, 230 U. S. 165 (1913); Dorr v. United States, 195 U.S. 138 (1904); Pollard v. Lyon, 91 U. S. 225 (1876); White v. Nicholls, 3 How. 266 (1845). The Court's consistent view prior to New York Times Co. v. Sullivan, 376 U. S. 254 ( 1964), was that defamatory part, own myself willing to part with my Share of it when our Legislators shall please so to alter the Law, and shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abus'd myself." 10 B. Franklin, Writings 38 (Smyth ed. 1907). 20 Jefferson's noted opposition to public prosecutions for libel of government figures did not extend to depriving them of private libel actions. Mott, supra, at 43. There is even a strong suggestion that he favored state prosecutions. E. Hudon, Freedom of Speech and Press in America 47-48 (1963). GERTZ v. ROBERT WELCH, INC. 385 323 WHITE, J., dissenting utterances were wholly unprotected by the First Amendment. In Patterson v. Colorado ex rel. Attorney General, 205 U. S. 454, 462 (1907), for example, the Court said that although freedom of speech and press is protected from abridgment by the Constitution, these provisions "do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare." This statement was repeated in Near v. Minnesota ex rel. Olson, 283 U.S. 697, 714 (1931), the Court adding: "But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions." Id., at 715. Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942) (footnotes omitted), reflected the same view: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are 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." Beauharnais v. Illinois, 343 U. S. 250, 254-257 (1952) (footnotes omitted), repeated the Chaplinsky statement, noting also that nowhere at the time of the adoption of 386 OCTOBER TERM, 1973 WHrTE, J., dissenti-p.g 418 U.S. the Constitution "was there any suggestion that the crime of libel be abolished." And in Roth v. United States, 354 U. S., at 483 (footnote omitted), the Court further examined the meaning of the First Amendment: "In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, 343 U. S. 250, 266. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press." 21 The Court could not accept the generality of this historic view in New York Times Co. v. Sullivan, supra. There the Court held that the First Amendment was intended to forbid actions for seditious libel and that defamation a.ctions by public officials were therefore not subject to the traditional law of libel and slander. If these officials (and, later, public figures occupying semiofficial or influential, although private, positions) were to recover, they were required to prove not only that the publication was false but also that it was knowingly false or published with reckless disregard for its truth or falsity. This view that the First Amendment was written to for- 21 For further expressions of the general proposition that libels are not protected by the First Amendment, see Konigsberg v. State Bar of Cai,ifornia, 366 U. S. 36, 49-50 and n. 10 (1961); Times Film Corp. v. City of ChicQJJo, 365 U. S. 43, 48 (1961); Pennekamp v. Florida, 328 U. S. 331, 348-349 (1946); cf. Paris Adult Theatre I v. Slaton, 413 U. S. 49, 67 (1973); Stanley v. Georgia, 394 U. S. 557,561n.5 (1969). GERTZ v. ROBERT WELCH, INC. 387 323 WHITE, J., dissenting bid seditious libel reflected one side of the dispute that raged at the turn of the nineteenth century 22 and also mirrored the views of some later scholars.23 The central meaning of New York Times, a.nd for me the First Amendment as it relates to libel laws, is that seditious libel-criticism of government and public officials- falls beyond the police power of the State. 376 U. S., at 273-276. 2 • In a democratic society such as ours, the citizen has the privilege of criticizing his government and its officials. But neither New York Times nor its progeny suggest that the First Amendment intended in all circumstances to deprive the private citizen of his historic recourse to redress published falsehoods damaging to reputation or that, contrary to history and precedent, the Amendment should now be so interpreted. Simply put, the First Amendment did not confer a "license to defame the citizen." W. Douglas, The Right of the People 36 (1958). I do not labor the foregoing matters to contend that the Court is foreclosed from reconsidering prior interpretations of the First Amendment.2; But the Court apparently finds a clean slate where in fact we have instructive historical experience dating from long before 22 &-t> Levy, supra, n. 13, at 247-248. 2 a See, e. g., Abram.s v. United State.s, 250 U. S. 616, 630 (1919) (Holmes, J ., dissenting). 2• Ka.lven, The New York Times Case: A Note on "The Central !\leaning of the First Amendment," 1964 Sup. Ct. Rev. 191, 208--209. 25 "The language of the First Amendment is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. . . . As iu the case of ewry other pron~ion of tht> Constitution that is not rrystallized by the nature of its terhnical concepts, the fact that the First Amendment is not self-defining and selfenforcing neither impairs its usefulness nor compels its paralysis as a. living instrument." Dennis v. L'nited States, 341 U. I{ 494, 523 (I 951) (Frankfurter, J ., concurring). 388 OCTOBER TERM, 1973 WHITE, J., dissenting 418 u. s. the first settlers, with their notions of democratic government and human freedom, journeyed to this land. Given this rich background of history and precedent and because we deal with fundamentals when we construe the First Amendment, we should proceed with care and be presented with more compelling reasons before we jettison the settled law of the States to an even more radical extent.26 III The Court concedes that the dangers of self-censorship are insufficient to override the state interest in protecting the reputation of private individuals who are both more helpless and more deserving of state concern than public persons with more access to the media to defend themselves. It therefore refuses to condition the private plaintiff's recovery on a showing of intentional or reckless falsehood as required by New York Times. But the Court nevertheless extends the reach of the First Amendment to all defamation actions by requiring that the ordinary 26 "[T]he law of defamation has been an integral part of the laws of England, the colonies and the stat-es since time immemorial. So many actions have been maintained and judgments recovered under the various laws of libel that the Constitutional validity of libel actions could be denied only by a Court willing to hold all of its predecessors were wrong in their interpretation of the First Amendment and that two hundred years of precedents should be overruled." Rutledge, The Law of Defamation: Recent Developments, 32 Alabama Lawyer 409,410 (1971). The prevailing common-law libel rules in this country have remained in England and the Commonwealth nations. Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L. Q. 581, 583-584 (1964). After many years of reviewing the English law of defamation, the Porter Committee concluded that "though the law as to defamation requires some modification, the basic principles upon which it is founded are not amiss." Report of the Committee on the Law of Defamation, Cmd. No. 7536, 222, p. 48 (1948). GERTZ v. ROBERT WELCH, INC. 389 323 WHITE, J., dissenting citizen, when libeled by a publication defamatory on its face, must prove some degree of culpability on the part of the publisher beyond the circulation to the public of a damaging falsehood. A rule at least as strict would be called for where the defamatory character of the publication is not apparent from its face. Ante, at 348.21 Furthermore, if this major hurdle to establish liability is surmounted, the Court requires proof of actual injury to reputation before any damages for such injury may be awarded. The Court proceeds as though it were writing on tabula rasa and suggests that it must mediate between two unacceptable choices-on the one hand, the rigors of the New York Times rule which the Court thinks would give insufficient recognition to the interest of the private plaintiff, and, on the other hand, the prospect of imposing "liability without fault" on the press and others who are charged with defamatory utterances. Totally ignoring history and settled First Amendment law, the Court purports to arrive at an "equitable compromise," rejecting both what it considers faultless liability and New York Times malice, but insisting on some intermediate degree of fault. Of course, the Court necessarily discards the contrary judgment arrived at in the 50 States that the reputation interest of the private citizen is deserving of considerably more protection. The Court evinces a deep-seaten antipathy to "liability without fault." But this catch-phrase has no talismanic significance and is almost meaningless in this context where the Court appears to be addressing those libels and slanders that are def amatory on their face and where 27 If I read the Court correctly, it clearly implies that for those publications that do not make "substantial danger to reputation apparent," the New York Times actual-malice standard will apply. Apparently, this would be true even where the imputation concerned conduct or a condition that would be per se slander. 390 OCTOBER TERM, 1973 WHITE, J., dissenting 418 u. s. the publisher is no doubt aware from the nature of the material that it would be inherently damaging to reputation. He publishes notwithstanding, knowing that he will inflict injury. With this knowledge, he must intend to inflict that injury, his excuse being that he is privileged to do so-that he has published the truth. But as it turns out, what he has circulated to the public is a very damaging falsehood. Is he nevertheless "faultless"? Perhaps it can be said that the mistake about his defense was made in good faith, but the fact remains that it is he who launched the publication knowing that it could ruin a reputation. In these circumstances, the law has heretofore put the risk of falsehood on the publisher where the victim is a private citizen and no grounds of special privilege are invoked. The Court would now shift this risk to the victim, even though he has done nothing to invite the calumny, is wholly innocent of fault, and is helpless to avoid his injury. I doubt that jurisprudential resistance to liability without fault is sufficient ground for employing the First Amendment to revolutionize the law of libel, and in my view, that body of legal rules poses no realistic threat to the press and its service to the public. The pr0ss today is vigorous and robust. To me, it is quite incredible to suggest that threats of libel suits from private citizens are causing the press to refrain from publishing the truth. I know of no hard facts to support that proposition, and the Court furnishes none. The communications industry has increasingly become concentrated in a few powerful hands opera.ting very lucrative businesses reaching across the Nation and into almost every home.28 Neither the industry as a whole nor 28 A recent study has comprehensively detailed the role and impact of mass communications in this Nation. See Note, Media and the First Amendment in a Free Society, 60 Geo. L. J. 867 (1972). For example, 99% of the American households have a radio, and 77% GERTZ v. ROBERT WELCH, INC. 391 323 WHITE, J., dissenting its individual components are easily intimidated, and we are fortunate that they are not. Requiring them to pay for the occasional damage they do to private reputation will play no substantial part in their future performance or their existence. In any event, if the Court's principal concern is to protect the communications industry from large libel judgments, it would appear that its new requirements with respect to general and punitive damages would be ample protection. Why it also feels compelled to escalate the threshold standard of liability I cannot fathom, hear at least one radio newscast daily. In 1970, the yearly average home television viewing time was almost six hours per day. Id., at 883 n. 53. "Sixty years ago, 2,442 newspapers were published daily nationwide, and 689 cities had competing dailies. Today, in only 42 of the cities served by one of the 1,748 American daily papers is there a competing newspaper under separate ownership. Total daily circulation has passed 62 million copies, but over 40 percent of this circulation is controlled by only 25 ownership groups. "Newspaper owners have profited greatly from the consolidation of the journalism industry. Several of them report yearly profits in the tens of millions of dollars, with after tax profits ranging from seven to 14 percent of gross revenues. Unfortunately, the owners have made their profits at the expense of the public interest in free expression. As the broad base of newspaper ownership narrows, the variation of facts and opinions received by the public from antagonistic sources is increasingly limited. Newspaper publication is indeed a leading American industry. Through its evolution in this direction, the press has come to be dominated by a select group whose prime interest is economic. "The effect of consolidation within the newspaper industry is magnified by the degree of intermedia ownership. Sixty-eight cities have a radio station owned by the only local daily newspaper, and 160 television stations have newspaper &ffiliations. In 11 cities diversity of ownership is completely lacking with the only television station and newspaper under the same control." Id., at 892-893 (footnotes omitted). See also Congress, FCC Consider :Newspaper Control of Local TV, 32 Cong. Q. 659-663 ( 197 4). 392 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. particularly when this will eliminate in many instances the plaintiff's possibility of securing a judicial determination that the damaging publication was indeed false, whether or not he is entitled to recover money damages. Under the Court's new rules, the plaintiff must prove not only the defamatory statement but also some degree of fault accompanying it. The publication may be wholly false and the wrong to him unjustified, but his case will nevertheless be dismissed for failure to prove negligence or other fault on the part of the publisher. I find it unacceptable to distribute the risk in this manner and force the wholly innocent victim to bear the injury; for, as between the two, the defamer is the only culpable party. It is he who circulated a falsehood that he was not required to publish. It is difficult for me to understand why the ordinary citizen should himself carry the risk of damage and suffer the injury in order to vindicate First Amendment values by protecting the press and others from liability for circulating false information. This is particularly true because such statements serve no purpose whatsoever in furthering the public interest or the search for truth but, on the contrary, may frustrate that search and at the same time inflict great injury on the defenseless individual. The owners of the press and the stockholders of the communications enterprises can much better bear the burden. And if they cannot, the public at large should somehow pay for what is essentially a public benefit derived at private expense. IV A Not content with escalating the threshold requirements of establishing liability, the Court abolishes the ordinary damages rule, undisturbed by New York Times GERTZ v. ROBERT WELCH, INC. 393 323 WHITE, .J., dissenting and later cases, that, as to libels or slanders defamatory on their face, injury to reputation is presumed and general damages may be awarded along with whatever special damages may be sought. Apparently because the Court feels that in some unspecified and unknown number of cases, plaintiffs recover where they have suffered no injury or recover more than they deserve, it dismisses this rule as an "oddity of tort law." The Court thereby refuses in any case to accept the fact of wide dissemination of a per se libel as prima facie proof of injury sufficient to survive a motion to dismiss at the close of plaintiff's case. I have said before, but it bears repeating, that even if the plaintiff should recover no monetary damages, he should be able to prevail and have a judgment that the publication is false. But beyond that, courts and legislatures literally for centuries have thought that in the generality of cases, libeled plaintiffs will be seriously shortchanged if they must prove the extent of the injury to their reputations. Even where libels or slanders are not on their face defamatory and special damage must be shown, when that showing is made, general damages for reputation injury are recoverable without specific proof.29 29 Having held that the defamation plaintiff is limited to recovering for "actual injury," the Court hasteru, to add: "Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering." Ante, at 350. It should be pointed out that under the prevailing law, where the defamation is not actionable per se and proof of "special damage" is required, a showing of actual injury to reputation is insufficient; but if pecuniary loss is shown, general reputation damages a.re recoverable. The Court changes the latter, but not the former, rule. Also under present law, pa.in a.nd suffering, although shown, do not 394 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. The Court is clearly right when at one point it states that "the law of defamation is rooted in our experience that the truth rarely catches up with a lie." Ante, at 344 n. 9. But it ignores what that experience teaches, viz., that damage to reputation is recurringly difficult to prove and that requiring actual proof would repeatedly destroy any chance for adequate compensation. Eminent authority has warned that "it is clear that proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact." W. Prosser, Law of Torts § 112, p. 765 ( 4th ed. 1971). so The Court fears uncontrolled awards of damages by juries, but that not only denigrates the good sense of most jurors------it fails to consider the role of trial and appellate courts in limiting excessive jury verdicts where no reasonable relationship exists between the amount awarded and the injury sustained.31 Available informawarrant damages in any defamation action unless the plaintiff is otherwise entitled to at least nominal damages. By imposing a more difficult standard of liability and requiring proof of actual damage to reputation, recovery for pain and suffering, though real, becomes a much more remote possibility. 30 "The harm resulting from an injury to reputation is difficult to demonstrate both because it may involve subtle differences in the conduct of the recipients toward the plaintiff and because the recipients, the only witnesses able to establish the necessary causal connection, may be reluctant to testify that the publication affected their relationships with the plaintiff. Thus some presumptions are necessary if the plaintiff is to be adequately compensated." Note, Developments in the Law-Defamation, 69 Harv. L. Rev. 875, 891- 892 (1956). 31 "On questions of damages, the judge plays an important role. It is, of course, for him to determine and instruct the jury as to what matters may be taken into consideration by them in arriving GERTZ v. ROBERT WELCH, INC. 395 323 WHITE, J., dissenting tion tends to confirm that American courts have ably discharged this responsibility. "2 The new rule ,vith respect to general damages appears to apply to all libels or slanders, whether defamatory on their face or not, except, I gather, when the plaintiff proves intentional falsehood or reckless disregard. Although the impact of the publication on the victim is the same, in such circumstances the injury to reputation may apparently be presumed in accordance with the traditional rule. Why a defamatory statement is more apt to cause injury if the lie is intentional than when it is only negligent, I fail to understand. I suggest that judges and juries who must live by these rules will find them equally incomprehensible. B With a flourish of the pen, the Court also discards the prevailing rule in libel and slander actions that punitive damages may be awarded on the classic grounds of common-law malice, that is, " 'r al ctual malice' in the sense of ill will or fraud or reckless indifference to conat a verdict. since such questions are clearly matters of substantive law. But the judge also may and frequently does exercise a judgment as to the amount of damages the plaintiff may recover. His function here is primarily to keep the jury within bounds of reason and common sense, to guard against excessive verdicts dictated by passion and prejudice and to see to it that the amount of the verdict has some reasonable relation to the plaintiff's evidence as to his loss or the probability of loss. Thus, the trial judge may grant a new trial or the appellate court may reverse and remand the case for a new trial because of excessive damages or, as is more frequently the case, a remittitur may be ordered, the effect of which is that the plaintiff must accept a specified reduction of his damages or submit to a new trial on the issue of lia.bility as well as damages." 1 F. Harper & F. James, The Law of Torts § 5.29, p. 467 (1956) (footnote omitted). 32 See Pedrick, supra, n. 26, at 587 n. 23. 396 OCTOBER TERlVI, 1973 WHITE, J., dissenting 418 U.S. sequences." C. McCormick, Law of Damages § 118, p. 431 (1935); see also W. Prosser, supra, § 113, p. 772; 1 A. Hanson, Libel and Related Torts 1T 163, p.133 (1969); Note, Developments in the Law-Defamation, 69 Harv. L. Rev. 875, 938 (1956); Cal. Civ. Code § 48a (4)(d) (1954). In its stead, the Court requires defamation plaintiffs to show intentional falsehood or reckless disregard for the truth or falsity of the publication. The Court again complains about substantial verdicts and the possibility of press self-censorship, saying that punitive damages are merely "private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence." Ante, at 350. But I see no constitutional difference between publishing with reckless disregard for the truth, where punitive damages will be permitted, and negligent publication where they will not be allowed. It is difficult to understand what is constitutionally wrong with assessing punitive damages to deter a publisher from departing from those standards of care ordinarily followed in the publishing industry, particularly if common-law malice is also shown. I note also the questionable premise that "juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused." Ibid. This represents an inaccurate view of established practice, "another of those situations in which judges, largely unfamiliar with the relatively rare actions for defamation, rely on words without really going behind them .... " 33 While a jury award in any type of civil case may certainly be unpredictable, trial and appellate courts have been increasingly vigilant in ensuring that the jury's result is "based upon a rational consideration of the evidence and the proper application of the 33 Murnaghan, supra, n. 3, at 29. GERTZ v. ROBERT WELCH, INC. 397 323 WHITE, J., dissenting law." Reynolds v. Pegler, 123 F. Supp. 36, 39 (SDNY 1954), aff'd, 223 F. 2d 429 (CA2), cert. denied, 350 U.S. 846 (1955). See supra, nn. 31-32. Moreover, some courts require that punitive damages bear a reasonable relation to the compensatory damages award.34 Still others bar common-law punitive damages or condition their award on a refusal to print a retraction.35 "The danger . . . of immoderate verdicts, is certainly a real one, and the criterion to be applied by the judge in setting or reducing the amount is concededly a vague and subjective one. Nevertheless the verdict may be twice submitted by the complaining defendant to the common sense of trained judicial minds, once on motion for new trial and again on appeal, and it must be a rare instance when an unjustifiable award escapes correction." C. McCormick, supra, § 77, p. 278. The Court points to absolutely no empirical evidence to substantiate its premise. For my part, I would require something more substantial than an undifferentiated fear of unduly burdensome punitive damages awards before retooling the established common-law rule and depriving the States of the opportunity to experiment with different methods for guarding against abuses. Even assuming the possibility that some verdicts will be "excessive," I cannot subscribe to the Court's remedy. On its face it is a classic example of judicial overkill. Apparently abandoning the salutary New Yark Times policy of case-by-case " 'independent examination of the whole record' . . . so as to assure ourselves that the judgment does not constitute a forbidden intrusion on 34 Note, Developments in the Law- Defamation, 69 Harv. L. Rev., supra, at 875,938 and n. 443. 35 Id., at 939, 941-942. See, e.g., Cal. Civ. Code§ 48a (2) (1954). 552-191 0 - 76 28 398 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. the field of free expression," 36 the Court substitutes an inflexible rule barring recovery of punitive damages absent proof of constitutional malice. The First Amendment is a majestic statement of a free people's dedication to "uninhibited, robust, and wide-open" debate on public issues,31 but we do it a gra.ve disservice when we needlessly spend its force.38 For almost 200 years, punitive damages and the First Amendment have peacefully coexisted. There has been no demonstration that state libel laws as they relate to punitive damages necessitate the majority's extreme response. I fear that those who read the Court's decision will find its words inaudible, for the Court speaks "only [with] a voice of power, not of reason." Mapp v. Ohio, 367 U. S. 643, 686 (1961) (Harlan, J., dissenting). V In disagreeing with the Court on the First Amendment's reach in the area of state libel laws protecting nonpublic persons, I do not repudiate the principle that the First Amendment "rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society." Associated Press v. United States, 326 U. S. 1, 20 (1945); see also Miami Herald Publishing Co. v. Tornillo, ante, at 260 (WHITE, J., concurring). I continue to subscribe to the New Yark Times decision and those decisions extending its protection to defamatory falsehoods about public persons. My quarrel with the Court stems 36 376 U. S., at 285. 37 Id., at 270. 38 ,Judicial review of jury libel awards for excessiveness should be influenced by First Amendment considerations, but it makes little sense to discard an otherwise useful and time-tested rule because it might be misapplied in a few cases. GERTZ v. ROBERT WELCH, INC. 399 323 WHITE, J., dissenting from its willingness "to sacrifice good sense to a syllogism" 3"-to find in the New Yark Times doctrine an infinite elasticity. Unfortunately, this expansion is the latest manifestation of the destructive potential of any good idea carried out to its logical extreme. Recovery under common-law standards for defamatory falsehoods about a private individual, who enjoys no "general fame or notoriety in the community," who is not "pervasive[ly J involve [ d] in the affairs of society," and who does not "thrust himself into the vortex of [a given] public issue ... in an attempt to influence its outcome," 10 is simply not forbidden by the First Amendment. A distinguished private study group put it this way: "Accountability, like subjection to law, is not necessarily a net subtraction from liberty." "The First Amendment was intended to guarantee free expression, not to create a privileged industry." Commission on Freedom of the Press, A Free and Responsible Press 130, 81 ( 1947). I fail to see how the quality or quantity of public debate will be promoted by further emasculation of state libel laws for the benefit of the news media.41 If any- 39 0. Holmes, The Common Law 36 (1881). 40 Ante, at 351, 352. 41 Cf. Pedrick, supra, n. 26, at 601~602: "A great many forces in our society operate to determine the extent to which men are free in fact to express their ideas. Whether there is a privilege for good faith defamatory misstatements on matters of public concern or whether there is strict liability for such statements may not greatly affect the course of public discussion. How different has life been in those states which heretofore followed the majority rule imposing strict liability for misstatements of fact defaming public figures from life in the minority states where the good faith privilege held sway?" See also T. Emerson, The System of Freedom of Expression 519 (1970) (footnote omitted): "[O]n the whole the role of libel law in 400 OCTOBER TERM, 1973 WHITE, J ., dissenting 418 u. s. thing, this trend may provoke a new and radical imbalance in the communications process. Cf. Barron, Access to the Press-A New First Amendment Right, 80 Harv. L. Rev. 1641, 1657 (1967). It is not at all inconceivable that virtually unrestrained defamatory remarks about private citizens will discourage them from speaking out and concerning themselves with social problems. This would turn the First Amendment on its head. Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 Yale L. J. 642, 649 (1966); Merin, 11 Wm. & Mary L. Rev., at 418. David Riesman, writing in the midst of World War II on the fascists' effective use of defamatory attacks on their opponents, commented: "Thus it is that the law of libel, with its ecclesiastic background and domestic character, its aura of heart-balm suits and crusading nineteenth-century editors, becomes suddenly important for modern democratic survival." Democracy and Def arnation: Fair Game and Fair Comment I, 42 Col. L. Rev. 1085, 1088 (1942). This case ultimately comes down to the importance the Court attaches to society's "pervasive and strong interest in preventing and redressing attacks upon reputation." Rosenblatt v. Baer, 383 U. S., at 86. From all that I have seen, the Court has miscalculated and denigrates that interest at a time when escalating assaults on individuality and personal dignity counsel otherwise.•2 the system of freedom of expression has been relatively minor and essentially erratic." 42 "The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones; his feelings, being openly exhibited, tend to lose their GERTZ v. ROBERT WELCH, INC. 401 323 WHITE, J., dissenting At the very least, the issue is highly debatable, and the Court has not carried its heavy burden of proof to justify tampering with state libel laws.43 quality of unique personal warmth and to become the feelings of every man. Such a being, although sentient, is fungible; he is not an individual." Btoustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N. Y. U. L. Rev. 962, 1003 (1964). 43 With the evisceration of the common-law libel remedy for the private citizen, the Court removes from his legal arsenal the most effective weapon to combat assault on personal reputation by the press establishment. The David and Goliath nature of this relationship is all the more accentuated by the Court's holding today in Miami Herold Publishing Co. v. Tornillo, ante, p. 241, which I have joined, that an individual criticized by a newspaper's editorial is precluded by the First Amendment from requiring that newspaper to print his reply to that attack. While that case involves an announced candidate for public office, the Court's finding of a First Amendment barrier to government "intrusion into the function of editors," ante, at 258, does not rest on any distinction between private citizens or public officials. In fact, the Court observes that the First Amendment clearly protects from governmental restraint "the exerci~ e of editorial control and judgment," i. e., " [ t] he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials-whether fair or unfair . . . . " Ibid. (Emphasis added.) We must, therefore, assume that the hapless ordinary citizen libeled by the press (a) may not enjoin in advance of publication a story about him, regardless of how libelous it may be, Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931); (b) may not compel the newspaper to print his reply; and ( c) may not force the newspaper to print a retraction, because a judicially compelled retraction, like a '·remedy such as an enforceable right of access," entails "governmental coercion" as to content., which "at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years." Miami Herald Publishing Co. v. Tornillo, ante, at 254; but cf. this case, ante, at 368 n. 3 (BRENNAN, J., dissenting). My Brother BRENNAN also suggests that there may constitutionally be room for "the possible enactment of statutes, not requiring proof 402 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. While some risk of exposure "is a concomitant of life in a civilized community," Time, Inc. v. Hill, 385 U. S. 374, 388 (1967), the private citizen does not bargain for def amatory falsehoods. Nor is society powerless to vindicate unfair injury to his reputation. "It is a fallacy ... to assume that the First Amendment is the only guidepost in the area of state defamation laws. It is not .... "The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human beinga concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system." Rosenblatt v. Baer, supra, at 92 (STEWART, J., concurring). The case against razing state libel laws is compelling when considered in light of the increasingly prominent role of mass media in our society and the awesome power it has placed in the hands of a select few.•• Surely, our political "system cannot flourish if regimentation takes hold.'' Public Utilities Comm'n v. Pollak, 343 U. S. 451, 469 (1952) (DOUGLAS, J., dis.senting). Nor can it survive if our people are deprived of an effective method of fault, which provide ... for publication of a court's determination of falsity if the plaintiff is able to demonstrate that false statements have been published concerning his activities." Ibid. The Court, however, does not even consider this less drastic alternative to its new "some fault" libel standards . .. See n. 28, supra. GERTZ v. ROBERT WELCH, INC. 403 323 WHITE, J., dissenting of vindicating their legitimate interest m their good names.45 Freedom and human dignity and decency are not antithetical. Indeed, they cannot survive without each other. Both exist side-by-side in precarious balance, one always threatening to overwhelm the other. Our experience as a Nation testifies to the ability of our democratic institutions to harness this dynamic tension. One of the mechanisms seized upon by the common law to accommodate these forces was the civil libel action tried before a jury of average citizens. And it has essentially fulfilled its role. Not because it is necessarily the best or only answer, but because "the juristic philosophy of the common law is at bottom the philosophy of pragmatism. Its truth is relative, not absolute. The rule that functions well produces a title deed to recognition." B. Cardozo, Selected Writings 149 (Hall ed. 1947). In our federal system, there must be room for allowing the States to take diverse approaches to these vexing questions. We should "continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems ... . " Mapp v. Ohio, 367 U. S., at 681 (Harlan, J., dissenting); see also Murnagha.n, From Figment to Fiction to Philosophy-The Requirement of Proof of Damages in Libel Actions, 22 Cath. U. L. Rev. 1, 38 (1972). 45 " No democracy, . . . certainly not the American democracy, will indefinitely tolerate concentrations of private power irresponsible and strong enough to thwart the aspirations of the people. Eventually governmental power will be used to break up private power, or governmental power will be used to regulate private powerif private power is at once great and irresponsible." Commission on Freedom of the Press, A Free and Responsible Press 80 ( 1947). 404 OCTOBER TERM, 1973 WHITE, J., dissenting 418 u. s. Cf. Younger v. Harris, 401 U. S. 37, 44-45 (1971). Whether or not the course followed by the majority is wise, and I have indicated my doubts that it is, our constitutional scheme compels a proper respect for the role of the States in acquitting their duty to obey the Constitution. Finding no evidence that they have shirked this responsibility, particularly when the law of defamation is even now in transition, I would await some demonstration of the diminution of freedom of expression before acting. For the foregoing reasons, I would reverse the judgment of the Court of Appeals and reinstate the jury's verdict. SPENCE v. WASHINGTON 405 Per Curiam SPENCE v. WASHING TON APPEAL FROM SUPREME COURT OF WASHINGTON No. 72-1690. Argued January 9, 1974-Decided June 25, 1974 For displaying out of his apartment window a United States flag upside down with a peace symbol taped thereto, appellant was convicted under Washington's "improper use" statute forbidding the exhibition of a United States flag to which is attached or superimposed figures, symbols, or other extraneous material. He testified without contradiction at his trial that he thus displayed his flag as a protest against then-recent actions in Cambodia and fatal events at Kent State University, and that his purpose was to associate the American flag with peace instead of war and violence. The Washington Supreme Court sustained the conviction, rejecting appellant's contention, inter alia, that the improperuse statute, on its face and as applied, contravened the First and Fourteenth Amendments. Held: The statute, as applied to appellant's activity, impermissibly infringed a form of protected expressmn. 81 Wash. 2d 788, 506 P. 2d 293, reversed. Peter Greenfield argued the cause for appellant. him on the briefs were Burt N euborne, Melvin L. and Joel M. Gora. James E. Warme argued the cause for appellee. him on the brief was Christopher T. Bayley. PER CuRIAM. With Wulf, With Appellant displayed a United States flag, which he owned, out of the window of his apartment. Affixed to both surfaces of the flag was a large peace symbol fashioned of removable tape. Appellant was convicted under a Washington statute forbidding the exhibition of a United States flag to which is attached or superimposed figures, symbols, or other extraneous material. The Supreme Court of Washington affirmed appellant's 406 OCTOBER TERM, 1973 Per Curiam 418U.S. conviction. 81 Wash. 2d 788, 506 P. 2d 293 (1973). It rejected appellant's contentions that the statute under which he was charged, on its face and as applied, contravened the First Amendment, as incorporated by the Fourteenth Amendment, and was void for vagueness. We noted probable jurisdiction. 414 U. S. 815 (1973). We reverse on the ground that as applied to appellant's activity the Washington statute impermissibly infringed protected expression. I On May 10, 1970, appellant., a college student, hung his United States flag from the window of his apartment on private property in Seattle, Washington. The flag was upside down, and attached to the front and back was a peace symbol (i. e., a circle enclosing a trident) made of removable black tape. The window was above the ground floor. The flag measured approximately three by five feet and was plainly visible to passersby. The peace symbol occupied roughly half of the surface of the flag. Three Seattle police officers observed the flag and entered the apartment house. They were met at the main door by appellant, who said: "I suppose you are here about the flag. I didn't know there was anything wrong with it. I will take it down." Appellant permitted the officers to enter his apartment, where they seized the flag and arrested him. Appellant cooperated with the officers. There was no disruption or altercation. Appellant was not charged under Washington's flagdesecration statute. See Wash. Rev. Code § 9.86.030, as amended.1 Rather, the State relied on the so-called 1 This statute provides in part: "No person shall knowingly cast contempt upon any flag, standard, color, ensign or shield ... by publicly mutilating; defacing, defiling, SPENCE v. WASHINGTON 407 405 Per Curiam "improper use" statute, Wash. Rev. Code § 9.86.020. This statute provides, in pertinent part: "No person shall, in any manner, for exhibition or display: " ( 1) Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States or of this state ... or "(2) Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement .... " 2 Appellant initially was tried to the bench in a local justice court, where he was found guilty and sentenced to 90 days' confinement, with 60 days suspended. Appellant exercised his right to be tried de novo in King County Superior Court, where he received a jury trial. The State based its case on the flag itself and the testimony of the three arresting officers, who testified that they had observed the flag displayed from appellant's window and that on the flag was superimposed what they identified as a peace symbol. Appellant took burning, or trampling upon said flag, standard, color, ensign or shield." 2 Washington Rev. Code § 9.86.010 defines the flags and other symbols protected by the desecration and improper-use statutes as follows: "The words flag, standard, color, ensign or shield, as used in this chapter, shall include any flag, standard, color, rnsign or shield, or copy, picture or representation thereof, made of any substance or represented or produced thereon, and of any size, evidently purporting to be such flag, standard, color, ensign or shield of the United States or of this state, or a copy, picture or representation thereof." 408 OCTOBER TERM, 1973 Per Curiam 418 U.S. the stand in his own defense. He testified that he put a peace symbol on the flag and displayed it to public view as a protest against the invasion of Cambodia and the killings at Kent State University, events which occurred a few days prior to his arrest. He said that his purpose was to associate the American flag with peace instead of war and violence: "I felt there had been so much killing and that this was not what America stood for. I felt that the flag stood for America and I wanted people to know that I thought America stood for peace." Appellant further testified that he chose to fashion the peace symbol from tape so that it could be removed without damaging the flag. The State made no effort to controvert any of appellant's testimony. The trial court instructed the jury in essence that the mere act of displaying the flag with the peace symbol attached, if proved beyond a reasonable doubt, was sufficient to convict. There was no requirement of specific intent to do anything more than display the flag in that manner. The jury returned a verdict of guilty. The court sentenced appellant to 10 days in jail, suspended, and to a $75 fine. The Washington Court of Appeals reversed the conviction. 5 Wash. App. 752, 490 P. 2d 1321 (1971). It held the improper-use statute overbroad and invalid on its face under the First and Fourteenth Amendments. With one justice dissenting and two concurring in the result, the Washington Supreme Court reversed and reinstated the conviction. 81 Wash. 2d 788, 506 P. 2d 293 (1973). II A number of factors are important in the instant case. First, this was a privately owned flag. In a technical property sense it was not the property of any governSPENCE v. WASHINGTON 409 405 Per Curiarn ment. We have no doubt that the State or National Governments constitutionally may forbid anyone from mishandling in any manner a flag that is public property. But this is a different case. Second, appellant displayed his flag on private property. He engaged in no trespass or disorderly conduct. Nor is this a case that might be analyzed in terms of reasonable time, place, or manner restraints on access to a public area. Third, the record is devoid of proof of any risk of breach of the peace. It was not appellant's purpose to incite violence or even stimulate a public demonstration. There is no evidence that any crowd gathered or that appellant made any effort to attract attention beyond hanging the flag out of his own window. Indeed, on the facts stipulated by the parties there is no evidence that anyone other than the three police officers observed the flag. Fourth, the State concedes, as did the Washington Supreme Court, that appellant engaged in a form of communication. 3 Although the stipulated facts fail to show that any member of the general public viewed the flag, the State's concession is inevitable on this record. The undisputed facts are that appellant "wanted people to know that I thought America stood for peace." To be sure, appellant did not choose to articulate his views through printed or spoken words. It is therefore necessary to determine whether his activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments, for as the Court noted in United States v. O'Brien, 391 U. S. 367, 376 ( 1968), " [ w] e cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." But the nature of 3 Brief for Appellee 3; 81 Wash. 2d, at 799, 800, 506 P. 2d, at 300, 301. 410 OCTOBER TERM, 1973 Per Curiam 418 U.S. appellant's activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression. The Court for decades has recognized the communicative connotations of the use of flags. E. g., Stromberg v. Californw, 283 U. S. 359 (1931). In wany of their uses flags are a form of symbolism comprising a "primitive but effective way of communicating ideas ... ," and "a short cut from mind to mind." Board of Education v. Barnette, 319 U. S. 624, 632 (1943). On this record there can be little doubt that appellant communicated through the use of symbols. The symbolism included not only the flag but also the superimposed peace symbol. Moreover, the context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol. See Tinker v. Des Moines School District, 393 U. S. 503 (1969). In Tinker, the wearing of black armbands in a school environment conveyed an unmistakable message about a contemporaneous issue of intense public concern-the Vietnam hostilities. Id., at 505-514. In this case, appellant's activity was roughly simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy, also issues of great public moment. Cf. Scheuer v. Rhodes, 416 U.S. 232 (1974). A flag bearing a peace symbol and displayed upside down by a student today might be interpreted as nothing more than bizarre behavior, but it would have been difficult for the great majority of citizens to miss the drift of appellant's point at the time that he made it. It may be noted, further, that this was not an act of mindless nihilism. Rather, it was a pointed expression of anguish by appellant about the then-current domestic and foreign affairs of his government. An intent to SPENCE v. WASHINGTON 411 405 Per Curiam convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it. We are confronted then with a case of prosecution for the expression of an idea through activity. Moreover, the activity occurred on private property, rather than in an environment over which the State by necessity must have certain supervisory powers unrelated to expression. Cf. Procunier v. Martinez, 416 U. S. 396 (1974); Healy v. James, 408 U.S. 169 (1972); Tinker v. Des Moines School District, supra. Accordingly, we must examine with particular care the interests advanced by appellee to support its prosecution. We are met at the outset with something of an enigma in the manner in which the case was presented to us. The Washington Supreme Court rejected any reliance on a breach-of-the-peace rationale. 81 Wash. 2d, at 796 n. 1, 506 P. 2d, at 299 n. 1. It based its result primarily on the ground that "the nation and state both have a recognizable interest in preserving the flag as a symbol of the nation .... " • Yet counsel for the State declined to support the highest state court's principal rationale in argument before us.5 He pursued instead the breach-ofthe- peace theory discarded by the state court. Indeed, that was the only basis on which he chose to support the constitutionality of the state statute. 4 81 Wash. 2d, at 799, 506 P. 2d, at 300. A subsidiary ground relied on by the Washington Supreme Court must be rejected summarily. It found the inhibition on appellant's freedom of expression "minuscule and trifling" because there are "thousands of other means available to [him] for the dissemination of his personal views ... . " Id., at 799, 800, 506 P. 2d, at 300, 301. As the Court noted in, e. g., Schneider v. State, 308 U. S. 147, 163 (1939), "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.'' 5 Brief for Appellee 6; Tr. of Oral Arg. 31-32. 412 OCTOBER TERM, 1973 Per Curiam 418 u. s. Despite counsel's approach, we think it appropriate to review briefly the range of various state interests that might be thought to support the challenged conviction, drawing upon the arguments before us, the opinions below, and the Court's opinion in Street v. New York, 394 U. S. 576, 590-594 (1969). The first interest at issue is prevention of breach of the peace. In our view, the Washington Supreme Court correctly rejected this notion. It is totally without support in the record. We are also unable to affirm the judgment below on the ground that the State may have desired to protect the sensibilities of passersby. "It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas axe themselves offensive to some of their hearers." Street v. New York, supra, at 592. Moreover, appellant did not impose his ideas upon a captive audience. Anyone who might have been offended could easily have avoided the display. See Cohen v. California, 403 U. S. 15 (1971). Nor may appellant be punished for failing to show proper respect for our national emblem. Street v. New York, supra, at 593; Board of Education v. Barnette, supra.6 We are brought, then, to the state court's thesis that Washington has an interest in preserving the national flag as an unalloyed symbol of our country. The court did not define this interest; it simply asserted it. See 81 Wash. 2d, at 799, 506 P. 2d, at 300. MR. JUSTICE REHNQUIST's dissenting opinion today, see post, at 420- 422, adopts essentially the same approach. Presumably, this interest might be seen as an effort to prevent the appropriation of a revered national symbol by an individual, interest group, or enterprise where there was a risk that association of the symbol with a particular 6 Counsel for the State conceded that promoting respect for the flag is not a legitimate state interest. Tr. of Oral Arg. 30. SPENCE v. WASHINGTON 413 405 Per Curiam product or viewpoint might be taken erroneously as evidence of governmental endorsement.7 Alternatively, it might be argued that the interest asserted by the state court is based on the uniquely universal character of the national flag as a symbol. For the great majority of us, the flag is a symbol of patriotism, of pride in the history of our country, and of the service, sacrifice, and valor of the millions of Americans who in peace and war have joined together to build and to defend a Nation in which self-government and personal liberty endure. It evidences both the unity and diversity which are America. For others the flag carries in varying degrees a different message. "A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn." Board of Education v. Barnette, 319 U. S., at 632-633. It might be said that we all draw something from our national symbol, for it is capable of conveying simultaneously a spectrum of meanings. If it may be destroyed or permanently disfigured, it could be argued that it will lose its capability of mirroring the sentiments of all who view l·-,1-. But we need not decide in this case whether the interest 7 Undoubtedly such a concern underlies that portion of the improper-use statute forbidding the utilization of representations of the flag in a commercial context. Indeed, the third subparagraph of the improper-use statute, Wash. Rev. Code § 9.86.020 (3), which is not at issue here, is aimed directly at commercial exploitation of our national symbol. There is no occasion in this case to address the application of the challenged statute to commercial behavior. Cf. Halter v. Nebraska, 205 U. S. 34 (1907). MR. Jus- TICE REHNQUIST's dissent places major reliance on Halter, see post, at 418-420, despite the fact. that Halter was derided nearly 20 years before the Court concluded that the First Amendment applies to the States by virtue of the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652 (1925). 552 - 191 0 - 76 - ~9 414 OCTOBER TERM, 1973 Per Curiam 418 U.S. advanced by the court below is valid.8 We assume, arguendo, that it is. The statute is nonetheless unconstitutional as applied to appellant's activity.9 There was no risk that appellant's acts would mislead viewers into assuming that the Government endorsed his viewpoint. To the contrary, he was plainly and peacefully 10 8 If this interest is valid, we note that it is directly related t-0 expression in the context of activity like that undertaken by appellant. For that reason and because no other governmental interest unrelated to expression has been advanced or can be supported on this record, the four-step analysis of United State.s v. O'Brien, 391 U.S. 367, 377 (1968), is inapplicable. 9 Because we agree with appellant's as-applied argument, we do not reach the more comprehensive overbreadth contention he also advances. But it is worth noting the nearly limitless sweep of the Washington improper-use flag statute. Read literally, it forbids a veteran's group from attaching, e. g., battalion commendations to a United States flag. It proscribes photographs of war heroes standing in front of the flag. It outlaws newspaper mastheads composed of the national flag with superimposed print. Other examples could easily be listed. Statutes of such sweep suggest problems of selective enforcement. We are, however, unable to agree with appellant's void-for-vagueness argument. The statute's application is quite mechanical, particularly when implemented with jury instructions like the ones given in this case. The law in Washington, simply put, is that rwthing may be affixed to or superimposed on a United States flag or a representation thereof. Thus, if selective enforcement has occurred, it has been a result of prosecutorial discretion, not the la.ng1rnge of the statute. Accordingly, this case iii unlike Smith v. Goguen, 415 U. S. 566 (1974), where the words of the statute at issue ("publicly ... treats contemptuously") were themselves sufficiently indefinite to prompt subjective treatment by prosecutorial authorities. 10 Appellant's activity occurred at a time of national turmoil over the introduction of United States forces into Cambodia and the deaths at Kent State University. It is difficult now, more than four years later, to recall vividly the depth of emotion that pervaded most colleges and universities at the time, and that was widely shared by young Americans everywhere. A spontaneous outpouring of feeling resulted in widespread action, not all of it rational SPENCE v. WASHINGTON 415 405 DoUGLAS, J., concurring protesting the fact that it did not. Appellant was not charged under the desecration statute, seen. 1, supra, nor did he permanently disfigure the flag or destroy it. He displayed it as a flag of his country in a way closely analogous to the manner in which flags have always been used to convey ideas. Moreover. his message was direct, likely to be understood, and within the contours of the First Amendment. Given the protected character of his expression and in light of the fact that no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts, the conviction must be invalidated." The judgment is reversed. It is so ordered. MR. JuSTICE BLACKMUN concurs in the result. MR. JusTICE DouGLAS, concurring. I would reverse the judgment for substantially the same reasons given by the Iowa Supreme Court in State v. Kool, 212 N. W. 2d 518. In that case the dewhen viewed in retrospect. This included the closing down of some schools, as well as other disruptions of many centers of education. It was against this highly inflamed background that appellant chose to express his own views in a manner that can fairly be described as gentle and restrained as compared to the actions undertaken by a number of his peers. 11 The similarity of our holding to that of the Iowa Supreme Court in State v. Kool, 212 N. W. 2d 518 (1973), merits note. In that case, the defendant displayed a replica of the United States flag upside down in his window, superimposing a peace symbol to create an effect identical to that achieved by Spence. Recognizing the l\ornmuni()a.tive character of the defendant's activity, the Iowa Supreme Court reversed his conviction for flag misuse and held the statute unconstitutional as applied. The court eschewed an overbreadth analysis, and it rejected a number of the state interests we have found unavailing in the instant case. 416 OCTOBER TERM, 1973 REHNQUIST, J., dissenting 418 u. s. fendant hung a peace symbol made of cardboard and wrapped in tinfoil in the window of his home and hung a replica of the United States flag behind the peace symbol but in an upside-down position. The state statute made it a crime to "cast contempt upon, satirize, deride or burlesque [the] flag," Iowa Code § 32.1. The court held that defendant's conduct constituted "symbolic speech." The court, in reversing the conviction, said: "Someone in Newton might be so intemperate as to disrupt the peace because of this display. But if absolute assurance of tranquility is required, we may as well forget about free speech. Under such a requirement, the only 'free' speech would consist of platitudes. That kind of speech does not need constitutional protection." 212 N. W. 2d, at 521. That view is precisely my own. Hence I concur in reversing this judgment of conviction. MR. CHIEF JUSTICE BuRGER, dissenting. If the constitutional role of this Court were to strike down unwise laws or restrict unwise application of some laws, I could agree with the result reached by the Court. That is not our function, however, and it should be left to each State and ultimately the common sense of its people to decide how the flag, as a symbol of national unity, should be protected. MR. JusTrcE REHNQUIST, with whom THE CHIEF Jus- TICE and MR. JuSTICE WHITE join, dissenting. The Court holds that a Washington statute prohibiting persons from attaching material to the American flag was unconstitutionally applied to appellant. Although I agree with the Court that appellant's activity was a form of communication, I do not agree that the First SPENCE v. WASHINGTON 417 405 REHNQUIST, J., dissenting Amendment prohibits the State from restricting this activity in furtherance of other important interests. And I believe the rationale by which the Court reaches its conclusion is unsound. " [ T] he right of free speech is not absolute at all times and under all circumstances." Chaplimky v. New Hampshire, 315 U. S. 568, 571 (1942). This Court has long recognized, for example, that some forms of expression are not entitled to any protection at all under the First Amendment, despite the fact that they could reasonably be thought protected under its literal language. See Roth v. United States, 354 U.S. 476 (1957). The Court has further recognized that even protected speech may be subject to reasonable limitation when important countervailing interests are involved. Citizens are not completely free to commit perjury, to libel other citizens, to infringe copyrights, to incite riots, or to interfere unduly with passage through a public thoroughfare. The right of free speech, though precious, remains subject to reasonable accommodation to other valued interests. Since a State concededly may impose some limitations on speech directly, it would seem to follow a fortiori that a State may legislate to protect important state interests even though an incidental limitation on free speech results. Virtually any law enacted by a State, when viewed with sufficient ingenuity, could be thought to interfere with some citizen's preferred means of expression. But no one would argue, I presume, that a State could not prevent the painting of public buildings simply because a particular class of protesters believed their message would best be conveyed through that medium. Had appellant here chosen to tape his peace symbol to a federal courthouse, I have little doubt that he could be prosecuted under a statute properly drawn to protect public property. 418 OCTOBER TERM, 1973 REHNQUIST, J., dissenting 418 u. s. Yet the Court today holds that the State of Washington cannot limit use of the American flag, at least insofar as its statute prevents appellant from using a privately owned flag to convey his personal message. Expressing its willingness to assume, arguendo, that Washington has a valid interest in preserving the integrity of the flag, the Court nevertheless finds that interest to be insufficient in this case. To achieve this result the Court first devalues the State's interest under these circumstances, noting that "no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts .... " The Court takes pains to point out that appellant did not "permanently disfigure the flag or destroy it," and emphasizes that the flag was displayed "in a way closely analogous to the manner in which flags have always been used to convey ideas." The Court then restates the notion that such state interests are secondary to messages which are "direct, likely to be understood, and within the contours of the First Amendment." Ante, at 415. In my view the first premise demonstrates a total misunderstanding of the State's interest in the integrity of the American flag, and the second premise places the Court in the position either of ultimately favoring appellant's message because of its subject matter, a position about which almost all members of the majority have only recently expressed doubt, or, alternatively, of making the flag available for a limitless succession of political and commercial messages. I shall treat these issues in reverse order. The statute under which appellant was convicted is no stranger to this Court, a virtually identical statute having been before the Court in Halter v. Nebraska, 205 U.S. 34 (1907). In that case the Court held that the State of Nebraska could enforce its statute to prevent use of a flag representation on beer bottles, stating flatly that "a State will be wanting in care for the well-being of its people if SPENCE v. WASHINGTON 419 405 REHNQUIST, J., dissenting it ignores the fact that they regard the flag as a symbol of their country's power and prestige . " Id., at 42. The Court then continued: "Such an use tends to degrade and cheapen the flag in the estimation of the people, as well as to defeat the object of maintaining it as an emblem of National power and National honor." Ibid. The Court today finds Halter irrelevant to the present case, pointing out that it was decided almost 20 years before the First Amendment was applied to the States and further noting that it involved "commercial behavior," a form of expression the Court presumably will consider another day! Insofar as Halter assesses the State's interest, of course, the Court's argument is simply beside the point. But even as the argument relates to appellant's interest, I find it somewhat difficult to grasp. The Court may possibly be suggesting that political expression deserves greater protection than other forms of expression, but that suggestion would seem quite inconsistent with the position taken in Lehman v. Shaker Heights, ante, p. 298,2 by nearly all Members of the major- 1 The Court states in a foot.note: "There is no occasion in this case to address the application of the challenged statute to commercial behavior. Cf. Halter v. Nebraska, 205 U. S. 34 ( 1907) ." Ante, at 413 n. 7. 2 The plurality opinion of MR. JusTICE BLAcKMUN took the position that a ban against political advertising on publicly owned buses was not unconstitutional since "[n]o First Amendment forum is here to be found." MR. JusncE DOUGLAS, concurring in the judgment, stated that petitioner in that case had no "constitutional right to spread his message before this captive audience," but specifically noted: "I do not view the content of the message as relevant either to petitioner's right to express it or to the commuters' right to be free from it. Commercial advertisements may be as offensive and intrusive to captive audiences as any political message." MR. Jus- TICE BRENNAN, with whom MR. JusTICE STEWART, MR. JUSTICE 420 OCTOBER TERM, 1973 REHNQUIST, J., dissenting 418 U.S. ity in the instant case. Yet if the Court is suggesting that Halter would now be decided differently, and that the State's interest in the flag falls before any speech which is "direct, likely to be understood, and within the contours of the First Amendment," that view would mean the flag could be auctioned as a background to anyone willing and able to buy or copy one. I find it hard to believe the Court intends to presage that result. Turning to the question of the State's interest in the flag, it seems to me that the Court's treatment lacks all substance. The suggestion that the State's interest somehow diminishes when the flag is decorated with removable tape trivializes something which is not trivial. The State of Washington is hardly seeking to protect the flag's resale value, and yet the Court's emphasis on the lack of actual damage to the flag suggests that this is a significant aspect of the State's interest. Surely the Court does not mean to imply that appellant could be prosecuted if he subsequently tore the flag in the process of trying to take the tape off. Unlike flag-desecration statutes, which the Court correctly notes are not at issue in this case, the Washington statute challenged here seeks to prevent personal use of the flag, not simply particular forms of abuse. The State of Washington has chosen to set the flag apart for a special purpose, and has directed that it not be turned into a common background for an MARSHALL, and MR. JusTICE PowELL joined, dissenting, stated: "There is some doubt concerning whether the 'commercial speech' distinction announced in Valentine v. Chrestensen, 316 U.S. 52 (1942), retains continuing validity," referring to MR. JusTICE DouGLAS' concurring opinion in Cammarano v. United States, 358 U. S. 498, 514 (1959). The dissent further stated: "Once a public forum for communication has been established, both free speech and equal protection principles prohibit discrimination based solely upon subject matter or content." (Emphasis in original.) SPENCE v. WASHINGTON 421 405 REHNQUIST, J., dissenting endless variety of superimposed messages. The physical condition of the flag itself is irrelevant to that purpose. The true nature of the State's interest in this case is not only one of preserving "the physical integrity of the flag," 3 but also one of preserving the flag as "an important symbol of nationhood and unity." 4 Although the Court treats this important interest with a studied inattention, it is hardly one of recent invention and has previously been accorded considerable respect by this Court. In Halter, for example, the Court stated: "As the statute in question evidently had its origin in a purpose to cultivate a feeling of patriotism among the people of Nebraska, we are unwilling to adjudge that in legislation for that purpose the State erred in duty or has infringed the constitutional right of anyone. On the contrary, it may reasonably be affirmed that a duty rests upon each State in every legal way to encourage its people to love the Union with which the State is indissolubly connected." 205 U. S., at 43. There was no question in Halter of physical impairment of a flag since no actual flag was even involved. And it certainly would have made no difference to the Court's discussion of the State's interest if the plaintiff in error in that case had chosen to advertise his product by decorating the flag with beer bottles fashioned from some removable substance.5 It is the character, not the cloth, of the flag which the State seeks to protect. 3 Smith "· Goguen, 415 U. S. 566, 591 (1974) (BLACKMUN, J., di$senting). 4 Id., at 587 (WHITE, J., concurring in judgment). 'It should be noted that Hmter makes no mention of the argument that allowing use of the flag for a personal or commercial purpose might suggest endorsement of that purpose by the government. While this might be an additional state interest in appropriate cases, 422 OCTOBER TERM, 1973 REHNQUIST, J., dissenting 418 u. s. The value of this interest has been emphasized in recent as well as distant times. Mr. Justice Fortas, for example, noted in Street v. New York, 394 U.S. 576, 616 (1969), that "the flag is a special kind of personalty," a form of property "burdened with peculiar obligations and restrictions." Id., at 617 (dissenting opinion).6 MR. JUSTICE WHITE has observed that" [ t]he flag is a national property, and the Nation may regulate those who would make, imitate, sell, possess, or use it." Smith v. Goguen, 415 U. S., at 587 (concurring in judgment). I agree. What appellant here seeks is simply license to use the flag however he pleases, so long as the activity can be tied to a concept of speech, regardless of any state interest in having the flag used only for more limited purposes. I find no reasoning in the Court's opinion which convinces me that the Constitution requires such license to be given. The fact that the State has a valid interest in preserving the character of the flag does not mean, of course, that it can employ all conceivable means to enforce it. It certainly could not require all citizens to own the flag or compel citizens to salute one. Board of Education v. Barnette, 319 U. S. 624 (1943). It presumably cannot punish criticism of the flag, or the principles for which it stands, any more than it coulcl punish criticism of this country's policies or ideas. But the statute in this case demands no such al1egiance. Its operation does not depend upon whether the flag is m:ed for communicative or noncommunicative purposes; upon whether a particular message is deemed commercial or political; upon whether the use of the flag is respectful or contemptuous; or upon whether any particular segit is by no means an indispensable element of the State's concern about the integrity of the flag. 6 The majority of the Court in Street stated: "We add that disrespect for our flag is to be deplored no less in these vexed times than in calmer periods of our history," 394 U. S., at 594, citing HaUer. SPENCE v. WASHINGTON 423 405 REHNQUIST, J ., dissenting ment of the State's citizenry might applaud or oppose the intended message.7 It simply withdraws a unique national symbol from the roster of materials that may be used as a background for communications. Since I do not believe the Constitution prohibits Washington from making that decision, I dissent. 7 It is quite apparent that the Court does have considerable sympathy for at least the form of appellant's message, describing his use of the flag as "a pointed expression of anguish," ante, at 410, and commenting that "appellant chose to express his own views in a manner that can fairly be described as gentle and restrained as compared to the actions undertaken by a number of his peers." Ante, at 415 n. 10. One would hope that this last observation does not introduce a doctrine of "comparative" expression, which gives more leeway to certain forms of expression when more destructive methods of expression are being employed by others. 424 OCTOBER TERM, 1973 Syllabus 418 U.S. DORSZYNSKI v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 73-5284. Argued March 20, 1974-Decided June 26, 1974 In sentencing a youth offender as an adult under other applicable penal statutes, § 5010 (d) of the Federal Youth Corrections Act requires a federal district court to "find" that the offender would not benefit. from treatment under the Act, but does not require that such "finding" be accompanied by supporting reasons. Pp. 431-444. (a) Section 5010 (d)'s requirement of a "no benefit" finding is not to be read as a substantive standard that must be satisfied to support a sentence outside the Act, for such a reading would not comport with the intent of the Act, as manifested by its legislative history, to increase federal trial judges' sentencing options, or with the traditional doctrine that the sentencing function is exclusively vested in the trial court and is not reviewable if within the terms of the statute. It therefore follows that requiring a statement of supporting reasons to accompany a "no benefit" finding would limit the trial court's senteming discretion since it would only serve to facilitate appellate review of sentencing, contrary to the intent of the Act. Pp. 436-442. (b) Section 5010 ( d) 's "no benefit" finding requirement was designed to insure that the sentencing judge deliberately exercised discretion in choosing not to commit a youth offender to treatment under the Act, such a finding making it dear that the judge was not only aware of the Act's existencr but also of the youth offender's eligibility for treatment thereunder. Once it is made dear that the judge has considered the op1ion of the Act's treatment and rejected it, no appellate review is warranted. Pp. 442- 443. 484 F. 2d 849, reversed and remanded. BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACK:MuN, PoWELJ,, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment,. in which DOUGLAS, BRENNAN, and STEWART, JJ., joined, post, p. 445. DORSZYNSKI v. UNITED STATF.s 425 424 Opinion of the Court Robert H. Friebert, by appointment of the Court, 414 U.S. 1142, argued the cause and filed a brief for petitioner. Gerald P. Norton argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Deputy Solicitor General Frey, Jerome M. Feit, and Joseph S. Davies, Jr.* MR. CHIEF JusTICE BURGER delivered the opinion of the Court. We granted certiorari, 414 U.S. 1091 (1973), to resolve a conflict in the Circuits concerning whether, in sentencing a youth offender under other applicable penal statutes, § 5010 ( d) of the Federal Youth Corrections Act, 18 U. S. C. § 5005 et seq., requires a federal district court first to make an explicit finding, supported by reasons on the record, that the offender would not benefit from treatment under subsection (b) or (c) of § 5010. The Court of Appeals held that such a finding may be implied from the record, 484 F. 2d 849 (CA7 1973). Three Circuits have taken that position,1 and three Circuits have required an explicit finding accompanied by supporting reasons.2 We conclude that while an express finding of no benefit must be made on the *Patricia M. Wald, Daniel A. Rezneck, James F. Flug, Robert Plotkin, and Alvin J. Bronstein filed briefs for the National Legal Aid and Defender Assn. et al. as amici curiae urging reversal. 1 Williams v. United States, 476 F. 2d 970 (CA3 1973); Cox v. United States, 473 F. 2d 334 (CA4 1973) (en bane); United States v. Jarratt, 471 F. 2d 226 (CA9 1972), cert. denied, 411 U. S, 969 (1973); cf. United States v. Walker, 469 F. 2d 1377 (CAI 1972). 2 Brooks v. United States, 497 F. 2d 1059 (CA6 1974); United States v. Kaylor, 491 F. 2d 1133 (CA2 1974) (en bane); United States v. Coefield, 155 U. S. App. D. C. 205, 476 F. 2d 1152 (1973) (en bane); cf. United States v. Schenker, 486 F. 2d 318 (CA5 1973); &ee also Smal,l v. United States, 304 A. 2d 641 (DC Ct. App. 1973). 426 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. record, the Act does not require that it be accompanied by supporting reasons. The judgment of the Court of Appeals is therefore reversed, and the case is remanded to the District Court for further proceedings. I On October 19, 1971, a special agent of the Federal Bureau of Narcotics and Dangerous Drugs made arrangements with petitioner's codefendant, whose case is not before this Court, to purchase approximately 1,000 tablets of lysergic acid diethylamide (LSD) the following day. At the appointed hour on October 20, 1971, the undercover agent was shown approximately 1,000 LSD tablets in the possession of petitioner's codefendan t, who transferred the tablets to the agent. The exhibition and transfer took place in an automobile being driven by petitioner. After the tablets were transferred to the agent but before money had changed hands, petitioner and his codefendant were arrested. The complaint upon which the arrest warrant for petitioner issued charged him with knowingly and intentionally possessing approximately 1,000 tablets of LSD, in violation of 18 U. S. C. § 2 and 21 U. S. C. § 844 (a).3 Subsequent to petitioner's release on his own recognizance, his counsel informed the District Court that petitioner intended to plead guilty to the charge, and requested the completion of a presentence report prior to the plea, as authorized by Fed. Rule Crim. Proc. 32 (c). On February 14, 1972, proceedings were had in the District Court upon the filing of an information, ar- 3 Title 18 U. S. C. § 2 made petitioner punishable as a principal for any offense against the United States committed by his codefendant. Title 21 U. S. C. § 844 (a) makes punishable the knowing or intentional possession of a controlled substance such as LSD when not obtained pursuant to a valid prescription or order, or as otherwise authorized by law. DORSZYNSKI v. UNITED STATES 427 424 Opinion of the Court raignment, plea. and sentence. The Government filed a one-count information charging petitioner and his codefendant with a misdemeanor offense under 18 U. S. C. § 2 and 21 U. S. C. § 844 (a). The Government informed the court that the maximum sentence petitioner and his codefendant, who were first offenders under § 844 (a), could receive was one year in prison, a fine of $5,000, or both; the court was also advised that since petitioner might have been under the age of 26, see n. 9, infra, he "may also be subject to the Federal Youth Corrections Act." 4 App. 6. Petitioner, who was 19 4 The sentencing provisions of the Act, 18 U. S. C. § 5010, are as follows: "(a) If the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation. "(b) If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for trea1ment and supervision pmsuant to this chapter until discharged by the Division as provided in section 5017 (c) of this chapter; or " ( c) If the court shall find that the youth offender may not be able to derive maximum benefit from treatment by the Division prior to the expiration of six years from the date of conviction it may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter for any further period that may be authorized by law for the offense or offenses of which he stands convicted or until discharged by the Division as provided in section 5017 (d) of this chapter. "(d) If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision. " ( e) If the Court desires additional information as to whether a youth offender will derive benefit from treatment under subsection 428 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. years old at the time of the proceeding and had had no prior criminal record, pleaded guilty, as did his codefendant. After inquiry as prescribed by Fed. Rule Crim. Proc. 11 to determine whether there was a basis in fact for petitioner's guilty plea, and whether it was entered voluntarily with understanding of its nature and consequences, 5 the District Court accepted the plea. (b) or (c) it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of the order, or such additional period as the court may grant, the Division shall report to the court its findings." The release of youth offenders committed under § 5010 is governed by 18 U. S. C. § 5017, which provides in part: "(a) The Division may at any time after reasonable notice to the Director release conditionally under supervision a committed youth offender. When, in the judgment of the Director, a committed youth offender should be released conditionally under supervision he shall so report and recommend to the Division. "(b) The Division may discharge a committed youth offender unconditionally at the expiration of one year from the date of conditional release. "(c) A youth offender committed under section 5010 (b) of this chapter shall be released conditionally under supervision on or before the expiration of four years from the date of his conviction and shall be discharged unconditionally on or before six years from the date of his conviction. "(d) A youth offender committed under section 5010 (c) of this chapter shall be released conditionally under supervision not later than two years before the expiration of the term imposed by the court. He may be discharged unconditionally at the expiration of not less than one year from the date of his conditional release. He shall be discharged unconditionally on or before the expiration of the maximum sentence imposed, computed uninterruptedly from the date of conviction." 5 Although petitioner's complaint here is that he was not sentenced under the Act, following his conviction he challenged the validity of his plea in part on the ground that he was not informed that under DORSZYNSKI v. UNITED STATES 429 424 Opinion of the Court Since petitioner desired to be sentenced at this proceeding, the District Court recessed to consider the presentence report, which petitioner's counsel had already read. After recess and before sentencing, petitioner was given his right to allocution, and petitioner's counsel requested the court that petitioner "be placed ... on probation under the Youth Corrections Act." App. 13. See n. 4, supra. Petitioner then received a split sentence which remitted him to the custody of the Attorney General for one year, to serve 90 days' confinement "in a jail-type or treatment" institution, although the judgment mentions only a "jail-type" institution; the execution of the remainder of the sentence was suspended and petitioner was placed on probation for two years upon release from custody. 18 U. S. C. § 3651.6 At no time during the proceeding, including the Act he could have received a sentence of incarceration and supervision up to a period of six years, 18 U. S. C. §§ 5010 (b) and 5017 (c), see n. 4, supra, in asserted violation of Rule 11. The District Court denied relief on this ground; that ruling has not been challenged. 6 There is no contention made that the District Court could not place petitioner on probation under 18 U. S. C. § 3651, as opposed to probation under the Act, 18 U.S. C. § 5010 (a). See United States v. Kurzyna, 485 F. 2d 517 (CA2 1973). Petitioner was released from confinement to probation on May 11, 1972, with the special condition that his probation terminate l\fay 11, 1974. Although by now petitioner may have fully served his sentence, including probation, he still suffers the disabilities accompanying a criminal misdemeanor conviction under 21 U. S. C. § 844 (a). While the provision under which he was sentenced to probation, 18 U. S. C. § 3651, does not provide for relief from these disabilities, the Act does so in 18 U. S. C. § 5021, by its provision for setting aside the conviction of a youth offender: "(a) Upon the unconditional discharge by the division of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and 552-l9l O - 76 - 30 430 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. sentencing, did the District Court make any reference to the Federal Youth Corrections Act. On May 1, 1972, after having filed numerous other post-conviction motions for relief, petitioner filed the motion at issue here, seeking relief pursuant to Fed. Rules Crim. Proc. 32 (d) and 35, and 28 U.S. C. § 2255, on two grounds. The first alleged that his guilty plea was not made understandingly; that issue is not before us. See n. 5, supra. The second alleged that the District Court was without jurisdiction to impose the sentenoe given because the court failed to make a finding that petitioner would not derive benefit from treatment under § 5010 (b) or ( c), as assertedly required by § 5010 (d). Seen. 4, su-pra. The District Court held an evidentiary hearing to consider this motion, as well as other motions pending at that time. All were denied without opinion. The District Court stated at the postthe division shall issue to the youth offender a certificate to that effect. "(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect." Despite the expiration of petitioner's sentence, then, he may still receive the benefit of 18 U. S. C. § 5021 if he is resentenced under the Act. To be eligible to have his conviction set aside under the Act, petitioner would have to be committed under § 5010 (b) or ( c), or placed on probation under § 5010 (a), and achieve the early discharge required by § 5021 (a) or (b). While this might require the imposition of a longer sentence than he originally received, petitioner represents through counsel that he would voluntarily seek resentencing which would place him back on probation. Tr. of Oral Arg. 8, 16-18. The District Court would then be able, as a matter of discretion, to provide the requisite early unconditional discharge. 18 U.S. C. § 5021 (b). DORSZYNSKI v. UNITED STATES 431 424 Opinion of the Court conviction hearing that the Act did not require an affirmative finding that petitioner would not benefit from treatment thereunder before the court could sentence him under other applicable penalty provisions; the court concluded that in committing petitioner for one year under a split sentence "the [District] Court impliedly [held] the Youth Corrections Act not applicable." App. 45. The Court of Appeals affirmed, rejecting the view that trial judges must make an explicit finding that youth offenders would not benefit from treatment under the Act. The Court of Appeals held that such a determination may be implied from the record as a whole and that the imposition of the split sentence upon petitioner after his counsel had raised the possibility of sentencing under that Act satisfied § 5010 ( d). 484 F. 2d, at 851. II The Federal Youth Corrections Act The sole issue in this case is the validity of the sentence imposed by the District Court. Petitioner contends that before any adult sentence may be imposed § 5010 (d) requires, first, that the sentencing judge find explicitly that the convicted defendant would receive no benefit from treatment under the Act and, second, that the sentencing judge must explain the reasons for his finding. We begin with the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.7 Gore v. United States, 357 7 There ii, no contention here that the District Court relied upon improper or inaccurate information. United States v. Tucker, 404 U. S. 443 ( 1972). Petitioner contends he was denied due process because he was deprived of his claimed right to be sentenced under the Act, without a reasoned explanation on the record for the asserted deprivation. We need not address this contention, for it was not raised before the District Court, the Court of Appeals, or in the 432 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. U. S. 386, 393 (1958); Townsend v. Burke, 334 U. S. 736, 741 (1948); Blockburger v. United States, 284 U.S. 299, 305 ( 1932). Our task, therefore, is to determine whether the sentence imposed here was permitted under § 5010 (d) of the Act. The Federal Youth Corrections Act has been accurately described as the most comprehensive federal statute concerned with sentencing. United States v. Coefield, 155 U.S. App. D. C. 205,209,476 F. 2d 1152, 1156 (1973). The Act is in substantial part an outgrowth of recommendations made by the Judicial Conference of the United States more than 30 years ago.8 The principles and procedures contained in the Conference recommendations were in turn largely based on those developed since 1894 for a system of treatment of young offenders in England. known as the Borstal system. See Criminal Justice Act of 1948, 11 & 12 Geo. 6, c. 58, and Criminal Justice Act of 1961, 9 & 10 Eliz. 2, c. 39. Statistics available at the time of the Conference study revealed the two principal motivating factors behind the enactment of the Act: first, the period of life between 16 and 22 years of age was questions presented in the petition for certiorari. Phillips Co. v. Dumas School Dist., 361 U.S. 376, 386 n. 12 (1960); Irvine v. California, 347 U. S. 128, 129-130 (1954); Radio Officers' Union v. NLRB, 347 U.S. 17, 37 n. 35 (1954). 