T I IIIIIIII Ill lllll lllll lllll lllll lllll lllll 111111111111111111 * 9 8 9 1 9 9 4 9 2 * PROPERTY OF THE UNITED STATES UNITED STATES REPORTS VOLUME 443 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1978 JUNE 25 THROUGH AUGUST 30, 1979 TOGETIIER WtTII OP11'll0SS OF INDIVIDUAL JUSTICES IN CH.ui»ERS END OF TERM HENRY C. LIND REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHING TON : 1981 For sale by the Superintendent ol Documents, U.S. Government Printinir Office Wuhin(ton. D.C. 20402 JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS WARREN E. BURGER, CHIEF JUSTICE. WILLIAM J. BRENNAN, JR., ASSOCIATE JUSTICE. POTTER STEWART, ASSOCIATE JUSTICE. BYRON R. WHITE, ASSOCIATE JUSTICE. THURGOOD MARSHALL, ASSOCIATE JUSTICE. HARRY A. BLACKMUN, ASSOCIATE JUSTICE. LEWIS F. POWELL, JR., ASSOCIATE JUSTICE. WILLIAM H. REHNQUIST, ASSOCIATE JUSTICE. JOHN PAUL STEVENS, AssocIATE JusTICE. RETIRED STANLEY REED, ASSOCIATE JUSTICE. WILLIAM 0. DOUGLAS, ASSOCIATE JUSTICE. OFFICERS OF THE COURT GRIFFIN B. BELL, ATTORNEY GENERAL. 1 BENJAMIN R. CIVILETTI, AT'rORNEY GENERAL.2 w ADE H. McCREE, JR., SOLICITOR GENERAL. MICHAEL RODAK, Ja., CLERK. HENRY C. LIND, REPORTER OF DECISIONS. ALFRED WONG, MARSHAL. ROGER F. JACOBS, LIBRARIAN. 1 Attorney General Bell resigned effective August 16, 1979. 2 The Honorable Benjamin R. Civiletti, of Maryland, Deputy Attorney General, was nominated to be Attorney General by President Carter on July 21, 1979. The nomination was confirmed by the Senate on August 1, 1979; he was commissioned on August 16, 1979, and took the oath of office on the same date. m 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, Unit;('d 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, JOHN PAUL STEVENS, Associate Justice. For the Eighth Circuit, HARRY A. BLACKMUN, Associate Justice. For the Ninth Circuit, WILLIAM H. REHNQUIST, Associate Justice. For the Tenth Circuit, BYRON R. WHITE , Associate Justice. December 19, 1975. (For next previous allotment, see 404 U. S., p. v.) IV TABLE OF CAS~ REPORTED NOTE: All undesignated references herein to the United States Code are to the 1976 edition. Cases reported before page 901 are those decided with opinions of the Court or derisions per curiam. Cases reported on page 901 et seq. are those in which ordf'rs were entered. Opinions r<'ported on page 1301 et seq. are those written in chambers by individual Justices. Page Adams v. Illinois...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905 AFI.r--CIO v. Kahn .. • .......................................... 915 Angela. Compania Naviera, S. A. v. Public Administrator of N. Y.. 928 Attorney General of Idaho v. Great Western United Corp........ 173 Attorney General of Ma.~sachusetts v. Baird..................... 622 Aust.in Independent School District v. United States............. 915 Baird; Bellotti v. . . .. . . . . .. .. . . .. . .. . .. . .. . . . . .. . .. . .. . .. . .. . . 622 Baird; Hunerwadel v.......................................... 622 Baker v. McCollan............................................ 137 Baldwin v. Mills.......... .. .. . .. . . . . . . . .. . .. . .. . .. . .. .. .. . . . . 914 Banta v. Firefighters Institute for Racial Equality........ . . . . . . . . 904 Barchi; Barry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Barr; Golden v............................................... 913 Barry v. Barchi............................................... 55 Bellotti v. Baird.............................................. 622 Blackburn; French v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901 Blakley v. Florida... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Board of Education of Jefferson County v. Haycraft.............. 915 Boles; Califano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Booker; Special School District No. 1, Minneapolis v. . . . . . . . . . . . 915 Branti v. Finkel........................... . . . . . . . . . . . . . . . . . . . . 904 Bratton; Shiffrin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903 Brinkman; Dayton Board of Education v. . . . . . . . . . . . . . . . . . . . . . . 526 Brotherhood. For labor union, see name of trade. Brown; Montgomery Publishing Co. v.......................... 914 Brown; Society of Professional Journalists v. . . . . . . . . . . . . . . . . . . . 913 Brown v. Texas............................................... 47 Browne; Califano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901 Califano v. Boles....................................... . . . . . . . 282 Califano v. Browne....................... . .................... 901 V TABLE OF CASES REPORTED Califano v. Mattern .......................................... . Califano v. Stev<'ns ........................................... . Califano v. Wt>stcott .......................................... . California; Leonard M. v . .................................... . California v. Minjares ........................................ . California v. P. S. W ......................................... . California; Robbins v ........................................ . Chairman, Counril on Wage and Prirt> 8tahility; AFL-f'IO v .... . Chairman, Racing and Wagering Board of ew York v. Barchi ... . Chaney v. Wainwright ........................................ . City. See name of city. Page 912 901 76 914 916 902 903 915 55 904 Clark County Deputy Public Defenders v. Wolff. . . . . . . . . . . . . . . . . 1306 Columbus v. Leonard.......................................... 905 Columbus Board of Education t'. Penick ...................... 449,916 Commisi::ionrr, Dept. of Public Welfari> of Mass. v. Westcott. . . . . . . 76 Commonwealth. Sec name of Commonwealth. Compagnie Genera le Transatlant ique; Edmonds v. . . . . . . . . . . . . . . . 256 Correctiong Commis.<,ioner. See name of commissioner. County. See name of county. County Court .Judge of 8eni>ca County; Gannett Co. v..... . . . . . . 36R Daily Mail Publishing Co.; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Dawson v. Maryland.......................................... 904 Dayton Board of Education v. Brinkman....................... 526 DeFillippo; Mirhigan v........................................ 31 De Marco v. United States...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Department of Education of Pa.; Pequea Valley School District t i .. 901 Department of Education of Pa.; School District of Pittsburgh v. . . 901 DePasquale; Gannett Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368 DeSantis v. New York........................................ 912 Director of penal or rorrectional institution. See name of director. District Court. See U. S. District Court. District Judge. See U. S. District Judge. Dolman ti. United States....................................... 914 Duckworth; Moore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 713 Edmonds v. Compagnie Generale Transatlantique................. 256 Eleuti>rio v. Wainwright.......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915 Empresa Lineas Maritima.s Argentinas v. Samuels. . . . . . . . . . . . . . . . 915 Fabritz; Hopkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915 Federal Open Market Comm. of Fed. Reserve System v. Merrill... 340 Finkel; Bran ti v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Firefighters Institute for Ra.rial Equality; Banta v. . . . . . . . . . . . . . . . 904 Florida; Blakley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 French v. Blackburn........................................... 901 Gannett Co. v. DePasquale.................................... 368 TABLE OF CASES REPORTED General Telephone Co. v. Public Utilities Comm'n of Cal. ........ . Georgia; Whisenhunt v ....................................... . Golden v. Barr ............................................... . Great \Vestern United Corp.; Leroy v .......................... . Grim v. United States ........................................ . Gunter v. Kentucky .......................................... . Guzman v. Louisiana ......................................... . Harrington v. United States ................................... . Haycraft; Board of Education of Jefferson County v .. .......... . Honeyman; Montgomery Publishing Co. v . ..................... . Honeyman; Society of Professional Journalists v .... ............ . Hopkins v. Fabritz ........................................... . Hunerwadel v. Baird ......................................... . Hutchinson v. Proxmire' ....................................... . Illinois; Adams v . ........................................... . In re. See name of party. International. For labor union, see name of trade. Jackson v. Virginia ........................................... . Jerome; Philadelphia Newspapers, Inc. v ....................... . Jones v. Wolf. ............................................... . Judge, U.S. Court of Appeals; Morland v ...................... . Kahn; AFL-CIO v . ......................................... . Kaiser Aluminum & Chemical Corp. v. Weber .................. . . Kentucky; Gunter v ......................................... . Labor Board; National Jewish Hospital & Research Center v ..... . Labor l 1nion. See name of trade. Lenhard v. Wolff ............................................. . Leonard; Columbus v . ........................................ . Leonard M. v. California ..................................... . Leroy v. Great Western United Corp ........................... . Local. For labor union, sec name of trade. VII Page 1301 903 913 173 912 905 912 914 915 914 914 915 622 111 905 307 913 5% 709 915 193 905 903 1306 905 914 173 Louisiana; Guzman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912 Louisiana; Willie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901 M. v. California.............................................. 914 Mackey v. Montrym.......................................... 1 Maryland; Dawson v.......................................... 904 Mattern; Califano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912 MrCollan; Baker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 McKenzie v. Montana ....................................... 903,912 Merrill; Federal Open Market Comm. of Fed. Reserve System v. . . 340 Michigan v. DeFillippo........................................ 31 Mills; Baldwin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914 Miner v. New York........................................... 912 Minjares; California v........................................ 916 VIII TABLE OF CASES REPORTED Page Minnich v. United States...................................... 914 Missouri; Phillips v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Mitchell; Rose v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545 Montana; McKenzie v ...................................... 903,912 Montgomery Publishing Co. v. Brown.......................... 914 Montgomery Publishing Co. v. Honeyman....................... 914 Montrym; Mackey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Moore v. Duckworth.......................................... 713 ?-.lorland v. Sprecher... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 709 National Jewi,;h Hospital & Resffirch Center v. Labor Board...... 903 National Labor Relations Board. See Labor Board. Nebraska State Dept. of Public Welfare; Woe v........ .... ..... 913 New York; DeSantis v........................................ 912 New York; Miner v........................................... 912 New York; Tamilio v... ...... .... .. ... ... ...... ... ... ......... 912 Norfolk; Womack v........................................... 902 Omaha Indian Tribe: RGP, Inc. v........ ....... . .............. 902 Pacific Far East Line, Inc. v. R. J. Reynolds Tobacco Co......... 916 Pacific Far East Line, Inc. v. Zirpoli............................. 916 Pacific Tel. & Tel. Co. v. Public l'tilities Comm'n of Cal. . . . . . . . . . 1301 Pt>nick; Columbus Board of Education v ..................... 449,916 Pequea Valley School District v. Department of Education of Pa. . . 901 Percy v. Terry................................................ 902 Philadelphia Newspapers, Inc. v. Jerome. . . . . . . . . . . . . . . . . . . . . . . . 913 Phillips v. Missouri........................................... 904 Pratt v. Westcott............................................. 76 Proxmire; Hutchinson v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 P. S. W.; California v......................................... 902 Public Administrator of N. Y.; Angela Compania Naviera, S. A. v.. 982 Public Ftilities Comm'n of Cal.; General Telephone Co. v... . . . . . 1301 Public Vtilitie;; Comm'n of Cal.; Pacific Tel. & Tel. Co. v..... .... 1301 Puget Sound Gillnetters Assn. v. United States.................. 658 Puget Sound GiHnetten; Assn. v. U. S. District Court............. 658 Puget Sound Gillnetters As..~n.; Washington v.................... 653 Reader's Digest Assn., Inc.; Walston v.......................... 157 Reaves, In re................................................. 903 Redington v. Touche Ross & Co................................ 904 Registrar of Motor Vehicles of Massachusetts v. Montrym......... 1 RGP, Inc. v. Omaha Indian Tribe.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902 R. J. Reynolds Tobacco Co.; Pacific Far East Line, Inc. v. . . . . . . . 916 Robbins v. California.......................................... 903 Rome v. Unit~d States........................................ 914 Rose v. Mitchell.............................................. 545 Rubin; Union Light, Heat & Power Co. v....................... 913 TABLE OF CASES REPORTED IX Page Samuels; Empresa Lineas Maritimas Argentinas v................ 915 School District of Pittsburih v. Department of Education of Pa... . 901 Secretary, Dept. of Health and Social Services of Wis. v. Terry... . 902 Secretary of Health, Education, and Welfare v. Boles............. 282 Secretary of Health, Education, and Welfare v. Browne........... 901 Secretary of Health, Education, and Welfare v. Mattern........... 912 Secretary of Health, Education, and Welfare v. Stevens............ 901 Secretary of Health, Education, and Welfare v. Westcott.... . . . . . . 76 Securities Investor Protection Corp. v. Touche Ross & Co........ 904 Serbian E. Ort-ho. Diocese; Serbian E. Ort.ho. Diocese (corp.) v.... 904 Serbian E. Ort.ho. Diocese (corp.) v. Serbian E. Ortho. Diocese.... 904 Shiffrin v. Bratton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903 Simpson; Weeks v............................................ 911 Sink v. llnited States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912 Smith v. Daily Mail Publishing Co............................. 97 Society of Professional Journalists v. Brown.. . . . . . . . . . . . . . . . . . . 913 Society of Professional Journalists v. Honeyman. . . . . . . . . . . . . . . . . 914 Special School District No. 1, Minneapolis v. Booker.. . . . . . . . . . . . 915 Sprecher; Morland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 709 Standard Brands, Inc. v. Teamsters............................. 913 State. See name of State. Steelworkers v. Weber.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Ste,·ens; Califano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901 Stevie; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911 Tamilio v. New York.......................................... 912 Teamsters; Standard Brands, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 913 Terry; Percy v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902 Texas; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Texas; Washington v... .................. .................... . 902 Tourhe Ross & Co.; Redington v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Toucl1e Ross & Co.; Securities Investor Protection Corp. v... . . . . 904 Union. For labor union, see name of trade. Union Light, Heat & Power Co. v. Rubin........................ 913 United. For labor union, see name of trade. United States; Austin Independent School District v............. 915 United States; De Marco v.. ......................... ...... ... 904 United States; Dolman v...................................... 914 United States; Grim v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912 United States; Harrington v............................... .... 914 United States; Minnich v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914 United States; Puget Sound Gillnetters Assn. v. . . . . . . . . . . . . . . . . . 658 United States; Rome v........................................ 914 United States: Sink v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912 United States v. Stevie......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911 X TABLE OF CASES REPORTED Page United States; Washington v..... ... ...... . .. . ....... . .... . .. . 658 United States v. Weber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 U. S. District Court; Puget Sound Gi!lnetters Assn. v............ 658 U.S. District Judge; Pacific F:ir East Line, Inc. v.. . . . .. . ........ 916 U.S. District Judge; Union Light, Heat & Power Co. v........... 913 Virginia; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 Vv.; California. v.. . .. ............... . ................ . ........ 902 Wainwright; Chaney v......................................... 904 Wainwright; Eleuterio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915 Warden. See name of warden. Washington v. Puget Sound Gillnetters Assn........ .. ......... . . 658 Washington v. Texas.......................................... 902 Washington v. United States.................... . ...... . ....... 658 Washington v. Wash. Commercial Pas..<>enger Fishing Vessel Assn.. 658 Washington Commercial Passen11:er Fishing Ves...,;;el AS5n.; Wash. v.. 658 Weber; Kaiser Aluminum & Chemical Corp. v...... . ... . ........ 193 Weber; Steelworkers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Weber; United States v.................... . ................... 193 Weeks v. Simpson........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911 Westcott; Califano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Westcott; Pratt v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Whisenhunt v. Georgia........................................ 903 Willie v. Louisiana.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901 Woe v. Nebraska State Dept. of Public Welfare.................. 913 Wolf; Jones v................................................ 595 Wolff; Lenhard v.................... . ................. . .... .. 1306 Wolston v. Reader's Digest Assn., Inc..... . . . ... .. .. . .. . .. ...... 157 Womack v. Norfolk.. ............. . ... . .... . ... . .... ....... . .. 902 Zirpoli; Pacific Far East Line, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 916 TABLE OF CASES CITED Page Abelman v. Booth, 21 How. 506 695 Adams v. Williams, 407 U. S. 143 36,37 Adderley v. Florida, 385 U. S. 39 314,333 Addington v. Texas, 441 U. S. 418 13,336 Aguilar v. Texas, 378 U.S. 108 23 Albemarle Paper Co. v. Moody, 442 u. s. 405 204 Albertson v. SACB, 382 U. S. 70 44 Alexander v. Gardner-Denver Co., 415 U. S. 36 211 Alexander v. Holmes County Bd. of Ed., 396 U.S. 19 497 Alexander v. Louisiana, 405 u. s. 625 551,554,590,593 Alma. Motor Co. v. Timken- Detroit Axle Co., 329 U. S. 129 161 Almeida-Sanchez v. United States, 413 U. S. 266 39, 43 American Communications Assn. v. Douds, 339 U. S. 382 106 Antoine v. Washington, 420 U.S. 194 673,682,684 Ar_g_ersinger v. Hamlin, 407 U.S. 25 415 Arizona v. California., 373 U. S. 546 684-686 Arkansas v. Sanders, 442 U. S. 753 903 Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 464, 465, 470, 481, 508- 510, 513, 515, 518, 519 Armstrong v. Manzo, 380 U.S. 545 66 Arnett v. Kennedy, 416 U. S. 134 70 Arnold v. North Carolina, 376 u. s. 773 551,590 Page Ashwander v. TVA, 297 U. S. 288 327 Associated General Contractors of Mass. v. Altschuler, 490 F. 2d 9 198 Atlas, The, 93 U. S. 302 260, 272 Austin Independent School Dist. v. United States, 429 U. S. 990 482,512 Baird v. Attorney General, 371 Mass. 741 630,631, 633, 644-647, 650, 653, 655 Baird v. Bellotti, 393 F. Supp. 847 626-628,640,649,651 Baird v. Bellotti, 428 F. Supp. 854 631,645 Ball v. Police Committee of Atlanta, 136 Ga. App. 144 906 Ballard v. United States, 329 u. s. 187 556 Barker v. Wingo, 407 U. S. 514 153,383,415,418,427 Barry v. Barcbi, 443 U. S. 55 13, 15,29 Bates v. Little Rock, 361 U. S. 516 110 Batterton v. Francis, 432 U. S. 416 79,80,93 Beauchamp v. Cahill, 297 Ky. 505 388,431 Beck v. Ohio, 379 U. S. 89 36, 37 Beck v. Washington, 369 U. S. 541 404,443 Bell v. Burson, 402 U. S. 535 9, 10, 17, 2~23, 64, 65, 69-71 Bell v. Wolfish, 441 U. S. 520 144, 153 Bellotti v. Baird, 428 U. S. 132 624,626,628,639- 641, 643, 646, 652-654 Berenyi v. Immigration Director, 385 U. S. 630 592 XI XII TABLE OF CASE:l CITED Page Berger v. United States, 295 u. s. 78 384 Bird v. State, 103 Tenn. 343 548 Bishop v. Wood, 426 U.S. 341 64, 162,181 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 434,435,919,926 Blackburn v. Alabama, 361 u. s. 199 318 Black & Co. v. Nova-Tech, Inc., 333 F. Supp. 468 188 Board of Ed. v. State, 45 Ohio St. 555 455, 472 Board of Regents v. Roth, 408 u. s. 535 64, 70, 71 Boddie v. Connecticut, 401 U. S. 371 20, 21, 71,314 Boehning v. Indiana Employees As.5n., 423 U. S. 6 910 Bolen v. State, 554 S. W. 2d 918 548 Bolling v. Sharpe, 347 U. S. 497 304,493 Borden Co. v. Sy!k, 289 F. Supp. 847 362 Bouldin v. Alexander, 15 Wall. 131 607 Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 184, 185 Branzburg v. Hayes, 408 U. S. 665 104,106,110,400,404,440 Breed v. Jones, 421 U. S. 519 634 Brennan v. Armstrong, 443 u. s. 672 520 Brennan v. Illinois Racing Bd., 42 Ill. 2d 352 69 Brewer v. Williams, 430 U. S. 387 153,396 Bridges v. California, 314 U. S. 252 413,442 Brinegar v. United States, 338 U. S. 160 36, 37, 44, 315 Brinkman v. Gilligan, 583 F. 2d 243 493,521 Bronston v. United States, 409 U. S. 352 317,329 Brown v. Allen, 344 U. S. 443 318, 322,580 Page Brown v. Board of Ed., 347 U. S. 483 386,455,456,459, 463, 469, 472, 480--482, 486,490, 492--494, 496- 498, 500, 504, 506, 529, 534-536, 538, 539, 542 Brown v. Board of Ed., 349 U. S. 294 458-460, 470, 482, 494, 496-499 Brown v. State, 222 Miss. 863 430 Brown v. Texas, 443 U. S. 47 902 Brunette Machine Works v. Kockum Industries, 406 U. S. 706 184,185 Buckner v. Goodyear Tire & Rubber Co., 339 F. Supp. 1108 198 Bucolo v. Adkins, 424 U. S. 641 712 Burger v. New York, 388 U. S. 41 39,43 Bush v. Kentucky, 107 U. S. 110 551,556,557,590 Butner v. United States, 440 U. S. 48 181 Byars v. United States, 273 U.S. 28 921 Cady v. Dombrowski, 413 U.S. 433 927 Califano v. Goldfarb, 430 U. S. 199 84,85,90,283,284 Califano v. Jablon, 430 U. S. 924 84,90 Califano v. Jobst, 434 U. S. 47 89,283,284,288.289, 297 Califano v. Silbowitz, 430 U. S. 924 90 Califano v. Webster, 430 U. S. 313 85,283,284 Califano v. Westcott, 443 U.S. 76 901 Califano v. Yamasaki, 442 U. S. 682 283,285,297 California Human Resources Dept. v. Java, 402 U.S. 121 283 Caminetti v. United States, 242 u. s. 470 228 Capitol Traction Co. v. Hof, 174 u. s. 1 317 Carey v. Population Services International, 431 U.S. 678 639 Carnes v. Smith, 236 Ga. 30 600, 601, 606, 608 TABLE OF CASES CITED Xlll Page Carpenters & Joiners v. United States, 330 U. S. 395 317 Carroll v. United States, 267 U. S. 132 37 Carter v. Jury Comm'n, 396 U. S. 320 552,578,583,590,592 Carter v. Texas, 177 U. S. 442 551 Cassell v. Texas, 339 U.S. 282 551- 554, 559, 563, 575, 578, 579, 583, 584, 587, 590, 593 Castaneda v. Partida, 430 U.S. 482 551, 559, 565, 571-573, 582, 590-592 Cella v. Partenreederei MS Ravenna, 529 F. 2d 15 259 Central Union Trust Co. v. Garvan, 254 U. S. 554 21 Chaloner v. Washington Post Co., 36 U. S. App. D. C. 231 161 Chambers v. Maroney, 399 U. S. 42 918 Chesa International, Inc. v. Fashion Associates, Inc., 435 F. Supp. 234 362 Christensen v. United States, 104 U. S. App. D. C. 35 52 Chrysler Corp. v. Brown, 441 u. s. 281 351 City. See name of city. Clemons v. Board of Ed., 228 F. 2d 853 472 Clyatt v. United States, 197 U.S. 207 333 Coates v. Cincinnati, 402 U. S. 611 45 Coffin v. Coffin, 4 Mass. 1 125, 126 Cole v. Arkansas, 333 U.S. 196 314 Coleman v. Alabama, 339 U. S. 1 576 Columbus Bd. of Ed. v. Penick, 443 U. 8. 449 529, 535-538,541-543 Commercial Printing Co. v. Lee, 262 Ark. 87 429, 431, 432 Commissioner v. Bosch's Estate, 387 U.S. 456 161 Com.missioner of Internal Revenue. See Commissioner. Commonwealth. See also name of Commonwealth. Page Commonwealth v. Blondin, 324 Mass. 564 432 Commonwealth v. Brown, 90 Va.. 671 324 Commonwealth v. Marshall, 356 Mass. 432 415 Connor v. Coleman, 425 U. S. 675; 440 U.S. 612 712 Consolidated Box Co. v. United States, 18 Fed. Rules Serv. 2d 115 357 Contractors Assn. of Eastern Pa. v. Secretary of Labor, 442 F. 2d 159 198 Cool v. United States, 409 U. S. 100 316,320 Cooper v. Aaron, 358 U. 8. 1 486, 494,695 Cooper v. California, 386 U. S. 58 43 Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106 260- 262,273 Costello v. United States, 350 U. S. 359 577 County. See name of county. Cowley v. Pulsifer, 137 Mass. 392 430 Cox v. Coleridge, 1 B. & C. 37 395 Cox v. State, 3 Md App. 136 429 Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 101-103, 105, 412, 413, 428, 429 Craig v. Boren, 429 U.S. 190 85 Craig v. Harney, 331 U.S. 367 412 Cunha v. Brewer, 511 F. 2d 894 316 Curley v. United States, 81 U.S. App. D. C. 389 317, 318,334 Curlis Publishing Co. v. Butts, 388 U. S. 130 134, 164, 166 Dandridge v. Williams, 397 u. s. 471 95,283 Daubney v. Cooper, 5 M. & R. 314 395,423 Davis v. Alaska, 415 U. S. 308 104,107-109 Davis v. Board of School Comm'rs of Mobile County, 402 U. S. 33 498, 538 Davis v. Mississippi, 394 U. S. 721 45,50 XIV TABLE OF CASES CITED Page Davis v. United States, 160 U.S. 469 314 Davison v. Duncan, 7 El. & Bl. 229 423 Dawson v. Contractors Transp. Co., 151 U.S. App. D. C. 401 272 Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406 453, 455, 458, 459, 470-474, 476, 477, 479, 482, 490, 491, 500, 502, 505, 515, 519-521, 524, 525, 528, 531, 532, 540, 543 Dayton Bd. of Ed. v. Brinkman, 443 U.S. 526 458, 469, 479, 491, 492, 502, 504, 506, 513 Deen v. Hickman, 358 U. S. 57 712 DeFunis v. Odegaard, 416 U.S. 312 690 Delaware v. Prouse, 440 U. S. 648 51,52,153 Denver & R. G. W. R. Co. v. Railroad Trainmen, 387 U.S. 556 184,185,187 Department of Air Force v. Rose, 425 U. S. 352 351, 357,359,366,367 Department of Game v. Puyallup Tribe, 86 Wash. 2d 664 672, 683,694 Dilliard v. Virginia Industrial Comm'n, 416 U. S. 783 161 Director, Workers' Compensation Programs v. Rasmussen, 440 U. S. 29 259 Dixon v. Love, 431 U.S. 105 9-13, 17-20,22,24, 70, 71 Dodge v. Mitsui Shintaku Ginko K. K. Tokyo, 528 F. 2d 669 259,271 Doe v. Bolton, 410 U.S. 179 639, 641 Doe v. McMillan, 412 U. S. 306 121, 124, 125, 127, 130, 133 Dombrowski v. Eastland, 387 U. S. 82 123,124 Donnelley Corp. v. FTC, 580 F. 2d 264 184 Dothard v. Rawlinson, 433 u. s. 321 213 Page Douglass v. Buder, 412 U. S. 430 314,333 Draper v. United States, 358 U.S. 307 37 Dred Scott v. Sandford, 19 How. 393 386 Drape v. Missouri, 420 U. S. 162 318 Dunaway v. New York, 442 U. S. 200 44, 50, 53, 153 Duncan v. Louisiana, 391 U. S. 145 415 Du Pont de Nemours Powder Co. v. Masland, 244 U. S. 100 356 Dutton v. State, 123 Md. 373 415 Eastland v. United States Servicemen's Fund, 421 U. S. 491 123,124 Edelman v. Jordan, 415 U. S. 651 191 Edens, In re, 290 N. C. 299 430 E. I. du Pont de Nemours Powder Co. v. Masland, 244 U.S. 100 356 Elkins v. United States, 364 U.S. 206 924 EPA v. Mink, 410 U.S. 73 351, 353, 354, 362, 364, 367 Erie R. Co. v. Tompkins, 304 U. S. 64 617 Estelle v. Gamble, 429 U. S. 97 146 Estelle v. Williams, 425 U. S. 501 321 Estes v. Texas, 381 U. S. 532 378, 380, 381, 383, 398, 399, 404, 413, 438, 439, 444, 446 Etna, The, 138 F. 2d 37 270 Eubanks v. Louisiana, 356 U. S. 584 551,573,590 Evans v. Bennett, 440 U. S. 987; 440 u. s. 1301 1307 Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 18, 21 E. W. Scripps Co. v. Fulton, 100 Ohio App. 157 430 Ex parte. See name of party. Fahey v. Mallonee, 332 U. S. 245 21 Fare v. Michael C., 439 U. S. 1310 917 TABLE OF CASES CITED xv Page Fare v. Michael C., 442 U. S. 707 902 Faretta v. California, 442 U. S. 806 380,382, 417, 418, 422, 426, 427 Fay v. Noia, 372 U.S. 391 321,580 FAA Administrator v. Robert• son, 422 U.S. 255 351 FEA v. Algonquin SNG, Inc., 426 u. s. 548 69 Ferguson v. Skrupa, 372 U. S. 726 682 Finney v. Arkansas Bd. of Cor· rection, 505 F. 2d 194 592 First National Bank of Boston v. Bellotti, 435 U. S. 765 398 Fitzgerald v. United States Lines Co., 374 U.S. 16 259, 276,277 Fitzsimmons v. Barton, 589 F. 2d 330 191 Flemming v. Nestor, 363 U. S. 603 283,284 Foster v. California, 394 U. S. 440 153 Francis v. Henderson, 425 U. S. 536 321,559 Frank v. Mangum, 237 U. S. 309 580 Franks v. Bowman Transportation Co., 424 U. S. 747 225 Freedman v. Maryland, 380 U. S. 51 711 Freeman v. Stone, 444 F. 2d 113 321 Freeman v. Zahradnick, 429 U. S. 1111 312,334 Frisbie v. Collins, 342 U. S. 519 576 Frontiero v. Richardson, 411 U. S. 677 84, 85, 89 Fuentes v. Shevin, 407 U.S. 67 20 Fumco Construction Corp. v. Waters, 438 U. S. 567 211,221 Fusari v. Steinberg, 419 U. S. 379 12 Gannett Pacific Corp. v. Richardson, 59 Haw. 224 429 Gault, In re, 387 U. S. 1 107, 633-o35 Geise v. United States, 262 F. 2d 151 388, 430 Page Gelbard v. United States, 408 U. S. 41 577 Gerstein v. Pugh, 420 U. S. 103 23, 36, 37, 64, 142, 149, 153, 575, 576 Gertz v. Robert Welch, Inc., 418 U. S. 323 134, 135, 164-168, 170 Gibson v. Berryhill, 411 U. S. 564 63,70,1304 Gilmore v. Utah, 429 U. S. 1012 1307, 1309,1310 Ginsberg v. New York, 390 U.S. 629 636,638,639 Glasser v. United States, 315 U.S. 60 317,319,329 Goldberg v. Kelly, 397 U. S. 254 64,72 Golden State Bottling Co. v. NLRB, 414 U. S. 168 692,693 Gomez v. Perez, 409 U. S. 535 288,303,304 Gore Newspapers Co. v. Tyson, 313 So. 2d 777 429 Goss v. Board of Ed., 373 U.S. 683 486,494,495 Goss v. Lopez, 419 U. S. 565 21, 635 Graham v. Richardson, 403 U. S. 365 85,283 Gravel v. United States, 408 U. S. 606 124,125, 127, 130, 136 Graver Mfg. Co. v. Linde Air Products Co., 336 U. S. 271 592 Green v. County School Bd., 391 u. s. 430 459, 478, 486, 495-497, 505, 538 Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 13,902 Gregg v. Georgia, 428 U. S. 153 912 Gregory v. Chicago, 394 U. S. 111 314 Grieco v. Meacham, 533 F. 2d 713 321,322 Griffin v. School Bd., 377 U. S. 218 486,494,495,695 Gril!;gs v. Duke Power Co., 401 U. S. 424 215,218, 220 Griswold v. Connecticut, 381 U.S. 479 44 Grosso v. United States, 390 u. s. 62 44 XVI TABLE OF CASE:! CITED Page Gustafson v. Florida, 414 U. S. 260 35 Hagans v. Lavine, 415 U. S. 528 191 Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U. S. 282 260, 261, 273 Harding v. United States, 337 F. 2d 254 319 Hatcher v. Commonwealth, 218 Va. 811 311 Hatter v. Evening Star Newspaper Co., Civ. No. 8298-75 (D. C. Super. Ct.) 160 Haynes v. United States, 390 u. s. 85 44 Hazelwood School Dist. v. United States, 433 U. S. 299 214 Henslee v. Union Planters Bank, 335 U. S. 595 575 Hernandez v. Texas, 347 U. S. 475 565,572,592,593 Higgins v. Board of Ed. of Grand Rapids, 508 F. 2d 779 502 Hill v. Texas, 316 U. S. 400 551, 557, 558, 564, 573, 582, 590, 593 Hogan v. State, 191 Ark. 437 388, 431 Holland v. United States, 348 U. S. 121 317,326 Holt v. United States, 218 u. s. 245 577 Holy Trinity Church v. United States, 143 U. S. 457 201 Houchins v. KQED, Inc., 438 U. S. 665 104,391,392,397,398 Hovey v. Elliott, 167 U. S. 409 314 Hubel v. West Virginia Racing Comm'n, 513 F. 2d 240 69, 71 Huffman v. Pursue, Ltd., 420 U. S. 592 907-909 Hurtado v. California, 110 u. s. 516 557,575 Hutchinson v. Proxmire, 443 u. s. 111 161 Hutto v. Finney, 437 U. S. 678 696 Ingraham v. Wright, 430 U. S. 651 634 Page In re. See name of party. Insulators & Asbestos Workers v. Vogler, 407 F. 2d 1047 198, 212 Irwin v. Dowd, 366 U. S. 717 378,444 Isbrandtsen Co. v. Johnson, 343 U. S. 779 263 Italia Societa per Azionidi Navigazione v. Oregon Stevedoring Co., 376 U. S. 315 268 Ivan V. v. City of New York, 407 u. s. 203 316 Jackson v. Denno, 378 U. S. 368 375,378,433,434,436,446 Jackson v. Lykes Bros. S.S. Co., 386 u. s. 731 264 Jackson v. Mobley, 157 Ala. 408 429 Jackson v. Virginia, 443 U. S. 307 586,714,715,914 Jacobellis v. Ohio, 378 U. S. 184 320 Jefferson v. Commonwealth, 214 Va. 609 309 Jimenez v. Weinberger, 417 u. s. 628 89,283,284, 288, 294, 297, 302-306 Johansen v. United States, 343 U.S. 427 202 John Lilburne, Trial of, 4 How. St. Tr. 1270 387,420 Johnson v. Johnson Publishing Co., 271 A. 2d 696 161 Johnson v. Louisiana, 406 U. S. 356 316,317,319 Johnson v. Simpson, 433 S. W. 2d 644 430 Johnson v. United States, 333 u. s. 10 36 Jones v. Meehan, 175 U.S. 1 676 Jones v. Opelika, 316 U.S. 584 107 Jones v. Wolf, 443 U. S. 595 914 Juanita, The, 93 U.S. 337 260,272 Judice v. Vail, 430 U.S. 327 908 Katz v. United States, 389 U.S. 347 44 Kaufman v. United States, 394 U. S. 217 919,920 Kedroff v. Saint Nicholas Cathedral, 344 U. S. 94 617--619 TABLE OF CASES CITED XVII Page Keene Publishing Corp. v. Keene District Court, 117 N. H. 959 430 Kennedy v. Becker, 241 U. S. 551 678 Kent v. United States, 383 u. s. 541 107, 635 Ker v. California, 374 U. S. 23 36 Ker v. Illinois, 119 U. S. 436 576 Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189 456-458, 464, 465, 467, 468, 470, 471, 476, 477, 481, 482, 486, 488, 490, 498-501, 505, 507, 508, 520, 522-525, 535, 537, 538, 541, 542 Kilbourn v. Thompson, 103 U. S. 168 124, 126 King v. Creevey, 1 M. & S. 273 129 King v. Fisher, 2 Camp. 563 389 King v. Lord Abingdon, 1 Esp. 225 129 King v. Order of Travelers, 333 U. S. 153 161 King v. Parke, (1903) 2 K. B. 432 390 King v. Smith, 392 U. S. 309 79, 191 King v. Wright, 8 D. & E. 293 423 Klopfer v. North Carolina, 386 U.S. 213 424 Kreshik v. Saint Nicholas Cathedral, 363 U. S. 190 617 Laborers' International Union, Local No. 1057 v. NLRB, 186 U.S. App. D. C. 13 267 Landmark Communications, Inc. v. Virginia, 435 U.S. 829 101, Lanzetta v. U.S. 451 102,105,106,413 New Jersey, 306 La Vallee v. Delle Rose, U.S. 690 Lawn v. United States, U.S. 339 51 410 336,574 355 577 s. Lego v. Twomey, 404 U. 477 316 u. s. Leland v. Oregon, 343 790 Levine v. United States, U.S. 610 315 362 412 Page Levy v. Louisiana, 391 U. S. 68 304 Lewis v. Peyton, 352 F. 2d 791 428,430 Lilburne, Trial of, 4 How. St. Tr. 1270 387,420 Lincoln v. Denver Post, 31 Colo. App. 283 429 Liverpool, N. Y. & P. S. S. Co. v. Emigration Comm'rs, 113 U. S. 33 328 Lone Wolf v. Hitchcock, 187 U.S. 553 675 Long v. Ansell, 293 U.S. 76 127 Longshoremen v. Juneau Spruce Corp., 342 U. S. 237 202 Los Angeles County v. Davis, 440 U. S. 625 211 Lucas v. Hope, 515 F. 2d 234 598 Machin v. Zuckert, 114 U. S. App. D. C. 335 355 Mackey v. Montrym, 443 U. S. 1 73 Maher v. Roe, 432 U.S. 464 95 Ma.hon v. Justice, 127 U. S. 700 576 Mapp v. Ohio, 367 U.S. 643 917, 922-925,927,928 Marant v. Farrell Lines, Inc., 550 F. 2d 142 259 Marshall v. United States, 360 U. S. 310 378 Martineau v. Helgemoe, 117 N. H. 841 415 Maryland & Virginia. Churches v. Sharpsburg Church, 396 U. S. 367 602,603,612,617 Mathews v. De Castro, 429 U.S. 181 283,284,288-290,293,297 Mathews v. Eldridge, 424 U.S. 319 10, 11, 13, 14, 17, 21, 22, 24, 25, 71, 72, 283, 285 Mathews v. Lucas, 427 U. S. 495 283-285,304,306 Max Morris, The, 137 U. S. 1 258 May v. Anderson, 345 U. S. 528 634 Mayer v. Development Corp. of America, 396 F. Supp. 917 188 McDaniel v. Barresi, 402 U.S. 39 460,461,498 XVIll TABLE OF CASES CITED Page McDonald v. Sante Fe Trail Transp. Co., 427 U.S. 273 201, 208,220,221 McGrath v. Kristensen, 340 u. s. 162 294 McGuire v. United States, 273 u. s. 95 925 McKeiver v. Pennsylvania, 403 U. S. 528 440,635 McNally v. Hill, 293 U. S. 131 586 Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1 20, 22,28,29 Menominee Engineering Corp. v. United States, 20 Fed. Rules Serv. 2d 894 357 Menominee Tribe v. United States, 391 U. S. 404 690 Meyer v. Nebraska, 262 U. S. 390 639 Milliken v. Bradley, 418 U. S. 717 471,482,488,490,696 Miranda v. Arizona, 384 U. S. 436 153,576 Missouri v. Holland, 252 U. S. 416 692 Mitchell v. Trawler Racer, Inc., 362 U. S. 539 261 Mitchell v. W. T. Grant Co., 416 u. s. 600 64 Mitchum v. Foster, 407 U. S. 225 336 Monell v. New York City Dept. of Social Services, 436 U. S. 658 911,925,926 Monroe v. Board of Comm'rs, 391 U. S. 450 496 Monroe v. Pape, 365 U. S. 167 907,910i~ll,925,926 Moore v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 47 498 Moore v. East Cleveland, 431 u. s. 494 634, 639 Moore v. Simms, 442 U. S. 415 908 Moore v. State, 151 Ga. 648 431 Moore v. State, 260 Ind. 154 713 Morton v. Mancari, 417 U. S. 535 673 Page Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U. S. 96 70 Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 465 Mullane v. Central Hanover Trust Co., 339 U. S. 306 20, 28 Mullaney v. Wilbur, 421 U. S. 684 313,316,323 Murphy v. Florida., 421 U. S. 794 404,411,443,444 Napa Valley Co. v. Railroad Comm'n, 251 U. S. 366 1304 NLRB v. Baptist Hospital, Inc., 442 U. S. 773 903 NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214 351,354 NLRB v. Sears, Roebuck & Co., 421 U. S. 132 351, 353-355,361,363 National League of Cities v. Usery, 426 U. S. 833 585 National Socialist Party v. Skokie, 432 U.S. 43 709, 711, 712 National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612 201 Neal v. Delaware, 103 U. S. 370 551,556 Neal v . State, 86 Okla. Cr. 283 430 Near v. Minnesota ex rel. Olson, 283 U. S. 697 101, 