8 In 1941 Mr. Chief Justice Stone requested the Judicial Conference to study the general subject of punishment for crime. The Chief Justice appointed four federal courts of appeals judges and three district judges to the commit.tee which undertook the study. A subcommittee gave particular attention to the treatment of youth offenders. The committee made a report to the Judicial Conference in 1942, and developed a draft of an act to provide a correctional system for adult and youth offenders. The report as adopted by the Conference was first. presented to Congress in 1943. The recommendations regarding youth offenders were largely adopted by Congress in 1949 in the bill which became the Federal Youth Corrections Act in 1950. DORSZYNSKI v. UNITED STATES 433 424 Opinion of the Court found to be the time when special factors operated to produce habitual criminals. Second, then-existing methods of treating criminally inclined youths were found inadequate in avoiding recidivism. H. R. Rep. No. 2979, 81st Cong., 2d Sess., 2-3 (1950) (hereinafter H. R. Rep. No. 2979). The Act was thus designed to provide a better method for treating young offenders convicted in federal courts in that vulnerable age bracket, to rehabilitate them and restore normal behavior patterns. Ibid. To accomplish this objective, federal district judges were given two new alternatives to add to the array of sentencing options previously available to them, see n. 9, infra: first, they were enabled to commit an eligible offender to the custody of the Attorney General for treatment under the Act. 18 U. S. C. §§ 5010 (b) and (c). Second, if they believed an offender did not need commitment, they were authorized to place him on probation under the Act. 18 U. S. C. § 5010 (a). If the sentencing court chose the first alternative, the youth off ender would be committed to the program of treatment created by the Act. The objective of these options represented a departure from traditional sentencing, and focused primarily on correction and rehabilitation. All persons under 22 years of age at the time of conviction were made eligible for probation or treatment under the Act,9 the latter de- 9 The Act is ordinarily not applied to convicted persons under the age of 18, who are eligible for sentencing under the provisions of the Federal .Juvenile Delinquency Act, 18 U. S. C. § 5031 et seq. And certain multiple offenders in the District of Columbia are, despite their qualifying age, barred from sentencing under the Act. D. C. Code Ann. §22-3202 (d)(l). By contrast, convicted persons between the ages of 22 and 26, termed "young adult" offenders, may be sentenced for treatment under the Act if "the court finds that there is reasonable groun[d] to believe that the defendant will benefit from" treatment under the Act. 18 U. S. C. § 4209. Of 434 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. fined as "corrective and preventive guidance and training designed to protect the public by correcting [their] antisocial tendencies." 18 U. S. C. §§ 5006 (e) and (g). To implement the program of treatment for youth off enders committed under the Act, a Youth Correction Division was created under the Board of Parole which, in conjunction with the Bureau of Prisons and the Probation Service, operates to provide the unique features of the Act's program. 18 U. S. C. § 5005. An important element of the program was that once a person was committed for treatment under the Act, the execution of sentence was to fit the person, not the crime for which he was convicted. Classification agencies were to be established by the Director of the Bureau of Prisons to receive and study the person committed and make recommendations to the Director as to appropriate treatment. 18 U.S. C. §§ 5014, 5015. Further, the range of treatment available was made broad to provide maximum flexibility. The Director was authorized both to adapt numerous public facilities, and to contract with public or private agencies, in order to provide institutional treatment which the Director could vary according to the committed person's progress or lack of it. 18 U.S. C. §§ 5011, 5015. An integral part of the treatment program was the segregation of the committed persons, insofar as practicable, so as to place them with those similarly committed, to avoid the influence of association with the more hardened inmates serving traditional criminal sentences. 18 U.S. C. § 50ll. In addition to institutional treatment, the Division was empowered to order conditional release under supervision at any time of those committed under the Act, with fedcourse, adult offenders are eligible for sentencing only under statutory provisions different from those available for juveniles, youth offenders, 9,nd young adult offenders. DORSZYNSKI v. UNITED STATES 435 424 Opinion of the Court eral probation officers providing the supervision.10 18 U. S. C. §§ 5007, 5017, 5019. Conditional release was mandatory after a period of time fixed by the statutory formula. 18 U. S. C. § 5017. See n. 4, supra. The Division was further authorized to order the unconditional discharge of committed persons after a fixed period of treatment, and was required unconditionally to discharge them within a period also fixed by statutory formula. 18 U. S. C. § 5017. A powerful tool available to the Division was its discretion to discharge committed persons unconditionally before it was required to do so, for upon such discharge the conviction upon which the sentence rested would be automatically set aside. 18 U. S. C. § 5021 (a). See n. 5, supra. Similarly, if the sentencing judge chose the second alternative created by the Act, i. e., placement of the youth offender on probation under its provisions, the judge himself could exercise his discretion to discharge the offender from probation unconditionally. 18 U.S. C. § 5021 (b). Seen. 6, supra. This, too, would result in the automatic setting aside of the offender's conviction. 18 U. S. C. § 5021 (b). The foregoing describes the new options of treatment and probation made available to the federal sentencing court under the Act.11 Our concern is not with the op- 10 In 1952, Congress amended § 5024 of the Act, and added §§ 5025 and 5026, in order to extend the Act's coverage to youth offenders convicted in the District of Columbia. 66 Stat. 45. In 1967, Congress further amended these sections, withdrawing from the Bureau of Prisons and the Youth Correction Division control of District of Columbia youth offenders during their commitment and after their release. Control during these periods was instead given to the Commissioner of the District of Columbia, who could in turn delegate this authority to the D. C. Department of Corrections, in order to provide continuity of treatment. 11 In recognition of the difficulty of ascertaining whether, and if so which type of, treatment under the Act would benefit a youth offender, the Act also permits the sentencing court to commit the 436 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. eration of these alternatives, but with the decision of the court to employ them, for the Act also preserved the power of trial judges to sentence youth offenders under "any other applicable penalty provision." It is to the question of when a judge may sentence a youth offender outside the Act that we now turn. III Sentencing Discretion Under the Act (A) The language affecting the sentencing role of the judge under the Act is found in § 5010 ( d), which tells us: "If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision." Our concern is with the effect of the requirement of a "no benefit" finding on the judge's sentenring discretion. The legislative history clearly indicates that the Act was meant to enlarge, not restrict, the sentencing options of federal trial courts in order to permit them to sentence youth offenders for rehabilitation of a special sort. "The proposed legislation is designed to make available for the discretionary use of the Federal judges a system for the sentencing and treatment of [youth offenders] that will promote the rehabilitation of those who in the opinion of the sentencing judge show promise of becoming useful citizens . . . " H. R. Rep. No. 2979, p. 1. (Emphasis added.) offender to one of the above classification agencies where, following observation and study, the Youth Correction Division reports its findings to the court within 60 days. 18 U.S. C. § 5010 (e). 424 DORSZYNSKI v. UNITED STATES 437 Opinion of t he Court "The purpose of the proposed legislation is to provide a new alternative sentenci:ng and treatment procedure for [youth offenders]." S. R ep. Xo. 1180, 81st Cong .. 1st Sess .. 1 ( 1949) (h<'reinafter S. Rep. No. 1180). (Emphasis added.) Thus, apart from the discretion vested in administrative agencies for treatment of those committed under the Act, as described in Part II, the Act was intended to broaden the scope of judicial sentencing discretion to include the alternatives of treatment or probation thereunder. The Act was a product of studies made by a committee of federal judges under the auspices of the Judicial Conference of the rnited States. The views of the sponsors as to the effect of the Act on the sentencing discretion of the trial courts are thus of particular importance, and they uniformly support the view that the Act \YaS intended to preserve the unfettered sentencing discretion of federal district judges. Most pertinent is the statement made by the Chairman of the Judicial Conference special committee appointed to study punishment for crime, seen. 8. supra, Chief Judge John J. Parker. who testified before the Subcommittee of the Senate Judiciary Committee, which conducted the only hearings held on the bill .'. ... ' " under the Act. Cox v. United States, 473 F. 2d 334, 337 (CA4 1973) (en bane) (emphasis added). And, I fundamentally disagree with the Court's holding that merely by tracking the statutory "no benefit" language a sentencing judge can satisfy the "finding" requirement of§ 5010 (d). I would require that the explicit "no benefit" finding be augmented by a statement of the reasons for imposing an adult sentence. I I find no basis in either the language or history of the YCA to support the Court's observation that the Act was intended to "preserve unfettered" the discretion of the sentencing judge. Ante, at 437. The YCA was the product of more than 10 years of study by various groups and was modeled after the English Borstal system, which had achieved substantial success in rehabilitating young offenders.2 The initial legislative proposal, an American Law Institute model Act, removed the power to sentence eligible offenders from the trial judges altogether and reposed that power in a correctional authority.3 Not surprisingly, that proposal 2 H. R. Rep. No. 2979, 81st Cong., 2d Sess., 3-6 (1950). 3 ALI, Model Youth Correction Authority Act §§ 13 and 30 (Official Draft 1940); id., comment, at 35-36. DORSZYNSKI v. UNITED STATES 447 424 MARSHALL, J., concurring in judgment brought swift and sharp criticism from the judges whose power was to be sharply curtailed. The next proposal, by the Judicial Conference, involved shared sentencing powers between trial judges and correctional authorities.4 It met with similar criticism. The 1949 proposal, which was finally enacted into law, retained sentencing power in the trial judge. As the Court today points out, the drafters of the Act repeatedly emphasized that the legislation "'does not interfere with the [sentencing] power of the judge ... .' " Ante, at 437. But even the very first Judicial Conference proposal contained a provision specifically requiring the trial judge to make a finding that a youth offender would not benefit from treatment and should not be committed under the Act, before sentencing him under any other penalty provisions.5 This finding requirement was adapted from the similar Borstal provision which disallows a sentencing court to "impose imprisonment on a person under twenty-one years of age unless ... no other [Borstal] method of dealing with him is appropriate .... " 6 The finding requirement of the Judicial Conference draft was not subject to the same criticism as the provisions which actually removed, rather than limited, the exercise of trial judges' sentencing discretion, and the finding requirement was ultimately enacted into law as § 5010 (d). The finding requirement is an integral part of the YCA scheme. The stated premise of the Act is that young people between the ages of 18 and 22, especially, are promising subjects for rehabilitation.7 The purpose of the legislation was, for those offenders, 4 H. R. 2140, Tit. II, § 3, 78th Cong., 1st Sess. (1943). 5 ld., Tit. III, § 1 (c). 6 Crirninll.l Justice Act of 1948, § 17 (2), 11 & 12 Geo. 6, c. 58. 7 H. R. Rep. No. 2979, supra, at 1-4. 448 OCTOBER TER::vI, 1973 MARSHALL, .J., concurring in judgment 418 U.S. to "substitute for retributive punishment methods of training and treatment designed to correct and prevent antisocial tendencies. It departs from the mere punitive idea of dealing with criminals and looks primarily to the objective idea of rehabilitation." H. R. Rep. No. 2979, 81st Cong., 2d Sess., 3 (1950).8 It is clear that from its very inception. the youth corrections program was intended to establish among the goals judges could consider in sentencing eligible offenders, one as paramountthat of rehabilitation.9 And, in this limited sense, the sentencing discretion of trial judges is necessarily circumscribed in regard to youth offenders. The finding requirement of § 5010 ( d) effectuates this policy by permitting eligible offenders to be deprived of the rehabilitative treatment provided under the Act only where they would not benefit therefrom. The Senate Report accompanying the bill explained the circumstances under which adult sentencing would be proper: "If ... the judge is convinced the youth is incorrigible and would derive no help from the program, he may sentence him under any applicable provision of law." S. Rep. No. 1180, 81st Cong., 1st Sess., 5 (1949) . Other aspects of the legislative history underscore Congress' intention that the Act provide a preferred sentencing alternative for eligible offenders. Senator Kilgore, one of the sponsors of the legislation, observed that given the requisite finding "only about 10 percent of [ eligible 8 Although the rehabilitative model of corrections has recently been subject to criticism, the fact remains that Congress established a clear preference for the objective of rehabilitation in enacting the YCA. 9 See, e. g., United States v. Kaylor, 491 F. 2d 1133, 1136 (CA2 1974) (en bane); United States v. Waters, 141 U.S. App. D. C. 289, 293, 437 F. 2d 722, 726 (1970); Carter v. United States, 113 U. S. App. D. C. 123, 125, 306 F. 2d 283, 285 (1962). DORSZYNSKI v. UNITED STATES 449 424 MARSHALL, J., concurring in judgment offenders would] eventually have to [be] sentence [ d as adults], or less." Hearing on S. 895 before a Subcommittee of the Senate Committee on the Judiciary, 78th Cong., 1st Sess., 13 (1943). The House Report concluded that even given the instances in which YCA rehabilitative treatment would fail "more than 70 percent [ of eligible youth offenders] can be rehabilitated" under the Act. H. R. Rep. No. 2979, supra, at 10. The panoply of treatment options 10 available under the Act is but further evidence that the YCA program was intended to be sufficiently comprehensive to deal with all but the "incorrigible" youth. This congressional intent finds clear expression in the words of the statute. Section 5010 ( d) does not say the sentencing court must merely consider the treatment option provided by the Act; it says in the most uncompromising terms that the court must find the youth "will not benefit" from YCA treatment as a prerequisite to imposing an adult sentence. The use of the words "shall find" emphasizes the mandatory nature of that finding. The specific quality of the finding is underscored by § 5010 ( e) which provides for an eligible off ender to be temporarily committed for observation and study for the purpose of providing the sentencing court with a report on the particular question defined by § 5010 (d)- whether the youth offender would benefit from treatment under the Act.11 10 Emulating the Borstal system, Congress authorized a comprehensive youth corrections system, making a wide range of treatment options available to youth offenders. It mandated that maximum, medium, and minimum security institutions be utilized, 18 U. S. C. § 5011, that Jong- and short-term treatment be provided, compare 18 U.S. C. § 5010 (b) with 18 U.S. C. § 5010 (c), and that a wide range of treatment services be available. 18 U.S. C. §§ 5011, 5015. 11 "If the court desires additional information as to whether a youth off ender will derive benefit from treatment under subsection 450 OCTOBER TER:'.\i, 1973 MARSHALL, J., concurring in judgment 418 U.S. Thus, while the Act does not remove a trial judge's responsibility or discretion for the sentencing determination, it does provide a preferred disposition for eligible offenders. A sentencing judge is not required to sentence a youth offender under the Act; the judge can still exercise his "sound discretion to deny such rehabilitative treatment to those youths in the exceptional cases where the judge determines that the special youth treatment afforded by the Act would be of no value." United States v. Waters, 141 U. S. App. D. C. 289, 291, 437 F. 2d 722, 724 (1970). The legislative history relied on by the Court merely emphasizes this point-that the Act was intended to be another sentencing alternative available to the trial judge and that the decision as to whether it should be employed in a particular case remains a decision committed to his discretion. That history is not, however, inconsistent with what seems to me the plain meaning of the words of the statutethat the sentencing judge's discretion is circumscribed by the affirmative finding requirement of § 5010 (d).12 The YCA "provides a preferred sentencing alternative" which must be used in sentencing a youth unless the facts of the individual case meet the statutory requirement- (b) or ( c) it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of the order, or such additional period as the court may grant, the Division shall report to the court its findings." 18 U. S. C. § 5010 (e) ( emphasis added). 12 An unsuccessful effort to remove these bonds on the discretion of sentencing judges was made in 1972, when a bill was introduced to amend 18 U.S. C. § 5010 (d) to provide that: "Nothing in this chapter shall be construed to preclude the court, in any case, from sentencing a youth offender under any other applicable penalty provision.'' S. 3290, 92d Cong., 2d Sess. (19'12); see 118 Cong. Rec. 6776--6788 (1972). The proposed amendment was not enacted. DORSZYNSKI v. UNITED STATES 451 424 MARSHALL, J., concurring in judgment unless, in the language of § 5010 ( d), the court finds that the youth offender will not derive benefit from treatment under the Act.13 Cox v. United States, 473 F. 2d, at 337; United States v. Waters, 141 U.S. App. D. C., at 292--293, 437 F. 2d, at 725-726. Every Court of Appeals which has considered the issue, except the court below, has agreed that the manner in which the sentencing judge exercises his discretion is thus limited. Brooks v. United States, 497 F. 2d 1059 (CA6 1974); United States v. Kaylor, 491 F. 2d 1133 (CA2 1974) (en bane); United States v. Schenker, 486 F. 2d 318 (CA5 1973); United States v. Coefield, 155 U. S. App. D. C. 205, 476 F. 2d 1152 (1973) (en bane); Cox v. United States, supra; WiUiams v. United States, 476 F. 2d 970 (CA3 1973); see United States v. MacDonald, 455 F. 2d 1259, 1265 (CAI 1972); 1 • cf. Small v. United States, 304 A. 2d 641 (DC Ct. App. 1973). In a sense, the Court today also recognizes the inherent limitation on the judge's discretion imposed by § 5010 ( d) by requiring an explicit "no benefit" finding as a prerequisite to adult sentencing. As conceived by the Court, however, the required "no benefit" finding is no finding at all, but merely a ritualistic invocation of the statutory language. In explaining why the "no benefit" finding 13 The requirement of a positive finding of "no benefit" to support an adult sentence under § 5010 (d) is merely the obverse of the requirement of 18 U. S. C. § 4209 that as a prerequisite to young adult offender sentencing the sentencing "court finds that there is reasonable grounds to believe that the defendant will benefit from [such] treatment .... " See United Stat~ v. Kaylor, 491 F. 2d, at 1137. "Subsequently in United States v. Walker, 469 F. 2d 1377 ( 1972), the Court of Appeals for the First Circuit agreed that the Act precluded adult sentencing where the offender would derive benefit from treatment under the Act, but found it clear from the nature of the offenses involved that the defendant had no antisocial tendencies to be corrected, hence no benefit to be derived from YCA treatment. Id., at 1381 n. 4. 452 OCTOBER TERM, 1973 MARSHALL, J ., concurring in judgment 418 U.S. must be explicit, the Court notes that" [ t] o hold that a 'no benefit' finding is implicit each time a sentence under the Act is not chosen would render § 5010 (d) nugatory." Ante, at 444. Despite these protestations, the Court today renders the finding requirement of § 5010 ( d) a nullity. By holding that the Act was intended to preserve "the unfettered sentencing discretion of federal district judges," ante, at 437, and that sentencing judges need only have "considered the option of treatment under the Act and rejected it," ante, at 443, the Court effectively reads the unambiguous mandate of a "no benefit" finding out of the Act. A mere parroting of the statutory language is hardly an affirmative finding. The Court's opinion seems to indicate that the sentencing judge need not mean what he says when he pronounces the "no benefit" litany. Although the Court requires him to go through the charade of saying that the offender would not benefit from treatment under the Act, it apparently does not require that the judge actually find no benefit but only that he be aware of the Act and reject it. I think it remarkable that this Court should approve such an empty and duplicitous ritual. II If the Court were to hold that the Act limited a trial judge's discretion by requiring that he actually find a youth offender would not benefit from YCA treatment before sentencing him as an adult, I would think that more than a mere recitation of the conclusory finding of "no benefit" should be required. To say that simply invoking the words of the statute satisfies the mandate of § 5010 ( d) affords far too little credence both to Congress' deep concern for the rehabilitative potential of young offenders and to its obvious intention that eligible offenders be sentenced under the Act if they would benefit from its rehabilitative programs. To give effect to these concerns, I would require that the trial judge include, on the DORSZYNSKI v. UNITED STATES 453 424 MARSHALL, J ., concurring in judgment record, a statement which makes clear that he considered the provisions of the Act, weighed the treatment option available, and decided in light of his familiarity with the offender that he would not derive benefit from treatment under the Act.15 The mere recitation of the "no benefit" litany can hardly bear the weight of demonstrating such compliance. By taking the unusual step of requiring a specific finding in this limited but highly important area of sentencing, Congress mandated a reasoned determination that the offender would not benefit from the rehabilitative treatment available under the Act. Accordingly, in my view, a statement of the factors which informed and shaped the sentencing decision must accompany the conclusory finding of "no benefit" if that congressional purpose is to be served. The Borstal system, which provided the model for the youth corrections scheme in general and the requirement of§ 5010 (d) in particular, envisions a trial judge stating his reasons for sentencing an eligible offender as an adult.'A Similarly, most of the Courts of Appeals which 15 See Brooks v. United States, 497 F. 2d 1059, 1062-1063 (CA6 1974); United States v. Kaylor, 491 F. 2d, at 1139; United States v. Coefield, 155 U. S. App. D. C. 205, 210-211, 476 F. 2d 1152, 1157- 1158 (1973) (en bane). 16 Criminal Justice Act of 1948, § 17 (3), 11 & 12 Geo. 6, c. 58. The Court asserts, ante, at 440 n. 14, that the reference to the English Borstal system made in drafting the Act "did not include the English view of the trial court's discretion to make use of that system." To support this claim, the Court relies on two general descriptions of American sentencing procedures made a decade after enactment of the legislation. Those comments were not directed to the administration of the YCA, hence their validity as indicia of congessionaJ intent in this limited context is questionable at best. On the other hand, there is considerable evidence that the Borstal system did, in fact, provide a model on the question of the trial court's sentencing discretion, not the least of which is the marked 454 OCTOBER TERM, 1973 MARSHALL, J., concurring in judgment 418 U.S. have faced the issue have required a statement of reasons as a necessary concomitant of the § 5010 ( d) finding. A unanimous en bane decision of the Court of Appeals for the Second Circuit and a near-unanimous en bane decision of the Court of Appeals for the District of Columbia Circuit 11 have found a statement of reasons supporting the "no benefit" finding to be " 'essential to a knowledgeable administration of the Act .... '" United States v. Kaylor, 491 F. 2d, at 1139; United States v. Coefield, 155 U. S. App. D. C., at 210, 476 F. 2d, at 1157. The Court of Appeals for the Sixth Circuit has, more recently, held that a statement of reasons accompanying adult sentencing is "necessary to insure that the sentencing court ... has deliberately considered whether a youth offender may benefit from the treatment provided for in the Act .... " Brooks v. United States, 497 F. 2d, at 1063. Similarly, the Court of Appeals for the Fourth Circuit recently remanded a case for consideration of whether treatment under the Act would be beneficial to the offender and specifically ordered the trial judge to state the reasons for his conclusion. Cox v. United States, 473 F. 2d, at 337. In fact, the court below is the only Court of Appeals to specifically disavow a requirement of reasons for a§ 5010 (d) sentence.18 similarity between 18 U.S. C. § 5010 (d) and the Criminal Justice Act of 1948, § 17 (2), 11 & 12 Geo. 6, c. 58, both of which require a nobenefit finding as a prerequisite to adult sentencing. 17 Only Judge MacKinnon, of the 10 participating judges on the Court of Appeals for the District of Columbia Circuit, dissented from that court's en bane decision in Coefield, supra. 18 The First Circuit in United States v. MacDonald, 455 F. 2d 1259, 1265 (1972), remanded a case to the District Court "to make the findings required by the Federal Youth Corrections Act," leaving unclear whet her those findings encompassed a statement of reasons. The Third Circuit specifically reserved the issue in Williams v. United States, 476 F. 2d 970 (1973). The Fifth Circuit, in its only case on the issue, remanded for appropriate findings under DORSZYNSKI v. UNITED STATES 455 424 MARSHALL, ,T., concurring in judgment Contrary to the Court's assertion that appellate review is the only purpose to be served by a statement of reasons, that requirement serves a number of other important policies. First, it might well contribute to rationalizing the sentencing process and to decreasing disparities in sentences. Articulating reasons should assist a trial judge in developing for himself a consistent set of principles on which to base his sentencing decisions. Requiring" [s] uch a procedure would encourage the judge to clarify and justify, in his own mind, the grounds for the sentence he chooses. As a result, sentencing decisions would tend, on the whole, to be more carefully thought out." United States v. Velazquez, 482 F. 2d 139, 142 (CA2 1973); accord, United States v. Brown, 479 F. 2d 1170, 1172 (CA2 1973). The reasons may also be of use to correctional authorities in their handling of the prisoner after sentence. The kind of correctional and rehabilitative treatment an offender receives should take into account the reasons for his sentence. A disclosure of reasons may also aid the defendant's counsel to insure that the sentence is not premised on misinformation or inaccuracies in the material upon which the sentencing judge relies. "A Sphinx-like silence on the court's part precludes anyone (including the parties, [and] the judge ... ) from learning whether he acted in error." Id., at 1173; cf. United States v. Tucker, 404 U.S. 443 ( 1972). § 5010 (d) without explanation as to whether an ultimate finding of no benefit was alone sufficient. United States v. Schenker, 486 F. 2d 318 (1973). A case specifically ,dealing with the reasons requirement, Hoyt v. United States, No. 73-2435, is presently pending before the Fifth Circuit. The Ninth Circuit called for an expm;s no-benefit finding but has not faced the question of whether reasons are required in support thereof. United States v. Jarratt, 471 F. 2d 226 (1972). 456 OCTOBER TERM, 1973 MARSHALL, J., concurring in judgment 418 u. s. Moreover, an articulation of reasons may actually contribute to the offender's rehabilitation by avoiding any feeling that his sentence was arbitrary.19 As MR. JusTICE (then Judge) STEWART observed: "Justice is measured in many ways, but to a convicted criminal its surest measure lies in the fairness of the sentence he receives. . . . It is an anomaly that a judicial system which has developed so scrupulous a concern for the protection of a criminal defendant throughout every other stage of the proceedings against him should have so neglected this important dimension of fundamental justice." She,pard v. United States, 257 F. 2d 293, 294 (CA6 1958). If reasons were articulated for the sentencing decision, an offender would be less apt to perceive his fate as being arbitrarily determined.20 Reasoned decisions may even enhance the legitimacy of the sentencing process as perceived by the general public for, as noted by the Report of the American Bar Association Project on Standards for Criminal Justice: "It is hardly commanding of public respect for our system on the one hand to increase the alternatives of the sentencing judge so that he can shape his sentence to fit each case, and on the other hand to 19 A lea.ding federal district judge has observed that "[t]he absence of any explanation or purported justification for t he sentence is among the more familiar and understandable sources of bitterness among people in prison." :'vl. Frankel, Criminal Sentences, Law Without Order 42-43 ( 1972). 20 There may, of course, be circumstances in which it would not be advisable to state the reasons underlying imposition of a particular sentence in the presence of the defendant, in which case those reasons could instead be committed to writing and made part of the record. 424 DORSZYNSKI v. UNITED STATES 457 MARSHALL, J., concurring in judgment take the position that he need not explain why he selects a particular sentence .... " 21 Although these considerations apply to sentencing decisions generally,22 I do not mean to suggest that reasons are required in any other sentencing context. Contrary to the majority's accusations, my view of the Act does not require wholesale abandonment of "traditional sentencing doctrine." Ante, at 440. We are concerned here with only a limited, albeit important, area of sentencing for which Congress has established special rules. Congress' urgent concern for the rehabilitative potential of young offenders and the specific-finding requirement of § 5010 ( d) make the need for reasons particularly compelling in this context. Requiring a statement of reasons would encourage trial judges to direct their attention to the crucial questions of benefit and treatment, to take a hard look at the relevant factors, and to focus on value judgments inherent in their sentencing decision. See United States v. Phillips, 156 U. S. App. D. C. 217, 479 21 American Bar Association Project on Standards for Criminal Justice, Appellate Review of Sentences 2-3 (Approved Draft 1968). 22 For a general discussion of the value of a statement of the reasons underlying the imposition of sentence, see United States v. Phillips, 156 U. S. App. D. C. 217, 479 F. 2d 1200 (1973); United States v. Velazquez, 482 F. 2d 139, 142 (CA2 1973); United States v. Brown, 479 F. 2d 1170, 1172 (CA2 1973); American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 5.6 (ii) and commentary (b), pp. 270-271 (Approved Draft 1968); id., Appellate Review of Sentences§ 2.3 (c) and commentary (e), pp. 45--47 (Approved Draft 1968); M. Frankel, Criminal Sentences, Law Without Order 39-49 (1972); R. Goldfarb & L. Singer, After Conviction 191-195 (1973); Wyzanski, A Trial Judge's Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1292- 1293 (1952); Youngdahl, Remarks Opening the Sentencing Institute Program, 35 F. R. D. 387, 388 (1964); cf. North Carolina v. Pearce, 395 U.S. 711, 726 (1969); Kent v. United States, 383 U.S. 541, 561 (1966). 458 OCTOBER TERM, 1973 MARSHALL, J., concurring in judgment 418 U.S. F. 2d 1200 ( 1973). It is clearly consonant with the Act to require such reasoned consideration. I must agree with the perceptive observations of Senior Judge Fahy of the District of Columbia Circuit that requiring a statement of reasons is essential to assure: "firstly, that the District Judge manifest not only an awareness that the Act is applicable to the case, but also an accurate understanding of the scope of his discretion under the Act; secondly, that the District Judge has been informed of the pertinent facts relating to the individual defendant before him, either by evidence coming to his attention in the trial, by a presentence report, or by a recommendation and report made under section 5010 (e); and thirdly, that the District Judge, by his statement of reasons where required, has given consideration and related the facts of the individual case to the applicable law." United States v. Coefield, 155 U.S. App. D. C., at 210-211, 476 F. 2d, at 1157-1158 (footnote omitted). Section 5010 (e) of the Act provides a mechanism for the trial judge to secure the expert assistance of correctional authorities in determining whether an eligible offender would benefit from treatment. I agree with the two Courts of Appeals which have passed on the issue that: "[W] hen a judge has availed himself of the assistance afforded by§ 5010 (e), that is to say, where he has ordered the youth offender committed . . . for observation and study . . . and the Division has made its report to the court, and after considering the report has followed its findings or recommendation in imposing sentence, additional reasons are not required to be stated, although, of course, the 424 DORSZYNSKI v. UNITED STATES 459 MARSHALL, J., concurring in judgment judge is not prevented from stating his own reasons." United Stales v. Kaylor, 491 F. 2d, at 1139. Accord, United States v. Coefield, 155 U. S. App. D. C., at 210, 476 F. 2d, at 1157. But the Act clearly intended that the ultimate sentencing decision remain with the trial judge. That decision should not pass by abdication to the correctional authorities who prepare the§ 5010 (e) study. Thus, where a trial judge secures a § 5010 (e) report, he should adopt its reasons as his own only after assuring himself of the adequacy of the report and propriety of its recornmendation.23 I see no reason to reach here the issue of appellate review of the District Court's imposition of an adult sentence. I believe that the Youth Corrections Act provides a preferred-sentencing alternative which can only be abandoned on the basis of a finding that an eligible offender will not benefit from treatment under the Act. The District Court imposed sentence on the assumption that the YCA was not a preferred disposition and no finding was required. The Court today finds the District Court's sentence invalid only for failure to make the required "no benefit" finding. Under either the Court's view or my own, the appellate-revie,v question is clearly not yet presented by this case." Accordingly, I concur in the judgment of the Court insofar as it reverses and remands because the District Court failed to make the requisite "no benefit" finding. I disagree, however, with the opinion of the Court inso- 2" See, e. g .. United States v. Norcome, 375 F. Supp. 270 (DC 1974); United States v. Tillman, 374 F. Supp. 215 (DC 1974). "Respondent agrees that should this Court determine that the YCA provides a preferred-sentencing alternative for eligible offenders, then the Court need not rearh in this case the issue of appellate review sinre the District Court never considered itself bound by such a standard. Brief for United States 40-41. 460 OCTOBER TER11, 1973 MARSHALL, .T., concurring in judgment 418 U.S. far as it suggests that a merely conclusory statement of "no benefit" satisfies the statutory requirement and insofar as it purports to pass, albeit in dicta, on the question of appellate review of a § SO 10 ( d) adult sentence, an issue not before this Court. WINGO v. WEDDING Syllabus WINGO, WARDEN v. WEDDING 461 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 73-846. Argued April 22, 1974-Decided June 26, 1974 Following enactmmt of the Federal Magistrates Act, the United States District Court for the Western District of Kentucky amended its Local Rule 16 to provide that in addition to submitting such other reports and recommendations as may be required concerning petitions for writs of habeas corpus from state prisoners the full-time magistrate shall "schedule and hear evidentiary matters . . . [to be electronically recorded] deemed by the Magistrate to be necessary and proper in the determination of ... such petition, and to report. thereon with an appropriate recommendation for the disposition thereof to the District Judge [who] ... [u]pon ... request ... shall proceed to hear the recording of the testimony . . . and give it de novo consideration." Respondent, a state prisoner, whose petition for habeas corpus was assigned to a full-time Magistrate for processing, claimed that the Rule is invalid and filed a motion with the District Court that the Magistrate be disqualified from holding the habeas corpus hearing and that the hearing be assigned to a district judge. The District Court denied the motion; the Magistrate proceeded with the hearing; and thereafter he transmitted the electronic recording to the District Court along with his written findings and conclusions remmmending dismissal. The District Court, following respondent's motion for a de nova hearing, listened to the recording, on the basis of which, together with the Magistrate's findings and conclusions, it dismissed the petition. The Court of Appeals reversed, holding that, notwithstanding a formal revision of the habeas corpus statute, 28 U. S. C. § 2243, the construction of the predecessor statute given in Holiday v. Johnson, 313 U. S. 342, still applied, to the effect that the statute plainly accorded a prisoner seeking habeas corpus relief the right of testifying before a judge. Held: 1. Title 28 U. S. C. § 2243, like its predecessor, Rev. Stat. § 761, requires that the district judge personally conduct evidentiary hearings in federal habeas corpus cases. Holiday v. Johnson, 552-191 0 - ?6 - 32 462 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. supra; United States v. Hayman, 342 U.S. 205, 231 n. 16; Brown v. Allen, 344 U. S. 443, 462--463. Pp. 468-469. 2. It is clear from the text and legislative history of the Magistrates Act that Congress did not intend to alter the requirements of 28 U. S. C. § 2243, and therefore Local Rule 16, insofar as it authorizes the full-time magistrate to hold habeas corpus evidentiary hearings, is invalid because it is "inconsistent with the ... laws of the United States" under§ 636 (b) of the Act, and because § 636 (b) itself precludes a district judge from assigning a magistrate the duty of conducting an evidentiary hearing and limits the magistrate's review to proposing, not holding, such a hearing. Pp. 469-473. 3. The invalidity of Local Rule 16 is not cured by the procedure relating to electronic recording, which does not enable the district judge to evaluate credibility by personally hearing and observing the witnesses. Pp. 473--474. 483 F. 2d 1131, affirmed. BRENNAN, J., delivered the opm1on of the Court, in which DOUGLAS, STEWART, MARSHALL, BLACKMUN' POWELL, and REHNQUIST, JJ., joined. BURGER, C. J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 474. James M. Ringo, Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the brief was Ed W. Hancock, Attorney General. Joseph G. Glass argued the cause and filed a brief for respondent.* MR. JUSTICE BRENNAN delivered the opm10n of the Court. The question here is whether federal magistrates are authorized to conduct evidentiary hearings in federal habeas corpus cases. In 1968, Congress enacted the *Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and Frederick R. Millar, Jr., and Shunji Asari, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affinnance. WINGO v. WEDDING 463 461 Opinion of the Court Federal Magistrates Act, 28 U. S. C. §§ 631-639, to upgrade and expand the former United States commissioner system. The Act authorizes magistrates to exercise all powers formerly exercised by United States commissioners, 1 and also, as a means of relieving the caseload burden of the federal district judges, empowers magistrates to try minor offenses when all parties consent,2 and to perform such additional duties assigned by the district court as are "not inconsistent with the Constitution and laws of the United States." 3 Pursuant to 1 Commissioners had been empowered by the Federal Rules of Criminal Procedure to give oaths (Rule 3); issue arrest warrants (Rule 4); conduct preliminary examinations of arrestees (Rule 5); issue subpoenas (Rule 17); issue warrants of removal to another district (Rule 40); and release defendants on bail (Rule 46). In addition, commissioners were authorized to try persons accused of petty offenses (defined by 18 U. S. C. § 1 (3) as crimes for which the penalty does not exceed imprisonment for six months or a fine of not more than $500 or both) committed within the confines of federal enclaves, 62 Stat. 830. In civil cases commissioners were limited to administering oaths and taking bail, acknowledgments, affidavits, and depositions. 62 Stat. 917. 2 Unlike the more restricted criminal trial jurisdiction of the former commissioners, see n. 1, supra, the authority of magistrates extends to minor offenses committed anywhere within the judicial district and includes crimes punishable by imprisonment not exceeding one year, or a fine of not more than $1,000, or both. 3 The Federal Magistrates Act, 28 U. S. C. § 636 (b), provides: "(b) Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted t o- " ( 1) service as a special master in an appropriate civil action 464 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. the Act, the Judges of the United States District Court for the Western District of Kentucky amended Local Rule 16 of that court to provide: "In addition to submitting such other reports and recommendations as may be required concerning petitions for writs of habeas corpus from state prisoners the full-time Magistrate is directed to schedule and hear evidentiary matters deemed by the Magistrate to be necessary and proper in the determination of each such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge having jurisdiction of the case. The Magistrate shall cause the testimony of such hearing to be recorded on suitable electronic sound recording equipment. He shall submit his proposed findings of fact and conclusions of law to the proper Judge for his consideration, copies of which shall be provided a.t that time to the petitioner and respondent, and the Magistrate shall expeditiously transmit the proceedings, including the recording of the testimony, to the proper District Judge. Upon written request of either party, filed within ten days from the date such is so transmitted to the District Judge having jurisdiction thereof, the District Judge shall proceed to hear the recording of the testimony given at the evidentiary hearing and give it de novo consideration." pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts; "(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and "(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing." WINGO v. WEDDING 465 461 Opinion of the Court Respondent is a state prisoner whose petition for federal habeas corpus relief was assigned by the District Court to a full-time Magistrate for processing under the rnle. The part of the rule challenged here is that which directs the full-time magistrate "to schedule and hear evidentiary matters [ to be electronically recorded] deemed by the Magistrate to be necessary and proper in the determination of . . . such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge [ who J ... [ u] pon ... request ... shall proceed to hear the recording of the testimony ... and give it de novo consideration." The question is whether this portion of the rule is invalid because "inconsistent with the ... laws of the United States" within the meaning of the Federal Magistrates Act, 28 U. S. C. § 636 (b), or because § 636 (b) itself should be construed to preclude district courts from assigning such duties to magistrates. I Respondent, Carl James Wedding, is a prisoner in the Kentucky State Penitentiary serving a life sentence imposed in 1949 by the Webster Circuit Court, Commonwealth of Kentucky, after a plea of guilty to a charge of willful murder. Wedding filed this petition for habeas corpus in 1971. After the Court of Appeals for the Sixth Circuit reversed the initial dismissal of his petition, 456 F. 2d 245 (1972), and remanded for an evidentiary hearing, the District Court invoked Local Rule 16 and assigned the case to a full-time Magistrate to hold the hearing. Wedding promptly moved that the Magistrate be disqualified and the hearing be reassigned to a District Judge, on the ground that the Federal Magistrates Act did not authorize district courts to assign to magistrates the duty to hold habeas corpus evidentiary hearings. When the District Court denied the motion, the Magistrate pro466 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. ceeded with the hearing, and electronically recorded all testimonial evidence as required by Local Rule 16. Thereafter, the Magistrate transmitted the recording of the testimony to the District Judge and submitted written findings of fact and conclusions of law recommending that the petition be dismissed. Wedding moved that the District Court give the matter a de novo hearing. The District Judge's response was to listen, as authorized by Local Rule 16, to the recording of the hearing before the Magistrate. On this basis and the Magistrate's findings and conclusions, the District Court entered an order dismissing respondent's petition. On appeal, Wedding renewed his challenge to Local Rule 16, relying upon Holiday v. Johnston, 313 U.S. 342 ( 1941). Holiday was also a federal habeas corpus case. There, after determining that the petition for writ of habeas corpus alleged facts which, if proved, would entitle the petitioner to relief, the District Judge issued a writ compelling the respondent to produce the petitioner before a designated United States Commissioner. The Commissioner held an evidentiary hearing at which the petitioner testified and the respondent submitted the depositions of two witnesses. On the basis of the evidence received, the Commissioner made findings of fact and stated conclusions of law recommending that the writ be denied. After hearing oral argument on the Commissioner's report, the District Judge entered an order discharging the writ. This Court reversed, holding that the factfinding procedure employed failed to conform to Congress' express command in the Habeas Corpus Act that "[t]he court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require." Rev. Stat. § 761, WINGO v. WEDDING 467 461 Opinion of the Court 28 U. S. C. § 461 (1940 ed.) (emphasis added). The Court held that the statute plainly accords a prisoner the right of testifying before a judge, stating: "One of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony. Plainly it was intended that the prisoner might invoke the exercise of this appraisal by the judge himself. We cannot say that an appraisal of the truth of the prisoner's oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts. "The District Judge should himself have heard the prisoner's testimony and, in the light of it and the other testimony, himself have found the facts and based his disposition of the cause upon his findings." Holiday v. Johnston, supra, at 352, 353-354. Wedding contended that neither the text nor legislative history of the Federal Magistrates Act evidences a congressional intent to overrule Holiday. The Court of Appeals agreed and accordingly "vacate[d] the judgment of dismissal and remand [ ed] the case with instructions that the [District] Court itself hold an evidentiary hearing on [Wedding's] constitutional claims." 483 F. 2d 1131, 1137 (CA6 1973). We granted certiorari, 414 U.S. 1157 (1974). We affirm.4 4 We thus agree with the Court of Appeals that this case does not require resolution of the question whether Congress constitutionally may enact legislation vesting authority, pursuant to rule or order of court, in magistrates to hold evidentiary hearings on habeas corpus petitions. We indicate no views as to the validity of investing such authority in a magistrate or other officer "outside the pale of Article III of the Constitution." 483 F. 2d 1131, 1133 n. 1 (CA6 1973). 468 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. II Under our constitutional framework, the "great constitutional privilege'' of habeas corpus, Ex parte Bollman 4 Cranch 75, 95 (1807) (Marshall, C. J.), has historically provided "a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release." Fay v. Noia, 372 U.S. 391, 401-402 (1963). More often than not, claims of unconstitutional detention turn upon the resolution of contested issues of fact. Accordingly, since the Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385, Congress has expressly vested plenary power in the federal courts "for taking testimony and trying the facts anew in habeas hearings .... " 5 Fay v. Noia, supra, at 416. See also Townsend v. Sain, 372 u. s. 293, 312 ( 1963). In connection with the 1948 revision and recodification of the Judicial Code," Rev. Stat. § 761, construed in Holiday, and other procedural provisions of the Habeas Corpus Act were consolidated into 28 U. S. C. § 2243. The pertinent portion covering habeas corpus evidentiary hearings provides that " [ t] he court shall summarily hear and determine the facts, and dispose of the matter as law and justice require." The Revisers thus deleted some 5 The relevant portion of the Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385, provides that the "court or judge shall proceed in a summary way to determine the facts of the case, by hearing testimony and the arguments of the parties interested, and if it shall appear that the petitioner is deprived of his or her liberty in contravention of the constitution or laws of the United States, he or she shall forthwith be discharged and set at liberty." 6 62 Stat. 869. WINGO v. WEDDING 469 461 Opinion of the Court words from Rev. Stat. § 761, but the Revisers' Notes accompanying § 2243, together with the reports of the Committee of the Judiciary of the Senate,7 and of the House,8 make abundantly clear that the word changes and omissions in Rev. Stat. § 761 were intended only as changes in form.9 Accordingly, the construction of § 2243 has been that given § 761 in Holiday. United States v. Hayman, 342 U.S. 205,213 n. 16 (1952); Brown v. Allen, 344 U.S. 443, 462-463 (1953). The Court held in the latter case: "A federal judge on a habeas corpus application is required to 'summarily hear and determine the facts, and dispose of the matter as law and justice require,' 28 U. S. C. § 2243. This has long been the law. R. S. § 761, old 28 U.S. C. § 461." Ibid. (emphasis added). III Our inquiry is thus narrowed to the question whether the Federal Magistrates Act changed the requirement of § 2243 that federal judges personally conduct habeas corpus evidentiary hearings. Certainly nothing in the text 7 S. Rep. No. 1559, 80th Cong., 2d Sess., 2 (1948). 8 H. R. Rep. No. 308, 80th Cong., 1st Sess., A178 (1947). 9 See also J. Moore, Commentary on the U. S. Judicial Code 436 n. 78 ( 1949) ; Payne v. Wingo, 442 F. 2d 1192, 1194 (CA6 1971). Had any substantive change in the meaning of Rev. Stat. § 761, as construed in Holiday v. Johnston, been intended, the Revisers' Notes would have called attention to the change. William W. Barron, the Chief Reviser of the Code, explained: "[NJ o changes of law or policy will be presumed from changes of language in revision unless an intent to make such changes is clearly expressed. Mere changes of phraseology indicate no intent to work a change of meaning but merely an effort to state in clear and simpler terms the original meaning of the statute revised." Barron, The Judicial Code 1948 Revision, 8 F. R. D. 439, 445-446. See also S. Rep. No. 1559, 80th Cong., 2d Sess., 2 (1948); H. R. Rep. No. 308, 80th Cong., 1st Sess., 7 ( 1947). 470 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. or legislative history of the Magistrates Act suggests that Congress meant to change that requirement.10 Rather, both text and legislative history plainly reveal a congressional determination to retain the requirement. For, although the Act gives district judges broad authority to assign a wide range of duties to magistrates, Congress carefully circumscribed the permissible scope of assignment to only "such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U. S. C. § 636 (b) ( emphasis added). And in defining assignable duties, Congress decreed that the duty of holding evidentiary hearings was not assignable. This clearly emerges from the legislative history of subsection (3) of§ 636 (b), which provides: "(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing." (Emphasis added.) That legislative history reveals that the Judicial Conference of the United States objected to successive phrasings of subsection (b) (3) until it was phrased to make clear that the authority given district courts to assign duties to magistrates did not include authority to hold evidentiary hearings on applications for post trial relief .11 10 A full discussion of the legislative history of the Federal Magistrates Act will be found in TPO, Inc. v. McMillen, 460 F. 2d 348 (CA7 1972). 11 Where Congress gave magistrates authority to conduct hearings, the authority was express and circumscribed with procedural safeguards. Thus 28 U. S. C. § 636 (a) (3) gives magistrates jurisdiction to conduct trials for minor offenses, but 18 U. S. C. § 3401 provides that any person charged with a minor offense may elect to be tried WINGO v. WEDDING 471 461 Opinion of the Court The original draft of the subsection 12 had proposed that magistrates' duties include "(3) preliminary consideration of applications for post-trial relief made by individuals convicted of criminal offenses." But because that language ,vas susceptible of the interpretation that magistrates might conduct evidentiary hearings, the Judicial Conference of the United States objected to it.10 Accordingly, the subsection was rewritten to provide for "(3) preliminary revie,v of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case .... " The Committee on the Administration of the Criminal Law of the Judicial Conference objected that the revision did not "make it clear that it is the judge's responsibility to make the ultimate decisions and to hold hearings on such applications, rather than that of the by a district judge. Title 28 U.S. C. § 636 (b) (1) authorizes magistrates to serve as special masters-which frequently involves the conduct of hearings-but makes that service subject to the Federal Rules of Civil Procedure, which include the restrictions of Rule 53 (b) that "reference to a master shall be the exception and not the rule." See Note, Developments in the Law-Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1189 n. 229 ( 1970). 12 S. 3475, Federal Magistrates Act of 1966, 89th Cong., 2d Sess. (1966). 13 See the Report of the Committee on the Administration of the Criminal Law, adopted by the Judicial Conference in September 1966, reprinted in the Hearings on S. 3475 and S. 945 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the .Judiciary, 89th Cong., 2d Sess. (1966) and 90th Cong., 1st Sess. (1967), pp. 241j, 241n. 472 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. magistrate." 14 The Committee therefore recommended the addition of the phrase "as to whether there should be a hearing" immediately following the word "case." 15 The proposed addition was made,16 and subsection (b) (3) in its present form wa.s enacted. Thus, although § 636 (b) provides that "additional duties authorized by rule may include, but are not restricted to," duties defined in subsection (b) (3), the legislative history of the subsection compels the conclusion that Congress made a deliberate choice to preclude district courts from assigning magistrates the duty to hold evidentiary hearings. We conclude that, since § 2243 requires that the District Judge personally hold evidentiary hearings in federal habeas corpus cases, Local Rule 16, insofar as it authorizes the full-time magistrate to hold such hearings, is invalid because it is "inconsistent with the ... laws of the United States" under § 636 (b). We conclude further that the Rule is to that extent invalid because, as we construe § 636 (b), that section itself precludes district judges from assigning magistrates the duty of conducting evidentiary hearings.11 Review by magistrates of applications for post-trial relief is thus limited to review for the purpose of proposing, not holding, eviden- 14 See the Report of the Committee on the Administration of the Criminal Law, adopted by the Judicial Conference in March 1967, reprinted in the Hearings on S. 3475 and S. 945 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Cong., 2d Sess. (1966) and 90th Cong., 1st Sess. (1967), pp. 244, 245. 15 lbid. 16 S. 945, Federal Magistrates Act of 1967, 90th Cong., 1st Sess. (1967). 17 See Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv. L. Rev. 321, 364-365 (1973); Note, Developments in the Law-Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1188-1189 (1970). I WINGO v. WEDDING 473 461 Opinion of the Court tiary hearings.18 In connection with the preliminary review whether or not to propose that the district judge hold an evidentiary hearing, we agree that magistrates may receive the state court record and all affidavits, stipulations, and other documents submitted by the parties.19 Magistrates are prohibited only from conducting the actual evidentiary hearings.2° The invalidity of Local Rule 16 is not cured by its provision that the "District Judge shall proceed to hear 18 "A qua.lilied, experienced magistrate will, it is hoped, acquire an expertise in examining these [post-conviction review] applications and summarizing their important contents for the district judge, thereby facilitating his decisions. Law clerks are presently charged with this responsibility by many judges, but judges have noted that the normal 1-year clerkship does not afford law clerks the time or experience necessary to attain real efficiency in handling such applications." S. Rep. No. 371, 90th Cong., 1st Sess., 26 (1967). 19 To the extent that O'Shea v. United States, 491 F. 2d 774 (CAl 1974), and Noorlander v. Ciccone, 489 F. 2d 642 (CA8 1973), suggest that magistrates may also accept oral testimony, provided that each party has the right to a de novo hearing before the district judge, we disagree. Such a procedure is precluded by both § 2243 and § 636 (b). 20 Since under § 636 (b) district judges may call upon magistrates to relieve them of most other details of the processing of habeas corpus applications, it does not appear that judges will be significantly overburdened by the requirement that they personally conduct evidentiary hearings. Indeed, data from the Administrative Office of the United States Courts indicate that very few habeas corpus cases ever reach the evidentiary hearing stage. In 1973, of the 10,800 prisoner petitions filed for habeas corpus or as 28 U. S. C. § 2255 motions to vacate sentence, less than 5%, or approximately 530, necessitated evidentiary hearings. See Report of the Director of the Administrative Office of United States Courts, Table C--2, p. 325, Table C--8, p. 383 ( 1973). When hearings were required, 88% were completed in one day or less. Id., at 383. Thus, among the 400 District Judges, the burden of evidentiary hearings averages less than 1.5 hearing days per judge per year. To the extent that the 80 active Senior District Judges also participate in habeas corpus cases, the hearing burden upon each district judge is further reduced. 474 OCTOBER TERM, 1973 BURGER, C. J., dissenting 418 u. S the recording of the testimony given at the evidentiary hearing and give it de novo consideration." Holiday reasoned that the command of § 761, now § 2243, was designed by Congress in recognition that " [ o] ne of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony." 313 U. S., at 352. "To experienced lawyers it is commonplace that the outcome of a lawsuit-----and hence the vindication of legal rights-depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied." Speiser v. Randall, 357 U. S. 513, 520 ( 1958). Congress, Holiday held, "[p]lainly ... intended that the prisoner might invoke ... appraisal by the judge himself." In that circumstance, we "cannot say that an appraisal of the truth of the prisoner's oral testimony" based on listening to a recording of it, "is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts." 313 U. S., at 352. Affirmed. MR. CHIEF JusTICE BURGER, with whom MR. JUSTICE WHITE joins, dissenting. The Court today reads two separate statutes and our prior cases to reach a result contrary to the purposes underlying the enactment in 1968 of the Federal Magistrates Act, 28 U. S. C. § 631 et seq., and to the conclusion of every other Court of Appeals which has had occasion to consider the matter.1 1 Two Circuits have ruled that federal magistrates may conduct evidentiary hearings in federal habeas corpus cases, O'Shea v. United WINGO v. WEDDING 475 461 BuRGER, C. J., dissenting The Federal Magistrates Act was both "designed to create an upgraded lower tier judicial office," S. Rep. No. 371, 90th Cong., 1st Sess., 11 (1967), and "intended ... to cull from the ever-growing workload of the U. S. district courts matters that are more desirably performed by a lower tier of judicial officers." H. R. Rep. No. 1629, 90th Cong., 2d Sess., 12 (1968). The Court's holding that federal magistrates may not conduct evidentiary hearings in federal habeas corpus cases is both inconsistent with the new status of magistrates and deputy magistrates,2 and serves to defeat the objective of the Act, States, 491 F. 2d 774, 778 (CAl 1974); Noorlander v. Ciccone, 489 F. 2d 642, 648 (CA8 1973); cf. Campbell v. U. S. District Court, 501 F. 2d 196, 205 (CA9 1974), while two Circuits have assumed magistrates have that power, United States ex rel. Gonza/,ez v. Zelker, 477 F. 2d 797, 798 (CA2 1973); Parnell v. Wainwright, 464 F. 2d 735, 736 (CA5 1972). 2 The Court makes clear, ante, at 473 n. 18, that it sees the function of the magistrate in dealin!! with habeas corpus petitions as being no more than that previously performed by law clerks. As Chief Judge Theodore Levin, of the Eastern District of Michigan, testified before the Senate .Judiciary Committee's Subcommittee on Improvements in .Judicial Machinery, which under the chairmanship of Senator Joseph D. Tydings began the investigative hearings in 1965 which led to the enactment of the Act three years later, law clerks are not overworked, and are better able to perform such tasks. "In any event, this is a somewhat tedious job ... and is not a function likely to entice a seasoned a.nd competent lawyer to accept a magistrate's job." Hearings on S. 3475 and S. 945, 89th Cong., 2d Sess. (1966) and 90th Cong.,lst Sess. (1967),p.61 (hereinafter Hearings). The Act specifically sought to make "the position [of magistrate] more attractive to highly qualified individuals." S. Rep. No. 371, 90th Cong., !st Sess., 11 (1967). The Department of Justice agreed that such a limited function would be inconsistent with the Act's purpose, Hearings 130, and Chief Judge Robert C. Belloni and Dean Robert B. Yegge have noted that the magistrates "should not be simply high-paid law clerks." Reports of the Conference for District Court Judges, 59 F. R. D. 203, 221 (1973). To limit a magistrate to a law clerk's function surely undercuts what Senator Tydings 476 OCTOBER TERM, 1973 BuRGER, C. J., dissenting 418 U.S. described by Senator Tydings, its principal sponsor, see n. 2, supra, "to provide district judges with more time to devote to the actual trial of cases and the writing of opinions." 8 Hearings 3. I In its two-stage analysis, the Court finds first that under the terms of the Act it would be "inconsistent with stated to be "[t]he first goal of the Magistrates Act ... to [give the magistrate] qualifications and a stature higher than those of the present U. S. commissioner." Hearings 26. 3 No one would dispute the heavy burden on district courts represented by the applications for habeas corpus writs they receive, a large volume of which has been long recognized as "repetitious and patently frivolous." United States v. Hayman, 342 U. S. 205, 212 (1952) (footnote omitted). The Court would minimize the burden of these applications at the evidentiary hearing stage, ante, at 473 n. 20, but the beguiling simplicity of its statistical analysis obscures reality and is antagonistic to the interests of habeas petitioners. First, to average hearing days per judge per year evenly across the country fails to recognize the uneven number of habeas corpus applications received by the various district courts. In his testimony at the Senate hearings on the bill Chief Judge Edward S. Northrop, of the District of Maryland, reflected the unevenness experienced by his court, which at one time handled more "State prisoner habeas corpus petitions ... than any other district in the country." Hearings 52. Clearly Chief Judge Northrop's burden would have exceeded "1.5 hearing days ... per year." Second, the habeas corpus applications which ultimately reach the hearing stage do not represent all those which might warrant a hearing. Senator Tydings stated: "We say that the magistrate should be able to [hold] plenary, discovery hearings. Now, what happens ... as a practical matter, you get no hearings. The law clerk reviews the papers ... so we are giving the individual [petitioner J actually an opportunity . . . for more consideration than he gets now." Id., at 113. Finally, even if no more :ipplications would warrant an evidentiary hearing, given the other burdens on district judges those applications which would warrant hearings would receive more prompt attention if magistrates were to hold them. The virtues of speedy justice need not be elaborated here. WINGO v. WEDDING 477 461 BURGER, C. J., dissenting the ... laws of the United States," 28 U.S. C. § 636 (b), to permit magistrates to conduct evidentiary hearings in habeas corpus cases. This is so, it is said, because a procedural provision of the Habeas Corpus Act, Rev. Stat. § 761, was construed 33 years ago, long before the enactment of the Magistrates Act, to confine that function to judges alone. Holiday v. Johmton, 313 U.S. 342 (1941). The 1948 revision and recodification of the Judicial Code, which incorporated Rev. Stat. § 761 into 28 U. S. C. § 2243, is held to have carried forward this limitation despite a critical language change. United States v. Hayman, 342 U. S. 205 ( 1952); Brown v. Allen, 344 U. S. 443 (1953). Neither the new statute, its drafting history, nor these latter cases, support the Court's conclusion. Section 2243 did, as the Court notes, import into its terms Rev. Stat. § 761, both of which provisions set forth in part what authority shall hear and determine the facts involved in an application for a writ of habeas corpus. And § 2243 changed the language of Rev. Stat. § 761, which originally read that the authority was to be the "court, or justice, or judge," now to read simply the "court." But the Court fails to note that § 2243 incorporated a second provision from the Habeas Corpus Act, Rev. Stat. § 755, which in part set forth what authority shall issue the writ of habeas corpus for which application was made. The authority to issue the writ set forth in Rev. Stat. § 755 was identical to that set forth in Rev. Stat. §761 to hear and determine the facts: the "court, or justice, or judge." Unlike the language of Rev. Stat. § 761, however, the quoted language of Rev. Stat. § 755 was incorporated into § 2243 substantially unchanged; under the present statute, it is the "court, justice or judge" who shall issue the writ. Congress sought to make certain that only a "court, justice or judge" could issue the writ; but by changing 552-191 0 - 76 - 33 478 OCTOBER TERM, 1973 BuRGER, C ..r ., dissenting 418 U.S. the authority to hear the facts from a "court, or justice, or judge" to, simply, a "court," Congress must have intended to broaden the authority of the court, at least to the extent of permitting delegation to a magistrate to perform the preliminary hearing function, subject always to the approval of a district judge.4 To read the language change in any other way would impute to Congress an intent to alter statutory language, the meaning of which had already been finally determined by this Court, Holiday v. Johnston, supra, without the knowledge that the alteration would raise interpretive difficulties. Moreover, to change the language of Rev. Stat. § 761, but not to change that of Rev. Stat. § 755, cannot be said, as the Court does, ante, at 469 n. 9, to be a "[ml ere change of phraseology," for such changes were undertaken only for purposes of uniformity. If, as Charles J. Zinn, counsel to the Law Revision Committee which revised the Judicial Code, testified, "we have changed the language to get a uniform style," 5 then within the same statutory provision, surely Congress would have made only "courts" able to issue writs, as well as hear the facts of the claim. or do the cases cited by the Court, ante, at 469, support its interpretation of § 2243. Brown v. Allen, supra, is plainly inapposite. The segment of Brown quoted by the Court is relevant to Brown's discussion of whether a petitioner under 28 U. S. C. § 2254 had a right to a plenary hearing although an earlier petition of his which presented substantially the same federal issues was ref used in the state court. When the Court quotes from Brown: 4 As noted in Part II, infra, it is not urged by anyone that the magistrate may finally decide facts after conducting an evidentiary hearing. That ultimate decision is, without que5tion, one reserved to the district judge alone. 5 Hearings on H. R. 1600 and H. R. 2055 before Subcommittee No. 1 of the House Committee on the .Judiciary, 80th Cong., 1st Sess., 40 (1947). I l I '1 1 l WINGO v. WEDDING 479 461 BURGER, C. J., dissenting "This has long been the law," ante, at 469, it is referring to what the Brown Court called the "general rule" approved in Salinger v. Lo-isel, 265 U. S. 224, 231 (1924). Brown, 344 U. S., at 463. Salinger in turn makes it clear that the "general rule" which has "long been the law" has nothing whatever to do with who may hear and determine the facts on an application for a writ of habeas corpus. Rather, it pertains only to that portion of § 2243 which Brown itself quoted, 344 U. S., at 462, and which Salinger also quoted, 265 U. S., at 231, that is, "to dispose of [the matter or party] as law and justice [may] require." In Salinger, this rule meant each application for a writ of habeas corpus could be disposed of in the exercise of judicial discretion, which could in part give controlling weight to "a prior refusal [by a federal court] to discharge on a like application." Ibid. In Brown, that rule was extended under certain circumstances to a prior state court refusal to issue the writ, in support of the Court's conclusion there that a § 2254 petitioner had no right to a plenary hearing on his application for the writ. The rule the Court relies on today is thus one of discretion to hold an evidentiary hearing "as law and justice require," which has no bearing on what official shall conduct the hearing once a decision is made to hold one. Brown is thus no authority for the proposition that the same limitation Holiday placed on Rev. Stat. § 761 ("court, or justice, or judge") applies to § 2243 ("court") enacted after Holiday. The Court also relies upon United States v. Hayman, supra, to support its interpretation of § 2243. The issue in Hayman had nothing to do with who shall hear and determine facts upon an application for a writ of habeas corpus. Rather, the Court there was concerned solely with the question whether a district court may, upon an evidentiary hearing, decide factual issues pre480 OCTOBER TERlVI, 1973 BURGER, C. J., dissenting 418 U.S. sented by a motion under 28 U. S. C. § 2255, where the movant was not notified and was not present. In the context of discussing an earlier case which had held that a district court must decide material issues of fact by taking evidence, not by ex parte affidavits, Hayman dropped a footnote stating simply " [ n] or can the factual issues be heard before a commissioner," citing Holiday, supra. 342 U. S., at 213 n. 16. Not only was this footnote completely irrelevant to the issue in Hayman, its C'itation to Holiday for support, without further discussion, makes manifest that the Court did not consider the effect of the subsequent language change in § 2243 on the statute (Rev. Stat. § 761) which Holiday construed. The fulfillment of the purposes of the Federal Magistrates Act should not hang on such a slim reed. II Even assuming that § 2243 was intended to carry forward the limitation of Holiday's interpretation of its predecessor, by enacting the Magistrates Act, and particularly § 636 (b) thereof, Congress made clear its intent to eliminate that restriction. Thus, while Hayman may speak in terms of a "commissioner," Congress changed not only the title of that office, but also the qualifications for and the functions of the office. Section 636 (b) permits federal magistrates to "be assigned ... such additional duties as are not inconsistent with the Constitution and laws of the United States." The section then sets forth in three subdivisions certain duties which district courts may authorize by rule, but the duties "are not restricted to" those set forth. The third illustrative subdivision provides that district courts may authorize the additional duty of "preliminary review of applications for posttrial relief made by individuals convicted of criminal of461 WINGO v. WEDDING 481 BURGER, C. J., dissenting fenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing." 28 U. S. C. § 636 (b) (3). Subdivision (3), suggesting additional duties that may be assigned to a magistrate in connection with federal habeas corpus cases, does not by its terms permit magistrates to conduct evidentiary hearings, but that subdivision is merely illustrative, not exclusive. "The mention of these three categories is intended to illustrate the general character of duties assignable to magistrates under the act, rather than to constitute an exclusive specification of duties so assignable." S. Rep. No. 371, 90th Cong., 1st Sess., 25 (1967). The House Report virtually tracks the language of the Senate Report. H. R. Rep. No. 1629, 90th Cong., 2d Sess., 19 ( 1968). Thus, there being no constitutional barrier to permitting magistrates to conduct evidentiary hearings,6 nor any other legal barrier, see Part I, supra, § 636 (b) enables district courts, as did the District Court here, to establish rules which so permit. Assuming, arguendo, that § 2243 does constitute a possible legal barrier to such rules, the legislative history of the Act reveals Congress to have intended the elimination of that barrier. The Court determines, in the second stage of its analysis, ante, at 469-473, that Congress intended the opposite result, but in this matter the Court's perception is less than discriminating. The linchpin of the Court's argument is the drafting evolution of the terms of subdivision (3), quoted above. In the change of language from preliminary "consideration" to preliminary 6 No such barrier is suggested by the Court today, and properly framed, district court rules which so permit would not contravene the constitutional rights of federal habeas corpus petitioners. See Part III, infra. 482 OCTOBER TERM, 1973 BURGER, C. J., dissenting 418 U.S. "review," 1 and in the addition of "as to whether there should be a hearing," 8 the Court finds an intent to bar magistrates from conducting a hearing. But the language changes in the subdivision were made only due to a fear that magistrates would be thought to have been given final adjudicatory power, not to preclude them from conducting hearings when the district judges retained such power.0 Indeed, the latter was specifically intended. As the Senate Report stated, § 636 (b) "contemplates assignments to magistrates under cir- 7 The two words were in fact used interchangeably in the legislative history. When the draft bill (S. 3475) used the word "consideration," the Subcommittee Staff Memorandum in support of the bill used the word "revie:w." Hearings 34. When the draft bill was changed to use the word "review," the Senate Report accompanying the new bill (S. 945) used the word "consideration." S. Rep. No. 371, 90th Cong., 1st Sess., 8 (1967). 8 Despite the addition of this language, the House Report, in setting forth the enumerated examples of § 636 (b), stated of subdivision (3) only that "[m]agistrates may also be assigned the function of reviewing and reporting to district judges upon applications for postconviction relief." H. R. Rep. No. 1629, 90th Cong., 2d Sess., 19 (1968). No limitation on the nature of the review or report was indicated. The language of the Senate Report also made no reference to decisions whether there should be hearings. S. Rep. No. 371, supra, at 26. 9 The Court twice makes reference, ante, at 471 n. 11, and 472 n. 17, to Note, Developments in the Law-Federal Haberu, Corpus, 83 Harv. L. Rev. 1038, 1188-1189, and n. 229 (1970), in support of its position. Both references are mistakenly addressed to final decisionmaking power, not the power to conduct hearings where the district judge makes the ultimate decision. The Note jtself concedes that "[i]t is possible to argue [ under § 636 (b)] that a plan to have magistrates actually hear cases is valid under the Act." Id., at 1189 n. 229. It then argues the other way in reference to matters as to which magistrates have final power of decision. See 28 U. S. C. § 636 (a) (3). That is the only power of magistrates circumscribed by the procedures to which the Court refers, ante, at 470-471, n. 11. WINGO v. WEDDING 483 461 BURGER, C. J., dissenting cumstances where the ultimate decision of the case is reserved to the judge .... " S. Rep. No. 371, 90th Cong., 1st Sess., 26 (1967). The concern about enabling magistrates to make the ultimate decision found early expression in the Senate hearings on the bill in a colloquy between Senator Tydings and then Assistant Attorney General Vinson. Mr. Vinson ultimately revealed his real concern in a letter to the Subcommittee that subdivision (3) as originally drafted would give the power of ultimate decision to the magistrate: "[I]f preliminary consideration is intended to involve adjudication, it should be handled by an Article 3 Judge." Hearings 130. That the Senate viewed Mr. Vinson's objections in this light is made clear by Senator Tydings' testimony in the hearings before a subcommittee of the House Judiciary Committee. Hearings on S. 945 et al. before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 2d Sess., 72 (1968). In response to this objection, Senator Tydings stated to Mr. Vinson at the Senate hearings: "We wouldn't intend for the final decision to be made by the magistrate. But we would intend that . .. the magistrate [be able to] hold a preliminary [habeas] hearing . . . . We certainly intend that." Hearings 112. (Emphasis added.) Numerous other witnesses at the Senate hearings urged that the magistrates be permitted to hold hearings. See, To the extent the Court goes beyond the Note and argues that magistrates' service as special masters, 28 U. S. C. § 636 (b) (1), is limited by Fed. Rule Civ. Proc. 53 (b), the early strictures upon employing special masters were developed before the existence of the judicial office of magistrate and arguably should not be applied to that new office. See generally Comment, An Adjudicative Role for Federal Magistrates in Civil Cases, 40 U. Chi. L. Rev. 584 (1973). 484 OCTOBER TERM, 1973 BURGER, C. J., dissenting 418 U.S. e. g., id., at 52 (Chief Judge Northrop, supra, n. 3); id., at 94 (Chief Judge Walter E. Hoffman, of the Eastern District of Virginia). As the Court points out, ante, at 470--471, the Judicial Conference objected to the original draft bill (S. 3475), but it did not originally object to subdivision (3), as the Court states. Instead, the Conference objected to § 636 (b) altogether, fearing it so broad as to be subject to constitutional attack. Although not specified, it seems clear that by speaking in terms of "delegation" the Conference initially shared Mr. Vinson's concern about delegating the ultimate decisionmaking power of Art. III judges. Hearings 24111. The Judicial Conference therefore recommended both a modified version of § 636 (b), and the complete elimination of all three subdivisions. Ibid. When the revised draft bill (S. 945), which ultimately was enacted, was introduced, it did not follow the Judicial Conference recommendation, but continued to include the three subdivisions. As to subdivision (3), the Judicial Conference recommended the addition of the phrase "as to whether there should be a hearing," see n. 7, supra, but again stressed that its concern was, as with S. 3475, over the "delegation to magistrates." Hearings 245. The tension established in this evolution is clear. On the one hand, Congress sought to enable district courts to authorize magistrates to conduct evidentiary hearings. On the other hand, there was apprehension that the power of authorization granted to district courts might lead to a rule permitting magistrates to exercise ultimate decisionmaking power reserved exclusively to Art. III judges. To avoid the latter but accomplish the former, Congress persisted in retaining the broad language of § 636 (b), and in retaining subdivision (3). Not only, as set WINGO v. WEDDING 485 461 BURGER, C. J., dissenting forth earlier, does the subdivision not limit the subsection, it was drafted in language to insure that it could not be read to preclude authorizing magistrates to conduct hearings in federal habeas corpus cases.10 Plainly, Congress could have used language that expressly precluded the latter. That this was not urged upon Congress by anyone, including the Judicial Conference, and that Congress did not include such language, alone suggests its intention to vest in district courts the power to authorize magistrates to hold hearings. Conversely, Congress would have taken certain risks had it expressly permitted magistrates to hold hearings, as revealed by the following colloquy between Chief Judge Hoffman and Senator Tydings at the Senate hearings: "Judge Hoffman. . .. And I have suggested in my statement ... that the Federal magistrate could be assigned the task as a master to conduct plenary hearings. After all, [habeas corpus proceedings] are civil proceedings . . . not criminal proceedings. "Senator Tydings. [S]ince we ... don't have [in § 636 (b)] 'Including hearings' or 'Including plenary hearings,' or 'including the conducting of plenary hearings,' it is not what we should have? "Judge Hoffman. I am fearful that someone will say that this is merely an effort on the part of the judge to delegate his judicial function. "Senator Tydings. I think that is a good point, Judge Hoffman." Hearings 93-94. In light of the need for Congress to avoid language suggesting an unconstitutional delegation of a judicial 10 Even counsel for respondent. agrees ( contrary to the Court's conclusion, ante, at 470) that subdivision (3) "could have been more clearly expressed." Tr. of Oral Arg. 20. 486 OCTOBER TERM, 1973 BuRGER, C. J., dissenting 418 U.S. function to a magistrate, the ambiguous provision of § 636 (b )-unlimited by the provisions of subdivision (3)-should be interpreted to permit magistrates to conduct evidentiary hearings in federal habeas corpus cases, § 2243 notwithstanding, because ( 1) to the extent the subject was expressly discussed in the legislative history, such permission was intended, and (2) such an interpretation would serve the two principal objectives of the Act. See nn. 2 and 3, supra. III The final limitation of the Act, that additional duties assigned to magistrates must not be "inconsistent with the Constitution," needs little discussion here. The Court does not suggest that the conduct of an evidentiary hearing, where the district judge retains the power to make the final decision on an application for a writ of habeas corpus, would be unconstitutional either under Art. III or as a matter of due process of law. Where this situation obtains, the magistrate's conduct of the hearing would be clearly constitutional.11 11 The commentators have generally agreed with this conclusion. Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv. L. Rev. 321, 365 (1973); Peterson, The Federal Magistrate's Act: A New Dimension in the Implementation of Justice, 56 Iowa L. Rev. 62, 98 (1970); Doyle (District Judge and Chairman of the Judicial Conference Committee charged with implementing the Act), Implementing the Federal Magistrates Act, 39 J. B. A. Kan. 25, 69 (1970); Note, Proposed Reformation of Federal Habeas Corpus Procedure: Use of Federal Magistrates, 54 Iowa L. Rev. 1147 (1969). So, too, would the Judicial Conference appear to be in agreement. Proposed Amendments to the Proposed Rules Governing Habeas Corpus Proceedings for the United States District Courts, Committee on Rules of Practice and Procedure, Rule 11 (Preliminary Draft, Jan. 1973). Congress has given the magistrates power to conduct trials of a limited nature, 28 U. S. C. § 636 (a) (3), which grant of power, carefully limited, appears not to contravene any conWINGO v. WEDDING 487 461 BURGER, C. J., dissenting Not only would his report and recommendation to the district judge be subject to amendment or outright rejection, the district judge could, at the behest of the habeas corpus petitioner or on his own motion, conduct his own evidentiary hearing to judge for himself, for example, the credibility of witnesses if he deems their testimony essential to disposition of the application. To the extent a problem of constitutional magnitude may be foreseen in the particulars of the rules established by a district court, those rules can be construed to comport with constitutional requirements. In any event, now that the Court has construed the Magistrates Act contrary to a clear legislative intent, it is for the Congress to act to restate its intentions if its declared objectives are to be carried out. stitutional prohibition. Cf. Palmore v. United States, 411 U. S. 389 (1973). A fortiori granting magistrates the power to conduct hearings where the district judge retains ultimate decisionmaking authority comports with constitutional requirements. Cf. Campbell v. U. S. District Court, 501 F. 2d 196 (CA9 1974) (hearings on motion to suppress); Harlem River Consumers Coop., Inc. v. Associated Grocers of Harlem, Inc., 54 F. R. D. 551 (SDNY 1972) (hearings on discovery motion). 488 OCTOBER TERM, 1973 Syllabus TAYLOR v. HAYES, JUDGE 418 U.S. CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY No. 73-473. Argued March 18, 1974-Decided June 26, 1974 During a Kentucky murder trial in which petitioner was counsel for the accused, respondent trial judge informed petitioner on nine different occasions that he was in contempt of court. At the conclusion of the trial, respondent, in the jury's presence, made a statement concerning petitioner's trial conduct, and, refusing petitioner's request to respond, imposed consecutive sentences on nine counts of contempt aggregating almost four and one-half years' imprisonment, including sentences of one year's imprisonment on each of two counts. Subsequently, respondent amended the judgment to eliminate the first contempt charge and to reduce each of the latter sentences to six months' imprisonment, but was silent on whether all of the sentences were to run concurrently or consecutively. The Kentucky Court of Appeals affirmed, but ruled that, because the amended judgment did not direct that the sentences be served consecutively, they had to be served concurrently, thereby making the penalty actually imposed six months in jail and rendering constitutionally permissible the C'onviction and sentence without a jury trial. Held: 1. Since no more than a six-month sentence was actually imposed, the eight contempts, whether considered singly or collectively, constituted petty offenses and hence trial by jury was not required. It is not improper to permit the State, as in this instance, after conviction, to reduce a sentence to ~ix months or less rather than retry the contempt with a jury, since "criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved." Bloom v. Illinois, 391 U. S. 194, 211. Pp. 495-496. 2. Respondent's conduct, in proceeding summarily after trial to punish petitioner for alleged contempt committed during the trial without giving him an opportunity to be heard in defense or mitigation before he was finally adjudged guilty and sentence was imposed, does not square with the Due Process Clause of the Fourteenth Amendment. Groppi v. Leslie, 404 U. S. 496. Reasonable notice of the specific charges and opportunity to be heard TAYLOR v. HAYES 489 488 Opinion of the Court are essential in view of the heightened potential for abuse posed by the contempt power. Pp. 496-500. 3. Because it appears from the record that "marked personal feelings were present on both sides" and that marks of "unseemly conduct [had] left personal stings," Mayberry v. Pennsylvania, 400 U. S. 455, 464, another judge should have been substituted for respondent for the purpose of finally disposing of the contempt charges. Pp. 501-503. 494 S. W. 2d 737, reversed and remanded. WHITE, .J ., deli,,ered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, BLACKMUN, and PowELL, JJ., and in Parts II and III of which DouGLAS and MARSHALL, JJ., joined. MARSHALL, J., filed an opinion dissenting from Part I, post, p. 504. REHNQUIST, J., filed a dissenting opinion, post, p. 523. Robert Allen Sedler argued the cause for petitioner. With him on the briefs were Doris Peterson and Morton Stavis. Henry A. Triplett argued the cause and filed a brief for respondent.* MR. JusTICE WHITE delivered the opm10n of the Court. The question m this case concerns the validity of a criminal contempt judgment entered against petitioner by reason of certain events occurring in the course of a criminal trial in the courts of the Commonwealth of Kentucky. Petitioner was retained counsel for Narvel Tinsley, a Negro, who along with his brother Michael was *Briefs of amici curiae urging reversal were filed by Burke Marshal,{, Leon Friedman, and Norman Dorsen for the Association of the Bar of the City of New York; by Frank E. Haddad, Jr., Joe G. Leibson, and Ed P. Jackson for the Louisville Bar Assn.; by James Larson, Arthur Kinoy, and Victor Rabinowitz for the National Lawyers Guild; and by Melvin L. Wulf for the American Civil Liberties Union. 490 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. charged with the murders of two police officers. According to the Kentucky Court of Appeals, the "murders created some considerable sensation in Louisville . . . and . . . newspaper coverage was overly abundant." 494 S. W. 2d 737, 739 (1973). Trial before respondent trial judge began on October 18, 1971, and was completed on October 29. On nine different occasions during this turbulent trial, respondent, out of the hearing of the jury and most of ten in chambers, informed petitioner that he was in contempt of court. The first charge was immediately reduced to a warning and no sentence was imposed at the time of charge in that or any other instance. Petitioner was permitted to respond to most, but not all, of the charges.' At the conclusion of the trial on October 29 and after a guilty verdict had been returned, respondent, in the presence of the jury, made a statement concerning petitioner's trial conduct. Refusing petitioner's request to respond and declaring that "I have you'' on nine counts, respondent proceeded to impose a jail term on each count totaling almost four and one-half years: 30 days on the first count, 60 days on the second, 90 days on the third, six months on counts four, five, six, and seven, and one year each on counts eight and nine, "all 1 When for the sixth time petitioner was informed that he was in contempt, he sought to reply and was informed he could do so at the next recess. Nothing more appears in the record with respect to this episode. On the seventh occasion, petitioner undertook to respond but respondent left the chambers, and any further discussion of this charge was apparently ordered excluded from the record by respondent. Petitioner was denied the right to respond when he was informed of the eighth charge of contempt. As far as the record shows, there was neither a request to respond nor denial of response in connection with the ninth contempt charge. TAYLOR v. HAYES 491 488 Opinion of the Court to run consecutive." 2 A few days later, petitioner was also barred from practicing law by respondent in his division of the Criminal Branch of the Jefferson Circuit Court. 2 The following is the complete transcript of the proceedings on October 29, 1971, with respect to the contempt charges against petitioner: "The Court: Mr. Taylor, the Court has something to take up with you sir, at this time. "Mr. Taylor: Well, I'll be right here, Judge. "The Court: I've for two weeks sit here and listen to you. Now, you're going to listen to me. Stand right here, sir. "For two weeks I've seen you put on the worst display I've ever seen an attorney in my two years of this court and 15 yea.rs of practicing law. You've quoted that you couldn't do it any other way. You know our court system is completely based upon, particularly r.rimirnLI law, the Doctrine of Reasonable Doubt. That's exactly what it means, reason. It doesn't mean that it's based upon deceit; it doesn't. mean that it's based upon trickery; it doesn't mean it's based upon planned confusion. "Sometimes I wonder really what your motive is, if you're really interested in the justice of your client, or if you have some ulterior motive, if you're interested in Dan Taylor or Narvel Tinsley. "It's a shame that this court has to do something that the Bar Association of this State should have done a long time ago. "As far as a lawyer is concerned, you're not. I want the jury to hear this; I want the law students of this community to hear this, that you're not the rule, you're the exception to the rule.~- "Mr. Taylor: (Interrupting) Thank you. · "The Court: I want them to understand that your actions should not be their actions because this is not the way that a court is conducted. This is not the way an officer of a court should conduct itself. "Mr. Taylor: I would respond to you, sir-- "The Court: (Interrupting) You're not responding to me on anything. "Mr. Taylor: (Interrupting) Oh yes, I will. "The · Court: Yes, you're not, either. "Mr. Taylor: Yes, I will. [Footnote 2 is continued on p. 492] 492 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. While petitioner's appeal was pending, on March 2, 1972, respondent entered a corrected judgment containing a "certificate" which described the nine charges of contempt 3 but eliminated the first charge as having been ''The Court: The sentence is on Count One------ "Mr. Taylor: (Interrupting) Unless you intend to gag me- "The Court: (Interposing) I'll do that-- "Mr. Taylor: (Interposing) My lawyers will respond to you-- "The Court: (Interposing) I'll do that, sir. "Mr. Taylor: My lawyers will respond to you, sir. "The Court: You be quiet, or you'll-there will be some more contempts-- "Mr. Taylor: (Interrupting) No, you heard what I said. "The Court: I have you nine counts. First Count, 30 days in jail; Second Count, 60 days in jail; Third Count, 90 days in jail; Fourth Count, six months in jail; Fifth Count, six months in jail; Sixth Count, six months in jail; Seventh Count, six months in jail; Eighth Count, one year in jail; Ninth Count, one year in jail, all to run consecutive. "Take him away. "Mr. Taylor: We will answer you in court. "The Court: I'd be glad to see you." App. 28-29. 3 The nine charges of contempt were described in the certificate as follows: "Contempt 1. Mr. Taylor, in questioning a prospective juror, on the second day of Voir Dire, repeatedly ignored the Court's order not to continue a certain line of questioning and to ask his questions of the jury as a whole, He evidenced utter disrespect for prospective jurors (T. E. 335-347). "Contempt 2. The court sustained the Commonwealth objection on the use of a prior statement to cross examine Officer Hogan and not to go into the escape of Narvel Tinsley. Mr. Taylor repeatedly and completely ignored the court's ruling (T. E. 1071-1080). "Contempt 3. During the playing of a tape recording of the voice of witness David White, Mr. Taylor wrote on a bla.ckboard. After the playing of the tape it was ordered that the blackboard be removed from the court and Mr. Taylor was s.dvised by the court that he could use it in his final summation to the jury. Mr. Taylor TAYLOR v. HAYES 493 488 Opinion of the Court reduced to a warning and reduced the sentence on each of the last two counts to six months in jail. The corrected judgment was silent as to whether the sentences were to run concurrently or consecutively. was disrespectful t-0 the court by his tone of voice and manner when he replied, 'I'll certainly keep that in mind, your Honor' (T. E. 1355). "Contempt 4- During cross-examination of Narvel Tinsley, by Mr. Schroering, Mr. Taylor interrupted and moved for a recess, was overruled by the court, and then became most disrespectful to the court and refused to take his seat at counsel's table as ordered. "Contempt 5. Complete and utter disrespect by Mr. Taylor in the questioning of Mr. Irvin Foley, and (sic) attorney and Legal Advisor to the Louisville Police Department when he continually disobeyed the court's ruling regarding a press conference which the court had ruled on unadmissible (sic). Mr. Taylor accused the court of disallowing admittance of black persons in the courtroom during the examination of this witness and made a statement in the presence of the jury inferring that only white police officers could enter the courtroom. It has always been the rule of this court that there will be no interruption during the examination of a witness or during closing arguments by people coming and going into and from the courtroom, which rule was known to Mr. Taylor, (T. E. 1950-1955). "Contempt 6. The witness Jesse Taylor, a Louisville Police Officer, read a statement by witness, David White. A Ruling was made by the court that the statement spoke for itself, had been introduced in evidence and could not be commented on by Officer Taylor, who merely took the statement. Mr. Taylor continued to disregard the court's order and ruling by continually reading parts of the statement out of context (T. E. 2008-2016). "Contempt 7. Mr. Taylor in examining Mr. Norbert Brown, again referred to a press conference that the court had previously ordered him not to go into. He also waved his arms at the witness in a derogatory manner indicating the witness was not truthful and showing utter contempt of the court's ruling (T. E. 2030-2032). "Contempt 8. The court directed Mr. Taylor to call his next witness. He called Lt. Garrett, Louisville Police Department. After the witness was sworn and took the stand, a deputy Sheriff advised the court that Mr. Taylor's aide was not searched, as everyone else 552-191 0 - 76 - 34 494 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. The Kentucky Court of Appeals affirmed, holding that petitioner was guilty of each and every contempt charged. In its view, petitioner's actions "were deliberate, delaying, or planned disruptive tactics which did in fact create such an atmosphere in the court that he, if permitted to continue, would have appeared to be the star performer in the center ring of a three-ring circus." 494 S. W. 2d, at 740. Petitioner had committed "innumerable acts ... which clearly reflected his contempt for the court as well as the judicial system of this Commonwealth ... " and had been "overbearing, contemptuous, and obnoxiously persistent in his questions and objections .... " Id., at 741. The Court of Appeals also concluded that petitioner had not launched any "personal attack" on the trial judge and that the judge had neither conducted himself as an "'adivist seeking combat' " nor had become so personally embroiled that he was disqualified to sit in judgment on the charges of contempt, although his remarks prior to entering judgment of contempt at the conclusion of the trial were "inappropriate." Id., at 744-745. The Court of Appeals further ruled that because the amended judgment did not "direct that the sentences, as amended, be served consecutively ... they must be served concurrently." Id., at 746. Thus, "[t]he penalty actually imposed on Daniel Taylor [ was] six months in jail," and his conviction and sentence without a jury trial had been upon entering the courtroom. Mr. Taylor ordered the deputy to search his aide. The court ordered Mr. Taylor to begin his examination, which he refused to do until he was cited for contempt in the court's chamber (T. E. 2068--2069). "Contempt 9. Mr. Taylor repeatedly asked the same question of witness Floyd Miller that the court had held improper. He was also disrespectful in his tone of voice when referring to a certain police officer as 'this nice police officer' (T. E. 2169- 2172)." App. 24--26. TAYLOR v. HAYES 495 488 Opinion of the Court were deemed constitutionally permissible. Id., at 747. The Kentucky Court of Appeals ruled, however, that it had exclusive authority to discipline or disbar attorneys and that, in any event, the rule in Kentucky since 1917 had been that suspension from practice was not a permissible punishment for criminal contempt. The order prohibiting petitioner from practicing in the Jefferson Circuit Court, Criminal Branch, Second Division, was therefore reversed. We granted certiorari limited to specified issues, 414 U. S. 1063 (1973). I Petitioner contends that any charge of contempt of court, without exception, must be tried to a jury. Quite to the contrary, however, our cases hold that petty contempt like other petty criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute. Cheff v. Schnackenberg, 384 U.S. 373 (1966); Bloom v. Illinois, 391 U.S. 194 (1968); Dyke v. Taylor Implement Mfg. Co., Inc., 391 U. S. 216 ( 1968); Frank v. United States, 395 U.S. 147 (1969); Baldwin v. New York, 399 U. S. 66 (1970). Hence, although petitioner was ultimately found guilty and sentenced separately on eight counts of contempt, the sentences were to run concurrently and were, as the Kentucky Court of Appeals held, equivalent to a single sentence of six months. Cf. Codispoti v. Pennsylvania, post, p. 506. The original sentences imposed on the separate counts were to run consecutively and totaled almost four and one-half years, with two individual counts each carrying a year's sentence. But the trial court itself entered an amended judgment which was understood by the Kentucky Court of Appeals to impose no more than a six496 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. month sentence. The eight contempts, whether considered singly or collectively, thus constituted petty offenses, and trial by jury was not required. It is argued that a State should not be permitted, after conviction, to reduce the sentence to less than six months and thereby obviate a jury trial. The thrust of our decisions, however, is to the contrary: in the absence of legislative authorization of serious penalties for contempt, a State may choose to try any contempt without a jury if it determines not to impose a sentence longer than six months. We discern no material difference between this choice and permitting the State, after conviction, to reduce a sentence to six months or less rather than to retry the contempt with a jury. Cf. Che ff v. Schnackenberg, supra, at 380. In either case, the State itself has determined that the contempt is not so serious as to warrant more than a six-month sentence. We remain firmly committed to the proposition that "criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved." Bloom v. Illinois, supra, at 211; cf. Argersinger v. Hamlin, 407 U.S. 25, 30 (1972). II We are more persuaded by petitioner's contention that he was entitled to more of a hearing and notice than he received prior to final conviction and sentence. In each instance during the trial when respondent considered petitioner to be in contempt, petitioner was informed of that fact and, in most instances, had opportunity to respond to the charge at that time. It is quit€ true, as the Kentucky Court of Appeals held, that "[tJhe contempt citations and the sentences coming at the end of the trial were not and could not have been a surprise to Taylor, because upon each occasion and immediately following the charged act of contempt the court informed TAYLOR v. HAYES 497 488 Opinion of the Court Taylor that he was at that time in contempt of court." 494 S. W. 2d, at 741-742. But no sentence was imposed during the trial, and it does not appear to us that any final adjudication of contempt was entered until after the verdict was returned. It was then that the court proceeded to describe and characterize petitioner's various acts during trial as contemptuous, to find him guilty of nine acts of contempt, and to sentence him immediately for each of those acts. It is also plain from the record that when petitioner sought to respond to what the Kentucky Court of Appeals referred to as the trial court's "declaration of a charge against Taylor based upon the judge's observations'' during trial,4 respondent informed him that" [y ]ou're not responding to me on anything" and even indicated that petitioner might be gagged if he insisted on defending himself.5 The trial court then proceeded without further formality to impose consecutive sentences totaling almost four and one-half years in the county jail and to bar petitioner forever from practicing before the court in which the case at issue had been tried. This procedure does not square with the Due Process Clause of the Fourteenth Amendment. We are not concerned here with the trial judge's power, for the purpose of maintaining order in the courtroom, to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him. Ex parte Terry, 128 U. S. 289 ( 1888). The usual justification of necessity, see Offutt v. United States, 348 U. S. 11, 14 (1954), is not nearly so cogent when final adjudication and sentence are postponed until after trial.6 Our de- 4 494 S. W. 2d 737,744 (1973). 5 App. 29. 6 "Punishment without issue or trial [is] so contrary to the usual and ordinarily indispensable hearing before judgment, constituting 498 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. cisions establish that summary punishment need not always be imposed during trial if it is to be permitted at all. In proper circumstances, particularly where the offender is a lawyer representing a client on trial, it may be postponed until the conclusion of the proceedings. Sacher v. United States, 343 U. S. 1 ( 1952); cf. Mayberry v. Pennsylvania, 400 U. S. 455, 463 (1971). But Sacher noted that "[s]ummary punishment always, and rightly, is regarded with disfavor .... " 343 U. S., at 8. "[W] e have stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are 'basic in our system of jurisprudence.' " Groppi v. Leslie, 404 U. S. 496, 502 ( 1972), quoting In re Oliver, 333 U. S. 257, 273 (1948). Even where summary punishment for contempt is imposed during trial, "the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution." Groppi v. Leslie, supra, at 504 (and cases cited therein).7 On the other hand, where conviction and punishment are delayed, "it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable [ the court] to proceed with its business." Ibid. As we noted in Groppi, the contemnors in the Sacher case were "given an opportunity to speak" and the "trial judge would, no doubt[,] have modified his action had their statements proved persuasive." Id., at 506, and n. 11. Groppi counsels that before an attorney is finally adjudicated in contempt and sentenced due process, that the assumption that the court saw everything that went on in open court [is] required to justify the exception; but the need for immediate penal vindication of the dignity of the court created it." Cooke v. United States, 267 U. S. 517, 536 (1925). 7 Groppi dealt with contempt of a state legislative body, and the contempt action was not taken until several days later without notice or opportunity for Groppi to be heard. TAYLOR v. HAYES 499 488 Opinion of the Court after trial for conduct during trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf. This is not to say, however, that a full-scale trial is appropriate. Usually, the events have occurred before the judge's own eyes, and a reporter's transcript is available. But the contemnor might at least urge, for example, that the behavior at issue was not contempt but the acceptable conduct of an attorney representing his client; or, he might present matters in mitigation or otherwise attempt to make amends with the court. Cf. Groppi v. Leslie, supra, at 503, 506 n. 11.8 8 The American Bar Association Advisory Committee on the Judge's Function has recommended, inter olia: "Notice of charges and opportunity to be heard. "Before imposing any punishment for criminal contempt, the judge should give the offender notice of the charges and at least a summary opportunity to adduce evidence or argument relevant to guilt or punishment. "Commentary "Although there is authority that in-court contempts can be punished without notice of charges or an opportunity to be heard, Ex parte Terry, 128 U.S. 289 (1888), such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect upon the court. Accordingly, notice and at least a brief opportunity to be heard should be afforded as a matter of course. Nothing in this standard, however, implies that a plenary trial of contempt charges is required." American Bar Association Project on Standards for Criminal Justice, The Function of the Trial Judge§ 7.4, p. 95 (Approved Draft 1972). Cf. Fed. Rule Crim. Proc. 42 (b); Harris v. United States, 382 U. S. 162 (1965). State courts have reached a similar conclusion. See, e. g., New York State Appellate Division, First and Second Departments, Special Rules Concerning Court Decorum § 609.2 (b) (1971) in N. Dorsen & L. Friedman, Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 352 ( 1973). 500 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. These procedures are essential in view of the heightened potential for abuse posed by the contempt power. Bloom v. Illinois, 391 U. S., at 202; Sacher v. United States, 343 U. S., at 12. The provision of fundamental due process protections for contemnors accords with our historic notions of elementary fairness. While we have no desire "to imprison the discretion of judges within rigid mechanical rules," Offutt v. United States, 348 U. S., at 15, we remain unpersuaded that "the additional time and expense possibly involved ... will seriously handicap the effective functioning of the courts." Bloom v. Illinois, supra, at 208-209. Due process cannot be measured in minutes and hours or dollars and cents. For the accused contemnor facing a jail sentence, his "liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal." Morrissey v. Brewer, 408 u. s. 471,482 (1972). Because these minimum requirements of due process of law were not extended to petitioner in this case, the contempt judgment must be set aside.9 9 My Brother REHNQursT's dissent insists tha.t the Court has rejected the teaching of Sacher v. United States, 343 U.S. 1 (1952), that in a posttrial contempt proceeding, the court need not afford the contemnor the full panoply of procedures such as "the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial." Id., at 9 (emphasis added). But all we have decided today is that a contemnor is entitled to the elementary due process protections of "reasonable notice of the specific charges and opportunity to be heard in his own behalf," supra, at 499, neither of which petitioner received. Nowhere do we intimate that "a full-scale trial is appropriate." Ibid.; see also n. 8, supra. Moreover, whatever justifications may sometimes necessitate immediate imposition of summary punishment during trial "to maintain order in the courtroom and the integrity of the trial process in the face of an 'actual obstruction of justice,'" Codispoti v. Pennsylvania, post, at 513, "[r]easons for permitting straightway TAYLOR v. HAYES 501 488 Opinion of the Court III We are also convinced that if petitioner is to be tried again, he should not be tried by respondent. We agree with the Kentucky Court of Appeals that petitioner's conduct did not constitute the kind of personal attack on respondent that, regardless of his reaction or lack of it, he would be " [ un] likely to maintain that calm detachment necessary for fair adjudication." Mayberry v. Pennsylvania, 400 U. S., at 465. But contemptuous conduct, though short of personal attack, may still provoke a trial judge and so embroil him in controversy that he cannot "hold the balance nice, clear and true between the State and the accused .... " Tumey v. Ohio, 273 U. S. 510, 532 (1927). In making this ultimate judgment, the inquiry must be not only whether there was actual bias on respondent's part, but also whether there was "such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused." Ungar v. Sarafite, 376 U. S. 575, 588 ( 1964). "Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties," but due process of law requires no less. In re Murchison, 349 U.S. 133, 136 ( 1955). With these considerations in mind, we have examined the record in this case, and it appears to us that respondent did become embroiled in a running controversy with petitioner. Moreover, as the trial progressed, there was a mounting display of an unfavorable personal attitude toward petitioner, his ability, and his motives, sufficiently exercise of summary power are not reasons for compelling or encouraging its immediate exercise." Sacher v. United States, supra, at 9- 10. 502 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. so that the contempt issue should have been finally adjudicated by another judge. Early in the trial respondent cautioned petitioner against "putting on a show" and added that "if you give him an inch, he'll take a mile. I might as well sit on him now." App. 31, 40. On another occasion when petitioner asserted that his purpose was to def end his case, respondent replied, "I'm not sure." Id., at 61. When petitioner remarked that he had five months wrapped up in the case, respondent retorted that "[b] efore it's over, you might have a lot more than that." Id., at 98. On the other hand, petitioner complained of respondent's "overbearing contentiousness in regard to me, both by phrase and by its utterances," and asserted that the court was prejudicing the trial of his case. Id., at 60. Respondent was likewise said to be "using [the] brute power of your office" in saying that petitioner was damaging his client. Id., at 61. On another occasion, respondent understood petitioner to be asserting that he, respondent, had rigged the jury. Id., at 85-86. That respondent had reacted strongly to petitioner's conduct throughout the 10-day trial clearly emerged in the statement which he made prior to sentencing petitioner and which the Court of Appeals characterized as "inappropriate." There he said petitioner had put on "the worst display" he had seen in many years at the bar-" [ a] s far as a lawyer is concerned, you're not." Id., at 28. Furthermore, respondent denied petitioner the opportunity to make any statement at that time, threatened to gag him and forthwith sentenced him to almost four and one-half years in jail, not to mention later disbarring him from further practice in his court. He also refused to grant him bail pending appeal. We assume for the purposes of this case that each of the charged acts was contemptuous; nevertheless, a sentence of this magnitude reflects the extent to which the respondent became perTAYLOR v. HAYES 503 488 Opinion of the Court sonally involved. Cf. Offutt v. United States, 348 U. S., at 17. From our own reading of the record, we have concluded that "marked personal feelings were present on both sides" and that the marks of "unseemly conduct [had] left personal stings," Mayberry v. Penmylvania, 400 U. S., at 464. A fellow judge should have been substituted for the purpose of finally disposing of the charges of contempt made by respondent against petitioner. Respondent relies on Ungar v. Sarafite, supra, but we were impressed there with the fact that the judge "did not purport to proceed summarily during or at the conclusion of the trial, but gave notice and afforded an opportunity for a hearing which was conducted dispassionately and with a decorum befitting a judicial proceeding." 376 U. S., at 588.10 Nothing we have said here should be construed to condone the type of conduct described in the opinion of the Kentucky Court of Appeals and found by that court to have been engaged in by petitioner. Behavior of this nature has no place in the courtroom which, in a free society, is a forum for the courteous and reasoned pursuit of truth and justice. 10 MR. JUSTICE REHNQUrnT's dissent also asserts that our decision provides the means whereby "a judge can be driven out of a case by any counsel sufficiently astute to read the new-found constitutional principles enunciated [here and in Mayberry v. Pennsylvania, 400 u. S. 455 (11.171)]." Post, at 530. But this statement~perhaps dissenter's license-misconceives our holding and undervalues the import of the Due Process Clause. As expressly noted in the text, we by no means equate this case with Mayberry v. Pennsylvania. It is not petitioner's ronduct, considered alone, that requires recusal in this case; rather, the critical factor, as revealed by the record before us, is the character of respondent's responsr to misbehavior during the course of the trial. The dissent, of course, may view the record differently, but on that issue we are in unavoidable disagreement. 504 OCTOBER TERM, 1973 MARSHALL, J., dissenting in part 418 u. s. The judgment of the Kentucky Court of Appeals is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion. So ordered. MR. JusTICE DOUGLAS joins Parts II and III of the Court's opinion. [For dissenting opm10n of MR. JusTICE REHNQUIST, see post, p. 523.] MR. JUSTICE MARSHALL, dissenting in part. I join Parts II and III of the opinion of the Court, but I cannot join the holding in Part I that petitioner was not entitled to a jury trial. Petitioner was summarily convicted of contempt and sentenced to almost four and one-half years in prison. In my view, this sentence marked the contempt charges against petitioner as "serious" rather than "petty" and called into play petitioner's Sixth Amendment right to a jury trial. The Court, however, relies on the fact that the trial judge subsequently realized his error and reduced the sentence to six months. The Court characterizes this as a determination by the State that "the contempt is not so serious as to warrant more than a six-month sentence." Ante, at 496. In my view, the trial judge's reduction of petitioner's sentence was a transparent effort to circumvent this Court's Sixth Amendment decisions and to save his summary conviction of petitioner without the necessity of airing the charges before an impartial jury. It is hardly coincidence that petitioner's sentence was reduced to the maximum that our decisions would permit. Today's decision represents an extraordinarily rigid and wooden application of the six-month rule that the Court has fashioned to determine when the Sixth AmendTAYLOR v. HAYES 505 488 MARSHALL, J., dissenting in part ment right is applicable. In permitting this obvious device to succeed, I think that the Court changes the nature of the six-month rule from a reasonable effort to distinguish between "serious" and "petty" contempts into an arbitrary barrier behind which judges who wish to protect their summary contempt convictions without exposing their charges to the harsh light of a jury may safely hide. The very fact that such a substantial contempt sentence was imposed, and then reduced to the six-month maximum, should be a warning to us- that the fairness of the process which petitioner has received is suspect, and that the contempt charges involved here especially require the scrutiny of a jury trial. Statements in the plurality opinion in Chefj v. Schnackenberg, 384 U. S. 373, 380 ( 1966), to the contrary notwithstanding, I do not believe that petitioner could be deprived of his Sixth Amendment right to jury trial, once it attached through the imposition of a substantial sentence, by the subsequent action of the trial court or an appellate court in reducing the sentence. 506 OCTOBER TERM, 1973 Syllabus 418 U.S. CODISPOTI ET AL. V. PENNSYLVANIA CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA No. 73-5615. Argued March 25, 1974--Decided June 26, 1974 Petitioners, Codispoti and Langnes, were tried before a judge in separate proceedings for contemptuous conduct that allegedly occurred during the course of their criminal trial before another judge, and were found guilty on each of several separate charges. The judge in the contempt proceedings, who refused petitioners' request for a jury trial, imposed consecutive sentences, Codispoti receiving six months for each of six contempts and three months for the seventh (aggregating over three years), and Langnes six months for each of five contempts and two months for the sixth (aggregating close to three years). The Pennsylvania Supreme Court affirmed. This Court granted certiorari limited to questions raising the issue whether petitioners should have been afforded a jury trial. Held: 1. Though a crime carrying more than a six-month sentence is a serious offense triable by jury, Frank v. United States, 395 U. S. 147; Baldwin v. New York, 399 U.S. 66, an alleged contemnor is not entitled to a jury trial simply because a strong possibility exists that upon conviction he will face a substantial term of imprisonment regardless of the punishment actually imposed. See Taylor v. Hayes, ante, p. 488. P. 512. 2. In the case of post-verdict adjudications of various acts of contempt committed during trial, the Sixth Amendment requires a jury trial if the sentences imposed aggregate more than six months, even though no sentence for more than six mont hs was imposed for any one act of contempt. Pp. 515-517. 453 Pa. 619, 306 A. 2d 294, reversed and remanded. WHITE, J., delivered the opinion of the Court, in which DouGLAS, BRENNAN, and PowELL, JJ., joined and in Parts I and III of which MARSHALL, J., joined. MARSHALL, J., filed an opinion concurring in part, post, p. 518. BLACKMUN, J., filed a dissenting opinion, .in which BURGER, C. J., and STEWART and REHNQUIST, JJ., joined, post, p. 522. REHNQUIST, J., filed a dissenting opinion, in Part II of which BURGER, C. J., joined, post, p. 523. John J. Dean argued the cause for petitioners. With him on the brief was George H. Ross. CODISPOTI v. PENNSYLVANIA 507 506 Opinion of the Court Robert L. Eberhardt argued the cause for respondent pro hac vice. With him on the brief was Robert W. Duggan. Mr. JUSTICE WHITE delivered the opinion of the Court.* In December 1966, petitioners Dominick Codispoti and Herbert Langnes were codefendants with Richard Mayberry in a criminal trial ending in a verdict of guilty. Each acted as his own counsel, although legal advice was available from appointed counsel. At the conclusion of the trial, the judge pronounced Mayberry guilty of 11 contempts committed during trial and sentenced. him to one to two years for each contempt. Codispoti was given like sentences for each of seven separate contempts. Langnes was sentenced to one to two years on each of six separate citations. Mayberry's total sentence was thus 11 to 22 years, Codispoti's seven to 14 years, and Langnes' six to 12 years. The contempt convictions were affirmed by the Pennsylvania Supreme Court. This Court granted Mayberry's petition for certiorari, 397 U.S. 1020, and vacated the judgment of the Pennsylvania court, directing that "on remand another judge, not bearing the sting of these slanderous remarks and having the impersonal authority of the law, [sit] in judgment on the conduct of petitioner as shown by the record." Mayberry v. Pennsylvania, 400 U. S. 455, 466 (1971). The contempt charges against Mayberry and petitioners were then retried in separate proceedings before another trial judge.' Codispoti's demand for a jury was *Part II of the opinion is joined only by MR. JusTICE DouGLAs, MR. JUSTICE BRENNAN, and MR. JUSTICE POWELL. 1 The seven contempts charged against Codispoti were: "I. That while being tried by a jury before Albert A. Fiok, J. on November 18, 1966, he, the defendant, accused the court of 508 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. denied. He also moved to subpoena witnesses "to prove that my actions did not disrupt the proceedings, and I intend to prove that my actions [sic] was not contemptuous, that it was merely an answer to the provocation made by the presiding Judge." App. 47. This motion was also denied, the court remarking that "this is an issue between the Court and you, and the record will speak for the Court, and you and counsel can speak for yourself." Ibid. trying to protect the prison authorities by saying, 'Are you trying to protect the prison authorities, Your Honor? Is that your reason?' "2. That while on trial as aforesaid on November 29, 1966, he, the defendant, accused the court of kowtowing and railroading the defendant into life imprisonment by saying '. . . it is only because the defendants in this case will not sit still and be kowtowed and be railroaded into a life imprisonment.' "3. Th.a.t while on trial as aforesaid on November 30, 1966, he, the defendant, called the judge 'Caesar' and accused the court of misconduct by saying, 'You're trying to railroad us.' and ' ... I have never come across such a tyrannical clisplay of corruption in my life.' "4. That while on trial as aforesaid on December 1, 1966, he, the defendant, addressed the Court in an insolent and derogatory manner by saying, 'Are you going to tell me my codefendant is not crazy? You must be crazy to try me with him.' "5. Th.a.t while on trial as aforesaid on December 2, 1966, he, the defendant, accused the Court of criminal conspiracy between it and prison officials by saying, 'I further intend to prove there is a conspiracy between the prison authorities and this Court.' "6. That while on trial as aforesaid on December 8, 1966, he, the defendant, created a despicable scene and refused to continue with the calling of his witnesses unless the Court ordered a mistrial, and in general creating an uproar, such an uproar as to cause the termination of the trial. "7. That while on trial as aforesaid on December 9, 1966, he, the defendant, by constant and boisterous and insolent conduct inter. rupted the Court in its attempts to charge the jury, thereby creating an atmosphere of utter confusion and chaos." App. 33-34. CODISPOTI v. PENNSYLVANIA 509 506 Opinion of the Court The trial then proceeded, the State offering into evidence the relevant portions of the transcript of the 1966 criminal proceedings in the course of which the alleged contempts occurred. The State then rested. Codispoti neither testified nor called witnesses. The court found that he had committed the seven contemptuous acts as charged and sentenced him to six months in prison for each of six contempts and a term of three months for another, all of these sentences to run consecutively. Petitioner Langnes' trial followed a very similar course.2 He was found guilty of six separate contempts 2 The six contempts charged agamst Langnes were: "1. That while being tried by a jury before Albert A. Fiok, J. on November 28, 1966, he, the defendant, accused the court of conspiracy by saying, 'For the record, before he begins again, I want the record to show this is another proof of conspiracy between this Court and institution.' "2. That while on trial as aforesaid on November 29, 1966, he, the defendant, threatened to blow the trial judge's head off, by saying, 'If I have to blow your head off, that's exactly what I'll do. I don't give a damn if its on the record or not. If I got to use force, I will. That's what the hell I'm going to do.' "3. That while on trial as aforesaid on December 1, 1966, he, the defendant, accused and threatened the court by saying, 'Like I told you, you force this trial on me-you going to give me an illegal trial, I told you before what I was going to do to you, and I mean it. Now I refuse to go on with this trial if you are going to railroad me and badger my witnesses, force me to an unfair trial, that is exactly what I am going to do, punk. I'm going to blow your head off. You understand that?' "4. That while on trial as aforesaid on December 5, 1966, he, the defendant, told the court to 'Go to hell.' and accused the court of misconduct by saying, 'One reason, you obviously have gotten in contact with the local papers to sharpen the hatchet over the heads of the defendants accusing them of causing the taxpayers fifty grand which as a result gave this hearing a prejudicial atmosphere. I would like to state here for the record, and for the papers, if need be, it is not us that is costing the taxpayers money. It is you, Mr. 552•191 0 - 76 • 35 510 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. and sentenced to five terms of six months each and one term of two months, all to be served consecutively. The trial court filed an opinion stating that "the only points at issue are the validity of the sentences. The question of guilt of contemptuous conduct has been confirmed by both the Supreme Court of Pennsylvania ... and by the U. S. Supreme Court ... , therefore testimony at this hearing was limited to the record." App. 35. The court also held that petitioners were not entitled to a jury trial "because the questions of guilt to which the juries' decisions would be limited had already been adjudicated adversely to the Defendants by two appellate courts. Furthermore, in the instant cases no term of imprisonment in excess of six months was imposed for any one offense. The offenses for which sentences were imposed occurred at different times and on different dates." Id., at 36 (footnote omitted). Maroney, and the Commonwealth that is costing the taxpayers money.' "5. That while on trial as aforesaid on December 5, 1966, he, the defendant, made scurrilous remarks to the court by saying, 'For the record, I would like to state that as far as my personal opinion is concerned, communist Russia, communist China, and Cuba need men like you. I think wherever you came from you infiltrated the courts and the whole place might as well be communist Russia.' "6. That while on trial as aforesaid on December 9, 1966, he, the defendant, threatened the life of the court by saying, 'I object t-0 what you did to my two codefendants and I swear on my mother's name that I will keep my promise to you, the two threats I made. Don't worry about me interrupting during your summation. I won't even dignify these stinking proceedings, punk, go to hell, and I will shake hands in hell with you. I will be damned to you.' Also, he, the defendant, said, 'You are a dead man, stone dead. Your Honor.'" App. 30-31. CODISPOTI v. PENNSYLVANIA 511 506 Opinion of the Court The Pennsylvania Supreme Court affirmed without opinion, one justice dissentillg on the ground that petitioners were entitled to a jury trial. 453 Pa. 619, 306 A. 2d 294. We granted certiorari limited to those questions raising the issue whether petitioners should have been afforded a jury trial. 414 U. S. 1063 (1973).3 I In Duncan v. Loui.siana, 391 U. S. 145 (1968), the Court held that the Fourteenth Amendment guaranteed to defendants in state criminal trials the right to jury trial provided in the Sixth Amendment. In a companion case, Bloom v. Illinois, 391 U. S. 194 (1968), the Court held that while petty contempts, like other petty crimes, could be tried without a jury, serious criminal contempts had to be tried with a jury if the defendant insisted on this mode of trial. Although the judgment about the seriousness of the crime is normally heavily influenced by the penalty authorized by the legislature, the Court held that where no legislative penalty is specified and sentence is left to the discretion of the judge, as is often true in the case of criminal contempt, the pettiness or seriousness of the contempt will be judged by the penalty actually imposed. Finally, the Court recognized that sentences up to six months could be imposed for criminal 3 The questions on which certiorari was granted were stated in the peUion, as follows: "I. Should petitioners receive cumulative sentences for contempt of court imposed at the end of a trial where the total effective sentence received must be used rather than the individual sentences in order to determine the seriousness of the contempt and thereby detenninc whether the accused should be afforded the right to a jury trial? "2. Should the strong possibility of a substantial term of imprisonment require that an accused be afforded the right to a jury trial?" 512 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. contempt without guilt or innocence being determined by a jury, but a conviction for criminal contempt in a nonjury trial could not be sustained where the penalty imposed was 24 months in prison. Since that time, our decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes. Frank v. United States, 395 U. S. 147, 149-150 (1969); Baldwin v. New York, 399 U.S. 66, 69 (1970).4 Under these cases, we plainly cannot accept petitioners' argument that a contemnor is entitled to a jury trial simply because a strong possibility exists that he will face a substantial term of imprisonment upon conviction, regardless of the punishment actually imposed. See Taylor v. Hayes, ante, p. 488. Our cases, however, do not expressly address petitioners' remaining argument that they were entitled to jury trials because the prison sentences imposed after posttrial convictions for contemptuous acts during trial were to be served con- • In tracing the lineage of the six-month dividing line for purposes of ascertaining whether a jury trial is required under the Sixth Amendment, MR. JUSTICE REHNQUIST's dissent implicitly questions the authenticity of this rule. Putting aside whether the "constitutional rule of Bloom" ever "evolved" int-0 the present rule, it is sufficient to note that although only three Members of the Court explicitly embraced the six-month demarcation point in Baldwin v. New York, 399 U. S. 66 (1970), Mr. Justice Black and MR. JuSTICE DOUGLAS concurred in the judgment. While reading the Sixth Amendment to require a jury trial for "all crimes," they expressed the view that imprisonment for more than six months would certainly necessitate a jury trial. Five Members of the Court out of the eight participating therefore agreed that, at the very least, the Sixth Amendment requires a jury trial in all criminal prosecutions where the term of imprisonment authorized by statute exceeds six months. CODISPOTI v. PENNSYLVANIA 513 506 Opinion of WHITE, J. secutively and, although each was no more than six months, aggregated more than six months in jail.5 II There are recurring situations where the trial judge, to maintain order in the courtroom and the integrity of the trial process in the face of an "actual obstruction of justice," In re McConnell, 370 U. S. 230, 236 (1962); see also In re Little, 404 U. S. 553, 555 (1972), convicts and sentences the accused or the attorneys for either side for various acts of contempt as they occur. 5 My Brother REHNQUIST submits that petitioners are not entitled to a jury trial because they were originally tried and convicted of contempt in 1966, two years before this Court's decisions in Duncan v. Louisiana, 391 U.S. 145 (1968), and Bloom v. Illinois, 391 U.S. 194 (1968), which we held in DeStefano v. Woods, 392 U.S. 631 (1968), should receive only prospective application. His dissent finds further support for its conclusion in Jenkins v. Delaware, 395 U. S. 213 (1969}, where the Court held that Miranda v. Arizona, 384 U. S. 436 ( 1966), did not apply to persons whose retrials had commenced after the date of the Miranda decision if their original trials had begun before that date. This view, however, represents a fundamental misreading of the reach of these decisions and their applicability to the peculiar circumstances of this case. DeStef ano unmistakably stated that "we will not reverse state convictions for failure to grant jury trial where trials began prior to May 20, 1968, the date of this Court's decisions in Duncan v. Louisiana and Bloom v. Illinois." 392 U. S., at 635 (emphasis added). DeStejano did not exempt from the jury-trial requirement trials beginning after that date, and here petitioners' convictions occurred in a trial that began over three and one-half years after the Duncan and Bloom decisions. The boundaries for the retroactive impa.ct of Duncan and Bloom were advisedly established, for the jurytrial requirement, by definition, relates to trials, not to uncorrectable police conduct which occurred prior to trial and which, if illegal, would preclude the use of perhaps critical evidence gathered in reliance on then-existing law. Jenkins v. Delaware involved the latter considerations and has little bearing here. 514 OCTOBER TERM, 1973 Opinion of WHITE, J. 418 U.S. Undoubtedly, where the necessity of circumstances warrants, a contemnor may be summarily tried for an act of contempt during trial and punished by a term of no more than six months. Nor does the judge exhaust his power to convict and punish summarily whenever the punishment imposed for separate contemptuous acts during trial exceeds six months. Cf. United States v. Seale, 461 F. 2d 345,355 (CA7 1972). Bloom v. Illinois, supra, recognized, as cases in this Court have consistently done, "the need to maintain order and a deliberative atmosphere in the courtroom. The power of a judge to quell disturbance cannot attend upon the impaneling of a jury." 391 U. S., at 210. "[A] criminal trial, in the constitutional sense, cannot take place where the courtroom is a bedlam .... A courtroom is a hallowed place where trials must proceed with dignity .... " Illinois v. Allen, 397 U. S. 337, 351 (1970) (separate opinion of DOUGLAS, J.). See also K. Dorsen & L. Friedman, Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 10--23 (1973); Burger, The ~ccessity for Civility, 52 F. R. D. 211, 214-215 ( 1971). "To allow the disruptive activities of a defendant ... to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes." Illinois v. Allen, supra, at 350 (BRENNAN, J., concurring). More recently, in Mayberry v. Pennsylvan-ia, supra, we again noted that a judge, when faced with the kind of conduct there at issue, "could, with propriety, have CODISPOTI v. PENNSYLVANIA 515 506 Opinion of the Court instantly acted, holding petitioner in contempt .... " 400 U. S., at 463. That the total punishment meted out during trial exceeds six months in jail or prison would not invalidate any of the convictions or sentences, for each contempt has been dealt with as a discrete and separate matter at a different point during the trial. III When the trial judge, however, postpones until after trial the final conviction and punishment of the accused or his lawyer for several or many acts of contempt committed during the trial, there is no overriding necessity for instant action to preserve order and no justification for dispensing with the ordinary rudiments of due process. Mayberry v. Pennsylvania, supra, at 463- 464; Groppi v. Leslie, 404 U. S. 496, 499-507 (1972); Taylor v. Hayes, ante, at 497. Moreover, it is normally the trial judge who, in retrospect, determines which and how many acts of contempt the citation will cover. It is also he or, as is the case here, another judge who will determine guilt or innocence absent a jury, who will impose the sentences and who will determine whether they will run consecutively or concurrently. In the context of the post-verdict adjudication of various acts of contempt, it appears to us that there is posed the very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate. Cf. ibid. The jury-trial guarantee reflects "a profound judgment about -the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government." Duncan v. Louisiana, 391 U. S., at 155 (footnote omitted). The Sixth Amendment represents a "deep commitment of the Nation to the right of 516 OCTOBER TER:\,1, 1973 Opinion of the Court 418 U.S. jury trial in serious criminal cases as a defense against arbitrary law enforcement .... " Id., at 156. Moreover, "criminal contempt is a crime in every fundamental respect . . . . [I]n terms of those considerations which make the right to jury trial fundamental in criminal cases, there is no substantial difference between serious contempts and other serious crimes. Indeed, in contempt cases an even more compelling argument can be made for providing a right to jury trial as a protection against the arbitrary exercise of official power. Contemptuous conduct, though a public wrong, of ten strikes at the most vulnerable and human qualities of a judge's temperament. Even when the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority, or an interference with the judicial process or with the duties of officers of the court." Bloom v. Illinois, 391 U.S., at 201-202. In the case before us, the original trial judge filed the contempt charges against these petitioners, while another judge tried them and imposed the sentences. Because the latter had the power to impose consecutive sentences, as he did here, guilt or innocence on the individual charges bore heavily on the ultimate sentence and was of critical importance. Here the contempts against each petitioner were tried seriatim in one proceeding, and the trial judge not only imposed a separate sentence for each contempt but also determined that the individual sentences were to run consecutively rather than concurrently, a ruling which necessarily extended the prison term to be served beyond that allowable for a petty criminal offense. As a result of this single proceeding, Codispoti was sentenced to three years and three months for his seven contemptuous acts, Langnes to two years and eight CODISPOTI v. PENNSYLVANIA 517 506 Opinion of the Court months for his six contempts. In terms of the sentence imposed, which was obviously several times more than six months, each contemnor was tried for what was equivalent to a serious offense and was entitled to a jury trial. We find unavailing respondent's contrary argument that petitioners' contempts were separate offenses and that, because no more than a six months' sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding respondent's characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge, and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired. Neither are we impressed with the contention that today's decision will provoke trial judges to punish summarily during trial rather than awaiting a calmer, more studied proceeding after trial and deliberating "in the cool reflection of subsequent events." Yates v. United States, 355 U. S. 66, 76 (1957) (footnote omitted). Summary convictions during trial that are unwarranted by the facts will not be invulnerable to appellate review. Cf. Sacher v. United States, 343 U. S. 1, 9, 13 (1952).6 Nor can we accept the trial court's view that the question of petitioners' guilt on the contempt charges had already been conclusively adjudicated in this Court. Our decision in Mayberry v. Pennsylvania, supra, although expressing strong condemnation of Mayberry's conduct, 6 "When constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record. See, e. g., Edwards v. South Carolina, 372 U. S. 229, 235; Blackburn v. Alabama, 361 U. S. 199, 205, n. 5." Brookhart v. Janis, 384 U.S. 1, 4 n. 4 (1966). 518 OCTOBER TERM, 1973 MARSHALL, J ., concurring in part 418 U.S. which we reaffirm, did not purport to affirm Mayberry's contempt conviction. On the contrary, the judgment affirming the conviction was vacated and a new trial required before a different judge who was to sit "in judgment on the conduct of petitioner as shown by the record." 400 U. S., at 466. The judgment of the Pennsylvania Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion. So ordered MR. JUSTICE MARSHALL, concurring in part. I concur in the judgment of the Court, and in Parts I and III of the Court's opinion. However, I cannot join Part II of the opinion, which suggests that the trial judge in a situation such as we have here could impose an unlimited number of separate, consecutive sixmonth sentences upon a defendant "for separate contemptuous acts during trial," so long as the judge convicts and punishes summarily upon the occurrence of each contemptuous act. In my view, the Sixth Amendment right to jury trial would be equally applicable to this situation. I The Court's orinion observes that" [ t] he Sixth Amendment represents a 'deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary la,v enforcement.'" Ante, at 515-516, quoting Duncan v. Lou-isiana, 391 U.S. 145, 156 (1968). The opinion further recognizes that it is the trial judge who in a single proceeding acts as prosPcutor, "determin- [ing] which and how many acts of contempt the citation will cover"; as trier of fact, "determin [ing] guilt or innocence absent a jury"; and as judge, "irnpos[ing] the sentences and ... determin [ing] whether they will run conCODISPOTI v. PENNSYLVANIA 519 506 1-iARSHALL, J., concurring in part secutively or concurrently." Ante, at 515. Thus, the Court concludes, "there is posed the very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate." Ibid. I agree. But I completely fail to see how there is any less likelihood of such arbitrary action by a judge when he acts summarily to punish each allegedly contemptuous act by a defendant as it occurs, rather than awaiting the end of trial to try the contempts. Indeed, the suggestion provides an incentive for a trial judge to act in the heat of the moment, and thus encourages the very arbitrary action which it is the purpose of the Sixth Amendment to eliminate. We have held that a six-month sentence is the constitutional dividing line between serious offenses for which trial by jury must be afforded and petty offenses, and that in contempt cases it is the sentence actually imposed rather than the penalty authorized by law which is determinative. Accordingly, the Court today holds that Codispoti and Langnes are constitutionally entitled to a jury trial because " [ i] n terms of the sentence imposed, which was obviously several times more than six months, each contemnor was tried for what was equivalent to a serious offense." Ante, at 517. The Court rejects the State's argument that the individual contempts were separate offenses for Sixth Amendment purposes by pointing out that the contempts arose from a single trial, that they were· charged by a single judge, and that the individual sentences were then aggregated. With all due respect, the same would be true if the judge had imposed summary punishment as the contemptuous acts occurred. Where the contemptuous acts arose out of a single course of conduct by the defendant, I think that they should be treated as a single serious offense for which the Sixth Amendment requires a jury trial, whether the judge seeks 520 OCTOBER TERM, 1973 MARSHALL, J., concurring in part 418 U.S. to use his summary contempt power in individual instances during trial or tries the contempts together at the end of trial. See N. Dorsen & L. Friedman, Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 222-224 (1973). The only justification advanced by the Court to support the contrary position is the "overriding necessity for instant action to preserve order." Ante, at 515. But we rejected this very argument in Bloom v. Illinois, 391 U.S. 194, 209-210 (1968). There, too, it was suggested that an exception to the constitutional rule requiring jury trial in serious contempt cases should be made for contempts committed in the presence of the judge because of "the need to maintain order and a deliberative atmosphere in the courtroom." Although we acknowledged that there was a "strong temptation" to do so, we held that the need to maintain order was not sufficient to justify an exception to the constitutional requirement. II Equally important, I am convinced that there is no "overriding necessity" for repeated use of the summary contempt power against a criminal defendant to maintain order in the courtroom. No clearer statement of the problem of courtroom disorder and its solution can be found than Mr. Justice Black's statement in Illinois v. Allen, 397 U. S. 337, 343-344 (1970): "It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly 506 CODISPOTI v. PENNSYLVANIA 521 MARSHALL, J., concurring in part defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at lea.st three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (I) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly." The Court in Allen set out three alternative ways of dealing with courtroom disorder. Today my Brothers single out one of these three alternatives and sanction the use of seriatim judge-imposed six-month sentences to maintain order and a deliberative atmosphere in the courtroom because of the necessity for this remedy. There is nothing in Allen, however, that approves a succession of judge-imposed six-month contempt citations in one trial, and I have been unable to find any of our cases giving such specific authorization. This is too big a step to take where such a positive declaration of law is not necessary for the decision of the case at hand. The availability of the other remedies set forth in Allen is persuasive proof that courtroom disorder can be effectively dealt with without the use of repeated summary contempts resulting in lengthy jail terms. See N. Dorsen & L. Friedman, S'lf,pra, at 235. Indeed, repeated contempt citations are probably the least effective way to deal with the problem. The very fact that a series of contempt citations has failed to check the defendant's contemptuous acts and restore a deliberative atmosphere in the courtroom itself demonstrates that another citation is unlikely to do so. Either of the other two alternatives set forth in Allen would correct rather than prolong the disruptions of an orderly trial. Rather than permit the 522 OCTOBER TERM, 1973 BLACKMUN, J., dissenting 418 u. s. use of repeated contempt citations resulting in a sentence of over six months, Allen suggests that after an initial warning, see 397 U. S., at 350 (BRENNAN, J., concurring), the next disruption could be punished with a contempt citation and a six-month sentence, plus a firm warning that any further disruption will be followed by binding or gagging the defendant or removing him from the courtroom until he promises to conduct himself properly. This approach would be more effective in maintaining that "dignity, order, and decorum" of which Mr. Justice Black spoke in Allen than successive contempt citations after future disruptions, without running afoul of the Sixth Amendment's right to jury trial. MR. JUSTICE BLACKMUN, with whom THE CHIEF Jus- TICE, MR. JUSTICE STEWART, and MR. JusTICE REHNQUIST join, dissenting. In Bloom v. Illinois, 391 U.S. 194 (1968), this Court established a constitutional right to a jury trial of a charge for a criminal contempt where the penalty imposed exceeded six months. There the contempt consisted of a lawyer's filing a spurious will for probate. It was not a direct contempt in open court. Where, as in Bloom, the criminal contempt takes place outside the presence of the court, there is little to distinguish the contempt, for purposes of using a jury as the factfinder, from the run-of-the-mill criminal offense. In this respect, the result in Bloom was a logical one. In the present case, however, the contempt took place in open court and the incident and all its details are fully preserved on the trial record. The Court's opinion does not specify and leaves unclear what facts, if any, remain to be determined. I am at a loss, therefore, to see the role a jury is to perform. The perceived need to remove CODISPOTI v. PENNSYLVANIA 523 506 REHNQUIST, J ., dissenting the case from the contemned judge is fully served by assigning the case to a different judge. See Taylor v. Hayes, ante, p. 488; Mayberry v. Pennsylvania, 400 U.S. 455 (1971). And, as MR. JUSTICE REHNQUIST points out, since the new judge, not the jury, will impose the sentence, there is nothing the jury can do by way of mitigating an excessive punishment. The determination of whether basically undisputed facts constitute a direct criminal contempt is a particularly inappropriate task for the jury. Before today, this determination has always been the exclusive province of the court, not the jury, and never before has this Court required a jury trial in a case involving a direct contempt.* Since I believe, as a practical matter, that there is no function for a jury to serve in a case such as this, I do not join the Court's extension of Bloam to include direct, in-court contempts. I, therefore, respectfully dissent. MR. JusTICE REHNQUIST, with whom THE CHIEF Jus- TICE joins as to Part II, dissenting.t These two cases are graphic illustrations of the manner in which constitutional limitations on the power of a trial judge to summarily punish for contempt have been fashioned virtually out of whole cloth by this Court in *In Bloom v. Illinois, 391 U.S. 194,210 (1968), the Court acknowledged "a strong temptation to make exception to the rule we establish today for disorders in the courtroom." Although wholly unnecefsary to its decision, the Court there resisted that temptation and declined to recognize the exception. In my opinion, the result in Bloom, an out-of-court contempt, does not lead inevitably to the result reached today in Codispoti's case, and I dPcline to follow Bloom's dictum that carries the contrary implication. t[This opinion applies also to No. 73-473, Taylor v. Hayes, ante, p. 488.] 524 OCTOBER TERM, 1973 REHNQUIST, J., dissenting 418 u. s. the course of only 20-odd years. In Sacher v. United States, 343 U. S. 1 (1952), the Court, speaking through Mr. Justice Jackson, said: "Summary punishment always, and rightly, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes. But the very practical reasons which have led every system of law to vest a contempt power in one who presides over judicial proceedings also are the reasons which account for it being made summary. . . . The rights and immunities of accused persons would be exposed to serious and obvious abuse if the trial bench did not possess and frequently exert power to curb prejudicial and excessive zeal of prosecutors. The interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders." Id., at 8. The Court's decisions today are the culmination of a recent trend of constitutional innovation which virtually emasculates this historic power of a trial judge. If the Court's holdings in this area were the product of any new historical insight into the meaning of the Fourteenth Amendment, or if indeed they could be regarded as a desirable progression toward a reign of light and law, even though of dubious constitutional ancestry, there. would be less occasion for concern. But from the hodgepodge of legal doctrine embodied in these decisions, which have irretrievably blended together constitutional guarantees of jury trial in criminal cases, constitutional guarantees of impartial judges, and fragments of the law of contempt in federal courts, the only consistent thread which emerges is this Court's inveterate propensity to second-guess the trial judge. CODISPOTI v. PENNSYLVANIA 525 506 REHNQUIST, J., dissenting I In Taylor v. Hayes, ante, p. 488, the Court holds, squarely contrary to the holding in Sacher, supra, that the respondent trial judge was not entitled to proceed summarily against petitioner, even though all of the conduct in question occurred in the presence of respondent. The Court apparently concludes that since respondent did not sentence petitioner until after the proceedings at issue were completed, and at that point refused to permit petitioner to respond, petitioner's due process rights were violated. This conclusion is completely at odds with Sacher. That case involved the contempt convictions of various defense counsel as an aftermath of the trial of various Communist Party leaders on charges of violating the Smith Act. Upon receiving the guilty verdict, Judge Medina of the Southern District of New York at once filed a certificate under Fed. Rule Crim. Proc. 42 (a), finding various defense counsel, including one defendant who had represented himself, guilty of contempt. Federal Rule Crim. Proc. 42 (a) provided then, as it does now, that "[a] criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record." The contemnors argued that since Judge Medina had waited until the end of the trial to sentence them, the power of summary punishment for direct contempts under Rule 42 (a) had expired, and the provisions of Rule 42 (b) requiring notice and hearing became applicable. This Court in Sacher rejected that contention: "The Rule in question contemplates that occasions may arise when the trial judge must immediately 552-191 0 - 76 • 36 526 OCTOBER TERM, 1973 REHNQUIST, J ., dissenting 418 U.S. arrest any conduct of such nature that its continuance would break up a trial, so it gives him power to do so summarily. But the petitioners here contend that the Rule not only permits but requires its instant exercise, so that once the emergency has been survived punishment may no longer be summary but can only be administered by the alternative method allowed by Rule 42 (b). We think 'summary' as used in this Rule does not refer to the timing of the action with reference to the offense but refers to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial. The purpose of that procedure is to inform the court of events not within its own knowledge. The Rule allows summary procedure only as to offenses within the knowledge of the judge because they occurred in his presence. " ... To summon a lawyer before the bench and pronounce him guilty of contempt is not unlikely to prejudice his client. It might be done out of the presence of the jury, but we have held that a contempt judgment must be public. Only the naive and inexperienced would assume that 11ews of such action will not reach the jurors. If the court were required also then to pronounce sentence, a construction quite as consistent with the text of the Rule as petitioners' present contention, it would add to the prejudice .... " 343 U. S., at 9-10. At no point did the Court in Sacher suggest that the procedures set forth in Rule 42 (a) were subject to any constitutional infirmity. Yet by the decision in Taylor CODISPOTI v. PENNSYLVANIA 527 506 REHNQUIST, J., dissenting v. Hayes, the Court has now held that procedures upheld within the unitary confines of the federal court system only two decades ago may not now be constitutionally employed by a State. The decision in Taylor will surely come as something of a shock to federal judges who must now decide whether they may constitutionally utilize the provisions of Fed. Rule Crim. Proc. 42 (a) in punishing direct contempts. Our prior decisions have continuously adhered to the view that " [ w] here the contempt is committed directly under the eye or within the view of the court, it may proceed 'upon its own knowledge of the facts, and punish the offender, without further proof, and without issue or trial in any form."' In re Savin, 131 U.S. 267,277 ( 1889), quoting Ex parte Terry, 128 U. S. 289, 309 (1888). See Cooke v. United States, 267 U. S. 517, 535 (1925); Fisher v. Pace, 336 U. S. 155, 159-160 (1949).' It is only when the contempt is not a direct one, i. e., observed 1 See also the more than 50 cases cited in United State.s v. Barnett, 376 U. S. 681, 694 n. 12 (1964). The Court in Ex parte Terry, 128 U.S. 289 (1888), stated: "We have seen that it is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them." Id., at 313. See also Cooke v. United States, 267 U.S., at 534. 528 OCTOBER TERM, 1973 REHNQUIST, J., dissenting 418 U.S. by the judge himself, that the power to proceed summarily becomes subject to some qualification. In re Oliver, 333 U. S. 257, 274-276 (1948). Groppi v. Leslie, 404 U. S. 496 (1972), relied upon by the Court, was a wholly different case from Taylor. In Groppi, the Assembly of the Wisconsin Legislature passed a resolution citing the petitioner there for contempt of that body, which had allegedly occurred two days previously. This Court reversed that conviction because petitioner had not been afforded adequate notice and hearing. The Court in Groppi noted that Sacher was a different case because it involved courtroom contempts by lawyers, with repeated warnings by the judge, and an opportunity on their behalf to speak. Taylor is no different from Sacher; respondent judge repeatedly warned petitioner of his contemptuous conduct, and when he informed petitioner that he was in contempt permitted petitioner an opportunity to speak. Indeed, the Court in Taylor indicates that it agrees with the Kentucky Court of Appeals that" '[t]he contempt citations and the sentences coming at the end of the trial were not and could not have been a surprise to Taylor, because upon each occasion and immediately following the charged act of contempt the court informed Taylor that he was at that time in contempt of court.' " Ante, at 496-497, quoting 494 S. W. 2d 737, 741-742 (Ky. 1973). Even were I in agreement with the Court;s conclusion that Taylor's contempt conviction should be reversed, I nevertheless could not join in the holding that if petitioner is to be tried again, he may not be tried by respondent. While conceding that petitioner's conduct did not constitute the kind of personal attack on respondent that would prevent the latter from maintaining the calm detachment necessary for fair adjudication, Mayberry v. Penmylvanw, 400 U. S. 455 (1971), the Court holds that "it appears to us that respondent did become CODISPOTI v. PENNSYLVANIA 529 506 REHNQUIST, J., dissenting embroiled m a running controversy with petitioner." Ante, at 501. This portion of the Court's holding can only be described as a total repudiation of the principle laid down in Sacher: "A construction of the Rule is advocated which would deny a judge power summarily to punish a contempt that is personal to himself except, perhaps, at a moment when it is necessary to forestall abortion of the trial. His only recourse, it is said, is to become an accuser or complaining witness in a proceeding before another judge. "The Rule itself expresses no such limitation, and the contrary inference is almost inescapable. It is almost inevitable that any contempt of a court committed in the presence of the judge during a trial will be an offense against his dignity and authority. At a trial the court is so much the judge and the judge so much the court that the two terms are used interchangeably in countless opinions in this Court and generally in the literature of the law, and contempt of the one is contempt of the other. It cannot be that summary punishment is only for such minor contempts as leave the judge indifjerent and may be evaded by adding hectoring, abusive and defiant conduct toward the judge as an individual. Such an interpretation would nullify, in practice, the power it purports to grant." 343 U. S., at 11-12 (emphasis added). The Court in Sacher was interpreting the language of Fed. Rule Crim. Proc. 42 (a), and, without the slightest suggestion that there might be constitutional infirmities in such procedures, refused to require retrial of the contemnors there before a different judge. Twelve years later, in a state case, Ungar v. Sarafite, 376 U. S. 575 530 OCTOBER TERM, 1973 REHNQUIST, J., dissenting 418 U.S. ( 1964), the Court reaffirmed the principles of Sacher, in the face of an argument that the Constitution required something different. The Court in Ungar indicated that it was "unwilling to bottom a constitutional rule of disqualification solely upon ... disobedience to court orders and criticism of its rulings during the course of a trial. ... We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions." Id., at 584. Taylor is not a federal case, wher€ this Court, in the exercise of some perceived wisdom of the appropriate policy to be followed in the administration of justice in the federal courts, see Offutt v. United States, 348 U. S. 11 (1954); Cooke v. United States, 267 U.S. 517 (1925), may require retrial before another judge. By holding in Taylor that the respondent judge should be disqualified from trying petitioner's contempt, the Court has now adopted the very constitutional rule it disavowed in Ungar v. Sarafite, supra, and found not even worthy of mention in Sacher. In Mayberry v. Pennsylvania, supra, a case in which the defendant's conduct was so extraordinary that even the Court apparently concedes it affords no precedent for today's decision in Taylor, the Court was at pains to state that "[a] judge cannot be driven out of a case." 400 U. S., at 463. Yet the teaching of Mayberry, and of today's decision in Taylor, is precisely the opposite: a judge can be driven out of a case by any counsel sufficiently astute to read the new-found constitutional principles enunciated in these decisions. Whether as a matter of policy the added procedural rights conferred upon contemptuous lawyers are worth the sacrifice of the historic authority of the trial judge to control proceedings in his court may be open to debate, CODISPOTI v. PENNSYLVANIA 531 506 REHNQUIST, J., dissenting the total absence of any basis in the Fourteenth Amendment for the result which the Court reaches in Taylor v. Hayes, is to me clear beyond any doubt. Accordingly, I dissent from the Court's reversal of the conviction m that case.2 II The Codispoti litigation in this Court is worthy of a chapter in Charles Dickens' Bleak House. Codispoti and Langnes were codefendants with the petitioner in Mayberry v. Pennsylvania, 400 U.S. 455 (1971), on contempt charges in the Pennsylvania courts and were apparently beneficiaries of this Court's judgment of reversal in that case.3 The Court's concluding language in its opinion in that case was that "on remand another judge, not 2 I agree with the Court's conclusion that Taylor was not entitled to a jury trial on the contempt charges. 3 These petitioners were originally convicted in 1966 of criminal contempt of a Pennsylvania state court. Their codefendant in those proceedings was Richard Mayberry, who was also convicted of contempt. From the affirmance of those convictions by the Supreme Court of Pennsylvania, 434 Pa. 478, 255 A. 2d 131 (1969), only Mayberry sought review in this Court. In Mayberry v. Pennsylvania, 400 U.S. 455 (1971), this Court reversed Mayberry's conviction and remanded for retrial before another Pennsylvania state court judge. Though the record in this Court. is unclear how it came about, Pennsylvania somehow made both Codispoti and Langnes the beneficiaries of the remand in Mayberry. They were thus retried on newly filed- charges of criminal contempt, before another judge; they were again convicted, and on subsequent appeal to the appellate courts of Pennsylvania, their convictions were affirmed. It is clear, however, that the reversal of Mayberry's conviction and remand to the Pennsylvania courts for retrial, was not intended by this Court to disturb the original convictions of Codispoti and Langnes, nor to award them a retrial in the Pennsylvania courts. Whether or not petitioners here may, without further trial, now be incarcerated pursuant to the sentences imposed in the first contempt trial and affirmed on appeal by the Pennsylvania courts is, presumably, a matter of Pennsylvania law. 532 OCTOBER TERM, 1973 REHNQUIST, J., dissenting 418 u. s. bearing the sting of these slanderous remarks and having the impersonal authority of the law [sit] in judgment on the conduct of petitioner as shown by the record." Id., at 466. Pennsylvania carried out this mandate to the letter, and, as the Court points out in its opinion, Codispoti and Langnes were tried before a different judge, and received on retrial substantially more lenient sentences than had been imposed in the first instance. Nonetheless, the Court in its Cod'ispoti opinion today, without so much as batting an eye, now decides that these petitioners were entitled to a jury trial. If that were the case, and Duncan v. Lou'is-iana, 391 U.S. 145 (1968), and Bloom v. Illino'is, 391 U.S. 194 (1968), each decided three years before Mayberry, require such a result, it would seem to have been appropriate to so indicate in Mayberry. In holding that Duncan and Bloom require a jury trial for the petitioners in Codispoti, the Court does not sufficiently distinguish the analogous case of Jenkins v. Delaware, 395 U. S. 213 (1969), which at the very least strongly suggests that petitioners were not entitled to a jury trial upon their retrial for contempt. In Jenkins, the petitioner had been convicted in a state court of murder and burglary. During the pendency of his appeal in the Supreme Court of Delaware, this Court decided Miranda v. Arizona, 384 U. S. 436 (1966), and Johnson v. New Jersey, 384 U.S. 719 (1966), which held that the decision in Miranda "applies only to cases in which the trial began after the date of [ the Miranda.] decision . . . . " Id., at 721 (emphasis added). In reversing the petitioner's conviction on various state grounds, the Supreme Court of Delaware also determined, sua sponte, that under Johnson v. New Jersey, supra, a statement obtained from petitioner without fully advising him of his constitutional rights would be admissible at his CODISPOTI v. PENNSYLVANIA 533 506 REHNQUIST, J., dissenting retrial. Petitioner was retried and convicted of seconddegree murder, and the Supreme Court of Delaware again affirmed. This Court affirmed the conviction, rejecting petitioner's argument that the statement should have been excluded from evidence. We held that the Miranda standards do not apply to persons whose retrials have commenced after the date of that decision if their original trials had begun before that date. Codi.spoti is a substantially similar case. Codispoti and Langnes were originally tried and convicted of criminal contempt in 1966. This Court did not decide Duncan v. Louisiana, supra, and Bloom v. Illinoi.s, supra, until May 20, 1968. And in DeStefano v. Woods, 392 U. S. 631 (1968) (per curiam), the Court held that the decisions in Duncan and Bloom would not retroactively apply to "trials [begun] prior to May 20, 1968." Id., at 635. Since the original trial of these petitioners began prior to the date of the decisions in Duncan and Bloom, under DeStefano they would not have been entitled to the benefit of those rulings at their original trials. And Jenkins v. Delaware, supra, certainly suggests that since petitioners' original trial began prior to the decisons in Duncan and Bloom, they should not receive the benefit of those cases upon their retrial. The Court's rejoinder is that Duncan and Bloom are different cases because they involve jury trials instead of "uncorrectable police conduct which occurred prior to trial and which, if illegal, would preclude the use of perhaps critical evidence gathered in reliance on then-existing law." But our decision in Johnson v. New Jersey, supra, that Miranda was to have only prospective application did not turn on when the police conduct at issue occurred, but instead on when the trial of the def end.ant occurred. The Court does not tell us why the retrial rule of Jenkins v. Delaware, supra, is not equally applicable to the jury-trial requirements 534 OCTOBER TERM, 1973 REHN"QUIST, .T., dissenting 418 U.S. of Duncan and Bloom, which DeStefano says do not govern where the original trial began prior to the date of those decisions. The Court's decision in Bloom v. Illinois, supra, marked a sharp departure from prior constitutional holdings under the Fourteenth Amendment. Even were it clear that petitioners were entitled to the benefit of Bloom on retrial, final acceptance of Bloom's holding as governing Codi-spoti would first warrant examination as to its practical effects. Bloom, an attorney, was charged with contempt of a state court for having filed a spurious will for probate. Bloom was a classic case of "indirect contempt," one which occurred outside of the presence of the court, and Bloom was accorded a full trial before the court. Evidence was received tending to show that a third party had engaged Bloom to draw a will after the death of the putative testator; Bloom was convicted of contempt by the court, and was sentenced to two years' imprisonment. Under Illinois law, no maximum punishment was provided for convictions for criminal contempt. This Court, relying on Duncan v. Louisiana, supra, held that where state law did not provide a maximum punishment for criminal contempt, the Fourteenth Amendment required that the penalty actually imposed on the contemnor be the constitutional indicator of the seriousness of the offense and the right of jury trial defined by Duncan. Since Duncan held that a prosecution for a crime with a maximum penalty of two years was one for a serious offense within the terms of the Sixth and Fourteenth Amendments, the Court held that Bloom was entitled to a jury trial on the contempt charges. As the Court's opinion today in Taylor v. Hayes, ante, at 495- 496, makes clear, the constitutional rule of Bloom has now evolved into a rule whereby a contemnor must be CODISPOTI v. PENNSYLVANIA 535 506 REHNQUIST, J., dissenting afforded a jury trial where either a penalty over six months is authorized by statute or where the penalty actually imposed exceeds six months. Presumably, the case-law support for this conclusion is Duncan v. Louisiana, supra, and Baldwin v. New York, 399 U. S. 66 (1970), since we deal here, not with a federal case, where this Court, in the exercise of supervisory authority over the administration of justice in the federal courts, has applied this six-month rule, see Chelf v. Schnackenberg, 384 U.S. 373 (1966), but with a state case where only the Constitution may dictate such a rule. Duncan v. Louisiana, supra, was a 7-2 opinion which held that where the crime for which a state court defendant was tried was punishable by a two-year sentence, the Fourteenth Amendment required the application of the Sixth Amendment guarantee of jury trial in serious criminal cases to state prosecutions. Mr. Justice Harlan, in dissent, joined by MR. JusTICE STEWART, forcefully argued that there was no indication that the drafters of the Fourteenth Amendment intended to make the Sixth Amendment applicable to the States. See Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5 (1949); Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Judicial Interpretation, 2 Stan. L. Rev. 140 (1949-). Baldwin v. New York, supra, of course, was a plurality opinion of three Members of this Court, which extended the constitutional jury-trial rule of Duncan v. Louisiana, supra, to any state criminal offense where the penalty permitted was over six months. Mr. Justice Harlan, MR. CHIEF JUSTICE BURGER, and MR. JusTICE SmwART dissented. The Court in Codispoti woodenly applies this sixmonth rule to the facts of that case, without any regard to the significant differences between Codispoti and 536 OCTOBER TERM, 1973 REHNQUIST, J., dissenting 418 U.S. Bloom, and without regard to the import of its decision. In applying this six-month rule of dubious constitutional origin to consecutive sentences on counts of six months or less, it appears that the Baldwin plurality's proposition that six months is the constitutional sine qua non of the jury-trial requirement under the Fourteenth Amendment now commands a majority of this Court almost sub silentio by passage of time rather than by force of reason. Codispoti and Langnes were convicted on their retrial of various separate contemptuous acts and were sentenced for each act to terms of six months or less, with the direction that the sentences be served consecutively. The contemnor in Bloom was sentenced to two years for one contemptuous act. Bloom's contempt was an indirect one, and he was entitled under Illinois law to the normal rights of any trial defendant save only the right to a jury trial. By awarding him a constitutional right to a jury trial, this Court in effect required that the factfinding function be transferred from the judge to a jury. Whether right or wrong as a matter of constitutional law, the holding in Bloom was at least intelligible. But the contempts of Codispoti and Langnes were direct, committed in the presence of the trial judge. Upon retrial after our decision in Mayberry, supra, the case was tried before another Pennsylvania judge on the basis of the certificate of contempt filed by the judge who had presided at the original criminal trial of Mayberry, Codispoti, and Langnes. It does not appear that either Codispoti or Langnes seriously challenged the factual allegations in the certificate of contempt, and it would seem fair to surmise that this lack of factual dispute is typical of a trial based on a certificate of direct contempt. The Court's opinion in Bloom spoke of the seriousness of an offense for which a sentence of more than six CODISPOTI v. PENNSYLVANIA 537 506 REHNQUIST, J., dissenting months was imposed, 391 U.S., at 19~197, and it might be thought from the Court's opinion in Codi,spoti today that the jury was in some way expected to mitigate the harshness of the punishment which could be visited upon a contemnor. But there is no indication whatever in the record before us that Pennsylvania law allocates any role in the sentencing of a criminal defendant to the jury. The jury presumably will hear evidence as to relatively undisputed facts, and if it returns a verdict of guilty a sentence will be imposed by a judge trying the case. If it is the length of sentence which is to be the controlling factor in determining whether a jury trial is to be awarded, and the severity of the possible sentence to be imposed by the judge which provides the constitutional basis for requiring a jury trial, the Court's application of Bloom to a direct contempt seems questionable for more than one reason. The guarantee of jury trial accorded to these petitioners in no way limits the sentence which may be imposed by the trial judge in those cases where a guilty verdict is returned by the jury. The Court has succeeded only in requiring Pennsylvania to engraft onto its traditional procedures for adjudicating direct contempts a judicial "fifth wheel" without appreciably furthering the constitutional goals enunciated in Duncan v. Loui,siana, supra, and Bloom v. lllinoi,s, supra. The application of Bloom to the consecutive sentences imposed for the separate contemptuous acts of Codispoti and Langnes is made even more questionable in light of the concession that the result would be different in other fact situations. It is indicated in the Part II opinion that a contemnor "may be summarily tried for an act of contempt during trial and punished by a term of no more than six months. Nor does the judge exhaust his power to convict and punish summarily whenever the 538 OCTOBER TERM, 1973 REHNQUIST, J., dissenting 418 u. s. punishment imposed for separate contemptuous acts during trial exceeds six months." Ante, at 514. The upshot of this, of course, is that trial judges are surely to be inclined to adjudicate and punish the contempt during the trial rather than awaiting the end of the trial. The answer that is made to this obvious result of the holding is the adjuration that "[s]ummary convictions during trial that are unwarranted by the facts will not be invulnerable to appellate review." Ante, at 517. What this statement portends for the future of the Court's inveterate propensity to second-guess trial judges is, as they say, "anybody's guess." I dissent from the Court's reversal of the convictions in Cod-ispoti v. Pennsylvania. WOLFF v. McDONNELL Syllabus WOLFF, WARDEN, ET AL. v. McDONNELL 539 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 73-679. Argued April 22, 1974--Decided June 26, 1974 Respondent, on behalf of himself and other inmates at a Nebraska prison, filed a complaint for damages and injunctive relief under 42 U. S. C. § 1983, in which he alleged that disciplinary proceedings at the prison violated due process; that the inmate legal assistance program did not meet constitutional standards; and that the regulations governing inmates' mail were unconstitutionally restrictive. After an evidentiary hearing, the District Court granted partial relief. Though rejecting respondent's procedural due process claim, the court held that the prison's policy of inspecting all attorney-prisoner mail was improper but that restrictions on inmate legal assistance were not constitutionally defective. The Court of Appeals reversed with respect to the due process claim, holding that the procedural requirements outlined in the intervening decisions in Morrissey v. Brewer, 408 U. S. 471, and Gagtwn v. Scarpelli, 411 U. S. 778, should be generally followed in prison disciplinary hearings, but leaving the specific requirements (including the circumstances in which counsel might be required) to be determined by the District Court on remand. The Court of Appeals further held that Freiser v. Rodriguez, 411 U. S. 475, forbade restoration of good-time credits in a 1983 suit but ordered expunged from prison records misconduct determinations reached in proceedings that had not comported with due process. The court generally affirmed the District Court's judgment respecting correspondence with attorneys, but added some additional prescriptions and ordered further proceedings to determine whether the State was meeting its burden under Johnson v. Avery, 393 U. S. 483, to provide legal assistance to prisoners, a duty the court found to extend to civil rights cases as well as habeas corpus proceedings. Under Nebraska's disciplinary scheme forfeiture or withholding of good-time credits or confinement in a disciplinary cell is provided for serious misconduct and deprivation of privileges for less serious misconduct. To establish misconduct (1) a preliminary conference is held with the chief corrections supervisor and the charging party, where the 540 OCTOBER TERM, 1973 Syllabus 418 u. 8. prisoner is orally informed of the charge and preliminarily discusses the merits; (2) a conduct report is prepared and a hearing held before the prison's disciplinary body, the Adjustment Committee (composed of three prison officials), where (3) the inmate can ask questions of the charging party. Held: 1. Though the Court of Appeals correctly held that restoration of good-time credits under § 1983 is foreclosed under Preiser, supra, damages and declaratory and other relief for improper revocation of good-time credits are cognizable under that provision. Pp. 553-555. 