102,106,343 Nebraska Press Assn. v. Stuart, 423 U. S. 1319 709-712 Nebraska Press Assn. v. Stuart, 423 U. S. 1327 710, 712 Nebraska Press Assn. v. Stuart, 427 U.S. 535 101, 102, 104, 106, 377, 379, 391, 393, 399, 400, 404, 405, 410, 411, 413, 441-444, 446, 447 Neil v. Biggers, 409 U. S. 188 144, 153 Neirbo Co. v. Bethlehem Corp., 308 U. S. 165 180, 184 New York ex rel. Kennedy v. Becker, 241 U. S. 556 678 New York Times Co. v. Sullivan, 376 U.S. 254 113, 133, 160, 161, 163, 164, 167, 168 New York Times Co. v. United States, 403 U. S. 713 101, 102,711 TABLE OF CASES CITED XIX Page Nixon v. Warner Communications, Inc., 435 U. S. 589 404, 411 Norris v. Alabama, 294 U. S. 587 572, 573 North American Storage Co. v. Chicago, 211 U. S. 306 18, 21,25 North Carolina Bd. of Ed. v. Swann, 402 U. S. 43 498, 695 Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 259, 262,270,271 North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 Norton v. Mathews, 427 U. S. 72 524 283,284 Offutt v. United States, 348 u. s. 11 412 Oklahoma Publishing Co. v. District Court, 430 U. S. 308 103,393 Olberding v. Illinois Central R. Co., 346 U. S. 338 180, 181, 184 Oliver, In re, 333 U. S. 257 380, 381, 412, 414, 418, 432 Oliver v. Michigan State Bd. of Ed., 508 F. 2d 178 510, 513, 515, 519, 536 Olmstead v. United States, 277 U.S. 438 44 Organization for a Better Austin v. Keefe, 402 U. S. 415 101,102 Orlando v. Fay, 350 F. 2d 967 388,430,431 Orr v. Orr, 440 U.S. 268 85, 89 Palko v. Connecticut, 302 U.S. 319 Papachristou v. Jacksonville, 147 405 U. S. 156 324 Parham v. J. R., 442 U.S. 584 639, 902 Parson v. Kaiser Aluminum & Chemical Corp., 575 F. 2d 1374 210 Pasadena Bd. of Ed. v. Spangler, 427 U.S. 424 482 Patterson v. New York, 432 u. s. 197 145,313,316 Patton v. Mississippi, 332 U.S. 463 590 Page Patton v. United States, 281 U. S. 276 383,416,417 Pell v. Procunier, 417 U. S. 817 391,392,404,411 Pennekamp v. Florida, 328 U.S. 331 413 Pennsylvania v. Mimms, 434 u. s. 106 50 People v. Defore, 242 N. Y. 13 921,922 People v. Huntley, 15 N. Y. 2d 72 375 People v. Jones, 47 N. Y. 2d 1335 410 Perez v. Ledesma, 401 U.S. 82 585 Perry v. Sindermann, 408 U. S. 593 64,70 Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 294,465,481,509-513 Pettus v. Peyton, 207 Va. 906 312 Philbrook v. Glodgett, 421 U.S. 707 79 Phillips v. Commissioner, 283 u. s. 589 21 Phillips v. Evening Star Newspaper Co., Civ. No. 9999-75 (D. C. Super. Ct.) 161 Pierce v. Society of Sisters, 268 u. s. 510 637, 639 Pierre v. Louisiana, 306 U. S. 354 551,554,582,590 Pierson v. Ray, 386 U. S. 547 38, 42 Pinto v. Pierce, 389 U. S. 31 437 Piper v. Chris-Craft Industries, Inc., 430 U. S. 1 192 Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 624,633,639- 641, 643-645, 652-657 Plessy v. Ferguson, 163 U. S. 537 386 Poe v. Ullmann, 367 U.S. 497 147 Pope & Talbot, Inc. v. Hawn, 346 u. s. 406 258,259,261,271 Poulos v. New Hampshire, 345 u. s. 395 645 Freiser v. Rodriguez, 411 U. S. 475 586 Presbyterian Church v. Eastern Heights Church, 224 Ga. 61 599-601,606 xx TABLE OF CASES CITED Page Presbyterian Church v. Hull Church, 393 U. S. 440 599, 602-604, 612, 617, 618, 620, 621 Presnell v. Georgia, 439 U. S. 14 314 Prettner v. Aston, 339 F. Supp. 273 188 Prince v. Massachusetts, 321 U.S. 158 636,638,639 Procunier v. Martinez, 416 U. S. 396 398 Procunier v. Navarette, 434 u. s. 555 138, 139 Propper v. Clark, 337 U. S. 472 181 Puma v. Marriott, 294 F. Supp. 1116 188 Puyallap Tribe v. Washington Game Dept., 391 U. S. 392 681, 682, 693, 702, 703, 705 Puyallup Tribe v. Washington Game Dept., 433 u. S. 165 664, 676, 677, 681, 683, 685, 687, 689, 694, 695, 702, 703, 705 Radzanower v. Touche Ross & Co., 426 U. S. 148 183 Raney v. Board of F,d., 391 U.S. 443 496 Reece v. Georgia, 350 U. S. 85 551,554,556,573,672 Reed v. The Yaka, 373 U. S. 410 264 Reeves v. State, 264 Ala. 476 431 Renegotiation Bd. v. Bannercraft Clothing Co., 415 U. S. 1 351,357 Renegotiation Bd. v. Onimm:m Aircraft Corp., 421 U. S. 168 351,354 Richardson v. Bekher, 404 U.S. 78 283,284 Richardson v. D.wis, 409 U. S. 1069 305 Richardson v. Griffin, 409 U.S. 1069 90,305 Richardson v. Perales, 402 U. S. 389 283,285 Richardson v. Wright, 405 U. S. 208 283,285 Rideau v. Louisiana., 373 U. S. 723 379,444 Page Ritter v. Zuspan, 451 F. Supp. 926 183,188 Rizzo v. Goode, 423 U. S. 362 148 Robinson v. California, 370 u. s. 660 324 Rochin v. California, 342 U. S. 165 147,148,153 Roe v. Wade, 410 U.S. 113 147, 639, 641, 642, 651, 652 Rogers v. Alabama, 192 U. S. 226 551 Rogers v. Missouri Pacific R. Co., 352 U. S. 500 926 Rosado v. Wyman, 397 U. S. 397 80 Rosenblatt v. Baer, 383 U.S. 75 134 Rosenbloom v. Metromedia, Inc., 403 U. S. 29 134, 167 Rudolph, Ex parte, 276 Ala. 392 431 Rueben H. Donnelley Corp. v. FTC, 580 F. 2d 264 184 Ryan Stevedoring Corp. v. Pan-Atlantic S.S. Corp., 330 u. s. 124 262, 263, 277 St. Amant v. Thompson, 390 U. S. 727 134, 163 Samuels v. Empresa Lineas Ma.ritimas Argentinas, 573 F. 2d 884 259 Sanders v. United States, 373 U.S. 1 584 Sandstrom v. Montana, 442 U. S. 510 472, 903 Saunders v. Reynolds, 214 Va. 697 311 Saxbe v. Washington Post Co., 417 u. s. 843 391-393, 397,398,404 Schechtman v. Foster, 172 F. 2d 339 580 Schilb v. Kuebel, 404 U. S. 357 144,149 Schneckloth v. Bustamonte, 412 U.S.218 562,580,583,585,586 School Dist. of Omaha v. United States, 433 U.S. 667 520 Schooner Catharine v. Dickinson, 17 How. 170 272 Scott v. Scott, (1913] A. C. 417 424 Scovill Mfg. Co. v. Sunbeam Corp., 61 F. R. D. 598 362 TABLE OF CASES CITED XXI Page Screws v. United States, 325 u. s. 91 457 Scripps Co. v. Fulton, 100 Ohio App. 157 430 Seas Shipping Co. v. Sieracki, 328 U. S. 85 261,262,277 Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 602- 605, 609, 612, 616-620 Seufert Bros. Co. v. United States, 249 U. S. 194 671, 676,681,702 Shea v. Vialpando, 416 U. S. 251 79 Shellman v. United States Lines, Inc., 528 F. 2d 675 259 Sheppard v. Maxwell, 384 U.S. 333 378,379,399,411- 413, 439, 441, 444, 446 Shiflett v. Commonwealth, 123 Va. 609 309 Sibron v. New York, 392 U.S. 40 39,43,45 Siler v. Louisville & Nashville R. Co., 213 U. S. 175 122,161 Simmons v. United States, 390 U. S. 377 152, 153 Singer v. United States, 380 u. s. 24 382,383, 416-418, 426 Smallwood V. Lavalle, 377 F. Supp. 1148 388 Smith v. Organization of Foster Families, 431 U. S. 816 71,639 Smith v. State, 317 A. 2d 20 430 Smith v. Texas, 311 U.S. 128 551, 556, 564 Sohappy v. Smith, 302 F. Supp. 899 684 Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 102 Southern Illinois Builders Assn. v. Ogilvie, 471 F. 2d 680 198 Southern Pacific Terminal Co. V. ICC, 219 u. S. 498 377 Speigner v. Jago, 603 F. 2d 1208 316 Speiser v. Randall, 357 U. S. 513 331,471 Spinelli v. United States, 393 U.S. 410 153 Spruytte v. Koehler, 590 F. 2d 335 316 Page Stamicarbon, N. V. v. American Cyanamid Co., 506 F. 2d 532 430 Stanley v. Illinois, 405 U. S. 645 20,27,30,639 Stanton v. Stanton, 421 U. S. 7 89 Stapleton v. Commonwealth, 123 Va. 825 309 State. See also name of State. State v. Allen, 73 N. J. 132 430 State v. Beaudoin, 386 A. 2d 731 429 State v. Callahan, 100 Minn. 63 388,431 State v. Collins, 65 Tenn. 151 548 State v. Croak, 167 La. 92 388,431 State v. Holm, 67 Wyo. 360 430 State v. Keeler, 52 Mont. 205 429, 430 State v. Satiacum, 50 Wa.sh. 2d 513 684 State v. Schmit, 273 Minn. 78 429, 431 State v. White, 97 Ariz. 196 430 State ex rel. Gore Newspapers Co. v. Tyson, 313 So. 2d 777 429 State ex rel. Varney v. Ellis, 149 W. Va. 522 430 Steffel v. Thompson, 415 U. S. 452 336 Stone v. Powell, 428 U. S. 465 321-323, 332, 337, 551, 559-564, 587, 919, 920, 923-925 Strauder v. West Virginia, 100 u. s. 303 552--555, 558,578,582 Stroble v. California, 343 U. S. 181 404,443,444,576 Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 455, 458-460, 465, 468, 479, 482, 486-488, 497-499, 522, 524, 536- 538, 541, 542, 544, 696 Swift & Co. v. Wickham, 382 u. s. 111 190, 191 Tacoma v. Taxpayers, 357 U. s. 320 693, 695 Taylor v. Kentucky, 436 U. S. 478 320 Taylor v. Louisiana, 419 U. S. 522 89 XXII TABLE OF CASE1:1 CITED Page Teamsters v. United States, 431 U.S. 324 205, 213-215 Terry v. Ohio, 392 U. S. 1 44-46, 50,51,53,153,576 Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 u. s. 426 202 Thompson v. Louisville, 362 u. s. 199 312-316, 320, 321, 333 Time, Inc. v. Firestone, 424 U. S. 448 134, 135, 164-168 Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301 411 Tinker v. Des Moines School Dist., 393 U. S. 503 637 Tollett v. Henderson, 411 U. S. 258 559,576 Torres v. Puerto Rico, 442 u. s. 465 39, 43 Touche Ross & Co. v. Redington, 442 U. S. 560 192, 903 Townsend v. Sain, 372 U. S. 293 318,592 Train v. Colorado Public Interest Research Group, 426 U.S. 1 201 Trainor v. Hernandez, 431 u. s. 434 908 Trial of John Lilburne, 4 How. St. Tr. 1270 387,420 Trimble v. Gordon, 430 U. S. 762 110,288,303,304 Tulee v. Washington, 315 U. S. 681 669,671,673,676,681,682 Turner v. Fouche, 396 U. S. 346 578,590,593 Turner v. Pennsylvania, 338 U. S. 62 153 U-Anchor Advertising, Inc. v. Burt, 553 S. W. 2d 760 181 Ulster County Court v. Allen, 442 u. s. 140 156,472,903 United States v. Allegheny- Ludlum Industries, Inc., 517 F. 2d 826 210 United States v. Amato, 495 F. 2d 545 319 United States v. American Trucking Assns., 310 U. S. 534 201 United States v. Antelope, 430 u. s. 641 673 Page United States v. Article of Drug, 43 F. R. D. 1 362 United States v. Bell, 464 F. 2d 667 439 United States v. Blue, 384 U.S. 251 576,577 United States v. Brewster, 408 U. S. 501 121, 124, 126, 127, 131, 132 United States v. Brignoni- Ponce, 422 U. S. 873 50-52 United States v. Callandra, 414 u. s. 338 575, 577, 924 United States v. Carden, 529 F. 2d 443 35 United States v. Cianfrani, 573 F. 2d 835 382, 429, 430, 434, 440, 445 United States v. Clark, 475 F. 2d 240 430,434 United States v. Diebold, Inc., 369 u. s. 654 162 United States v. Doe, 455 F. 2d 753 127 United States v. Elevator Constructors, 538 F. 2d 1012 United States v. Fearn, 589 F. 198 2d 1316 329 United States v. Feinberg, 140 F. 2d 592 318 United States v. Hall, 472 F. 2d 261 692 United States v. Johnson, 383 u. s. 169 121, 124, 131 United States v. Jorgenson, 451 F. 2d 516 319 United States v. Kilgen, 445 F. 2d 287 United States v. Mackey, 387 35 F. Supp. 1121 156 United States v. Marion, 404 U. S. 307 144 51 United States v. Martinez- Fuerte, 428 U. S. 543 United States v. Montgomery County Bd. of Ed., 395 U.S. 225 497 United States v. Nixon, 418 u. s. 683 362 United States v. Peltier, 422 U. S. 531 925 TJnited States v. Powers, 305 u. s. 527 684 TABLE OF CASES CITED XXIII Page United States v. Proctor & Gamble Co., 356 U. S. 677 356 United States v. Public Utilities Comm'n, 345 U. S. 295 202, 228,230 United States v. Raines, 362 u. s. 17 69 United States v. Reliable Transfer Co., 421 U. S. 397 259, 271,272,276,278 United States v. Robinson, 414 u. s. 218 35 United States v. Rutherford, 442 u. s. 554 221 United States v. Scotland Neck Bd. of Ed., 407 U. S. 484 459, 505,506,538 United States v. Standard Oil Co., 23 F. R. D. 1 362 United States v. Tarr, 589 F. 2d 55 329 United States v. Taylor, 464 F. 2d 240 318 United States v. Thirty-seven Photographs, 402 U. S. 363 711 United States v. United States Gypsum Co., 333 U. S. 364 465 United States v. Utah Construction Co., 384 U.S. 394 1304 United States v. Wade, 388 u. s. 218 153 United States v. Whetzel, 191 U. S. App. D. C. 184 329 United States v. Winans, 198 u. s. 371 669,671,673,676, 678, 679, 681, 682, 686, 693, 698, 700--702, 705 U. S. Dept. of Agriculture v. Moreno, 413 U. S. 528 90 United States ex rel. Orlando v. Fay, 350 F. 2d 967 388, 430,431 United States ex rel. Smallwood v. La Valle, 377 F. Supp. 1148 388 University of California Regents v. Bakke, 438 U.S. 265 206, 216,386 V. v. City of New York, 407 U.S. 203 316 Vachon v. New Hampshire, 414 U. S. 478 314, 332, 333 Vance v. Bradley, 440 U. S. 93 67,68,304 Page Varney v. Ellis, 149 W. Va. 522 430 Vendo Co. v. Lektro-Vend Corp., 433 U. S. 623 692 Virginia, Ex parte, 100 U. S. 339 457,578 Virginia v. Rives, 100 U. S. 313 556,562,584 Wainwright v. Sykes, 433 U. S. 72 321,584 Ward v. Race Horse, 163 U. S. 504 682 Washington v. Davis, 426 U. S. 229 464,465,470,481, 501, 508, 509, 511, 513, 515, 518-520, 538, 590 Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U. S. 658 914 Washington v. Yakima Indian Nation, 439 U. S. 463 676 Washington Game Dept. v. Puyallup Tribe, 414 U. S. 44 681-684,702,703,705,708 Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521 260 Washington Times Co. v. Bonner, 66 App. D. C. 280 161 Wason v. Walter, 4 L. R. 73 423 Watkins, Ex parte, 3 Pet. 193 580 Watson v. Jones, 13 Wall. 679 599, 602, 603, 610, 612, 615- 619 Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 288, 297,302,304,305 Weeks v. United States, 232 u. s. 383 916,917, 920-923, 928 Weinberger v. Salfi, 422 U. S. 749 283-285,290-293 Weinberger v. Wiesenfeld, 420 U. S. 636 84-86, 90,283,284, 286-288, 294, 297, 301 Weinstein v. Bradford, 423 u. s. 147 377 Welsh v. United States, 398 u. s. 333 89, 94 West v. American Tel. & Tel. Co., 311 U. S. 223 161 Whalen v. Roe, 429 U. S. 589 655 Williams v. Peyton, 414 F. 2d 776 322 XXIV TABLE OF CASES CITED Paire Williamson v. Lee Optical Co., 348 U. S. 483 89 Wilson v. Omaha Indian Tribe, 442 u. s. 653 902 Winship, In re, 397 U. S. 358 309, 312-323, 324, 326, 327, 330-335, 339, 586, 634, 714 Winters v. New York, 333 U.S. 507 645 Winters v. United States, 207 U. S. 564 684, 686 Wisconsin v. Yoder, 406 U. S. 205 638,639 Wolf v. Colorado, 838 U. 8. 25 921-923,926,928 W olston v. Reader's Digest Assn., 443 U. S. 157 123, 135 Wood v. Georgia, 370 U. S. 375 413 Wood v. Strickland, 420 U. S. 308 139 Paire Woodby v. INS, 385 U.S. 276 315, 319,334 Wright v. Council of City of Emporia, 4sted by such police officer to do so. Each such report shall be endorsed by the police chief . . . and shall be sent forthwith to the registrar. Fpon receipt of such report, the registrar shall suspend any license or permit to opt=>rate motor vt=>hirles issued to such person ... for a period of ninety days." Mass. Gen. Laws Ann., ch. 90, § 24 (l)(f) (West Supp. 1979). I While driving a vehicle in Acton, Mass., appellee Donald Montrym was involved in a collision about 8: 15 p. m. on May 15, 1976. Upon arrival at the scene of the accident an Acton police officer observed, as he wrote in his official report, that Montrym was "idassy t>yed.'' unstt=>ady on his feet, slurring his speech, and emitting a stron~ alcoholic odor from his person. The officer arrested Montrym at 8: 30 p. m. for operating his vehicle while under the influence of intoxicating liquor, driving to endanger, and failing to produce his motor vehicle registration upon request. Montrym was then taken to the Acton police station. MACKEY v. MONTRYM 5 1 Opinion of the Court There, Montrym was asked to take a breath-analysis examination at 8:45 p. m. He refused to do so.1 Twenty minutes after refusing to take the test and shortly after consulting his lawyer, Montrym apparently sought to retract his prior refusal by asking the police to administer a breath-analysis test. The police declined to comply with Montrym's belated request. The statute leaves an officer no discretion once a breath-analysis test has been refused: "If the person arrested refuses to submit to such test or analysis, ... the police officer before whom such refusal was made shall immediately prepare a written report of such refusal." § 24 ( 1) ( f) ( emphasis added). The arresting officer completed a report of the events, including the refusal to take the test. As mandated by the statute, the officer's report recited (a) the fact of Montrym's arrest for driving while under the influence of intoxicating liquor, (b) the grounds supporting that arrest, and ( c) the fact of his refusal to take the breathanalysis examination. As required by the statute, the officer's report was sworn to under penalties of perjury, and endorsed by the arresting officer and another officer present when Montrym ref used to take the test; it was counterendorsed by the chief of police. The report was then sent to the Massachusetts Registrar of Motor Vehicles pursuant to the statute. On June 2, 1976, a state court dismissed the complaint brought against Montrym for driving v.fole under the influence of intoxicating liquor.2 Dismissal apparently was predicated on the refusal of the police to administer a breath-analysis test at Montrym's request after he sought to retract his initial 1 Montrym does not deny having refused the test; he claims that he was not advised of the ma.ndatory 90-day suspension penalty prior to his refusal, as required by the statute; however, the officer's report of refusal asserts that Montrym was given the required prior warning. 2 Montrym was also acquitted on the driving-to-endanger charge but was found guilty on the registration charge and fined $15. 6 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. refusal to take the test. The dismissal order of the state court cryptically recites: "Dismissed. Breathalyzer refused within ½ hr of arrest at station. memorandum." when requested See affidavit & According to Montrym's affidavit incorporated by reference in the state court's dismissal order, he was visited by an attorney at 9:05 o'clock on the night of his arrest; and, after consulting with counsel, he requested a breath-analysis test. The police, however, refused the requests made by Montrym and his counsel between 9:07 and 10:07 p. m. Montrym's attorney immediately advised the Registrar by letter of the dismissal of this charge and asked that the Registrar stay any suspension of Montrym's driver's license. Enclosed with the letter was a copy of Montrym's affidavit attesting to the officer's refusal to administer a breath-analysis test at his request. However, Montrym's attorney did not enclose a certified copy of the state court's order dismissing the charge. The Registrar, who has no discretionary authority to stay a suspension mandated by the statute,3 formally suspended Montrym's license for 90 days on June 7, 1976. The suspension notic_e stated that it was effective upon its issuance and directed Montrym to return his license at once. It advised Montrym of his right to appeal the suspension.• 5 It provides in relevant part: "Upon receipt of such report [ of refusal] , the registrar shall suspend any license ... issued to such person ... for a period of ninety days." Mass. Gen. Laws Ann., ch. 90, § 24 (1) (f) (West Supp. 1979) (emphasis added). M~chusetts Gen. Laws Ann., ch. 90, § 28 (West 1969), provides that any person aggrieved by a ruling of the Registrar may appeal such ruling to the Board of Appeal, which may, after a hearing, order such ruling to be affirmed, modified, or annulled. However, no such appeal shall operate to stay any ruling of the Registrar. In turn, the Board's decision is subject to judicial review. Mass. Gen. Laws Ann., ch. 30A, § 14 (West 1979). MACKEY v. MONTRYM 7 1 Opinion of the Court When Montrym received the suspension notice, his attorney requested an appeal on the question of whether Montrym had in fact refused a breath-analysis test within the meaning of the statute. Montrym surrendered his license by mail on June 8, 1976. Under the Massachusetts statute, Montrym could have obtained an immediate hearing before the Registrar at any time after he had surrendered his license; that hearing would have resolved all questions as to whether grounds existed for the suspension.5 For reasons not explained, but presumably 5 Massachusetts Gen. Laws Ann., ch. 90, § 24 (1) (g) (West 1969), provides: "Any person whose license, permit or right to operate has been suspended under paragraph (f) shall be entitled to a hearing before the registrar which shall be limited to the following issues: (1) did the police officer have reasonable grounds to believe that such person ha.d been operating a motor vehicle while under the influence of intoxicating liquor upon any [public] way ... , (2) was such person placed under arrest, and (3) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall reinstate such license, permit or right to operate." As stipulated by the parties, the § 24 (1) (g) hearing is available the moment the driver surrenders his license. At the hearing, the suspended driver may be represented by counsel. Upon request, a hearing officer will examine the report of refusal and return the driver's license immediately if the report does not comply with the requirements of§ 24 (1) (f) . If the report complies with those requirements, the burden is on the driver to show either that he was not arrested, that there was no probable cause for arrest, or that he did not refuse to take the breath-analysis test. The hearing may be adjourned at the request of the driver or sua S'J)onte by the hearing officer in order to permit the attendance of witnesses or for the gathering of relevant evidence. Witnesses at the hearing are subject to cross-examination by the driver or his attorney, and he may appeal a.n adverse decision of the Registrar to the Board of Appeal pursuant to § 28. The Registrar has represented to the Court that a driver can obtain a decision from the hearing officer within one or two days following the driver's receipt of the suspension notice. Montrym asserts that greater delay will occur if the driver raises factual issues requiring the taking of 8 OCTOBER TERM, 1978 Opinion of the Court 443U.S. on advice of counsel, Montrym failed to exercise his right to a hearing before the Registrar; instead, he took an appeal to the Board of Appeal. On June 24, 1976, the Board of Appeal advised Montrym by letter that a hearing of his appeal would be held on July 6, 1976. Four days later, Montrym's counsel made demand upon the Registrar by letter for the return of his driver's license. The letter reiterated Montrym's acquittal of the driving-under-theinfl. uence charge, asserted that the state court's finding that the officer had refused to administer a breath-analysis test was binding on the Registrar, and declared that suspension of Montrym's license without first holding a hearing violated his right to due process. The letter did not contain a copy of the state court's dismissal order, but did threaten the Registrar with suit if the license were not returned immediately. Had Montrym's counsel enclosed a copy of the order dismissing the drunken-driving charge, the entire matter might well have been disposed of at that stage without more. Thereafter, forgoing his administrative appeal scheduled for hearing on July 6, Montrym brought this action asking the convening of a three-judge United States District Court. The complaint alleges that § 24 (I) (f) is unconstitutional on its face and as applied in that it authorized the suspension of Montrym's driver's license without affording him an opportunity for a presuspension hearing. Montrym sought a temporary restraining order enjoining the suspension of his license, compensatory and punitive damages, and declaratory and injunctive relief on behalf of all persons whose licenses had been suspended pursuant to the statute without a prior hearing. On July 9, 1976, a single District Judge issued the temporary restraining order sought by Montrym and directed evidence. But, even under his more pessimistic view, which takes into account the possibility of intervening weekends, the driver will obtain a decision from the hearing officer within 7 to 10 days. MACKEY v. MONTRYM 9 1 Opinion of the Court the Registrar to return Montrym's license pending further order of the court. Subsequently, a three-judge District Court was convened pursuant to 28 U.S. C. §§ 2281 (1970 ed.), 2284, and Montrym moved for partial summary judgment on stipulated facts. With one judge dissenting, the three-judge District Court granted Montrym's motion. Relying principally on this Court's decision in Bell v. Burson, 402 U.S. 535 (1971), the District Court concluded that Montrym was entitled as a matter of due process to some sort of a presuspension hearing before the Registrar to contest the allegation of his refusal to take the test. In a partial summary judgment order issued on April 4, and a final judgment order issued on April 12, the District Court certified the suit under Fed. Rule Civ. Proc. 23 (b) (2) as a class action on behalf of all persons ,vhose licenses to operate a motor vehicle had been suspended pursuant to Mass. Gen. Laws Ann., ch. 90, § 24 (l)(f) (West Supp. 1979). The court then declared the statute unconstitutional on its face as violative of the Due Process Clause, permanently enjoined the Registrar from further enforcing the statute, and directed him to return the driver's licenses of the plaintiff class members. M ontrym v. Panora, 429 F. Supp. 393 (Mass. 1977). After taking timely appeals from the District Court's judgment orders, the Registrar moved the District Court for a stay and modification of its judgment, which motions were denied. After release of our opinion in Dixon v. Love, 431 U.S. 105 (1977), upholding the constitutionality of an Illinois statute authorizing the summary suspension of a driver's license prior to any evidentiary hearing, the Registrar moved for reconsideration of his motions for a stay and modification of judgment. In a second opinion issued October 6, 1977, the District Court reasoned that Love was distinguishable on several grounds and denied the Registrar's motion to reconsider; the 10 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. dissenting judge thought Love controlled. M ontrym v. Panora, 438 F. Supp. 1157 (Mass. 1977). We noted probable jurisdiction following the submission of supplemental briefs by the parties. Sub nom. Panora v. Montrym, 435 U. S. 967 (1978). We reverse.6 II The Registra.r concedes here that suspension of a driver's license for statutorily defined cause implicates a protectible property interest; 7 accordingly, the only question presented by this appeal is what process is due to protect against an erroneous deprivation of that interest. Resolution of this inquiry requires consideration of a number of factors: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319,335 (1976). 6 Because the District Court held the statute unconstitutional on its face and granted classwide relief, it never reached the "as applied" challenge raised in Montrym's complaint; nor do we. The validity of that challenge, and the resolution of any contested factual issues relevant to it, must be determined by the District Court on remand in light of our opinion. Also, the question of whether the Commonwealth is constitutionally required to give notice of the § 24 (1) (g) hearing procedure independent of the notice given by the statute itself was neither framed by the pleadings nor decided by the District Court; it is not properly before us notwithstanding the observations of the dissenting opinion on this issue. See post, at 27-28, and n. 4. 7 That the Due Process Clause applies to a state's suspension or revocation of a driver's license is clear from our decisions in Dixon v. Love, 431 U.S. 105, 112 (1977), and Bell v. Burson, 402 U.S. 535, 539 (1971). MACKEY v. MONTRYM 11 1 Opinion of the Court Applying this balancing test, the District Court concluded due process required an opportunity for hearing before suspension of a license. 429 F. Supp., at 398-400. Later, the court further held that our decision in Dixon v. Love, supra, did not control. Love was thought distinguishable because the potential for irreparable personal and economic hardship was regarded as greater under the Massachusetts statutory scheme than the Illinois scheme; the risk of error was deemed more substantial as well; and requiring a hearing before suspending a driver's license for refusing to take a breath-analysis test was believed not to offend the state interest in safe highways. 438 F. Supp., at 1159-1161. We conclude that Love cannot be materially distinguished from the case before us. Both cases involve the constitutionality of a statutory scheme for administrative suspension of a driver's license for statutorily defined cause without a presuspension hearing. In each, the sole question presented is the appropriate timing of the legal process due a licensee. And, in both cases, that question must be determined by reference to the factors set forth in Eldridge. A The first step in the balancing process mandated by Eldridge is identification of the nature and weight of the private interest affected by the official action challenged. Here, as in Love, the private interest affected is the granted license to operate a motor vehicle. More particularly, the driver's interest is in continued possession and use of his license pending the outcome of the hearing due him. As we recognized in Love, that interest is a substantial one, for the Commonwealth will not be able to make a driver whole for any personal inconvenience and economic hardship suffered by reason of any delay in redressing an erroneous suspension through postsuspension review procedures. 431 U. S., at 113. But, however substantial Montrym's property interest may 12 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. be, it is surely no more substantial than the interest involved in Love. The private interest involved here actually is less substantial, for the Massachusetts statute authorizes suspension for a maximum of only 90 days, while the Illinois scheme permitted suspension for as long as a year and even allowed for the possibility of indefinite revocation of a license. To be sure, as the District Court observed, the Illinois statute in Love contained provisions for hardship relief unavailable under the Massachusetts statute. Though we adverted to the existence of such provisions in Love, they were in no sense the "controlling" factor in our decision that the District Court believed them to be. 438 F. Supp., at 1159. Hardship relief was available under the Illinois scheme only after a driver had been suspended and had demonstrated his eligibility for such relief. See Dixon v. Love, 431 U. S., at 114 n. 10. The bearing such provisions had in Love stemmed from the delay involved in providing a postsuspension hearing. Here, unlike the situation in Love, a postsuspension hearing is available immediately upon a driver's suspension and may be initiated by him simply by walking into one of the Registrar's local offices and requesting a hearing. The Love statute, in contrast, did not mandate that a date be set for a postsuspension hearing until 20 days after a written request for such a hearing was received from the affected driver. Id., at 109-110. The duration of any potentially wrongful deprivation of a property interest is an important factor in assessing the impact of official action on the private interest involved. Fusari v. Steinberg, 419 U. S. 379, 389 (1975). The District Court's failure to consider the relative length of the suspension periods involved in Love and the case at bar, as well as the relative timeliness of the postsuspension review available to a suspended driver, was erroneous. Neither the nature nor the weight of the private interest involved in this case compels a result contrary to that reached in Love. MACKEY v. MONTRYM 13 1 Opinion of the Court B Because a primary function of legal process is to minimize the risk of erroneous decisions, Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 12---13 (1979); Addington v. Texas, 441 U.S. 418,423 (1979), the second stage of the Eldridge inquiry requires consideration of the likelihood of an erroneous deprivation of the private interest involved as a consequence of the procedures used. And, although this aspect of the Eldridge test further requires an assessment of the relative reliability of the procedures used and the substitute procedures sought, the Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a protectible "property" or "liberty" interest be so comprehensive as to preclude any possibility of error. The Due Process Clause simply does not mandate that all governmental decisionmaking comply with standards that assure perfect, error-free determinations. Greenholtz v. Nebraska Penal Inmates, supra, at 7. Thus, even though our legal tradition regards the adversary process as the best means of ascertaining truth and minimizing the risk of error, the "ordinary principle" established by our prior decisions is that "something less than an evidentiary hearing is sufficient prior to adverse administrative action." Dixon v. Love, supra, at 113. And, when prompt postdeprivation review is available for correction of administrative error, we have generally required no more than that the predeprivation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be. See, e. g., Barry v. Barchi, post, at 64---65; Mat hews v. Eldridge, 424 U. S., at 334. As was the case in Love, the predicates for a driver's suspension under the Massachusetts scheme are objective facts either within the personal knowledge of an impartial government official or readily ascertainable by him. Cause arises for license suspension if the driver has been arrested for 14 OCTOBER TERM, 1978 Opinion of the Court 443 u. s. driving while under the influence of an intoxicant, probable cause exists for arrest, and the driver refuses to take a breath-analysis test. The facts of the arrest and the driver's refusal will inevitably be within the personal knowledge of the reporting officer; indeed, Massachusetts requires that the driver's refusal be witnessed by two officers. At the very least, the arresting officer ordinarily will have provided the driver with an informal opportunity to tell his side of the story and, as here, will have had the opportunity to observe the driver's condition and behavior before effecting any arrest. The District Court, in holding that the Due Process Clause mandates that an opportunity for a further hearing before the Registrar precede a driver's suspension, overstated the risk of error inherent in the statute's initial reliance on the corroborated affidavit of a law enforcement officer. The officer whose report of refusal triggers a driver's suspension is a trained observer and investigator. He is, by reason of his training and experience, well suited for the role the statute accords him in the presuspension process. And, as he is personally subject to civil liability for an unlawful arrest and to criminal penalties for willful misrepresentation of the facts, he has every incentive to ascertain accurately and truthfully report the facts. The specific dictates of due process must be shaped by "the risk of error inherent in the truthfinding process as applied to the generality of cases" rather than the "rare exceptions." Mathews v. Eldridge, supra, at 344. And, the risk of erroneous observation or deliberate misrepresentation of the facts by the reporting officer in the ordinary case seems insubstantial. Moreover, as this case illustrates, there will rarely be any genuine dispute as to the historical facts providing cause for a suspension. It is significant that Montrym does not dispute that he was arrested, or that probable cause existed for his arrest, or that he initially refused to take the breath-analysis test at the arresting officer's request. The allegedly "factual" MACKEY v. MONTRYM 15 1 Opinion of the Court dispute that he claims a constitutional right to raise and have determined by the Registrar prior to his suspension really presen ts questions of law; namely, whether the state court's subsequent finding that the police later refused to administer a breath-analysis test at Montrym's request is binding on the Registrar as a matter of collateral estoppel; and, if so, whether that finding undermines the validity of Montrym's suspension, which may well be justified under the statute solely on the basis of Montrym's initial refusal to take the breath-analysis test and notwithstanding the officer's subsequent refusal to honor Montrym's belated request for the test.8 The Commonwealth must have the authority, if it is to protect people from drunken drivers, to require that the breath-analysis test record the alcoholic content of the bloodstream at the earliest possible moment. Finally, even when disputes as to the historical facts do arise, we are not persuaded that the risk of error inherent in the statute's initial reliance on the representations of the reporting officer is so substantial in itself as to require that the Commonwealth stay its hand pending the outcome of any evidentiary hearing necessary to resolve questions of credibility or conflicts in the evidence. Cf. Barry v. Barchi, post, at 64--65. All that Montrym seeks was available to him immediately upon his suspension, and we believe that the "same day" hearing before the Registrar available under § 24 ( 1) (g) provides an appropriately timely opportunity for the licensee to tell his side of the story to the Registrar, to obtain correction of clerical errors, and to seek prompt resolution of any factual disputes he raises as to the accuracy of the officer's report of refusal. 8 An evidentiary hearing into the historical facts would be ill suited for resolution of such questions of law. Indeed, it is not clear whether the Registrar even has the plenary authority to resolve such questions. Ultimately, any legal questions must be resolved finally by the Massachusetts courts on judicial review of the decision of the Board of Appeal after any appeal taken from the ruling of the Registrar. See n. 4, supra. 16 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. Nor would the avowedly "nonevidentiary" presuspension hearing contemplated by the District Court substantially enhance the reliability of the presuspension process. Clerical errors and deficiencies in the officer's report of refusal, of course, could be called to the Registrar's attention if the driver were provided with an opportunity to respond to the report in writing prior to suspension. But if such errors and deficiencies are genuinely material they already will have been noted by the Registrar in the ordinary course of his review of the report. Just as the Registrar has no power to stay a suspension upon receipt of a report of refusal that complies on its face with statutory requirements, he has no power to suspend a license if the report is materially defective. Necessarily, then, the Registrar must submit the officer's report to his independent scrutiny. This independent review of the report of refusal by a detached public officer should suffice in the ordinary case to minimize the only type of error that could be corrected by something less than an evidentiary hearing. The only other purpose that might be served by an opportunity to respond to the report of refusal prior to a driver's suspension would be alerting the Registrar to the existence of factual disputes between the driver and the reporting officer. This would be an exercise in futility, for the Registrar has no discretion to stay a suspension pending the outcome of an evidentiary hearing. And, it simply begs the question of a driver's right to a presuspension evident-iary hearing to suggest, as did the District Court, that the Registrar be given such discretion. The Massachusetts Legislature has already made the discretionary determination that the District Court apparently would have the Registrar make on a caseby- case basis. It has determined that the Registrar, who is further removed in time and place from the operative facts than the reporting officer, should treat a report of refusal that complies on its face with the statutory requirements as presumptively accurate notwithstanding any factual disputes raised by a driver. Simply put, it has determined that the MACKEY v. MONTRYM 17 1 Opinion of the Court Registrar is not in a position to make an informed probablecause determination or exercise of discretion prior to an evidentiary hearing. We cannot say the legislature's judgment in this matter is irrational. In summary, we conclude here, as in Love, that the risk of error inherent in the presuspension procedures chosen by the legislature is not so substantial in itself as to require us to depart from the "ordinary principle" that "something less than an evidentiary hearing is sufficient prior to adverse administrative action." 431 U. S., at 113. We fail to see how reliability would be materially enhanced by mandating the presuspension "hearing" deemed necessary by the District Court. C The third leg of the Eldridge balancing test requires us to identify the governmental function involved; also, to weigh in the balance the state interests served by the summary procedures used, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought. Here, as in Love, the statute involved was enacted in aid of the Commonwealth's police function for the purpose of protecting the safety of its people. As we observed in Love, the paramount interest the Commonwealth has in preserving the safety of its public highways, standing alone, fully distinguishes this case from Bell v. Burson, 402 U. S., at 539, on which Montrym and the District Court place principal reliance. See 431 U. S., at 114-115. We have traditionally accorded the states great leeway in adopting summary procedures to protect public health and safety. States surely have at least as much interest in removing drunken drivers from their highways as in summarily seizing mislabeled drugs or destroying spoiled foodstuffs.9 E. g., Ewing v. 9 Drunken drivers accounted for 283 of the 884 traffic fatalities in Massachusetts during 1975 alone and must have been responsible for countless 18 OCTOBER TERM, 1978 Opinion of the Court 443U.S. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950); North American Storage Co. v. Chicago, 211 U. S. 306 (1908). The Commonwealth's interest in public safety is substantially served in several ways by the summary suspension of those who refuse to take a breath-analysis test upon arrest. First, the very existence of the summary sanction of the statute serves as a deterrent to drunken driving. Second, it provides strong inducement to take the breath-analysis test and thus effectuates the Commonwealth's interest in obtaining reliable and relevant evidence for use in subsequent criminal proceedings. Third, in promptly removing such drivers from the road, the summary sanction of the statute contributes to the safety of public highways. The summary and automatic character of the suspension sanction available under the statute is critical to attainment of these objectives. A presuspension hearing would substantially undermine the state interest in public safety by giving drivers significant incentive to refuse the breath-analysis test and demand a presuspension hearing as a dilatory tactic. Moreover, the incentive to delay arising from the availability of a presuspension hearing would generate a sharp increase in the number of hearings sought and therefore impose a substantial fiscal and administrative burden on the Commonwealth. Dixon v. Love, 431 U. S., at 114. Nor is it any answer to the Commonwealth's interest in public safety that its interest could be served as well in other ways. The fact that the Commonwealth, for po1icy reasons of its own, elects not to summarily suspend those drivers who other injuries to persons and property. App. 31. More people were killed in alcohol-related traffic accidents in a year in this one State than were killed in the tragic DG-10 crash at O'Hare Airport in May 1979. Traffic deaths commonly exceed 50,000 annuaUy in the United States, and approximately one-half of these fatalities are alcohol related. See U. S. Dept. of Transportation, 1977 Highway Safety Act Report App. A-9 (Table A-1); U. S. Dept. of Health, Education, and Welfare, Third Special Report on Alcohol and Health 61 (1978). MACKEY v. MONTRYM 19 1 STEWART, J., dissenting do take the breath-analysis test does not, as the District Court erroneously suggested, in any way undermine the Commonwealth's strong interest in summarily removing from the road those who refuse to take the test. A state plainly has the right to offer incentives for taking a test that provides the most reliable form of evidence of intoxication for use in subsequent proceedings. Indeed, in many cases, the test results could lead to prompt release of the driver with no charge being made on the "drunken driving" issue. And, in exercising its police powers, the Commonwealth is not required by the Due Process Clause to adopt an "all or nothing" approach to the acute safety hazards posed by drunken drivers. We conclude, as we did in Love, that the compelling interest in highway safety justifies the Commonwealth in making a summary suspension effective pending the outcome of the prompt postsuspension hearing available. Accordingly, the judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE STEWART, with whom MR. JusTICE BRENNAN, MR. JusTICE MARSB:ALL, and MR. JuSTICE STEVENS join, dissenting. The question in this case, simply put, is whether a person who is subject to losing his driver's license for three months as a penalty for allegedly refusing a demand to take a breathanalysis test is constitutionally entitled to some sort of hearing before his license is taken away. In Massachusetts, such suspensions are effected by the Registrar of Motor Vehicles solely upon the strength of a policeman's affidavit recounting his version of an encounter between the police and the motorist. Mass. Gen. Laws Ann., ch. 90, § 24 (1) (f) (West Supp. 1979). The driver is afforded no opportunity, before this deprivation occurs, to present his side of the story in a forum 20 OCTOBER TERM, 1978 STEWART, J., dissenting 443U.S. other than a police station. He is given no notice of any entitlement he might have to a "same day" hearing before the Registrar. The suspension penalty itself is concededly imposed not as an emergency measure to remove unsafe drivers from the roads, but as a sanction to induce drivers to submit to breath-analysis tests. In short, the critical fact that triggers the suspension is noncooperation with the police, not drunken driving. In my view, the most elemental principles of due process forbid a State from extracting this penalty without first affording the driver an opportunity to be heard. A Our decisions in Bell v. Burson, 402 U.S. 535, and Dixon v. Love, 431 U. S. 105, made clear that a person's interest in his driver's license is "property" that a State may not take away ,vithout satisfying the requirements of the due process guarantee of the Fourteenth Amendment. And the constitutional guarantee of procedural due process has always been understood to embody a presumptive requirement of notice and a meaningful opportunity to be heard before the Stat€ acts finally to deprive a person of his property. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313; Fuentesv. Shevin, 407 U. S. 67, 82; Boddie v. Connecticut, 401 U. S. 371, 378; Bell v. Burson, supra, at 542; Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 16, 19. This settled principle serves to ensure that the person threatened with loss has an opportunity to present his side of the story to a neutral decisionmaker "at a time when the deprivation can still be prevented." Fuentes v. Shevin, supra, at 81-82. It protects not simply against the risk of an erroneous decision. It also protects a "vulnerable citizenry from the overbearing concern for efficiency ... that may characterize praiseworthy government officials no less . . . than mediocre ones." Stanley v. Illinois, 405 U. S. 645, 656. Cf. Memphis Light, Gas & Water Div. v. Craft, supra, at 21 n. 28. The very act of dealing with what purports to be MACKEY v. MONTRYM 21 1 STEWART, J., dissenting an "individual case" without first affording the person involved the protection of a hearing off ends the concept of basic fairness that underlies the constitutional due process guarantee. When a deprivation is irreversible-as is the case with a license suspension that can at best be shortened but cannot be undone-the requirement of some kind of hearing before a final deprivation takes effect is all the more important. Thus, in Bell v. Burson, the Court deemed it fundamental that "except in emergency situations" the State must afford a prior hearing before a driver's license termination becomes effective. 402 U. S., at 542.1 In Bell, the State did provide a presuspension administrative hearing, but the Court held that the State could not, while purporting to condition a suspension in part on fault, exclude the element of fault from consideration in that hearing. The dimensions of a prior hearing may, of course, vary depending upon the nature of the case, the interests affected, and the prompt availability of adequate postdeprivation procedures. Boddie v. Connecticut, supra; Mathews v. Eldridge, 424 U. S. 319, 334-335. But when adjudicative facts are involved, when no valid governmental interest would demonstrably be disserved by delay, and when full retroactive relief cannot be provided, an after-the-fact 1 Emergency situations have generally been defined as those in which swift action is necessary to protect public health, safety, revenue or the integrity of public institutions. See, e. g., Central Union Trw;t Co. v. Garvan, 254 U. S. 554 (emergency action during wartime); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (seizure of misbranded drugs); North American Storage Co. v. Chicago, 211 U. S. 306 (seizure of allegedly diseased poultry); Phillips v. Commissioner, 283 U. S. 589 (effective tax collection); F~hey v. Mallonee, 332 U. S. 245 (emergency bank management); cf. Goss v. Lopez, 419 U. S. 565, 582 (to protect a public institution from a continuing danger). See generally J. Freedman, Crisis and Legitimacy: The Administrative Process and American Government (1978); L. Tribe, American Constitutional Law § 10-14 (1978). 22 OCTOBER TERM, 1978 STEW ART, J ., dissenting 443 U.S. evidentiary hearing on a critical issue is not constitutiona1ly sufficient. Compare Mathews v. Eldridge, supra, with Bell v. Burson, supra. The case of Dixon v. Love, 431 U.S. 105, is not, as the Court seems to suggest, to the contrary. At issue in Love was a statute :;:>ermitting the summary revocation of the license of a repeat traffic offender on the strength of a cumulative record of traffic convictions and suspensions. The Court in Love stressed that the appellee had not contested the factual basis for his license revocation and had not contested the procedures followed in securing his previous convictions. Instead, the Love appellee had merely asserted a right to appear in person in advance to ask for leniency. Id., at 114. Under these circumstances, the Court held that summary suspension was permissible, for the "appellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the ... decision was based." Id., at 113 (emphasis added). Love, then, involved an instance in which a revocation followed virtually automatically from the fact of duly obtained convictions for a stated number of traffic offenses. It established no broad exception to the normal presumption in favor of a prior hearing. See Memphis Light, Gas & Water Div. v. Craft, supra, at 19 n. 24. B The Court likens this driver's license suspension to the revocation at issue in Love, but in my view that analogy simply cannot be drawn. The Massachusetts breath-analysis suspension statute, in clear contrast to the Love statute, affords the driver no prior hearing of any kind to contest the critical factual allegations upon which the suspension is based. Those allegations can hardly be equated with routinely kept records of serious traffic offense convictions. A breath-analysis suspension is premised upon three factors: MACKEY v. MONTRYM 23 1 STEWART, J., dissenting reasonable grounds for an arrest for driving while intoxicated; a proper request by the officer that the driver submit to a breath-analysis test; and a refusal to do so by the driver. Mass. Gen. Laws Ann., ch. 90, § 24 (1) (f) (West Supp. 1979). The appellee in this case was indeed arre.sted, after a collision in which his car was struck in the rear by a motorcycle, for driving while intoxicated. Moreover, he admitted that he initially refused to take a breath-analysis test. But he consistently contended that he was not informed of the sanction, as is required by § 24 ( 1) ( f), and he vigorously disputed the accuracy of the police affidavit that said he was so informed. His further claim-that he requested a test as soon as he learned by inadvertence of the sanction, and that the police then refused to administer the test-was apparently accepted by the Massachusetts judge who subsequently dismissed the drunken-driving charge against him. Thus, there was clearly a significant factual dispute in this case. That dispute, as in Bell v. Burson, concerned a critical element of the statutory basis for a suspension-in this instance whether there was indeed a refusal to take a breath-analysis test after a proper demand. The Court suggests nonetheless that the "fact" of an informed refusal, as well as the other statutory factual bases for a suspension, is somehow so routine, objective, and reliable as to be equivalent to routinely maintained official records of criminal convictions. I find this equation highly dubious. Initial deprivations of liberty based upon ex parte probable-cause determinations by the police are, of course, not unusual, Gerstein v. Pugh, 420 U. S. 103; ex parte probable-cause determinations by neutral magistrates relying upon properly corroborated police affidavits to determine whether arrest or search warrants should issue are likewise commonly made. E. g., Aguilar v. Texas, 378 U. S. 108. But these practices, to the extent that they permit ex parte deprivations of liberty or property, are clearly necessitated by the exigencies of law enforcement. They supply no support 24 OCTOBER TERM, 1978 STEWART, J., dissenting 443U.S. for the proposition that a police affidavit can provide a constitutionally sufficient basis for the deprivation of property in a civil proceeding, when there is ample time to give the owner an opportunity to be heard in an impartial forum before an impartial decisionmaker. Moreover, there is a vast difference between the record of duly adjudicated convictions at issue in Love and the historical facts of the encounter between the police and a motorist that form the basis for the driver's license suspension in the present case. To be sure, these relatively uncomplicated facts are unquestionably within "the persona.I knowledge of the reporting officer." Ante, at 14. But they are also within the knowledge of the driver. This Court has yet to hold that the police version of a disputed encounter between the police and a private citizen is inevitably accurate and reliable.2 I am not persuaded that the relative infrequency with which a driver may be able successfully to show that he did not refuse to take a breath-analysis test should excuse the State from the constitutional need to afford a prior hearing to any person who wishes to make such a challenge. The question whether or not there was such a refusal is one classically subject to adjudicative factfinding, and one that plainly involves issues of credibility and veracity. Mathews v. Eldridge, 424 U. S., at 343-344. The driver's "opportunity to tell his side of the story" to "the arresting officer," ante, at 14, surely 2 Contrary to the Court's suggestion, the case of Mathews v. Eldridge, 424 U. S. 319, provides no precedential support for the ex parte suspension procedure followed by Massachusetts. The disability-benefit termination procedures upheld in Mathews did not involve an "ex parte" deprivation of property. To the contrary, the Court in Mathews stressed that the recipient had been afforded an opportunity to make extensive written submissions to the decisionmaker before any initial termination decision was made. Id., at 344, 345. Given the amenability of the critical issue to written presentation and the clear availability of a prompt posttermination evidentiary hearing, this prior opportunity to be heardalbeit in writing-was deemed constitutionally sufficient. MACKEY v. MONTRYM 25 1 STEWART, J., dissenting cannot seriously be deemed a "meaningful opportunity to be heard" in the due process sense. There is simply no escaping the fact that the first hearing Massachusetts supplies on a breath-analysis suspension comes after the license of the driver has been taken away. And it is clear that the suspension itself effects a final deprivation of property that no subsequent proceeding can restore. Cf. Mathews v. Eldridge, supra, at 340.3 The State has urged, and the Court seems to agree, ante, at 17-19, that summary procedures are nevertheless required to further the State's interest in protecting the public from unsafe drivers. It cannot be doubted that the interest in "removing drunken drivers from the road" is significant. But the precedents supporting ex parte action have not turned simply on the significance of the governmental interest asserted. To the contrary, they have relied upon the extent to which that interest will be frustrated by the delay necessitated by a prior hearing. E. g., North American Storage Co. v. Chica.go, 211 L'". S. 306 (allegedly spoiled food), and cases 3 The Court stresses that a presuspension evidentiary hearing would be futile since the Registrar has no discretion to stay a suspension pending that hearing. The Court also emphasizes that the decision not to give the Registrar such discretion reflects a "rational" legislative choice. Ante, at 16-17. I fail to see how these observations answer the procedural due process claim in this case. The choice that the Massachusetts Legislature has made is merely a part of its decision to dispense with a presuspension hearing that is here under constitutional challenge. To be sure, that choice might well be "rational" in the equal protection sense. But the "rationality" of a legislative decision to dispense with the procedural safeguards that constitutionally must precede state deprivation of a person's interest has never been deemed controlling. The Court may, of course, be suggesting that the legislature has established a presumption that a driver who refuses a breath-analysis test is per se an unsafe driver. But the State has not made this argument, and indeed it would be a strange one in the context of this statute. For the state law expressly provides that an alleged refusal to take a breath-analysis test is not admissible as evidence in a prosecution for driving while intoxicated. Mass. Gen. Laws Ann., ch. 90, § 24 (1) (e) (West Supp. 1979). 26 OCTOBER TERM, 1978 STEWART, J., dissenting 443 U.S. cited in n. 1, supra. The breath-analysis test is plainly not designed to remove an irresponsible driver from the road as swiftly as possible. For if a motorist submits to the test and fails it, he keeps his driver's license-a result whol1y at odds with any notion that summary suspension upon refusal to take the test serves an emergency protective purpose. A suspension for refusal to take the test is obviously premised not on intoxication, but on noncooperation with the police. The State's basic justification for its summary suspension scheme, as the Court recognizes, ante, at 18, lies in the unremarkable idea that a prior hearing might give drivers a significant incentive to refuse to take the test. Related to this argument is the suggestion that the availability of a prior hearing might encourage a driver to demand such a hearing as a "dilatory" tactic, and thus might increase administrative costs by generating a "sharp increase in the number of hearings." Ibid. In sum, the State defends the ex parte suspension as essential to enlist the cooperation of drivers and also as a cost-saving device. I cannot accept either argument. The 3-month driver's license suspension alone is obviously sufficient to promote the widespread use of the breath-analysis test, if drivers are informed not only of this sanction for a refusal but also realize that cooperation may conclude the entire case in their favor. Moreover, as is generally the case when a person's ability to protect his interests will ultimately depend upon a swearing contest with a law enforcement officer, the deck is already stacked. heavily against the motorist under this statute. This point will not be lost upon the motorist. The State's position boils down to the thesis that the failure to afford an opportunity for a prior hearing can itself be part of the stacked deck. But there is no room for this type of argument in our constitutional system. A State is simply not free to manipulate Fourteenth Amendment procedural rights to coerce a person into compliance with its substantive rules, however important it may MACKEY v. MONTRYM 27 1 STEWART, J., dissenting consider those rules to be. The argument that a prior hearing might encourage "dilatory" tactics on the part of the motorist, true as it might be to human nature, is likewise wholly inconsistent with the simple Fourteenth Amendment guarantee that every "person" is entitled to be heard, before he may be deprived of his property by the State. Finally, the all too familiar cost-saving arguments raised by the State have regularly been made here and have as regularly been rejected as a justification for dispensing with the guarantees of the Fourteenth Amendment. For if costs were the criterion, the basic procedural protections of the Fourteenth Amendment could the assertion of its testing official as proof that appellee's horse had been drugged, and, at the interim suspension stage, an expert's affirmanc!' would appear suffi. ciently reliable to satisfy constitutional requirements. As for appellee's culpability, in light of the Board's trainer's responsibility rules, the inference, predicate-cl on the fact of drugging, that appellce was at least negligent will be accepted as defensible, and thf> State will not be put to further presuspension proof that appellee had not complied with the applicable I11les. Pp. 63-66. 2. However, appellef> was not assur<'d a sufficiently timely post• suspension hearing and § 8022 was unconstitutionally applied in this respect. The statutory provision for an administrative hearing, neither on its face nor as applied, assured a prompt proceeding and prompt disposition of the outstanding issues between appellee and the State, it being as likely as not t,hat appellee and others sub.iect to relatively brief suspensions would have no opportunity to put the State to its proof until they have suffered the full penalty imposed. Once suspension has been imposrd, the trainer's interest in a speedy resolution of the controversy brcomes paramount, and there is little or no state interest in an appreciable delay in going forward with a full hearing. P. 66. 3. The State's prohibition of administrative stays pending a hearing in the harness racing context without a like prohibition in thoroughbred racing does not deny harness racing trainers equal protection of the laws. The lf'gislative history of § 8022 makes clear that it and other provisions applicable to harness racing resulted from a legislative conclusion that harness racing should be subject to strict regulation, and appellee has not demonstrated that the acute problems attending harness racing also plague thoroughbred racing and that both types of racing should be treated identically. Also, the procedural mechanism select<'d to mitigate the threats to the public interest arising in the harness racing context is rationally related to the achievement of that goal. Pp. 67-68. 436 F. Supp. 775, affirmed in part, reversed in part, and remanded. BARRY v. BARCH! 57 55 Opinion of the Court WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, PowELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in part, in which STEWART, MARSHALL, and STEVENS, JJ., joined, post, p. 68. Robert S. Hammer, Assistant Attorney General of New York, argued the cause for appellants. With him on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General. Joseph A. Faraldo argued the cause and filed a brief for appellee.* MR. JUSTICE WHITE delivered the opinion of the Court. The New York State Racing and Wagering Board (Board) is empowered to license horse trainers and others participating in harness horse-race meets in New York.1 The Board also issues regulations setting forth the standards of conduct that a horse trainer must satisfy to retain his license.2 Among *Briefs of amici curiae urging affirmance were filed by Dominic H. Frinzi and Joseph F. Asher for Harness Horsemen International, Inc.; by Philip P. Ardery for the Horsemen's Benevolent and Protective Association; and by Roger D. Smith for the Jockeys' Guild, Inc. 0. Garlysle McCandless, Miles M. Tepper, Ira A. Finkelstein, and Ruth D. MacNaughton filed a brief for the New York Racing Association, Inc., as amicus curiae. 1 New York Unconsol. Laws § 8010 (I) (McKinney 1979) authorizes the "state harness racing commission," whose powers are now exercised by the New York State Racing and Wagering Board, see §§ 7951-a, 8162 (McKinney 1979), to "license drivers and such other persons participating in harness horse race meets, as the commission may by rule prescribe ...." See also 9 N. Y. C.R. R. § 4101.24 (1975). 2 The Board has issued, in particular, a series of rules specifying a trainer's responsibility for the condition of horses under the trainer's care, 9 N. Y. C.R. R. §§ 4116.11, 4120.5, 4120.6 (1974): "4116.11. Trainer's responsibility. A trainer is responsible for the condition, fitness, equipment, and soundness of each horse at the time it is declared to race and thereafter when it starts in a race." "4120.5. Presumptions. Whenever [certain tests required to be made on horses that place first, second, or third in a race] disclose the presence 58 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. other things, the rules i~ued by the Board forbid the drugging of horses within 48 hours of a race and make trainers responsible for the condition and soundness of their horses before, during, and after a race. 3 A trainer is forbidden to permit a horse in his custody to start a race "if he knows, or if by the exercise of reasonable care he might have known or have cause to believe" that a horse trained by him has been dru~ged.4 in any horse of any drug, stimulant, depressant or sedative, in any amount whatsoever, it shall be presumed: "(a) that the same was administered by a person or persons having the control and /or care and/or custody of !'uch horse with the intent thereby to affect the speed or condition of such horse and the result of the race in which it participated; "(b) that it was administered within the period prohibited [by § 4120.4 (d), seen. 3, infra]; and " ( c) that a sufficient quantity was administered to affect the speed or condition of such animal. "4120.6. Trainer's responsibility. A trainer shall be responsible at all times for the condition of all horses trained by him. No trainer shall ~tart a horse or permit a horn> in his cu~tody to be started if he knows, or if by the exercise of rea1-onable care he might have known or have cause to believe, that the horse has received any drug, stimulant, sedative, depressant, medicine, or other substance that could result in a positive test. Every trainer must guard or causr to be guarded each horse trained by him in Ruch manner and for such period of time prior to racing the horse so as to prevent any person not employed by or connected with the owner or trainer from administering any drug, stimulant, sedative, depressant, or othl'r substancr re sulting in a positive test." 3 Title 9 N. Y. C.R. R. § 4120.4 (1974) provides in part: "No person ~hall, or attempt to, or shall conspire with another or others to: "(a) Stimulate or depress a horse through the administration of any drug, medication, stimulant, depres..--ant , hypnotic or narcotic. " ( d) Administer any drug, medicant, stimulant, depressant, narcotic or hypnotic to a horse within 48 hour~ of its race." Sl'<' also§ 4116.11, quoted inn. 2, supra. 9 N. Y. C. R.R. § 4120.6 (1974), quoted inn. 2, supra. BARRY v. BARCH! 59 55 Opinion of the Court Every trainer is required to "guard or cause to be guarded each horse trained by him in such manner ... as to prevent any person not employed by or connected with the owner or trainer from administering any drug .... " 5 And when a postrace test, which must be administered to horses finishing first, second, or third, reveals the presence of drugs, it is to be presumed-subject to rebuttal-that the drug "was either administered by the trainer or resulted from his negligence in failing to adequately protect against such occurrence." 6 On June 22, 1976, Be Alert, a harness race horse trained by appellee, John Barchi, finished second in a race at Monticello Raceway. Two days later, Barchi was advised by the Board steward that a postrace urinalysis had revealed a drug in Be Alert's system. Barchi proclaimed his innocence, and two lie-detector tests supported his lack of knowledge of the drugging. On July 8, relying on the trainer's responsibility rules and the evidentiary presumption arising thereunder, the steward suspended Barchi for 15 days, commencing July 10.7 Under§ 8022 of the New York Uncon- 5 lbid. 6 Barchi v. Saraf an, No. 76 Civ. 3070 (SDNY, Dec. 23, 1976), reprinted in App. to Juris. Statement 24a; see Barchi v. &rafa:n, 436 F. Supp. 775, 784 (SDNY 1977); App. 25a (affidavit of John Barchi). The Assistant Attorney General of New York interpreted t.he presumption in this wa.y both before the three-judge court and in oral argument before this Court: "QUESTION: What this is is a presumption to get the matter started and that can be rebutted by other evidence. "MR. HAMMER: Absolutely, Your Honor. This is a permissive presumption. It is a rule of evidence, nothing more." Tr. of Oral Arg. 7. See id., at 5; Tr. 33-34 (trainer not held absolutely responsible for drugging of horse "if it is shown that the tra.iner was not culpable, that he, himself, could not administer the drug and he was not found to be negligent in supervising the people under him"). 7 Title 9 N. Y. C. R. R. § 4105.8 (f) (1974) authorizes presiding judges " [ w] here a violation of any rule is suspected to conduct an inquiry promptly and to take such action as may be appropriate . . . ." New 60 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. solidated Laws,8 a suspended licensee is entitled to a postsuspension hearing, but the section ordains that "[p] ending such hearing and final determination thereon, the action of York Unconsol. Laws § 8010 (2) (McKinney 1979) states the grounds for revocation or suspension: " . .. The commission may suspend or revoke a license issued pursuant to this section if it shall determine that (a) the applicant or licensee (1) has been convicted of a crime involving moral turpitude; (2) has engaged in bookmaking or other form of illegal gambling; (3) has been found guilty of any fraud in connection with racing or breeding; (4) has been guilty of any violation or attempt to violate any law, rule or regulation of any racing jurisdiction for which suspension from racing might be imposed in such jurisdiction; (5) or ... has violated any rule, regulation or order of the commission, or [that (b)] the experience, character or general fitness of any applicant or licensee is such [that] the participation of such person in harness racing or related activities would he inconsistent with the public interest, com·enience or necessity or with the best interests of racing generally." s New York Unconsol. Laws § 8022 (McKinney 1979) provides in full: "If the state harness racing commission shall refuse to grant a license applied for under this act, or shall revoke or suspend such a license granted by it, or shall impose a monetary fine upon a participant in harness racing the applicant or licensee or party fined may demand, within ten days after notice of the said act of the commission, a hearing before the commission and the commission shall give prompt notice of a time and place for such hearing at which the rommission will hear such applicant or licensee or part.y fined in reference thereto. Pending such hearing and final determination thereon, the action of the commission in refusing to grant or in revoking or suspending a license or in imposing a monetary fine shall remain in full force and effect. The commission may continue such hearing from time to time for the convenience of any of the parties. Any of the parties affected by such hearing may be represenkd by counsel, and the commission may be represented by the attorney-general, a deputy attorney-general or its counsel. In the conduct of such hearing the commission shall not be bound by technical rules of evidence, but all evidence offered before the commission shall be reduced to writing, and such evidence together with the exhibits, if any, and the findings of the commission, shall be permanently preserved and shall constitute the record of the Pomrnis~ion in such case. In connection with such hearing, each member of the BARRY v. BARCHI 61 55 Opinion of the Court the [Board] in ... suspending a license ... shall remain in full force and effect." The section specifies no time in which the hearing must be held, and it affords the Board as long as 30 days after the conclusion of the hearing in which to issue a final order adjudicating a case. Without resorting to the § 8022 procedures, Barchi filed this suit in the United States District Court. Barchi alleged that his trainer's license was protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution and that § 8022 was unconstitutional because it permitted his license to be suspended without a prior hearing to determine his culpability and because a summary suspension could not be stayed pending the administrative review provided by the statute. Barchi also challenged the rule permitting the Board to presume rebuttably from the drugging of a horse that its trainer was responsible. His claim was that "there is no rational connection between the fact proved, that the horse was illegally drugged, and the ultimate fact presumed that the trainer is guilty of the act or carelessly guarded against the act occurring," App. 15a ( complaint), it being impossible, Barchi alleged, for the trainer to guard the horse against all those who by stealth might gain commission shall have the power to administer oaths and examine witnesses, and may issue subpoenas to compel attendance of witnesses, nnd the production of all material and relevant reports, books, papers, documents, correspondence and other evidence. The commission may, if occasion shall require, by order, refer to one or more of its members or officers, the duty of taking testimony in such matter, and to report thereon to the commission, but no determination shall be made therein except by the commission. Within thirty days after the conclusion of such hearing, the commission shall make a final order in writing, setting forth the reasons for the action taken by it and a copy thereof shall be served on surh applicant or licensee or party fined, as the case may be. The action of the commission in refusing to grant a license or in revoking or suspending a license or in imposing a monetary fine shall be reviewable in the supreme court in the manner provided by the provisions of article seventy-eight of the civil practice Jaw and rules." 