2. A prisoner is not wholly stripped of constitutional protections, and though prison disciplinary proceedings do not implicate the full panoply of rights due a defendant in a criminal prosecution, such proceedings must be governed by a mutual accommodation between institutional needs and generally applicable constitutional requirements. Pp. 555-556. 3. Since prisoners in Nebraska can only lose good-time credits if they are guilty of serious misconduct, the procedure for determining whether such misconduct has occurred must observe certain minimal due process requirements (though not the full range of procedures mandated in Morrissey, supra, and Scarpelli, supra, for parole and probation revocation hearings) consonant with the unique institutional environment and therefore involving a more flexible approach reasonably accommodating the interests of the inmates and the needs of the institution. Pp. 556-572. (a) Advance written notice of charges must be given to the disciplinary action inmate, no less than 24 hours before his appearance before the Adjustment Committee. Pp. 563-564. (b) There must be "a written statement by the factfinders as to the evidence relied on and reasons for [ the disciplinary action]." Morrissey v. Brewer, supra, at 489. Pp. 564-565. ( c) The inmate should be allowed to call witnesses and present documentary evidence in his defense if permitting him to do so will not jeopardize institutional safety or correctional goals. Pp. 566-567. (d) The inmate has no constitutional right to confrontation and cross-examination in prison disciplinary proceedings, such procedures in the current environment, where prison disruption remains a serious concern, being discretionary with the prison officials. Pp. 567-569. (e) Inmates have no right to retained or appointed counsel 539 WOLFF v. McDONNELL Syllabus 541 in such proceedings, although counsel substitutes should be provided in certain cases. Pp. 569-570. (f) On the record here it cannot be concluded that the Adjustment Committee is not sufficiently impartial to satisfy due process requirements. Pp. 570-571. 4. The Court of Appeals erred in holding that the due process requirements in prison disciplinary proceedings were to be applied retroactively by requiring the expunging of prison records of improper misconduct determinations. Mornssey, supra, at 490. Pp. 573-574. 5. The State may constitutionally require that mail from an attorney to a prisoner be identified as such and that his name and address appear on the communication; and-as a protection against contraband-that the authorities may open such mail in the inmate's presence. A lawyer desiring to correspond with a prisoner may also be required first to identify himself and his client to the prison officials to ensure that letters marked "privileged" are actually from members of the bar. Other restrictions on the attorney-prisoner mail procedure required by the courts below are disapproved. Pp. 574-577. 6. The District Court, as the Court of Appeals suggested, is to assess the adequacy of the legal assistance available for preparation of civil rights actions, applying the standard of Johnson v. Avery, supra, at 490, that "unless and until t he State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief," inmates could not be barred from furnishing assistance to each other. Pp. 577-580. 483 F. 2d 1059, affirmed in part, reversed in part, and remanded. WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, PowELL, and REHNQursT, JJ., joined. l\,fARSHALL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, J., joined, post, p. 580. DouGLAS, .T., filed an opinion disBenting in part and concurring in the result in part, post, p. 593. Melvin Kent Kammerlohr, Assistant Attorney General of Nebraska, argued the cause for petitioners. With him on the brief was Clarence A.H. Meyer, Attorney General. Douglas F. Duchek, by appointment of the Court, 415 U. S. 974, argued the cause for respondent pro hac vice. With him on the briefs was Robert Plotkin. 552-191 0 - '76 - 37 542 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. Solicitor General Bork argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Petersen, Deputy Solicitor General Frey, Gerald P. Norton, and Jerome M. Feit.* MR. JUSTICE WHITE delivered the opm10n of the Court. We granted the petition for writ of certiorari in this case, 414 U. S. 1156 (1974), because it raises important questions concerning the administration of a state prison. Respondent, on behalf of himself and other inmates of the Nebraska Penal and Correctional Complex, Lincoln, Nebraska, filed a complaint under 42 U. S. C. § 1983 1 challenging several of the practices, rules, and regulations of the Complex. For present purposes, the pertinent *Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, pro se, Jack R. Winkler, Chief Assistant Attorney General, Edward P. 0' Brien, Assistant Attorney General, and W. Eric Collins, Harry A. Allen, April P. Kestell, and H.F. Wilkinson, Deputy Attorneys General, for the Attorney General of California, and by William J. Scott, Attorney General, and James B. Zagel, Assistant Attorney General, for the State of Illinois. Briefs of amici curiae urging affirmance were filed by Chesterfield Smith and Robert J. Kutak for the American Bar Assn.; by David Gu man and Richard Singer for the National Council on Crime and Delinquency; by William E. Hellerstein and Joel Berger for the Legal Aid Society of New York; by Alvin J. Bronstein, Barbara M. Milstein, and Arpiar G. Saunders, Jr., for the National Prison Project; and by William H. Allen, Michael A. Schlanger, and David S. Weissbrodt for the Inmates of the District of Columbia Correctional Complex. 1 The practices, rules, and regulations of the Complex under challenge in this litigation are only in force at that institution, and are drafted by the Warden, and not by the Director of Correctional Services. Since no statewide regulation was involved there was no need to convene a three-judge court. See Board of Regents v. New Left Education Project, 404 U.S. 541 (1972). WOLFF v. McDONNELL 543 539 Opinion of the Court allegations were that disciplinary proceedings did not comply with the Due Process Clause of the Fourteenth Amendment to the Federal Constitution; that the inmate legal assistance program did not meet constitutional standards, and that the regulations governing the inspection of mail to and from attorneys for inmates were unconstitutionally restrictive. Respondent requested damages and injunctive relief. After an evidentiary hearing, the District Court granted partial relief. 342 F. Supp. 616 (Neb. 1972). Considering itself bound by prior Circuit authority, it rejected the procedural due process claim; but it went on to hold that the prison's policy of inspecting all incoming and outgoing mail to and from attorneys violated prisoners' rights of access to the courts and that the restrictions placed on inmate legal assistance were not constitutionally defective.2 2 The District Court also determined that contrary to state statutory provisions certain good time had been taken away for violations which were not "flagrant or serious" within the meaning of the controlling state statute, see n. 5, infra, and ordered that good time be restored for all such offenses. The Court of Appeals affirmed the holding ( though not the remedy, see infra, at 544). Petitioners do not challenge that holding in this Court. Certain issues originally in contest in this litigation were settled by stipulation and order in the District Court. These concerned such matters as processing inmate letters to sentencing judges, the provision for postage to mail such letters, the adequacy of and access to the prison library, and the availability of a notary service. Others were decided by the District Court, after trial, and were not taken up on appeal to the Court of Appeals. These issues included the denial of use of typewriters to inmates, reprisals against inmates who petition the courts, the number of inmates who could use the prison library at one time, the length of time which could be spent in the library, delay in receiving mail, censorship of letters to the news media and public officials, and limitations on numbers of letters which can be written. None of these issues is raised here. 544 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. The Court of Appeals reversed, 483 F. 2d 1059 (CA8 1973), with respect to the due process claim, holding that the procedural requirements outlined by this Court in Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U. S. 778 ( 1973), decided after the District Court's opinion in this case, should be generally followed in prison disciplinary hearings but left the specific requirements, including the circumstances in which counsel might be required, to be determined by the District Court on remand. With respect to a remedy, the court further held that Preiser v. Rodriguez, 411 U. S. 475 (1973), forbade the actual restoration of good-time credits in this § 1983 suit but ordered expunged from prison records any determinations of misconduct arrived at in proceedings that failed to comport with due process as defined by the court. The court generally affirmed the judgment of the District Court with respect to correspondence with attorneys," but ordered further proceedings to determine whether the State was meeting its burden under Johnson v. Avery, 393 U.S. 483 (1969), to provide legal assistance to prison inmates, the court holding that the State's duty extended to civil rights cases as well as to habeas corpus proceedings.• I We begin with the due process claim. An understanding of the issues involved requires a detailing of the prison disciplinary regime set down by Nebraska statutes and prison regulations. 3 No issues are raised here, nor were they in the Court of Appeals, as to the ruling in the District Court on restrictions on outgoing mail. • The Court of Appeals found that the only person allowed to render legal assistance was the "Legal Advisor," and that the Warden did not allow prisoners to consult with other inmates. That finding, which disagreed to some extent with the District Court's, is not challenged by petitioners. WOLFF v. McDONNELL 545 539 Opinion of the Court Section 16 of the Nebraska Treatment and Corrections Act, as amended, Neb. Rev. Stat. § 83-185 (Cum. Supp. 1972) ," provides that the chief executive officer of each penal facility is responsible for the discipline of inmates 5 That statutory provision provides, in full: " ( 1) The chief executive officer of each facility shall be responsible for the discipline of those persons committed to the Division of Corrections who reside therein. No person shall be punished except upon the order of the chief exerutive officer of the facility; nor shall any punishment be imposed otherwise than in accordance with this section. "(2) Except in flagrant or serious cases, punishment for misconduct shall consist of deprivation of privileges. In cases of flagrant or serious misconduct, the chief executive officer may order that a person's reduction of term as provided in section 83-1,107 be forfeited or withheld and also that the person be confined in a disciplinary cell. The chief executive officer may order that such person, during all or part of the period in a disciplinary cell,. be put on an adequate and healthful diet. A person in a disciplinary cell shall be visited at least once every eight hours. No cruel, inhuman or corporal punishment shall be used on any person. "(3) The chief executive officer shall maintain a record of breaches of discipline, of the disposition of each case, and of the punishment, if any, for each such breach. Each breach of discipline shall be entered in the person's file, together with the disposition or punishment therefor. " ( 4) The chief executive officer may recommend to the Director of Corrections that a person who is con8idered to be incorrigible by reason of frequent intentional breaches of discipline, or who is detrimental to the discipline or the morale of the facility, be transferred to another facility for stricter safekeeping and closer confinement, subject to the provisions of section 83-176." At the time this litigation was commenced, the statute gave examples of "flagrant or serious misconduct"-"assault, escape, attempt to escape." Neb. Rev. St.at.§ 83-185 (1971). This was the definition employed by the District Court in deciding that certain offenses were not serious within the meaning of the Act. See n. 2, supra. The statutory change does not affect the issues in this litigation. 546 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. m a particular institution. The statute provides for a range of possible disciplinary action. "Except in flagrant or serious cases, puni~hment for misconduct shall consist of deprivation of privileges. In cases of flagrant or serious misconduct, the chief executive officer may order that a person's reduction of term as provided in section 83- 1,107 [good-time credit 6 ] be forfeited or withheld and 6 Section 83-1,107, Neb. Rev. Stat. (Cum. Supp. 1972), which provides for the allowance and reduction of good time, states: "(1) The chief executive officer of a facility shall reduce, for parole purposes, for good behavior and faithful performance of duties while confined in a facility the term of a committed offender as follows: Two months on the first year, two months on the second year, three months on the third year, four months for each succeeding year of his term and pro rata for any part thereof which is less than a year. In addition, for especially meritorious behavior or exceptional performance of his duties, an offender may receive a further reduction, for parole purposes, not to exceed five days, for any month of imprisonment. The total of all such reductions shall be deducted: "(a) From his minimum term, to determine the date of his eligibility for release on parole; and "(b) From his maximum term, to determine the date when his release on parole becomes mandatory under the provisions of section 83-1,111. "(2) Reductions of such terms may be forfeited, withheld and restored by the chief executive officer of the facility after the offender has been consulted regarding the charges of misconduct. No reduction of an offender's term for especially meritorious behavior or exceptional performance of his duties shall be forfeited or withheld after an offender is released on parole. "(3) Good time or other reductions of sentence granted under the provisions of any law prior to July 6, 1972 may be forfeited, withheld, or restored in accordance with the terms of this act." Special provisions are set up by statute dealing with the transfer of minors. See Nebraska Treatment and Corrections Act § 7, as amended by LB57, Session Laws 1973, § 1, Neb. Rev. Stat. § 83-176 (Supp. 1973). Certain changes made in § 83- 1,107, between time suit was brought and now, as related in the prior version of the provision, WOLFF v. McDONNELL 547 539 Opinion of the Court also that the person be confined in a disciplinary cell." Each breach of discipline is to be entered in the person's file together with the disposition or punishment therefor. As the statute makes clear, there are basically two kinds of punishment for flagrant or serious misconduct. The first is the forfeiture or withholding of good-time credits, which affects the term of confinement, while the second, confinement in a disciplinary cell, involves alteration of the conditions of confinement. If the misconduct is less than flagrant or serious, only deprivation of privileges results.7 Neb. Rev. Stat.§ 83-1,107 (1971), are not important to the issues in dispute here. Determinations of loss of good time are directly relevant to receiving parole. Under Neb. Rev. Stat.§ 83-1,109 (1971), all reductions are to be reported to and considered by parole authorities. By prison regulation, prisoners may also earn "blood time." The pertinent regulation provides: "Anyone who donates blood to the American Red Cross receives good time credits for their donations. Anyone under the age of 18 must have the Warden's approval. Those over 18 may voluntarily give blood on the following scheduled months: MAY, AUGUST and DECEMBER. The Red Cross Bloodmobile unit is generally scheduled for the first full week of the months mentioned above. "You will reduce from your sentence, via the Board of Parole approval, five days for the first donation, ten days for the second donation, and fifteen days for every donation thereafter. "Should you receive a disciplinary report or below average work report any time between donations, you will be credited only five days the next time you donate blood 10 the Red Cr~ss as a result of the disciplinary action." Since "blood time" operates like good time to reduce the term of sentence, and since it represents only an additional way to accumulate good time, it is considered to be included within the meaning of that term. 7 The record does not disclose what specific sanctions are employed at the Complex under the general heading of "deprivation of privileges." 548 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. The only statutory provision establishing procedures for the imposition of disciplinary sanctions which pertains to good time, § 38 of the K ebraska Treatment and Corrections Act, as amended, Neb. Rev. Stat. § 83~1,107 (Cum. Supp. 1972), merely requires that an inmate be "consulted regarding the charges of misconduct" in connection with the forfeiture, withholding, or restoration of credit. But prison authorities have framed written regulations dealing with procedures and policies for controlling inmate misconduct.8 By regulation, misconduct is 8 The regulations, in full, are: "Policy: In the interest of treatment-oriented discipline, it is necessary that inmates and staff members maintain high standards of behavior, court.esy and personal conduct. It is the policy of this institution, in administering discipline, to gain voluntary acceptance of certain limitations by the inmate body. Discipline must be realistically administered in order to maintain the general welfare of the institution community and conformance to specified standards and regulations, while at the same time implementing treatment of the offender. "Purpose: To set forth the institutional policy and procedures for the administration of discipline to insure that disciplinary processes are carried out as an integral part of the total treatment program, and to establish professional standards for all employees in fulfilling this responsibility. "Standards of Conduct. The institution population will be kept informed through the orientation process and by written orders and memorandums as to the standards of conduct expected. When it becomes necessary to regulate and control a man's conformance to the prescribed standards, disciplinary measures consistent with treatment of the individual will be applied in appropriate degree and in an impersonal, impartial manner. "Misconduct. "a. Major Misconduct: Major misconduct is a serious violation and will be reported fomrnlly to the Adjustment Committee on the Misconduct Report Form and/ or detailed narrative. "b. Minor Misconduct: Minor misconduct is a less serious violation which may be resolved immediately and informally by the inWOLFF v. McDONNELL 549 539 Opinion of the Court classified into two categories: major misconduct is a "serious violation" and must be formally reported to an Adjustment Committee, composed of the Associate Warden mate's supervisor or formally reported on the Misconduct Report Form. Repeated minor misconduct should be formally reported. "Misconduct Reports: "a. Preparation: In reporting misconduct on the Misconduct Report Form, the report should be prepared carefully and accurately so as to describe events exactly as they happen. The accurate preparation of a Misconduct Report is a major contributing factor in accurate evaluation of the misconduct by the Adjustment Committee. The initial statement on the report should be a brief statement of the charge or charges, followed by a detailed report of the incident. Articles of evidence should always accompany the report. "b. Processing of Misconduct Reports: Completed Misconduct Reports along with any articles of evidence, should be forwarded to the Chief Correction Supervisor's office for investigation. The Shift Lieutenant will conduct an investigation, note his findings, and submit to the Chief Corrections Supervisor. The Chief Corrections Supervisor will review the report, conduct additional investigation if necessary, interview the Shift Lieutenant and officer submitting report, and verify the accuracy, proper preparation of the report and assemble all information and articles regarding the misconduct report. Upon completion of this investigation, all information will be noted on the space provided on the Misconduct Report, then submitted to the Chairman of the Adjustment Committee so the case may be promptly scheduled for a committee hearing. "Administration of Discipline: The administration of discipline is hereby delegated as follows: "a. All employees will resolve immediately and informally minor violations by any inmate under their observation and/ or supervision. "b. The Chief Corrections Supervisor will initiate prompt investigation on all misconduct reports and will maintain control of any adverse situation and its inmate participants. "c. Adjustment Committee will receive reports of misconduct, conduct hearings, and make findings and impose disciplinary actions. "The Adju.stment Committee: "a. Organization: The Adjustment Committee is composed as fol550 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. Custody, the Correctional Industries Superintendent, and the Reception Center Director. This Committee is directed to "review and evaluate all misconduct reports" lows: Associate Warden Custody, Chairman; Correctional Industries Superintendent, Member; Reception Center Director, Member. "Note: The Adjustment Committee is responsible for the preparation of meeting agenda, recording, distribution, and filing of all reports as necessary for institution requirements. Further, the committee will answer directly to the Administrative Assistant on matters of discipline, adjustment, and investigations conducted relative to the daily processing of Misconduct Reports. "b. Committee Functions: "(l) The Adjustment Committee will meet daily at 8:00 a. m. in the office of the Associate Warden Custody and/ or the Adjustment Center, as required. "(2) The Committee will review and evaluate all misconduct reports as to the underlying causes for the adverse behavior and will carefully consider all possible courses of action before reaching a decision. Disciplinary action in all cases will be treatment oriented. "(3) The Committee is authorized to conduct investigations, make findings, impose disciplinary actions, refer cases for further diagnosis, recommend program changes and take any other actions deemed necessary to insure decision effectiveness. " ( 4) The Committee will concern itself with institution policies and procedures which effect discipline, strive to maintain consistence in its actions, and continually evaluate the effectiveness of its decisions by appropriate follow-up. " ( 5) The Committee will maintain accurate records and assure the prompt and proper completion of all required reports and forms. "(6) The Committee will review each week or more often, the progress of all inmates housed in the Adjustment Center and initiate or recommend program changes when indicated. The Committee will document all actions, reviews, and program changes so as to provide the Classification Committee with a clear, concise picture of individual inmate adjustment. "Adjustment Committee Actiom: "a. General Principles: " ( 1) The decisions and recommendations of the Committee will be the result of group consensus and judgment. "(2) Full consideration must be given to the causes for the adWOLFF v. McDONNELL 551 539 Opinion of the Court and, among other things, to "conduct investigations, make findings, [and] impose disciplinary actions." If only minor misconduct, "a less serious violation," is involved, verse behavior, the setting and circumstances in which it occurred, the man's accountability, and the correctional treatment goals. "(3) Disciplinary measures will be taken only at such times and to such degrees as are necessary to regulate and control a man's behavior within acceptable limits and will never be rendered capriciously or in the nature of retaliation or revenge. " ( 4) Action will be taken as soon after the occurrence as circumstances permit. "(5) Work assignments and program changes will not be used as disciplinary measures. "(6) The use of corporal punishment is strictly prohibited. "(7) Disciplinary action taken and recommended may include but not necessarily be limited to the following: reprimand, restrictions of various kinds, extra duty, confinement in the Adjustment Center, withholding of statutory good time and/ or extra earned good time, or a combination of the elements listed herein. "Use of Segregation: Inmates may be placed in segregation for any one of the following reasons, and documentation on either the Misconduct Report Form or in narrative must be sent to the Associate Warden Custody in each case. "a. To insure immediate control and supervision. "b. To protect potential victims. "c. To insure witnesses against intimidation. "d. As a punishment for some major institutional infraction. "e. To control those whose violent emotions are out of control. "f. To insure their safety or the safety of others. "g. To insure the safety and security of the institution. "h. Demonstrated defiance of personnel acting in the line of duty. "i. Willful refusal to obey orders. "Note: Inmates awaiting action of the Adjustment Committee will not routinely be placed in the Adjustment Center unless one or more of the above reasons are evident. "No man should remain in the Adjustment Center longer than necessary, and special care must be taken to insure that this unit does not become a haven for those who persistently fail to solve their problems. "The Adjustment Committee will conduct a review each week or 552 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. the problem may either be resolved informally by the inmate's supervisor or it can be formally reported for action to the Adjustment Committee. Repeated minor misconduct must be reported. The Adjustment Committee has available a wide range of sanctions. "Disciplinary action taken and recommended may include but not necessarily be limited to the following: reprimand, restrictions of various kinds, extra duty, confinement in the Adjustment Center [ the disciplinary cell], withholding of statutory good time and/ or extra earned good time, or a combination of the elements listed herein." 9 Additional procedures have been devised by the Complex governing the actions of the Adjustment Committee. Based on the testimony, the District Court found, 342 F. Supp., at 625-626, that the following procedures were in effect when an inmate is written up or charged with a prison violation: 10 " (a) The chief correction supervisor reviews the 'write-ups' on the inmates by the officers of the Complex daily; more often, of all cases in the Adjustment Center in discipline, to consider possible treatment alternatives. "In addition to this, the institution counselor will maintain a progress file on long-term confinement cases. The Counselor has the responsibility to maintain contact with those inmates who are housed in segregation and report their progress or lack of progress to the Adjustment Committee. These progress reports are prepared at the end of each month and are used as a tool in determining further action by the Adjustment Committee." 9 When a prisoner is isolated in solitary confinement, there appear to be two different types of conditions to which he may be exposed. He may be incarcerated alone in the usual "disciplinary cell," with privileges severely limited, for as long as necessary, or he may be put in a "dry cell," which, unlike regular cells, contains no sink or toilet. 10 The Warden testified that a great number of cases are resolved without contest, and that in many instances the inmate admitil his guilt to the investigating officer. 539 WOLFF v. McDONNELL 553 Opinion of the Court "(b) the convict is called to a conference with the chief correction supervisor and the charging party; " ( c) following the conference, a conduct report is sent to the Adjustment Committee; " ( d) there follows a hearing before the Adjustment Committee and the report is read to the inmate and discussed; " ( e) if the inmate denies charge he may ask questions of the party writing him up; "(f) the Adjustment Committee can conduct additional investigations if it desires; "(g) punishment is imposed." II This class action brought by respondent alleged that the rules, practices, and procedures at the Complex which might result in the taking of good time violated the Due Process Clause of the Fourteenth Amendment. Respondent sought three types of relief: ( 1) restoration of good time; (2) submission of a plan by the prison authorities for a hearing procedure in connection with withholding and forfeiture of good time which complied with the requirements of due process; and (3) damages for the deprivation of civil rights resulting from the use of the allegedly unconstitutional procedures.11 n The prayer of the amended complaint asked the court to "[a]djudicate that under the rules, practices and procedures at the Complex tho taking of statutory prisoner good time from the inmates constitutes an increase in the inmates' sentence without due process of law in violation of Amendment XIV .... " It asked the court to "order the defendants to restore to the plaintiff Robert 0. McDonnell that amount of good time taken" from him, and to "[o]rder defendants to submit a plan" which provided "[f]or a hearing procedure in connection with withholding and forfeiture of good time which complies with the requirements of due process . . . ." It 554 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. At the threshold is the issue whether under Preiser v. Rodriguez, 411 U.S. 475 (1973), the validity of the procedures for depriving prisoners of good-time credits may be considered in a civil rights suit brought under 42 U. S. C. § 1983. In Freiser, state prisoners brought a § 1983 suit seeking an injunction to compel restoration of good-time credits. The Court held that because the state prisoners were challenging the very fact or duration of their confinement and were seeking a speedier release, their sole federal remedy was by writ of habeas corpus, 411 U. S., at 500, with the concomitant requirement of exhausting state remedies. But the Court was careful to point out that habeas corpus is not an appropriate or available remedy for damages claims, which, if not frivolous and of sufficient substance to invoke the jurisdiction of the federal court, could be pressed under § 1983 along \vith suits challenging the conditions of confinement rather than the fact or length of custody. 411 U. S., at 494, 498-499. The complaint in this case sought restoration of goodtime credits, and the Court of Appeals correctly held this relief foreclosed under Freiser. But the complaint also sought damages; and Preiser expressly contemplated that claims properly brought under § 1983 could go forward while actual restoration of good-time credits is sought in state proceedings. 411 U. S., at 499 n. 14.12 Respondent's damages claim was therefore properly before the District Court and required determination of the validity of the procedures employed for imposing sanctions, including loss of good time, for flagrant or serious misconfurther sought damages in the sum of $75,000 for the deprivation of the various constitutional rights involved in litigation, necessarily including the right to due process. 12 One would anticipate that normal principles of res judicata would apply in such circumstances. WOLFF v. McDONNELL 555 539 Opinion of the Court duct. Such a declaratory judgment as a predicate to a damages award would not be barred by Pre-iser; and be~ cause under that case only an injunction restoring good time improperly taken is foreclosed, neither would it preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations. We therefore conclude that it was proper for the Court of Appeals and the District Court to determine the validity of the procedures for revoking good-time credits and to fashion appropriate remedies for any constitutional violations ascertained, short of ordering the actual restoration of good time already canceled.13 III Petitioners assert that the procedure for disciplining prison inmates for serious misconduct is a matter of policy raising no constitutional issue. If the position implies that prisoners in state institutions are wholly without the protections of the Constitution and the Due Process Clause, it is plainly untenable. Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a "retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U. S. 266, 285 (1948). But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain 13 It is suggested that the Court of Appeals wholly excluded the matter of good time from the proceedings on remand. It is true that the court's opinion is arguably ambiguous; but as we understand it, the District Court on remand was to determine the validity of the procedures for disciplinary hearings that may result in serious penalties, including good time, and that appropriate remedies were to be fashioned short of actual restoration of good time. 556 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. drawn between the Constitution and the prisons of this country. Prisoners have been held to enjoy substantial religious freedom under the First and Fourteenth Amendments. Cruz v. Beto, 405 U. S. 319 (1972); Cooper v. Pate, 378 V. S. 546 ( 1964). They retain right of access to the courts. Younger v. Gilmore, 404 U.S. 15 (1971), aff'g Gilmore v. Lynch, 319 F. Supp. 105 (ND Cal. 1970); Johnson v. Avery, 393 U.S. 483 (1969); Ex parte Hull, 312 U.S. 546 (1941). Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race. Lee v. Washing ton, 390 U. S. 333 ( 1968). Prisoners may also claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law. Haines v. Kerner, 404 U.S. 519 (1972); Wilwording v. Swenson, 404 U. S. 249 (1971); Screws v. United States, 325 U.S. 91 (1945). Of course, as we have indicated, the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. Cf. CSC v. Letter Carriers, 413 U. S. 548 (1973); Broadrick v. Oklahoma, 413 U. S. 601 (1973); Parker v. Levy, 417 U. S. 733 (1974). Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. Cf. Morrissey v. Brewer, 408 U. S., at 488. In sum, there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application. We also reject the assertion of the State that whatever may be true of the Due Process Clause in general or of other rights protected by that Clause against state infringement, the interest of prisoners in disciplinary proceWOLFF v. McDONNELL 557 539 Opinion of the Court (t) ..., TOTAL 2 LARGEST BANKING :, 0- rt:n=l ORGANIZATIONS 251 36.54 $3,323,083 51.27 ~- ..... -~ Pacific National Bank of Washington-Seattle 64 9.32 650,342 10.03 3 0 Peoples National Bank of Washington-Seattle 55 8.01 468,063 7.22 4 0 'd > Washington Bancshares, Inc.-Spokane 51 7.42 372,739 5.75 5 e: 0 H TOTAL 5 LARGEST BANKING :, z ORGANIZATIONS 421 61.28 $4,814,227 74.28 0 ...., t<:l Puget Sound National Bank-Tacoma '"' to 29 4.22 227,429 3.51 6 ::r > Bank of California-Seattle and Tacoma 2 .29 199,878 3.08 7 (t) z Seattle Trust & Savings Bank-Seattle 26 3.78 172,801 2.67 8 0 0 0 0 \Vashington Trust Bank-Spokane 8 1.16 96,518 1.49 9 .c.:,: Everett Trust & Savings Bank 13 1.89 91,034 1.40 10 "" >-j 0 TOTAL 10 LARGEST BANKING > ORGANIZATIONS 499 72.63 $5,601,887 86.43 1...-.3.. 81 REMAINING BANKING 0z ORGANIZATIONS 188 27.37 $879,183 13.57 91 BANKING ORGANIZATIONS 687 100.00 $6,481,070 100.00 0, .wis. Note: Due to rounding, figures may not add to totals. 644 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. proving that the NBC-WTB merger would probably cause a substantial lessening of competition in either one of two ways. First, it could be proved that NBC, with the resources and desire to enter the Spokane market, would probably have entered the market either by acquiring one of the small Spokane banks or by sponsoring a new bank and ultimately acquiring it. The merger thus deprived the Spokane market of a new competitor, and produced the requisite anticompetitive effect. Second, it could be shown that NBC's resources and interest in entering the Spokane market were so obvious to or recognized by those already in the market that, as a potential competitor waiting in the wings, NBC very probably exercised a restraining influence on anticompetitive practices in the concentrated Spokane banking market. The majority does not quibble about the fact of NBC's resources and its incentive to extend its banking activities into Spokane. NBC is the State's second largest banking organization with total assets of $1.8 billion as of 1971. It has branched widely in the State of Washington, having a total of 107 branches, 15 of them within 100 miles of Spokane. Two other Seattle banking organizations were already operating in Spokane; and NBC itself had seriously negotiated for an acquisition in that market. Given the opportunity, NBC would obviously enter Spokane. Under Washington law, it could not branch there; but it was free to acquire another bank, given consent of banking authorities. That consent was obtained for the acquisition involved in this case, and it may fairly be assumed that it could have been obtained for the acquisition, not of a major competitor contributing to the concentration in the Spokane market, but of one of the smaller banks-a so-called "toehold" position in the market. Another mode of entry into Spokane was also available to NBC. It could have been instrumental in formUNITED STATES v. MARINE BANCORPORATION 645 602 WHITE, J., dissenting ing a new bank in that market and in due course could have merged with the "sponsored" institution. It is argued that this route was all but legally unavailable to NBC,1 but the sponsored-bank method of expansion has occurred frequently in the State of Washington. The District Court did not hold sponsorship barred by state law. This Court also refrains from so holding and proceeds on the assumption that the sponsored-bank route was available to NBC. Under state law, a merger with the new bank could not take place, without the consent of banking authorities, prior to 10 years from the date the new bank began operations; but consent to merge prior to that time has been obtained in the past. Thus, although branching into Spokane was not legally feasible, there were other modes of entry no less 1 The evidence, based upon past practices, is entirely to the contrary. NBC has itself employed the procedure with regard to the Columbia Center National Bank located in a shopping center in south central Washington. The techniques it employed included finding an organizer for the bank, controlling the sublease of the land on which the new bank was to be located, through Marine Bancorporation, so as to prevent acquisition by others without its approval, and making sure the majority stock of the bank was in friendly hands. App. 246-280. The record abounds with various examples of the technique by other Washington banks; and federal authorities were aware of many of the methods, as disclosed in the applications for approval of acquisition by the sponsors. The statute also forbids a new bank from merging with or permitting its assets to be acquired by another bank for a period of 10 years but only without the consent of the state supervisor. Suffice it to state that earlier acquisitions have, as the majority recognizes, been made in the past. Surely the fragmentary fears of illegality are not enough to overturn what seems a perfectly well-established technique of market entry not at odds with the language of the state statute. It should be noted that the District Court, although not formally ruling on the state law matter in its findings of fact and conclusions of law, did state during trial that this was, in its view, a. feasible means of entry. App. 870. 646 OCTOBER TERM, 1973 WHITE, J., dissenting 418 u. s. attractive or less feasible than entering by establishing a new branch. It is incredible that if branching into Spokane had been allowable NBC would not have entered in this way. It is equally unlikely that absent the understandably attractive merger with WTB, NBC would not have proceeded to acquire a smaller bank or to be instrumental in forming a new sponsored bank. The Court apparently assumes this to be the case, but goes on to hold that the Government's proof failed because neither a small new bank nor one of the existing small banks, if acquired, had a realistic chance of deconcentrating the Spokane market to any substantial extent. Also, absent the capability of making substantial inroads on the market shares of the principal banks, it is said ihat those banks had nothing to fear from NBC as a potential competitor and that NBC therefore had no current influence on competitive practices in the Spokane market. I part company with the majority at this point. The Spokane market was highly concentrated. NBC had the resources and the desire to enter the market. There were no impenetrable legal or economic barriers to its doing so; and it is sufficiently plain from the record that absent merger with WTB, NBC could and would either have made a toehold entry or been instrumental in establishing a sponsored ba.nk in Spokane. But NBC chose to merge with a larger bank and to deprive the market of the competition it would have offered had it entered in either of two other ways. In my opinion, this made out a sufficient prima facie case under § 7, which, absent effective rebuttal, entitled the United States to judgment. The Court's sole answer to the Government's proof is that even if NBC would have entered by acquisition or de nova through a sponsored bank, it would have "little realistic hope of ultimately producing deconcenUNITED STATES v. MARINE BANCORPORATION 647 602 WHITE, J., dissenting tration of the Spokane market." This was because under Washington law after acquiring an existing or newly formed bank, NBC could not branch from that institution but would be confined to the banking offices which it acquired at the time of the merger. In the Court's opinion, NBC, without branching, would have "no reasonable likelihood of developing a significant share of that market," and the Government's case therefore failed. I cannot accept the per se view that, without branching, an able and willing newcomer to the banking market cannot be considered a sufficiently substantial competitive influence, immediately or in the foreseeable future, so that its loss to the market would warrant application of § 7. This is particularly true if the putative entrant is a large and successful banking organization with wide experience in developing new markets. Small banks can be profitable, and they can grow rapidly. The experience of the three small banks in Spokane proves this. Each of them is a profitable bank. The profits of American Commercial Bank, for example, with headquarters in downtown Spokane, rose from $27,740 in 1966 to $132,527 in 1971. The deposits of each of the three small banks have grown. From 1966 to 1972, total bank deposits in the Spokane metropolitan area rose from $379.2 million to $513.5 million, a growth of 35% in six years. Spokane would not appear to be a stagnant banking market, and it provides opportunities for smaller banking concerns. The deposits in the three small banks during the same six years grew from $14.9 million to $39.4 million, an increase of approximately 160%. Their market share, although remaining relatively small, increased from 3.9% to 7.8%. Of course, deposits in the three large banking organizations also grew. Two of them increased their market shares very 648 OCTOBER TERM, 1973 WHITE, J ., dissenting 418 U.S. slightly, but the third lost ground from 38.3% to 31.6%, for a combined decline of the three from 96% to 92.3%. The small banks thus more than held their own in the Spokane market. This showing of the smaller banks hardly indicates such impotence on the part of small competitors that a new entrant in the market should necessarily be deemed to be without influence in the market and to be beyond recognition under § 7.2 If Seattle-First National Bank, with 31.6% of the deposits in 1972, or Washington Bancshares, Inc., with 42.1 %, had acquired either American Commercial Bank or Farmers & Merchants Bank, with 3.1 % and 2.5% respectively of Spokane bank deposits, the merger would have been anticompetitive and forbidden by § 7, unless saved by the convenience-and-needs proviso of the Bank Merger Act. United States v. Philadelphia National Bank, 374 U. S. 321 (1963). Depriving the market of a new competitor that could achieve similar status in a rela- 2 The banks rely on the experience of Pacific National Bank of Washington. In 1964, a large bank holding company acquired a toehold in Spokane by acquirmg an existing small bank, but by 1972 had only garnered 2.2% of the total bank deposit.s in Spokane. A vice president of the bank testified at trial that its disappointing share of the market-its 1972 share of industrial and commercial loans was 4.6%-was probably due to its inability to branch. Although this officer also testified that his bank was not opposing the merger of NBC and WTB, he certainly was an interested party. Upon this witness' opinion, the outcome of this case cannot hinge. In light of the objective evidence, which strongly suggests that competition can exist without equality in branch capability, the testimony of this vice president should not be given great weight. It is not only a speculative statement as to the failure of the Pacific National; it is also self-serving to the extent it keeps additional competitors out of the market. As with the testimony of bank officials who profess no interest in entering a market, see United States v. Fa!,staff Brewing Corp., 410 U. S. 526, 534-535 (1973), it should only be considered along with the rest of the objective economic evidence. UNITED STATES v. MARINE BANCORPORATION 649 602 WHITE, J., dissenting tively short period of time should not be so readily placed beyond the reach of § 7 when considering the application of the doctrine of potential competition to market extension mergers. The details on the relative size of individual bank branches in Spokane or elsewhere in metropolitan areas of the State are not in the record; but it is unbelievable that there are no branches that have started very small and grown very large. New branches must make their way, often in head-to-head competition with other banks. Some are more successful than others, and I cannot accept, as a per se legal rule, the notion that a new bank sponsored by NBC in downtown Spokane or elsewhere in the city must be forever deemed to be without substantial competitive impact on the banking community." It is incredible to me that the presence of a major Seattle bank like NBC in downtown Spokane could or would be ignored by the entrenched banking powers or should be ignored for the purposes of applying § 7 of the Clayton Act. NBC has 15 branches within a 100-mile radius of Spokane. Those branches have $103 million in total 3 Evidence introduced by the Government as to the ability of banks in the other major metropolitan banking markets of Washington- Seattle, Tacoma, and Everett-totally undercuts the Court's assumption that a bank with only one office cannot acquire a substantial enough market share to effect deconcentration. In Seattle, the Bank of California, with only one office, had $112 million in total deposits in 1970, representing 6.27% of the total deposit market. This share can be compared with that of Paci.fie National Bank of Washington which, with 13 offices, had a 9.38% m!lrket share. In Tacoma, the Bank of California-Tacoma had $65.4 million in total deposits which represented a 15.55% market share. Compare this with the 3.17% share of Seattle-First National Bank- Tacoma, with four offices. In Everett, Peoples National Bank of Washington-Everett, with one office, had $17.2 million in total deposits, a 10.83% market share. 650 OCTOBER TERM, 1973 WHI1'E, J., dissenting 418 U.S. deposits, including $4.4 million from Spoka.ne customers. Two of these branches are in Spokane County and between them have $11 million in deposits. They also have loans totaling $10.2 million to Spokane interests. NBC is a major financial institution with large lending limits and offering a full line of commercial banking services. It is obviously equipped to penetrate and compete vigorously in the Spokane lending market wholly aside from how fast deposits might grow in a newly established or acquired Spokane bank. It is quite untenable to assert that the competition that might be offered in the Spokane lending market by a new bank formed by this obviously vigorous competitor is too insignificant to warrant the protections of § 7.4 The availability of branching is, of course, an important competitive consideration, but it should not be forgotten that American Commercial Bank, headquartered in downtown Spokane, has four branches and if acquired by NBC would give that bank a substantial operating capacity in Spokane. The majority, nevertheless, even assuming the acquisition of this bank by NBC, insists on its own view of competitive reality and holds 4 As the majority recognizes, the relevant product market in this case is the cluster of services offered by commercial banks. A main component of that cluster, and one which determines profits, is the ability to provide loans, and it seems to me that a prospect of competition for loans, whether based on deposits garnered in Spokane or elsewhere, has a substantial possibility of effecting deconcentration in at least one segment of the banking business. The fact that profitability and number of offices are not highly correlated is supported by comparing the experience of Washington Bancshares and Seattle-First National Bank. In 1971, the former had 23 offices and a net income of $2.2 million. The latter, with only seven offices, had a net income of $3.5 million. In that same year, although Washington Bancshares had $45.6 million more in deposits than did Seattle-First National, the latter had an edge of $7 .2 million in commercial and industrial loans. UNITED STATES v. MARINE BANCORPORATION 651 602 WHITE, J ., dissenting that the loss of NBC as a competitor in place of American must be deemed an insignificant loss to competition. This is true even · though one of the major competitors, Seattle-First National Bank, has only seven branches and under the state law already referred to, it is confined to its existing branches. It is also true that if NBC entered SJX)kane by sponsoring a new bank, the new bank itself could legally branch and create the necessary branch infrastructure for as long as it was not acquired by NBC or another outsider. The majority states that this is "probably unrealistic" and that it would "multiply the problems" of obtaining approval of sponsorship from bank regulatory agencies. But this is sheer speculation; the Court simply has no idea what the attitude of regulatory officials would be in this regard. Furthermore, NBC itself has had experience with sponsored-bank situations, and, a.s the majority recognizes, it asserts that it has not sponsored banks solely for the purpose of acquisition. Apparently, relationships with a sponsored institution are themselves of inherent value, and the benefits would only increase if the sponsored bank itself branched as it grew. Viewed in this light, the Court's per se rule becomes threadbare indeed when applied to NBC entering by acquisition into the Spokane market. The three existing smaller banks in Spokane have been successful and profitable and have even increased their share of the market in six years. Furthermore, Seattle-First National cannot legally go beyond its present seven branches in the Spokane market, and its share of the market has declined. It is quite unreasonable to think that NBC, if it acquired American Commercial, with its four branches could not be an effective competitor at least against Seattle-First National in Spokane, with its seven branches, or against WTB with its eight. 652 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. The Court also errs in holding that NBC, an obvious potential competitor, cannot be deemed to have exercised substantial influence on the Spokane market and that its entry by merger with a major Spokane bank therefore represents no probable injury to competition in that market. To the extent that the Court's holding on this branch of the case rests on its notion that no bank, without branching, can make substantial inroads on the Spokane market, I disagree for reasons already stated. Beyond that, however, the waiting-in-the-wings approach to potential competition rests on what objective factors indicate the perception of the reasonably minded competitor in the Spokane market might be of the likelihood and impact of an entry by NBC, either de novo or by acquisition of a small bank. Predictions of market behavior and competitive success are just not as certain or uniformly held as the Court makes them out to be. Here, before NBC acquired WTB, NBC negotiated to acquire the much smaller Farmers & Merchants Bank~a three-office suburban bank with about $13 million in deposits and 2.5% of the market. The target bank was in the relevant geographic market accepted by the parties and Court. The President of Marine Bancorporation, Maxwell Carlson, had at various times noted that the President and Director of WTB, Philip Stanton, expected NBC to be in Spokane some day. One wonders, if the majority's branch-disability theory is correct, why these bankers even discussed potential entry into the market. The fact is that they did, and it is fair to assume that through informal contacts, and by reason of the prior acquisition discussions, bankers in the market were aware of NBC's interest. The majority would have one believe that even if NBC was interested, no one in the market would take it seriously enough to restrain anticompetitive practices. It is certainly possible, however, that even if bankers in the market doubted that NBC would actually UNITED STATES v. MARINE BANCORPORATION 653 602 WHITE, .J., dissenting be successful in acquiring a significant market share, if they entered the market, the possibility of entry and the possibility of competition following entry were sufficiently strong to restrain anticompetitive practices. If bankers thought that there was a probability of entry, which there surely was, but that their losses from such entry could be substantial, if NBC, once in the market, competed more effectively than anticipated, they would take countermeasures and make entry less attractive by refraining from engaging in anticompetitive practices. In the last analysis, one's view of this case, and the rules one devises for assessing whether this merger should be barred, turns on the policy of § 7 of the Clayton Act to bar mergers which may contribute to further concentration in the structure of American business. United States v. Philadelphia National Bank, 374 U. S., at 362- 363; United States v. Penn-Olin Chemical Co., 378 U. S. 158, 170-171 (1964); Brown Shoe Co. v. United States, 370 U. S. 294, 331-332 (1962). The dangers of concentration are particularly acute in the banking business, since "if the costs of banking services and credit are allowed to become excessive by the absence of competitive pressures, virtually all costs, in our credit economy, will be affected ... . " Philadelphia Bank, supra, at 372; United States v. Phillipsburg National Bank, 399 U. S. 350, 358 (1970). Unless an otherwise illegal merger is saved by a finding under the Bank Merger Act that it is necessary to serve the convenience and needs of the community, the law requires us in the first instance to judge bank mergers by normal § 7 standards. I simply cannot agree with the Court's narrow view of what bank mergers "may ... substantially ... lessen competition." With respect to whether depriving the market of the competition offered by a new entrant violates § 7, it is not enough under the Court's view that the newcomer 552-191 0 • 76 - 44 G54 OCTOBER TERtvr, 1973 WHITE, .J., dissenting 418 u. s. has itself found the market sufficiently attractive to enter and to assume all the start-up costs and risks attendant to a new business undertaking. The Court is willing also to assume that the new business will be profitable and long-lived, for under the approach taken today, it is not enough to show the loss of one or more profitable but small businesses. Apparently, it cannot be assumed that a small business, even when backed by a major enterprise. can or will be successful in competing against the entrenched powers in the market. This thesis erects formidable barriers to the applicatjon of the potential-competition doctrine not only in the banking business but in other lines of commerce.5 To show that the potential entrant, waiting in the wings, is exercising a present influence on the market, or that its loss as a de novo or toehold entrant may be a substantial injury to competition, it will not be enough to prove ability and willingness to enter, along with the probability, or even certainty, of entry. Nor will it suffice to prove that the potential or actual entrant would be a profitable concern and successfully prevent the major figures in the market from increasing their market shares. The courts must also examine conditions in the market and conclude for themselves that there is a realistic expectation that the new entrant will appropriate for itself a substantial part of the business of the major competitors in the market. 5 The Court professes to limit its per se rule to "an industry in which new entry is extensively regulated by the State and Federal Governments." The case, as decided, however, does not turn on barriers to entry, but "barriers" to effective competition, once entry is effected, and "barriers" to effective competition are not easily limited to regulated industries. The Court lays itself open for arguments that economic, as well as legal, barriers exist for new competitors. At least it is difficult to see why one should be more controlling than another; in fact, the Court itself blurs the two. UNITED STATES v. MARINE BANCORPORATION 655 602 WHITE, J., dissenting The Court then delivers the coup de grace by imposing its own visions of reality in commercial banking markets: without unlimited branching authority in the market involved, no newcomer to the market can be sufficiently successful against others, who have the authority, to be a substantial competitor and to merit recognition under doctrines of potential competition. No new entrant can attain, let us say, 15 or 20 percent of the banking business in the Spokane area unless it has branching authority. The Court apparently insists this will be true no matter where the new banking office is located and no matter who and how well equipped and financed the new entrant may be. This is claiming a prescience that I doubt the Court has and is a view of the effectiveness and worth of competition, though having modest beginnings, that I do not share. Furthermore, the conclusion the Court reaches passes beyond my comprehension when it refuses to concede that NBC, if it acquired American Commercial Bank, with its four branches, could not make substantial inroads on the market shares of any of the major banks in the market, even though one of them is forever limited to seven offices under the present law. 656 OCTOBER TERM, 1973 Syllabus 418 U.S. UNITED STATES v. CONNECTICUT NATIONAL BANK ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT No. 73-767. Argued April 23, 1974-Decided June 26, 1974 The United States brought this civil antitrust action under § 7 of the Clayton Act challenging a proposed consolidation between the Connecticut National Bank (CNB) and the First New Haven National Bank {FNH), which are, respectively, the fourth and eighth largest commercial banks in Connecticut. The banks operate in contiguous areas of the State, CNB having headquarters in Bridgeport, with 51 offices there and in nearby towns; FNH having headquarters in New Haven, with 22 offices there and in nearby towns. The Government contended that the merger would eliminate significant potential competition in commercial banking in the New Haven and Bridgeport metropolitan areas and in other areas in Connecticut. The District Court rejected the Government's arguments in support of that position, relying on state law restraints on de novo branching, the two banks' expansion pla.ns and capabilities, the posture of national and state regulatory officials regarding the issuance of new bank charters, and the existence and economic feasibility of possible foothold acquisitions. The court concluded that under § 7 commercial banking is not a distinct line of commerce in Connecticut and that the relevant geographic market, or ''section of the country" under that provision, is the State as a whole. Held: 1. The District Court erred in holding that the appropriate "line of commerce" within the meaning of § 7 included both commercial banks and savings banks. Pp. 660-666. 2. The District Court further erred in ruling that the relevant geographic market is the State of Connecticut as a whole. In a potential-competition case like this, the relevant geographic market must be defined as the localized are.a in which the acquired bank is in significant, direct competition with other banks, albeit not the acquiring bank. United States v. Marine Bancorporation, ante, p. 602. Pp. 666-668. 3. On remand, the District Court must make a determination as to the geographic market in which each of t.he banks operates UNITED STATES v. CONNECTICUT NATIONAL BANK 657 656 Opinion of the Court and to which the bulk of its customers may turn for alternative commercial bank services, and in making that determination it will be aided by the following considerations: (i) the Government has the burden of producing evidence to define localized banking markets; (ii) in satisfying that burden (as the District Court correctly held) the Government cannot rely only on Standard Metropolitan Statistical Areas; and (iii) town boundaries, although significant, are not controlling. Pp. 668-671. 4. The Government's contention that the State as a whole, though not a banking market, is a "section of the country" within the meaning of§ 7 is without merit, Marine Bancorporation, supra. Pp. 672-673. 362 F. Supp. 240, vacated and remanded. PowELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined, and in Part I of which DoUGLAs, BRENNAN, WHITE, and MARSHALL, JJ., joined. WHITE, J., filed an opinion concurring in part and dissenting in part, in which DouGLAS, BRENNAN, and .MARSHALL, JJ., joined, post, p. 673. Howard E. Shapiro argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Kauper, Robert B. Nicholson, and John W. Clark. George D. Reycraft argued the cause for appellees Connecticut National Bank et al. With him on the brief were John Boyer, Haven C. Roosevelt, and Richard G. Bell. Lee Loevinger argued the cause for appellee Comptroller of the Currency. With him on the brief were Robert Bloom and Charles H. McEnerney, Jr. MR. JusTICE POWELL delivered the opinion of the Court. This case concerns the legality of a proposed consolidation of two nationally chartered commercial banks operating in adjoining regions of Connecticut. The United States brought a civil antitrust action challenging the 658 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. consolidation under § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18. Following a lengthy trial and on the basis of extensive findings and conclusions, the United States District Court for the District of Connecticut dismissed the Government's complaint. 362 F. Supp. 240 (1973). The Government brought a direct appeal pursuant to the Expediting Act, 32 Stat. 823, as amended, 15 U. S. C. § 29, and the Court noted probable jurisdiction, 414 U. S. 1127 (1974). The banks desiring to consolidate, Connecticut National Bank (CNB) and First New Haven National Bank (FNH), have offices in contiguous areas in the southwestern portion of Connecticut. CNB maintains its headquarters in the town of Bridgeport, which is situated on the Long Island Sound approximately 60 miles from New York City. CNB is the fourth largest commercial bank in the State. At year-end 1972, it held 6.2% of the deposits in commercial banks in Connecticut. CNB operates 51 offices located in Bridgeport and nearby towns in the extreme southwest section of Connecticut. FNH has its headquarters in the town of New Haven, approximately 19 miles to the northeast of Bridgeport along the Long Island Sound. FNH is the eighth largest commercial bank in Connecticut. At the end of 1972, it held 4.1 % of commercial bank deposits in the State. FNH operates 22 bank offices in New Haven and surrounding towns. In Connecticut as a whole at the end of 1971, the five largest commercial banks held 61 % and the 10 largest commercial banks held 83% of the deposits in such banks in the State. Two large commercial banks based in Hartford, Connecticut Bank & Trust Co. of Hartford and Hartford National Bank, operate essentially statewide. At year-end 1972, they had 41 % of the total commercial bank deposits held by Connecticut banks. UNITED STATES v. CONNECTICUT NATIONAL BANK 659 656 Opinion of the Court CNB and FNH both have offices and are in direct competition in a so-called "four-town area" located between Bridgeport and New Haven. The banks assured the District Court, however, that in implementing the consolidation they would divest themselves of a sufficient number of offices in the four-town area to render insignificant the degree of overlap of their areas of actual operation. The District Court held that this divestiture plan eliminated any antitrust difficulties presented by the merger of direct competitors. 362 F. Supp., at 268- 270, 286. The United States has not pursued the point on appeal. Accordingly, the case has been presented to us strictly as a geographic market extension merger on the part of both banks. The proposed consolidation would join the banks under FNH's national charter (with headquarters in Bridgeport). It would have no effect on the number of banks operating in either the Bridgeport or New Haven area. In that posture, the case presents potential-competition issues similar to those raised in United States v. Marine Bancorporation, Inc., ante, p. 602. The District Court rejected the Government's potential- competition arguments, relying on such factors as state-law restraints on de novo branching,' the expan- 1 Under state law in Connecticut, commercial banks may not branch into a town containing the main office of another bank (the so-called "home office protection" provision). Conn. Gen. Stat. Rev. § 36-59 (1972). Towns that contain the main office of a bank are referred to as "closed" towns. The remaining towns are "open towns." The term "town" in Connecticut refrrs to a political subdivision of the State, somewhat analogous to counties in other States. It does not denote a metropolitan area, although some cities are more or less congruent with the towns in which they are located. There are 169 towns in Connecticut. The effect of the "home office protection" provision is to create a checkerboard of " open" and "closed" towns reflecting the location of the main offices of the 660 OCTOBER TERM, 1973 Opmion of the Court 418 U.S. sion plans and capabilities of the two banks, the posture of national and state regulatory officials regarding the issuance of new bank charters, and the existence and economic feasibility of possible foothold acquisitions. 362 F. Supp., at 286---288. As we have held today in the Marine Bancorporation case, these and analogous factors are the appropriate considerations to take into account in determining the legality under § 7 of the Clayton Act of geographic market extension mergers by commercial banks. We are unable., however, to reach the question of whether the District Court correctly assessed the import of those factors in the instant case. We have also held in Marine Bancorporation that the legality of a market extension merger must be determined against the backdrop of properly defined product and geographic markets. See ante, at 618. In our view, the Di!,trict Court erred in its definition of both concepts, and it is not possible to ascertain the degree, if any, to which those errors may have influenced its conclusions with regard to the Government's potential-competition arguments. Accordingly, the District Court's judgment must be vacated and the case remanded for reconsideration. I The District Court concluded that the appropriate "line of commerce" within the meaning of § 7 included both commercial banks and savings banks. 362 F. Supp., at 281. The court recognized that its conclusion departed from this Court's holdings in, e. g., United States v. Phillipsburg National Bank, 399 U. S. 350, 359-362 (1970), and United States v. Philadelphia National Bank, 374 U. S. 321, 356---357 (1963). But in the District Court's banks operating in the State. State law forbids any bank that does not have its headquarters in Connecticut from operating banking offices within the State. Conn. Gen. Stat. Rev. §36--59 (4). UNITED STATES v. CONNECTICUT NATIONAL BANK 661 656 Opinion of the Court view the pronouncements in Phillipsburg National Bank and Philadelphia National Bank "were not intended to be ironclad, hard and fast rules which require a court to don blinders to block out the true competitive situation existing in every set of circumstances." 362 F. Supp., at 280. Several factors led the District Court to the conclusions that "savings banks are in direct and substantial competition with commercial banks in providing productservices to the banking consumers in Connecticut ... ," and that "[t]he cold, hard realities of the situation are that savings and commercial banks are fierce competitors in this state." Ibid. The court noted that under state law savings banks in the near future will be permitted to off er one of the traditional indicia of commercial banks, personal checking accounts. See Conn. Pub. Act No. 73- 195 (May 14, 1973). It pointed out that savings banks in Connecticut compete with commercial banks for real estate mortgages, personal loans, IPC (individual, partnership, and corporate) deposits, and, the court found, commercial loans. 362 F. Supp., at 280. It cited United States v. Continental Can Co., 378 U. S. 441 (1964), for the proposition that "complete industry overlap" is not required to establish a relevant line of commerce under § 7. 362 F. Supp., at 281. It also relied on the omission of the "in any line of commerce" phrase from the Bank Merger Act of 1966, 12 U.S. C. § 1828 (c)(5)(B), an Act which in other essential respects tracks the language of§ 7 of the Clayton Act.2 Finally, it distinguished 2 See 362 F. Supp., at 281. The relevant provision of t he Bank Merger Act of 1966, 80 Stat. 8, 12 U. S. C. § 1828 ( c) ( 5) (B), proscribes any bank consolidation: "Whose effect in any section of the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be in restraint of trade, unless ... the anticompetitive effects of the proposed transaction are clearly out662 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. Philadelphia National Bank, supra, and Phillipsburg National Bank, supra, by pointing to the absence of significant competition by savings banks in the relevant geographic markets in those cases. 362 F. Supp., at 281. The District Court's conclusion on the appropriate line of commerce caused it to "shade" ( i. e., to reduce) the Government's concentration ratios to take into account the presence of savings banks. Id., at 285. We are in complete agreement with the District Court that Phillipsburg National Bank and Philadelphia National Bank do not require a court to blind itself to economic realities. Similarly, we have no doubt on this record that savings banks and commercial banks in Connecticut are "fierce competitors," see 362 F. Supp., at 280, to the degree that they offer identical or essentially fungible services. The District Court was also correct that "complete inter-industry competitive overlap need not be shown." Continental Can Co., supra, at 457. As the Court declared in Continental Can, "we must recognize meaningful competition where it is found to exist." 378 U. S., at 449. Nonetheless, we hold for several reasons that the District Court was mistaken in including both savings and commercial banks in the same product market for purposes of this case. weighed in the public interest by the probable effect of the tr1tnsaction in meeting the convenience and needs of the commWlity to be served." Section 7 of the Clayton Act, 38 Stat. 731, as amended, 64 Stat. 1125, 15 U. 8. C. § 18, by comparison provides in pertinent part: "No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation &'Ubject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly." UNITED STATES v. CONNECTICUT NATIONAL BANK 663 656 Opinion of the Court Two of the District Court's reasons may be dealt with briefly. The court erred as a matter of law in concluding that the absence of a "line of commerce" phrase in the Bank Merger Act of 1966 alters traditional standards under § 7 of the Clayton Act for defining the relevant product market in a bank merger case. United States v. Third National Bank, 390 U. S. 171, 182 n. 15 (1968). See Phillipsburg National Bank, 399 U. S., at 359- 362. Moreover, the absence of significant competition from savings banks in Philadelphia National Bank, supra, and Phillipsburg National Bank, supra, is not determinative. The commercial banks in both of those cases faced significant competition from savings and loan associations and other credit institutions. See, e. g., 374 U. S., at 357 n. 34; United States v. Phillipsburg National Bank, 306 F. Supp. 645, 649 (NJ 1969). The Court in both instances nevertheless viewed the business of commercial banking as sufficiently distinct from other credit institutions to merit treatment as a separate "line of commerce" under § 7. Analogous distinctions, although perhaps not as sharply defined, are controlling here. We believe that the District Court overestimated the degree of competitive overlap that in fact exists between savings banks and commercial banks in Connecticut. To be sure, there is a large measure of similarity between the services marketed by the two categories of banks.3 In s As we have noted, the District Court identified some of the services offered by both savings and commercial banks, including real estate mortgages, personal loans, and time deposits. As the District Court put it in another context, it would be "ostrich-like," 362 F. Supp., at 254, to assume that the two types of banks are not in direct and vigorous competition with regard to the services they share or are not viewed by many bank customers as more or less fungible for purposes of those services. Cf. United States v. Phillipsburg National, Bank, 399 U. S. 350, 360 (1970). That savings and commercial banks are direct competitors in some submarkets, how664 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. our view, however, the overlap is not sufficient at this stage in the development of savings banks in Connecticut to treat them together with commercial banks in the instant case. Despite the strides that savings banks in that State have made toward parity with commercial banks, the latter continue to be able to provide a cluster of services that the former cannot, particularly with regard to commercial customers, and this Court has repeatedly held that it is the unique cluster of services provided by commercial banks that sets them apart for purposes of § 7. The Court declared in Phillipsburg National Bank, supra, at 360: "Philadelphia Bank emphasized that it is the cluster of products and services that full-service banks offer that as a matter of trade reality makes commercial banking a distinct line of commerce. Commercial banks are the only financial institutions in which a wide variety of financial products and services-some unique to commercial banking and others not-are gathered together in one place. The clustering of financial products and services in banks facilitates convenient access to them for all banking customers .... " (Emphasis in original.) From the vantage point of at least one significant consumer of bank services- the commercial enterprise-commercial banks in Connecticut offer a "cluster of products and services" that their savings bank counterparts do not. The facts of this case indicate that the differences in what commercial banks in the State can offer to that important category of bank customers are sufficient to establish commercial banking as a distinct line of commerce. The District Court concluded that "meaningful competition" existed between commercial and savings banks ever, is not the end of the inquiry, as Phulipsburg makes clear. Ibid. UNITED STATES v. CONNECTICUT NATIONAL BANK 665 656 Opinion of the Court for commercial loans. 362 F. Supp., at 280. This conclusion is not supported by the record. Commercial loans, generally speaking, are relatively short-term loans to business enterprises of all sizes, usually for purposes of inventory or working capital. At the end of 1971 commercial banks in Connecticut had outstanding $1.03 billion in commercial loans.4 Savings banks, by comparison, had $26 million in such loans at that time.5 The disparity in these figures demonstrates that the commercial bank-loan business in Connecticut is controlled almost exclusively by commercial banks. Moreover, commercial banks in the State offer credit-card plans, loans for securities purchases, trust services, investment services, computer and account services, and letters of credit. Savings banks do not. It is true that under state law savings banks soon will be able to provide some checking account services. Conn. Pub. Act No. 73-195 (May 14, 1973).6 This will increase the degree of direct competition between savings banks and commercial banks, because demand deposits have traditionally been a unique attribute of the latter institutions. But even this new authority for savings banks will not allow them to serve commercial customers, who constitute a significant percentage of the clientele of commercial banks. The state statute empowering savings banks to offer demand deposits forbids those banks from marketing the service to anyone "for the purpose of, or in connection with, the carrying on of any business, trade, occupation or profession." Id.,§§ 1 (a), 5. Thus, 4 App. 1793. "Id., at 1795. 6 The pertinent prov1s1ons of Conn. Pub. Act No. 73-195 will take effect no later than December 31, 1975, although the enactment of certain federal legislation or other specified events not relevant here may trigger those provisions at an earlier date. See id., § 7. 666 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. under the new Act, savings banks will be restricted to offering personal checking accounts. Id., § 2. We do not say, and Phillipsburg National Bank, supra, and Philadelphia National Bank, supra, do not say, that in a case involving a merger of commercial banks a court may never consider savings banks and commercial banks as operating in the same line of commerce, no matter how similar their services and economic behavior. At some stage in the development of savings banks it will be unrealistic to distinguish them from commercial banks for purposes of the Clayton Act. In Connecticut, that point may well be reached when and if savings banks become significant participants in the marketing of bank services to commercial enterprises. But, in adherence to the tests set forth in our earlier bank merger cases, which we are constrained to follow, we hold that such a point has not yet been reached. Accordingly, on remand the District Court should treat commercial banking as the relevant product market. II The District Court ruled that the relevant geographic market, or "section of the country," under § 7, is the State as a whole. 362 F. Supp., at 283. We think the District Court erred on this point for several reasons. If the State were the relevant geographic market, it would then be appropriate to analyze this not as a potential-competition case but as a direct-competition case involving the consolidation of two firms holding an aggregate market share of approximately 10%. Even if this figure is "shaded" by a factor of 10% to account for the influence of banks in New York, see id., at 260; Philadelphia National Bank, 374 U. S., at 364 n. 40, the consolidation of CNB and FNH would create a firm holding a 9% share of statewide commercial-bank deposits. Mergers between direct competitors producing smaller shares UNITED STATES v. CONNECTICUT NATIONAL BANK 667 656 Opinion of the Court of less concentrated markets have been held illegal under § 7. E. g., United States v. Von's Grocery Co., 384 U. S. 270 ( 1966). The State cannot be the relevant geographic market, however, because CNB and FNH are not direct competitors on that basis ( or for that matter on any other basis pertinent to this appeal). The two banks do not operate statewide, nor do their customers as a general rule utilize commercial banks on that basis. The offices of the two banks are restricted to adjoining sections of the southwest segment of Connecticut. Although the two banks presumably market a small percentage of their loans to large customers on a statewide or broader basis, it is undoubtedly true that almost all of their business originates locally. For example, "about 88% of CNB's total deposit business derive[s] from the towns in which CNB has offices." 362 F. Supp., at 250. As the District Court noted in a finding that is inconsistent with its conclusion on the appropriate section of the country, " [ c] ommon sense ... w0uld indicate that the relevant market areas of CNB and FNH generally coincide with where each has established branch offices." Ibid. As indicated by our opinion today in Marine Bancorporation, ante, p. 602, the relevant geographic market of the acquired bank is the localized area in which that bank is in significant, direct competition with other banks, albeit not the acquiring bank. This area must be defined in accordance with this Court's precedents in prior bankmerger cases. Yet the District Court's conclusion on this issue conflicts with Philadelphia National Bank, supra. The Court emphasized in that case: "In banking, as in most service industries, convenience of location is essential to effective competition. Individuals and corporations typically confer the bulk of their patronage on banks in their 668 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. local community; they find it impractical to conduct their banking business at a distance. . . . The factor of inconvenience localizes banking competition as effectively as high transportation costs in other industries." 