62 OCTOBER TERM, 1978 Opinion of the Court 443 u. s. access to it. Barchi's third claim was that, in prohibiting a stay of his suspension pending administrative review, § 8022 denied him equal protection of the laws, since in the context of thoroughbred racing, in contrast to harness racing, suspensions can be stayed pending appeal.0 The District Court upheld the evidentiary presumption on its face, concluding: "[T]he duty of a trainer to oversee his horses is sufficiently connected to the occurrence of tampering to support the presumption established by the trainer's 'insurer' rules. The state's definition of trainer responsibility is reasonably related to the interests involved and, given the rebuttable nature of the 4120.5 presumption, the high standard of accountability is not unconstitutional" Barchi v. Saraf an, 436 F. Supp. 775, 784 (SDNY 1977). The District Court went on to hold, however, that§ 8022 of the New York law was unconstitutional under the Due Process Clause since it permitted the State "to irreparably sanction a harness race horse trainer without a pre-suspension or a prompt post-sus- 9 The provision applicable to thoroughbred racing, N. Y. Unconsol. Laws § 7915 (3) (McKinney 1979), provides: "No license shall be revoked unless such revocation is at a meeting of the state racing commission on notice to the licensee, who shall be entitled to a hearing in respect of such revocation. In the conduct of such hearing the commission shall not be bound by technical rules of evidence but all evidence offered before the commission shall be reduced to writing, and such evidence together with the exhibits, if any, and the findings of the commission, shall be permanently preserved and shall constitute the record of the commission in such case. The action of the co=ission in refusing, suspending or in revoking a license shall be reviewable in the supreme court in the manner provided by the provisions of article seventy-eight of the civil practice law and rules. Such hearing may be held by the chairman thereof or by any commissinnP.r designated by him in writing, and the chairman or said rommiRsionP.r may issue subpoenas for witnesses and administer oaths to witnesses. The chairman or commissioner holding such hearing shall, at the conclusion thereof, make his findings with respect thereto and said findings, if concurred in by two members of the co=ission, shall become the findings and determination of the commission." BARRY v. BARCH! 63 55 Opinion of the Court pension hearing in violation of plaintiff's right to due process." App. to Juris. Statement 2a (order of judgment).10 The court further concluded that the difference between the procedures applicable to harness racing and those applicable to thoroughbred racing was so unwarranted as to violate the Equal Protection Clause of the Fourteenth Amendment. We noted probable jurisdiction of the appeal. 435 U.S. 921 (1978). In this Court, the appellants adhere to their fundamental position that, as a constitutional matter, Barchi was entitled to no more process than was available to him under § 8022 either before or after the suspension was imposed and became effective. Barchi, on the other hand, continues to insist that his suspension could in no event become effective without a prior hearing to establish that his horse had been drugged and that he was culpable. We agree with appellants that § 8022 does not affront the Due Process Clause by authorizing summary suspensions without a presuspension hearing, and we reject Barchi's contrary contention. In disagreement with appellants, however, 10 The District Court declined to abstain to permit the state courts to construe § 8022 prior to adjudication of Barchi's constitutional claims on their merits. Appellants had maintained that the provision might be construed to give the Board discretion to stay suspensions pending the outcome of the postsuspension hearing provided by § 8022. The District Court thought the language of the statute unequivocally foreclosed that construction. We cannot say that the District Court erred in this respect. Section 8022 provides that, pending a full hearing and final determination thereon, "the action of the [Board] in ... suspending a license ... shaU remain in full force and effect." (Emphasis added.) The provision gives no assurance of a presuspension or prompt postsuspension hearing and determination. And it makes clear that the Board need not reach a determination until "thirty days after the conclusion of [the] hearing." We reject appellants' further contention that Barchi should not have commenced suit prior to exhausting the procedure contemplated under § 8022. Under existing authority, exhaustion of administrative remedies is not required when "the question of the adequacy of the administrative remedy ... [is] for all practical purposes identical with the merits of [the plaintiff's] lawsuit." Gibson v. Berryhill, 411 U. S. 564, 575 (1973). 64 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. we conclude that Barchi was not assured a sufficiently timely postsuspension hearinjl; and that § 8022 was unconstitutionally applied in this respect. It is conceded that, under New York law, Barchi's license could have been suspended only upon a satisfactory showing that his horse had been drugged and that he was at least negligent in failing to prevent the drugging. As a threshold matter, therefore, it is clear that Barchi had a property interest in his license sufficient to invoke the protection of the Due Process C'lause. 11 ,ve do not agree with Barchi's basic contention, however, that an cvidentiary hearing was required prior to the effectuation of his suspension. Unquestionably, the magnitude of a trainer's interest in avoiding suspension is substantial; but the State also has an important interest in assuring the integrity of the racing carried on under its auspices. In these circumstances, it seems to us that the State is entitled to impose an interim suspension, pending a prompt judicial or administrative hearing that would definitely determine the issues, whenever it has satisfactorily established probable cause to believe that a horse has been drugged and that a trainer has been at least negligent in connection with the drugging. Cf. Gerstein v. Pugh, 420 U. S. 103, 111-112 (1975); Mitchell v. W. T. Grant Co., 416 -U. S. 11 "C"nder New York law, a license may not be revoked or suspended at the discretion of the raring authorities. Cf. Bishop v. lV ood, 426 U. S. 341 (1976). Rather, suspension may ensue only upon proof of certain contingencies. See N. Y. l'nconsol. Laws§ 8010 (McKinney 1979), quoted in n. 7, supra. Notably, when a. horse is found to have been drugged, the license of the horse's trainer may be suspended or revoked if he did the drugiziug, if he knew or should have known that the horse had been drugged, or if he negligently failed to prevent it. Accordingly, state law has engendered a clear expectation of continued enjoyment of a license absent proof of culpable conduct by the trainer Barchi, therefore, has asserted a legitimate "claim of entitlement . ... that he may invoke at a hearing." Perry v. Sindermann, 408 r. R. 593, 601 (1972); see Board of Regents v. Roth, 408 U.S. 564 (1972); Bell v. Burson, 402 U.S. 535, 539 (1971); Goldberg v. Kelly, 397 "G. S. 254 (1970). BARRY v. BARCHI 65 55 Opinion of the Court 600, 609 (1974); Bell v. Burson, 402 U. S. 535, 542 (1971). In such circumstances, the State's interest in preserving the integrity of the sport and in protecting the public from harm becomes most acute. At the same time, there is substantial assurance that the trainer's interest is not being baselessly compromised. Under this standard, Barchi received all the process that was due him prior to the suspension of his license. As proof that Barchi's horse had been drugged, the State adduced the assertion of its testing official, who had purported to examine Barchi's horse pursuant to prescribed testing procedures. To establish probable cause, the State need not postpone a suspension pending an adversary hearing to resolve questions of credibility and conflicts in the evidence. At the interim suspension stage, an expert's affirmance, although untested and not beyond error, would appear sufficiently reliable to satisfy constitutional requirements. As for Barchi's culpability, the New York trainer's responsibility rules, approved by the District Court, established a rebuttable presumption or inference, predicated on the fact of drugging, that Barchi was at least negligent. In light of the duties placed upon the trainer by the trainer's responsibility rules, we accept this inference of culpability as defensible and would not put the State to further presuspension proof that Barchi had not complied with the applicable rules. Furthermore, although Barchi wa.s not given a formal hearing prior to the suspension of his license, he was immediately notified of the alleged drugging, 16 days elapsed prior to the imposition of the suspension, and he was given more than one opportunity to present his side of the story to the State's investigators. In fact, he stated his position in the course of taking two lie-detector examinations. He points to nothing in the record demonstrating convincingly that he was not negligent, and the State's investigators apparently failed to unearth an explanation for the drugging that would completely exonerate 66 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. him. Even if the State's presuspension procedures, then, were not adequate finally to resolve the issues fairly and accurately, they sufficed for the purposes of probable cause and interim suspension. That the State's presuspension procedures were satisfactory, however, still leaves unresolved how and when the adequacy of the grounds for suspension is ultimately to be determined. As the District Court found, the consequences to a trainer of even a temporary suspension can be severe; and we have held that the opportunity to be heard must be "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545, 552 ( 1965). Here, the provision for an administrative hearing, neither on its face nor as applied in this case, assured a prompt proceeding and prompt disposition of the outstanding issues between Barchi and the State. Indeed, insofar as the statutory requirements are concerned, it is as likely as not that Barchi and others subject to relatively brief suspensions would have no opportunity to put the State to its proof until they have suffered the full penalty imposed. Yet, it is possible that Barchi's horse may not have been drugged and Barchi may not have been at fault at all. Once suspension has been imposed, the trainer's interest in a speedy resolution of the controversy becomes paramount, it seems to us. We also discern little or no state interest, and the State has suggested none, in an appreciable delay in going forward with a full hearing. On the contrary, it would seem as much in the State's interest as Barchi's to have an early and reliable determination with respect to the integrity of those participating in state-supervised horse racing. In these circumstances, it was necessary that Barchi be assured a prompt postsuspension hearing, one that would proceed and be concluded without appreciable delay. Because the statute as applied in this case was deficient in this respect, Barchi's suspension was constitutionally infirm under the Due Process Clause of the Fourteenth Amendment. BARRY v. BARCID 67 55 Opinion of the Court The question remains whether the State's prohibition of administrative stays pending a hearing in the harness racing context without a like prohibition in thoroughbred racing denies harness racing trainers equal protection of the laws. The District Court acknowledged that the inquiry in this respect is "whether or not the classification is without a reasonable basis." 436 F. Supp., at 783. Put another way, a statutory classification such as this should not be overturned "unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational." Vance v. Bradley, 440 U.S. 93, 97 (1979). In holding that § 8022 violated the Equal Protection Clause, the District Court misapplied this standard. The legislative history of § 8022 makes clear that the section and other provisions applicable to harness racing resulted from a legislative conclusion that harness racing should be subject to strict regulation,12 and neither Barchi nor the District Court has demonstrated that the acute problems attending harness racing also plague the thoroughbred racing industry. Barchi has not shown that the two industries should be identically regulated in all respects; he has not convinced us that "the legislative facts on which the classification is apparently based could not reasonably be conceived to be 12 In response to the slaying of a union official who represented employees at a harness track and the resulting disclosure of "a pattern of activities . . . clearly inimical to the public interest," Governor Dewey appointed a commission to inquire into the general regulation of harness tracks. N. Y. Legis. Doc. No. 86, 177th Sess., 3 (1954). The investigation disclosed that harness racing had become "a lush and attractive field for every kind of abuse." Id., at 4; see Report of the New York State Commission, in Public Papers of Governor Thomas E. Dewey 505 (1954). The Commission· recommended major changes in the harness racing laws, including enactment of the provisions of § 8022 ruled unconstitutional by the District Court. See 1954 N. Y. Laws, ch. 510, § 8; Report of the New York State Commission, supra, at 512. 68 OCTOBER TERM, 1978 BRENNAN, J., concurring in part 443 u. s. true by the governmental decisionmaker." Vance v. Bradley, supra, at 111. It was not the State's burden to disprove by resort to "current empirical proof," 440 U.S., at ll0, Barchi's bare assertions that thoroughbred and harness racing should be treated identically. It also seems clear to us that the procedural mechanism selected to mitigate the threats to the public interest arising in the harness racing context is rationally related to the achievement of that goal. The State could reasonably conclude that swift suspension of harness racing trainers was necessary to protect the public from fraud and to foster public confidence in the harness racing sport. Accordingly, we think the District Court erred in disapproving the difference in the procedural courses applicable to harness racing and thoroughbred racing. We thus affirm the judgment of the District Court insofar a.s it ruled Barchi's suspension unconstitutional for lack of assurance of a prompt postsuspension hearing. We reverse its judgment, however, to the extent. that it. declared § 8022 unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The judgment of the District Court is accordingly affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.13 It is so ordered. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART, MR. JusTrCE MARSHALL, and MR. JUSTICE STEVENS join, concurring in part. I agree that the District Court properly declined either to abstain in this case or to require exhaustion of state remedies 13 We express no view on whether the procedures under § 80'22, as that section may have been modified by subsequent legislation, satisfy the strictures of the Due Process Clause. After the District Court rendered its decision, the Appellate Division of the New York Supreme Court BARRY v. BARCHI 69 55 BRENNAN, J., concurring in part that were themselves being challenged as unconstitutional.1 I also agree that appellee's trainer's license clothes him with a constitutionally protected interest of which he cannot be deprived without procedural due process. What was said of automobile drivers' licenses in Bell v. Burson, 402 U. S. 535, nullified a Board order summarily suspending a veterinarian's license to practice medicine at racetracks on the ground that the Board had not made "any finding that the public health, safety, or welfare imperatively required such emergency action as a suspension prior to a hearing." Gerard v. Barry, 59 App. Div. 2d 901, 399 N. Y. S. 2d 876 (1977). The court relied on § 401 (3) of the State Administrative Procedure Act, N. Y. State Admin. Proc. Act§ 401 (3) (McKinney Supp. 1977), which provides: "If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered, effective on the date specified in such order or upon service of a certified copy of such order on the licensee, whichever shall be later, pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined." Section 401 (3) did not take effect until September 1, 1976, two months after Barchi was suspended. The section has no bearing on the constitutionality of procedures under § 8022 as applied to persons like Barchi who were suspended prior to its effective date. See N. Y. State Admin. Proc. Act§ 103 (3) (McKinney Supp. 1977). 1 I also agree that the Court need not address the District Court's holding that the rebuttable presumption of trainer responsibility is constitutional; appellee did not cross appeal, and he is not to be heard upon the challenge to that holding made in his brief, since agreement with that challenge would result in greater relief than was awarded him by the District Court. See FEA v. Algonquin SNG, Inc., 426 U. S. 548, 560 n. 11 (1976); United States v. Raines, 362 U.S. 17, 27 n. 7 (1960). Lower court decisions conflict on the question whether an irrebuttable presumption of trainer responsibility is constitutional. Compare Brennan v. Illinois Racing Board, 42 Ill. 2d 352, 247 N. E. 2d 881 (1969) (irrebuttable presumption unconstitutional), with Hubel v. West Virginia Racing Comm'n, 513 F. 2d 240 (CA4 1975) (irrebutta.ble presumption constitutional). See generally Note, Brennan v. Illinois Racing Board: The Validity of Statutes Making a Horse Trainer the Absolute Insurer for the Condition of His Horse, 74 Dick. L. Rev. 303 (1970). 70 OCTOBER TERM, 1978 BRENNAN, J., concurring in part 443U. S. 539 (1971), is even more true of occupational licenses such as Barchi's: "Once licenses are issued, ... their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses ... involves ·state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment." See Dizon v. Love, 431 U. S. 105, 112 ( 1977); Gibson v. Berryhill, 411 U.S. 564 (1973); cf. New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96 (1978). Board of Regents v. Roth, 408 U.S. 564 (1972), stated, in identifying protected interests, that Bell v. Burson was an example of situations in which "[t]he Court has ... made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money." 2 Appellants seek to avoid these cases by characterizing appellee's license as a "privilege" and arguing that one who has accepted the benefits of a license is precluded from challenging the conditions attached to it, including the procedures for suspension and revocation. See Arnett v. Kennedy, 416 U. S. 134 ( 1974) (plurality opinion). The Court properly rejects this contention-indeed, does not even mention it. Board of Regents v. Roth, supra, at 571, emphasized that "the 2 408 U. S., at 571-572. Roth explained that "[t]o have a [protectai] property interest in a benefit, a pcl'l'on clearly must have morr than an abstract need or desire for it. He must have more than a unilateral expectation of it. Ile must, instead, have a legitimate claim of entitlement to it." Id., at 577. No extended inquiry into· the formal and informal "rules or understandings that secure rertain benefits and that support claims of entitlement to those benefits," ibid., is neeessary here. Cf. Perry v. Sindermann, 408 lJ. S. 593, 599-603 (1972). AppC'llee's daim to an entitlement in his duly issued trainer's licen~e is confinned by the state statutes authorizing the issuance of licenses. See N. Y. Unconsol. Laws § 8010 (McKinney 1979). BARRY v. BARCHI 71 55 BRENNAN, J., concurring in part Court has fully and finally rejected the wooden distinction between 'rights' and 'privileges' that once seemed to govern the applicability of procedural due process rights." Having once determined that the interest at stake is protected by the Due Process Clause, a court has occasion only to inquire what process is due. See Dixon v. Love, supra, at 112; Mathews v. Eldridge, 424 U.S. 319, 332-333 (1976). Turning then to the question whether the procedures available to Barchi satisfied the mandates of due process, appellants argue that the State's interests in protecting horses and in protecting the repute of racing and the State's income derived from racing justify summary suspensions of trainers' licenses when traces of drugs are allegedly found in their horses' urine.' Prior decisions establish that "[b] efore a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, 'except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event,'" Board of Regents v. Roth, supra, at 570 n. 7, quoting Boddie v. Connecticut, 401 U. S. 371, 379 (1971); see Smith v. Organization of Foster Families, 431 U. S. 816, 848 (1977); Bell v. Burson, supra, at 542. Even where a State's 8 Cf. Hubel v. West Virginia Racing Comm'n, supra, which described West Virginia's interests as foliows: "The state has at least two substantial interests to be served. It has a humanitarian interest in protecting the health of the horse, and it has a broader and more weighty interest in protecting the purity of the sport, both from the standpoint of protecting its own substantial revenues derived from taxes on legalized pari-mutuel betting and protecting patrons of the sport from being defrauded. . . . If a horse is fleeter or slower than his normal speed because of having been drugged, the integrity of the race is irretrievably lost. Of course, if stimulated, his artificial position a.t the finish may be corrected and he may be deprived of any purse that he apparently won. But the interests of bettors cannot be protected. Winning tickets must be paid promptly at the end of the race before the disqualification of the horse, except for the most obvious reasons, can be accomplished." 513 F. 2d, at 243-244. 72 OCTOBER TERM, 1978 BRENNAN, J., concurring in part 443 U.S. interests justify action, after only summary informal proceedings, that temporarily infringes on protected interests pending a later full hearing, that full hearing must be available promptly after the temporary deprivation occurs. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975); Goldberg v. Kelly, 397 U.S. 254, 266-267 (1970). In any event, " [ t] his Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. [Citations omitted.] The 'right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.' Joint Anti-Fascist Comm. v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U. S. 545, 552 (1965). See Grannis v. Ordean, 234 U.S. 385, 394 (1914)." Mathews v. Eldridge, supra, at 333. The District Court held in this case that " [ o J n balance ... the absence of either a pre-suspension hearing or a prompt postsuspension hearing denie[d BarchiJ the meaningful review due process requires." Barchi v. Sarafan, 436 F. Supp. 775, 782 (SDNY 1977). I agree with the District Court and with the Court that the absence of an opportunity for a prompt postsuspension hearing denied Barchi due process. Given the "in the alternative" phrasing of the District Court's judgment and the absence of a cross-appeal by Barchi,4 however, I would not reach the question whether due process required a presuspension hearing in this case. Even assuming that the presuspension procedures afforded Barchi satisfied due proc- 4 See n. 1, supra. BARRY v. BARCHI 73 55 BRENNAN, J., concurring in part ess in light of the Stat€'s allegedly substantial interests,5 the State has failed to identify any substantial interest in postponing Barchi's opportunity for a full hearing once Barchi's license was suspended. Yet the District Court found that no opportunity for an immediate postsuspension full hearing was available. Furthermore, the District Court found that, in harness racing, even a temporary suspension can irreparably damage a trainer's livelihood. Not only does a trainer lose the income from races during the suspension, but also, even more harmful, he is likely to lose the clients he has collected over the span of his career.6 Where, as here, even a short 5 My reservation of the presuspension hearing issue does not imply agreement with the Court on this matter. The record in this case, in my view, raises serious doubts that the alleged state interests in this context are sufficient to justify postponing a trainer's hearing until after his suspension. See Mackey v. Montrym, ante, at 25-26 (STEWART, J., dissenting). The asserted importance of New York's intere~ts in summary action is plainly depreciated by the State Board's claimed practice of staying suspensions when appropriate. See Tr. of Oral Arg. 10-12; Tr. 27-30; affidavit of John M. Dailey, Aug. 26, 1976, App. 34a. Moreover, in this case 16 days elapsed between the positive urine test and the suspension order. These practices are hardly consistent with appellants' claim that summary suspensions are necessary to serve important state interests whenever a drug test is positive. 0 "Race horse trainers may be entrusted with the care of a number of trotters at any given time. A trainer's income is derived in large measure from the proceeds of horse races ( as opposed to a salary), and, since, harness 'meetings' are sporadic, trainers cannot recapture the racing opportunities lost by missed meetings. Once a trainer is suspended, even for a brief period, an owner will immediately seek the services of another trainer so that the horse is not barred from racing. This change is often permanent in order to avoid further disruption in the care of the 11nim11l. Significantly, plaintiff has proffered the affidavit of a third-party trainer/ driver who experienced just such a loss during a suspension for a similar drug infraction. He had also suffered irreparable damage for a subsequent ex parte suspension that was later reversed. Racing opportunities lost because of a suspension cannot be recovered by a later reversal in [a] review hearing for obvious reasons. Furthermore, defendants do not 74 OCTOBER TERM, 1978 BRENNAN, J., concurring in part 443 U.S. temporary suspension threatens to inflict substantial and irreparable harm, an "initial" deprivation quickly becomes "final," and the procedures afforded either before or immediately after suspension are de facto the final procedures. A final full hearing and determination after Barchi had been barred from racing his horses and had lost his clients to other trainers was aptly described by the District Court as an "exercise in futility," 436 F. Supp., at 782, and would certainly not qualify as a "meaningful opportunity to be heard at a meaningful time." To be meaningful, an opportunity for a full hearing and determination must be afforded at least at a time when the potentially irreparable and substantial harm caused by a suspension can still be avoided~i. e., either before or immediately after suspension. I therefore join those parts of the Court's opinion holding that the District Court properly refused to abstain or to require exhaustion and that the procedures available to Barchi failed to satisfy the requirements of due process because they did not assure a suspended trainer an opportunity for an immediate postsuspension full hearing and determination. In light of this holding, of Barchi's failure to cross appeal from the judgment of the District Court, and of possibly significant changes in the procedures applicable to all future suspensions,7 I would not reach the additional questions whether Barchi was constitutionally entitled to a pre-suspension hearing and whether the difference between the procedures in harness racing and those in flat racing violates the Equal Protection Clause. dispute the fact that a loss of horses in a trainer's stable occasioned during his suspension can often be an irremediable injury, even though such suspension is erroneous and without justification." Barchi v. Saraf an, 436 F. Supp. 775, 778 (SDNY 1977). See affidavit of John Barchi, July 12, 1976, App. 23a; affidavit of Lucien Fontaine, Aug. 17, 1976, App. 39a. 7 See ante, at 68-69, n. 13. BARRY v. BARCH! 75 55 BRENNAN, J., con curring in part Accordingly, I would affirm the judgment of the District Court insofar as it nullifies Barchi's suspension because the procedures applicable to his case at the time of his suspension did not satisfy due process. Like the Court, I express no view as to the constitutionality of procedures under § 8022 as it may have been modified by subsequent legislation; I would therefore vacate that portion of the District Court's judgment that declares § 8022 unconstitutional and enjoins its enforcement. 76 OCTOBER TERM, 1978 Syllabus 443 U.S. CALIFANO, SECRETARY OF HEALTH, EDUCATION, AND WELFARE V. WESTCOTT ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSE'ITS No. 78-437. Argued April 16, 1979-Decidt>d June 25, 1979* Section 407 of the Social Security Act, which governs the Aid to Families with Dependent Children, Unemployed Father (AFDC-UF) program, provides benefits to families whose dependent children have been deprived of parental support because of thr unemployment of the father, but does not provide such benefits when the mother becomes unemployed. This class action was instituted in Federal District Court against the Secretary of the Department of Health, Education, and Welfare (Secretary) and the Commissioner of the l\fassachusetts Department of Public ·welfare (Commissioner) by appcllecs, two couples (each having an infant son) who satisfy all the requirements for AFDC-UF benefits except for the requirement that the parent who is "unemployrd" within the meaning of the Act and applicable regulations be t,he father. Appellces alleged that § 407 and its implementing regulations discriminate on the basis of gender in violation of the Fifth and Fourteenth Amrndments, and sought declaratory and injunctive relief. The District Court dedared § 407 unconstitutional insofar as it establishrs a classification which discriminates solrly on the basis of sex, and detrrmined that extension of the AFDC-UF program to all families with needy children where either parent is unemployed, rather than nullification of the program, was the proper remedial course. Subsequently, the District Court declined to modify its order so as to pPrmit. the Commissioner to pay benc•fits only to those families where needy children have been deprived of parental support by the unemployment of the family's "principal wage-earner." The Secretary challenges only the holding on the constitutionality of § 407, whereas the CommissionP.r challenges only the relief. Held: 1. The gender classificat.ion of § 407 is not substantially related to the attainment of any important and valid statutory goals; it is, rather, *Together with No. 78-689, Pratt, Commissioner, Department of Public Welfare of Massachusetts v. Westcott et al., also on appeal from the same court. 76 CALIFANO v. WESTCOTT 77 Syllabus part of the "baggage of sexual stereotypes," Orr v. Orr, 440 U. S. 268, 283, that presumes the father has the "primary responsibility to provide a home and its essentials," Stanton v. Stanton, 421 U. S. 7, 10, while the mother is the "center of home and family life." Taylor v. Louisiana, 419 U. S. 522, 534 n. 15. Legislation that rests on suc,h presumptions, without more, cannot survive scrntiny under the Due Process Clause of the Fifth Amendment. Pp. 83-89. (a) The constitutionality of § 407 cannot be sustained on the theory that although it incorporates a gender distinction, it does not discriminate against women as a class because it affects family units rather than individuals. Pp. 83-85. (b) Nor can § 407's gender distinction survive constitutional scrutiny as being substantially related to achievement of an important governmental objective. It does not serve the statutory goal of providing aid for needy children, nor is it substantially related to achieving the alleged objective of the AFDC-UF program of reducing the incentive for fathers to desert in order to make their families eligible for assistance. Pp, 85--89. 2. The District Court's remedial order was proper. Pp. 89--93. (a) Since no party has argued that nullification of the AFDC-UF program is the proper remedial course, this Court would be inclined to consider that issue only if the power to order extension of the program were clearly beyond the constitutional competence of a federal district court. However, this Court's previous decisions, which routinely have affirmed district court judgments ordering extension of federal welfare programs, suggest strongly that no such remedial incapacity exists. Pp. 89--91. (b) The District Court, in ordering that benefits be paid to families in which either the mother or the father is unemployed within the meaning of the Act, rather than accepting the "principal wage-earner" model suggested by the Commissioner, adopted the simplest and most equitable extension possible. Pp. 91-93. 460 F. Supp. 737, affirmed. BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C. J., and STEWART and REHNQUIST, JJ., joined, post, p. 93. William H. Alsup argued the cause for appellant in No. 78- 437. On the brief were Solicitor General McCree and Sara 78 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. Sun Beale. Paul W. Johnson, Assistant Attorney General of Massachusetts, argued the cause for appellant in No. 78-689. With him on the briefs were Francis X. Bellotti, Attorney General, and S. Stephen Rosenfeld, Assistant Attorney General. Henry A. Freedman argued the cause for appellees in both cases. With him on the brief for appellees Westcott et al. were Kenneth P. Neiman and Michael B. Trister. Solicitor General M cCree filed a brief for the federal appellee in No. 78-689.t MR. JusTICE BLACKMUN delivered the opinion of the Court. Section 407 of the Social Security Act, 75 Stat. 75, as amended, 42 U. S. C. § 607, part of the Aid to Families with Dependent Children program, provides benefits to families whose dependent children have been deprived of parental support because of the unemployment of the father, but does not provide such benefits when the mother becomes unemployed. The United States District Court for the District of Massachusetts held that this distinction violates the Due Process Clause of the Fifth Amendment, and ordered that benefits be paid to families deprived of support because of the unemployment of the mother to the same extent they are paid to families deprived of support because of the unemployment of the father. 460 F. Supp. 737 (1978). In these appeals, the Secretary of the Department of Health, Education, and Welfare (HEW), in No. 78-437, challenges the holding on the constitutionality of § 407, but does not question the relief ordered by the District Court; the Commissioner of the MassatRuth Bader Ginsburg, Diana A. Steele, Phylli,s N. Segal,, and Nancy Duff Campell filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance in both cases. Stephan Landsman, Anthony Touschner, Charles E. Guerrier, and Barbara Kaye Besser filed a brief for Cathy Stevens et al. as amici curiae urging affirmance in No. 78-437. CALIFANO v. WESTCOTT 79 76 Opinion of the Court chusetts Department of Public Welfare (DPW), in No. 78-- 689, acquiesces in the decision on the merits, but contests the relief. I The Aid to Families with Dependent Children (AFDC) program, 49 Stat. 626, as amended, 42 U. S. C. § 601 et seq., provides financial assistance to families with needy dependent children. The program is administered by participating States, in conformity with federal standards, and is financed by the Federal Government and the States on a matchingfunds basis. King v. Smith, 392 e. S. 309, 316-317 (1968) ; Shea v. Vialpando, 416 U. S. 251, 253 (1974). As originally enacted in 1935, the AFDC program provided benefits to families whose dependent children were needy because of the death, absence, or incapacity of a parent. Batterton v. Francis, 432 U. S. 416, 418 (1977). This provision, which forms the core of the AFDC program today, is gender neutral: benefits are available to any family so long as one parent of either sex is dead, absent from the home, or incapacitated, and the family otherwise meets the financial requirements of eligibility. 42 U.S. C. § 606. In 1961, and again in 1962, Congress temporarily extended the AFDC program to provide assistance to families whose dependent children were deprived of support because of a parent's unemployment. Batterton v. Francis, 432 U. S., at 419; Philbrook v. Glodgett, 421 U. S. 707, 709-710 ( 1975). Again, this provision was gender neutral. A "dependent child," for purposes of determining eligibility for AFDC benefits, was defined to include "a needy child ... who has been deprived of parental support or care by reason of the unemployment ... of a parent." 75 Stat. 75 (emphasis added). In 1968, as part of a general revision of the Social Security Act, Congress made this extension permanent. In so doing, however, it added a gender qualification to the statute. The 80 OCTOBER TERM, 1978 Opinion of the Court 443 u. s. definition of "dependent child" in § 407 was amended to include a "needy child ... who has been deprived of parental support or care by reason of the unemployment ... of his father." 42 U.S. C. § 607 (a) (emphasis added). This portion of the AFDC program is known as Aid to Families with Dependent Children, Unemployed Father (AFDC-UF). Although all 50 States have chosen to participate in the basic AFDC program, only 26 States (plus Guam and the District of Columbia) take part in the AFDC-UF program. One of these is the Commonwealth of Massachusetts. Appellees are t,vo couples who, it is stipulated, satisfy all the requirements for AFDC-UF benefits 1 except for the requirement that the unemployed parent be the father. Cindy and William Westcott are married and ha.ve an infant son. They applied to the Massachusetts DPW for public assistance, but were informed that they did not qua.lify because William, ·who was unable to find work, had not previously been employed for a sufficient period to qualify as an "unemployed" father under the Act and applicable regulations. Cindy, until her recent unemployment, was the family breadwinner, and would have satisfied the "unemployment" criteria had she been male. Susan and John Weshvood are also married and have an 1 To be eligible for benefits under the AFDC-UF program, a family must meet both financial and categorical requirements. The financial requirements are determined by the participating States, and vary widely from one State to another. Rosado v. Wyman, 397 U. S. 397, 408--409 ( 1970) . The categorical requirements, however, are largely determined by the Federal Government. The Act itself specifies that. the father must have had 6 or more quarters of work in any 13-quartcr period ending within one year prior to the application for aid, and must be currently employed for less than 100 hours per month. 42 U. S. C. § 607 (b) ( 1) (C). In addition, § 407 of the Art gives the Secretary of HEW authority to promulgate regulations further defining thP "unemployment" that will render a family eligible for AFDC-UF benefits. Batterton v. Francis, 432 u. S. 416,425 (1977). The regulations, like the statute, speak in terms of the unemployment of the "father." 45 CFR § 233.100 (a)(l) (1978). CALIFANO v. WESTCOTT 81 76 Opinion of the Court infant son. They applied for Medicaid benefits as a family eligible for, but not receiving, AFDC~FF benefi.ts. 2 They, too, wne turned down on the ground that John's prior work history \vas insufficiC'nt. Susan, lik<> C'indy Westcott, had been th<> family breadwinnf'r bpfor«:> losing h«:>r job, and would have qualifi«:>d the family for benf'fits had she been male. Appellees instituted this class action in th<> Fnited States District Court for thP District of Massachusetts, naming as defendants the Secretary of HEW and the Commissioner of the DPW. Appellees alleged that § 407 and its implementing rf'gulations discriminate on the basis of gender in violation of the Fifth and Fourteenth Amendments. They sought declaratory and injunctive relief. The District Court certified th<> case as a class action.3 and granted appellees' motion for summary judgment. 460 F. Rupp. 737 0978). The court found that the gender qualification of § 407 was not substantially related to the achievement of any important govC'rnmf'ntal interests. 460 F. Supp., at 748-751. It was, rather, the product of an "archaic and overbroad generalization"-that "mothers in two parent fami lies 2 In States that pnrtiripnte in both thr AFDC program and the Medicaid proj!;rnm, 42 r. S. C. § 1396 et seq., individuals who qualify for AFDC benefits arr also entitled to rerein• Medicaid benefits. § 1396a (a) (10). 3 The clas.~ wns dcfined as "those MaSl5arhu~etts families with two parents in thP home and with minor dE'pendent children, born or unborn, who would otherwisE' be eligible for AFDC under Mal'.•achusetts' AFDC program, and hence Medicaid as WE'il, but for the ~PX disl'rimination in the federal statute [ 42 U. S. C. § 607] and l\fas$.1chusett~ regulations [6 CHSR III, Subch. A, Pt. 301, § 301.03; Pt. 303, Rubpt. A, §§ 303.01 & 303.04] which provide for the i:i;rantinl!; of federally fundrd AFDC and Medicaid to families deprived of support because of the unemployment of t heir father, but not to families deprived of support becau the goal of family stability. The Secretary submits that reducing the incentive for the fathf'!' to desert was an important objective of the AFDC-PF program, and he argues that thE.> gPnder qualification is substant.ially related to its achievement. We perceive, however, at least two flaws in this argument. Although it is relatively clear that Congress was concerned about the problem of parental desertion, see A. Rep. No. 744, 90th Cong., 1st Sess., 160 ( 1967); H. R. Rep. No. 28, 87th Con~ .. 1st Sess .. 2 (1961). there is no evidence that the gender distinction was desig-ned to address this problem. See Weinberger v. Wi.esenfeld, 420 r. S., at 648. Both the original AFDC program, and the temporary versions of the AFDC-UF CALIFANO v. WESTCOTT 87 76 Opinion of the Court program enacted in 1961 and 1962, were gender neutral. The gender qualification added to the permanent version of AFDC-UF in 1968 escaped virtually unnoticed in the hearings and floor debates.5 The only explanation for this addition is contained in the following passage, which appears in nearly identical form in both the House and Senate Reports: "This program was originally conceived by Congress as one to provide aid for the children of unemployed fathers. However, some States make families in which the father is working but the mother is unemployed eligible for assistance. The bill would not allow such situations. Under the bill, the program could apply only to the children of unemployed fathers." S. Rep. No. 744, at 160. See also H. R. Rep. No. 554, 90th Cong., 1st Sess., 108 (1967). This suggests that the gender qualification was part of the general objective of the 1968 amendments to tighten standards for eligibility and reduce program costs.6 Congress was concerned that certain States were making AFDC-UF assistance available to families where the mother ·was out of work, but the father remained fully employed and able to support 5 During the Senate floor debate on the Conference Report., Senator Muskie briefly noted and opposed the gender limitation of § 407. 113 Cong. Rec. 36914 (1967). 6 The overriding purpose of the 1968 AFDC amendments was "[t]o give greater emphasis to getting appropriate members of families drawing aid to families with dependent children (AFDC) payments into employment and thus no longer dependent on the welfare rolls." H. R. Rep. No. 544, 90th Cong., 1st Sess., 3 (1967). The principal changes in the AFDG-UF program designed to accomplish this end included provisions "to authorize a Federal definition of unemployment by the Secretary (but within certain limits set forth in the legislation), to tie the program more closely to the work and training program authorized by the bill, and to protect only the children of unrmploycd fathers who have had a recent attachment to the work force." Id., at 108. 88 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. the family. Apparently, Congress was not similarly concerned about States making benefits available where the father was out of work, but the mother remained fully employed. From all that appears, Congress, with an image of the "traditional family" in mind, simply assumed that the father would be the family breadwinner, and that the mother's employment role, if any, would be secondary. In short, the available evidence indicatBs that the gender distinction was inserted to reduce costs and eliminate what was perceived to be a type of superfluous eligibility for AFDC-UF benefits. There is little to suggest that the gender qualification had anything to do with reducing the father's incentive to desert.7 Even if the actual purpose of the gender qualification was to deal with the problem of paternal desertion, it does not appear that the classification is substantially relatBd to the achievement of that goal. The Secretary argues there is "[s] olid statistical evidence" that fathers are more susceptible to pressure to desert than mothers, and thus that Congress was justified in excluding families headed by unemployed mothers from the AFDC-UF program. Brief for Appellant in No. 78--437, p. 33. We may assume, for purposes of discussion, that Congress could legitimatBly view paternal desertion as a problem separatB and distinct from maternal desertion. Even so, the gender qualification of § 407 is not substantially related to the stated purpose. There is no evidence, in the legislative history or elsewhere, that a father has less incentive to desert in a family where the mother is the breadwinner and becomes unemployed, than in a family where the father is the breadwinner and becomes unemployed. In either case, the family's need will be equally great, and the father will be equally subject to pressure to leave the home to make the 7 This conclusion is reinforced by the fact that both the House and Senate Reports included material dealing specifically with the problem of parental desertion, yet none of this material mentioned the gender qualification of § 407. H. R. Rep. No. 544, 90th Cong., 1st Bess., 102-103 (1967); S. Rep. No. 744, 90th Cong., 1st Sess., 160---163 (1967). CALIFANO v. WESTCOTI 89 76 Opinion of the Court family eligible for benefits. The Secretary urges that Congress could take "one firm step" toward the goal of eliminating the incentive to desert, quoting Califano v. Jobst, 434 U. S. 47, 57-58 (1977). But Congress may not legislate "one step at a time" when that step is drawn along the line of gender, and the consequence is to exclude one group of families altogether from badly needed subsistence benefits. Cf. Williamson v. Lee Optical Co., 348 U. S. 483, 489 ( 1955). We conclude that the gender classification of § 407 is not substantially related to the attainment of any important and valid statutory goals. It is, rather, part of the "baggage of sexual stereotypes," Orr v. Orr, 440 U. S., at 283, that presumes the father has the "primary responsibility to provide a home and its essentials," Stanton v. Stanton, 421 U. S. 7, 10 (1975), while the mother is the" 'center of home and family life.'" Taylor v. Louisiana, 419 U. S. 522, 534 n. 15 (1975). Legislation that rests on such presumptions, without more, cannot survive scrutiny under the Due Process Clause of the Fifth Amendment. III THE COMMISSIONER'S APPEAL A "Where a statute is defective because of underinclusion," Mr. Justice Harlan noted, "there exist two remedial alternatives: a court may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion." Welsh v. United States, 398 U. S. 333, 361 (1970) ( concurring in result). In previous cases involving equal protection challenges to underinclusive federal benefits statutes, this Court has suggested that extension, rather than nullification, is the proper course. See, e.g., Jimenez v. Weinberger, 417 U. S. 628, 637-638 (1974); Frontiero v. Richardson, 411 U. S., at 691 and n. 25 (plurality opinion). Indeed, 90 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. this Court regularly has affirmed District Court judgments ordering that welfare benefits be paid to members of an unconstitutionally excluded class. E. g., Califano v. Goldfarb, 430 U. S. 199 (1977), aff'g 396 F. Supp. 308, 309 (EDNY 1975); Califano v. Silbowitz, 430 U.S. 924 (1977), summarily aff'g 397 F. Supp. 862, 871 (SD Fla. 1975); Jablon v. Califano, 430 U. S. 924 (1977), summarily aff'g 399 F. Supp. 118, 132-- 133 (Md. 1975); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975), aff'g 367 F. Supp. 981, 991 (NJ 1973); United States Dept. of Agriculture v. Moreno, 413 U. S. 528 (1973), aff'g 345 F. Supp. 310, 315-316 (DC 1972) ; Richardson v. Griffin, 409 U. S. 1069 (1972), summarily aff'g 346 F. Supp. 1226, 1237 (Md.). The District Court ordered extension rather than invalidation by way of remedy here, and equitable considerations surely support its choice. Approximately 300,000 needy children currently receive AFDC-VF benefits, see 42 Soc. Sec. Bull. 78 (Jan. 1979), and an injunction suspending the program's operation would impose hardship on beneficiaries whom Congress plainly meant to protect. The presence in the Social Security Act of a strong severability clause, 42 U. S. C. § 1303,8 likewise counsels against nullification, for it evidences a congressional intent to minimize the burdens imposed by a declaration of unconstitutionality upon innocent recipients of government largesse. There is no need, however, to elaborate here the conditions under which invalidation rather than extension of an underinclusive federal benefits statute should be ordered, for no party has presented that issue for review. All parties before the District Court agreed that extension was the appropriate remedy. Juris. Statement in No. 78-689, p. 6; Motion to Affirm 5; Juris. Statement in No. 78-437, p. 6 n. 5. Appellees 8 "If any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shflll not be affected thereby." 42 U. S. C. § 1303. CALIF ANO v. WESTCOTT 91 76 Opinion of the Court support that remedy here, and the Secretary, while arguing in favor of § 407's constitutionality, urges that, if the statute is invalidated, the District Court's remedy should be affirmed. Brief for Federal Appellee in No. 78-689, pp. 5-10. The Commissioner likewise argues that extension, rather than nullification, is proper, Tr. of Oral Arg. 18; indeed, the Commissioner did not appeal from the District Court's April 20 extension order, but only from its August 9 refusal to limit extension along "principal wage-earner" lines. App. to Juris. Statement in No. 78-689, p. 15a. Since no party has presented the issue of extension versus nullification for review, we would be inclined to consider it only if the power to order extension were clearly beyond the constitutional competence of a federal district court. This Court's previous decisions, however, which routinely have affirmed District Court judgments ordering extension of federal welfare programs, suggest strongly that no such remedial incapacity exists. B The narrower question presented by the Commissioner's appeal concerns not the merits of extension versus nullification, but rather the form that extension should take. The District. Court ordered that benefits be paid to families in which either the mother or the father is unemployed within the meaning of the Act. The Commissioner agrees that either the mother's or the father's unemployment should be able to qualify a needy family for benefits, but proposes to award them only if the parent in question can show that he or she is both unemployed and the family's "principal wage-earner." Citing the legislative history of the AFDG---UF program, the Commissioner argues that his proposed remedy comports with Congress' intent to aid families made needy by their breadwinner's unemployment. This argument, as the preceding portions of this opinion show, is not without force. We may assume arguendo that, if Congress knew in 1968 what it knows now, it might well have adopted the "principal wage-earner" 92 OCTOBER TERM, 1978 Opinion of the Court 443 u. 8. model suggested by the Commissioner. But this does not mean that the AFDC-UF program should be restructured along these lines by a federal court. First, the Commissioner's proposed remedy would have the effect of terminating benefits to many families currently receiving them. Under the Act and implementing regulations, benefits are paid to needy families of all unemployed fathers, whether or not the father is actually the "principal wageearner." See 42 U.S. C. § 607 (a); 45 CFR § 233.100 (a) (I) (1978). No one contends that the Act and regulations, insofar as they provide benefits to families of all unemployed fathers, are invalid. Absent some such showing of invalidity, we would hesitate to terminate needy families' entitlement to statutory benefits merely because the unemployed father cannot prove "breadwinner" status. Second, the Commissioner's proposed remedy would involve a restructuring of the Act that a court should not undertake lightly. Whenever a court extends. a benefits program to redress unconstitutional underinclusiveness, it risks infringing legislative prerogatives. The extension ordered by the District Court possesses at least the virtue of simplicity: by ordering that "father" be replaced by its gender-neutral equivalent, the court avoided disruption of the AFDC-UF program, for benefits simply will be paid to families with an unemployed parent on the same terms that benefits have long been paid to families with an unemployed father. The "principal wage-earner" solution, by contrast, would introduce a term novel in the AFDC scheme," and would pose definitional and policy questions best suited to legislative or administrative elaboration. The Commissioner, with his "principal wageearner" gloss on parental unemployment, in essence asks this Court to redefine "unemployment" within the meaning of the 9 The Act, for example, provides benefits to two-parent families made needy by the incapacity of either parent, regardless of which parent may have been the "principal wage-earner." 42 U. S. C. § 606 (a). CALIFANO v. WESTCOTT 93 76 Opinion of POWELL, .J. Act. Yet "Congress in § 407 (a) expressly delegated to the Secretary the power to prescribe standards for determining what constitutes 'unemployment' for purposes of AFDG-UF eligibility. In a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term." Batterton v. Francis, 432 U. S., at 425 (emphasis in original). The remedy the Commissioner proposes, of course, undeniably would be cheaper than the remedy the District Court decreed, in part because it would terminate some current recipients' eligibility. Although cost may prove a dispositive factor in other contexts, we do not regard it as controlling here. The Fnited States, which will bear the main burden of added coverage through federal matching grants, urges that the District Court's remedy be affirmed. The AFDG-UF program, furthermore, is optional with the States, id., at 431, and any State is free to drop out of it if dissatisfied with the added expense. This Court, in any event, is ill-equipped both to estimate the relative costs of various types of coverage, and to gauge the effect that different levels of expenditures would have upon the alleviation of human suffering. Under these circumstances, any fine-tuning of AFDC coverage along "principal wage-earner" lines is properly left to the democratic branches of the Government. In sum, we believe the District Court, in an effort to render the AFDC-UF program gender neutral, adopted the simplest and most equitable extension possible. The judgment of the District Court accordingly is affirmed. It is so ordered. MR. JrsTICE PowELL, with whom THE CHIEF JusTICE, MR. JusTICE STEWART, and MR. JusTICE REHNQUIST join, concurring in part and dissenting in part. I agree with the Court that § 407 violates the equal protection component of the Fifth Amendment. In my view, how94 OCTOBER TERM, 1978 Opinion of PoWELL, J. 443 U.S. ever, the court below erred when it ordered the extension of benefits to all families in which a mother has become unemployed. This exttinsion reinstates a system of distributing benefits that Congress rejected when it a.mended § 407 in 1968. Rather than frustrate the clear intent of Congress, the court simply should have enjoined any further payment of benefits under the provision found to be unconstitutional. As Mr. Justice Harlan observed: "Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to t,he class that the legislature intended t-0 benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion." Welsh v. United States, 398 U. S. 333, 361 (1970) (concurring in result). In choosing between these alternatives, a court should attempt to accommodate as fully as possible the policies and judgments expressed in the statutory scheme as a whole. See id., at 365-366, and n. 18. It should not use its remedial powers to circumvent the intent of the legislature. The Court correctly observes that "the gender qualification [ of § 407] was part of the general objective of the 1968 amendments to tighten standards for eligibility and reduce program costs.'' Ante. at 87. It is clear that Congress intended to proscribe the payment of benefits to families where only one parent was unemployed and where the principal wage earner continued to work. "From all that appears, Congress, with an image of the 'traditional family' in mind, simply assumed that the father would be the family breadwinner, and that the mother's employment role, if any, would be secondary." Ante, at 88. Yet the result of the Court's decision affirming the District CALIF ANO v. WESTCO'IT 95 76 Opinion of PowELL, J. Court's relief is to compel exactly the extension of benefits Congress wished to prevent.1 Rather than thus r ewriting § 407, we should leave this task to Congress. Now that we have held that this statute constitutes impermissible gender-based discrimination, it is the duty and function of the Legislative Branch to review its AFDC-UF program in light of our decision and make such changes therein as it deems appropriate. Leaving the resolution to Congress is especially desirable in cases such as this one, where the allocation and distribution of welfare funds are peculiarly within the province of the Legislative Branch. See Califano v. Jobst , 434 U.S. 47 (1977); Maher v. Roe, 432 U. S. 464, 479 (1977); Dandridge v. Williams, 397 U. S. 471 (1970). We cannot predict what Congress will think to be in the best interest of its total welfare program. The extension of AFDC benefits to families suffering only from unemployment ,vas a relatively recent development in the history of the program, a development that Congress made permanent only on the understanding that payments could be limited to cases where the principal wage earner was out of work. We cannot assume that Congress in 1968 would have approved this exten- 1 The relief that perhaps would best approximate what Congress appears to have intended would limit payment of benefits to those families in which t he principal wage earner, regardless of gender, has become unemployed. But this approach presents several difficulties, as the Court deroonstrat~s. Ante, at 91-93. Under these circumstances, the modification of the order sought by appellant in No. 78--689 properly was rejected. The Court suggests that payments to families where a breadwinner remains employed are not inconsistent with the Act, because in cases where a parent becomes incapacitated, benefits are paid regardless of the other parent's employment status or history. 42 U. S. C. § 606 (a); see ante, at 92 n. 9. This overlooks the special circumstances involved when a parent suffers from an incapacity. In such cases, the family usually must bear not only the costs of income lost through the one parent's unemployment, but also medical and other expenses resulting from the disability that often are quite substantial. 96 OCTOBER TERM, 1978 Opinion of PowELL, J. 443 U.S. sion if it had known that ultimately payments would be made whenever either parent became unemployed. Nor can we assume that Congress now would adopt such a system in light of the Court's ruling that § 407 is invalid. The Court emphasizes the hardships that may be caused by enjoining the program until Congress can act. There is the possibility, not mentioned by the Court, that other hardships might be occasioned in the allocating of limited funds as a result of court-ordered extension of these particular benefits. In any event, Congress has the option to mitigate hardships by providing promptly for retroactive payments. An injunction prohibiting further payments at least will conserve the funds appropriated until Congress determines which group, if any, it does want to assist. The relief ordered by the Court today, in contrast, ensures the irretrievable payment of funds to a class of recipients Congress did not wish to benefit.2 Because it is clear that Congress intended to prevent the result mandated today, and that the re-examination of § 407 required under our decision properly should be made by Congress, I dissent. 2 The fact that none of the parties here has sought this step, a point which the Court emphasizes, is irrelevant. This issue should turn on the intent of Congress, not the interests of the parties. A court no less is "infringing legislative prerogatives," ante, at 92, when it acts at the behest of the particular litigants before it, than when it chooses a remedy on its own initiative. SMITH v. DAILY MAIL PUBLISHING CO. 97 Syllabus SMITH, JC'DGE, ET AL. v. DAILY MAIL PUBLISHING CO. ET AL. CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 78-482. Argued ·March 20, 1979-Decided June 26, 1979 R<'spondrnt nrwspaperR published articlrs containing the name of a juvenile who had been arrested for alleg;edly killing another youth. Respondents Iearnrd of the evrnt and thr name of thr alleged assailant by monitoring the polirr band radio frequenry and by asking various eyewitnesses. Rt>spondents were indicted for violating a West Virginia statute whie-h makes it a crime for a newspaper to publish, without the written approval of thl' juvenile court, the mime of any youth chargrd as a juvenile offender. The \\"<'St Virginia Suprrme Court of Appeals 11:ranted a writ of prohibition against petitioners, the prosecuting attorney and thr Circuit Judges of Kanawha County, W. Va., holding that the statute on which the indictment was based violat-ed N1e First and Fourtcrnth Amrndments. Hrld: The State cannot, consistent with the First and Fourteenth Amendments, punish the truthful publication of an allegrcl juvenile delinquent's name lawfully obtamed by a newspaper. The asserted state interest in protecting the anonymity of the juvenile offender to further his rehabilitation cannot justify thl' statute's imposition of criminal sanctions for publication of a juvenile's name lawfully obtained. Pp. 101-106. (a) Whethrr the statute is Yiewed as a prior restraint by authorizing the juwnile judge to permit publication or as a penal sanction for publishing lawfully obtained, truthful information is not dispositive because even the latter action rrquires the highest form of state interest to sustain its validity. When a state attempts to punish publication aftl'r the event it must demonstrate that its punitive action was necessary to further the state interests asserted. Landmark Communications, Inc. v. Virginia, 435 U.S. 829. Pp. 101-104. (b) Respondents' First Amendment rights prevail over the State's mtercst in proteetrng juveniles. Cf. Davis v. Alaska, 415 U. S. 308. Even assumini that th<' statute served a state interest of the highest order, thl' statute does not a!'complish its stated purpose since it does not restrict the electronic media or any form of publication, except "newspapers." Pp. 104-105. - W. Va.-, 248 S. E. 2d 269, affirmed. 98 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. BuRGER, C. J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. REHNQUIST, J., filed an opinion concurring in the judgment, post, p. 106. POWELL, J., took no part in the consideration or decision of the case. Cletus B. Hanley, Special Assistant Attorney General of West Viriginia, argued the cause for petitioners. With him on the brief were Chauncey H. Browning, Attorney General, and Betty L. Caplan, Special Assistant Attorney General. Floyd Abrams argued the cause for respondents. With him on the brief were Dean Ringel, F. Paul Chambers, Michael A. Albert, and Rudolph L. Di Trapano .* MR. CHIEF JuSTICE BuRGER delivered the opinion of the Court. We granted certiorari to consider whether a West Virginia statute violates the First and Fourteenth Amendments of the United States Constitution by making it a crime for a newspaper to publish, without the written approval of the juvenile court, the name of any youth charged as a juvenile offender. (1) The challenged West Virginia statute provides: and: "[N] or shall the name of any child, in connection with any proceedings under this chapter, be published in any newspaper without a written order of the court . . .. " W. Va. Code § 49-7-3 (1976); "A person who violates ... a provision of this chapter for which punishment has not been specifically provided, *Paul Raymond Stone filed a brief for the Juvenile Defender Attorney Program et al. as amici curiae urging reversal. Briefs of amici curiae urging affirrnance were filed by Bruce J. Ennis for the American Civil Liberties Union; by Arthur B. Hanson and Frank M. Northam for the American Newspaper Publishers Association; by 97 SMITH v. DAILY MAIL PUBLISHING CO. 99 Opinion of the Court shall be guilty of a misdemeanor,. and upon conviction shall be fined not less than ten nor more than one hundred dollars, or confined in jail not less than five days nor more than six months, or both such fine and imprisonment." § 49-7-20. On February 9, 1978, a 15-year-old student was shot and killed at Hayes Junior High School in St. Albans, W. Va., a small community located about 13 miles outside of Charleston, W. Va. The alleged assailant, a 14-year-old classmate, was identified by seven different eyewitnesses and was arrested by police soon after the incident. The Charleston Daily Mail and the Charleston Gazette, respondents here, learned of the shooting by monitoring routinely the police band radio frequen~y; they immediately dispatched reporters and photographers to the junior high school. The reporters for both papers obtained the name of the alleged assailant simply by asking various witnesses, the police, and an assistant prosecuting attorney who were at the school. The staffs of both newspapers prepared articles for publication about the incident. The Daily Mail's first article appeared in its February 9 afternoon edition. The article did not mention the alleged attacker's name. The editorial decision to omit the name was made because of the statutory prohibition against publication without prior court approval. The Gazette made a contrary editorial decision and published the juvenile's name and picture in an article about the shooting that appeared in the February 10 morning edition of the paper. In addition, the name of the alleged juvenile attacker was broadcast over at least three different radio stations on February 9 and 10. Since the information had be- Richard M. Schmidt, Jr., and Ian D. Volner for the American Society of Newspaper Editors et al. ; and by Don H. Reuben, Lawrence Gunnels, and James A. Klenk for the Chicago Tribune Co. 100 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. come public knowledge, the Daily Mail decided to include the juvenile's name in an article in its afternoon paper on February 10. On March 1, an indictment against the respondents was returned by a grand jury. The indictment alleged that each knowingly published the name of a youth involved in a juvenile proceeding in violation of W. Va. Code § 49-7-3 (1976). Respondents then filed an original-jurisdiction petition with the West Virginia Supreme Court of Appeals, seeking a writ of prohibition against the prosecuting attorney and the Circuit Court Judges of Kanawha County, petitioners here. Respondents alleged that the indictment was based on a statute that violated the First and Fourteenth Amendments of the United States Constitution and several provisions of the State's Constitution and requested an order prohibiting the county officials from taking any action on the indictment. The West Virginia Supreme Court of Appeals issued the writ of prohibition. - W. Va.-, 248 S. E. 2d 269 (1978). Relying on holdings of this Court, it held that the statute abridged the freedom of the press. The court reasoned that the statute operated as a prior restraint on speech and that the State's interest in protecting the identity of the juvenile offender did not overcome the heavy presumption against the constitutionality of such prior restraints. We granted certiorari. 439 U. S. 963 (1978). (2) Respondents urge this Court to hold that because § 49-7-3 requires court approval prior to publication of the juvenile's name it operates as a "prior restraint" on speech.1 See Ne- 1 Respondents do not argue that the statute is a prior restraint because it imposes a criminal sanction for certain types of publication. At page 11 of their brief they state: "The statute in question is, to be sure, not a prior restraint because it subjects newspapers to criminal punishments for what they print" after the evient. So far as the Daily Mail was concerned, the statute operated as a deterSMITH v. DAILY MAIL PUBLISHING CO. 101 97 Opinion of the Court braska Press Assn. v. Stuart, 427 U. S. 539 ( 1976) ; New Yark Times Co. v. United States, 403 U. S. 713 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). Respondents concede that this statute is not in the classic mold of prior restraint, there being no prior injunction against publication. Nonetheless, they contend that the prior-approval requirement acts in "operation and effect" like a licensing scheme and thus is another form of prior restraint. See Near v. Minnesota ex rel. Olson, supra, at 708. As such, respondents argue, the statute bears "a 'heavy presumption' against its constitutional validity." Orga.nization for a Better Austin v. Keefe, supra, at 419. They claim that the State's interest in the anonymity of a juvenile offender is not sufficient to overcome that presumption. Petitioners do not dispute that the statute amounts to a prior restraint on speech. Rather, they take the view that even if it is a prior restraint the statute is constitutional because of the significance of the State's interest in protecting the identity of juveniles. (3) The resolution of this case does not turn on whether the statutory grant of authority to the juvenile judge to permit publication of the juvenile's name is, in and of itself, a prior restraint. First Amendment protection reaches beyond prior restraints, Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 ( 1975), and respondents acknowledge that the statutory provision for court approval of disclosure actually may have a less oppressive effect on freedom of the press than a total ban on the publication of the child's name. Whether we view the statute as a prior restraint or as a penal sanction for publishing lawfully obtained, truthful inrent for 24 hours and became the basis for a prosecution after the delayed publication. 102 OCTOBER TERM, 1978 Opinion of the Court 443 u. s. formation is not dispositive because even the latter action requires the highest form of state interest to sustain its validity. Prior restraints have been accorded the most exacting scrutiny in previous cases. See Nebraska Press Assn. v. Stuart, supra, at 561; Organization for a Better Austin v. Keefe, supra, at 419; Near v. Minnesota ex rel. Olson, supra, at 716. See also Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 ( 1975). However, even when a state attempts to punish publication after the event it must nevertheless demonstrate that its punitive action was necessary to further the state interests asserted. Landmark Communications, Inc. v. Virginia, supra, at 843. Since we conclude that this statute cannot satisfy the constitutional standards defined in Landmark Communications, Inc., we need not decide whether, as argued by respondents, it operated as a prior restraint. Our recent decisions demonstrate that state action to punish the publication of truthful information seldom can satisfy constitutional standards. In Landmark Communications we declared unconstitutional a Virginia statute making it a crime to publish information regarding confidential proceedings before a state judicial review commission that heard complaints about alleged disabilities and misconduct of state-court judges. In declaring that statute unconstitutional, we concluded: "[T]he publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth's interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom." 435 U. S., at 838. In Cox Broadcasting Corp. v. Cohn, supra, we held that damages could not be recovered against a newspaper for publishing the name of a rape victim. The suit had been based on a state statute that made it a crime to publish the name of the victim; the purpose of the statute was SMITH v. DAILY MAIL PUBLISHING CO. 103 97 Opinion of the Court to protect the privacy right of the individual and the family. The name of the victim had become known to the public through official court records dealing with the trial of the rapist. In declaring the statute unconstitutional, the Court, speaking through MR. JUSTICE WHITE, reasoned: "By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. . . . States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection." 420 U. S., at 495. One case that involved a classic prior restraint is particularly relevant to our inquiry. In Oklahoma Publishing Co. v. Distnct Court, 430 U. S. 308 (1977), we struck down a state-court injunction prohibiting the news media from publishing the name or photograph of an 11-year-old boy who was being tried before a juvenile court. The juvenile court judge had permitted reporters and other members of the public to attend a hearing in the case, notwithstanding a state statute closing such trials to the public. The court then attempted to halt publication of the information obtained from that hearing. We held that once the truthful information was "publicly revealed" or "in the public domain" the court could not constitutionally restrain its dissemination. None of these opinions directly controls this case; however, all suggest strongly that if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order. These cases involved situations where the government itself provided or made possible press access to the information. That factor is not controlling. Here respondents relied upon routine newspaper reporting techniques to ascertain the identity of the alleged assailant. 