374 U. S., at 358 (footnote and citations omitted). In recognition of the local character of the great majority of commercial bank activities, Philadelphia National Bank indicated that the relevant geographic market in bank-merger cases must be drawn narrowly to encompass the area where "the effect of the merger on competition will be direct and immediate." Id., at 357. Moreover, the geographic market must be delineated in a way that takes into account the local nature of the demand for most bank services. It "must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for [alternatives] . . . . " Id., at 359 ( citations, internal quotations, and italics omitted). Because the economic scale of separate categories of consumers of bank services will vary, a workable compromise must be struck "to delineate the area in which bank customers that are neither very large nor very small find it practical to do their banking business .... " Id., at 361.7 On remand the District Court must determine pursuant to the localized approach denoted above the geographic market in which CNB operates and to which the bulk of its customers may turn for alternative commercial bank services. It must do the same with regard to FNH, for this case presents the unusual fact situation of a consolidation of two banks, each with a history of de novo geographic expansion, rather than the acquisition of 7 The Court's approach in Philadelphia National, Bank to defining geographic markets for commercial banks was reaffirmed in Phillipsburg National Bank, 399 U.S., at 362- 365. UNITED STATES v. CONNECTICUT NATIONAL BANK 669 656 Opinion of the Court a geographically stable bank as in Marine Bancorporation, ante, p. 602. The task is important, because the definition of the respective geographic markets determines the number of alternative avenues of entry theoretically open to CNB in piercing FNH's area of significant competitive influence and vice versa. We are not unaware of the difficulty of the assignment confronting the District Court. An element of "fuzziness would seem inherent in any attempt to delineate the relevant geographical market." Philadelphia National Bank, supra, at 360 n. 37. The task is made especially taxing here by the fragmented character of the distribution of the banking offices of the two banks, especially CNB. Apparently because the Connecticut branching statute has created a checkerboard of "open" and "closed" towns, seen. 1, supra, CNB and FNH have not expanded in the past in a manner that produced readily definable, completely covered areas around the towns where they have their home offices. There is, for example, a gap consisting of four towns in the extreme southwest section of Connecticut in which CNB has no offices, although it has established offices in almost all of the surrounding towns in that part of the State. That gap presumably will have to be excluded from consideration on remand. The difficulty of the responsibility imposed on the District Court with regard to defining the geographic markets of the two banks is ameliorated by several considerations. First, the burden of producing evidence on this subject is on the Government. The Government repeatedly notes that it is not required to define geographic markets by "metes and bounds," citing United States v. Pabst Brewing Co., 384 U. S. 546, 549 (1966). To the extent that this means that such markets need not--indeed cannot-- be defined with scientific precision, it is accurate. But it is nevertheless the Government's role to come forward with evidence delineating the rough approximation 670 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. of localized banking markets mandated by Philadelphi,a National Bank, supra, and Phillipsburg National Bank, supra. Second, we affirm that portion of the District Court's judgment holding that the Government cannot rely, without more, on Standard Metropolitan Statistical Areas (SMSA's) as defining the geographic markets of the two banks. See 362 F. Supp., at 249-250, 281-282. SMSA's are prepared by the Office of Management and Budget to determine areas of economic and social integration, principally on the basis of the commuting patterns of residents.8 They are not defined in terms of banking criteria, and they were not developed as a tool for analyzing banking markets. / d., at 249. Exclusive reliance on SMSA's here may lead to inaccuracies. For example, as the District Court noted, only 57% of CNB's deposits originate from the Bridgeport SMSA. Id., at 250, 282. This is because CNB's offices extend to several areas outside the Bridgeport SMSA. The Bridgeport SMSA is relevant, if at all, only to the CNB offices located in Bridgeport, and even then it is at best a crude indicator. The same is true of the New Haven SMSA and the FNH offices located in the town of New Haven. In sum, although the Bridgeport and New Haven SMSA's may be helpful in defining the general metropolitan characteristics of southwest Connecticut, they are not sufficiently refined in terms of realistic commercial banking markets to satisfy the Government's burden. The Government must demonstrate more accurately than is possible solely with SMSA's the localized banking markets, or areas of significant competitive influence, surrounding the sites where CNB and FNH maintain their banking offices.9 8 App. 1435-1437. 9 The federal bank regulatory agencies define a bank's service area as the geographic area from which the bank derives 75% of UNITED STATES v. CONNECTICUT NATIONAL BANK 671 656 Opinion of the Court Third, the District Court may not, as the banks would have it, rely solely on towns as the relevant geographic markets. The towns served by the two banks are highly significant geographic units, because state law restraints on de novo branching are defined in terms of towns. See n. 1, supra. But not all towns are closed to de novo branching by one or the other bank, and it seems fair to assume that the area of significant competitive influence of some bank offices may extend beyond town boundaries. On remand, the District Court must delineate the localized banking markets surrounding the sites where CNB and FNH maintain their bank offices. It must then evaluate the economically and legally feasible alternative methods of entry, if any, into those areas available to one bank or the other. In so doing, it should keep in mind the considerations outlined today in Marine Bancorporation, ante, p. 602.10 its deposits. See 362 F. Supp., at 250. The service-area concept may be considerably more useful in this case than SMSA's, although this is a matter we leave to the District Court on remand. In Marine Bancorporation, ante, at 619, we affirmed the District Court's determination of the Spokane metropolitan area as the relevant geographic market. That holding was not an affirmation of SMSA's as banking markets; SMSA's were not at issue in that case. The Spokane metropolitan area was defined as the relevant geographic market in Marine Bancorporation because it is an insulated banking market, is comparatively small by geographic standards in the Western States, contains all the banking offices of the target bank, and is the area from which that bank draws some 90% of its deposit accounts. 10 We note that it is not at all clear that the District Court's holdings as to potential competition were based on a statewide appraisal of the consolidation at issue, despite its conclusion that the State was the relevant section of the country. For example, the court's findings with regard to "toehold" acquisitions refer to SMSA's, towns, and service areas, 362 F. Supp., at 265, and its conclusions under the heading of "potential competition" speak of service area, service 672 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. III In conformity with its approach in Marine Bancorporation, the Government argues that the State as a whole, although not a banking market, is nonetheless a "section of the country" within the meaning of § 7 of the Clayton Act. The Government repeats the concern expressed in Marine Bancorporation, see ante, at 620, that a statewide linkage of oligopolies "may" arise and that large banks across the state "may engage" in more standardized behavior as a result.11 Moreover, the Government contends that a statewide approach is appropriate because the challenged consolidation would eliminate one of eight banks in Connecticut with the potential for statewide operation. "Thus the effect of a merger which eliminates even one of these banks will be felt statewide, for it will have an impact in every local market in the state where that bank does not currently operate but which it might otherwise enter." 12 We reject the Government's statewide approach here, as we did in Marine Bancorporation, ante, at 620. The Government's argument that "a geographic area need not be a banking market to be a section of the country ... " 13 is foreclosed by the precedents. Ante, at 620-622. Its theory of linked oligopolies appears to be as devoid of evidentiary support here as it was in Marine Bancorporation. Finally, its concern for any area of the State in which CNB or FNH "might" enter independently of the conmarket, and towns. Id., at 286-287. Because the District Court did not clarify what local area, if any, it considered controlling for purposes of the potential-competition doctrine, we are unable to hold that its error in denoting the State as the relevant section of the country, see id., at 283, may be ignored. 11 Brief for United States 34. 12 /d., at 33 (emphasis added). 13 / d., at 31. UNITED STATES v. CONNECTICUT NATIONAL BANK 673 656 Opinion of \VHITE, J. solidation is too speculative to establish a case under the Clayton Act. In advancing the latter argument, the Government borders on espousing a per se rule against geographic market extension mergers by Connecticut commercial banks so long as any town in the State remains open to de novo branching. On remand the District Court will address itself to the geographic markets in which CNB and FNH presently operate.14 The judgment is vacated and the case is remanded for further consideration consistent with this opinion. It is so ordered. MR. JUSTICE WHITE, with whom MR. JusncE DouGLAS, MR. JUSTICE BRENNAN, and MR. JusTICE M.~RSHALL join, concurring in part and dissenting in part. Although I agree with Part I of the majority opinion, as to the relevant line of commerce, I dissent from that part of the opinion dealing with the determination of a relevant geographic market. The Court holds that "the relevant geographic market of the acquired bank is the localized area in which that bank is in significant, direct competition with other banks, albeit not the acquiring bank," relying on a statement to similar effect in United States v. Marine Bancorporation, Inc., ante, p. 602. Accordi11gly, the Court rejects the proposition, which the appellee banks accepted 14 The District Court also concluded that assuming, arguendo, that the consolidation violated the Clayton Act, it nonetheless met the standards of the "convenience and needs" test of the Bank Merger Act of 1966, 12 U. S. C. § 1828 (c) (5) (B). 362 F. Supp., at 288. Its findings on the "convenience and needs" defense are not controlling, however, if it erred in the standards applied in judging the status of the consolidation under the Clayton Act. United States v. Third National Bank, 390 U. S. 171, 183-184 (1968). See also Phillipsburg National Bank, 399 U.S., at 369-370. 674 OCTOBER TERM, 1973 Opinion of WHITE, J. 418 U.S. below,* that the merger of FNH and CNB should be analyzed in terms of its effect on possible potential competition in areas not in or adjacent to the New Haven and Bridgeport markets, however those markets are to be defined. There is certainly nothing in this Court's past cases on mergers under Clayton § 7 which requires this result. Even if Bridgeport and New Haven are relevant geographic markets, there can be more than one relevant geographic market in which to test the possible effects of a merger. Section 7 of the Clayton Act speaks to lessening competition "in any section of the country" ( emphasis added), and as the majority acknowledges in Marine Bancorporation, ante, at 621 n. 20, in United States v. Pabst Brewing Co., 384 U.S. 546 (1966), the Court "held that the Government had established three relevant markets in which the acquired firm actually marketed its products- a single State, a multi-state area, and the Nation as a whole." To be sure, the selection of any relevant geographic market in a banking case must be chosen in terms of the needs of the customers and the area in which sellers operate, United States v. Philadelphia National Bank, 374 U.S. 321, 357-359 (1963), but this may result in several possible markets, especially in a potentialcompetition case where a merger might affect the eco~ nomic behavior of existing firms in various markets. As I read the majority opinion, if one assumed that FNH and CNB were the two largest banks in Connecticut, and, although located in southwest Connecticut, both had the capability and interest to enter a concentrated banking market in northeast Connecticut, it would be improper for the Government to oppose their merger, since *One of the principal witnesses presented by the appellee banks, Dr. Peck, analyzed the effect of this merger, and the removal of FNH as a potential rompetitor, along with CNB, on the various banking markets in the State. UNITED STATES v. CONNECTICUT NATIONAL BANK 675 656 Opinion of WHITE, J. neither bank had as yet entered the northeast Connecticut banking market. The majority describes the possibility of such dual entry as "too speculative." Ante, at 673. What is a relevant geographic market is an issue entirely distinct from who is a potential competitor. It is obvious, for example, that while Nmv Haven and/or its environs is a relevant market of banking competition, it may nonetheless be true that CNB may not prove to be a potential competitor with respect to that market. It, therefore, follows that whether the banking market in northeast Connecticut is a relevant banking market, is a question entirely separate from whether FNH and/or CNB should be considered potential competitors in that market, and whether the elimination of one of those competitors lessens either the possibility of deconcentration in that market or, under the "wings theory," affects present competition in that market. Since the majority professes to leave issues of potential competition to the District Court on remand, it should not preclude a finding that this merger will affect banking competition in areas of the State other than Bridgeport or New Haven. The possibility of finding many banking markets in Connecticut is an entirely separate matter from finding one banking market in the State under a theory of statewide linkage of oligopolies. The latter assumes that a section of the country need not be a banking market; the former does not. I agree that the case should be remanded. As I understand the task of the District Court, once it has decided what the relevant geographic markets are, the case is to be analyzed in terms of the "wings theory" of potential competition enunciated in United States v. Falstaff Brewing Corp., 410 U.S. 526 (1973), and the deconcentration theory now accepted by this Court in Marine Bancorporation. As to these matters, I adhere to my views as stated in Marine Bancorporation. 676 OCTOBER TERM, 1973 Per Curiam 418 U.S. SECRETARY OF THE NAVY v. AVRECH APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 72-1713. Argued February 20, 1974---Decided July 8, 1974 This Court will not decide whether the District Court had jurisdiction of an action challenging a court-martial conviction under Art. 80 of the Uniform Code of Military Justice of an attempt to commit an offense under Art. 134, on the ground, inter alia, that Art. 134 is unconstitutionally vague, since assuming, arguendo, that the District Court did have jurisdiction, the decision in Parker v. Levy, 417 U. S. 733, requires reversal of the Court of Appeals' decision on the merits reversing the District Court's denial of relief and holding that Art. 134 is unconstitutionally vague. 155 U.S. App. D. C. 352, 477 F. 2d 1237, reversed. Solicitor General Bork argued the cause for appellant. With him on the brief were Assistant Attorney General Petersen, Deputy Solicitor General Friedman, Allan A. Tuttle, and Jerome M. Feit. Dorian Bowman argued the cause for appellee. With him on the brief was David Rein.• PER CumAM. Appellee Mark Avrech was convicted by a special court-martial on charges of having violated Art. 80 of the Uniform Code of Military Justice, 10 U. S. C. § 880. The specification under Art. 80, which punishes attempts to commit offenses otherwise punishable under the UCMJ, charged an attempt to commit an offense under the first and second clauses of Art. 134, 10 U. S. C. § 934, namely, an attempt to publish a statement dis- *Marvin M. Karpatkin and Thomas M. Comerford filed a brief for the Association of the Bar of the City of New York as amicus curiae urging affirmance. SECRETARY OF THE NAVY v. A VRECH 677 676 Per Curiam loyal to the United States to members of the Armed Forces "with design to promote disloyalty and disaffection among the troops." Upon conviction, appellee was sentenced to reduction in rank to the lowest enlisted grade, forfeiture of three months' pay, and confinement at hard labor for one month. The commanding officer suspended the confinement, but the remainder of the sentence was sustained by the Staff Judge Advocate and the Judge Advocate General of the Navy. Appellee was subsequently given a bad-conduct discharge after an unrelated second courtmartial conviction. In December 1970, appellee brought this action in the United States District Court for the District of Columbia, asserting jurisdiction under 5 U. S. C. §§ 701-706, 28 U. S. C. § 1331, and 28 U. S. C. § 1361. He claimed that Art. 134 was unconstitutionally vague and overbroad on its face and as applied, that his statement was protected speech, and that he was convicted without sufficient evidence of criminal intent. He sought an order declaring his Art. 80 conviction invalid and requiring the Secretary of the Navy to expunge any record of his conviction and to restore all pay and benefits lost because of the conviction. After the District Court denied relief, the Court of Appeals reversed, holding that Art. 134 is unconstitutionally vague. 155 U. S. App. D. C. 352, 477 F. 2d 1237 (1973). We noted probable jurisdiction. 414 U.S. 816 (1973). Following oral argument on the merits, we directed counsel to file supplemental briefs on the issues of the jurisdiction of the District Court and the exhaustion of remedies. Without the benefit of further oral argument, we are unwilling to decide the difficult jurisdictional issue which the parties have briefed. Assuming, arguendo, that the District Court had jurisdiction under the circumstances of this case to review the decision of the court-martial, our 678 OCTOBER TERM, 1973 DouoLAs, J., dissenting 418 U.S. decision in Parker v. Levy, 417 U. S. 733 (1974), would require reversal of the Court of Appeals' decision on the merits of appellee's constitutional challenge to Art. 134. We believe that even the most diligent and zealous advocate could find his ardor somewhat dampened in arguing a jurisdictional issue where the decision on the merits is thus foreordained. We accordingly leave to a future case the resolution of the jurisdictional issue, and reverse the judgment of the Court of Appeals on the authority of Parker v. Levy, supra. See United States v. Augenblick, 393 U.S. 348 (1969); Schneckloth v. Bustamante, 412 U. S. 218, 249 (1973). MR. JusTICE STEWART, concurring in the judgment. I indicated my view in Parker v. Levy, 417 U. S. 733, 773, that Art. 134 of the Uniform Code of Military Justice, 10 U. S. C. § 934, is unconstitutionally vague. However, my view did not prevail in Parker, where the Court upheld the general articles against constitutional attack. Given that result, which controls the merits of the appellee's substantive claims here, I agree that it would be inappropriate to require further argument of the jurisdictional issues in this case. Consequently, I am content to leave those issues for another day, and concur in the judgment of the Court. MR. JusTrCE DOUGLAS, dissenting. Appellee was convicted of an attempt to publish a statement disloyal to the United States to members of the Armed Forces "with design to promote disloyalty and disaffection among the troops." Article 80 of the Uniform Code of Military Justice, 10 U. S. C. § 880, covers the attempt; and Art. 134, 10 U. S. C. § 934, covers the substantive offense. SECRETARY OF THE NAVY v. AVRECH 679 676 DouGLAS, J., dissenting Appellee was on active duty in Vietnam in a combat zone and like most soldiers on night duty had a lot of time on his hands. He typed the following statement: "It seems to me that the South Vietnamese people could do a little for the defense of their country. Why should we go out and fight their battles while they sit home and complain about communist aggression. What are we, cannon fodder or human beings? . . . The United States has no business over here. This is a conflict between two different politically minded groups. Not a direct attack on the United States. . . . We have peace talks with North Vietnam and the V. C. That's just fine and dandy except how many men died in Vietnam the week they argued over the shape of the table? . . . Do we dare express our feelings and opinions with the threat of court-martial perpetually hanging over our heads? Are your opinions worth risking a court-martial? We must strive for peace and if not peace then a complete U. S. withdrawal. We've been sitting ducks for too long .... " His plan was to have the mimeograph operator make copies which he could distribute. But the operator instead turned it over to a superior officer and a courtmartial followed. Appellee, a private first class, was reduced to the lowest enlisted grade, deprived of three months' pay, and confined for one month to hard labor. The commanding officer suspended the confinement, and the remainder of the sentence was sustained on review. This suit, asserting federal rights, was brought on the ground, among other things, that he was punished for protected speech. I think that claim has merit; and I would affirm the Court of Appeals. 680 OCTOBER TERM, 1973 DouGLAS, J., dissenting 418 U.S. Soldiers, lounging around, speak carefully of officers who are within earshot. But in World War I we were free to lambast General "Black Jack" Pershing who was distant, remote, and mythical. We also groused about the bankers' war, the munitions makers' war in which we had volunteered. What we said would have offended our military superiors. But since we could write our Congressmen or Senators about it, we saw no reason why we could not talk it out among ourselves. Talk is, of course, incitement; but not all incitement leads to action. What appellee in this case wrote out with the purpose of showing to the marines in his unit, might, if released, have created only revulsion. Or it might have produced a strong reaction. Conceivably more might have shared his views. But he was not setting up a rendezvous for all who wanted to go AWOL or laying a dark plot against his superior officers. He was attempting to speak with his comrades in arms about the oppressive nature of the war they were fighting. His attempt, if successful, might at best have resulted in letters to his family or Congressman or Senators who might have read what he said to local people or have published the letters in newspapers or made them the subject of debate in legislative halls. Secrecy and suppression of views which the Court today sanctions increases rather than repels the dangers of the world in which we live. I think full dedication to the spirit of the First Amendment is the real solvent of the dangers and tensions of the day. That philosophy may be hostile to many military minds. But it is time the Nation made clear that the military is not a system apart but lives under a Constitution that allows discussion of the great issues of the day, not merely the trivial ones---subject to limitations as to time, place, or occasion but never as to control. SECRETARY OF THE NAVY v. AVRECH 681 676 MARSHALL, J., dissenting The steps we take in Parker v. Levy, 417 U. S. 733, and in this case are backward steps measured by the standards of an open society.* I dissent from a reversal of this judgment. MR. JusTICE MARSHALL, with whom MR. JusTICE BRENNAN joins, dissenting. The Court's decision in Parker v. Levy, 417 U. S. 733 (1974), establishes that the Court of Appeals erred in overturning appellee's court-martial conviction on the basis of the unconstitutional vagueness of Art. 134. In these circumstances, I agree that this case does not present an appropriate vehicle for this Court's consideration of the substantial jurisdictional issues presented. Appellee also claimed, however, that Arts. 80 and 134, a.s applied to his case, infringed his First Amendment rights, claims rejected by the District Court but never *J. Robert Oppenheimer, cruelly cast into the outer darkness by the Atomic Energy Commission in its notorious "witch hunt," said on Edward R. Murrow's TV show "See It Now" in January 1955: "The trouble with secrecy is that it denies to the government itself the wisdom and the resources of the whole community, of the whole country, and the only way you can do this is to let almost anyone say what he thinks-to try to give the best synopses, the best popularizations, the best mediations of technical things that you can, and to let men deny what they think is fals~argue what they think is false, you have to have a free and uncorrupted communication. "And this is-this is so the heart of living in a complicated technological world-it is so the heart of freedom that that is why we are all the time saying, 'Does this really have to be secret?' 'Couldn't you say more about that?' 'Are we really acting in a wise way?' Not because we enjoy chattering-not because we are not aware of the dangers of the world we live in, but because these dangers cannot be met in any other way. "The fact is, our government cannot do without us--all of us." C. Curtis, The Oppenheimer Case, The Trial of a Security System 181 (1955). 682 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 U.S. passed upon by the Court of Appeals because of that court's holding as to the vagueness of Art. 134. See 155 U.S. App. D. C. 352,354,477 F. 2d 1237, 1239 (1973). I think it inappropriate for this Court to pass on these claims without the benefit of the Court of Appeals' consideration in the first instance. I would therefore vacate the judgment of the Court of Appeals and remand for reconsideration of the jurisdictional questions and the merits in light of Parker v. Levy. UNITED STATES v. NIXON 683 Syllabus UNITED STATES v. NIXON, PRESIDENT OF THE UNITED STATES, ET AL. CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 73-1766. Argued July 8, 1974-Decided July 24, 1974•:. Following indictment alleging violation of federal statutes by certain staff members of the White House and political supporters of the President, the Special Prosecutor filed a motion under Fed. Rule Crim. Proc. 17 (c) for a subpoena duces tecum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of Rule 17 ( c) had been satisfied. The court thereafter issued an order for an in camera examination of the subpoenaed material, having rejected the President's contentions (a) that the dispute between him and the Special Prosecutor was nonjusticiable as an "intra-executive" conflict and (b) that the judiciary lacked authority to review the President's assertion of executive privilege. The court stayed its order pending appellate review, which the President then sought in the Court of Appeals. The Special Prosecutor then filed in this Court a petition for a writ of certiorari before judgment (No. 73-1766) and the President filed a cross-petition for such a writ challenging the grand-jury action (No. 73-1834). The Court granted both petitions. Held: 1. The District Court's order was appealable as a "final" order under 28 U. S. C. § 1291, was therefore properly "in" the Court of Appeals, 28 U. S. C. § 1254, when the petition for certiorari before judgment was filed in this Court, and is now properly before this Court for review. Although such an order is normally not final and subject to appeal, an exception is made in a "limited class of ~ogether with No. 73-1834, Ni:ton, President of the United States v. United States, also on certiorari before judgment to the same court. 684 OCTOBER TERM, 1973 Syllabus 418 U.S. cases where denial of immediate review would render impossible any review whatsoever of an individual's claims," United States v. Ryan, 402 U. S. 530, 53;3_ Such an exception is proper in the unique circumstances of this case where it would be inappropriate to subject the President to the procedure of securing review by resisting the order and inappropriate to require that the District Court proceed by a traditional contempt citation in order to provide appellate review. Pp. 690-692. 2. The dispute between the Special Prosecutor and the President presents a .i usticiable controversy. Pp. 692-697. (a) The mere assertion of an "intra-branch dispute," without more, does not defeat federal jurisdiction. United States v. ICC, 337 U. S. 426. P. 693. (b) The Attorney General by regulation has conferred upon the Special Prosecutor unique tenure and authority to represent the United States and has given the Special Prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. While the regulation remains in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260. Pp. 694-696. (c) The action of the Special Prosecutor within the scope of his express authority seeking specified evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the President's assertion of privilege in opposition thereto, present issues "of a type which are traditionally justiciable," United States v. ICC, supra, at 430, and the fact that both litigants are officers of the Executive Branch is not a bar to justiciability. Pp. 696-697. 3. From this Court's examination of the material submitted by the Special Proserutor in support of his motion for the subpoena, much of which is under seal, it is clear that the District Court's denial of the motion to quash comported with Rule 17 (c) and that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. Pp. 697-702. 4. Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e.g., Marbury v. Madi.son, 1 Cranch 137, 177; Baker v. Carr, 369 U. S. 186, 211. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of UNITED STATES v. NIXON 685 683 Syllabus Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Pp. 703-707. 5. Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function, United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice. Pp. 707-713. 6. On the basis of this Court's examination of the record, it cannot be concluded that the District Court erred in ordering in camera examination of the subpoenaed material, which shall now forthwith be transmitted to the District Court. Pp. 713-714. 7. Since a President's communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires that Presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice, and the District Court has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or inadmissible in the criminal prosecution be accorded the high degree of respect due a President and that such material be returned under seal to its lawful custodian. Until released to the Special Prosecutor no in camera material is to be released to anyone. Pp. 714-716. No. 73-1766, 377 F. Supp. 1326, affirmed; No. 73-1834, certiorari dismissed as improvidently granted. BtrRGER, C. J., delivered the opinion of the Court, in which all Members joined except REHNQUIST, J., who took no part in the consideration or decision of the cases. Leon Jaworski and Philip A. Lacovara argued the cause and filed briefs for the United States in both cases. James D. St. Clair argued the cause for the President 686 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. in both cases. With him on the briefs were Charles Alan Wright, Leonard Garment, Michael A. Sterlacci, Jerome J. Murphy, Loren A. Smith, James R. Prochnow, Theodore J. Garrish, James J. Tansey, and Larry G. Gutterridge. William Snow Frates, Andrew C. Hall, Spencer H. Boyer, and Henry H. Jones filed a brief for respondent Ehrlichman in No. 73-1766. John M. Bray filed a brief for respondent Strachan in No. 73--1766.t MR. CHIEF JusTICE BURGER delivered the opinion of the Court. This litigation presents for review the denial of a motion, filed in the District Court on behalf of the President of the United States, in the case of United States v. Mitchell (D. C. Crim. No. 74-110), to quash a third-party subpoena duces tecum issued by the United States District Court for the District of Columbia, pursuant to Fed. Rule Crim. Proc. 17 (c). The subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. The court rejected the President's claims of absolute executive privilege, of lack of juri1::nt of a metropolitan area plan which, upon implementation, would leave "no school, grade or classroom , .. substantially disproportionate to the overall pupil racial composition" of the metropolitan area as a whole. The clear import of Swann v. Board uf Education, 402 U. S. 1, is that desegregation, in the sense of dismantling a dual school system, does not require any particular racial balance. Pp. 739- 741. MILLIKEN v. BRADLEY 719 717 Syllabus (b) While boundary lines may be bridged in circumstances where there has been a constitutional violation calling for interdistrict relief, school district lines may not be casually ignored or treated as a mere administrative convenience; substantial local control of public education in this country is a deeply rooted tradition. Pp. 741-742. ( c) The interdistrict remedy could extensively disrupt and alter the structure of public education in Michigan, since that remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate governmental units into a vast new super school district, and, since-entirely apart from the logistical problems attending large-scale transportation of students-the consolidation would generate other problems in the administration, financing, and operation of this new school system. Pp. 742-743. (d) From the scope of the interdistrict plan itself, absent a complete restructuring of the Michigan school district laws, the District Court would become, first, a de facto "legislative authority" to resolve the complex operational problems involved and thereafter a "school superintendent" for the entire area, a task which few, if any, judges are qualified to perform and one which would deprive the people of local control of schools through elected school boards. Pp. 743-744. (e) Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must be first shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district; i. e., specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Pp. 744-745. (f) With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the District Court transcended the original theory of the case as framed by the pleadings, and mandated a metropolitan area remedy, the approval of which would impose on the outlying districts, not shown to have committed any constitutional violation, a standard not previously hinted at in any holding of this Court. P. 745. (g) Assuming, arguendo, that the State was derivatively responsible for Detroit's segregated school conditions, it does not follow 720 OCTOBER TERM, 1973 Syllabus 418 U.S. that an interdistrict remedy is constitutionally justified or required, since there has been virtually no showing that either the State or any of the 85 outlying districts engaged in any activity that had a cross-district effect. Pp. 748-749. (h) An isolated instance of a possible segregative effect as between two of the school districts involved would not justify the broad metropolitanwide remedy contemplated, particularly since that remedy embraced 52 districts having no responsibility for the arrangement and potentially involved 503,000 pupils in addition to Detroit's 276,000 pupils. Pp. 749-750. 484 F. 2d 215, reversed and remanded. BURGER, C. J., delivered the opinion of the Court, in which STEWART, BLACKMUN, PowELL, and REHNQUIST, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 753. DOUGLAS, J., filed a dissenting opinion, post, p. 757. WHITE, J., filed a dissenting opinion, in which DouGLAs, BRENNAN, and MARSHALL, JJ., joined, post, p. 762. MARSHALL, J., filed a dissenting opinion, in which DouGLAS, BRENNAN, and WHITE, JJ., joined, post, p. 781. Frank J. Kelley, Attorney General of Michigan, argued the cause for petitioners in No. 73-434. With him on the brief were Robert A. Derengoski, Solicitor General, and Eugene Krasicky, Gerald F. Young, George L. M cCargar, and Thomas F. Schimpf, Assistant Attorneys General. William M. Sa;cton argued the cause for petitioners in Nos. 73-435 and 73-436. With him on the brief in No. 73-435 were John B. Weaver, Robert M. Vercruysse, and Xhafer Orhan. Douglas H. West filed a brief for petitioner in No. 73-436. J. Harold Flannery and Nathaniel R. Jones argued the cause for respondents in all cases. With them on the brief for respondents Bradley et al. were Jack Greenberg, Norman Chachkin, and Louis R. Lucas. George T. Roumell, Jr., and C. Nicholas Revelos filed a brief for respondents Board of Education for the School District of the city of Detroit et al. John Bruff and William Ross filed a brief for respondent Professional Personnel of Van MILLIKEN v. BRADLEY 721 717 Opinion of the Court Dyke. Robert J. Lord filed a brief for respondents Green et al. Solicitor General Bork argued the cause for the United States as amicus curiae urging reversal. With him on the brief was Assistant Attorney General Pottinger.t MR. CHIEF JusTICE BuRGER delivered the opinion of the Court. We granted certiorari in these consolidated cases to determine whether a federal court may impose a multidistrict, areawide remedy to a single-district de jure segregation problem absent any finding that the other included school districts have failed to operate unitary school systems within their districts, absent any claim or finding that the boundary lines of any affected school district were established with the purpose of fostering racial segregation in public schools, absent any finding that the included districts committed acts which effected segregation within the other districts, and absent a tBriefs of amici curiae urging reversal were filed by Theodore L. Sendak, Attorney General, Donald P. Bogard, Deputy Attorney General, and William F. Harvey for the State of Indiana; by Lewis C. Bose and William M. Evans for the Metropolitan School District of Lawrence Township, Indiana, et al.; by Richard D. Wagner and Richard L. Brown for the town of Speedway, Indiana, et aL; and by Harold H. Fuhrman for the National Suburban League, Ltd. Briefs of amici curiae urging affirmance were filed by Leonard P. Strickman for the city of Boston, Massachusetts; by Alexander A. Goldfarb for the city of Hartford, Connecticut; by Sanford Jay Rosen for the Mexican American Legal Defense and Educational Fund; and by Inter-Faith Centers for Racial Justice, Inc. Briefs of amici curiae were filed by Charles F. Clippert, Charles E. Keller, Thomas H. Schwarze, John F. Shantz, Raymond McPeters, Walter J. Guth, Jr., Raymond G. Glime, Tony Ferris, and Perry Christy for Bloomfield Hills School District et al.; by Stephen J. PoUak, Richard M. Sharp, and David Rubin for the National Education Assn.; and by David I. Caplan for the Jewish Rights Council. 722 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. meaningful opportunity for the included neighboring school districts to present evidence or be heard on the propriety of a multidistrict remedy or on the question of constitutional violations by those neighboring districts.1 I The action was commenced in August 1970 by the respondents, the Detroit Branch of the National Association for the Advancement of Colored People 2 and individual parents and students, on behalf of a class later defined by order of the United States District Court for the Eastern District of Michigan, dated February 16, 1971, to include "all school children in the City of Detroit, Michigan, and all Detroit resident parents who have children of school age." The named defendants in the District Court included the Governor of Michigan, the Attorney General, the State Board of Education, the State Superintendent of Public Instruction, the Board of Education of the city of Detroit, its members, and the city's former superintendent of schools. The State of Michigan as such is not a party to this litigation and references to the State must be read- as references to the public officials, state and local, through whom the State is alleged to have acted. In their complaint respondents attacked the constitutionality of a statute of the State of Michigan known as Act 48 of the 1970 Legislature on the ground that it put the State of Michigan in the position of unconstitutionally interfering with the execution and operation of a voluntary plan of partial high school desegregation, known as the April 7, 1970, Plan, which had been adopted by the Detroit Board of Education to be effective beginning 1 484 F, 2d 215 (CA6), cert granted, 414 U.S. 1038 (1973), 2 The standing of the NAACP as a proper party plaintiff was not contested in the trial court and is not an issue in this case. MILLIKEN v. BRADLEY 723 717 Opinion of the Court with the fall 1970 semester. The complaint also alleged that the Detroit Public School System was and is segregated on the basis of race as a result of the official policies and actions of the defendants and their predecessors in office, and called for the implementation of a plan that would eliminate "the racial identity of every school in the [Detroit] system and ... maintain now and hereafter a unitary, nonracial school system." Initially the matter was tried on respondents' motion for a preliminary injunction to restrain the enforcement of Act 48 so as to permit the April 7 Plan to be implemented. On that issue, the District Court ruled that respondents were not entitled to a preliminary injunction since at that sta.ge there was no proof that Detroit had a dual segregated school system. On appeal, the Court of Appeals found that the "implementation of the April 7 plan was [unconstitutionally] th warted by State action in the form of the Act of the Legislature of Michigan," 433 F. 2d 897,902 (CA6 1970), and that such action could not be interposed to delay, obstruct, or nullify steps lawfully taken for the purpose of protecting rights guaranteed by the Fourteenth Amendment. The case was remanded to the District Court for an expedited trial on the merits. On remand, the respondents moved for immediate implementation of the April 7 Plan in order to remedy the deprivation of the claimed constitutional rights. In response, the School Board suggested two other plans, along with the April 7 Plan, and urged that top priority be assigned to the so-called "Magnet Plan" which was "designed to attract children to a school because of its superior curriculum." The District Court approved the Board's Magnet Plan, and respondents again appealed to the Court of Appeals, moving for summary reversal. The Court of Appeals refused to pass on the merits of the Magnet Plan and ruled that the District Court had 724 OCTOBER TERM, 1973 Opinion of the Court 418U. S. not abused its discretion in refusing to adopt the April 7 Plan without an evidentiary hearing. The case was again remanded with instructions to proceed immediately to a trial on the merits of respondents' substantive allegations concerning the Detroit school system. 438 F. 2d 945 (CA6 1971). The trial of the issue of segregation in the Detroit school system began on April 6, 1971, and continued through July 22, 1971, consuming some 41 trial days. On September 27, 1971, the District Court issued its findings and conclusions on the issue of segregation, finding that "Governmental actions and inaction at all levels, federal, state and local, have combined, with those of private organizations, such as loaning institutions and real estate associations and brokerage firms, to establish and to maintain the pattern of residential segregation throughout the Detroit metropoLtan area." 338 F. Supp. 582, 587 (ED Mich. 1971). While still addressing a Detroit-only violation, the District Court reasoned: "While it would be unfair to charge the present defendants with what other governmental officers or agencies have done, it can be said that the actions or the failure to act by the responsible school authorities, both city and state, were linked to that of these other governmental units. When we speak of governmental action we should not view the different agencies as a collection of unrelated units. Perhaps the most that can be said is that all of them, including the school authorities, are, in part, responsible for the segregated condition which exists. And we note that just as there is an interaction between residential patterns and the racial composition of the schools, so there is a corresponding effect on the residential pattern by the racial composition of the schools." Ibid. MILLIKEN v. BRADLEY 725 717 Opinion of the Court The District Court found that the Detroit Board of Education created and maintained optional attendance zones 3 within Detroit neighborhoods undergoing racial transition and between high school attendance areas of opposite predominant racial compositions. These zones, the court found, had the "natural, probable, foreseeable and actual effect" of allowing white pupils to escape identifiably ~egro schools. Ibid. Similarly, the District Court found that Detroit school attendance zones had been drawn along north-south boundary lines despite the Detroit Board's awareness that drawing boundary lines in an east-west direction would result in significantly greater desegregation. Again, the District Court concluded, the natural and actual effect of these acts was the creation and perpetuation of school segregation within Detroit. The District Court found that in the operation of its school transportation program, which was designed to relieve overcrowding, the Detroit Board had admittedly bused Negro Detroit pupils to predominantly Negro schools which were beyond or away from closer white schools with available space! This practice was found to have continued in recent years despite the Detroit Board's avowed policy, adopted in 1967, of utilizing transportation to increase desegregation: "With one exception (necessitated by the burning of a white school), defendant Board has never bused 3 Optional zones, sometimes referred to as dual zones or dual overlapping zones, provide pupils living within certain areas a choice of attendance at one of two high schools. 4 The Court of Appeals found record evidence that in at least one instance during the period 1957-1958, Detroit served a suburban school district by contracting with it to educate its Negro high school students by transporting them away from nearby suburban white high schools, and past Detroit high schools which were predominantly white, to all-Negro or predominantly Negro Detroit schools. 484 F. 2d, at 231. 726 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. white children to predominantly black schools. The Board has not bused white pupils to black schools despite the enormous amount of space available in inner-city schools. There were 22,961 vacant seats in schools 90% or more black." Id., at 588. With respect to the Detroit Board of Education's practices in school construction, the District Court found that Detroit school construction generally tended to have a segregative effect with the great majority of schools being built in either overwhelmingly all-Negro or all-white neighborhoods so that the new schools opened as predominantly one-race schools. Thus, of the 14 schools which opened for use in 1970-1971, 11 opened over 90% Negro and one opened less than 10% Negro. The District Court also found that the State of Michigan had committed several constitutional violations with respect to the exercise of its general responsibility for, and supervision of, public education.5 The State, for example, was found to have failed, until the 1971 Session of the Michigan Legislature, to provide authorization or 5 School districts in the State of Michigan are instrumentalities of the State and subordinate to its State Board of Education and legislature. The Constitution of the State of Michigan, Art. 8, § 2, provides in relevant part: "The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law." Similarly, the Michigan Supreme Court has stated: "The school district is a State agency. Moreover, it is of legislative creation ... . " Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 644, 92 N. W. 289, 290 (1902) ; "'Education in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature ... .'" Attorney General ex rel. Zacharia.s v. Detroit Board of Education, 154 Mich. 584, 590, 118 N. W. 606, 609 ( 1908). MILLIKEN v. BRADLEY 727 717 Opinion of the Court funds for the transportation of pupils within Detroit regardless of their poverty or distance from the school to which they were assigned; during this same period the State provided many neighboring, mostly white, suburban districts the full range of state-supported transportation. The District Court found that the State, through Act 48, acted to "impede, delay and minimize racial integration in Detroit schools." The first sentence of § 12 of Act 48 was designed to delay the April 7, 1970, desegregation plan originally adopted by the Detroit Board. The remainder of § 12 sought to prescribe for each school in the eight districts criteria of "free choice" and "neighborhood schools," which, the District Court found, "had as their purpose and effect the maintenance of segregation." 338 F. Supp., at 589.6 The District Court also held that the acts of the Detroit Board of Education, as a subordinate entity of the State, were attributable to the State of Michigan, thus creating a vicarious liability on the part of the State. Under Michigan law, Mich. Comp. Laws § 388.851 (1970), for example, school building construction plans had to be approved by the State Board of Education, and, prior to 1962, the State Board had specific statutory authority to supervise schoolsite selection. The proofs concerning the effect of Detroit's school construction program were, 6 "Sec. 12. The implementation of any attendance provisions for the 1970-71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school district boards established under the provisions of this amendatory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity .... " Act No. 48, § 12, Mich. Pub. Acts of 1970; Mich. Comp. Laws § 388.182 (1970) (emphasis added). 728 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. therefore, found to be largely applicable to show state responsibility for the segregative results.7 Turning to the question of an appropriate remedy for these several constitutional violations, the District Court deferred a pending motion 8 by intervening parent de- 7 The District Court briefly alluded to the possibility that the State, along with private persons, had caused, in part, the housing patterns of the Detroit metropolitan area which, in turn, produced the predominantly white and predominantly Negro neighborhoods that characterize Detroit: "It is no answer to say that restricted practices grew gradually (as the black population in the area increased between 1920 and 1970), or that since 1948 racial restrictions on the ownership of real property have been removed. The policies pursued by both government and private persons and agencies have a continuing and present effect upon the complexion of the community-as we know, the choice of a residence is a relatively infrequent affair. For many years FHA and VA openly advised and advocated the maintenance of 'harmonious' neighborhoods, i. e., racially and economically harmonious. The conditions created continue." 338 F. Supp. 582, 587 (ED Mich. 1971). Thus, the District Court concluded: "The affirmative obligation of the defendant Board has been and is to adopt and implement pupil assignment practices and policies that compensate for and avoid incorporation into the school system the effects of residential racial segregation." Id., at 593. The Court of Appeals, however, expressly noted that: "In affirming the District Judge's findings of constitutional violations by the Detroit Board of Education and by the State defendants resulting in segregated schools in Detroit, we have not relied at all upon testimony pertaining to segregated housing except as school construction programs helped cause or maintain such segregation." 484 F. 2d, at 242. Accordingly, in its present posture, the case does not present any question concerning possible state housing violations. 8 On March 22, 1971, a group of Detroit residents, who were parents of children enrolled in the Detroit public schools, were permitted to intervene as parties defendant. On June 24, 1971, the District Judge alluded to the "possibility" of a metropolitan school system stating: " [A]s I have said to several witnesses in this case: MILLIKEN v. BRADLEY 729 717 Opinion of the Court fendants to join as additional parties defendant the 85 outlying school districts in the three-county Detroit metropolitan area on the ground that effective relief could not be achieved without their presence.9 The District Court concluded that this motion to join was "premature," since it "has to do with relief" and no reasonably specific desegregation plan was before the court. 338 F. Supp., at 595. Accordingly, the District Court proceeded to order the Detroit Board of Education to submit desegregation plans limited to the segregation problems found to be existing within the city of Detroit. At the same time, however, the state defendants were directed to submit desegregation plans encompassing the three-county metropolita. n area 10 despite the fact that the 85 outlying school 'How do you desegregate a black city, or a black school system.'" Petitioners' Appendix 243a (hereinafter Pet. App.). Subsequently, on July 16, 1971, various parents filed a motion to require joinder of all of the 85 outlying independent school districts within the tricounty area. 9 The respondents, as plaintiffs below, opposed the motion to join the additional school districts, arguing that the presence of the state defendants was sufficient and all that was required, even if, in shaping a remedy, the affairs of these other districts was to be affected. 338 F. Supp., at 595. 10 At the time of the 1970 census, the population of Michigan was 8,875,083, almost half of which, 4,199,931, resided in the tri-county area of Wayne, Oakland, and Macomb. Oakland and Macomb Counties abut Wayne County to the north, and Oakland County abuts Macomb County to the west. These counties cover 1,952 square miles, Michigan Statistical Abstract (9th ed. 1972), and the area is approximately the size of the State of Delaware (2,057 square miles), more than half again the size of the State of Rhode Island (1,214 square miles) and almost 30 times the size of the District of Columbia (67 square miles), Statistical Abstract of the United States (93d ed. 1972). The populations of Wayne, Oakland, and Macomb Counties were 2,666,751; 907,871; and 625,309, respectively, in 1970. Detroit, the State's largest city, is located in Wayne County. In the 1970-1971 school year, there were 2,157,449 children enrolled in school districts in Michigan. There are 86 independent, 730 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. districts of these three counties were not parties to the action and despite the fact that there had been no claim that these outlying districts had committed constitutional violations.11 An effort to appeal these orders to the Court of Appeals was dismissed on the ground that the orders were not appealable. 468 F. 2d 902 ( CA6), cert. denied, 409 U. S. 844 (1972). The sequence of the ensuing actions and orders of the District Court are significant factors and will therefore be catalogued in some detail. Following the District Court's abrupt announcement that it planned to consider the implementation of a multidistrict, metropolitan area remedy to the segregation problems identified within the city of Detroit, the District Court was again requested to grant the outlying school districts intervention as of right on the ground that the District Court's new request for multidistrict plans "may, as a practical matter, impair or impede [the intervenors'] ability to protect" the welfare of their students. The District Court took the motions to intervene under advisement pending submission of the requested desegregation plans by Detroit and the state officials. On March 7, 1972, the District Court notified all parties and the petitioner school districts seeking intervention, that March 14, 1972, was the deadline for submission of recommendations for conditions of intervention and the legally distinct school districts within the tri-county area, having a total enrollment of approximately 1,000,000 children. In 1970, the Detroit Board of Education operated 319 schools with approximately 276,000 students. 11 In its formal opinion, subsequently announced, the District Court candidly recognized: "It should be noted that the court has taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segrega.- tion." 345 F. Supp. 914,920 (ED Mich. 1972). MILLIKEN v. BRADLEY 731 717 Opinion of the Court date of the commencement of hearings on Detroit-only desegregation plans. On the second day of the scheduled hearings, March 15, 1972, the District Court granted the motions of the intervenor school districts 12 subject, inter alia, to the following conditions: "1. No intervenor will be permitted to assert any claim or defense previously adjudicated by the court. "2. No intervenor shall reopen any question or issue which has previously been decided by the court. "7. New intervenors are granted intervention for two principal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety of considering a metropolitan plan; (b) To review any plan or plans for the desegregation of the so-called larger Detroit Metropolitan area, and submitting objections, modifications or alternatives to it or them, and in accordance with the requirements of the United States Constitution and the prior orders of this court." 1 Joint Appendix 206 (hereinafter App.). Upon granting the motion to intervene, on March 15, 1972, the District Court advised the petitioning intervenors that the court had previously set March 22, 1972, as the date for the filing of briefs on the legal propriety of a "metropolitan" plan of desegregation and, accordingly, that the intervening school districts would have one week to muster their legal arguments on the issue.13 12 According to the District Court, intervention was permitted under Fed. Rule Civ. Proc. 24 (a), "Intervention of Right," and also under Rule 24 ( b), "Permissive Intervention." 13 This rather abbreviated briefing schedule was maintained despite the fact that the District Court had deferred consideration of a motion made eight months earlier, to bring the suburban districts into the case. See text accompanying n. 8, supra. 732 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. Thereafter, and following the completion of hearings on the Detroit-only desegregation plans, the District Court issued the four rulings that were the principal issues in the Court of Appeals. (a) On March 24, 1972, two days after the intervenors' briefs were due, the District Court issued its ruling on the question of whether it could "consider relief in the form of a metropolitan plan, encompassing not only the City of Detroit, but the larger Detroit metropolitan area." It rejected the state defendants' arguments that no state action caused the segregation of the Detroit schools, and the intervening suburban districts' contention that interdistrict relief was inappropriate unless the suburban districts themselves had committed violations. The court concluded: "[I] t is proper for the court to consider metropolitan plans directed toward the desegregation of the Detroit public schools as an alternative to the present intra-city desegregation plans before it and, in the event that the court finds such intra-city plans inadequate to desegregate such schools, the court is of the opinion that it is required to consider a metropolitan remedy for desegregation." Pet. App. 51a. (b) On March 28, 1972, the District Court issued its findings and conclusions on the three Detroit-only plans submitted by the city Board and the respondents. It found that the best of the three plans "would make the Detroit school system more identifiably Black ... thereby increasing the flight of Whites from the city and the system." Id., at 55a. From this the court concluded that the plan "would not accomplish desegregation ... within the corporate geographical limits of the city." Id., at 56a. Accordingly, the District Court held that it "must look beyond the limits of the Detroit school MILLIKEN v. BRADLEY 733 717 Opinion of the Court district for a solution to the problem," and that "[s]chool district lines are simply matters of political convenience and may not be used to deny constitutional rights." Id., at 57a. (c) During the period from March 28 to April 14, 1972, the District Court conducted hearings on a metropolitan plan. Counsel for the petitioning intervenors was allowed to participate in these hearings, but he was ordered to confine his argument to "the size and expanse of the metropolitan plan" without addressing the intervenors' opposition to such a remedy or the claim that a finding of a constitutional violation by the intervenor districts was an essential predicate to any remedy involving them. Thereafter, on June 14, 1972, the District Court issued its ruling on the "desegregation area" and related findings and conclusions. The court acknowledged at the outset that it had "taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties [in the Detroit area], nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation." Nevertheless, the court designated 53 of the 85 suburban school districts plus Detroit as the "desegregation area" and appointed a panel to prepare and submit "an effective desegregation plan" for the Detroit schools that would encompass the entire desegregation area.14 The plan was to be based on 15 clusters, each containing part of the Detroit system and two or more suburban districts, 14 As of 19i0, the 53 school districts cutside the city of Detroit that werf' inrludcd in the court's "desegregation area" had a combined student population of approximately 503,000 students compared to Detroit's approximately 276,000 students. Nevertheless, the District Court directed that the intervening districts should be represented by only cne member on the desegregation panel while the Detroit Board of Education was granted three panel members. 345 F. Supp., at 917. 734 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. and was to "achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom [ would be] substantially disproportionate to the overall pupil racial composition." 345 F. Supp. 914,918 (ED Mich. 1972). (d) On July 11, 1972, and in accordance with a recommendation by the court-appointed desegregation panel, the District Court ordered the Detroit Board of Education to purchase or lease "at least" 295 school buses for the purpose of providing transportation under an interim plan to be developed for the 1972-1973 school year. The costs of this acquisition were to be borne by the state defendants. Pet. App. 106a-107a. On June 12, 1973, a divided Court of Appeals, sitting en bane, affirmed in part, vacated in part, and remanded for further proceedings. 484 F. 2d 215 (CA6).15 The Court of Appeals held, first, that the record supported the District Court's findings and conclusions on the constitutional violations committed by the Detroit Board, id., at 221-238, and by the state defendants, id., at 239-241.16 It stated that the acts of racial discrimina- 15 The District Court had certified most of the foregoing rulings for interlocutory review pursuant to 28 U. S. C. § 1292 (b) (1 App. 265- 266) and the case was initially decided on the merits by a panel of three judges. However, the panel's opinion and judgment were vacated when it was determined to rehear the case en bane, 484 F. 2d, at 218. 16 With respect to the State's violations, the Court of Appeals held: (1) that, since the city Board is an instrumentality of the State and subordinate to the State Board, the segregative actions of the Detroit Board "are the actions of an agency of the State," id., at 238; (2) that the state legislation rescinding Detroit's voluntary desegregation plan contributed to increasing segregation in the Detroit schools, ibid.; (3) that under state law prior to 1962 the State Board had authority over school construction plans and therefore had to be held responsible "for the segregative results," MILLIKEN v. BRADLEY 735 717 Opinion of the Court tion shown in the record are "causally related to the substantial amount of segregation found in the Detroit school system," id., at 241, and that "the District Court was therefore authorized and required to take effective measures to desegregate the Detroit Public School System." Id., at 242. The Court of Appeals also agreed with the District Court that "any less comprehensive a solution than a metropolitan area plan would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area." Id., at 245. The court went on to state that it could "not see how such segregation can be any less harmful to the minority students than if the same result were accomplished within one school district." Ibid. Accordingly, the Court of Appeals concluded that "the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan." Id., at 249. It reasoned that such a plan would be appropriate because of the State's violations, and could be implemented because of the State's authority to control local school districts. Without further elaboration, and without any discussion of the claims that no constitutional violation by the outlying districts had been ibid.; ( 4) that the '·State statntory scheme of support of transportation for school children directly discriminated against Detroit," id., at 240, by not providing transportation funds to Detroit on the ,;,ame basis as funds were provided to suburban districts, id., at 2:38; and (5) that the transportation of Negro students from one suburban district to a Negro school in Detroit must have had the "approval, tacit or express, of the State Board of Education," ibid. i36 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. shown and that no evidence on that point had been allowed, the Court of Appeals held: "[T]he State has committed de jure acts of segregation and ... the State controls the instrumentalities whose action is necessary to remedy the harmful effects of the State acts." Ibid. An interdistrict remedy was thus held to be "within the equity powers of the District Court." Id., at 250.11 The Court of Appeals expressed no views on the propriety of the District Court's composition of the metropolitan "desegregation area." It held that all suburban school districts that might be affected by any metropolitanwide remedy should, under Fed. Rule Civ. Proc. 19, be made parties to the case on remand and be given an opportunity to be heard with respect to the scope and implementation of such a remedy. 484 F. 2d, at 251-252. Under the terms of the remand, however, the District Court was not "required" to receive further evidence on the issue of segregation in the Detroit schools or on the propriety of a Detroit-only remedy, or on the question of whether the affected districts had committed any violation of the constitutional rights of Detroit pupils or others. Id., at 252. Finally, the Court of Appeals vacated the District Court's order directing the acquisition of school buses, subject to the right of the District Court to consider reimposing the order "at the appropriate time." Ibid. 17 The court sought to distinguish Bradley v. School Board of the City of Richmond, 462 F. 2d 1058 (CA4 1972), aff'd by an equally divided Court, 412 U.S. 92 (1973), on the grounds that the District Court in that case had ordered an actual consolidation of three school districts and that Virginia's Constitution and statutes, unlike Michigan's, gave the local boards exclusive power to operate the public schools. 484 F. 2d, at 251. MILLIKEN v. BRADLEY 737 717 Opinion of the Court II Ever since Brown v. Board of Education, 347 U. S. 483 ( 1954), judicial consideration of school desegregation cases has begun with the standard: "[I]n the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." Id., at 495. This has been reaffirmed time and again as the meaning of the Constitution and the controlling rule of law. The target of the Brown holding was clear and forthright: the elimination of state-mandated or deliberately maintained dual school systems with certain schools for Negro pupils and others for white pupils. This duality and racial segregation were held to violate the Constitution in the cases subsequent to 1954, including particularly Green v. County School Board of New Kent County, 391 U. S. 430 (1968); Raney v. Board of Education, 391 U. S. 443 (1968); Monroe v. BJard of Comm'rs, 391 U.S. 450 (1968); Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971); Wright v. Council of the City of Emporia, 407 U. S. 451 ( 1972); United States v. Scotland Neck Board of Education, 407 U. S. 484 (1972). The Swann case, of course, dealt "with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once." 402 U. S., at 6. In Brown v. Board of Education, 349 U. S. 294 (1955) (Brown II), the Court's first encounter with the problem of remedies in school desegregation cases, the Court noted: "In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Tra738 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. ditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." Id., at 300 (footnotes omitted). In further refining the remedial process, Swann held, the task is to correct, by a balancing of the individual and collective interests, "the condition that offends the Constitution." A federal remedial power may be exercised "only on the basis of a constitutional violation" and, "[a]s with any equity case, the nature of the violation determines the scope of the remedy." 402 U. S., at 16. Proceeding from these basic principles, we first note that in the District Court the complainants sought a remedy aimed at the condition alleged to off end the Constitution-the segregation within the Detroit City School District.18 The court acted on this theory of the case and in its initial ruling on the "Desegregation Area" stated: "The task before this court, therefore, is now, and ... has always been, how to desegregate the Detroit public schools." 345 F. Supp., at 921. Thereafter, however, the District Court abruptly rejected the proposed Detroit-only plans on the ground that "while [they] would provide a racial mix more in keeping with the Black-White proportions of the student population [they] would accentuate the racial identifiability of the 18 Although the list of issues presented for review in petitioners' briefs and petitions for writs of certiorari do not include arguments on the findings of segregative violations on the part of the Detroit defendants, two of the petitioners argue in brief that these findings constitute error. This Court's Rules 23 (1) (c) and 40 (1) (d) (2), at a minimum, limit our review of the Detroit violation findings to "plain error," and, under our decision last Term in Keyes v. School District No. 1, Denver, Colorado, 413 U. S. 189 (1973), the findingE appear to be correct. MILLIKEN v. BRADLEY 739 717 Opinion of the Court [Detroit] district as a Black school system, and would not accomplish desegregation." Pet. App. 56a. "[T] he racial composition of the student body is such," said the court, "that the plan's implementation would clearly make the enfae Detroit public school system racially identifiable" (id., at 54a), "leav[ing] many of its schools 75 to 90 per cent Black." Id., at 55a. Consequently, the court reasoned, it was imperative to "look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools ... " since "[s]chool district lines are simply matters of political convenience and may not be used to deny constitutional rights." Id., at 57a. Accordingly, the District Court proceeded to redefine the relevant area to include areas of predominantly white pupil population in order to ensure that "upon implementation, no school, grade or classroom [ would be J substantially disproportionate to the overall pupil racial composition" of the entire metropolitan area. While specifically acknowledging that the District Court's findings of a condition of segregation were limited to Detroit, the Court of Appeals approved the use of a metropolitan remedy largely on the grounds that it is "impossible to declare 'clearly erroneous' the District Judge's conclusion that any Detroit only segregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black." 484 F. 2d, at 249. Viewing the record as a whole, it seems clear that the District Court and the Court of Appeals shifted the pri740 OCTOBER TERM, 1973 Opinion of the Court 418 u. s. mary focus from a Detroit remedy to the metropolitan area only because of their conclusion that total desegregation of Detroit would not produce the racial balance which they perceived as desirable. Both courts proceeded on an assumption that the Detroit schools could not be truly desegregated-in their view of what constituted desegregation-unless the racial composition of the student body of each school substantially reflected the racial composition of the population of the metropolitan area as a whole. The metropolitan area was then defined as Detroit plus 53 of the outlying school districts. That this was the approach the District Court expressly and frankly employed is shown by the order which expressed the court's view of the constitutional standard: "Within the limitations of reasonable travel time and distance factors, pupil reassignments shall be effected within the clusters described in Exhibit P. M. 12 so as to achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom [ will be] substantially disproportionate to the overall pupil racial composition." 345 F. Supp., at 918 ( emphasis added). In Swann, which arose in the context of a single independent school district, the Court held: "If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse." 402 U. S., at 24. The clear import of this language from Swann is that desegregation, in the sense of dismantling a dual school system, does not require any particular racial balance in MILLIKEN v. BRADLEY 741 717 Opinion of the Court each "school, grade or classroom." 19 See Spencer v. Kugler, 404 U.S. 1027 (1972). Here the District Court's approach to what constituted "actual desegregation" raises the fundamental question, not presented in Swann, as to the circumstances in which a federal court may order desegregation relief that embraces more than a single school district. The court's analytical starting point was its conclusion that school district lines are no more than arbitrary lines on a map drawn "for political convenience." Boundary lines may be bridged where there has been a constitutional violation calling for interdistrict relief, but the notion that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to 19 Disparity in the racial composition of pupils within a single district may well constitute a "signal" to a district court at the outset, leading to inquiry into the causes accounting for a pronounced racial identifiability of schools within one school system. In Swann, for example, we were dealing with a large but single independent school system, and a unanimous Court noted: "Where the ... proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominantly of one race [the school authority has] the burden of showing that such school assignments are genuinely nondiscriminatory." 402 U. S., at 26. See also Keyes, supra, at 208. However, the use of significant racial imbalance in schools within an autonomous school district as a signal which operates simply to shift the burden of proof, is a very different matter from equating racial imbalance with a constitutional violation calling for a remedy. Keyes, supra, also involved a remedial order within a single autonomous school district. 742 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. quality of the educational process. See Wright v. Council of the City of Emporia, 407 U. S., at 469. Thus, in San Antonio School District v. Rodriguez, 411 U.S. 1, 50 (1973), we observed that local control over the educational process affords citizens an opportunity to participate in decisionmaking, permits the structuring of school programs to fit local needs, and encourages "experimentation, innovation, and a healthy competition for educational excellence." The Michigan educational structure involved in this case, in common with most States, provides for a large measure of local control,2° and a review of the scope and character of these local powers indicates the extent to which the interdistrict remedy approved by the two courts could disrupt and alter the structure of public edu- 20 Under the Michigan School Code of 1955, the local school district is an autonomous political body corporate, operating through a Board of Education popularly elected. Mich. Comp. Laws§§ 340.27, 340.55, 340.107, 340.148, 340.149, 340.188. As such, the day-today affairs of the school district are determined at the local level in accordance with the plenary power to acquire real and personal property, §§ 340.26, 340.77, 340.113, 340.165, 340.192, 340.352; to hire and contract with personnel, §§ 340.569, 340.574; to levy taxes for operations, § 340.563; to borrow against receipts, § 340.567; to determine the length of school terms, § 340.575; to control the admission of nonresident students, § 340.582; to determine courses of study, § 340.583; to provide a kindergarten program, § 340.584; to establish and operate Yocational schools, § 340.585; to offer adult education programs, § 340.586; t.o establish attendance areas, § 340.- 589; to arrange for transportation of nonresident students, § 340.- 591; to acquire transportation equipment, § 340.594; to receive gifts and bequests for educational purposes, § 340.605; to employ an attorney, § 340.609; to suspend or expel students, § 340.613; to make rules and regulations for the operation of schools, § 340.614; to cause to be levied authorized millage, § 340.643a; to acquire property by eminent domain, § 340.711 et seq.; and to approve and select textbooks, § 340.882. MILLIKEN v. BRADLEY 743 717 Opinion of the Court cation in Michigan. The metropolitan remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate units into a vast new super school district. Seen. 10, supra. Entirely apart from the logistical and other serious problems attending large-scale transportation of students, the consolidation would give rise to an array of other problems in financing and operating this new school Bystem. Some of the more obvious questions would be: What would be the status and authority of the present popularly elected school boards? Would the children of Detroit be within the jurisdiction and operating control of a school board elected by the parents and residents of other districts? What board or boards would levy taxes for school operations in these 54 districts constituting the consolidated metropolitan area? What provisions could be made for assuring substantial equality in tax levies among the 54 districts, if this were deemed requisite? What provisions would be made for financing? Would the validity of long-term bonds be jeopardized unless approved by all of the component districts as well as the State? What body would determine that portion of the curricula now left to the discretion of local school boards? Who would establish attendance zones, purchase school equipment, locate and construct new schools, and indeed attend to all the myriad day-to-day decisions that are necessary to school operations affecting potentially more than three-quarters of a million pupils? See n. 10, supra. It may be suggested that all of these vital operational problems are yet to be resolved by the District Court, and that this is the purpose of the Court of Appeals' proposed remand. But it is obvious from the scope of the interdistrict remedy itself that absent a complete restructuring of the laws of Michigan relating to school districts the District Court will become first, a de facto 744 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. "legislative authority" to resolve these complex questions, and then the "school superintendent" for the entire area. This is a task which few, if any, judges are qualified to perform and one which would deprive the people of control of schools through their elected representatives. Of course, no state law is above the Constitution. School district lines and the present laws with respect to local control, are not sacrosanct and if they conflict with the Fourteenth Amendment federal courts have a duty to prescribe appropriate remedies. See, e.g., Wright v. Council of the City of Emporia, 407 U. S. 451 ( 1972); United States v. Scotland Neck Board of Education, 407 U. S. 484 (1972) (state or local officials prevented from carving out a new school district from an existing district that was in process of dismantling a dual school system); cf. Haney v. County Board of Education of Sevier County, 429 F. 2d 364 (CA8 1970) (State contributed to separation of races by drawing of school district lines); United States v. Texas, 321 F. Supp. 1043 (ED Tex. 1970), aff'd, 44 7 F. 2d 441 ( CA5 1971 ) , cert. denied sub nom. Edgar v. United States, 404 U.S. 1016 (1972) (one or more school districts created and maintained for one race). But our prior holdings have been confined to violations and remedies within a single school district. We therefore turn to address, for the first time, the validity of a remedy mandating cross-district or interdistrict consolidation to remedy a condition of segregation found to exist in only one district. The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation. Swann, 402 U. S., at 16. Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must MILLIKEN v. BRADLEY 745 717 Opinion of the Court first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constituLonal wrong calling for an in terdistrict remedy. The record before us, voluminous as it is, contains evidence of de jure segregated conditions only in the Detroit schools; indeed, that was the theory on which the litigation was initially based and on which the District Court took evidence. See supra, at 725-726. With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the court went beyond the original theory of the case as framed by the pleadings and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and JI or any holding of this Court. In dissent, MR. JUSTICE WHITE and MR. JusTICE MARSHALL undertake to demonstrate that agencies having statewide authority participated in maintaining the dual school system found to exist in Detroit. They are apparently of the view that once such participation is 746 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. shown, the District Court should have a relatively free hand to reconstruct school districts outside of Detroit in fashioning relief. Our assumption, arguendo, see infra, at 748, that state agencies did participate in the maintenance of the Detroit system, should make it clear that it is not on this point that we part company.21 The difference between us arises instead from established doctrine laid down by our cases. Brown, supra; Green, supra; Swann, supra; Scotland Neck, supra; and Emporia, supra, each addressed the issue of constitutional wrong in terms of an established geographic and administrative school system populated by both Negro and white children. In such a context, terms such as "unitary" and "dual" systems, and "racially identifiable schools," have meaning, and the necessary federal authority to remedy the constitutional wrong is firmly established. But the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct. Disparate treatment of white and Negro students occurred within the Detroit school system, and not elsewhere, and on this record the remedy must be limited to that system. Swann, supra, at 16. The constitutional right of the Negro respondents residing in Detroit is to attend a unitary school system in that district. Unless petitioners drew the district lines in a discriminatory fashion, or arranged for white stu- 21 Since the Court has held that a resident of a school district has a fundamental right protected by the Federal Constitution to vote in a district election, it would seem incongruous to disparage the importance of the school district in a different context. Kramer v. Union Free School District No. 15, 395 U. S. 621, 626 (1969). While the district there involved was located in New York, none of the facts in our possession suggest that the relation of school districts to the State is significantly different in New York from that in Michigan. MILLIKEN v. BRADLEY 747 717 Opinion of the Court dents residing in the Detroit District to attend schools in Oakland and Macomb Counties, they were under no constitutional duty to make provisions for Negro students to do so. The view of the dissenters, that the existence of a dual system in Detroit can be made the basis for a decree requiring cross-district transportation of pupils, cannot be supported on the grounds that it represents merely the devising of a suitably flexible remedy for the violation of rights already established by our prior dec1s10ns. It can be supported only by drastic expansion of the constitutional right itself, an expansion without any support m either constitutional principle or precedent.22 22 The suggestion in the disst•nt of ]\fa .TusTICE MARSHALL that schools which have a majority of Negro students are not "desegregated," whatever the racial makeup of the school district's population and however neutrally the district lines have been drawn and administered, finds no support in our prior cases. In Green v. County School Board of New Kent County, 391 U. S. 430 (1968), for example, this Court approved a desegregation plan which would have resulted in each of the schools within the district having a racial composition of 57% Negro and 43% white. In Wright v. Council of the City of Emporia, 407 U. S. 451 (1972), the optimal desegregation plan would have resulted in the schools' being 66% Negro and 34% white, substantially the same percentages as could be obtained under one of the plans involved in this case. And in United States v. Scotland Neck Board of Education, 407 U. S. 484, 491 n. 5 (1972), a desegregation plan was implicitly approved for a school district which had a racial composition of 77% Negro and 22% white. In none of these cases was it even intimated that "actual desegregation" could not be accomplished as long as the number of Negro students was greater than the number of white students. The dissents also seem to attach importance to the metropolitan character of Detroit and neighboring school districts. But the constitutional principles applicable in school desegregation cases cannot vary in accordance with the size or population dispersal of the particular city, county, or school district as compared with neighboring areas. 