104 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. A free press cannot be made to rely solely upon the sufferance of government to supply it with information. See Houchins v. KQED, Inc., 438 "C". S. 1, 11 (1978) (plurality opinion); Branzburg v. Hayes, 408 U. S. 665, 681 (1972). If the information is lawfully obtained, as it was here, the state may not punish its publication except when necessary to further an interest more substantial than is present here. (4) The sole interest advanced by the State to justify its criminal statute is to protect the anonymity of the juvenile offender. It is asserted that confidentiality will further his rehabilitation because publication of the name may encourage further antisocial conduct and also may cause the juvenile to lose future employment or suffer other consequences for this single offense. In Davi,s v. Alaska, 415 U. S. 308 (1974), similar arguments were advanced by the State to justify not permitting a criminal defendant to impeach a prosecution witness on the basis of his juvenile record. We said there that " [ w] e do not and need not challenge the State's interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender." Id., at 319. However, we concluded that the State's policy must be subordinated to the defendant's Sixth Amendment right of confrontation. Ibid. The important rights created by the First Amendment must be considered along with the rights of defendants guaranteed by the Sixth Amendment. See Nebraska Press Assn. v. Stuart, 427 U.S., at 561. Therefore, the reasoning of Davis that the constitutional right must prevail over the state's interest in protecting juveniles applies with equal force here. The magnitude of the State's interest in this statute is not sufficient to justify application of a criminal penalty to respondents. Moreover, the statute's approach does not satisfy constitutional requirements. The statute does not restrict SMITH v. DAILY MAIL PUBLISHING CO. 105 97 Opinion of the Court the electronic media or any form of publication, except "newspapers," from printing the names of youths charged in a juvenile proceeding. In this very case, three radio stations announced the alleged assailant's name before the Daily Mail decided to publish it. Thus, even assuming the statute served a state interest of the highest order, it does not accomplish its stated purpose. In addition, there is no evidence to demonstrate that the imposition of criminal penalties is necessary to protect the confidentiality of juvenile proceedings. As the Brief for Respondents points out at 29 n. **, all 50 states have statutes that provide in some way for confidentiality, but only 5, including West Virginia,2 impose criminal penalties on nonparties for publication of the identity of the juvenile. Although every state has asserted a similar interest, all but a handful have found other ways of accomplishing the objective. See Landmark Communications, Inc. v. Virginia, 435 U. S., at 843. 3 (5) Our holding in this case is narrow. There is no issue before us of unlawful press access to confidential judicial proceedings, see Cox Broadcasting Corp. v. Cohn, 420 U. S., at 496 n. 26; there is no issue here of privacy or prejudicial pretrial publicity. At issue is simply the power of a state 2 Colo. Rev. Stat. § 19-1-107 (6) (1973); Ga. Code § 24A-3503 (g) (1) (1978); N. H. Rev. Stat. Ann. § 169:27-28 (1977); S. C. Code § 14-21-30 (1976). 3 The approach advoca.ted by the National Council of Juvenile Court Judges is based on cooperation between juvenile court personnel and newspaper editors. It is suggested that if thf' courts make clear their purpose and methods then the press will exercise discretion and generally decline to publish the juvt'nile's namP without some prior consultation ,,ith the juvenile court judge. See Conway, Publicizing the Juvenile Court: A Public Responsibility, 16 Juv. Ct. ,Judges .J. 21, 21-22 (1965); Riederer, Secrecy or Privacy? Communication Problems in the Juvenile Court Field, 17 J. Mo. Bar 66, 69-70 (1961). 106 OCTOBER TERM, 1978 REHNQUIST, J., concurring in judgment 443 U. 8. to punish the truthful publication of an alleged juvenile delinquent's name lawfully obtained by a newspa,per... The asserted state interest cannot justify the statute's imposition of criminal sanctions on this type of publication. Accordingly, the judgment of the West Virginia Supreme Court of Appeals is Affirmed. MR. JusTICE PowELL took no part in the consideration or decision of this case. MR. JUSTICE REHNQUIST, concurring in the judgment. Historically, we have viewed freedom of speech and of the press as indispensable to a free society and its government. But recognition of this proposition has not meant that the public interest in free speech and press always has prevailed over competing interests of the public. "Freedom of speech thus does not comprehend the right to speak on any subject at any time," American Communi.cations Assn. v. Douds, 339 U. S. 382, 304 (1950), and "the press is not free to publish with impunity everything and anything it desires to publish." Branzburg v. Hayes, 408 U.S. 665,683 (1972); see z,:ear v. Minnesota ex rel. Olson, 283 U. S. 697, 708, 716 (1931). While we have shown a special solicitude for freedom of speech and of the press, we have eschewed absolutes in favor of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented. E. g., Landmark Communications, Inc. v. Virginia, 435 V. S. 829, 838, 843 (1978); Nebraska Press Assn. v. Stuart, 427 U. S. 539, 562 (1976); American Communications Assn. v. Douds, supra, at 400. 4 In light of our disposition of t.he First and Fourteenth Amendment issue, we need not reach respondents' claim that the statute Yiolates equal protection by being applicable only to newspapers but not other forms of journalistic expression. SMITH v. DAILY MAIL PUBLISHING CO. 107 97 REHNQUIST, J., concurring in judgment The Court does not depart from these principles toda.y. See ante, at 103-104. Instead, it concludes that the asserted state interest is not sufficient to justify punishment of publication of truthful, lawfully obtained information about a matter of public significance. Ante, at 104. So valued is the liberty of speech and of the press that there is a tendency in cases such as this to accept virtually any contention supported by a claim of interference with speech or the press. See Jones v. Opelika, 316 U. S. 584, 595 (1942). I would resist that temptation. In my view , a State's interest in preserving the anonymity of its juvenile offenders- an interest that I consider to be, in the words of the Court, of the "highest order"-far outweighs any minimal interference with freedom of the press that a ban on publication of the youths' names enta.ils. It is a hallmark of our juvenile justice system in the United States that virtually from its inception at the end of the last century its proceedings have been conducted outside of the public's full gaze and the youths brought before our juvenile courts have been shielded from publicity. See H. Lou, Juvenile Courts in the 'United States 131-133 ( 1927); Geis, Publicity and Juvenile Court Proceedings, 30 Rocky Mt. L. Rev. 101, 102, 116 ( 1958). This insistence on confidentiality is born of a tender concern for the welfare of the child, to hide his youthful errors and " 'bury them in the graveyard of the forgotten past.'" In re Gault, 387 U. S. 1, 24--25 (1967). The prohibition of publication of a juvenile's name is designed to protect the young person from the stigma of his misconduct and is rooted in the principle that a court concerned with juvenile affairs serves as a rehabilitative and protective agency of the State. National Advisory Committee on Criminal Justice Standards and Goals, Juvenile Justice and Delinquency Prevention, Standard 5.13, pp. 224--225 (1976); see Davis v. Alaska, 415 U. S. 308, 319 (1974); Kent v. United States, 383 U.S. 541, 554- 555 (1966). Publication of the names of juvenile offenders may seriously impair the rehabilitative goals of 108 OCTOBER TERM, 1978 REHNQUIST, J., concurring in judgment 443 U.S. the juvenile justice system and handicap the youths' prospects for adjustment in society and acceptance by the public. E. Eldefonso, Law Enforcement and the Youthful Offender 166 (3d ed. 1978). This exposure brings undue embarrassment to the families of youthful offenders and may cause the juvenile to lose employment opportunities or provide the hardcore delinquent the kind of attention he seeks, thereby encouraging him to commit further antisocial acts. Davis v. Ala,ska, supra, at 319. Such publicity also renders nugatory States' expungement laws, for a potential employer or any other person can retrieve the information the States seek to "bury" simply by visiting the morgue of the local newspaper. The resultant widespread dissemination of a juvenile offender's name, therefore, may defeat the beneficent and rehabilitative purposes of a State's juvenile court system.1 By contrast, a prohibition aga.inst publication of the names of youthful offenders represents only a minimal interference with freedom of the press. West Virginia's statute, like similar laws in other States, prohibits publication only of the name of the young person. See W. Va. Code§ 49-7-3 (1976). The press is free to describe the details of the offense and inform the community of the proceedings against the juvenile. It is difficult to understand how publication of the youth's name is in any way necessary to performance of the press' "watch- 1 That publicity may have a harmful impact on the rehabilitation of a juvenile offender is not mere hypothesis. Recently, two clinical psychologists conducted an investigation into the effects of publicity on a juvenile. They concluded that publicity "placed additional stress on [the juvenile] during a difficult period of adjustment in the community, and it interfered with his adjustment at various points when he was otherwise proceeding adequately." Howard, Grisso, & Neems, Publicity and Juvenile Court Proceedings, 11 Clearinghouse Rev. 203, 210 (1977). Publication of the youth's name and picture also led to confrontations between the juvenile and his peers while he was in detention. Ibid. While this study obviously is not controlling, it does indicate that the concerns that prompted enactment of state laws prohibiting publication of the names of juvenile offenders are not without empirical support. SMITH v. DAILY MAIL PUBLISHING CO. 109 97 REHNQUIST, J., concurring in judgment dog" role. In those rare instances where the press believes it is necessary to publish the juvenile's name, the West Virginia law, like the statutes of other States, permits the juvenile court judge to allow publication. The juvenile court judge, unlike the press, is capable of determining whether publishing the name of the particular young person will have a deleterious effect on his chances for rehabilitation and adjustment to society's norms.2 Without providing for punishment of such unauthorized publications it will be virtually impossible for a State to ensure the anonymity of its juvenile offenders. Even if the juvenile court's proceedings and records are closed to the public, the press still will be able to obtain the child's name in the same manner as it was acquired in this case. Ante, at 99; Tr. of Oral Arg. 34. Thus, the Court's reference to effective alternatives for accomplishing the State's goals is a mere chimera. The fact that other States do not punish publication of the names of juvenile offenders, while relevant, 2 The Court relies on Davis v. Alaska, 415 U.S. 308 (1974). Ante, at 104. But Davis, which presented a clash between the interests of the State in affording anonymity to juvenile offenders and the defendant's Sixth Amendment right of confrontatjon, does not control the disposition of this case. In Davis, where the defendant's liberty was at stake, the Court stated that "[s]erious damage to the strength of the State's case would have been a real possibility had petitioner been allowed to pursue this line of inquiry [related to the juvenile offender's record]." 415 U. S., at 319. The State also could have protected the youth from exposure by not using him to make out its case. Id., at 320. By contrast, in this case the State took every step that was in its power to protect the juvenile's name, and the minimal interference with the freedom of the press caused by the ban on publication of the youth's name can hardly be compared with the possible deprivation of liberty involved in Davis. Because in each case we must carefully balance the interest of the State in pursuing its policy against the magnitude of the encroachment on the liberty of speech and of the press that the policy represents, it will not do simply to say, as the Court does, that the "important rights created by the First Amendment must be considered along with the rights of defendants guaranteed by the Sixth Amendment." Ante, at 104. 110 OCTOBER TERM, 1978 REHNQUIST, J., concurring in judgment 443 u. s. certainly is not determinative of the requirements of the Constitution. Although I disagree with the Court that a state statute punishing publication of the identity of a juvenile offender can never serve an interest of the "highest order" and thus pass muster under the First Amendment, I agree with the Court. that West Virginia's statute "does not accomplish its stated purpose." Ante, at 105. The West Virginia statute prohibits only newspapers from printing the names of youths charged in juvenile proceedings. Electronic media and other forms of publication can announce the young person's name with impunity. In fact, in this case three radio stations broadcast the alleged assailant's name before it was published by the Charleston Daily Mail. Ante, at 99. This statute thus largely fails to achieve its purpose.3 It is difficult to take very seriously West Virginia's asserted need to preserve the anonymity of its youthful offenders when it permits other, equally, if not more, effective means of mass communication to distribute this information without fear of punishment. See Branzburg v. Hayes, 408 U. S., at 700; Bates v. Little Rock, 361 U. S. 516, 525 (1960). I , therefore, join in the Court's judgment striking down the West Virginia law. But for the reasons previously stated, I think that a generally effective ban on publication that applied to all forms of mass communication, electronic and print media alike, would be constitutional. 3 I believe that an obvious failure of a state statute to achieve its purpose is rntitled to considerable weight in the balancing process that is employed in deciding issues arising under the First and Fourteenth Arnenriment protections accorded freedom of expre..."Sion. But for the reasons stated in my dissent in Trimble v. Gordon, 430 U. S. 762, 777 (1977), I think a similar inquiry into whether a statute "accomplishes its purpose" is illusory when the statute is challenged on the basis of the Equal Protection Clause of the Fourteenth Amendment. HUTCHINSON v. PROXMIRE 111 Syllabus HUTCHINSON v. PROXMIRE ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 78--680. Argued April 17, 1979-Decided June 26, 1979 Respondent United States Senator publicizes examples of wasteful governmental spending by awarding his "Golden Fleece of the Month Award." One such award was given to federal agencies that had funded petitioner scientist's study of emotional behavior in which he sought an objective measure of aggression, concentrating upon the behavior patterns of certain animals. The award was announced in a speech prepared with the help of respondent legislative assistant, the teJi.1; of which was incorporated in a widely distributed press release. Subsequently, the award was also referred to in newsletters sent out by the Senator, in a television interview program on which he appeared, and in telephone calls made by the legislative assistant to the sponsoring federal agencies. Petitioner sued respondents in Federal District Court for defamation, alleging, inter alia, that in making the award and publicizing it nationwide, respondents had damaged him in his professional and academic standing. The District Court granted summary judgment for respondents, ,holding that the Speech or Debate Clause afforded absolute immunity for investigating the funding of petitioner's research, for the speech in the Senate, and for the press release, since it fell within the "informing function" of Congress. The court further held that petitioner was a "public figure" for purposes of determining respondents' liability; that respondents were protected by the First Amendment thereby requiring petitioner to prove "actual malice"; and that based on the depositions, affidavits, and pleadings there was no genuine issue of material fact on the issue of actual malice, neither respondents' failure to investigate nor unfair editing and summarizing being sufficient to establish "actual malice." Finally, the court held that even if petitioner were found to be a "private person," relevant state law required a summary judgment for respondentll. The Court of Appeals affirmed, holding that the Speech or Debate Clause protected the statements made in the pres.s release and newsletters and that, although the followup telephone calls and the statements made on television were not protected by that Clause, they were protected by the First Amendment, since petitioner was a "public figure," and that on the record there was no showing of "actu::11 mali~e." 112 OCTOBER TERM, 1978 Syllabus 443 U.S. Held: 1. While this Court's practice is to avoid reaching constitutional questions if a dispositive nonconstitutional ground is available, special considerations in this case mandate that the constitutional questions first be resolved. If respondents have immunity under the Speech or Debate Clause, no other questions need be considered. And where it appears that the Court of Appeals would not affirm the District Court's statelaw holding so that the appeal could not be decided without reaching the First Amendment issue, that issue will also be reached here. Pp. 122-123. 2. The Speech or Debate Clause does not protect transmittal of information by individual Members of Congress by press releases and newsletters. Pp. 123-133. (a) There is nothing in the history of the Clause or its language suggesting any intent to create an absolute privilege from liability or suit for defamatory statements made outside the legislative Chambers; precedents support the conclusion that a Member may be held liable for republishing defamatory statements originally made in the Chamber. Pp. 127-130. (b) Neither the newsletters nor the press release here was "essential to the deliberation of the Senate" and neither was part of the deliberative process. Gravel v. United States, 408 U.S. 606; Doe v. McMillan, 412 U. S. 306. P. 130. (c) The newsletters and press release were not privileged as part of the "informing function" of Members of Congress to tell the public about their activities. Individual Members' transmittal of information about t-heir activities by press releases and newsletters is not part of the legislative function or the deliberations that make up the legislative process; in contrast to voting and preparing committee reports, which are part of Congress' function to inform itself, newsletters and press releases are primarily means of informing those outside the legislative forum and represent the views and will of a single Member. Doe v. McMiUan, supra, distinguished. Pp. 132-133. 3. Petitioner is not a "public figure" so as to make the "actual malice" standard of proof of New York Times Co. v. Sullivan, 376 U.S. 254, applicable. Neither the fact that local newspapers reported the federal grants to petitioner for his research nor the fact that he hared the ~peech on the Senate floor. He said that he might have merely in~ertt>d it int-0 the Congres. sional R{'Cord. App. 22(}...221. In light of that uncertainty, the question arises whether a nondrlivrred speech printed in the Congressional Record is covered by the Speech or Debate Clause. This Court has never passed on that question and neither the District Court nor the C-0u rt of Appeals seemed to think it was important. Nevertheless, we assume, without deciding, that a sprech printed in the Congressional Record carries immunity under the Speech or Debate Clause as though delivered on the floor. HUTCHINSON v. PROXMIRE 117 111 Opinion of the Court In May 1975, Proxmire referred to his Golden Fleece Awards in a newsletter sent to about 100,000 people whose names were on a mailing list that included constituents in Wisconsin as well as persons in other states. The newsletter repeated the essence of the speech and the press release. Later in 1975, Proxmire appeared on a television interview program where he referred to Hutchinson's research, though he did not mention Hutchinson by name.• The final reference to the research came in a newsletter in February 1976. In that letter, Proxmire summarized his Golden Fleece Awards of 1975. The letter did not mention Hutchinson's name, but it did report: "- The NSF, the Space Agency, and the Office of Na val Research won the 'Golden Fleece' for spending jointly $500,000 to determine why monkeys clench their jaws. "All the studies on why monkeys clench their jaws were dropped. No more monkey business." App. 168- 171. After the award was announced, Schwartz, acting on behalf of Proxmire, contacted a number of the federal agencies that had sponsored the research. In his deposition he stated that he did not attempt to dissuade them from continuing to fund the research but merely discussed the subject. 5 Hutchinson, by contrast, contends that these calls were intended to persuade the agencies to terminate his grants and contracts. 4 The parties agree that Proxmire referred to research like Hutchinson's on at least one television show. They do not agree whether there were other appearances on either radio or television. Hutchinson has suggested that there were others and has produced affidavits to support his suggestion. Proxmire cannot recall any others. 5 Senate Resolution 543, 94th Cong., 2d Sess. (1976), authorized respondents and an additional member of Proxmire's staff to give deposition testimony. 122 Cong. Rec. 29876 (1976). 118 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. II On April 16, 1976, Hutchinson filed this suit in United States District Court in Wisconsin.6 In Count I he alleges that as a result of the actions of Proxmire and Schwartz he has "suffered a loss of respect in his profession, has suffered injury to his feelings, has been humiliated, held up to public scorn, suffered extreme mental anguish and physical illness and pain to his person. Further, he has suffered a loss of income and ability to earn income in the future." Count II alleges that the respondents' conduct has interfered with Hutchinson's contractual relationships with supporters of his research. He later amended the complaint to add an allegation that his rights of privacy and peace and tranquility have been infringed. Respondents moved for a change of venue and for summary judgment. In their motion for summary judgment they asserted that all of their acts and utterances were protected by the Speech or Debate Clause. In addition, they asserted that their criticism of the spending of public funds was privileged under the Free Speech Clause of the First Amendment. They argued that Hutchinson was both a public figure and a public official, and therefore would be obliged to prove the existence of "actual malice." Respondents contended that the facts of this case would not support a finding of actual malice. Without ruling on venue, the District Court granted respondents' motion for summary judgment. 431 F. Supp. 1311 (WD Wis. 1977). In so ruling, the District Court relied on both grounds urged by respondents. It reasoned that the Speech or Debate Clause afforded absolute immunity for respondents' activities in investigating the funding of Hutchinson's research, for Proxmire's speech in the Senate, and for the press release covering the speech. The court concluded that the investigations and the speech were clearly within the 6 On April 13, 1976, Hutchinson had written to Proxmire requesting that he retract certain erroneous statements made in the 1975 press release. HUTCHINSON v. PROXMIRE 119 111 Opinion of the Court ambit of the Clause. The press release was said to be protected because it fell within the "informing function" of Congress. To support its conclusion, the District Court relied upon cases interpreting the franking privilege granted to Members by statute. See 39 U. S. C. § 3210. Although the District Court ref erred to the "informing function" of Congress and to the franking privilege, it did not base its conclusion concerning the press release on those analogies. Instead, the District Court held that the "press release, in a constitutional sense, was no different than would have been a television or radio broadcast of his speech from the Senate floor." 7 431 F. Supp., at 1325. That the District Court did not rely upon the "informing function" is clear from its implicit holding that the newsletters were not protected. The District Court then turned to the First Amendment to explain the grant of summary judgment on the claims arising from the newsletters and interviews. It concluded that Hutchinson was a public figure for purposes of determining respondents' liability: "Given Dr. Hutchinson's long involvement with publicly- funded research, his active solicitation of federal and state grants, the local press coverage of his research, and the public interest in the expenditure of public funds on the precise activities in which he voluntarily participated, the court concludes that he is a public figure for the purpose of this suit. As he acknowledged in his deposition, 'Certainly, any expenditure of public funds is a matter of public interest.'" Id., at 1327.8 7 Of course, in light of Proxmire's uncertainty, see n. 3, supra, there is no assurance that there even was a speech on the .Senate floor. 8 The District Court also concluded that Hutchinson was a "public official." 431 F. Supp., at 1327-1328. The Court of Appeals did not decide whether that conclusion was correct. 579 F. 2d 1027, 1035 n. 14 (CA7 1978). We therefore express no opinion on the issue. The Court has not provided precise boundaries for the category of "public official"; it cannot be thought to include all public employees, however. 120 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. Having reached that conclusion, the District Court relied upon the depositions, affidavits, and pleadings before it to evaluate Hutchinson's claim that respondents had acted with "actual malice." The District Court found that there was no genuine issue of materia.l fact on that issue. It held that neither a failure to investigate nor unfair editing and summarizing could establish "actual malice." It also held that there was nothing in the affidavits or depositions of either Proxmire or Schwartz to indicate that they ever entertained any doubt about the truth of their statements. Relying upon cases from other courts, the District Court said that in determining whether a plaintiff had made an adequate showing of "actual malice," summary judgment might well be the rule rather than the exception. Id., at 1330.9 Finally, the District Court concluded: "But even if for the purpose of this suit it is found that Dr. Hutchinson is a private person so that First Amendment protections do not extend to [respondents], relevant state law dictates the grant of summary judgment." Ibid. The District Court held that the controlling state law was either that of Michigan or that of the District of Columbia. Without deciding which law would govern under Wisconsin's choice-of-law principles, the District Court concluded that Hutchinson would not be able to recover in either jurisdiction. The Court of Appeals affirmed, holding that the Speech or Debate Clause protected the statements made in the press re- 9 Considering the nuances of the issues raised here, we are constra.ined to express some doubt about the so-called "rule." The proof of "actual malice" calls a defendant's state of mind into question, New York Times Co. v. Sulliva:n, 376 U. S. 254 (1964), and does not readily lend itself to summary disposition. See 10 C. Wright & A. Miller, Federal Practice and Procedure § 2730, pp. 590-592 (1973). Cf. Herbert v. Lando, 441 U. S. 153 (1979). In the present posture of the case, however, the propriety of dealing with such complex issues by summary judgment is not before us. HUTCHINSON v. PROXMIRE 121 111 Opinion of the Court lease and in the newsletters. 579 F. 2d 1027 (CA7 1978). It interpreted Doe v. McMillan, 412 U. S. 306 (1973), as recognizing a limited protection for the "informing function" of Congress and concluded that distribution of both the press release and the newsletters did not exceed what was required for legislative purposes. 579 F. 2d, at 1033. The followup telephone calls and the statements made by Proxmire on television and radio were not protected by the Speech or Debate Clause; they were, however, held by the Court of Appeals to be protected by the First Amendment.1° It reached that conclusion after first finding that, based on the affidavits and pleadings of record, Hutchinson was a "public figure." Id., at 1034-1035. The court then examined the record to determine whether there had been a showing by Hutchinson of "actual malice." It agreed with the District Court "that, upon this record, there is no question that [respondents] did not have knowledge of the actual or probable 'falsity' of their statements." Id., at 1035. The Court of Appeals also rejected Hutchinson's argument that the District Court had erred in granting summary judgment on the claimed wrongs other than defamation-interference with 10 Respondents did not cross petition; neither did they argue that the Speech or Debate Clause protected the followup telephone calls made by Schwartz to governmental agencies or the television and radio interviews of Proxmire. Instead, respondents relied only upon the protection afforded by the First Amendment. In light of our conclusion, infra, that Hutchinson is not a public figure, respondents would nevertheless be entitled to raise the Speech or Debate Clause as an alternative ground for supporting the judgment. From our conclusion, infra, that the Speech or Debate Clause does not protect the republication of libelous remarks, it follows that libelous remarks in the followup telephone calls to executive agencies and in the television and radio interviews are not protected. Regardless of whether and to what extent the Speech or Debate Clause may protect calls to federal agencies seeking information, it does not protect attempts to influence the conduct of executive agencies or libelous 11omment.s made during the conversations. Cf. United States v. Johru;cm, 383 U.S. 169, 172 (1966); United States v. Brewster, 408 U.S. 501, 512-513 (1972). 122 OCTOBER TERM, 1978 Opinion of the Court 443U. S. contractual relations, intentional infliction of emotional anguish, and invasion of privacy: "We view these additional allegations of harm as merely the results of the statements made by the defendants. If the alleged defamatory falsehoods themselves are privileged, it would defeat the privilege to allow recovery for the specified damages which they cause." Id., at 1036 (footnote omitted).11 The Court of Appeals did not review the District Court's holding that state law also justified summary judgment for respondents. III The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue. The constitutional issue arose from the District Court's view that solicitude for the First Amendment required a more hospitable judicial attitude toward granting summary judgment in a libel case. Seen. 9, supra. The state-law issue arose because the District Court concluded that, as a matter of local law, Hutchinson could not recover. Our practice is to avoid reaching constitutional questions if a dispositive nonconstitutional ground is available. See, e. g., Siler v. Louisville & Nash ville R. Co., 213 U. S. 175, 193 (1909). Were we to follow that course here we would remand to the Court of Appeals to review the state-law question which it did not consider. If the District Court correctly decided the state-law question, resolution of the First Amendment issue would be unnecessary. We conclude, however, that special considerations in this case mandate that we first resolve the constitutional questions. 11 Petitioner has not sought review of this conclusion; we e;,,.'Press no opinion ru, to its correctness. HUTCHINSON v. PROXMIRE 123 111 Opinion of the Court The purpose of the Speech or Debate Clause is to protect Members of Congress "not only from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, 387 U. S. 82, 85 (1967). See also Eastland v. United States Servicemen's Fund, 421 U. S. 491, 503 (1975). If the respondents have immunity under the Clause, no other questions need be considered for they may "not be questioned in any other Place." Ordinarily, consideration of the constitutional issue would end with resolution of the Speech or Debate Clause question. We would then remand for the Court of Appeals to consider the issue of state law. Here, however, there is an indication that the Court of Appeals would not affirm the state-law holding. We surmise this because, in explaining its conclusion that the press release and the newsletters were protected by the Speech or Debate Clause, the Court of Appeals stated: "[TJ he statements in the press release intimating that Dr. Hutchinson had made a personal fortune and that the research was 'perhaps duplicative' may be defamatory falsehoods." 579 F. 2d, at 1035 n. 15. In light of that surmise, what we said in W olston v. Reader's Digest Assn., Inc., post, at 161 n. 2, is also appropriate here: "We assume that the Court of Appeals is as familiar as we are with the general principle that dispositive issues of statutory and local law are to be treated before reaching constitutional issues. . . . We interpret the footnote to the Court of Appeals opinion in this case, where jurisdiction is based upon diversity of citizenship, to indicate its view that ... the appeal could not be decided without reaching the constitutional question." In light of the necessity to do so, we therefore reach the First Amendment issue as well as the Speech or Debate Clause question. IV In support of the Court of Appeals holding that newsletters and press releases are protected by the Speech or Debate Clause, respondents rely upon both historical precedent and 124 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. present-day congressional practices. They contend that impetus for the Speech or Debate Clause privilege in our Constitution came from the history of parliamentary efforts to protect the right of members to criticize the spending of the Crown and from the prosecution of a Speaker of the House of Commons for publication of a report outside of Parliament. Respondents also contend that in the modern day very little speech or debate occurs on the floor of either House; from this they argue that press releases and newsletters are necessary for Members of Congress to communicate with other Members. For example, in his deposition Proxmire testified: "I have found in 19 years in the Senate that very often a statement on the floor of the Sena.te or something that appears in the Congressional Record misses the attention of most members of the Senate, and virtually all members of the House, because they don't read the Congressional Record. If they are handed a news release, or something, that is going to call it to their attention ... . " App. 220. Respondents also argue that an essential part of the duties of a Member of Congress is to inform constituents, as well as other Members, of the issues being considered. The Speech or Debate Clause has been directly passed on by this Court relatively few times in 190 years. Eastland v. United States Servicemen's Fund, supra; Doe v. McMillan, 412 U. S. 306 ( 1973); Gravel v. United States, 408 U. S. 606 (1972); United States v. Brewster,408 U.S. 501 (1972); Dombrowski v. Eastland, supra; United States v. Johnson, 383 U.S. 169 (1966); Kilbourn v. Thompson, 103 U.S. 168 (1881). Literal reading of the Clause would, of course, confine its protection narrowly to a "Speech or Debate in either House." But the Court has given the Clause a practical rather than a strictly literal reading which would limit the protection to utterances made within the four walls of either Chamber. Thus, we have held that committee hearings are protected, even if held outside the Chambers; committee reports are also proHUTCHINSON v. PROXMIRE 125 111 Opinion of the Court tected. Doe v. McMillan, supra; Gravel v. United States, supra. Cf. Coffin v. Coffin, 4 Mass. *1, *27-*28 (1808). The gloss going beyond a strictly literal reading of the Clause has not. however, departed from the objective of protecting only legislative activities. In Thomas Jefferson's view: "[The privilege] is restrained to things done in the House in a Parliamentary course . . . . For [the Member] is not to have privilege contra morem parliamentarium, to exceed the bounds and limits of his place and duty." T. Jefferson, A Manual of Parliamentary Practice 20 (1854), reprinted in The Complete Jefferson 704 (S. Padover ed. 1943). One of the draftsmen of the Constitution, James Wilson, expressed a similar thought in lectures delivered between 1790 and 1792 while he was a Justice of this Court. He rejected Blackstone's statement, 1 W. Blackstone, Commentaries •164, that Parliament's privileges were preserved by keeping them indefinite: "Very different is the case with regard to the legislature of the United States . . . . The great maxims, upon which our law of parliament is founded, are defined and ascertained in our constitutions. The arcana of privilege, and the arcana of prerogative, are equally unknown to our system of jurisprudence." 