748 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. III We recognize that the six-volume record presently under consideration contains language and some specific incidental findings thought by the District Court to afford a basis for interdistrict relief. However, these comparatively isolated findings and brief comments concern only one possible interdistrict violation and are found in the context of a proceeding that, as the District Court conceded, included no proof of segregation practiced by any of the 85 suburban school districts surrounding Detroit. The Court of Appeals, for example, relied on five factors which, it held, amounted to unconstitutional state action with respect to the violations found in the Detroit system: ( 1) It held the State derivatively responsible for the Detroit Board's violations on the theory that actions of Detroit as a political subdivision of the State were attributable to the State. Accepting, arguendo, the correctness of this finding of state responsibility for the segregated conditions within the city of Detroit, it does not follow that an interdistrict remedy is constitutionally justified or required. With a single exception, discussed later, there has been no showing that either the State or any of the 85 outlying districts engaged in activity that had a cross-district effect. The boundaries of the Detroit School District, which are coterminous with the boundaries of the city of Detroit, were established over a century ago by neutral legislation when the city was incorporated; there is no evidence in the record, nor is there any suggestion by the respondents, that either the original boundaries of the Detroit School District, or any other school district in Michigan, were established for the purpose of creating, maintaining, or perpetuating segregation of races. There is no claim and there is no evidence hinting that petitioner outlying school districts and their MILLIKEN v. BRADLEY 749 717 Opinion of the Court predecessors, or the 30-odd other school districts in the tricounty area-but outside the District Court's "desegregation area"-have ever maintained or operated anything but unitary school systems. Unitary school systems have been required for more than a century by the Michigan Constitution as implemented by state law.23 Where the schools of only one district have been affected, there is no constitutional power in the courts to decree relief balancing the racial composition of that district's schools with those of the surrounding districts. (2) There was evidence introduced at trial that, during the late 1950's, Carver School District, a predominantly Negro suburban district, contracted to have Negro high school students sent to a predominantly Negro school in Detroit. At the time, Carver was an independent school district that had no high school because, according to the trial evidence, "Carver District . . . did not have a place for adequate high school facilities." 484 F. 2d, at 231. Accordingly, arrangements were made with Northern High School in the abutting Detroit School District so that the Carver high school students could obtain a secondary school education. In 1960 the Oak Park School District, a predominantly white suburban district, annexed the predominantly Negro Carver School District, through the initiative of local officials. " 3 People ex rel. Workman v. Board of Education of Detroit, 18 Mich. 400 (1869); Act 34, § 28, Mich. Pub. Acts of 1867. The Michigan Constitution and laws provide that "[e]very school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin," Mich. Const. 1963, Art. 8, § 2; that "[n]o separate school or department shall be kept for any person or persons on account of race or color," Mich. Comp. Laws§ 340.355; and that. "[a]ll persons, residents of a school district ... shall have an equal right to attend school therein," id., § 340.356. See also Act 319, Part II, c. 2, § 9, Mich. Pub. Acts of 1927. 750 OCTOBER TERM, 1973 Opinion of the Court 418 U.S. Ibid. There is, of course, no claim that the 1960 annexation had a segregative purpose or result or that Oak Park now maintains a dual system. According to the Court of Appeals, the arrangement during the late 1950's which allowed Carver students to be educated within the Detroit District was dependent upon the "tacit or express" approval of the State Board of Education and was the result of the refusal of the white suburban districts to accept the Carver students. Although there is nothing in the record supporting the Court of Appeals' supposition that suburban white schools refused to accept the Carver students, it appears that this situation, whether with or without the State's consent, may have had a segregative effect on the school populations of the two districts involved. However, since "the nature of the violation determines the scope of the remedy," Swan"'l., 402 U. S., at 16, this isolated instance affecting two of the school districts would not justify the broad metropolitanwide remedy contemplated by the .0istrict Court and approved by the Court of Appeals, particularly since it embraced potentially 52 districts having no responsibility for the arrangement and involved 503,000 pupils in addition to Detroit's 276,000 students. (3) The Court of Appeals cited the enactment of state legislation (Act 48) which had the effect of rescinding Detroit's voluntary desegregation plan ( the April 7 Plan). That plan, however, affected only 12 of 21 Detroit high schools and had no causal connection with the distribution of pupils by race between Detroit and the other school districts within the tri-county area. ( 4) The court relied on the State's authority to supervise schoolsite selection a.nd to approve building construction as a basis for holding the State responsible for the segregative results of the school construction program in Detroit. Specifically, the Court of Appeals asserted MILLIKEN v. BRADLEY 751 717 Opinion of the Court that during the period between 1949 and 1962 the State Board of Education exercised general authority as overseer of site acquisitions by local boards for new school construction, and suggested that this state-approved school construction "fostered segregation throughout the Detroit Metropolitan area." 484 F. 2d, at 241. This brief comment, however, is not supported by the ·evidence taken at trial since that evidence was specifically limited to proof that schoolsite acquisition and school construction within the city of Detroit produced de jure segregation within the city itself. Id., at 235-238. Thus, there was no evidence suggesting that the State's activities with respect to either school construction or site acquisition within Detroit affected the racial composition of the school population outside Detroit or, conversely, that the State's school construction and site acquisition activities within the outlying districts affected the racial composition of the schools within Detroit. (5) The Court of Appeals also relied upon the District Court's finding: "This and other financial limitations, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expend~tures despite less tax effort, have created and perpetuated systematic educational inequalities." Id., at 239. However, neither the Court of Appeals nor the District Court offered any indication in the record or in their opinions as to how, if at all, the availability of statefinanced aid for some Michigan students outside Detroit, but not for those within Detroit, might have affected the racial character of any of the State's school districts. Furthermore, as the respondents recognize, the application of our recent ruling in San Antonio School District v. Rodriguez, 411 U. S. 1 (1973), to this state education financing system is questionable, and this issue was not 752 OCTOBER TERM, 1973 Opinion of the Court 418 U. 8. addressed by either the Court of Appeals or the District Court. This, again, underscores the crucial fact that the theory upon which the case proceeded related solely to the establishment of Detroit city violations as a basis for desegregating Detroit schools and that, at the time of trial, neither the parties nor the trial judge was concerned with a foundation for interdistrict relief.24 IV Petitioners have urged that they were denied due process by the manner in which the District Court limited their participation after intervention was allowed, thus precluding adequate opportunity to present evidence that they had committed no acts having a segregative effect in Detroit. In light of our holding that, absent an interdistrict violation, there is no basis for an interdistrict remedy, we need not reach these claims. It is clear, however, that the District Court, with the approval of the Court of Appeals, has provided an interdistrict remedy in the face of a record which shows no constitutional violations that would call for equitable relief except within the city of Detroit. In these circumstances there was no occasion for the parties to address, or for the District Court to consider whether there were racially discriminatory acts for which any of the 53 outlying districts were responsible and which had direct and significant segregative effect on schools of more than one district. We conclude that the relief ordered by the District Court and affirmed by the Court of Appeals was based upon an erroneous standard and was unsupported by record evidence that acts of the outlying districts effected the discrimination found to exist in the schools of De- 24 Apparently, when the District Court, sua sponte, abruptly altered the theory of the case to include the possibility of multidistrict relief, neither the plaintiffs nor the trial judge considered amending the complaint to embrace the new theory. MILLIKEN v. BRADLEY 753 717 STEWART, J., concurring troit. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion leading to prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970. Reversed and remanded. MR. JUSTICE STEW ART, concurring. In joining the opinion of the Court, I think it appropriate, in view of some of the extravagant language of the dissenting opinions, to state briefly my understanding of what it is that the Court decides today. The respondents commenced this suit in 1970, claiming only that a constitutionally impermissible allocation of educational facilities along racial lines had occurred in public schools within a single school district whose lines were coterminous with those of the city of Detroit. In the course of the subsequent proceedings, the District Court found that public school officials had contributed to racial segregation within that district by means of improper use of zoning and attendance patterns, optionalattendance areas, and building and site selection. This finding of a violation of the Equal Protection Clause was upheld by the Court of Appeals, and is accepted by this Court today. See ante, at 738 n. 18. In the present posture of the case, therefore, the Court does not deal with questions of substantive constitutional law. The basic issue now before the Court concerns, rather, the appropriate exercise of federal equity jurisdiction.' 1 As this Court stated in Brown v. Board of Education, 349 U. S. 294, 300: "[EJ quit.y has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These [school desegregation] cases call for the exercise of these traditional attributes of equity power." 754 OCTOBER TERM, 1973 STEWART, J., concurring 418 u. s. No evidence was adduced and no findings were made in the District Court concerning the activities of school officials in districts outside the city of Detroit, and no school officials from the outside districts even participated in the suit until after the District Court had made the initial determination that is the focus of today's decision. In spite of the limited scope of the inquiry and the findings, the District Court concluded that the only effective remedy for the constitutional violations found to have existed within the city of Detroit was a desegregation plan calling for busing pupils to and from school districts outside the city. The District Court found that any desegregation plan operating wholly " 'within the corporate geographical limits of the city' " would be deficient since it" 'would clearly make the entire Detroit public school system racially identifiable as Black.'" 484 F. 2d 215,244,243. The Court of Appeals, in affirming the decision that an interdistrict remedy was necessary, noted that a plan limited to the city of Detroit "would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area." Id., at 245. The courts were in error for the simple reason that the remedy they thought necessary was not commensurate with the constitutional violation found. Within a single school district whose officials have been shown to have engaged in unconstitutional racial segregation, a remedial decree that affects every individual school may be dictated by "common sense," see Ke.yes v. School District No. I, Denverr, Colorado, 413 U.S. 189,203, and indeed may provide the only effective means to eliminate segregation "root and branch," Green v. County School Board of New Kent County, 391 U.S. 430, 438, and to "effectuate a transition to a racially nondiscriminatory school MILLIKE~ v. BRADLEY 755 717 STEWART, J., concurring system." Brown v. Board of Education, 349 U. S. 294, 301. See Keyes, supra, at 198-205. But in this case the Court of Appeals approved the concept of a remedial decree that would go beyond the boundaries of the district where the constitutional violation was found, and include schools and schoolchildren in many other school districts that have presumptively been administered in complete accord with the Constitution. The opinion of the Court convincingly demonstrates, ante, at 742-743, that traditions of local control of schools, together with the difficulty of a judicially supervised restructuring of local administration of schools, render improper and inequitable such an interdistrict response to a constitutional violation found to have occurred only within a single school district. This is not to say, however, that an interdistrict remedy of the sort approved by the Court of Appeals would not be proper, or even necessary, in other factual situations. Were it to be shown, for example, that state officials had contributed to the separation of the races by drawing or redrawing school district lines, see Haney v. County Board of Education of Sevier County, 429 F. 2d 364; cf. Wright v. Council of the City of Emporia, 407 U.S. 451; United States v. Scotland Neck Board of Education, 407 U. S. 484; by transfer of school units between districts, United States v. Texas, 321 F. Supp. 1043, aff'd, 447 F. 2d 441; Turner v. Warren County Board of Education, 313 F. Supp. 380; or by purposeful, racially discriminatory use of state housing or zoning laws, then a decree calling for transfer of pupils across district lines or for restructuring of district lines might well be appropriate. In this case, however, no such interdistrict violation was shown. Indeed, no evidence at all concerning the administration of schools outside the city of Detroit was presented other than the fact that these schools contained 756 OCTOBER TERM, 1973 STEWART, J., concurring 418 u. s. a higher proportion of white pupils than did the schools within the city. Since the mere fact of different racial compositions in contiguous districts does not itself imply or constitute a violation of the Equal Protection Clause in the absence of a showing that such disparity was imposed, fostered, or encouraged by the State or its political subdivisions, it follows that no interdistrict violation was shown in this case.2 The formulation of an interdistrict remedy was thus simply not responsive to the factual record before the District Court and was an abuse of that court's equitable powers. 2 My Brother MARSHALL seems to ignore this fundamental fact when he states, post, at 799. that "the most essential finding [made by the District Court] was that Negro children in Detroit had been confined by intentional acts of segregation to a growing core of Negro schools surrounded by a receding ring of white schools." This conclusion is simply not substantiated by the record presented in this case. The record hert> does support the claim made by the respondents that white and Negro students within Detroit who otherwise would ha,·e attended school together were separated by acts of the State or its subdivision. However, segregative acts within the city alone cannot be presumed to have produced-and no factual showing was made that they did produce-an increase in the number of Negro students in the city as a whole. It is this essential fact of a predominantly Negro school population in Detroit- caused by unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears-that accounts for the "growing core of Negro schools," a "core" that has grown to include virtually the entire city. The Constitution simply does not allow federal courts to attempt to change that situation unless and until it is shown that the State, or its political subdivisions, have contributed to cause the situation to exist. No record has been made in this case showing that the racial composition of the Detroit school population or that residential patterns within Detroit and in the surrounding areas were in any significant measure caused by governmental activity, and it follows that the situation over which my dissenting Brothers express concern cannot serve as the predicate for the remedy adopted by the District Court and approved by the Court of Appeals. MILLIKEN v. BRADLEY 757 717 DOUGLAS, J., dissenting In reversing the decision of the Court of Appeals this Court is in no way turning its back on the proscription of state-imposed segregation first voiced in Brown v. Board of Education, 347 U. S. 483, or on the delineation of remedial powers and duties most recently expressed in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1. In Swann the Court addressed itself to the range of equitable remedies available to the courts to effectuate the desegregation mandated by Brown and its progeny, noting that the task in choosing appropriate relief is "to correct ... the condition that offends the Constitution," and that "the nature of the violation determines the scope of the remedy .... " Id., at 16. The disposition of this case thus falls squarely under these principles. The only "condition that offends the Constitution" found by the District Court in this case is the existence of officially supported segregation in and among public schools in Detroit itself. There were no findings that the differing racial composition between schools in the city and in the outlying suburbs was caused by official activity of any sort. It follows that the de-· cision to include in the desegregation plan pupils from school districts outside Detroit was not predicated upon any constitutional violation involving those school districts. By approving a remedy that would reach beyond the limits of the city of Detroit to correct a constitutional violation found to have occurred solely within that city the Court of Appeals thus went beyond the governing equitable principles established in this Court's decisions. MR. JusTICE DouGLAS, dissenting. The Court of Appeals has acted responsibly in these cases and we should affirm its juqgment. This was the fourth time the case was before it over a span of less than three years. The Court of Appeals affirmed the District 758 OCTOBER TERM, 1973 DOUGLAS, J., dissenting 418 U.S. Court on the issue of segregation and on the "Detroitonly" plans of desegregation. The Court of Appeals also approved in principle the use of a metropolitan area plan, vacating and remanding only to allow the other affected school districts to be brought in as parties, and in other minor respects. We have before us today no plan for integration. The only orders entered so far are interlocutory. No new principles of law are presented here. Metropolitan treatment of metropolitan problems is commonplace. If this were a sewage problem or a water problem, or an energy problem, there can be no doubt that Michigan would stay well within federal constitutional bounds if it sought a metropolitan remedy. In Bradley v. School Board of City of Richmond, 462 F. 2d 1058, aff'd by an equally divided Court, 412 U. S. 92, we had a case involving the Virginia school system where local school boards had "exclusive jurisdiction" of the problem, not "the State Board of Education," 462 F. 2d, at 1067. Here the Michigan educational system is unitary, maintained and supported by the legislature and under the general supervision of the State Board of Education.' The State controls the boundaries of school districts.2 The State supervises schoolsite selection. 3 The construction is done through municipal bonds approved by several state agencies: Education in Michigan is a state project with very little completely local control,, except that the schools are financed locally, not on a statewide basis. Indeed 1 Mich. Const., Art. 8, §§ 2, 3. 2 See 484 F. 2d 215, 247-248; Mich. Comp. Laws §§ 340.402, 340.431, 340.447, 388.681 (1970). 3 Mich. Comp. Laws §388.851 (1948), as amended by Act 231, Mich. Pub. Acts of 1949, and Act 175, Mich. Pub. Acts 1962. • See Mich. Comp. Laws §§ 132.1 and 132.2 (1970); 3 App. 157. 5 See 484 F. 2d, at 248-249. MILLIKEN v. BRADLEY 759 717 DOUGLAS, J., dissenting the proposal to put school funding in Michigan on a statewide basis was defeated at the polls in November 1972." Yet the school districts by state law are agencies of the State.7 State action is indeed challenged as violating the Equal Protection Clause. Whatever the reach of that claim may be, it certainly is aimed at discrimination based on race. Therefore as the Court of Appeals held there can be no doubt that as a matter of Michigan law the State itself has the final say as to where and how school district lines should be drawn.8 When we rule against the metropolitan area remedy we take a step that will likely put the problems of the blacks and our society back to the period that antedated the "separate but equal" regime of Plessy v. Ferguson, 163 U. S. 537. The reason is simple. The inner core of Detroit is now rather solidly black; 9 and the blacks, we know, in many instances are likely to 6 See Detroit Free Press, Nov. 8, 1972, p. lA, col. 3. Michigan has recently passed legislation which could eliminate some, but not all, of the inequities in school financing. See Act 101, Mich. Pub. Acts of 1973. 7 See 484 F. 2d, at 246-247; Mich. Const. Art. 8, §§ 2, 3. 8 See n. 2, supra. 9 A tremendous change has occurred in the distribution of this country's black population since World ·war I. See Hauser, Demographic Factors in the Integration of the Negro, Daedalus 847-877 (fall 1965). In 1910, 73% of all blacks lived on farms and in rural areas; by 1960, 73% lived in urban areas, mainly in the largest metropolitan areas.. Moreover, due to the fact that the black population is younger than the white population, the concentration of blacks in the cities is even more pronounced for the school-age population. The pattern of change which has existed since World War I is continuing, and hence the proportion of blacks in the urban North and West will continue to increase. Dept. of Health, Education, and Welfare, J. Coleman et al., Equality of Educational Opportunity 39-40 (1966). 760 OCTOBER TERM, 1973 DouGLAS, J., dissenting 418 U.S. be poorer,1° just as were the Chicanos in San Antonio School District v. Rodriguez, 411 U. S. 1. By that decision the poorer school districts 11 must pay their own way. It is therefore a foregone conclusion that we have now given the States a formula whereby the poor must pay their own way.l2 10 "There are some definite and systematic directions of difference between the schools attended by minorities and those attended by the majority. It appears to be in the most academically related areas that the schools of minority pupils show the most consistent deficiencies." Dept. of Health, Education, and Welfare, Coleman et al., supra, n. 9, at 120. 11 That some school districts are markedly poorer than others is beyond question. The California Supreme Court has noted that per-pupil expenditures in two different districts-both located in the same county-were $2,223 and $616. Serrano v. Priest, 5 Cal. 3d 584, 600 n. 15, 487 P. 2d 1241, 1252 n. 15 (1971). In New York the Fleischmann Commission reported that the two Long Island districts of Great Neck and Levittown spent $2,078 and $1,189 respectively per pupil. I New York State Commission on the Quality, Cost, and Financing of Elementary and Secondary Education, Fleischmann Report 58 (1973). "A further glaring inequity resulting from the current systems of school finance is that variations in per pupil expenditures among school districts tend to be inversely related to educational need. City students, with greater than average educational deficiencies, consistently have less money spent on their education and have higher pupiljteacher ratios than do their high-income counterparts in the favored schools of suburbia." Glickstein & Want, Inequality in School Financing: The Role of the Law, 25 Stan. L. Rev. 335, 338 (1973). 12 Cities face an especially difficult problem in paying the cost of education, since they have the "municipal overburden" which results from greater costs for health, public safety, sanitation, public works, transportation, public welfare, public housing, and recreation. Because of municipal overburden, cities on the average devote only about 3tJ% of their budgets to their schools. This compares with the over 50% which is spent on schools by the suburbs. J. Berke & J. Callahan, Inequities in School FinaJJce ( 1971), reprinted in Senate Select Committee on Equal Educational MILLIKEN v. BRADLEY 761 717 DouGLAS, J., dissenting Today's decision, given Rodriguez, means that there is no violation of the Equal Protection Clause though the schools are segregated by race and though the black schools are not only "separate" but "inferior." So far as equal protection is concerned we are now in a dramatic retreat from the 7-to-l decision in 1896 that blacks could be segregated in public facilities, provided they received equal treatment. As I indicated in Keyes v. School Di.strict No. 1 Denver, Colorado, 413 U. S. 189, 214-217, there is so far as the school cases go no constitutional difference between de facto and de jure segregation. Each school board performs state action for Fourteenth Amendment purposes when it draws the lines that confine it to a given area, when it builds schools at particular sites, or when it allocates students. The creation of the school districts in Metropolitan Detroit either maintained existing segregation or caused additional segregation. Restrictive covenants maintained by state action or inaction build black ghettos. It is state action when public funds are dispensed by housing agencies to build racial ghettos. Where a community is racially mixed and school authorities segregate schools, or assign black teachers to black schools or close schools in fringe areas and build new schools in black areas and in more distant white areas, the State creates and nurtures a segregated school system, just as surely as did those States involved in Brown v. Board of Education, 347 U. S. 483, when they maintained dual school systems. All these conditions and more were found by the District Court to exist. The issue is not whether there should be racial balance but whether the State's use of Opportunity, 92d Cong., 2d Sess., Report on Issues in School Finance 129, 142 (Comm. Print 1972); see Glickstein & Want, supra, n. 11, at 387. 762 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. various devices that end up with black schools and white schools brought the Equal Protection Clause into effect. Given the State's control over the educational system in Michigan, the fact that the black schools are in one district and the white schools are in another is not controlling- either constitutionally or equitably.13 No specific plan has yet been adopted. We are still at an interlocutory stage of a long drawn-out judicial effort at school desegregation. It is conceivable that ghettos develop on their own without any hint of state action. But since Michigan by one device or another has over the years created black school districts and white school districts, the task of equity is to provide a unitary system for the affected area where, as here, the State washes its hands of its own creations. MR. JusTICE WHITE, with whom MR. JuSTICE Douo- LAS, MR. JusTICE BRENNAN, and MR. JusTICE MARSHALL join, dissenting. The District Court and the Court of Appeals found that over a long period of years those in charge of the Michigan public schools engaged in various practices calculated to effect the segregation of the Detroit school system. The Court does not question these findings, nor could it reasonably do so. Neither does it question the obligation of the federal courts to devise a feasible and effective remedy. But it promptly cripples the ability of the judiciary to perform this task, which is of fundamental importance to our constitutional system, by 18 MR. JusTICE STEWART indicates that equitable factors weigh in favor of local school control and the avoidance of administrative difficulty given the lack of an "interdistrict" violation. Ante, at 755. It would seem to me that the equities are stronger in favor of the children of Detroit who have been deprived of their constitutional right to equal treatment by the State of Michigan. MILLIKEN v. BRADLEY 763 717 WHITE, J., dissenting fashioning a strict rule that remedies in school cases must stop at the school district line unless certain other conditions are met. As applied here, the remedy for unquestioned violations of the equal protection rights of Detroit's Negroes by the Detroit School Board and the State of Michigan must be totally confined to the limits of the school district and may not reach into adjoining or surrounding districts unless and until it is proved there has been some sort of "interdistrict violation"- unless unconstitutional actions of the Detroit School Board have had a segregative impact on other districts, or unless the segregated condition of the Detroit schools has itself been influenced by segregative practices in those surrounding districts into which it is proposed to extend the remedy. Regretfully, and for several reasons, I can join neither the Court's judgment nor its opinion. The core of my disagreement is that deliberate acts of segregation and their consequences will go unremedied, not because a remedy would be infeasible or unreasonable in terms of the usual criteria governing school desegregation cases, but because an effective remedy would cause what the Court considers to be undue administrative inconvenience to the State. The result is that the State of Michigan, the entity at which the Fourteenth Amendment is directed, has successfully insulated itself from its duty to provide effective desegregation remedies by vesting sufficient power over its public schools in its local school districts. If this is the case in Michigan, it will be the case in most States. There are undoubted practical as well as legal limits to the remedial powers of federal courts in school desegregation cases. The Court has made it clear that the achievement of any particular degree of racial balance in the school system is not required by the Constitution; 764 OCTOBER TERl\-1, 1973 WHITE, J., dissenting 418 U.S. nor may it be the primary focus of a court in devising an acceptable remedy for de jure segregation. A variety of procedures and techniques are available to a district court engrossed in fashioning remedies in a case such as this; but the courts must keep in mind that they are dealing with the process of educating the young, including the very young. The task is not to devise a system of pains and penalties to punish constitutional violations brought to light. Rather, it is to desegregate an educational system in which the races have been kept apart, without, at the same time, losing sight of the central educational function of the schools. Viewed in this light, remedies calling for school zoning, pairing, and pupil assignments, become more and more suspect as they require that schoolchildren spend more and more time in buses going to and from school and that more and more educational dollars be diverted to transportation systems. Manifestly, these considerations are of immediate and urgent concern when the issue is the desegregation of a city school system where residential patterns are predominantly segregated and the respective areas occupied by blacks and whites are heavily populated and geographically extensive. Thus, if one postulates a metropolitan school system covering a sufficiently large area, with the population evenly divided between whites and Negroes and with the races occupying identifiable residential areas, there will be very real practical limits on the extent to which racially identifiable schools can be eliminated within the school district. It is also apparent that the larger the proportion of Negroes in the area, the more difficult it would be to avoid having a substantial number of all-black or nearly allblack schools. The Detroit school district is both large and heavily populated. It covers 139.6 square miles, encircles two MILLIKEN v. BRADLEY 765 717 WHITE, J., dissenting entirely separate cities and school districts, and surrounds a third city on three sides. Also, whites and Negroes live in identifiable area.s in the city. The 1970 public school enrollment in the city school district totaled 289,763 and was 63.6% Negro and 34.8% white.1 If "racial balance" were achieved in every school in the district, each school would be approximately 64% Negro. A remedy confined to the district could achieve no more desegregation. Furthermore, the proposed intracity remedies were beset with practical problems. None of the plans limited to the school district was satisfactory to the District Court. The most promising proposal, submitted by respondents, who were the plaintiffs in the District Court, would "leave many of its schools 75 to 90 per cent Black." 484 F. 2d 215, 244 (CA6 1973).2 Transportation on a "vast scale" would be required; 900 buses would have to be purchased for the transportation of pupils who are not now bused. Id., at 243. The District Court a.lso found that the plan "would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population." Id., at 244. For the District Court, "[t]he conclusion, under the evidence in this case, is inescapable that relief of segregation in the public schools of the 1 The percentage of Negro pupils in the Detroit student population rose to 64.9% in 1971, to 67.3% in 1972, and to 69.8% in 1973, amid a metropolitan school population whose racial composition in 1970 was 81% white and 19% Negro. 5 App. 16; Racial-Ethnic Distribution of Students and Employees in the Detroit Public Schools, October 1972, and October 1973; 484 F. 2d 215, 250. 2 The District Court's ruling on the Detroit-only desegregation plans is set ol)t in full by the Court of Appeals, id., at 242~245, and is not otherwise officially reported. 766 OCTOBER TERM, 1973 WHITE, J., dissenting 418 u. s. City of Detroit cannot be accomplished within the corporate geographical limits of the city." Ibid. The District Court therefore considered extending its remedy to the suburbs. After hearings, it concluded that a much more effective desegregation plan could be implemented if the suburban districts were included. In proceeding to design its plan on the basis that student bus rides to and from school should not exceed 40 minutes each way as a general matter, the court's express finding was that "[f] or all the reasons stated heretoforeincluding time, distance, and transportation factorsdesegregation within the area described is physically easier and more practicable and feasible, than desegregation efforts limited to the corporate geographic limits of the city of Detroit." 345 F. Supp. 914, 930 (ED Mich. 1972). The Court of Appeals agreed with the District Court that the remedy must extend beyond the city limits of Detroit. It concluded that "[iJn the instant cas~ the only feasible desegregation plan involves the crossing of the boundary lines betwfen the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan." 484 F. 2d, at 249. (Emphasis added.) It also agreed that "any Detroit only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black." Ibid. There was "more than ample support for the District Judge's findings of unconstitutional segregation by race resulting in major part from action and inaction of public authorities, both local and State. . . . Under this record a remedial order of a court of equity which left the Detroit school system overwhelmingly black (for the foreMILLIKEN v. BRADLEY 767 717 WHITE, J., dissenting seeable future) surrounded by suburban school systems overwhelmingly white cannot correct the constitutional violations herein found." Id., at 250. To conclude otherwise, the Court of Appeals announced, would call up "haunting memories of the now long overruled and discredited 'separate but equal doctrine' of Plessy v. Ferguson, 163 U. S. 537 ... (1896)," and "would be opening a way to nullify Brown v. Board of Education which overruled Plessy . . . . " 484 F. 2d, at 249. This Court now reverses the Court of Appeals. It does not question the District Court's findings that any feasible Detroit-only plan would leave many schools 75 to 90 percent black and that the district would become progressively more black as whites left the city. Neither does the Court suggest that including the suburbs in a desegregation plan would be impractical or infeasible because of educational considerations, because of the number of children requiring transportation, or because of the length of their rides. Indeed, the Court leaves unchallenged the District Court's conclusion that a plan including the suburbs would be physically easier and more practical and feasible than a Detroit-only plan. Whereas the most promising Detroit-only plan, for example, would have entailed the purchase of 900 buses, the metropolitan plan would involve the acquisition of no more than 350 new vehicles. Despite the fact that a metropolitan remedy, if the findings of the District Court accepted by the Court of Appeals are to be credited, would more effectively desegregate the Detroit schools, would prevent resegregation, 3 and would be easier and more feasible from many 3 The Court has previously disapproved the implementation of proposed desegregation plans which operate to permit resegregation. Monroe v. Board of Comm'rs, 391 U. S. 450, 459-460 (1968) ("free transfer" plan) . 768 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. standpoints, the Court fashions out of whole cloth an arbitrary rule that remedie8 for constitutional violations occurring in a single Michigan school district must stop at the school district line. Apparently, no matter how much less burdensome or more effective and efficient in many respects, such as transportation, the metropolitan plan might be, the school district line may not be crossed. Otherwise, it seems, there would be too much disruption of the Michigan scheme for managing its educational system, too much confusion, and too much administrative burden. The District Court, on the scene and familiar with local conditions, had a wholly different view. The Court of Appeals also addressed itself at length to matters of local law and to the problems that interdistrict remedies might present to the State of Michigan. Its conclusion, flatly contrary to that of this Court, was that "the constitutional right to equality before the law [is not] hemmed in by the boundaries of a school district" and that an interdistrict remedy "is supported by the status of school districts under Michigan law and by the historical control exercised over local school districts by the legislature of Michigan and by State agencies and officials . . . . (I] t is well established under the Constitution and laws of Michigan that the public school system is a State function and that local school districts are instrumentalities of the State created for administrative convenience." 4 484 F. 2d, at 245--246. • The Court of Appeals also noted several specific instances of school district mergers ordered by the State Board of Education for financial reasons. 484 F. 2d, at 247. Limitations on the authoritY. of local school districts were also outlined by the Court of Appeals: "Local school districts, unless they have the approval of the State Board of Education or the Superintendent of Public Instruction, canMILLIKEK v. BRADLEY 769 717 WHITE, J., dissenting I am surprised that the Court, sitting at this distance from the State of Michigan, claims better insight than the Court of Appeals and the District Court as to whether an interdistrict remedy for equal protection violations practiced by the State of Michigan would involve undue difficulties for the State in the management of its public schools. In the area of what constitutes an acceptable desegregation plan, "we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals." Swann v. Charlotte,..Mecklenburg Board of Education, 402 U.S. 1, 28 (1971). Obviously, whatever difficulties there might be, they are surmountable; for the Court itself concedes that, had there been sufficient evidence of an interdistrict violation, the District Court could have fashioned a single remedy for the districts implicated rather than a different remedy for each district not consolidate with another school district, annex territory, divide or attach parts of other districts, borrow monies in anticipation of State aid, or construct, reconstruct or remodel school buildings or additions to them." Id., at 249. (Footnotes and supporting statutory citations omitted.) And the Court of Appeals properly considered the State's statutory attempt to undo the adoption of a voluntary high school desegregation plan by the Detroit Board of Education as evidencing state control over local school district affairs. Ibid. Finally, it is also relevant to note that the District Court found that the school district boundaries in that segment of the metropolitan area preliminarily designated as the desegregation area "in general bear no relationship to other municipal, county, or special district governments, needs or services," that some educational services are already provided to students on an interdistrict basis requiring their travel from one district to another, and that local ~ommunitie$ in the metropolitan area share noneducational interests in common, which do not adhere to school district lines, and have applied met.ropolit,rn solutions to other governmental needs. 345 F. Supp. 914, 934-935 (ED Mich. 1972). 770 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. in which the violation had occurred or had an impact. I am even more mystified a.s to how the Court can ignore the legal reality that the constitutional violations, even if occurring locally, were committed by governmental entities for which the State is responsible and that it is the State that must respond to the command of the Fourteenth Amendment. An interdistrict remedy for the infringements that occurred in this case is well within the confines and powers of the State, which is the governmental entity ultimately responsible for desegregating its schools. The Michigan Supreme Court has observed that "[t]he school district is a State agency," Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639,644, 92 N. W. 289, 290 (1902), and that" '[e]ducation in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature ... .' " Attorney General ex rel. Zacharias v. Detroit Boai-d of Education, 154 Mich. 584, 590, 118 N. W. 606, 609 (1908). It is unnecessary to catalogue at length the various public misdeeds found by the District Court and the Court of Appeals to have contributed to the present segregation of the Detroit public schools. The legislature contributed directly by enacting a statute overriding a partial high school desegregation plan voluntarily adopted by the Detroit Board of Education. Indirectly, the trial court found the State was accountable for the thinly disguised, pervasive acts of segregation committed by the Detroit Board,5 for Detroit's school construction 5 These included the creation and alteration of attendance zones and feeder patterns from the elementary to the secondary schools in a manner naturally and predictably perpetuating racial segregation of students, the transportation of Negro students beyond predomiMILLIKEN v. BRADLEY 771 717 WHITE, .J., dissenting plans that would promote segregation, and for the Detroit school district's not having funds for pupil transportatjon within the district. The State was also chargeable with responsibility for the transportation of Negro high school students in the late 1950's from the suburban Ferndale School District, past closer suburban and Detroit high schools with predominantly white student bodies, to a predominantly Negro high school within Detroit. Swann v. Charlotte-Mecklenburg Board of Education, supra, at 20--21, and Keyes v. School District No. 1, Denver, Colorado, 413 U. S. 189 (1973), make abundantly clear that the tactics employed by the Detroit Board of Education, a local instrumentality of the State, violated the constitutional rights of the Negro students in Detroit's public schools and required equitable relief sufficient to accomplish the maximum, practical desegregation within the power of the political body against which the Fourteenth Amendment directs its proscriptions. No "State" may deny any individual the equal protection of the laws; and if the Constitution and the Supremacy Clause are to have any substance at all, the courts must be free to devise workable remedies against the political entity with the effective power to determine local choice. It is also the case here that the State's legislative interdiction of Detroit's voluntary effort t-0 desegregate its school system was unconstitutional. See North Carolina State Board of Education v. Swann, 402 U. S. 43 (1971). The Court draws the remedial line at the Detroit school district boundary. even though the Fourteenth Amendment is addressed to the State and even though nantly white schools with available space to predominantly Negro schools, the use of optional attendance areas in neighborhoods in which Negro families had recently begun to settle to permit white students to transfer to predominantly white schools nearer the city limits, and the construction of schools in the heart of residentially segregated areas, thereby maximizing school segregation. 772 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. the State denies equal protection of the laws when its public agencies, acting in its behalf, invidiously discriminate. The State's default is "the condition that offends the Constitution," Swann v. Charlotte-Mecklenburg Board of Education, supra, at 16, and state officials may therefore be ordered to take the necessary measures to completely eliminate from the Detroit public schools "all vestiges of state-imposed segregation." Id., at 15. I cannot understand, nor does the majority satisfactorily explain, why a federal court may not order an appropriate interdistrict remedy, if this is necessary or more effective to accomplish this constitutionally mandated task. As the Court unanimously observed in Swann: "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Ibid. In this case, both the right and the State's Fourteenth Amendment violation have concededly been fully established, and there is no acceptable reason for permitting the party responsible for the constitutional violation to contain the remedial powers of the federal court within administrative boundaries over which the transgressor itself has plenary power. The unwavering decisions of this Court over the past 20 years support the assumption of the Court of Appeals that the District Court's remedial power does not cease at the school district line. The Court's first formulation of the remedial principles to be followed in disestablishing racially discriminatory school systems recognized the variety of problems arising from different local school conditions and the necessity for that "practical flexibility" traditionally associated with courts of equity. Brown v. Board of Education, 349 U. S. 294, 299-301 (1955) (Brown II). Indeed, the district courts to which MILLIKEN v. BRADLEY 773 717 WHITE, J., dissenting the Brown cases were remanded for the formulation of remedial decrees were specifically instructed that they might consider, inter alia, "revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis .... " Id., at 300---301. The malady addressed in Brown II was the statewide policy of requiring or permitting school segregation on the basis of race, while the record here concerns segregated schools only in the city of Detroit. The obligation to rectify the unlawful condition nevertheless rests on the State. The permissible revision of school districts contemplated in Brown II rested on the State's responsibility for desegregating its unlawfully segregated schools, not on any segregative effect which the condition of segregation in one school district might have had on the schools of a neighboring district. The same situation obtains here and the same remedial power is available to the District Court. Later cases reinforced the clearly essential rules that state officials are fully answerable for unlawfully caused conditions of school segregation which can effectively be controlled only by steps beyond the authority of local school districts to take, and that the equity power of the district courts includes the ability to order such measures implemented. When the highest officials of the State of Arkansas impeded a federal court order to desegregate the public schools under the immediate jurisdiction of the Little Rock School Board, this Court refused to accept the local board's assertion of its good faith as a legal excuse for delay in implementing the desegregation order. The Court emphasized that "from the point of view of the Fourteenth Amendment, they [ the local school board members] stand in this litigation as the agents of the State." Cooper v. Aaron, 358 U. S. 1, 16 (1958). Per774 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. haps more importantly for present purposes, the Court went on to state: "The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties . . . can also be brought under control by state action." Ibid. See also Griffin v. School Board, 377 U. S. 218, 228, 233- 234 (1964). In the context of dual school systems, the Court subsequently made clear 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" and to come forward with a desegregation plan that "promises realistically to work now." Green v. County School Board of New Kent County, 391 U. S. 430, 437-438, 439 (1968). "Freedom of choice" plans were rejected as acceptable desegregation measures where "reasonably available other ways ... promising speedier and more effective conversion to a unitary, nonracial school system ... " exist. Id., at 441. Imperative insistence on immediate full desegregation of dual school systems "to operate now and hereafter only unitary schools" was reiterated in Alexander v. Holmes County Board of Education, 396 U. S. 19, 20 ( 1969), and Carter v. West Feliciana Parish School Board, 396 U. S. 290 (1970). The breadth of the equitable authority of the district courts to accomplish these comprehensive tasks was reaffirmed in much greater detail in Swann v. Charlotte- Mecklenburg Board of Education, supra, and the companion case of Davis v. School Comm'rs of Mobile County, 402 U.S. 33 (1971), where there was unanimous assent to the following propositions: "Having once found a violation, the district judge or school authorities should make every effort to 717 MILLIKEN v. BRADLEY 775 WRITE, J., dissenting achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncontiguous attendance zones .... The measure of any desegregation plan is its eff ectiveness." Id., at 37. No suggestion was made that interdistrict relief was not an available technique. In Swann v. Charlotte- Mecklenburg Board of Education itself, the Court, without dissent, recognized that the District Judge, in fulfilling his obligation to "make every effort to achieve the greatest possible degree of actual desegregation[,] will thus necessarily be concerned with the elimination of one-race schools." 402 U. S., at 26. Nor was there any dispute that to break up the dual school system, it was within the District Court's "broad remedial powers" to employ a "frank-and sometimes drastic-gerrymandering of school districts and attendance zones," as well as "pairing, 'clustering,' or 'grouping' of schools," to desegregate the "formerly all-Negro schools," despite the fact that these zones might not be compact or contiguous and might be "on opposite ends of the city." Id., at 27. The school board in that case had jurisdiction over a 550- square-mile area encompassing the city of Charlotte and surrounding Mecklenburg County, North Carolina. The Mobile County, Alabama, board in Davi,s embraced a 1,248-square-mile area, including the city of Mobile. Yet the Court approved the District Court's authority to award countywide relief in each case in order to accomplish desegregation of the dual school system. Even more recently, the Court specifically rejected the claim that a new school district, which admittedly would operate a unitary school system within its borders, was beyond the reach of a court-ordered desegregation plan 776 OCTOBER TERM, 1973 WHITE, J., dissenting 418 u. s. for other school districts, where the effectiveness of the plan as to the other districts depended upon the availability of the facilities and student population of the new district. In Wright v. Council of the City of Emporia, 407 U. S. 451, 470 ( 1972), we held "that a new school district may not be created where its effect would be to impede the process of dismantling a dual system." MR. JUSTICE STEWART'S opinion for the Court made clear that if a proposal to erect new district boundary lines "would impede the dismantling of the [pre-existing] dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out." Id., at 460. In United States v. Scotland Neck Board of Education, 407 U. S. 484 (1972), this same standard was applied to forbid North Carolina from creating a new city school district within a larger district which was in the process of dismantling a dual school system. The Court noted that if establishment of the new district were permitted, the "traditional racial identities of the schools in the area would be maintained," id., at 490. Until today, the permissible contours of the equitable authority of the district courts to remedy the unlawful establishment of a dual school system have been extensive, adaptable, and fully responsive to the ultimate goal of achieving "the greatest possible degree of actual desegregation." There are indeed limitations on the equity powers of the federal judiciary, but until now the Court has not accepted the proposition that effective enforcement of the Fourteenth Amendment could be limited by political or administrative boundary lines demarcated by the very State responsible for the constitutional violation and for the disestablishment of the dual system. Until now the Court has instead looked to practical considerations in effectuating a desegregation MILLIKEN v. BRADLEY 777 717 WHITE, J., dissenting decree such as excessive distance, transportation time, and hazards to the safety of the schoolchildren involved in a proposed plan. That these broad principles have developed in the context of dual school systems compelled or authorized by state statute at the time of Brown v. Board of Educatwn, 347 U. S. 483 (1954) (Brown I), does not lessen their current applicability to dual systems found to exist in other contexts, like that in Detroit, where intentional school segregation does not stem from the compulsion of state law, but from deliberate individual actions of local and state school authorities directed at a particular school system. The majority properly does not suggest that the duty to eradicate completely the resulting dual system in the latter context is any less than in the former. But its reason for incapacitating the remedial authority of the federal judiciary in the presence of school district perimeters in the latter context is not readily apparent. The result reached by the Court certainly cannot be supported by the theory that the configuration of local governmental units is immune from alteration when necessary to redress constitutional violations. In addition to the well-established principles already noted, the Court has elsewhere required the public bodies of a State to restructure the State's political subdivisions to remedy infringements of the constitutional rights of certain members of its populace, notably in the reapportionment cases. In Reynolds v. Sims, 377 U. S. 533 (1964), f~r example, which held that equal protection of the laws demands that the seats in both houses of a bicameral state legislature be apportioned on a population basis, thus necessitating wholesale revision of Alabama's voting districts, the Court remarked: "Political subdivisions of States-counties, cities, or whatever-never were and never have been con778 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. sidered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions." Id., at 575. And even more pointedly, the Court declared in Gomillion v. Lightfoot, 364 U. S. 339, 344-345 (1960), that "[l]egislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution." Nor does the Court's conclusion follow from the talismanic invocation of the desirability of local control over education. Local autonomy over school affairs, in the sense of the community's participation in the decisions affecting the education of its children, is, of course, an important interest. But presently constituted school district lines do not delimit fixed and unchangeable areas of a local educational community. If restructuring is required to meet constitutional requirements, local authority may simply be redefined in terms of whatever configuration is adopted, with the parents of the children attending schools in the newly demarcated district or attendance zone continuing their participation in the policy management of the schools with which they are concerned most directly. The majority's suggestion that judges should not attempt to grapple with the administrative problems attendant on a reorganization of school attendance patterns is wholly without foundation. It is precisely this sort of task which the district courts have been properly exercising to vindicate the constitutional rights of Negro students since Brown I and which the Court has never suggested they lack the capacity to perform. Intradistrict revisions of attendance zones, and pairing and grouping of schools, are techniques unanimously approved in Swann v. Charlotte-Mecklenburg MILLIKEN v. BRADLEY 779 717 WHITE, J., dissenting Board of Education which entail the same sensitivity to the interest of parents in the education their children receive as would an interdistrict plan which is likely to employ the very same methods. There is no reason to suppose that the District Court, which has not yet adopted a final plan of desegregation, would not be as capable of giving or as likely to give sufficient weight to the interest in community participation in schools in an interdistrict setting, consistent with the dictates of the Fourteenth Amendment. The majority's assumption that the District Court would act otherwise is a radical departure from the practical flexibility previously left to the equity powers of the federal judiciary. Finally, I remain wholly unpersuaded by the Court's assertion that "the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Ante, at 746. In the first place, under this premise the Court's judgment is itself infirm; for had the Detroit school system not followed an official policy of segregation throughout the 1950's and 1960's, Negroes and whites would have been going to school together. There would have been no, or at least not a.s many, recognizable Negro schools and no, or at least not as many, white schools, but "just schools," and neither Negroes nor whites would have suffered from the effects of segregated education, with all its shortcomings. Surely the Court's remedy will not restore to the Negro community, stigmatized as it was by the dual school system, what it would have enjoyed over all or most of this period if the remedy is confined to presentday Detroit; for the maximum remedy available within that area will leave many of the schools almost totally black, and the system itself will be predominantly black and will become increasingly so. Moreover, when a Sta.te has engaged in acts of official segregation over a lengthy 780 OCTOBER TERM, 1973 WHITE, J., dissenting 418 U.S. period of time, as in the case before us, it is unrealistic to suppose that the children who were victims of the State's unconstitutional conduct could now be provided the benefits of which they were wrongfully deprived. Nor can the benefits which accrue to school systems in which schoolchildren have not been officially segregated, and to the communities supporting such school systems, be fully and immediately restored after a substantial period of unlawful segregation. The education of children of different races in a desegregated environment has unhappily been lost, along with the social, economic, and political advantages which accompany a desegregated school system as compared with an unconstitutionally segregated system. It is for these reasons that the Court has consistently followed the course of requiring the effects of past official segregation to be eliminated "root and branch" by imposing, in the present, the duty to provide a remedy which will achieve "the greatest possible degree of actual desegregation, taking into account the practicalities of the situation." It is also for these reasons that once a constitutional violation has been found, the district judge obligated to provide such a remedy "will thus necessarily be concerned with the elimination of one-race schools." These concerns were properly taken into account by the District Judge in this case. Confining the remedy to the boundaries of the Detroit district is quite unrelated either to the goal of achieving maximum desegregation or to those intensely practical considerations, such as the extent and expense of transportation, that have imposed limits on remedies in cases such as this. The Court's remedy, in the end, is essentially arbitrary and will leave serious violations of the Constitution substantially unremedied. I agree with my Brother DOUGLAS that the Court of Appeals has acted responsibly in these cases. RegretMILLIKEN v. BRADLEY 781 717 MARSHALL, J., dissenting tably, the majority's arbitrary limitation on the equitable power of federal district courts, based on the invisible borders of local school districts, is unrelated to the State's responsibility for remedying the constitutional wrongs visited upon the Negro schoolchildren of Detroit. It is oblivious to the potential benefits of metropolitan relief, to the noneducational communities of interest among neighborhoods located in and sometimes bridging different school districts, and to the considerable interdistrict cooperation already existing in various educational areas. Ultimately, it is unresponsive to the goal of attaining the utmost actual desegregation consistent with restraints of practicability and thus augurs the frequent frustration of the remedial powers of the federal courts. Here the District Court will be forced to impose an intracity desegregation plan more expensive to the district, more burdensome for many of Detroit's Negro students, and surely more conducive to white flight than a metropolitan plan would be-all of this merely to avoid what the Detroit School Board, the District Court, and the en bane Court of Appeals considered to be the very manageable and quite surmountable difficulties that would be involved in extending the desegregation remedy to the suburban school districts. I am therefore constrained to record my disagreement and dissent. MR. .JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS, MR. J USTICE BRENNAN, and MR. JusTICE WHITE join, dissenting. In Brown v. Board of Education, 347 U.S. 483 (1954), this Court held that segregation of children in public schools on the basis of race deprives minority group children of equal educational opportunities and therefore denies them the equal protection of the laws under the 782 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 U.S. Fourteenth Amendment. This Court recognized then that remedying decades of segregation in public education would not be an easy task. Subsequent events, unfortunately, have seen that prediction bear bitter fruit. But however imbedded old ways, however ingrained old prejudices, this Court has not been diverted from its appointed task of making "a living truth" of our constitutional ideal of equal justice under law. Cooper v. Aaron, 358 U.S. 1, 20 (1958). After 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards. Notwithstanding a record showing widespread and pervasive racial segregation in the educational system provided by the State of Michigan for children in Detroit, this Court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion. Ironically purporting to base its result on the principle that the scope of the remedy in a desegregation case should be determined by the nature and the extent of the constitutiona.l violation, the Court's answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past. I cannot subscribe to this emasculation of our constitutional guarantee of equal protection of the laws and must respectfully dissent. Our precedents, in my view, firmly establish that where, as here, state-imposed segregation has been demonstrated, it becomes the duty of the State to eliminate root and branch all vestiges of racial discrimination and to achieve the greatest possible degree of actual desegregation. I agree with both the District Court and the Court of Appeals that, under the facts of this case, this duty cannot be fulfilled unless the State MILLIKEN v. BRADLEY 783 717 MARSHALL, J., dissenting of Michigan involves outlying metropolitan area school districts in its desegregation remedy. Furthermore, I perceive no basis either in law or in the practicalities of the situation justifying the State's interposition of school district boundaries as absolute barriers to the implementation of an effective desegregation remedy. Under established and frequently used Michigan procedures, school district lines are both flexible and permeable for a wide variety of purposes, and there is no reason why they must now stand in the way of meaningful desegregation relief. The rights at issue in this case are too fundamental to be abridged on grounds as superficial as those relied on by the majority today. We deal here with the right of all of our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future. Our Nation, I fear, will be ill served by the Court's refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together. I The great irony of the Court's opm10n and, in my view, its most serious analytical flaw may be gleaned from its concluding sentence, in which the Court remands for "prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970." Ante, at 753. The majority, however, seems to have forgotten the District Court's explicit finding that a Detroitonly decree, the only remedy permitted under today's decision, "would not accomplish desegregation." 784 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. Nowhere in the Court's opinion does the majority confront, let alone respond to, the District Court's conclusion that a remedy limited to the city of Detroit would not effectively desegregate the Detroit city schools. I, for one, find the District Court's conclusion well supported by the record and its analysis compelled by our prior cases. Before turning to these questions, however, it is best to begin by laying to rest some mischaracterizations in the Court's opinion with respect to the basis for the District Court's decision to impose a metropolitan remedy. The Court maintains that while the initial focus of this lawsuit was the condition of segregation within the Detroit city schools, the District Court abruptly shifted focus in mid-course and altered its theory of the case. This new theory, in the majority's words, was "equating racial imbalance with a constitutional violation calling for a remedy." Ante, at 741 n. 19. As the following review of the District Court's handling of the case demonstrates, however, the majority's characterization is totally inaccurate. Nowhere did the District Court indicate that racial imbalance between school districts in the Detroit metropolitan area or within the Detroit School District constituted a constitutional violation calling for interdistrict relief. The focus of this case was from the beginning, and has remained, the segregated system of education in the Detroit city schools and the steps necessary to cure that condition which off ends the Fourteenth Amendment. The District Court's consideration of this case began with its finding, which the majority accepts, that the State of Michigan, through its instrumentality, the Detroit Board of Education, engaged in widespread purposeful acts of racial segregation in the Detroit School District. Without belaboring the details, it is sufficient to MILLIKEN v. BRADLEY 785 717 MARSHALL, J., dissenting note that the various techniques used in Detroit were typical of methods employed to segregate students by race in areas where no statutory dual system of education has existed. See, e.g., Keyes v. School Di,strict No. 1, Denver, Colorado, 413 U.S. 189 (1973). Exacerbating the effects of extensive residential segregation between Negroes and whites, the school board consciously drew attendance zones along lines which maximized the segregation of the races in schools as well. Optional attendance zones were created for neighborhoods undergoing racial transition so as to allow whites in these areas to escape integration. Negro students in areas with overcrowded schools were transported past or away from closer white schools with available space to more distant Negro schools. Grade structures and feeder-school patterns were created and maintained in a manner which had the foreseeable and actual effect of keeping Negro and white pupils in separate schools. Schools were also constructed in locations and in sizes which ensured that they would open with predominantly one-race student bodies. In sum, the evidence adduced below showed that Negro children had been intentionally confined to an expanding core of virtually aU-N egro schools immediately surrounded by a receding band of all-white schools. Contrary to the suggestions in the Court's opinion, the basis for affording a desegregation remedy in this case was not some perceived racial imbalance either between schools within a single school district or between independent school districts. What we confront here is "a systematic program of segregation affecting a substantial portion of the students, schools . . . and facilities within the school system .... " Id., at 201. The constitutional violation found here was not some de facto racial imbalance, but rather the purposeful, intentional, massive, de jure segregation of the Detroit city schools, 786 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 U.S. which under our decision in Keyes, forms "a predicate for a finding of the existence of a dual school system," ibid., and justifies "all-out desegregation." Id., at 214. Having found a de jure segregated public school system in operation in the city of Detroit, the District Court turned next to consider which officials and agencies should be assigned the affirmative obligation to cure the constitutional violation. The court concluded that responsibility for the segregation in the Detroit city schools rested not only with the Detroit Board of Education, but belonged to the State of Michigan itself and the state defendants in this case-that is, the Governor of Michigan, the Attorney General, the State Board of Education, and the State Superintendent of Public Instruction. While the validity of this conclusion will merit more extensive analysis below, suffice it for now to say that it was based on three considerations. First, the evidence at trial showed that the State itself had taken actions contributing to the segregation within the Detroit schools. Second, since the Detroit Board of Education was an agency of the State of Michigan, its acts of racial discrimination were acts of the State for purposes of the Fourteenth Amendment. Finally, the District Court found that under Michigan law and practice, the system of education was in fact a state school system, characterized by relatively little local control and a large degree of centralized state regulation, with respect to both educational policy and the structure and operation of school districts. Having concluded, then, that the school system in the city of Detroit was a de jure segregated system and that the State of Michigan had the affirmative duty to remedy that condition of segregation, the District Court then turned to the difficult task of devising an effective remedy. It bears repeating that the District Court's focus at this stage of the litigation remained what it had MILLIKEN v. BRADLEY 787 717 MARSHALL, J ., dissenting been at the beginning-the condition of segregation within the Detroit city schools. As the District Court stated: "From the initial ruling [ on segregation] to this day, the basis of the proceedings has been and remains the violation: de jure school segregation. . . . The task before this court, therefore, is now, and ... has always been, how to desegregate the Detroit public schools." The District Court first considered three desegregation plans limited to the geographical boundaries of the city of Detroit. All were rejected as ineffective to desegregate the Detroit city schools. Specifically, the District Court determined that the racial composition of the Detroit student body is such that implementation of any Detroit-only plan "would clearly make the entire Detroit public school system racially identifiable as Black" and would "leave many of its schools 75 to 90 per cent Black." The District Court also found that a Detroit-only plan "would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population." Based on these findings, the District Court reasoned that "relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the city" because a Detroit- only decree "would accentuate the racial identifiability of the district as a Black school system, and would not accomplish desegregation." The District Court therefore concluded that it "must look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools .... " In seeking to define the appropriate scope of that expanded desegregation area, however, the District Court continued to maintain as its sole focus the condition shown to violate the Constitution in this case--the segregation of the Detroit school system. As it stated, the 788 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. primary question "remains the determination of the area necessary and practicable effectively to eliminate 'root and branch' the effects of state-imposed and supported segregation and to desegregate the Detroit public schools." There is simply no foundation in the record, then, for the majority's accusation that the only ha.sis for the District Court's order was some desire to achieve a racial balance in the Detroit metropolitan area.1 In fact, just the contrary is the case. In considering proposed desegregation areas, the District Court had occasion to criticize one of the State's proposals specifically because it had no basis other than its "particular racial ratio" and did not focus on "relevant factors, like eliminating racially identifiable schools [and] accomplishing maximum actual desegregation of the Detroit public schools." Similarly, in rejecting the Detroit School Board's proposed desegregation area, even though it included more all-white districts and therefore achieved a higher white- Negro ratio, the District Court commented: "There is nothing in the record which suggests that these districts need be included in the desegregation area in order to disestablish the racial 1 Contrary to the Court's characterization, the use of racial ratios in this case in no way differed from that in Swann v. Charlotte- Mecklenburg Board of Education, 402 U. S. 1 (1971). Here, as there, mathematical ratios were used simply as "a starting point in the process of shaping a remedy, rather than an inflexible requirement." Id., at 25. It may be expected that a final desegregation plan in this case would deviate from a pure ma,thematical approach. Indeed, the District Court's most recent order appointing a panel of experts to draft an interdistrict plan requires only that the plan be designed "to achieve the greatest degree of actual desegregation ... [w]ithin the limitations of reasonable travel time and distance factors." 345 F. Supp. 914, 918 (ED Mich. 1972). Cf. 402 U.S., at 23. 717 MILLIKEN v. BRADLEY 789 MARSHALL, J., dissenting identifiability of the Detroit public schools. From the evidence, the primary reason for the Detroit School Board's interest in the inclusion of these school districts is not racial desegregation but to increase the average socio-economic balance of all the schools in the abutting regions and clusters." The Court also misstates the basis for the District Court's order by suggesting that since the only segregation proved at trial was within the Detroit school system, any relief which extended beyond the jurisdiction of the Detroit Board of Education would be inappropriate because it would impose a remedy on outlying districts "not shown to have committed any constitutional violation." Ante, at 745." The essential foundation of interdistrict relief in this case was not to correct conditions within outlying districts which themselves engaged in purposeful segregation. Instead, interdistrict relief was seen as a necessary part of any meaningful effort by the State of Michigan to remedy the state-caused segregation within the city of Detroit. Rather than consider the propriety of interdistrict relief on this basis, however, the Court has conjured up a largely fictional account of what the District Court was attempting to accomplish. With all due respect, the Court, in my view, does a great disservice to the District Judge who labored long and hard with this complex litigation by accusing him of changing horses in midstream and shifting the focus of this case from the pursuit of a remedy for the condition of segregation 2 It does not appear that even the majority places any real weight on this consideration since it recognizes that interdistrict relief would be proper where a constitutional violation within one district produces a significant segregative effect in another district, see ante, at 744-745, thus allowing interdistrict relief to touch districts which have not themselves violated the Constitution. 790 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. within the Detroit school system to some unprincipled attempt to impose his own philosophy of racial balance on the entire Detroit metropolitan area. See ante, at 738-739. The focus of this case has always been the segrega.ted system of education in the city of Detroit. The District Court determined that interdistrict relief was necessary and appropriate only because it found that the condition of segregation within the Detroit school system could not b2 cured with a Detroit-only remedy. It is on this theory that the interdistrict relief must stand or fall. Unlike the Court, I perceive my task to be to review the District Court's order for what it is, rather than to criticize it for what it manifestly is not. II As the foregoing demonstrates, the District Court's decision to expand its desegregation decree beyond the geographical limits of the city of Detroit rested in large part on its conclusions (A) that the State of Michigan was ultimately responsible for curing the condition of segregation within the Detroit city schools, and (B) that a Detroit-only remedy would not accomplish this task. In my view, both of these conclusions are well supported by the facts of this case and by this Court's precedents. A To begin with, the record amply supports the District Court's findings that the State of Michigan, through state officers and state agencies, had engaged in purposeful acts which created or aggravated segregation in the Detroit schools. The State Board of Education, for example, prior to 1962, exercised its authority to supervise local schoolsite selection in a manner which contributed to segregation. 484 F. 2d 215, 238 (CA6 1973). Furthermore, the State's continuing authority, after 1962, MILLIKEN v. BRADLEY 791 717 MARSHALL, J., dissenting to approve school building construction plans 3 had intertwined the State with site-selection decisions of the Detroit Board of Education which had the purpose and effect of maintaining segregation. The State had also stood in the way of past efforts to desegregate the Detroit city schools. In 1970, for example, the Detroit School Board had begun implementation of its own desegregation plan for its high schools, despite considerable public and official resistance. The State Legislature intervened by enacting Act 48 of the Public Acts of 1970, specifically prohibiting implementation of the desegregation plan and thereby continuing the growing segregation of the Detroit school system. Adequate desegregation of the Detroit system was also hampered by discriminatory restrictions placed by the State on the use of transportation within Detroit. While state aid for transportation was provided by statute for suburban districts, many of which were highly urbanized, aid for intracity transportation was excepted. One of the effects of this restriction was to encourage the construction of small walk-in neighborhood schools in Detroit, thereby lending aid to the intentional policy of creating a school system which reflected, to the greatest extent feasible, extensive residential segregation. Indeed, that one of the purposes of the transportation restriction was to impede desegregation was evidenced when the Michigan Legislature amended the State Transportation Aid Act to cover intracity transportation but expressly prohibited the allocation of funds for cross-busing of students within a school district to achieve racial balance.4 Cf. North Carolina State Board of Education v. Swann, 402 U.S. 43 (1971). 3 See Mich. Comp. Laws § 388.851 (1970). 'See § 388.1179. 792 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 U.S. Also significant was the State's involvement during the 1950's in the transportation of Negro high school students from the Carver School District past a closer white high school in the Oak Park District to a more distant Negro high school in the Detroit system. Certainly the District Court's finding that the State Board of Education had knowledge of this action and had given its tacit or express approval was not clearly erroneous. Given the comprehensive statutory powers of the State Board of Education over contractual arrangements between school districts in the enrollment of students on a nonresident tuition basis, including certification of the number of pupils involved in the transfer and the amount of tuition charged, over the review of transportation routes and distances, and over the disbursement of transportation funds," the State Board inevitably knew and understood the significance of this discriminatory act. Aside from the acts of purposeful segregation committed by the State Legislature and the State Board of Education, the District Court also concluded that the State was responsible for the many intentional acts of segregation committed by the Detroit Board of Education, an agency of the State. The majority is only willing to accept this finding arguendo. See ante, at 748. I have no doubt, however, as to its validity under the Fourteenth Amendment. "The command of the Fourteenth Amendment," it should be recalled, "is that no 'State' shall deny to any person within its jurisdiction the equal protection of the laws." Cooper v. Aaron, 358 U.S. 1, 16 (1958). While a State can act only through "the officers or agents by whom its powers are exerted," Ex parte Virginia, 100 U. S. 339, 347 (1880), actions by an agent or officer of :; See §§ 388.629 and 340.600. MILLIKEN v. BRADLEY 793 717 MARSHALL, J., dissenting the State are encompassed by the Fourteenth Amendment for, "as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State." Ibid. See also Cooper v. Aaron, supra; Virginia v. Rives, 100 U. S. 313, 318 (1880); Shelley v. Kraemer, 334 U.S. 1, 14 (1948). Under Michigan law a "school district is an agency of the State government." School District of the City of Lansing v. State Board of Education, 367 Mich. 591, 600, 116 N. W. 2d 866, 870 (1962). It is "a legal division of territory, created by the State for educational purposes, to which the State has granted such powers as are deemed necessary to permit the district to function as a State agency." Detroit Board of Education v. Superintendent of Public Instruction, 319 Mich. 436,450, 29 N. W. 2d 902, 908 (1947). Racial discrimination by the school district, an agency of the State, is therefore racial discrimination by the State itself, forbidden by the Fourteenth Amendment. See, e. g., Pennsylvania v. Board of Trusts, 353 U.S. 230 ( 1957). We recognized only last Term in Keyes that it was the State itself which was ultimately responsible for de jure acts of segregation committed by a local school board. A deliberate policy of segregation by the local board, we held, amounted to "state-imposed segregation." 413 U. S., at 200. Wherever a dual school system exists, whether compelled by state statute or created by a local board's systematic program of segregation, "the State automatically assumes an affirmative duty 'to effectuate a transition to a racially nondiscriminatory school system' [and] to eliminate from the public schools within their school system 'all vestiges of state-imposed segregation.' " Ibid. ( emphasis added). Vesting responsibility with the State of Michigan for Detroit's segregated schools is particularly appropriate as 794 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 U.S. Michigan, unlike some other States, operates a single statewide system of education rather than several separate and independent local school systems. The majority's emphasis on local governmental contrcl and local autonomy of school districts in Michigan will come as a surprise to those with any familiarity with that State's system of education. School districts are not separate and distinct sovereign entities under Michigan law, but rather are " 'auxiliaries of the State,' " subject to its "absolute power." Attorney General of Michigan ex rel. Kies v. Lowrey, 199 U. S. 233, 240 (1905). The courts of the State have repeatedly emphasized that education in Michigan is not a local governmental concern, but a state function. "Unlike the delegation of other powers by the legislature to local governments, education is not inherently a part of the local self-government of a municipality . . . . Control of our public school system is a State matter delegated and lodged in the State legislature by the Constitution. The policy of the State has been to retain control of its school system, to be administered throughout the State under State laws by local State agencies organized with plenary powers to carry out the delegated functions given [ them] by the legislature." School District of the City of Lansing v. State Board of Education, supra, at 595, 116 N. W. 2d, at 868. The Supreme Court of Michigan has noted the deep roots of this policy: "It has been settled by the Ordinance of 1787, the several Constitutions adopted in this State, by its uniform course of legislation, and by the decisions of this court, that education in Michigan is a matter of State concern, that it is no part of the local selfgovernment of a particular township or munic717 MILLIKEN v. BRADLEY 795 MARSHALL, J., dissenting ipality . . . The legislature has always dictated the educational policy of the State." In re School D'istrict No. 6, 284 Mich. 132, 145-146, 278 N. W. 792, 797 (1938). The State's control over education is reflected in the fact that, contrary to the Court's implication, there is little or no relationship between school districts and local political units. To take the 85 outlying local school districts in the Detroit metropolitan area as examples, 17 districts lie in two counties, two in three counties. One district serves five municipalities; other suburban municipalities are fragmented into as many as six school districts. Nor is there any apparent state policy with regard to the size of school districts, as they now range from 2,000 to 285,000 students. Centralized state control manifests itself in practice as well as in theory. The State controls the financing of education in several ways. The legislature contributes a substantial portion of most school districts' operating hudgets with funds appropriated from the State's General Fund revenues raised through statewide taxation.G The State's power over the purse can be and is in fact used to enforce the State's powers over local districts.' In addition, although local districts obtain funds through local property taxation, the State has assumed the responsibility to ensure equalized property valuations throughout the State.8 The State also establishes 6 See § 38S.611. The State contributed an aYerage of 34% of the operating budgets of the 54 school districts included in the original proposed desegregation area. In 11 of these districts, state contributions exceeded 50% of the operating budgets. 7 See, e. g., id., § 340.575. See also 1949-1950 Report of the Attorney General 104 (Roth); Vol. 1, 1955 Report of the Attorney General 561 (Kavanagh); 1961-1962 Report of the Attorney General 533 (Kelley). 8 See Mich. Comp. Laws§§ 211.34 and 340.681. 796 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 U.S. standards for teacher certification and teacher tenure; determines part of the required curriculum; 10 sets the minimum school term; 11 approves bus routes, equipment, and drivers; 12 approves textbooks; 13 and establishes procedures for student discipline.14 The State Superintendent of Public Instruction and the State Board of Education have the power to remove local school board members from office for neglect of their duties.15 Most significantly for present purposes, the State has wide-ranging powers to consolidate and merge school districts, even without the consent of the districts themselves or of the local citizenry.16 See, e. g., Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 92 N. W. 289 (1902), aff'd, 199 U.S. 233 (1905). Indeed, recent years have witnessed an accelerated program of school district consolidat~ons, mergers, and annexations, many of which were state imposed. Whereas the State had 7,362 local districts in 1912, the number had been reduced to 1,438 in 1964 and to 738 in 1968.11 By June 1972, only 608 school districts remained. Furthermore, the State has broad powers to transfer property from one district to another, again without the consent of the local school districts affected by the transfer.18 See, e.g., School Dis- 9 § 340.569. 10 §§ 257.811 ( c), 340.361, 340.781, 340.782, 388.371. 11 § 340.575. 1 ~ § 388.1171. 13 § 340.887 ( 1). H Op. Atty. Gen. No. 4705 (July 7, 1970), 1969-1970 Report of the Attorney General. 156 (Kelley). 15 See Mich. Comp. Laws§ 340.253. 16 See generally §§ 340.401-340.415 (consolidations), 340.431- 340.449 (annexations). 17 See 1 Michigan Senate Journal, 1968, p. 423. 18 See generally Mich. Comp. Laws§§ 340.461-340.468 MILLIKEN v. BRADLEY 797 717 MARSHALL, J., dissenting trict of the City of Lansing v. State Board of Education, supra; Imlay Township District v. State Board of Education, 359 Mich. 478,102 N. \V. 2d 720 (1960). Whatever may be the history of public education in other parts of our Nation, it simply flies in the face of reality to say, as does the majority, that in Michigan, "[n]o single tradition in public education is more deeply rooted than local control over the operation of schools .... " Ante, at 741. As the State's Supreme Court has said: "We have repeatedly held that education in this State is not a matter of local concern, but belongs to the State at large." Collins v. City of Detroit, 195 Mich. 330, 335-336, 161 ~- W. 905,907 (1917). See also Sturgis v. County of Allegan, 343 Mich. 209, 215, 72 N. W. 2d 56, 59 (1955); Van Fleet v. Oltman, 244 Mich. 241, 244,221 N. W. 299,300 (1928); Child Welfare Society of Flint v. Kennedy School District, 220 Mich. 290, 296, 189 N. W. 1002, 1004 (1922). Indeed, a study prepared for the 1961 Michigan Constitutional Convention noted that the Michigan Constitution's articles on education had resulted in "the establichment of a state system of education in contrast to a series of local school systems." Elementary and Secondary Education and the Michigan Constitution, Michigan Constitutional Convention Studies 1 (1961). In sum, several factors in this case coalesce to support the District Court's ruling that it was the State of Michigan itself, not simply the Detroit Board of Education, which bore the obligation of curing the condition of segregation within the Detroit city schools. The actions of the State itself directly contributed to Detroit's segregation. Under the Fourteenth Amendment, the State is ultimately responsible for the actions of its local agencies. And, finally, given the structure of Michigan's educational system, Detroit's segregation cannot be 798 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 U.S. viewed as the problem of an independent and separate entity. Michigan operates a single statewide system of education, a substantial part of which was shown to be segregated in this case. B What action, then, could the District Court require the State to take in order to cure Detroit's condition of segregation? Our prior cases have not minced words as to what steps responsible officials and agencies must take in order to remedy segregation in the public schools. Not only must distinctions on the basis of race be terminated for the future, but school officials are also "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." Green v. County School Board of l1lew Kent County, 391 U.S. 430, 437-438 ( 1968). See also Lee v. Macon County Board of Education, 267 F. Supp. 458 (MD Ala.), aff'd sub nom. Wallace v. United States, 389 U. S. 215 ( 1967). Negro students are not only entitled to neutral nondiscriminatory treatment in the future. They must receive "what Brown I I promised them: a school system in which all vestiges of enforced racial segregation have been eliminated." W-right v. Council of the City of Empo-ria, 407 U.S. 451, 463 ( 1972). See also Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971). These remedial standards are fully applicable not only to school districts where a dual system was compelled by statute, but also where, as here, a dual system was the product of purposeful and intentional state action. See Keyes, 413 U. S., at 200-201. After examining three plans limited to the city of Detroit, the District Court correctly concluded that none would eliminate root and branch the vestiges of MILLIKEN v. BRADLEY 799 717 MARSHALL, J., dissenting unconstitutional segregation. The plans' effectiveness, of course, had to be evaluated in the context of the District Court's findings as to the extent of segregation in the Detroit city schools. As indicated earlier, the most essential finding was that Negro children in Detroit had been confined by intentional acts of segregation to a growing core of Negro schools surrounded by a receding ring of white schools.19 Thus, in 1960, of Detroit's 251 19 Despite MR. JusTICE STEWART'S claim to the contrary, ante, at 756 n. 2, of his concurring opinion, the record fully supports my statement that Negro students were intentionally confined to a core of Negro schools within the city of Detroit. See, e.g., supra, at 784-785, 790--792. Indeed, MR. JusTICE STEWART acknowledges that intentional acts of segregation by the State have separated white and Negro students within the city, and that the resulting core of all-Negro schools has grown to encompass most of the city. In suggesting that my approval of an interdistrict remedy rests on a further conclusion that the State or its political subdivisions have been responsible for the increasing percentage of Negro students in Detroit, my Brother STEWART misconceives the thrust of this dissent. In light of the high concentration of Negro students in Detroit, the District Judge's finding that a Detroit-only remedy cannot effectively cure the constitutional violation within the city should be enough to support the choice of an interdistrict remedy. Whether state action is responsible for the growth of the core of all-Negro schools in Detroit is, in my view, quite irrelevant. The difficulty with MR. JUSTICE STEWART's position is that he, like the Court, confuses the inquiry required to determine whether there has been a substantive constitutional violation with that necessary to formulate an appropriate remedy once a constitutional violation has been shown. While a finding of state action is of course a prerequisite to finding a violation, we have never held that after unconstitutional state action has been shown, the District Court at the remedial stage must engage in a second inquiry to determine whether additional state action exists to justify a particular remedy. Rather, once a constitutional violation has been shown, the District Court is duty-bound to formulate an effective remedy and, in so doing, the court is entitled-indeed, it is required-to consider all the factual circumstances relevant to the framing of an effective decree. Thus, in Swann v. Charlotte-Mecklenburg Board of Education 800 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. regular-attendance schools, 100 were 90% or more white and 71 were 90% or more Negro. In 1970, of Detroit's 282 regular-attendance schools, 69 were 90% or more white and 133 were 90% or more Negro. While in 1960, 68% of all schools were 90% or more one race, by 1970, 71.6% of the schools fell into that category. The growing core of all-Negro schools was further evidenced in total school district population figures. In 1960 the Detroit system had 46% Negro students and 54% white students, but by 1970, 64% of the students were Negro and only 36% were white. This increase in the proportion of Negro students was the highest of any major Northern city. It was with these figures in the background that the District Court evaluated the adequacy of the three Detroit-only plans submitted by the parties. Plan A, proposed by the Detroit Board of Education, desegregated the high schools and about a fifth of the middlelevel schools. It was deemed inadequate, however, because it did not desegregate elementary schools and left the middle-level schools not included in the plan more segregated than ever. Plan C, also proposed by the Detroit Board, was deemed inadequate because it too covered only some grade levels and would leave elementary schools segregated. Plan B, the plaintiffs' plan, though requiring the transportation of 82,000 pupils and the acquisition of 900 school buses, would make little we held that the District Court must take into account the existence of extensive residential segregation in determining whether a racially neutral "neighborhood school" attendance plan was an adequate desegregation remedy, regardless of whether this residential segregation was caused by state action. So here, the District Court was required to consider the facts that the Detroit school system was already predominantly Negro and would likely become all-Negro upon issuance of a Detroit-only decree in framing an effective desegregation remedy, regardless of state responsibility for this situation. MILLIKEN v. BRADLEY 801 717 MARSHALL, J., dissenting headway in rooting out the vestiges of segregation. To begin with, because of practical limitations, the District Court found that the plan would leave many of the Detroit city schools 75% to 90% Negro. More significantly, the District Court recognized that in the context of a community which historically had a school system marked by rigid de jure segregation, the likely effect of a Detroit-only plan would be to "change a school system which is now Black and White to one that would be perceived as Black .... " The result of this changed perception, the District Court found, would be to increase the flight of whites from the city to the outlying suburbs, compounding the effects of the present rate of increase in the proportion of Negro students in the Detroit system. Thus, even if a plan were adopted which, at its outset, provided in every school a 65% Negro-35% white racial mix in keeping with the Negro-white proportions of the total student population, such a system would, in short order, devolve into an all- Negro system. The net result would be a continuation of the all-Negro schools which were the hallmarks of Detroit's former dual system of one-race schools. Under our decisions, it was clearly proper for the District Court to take into account the so-called "white flight" from the city schools which would be forthcoming from any Detroit-only decree. The court's prediction of white flight was well supported by expert testimony based on past experience in other cities undergoing desegregation relief. We ourselves took the possibility of white flight into account in evaluating the effectiveness of a desegregation plan in Wright, supra, where we relied on the District Court's finding that if the city of Emporia were allowed to withdraw from the existing system, leaving a system with a higher proportion of Negroes, it "'may be anticipated that the pro802 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418U. S. portion of whites in county schools may drop as those who can register in private academies' .... " 407 U.S., at 464. One cannot ignore the white-flight problem, for where legally imposed segregation has been established, the District Court has the responsibility to see to it not only that the dual system is terminated at once but also that future events do not serve to perpetuate or re-establish segregation. See Swann, 402 U. S., at 21. See also Green, 391 U.S., at 438 n. 4; Monroe v. Board of Comm'rs, 391 U. S. 450, 459 (1968). We held in Swann, supra, that where de jure segregation is shown, school authorities must make "every effort to achieve the greatest possible degree of actual desegregation." 402 U. S., at 26. This is the operative standard re-emphasized in Davi-S v. Sclwol Comm'rs of Mobile County, 402 U. S. 33, 37 (1971). If these words have any meaning at all, surely it is that school authorities must, to the extent possible, take all practicable steps to ensure that Negro and white children in fact go to school together. This is, in the final analysis, what desegregation of the public schools is all about. Because of the already high and rapidly increasing percentage of Negro students in the Detroit system, as well as the prospect of white flight, a Detroit-only plan simply has no hope of achieving actual desegregation. Under such a plan white and Negro students will not go to school together. Instead, Negro children will continue to attend all-Negro schools. The very evil that Brown I was aimed at will not be cured, but will be perpetuated for the future. Racially identifiable schools are one of the primary vestiges of state-imposed segregation which an effective desegregation decree must attempt to eliminate. In Swann, supra, for example, we held that " ( t] he district judge or school authorities ... will thus necessarily be concerned with the elimination of one-race schools." 402 MILLIKEN v. BRADLEY 803 717 MARSHALL, J., dissenting U.S., at 26. There is "a presumption," we stated, "against schools that are substantially disproportionate in their racial composition." Ibid. And in evaluating the effectiveness of desegregation plans in prior cases, we ourselves have considered the extent to which they discontinued racially identifiable schools. See, e. g., Green v. County School Board of New Kent County, supra; Wright v. Council of the City of Empor-ia, supra. For a principal end of any desegregat:on remedy is to ensure that it is no longer "possible to identify a 'white school' or a 'Negro school.' " Swann, supra, at 18. The evil to be remedied in the dismantling of a dual system is the" [r ]acial identification of the system's schools." Green, 391 U. S., at 435. The goal is a system without white schools or Negro schools-a system with "just schools." Id., at 442. A school authority's remedial plan or a district court's remedial decree is to be judged by its effectiveness in achieving this end. See Swann, supra, at 25; Davis, supra, at 37; Green, supra, at 439. We cautioned in Swann, of course, that the dismantling of a segregated school system does not mandate any particular racial balance. 402 U. S., at 24. We also concluded that a remedy under which there would remain a small number of racially identifiable schools was only presumptively inadequate and might be justified. Id., at 26. But this is a totally different case. The flaw of a Detroit-only decree is not that it does not reach some ideal degree of racial balance or mixing. It simply does not promise to achieve actual desegregation at all. It is one thing to have a system where a small number of students remain in racially identifiable schools. It is something else entirely to have a system where all students continue to attend such schools. The continued racial identifiability of the Detroit schools under a Detroit-only remedy is not simply a reflection of their high percentage of Negro students. 804 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. What is or is not a racially identifiable vestige of de jure segregation must necessarily depend on several factors. Cf. Keyes, 413 U. S., at 196. Foremost among these should be the relationship between the schools in question and the neighboring community. For these purposes the city of Detroit and its surrounding suburbs must be viewed as a single community. Detroit is closely connected to its suburbs in many ways, and the metropolitan area is viewed as a single cohesive unit by its residents. About 40% of the residents of the two suburban counties included in the desegregation plan work in Wayne County, in which Detroit is situated. Many residents of the city work in the suburbs. The three counties participate in a wide variety of cooperative governmental ventures on a metropolitan-wide basis, including a metropolitan transit system, park authority, water and sewer system, and council of governments. The Federal Government has classified the tri-county area as a Standard Metropolitan Statistical Area, indicating that it is an area of "economic and social integration." United States v. Connecticut National Bank, ante, at 670. Under a Detroit-only decree, Detroit's schools will clearly remain racially identifiable in comparison with neighboring schools in the metropolitan community. Schools with 65% and more Negro students will stand in sharp and obvious contrast to schools in neighboring districts with less than 2% Negro enrollment. Negro students will continue to perceive their schools as segregated educational facilities and this perception will only be increased when whites react to a Detroit-only decree by fleeing to the suburbs to avoid integration. School district lines, however innocently drawn, will surely be perceived as fences to separate the races when, under a Detroit-only decree, white parents withdraw their chilMILLIKEN v. BRADLEY 805 717 MARSHALL, J., dissenting dren from the Detroit city schools and move to the suburbs in order to continue them in all-white schools. The message of this action will not escape the Negro children in the city of Detroit. See Wright, 407 U. S., at 466. It will be of scant significance to Negro children who have for years been confined by de jure acts of segregation to a growing core of all-Negro schools surrounded by a ring of all-white schools that the new dividing line between the races is the school district boundary. Nor can it be said that the State is free from any responsibility for the disparity between the racial makeup of Detroit and its surrounding suburbs. The State's creation, through de jure acts of segregation, of a growing core of all-Negro schools inevitably acted as a magnet to attract Negroes to the areas served by such schools and to deter them from settling either in other areas of the city or in the suburbs. By the same token, the growing core of all-Negro schools inevitably helped drive whites to other areas of the city or to the suburbs. As we recognized in Swann: "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. . . . [Action taken] to maintain the separation of the races with a minimum departure from the formal principles of 'neighborhood zoning' ... does more than simply influence the short-run composition of the student body . . . . 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 806 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 U.S. showing a district court may consider this in fashioning a remedy." 402 U. S., at 20-21. See also Keyes, 413 U. S., at 202. The rippling effects on residential patterns caused by purposeful acts of segregation do not automatically subside at the school district border. With rare exceptions, these effects naturally spread through all the residential neighborhoods within a metropolitan area. See id., at 202-203. The State must also bear part of the blame for the white flight to the suburbs which would be forthcoming from a Detroit-only decree and would render such a remedy ineffective. Having created a system where whites and Negroes were intentionally kept apart so that they could not become accustomed to learning together, the State is responsible for the fact that many whites will react to the dismantling of that segregated system by attempting to flee to the suburbs. Indeed, by limiting the District Court to a Detroit-only remedy and allowing that flight to the suburbs to succeed, the Court today allows the State to profit from its own wrong and to perpetuate for years to come the separation of the races it achieved in the past by purposeful state action. The majority asserts, however, that involvement of outlying districts would do violence to the accepted principle that "the nature of the violation determines the scope of the remedy." Swann, supra, at 16. See ante, at 744-745. Not only is the majority's attempt to find in this single phrase the answer to the complex and difficult questions presented in this case hopelessly simplistic, but more important, the Court reads these words in a manner which perverts their obvious meaning. The nature of a violation determines the scope of the remedy simply because the function of any remedy is to cure the violation to which it is addressed. In school segregation MILLIKEN v. BRADLEY 807 717 MARSHALL, J., dissenting cases, as in other equitable causes, a remedy which effectively cures the violation is what is required. See Green, 391 U. S., at 439; Davis, 402 U. S., at 37. No more is necessary, but we can tolerate no less. To read this principle as barring a district court from imposing the only effective remedy for past segregation and remitting the court to a patently ineffective alternative is, in my view, to turn a simple commonsense rule into a cruel and meaningless paradox. Ironically, by ruling out an interdistrict remedy, the only relief which promises to cure segregation in the Detroit public schools, the majority flouts the very principle on which it purports to rely. Nor should it be of any significance that the suburban school districts were not shown to have themselves taken any direct action to promote segregation of the races. Given the State's broad powers over local school districts, it was well within the State's powers to require those districts surrounding the Detroit school district to participate in a metropolitan remedy. The State's duty should be no different here than in cases where it is shown that certain of a State's voting districts are malapportioned in violation of the Fourteenth Amendment. See Reynolds v. Sims, 377 U. S. 533 (1964). Overrepresented electoral districts are required to participate in reapportionment although their only "participation" in the violation was to do nothing about it. Similarly, electoral districts which themselves meet representation standards must frequently be redrawn as part of a remedy for other over- and under-inclusive districts. No finding of fault on the part of each electoral district and no finding of a discriminatory effect on each district is a prerequisite to its involvement in the constitutionally required remedy. By the same logic, no finding of fault on the part of the suburban school districts in this case 808 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. and no finding of a discriminatory effect on each district should be a prerequisite to their involvement in the constitutionally required remedy. It is the State, after all, which bears the responsibility under Brown of affording a nondiscriminatory system of education. The State, of course, is ordinarily free to choose any decentralized framework for education it wishes, so long as it fulfills that Fourteenth Amendment obligation. But the State should no more be allowed to hide behind its delegation and compartmentalization of school districts to avoid its constitutional obligations to its children than it could hide behind its political subdivisions to avoid its obligations to its voters. Reynolds v. Sims, su'J)Ta, at 575. See also Gomillion v. Lightfoot, 364 U. S. 339 (1960). It is a hollow remedy indeed where "after supposed 'desegregation' the schools remained segregated in fact." Hobson v. Hansen, 269 F. Supp. 401, 495 (DDC 1967). We must do better than "'substitute ... one segregated school system for another segregated school system.' " Wright, 407 U. S., at 456. To suggest, as does the majority, that a Detroit-only plan somehow remedies the effects of de jure segregation of the races is, in my view, to make a solemn mockery of Brown l's holding that separate educational facilities are inherently unequal and of Swann's unequivocal mandate that the answer to de jure segregation is the greatest possible degree of actual desegregation. III One final set of problems remains to be considered. We recognized in Brown II, and have re-emphasized ever since, that in fashioning relief in desegregation cases, "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 MILLIKEN v. BRADLEY 809 717 MARSHALL, J., dissenting adjusting and reconciling public and private needs." Brown II, 349 U. S., at 300. See also Swann, supra. Though not resting its holding on this point, the majority suggests that various equitable considerations militate against interdistrict relief. The Court, for example, refers to financing and administrative problems, the logistical problems attending large-scale transportation of students, and the prospect of the District Court's becoming a "de facto 'legislative authority' " and " 'school superintendent' for the entire area." Ante, at 743-744. The entangling web of problems woven by the Court, however, appears on further consideration to be constructed of the flimsiest of threads. I deal first with the last of the problems posed by the Court-the specter of the District Court qu,a "school superintendent" and "legislative authority"-for analysis of this problem helps put the other issues in proper perspective. Our cases, of course, make clear that the initial responsibility for devising an adequate desegregation plan belongs with school authorities, not with the District Court. The court's primary role is to review the adequacy of the school authorities' efforts and to substitute its own plan only if and to the extent they default. See Swann, 402 U. S., at 16; Green, 391 U. S., at 439. Contrary to the majority's suggestions, the District Judge in this case consistently adhered to these procedures and there is every indication that he would have continued to do so. After finding de jure segregation the court ordered the parties to submit proposed Detroitonly plans. The state defendants were also ordered to submit a proposed metropolitan plan extending beyond Detroit's boundaries. As the District Court stated, "the State defendants ... bear the initial burden of coming forward with a proposal that promises to work." The state defendants defaulted in this obligation, however. 810 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418 u. s. Rather than submit a complete plan, the State Board of Education submitted six proposals, none of which was in fact a desegregation plan. It was only upon this default that the District Court began to take steps to develop its own plan. Even then the District Court maximized school authority participation by appointing a panel representing both plaintiffs and defendants to develop a plan. Pet. App. 99a-100a. Furthermore, the District Court still left the state defendants the initial responsibility for developing both interim and final financial and administrative arrangements to implement interdistrict relief. Id .. at 104a-105a. The Court of Appeals further protected the interests of local school authorities by ensuring that the outlying suburban districts could fully participate in the proceedings to develop a metropolitan remedy. These processes have not been allowed to run their course. No final desegregation plan has been proposed by the panel of experts, let alone approved by the District Court. We do not know in any detail how many students will be transported to effect a metropolitan remedy, and we do not know how long or how far they will have to travel. No recommendations have yet been submitted by the state defendants on financial and administrative arrangements. In sum, the practicality of a final metropolitan plan is simply not before us at the present time. Since the State and the panel of experts have not yet had an opportunity to come up with a workable remedy, there is no foundation for the majority's suggestion of the impracticality of interdistrict relief. Furthermore, there is no basis whatever for assuming that the District Court will inevitably be forced to assume the role of legislature or school superintendent.20 20 In fact, the District Court remarked "that this court's task is to enforce constitutional rights not to act as a schoolmaster; the MILLIKEN v. BRADLEY 811 717 MARSHALL, J., dissenting Were we to hold that it was its constitutional duty to do so, there is every indication that the State of Michigan would fulfill its obligation and develop a plan which is workable, administrable, financially sound, and, most important, in the best interest of quality education for all of the children in the Detroit metropolitan area. Since the Court chooses, however, to speculate on the feasibility of a metropolitan plan, I feel constrained to comment on· the problem areas it has targeted. To begin with, the majority's questions concerning the practicality of consolidation of school districts need not give us pause. The State clearly has the power, under existing law, to effect a consolidation if it is ultimately determined that this offers the best prospect for a workable and stable desegregation plan. See supra, at 796-797. And given the 1,000 or so consolidations of school districts which have taken place in the past, it is hard to believe that the State has not already devised means of solving most, if not all, of the practical problems which the Court suggests consolidation would entail. Furthermore, the majority ignores long-established Michigan procedures under which school districts may enter into contractual agreements to educate their pupils in other districts using state or local funds to finance nonresident education.21 Such agreements could form an court's task is to protect the constitutional rights here found violated with as little intrusion into the education process as possible. The court's objective is to establish the minimum constitutional framework within which the system of public schools may operate now and hereafter in a racially unified, non-discriminatory fashion. Within that framework the body politic, educators, parents, and most particularly the children must be given the maximum opportunity to experiment and secure a high quality, and equal, educational opportunity." Pet. App. 82a. 21 See, e. g., Mich. Comp. Laws §§ 340.69, 340.121 (d), 340.359, 340.582, 340.582a, 340.590. 812 OCTOBER TERM, 1973 MARSHALL, J., dissenting 418U. S. easily administrable framework for interdistrict relief short of outright consolidation of the school districts. The District Court found that interdistrict procedures like these were frequently used to provide special educational services for handicapped children, and extensive statutory provision is also made for their use in vocational education.22 Surely if school districts are willing to engage in interdistrict programs to help those unfortunate children crippled by physical or mental handicaps, school districts can be required to participate in an interdistrict program to help those children in the city of Detroit whose educations and very futures have been crippled by purposeful state segregation. Although the majority gives this last matter only fleeting reference, it is plain that one of the basic emotional and legal issues underlying these cases concerns the propriety of transportation of students to achieve desegregation. While others may have retreated from its standards, see, e. g., Keyes, 413 U. S., at 217 (PowELL, J., concurring in part and dissenting in part), I continue to adhere to the guidelines set forth in Swann on this issue. See 402 U. S., at 29-31. And though no final desegregation plan is presently before us, to the extent the outline of such a plan is now visible, it is clear that the transportation it would entail will be fully consistent with these guidelines. First of all, the metropolitan plan would not involve the busing of substantially more students than already ride buses. The District Court found that, statewide, 35%--40% of all students already arrive at school on a bus. In those school districts in the tri-county Detroit metropolitan area eligible for state reimbursement of transportation costs, 42%- 52% of all students rode buses to school. In the tri-county areas as a whole, ap- 22 See id., §§ 340.330-340.330u. MILLIKEN v. BRADLEY 813 717 MARSHALL, J., dissenting proximately 300,000 pupils arrived at school on some type of bus, with about 60,000 of these apparently using regular public transit. In comparison, the desegregation plan, according to its present rough outline, would involve the transportation of 310,000 students, about 40% of the population within the desegregation area. With respect to distance and amount of time traveled, 17 of the outlying school districts involved in the plan are contiguous to the Detroit district. The rest are all within 8 miles of the Detroit city limits. The trial court, in defining the desegregation area, placed a ceiling of 40 minutes one way on the amount of travel time, and many students will obviously travel for far shorter periods. As to distance, the average statewide bus trip is 8½ miles one way, and in some parts of the tri-county area, students already travel for one and a quarter hours or more each way. In sum, with regard to both the number of students transported and the time and distances involved, the outlined desegregation plan "compares favorably with the transportation plan previously operated .... " Swann, supra, at 30. As far as economics are concerned, a metropolitan remedy would actually be more sensible than a Detroit-only remedy. Because of prior transportation aid restrictions, see supra, at 791, Detroit largely relied on public transport, at student expense, for those students who lived too far away to walk to school. Since no inventory of school buses existed, a Detroit-only plan was estimated to require the purchase of 900 buses to effectuate the necessary transportation. The tri-county area, in contrast, already has an inventory of 1,800 buses, many of which are now under-utilized. Since increased utilization of the existing inventory can take up much of the increase in transportation involved in the interdistrict remedy, the District Court found that only 350 additional buses would 814 OCTOBER TERM, 1973 MARSHALL, J ., dissenting 418 U.S. probably be needed, almost two-thirds fewer than a De,- troit-only remedy. Other features of an in terdistrict remedy bespeak its practicality, such as the possibility of pairing up Negro schools near Detroit's boundary with nearby white schools on the other side of the present school district line. Some disruption, of course, is the, inevitable product of any desegregation decree, whether it operates within one district or on an interdistrict basis. As we said in Swann, however: "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. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided .... " 402 U. S., at 28. Desegregation is not and was never expected to be an easy task. Racial attitudes ingrained in our Nation's childhood and adolescence are not quickly thrown aside in its middle years. But just as the inconvenience of some cannot be allowed to stand in the way of the rights of others, so public opposition, no matter how strident, cannot be permitted to divert this Court from the enforcement of the constitutional principles at issue in this case. Today's holding, I fear, is more a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution's guarantee of equal justice than it is the product of neutral principles of law. In MILLIKEN v. BRADLEY 815 717 MARSHALL, J., dissenting the short run, it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two cities-one white, the other black-but it is a course, I predict, our people will ultimately regret. I dissent. REPORTER'S NOTE The next page is purposely numbered 901. The numbers between 815 and 901 were intentionally omitted, in order to make it possible to publish the orders in the current preliminary print of the United States Reports with permanent page numbers, thus making the official citations immediately available. ORDERS FROM JUNE 21 THROUGH JULY 25, 1974 JUNE 21, 1974 Dismissal Under Rule 60 No. 73-1755. NEw YORK TYPOGRAPHICAL UNION No. 6 ET AL. v. NEw YORK TIMES Co. Ct. App. N. Y. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court. Miscellaneous Order No. A-1204. RAPIDES PARISH POLICE JURY ET AL. v. JOHN BRADAS ET AL. Application for stay of judgment of the United States District Court for the Western District of Louisiana pending appeal to the United States Court of Appeals for the Fifth Circuit, presented to MR. JUSTICE POWELL and by him referred to the Court, denied. MR. JUSTICE DouGLAS took no part in the consideration or decision of this application. JUNE 24, 1974 Affirmed on Appeal No. 73-499. DILLENBURG v. KRAMER, SECRETARY OF STATE OF WASHINGTON, ET AL. Affirmed on appeal from D. C. W. D. Wash. MR. JusTICE DouGLAS would note probable jurisdiction and set case for oral argument. No. 73-521. WEINBERGER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. BEATY. Appeal from C. A. 5th Cir. Motion of appellee for leave to proceed in forma 901 902 OCTOBER TERM, 1973 June 24, 1974 418 U.S. pauperis granted. Judgment affirmed. MR. JUSTICE REHNQUIST would note probable jurisdiction and set case for oral argument. Reported below: 478 F. 2d 300. Vacated and Remanded on Appeal No. 73-5598. NoRTON, A MINOR, BY CHILES v. WEINBERGER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE. Appeal from D. C. Md. Motion of appellant for leave to proceed in forma pauperis granted. Judgment vacated, and case remanded for further consideration in light of Jimenez v. Weinberger, 417 U. S. 628 (1974). Reported below: 352 F. Supp. 596. Certiorari Granted-Vacated and Remanded No. 73-289. MICHELMAN, TRUSTEE IN BANKRUPTCY v. K1NGswooo ET ux. C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Kokoszka v. Belford, 417 U. S. 642 (1974). Reported below: 470 F. 2d 996. No. 73--877. LOCAL 2150, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL--CIO v. NATIONAL LABOR RELATIONS BoARD ET AL. C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Florida Power & Light Co. v. International Brotherhood of Electrical Workers, Local 641, 417 U. S. 790 (1974). Reported below: 486 F. 2d 602. No. 73-1209. UNITED STATES BoARD OF PAROLE v. AMAYA. C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Warden v. Marrero, 417 U. S. 653 (1974). MR. JUSTICE DOUGLAS and MR. JUSTICE BLACKMUN would grant certiorari and affirm the judgment for ORDERS 903 418 U.S. June 24, 1974 the reasons stated in MR. JusTICE BLACKMUN's dissenting opinion in Warden v. Marrero, 417 U. S. 653, 664 (1974). Reported below: 486 F . 2d 940. No. 73-1404. McLAUGHLIN, WARDEN, ET AL. v. PRIETO ET AL. C. A. 4th Cir. Motion of respondent Prieto for leave to proceed in forma pauper-is granted. Certiorari granted, judgment vacated, and case remanded for consideration in light of Warden v. Marrero, 417 U. S. 653 (1974). MR. JUSTICE DOUGLAS and MR. JUSTICE BLACKMUN would grant certiorari and affirm the judgment for the reasons stated in MR. JusTICE BLACKMUN's dissenting opinion in Warden v. Marrero, 417 U.S. 653, 664 (1974). Reported below: 486 F. 2d 541. Miscellaneous Orders No. A-1190. ScATA v. UNITED STATES. Application for stay of mandate of the United States Court of Appeals for the Fifth Circuit presented to MR. JUSTICE DOUGLAS, and by him referred to the Court, denied. MR. JusTICE DouGLAS took no part in the consideration or decision of this application. Reported below: 492 F. 2d 1100. No. 48, Orig. MISSISSIPPI v. ARKANSAS, 415 U.S. 289. It is ordered that the State of Arkansas file a response to the request of the State of Mississippi for more specific boundary line descriptions on or before July 24, 1974. MR. JusTICE DouGLAS took no part in the consideration or decision of this matter. No. 73-235. DEFUNIS ET AL. V. ODEGAARD ET AL., 416 U. S. 312. Motion of respondents to retax costs granted. MR. JUSTICE DouGLAS took no part in the consideration or decision of this motion. 904 OCTOBER TERM, 1973 June 24, 1974 418 u. s. No. 73-822. FRY ET AL. v. UNITED STATES. Temp. Emerg. Ct. App. [Certiorari granted, 415 U. S. 912.] Consideration of motion to dismiss writ of certiorari deferred to hearing of case on the merits. No. 73--1210. INTERSTATE COMMERCE COMMISSION v. OREGON PACIFIC INDUSTRIES, INc., ET AL. Appeal from D. C. Ore. [Probable jurisdiction noted, 416 U. S. 968.] Motion of Western Railroad Traffic Assn. for leave to file a brief as amicus curiae granted. No. 73-1766. UNITED STATES v. NIXON, PRESIDENT OF THE UNITED STATES, ET AL. [Certiorari granted, 417 U. S. 927]; and No. 73--1834. NIXON , PRESIDENT OF THE UNITED STATES v. UNITED STATES. Petition for certiorari before judgment by C. A. D. C. Cir. [Certiorari granted, 417 U. S. 960.] Consideration of motion of counsel for the President for disclosure and transmittal of grand jury matters deferred to hearing of cases on the merits. MR. JUSTICE REHNQUIST took no part in the consideration of this matter. Probable Jurisdiction Postponed No. 73-1346. McLucAs, SECRETARY OF THE Am FoRcE, ET AL. v. DECHAMPLAIN. Appeal from D. C. D. C. Further consideration of question of jurisdiction postponed to hearing of case on the merits. Reported below: 367 F. Supp. 1291. Certiorari Denied No. 73-324. CLASS OF COUNTY CLERKS AND REGISTRARS oF VOTERS OF CALIFORNIA v. RAMIREZ ET AL. Sup. Ct. Cal. Certiorari denied. Reported below: 9 Cal. 3d 199, 507 P. 2d 1345. No. 73--549. BELL SUPERVISORS PROTECTIVE AssN. v. NATIONAL LABOR RELATIONS BOARD ET AL. C. A. D. C. ORDERS 905 418 U.S. June 24, 1974 Cir. Certiorari denied. Reported below: 159 U.S. App. D. C. 242 and 272, 487 F. 2d 1113 and 1143. No. 73-1024. CALIFORNIA NEWSPAPERS, INc., DBA SAN RAFAEL INDEPENDENT JOURNAL v. SAN FRANCISCO TYPOGRAPHICAL UNION No. 21, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO; and No. 73-1199. NATIONAL LABOR RELATIONS BOARD V. SAN FRANCISCO TYPOGRAPHICAL UNION No. 21, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, ET AL. C. A. 9th Cir. Certiorari denied. Reported below: 486 F. 2d 1347. No. 73-1397. CALIFORNIA v. WELTON. App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari denied. No. 73-5860. ARIAS v. UNITED STATES. C. A. 7th Cir. Certiorari denied. Reported below: 484 F. 2d 577. No. 73-6179. CAMERON v. NORTH CAROLINA. Sup. Ct. N. C. Certiorari denied. Reported below: 284 N. C. 165, 200 S. E. 2d 186. No. 73-6617. ToPOROFF v. JusTICES OF THE SUPREME CouRr OF NEw YoRK, FrnsT JumcIAL DISTRICT, ET AL. C. A. 2d Cir. Certiorari denied. Reported below: 490 F. 2d 1406. No. 73- 5547. HuouEz v. CALIFORNIA. Ct. App. Cal., 2d App. Dist. Certiorari denied. MR. JUSTICE DouGLAS and MR. JUSTICE BLACKMUN would grant certiorari. No. 73-6319. MEEKS v. ILLINOIS. App. Ct. Ill., 1st Dist. Certiorari denied. MR. JusTICE DOUGLAS would grant certiorari. Reported below: 11 Ill. App. 3d 973, 297 N. E. 2d 705. 906 OCTOBER TERM. 1973 .June 25, July 5, 8, 1974 JUNE 25, 1974 Miscellaneous Order 418 U.S . No. A-1220. CALLEY v. CALLAWAY, SECRETARY OF THE ARMY, ET AL. C. A. 5th Cir. Application to recall and stay mandate of the United States Court of Appeals for the Fifth Circuit pending applicant's petition for rehearing en bane in that court, presented to MR. JusTICE POWELL and by him referred to the Court, denied. MR. JusTICE DOUGLAS took no part in the consideration or decision of this application. Reported below: 496 F. 2d 701. JULY 5, 1974 Dismissal Under Rule 60 No. 73-6840. ELLISON v. UNITED STATES. C. A. 5th Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court. Reported below: 493 F. 2d 1404. JULY 8, 1974 Affirmed on Appeal No. 70-102. CAHN, DISTRICT ATTORNEY OF NASSAU COUNTY, ET AL. v. LONG ISLAND VIETNAM MORATORIUM COMMITTEE ET AL. Affirmed on appeal from C. A. 2d Cir. MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST dissent and would reverse judgment for the reasons stated in MR. JusTICE REHNQUisr's dissenting opinion in Spence v. Washington, ante, p. 416. Reported below: 437 F. 2d 344. [See also No. 70- 102, Gwathmey v. Town of East Hampton, infra.] No. 73-1222. TrnEWATER OIL Co. v. UNITED STATES ET AL.; and No. 73-1224. PHILLIPS PETROLEUM Co. v. UNITED STATES ET AL. Affirmed on appeal from D. C. C. D. Cal. Reported below: 367 F. Supp. 1226. 418 u. s. Appeals Dismissed ORDERS July 8, 1974 907 No. 72-1439. VANSLYKE v. TEXAS. Appeal from Ct. Crim. App. Tex. dismissed for want of substantial federal question. Reported below: 489 S. W. 2d 590. No. 73--1366. WESTON v. ARKANSAS. Appeal from Sup. Ct. Ark. dismissed for want of jurisdiction. MR. JUSTICE DouGLAS would reverse on the basis of his dissenting opinion in Gertz v. Robert Welch, Inc., ante, p. 355. Reported below: 255 Ark. 567, 501 S. W. 2d 622. Vacated and Remanded on Appeal No. 70-102. GwATHMEY v. TowN OF EAST HAMPTON. Appeal from C. A. 2d Cir. Judgment vacated and case remanded for further consideration in light of Younger v. Harris, 401 U.S. 37 (1971), and Samuel.s v. Mackell, 401 U.S. 66 (1971). MR. JusTICE DouGLAS would affirm the judgment for the reasons stated in his dissenting opinion in Younger v. Harris, 401 U.S. 37, 58 (1971). Reported below: 437 F. 2d 351. [See also No. 70-102, Cahn v. Long Island Vietnam Moratorium Committee, supra.] No. 73-380. SUTHERLAND ET AL. v. ILLINOIS. Appeal from App. Ct. Ill., 3d Dist. Judgment vacated and case remanded for further consideration in light of Spence v. Washington, ante, p. 405, and Smith v. Goguen, 415 U.S. 566 (1974). THE CHIEF JUSTICE, MR. JU:STICE WHITE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST dissent and, without further briefing and oral argument, would affirm the judgment. Reported below: 9 Ill. App. 3d 824, 292 N. E. 2d 746. No. 73-574. FARRELL v. lowA. Appeal from Sup. Ct. Iowa. Judgment vacated and case remanded for further consideration in light of Spence v. Washington, ante, p. 405. THE CHIEF JUSTICE, MR. JUSTICE WHITE, MR. JusTICE BLACKMUN, and MR. JusTICE REHNQUIST dissent and, without further briefing and oral argument, 908 OCTOBER TERM, 1973 July 8, 1974 418U. S. would affirm the judgment. Reported below: 209 N. W. 2d 103. Certiorari Granted-Vacated and Remanded No. 72--1359. HEFFERNAN v. THOMS. C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Spence v. Washington, ante, p. 405, and Steffel v. Thompson, 415 U. S. 452 (1974). MR. JUSTICE WHITE and MR. JusTICE REHNQUIST di~ent and, without further briefing and oral argument, would reverse the judgment for the reasons stated in Part I of MR. JusTICE WHITE'S dissenting opinion in Smith v. Goguen, 415 U. S. 566, 591 (1974), and in MR. JusTICE REHNQUIS'r's dissenting opinion in Spence v. Washington, ante, p. 416. Reported below: 473 F. 2d 478. No. 72-1509. PORTER v. GuAM PUBLICATIONS, lNc., ET AL. C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Gertz v. Robert Welch, Inc., ante, p. 323. MR. JusTICE WHITE would affirm the judgment on the ground that the publication was privileged under the laws of Guam. Reported below: 475 F. 2d 744. No. 73--787. GROSSMAN v. STRIEPEKE, SHERIFF. C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Taylor v. Hayes, ante, p. 488. No. 73-1247. BAXTER ET AL. v. PALMIGIANO. C. A. 1st Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and ca.se remanded for further consideration in light of Wolff v. McDonnell, ante, p. 539. Reported below: 487 F. 2d 1280. 418 u. s. ORDERS July 8, 1974 909 No. 73-1335. TRAVISONo, CORRECTIONS DIRECTOR, ET AL. v. GOMES ET AL. C. A. 1st Cir. Motion of respondents for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Wolff v. McDonnell, ante, p. 539. Reported below: 490 F. 2d 1209. No. 73-1533. UNITED STATES v. HoPKINS. C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Dorszynski v. United States, ante, p. 424. Reported below: 491 F. 2d 1127 and 1133. Miscellaneous Order No. 73-1766. UNITED STATES v. NIXON, PRESIDENT OF THE UNITED STATES, ET AL.; and No. 73-1834. NrxoN, PRESIDENT OF THE UNITED STATES v. UNITED STATES. Petitions for certiorari before judgment to C. A. D. C. Cir. [Certiorari granted, 417 U. S. 927 and 960.J Motion of American Civil Liberties Union for leave to file a brief as amicus curiae in No. 73- 1766 granted. Motion of respondent Strachan in No. 73-1766 for leave to participate in oral argument denied. Probable Jurisdiction Noted No. 73-1309. BIGELOW v. VIRGINIA. Appeal from Sup. Ct. Va. Probable jurisdiction noted. Reported below: 214 Va. 341,200 S. E. 2d 680. Certiorari Granted No. 73-5520. CANTRELL ET AL. v. FOREST CITY PUBLISHING Co. ET AL. C. A. 6th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Reported below: 484 F. 2d 150. 910 Certiorari Denied OCTOBER TERM, 1973 July 8, 9, 1974 418 U.S. No. 73-1052. BuCKLEY v. CALIFORNIA. Sup. Ct. Cal. Certiorari denied. Reported below: 10 Cal. 3d 237, 514 P. 2d 1201. No. 73-6374. FERGUSON v. UNITED STATES. Ct. App. D. C. Certiorari denied. No. 73-6470. GoMES ET AL. v. TRAVISONO, CORRECTIONS DIRECTOR, ET AL. C. A. 1st Cir. Certiorari denied. Reported below: 490 F. 2d 1209. No. 73-1584. BENSINGER, CORRECTIONS DIRECTOR, ET AL. v. BACH. C. A. 7th Cir. Motion of respondent for leave to proceed in f:1rma pauper-is granted. Certiorari denied. JULY 9, 1974 Miscellaneous Orders No. A-1146. WARM SPRINGS DAM TASK FoRcE ET AL. v. GRIBBLE ET AL. D. C. N. D. Cal. Motion of Sonoma County Water Agency et al. to vacate stay heretofore granted by MR. JUSTICE DouGLAS on June 17, 1974, denied. No. A-1212. WEAVER, DIRECTOR, DEPARTMENT OF PUBLIC Arn OF ILLINOIS, ET AL. v. WILSON ET AL. C. A. 7th Cir. Motion of respondent to vacate stay heretofore granted by MR. JUSTICE REHNQUIST on June 20, 1974, denied. Reported below: 499 F. 2d 155. No. A-1250 (73-1413). STAATS, CoMPTIWLLER GENERAL, ET AL. V. AMERICAN CIVIL LIBERTIES UNION, INC., ET AL. Appeal from D. C. D. C. [Probable jurisdiction noted, 417 U. S. 944.] Application for stay of order of the United States District Court for the District of Columbia pending final disposition of this case, presented to THE CHIEF JusTICE and by him referred to the Court, granted. ORDERS 911 418U.S. July 9, 11, 22, 25, 1974 No. A-1272. MINNESOTA ET AL. v. RESERVE MINING Co. ET AL. Application to vacate stay order of United States Court of Appeals for the Eighth Circuit, presented to MR. JUSTICE BLACKMUN and by him referred to the Court, denied. MR. JusTICE DOUGLAS would grant the application. Reported below: See 498 F. 2d 1073. JULY 11, 1974 Dismissal Under Rule 60 No. 73-6770. TERRY v. UNITED STATES. C. A. 9th Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court. JULY 22, 1974 Dismissals Under Rule 60 No. 73-467. BERRY v. NATIONAL BROADCASTING Co., INC. C. A. 8th Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court. Reported below: 480 F. 2d 428. No. 73-6879. CARTER v. KERN, SHERIFF. C. A. 5th Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court. No. 73-6919. CARTER v. CouRT OF CRIMINAL APPEALS OF TEXAS. Motion for leave to file petition for writ of mandamus and/ or prohibition dismissed under Rule 60 of the Rules of this Court. J ULY 25, 1974 Appeals Dismissed No. 73-1280. WATKINS v. SouTH CAROLINA. Appeal from Sup. Ct. S. C. dismissed for want of substantial federal question. MR. J USTICE DouGLAS, being of the view that any state ban on obscenity is prohibited by the First 912 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 u. s. Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 ( 1973) (DouGLAS, J., dissenting)), would note jurisdiction and reverse the judgment. Reported below: 262 S. C. 178,203 S. E. 2d 429. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JusTICE MARSHALL join, dissenting. Appellant was convicted after a jury trial in the Fourth Judicial Circuit of South Carolina (Darlington County) on charges of feloniously exhibiting an obscene motion picture film in violation of the Code of Laws of South Carolina § 16-414.2 (Supp. 1973), which provides: "It shall be unlawful for any person knowingly to send or cause to be sent, or to bring or cause to be brought into South Carolina for sale or distribution, or to prepare, publish, print, exhibit, distribute, or to offer to distribute in the State, or to have in his possession with intent to distribute, or to exhibit or to offer to distribute, any obscene matter." As used in that section, "(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 among which is a shameful or morbid interest in nudity, sex or excretion, and which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is to be distributed to minors under sixteen years of age, predominant appeal shall be judged with reference to such class of minors. "(b) 'Matter' means any book, magazine, newspaper or other printed or written material or any pie911 ORDERS 913 BRENNAN, J., dissenting ture, drawing, photograph, motion picture or other pictorial representation or any statute [sic] or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other article, equipment, machine or material. " ( c) 'Distribute' means to transfer possession of, whether with or without consideration. "(d) The word 'knowingly' as used herein means having knowledge of the contents of the subject matter or failing after reasonable opportunity to exercise reasonable inspection which would have disclosed the character of such subject matter." S. C. Code Ann.§ 16--414.1 (Supp. 1973). The Supreme Court of South Carolina affirmeci, 259 S. C. 185, 191 S. E. 2d 135 ( 1972). On appeal to this Court, the judgment of the Supreme Court of South Carolina was vacated and the case remanded for reconsideration in light of Miller v. California, 413 U. S. 15 (1973). 413 U.S. 905. On remand, the Supreme Court of South Carolina again affirmed the conviction. 262 S. C. 178, 203 S. E. 2d 429. It is my view 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." Paris Adult Theatre Iv. Slaton, 413 U.S. 49, 113 (1973) (BRENNAN, J., dissenting). Since it is clear that, when tested by that constitutional standard, the word "obscene" in §§ 16- 414.1 and 16- 414.2 is constitutionally overbroad and therefore facially invalid, I disagree with the holding that the appeal does not present a substantial federal question, and therefore dissent from the Court's dismissal of the appeal. 914 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 u. 8. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47 (1973), and because the judgment of the Supreme Court of South Carolina was rendered after Miller, I would reverse. In that circumstance, I have no occasion to consider whether the other questions presented plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (BRENNAN, J., dissenting). Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, ante, p. 153, its dismissal is improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the appellant did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Appellant has thus never been provided the independent judicial review to which the Court held him entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review. Finally, it does not appear from the jurisdictional statement and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause, appellant mus.t be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether appellant 418 u. s. ORDERS July 25, 1974 915 should be afforded a new trial under local" community standards. No. 73-1508. MILLER v. CALIFORNIA. Appeal from App. Dept., Super. Ct. Cal., County of Orange, dismissed for want of substantial federal question. MR. JusTICE DouGLAS, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre Iv. Slaton, 413 U.S. 49, 70 (1973) (DOUGLAS, J., dissenting)), would note jurisdiction and reverse the judgment. MR. Jus'l'ICE BRENNAN, with i.vhom MR. JUSTICE STEWART and MR. JusTICE MARSHALL join, dissenting. Appellant was convicted in the Orange County, California, Superior Court of distributing obscene matter in violation of California Penal Code § 311.2 (1970), which provides in pertinent part as follows: "Every person who knowingly sends or . . . possesses ... with intent to distribute or to exhibit to others, . . . any obscene matter is guilty of a misdemeanor." "Obscene mat-ter" is defined in § 311 (a), which provides in pertinent part as follows: " 'Obscene matter' means 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 1s utterly without redeeming social importance." 916 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 U.S. The Appellate Department of the Superior Court affirmed, and this Court vacated the judgment of that court and remanded the case for reconsideration in light of this Court's opinion. 413 U.S. 15 (1973). The Appellate Department again affirmed. It is my view 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." Par-is Adult Theatre Iv. Slaton, 413 U.S. 49, 113 (1973) (BRENNAN, J., dissenting). Since it is clear that, when tested by that constitutional standard, the term "obscene matter" in § 311.2, as defined in§ 311 (a) is unconstitutionally overbroad and therefore facially invalid, I disagree with the holding that the appeal does not present a substantial federal question, and therefore dissent from the Court's dismissal of the appeal. For the reasons stated in my dissent in this case, 413 U. S., at 47, and because the second judgment of the Appellate Department of the California Superior Court was, of course, rendered thereafter, I would reverse. In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (BRENNAN, J., dissenting). Finally, it does not appear from the jurisdictional statement and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause, appellant must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction 418 U.S. ORDERS July 25, 1974 917 has ultimately come to depend. Thus, eveJJ on its own terms, the Court should vacate the judgment below and remand for a determination whether appellant should be afforded a new trial under local community standards. Certiorari Granted-Vacated and Remanded No. 73-844. TRINKLER v. ALABAMA. Ct. Crim. App. Ala. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Hamling v. United States, ante, p. 87, and Jenkins v. Georgia, ante, p. 153. MR. JusTICE DOUGLAS, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth ( see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 ( 1973) (DouGLAS, J., dissenting)), would grant certiorari and reverse the judgment. Reported below: 50 Ala. App. 735, 282 So. 2d 344. MR. JusncE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting. Petitioner was convicted in the Circuit Court of Montgomery County, Alabama, of selling allegedly obscene matter in violation of Title 14, § 374 ( 4), Code of Alabama (Supp. 1973), which provides in pertinent part as follows: "Every person who, with knowledge of its contents, ... sells ... any obscene printed or written matter ... shall be guilty of a misdemeanor .... " "Obscene," for purposes of § 374 ( 4), is defined in § 374 (3) as meaning "lewd, lascivious, filthy and pornographic and that to the average person, applying contemporary community standards, its dominant theme taken as a whole appeals to prurient interest." The Alabama Court of Criminal Appeals affirmed the conviction. 50 Ala. App. 735, 282 So. 2d 344. 918 OCTOBER TERM, 1973 July 25, 1974 418 U.S. It is my view 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." Pari,s Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (BRENNAN, J., dissenting). It is clear that, tested by that constitutional standard, § 374 ( 4), as it incorporates the definition of "obscene" in § 374 (3), is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissenting opinion in Miller v. California, 413 U . S. 15, 47 ( 1973), I would therefore grant certiorari, vacate the judgment of the Alabama Court of Criminal Appeals, and remand for further proceedings not inconsistent with my Paris Adult Theatre I dissent.* In that circumstance, I have no occasion to consider at this time whether the other questions presented in the petition merit plenary review. See Heller v. N ew York, 413 U. S. 483, 494 (1973) (BRENNAN, J., rl.issenting). No. 73-1430. BOARD OF EDUCATION OF JEFFERSON COUNTY, KENTUCKY, ET AL. V. NEWBURG AREA COUNCIL, INC., ET AL.; No. 73-1431. BoARD OF EDUCATION OF LOUISVILLE, KENTUCKY, ET AL. v. HAYCRAFT ET AL.; and No. 73-1445. BOARD OF EDUCATION OF ANCHORAGE, KENTUCKY, ET AL. v. HAYCRAFT ET AL. C. A. 6th Cir. Petitions for writs of certiorari granted. Judgments vacated and cases remanded for further consideration in light of Milliken v. Bradley, ante, p. 717. MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, * Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits. 418 U.S. ORDERS July 25, 1974 919 and MR. JusTICE MARSHALL would grant certiorari and, without further briefing or oral argument, would affirm the judgments. Reported below: 489 F. 2d 925. Miscellaneous Orders No. A-1265 (73-2014). MISSOURI PORTLAND CEMENT Co. v. CARGILL, INC. C. A. 2d Cir. Motion of respondent to vacate stay heretofore entered by MR. JUSTICE DouGLAS on July 12, 1974, granted. MR. JusTICE BLACKMUN took no part in the consideration or decision of this motion. Reported below: 498 F. 2d 851. MR. JUSTICE DouGLAS, dissenting. Cargill, desirous of acquiring control of petitioner, made a cash off er for all of petitioner's common stock. Petitioner thereupon filed this suit in the United States District Court for the Southern District of New York to enjoin that tender offer, alleging that acquisition of control of petitioner would violate § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18. That court issued the injunction stating in a detailed opinion its view that the acquisition of stock control by Cargill raises serious antitrust issues. The sole question here is whether Cargill's attempts to take over Missouri Portland will be enjoined, pending the outcome of a trial on the merits of Missouri Portland's claim that a merger of these two companies would violate the antitrust laws. The District Court granted such an injunction, 375 F. Supp. 249, but the Court of Appeals reversed. 498 F. 2d 851. Missouri Portland sought and received a stay of the Court of Appeals' mandate, thus reinstituting the injunction issued by the District Court. Today the Court vacates that stay. The Court treats the case as if we were in the sensitive First Amendment field where relatively minor restraints may have a "chilling" effect on an important constitu920 OCTOBER TERM, 1973 DouGLAS, J., dissenting 418 U.S. tional right. But as I read the Constitution and Bill of Rights, a corporation has no constitutional right to merge, consolidate, or acquire the assets of another company. The old Court in the days of "substantive due process" built an expansive corporate Bill of Rights by reading "liberty" in the Due Process Clause of the Fifth Amendment as including the "liberty" to exploit people, our resources, and our environment. The Court trifles with the antitrust laws when it vacates a stay that only requires Cargill to wait until there is a ruling on the merits before it swallows up Missouri Portland. What the Court does today is a shocking example of the disregard of law to please the management of huge conglomerates. Denial of a stay means a decision on the merits. For once the companies and their personnel are mixed, the momentum to complete the acquisition is almost irresistible. By careless neglect we actually decide that what appears to be a monstrous violation of the law may go on unremedied. I The Court of Appeals did not hold that the findings of the District Court were "clearly erroneous." The Court of Appeals considered the issue on the merits to be frivolous and only required Cargill to agree to hold the assets of Missouri Portland in a separate corporation or division so that it can be divested under any subsequent decree of the Court. But that misses the whole point, as I will make clear. II Missouri Portland is the Nation's 20th largest producer of Portland cement with 2% of the national capacity and 8% in the 11-state region it serves. The District Court defined the relevant markets here as four ORDERS 921 919 DOUGLAS, J., dissenting metropolitan areas in which Missouri Portland ranks either first or second in market share. In all of these markets the top four firms have at least 88% of the market.1 Cargill is a huge, privately held conglomerate with headquarters in Minneapolis. In fiscal 1973 it had sales of $5.3 billion. Cargill specializes in commodities and thus has special skills in the transportation of heavy, bulk products and in the sale of fungible products. Cement is a heavy, bulky, fungible product, but Cargill is not involved in the cement industry. Substantial antitrust issues are raised by the proposed takeover of Missouri Portland by Cargill. The District Court found that Cargill is the most likely potential entrant into the cement industry and concluded that a significant anticompetitive effect would result from Cargill's entry via a takeover of an already dominant firm rather than by de novo entry or by "toehold" acquisition. Furthermore, the District Court found that the addition of Cargill's huge financial resources to Missouri Portland's already substantial assets will raise significant barriers to entry of others in the relevant markets and will tend to increase the dominance of Missouri Portland in markets which are already heavily concentrated. Finally, the District Court noted that the challenged acquisition would eliminate a potential competitor from the fringe of the market, thereby possibly resulting in an additional anticompetitive effect. The Court of Appeals disputed all of these conclusions by the District Court. Yet the very fact that disagreement exists between the two lower courts on these points indicates the likely existence of a substantial question. If the District Court's version of the facts is the correct 1 The four metropolitan markets are St. Louis, Karuias City, Memphis, and Omaha. 922 OCTOBER TERM, 1973 DouGLAS, J., dissenting 418 u. s. one, it seems that the takeover would violate the Clayton Act. See United States v. Falstaff Brewing Corp., 410 U. S. 526 (1973); Ford Motor Co. v. United States, 405 U. S. 562 (1972); FTC v. Procter & Gamble Co., 386 U. S. 568 (1967); United States v. Penn-Olin Chemical Co., 378 U. S. 158 (1964); United States v. El Paso Natural Gas Co., 376 U. S. 651 (1964). III The issues raised by the petition for certiorari present a substantial question that involves a conflict between the decisions below and another Court of Appeals. In Kennecott Copper Corp. v. FTC, 467 F. 2d 67 (CAlO 1972), the court held that anticompetitive effect could occur even though the acquiring and acquired corporations did not produce related products but did have related skills.2 The court below was confronted with facts strikingly similar to those of Kennecott as regards the lack of related products but the presence of related skills. That court, however, candidly admitted that it was declining to follow the Kennecott decision. 498 F. 2d, at 860 n. 14. In our decision in United States v. Falstaff Brewing Corp., supra, at 537, we left open the extent to which potential anticompetitive effect will be considered determinative in "conglomerate mergers" such as this one where entry could have been de nova or via "toehold" ac- 2 In addition, the opinion of the court below conflicts with decisions of other Courts of Appeals on the significance of the acquiring corporation's "deep pocket." According to the court below, the facts that the acquiring corporation has great financial resources and that it intends to use these resources are not enough to show potential anticompetitive effect. But see General Foods Corp. v. FTC, 386 F. 2d 936 (CA3 1967); United States Steel Corp. v. FTC, 426 F. 2d 592 (CA6 1970); Ecko Products Co. v. FTC, 347 F. 2d 745 (CA7 1965); Kennecott Copper Co. v. FTC, 467 F. 2d 67 (CAIO 1972). ORDERS 923 919 DOUGLAS, J., dissenting quisition. Given the conflict between the Circuits on this matter, the present case presents a good vehicle in which we should consider this problem. IV Cargill had acquired 18% of the common stock of Missouri Portland before the injunction issued. Now that the injunction has been lifted by the Court of Appeals and this Court, Cargill is free to acquire the controlling interest in Missouri Portland. That means that it can dictate what its subsidiary will do. We are foolhardy to assume that the litigation will then go on. Cargill in control of its subsidiary will make the subsidiary toe the line and be obedient to Cargill's wishes. The substantial antitrust issue apparent in the conflict between the Courts of Appeals will now not likely be resolved. The internal segregation of assets of the two companies is only an idle gesture. If we fail to live under a rule of law and instead leave the field open to the uncontrolled machinations of conglomerates, Cargill will follow the infamous pattern of IT&T, uncontrolled and uncontrollable. Behind this motion to vacate the stay are very large questions of law and public policy. What is the place of antitrust law in the conglomerate field? Are conglomerates immune as some suggest? If not, what controls over them exist under present antitrust laws? These are questions that are substantial and pressing. The Circuits are in conflict; and the Court goes pellmell for an escape for this conglomerate from a real test under existing antitrust law. I repeat, there is no constitutional right to take over other companies. Cargill should be required to accept delay as one of the risks it incurred by seeking to gain control of so dominant a firm in the cement industry 924 OCTOBER TERM, 1973 July 25, 1974 418 u. s. rather than being content with a "toehold" acquisition or de novo entry. I would continue the stay in force until the merits of the case have been adjudicated. No. 73-1162. UNITED STATES v. WILSON ET AL. C. A. 2d Cir. [Certiorari granted, 416 U. S. 981.] It is ordered that John S. Martin, Jr., Esquire, of New York, New York, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for respondent Bryan in this case. Certiorari Denied No. 73-528. CARLSON Er AL. v. UNITED STATES. C. A. 9th Cir. Certiorari denied. MR. JUSTICE DouGLAS, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 (1973) (Douo- LAS, J., dissenting)), would grant certiorari and reverse the judgment. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JusTICE MARSHALL join, dissenting. Petitioners were convicted in the United States District Court for the Central District of California of mailing allegedly obscene matter in violation of 18 U. S. C. § 1461, which provides in pertinent part as follows: "Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance ... "Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. "Whoever knowingly uses the mails for the mailing ... of anything declared by this section ... to be 924 ORDERS 925 BRENNAN, J., dissenting nonmailable ... shall be fined not more than $5,000 or imprisoned not more than five years .... " The Court of Appeals for the Ninth Circuit affirmed the convictions. I adhere to my dissent in United States v. Ori.to, 413 U. S. 139, 147 (1973), in which, speaking of 18 U. S. C. § 1462, which is similar in scope to § 1461, I expressed the view that " [ w ]hatever the extent of the Federal Government's power to bar the distribution of al1egedly 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." Id., at 147-148. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973) , I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Ninth Circuit was rendered after Ori.to, reverse.* Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, ante, p. 153, its denial of certiorari is improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the petitioners did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioners have thus never been * Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits. 926 OCTOBER TERM, l!J73 July 25, 1974 418 U.S. provided the independent judicial review to which the Court held them entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review. Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Ha.mling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause of the Fifth Amendment, petitioners must be given an opportunity to have their case decided on, and introduce evidence relevant to, the legal standard upon which their convictions have ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioners should be afforded a new trial under local community standards. No. 73-584. SIANS v. UNITED STATES. C. A. 7th Cir. Certiorari denied. MR. JusTrCE DouGLAS, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 ( 1973) (DoL"GLAS, J., dissenting)), would grant certiorari and reverse the judgment. Reported below: 481 F. 2d 1406. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JusTICE MARSHALL join, dissenting. Petitioner was convicted in the United States District Court for the Northern District of Illinois on charges of using a common carrier for carriage of allegedly obscene matter in violation of 18 U. S. C. § 1462, which provides in pertinent part as follows: "Whoever ... knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce926 ORDERS 927 BRENNAN, J., dissenting " (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 .... " The Court of Appeals for the Seventh Circuit affirmed the conviction. 481 F. 2d 1406. I adhere to my dissent in United States v. Orito, 413 U. S. 139, 147 ( 1973), in which, speaking of 18 U. S. C. § 1462, I expressed the view that " [ w ]hatever 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 clearly overbroad and unconstitutional on its face." Id., at 147-148. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 ( 1973), I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Seventh Circuit was rendered after Orito, reverse.* In that circumstance, I have no occasion to consider whether the other ques.tions presented merit plenary review. See Heller v. New York, 413 V. S. 483, 494 (1973) (BRENNAN, J., dissenting). Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause, petitioner must be given an opportunity to have his case decided on, and to introduce evidence releva.nt to the * Although four of us would grant certiorari and reverse t:1e judgment, the Justices who join this opinion do not insist that the case be decided on the merits. 928 OCTOBER TERM, 1973 July 25, 1974 418 u. s. legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards. No. 73-788. BROWN v. UNITED STATES. C. A. 4th Cir. Certiorari denied. MR. JUSTICE DouGLAS, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 ( 1973) (DouGLAS, J., dissenting)), would grant certiorari and reverse the judgment. MR. JuSTICE BRENNAN, with whom MR. JusTICE STEWART and MR. JUSTICE MARSHALL join, dissenting. Petitioner was convicted in the United States District Court for the Eastern District of Virginia of transporting allegedly obscene materials by common carrier in violation of 18 U. S. C. § 1462, which provides in pertinent part as follows: "Whoever . . . 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 .... " The Court of Appeals for the Fourth Circuit affirmed in an unreported opinion. This Court vacated the judgment and remanded the case to the Court of Appeals for further consideration in light of Miller v. California, 413 ORDERS 929 928 BRENNAN, J., dissenting U. S. 15 ( 1973), and companion cases. 413 U. S. 912. The Court of Appeals again affirmed the conviction. I adhere to my dissent in United States v. Orito, 413 U.S. 139, 147 (1973), in which, speaking of 18 U.S. C. § 1462, I expressed the view that " [ w] hatever 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 clearly overbroad and unconstitutional on its face." Id., at 147-148. For the reasons stated in my dissent in Miller v. Ca-lifornia, supra, at 47, I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Fourth Circuit was rendered after Orito, reverse.* In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (BRENNAN, J., dissenting). Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, ante, p. 153, its denial of certiorari is improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the petitioner did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioner has thus never been pro- * Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits. 930 OCTOBER TERM, 1973 July 25, 1974 418 U.S. vided the independent judicial review to which the Court held him entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review. Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause, petitioner must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards. No. 73-1060. VILLAGE BooKs, INc., ET AL. v. MARSHALL, STATE'S ATTORNEY FOR PRINCE GEORGES COUNTY. Ct. App. Md. Certiorari denied. MR. JusrrcE DouGLAS, being of the view that. any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 (1973) (DouGLAs, J., dissenting)), would grant certiorari and reverse the judgment below. Reported below: See 263 Md. 76, 282 A. 2d 126. MR. JusTICE BRENNAN, with whom MR. JusTICE STEWART and MR. JUSTICE MARSHALL join, dissenting. Petitioners were enjoined by the Circuit Court for Prince Georges County, Maryland, from selling a group of allegedly obscene books, on the authority of Art. 27, §§ 418 and 418A, of the Annotated Code of Maryland. Section 418A grants jurisdiction to the circuit courts to enjoin the sale or distribution of any publication which is "obscene" within the meaning of § 418. Section 418 ORDERS 931 930 BRENNAN, J., dissenting provides in pertinent part as follows: "Every person who knowingly sends or causes to be sent ... into this State ... or ... distributes ... any obscene matter is guilty of a misdemeanor." As respondent concedes, the Maryland courts have defined the term "obscenity" in this section by adopting the test set forth in Roth v. United States, 354 U. S. 476 (1957). See Wagonheim v. Maryland State Board of Censors, 255 Md. 297, 304-305, 258 A. 2d 240, 243-244 (1969). The Court of Appeals affirmed, 263 Md. 76, 282 A. 2d 126, and this Court granted certiorari, vacated the judgment of the Court of Appeals, and remanded the case for reconsideration in light of Miller v. California, 413 U. S. 15 (1973). 413 U. S. 911. That court again affirmed in an unreported opinion. It is my view 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." Paris Adult Theatre Iv. Slaton, 413 U.S. 49, 113 (1973) (BRENNAN, J., dissenting). It is clear that, tested by that constitutional standard, 418A, as it incorporates the term "obscene" in § 418, is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. Caiifornia, supra, at 47, I ·would therefore grant certiorari, and, since the judgment of the Maryland Court of Appeals was rendered after Miller, reverse.* In that circumstance, I have no occasion to consider whether the other questions presented merit plenary * Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits. 932 OCTOBER TERM, 1973 July 25, 1974 418 U.S. review. See Heller v. New York, 413 U. S. 483, 494 (1973) (BRENNAN, J., dissenting). Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, ante, p. 153, its denial of certiorari is improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the petitioners did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioners have thus never been provided the independent judicial review to which the Court held them entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review. No. 73-1075. TREVIS v. UNITED STATES; and No. 73-1091. PEACHTREE NEws Co., INc. v. UNITED STATES. C. A. 5th Cir. Certiorari denied. MR. JUSTICE DOUGLAS, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 ( 1973) (DouGLAS, J., dissenting)), would grant certiorari and reverse the judgment. Reported below : 484 F. 2d 1149. MR. JusTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting. Petitioners were convicted in the United States District Court for the Middle District of Florida on charges of using a common carrier for carriage of allegedly obscene ORDERS 933 932 BRENNAN, J ., dissenting matter in violation of 18 U. S. C. § 1462, which provides in pertinent part as follows: "Whoever . . . 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 .... " The Court of Appeals for the Fifth Circuit affirmed the convictions on six counts. 484 F. 2d 1149. I adhere to my dissent in United States v. Orito, 413 U. S. 139, 147 (1973), in which, speaking of 18 U. S. C. § 1462, I expressed the view that " [ w] hatever 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 clearly overbroad and unconstitutional on its face." Id., at 147-148. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Fifth Circuit was rendered after Orito, reverse.* In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (BRENNAN, J., di~enting). Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, ante, p. 153, its denials of certiorari are *Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the cases be decided on the merits. 934 OCTOBER TERM, 1973 July 25, 1974 418U.S. improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the petitioners did not certify the allegedly obscene materials involved in these cases. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioners have thus never been provided the independent judicial review to which the Court held them entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review. Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause, petitioners must be given an opportunity to have their caEes decided on, and to introduce evidence relevant to, the legal standard upon which their convictions have ultimately come to depend. Thus, even on its own terms, foe Court should vacate the judgment below and remand for determinations whether petitioners should be afforded new trials under local community standards. No. 73-1076. CANGIANO ET AL. v. UNITED STATES. C. A. 2d Cir. Certiorari denied. MR. JUSTICE DouGLAS, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 (1973) ORDERS 935 934 BRENNAN, J., dissenting (DouGLAS, J., dissenting)), would grant certiorari and reverse the judgment. Reported below: 491 F. 2d 905. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and Ma. JusTICE MARSHALL join, dissenting. Petitioners were convicted in the United States District Court for the Eastern District of New York of transporting allegedly obscene materials in interstate commerce for the purpose of sale in violation of 18 U. S. C. § 1465, which provides in pertinent part as follows: "Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, case, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both." The Court of Appeals for the Second Circuit affirmed the convictions, 464 F. 2d 320 (1973). This Court vacated the judgment and remanded the case to the Court of Appeals for further consideration in light of Miller v. California, 413 U. S. 15 (1973), and companion cases. 413 U. S. 913. The Court of Appeals again affirmed the convictions. 491 F. 2d 905. I adhere to my dissent in United States v. Orito, 413 U. S. 139, 147 (1973), in which, speaking of 18 U. S. C. § 1462, which is similar in scope to § 1465, I expressed the view that " [ w] hatever 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 clearly overbroad and unconstitutional on its face." Id., 936 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 u. s. at 147-148. For the reasons stated in my dissent in Miller v. California, supra, at 47, I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Second Circuit was rendered after Orito, reverse.* In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See He,_ller v. New York, 413 U. S. 483, 494 (1973) (BRENNAN, J., dissenting). Moreover, on the basis of the Court's own holding in Jenkins v. Georgi,a, ante, p. 153, its denial of certiorari 1s improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the petitioners did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioners have th us never been provided the independent judicial review to which the Court held them entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review. Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, ante, p. 141, * Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits. ORDERS 937 418 u. s. July 25, 1974 I believe that, consistent with the Due Process Clause, petitioners must be given an opportunity to have their case decided on, and to introduce evidence relevant to, the legal standard upon which their convictions have ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioners should be afforded a new trial under local community standards. No. 73--1136. ENSKAT v. CALIFORNIA. Ct. App. Cal., 2d App. Dist. Certiorari denied. MR. JUSTICE DouGLAS, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre Iv. Slaton, 413 U. S. 49, 70 (1973) (DOUGLAS, J., dissenting)), would grant certiorari and reverse the judgment. Reported below: 33 Cal. App. 3d 900, 109 Cal. Rptr. 433. MR. JusTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JusTICE MARSHALL join, dissenting. Petitioner was convicted in the Superior Court of California, County of Lo8 Angeles, of exhibiting an allegedly obscene motion picture in violation of California Penal Code § 311.2 (1970), which provides in pertinent part as follows: "Every person who knowingly sends or . . . possesses ... with intent to distribute or to exhibit to others, ... any obscene matter is guilty of a misdemeanor.'' "Obscene matter" is defined in § 311 (a), which provides in pertinent part as follows: "'Obscene matter' means 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, 938 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 U.S. 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." Petitioner's appeal was certified by the Appellate Department of the Superior Court to the Court of Appeal which, after rehearing, affirmed. 33 Cal. App. 3d 900, 109 Cal. Rptr. 433. The California Supreme Court denied certiorari. It is my view 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." Paris Adult Theatre Iv. Slaton, 413 U. S. 49, 113 (1973) (BRENNAN, J., dissenting). It is clear that, tested by that constitutional standard, § 311.2, as it incorporates the definition of "obscene matter" of § 311 (a), is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, and, since the judgment of the California Court of Appeal was rendered after Miller, reverse.* In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U.S. 483, 494 (1973) (BRENNAN, J., dissenting). Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, ante, p. 153, its denial of certiorari 1s improper. As permitted by Rule 21 ( 1) of the Rules * Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that- the case be decided on the merits. 418 u. s. ORDERS July 25, 1974 939 of this Court, which provides that the record in a case need not be certified to this Court, the petitioner did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioner has thus never been provided the independent judicial review to which the Court held him entitled in Jenkins. At a minimum, the Court should vacate the judgment and remand for such a review. Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause of the Fourtee11th Amendment, petitioner must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards. No. 73--1161. PARIS ADULT THEATRE I ET AL. v. SLATON, DISTRICT ATTORNEY, ET AL. Sup. Ct. Ga. Certiorari denied. MR. JusncE DouGLAS, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 (1973) (DOUGLAS, J., dissenting)), would grant certi940 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 U.S. orari and reverse the judgment below. Reported below: 231 Ga. 312, 201 S. E. 2d 456. MR. JusTrCE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting. Respondents, the local state district attorney and solicitor for the local state trial court, filed civil complaints seeking to enjoin petitioners, Atlanta, Georgia, movie theaters and their owners and managers, from exhibiting two allegedly obscene films, in violation of Georgia Code Ann. § 26-2101 (1972). That section provides, in relevant part: "(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, !:'ex 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 trial judge dismissed respondents' complaints, but the Georgia Supreme Court reversed. 