2 J. Wilson, Works 35 (J. Andrews ed. 1896).12 In this respect, Wilson was underscoring the very purpose of our Constitution-inter alia, to provide written definitions of the powers, privileges, and immunities granted rather than rely on evolving constitutional concepts identified from diverse sources as in English law. Like thoughts were expressed 12 But see T. Jefferson, A Manual of Parliamentary Practice 15-16 (1854), reprinted in The Complete Jefferson 702 (S. Padover ed. 1943) (quoting Blackstone with approval). 126 OCTOBER TERM, 1978 Opinion of the Court 443U.S. by Joseph Story, writing in the first edition of his Commentaries on the Constitution in 1833: "But this privilege is strictly confined to things done in the course of parliamentary proceedings, and does not cover things done beyond the place and limits of duty." Id., § 863, at 329. Cf. Coffin v. Coffin, supra, at *34. In United States v. Brewster, supra, we acknowledged the historical roots of the Clause going back to the long struggle between the English House of Commons and the Tudor and Stuart monarchs when both criminal and civil processes were employed by Crown authority to intimidate legislators. Yet we cautioned that the Clause "must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system. . . . [T]heir Parliament is the supreme authority, not a coordinate branch. Our speech or debate privilege was designed to preserve legislative independence, not supremacy." 408 U. S., at 508. Nearly a century ago, in Kilbourn v. Thompson, supra, at 204, this Court held that the Clause extended "to things generally done in a session of the House by one of its members in relation to the business before it." (Emphasis added.) More recently we expressed a similar definition of the scope of the Clause: "Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the O:mstitution places within the jurisdiction of either House. As the 111 HUTCHINSON v. PROXMIRE 127 Opinion of the Court Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but 'only when necessary to prevent indirect impairment of such deliberations.' " Gravel v. United States, 408 U. S., at 625 (quoting United States v. Doe, 455 F. 2d 753,760 (CAl 1972)) (emphasis added). Cf. Doe v. McMillan, 412 U. S., at 313-314, 317; United States v. Brewster, 408 U. S., at 512, 515--516, 517- 518; Long V. Ansen, 293 U. s. 76, 82 (1934). Whatever imprecision there may be in the term "legislative activities," it is clear that nothing in history or in the explicit language of the Clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber. In Brewster, supra, at 507, we observed: "The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators." Claims under the Clause going beyond what is needed to protect legislative independence are to be closely scrutinized. In Brewster ·we took note of this: "The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from too sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behavior on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process." 408 U.S., at 517 (emphasis added). Indeed, the precedents abundantly support the conclusion that a Member may be held liable for republishing defamatory 128 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. statements originally made in either House. We perceive no basis for departing from that long-established rule. Mr. Justice Story in his Commentaries, for example, explained that there was no immunity for republication of a speech first delivered in Congress: "Therefore, although a speech delivered in the house of commons is privileged, and the member cannot be questioned respecting it elsewhere; yet, if he publishes his speech, and it contains libellous matter, he is liable to an action and prosecution therefor, as in common cases of libel. And the same principles seem applicable to the privilege of debate and speech in congress. No man ought to have a right to defame others under colour of a performance of the duties of his office. And if he does so in the actual discharge of his duties in congress, that furnishes no reason, why he should be enabled through the medium of the press to destroy the reputation, and invade the repose of other citizens. It is neither within the scope of his duty, nor in furtherance of public rights, or public policy. Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory imputations, as a member of congress has to utter them in his seat." 13 2 J. Story, Com- 13 Story acknowledged the arguments to the contrary: "It is proper, however, to apprise the learned reader, that it has been recently denied in congress by very distinguished lawyers, that the privilege of speech and debate in congress does not extend to publication of his speech. And they ground themselves upon an important distinction arising from the actual differences between English and American legislation. In the former, the publication of the debates is not strictly lawful, except by license of the house. In the latter, it is a common right, exercised and supported by the direct encouragement of the body. This reasoning deserves a very atten~ tive examination." 2 J. Story, Commentaries on the Constitution§ 863, pp. 329-330 ( 1833) . At oral argument, counsel for respondents referred to a note in the fifth edition of the Commentaries saying that the Speech or Debate Clause protected the circulation to constituents of copies of speeches made in 111 HUTCHINSON v. PROXMIRE 129 Opinion of the Court mentaries on the Constitution § 863, p. 329 ( 1833) ( emphasis added). See also L. Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States of America ,-r 604, p. 244 (1st ed. reprint 1971). Story summarized the state of the common law at the time the Constitution was drafted, recalling that Parliament had by then succeeded in its struggle to s«"cure freedom of debate. But the privilege did not extend to republication of libelous remarks even though first made in Parliament. Thus. in King v. Lord Abingdon, l Esp. 225, 170 Eng. Rep. 337 (N. P. 1794), Lord Chief Justice Kenyon rejt'cted Lord Abingdon's argument that parliamentary privilege prot~cted him from suit for republication of a speech first made in the House of Lords: "[A]s to the words in question, had they been spoken in the House of Lords, and confined to its wans, [the] Court would have had no jurisdiction to call his Lordship before them, to answer for them as an offence; but ... in the present case. the offence was the publication under his authority and sanction, and at his expense: ... a member of Parliament had certainly a right to publish his speech, but that speech should not be made the vehicle of slander against any individua.J; if it was, it was a libel .... " Id., at 228, 170 Eng. Rep .. at 338. A similar result was reached in King v. Creevey, 1 M. & S. 273, 105 Eng. Rep. 102 (K. B. 1813). Congress. Tr. of Oral Arg. 43. In attributing the note to Story, counsel made an understandable mistake. As explainrd in the preface to the fifth edit.ion, that note was added by the editor, Melville Bigelow. The note does not appear in Story's first c-dition. Moreover, it is clear from the text of the note and the sourres cited that Bigelow did not mean that ther<' was an absolute privilege for defamatory remarks contained in a spe<.>rh mitilcd to constituents as there would be if the mailing was protected by the Spee<'h or Debate Clausi>. Instead, he sugge;;ted that there was a qualified privilege, ::tkin to that for accurate newspaper reports of legislative proceedings. 130 OCTOBER TERM, 1978 Opimon of the Court 4431'.S. In Gravel v. United States, 408 U. S., at 622-626, we recognized that the doctrine denying immunity for republication had been accepted in the Vnited States: "[P]rivate publication by Senator Gravel ... was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence." Id., at 625. We reaffirmed that principle in Doe v. McMillan, 412 U. S., at 314-315: "A Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report. The reason is that republishing a libel under such circumstances is not an essential part of the legislative process and is not part of that deliberative process 'by which Members participate in committee and House proceedings.' " (Footnote omitted; quoting from Gravel v. United States, supra, at 625.) 14 We reach a similar conclusion here. A speech by Proxmire in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record. But neither the newsletters nor the press release was "essential to the deliberations of the Senate" and neither was part of the deliberative process. Respondents, however, argue that newsletters and press releases are essential to the functioning of the Senate; without 14 It is worth noting that the Rules of the Senate forbid disparagement of other Mrmbrrs on the floor. ~enate Rule XIX (Apr. 1979). Set> also T . .Jefferson, A Manual of Parliamentary Practice 40-41 (1854), reprinted in The Complete Jefferson 714-715 (S. Padover ed. 1943). HUTCHINSON v. PROXMIRE 131 111 Opinion of the Court them, they assert, a Senator cannot have a significant impact on the other Senators. We may assume that a Member's published statements exert some influence on other votes in the Congress and therefore have a relationship to the legislative and deliberative process. But in Brewster, 408 U. S., at 512, we rejected respondents' expansive reading of the Clause: "It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include . . . preparing so-called 'news letters' to constituents, news releases, and speeches delivered outside the Congress." There we went on to note that United States v. Johnson, 383 U. S. 169 (1966), had carefully distinguished between what is only "related to the due functioning of the legislative process," and what constitutes the legislative process entitled to immunity under the Clause: "In stating that those things [Johnson's attempts to influence the Department of Justice] 'in no wise related to the due functioning of the legislative process' were not covered by the privilege, the Court did not in any sense imply as a corollary that everything that 'related' to the office of a Member was shielded by the Clause. Quite the contrary, in Johnson we held, citing Kilbourn v. Thompson, supra, that only acts generally done in the course of the process of enacting legislation were protected. "In no case has this Court ever treated the Clause as protecting all conduct relating to the legislative process. " ... In its narrowest scope, the Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander [by speech or debate] and even destroy 132 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. others with impunity, but that was the conscious choice of the Framers." 408 U. S., at 513-516. (Emphasis in original.) We are unable to discern any "conscious choice" to grant immunity for defamatory statements scattered far and wide by mail, press, and the electronic media. Respondents also argue that newsletters and press releases are privileged as part of the "informing function" of Congress. Advocates of a broad reading of the "informing function" sometimes tend to confuse two uses of the term "informing." In one sense, Congress informs itself collectively by way of hearings of its committees. It was in that sense that Woodrow Wilson used "informing" in a statement quoted by respondents. In reality, Wilson's statement related to congressional efforts to learn of the activities of the Executive Branch and administrative agencies; he did not include wideranging inquiries by individual Members on subjects of their choice. Moreover, Wilson's statement itself clearly implies a distinction between the informing function and the legislative function: "Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. . . . [T]he only really self-governing people is that people which discusses and interrogates its administration." ,v. Wilson, Congressional Government 303 ( 1885). It is in this narrower Wilsonian sense that this Court has employed "informing" in previous cases holding that conHUTCHINSON v. PROXMIRE 133 111 Opinion of the Court gressional efforts to inform itself through committee hearings are part of the legislative function. The other sense of the term, and the one relied upon by respondents, perceives it to be the duty of Members to tell the public about their activities. Valuable and desirable as it may be in broad terms, the transmittal of such information by individual Members in order to inform the public and other Members is not a part of the legislative function or the deliberations that make up the legislative process.15 As a result, transmittal of such information by press releases and newsletters is not protected by the Speech or Debate Clause. Doe v. McMillan, 412 U. S. 306 (1973), is not to the contrary. It dealt only with reports from congressional committees, and held that Members of Congress could not be held liable for voting to publish a report. Voting and preparing committee reports are the individual and collective expressions of opinion within the legislative process. As such, they are protected by the Speech or Debate Clause. Newsletters and press releases, by contrast, are primarily means of informing those outside the legislative forum; they represent the views and will of a single Member. It does not disparage either their value or their importance to hold that they are not entitled to the protection of the Speech or Debate Clause. V Since New York Times Co. v. Sullivan, 376 U. S. 254 (1964),16 this Court has sought to define the accommodation 15 Provision for the use of the frank, 39 U. S. C. § 3210, does not alter our conclusion. Congress, by granting franking privileges, stationery allowances, and facilities to record speeches and statements for radio broadcast cannot ,expand the scope of the Speech or Debate Clause to render immune all that emanates via such helpful facilities. 16 Neither the District Court nor the Court of Appeals considered whether the New York Times standard can apply to an individual defendant rather than to a media defendant. At oral argument, counsel for Hutchinson stated that he had not conceded that the New York Times 134 OCTOBER TERM, 1978 Opinion of the Court 443 U . S. required to assure the vigorous debate on the public issues that the First Amendment was designed to protect while at the same time affording protection to the reputations of individuals. E. g., Time, Inc. v. Firestone, 424 U. . 448 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ; Rosenbloom v. Metromedia, Inc., 403 "G. S. 29 (1971); St. Amant v. Thompson, 390 r. S. 727 (1968); Curtis Publ'ishing Co. v. Butts, 388 U. S. 130 ( 1967); Rosenblatt v. Baer, 383 U. S. 75 ( 1966). In Gertz v. Robert Welch, Inc., the Court offered a general definition of "public figures": "For the most part those who attain this status [ of public figure] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment." 418 U. S., at 345. It is not contended that Hutchinson attained such prominence that he is a public figure for all purposes. Instead, respondents have argued that the District Court and the Court of Appeals were correct in holding that Hutchinson is a public figure for the limited purpose of comment on his receipt of federal funds for research projects. That conclusion was based upon two factors: first, Hutchinson's successful application for federal funds and the reports in local newspapers of the federal grants; second, Hutchinson's access to the media, as demonstrated by the fact that some newspapers and wire services reported his response to the announcement of the Golden Fleece Award. Neither of those factors demonstandard applied. Tr. of Oral Arg. 18. This Court has never decided the question; our conclusion that Hutchinson is not a public figure makes it unnecessary to do so in this case. HUTCHINSON v. PROXMIRE 135 111 Opinion of the Court strates that Hutchinson was a public figure prior to the controversy engendered by the Golden Fleece Award; his access, such as it was, came after the alleged libel. On this record, Hutchinson's activities and public profile are much like those of countless members of his profession. His published writings reach a relatively small category of professionals concerned with research in human behavior. To the extent the subject of his published writings became a matter of controversy, it was a consequence of the Golden Fleece Award. Clearly, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. See Walston v. Reader's Digest Assn., Inc., post, at 167-168. Hutchinson did not thrust himself or his views into public controversy to influence others. Respondents have not identified such a particular controversy; at most, they point to concern about general public expenditures. But that concern is shared by most and relates to most public expenditures; it is not sufficient to make Hutchinson a public figure. If it were, everyone who received or benefited from the myriad public grants for research could be classified as a public figure-a conclusion that our previous opinions have rejected. The "use of such subject-matter classifications to determine the extent of constitutional protection afforded defamatory falsehoods may too often result in an improper balance between the competing interests in this area." Time, Inc. v. Firestone, supra, at 456. Moreover, Hutchinson at no time assumed any role of public prominence in the broad question of concern about expenditures. Neither his applications for federal grants nor his publications in professional journals can be said to have invited that degree of public attention and comment on his receipt of federal grants essential to meet the public figure level. The petitioner in Gertz v. Robert Welch, Inc., had published books and articles on legal issues; he had been 136 OCTOBER TERM, 1978 BRENNAN, J., dissenting 443 U.S. active in local community affairs. Nevertheless, the Court concluded that his activities did not make him a public figure. Finally, we cannot agree that Hutchinson had such access t,o the media that he should be classified as a public figure. Hutchinson's access was limited to responding to the announcement of the Golden Fleece Award. He did not have the regular and continuing access to the media that is one of the accouterments of having become a public figure. We therefore reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals for further proceedings consistent with this opinion. Reversed and remanded. MR. JUSTICE STEWART joins in all but footnote 10 of the Court's opinion. He cannot agree that the question whether a communication by a Congressman or a member of his staff with a federal agency is entitled to Speech or Debate Clause immunity depends upon whether the communication is defamatory. Because telephone calls to federal agency officials are a routine and essential part of the congressional oversight function, he believes such activity is protected by the Speech or Debate Clause. MR. JUSTICE BRENNAN, dissenting. I disagree with the Court's conclusion that Senator Proxmire's newsletters and press releases fall outside the protection of the speech-or-debate immunity. In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause. I would affirm the judgment below for the reasons expressed in my dissent in Gravel v. United States, 408 u. s. 606, 648 (1972). BAKER v. McCOLLAN Syllabus BAKER v. McCOLLAN 137 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 78-752. Argued April 23, 1979-Decided June 26, 1979 Respondent's brother somehow procured a duplicate of respondent's driver's license, except that it bore the brother's picture. The brother was arrested on narcotics charges, booked in respondent's name, and released on bond. An arrest warrant intended for the brother was subsequently issued in respondent's name. Pursuant to that warrant, respondent, over his protest, was taken into custody by the Potter County, Tex., Sheriff's Department and detained in jail for several days before the error was discovered and he was released. Claiming that his detention in jail had deprived him of liberty without due process of law, respondent brought an action in District Court against petitioner sheriff of Potter County and his surety under 42 U. S. C. § 1983, which imposes civil liability on any person who, under color of state law, subjects another to the deprivation of rights "secured by the Constitution and laws." The District Court directed a verdict in favor of petitioner and his surety. The Court of Appeals, characterizing respondent's cause of action as a "[§] 1983 false imprisonment action," reversed, holding that respondent was entitled to have his § 1983 claim presented to the jury even though the evidence supported no more than a finding of negligence on petitioner's part. Held: Respondent failed to satisfy § 1983's threshold requirement that the plaintiff be deprived of a right "secured by the Constitution and laws," and hence had no claim cognizable under § 1983. Pp. 142-147. (a) Absent an attack on the validity of the warrant under which he was arrested, respondent's complaint is simply that, despite his protests of mistaken identity, he was detained in jail for three days. Whatever claim this situation might give rise to under state tort law, it gives rise to no claim under the Fourteenth Amendment to the United States Constitution. While respondent was deprived of his liberty for three days, it was pursuant to a warrant conforming to the requirements of the Fourth Amendment. His detention, therefore, did not amount to a deprivation of liberty without due process of law. Pp. 142-145. (b) Respondent's innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment, is largely irrelevant to his claim of deprivation of liberty without due process of law. 138 OCTOBER TERM, 1978 Opinion of the Court 443 u. s. Given the requirements that an arrest be made only on probable cause and that one detained be accorded a speedy trial, a sheriff executing a valid arrest warrant is not required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official maintaining custody of the person named in the warrant required by the Constitution to perform an error-free investigation of such a claim. Pp. 145-146. ( c) The tort of false imprisonment does not become a Yiolation of the Fourteenth Amendment merely because the defendant is a state official. P. 146. 575 F. 2d 509, reversed. REHNQUIST, J., drlivered the op1mon of the Court, in which BuRGER, C. J., and STEWART, WHrTE, BLACKMUN, and PowELL, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 147. lVL-\RSHALL, .J., filed a dissenting opinion, post, p. 149. STEvExs, .T., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 149. A. W. SoRelle Ill argued the cause for petitioner. With him on the briefs were Kerry Knorpp and John L. Owen. Douglas R. Larson argued the cause and filed a brief for respondent.* MR. JusTICE REHNQUIST delivered the opinion of the Court. Last Term, in Procunier v. l\·avarette, 434 U. S. 555 ( 1978), we granted certiorari to consider the question whether negligent conduct can form the basis of an award of damages under 42 U. S. C. § 1983. The constitutional violation alleged in Procunier was interference on the part of prison officials with a prisoner's outgoing mail. The complaint alleged that the prison offi.cia]s had acted with every conceivable state of mind, from "knowingly" and in ''bad faith" to "negligently and inadvertently." We granted certiorari, however, only on the question "[w]hether negligent failure to mail certain of *Leon Friedman, Alan H. Levine, and Harold C. Hirshman filed n, brief for the American Civil Liberties Union et al. as amici curiae. ,I BAKER v. McCOLLAN 139 137 Opinion of the Court a prisoner's outgoing letters states a cause of action under § 1983." 434 U. S., at 559 n. 6. Following oral argument and briefing on the merits, the Court held that since the constitutional right allegedly violated had not been authoritatively declared at the time the prison officials acted, the officials were entitled, as a matter of law, to prevail on their claim of qualified immunity. Quoting from Wood v. Strickland, 420 U. S. 308, 322 (1975), we observed: "Because [ the prison officials J could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, [they] did not act with such disregard for the established law that their conduct 'cannot reasonably be characterized as being in good faith.'" 434 U. S., at 565. It was thus unnecessary to reach the question on which certiorari had been granted. In the instant case, the Court of Appeals for the Fifth Circuit saw the focal issue as whether petitioner Baker, the sheriff of Potter County, Tex., had negligently failed to establish certain identification procedures which would have revealed that respondent was not the man wanted in connection with the drug charges on which he was arrested. Accordingly, it ·withheld decision until our opinion in Procunier was handed down. Finding no guidance in Procunier on the question whether an allegation of "simple negligence" states a claim for relief under § 1983, the Court of Appeals proceeded to answer that question affirmatively, holding that respondent was entitled to have his § 1983 claim presented to the .i ury even though the evidence supported no more than a finding of negligence on the part of Sheriff Baker. We granted certiorari. 439 U. S. 1114 ( 1979). Having been around this track once before in Procunier, supra, we have come to the conclusion that the question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform 140 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action. In any event, before the relationship between the defendant's state of mind and his liability under § 1983 can be meaningfully explored, it is necessary to isolate the precise constitutional violation with which he is charged. For § 1983 imposes civil liability only upon one "who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws .... " The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right "secured by the Constitution and laws." If there has been no such deprivation, the state of mind of the defendant is wholly immaterial.1 We think that respondent has failed to satisfy this threshold requirement of § 1983 and thus defer once again consideration of the question whether simple negligence can give rise to § 1983 liability. I Leonard McCollan and respondent Linnie Carl McCollan are brothers. Leonard somehow procured a duplicate of Linnie's driver's license, identical to the original in every respect except that, as the Court of Appeals put it, "Leonard's picture graced it instead of Linnie's." McCoUan v. Tate, 575 F. 2d 509, 511 (CA5 1978). In October 1972, Leonard, masquerading as Linnie, was arrested in Potter County on nar- 1 Of course, the state of mind of the defendant may be relevant on the issue of whether a constitutional violation has occurred in the first place, quite apart from t-he issue of whether § 1983 contains some additional qualification of that nature before a defendant may be held to respond in damages under its provisions. BAKER v. McCOLLAN 141 137 Opinion of the Court cotics charges. He was booked as Linnie Carl McCollan, signed various documents as Linnie Carl McCollan, and was released on bail as Linnie Carl McCollan. Leonard's bondsman sought and received an order allowing him to surrender his principal and a warrant was issued for the arrest of "Linnie Carl McCollan." On December 26, 1972, Linnie was stopped in Dallas for running a red light. A routine warrant check revealed that Linnie Carl McCoUan was wanted in Potter County, and respondent was taken into custody over his protests of mistaken identification. The Dallas Police Department contacted the Potter County Sheriff's Department, compared the identifying information on respondent's driver's license with that contained in the Potter County arrest records, and understandably concluded that they had their man. On December 30, Potter County deputies took custody of respondent and placed him in the Potter County Jail in Amarillo. He remained there until January 2, 1973, when officials compa.red his appearance against a file photograph of the wanted man and, recognizing their error, released him. Respondent brought this damages action "pursuant to the Fourteenth Amendment to the United States Constitution and ... [§] 1983." App. 6. After each party had rested his case, the United States District Court for the Northern District of Texas directed a verdict in favor of Sheriff Baker and his surety, Transamerica Insurance Co., without articulating its reasons. The Court of Appeals for the Fifth Circuit reversed. Characterizing respondent's cause of action as a" [ ~] 1983 false imprisonment action," the Court of Appeals determined that respondent had made out a prima facie case by showing (I) intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. The question in the court's view thus became whether Sheriff Baker was entitled to the defense of qualified immunity, which in turn depended on the reasonI I i Ii 142 OCTOBER TERM, 1978 Opinion of the Court 443 u. s. ableness of his failure to institute an identification procedure that would have disclosed the error. Noting that the error would have been discovered if Potter County officials had sent identifying material to Dallas or had immediately upon respondent's arrival in Amarillo compared him with the file photograph and fingerprints of the wanted man, the Court of Appeals determined that a jury could reasonably conclude that the sheriff had behaved unreasonably in failing to institute such measures. Accordingly, the case was remanded to the District Court for a new trial. II Respondent's claim is that his detention in the Potter County jail was wrongful. Under a tort-law analysis it may well have been. The question here, however, is whether his detention was unconstitutional. For, as the Court of Appeals recognized, a public official is liable under § 1983 only "if he causes the plaintiff to be subjected to deprivation of his constitutional rights." 575 F. 2d, at 512 (emphasis in original). Despite this recognition, the Court of Appeals analyzed respondent's so-called " [ §] 1983 false imprisonment action" exclusively in terms of traditional tort-law concepts, relying heavily on the Restatement (Second) of Torts (1965). Indeed, nowhere in its opinion does the Court of Appeals specifically identify the constitutional right allegedly infringed in this case. Because respondent's claim and the Court of Appeals' decision focus exclusively on respondent's prolonged detention caused by petitioner's failure to institute adequate identification procedures, the constitutional provision allegedly violated by petitioner's action is presumably the Fourteenth Amendment's protection against deprivations of liberty without due process of law. By virtue of its "incorporation" into the Fourteenth Amendment, the Fourth Amendment requires the States to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty. GerBAKER v. McCOLLAN 143 137 Opinion of the Court stein v. Pugh, 420 U. S. 103 (1975). The probable-cause determination "must be made by a judicial officer either before or promptly after arrest." Id., at 125. Since an adversary hearing is not required, and since the probable-cause standard for pretrial detention is the same as that for arrest, a person arrested pursuant to a warra.nt issued by a magistrate on a showing of probable cause is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial.2 In this case, respondent was arrested pursuant to a facially valid warrant, and the Court of Appeals made no suggestion that respondent's arrest was constitutionally deficient. Indeed, respondent makes clear that his § 1983 claim was based solely on Sheriff Baker's actions after respondent was incarcerated: "McCollan's § 1983 claim against the sheriff is not for the wrong name being placed in the warrant or the failure to discover and change same or even the initial arrest of the respondent, but mther for the intentional failure to investigate and determine that the wrong man was imprisoned." Brief for Respondent 12. For purposes of analysis, then, this case can be parsed with relative ease. Absent an attack on the validity of the warrant under which he was arrested, respondent's complaint is 2 In rejecting the cont,ention that a defendant is entitled to an adversary hearing on the question of probable cause to detain, the Gerstei,n Court stated: "These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendmrnt. The sole issue is whether there is probable causr for d<'taining the arrestC'd person pending further proceedinii:s. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard-probable ca11~e to belicvr the suspect has committed a crime-- traditionally has been deridPd by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof." 420 U. S., at 120 (footnote omitted). 144 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. simply that despite his protests of mistaken identity, he was detained in the Potter County jail from December 30, when Potter County deputies retrieved him from Dallas, until January 2, when the validity of his protests was ascertained. Whatever claims this situation might give rise to under state tort law, we think it gives rise to no claim under the United States Constitution. Respondent was indeed deprived of his liberty for a period of days, but it was pursuant to a warrant conforming, for purposes of our decision, to the requirements of the Fourth Amendment. Obviously, one in respondent's position could not be detained indefinitely in the face of repeated protests of innocence even though the warrant under which he was arrested and detained met the standards of the Fourth Amendment. For the Constitution likewise guarantees an accused the right to a speedy trial, and invocation of the speedy trial right need not await indictment or other formal charge; arrest pursuant to probable cause is itself sufficient. United States v. Marion, 404 U.S. 307 (1971).3 8 We of course agree with the dissent's quotation of the statement from Schilb v. Kuebel, 404 U. S. 357, 365 (1971), that "the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." Post, at 149 n. 1. But the inference that the dissent appears to draw from this statement-that States are required by the United States Constitution to release an accused criminal defendant on bail-would, if correct, merely supply one more possibility of release from incarceration by resort to procedures specifically set out in the Bill of Rights, over and above those guarantees discussed in the text. It is for violations of such constitutional and statutory rights that 42 U.S. C. § 1983 authorizes redress; that section is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes. Cases such as Neil v. Biggers, 409 U. S. 188, 198 (1972), relied upon by the dissent, post, at 152-153, and n. 7, in no way contradict this view. The discussion of misidentification in Neil was in the context of the use of eyewitness identification testimony at the trial which the United States Constitution guarantees to any accused before he may be punished. See Bell v. Wolfi.sh, 441 U.S. 520 (1979). BAKER v. McCOLLAN 145 137 Opinion of the Court We may even assume, arguendo, that, depending on what procedures the State affords defendants following arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a certain amount of time deprive the accused of "liberty ... without due process of law." But we are quite certain that a detention of three days over a New Year's weekend does not and could not amount to such a deprivation. Respondent's innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment in most if not all jurisdictions, is largely irrelevant to his claim of deprivation of liberty without due process of law.4 The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted-indeed, for every suspect released. Nor are the manifold procedural protections afforded criminal defendants under the Bill of Rights "without limits." Patterson v. New York, 432 U. S. 197, 208 (1977). "Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person." Ibid. The Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished "without due process of law." A reasonable division of functions between law enforcement officers, committing magistrates, and judicial officers-all of whom may be potential defendants in a § 1983 action-is entirely consistent with "due process of law." Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Con- 4 We, of course, do not deal here with a criminal defendant's claim to a new trial after convirtion where that claim is based upon newly discovered evidence. Most States provide a procedure similar to that contained in Fed. Rule Crim. Proc. 33 to process such claims. 