228 Ga. 343, 185 ORDERS 941 939 BRENNAN, J., dissenting S. E. 2d 768 (1971). This Court vacated the State Supreme Court's judgment and remanded the case for further proceedings. 413 U.S. 49 (1973). On remand, the Georgia Supreme Court affirmed its original decision reversing the trial court and directing the trial court to enter an order enjoining the exhibition of the films. It is my view 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." Id., at 113 (BRENNAN, J., disEenting). It is clear that, tested by that constitutional standard, § 26-2101 is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47 (1973), I would therefore grant certiorari, and, since the judgment of the Georgia Supreme Court was rendered after Miller, reverse.* In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (BRENNAN, J., dissenting). Moreover, on the basis of the Court's own holding in Jenkins v. Georgw., ante, p. 153, its denial of certiorari is improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the petitioners did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. *Although four of us would grant certiorari and reverse the judgment, the .Justices who join this opinion do not insist that the case be decided on the merits. 942 OCTOBER TERM, 1973 July 25, 1974 418 U.S. Petitioners have thus not been provided the independent judicial review to which the Court held them entitled in Jenkins. Finally, it does not appear from the petition that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause, petitioners must be given an opportunity to have their case decided on, and to introduce evidence relevant to, the legal standard upon which the injunction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioners should be afforded a new trial under local community standards. No. 73---1260. KAPLAN v. UNITED STATES. Ct. App. D. C. Certiorari denied. MR. JusrrcE DOUGLAS, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 (1973) (DouGLAS, J., dissenting)), would grant certiorari and reverse the judgment. Reported below: 311 A. 2d 506. MR. JUSTICE BRENNAN, with whom MR. JusTICE STEWART and MR. JusTICE MARSHALL join, dissenting. Petitioner was convicted in the District of Columbia Court of General Sessions of presenting an obscene nlm in violation of D. C. Code§ 22-2001 (a)(l)(B) (1973), which provides in pertinent part: "It shall be unlawful in the District of Columbia for a person knowingly ... to present ... any obscene, indecent, or filthy play, dance, motion picture, or other performance." The District of Columbia Court of Appeals affirmed, 277 A. 2d 477, and this Court granted certiorari, vMated the judgment, and remanded the case for further consideration in light of ORDERS 943 942 BRENNAN, J., dissenting Miller v. California, 413 U. S. 15 (1973), and companion cases. 413 U. S. 913. The Court of Appeals again affirmed. 311 A. 2d 506. It is my view 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." Pam Adult Theatre Iv. Slaton, 413 U.S. 49, 113 (1973) (BRENNAN, J., dissenting). It is clear that, tested by that constitutional standard, § 22-2001 (a) (l)(B) is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, supra, at 47, I would therefore grant certiorari, and, since the judgment of the District of Columbia Court of Appeals was rendered after Miller, reverse.* In that circumstance, I have no occasio:1 to co:isider whether the other questions presented merit plenary review. See Hellerv. New York, 413 U. S. 483, 494 (1973) (BRENNAN, J., dissenting). Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, ante, p. 153, its denial of certiorari is improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the petitioner did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be as- * Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits. 944 OCTOBER TERM, 1973 July 25, 1974 418 u. s. sumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioner has thus never been provided the independent judicial review to which the Court held him entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review. Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dis.sent in Hamling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause, petitioner must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards. No. 73-1605. BucKLEY ETAL. v. NEW YORK. Ct. App. N. Y. Certiorari denied. MR. JusTICE DOUGLAS, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 ( 1973) (DovGLAs, J., dissenting)), would grant certiorari and reverse the judgment. Reported below: 33 N. Y. 2d 314,307 N. E. 2d 805. MR. JusTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JusTICE MARSHALL join, dissenting. Petitioners were convicted in the Criminal Court of the City of New York of promotion of obscene material in violation of New York Penal Law § 235.05 (Supp. 1973-1974), which provides in pertinent part: "A person is guilty of obscenity in the second degree when, knowing its content and character, he: 944 ORDERS 945 BRENNAN, J., dissenting "1. Promotes, or possesses with intent to promote, any obscene material. "Obscenity in the second degree 1s a class A misdemeanor." "Obscene" is defined in § 235.00 ( 1967), which provides: "Any material or performance is 'obscene' if (a) considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism, and (b) it goes substantially beyond customary limits of candor in describing or representing such matters, and ( c) it is utterly without redeeming social value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience," The Appellate Term affirmed the convictions, and the New York Court of Appeals affirmed by a divided court. 33 N. Y. 2d 314,307 N. E. 2d 805. It is my view that "at least in the absence of distribution t.o juveniles or obtrusive exposure t.o 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." Paris Adult Theatre Iv. Slaton, 413 U.S. 49, 113 (1973) (BRENNAN, J., dissenting). It is clear that, tested by that constitutional standard, § 235.05 is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. Californw, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, and, since the judgment of the New York Court of Appeals was rendered 946 OCTOBER TERM, 1973 BRENNAN' J., dissenting 418 u. s. after Miller, reverse.* In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 4!:M (1973) (BRENNAN, J., dissenting). Moreover, on the basis of the Court's own holding in Jenkins v. Georgw, ante, p. 153, its denial of certiorari is improper. As permitted by Supreme Court Rule 21 ( 1), which provides that the record in a case need not be certified to this Court, the petitioners did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioners have thus never been provided the independent judicial review to which the Court held them entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review. Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause, petitioners must be given an opportunity to have their case decided on, and to introduce evidence relevant to, the legal standard upon which their convictions have ultimately come to depend. Thus, even on its own *Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits. 418 U.S. ORDERS July 25, 1974 947 terms, the Court should vacate the judgment below and remand for a determination whether petitioners should be afforded a new trial under local community standards. No. 73-5927. MILLICAN, DBA HIP MAGAZINE v. UNITED STATES. C. A. 5th Cir. Certiorari denied. MR. JUSTICE DouGLAs, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 (1973) (DOUGLAS, J., dissenting)), would grant certiorari and reverse the judgment. Reported below: 487 F. 2d 331. MR. JusTICE BRENNAN, with whom MR . .JUSTICE STEWART and MR. JusTICE MARSHALL join, dissenting. Petitioner was convicted in the United States District Court for the Northern District of Georgia of using the mails to distribute allegedly obscene materials in violation of 18 U. S. C. § 1461, which provides in pertinent part as follows: "Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance ... "Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. "Whoever knowingly uses the mails for the mailing ... of anything declared by this section ... to be nonmailable, . . . shall be fined not more than $5,000 or imprisoned not more than five years .. . . " The Court of Appeals for the Fifth Circuit affirmed. 487 F. 2d 331. I adhere to my dissent in United States v. Orito, 413 U. S. 139, 147 (1973), in which, speaking of 18 U. S. C. § 1462, which is similar in scope to § 1461, I expressed the view that " [ w] hatever the extent of the Federal Govern948 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 U.S. ment'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." Id., at 147-148. For the reasons stated in my dissent in Miller v. Californi,a, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Fifth Circuit was rendered after Orito, reverse.* In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (BRENNAN, J., dissenting). Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, ante, p. 153, its denial of certiorari is improper. As permitted 'by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the petitioner did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below fully performed such a review, since that responsibility was not made clear until Jenkins. Petitioner has thus never been provided the independent judicial review to which the Court held him entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review. Finally, it does not appear from the petition and response that the obscenity of the disputed materials ~-Although four of us would grant certiorari and reverse the judgments, the Justices who join this opinion do not. insist that the case be decided on the merits. 418 U.S. ORDERS July 25, 1974 949 was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause, petitioner must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards. No. 73-937. J-R DisTRIBUTORS, INc., ET AL. v. WASHINGTON. Sup. Ct. Wash. Certiorari denied. MR. Jus- TICE DouGLAS, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre Iv. Slaton, 413 U.S. 49, 70 (1973) (DOUGLAS, J., dissenting)), would grant certiorari arid reverse the judgment. Reported below: 82 Wash. 2d 584,512 P. 2d 1049. MR. JUSTICE WHITE. In this case and in 13 other cases involving issues dealing with obscenity, MR. JUSTICE BRENNAN complains that by denying certiorari or dismissing an appeal, the Court has failed to pass independently on the obscenity of the materials involved. This is a task which he has insisted, see Jacobellis v. Ohio, 378 U. S. 184, 187-190 (1964), the_ Court must perform under the approach to obscenity which he espoused and explicated for the Court in Roth v. United States, 354 U. S. 476 (1957); which he refined for himself and others in Jacobellis v. Ohio, supra; Memoirs v. Massachusetts, 383 U. S. 413 (1966); Ginzburg v. United States, 383 U.S. 463 (1966); Mishkinv.New York,383 U.S.502 (1966); and Ginsberg v. New York, 390 U.S. 629 (1968); but which he has now repudiated. 950 OCTOBER TERM, 1973 Opinion of WHITE, J. 418 U.S. Brother BRENNAN's complaints are wide of the mark. Obscenity cases, like others, are not immune from the standards generally governing the exercise of our appellate jurisdiction. The Court has never indicated that plenary review is mandatory in every case dealing with the issue of obscenity. In five of these cases,1 the issue whether the materials involved are obscene was not presented to this Court and the publications themselves were not lodged here. Rule 23 (1) (c) of this CoPrt's Rules provides that "[o]nly the questions set forth in the petition or fairly comprised therein will be considered by the court." Rule 15 ( 1) ( c) with respect to appeals is to the identical effect. I suggest that we are entitled to follow our own Rules. See R. Stern & E. Gressman, Supreme Court Practice § 6.37, pp. 297-299 ( 4th ed. 1969). In six other cases,2 the issue of obscenity vel non is among the questions presented here, but the materials themselves have not been filed with this Court. While our Rules permit parties to dispense with filing the entire record at the petition for certiorari stage, a petitioner is completely free at that time to file all or any part of the record he deems necessary or desirable to present clearly the issues he wants reviewed. Indeed, our Rule 23 (4) states that "[t]he failure of a petitioner to present with accuracy, brevity, and clearness whatever is essential to a ready and adequate understanding of the points requiring consideration will be a sufficient reason for denying his petition." Had the petitioner in any of 1 Carlson v. United States, supra; Village Books, Inc. v. Marshall, supra; Cangiano v. United States, supra; Kaplan v. United States, supra; and Watkins v. South Carolina, supra. 2 Brown v. United States, supra; Thevis v. United States, supra; Peachtree News Co., Inc. v. United States, supra; Enskat v. Califo, rnia, supra; Paris Adult Theatre I v. Slaton, supra; and Millican v. United States, supra. ORDERS 951 949 Opinion of WHITE, J. these cases desired that serious attention be given to the materials themselves, he could have filed them here. Moreover, in each instance either the Court of Appeals or the state appellate court expressly addressed the issue of obscenity and found the materials obscene under proper standards. Under these circumstances, denying certiorari is wholly consistent with our practice. Finally, I join in denying petitions for certiorari in this case and two other cases, Buckley v. New York, supra, and Sians v. United States, supra. In Buckley, the materials in question have been lodged with the Court, and the issue of their obscenity is raised in the petition for certiorari. They were examined and described by the Court of Appeals for the State of New York and were held to be obscene under both Miller and pre-Miller standards. Examination of the materials has not persuaded me that certiorari should be granted. The same is true of Si.ans. The materials, an unremitting series of explicit photographs of a wide spectrum of sexual conduct, including homosexual acts, anal intercourse, fellatio, cunnilingus, and group orgies, were held obscene under any standard by the Court of Appeals. I would not review that judgment. In J-R Distributors, Inc., the case in which this opinion is filed, the issue of the obscenity of the materials involved was raised in the petition for certiorari, and part, but not all, of them was lodged with this Court. I join in denying the petition for certiorari. Although some of the materials have not been filed here and are therefore not before us, the Washington Supreme Court found all of them obscene under both Roth and Mill~ standards. As for the materials on file, it is sufficiently clear to me that they fall within the category of hard-core pornography unprotected by the First Amendment that plenary review is not required. One of the publications involved is Sex Between Humans and Animals. MR. 952 OCTOBER TERM, 1973 BRENNAN, J., dissenting 418 u. s. JUSTICE BRENNAN would apparently hold that the First Amendment prohibits government from denying consenting adults access to such material, but I do not construe the First Amendment as preventing the States from prohibiting the distribution of a publication whose dominant theme is represented by repeated photographs of men and women performing sex acts with a variety of animals. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JusTICE MARSHALL join, dissenting. Petitioners were convicted for violations of Revised Code of Washington § 9.68.010 (Supp. 1972), which provides: "Every person who- " ( l) Having knowledge of the contents thereof shall exhibit, sell, distribute, display for sale or distribution, or having knowledge of the contents thereof shall have in his possession with the intent to sell or distribute any book, magazine, pamphlet, comic book, newspaper, writing, photograph, motion picture film, phonograph record, tape or wire recording, picture, drawing, figure, image, or any object or thing which is obscene; or "(2) Having knowledge of the contents thereof shall cause to be performed or exhibited, or shall engage in the performance or exhibition of any show, act, play, dance or motion picture which is obscene; "Shall be guilty of a gross misdemeanor. "The provisions of this section shall not apply to acts done in the scope of his employment by a motion picture operator or projectionist employed by the owner or manager of a theatre or other place for the showing of motion pictures, unless the motion picture operator or projectionist has a financial in949 ORDERS 953 BRENNAN, J., dissenting terest in such theatre or place wherein he is so employed or unless he caused to be performed or exhibited such performance or motion picture without the knowledge and consent of the manager or owner of the theatre or other place of showing." The Supreme Court of Washington affirmed the convictions, 82 Wash. 2d 584, 512 P. 2d 1049, and subsequently denied a petition for rehearing. It is my view 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." Paris Adult Theatre Iv. Slaton, 413 U.S. 49, 113 (1973) (BRENNAN, J., diESenting). It is clear that, tested by that constitutional standard, § 9.68.010 is constitutiona.lly overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, and, since the judgment of the Washington Supreme Court was rendered after Miller, reverse.1 In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Hellerv.New York, 413 U. S. 483, 494 (1973) (BRENNAN, J., dissenting). Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, ante, p. 153, its denial of certiorari is improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, certain of these petitioners did not certify the allegedly obscene materials involved 1 Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits. 954 OCTOBER TERM, 1973 July 25, 1974 418U.S. in this case.2 It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Those petitioners have thus never been provided the independent judicial review to which the Court held them entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review. No. 73-908. CorE v. UNITED STATES. C. A. 5th Cir. Certiorari denied. MR. JUSTICE DouGLAS, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see Unite,d States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 (1973) (DouGLAS, J., dissenting)), would grant certiorari and reverse the judgment. Reported below: 470 F. 2d 755. No. 73--1241. ADULT FILM AssocIATION OF AMERICA ET AL. v. LUCAS, u. S. DISTRICT JUDGE (SAXBE, ATTORNEY GENERAL OF THE u NITED STATES, ET AL.' REAL p ARTIES IN INTEREST). C. A. 9th Cir. Certiorari denied. MR. JUSTICE DouGLAS, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see United States v. 12 200-ft Reels of Film, 413 U. S. 123, 130 ( 1973) (DouGLAS, J., dissenting)), would grant certiorari and reverse the judgment below. No. 73- 1339. BoYD v. OHIO. Ct. App. Ohio, Allen County. Certiorari denied. MR. JUSTICE DouGLAS, being of the view that any state ban on obscenity is pro- 2 Petitioners Samuel Kravitz, Albert T. Dua.ne, a.nd James M. Tidyman were convicted of exhibiting allegedly obscene films, none of which has been certified to this Court. 418 u. s. ORDERS July 25, 1974 9·55 hibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre I v. STaton, 413 U.S. 49, 70 (1973) (DouGLAS, J., dissenting)), would grant certiorari and reverse the judgment. Reported below: 35 Ohio App. 2d 147, 300 N. E. 2d 752. No. 73-2001. MITCHELL ET AL. v. SrnICA, U. S. Dis- TRICr JuooE. C. A. D. C. Cir. Motion to expedite granted. Certiorari denied. MR. JusTICE REHNQUIST took no part in the consideration or decision of this motion and petition. Reported below: - U. S. App. D. C. - , - F. 2d - . Rehearing Denied No. 73-1650. KERNER v. UNITED STATES, 417 U. S. 976. Motion to expedite granted. Petition for rehearing denied. MR. JusTICE MARSHALL took no part in the consideration or decision of this motion and petition. Assignment Orders An order of THE CHIEF JusTICE designating and assigning Mr. Justice Clark (retired) to perform judicial duties in the United States Court of Appeals for the Second Circuit during the period beginning November 25, 1974, and ending November 29, 1974, and for such additional time as may be required to complete unfinished businees, pursuant to 28 U. S. C. § 294 (a), is ordered entered on the minutes of this Court, pursuant to 28 U. S. C. § 295. An order of THE CHIEF JusrICE designating and assigning Mr. Justice Clark (retired) to perform judicial duties in the United States District Court for the Southern District of New York during the period beginning December 2, 1974, and ending December 24, 1974, and for such additional time as may be required to complete unfinished business, pursuant to 28 U. S. C. § 294 (a), is ordered entered on the minutes of this Court, pursuant to 28 U. S. C. § 295. REPORTER'S NOTE The next page is purposely numbered 1301. The numbers between 955 and 1301 were intentionally omitted, in order to make it possible to publish in-chambers opinions in the current preliminary print of the United States Reports with permanent page numbers, thus making the official citations immediately available. OPINION OF INDIVIDUAL JUSTICE IN CHAMBERS IN RE GRAND JURY PROCEEDINGS (LEWIS, APPLICANT) ON APPLICATION FOR STAY OF EXECUTION AND/OR BAIL PENDING APPEAL No. A-1268. Decided July 4, 1974 Applicant newsman, with no criminal record, who had given FBI copies of tapes and documents delivered to him by an underground group but whom District Court held in contempt for refusing to deliver originals, is released on personal recognizance pending Court of Appeals' decision on the merits. MR. JUSTICE DOUGLAS, Circuit Justice. Applicant asks for release on bail or a stay of the execution of the District Court's order committing him for contempt pending decision of his case on the merits by the Court of Appeals. He had given the FBI copies of certain tapes an9- documents delivered to him by an underground group but refused to deliver the originals. So far as I am advised, he was held in contempt for that refusal. Substantial First Amendment claims are raised under the majority ruling in Branzburg v. Hayes, 408 U. S. 665, as evident from Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539, 546. I indicate no view on the merits. But since the applicant is a newsman entitled to all First Amendment protections and has no criminal record, I have entered an order releasing him on his personal recognizance, pending decision of his appeal by the Court of Appeals. 1301 .... 1:-:> STATEMENT SHOWING THE NUMBER OF CASES FILED, DISPOSED OF, AND REMAINING ON DOCKETS AT CONCLUSION OF OCTOBER TERMS---1971, 1972, AND 1973 ORIGINAL APPELLATE MISCELLANEOUS TOTALS Terms __ .. _____________________ 1971 1972 1973 1971 1972 1973 1971 1972 1973 1971 1972 1973 - - - - - -- - ---- Number of cases on dockets _____ 18 21 14 2,070 2,183 2,480 2,445 2,436 2,585 4,533 4,640 5,079 Number disposed of during terms_ ~8 , 8 4 1,628 1,771 1,868 2,009 1,969 2,004 3,645 3,748 3,876 ----··--··· - - ----- - - Number remaining on dookets ___ 13 10 442 412 612 436 467 581 888 892 1,203 TERMS 1971 1972 1973 - - - ------ CasP.!=i arg,1Prl during term _______ __ ____ _________ ____ ________________________________________ 1177 177 170 Number disposed of by full opinions __ __________________________________________________ 143 159 161 Number disposed of by per curiam opinions ______ _______________ _______ __________ __ ______ '24 18 8 Number set for reargument _ .. _. _______________________________________________________ 39 0 1 Ce.sea grantACl reviPw this t.P.rm _____________________________________________________________ 4163 154 183 CB.Res reviewed anrl rlMirlP.rl wit.hnut oral argument ___________________________________________ 286 265 188 Total cases to be available for argument at outset of following term _____ _______ _____ __ ____ ______ 99 76 89 ' Includes No. 9 Orig. (1)6ndlng) • Includes 4 e&36S which were reargued In O.T. 1971 • Includes A-483 and No. 60 Orig. • Includes A-483 and No. 9 Orig. JULY 26, 1974 INDEX ABSTRACT INJURIES. See Standing t-0 Sue, 1, 6. ABUSE OF DISCRETION. See Juries, 1; Obscenity, 2, 4-5. ACCESS DOCTRINE. See Appeals, 2; Constitutional Law, V, 5. ACCESS TO COURTS. See Constitutional Law, I, 5-7; Prisoners. ADMINISTRATION OF STATE PRISONS. See Civil Rights Act of 1871; Constitutional Law, I, 5-7; VI; Prisoners. ADMISSIBILITY OF EVIDENCE. See Obscenity, 2. "ADULT" BOOKS. See Constitutional Law, I, 2-4; IV; V, 4; Obscenity, 1-6. ADVERTISING BROCHURES. See Constitutional Law, I, 2-4; IV; V, 4; Obscenity, 1-6. ADVERTISING SPACE. See Constitutional Law, II, 2; V, 2. ALL-NEGRO SCHOOLS. See School Desegregation. ALL-WHITE SCHOOLS. See School Desegregation. AMERICAN FLAG. See Constitutional Law, V, I. ANTITRUST ACTS. I. Clayton Act-Bank merger-Effect of failure to s,how alternative methods of entry.-In civil antitrust action under § 7 of Clayton Act to challenge proposed merger between two commercial banks in State of Washington, Government's failure to establish that acquiring bank has alternative methods of entry offering a reasonable likelihood of producing significant procompetitive effects is determinative of its contention that without regard to possibility of future deconcentration of Spokane market, challenged merger is illegal because it eliminates acquiring bank as a perceived potential entrant. Assuming that commercial bankers in Spokane are aware of regulatory barriers that render acquiring bank an unlikely or insignificant potential entrant except by merger with target bank, it is improbable, in light of such barriers, that acquiring bank exerts any meaningful procompetitive influence over Spokane banks by "~t.anrling in the wings." United States v. Marine Bancorporation, p. 602. 2. Clayton Act-Bank merger-Geographic market-Considerations.- On remand of civil antitrust action brought by United States 1303 1304 INDEX ANTITRUST ACTS-Continued. under § 7 of Clayton Act challenging proposed merger between two commercial banks in Connecticut, District Court must make a determination as to geographic market i; which each of the banks operates and to which bulk of its customers may turn for alternative commercial bank services, and in making that determination it will be aided by following considerations: (i) Government has burden of producing evidence to define localized banking markets; (ii) in satisfying that burden (as District Court correctly held) Government cannot rely only on Standard Metropolitan Statistical Areas; and (iii) town boundaries, although significant, are not controlling. United States v. Connecticut National Bank, p. 656. 3. Clayton Act-Bank merger-"Line of commerce."-ln a civil antitrust action by United States under § 7 of Clayton Act challenging proposed merger between two commercial banks in Connecticut, District Court erred in holding that appropriate "line of commerce" within meaning of § 7 included both commercial banks and savings banks. United States v. Connecticut National Bank, p. 656. 4. Clayton Act-Bank merger-Potential-competition doctrine- Prima facie case.-In civil antitrust action under § 7 of Clayton Act to challenge proposed merger between two commercial banks in State of Washington, Government's evidence of concentration ratios in Spokane commercial banking market established a prima faci8 case that that market was suffi ~iently concentrated to invoke potential-competition doctrine, and appellee banks did not demonstrate that such ratios inaccurately depicted economic characteristics of Spokane market. United States v. Marine Bancorporation, p. 602. 5. Clayton Act-Bank merger-Relevant geographic market.-In a civil antitrust action by United States under § 7 of Clayton Act challenging proposed merger between two commercial banks in Connecticut, District Court erred in ruling that relevant geographic market is State as a whole. In a potential-competition case like this, relevant geographic market must be defined as localized area in which acquired bank is in significant, direct competition with other banks, albeit not acquiring bank. United States v. Connecticut National Bank, p. 656. 6. Claytcm Act-Bank merger-Relevant product and geographic markets.-As "a. necessary predicate" to deciding whether proposed merger between two commercial banks in State of Washington contravenes Clayton Act, District Court properly found that relevant product market was "business of commercial banking" and INDEX 1305 ANTITRUST ACTS-Continued. that relevant geographic market was Spokane metropolitan area. Entire State is not, despite Government's contrary contention, an appropriate "section of the country" within meaning of § 7 of Act, since for purpose of this case appropriate "section of the country" and "relevant geographic market" are same, being area in which acquired firm is an actual, direct competitor, and since moreover Government has not shown that effect of merger on a statewide basis "may be substantially to lessen competition" within meaning of § 7. United States v. Marine Bancorporation, p. 602. 7. Cwyton Act-Bank merger-"Section of the country."-In civil antitrust action under § 7 of Clayton Act challenging proposed merger of two commercial banks in Connecticut, Government's contention that State as a whole, though not a banking market, is a "section of the country" within meaning of § 7 is without merit. United States v. Connecticut National Bank, p. 656. 8. Clayton Act-Bank merger-Target bank-Failure of proof as to future expamion.-ln civil antitrust action under § 7 of Clayton Act to challenge proposed merger of two commercial banks in State of Washington, record amply supports District Court's finding that Government "failed to establish ... that there is any reasonable prcb~bility that [target bank} will expand into other banking markets," since at no time in its 70-year history has target bank established branches outside Spokane area, acquired another bank, or received a merger offer other than one at issue here. United States v. Marine Bancorporation, p. 602. 9. Clayton Act-Bank merger-Violation-Failure of proof.-In view of legal barriers to entry, notably state-law prohibitions against de nova branching, branching from branch office, and multibank holding companies, Government failed to sustain its burden of proof that challenged merger between two commercial banks in State of Washington violates § 7 of Clayton Act by eliminating likelihood that, but for the merger, acquiring bank would enter Spokane de nova by means of sponsorship-acquisition or through a foothold acquisition of a small state bank in Spokane area, since it was not shown that either of proposed alternative methods of entry was fea.sible or offered a substantial likelihood of ultimately producing deconcentration of Spokane market or other significant procompetitive effects. United States v. Marine Bancorporation, p. 602. 10. Clayton Act-Market extemion mergers-Commerci.d banks- Potenti.d-competition doctrine-Federal and state regulations.- While geographic market extension mergers by commercial banks must pass muster under potential-competition doctrine, application 1306 INDEX ANTITRUST ACTS-Continued. of doctrine to commercial banking must take into account extensive and unique federal and state regulatory restraints on entry into that line of commerce, including controls over number of bank charters to be granted, prior bank regulatory agency approval of opening of branches, and state-law restrictions, such as tho.se in Washington involved in this case, on de novo geographic expansion through branching and multibank holding companies. United States v. Marine Bancorporation, p. 602. APPEALS. See also Constitutional Law, V, 5; Federal Rules of Criminal Procedure, I. l. Denial of request to object to jury instructiom-Noncompliance with Fed. Rule Crim. Proc. SO-Nonprejudicial error.-Court of Appeals did not err in refusing to reverse petitioners' convictions for District Court's failure to comply with Rule 30 by denying petitioners' counsel's request to make additional objections to instructions out of presence of jury, since this Court's independent examination of record confirms Court of Appeals' view that petitioners were not prejudiced thereby. Hamling v. United States, p. 87. 2. Final judgment-Ripeness for review.-Florida Supreme Court's judgment, reversing trial court, holding that Florida's "right of reply" statute did not violate constitutional guarantees, and that civil remedies, including damages, were available for violation of statute, and remanding for further proceedings, is "final" under 28 U. S. C. § 1257, and thus is ripe for review by this Court. Miami Herald Publishing Co. v. Tornillo, p. 241. 3. "Final" order-Order denying motion to quash subpoena duces tecum and requiring production of evidence- Presidential tapes and documents.-District Court's order denying President's motion to quash subpoena duces tecum for production before trial of certii.in Presidential tape recordings and documents and requiring in camera examination of subpoenaed material in connection with prosecutions of certain staff members of White House and political supporters of President, was appealable as a "final" order under 28 U. S. C. § 1291, wa.s therefore properly "in," 28 U. S. C. § 1254, Court of Appeals when petition for certiorari before judgment was filed in this Court, and is now properly before this Court for review. Although such an order is normally not final and subject to appeal, an exception is made in a "limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims." Such an exception is proper in unique INDEX 1307 APPEALS-Continued. circumstances of this rase where it would be inappropriate to subject President to procedure of securing review by resisting order and inappropriate to require that District Court proceed by a traditional contempt citation in order to provide appellate review. United States v. Nixon, p. 683. APPEAL TO PRURIENT INTEREST. See Constitutional Law, I, 2-4; IV; V, 3-4; VIII; Obscenity. ARMED FORCES, See Constitutional Law, I, 1. ARMED FORCES RESERVES. See Standing to Sue, 1, 6. ATTENDANCE ZONES. See School Desegregation, 1, 3. ATTORNEY-PRISONER MAIL. See Constitutional Law, VI. ATTORNEYS. See Constitutional Law, I, 8; Contempt, 1, 3; Defamation, 4. BAIL. N ewmnan-Contempt-Personal recognizance.-Applicant newsman, with no criminal record, who had given FBI copies of tapes and documents delivered to him by an underground group but whom District Court held in contempt for refusing to deliver originals, is released on personal recognizance pending Court of Appeals' decision on merits. In re Lewis (DOUGLAS, J., in chambers), p. 1301. BANKS. See Antitrust Acts. BOARDS OF EDUCATION. See School Desegregation. BOOKS. See Constitutional Law, I, 2-4 ; IV; V, 4 ; Obscenity, 1-8. BRIDGEPORT. See Antitrust Acts, 2-3, 5, 7. BROADCASTERS. See Defamation, 6-7. BURDEN OF PROOF. See Antitrust Acts, 1-2, 4, 6, 8-9. BUS ADVERTISING, See Constitutional Law, II, 2; V, 2. BUSING. See School Desegregation. CALIFORNIA. See Constitutional Law, II, 1; Mootness. CANDIDATES. See Appeals, 2; Constitutional Law, II, 2; V, 2, 5. CAPITAL FACILITIES. See Internal Revenue Code, I. CAPITALIZATION OF CONSTRUCTION-RELATED DEPRECIATION. See Internal Revenue Code, 2. 1308 INDEX CAPTIVE AUDIENCES. See Constitutional Law, II, 2; V, 2. CAR CARD ADVERTISING SPACE. See Constitutional Law, II, 2; V, 2. "CARNAL KNOWLEDGE." See Constitutional Law, V, 3; VIII; Obscenity, 9. CASE OR CONTROVERSY. See Standing to Sue, 1-2, 5-6. CENTRAL INTELLIGENCE AGENCY ACT. See Standing to Sue, 2-4. CHICAGO. See Defamation, 4. CITIZENS. See Standing to Sue, 6. CIVIL ANTITRUST ACTIONS. See Antitrust Acts. CIVIL RIGHTS. See Civil Rights Act of 1871; Constitutional Law, I, 5-7; Prisoners. CIVIL RIGHTS ACT OF 1871. See also Constitutional Law, I, 5-7; Prisoners. Relief for improper revocation of good-time credits.-Though Court of Appeals correctly held that restoration of good-time credits in a prisoner's action under 42 U. S. C. § 1983 is foreclosed under Preiser v. Rodriguez, 411 U. S. 475, damages and declaratcry and other relief for improper revocation of good-time credits are cognizable under that provision. Wolff v. McDonnell, p. 539. CLASS ACTIONS. See Mootness. CLAYTON ACT. See Antitrust Acts. COLLECTIVE BARGAINING. See Defamation, 1-3; Labor. COMMERCIAL BANKING. See Antitrust Acts. COMMUNICATIONS. See Constitutional Law, III; V, 1; VI. '' COMMUNIST-FRONTERS.'' See Defamation, 4. COMMUNITY STANDARDS. See Constitutional Law, IV, 1; VIII; Obscenity, 2, 9. COMPENSATORY DAMAGES. See Defamation, 5. CONCRETE INJURIES. See Standing to Sue, 1, 3. CONFIDENTIALITY OF HIGH-LEVEL COMMUNICATIONS. See Constitutional Law, III. CONFRONTATION. See Constitutional Law, I, 5. CONGRESS. See Standing to Sue, 1, 6. INDEX 1309 CONNECTICUT. See Antitrust Acts, 2-3, 5, 7. CONSOLIDATIONS. Sec Antitrust Acts, 2-3, 5, 7. CONSTITUTIONAL LAW. See also Appeals, 2-3; Civil Rights Act of 1871; Contempt, 2; Defamation, 4-7; Juries; Justicia.- bility; Labor; Mootness; Obscenity, 9; Prisoners; School Desegregation, 1-2; Standing to Sue. I. Due Process. I. Art. 134, Uniform Code of Military Justice-Lack of vagueness.- This Court will not decide whether District Court had jurisdiction of an action challenging a court-martial conviction under Art. 80 of UCMJ of an attempt to comm.it an offense under Art. 134, on ground, inter alia, that Art. 134 is unconstitutionally vague, since assuming, arguendo, that District Court did have jurisdiction, decision in Parker v. Levy, 417 U. S. 733, requires reversal of Court of Appeals' decision on merits reversing District Court's denial of relief and holding that Art. 134 is unconstitutionally vague. Secretary of the Navy v. Avrech, p. 676. 2. Obscenity-Federal criminal, s-tatute-Notice.-Title 18 U.S. C. § 1461, making it a crime to mail obscene matter, when "applied according to the proper standards for judging obscenity do[es] not . . . fail to give men in acting adequate notice of what is prohibited." Hamling v. United States, p. 87. 3. Obscenity-Federal criminal statute-V aguenes9.-Construing 18 U. S. C. § 1461, making it a crime to mail obscene matter, as being lirn.ited to sort of "patently offensive representations or description of that specific 'hard core' sexual conduct given as examples in Miller v. California [413 U. S. 15]," statute is not unconstitutionally vague, it being plain tha.t brochure in question is a form of hard-core pornography well within perrn.issibly proscribed depictions described in Miller. Enumeration of specific categories of obscene material in Miller did not purport to proscribe, for purposes of § 1461, conduct that had not previously been thought criminal but instead added a "clarifying gloss" to prior construction, making statute's meaning "more definite." Hamling v. United States, p. 87. 4. Obscemty-Federd criminal, statute-Vagueness.-Rejection in Miller v. California, 413 U. S. 15, of "social value" formulation of Memoirs v. Massachusetts, 383 U. S. 413, did not mean that 18 U. S. C. § 1461, making it a crime to mail obscene matter, was unconstitutionally vague at time of petitioners' pre-Miller convictions because it did not provide them with sufficient guidance as to proper test of "social value," that formula having been rejected 1310 INDEX CONSTITUTIONAL LAW-Continued. not for vagueness reasons but because it departed from obscenity definition of Roth v. United States, 354 U. S. 476, and entailed a virtually impossible prosecutorial burden. Hamling v. United States, p. 87. 5. Prison disciplinary proceedin{Js.-A prisoner is not wholly stripped of constitutional protertions, and though prison disciplinary proceedings do not implicate full panoply of rights due a defendant in a criminal prosecution, such proceedings must be governed by a mutual accommodation between institutional needs and generally applicable constitutional requirements. Wolff v. McDonnell, p. 539. 6. Prison disciplinary proceedings-Loss of good-time credits- MinimaJ, requirements.-Since prisoners in Nebraska can only lose good-time credits if they are guilty of serious misconduct, procedure for determining whether such misconduct has occurred must observe certain minimal due pro0 ess requirements (though not full range of procedures mandated in Morrissey v. Brewer, 408 U. S. 471, and Gagnon v. Scarpelli, 411 U. S. 778, for parole and probation revocation hearings) consonant with unique institutional environment and therefore involving a more flexible approach reasonably accommodating interests of inmates and needs of institution. Wolff v. McDonnell, p. 539. 7. Prison disciplinary proceedings-Retroactivity.-Court of Appeals erred in holding that due process requirements in prison disciplinary proceedings were to be applied retroactively by requiring expunging of prison records of improper misconduct determinations. Wolff v. McDonnell, p. 539. 8. Summary punishment for contempt-Lack of opportunity to be heard.-Respondent trial judge's conduct, in proceeding summarily after state criminal trial to punish petitioner counsel for accused for alleged contempt committed during trial without giving him an opportunity to be heard in defense or mitigation before he was finally adjudged guilty and sentence was imposed, does not square with Due Process Clause of Fourteenth Amendment. Reasonable notice of specific charges and opportunity to be heard are essential in view of heightened potential for abuse posed by contempt power. Taylor v. Hayes, p. 488. II. Equal Protection of the Laws. l. Disenfranchisement of felons.-California, in disenfranchising convicted felons who have completed their sentences and paroles, does not violate Equal Protection Clause of Fourteenth Am1mrlment. Section I of Fourteenth Amendment, which contains Equal ProtecINDEX 1311 CONSTITUTIONAL LAW-Continued. tion Clause, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement that was expressly exempted from less drastic sanction of reduced representation that § 2 imposed for other forms of disenfranchisement. Richardson v. Ramirez, p. 24. 2. No political ads on city rapid transit system.-Judgment holding that city's refusal to permit political advertising on its rapid transit system did not violate a candidate's equal protection rights, is affirmed. Lehman v. City of Shaker Heights, p. 298. III. Executive Privilege. 1. Presidential communications-Criminal trial-Generalized a.ssertion.- Although courts will afford utmost deference to Presidential ads in performance of an Art. II function, when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on ground that military or cliplomatic secrets are implicated, but merely on ground of a generalized interest in confidentiality, President's generalized assertion of privilege must yield to demonstrated, specific need for evidence in a pending criminal trial and fundamental demands of due process of law in fair administration of justice. United States v. Nixon, p. 683. 2. Presidential communications-Criminal trial-In camera inspection.- N either doctrine of separation of powers nor generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, confidentiality of Presidential communications is not significantly diminished by producing material for a criminal trial under protected conditions of in camera inspection, and any absolute executive privilege under Art. II of Constitution would plainly conflict with function of courts under Constitution. United States v. Nixon, p. 683. IV. Federal Obscenity Prosecution. Instruction to jury-National community standards-Propriety.- In federal prosecution for mailing obscene matter occurring prior to Miller v. California, 413 U. S. 15, instruction to jury on application of national community standards of obscenity was not constitutionally improper, since in rejecting view that First and Fourteenth Amendments require that proscription of obscenity be based on uniform national standards, the Court in Miller and companion cases did not require as a constitutional matter substitution of some 1312 INDEX CONSTITUTIONAL LAW-Continued. smaller geographical area into same sort of formula; test was stated in terms of understanding of "average person applying contemporary community standards." The Court's holding in Miller that California could constitutionally proscribe obscenity in terms of a "statewide" standard did not mean that any such precise geographic area is required as a matter of constitutional law. Reversal is required in pre-Miller cases only where there is a probability that excision of references to "nation as a whole" in instruction dealing with community standards would have materially affected deliberations of jury. Hamling v. United States, p. 87. V. First Amendment. 1. Freedom of speech-"lmproper use" flag statute.-Washington's "improper use" statute forbidding exhibition of United States flag to which is attached or superimposed figures, symbols, or other extraneous material, as applied to appellant's activity in displaying out of his apartment window a United States flag upside down with a peace symbol taped thereto as a protest against then recent actions in Cambodia and fatal events at Kent State University, impermissibly infringed a form of protected expression. Spence v. Washington, p. 405. 2, Freedom of speech-No political, ads on city rapid transit system.- Judgment holding that city's refusal to permit political advertising on its rapid transit system did not violate a candidate's free speech rights, is affirmed. Lehman v. City of Shaker Heights, p. 298. 3. Freedom of speech-Obscenity-Constitutional standards-State obscenity statute-Film's lack of patent offensiveness.-Film "Carnal Knowledge" is not obscene under constitutional standards announced in Miller v. California. 413 U. S. 15. and apprllant's conviction of violating Georgia obscenity statute for showing film in a theater therefore contravened First and Fourteenth Amendments. Juries do not have unbridled discretion in determining what, is "patently offensive" since "no one will be subject to prosecution for the sale or exposure of obscene materials [that do not] depict or describe patently offensive 'hard core' sexual conduct . . . ." This Court's own view of film impels conclusion that film's depiction of sexual conduct is not patently offensive. Camera does not focus on bodies of actors during scenes of "ultimate sexual acts," nor are actors' genitals exhibited during those scenes. Film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards. Jenkins v. Georgia, p. 153. INDEX 1313 CONSTITUTIONAL LAW-Continued. 4. Freedom of s-peech-Obscenity-Federal criminal statute.-Title 18 U. S. C. § 1461, making it a crime to mail obscene matter, when "applied according to the proper standard for judging obscenity do[es] not offend constitutional safeguards against convictions based upon protected material." Hamling v. United States, p. 87. 5. Freedom of the press-"Right of reply" statute.-Florida's "right of reply" statute which grants a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper, and makes it a misdemeanor for newspaper to fail to comply, violates First Amendment's guarantee of a free press. Miami Herald Publishing Co. v. Tornillo, p. 241. VI. Regulation of Attorney-Prisoner Mail. State may constitutionally require that mail from an attorney to a prisoner be identified as such and that his name and address appear on communication; and-as a protection against contraband- that authorities may open such mail in inmate's presence. A lawyer desiring to correspond with a prisoner may also be required first to identify himself and his client to prison officials to ensure that letters marked "privileged" are actually from members of bar. Wolff v. McDonnell, p. 539. VII. Sixth Amendment. Right to jury trial-Contempt.-In ca~e of post-Yerdict adjudications of various acts of contempt committed during trial, Sixth Amendment requires a jury trial if sentences imposed aggregate more than six months, even though no sentence for more than six months was impoPed for any one act of contempt. Codispoti v. Pennsylvania, p. 506. VIII. State Obscenity Prosecution. Instruction to jury-Community standards.-There is no constitutional requirement that juries be instructed in state obscenity cases to apply standards of a hypothetical statewide community-Miller v. California, 413 U. S. 15, approving, but not mandating, such an instrnetion-and jurors ma? properly be instructed to apply "eommunity standards," without a specification of "community" by trial court. Jenkins v. Georgia, p. 153. CONSTITUTIONAL PRIVILEGE FOR DEFAMATION. See Defamation, 6-7. CONSTRUCTION OF CAPITAL FACILITIES. See Internal Revenue Code. 1314 INDEX CONSTRUCTION OF STATUTES. See Antitrust Acts, 3, 6-7; Federal Youth Corrections Act; Habeas Corpus, 1. CONSTRUCTION-RELATED DEPRECIATION. See Internal Revenue Code, 2. CONTEMPORARY COMMUNITY STANDARDS. See Constitutional Law, IV, 1; VIII; Obscenity, 2, 9. CONTEMPT. See also Bail; Constitutional Law, I, 8; VII. 1. Attorney-Final, disposition of charges-Substitution of judges.- Because it appears from record that "marked personal feelings were present on both sides" with respect to respondent trial judge and petitioner counsel for accused during state criminal trial, and that marks of "unseemly conduct [had] left personal stings," another judge should have been substituted for respondent for purpose of finally disposing cf contempt charges against petitioner. Taylor v. Hayes, p. 488. 2. Right to jury trial-Alleged contemnor.-Though a crime carrying more than a six-month sentence is a serious offense triable by jury, an alleged contemnor is not entitled to a jury trial simply because a strong possibility exists that upon conviction he will face a substantial term of imprisonment regardless of punishment actually imposed. Codispoti v. Pennsylvania, p. 506. 3. Right to jury trial-Petty off enses.-Since no more than a sixmonth sentence was actually imposed, the eight contempts for which petitioner, as counsel for accused during state criminal trial, was adjudged guilty, whether considered singly or collectively, constituted petty offenses and hence trial by jury was not required. It is not improper to permit State, as in this instance, after conviction, to reduce a sentence to six months or less rather than retry contempt with a jury, since "criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved." Taylor v. Hayes, p. 488. CONTINUANCES. See Juries, 1. COURTS-MARTIAL. See Constitutional Law, I, 1. CRIMINAL CONTEMPT. See Constitutional Law, I, 8; VII; Contempt. CRIMINAL LAW. See Appeals, 1, 3; Constitutional Law, I, 1-4, 8; III; IV; V, 1, 3-4; VII; VIII; Contempt; Federal Rules of Criminal Procedure; Federal Youth Corrections Act; Juries; Justiciability; Obscenity. CROSS-EXAMINATION. See Constitutional Law, I, 5--6. INDEX 1315 DAMAGES. See Civil Rights Act of 1871; Defamation, 5. DECLARATORY JUDGMENTS. See Civil Rights Act of 1871. DEFAMATION. See also Labor. 1. Labor disputes-Erroneous iru;truction to jury.-In appellee letter carriers' libel actions against appellant union for including appellees in "List of Scabs" published in union's newsletter, trial court's instruction defining malice in common-law terms was erroneous and reflected a misunderstanding of Linn v. Plant Guard Workers, 383 U. S. 53, which adopted reckless-or-knowing-falsehood test of New York Times Co. v. Sullivan, 376 U.S. 254. Letter Carriers v. Austin, p. 264. 2. Labor di,sputes-Robust debate-Executive Order-Federal employment.- Federal labor laws favor uninhibited, robust, and wideopen debate in labor disputes. Relevant law here, in appellee letter carriers' libel actions against appellant union for including appellees in "List of Scabs" published in union's newsletter, is Executive Order No. 11491, governing labor relations in federal employment. Basic provisions of Executive Order are like those of National Labor Relations Act, and similarly afford wide latitude for union freedom of speech. Partial pre-emption of Linn v. Plant Guard Workers, 383 U. S. 53, by which federal law pre-empts state law to extent that State seeks to make actionable defamatory statements in labor disputes published without knowledge of their falsity or reckless disregard of truth, is thus equally applicable here. Letter Carriers v. Austin, p. 264. 3. Labor di,sputes-State law as pre-empted by federal law.- Although Linn v. Plant (}uard Workers, 383 U. S. 53, held that federal labor law does not completely pre-empt application of state laws to libels published during labor disputes, that decision recognized that federal law does pre-empt state law to extent that State seeks to make actionable defamatory statements in labor disputes published without knowledge of their falsity or reckless disregard of truth. Letter Carriers v. Austin, p. 264. 4. Plaintiff attorney as neither public official rwr public figure.- Petitioner, an attorney who had represented a murder victim's family in civil litigation against policeman convicted of committing murder, was neither a public official nor a public figure for purposes of his libel action against respondent for having published an article in its magazine which falsely stated that petitioner had arranged policeman's "frameup," implied that petitioner had a criminal record, and labeled him a "Communist-fronter." Neither petitioner's past service on certain city committees nor his appear1316 INDEX DEFAMATION-Continued. ance as an attorney at coroner's inquest into death of murder victim made him a public official, and his role in policeman's affair did not make him a public figure. Gertz v. Robert Welch, Inc., p. 323. 5. Private persons-Preclusion of presumed or punitive damages.- States may not permit recovery of presumed or punitive damages in defamation actions when liability is not based on knowledge of falsity or reckless disregard for truth, and privat~ defamation plaintiff who establishes liability under a less demanding standard than test of New Yo.rk Times Co. v. Sullivan, 376 U.S. 254, may recover compensation only for actual injury. Gertz v. Robert Welch, Inc., p. 323. 6. Private pe-rsom-Public -issue-Applicability of New York Times sta:ndard.-A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim protection of New York Times Co. v. Sullivan, 376 U. S. 254, against liability for defamation on ground that defamatory statements concern an issue of public or general interest. Gertz v. Robert Welch, Inc., p. 323. 7. Private persons-State standard of liability.--So long as they do not impose liability without fault, States may define for themselves appropriate standard of liability for a publisher or broadcaster of defamatory falsehood which injures a private individual and whose substance makes substantial danger to reputation apparent. Gertz v. Robert Welch, Inc., p. 323. DE JURE SEGREGATION. See School Desegregation. DE NOVO HEARINGS. See Habeas Corpus, 3. DEPRECIATION DEDUCTIONS. See Internal Revenue Code, 2. DEPRIVATION OF GOOD-TIME CREDITS. See Civil Rights Act of 1871; Constitutional Law, I, 6. DESEGREGATION PLANS. See School Desegregation, DETROIT. See School Desegregation. DEVIANT SEXUAL GROUPS. See Constitutional Law, I, 2-4; Obscenity, 5. DIPLOMATIC SECRETS. See Constitutional Law, III. DISCRETION. See Juries, l ; Obscenity, 2, 4-6. DISCRIMINATION. See School Desegregation. DISENFRANCHISEMENT OF FELONS. See Constitutional Law, II, 1; Mootness. INDEX 1317 DISPLAY OF AMERICAN FLAG ON PRIVATE PROPERTY. See Constitutional Law, V, 1. DISSEMINATION OF OBSCENE MATERIAL. See Constitutional Law, I, 2-4; IV; V, 4; Obscenity, 9. DISTRICT COURTS. See Federal Youth Corrections Act; Habeas Corpus. DOCUMENTARY EVIDENCE. See Constitutional Law, I, 5-6. DOCUMENTS. See Bail. DUE PROCESS. See Constitutional Law, I ; III ; V, 3-4. EDITORIALS. See Appeals, 2 ; Constitutional Law, V, 5. ELECTIONS. See Constitutional Law, II, I ; Mootness. ELECTRONIC RECORDINGS. See Habeas Corpus, 3. EQUAL PROTECTION OF THE LAWS. See Constitutional Law, II; V, 2 ; School Desegregation. EQUAL SPACE. See Appeals, 2 ; Constitutional Law, V, 5. EQUITY. See School Desegregation, 3- 4. EVIDENCE. See Antitrust Acts, 2, 4; Obscenity, 1- 2, 4. EVIDENTIARY HEARINGS. See Habeas Corpus. EXCLUSION OF YOUNG FROM JURIES. See Juries, 1. EXECUTIVE BRANCH. See Justiciability. EXECUTIVE ORDERS. See Defamation, 2. EXECUTIVE PRIVILEGE. See Appeals, 3 ; Constitutional Law, III ; Federal Rules of Criminal Procedure; Justiciability. EX-FELONS. See Constitutional Law, II, I ; Mootness. FEDERAL BUREAU OF INVESTIGATION. See Bail. FEDERAL EMPLOYEES. See Defamation, 1-3; Labor. FEDERAL MAGISTRATES ACT. See Habeas Corpus, 2. FEDERAL RULES OF CRIMINAL PROCEDURE. See also Appeals, 3; Constitutional Law, III ; Juries ; Justiciability. 1. Denial of motion to quash subpoena- Compliance with Rule 17 (c) .-From t his Court's examina.tion of material submitted by Special Prosecutor in support of his motion, following indictment alleging violation of federal statutes by certain staff members of White House and political supporters of President, for subpoena duces tecum for production before trial of cert ain P residential t ape recordings and documents, much of which material is under seal, it 1318 INDEX FEDERAL RULES OF CRIMINAL PROCEDURE-Continued. is clear that District Court's denial of President's motion to quash comported with Rule 17 ( c) and that Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. United States v. Nixon, p. 683. 2. Subpoenaed material-Presidential, communications-In camera examination.-On basis of this Court's examination of record, it cannot be concluded that District Court erred in ordering in camera examination of certain Presidential tape recordings and documents produced, pursuant to Rule 17 (c), under subpoena duces tecum before criminal trial of certain staff members of White House and political supporters of President, which material shall now forthwith be transmitted to District Court. United States v. Nixon, p. 683. 3. Subpoenaed material-Presidential communications-In camera examination-Release.---Since a President's communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, public interest requires that Presidential confidentiality be afforded greatest protection consistent with fair administration of justice, and District Court has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or inadmissible in criminal prosecution of certain staff members of White House and political supporters of President, ordered produced before trial under subpoena duces tecum, pursuant to Rule 17 ( c), be accorded high degree of respect due a President and that such material be returned under seal to its lawful custodian. Until released to Special Prosecutor no in camera material is to be released to anyone. United States v. Nixon, p. 683. FEDERAL-STATE RELATIONS. See Defamation, 2-3; Labor. FEDERAL YOUTH CORRECTIONS ACT. Sentencing as adult- "No benefit" finding.-In sentencing a youth offender as a.n adult under other applicable penal statutes,§ 5010 (d) of Act requires a federal district court to "find" that offender would not benefit from treatment under Act, but does not require that such "finding" be accompanied by supporting reasons. Dorszynski v. United States, p. 424. FELONIES. See Constitutional Law, II, 1; Mootness. FILMS. See Constitutional Law, V, 3; VIII; Obscenity, 9. FINAL JUDGMENTS. See Appeals, 2. FINAL ORDERS. See Appeals, 3. FINDINGS. See Constitutional Law, I, 5-6; Federal Youth Corrections Act. IND EX 1319 FIRST AMENDMENT. See Appeals, 2; Constitutional Law, V; VIII ; Defamation, 2, 4-7; Labor. FLAG MISUSE. See Constitutional Law, V, I. FLORIDA. See Appeals, 2; Constitutional Law, V, 5. FOURTEENTH AMENDMENT. Sec Constitutional Law, I, 5-8; II; V, 1-3, 5; VI ; VIII ; School Desegregation. FREEDOM OF SPEECH. See Constitutional Law, V, 1-4; Defamation ; Labor. FREEDOM OF THE PRESS. See Appeals, 2 ; Constitutional Law, V, 5; Defamation, 4-7. GENERAL ARTICLES OF UNIFORM CODE OF MILITARY JUSTICE. See Constitutional Law, I , 1. GENERALIZED GRIEVANCES. See Standing to Sue, 1-3, 5. GENERALIZED INTEREST IN CONFIDENTIALITY. See Constitutional Law, III. GEOGRAPHIC MARKET. See Antitrust A cts, 2, 5-6, 10. GOOD-TIME CREDITS. See Civil Rights Act of 1871; Constitutional Law, I, 5-6. GOVERNMENTAL COMPULSION. See Appeals, 2; Constitutional Law, V, 5. HABEAS CORPUS. l. Evidentiary hearings-Nec essit y that district judge conduct hearings.-Title 28 U. S. C. § 2243, like its pr edecessor, Rev. Stat. § 761, requi res that district judge personally conduct evidentiary hearings in federal haberui corpus cases. Wingo v . Wedding, p. 461. 2. Evidentiary hearings-Prohibition against magistrate's conducting hearings-Invalidit y of local, rule of court.-It is clear from trxt and legisla tive his tory cf Federal Magistrates Act that Congress did no t intend to alter requirements of 28 U. S. C. § 22 43, and therefor e local rule of District Court, insofar as it author izes fulltime magistrat e to hold habeas corpus evidentiary hearings, is invalid b ecau se it is "inconsistent with the .. . laws of the United States" under § 636 (b) of Act, and because § 636 (b) itself precludes a distrirt judge from assigning a magistrate duty of conducting an evidentiary hearing and limits magistrate's rC'view to proposing, not holdi ng, surh a hearing. Wingo v. Wedding, p. 461. 3. Evidentiary hearings-Prohibition against magistrate's conducting hearings-Invalidi ty of local rule of court-Electronic record1320 INDEX HABEAS CORPUS-C'ontinuf:'d. ing.-Invalidity of local rule of District Court, insofar as it authorizes full-time magistrate to hold habeas corpus evidentiary hearings, is not cured by procedure calling for electronic recording of hearings and, when requested, de nova consideration of such recording by district judge. Such procedure does not enable district judge to evaluate credibility by personally hearing and observing witnesses . ·wingo v. Wedding, p. •161. HARD-CORE PORNOGRAPHY. See Constitutional Law, I, 3; V, 3-4; Obscenity, 4--5, 7, 9. HEARINGS. See Constitutional Law, I, 5-7; Habeas Corpus. IMMUNITY FROM JUDICIAL PROCESS. See Constitutional Law, III. IMPARTIAL TRIBUNALS. See Constitutional Law, I, 5-7. "IMPROPER USE" FLAG STATUTES. See Constitutional Law, v, 1. IN CAMERA INSPECTION. See Appeals, 3; Constitutional Law, III; Federal Rules of Criminal Procedure. INCOME TAXES. Se e Internal Revenue Code. INCOMPATIBILITY CLAUSE. See Standing to Sue, 1, 6. INJURY TO REPUTATION. See Defamation, 6-7. INMATE LEGAL ASSISTANCE PROGRAMS. See Prisoners. INMATES. See Civil Rights Act of 1871; Constitutional Law, I, 5-7; VI; Prisoners. INSPECTION OF ATTORNEY-PRISONER MAIL. See Constitutional Law, VI. INSTITUTIONAL INTERESTS. See Constitutional Law, I, 5-7; VI. INSTRUCTIONS TO JURY. See Appeals, 1; Constitutional Law, IV, VIII; Defamation, 1; Obscenity, 1, 4-6, 9. INTERDISTRICT SCHOOL DESEGREGATION. See School Desegregation, 1, 3- 4. INTERNAL REVENUE CODE. 1. "Amount paid out" for construction-Nondeductibility-Cost of transportation equipment.-Considering literal language of § 263 (a) of Code in denying a deduction for "[a]ny amount paid out" for construction or permanent improvement of facilities, and its 1321 INTERNAL REVENUE CODE-Continued. purpose to reflect b,;~ic principle that a capital expenditure may not be deducted from current income, as well as regulations indicating that for purposes of § 263 (a) "amount paid out" equates with "cost incurred," there is no question that cost of respondent taxpayer's transportation equipment used in constructing capital facilities was "paid out" in same manner as other construction-related items, such as supplies, materials, and wages, which taxpayer capitalized. Commissioner v. Idaho Power Co., p. 1. 2. Equipment depreciation-Constructwn of capital, facilities- Capitalization.-Equipment depreciation allocable to taxpayer's construction of capital facilities must be capitalized under § 263 (a) (1) of Code. Accepted accounting practice and established tax principles require capitalization of cost of acquiring a capital asset, including cost incurred in a taxpayer's construction of capital facilities. Purpose of depreciation accounting is allocation of expense of using an asset over tax periods benefited by that asset. Commissioner v. Idaho Power Co., p. 1. INTRA-EXECUTIVE CONFLICTS. Eee Justiciability. ISSUES OF PUBLIC OR GENERAL INTEREST. See Defamation, 6. JUDGES. See Constitutional Law, I, 8; Contempt, 1, 3. JURIES, See also Constitutional Law, IV; V, 3; VIII; Obscenity, 1, 3. 1. Federal prosecution- Jury selection-Alleged exclusion of young people.-Petitioners' argument in federal criminal prosecution that District Court abused its discretion in refusing to grant continuance until a new jury with a presumably greater ratio of young people could be drawn is without merit, it having been almost four years since jury wheel had last been filled, and there having been no showing of a discriminatory exclusion of an identifiable group entitled to a group-based protection. Hamling v. United States, p. 87. 2. Federal prosecution-Vair dire examination-Sufficiency-Compliance with Fed. Rule Crim. Proc. 24 (a) .-District Court's voir dire examination in federal criminal prosecution was sufficient to test qualifications and competency of prospective jurors and complied with Rule 24 (a), and that court did not constitutionally err in not asking certain questions propounded by petitioners. Hamling v. United States, p. 87. JURISDICTION. See Appeals, 3; Constitutional Law, I, 1; Justicia.bility. 1322 INDEX JURY INSTRUCTIONS. See Appeals, l; Constitutional Law, IV; VIII; Defamation, 1 ; Obscenity, 1, 4-6, 9. JURY-SELECTION PROCEDURES. See Juries. JURY TRIALS. See Constitutional Law, VII; Contempt, 2-3. JUSTICIABILITY. See also Constitutional Law, III; Standing to Sue, 1, 3, 5. D~pute between Special Prosecuto.r and President-Production of Presidential tapes and documents.-Dispute between Special Prosecutor and President as to whether District Court in criminal prosecutions of certain staff members of White House and political supporters of President lacked jurisdiction to issue subpoena duces tecum for certain Presidential tape recordings and documents as to which President claimed executive privilege, because matter was an intrabranch dispute between a subordinate and superior officer of Executive Branch and hence not subject to judicial resolution, presents a justiciable controversy. United States v. Nixon, p. 683. KENTUCKY. See Constitutional Law, I, 8; Contempt, 1, 3. KNOWING FALSEHOODS. See Defamation, 2, 5. LABOR. See also Defamation, 1-3. Labor dis-putes-Freedom of speech-"Scab."-In appellee letter carriers' libel actions against appellant union for including appellees in "List of Scabs" published in union's newsletter together with pejorative definition of "scab" using words like "traitor," state award did not comport with protection for freedom of speech in labor disputes recognized in Linn v. Plant Guard Workers, 383 U. S. 53. Use of epithet "scab," which was literally and factually true and is common parlance in labor disputes, was protected under federal law. Publication of pejorative definition was likewise not actionable, since use of words like "traitor" cannot be construed as representations of fact and their use in a figurative sense to manifest union's strong disagreement with views of workers opposing unionization is also protected by federal law. Letter Carriers v. Austin, p. 264. LABOR DISPUTES. See Defamation, 1-3; Labor. LABOR UNIONS. See Defamation, 1-3; Labor. LESSENING OF COMPETITION. See Antitrust Acts, 6. LIBEL. See Defamation; Labor. LIBERTY. See Constitutional Law, 1, 5-7. LINE OF COMMERCE. See Antitrust Acts, 3. INDEX LOCAL RULES OF COURT. See Habeas Corpus, 2-3. LOGICAL NEXUS. See Standing to Sue, 4, 6. 1323 LOSS OF GOOD-TIME CREDITS. See Civil Rights Act of 1871; Constitutional Law, I, 6. MAGAZINES. See Defamation, 4. MAGISTRATES. See Habeas Corpus, 2-3. MAILING OBSCENE MATTER. See Constitutional Law, I, 2-4; IV; V, 4; Obscenity, 1-8. MALICE. See Defamation, 1. MARKET EXTENSION MERGERS. See Antitrust Acts, 8-10. MERGERS. See Antitrust Acts. METROPOLITAN SCHOOL DESEGREGATION. See School Desegregation, 2, 4. MICHIGAN. See School Desegregation. MILITARY SECRETS. See Constitutional Law, III, 2. MOOTNESS. See also Constitutional Law, II, 1. Disenfranchisement of felons-Effect of case's unusual procedural history.-In view of its unusual procedural history in Supreme Court of California, class action challenging constitutionality of provisions of California Constitution and implementing statutes disenfranchising ex-felons is not moot, even though county officials named as defendants decided not to contest action and told court they would henceforth register to vote ex-felons, including respondents, whose sentences and paroles had expired. Richardson v. Ramirez, p. 24. MOTION PICTURES. See Constitutional Law, V, 3; VIII; Obscenity, 9. MOTIONS TO QUASH SUBPOENAS. See Appeals, 3; Federal Rules of Criminal Procedure, l; Justiciability. MOVIE THEATERS. See Constitutional Law, V, 3; VIII; Obscenity, 9. MULTIDISTRICT SCHOOL DESEGREGATION. See School Desegregation, 1, 3-4. NATIONAL LABOR RELATIONS ACT. See Defamation, 1- 3; Labor. NATIONAL STANDARD. See Constitutional Law, IV; Obscenity, 1-8. 1324 INDEX NEBRASKA. See Civil Rights Act of 1871; Constitutional Law, I, 5-7; VI; Prisoners. NEGROES. See School Desegregation. NEW HAVEN. See Antitrust Acts, 2-3, 5, 7. NEWSMEN. See Bail. NEWSPAPERS. See Appeals, 2; Constitutional Law, V, 5. "NO BENEFIT" FINDINGS. See Federal Youth Corrections Act. NONDEDUCTIBLE CAPITAL EXPENDITURES. See Internal Revenue Code, 1. NOTICE. See Constitutional Law, I, 2-6. NUDITY. See Constitutional Law, V, 3; VIII; Obscenity, 9. OBJECTIONS TO JURY INSTRUCTIONS. See Appeals, 1. OBSCENITY. See also Constitutional Law, I, 2-4; IV; V, 3-4; VIII. 1. Advertising brochure-Sufficient evidence-Test.-Jury's determination that advertising brochure with sexually explicit photographic material related to illustrated version of official report on obscenity, was supported by evidence and was consistent with obscenity formulation of Memoirs v. Massachusetts, 383 U. S. 413. Hamling v. United States, p. 87. 2. Mailing obscene matter-Admissibility of evidence-Comparable materials.-District Court in prosecution for mailing obscene matter did not abuse its discretion in excluding allegedly comparable materials (materials with second-class mailing privileges, or judicially found to have been nonobscene, or available on newsstands), since, inter aJ,ia, expert testimony had been allowed on relevant community standards; and similar materials or judicial determinations with respect theret-0 do not necessarily prove nonobscenity of materials accused is charged with circulating; and with respect to whether proferred evidence is cumulative, clearly relevant, or confusing, trial court has considerable latitude. Hamling v. United States, p. 87. 3. Mauing obscene matter-Inconsistency in verdicts-Separability.- In federal prosecution for mailing an obscene illustrated version of an official report on obscenity and an advertising brochure relating to such illustrated report, inability of jury to reach verdict on counts charging distribution of illustrated report had no relevance to its finding that brochure was obscene, consistency in verdicts not being required, and brochure being separable from illustrated report. HJ1mling v. United States, p. 87. INDEX 1325 OBSCENITY-Continued. 4. Mailing obscene matter-Jury instruction as to pandering.- Since evidence of pandering ran be relevant in determining obscenity, as long as proper constitutional definition of obscenity is applied, it was not improper for District Court in prosecution for mailing obscene advertising brochure to instruct jury in connection with test of Memoirs v. Massachusetts, 383 U. S. 413, that it could also consider whether brochure had been pandered by looking to manner of its distribution and editorial content. Hamling v. United States, p. 87. 5. Mailing obscene matter-Jury iw;truction on prurient appeal.- In prosecution for mailing obscene advertising brochure, District Court's instruction that in deciding whether predominant appeal of brochure was to a prurient interest in sex jury could consider whether some portions appealed to a specifically defined deviant group as well as to average person was not erroneous, since in measuring prurient appeal, jury (which was instructed that it must find that material as a whole appealed generally to a prurient interest in sex) may consider material's prurient appeal to clearly defined deviant sexual groups. Hamling v. United States, p. 87. 6. Mailing obscene matter-Jury instructions on scienter.-District Court in prosecution for mailing obscene matter did not err in its instructions to jury on scienter, including its instruction that "[petitioners'] belief as to the obscenity or nonobscenity of the materials is irrelevant," it being constitutionally sufficient that prosecution show that a defendant had knowledge of contents of materials that he distributes, ar.d that he knew character and nature of materials. Hamling v. United States, p. 87. 7. Mailing obscene matter-Pre-Miller conduct-Effect of applicability of Miller standards.-Standards established in Miller v. California, 413 U. S. 15, and companion cases do not, as applied to petitioners' pre-Miller conduct, require a reversal of their convictions for mailing obscene matter. Defendants like petitioners, who were convicted prior to decisions in Miller cases but whose convictions were on direct appeal at that time, should receive any benefit available to them from those decisions. Hamling v. United States, p. 87. 8. Mailing obscene matter- Sufficiency of indictment.-Indictment under 18 U. S. C. § 1461 for mailing obscene matter was sufficiently rlPfinite. Language of § 1461 was not "too vague to support conviction for crime," and indictment gave petitioners adequate notice of charges against them, since at time petitioners were indicted statutory term "obscene," a legal term of art and not a generic ex1326 INDEX OBSCENITY-Continued. pression, had a definite legal meaning. Hamling v. United States, p. 87. 9. Motion picture-Pre-Mil,ler conduct-Effect of applicabuity of Miller standards.-Appellant, whose conviction of violating Georgia obscenity statute for showing obscene film in a theater was on appeal at time of announcement of Miller v. California, 413 U. S. 15, is entitled to any benefit available thereunder. Jenkins v. Georgia, p. 153. OHIO. See Constitutional Law, II, 2; V, 2. OPPORTUNITY TO BE HEARD. See Constitutional Law, I, 8. OUTLYING SCHOOL DISTRICTS. See School Desegregation, 4. PATENT OFFENSIVENESS. See Constitutional Law, I, 3; V, 3; Obscenity, 8-9. PEACE SYMBOL. See Constitutional Law, V, 1. PERSONAL RECOGNIZANCE. See Bail. PETTY O. . :"FENSES. See Contempt, 3. PHOTOGRAPHS. See Constitutional Law, I, 3; Obscenity, 1, 3. POLITICAL ADVERTISING. See Constitutional Law, II, 2 ; V, 2. POLITICAL CANDIDATES. See Appeals, 2; Constitutional Law, II, 2; V, 2, 5. PORNOGRAPHY. See Constitutional Law, I, 3; V, 3 ; Obscenity. POTENTIAL-COMPETITION DOCTRINE. See Antitrust Acts, 4, 10. PRE-EMPTION. See Defamation, 2--3. PRESIDENT. See Appeals, 3; Constitutional Law, III ; Federal Rules of Criminal Procedure; Justiciability. PRESIDENTIAL PRIVILEGE. See Appeals, 3 ; Constitutional Law, III ; Federal Rules of Criminal Procedure, 3; Justiciability, PRESS CRITICISM OF POLITICAL CANDIDATES. See Appeals, 2 ; Constitutional Law, V, 5. PRESUMED DAMAGES. See Defamation, 5. PRIOR NOTICE. See Constitutional Law, I , 5-6. PRISON DISCIPLINARY PROCEEDINGS. See Civil Rights Act of 1871; Constitutional Law, I, 5-7. INDEX 1327 PRISONERS. See also Civil Rights Act of 1871; Constitutional Law, I, 5-7; VI; Habeas Corpus, 1. Legal, assistance-Civil rights actions.-District Court, as Court of Appeals suggested, is to assess adequacy of legal assistance available for preparation of prisoners' civil rights actions, applying standard of Johnson v. Avery, 393 U. S. 483, 490, that "unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for postconviction relief, inmates could not be barred from furnishing assistance to each other." Wolff v. McDonnell, p. ,539. PRIVATE INDIVIDUALS. See Defamation, 5-7. PRIVATELY OWNED AMERICAN FLAGS. See Constitutional Law, V, 1. PROCEDURAL DUE PROCESS. See Constitutional Law, I, 5-6, 8. PROCEDURE. See Appeals, 1, 3; Federal Rules of Criminal Procedure; Juries. PRODUCT MARKET. See Antitrust Acts, 6. PROTECTED EXPRESSION. See Constitutional Law, V, 1, 3-4. PRURIENT APPEALS. See Constitutional Law, V, 3-4; Obscenity, 4-5. PUBLIC EXPENDITURES. See Standing to Sue, 2-4. PUBLIC FIGURES. See Defamation, 4. PUBLIC FUNDS. See Standing to Sue, 2-4. PUBLIC ISSUES. See Defamation, 6. PUBLIC OFFICIALS. See Defamation, 4. PUBLIC SCHOOLS. See School Desegregation. PUBLIC TRANSIT ADVERTISING. See Constitutional Law, II, 2; V, 2. PUBLISHERS. See Defamation, 4, 6-7. PUNITIVE DAMAGES. See Defamation, 5. QUASHING OF SUBPOENAS. See Appeals, 3; Federal Rules of Criminal Procedure, 1; Justiciability. RACIAL DISCRIMINATION. See School Desegregation. RACIAL RATIOS. See School Desegregation, 2. RECKLESS-OR-KNOWING-FALSEHOOD TEST. See Defamation, 1-3, 5. 1328 INDEX RECOGNIZANCE. See Bail. REDUCTION OF SENTENCE. See Contempt, 3. REGISTRATION TO VOTE. See Constitutional Law, II, 1; Mootness. RELEVANT GEOGRAPHIC MARKET. See Antitrust Acts, 2, 5-7. RELEVANT PRODUCT MARKET. See Antitrust Acts, 6. REMEDIES. See School Desegregation, 1, 3-4. REPORT OF THE COMMISSION ON OBSCENITY AND POR..- NOGRAPHY. See Constitutional Law, I, 3; Obscenity, 1, 3. RESERVIST MEMBERS OF CONGRESS. See Standing to Sue, 1, 6. RESTORATION OF GOOD-TIME CREDITS. See Civil Rights Act of 1871; Constitutional Law, I, 5-6. RETROACTIVITY . . Sec Constitutional Law, I, 7. REVOCATION OF GOOD-TIME CREDITS. See Civil Rights Act of 1871; Constitutional Law, I, 5-6. RIGHT OF CONFRONTATION. See Constitutional Law, I, 5-6. "RIGHT OF REPLY" STATUTES. See Appeals, 2; Constitutional Law, V, 5. RIGHT TO COUNSEL. See Constitutional Law, I, 5-6 ; VII; Prisoners. RIGHT TO CROSS-EXAMINATION. See Constitutional Law, I, 5-6. RIGHT TO EQUAL SPACE. See Appeals, 2; Constitutional Law, V, 5. RIGHT TO JURY TRIAL. See Constitutional Law, VII; Contempt, 2-3. RIGHT TO LIBERTY. See Constitutional Law, I, 5-6. RIGHT TO PRESENT EVIDENCE, See Constitutional Law, I, 5-6. ROBUST DEBATE. See Defamation, 2. RULES OF CRIMINAL PROCEDURE. See Appeals, 3; Constitutional Law, III; Federal Rules of Criminal Procedure; Juries. "SCABS." See Defamation, 1-2; Labor. INDEX SCHOOL BUSING. See School Desegregation. SCHOOL DESEGREGATION. 1329 1. Interdistrict segregation-Consolidation or cross-district remedy- Necessary showing.-Before boundaries of separate and autonomous school districts may be set aside by consolidating separate units for remedial purposes or by imposing a cross-district remedy, it must be first shown that there has been a constitutional violation within one district that produces a significant segrega.tive effect in another district; i. e., specifically, it must be shown that racially discriminatory acts of state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Milliken v. Bradley, p. 717. 2. Metropolitan area plan-Erroneous standard.-District Court, in desegregating Detroit schools, erred in using as a standard declared objective of a metropolitan area plan which, upon implementation, would leave "no school, grade, or classroom ... substantially disproportionate to the overall pupil racial composition" of metropolitan area as a whole. Clear import of Swann v. Board of Education, 402 U. S. 1, is that desegregation, in sense of dismantling a dual school system, does not require any particular racial balance. Milliken v. Bradley, p. 717. 3. School district lines- Inter.district relief.-While boundary lines may be bridged in circumstances where there has been a constitutional violation calling for interdistrict relief in desegregating schools, school district lines may not be casually ignored or treated as a mere administrative convenience; substantial local control of public education in this country is a deeply rooted tradition. Milliken v. Bradley, p. 717. 4. Single-district de jure viofotions-Propriety of multidistrict, areawide remedy.- Relief ordered by District Court and affirmed by Court of Appeals, consisting of desegregation plan encompassing 53 of 85 outlying suburban school districts plus Detroit, was based upon erroneous standards and was unsupported by record evidence that acts of outlying districts had any impact on discrimination found to exist in Detroit echools. A federal court may not impose a multidistrict, areawide remedy for single-district de jure school segregation violations where there is no finding that other included school districts have failed to operate unitary school systems or have committed acts that effected segregation within other districts, no claim or finding that school district boundary lines were established with purpose of fostering racial segregation, and no meaningful opportunity for included neighboring school districts to present evidence or be heard on propriety of a multidistrict remedy or on question 1330 INDEX SCHOOL DESEGREGATION-Continued. of constitutional violations by those districts. Milliken v. Bradley, p. 717. SCHOOL DISTRICTS. See School Desegrega.tion. SECTION OF THE COUNTRY. See Antitrust Acts, 7. SELECTION OF JURIES. See Juries. SENTENCES. See Constitutional La.w, I, 8; Contempt, 2-3; Federal Youth Corrections Act. SEPARATION OF POWERS. See Constitutional La.w, III; Justiciability. SEXUAL CONDUCT. See Constitutional Law, V, 3; VIII; Obscenity, 9. SEXUALLY EXPLICIT MATERIAL. See Constitutional Law, I, 3; V, 3; Obscenity. SIXTH AMENDMENT. See Constitutional Law, VII; Contempt, 2-3. SLANDER. See Defamation. SPECIAL PROSECUTOR. See Appeals, 3; Constitutional La.w, III; Federal Rules of Criminal Procedure; Justiciability. SPOKANE. See Antitrust Acts, 1, 4, 6, 8-10. STANDING TO SUE. l. Citizens-Chal,lenge to constitutional,ity of Reserve membership of Members of Congress-Generahzed interest.-In class action by respondents (an association of present and former members of Armed Forces Reserve opposing United States involvement in Vietnam, and five association members) challenging Reserve membership of Members of Congress as violating Incompatibility Clause of Art. I, § 6, cl. 2, of Constitution, respondents had no standing to sue as citizens, since claimed nonobservance of Incompatibility Clause which they assert deprives citizens of faithful discharge of legislative duties of Reservist Members of Congress implicates only generalized interest of all citizens in constitutional governance and is thus merely an abstract injury rather than concrete injury that is essential to Art. Ill's "case or controversy" requirement. Schlesinger v. Reservists to Stop the War, p. 208. 2. Federal. taxpayer- Chal,lenge to constitutional,ity of Central, Intelligence Agency Act.-Respondent federal taxpayer lacks standing to maintain suit alleging that CIA Act violated Art. I, § 9, cl. 7, of INDEX 1331 STANDING TO SUE-Continued. Constitution insofar as that clause requires a regular statement and account of public funds. United States v. Richardson, p. 166. 3. Federal, taxpayer-Chdlenge to constitutiondity of Central, Intelligence Agency Act-Generdized grievance.-Respondent federal taxpayer's claim, in action challenging constitutionality of CIA Act, that without detailed information on CIA's expenditures he cannot properly follow legislative or executive action and thereby fulfill his obligations as a voter is a generalized grievance insufficient under Frothingham v. Mellon, 262 U. S. 447, or Fla.st v. Cohen, 392 U. S. 83, to show that "he has sustained or is immediately in danger of sustaining a clirect injury as the result" of such action. United States v. Richardson, p. 166. 4. Federal, taxpayer-Chdlenge to constitutionality of Central, Intelligence Agency Act-Lack of logical nexus.-Respondent's challenge that CIA Act violated Art. I, § 9, cl. 7, of Constitution, not being addressed to taxing or spending power but to statutes regulating accounting and reporting procedures, provides no "logical nexus" between his status as "taxpayer" and asserted failure of Congress to require more detailed reports of expenditures of CIA. United States v. Richardson, p. 166. 5. Federal, taxpayer-Generalized grievances.-Flast v. Cohen, 392 U. S. 83, which stressed need for meeting requirements of Art. III, did not "undermine the salutary principle ... established by Frothingham [v. Mellon, 262 U. S. 447] ... that a taxpayer may not 'employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.'" United States v. Richardson, p. 166. 6. Federal, taxpayers-Challenge to constitutionality of Reserve membership of Members of Congress-Logical, nexus.- In class action by respondents (an association of present and former members of Armed Forces Reserve opposing United States involvement in Vietnam, and five association members) challenging Reserve membership of Members of Congress as violating Incompatibility Clause of Art. I, § 6, cl. 2, of Constitution, respondents lacked standing to me flS taxpayers, since they failed to establish required "logical nexus between the [taxpayer] status asserted and the claim sought to be adjudicated." Schlesinger v. Reservists to Stop the War, p. 208. STATEMENT AND ACCOUNT CLAUSE. See Standing to Sue, 2-5. 1332 INDEX STATE PRISONERS. See Civil Rights Act of 1871; Constitutional Law, I, 5-7; VI; Habeas Corpus; Prisoners. STATUTORY CONSTRUCTION. See Antitrust Acts, 3, 7; Federal Youth Corrections Act; Habeas Corpus, 1-2. STUDENT DESEGREGATION. See School Desegregation. SUBPOENAS DUCES TECUM. See Appeals, 3; Constitutional Law, III; Federal Rules of Criminal Procedure; Justiciability. SUBSTITUTION OF JUDGES. See Contempt, 1. SUBURBAN SCHOOL DISTRICTS. See School Desegregation, 4. SUPREME COURT. See also Appeals, 2-3. 1. Notation of the death of Mr. Chief Justice Warren (retired), p. V. 2. Assignment of Mr. Justice Clark (retired) to the United States Court of Appeals for the Second Circuit, p. 955. 3. Assignment of Mr. Justice Clark (retired) to the United States District Court for the Southern District of New York, p. 955. SYMBOLISM. See Constitutional Law, V, 1. TAPE RECORDINGS. See Appeals, 3; Bail; Constitutional Law, III; Federal Rules of Criminal Procedure; Habeas Corpus, 3; Justiciability. TAX DEDUCTIONS. See Internal Revenue Code. TAXES. See Internal Revenue Code. TAXING AND SPENDING POWER. See Standing to Sue, 2-5. TAXPAYERS. See Standing to Sue, 2-5. THEATERS. See Constitutional Law, V, 3; VIII; Obscenity, 9. TRANSPORTATION EQUIPMENT. See Internal Revenue Code, 1. TRANSPORTATION OF STUDENTS. See School Desegregation. TRIAL BY JURY. See Constitutional Law, VII; Contempt, 2-3. TRIAL COURT'S SENTENCING FUNCTION. See Federal Youth Corrections Act. TRIALS. See Appeals, 1 ; Juries. UNCONSTITUTIONAL APPLICATION. See Constitutional Law, V, 1. UNDERGROUND GROUPS. See Bail. UNIFORM CODE OF MILITARY JUSTICE. See Constitutional Law, I, 1. INDEX 1333 UNION NEWSLETTERS. See Defamation, 1-2; Labor. UNION ORGANIZING CAMPAIGNS. See Defamation, 1-3; Labor. UNITARY SCHOOL SYSTEMS. See School Desegregation. UNITED STATES FLAG. See Constitutional Law, V, 1. VAGUENESS. See Constitutional Law, I, 1-4. VIETNAM. See Standing to Sue, 1, 6. VOIR DIRE. See Juries, 2. VOTER REGISTRATION, See Constitutional Law, II, 1; Mootness. VOTING RIGHTS. See Constitutional Law, II, 1; Mootness. WASHINGTON. See Antitrust Acts, 1, 4, 6, 8-10. WITNESSES. See Constitutional Law, I, 5--6. WORDS AND PHRASES. 1. "Amount paid out." § 263 (a) (1), Internal Revenue Code of 1954, 26 U.S. C. §263 (a)(l). Commissioner v. Idaho Power Co., p. 1. 2. "Final judgment.'' 28 U. S. C. § 1257. Miami Herald Publishing Co. v. Tornillo, p. 241. 3. "Final order." 28 U. S. C. § 1291. United States v. Nixon, p. 683, 4. "In." 28 U. S. C. § 1254. United States v. Nixon, p. 683. 5. "Line of commerce." § 7, Clayton Act, 15 U. S. C. § 18. United States v. Connecticut National Bank, p. 656. 6. "Section of the country." § 7, Clayton Act, 15 U. S. C. § 18. United States v. Marine Bancorporation, p. 602; United States v. Connecticut National Bank, p. 656. YOUTH OFFENDERS. See Federal Youth Corrections Act. u. s. GOVERNMENT PRD-lTCNC OFFtCE : 1976 0 .. 552-191 l I I r ----- -- ' I I t ! ,----- - --- - - - - I I ! r 345.4 Uru 133924 U.S. 5upreme Court United States reports J_1_ I ~..r v LI OOTJ 'E r)I ..:: ft r~ y { ( , \ L L A nl )~ 'Y IZ.\PETll N". J. 345.4 Un3 DATE .. t U.S. Supreme Court Unitea States repor ISSUED TO DEMCO :)2•209 DATE ISSUED TO ==I= t- - - ---- l + -t- -- --- +- 345.4 UnJ DATE 133924 U.S. Supreme court United States repo ISSUED TO DEMCO 32•:Zoa DATE ISSUED TO I t + .. --1- j -t- 1 1 I LSCMFDLP103920