146 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. stitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an errorfree investigation of such a claim. The ultimate determination of such claims of innocence is placed in the hands of the judge and the jury.5 III The Court of Appeals closed its opinion with the following summary of its holding: "We are saying that the sheriff or arresting officer has a duty to exercise due diligence in making sure that the person arrested and detained is actually the person sought under the warrant and not merely someone of the same or a similar name. See Restatement (2d) Torts § 125, comment (d) (1965)." 575 F. 2d, at 513. Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort Jaw. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles. Just as "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner," Estelle v. Gamble, 429 U.S. 97, 106 (1976), false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official. Having been deprived of no rights secured under the United States Constitution, respondent had no claim cognizable under 5 In view of the substantive analysis employed by the dissent, it would seem virtually impossible to reach a conclusion other than that any case of misidentification in connection with an arrest made pursuant to an admittedly valid warrant or concededly on probable cause would constitute a deprivation of liberty without due process of law. BAKER v. McCOLLAN 147 137 BLACKMUN, J., concurring § 1983. The judgment of the Court of Appeals for the Fifth Circuit is therefore Reversed. MR. JusTICE BLACKMUN, concurring. The Court long has struggled to define the "liberty" protected by the Due Pfocess Clause of the Fourteenth Amendment. The Court today looks to the provisions of the Bill of Rights that have been "incorporated" into the Due Process Clause, including the right to be free from unreasonable seizures, the right to bail, and the right to a speedy trial, and, finding that none of those specifically incorporated rights apply here, concludes that petitioner did not deny respondent due process in holding him in jail during a holiday weekend. Ante, at 144-145. The Court's cases upon occasion have defined "liberty" without specific guidance from the Bill of Rights. For example, it has found police conduct that "shocks the conscience" to be a denial of due process. Rochin v. California, 342 U.S. 165, 172 (19-52). Mr. Justice Ha.rlan once wrote: "This 'liberty' is not a series of isolated points pricked out in terms of [ the Bill of Rights J. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints." Poe v. Ullman, 367 U.S. 497, 543 (1961) (dissenting opinion). See also Roe v. Wade, 410 U.S. 113, 152-156 (1973). The Court today does not consider whether petitioner's conduct "shocks the conscience" or is so otherwise offensive to the "concept of ordered liberty," Palko v. Connecticut, 302 U. S. 319, 325 ( 1937), as to warrant a finding that petitioner denied respondent due process of law. Nothing in petitioner's conduct suggests outrageousness. He had been sheriff for only 40 days when this incident occurred, and, viewing the facts in the light most favorable to respondent, petitioner's error lay solely in failing to supervise the conduct of the 148 OCTOBER TERM, 1978 BLACKMUN, J., concurring 443 U.S. deputies who transferred respondent to the Potter County jail and kept him there over the weekend. The Court of Appeals' finding that petitioner "intended to confine" respondent rested solely on petitioner's knowledge of the office procedures, not on any knowledge of respondent or even on an awareness at the time this incident occurred that the procedures might be ineffective. In contrast to the deputies who, as MR. JUSTICE STEVENS and MR. JusTICE MARSHALL point out, post, at 151-152 and 149, turned a deaf ear to respondent's protests, petitioner checked the files and released respondent as soon as petitioner became aware of respondent's claim. The deputies are not parties to this lawsuit. While I concluded in Rizzo v. Goode, 423 U. S. 362, 384-387 ( 1976) ( dissenting opinion), that the reckless failure of a police official to stop a pattern of clearly unconstitutional conduct by his subordinates could be enjoined under 1983, here there is no indication that petitioner was aware., or should have been aware, either of the likelihood of misidentification or of his subordinates' action in this case. I do not understand the Court's opinion to speak to the possibility that Rochin might be applied to this type of case or otherwise to foreclose the possibility that a prisoner in respondent's predicament might prove a due process violation by a sheriff who deliberately and repeatedly refused to check the identity of a complaining prisoner against readily available mug shots and fingerprints. Such conduct would be far more "shocking" than anything this petitioner has done. The Court notes that intent is relevant to the existence of a constitutional violation, ante, at 140 n. 1, it reserves judgment as to whether a more lengthy incarceration might deny due process, ante, at 144, and it concludes only that "every" claim of innocence need not be investigated independently, ante, at 145-146. I therefore do not agree with MR. JUSTICE STEVENS' suggestion, post, at 154 n. 14, that a prisoner in respondent's predicament would be foreclosed from seeking a writ of habeas BAKER v. McCOLLAN 149 137 STEVENS, J., dissenting corpus. Because this is my understanding, and because I agree that the rights surveyed by the Court do not here provide a basis for the damages award respondent seeks, I concur in the judgment of the Court and join its opinion. MR. JusTICE MARSHALL, dissenting. While I join the dissenting opinion of my Brother STEVENS, I would add one or two additional words. As I view this case, neither "negligence" nor "mere negligence" is involved. Respondent was arrested and not released. This constituted intentional action and not, under these circumstances, negligence. For despite respondent's repeated protests of misidentification, as well as information possessed by the Potter County sheriff suggesting that the name in the arrest warrant was incorrect, see post, at 151 (STEVENS, J., dissenting), petitioner and his deputies made absolutely no effort for eight days to determine whether they were holding an innocent man in violation of his constitutionally protected rights. MR. JusTICE STEVENS, with whom MR. JuSTICE BRENNAN and MR. JusTICE MARSHALL join, dissenting. When a State deprives a person of his liberty after his arrest, the Constitution requires that it be prepared to justify not only the initial arrest, but the continued detention as well.1 Respondent's arrest on December 26, 1972, was authorized by a valid warrant, and no claim is raised that it violated his Fourth Amendment rights. The question is whether the deprivation of his liberty during the next eight days-despite his protests of mistaken identity-was "without due process of 1 See Gerstein v. Pugh, 420 U. S. 103, 113-114. See also Schilb v. Kuebel, 404 U. S. 357, 365 ("1T]he Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment"); Stack v. Boyle, 342 U. S. 1, 4 ("Unless this right to bail before trial is preserved, the presumption of innocence,, secured only after centuries of struggle, would lose its meaning"). 150 OCTOBER TERM, 1978 STEVENS, J., dissenting 443 U.S. law" within the meaning of the Fourteenth Amendment. The record in this case makes clear that the procedures employed by the sheriff of Potter County, Tex., at the time were not reasonably calculated to establish that a person being detained for the alleged commission of a crime was in fact the person believed to be guilty of the offense. In my judgment, such procedures are required by the Due Process Clause, and the deprivation of respondent's liberty occasioned by their absence is a violation of his Fourteenth Amendment rights. I Respondent's brother Leonard was arrested by a member of the City of Amarillo Police Force on September 11, 1972; city police officers photographed and fingerprinted him. On October 6, 1972, he was transferred to the custody of the sheriff of Potter County. At that time, contrary to normal practice, the Potter County sheriff's office took possession of the driver's license the brother was carrying. They did so because it was apparent that the license had been altered. The sheriff testified that an alteration of that kind established a likelihood that the arrestee was using an alias.2 A professional surety posted bond and respondent's brother was released. On November 3, 1972, for reasons that do not appear in the record, the bondsman sought and received an order allowing him to surrender respondent's brother. A warrant for his re-arrest was therefore issued. Since the brother had been masquerading as respondent, the warrant was issued in respondent's name.3 Although respondent has not questioned the validity of the warrant-presumably because it issued before petitioner became sheriff-he has emphasized the fact that the altered driver's license in the file gave the sheriff's deputies reason to believe that the wanted person was using an alias. 2 App. 36-40. 3 Id., at 40-42, 118. BAKER v. McCOLLAN 151 137 STEVENS, J., dissenting On December 26, 1972, respondent was stopped for a traffic violation in Dallas. The Dallas patrolman made a routine radio check and learned that the Potter County warrant was outstanding. Over respondrnt's repeatrd protests that he was not the right man, the officer placed him under arrest and took him to a Dallas police station. The desk sergeant telephoned the Potter County sheriff's office and apparently learned that respondent's name, sex, racC', and date of birth corresponded with the information provided by the sheriff. N"o mention appears to have been made of the fact that the sheriff's files contained an altered driver's license issued in rrspondent's name, even though respondrnt was obviously carrying a licrnsr when he was ticketed for the traffic offense! In short, the fact that the sheriff's office had reason to bC'- lievc that the name in the warrant was an alias did not motivate a.ny special effort to verify the arrestee's identification. The sheriff's deputies allowed respondent to remain in the Dallas lockup for four days before they picked him up. At the time they did so, they failed to follow an identification procedure used by comparable sheriff's offices. They did not take the pictures and fingerprints in the file with them to Dallas to be sure that they had the man they wanted. Nor, when they returned to the Pottn C'ounty jail. did they ref Pr to the pictures or the prints notwithstanding respondent's continued protests of misidentifi.C'ation and the ready availability of the information.5 The ensuing four days included a holiday weekend when the shrriff was apparently away from his office. It was nevertheless a busy period for his staff Rince about 150 prisoners were being detained in a jail designed to house only 88.6 In 4 See id., at 42-43. 5 "ThP sheriff himself testified that it was a. standard practice in most sheriff's departments the size of his to send such identifying material." McCoUan v. Tate, 575 F. 2d 509, 513. See App. 44-45, 52-53. 6 Id., at 83. 152 OCTOBER TERM, 1978 STEVENS, J., dissenting 443U.S. all, there was no procedure in effect that led any of the sheriff's deputies to pull out the file and compare the pictures and fingerprints with respondent. Of course, as soon as the sheriff did so on January 2, he recognized the mistake that had been made and immediately released respondent. It is evident that respondent's 8-day imprisonment ·would have been at least cut in half if any one of several different procedures had been followed by the sheriff's office. If his brother's file had been marked to indicate that he was probably using an alias, a more thorough and prompt identification check would surely have been made; if he had been transferred from Dallas to Potter County promptly, he apparently would have arrived before the sheriff left for the holiday weekend. If a prompt pickup was not feasible, a prompt mailing of the fingerprints and photographs would have revealed the error; if the deputies who picked him up had taken the fingerprints and photographs with them, he would have been released in Dallas; if the file had been checked when he arrived at the Potter <:::ounty jail, or if the sheriff had delegated authority to review complaints of misidentification during his absence, respondent would not have spent four days in the Potter County jail. In short, almost any regular procedures for verifying an arrestee's identification would have resulted in the prompt release of respondent. II The Due Process Clause clearly protects an individual from conviction based on identification procedures which are improperly suggestive. In a criminal trial, that Clause requires the exclusion of evidence obtained through procedures presenting "a very substantial likelihood of . . . misidentification." Simmons v. United States, 390 U. S. 377, 384. Fair procedures must be used, to prevent an "irreparable misidentification" and the resulting deprivation of liberty attaching to BAKER v. McCOLLAN 153 137 STEVENS, J., dissenting conviction. Ibid.7 In my judgment, the Due Process Clause equally requires that fair procedures be employed to ensure that the wrong individual is not subject to the deprivations of liberty attaching to pretrial deumtion. Pretrial detention unquestionably involves a serious deprivation of individual liberty. "The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships." Gerstein v. Pugh, 420 U. S. 103, 114. The burdens of pretrial detention are substantial ones to impose on a presumptively innocent man, even when there is probable cause to believe he has committed a crime.8 To impose such burdens on the wrong man-on a man who has been mistakenly identified as a suspect because of inadequate identification procedures-seems to me clearly unconstitutional. It is wholly at odds with the constitutional restraints imposed on police officers in the performance of investigative stops,9 the establishment of probable cause to detain as well as to arrest,1° and the questioning of suspects taken into custody.11 In each of these activities, police officers must conform to procedures mandated by the Constitution which serve to minimize 7 See Foster v. California, 394 U. S. 440; Neil v. Biggers, 409 U. S. 188, 198 ("It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster"). Sec also United States v. Wade, 388 U.S. 218, 228 ("The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification"). 8 See Bell v. Wolfish, 441 U. S. 520, 569, and n. 7 (MARSHALL, J., dissenting); id., at 593 (STEVENS, J., dissenting). 9 See Terry v. Ohio, 392 U. S. l; Delaware v. Prouse, 440 U. S. 648. 10 See, e. g., Dunaway v. New York, 442 U. S. 200; Spinelli v. United States, 393 U. S. 410. 11 See, e. g., Brewer v. Williams, 430 U. S. 387; Miranda. v. Arizona, 384 U. S. 436; Turner v. Pennsylvania, 338 U. S. 62 (coerced confession excluded on due process grounds even if "trustworthiness" test met). See also Rochin v. California, 342 U. S. 165. 154 OCTOBER TERM, 1978 STEVENS, J., dissenting 443 U.S. the risk of wrongful and unjustified deprivations of personal liberty. It surely makes little sense to enforce limits on the police officer seeking out and detaining those whom he believes to have committed crimes without at the same time requiring adherence to procedures designed to ensure that the subject of the police action and detention is in fact the individual the officer believes he is. In rejecting respondent's claim that his mistaken detention violated his constitutional rights, the Court today relies on two alternative rationales. First, it seems to hold that the constitutional right to a speedy trial provides adequate assurance against unconstitutional detentions, so long as the initial arrest is valid. I cannot agree. A speedy trial within the meaning of the Constitution may take place weeks or months-if not years-after the initial arrest.12 And many arrested persons-as many as 49 % of those arrested in the District of Columbia-are never tried at all, with charges being dropped at some point prior to trial.13 Alternatively, the majority relies on the fact that the last three days of respondent's detention occurred over a holiday weekend to establish that the deprivation of his liberty was so minimal as not to require procedural protections. Whatever relevance the holiday might have to the sheriff's goodfaith defense 14-an issue not presented here-it is clear to me l 2 See, e. g., Barker v. Wingo, 407 U. S. 514 (delay of over four years held constitutional). 13 See K. Brosi, A Cross-City Comparison of Felony Case Processing 7 ( 1979). Nationally, as many as 40% of all adult arrestees are released without the filing of charges. Y. Kamisar, W. LaFave, & J. Israel, Modern Criminal Procedure 7 (1974). 14 While it might be argued that the holiday weekend would provide support for the sheriff's claim that he should be immune from damages on the grounds of a good-faith defense, it would surely seem irrelevant to any claim that respondent might have raised in a habeas corpus proceeding that he was being held in violation of his constitutional rights. Yet under the majority's holding, respondent would not be entitled to such relief, since his detention is not a violation of his constitutional rights. BAKER v. McCOLLAN 155 137 STEVENS, J., dissenting that the coincidence of a holiday weekend hardly reduces the deprivation of liberty from respondent's point of view; indeed, one might regard the deprivation of liberty as particularly serious over a holiday weekend, and require a higher standard of care at such a time. No claim is made that respondent's deprivation was due to the failure to follow otherwise applicable procedures during a holiday weekend; and no such claim could be made, since the respondent was detained for five days before the holiday weekend, and since he was brought to Potter County before the weekend without confirming his identity according to procedures which are customary in comparable police departments.15 Certainly, occasional mistakes may be made by conscientious police officers operating under the strictest procedures. But this is hardly such a case. Here, there were no identification procedures. And the problems of mistaken identification are not, in my judgment, so insubstantial that the absence of such procedures, and the deprivation of individual liberty which results from their absence, should be lightly dismissed as of no constitutional significance. The practice of making a radio check with a centralized data bank is now a routine policy, followed not only in every traffic stop in Potter County,16 but also in literally hundreds of thousands of cases per day nationwide.17 The risk of misidentification based on coincidental similarity of names, birthdays, and descriptions 15 See 575 F. 2d, at 512 ("[T]he deputies' actions were authorized by Sheriff Baker and the same actions were in keeping with the policies of the Potter County Sheriff's Department at that time"). 16 See App. 26 (testimony of Sheriff Baker). 17 As of May 1979, there were 7,285,951 records included in the data base of the National Crime Information Center (NCIC), the national computerized data bank operated by the Federal Bureau of Investigation and designed to assist federal, state, and local law enforcement, agencies. In April 1979, an average of 279,966 requests for information from the system were made daily by law enforcement officials. 156 OCTOBER TERM, 1978 STEVENS, J., dissenting 443 U.S. is unquestionably substantial; 18 it is reflected not only in cases processed by this Court,19 but also in the emphasis placed on securing fingerprint identification by those responsible for the national computer system.20 The societal interests in apprehending the guilty as well as the interests in avoiding the incarceration of the innocent equally demand that the identification of arrested persons conform to standards designed to minimize the risk of error. I am not prepared or qualified to define· the standards that should govern this aspect of the law enforcement profession's work, but I have no hesitation in concluding that an 8-day imprisonment resulting from a total absence of any regular identification procedures in Potter County was a deprivation of liberty without the due process of law that the Constitution commands. I respectfully dissent. 18 According to a study conducted by the International Association of Chiefs of Police, over 5,000 civil actions were filed against police officers asserting claims of false arrest or imprisonment between 1967 and 1971. This figure represented over 40% of the total number of suits filed during those years alleging any form of police misconduct. See Survey of Police Misconduct Litigation 1967-1971, p. 6 (Americans for Effective Law Enforcement 1974). 19 See, e. g., Ulster County Court v. Allen, 442 U. S. 140, in which the police held one of the respondents on the basis of mistaken information received in response to a radio check with headquarters. See also United States v. Mackey, 387 F. Supp. 1121 (Nev. 1975) (individual arrested based on inaccurate computer information). See generally Note, Garbage In, Gospel Out: Establishing Probable Cause Through Computerized Criminal Information Transmittals, 28 Hastings L. J. 509 (1976); DeWeese, Reforming our "Record Prisons": A Proposal for the Federal Regulation of Crime Data Banks, 6 Rutgers-Camden L. J. 26, 33 (1974) (citing report of 35% inaccuracy in criminal histories maintained by FBI). 20 In the NCIC system, "[e]ach computerized offender criminal history cycle must have a criminal fingerprint card as its basic source document. This is necessary in order to preserve the personal identification integrity of the system." NCIC, Computerized Criminal History Program; Background, Concept and Policy 4 (FBI 1978). "[TJhe long-standing law enforcement fingerprint identification process is an essential element in the criminal justice system." Id., at 13. WOI.STON v. READER'S DIGEST ASSN., INC. 157 Syllabus WOLSTON v. READER'S DIGEST ASSOCIATION, INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 78-541'4. Argued April 17, 1979-Decided June 26, 1979 As a result of a grand jury investigation, during 1957 and 19581 of Soviet intelligence agents in the United States, petitioner's aunt and uncle were arrested on, and later pleaded guilty to, espionage charges. In the ensuing months, petitioner, pursuant to grand jury subpoenas, traveled from his home in the District of Columbia to New York City, where the grand jury was sitting, but on one occasion he failed to respond to a subpoena, having previously attempted unsuccessfully to persuade law enforcement authorities not to require him to travel because of his mental condition. A Federal District Judge then issued an order to show cause why petitioner should not be adjudged in criminal contempt of court. Petitioner appeared in court on the return date of this order and offered to testify before the grand jury but the offer was refused, and thereafter he pleaded guilty to the contempt charge when his pregnant wife became hysterical upon being called to testify as to his mental condition. Petitioner received a suspended sentence. These event.s were reported in a number of stories in the Washington and New York newspapers, but the publicity subsided following petitioner's sentencing and he succeeded for the most part in returning to the private life he had led prior to such events. In 1974, respondent Reader's Digest Association published a book written by respondent Barron, which describes t,he Soviet Union's espionage organization and chronicles its activities since World War II. The book was later published by the other respondent publishers. In one passage in the book, petitioner is named as "[a]mong Soviet agents identified in the United States" and "convicted of ... contempt charges following espionage indictments," and the index lists petitioner as a "Soviet agent in U. S." Petitioner sued respondents, claiming that the above passages in the book were false and defamatory. The District Court granted respondents' motion for summary judgment, holding that petitioner was a "public figure" because, by failing to appear before the grand jury and subjecting himself to a citation for contempt, he "became involved in a controversy of a decidedly public nature in a way that invited attention and comment, and 158 OCTOBER TERM, 1978 SyllabUB 443U.S. thereby created in the public an interest in knowing about his connection with espionage"; that the First Amendment therefore precluded recovery unless petitioner proved that respondents had published a defamatory falsehood with "actual malice"; and that the evidence raised no genuine issue with respect to the existence of "actual malice." The Court of Appeals affirmed. Held: Petitioner was not a public figure within the meaning of this Court's defamation cases and therefore was not required by the First Amendment to meet the "actual malice" standard of New York Times Co. v. Sulliva:n, 376 U. S. 254, in order t-0 recover from respondents. Pp. 163- 169. (a) Contrary to respondents' argument and the lower courts' holdings, petitioner does not fall within the category of those public figures who have "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved," Gertz v. Robert Welch, Inc., 418 U.S. 323, 345. Neither the mere fact that petitioner voluntarily chose not to appear before the grand jury, knowing that t-his might be attended by publicity, the citation for contempt, nor the simple fact that his failure to appear and the contempt citation attracted media attention, rendered him such a public figure. His failure to appear was in no way calculated to draw attention to himself in order to invite public comment or influence the public with respect to any issue, but rather appears simply to have been the result of his poor healt-h. And there is no evidence that his failure to appear was intended to have, or did in fact have, any effect on any issue of public concern. Pp. 165--168. (b) A person who engages in criminal conduct does not automatically become a public figure for purposes af comment on a limited range of issues relating to his conviction. Time, Inc. v. Firestone, 424 U. S. 448. To hold otherwise would create an "open season" for all who sought to defame persons convicted of a crime. Pp. 168--169. 188 U.S. App. D. C. 185, 578 F. 2d 427, reversed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, POWELL, and STEVENS, JJ., joined. BLACKMUN, J., filed an opinion concurring in the result, in which MARSHALL, J., joined, post, p. 169. BRENNAN, J., filed a dissenting opinion, post, p. 172. Sidney Dickstein argued the cause for petitioner. With him on the brief were George Kaufmann and Leslie J. Ruben. John J. Buckley, Jr., argued the cause for respondents. WOLSTON v. READER'S DIGEST ASSN., INC. 159 157 Opinion of the Court With him on the brief were Edward Bennett Williams and David Otis Fuller, Jr.+ MR. JUSTICE REHNQUIST delivered the opinion of the Court. In 1974, respondent Reader's Digest Association, Inc., published a book entitled KGB, the Secret Work of Soviet Agents (KGB), written by respondent John Barron.1 The book describes the Soviet Union's espionage organization and chronicles its activities since World War II. In a passage referring to disclosures by "royal commissions in Canada and Australia, and official investigations in Great Britain and the United States," the book contains the following statements relating to petitioner Ilya Walston: "Among Soviet agents identified in the United States were Elizabeth T. Bentley, Edward Joseph Fitzgerald, William Ludwig Ullmann, William Walter Remington, Franklin Victor Reno, Judith Coplon, Harry Gold, David Greenglass, Julius and Ethel Rosenberg, Morton Sobell, William Perl, Alfred Dean Slack, Jack Soble, Ilya Wolston, Alfred and Martha Stern.* "*No claim is made that this list is complete. It consists of Soviet agents who were convicted of espionage or falsifying information or perjury and/ or contempt charges following espionage indictments, or who fled to the Soviet bloc to avoid prosecution . . . . " App. 28 (emphasis supplied). In addition, the index to KGB lists petitioner as follows: "Wolston, Ilya, Soviet agent in U. S." Id., at 29. Petitioner sued the author and publishers of KGB in the United States District Court for the District of Columbia, +Richard M. Schmidt, Jr., filed a brief for the American Society of Newspaper Editors et al. as amici curiae urging affirmance. 1 Respondents Bantam Books, Inc., MacMillan Book Clubs, Inc., and Book-of-the-Month Club, Inc., are subsequent publishers of KGB under contractual arrangements with Reader's Digest. 160 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. claiming that the passages in KGB stating that he had been indicted for espionage and had been a Soviet agent were false and defamatory. The District Court granted respondents' motion for summary judgment. 429 F. Supp. 167 (1977). The court held that petitioner was a "public figure" and that the First Amendment therefore precluded recovery unless petitioner proved that respondents had published a defamatory falsehood with "'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not," New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964). 429 F. Supp., at 172, 176. While the District Court agreed that the above-quoted portions of KGB appeared to state falsely that petitioner had been indicted for espionage, it ruled, on the basis of affidavits and deposition testimony, that the evidence raised no genuine issue with respect to the existence of "actual malice" on the part of respondents. Id., at 180-181. The Court of Appeals for the District of Columbia Circuit affirmed. 188 U. S. App. D. C. 185,578 F. 2d 427 (1978).2 2 Both the District Court and the Court of Appeals rested their decisions on the First Amendment to the United States Constitution. The District Court commented in a footnote that it "might also have decided to apply the actual-malice standard in this case on the ground that the law in the District of Columbia requires it." 429 F. Supp., at 178--179, n. 37. The court referred to an unpublished decision of the Superior Court of the District of Columbia as support for that proposition. Hatter v. Evening Star Newspaper Co., Civ. No. 8298-75 (Mar. 15, 1975). But the Court of Appeals in a footnote to its opinion cast substantial doubt on the correctness of the District Court's comment. See 188 U. S. App. D. C., at 193 n. 3, 578 F. 2d, at 435 n. 3. It described Hatter as "a brief unpublished order which recited several other grounds for granting summary judgment" and which cited no District of Columbia authority, and it noted that subsequent to the District Court's decision, another judge of the District of Columbia Superior Court had "filed an elaborate opinion which concluded to the contrary that in the District a newspaper may be liable for actual damages suffered by a private person if it negligently publishes defamation, without actual malice." 188 U. S. App. D. C., at 193 n. 3, 578 F. 2d, at 435 n. 3, citing Phillips v. Evening Star Newspaper Co., WOLSTON v. READER'S DIGEST ASSN., INC. 161 157 Opinion of the Court We granted certiorari, 439 U. S. 1066 (1979), and we now reverse. We hold that the District Court and the Court of Appeals were wrong in concluding that petitioner was a public figure within the meaning of this Court's defamation cases. Petitioner therefore was not required by the First Amendment to meet the "actual malice" standard of New York Times Co. v. Sullivan, supra, in order to recover from respondents.3 During 1957 and 1958. a special federal grand jury sitting in New York City conducted a major investigation into the activities of Soviet intelligence agents in the United States. As a result of this investigation, petitioner's aunt and uncle, Myra and Jack Soble, were arrested in January 1957 on charges of spying. The Sobles later pleaded guilty to espionage charges, and in the ensuing months, the grand jury's investigation focused on other participants in a suspected Soviet espionage ring, resulting in further arrests, convictions, and Civ. No. 9999-75 (June 30, 1977). We assume that the Court of Appeals is as familiar as we are with the general principle that dispositive issues of statutory and local law are to be treated before reaching constitutional issues. E. g., Dill.ard v. Virginia Industrial Comm'n, 416 U S. 783, 785 (1974); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129, 136 (1946); Siler v. Louisville & Na,shville R. Co., 213 U.S. 175, 193 (1909). We interpret the footnote to the Court of Appeals' opinion in this case, where jurisdiction is based upon diversity of citizenship, to indicate its view that Phillips represents a more accurate expression of District of Columbia law than the dicta from Hatter and that, therefore, the appeal could not be decided without reaching the constitutional question. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967); King v. Order of Travelers, 333 U.S. 153, 162 (1948); West v. American Tel. & Tel. Co., 311 U. S. 223, 236--237 (1940); Washington Times Co. v. Bonner, 66 App. D. C. 280, 86 F. 2d 836 (1936); Johnson v. Johnson Pub. Co., 271 A. 2d 696 (D. C, App. 1970); Chaloner v. Wa,shington Post Co., 36 App. D. C. 231 (1911). 3 Petitioner also challenges the propriety of summary judgment on the issue of "actual malice." Brief for Petitioner 21-31. In view of our disposition of the public-figure issue, we need not and do not reach this question. See generally Hutchinson v. Proxmire, ante, at 120 n. 9. 162 OCTOBER TERM, 1978 Opinion of the Court 443U.S. guilty pleas. On the same day the Sobles were arrested, petitioner was interviewed by agents of the Federal Bureau of Investigation at his home in the District of Columbia.4 Petitioner was interviewed several more times during the following months in both Washington and in New York City and traveled to New York on various occasions pursuant to grand jury subpoenas. On July 1, 1958, however, petitioner failed to respond to a grand jury subpoena directing him to appear on that date. Petitioner previously had attempted to persuade law enforcement authorities not to require him to travel to New York for interrogation because of his state of mental depression. App. 91 (affidavit of petitioner, June 15, 1976).5 On July 14, a Federal District Judge issued an order to show cause why petitioner should not be held in criminal contempt of court. These events immediately attracted the interest of the news media, and on July 15 and 16, at least seven news stories focusing on petitoner's failure to respond to the grand jury subpoena appeared in New York and Washington newspapers. Petitioner appeared in court on the return date of the showcause order and offered to testify before the grand jury, but 4 "Wolston was born in Russia in 1918. He subsequently lived in Lithuania, Germany, France, and England before coming to the United States in 1939. The army drafted him in 1942, and during his tour of duty he became a naturalized citizen; he was trained as an interpreter and served primarily in Alaska. Aft.er receiving an honorable discharge in 1946 he worked as an interpreter for the United States Military Government and the State Department in Allied-occupied Berlin. He returned to the United States in 1951 and worked as a clerk until 1953, when he enrolled in an undergraduate program at New York University. In 1955 he and his wife moved to Washington, D. C., where he worked several months for the Army Map Service and then as a free-lance translator until January 1957. Deposition of Ilya Walston at 5---42." 429 F. Supp., at 169 n. 1. 5 Since this case was decided on respondents' motion for 811mm~ry judgment, we must construe the record most favorably to petitioner. E. g., Bishop v. Wood, 426 U.S. 341, 347 n. 11 (1976); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). WOLSTON v. READER'S DIGEST ASSN., INC. 163 157 Opinion of the Court the offer was refused. A hearing then commenced on the contempt charges. Petitioner's wife, who then was pregnant, was called to testify as to petitioner's mental condition at the time of the return date of the subpoena, but after she became hysterical on the witness stand, petitioner agreed to plead guilty to the contempt charge. See App. 92 (affidavit of petitioner, June 15, 1976). He received a 1-year suspended sentence and was placed on probation for three years, conditioned on his cooperation with the grand jury in any further inquiries regarding Soviet espionage. Ibid. Newspapers also reported the details of the contempt proceedings and petitioner's guilty plea. an United States; all responsible United States citizens understandably were and are opposed to it. Respondents urge, and the Court of Appeals apparently agreed, that the public controversy involved the propriety of the actions of law enforcement officials in investigating and prosecuting suspected Soviet agents. 188 U.S. App. D. C., at 189, 578 F. 2d, at 431; Brief for Respondents 26-27; Tr. of Oral Arg. 27-29. We may accept, arguendo, respondents' characterization of the "public controversy" involved in this case, for it is clear that petitioner fails to meet the other criteria established in Gertz for public-figure status. WOLSTON v. READER'S DIGEST ASSN., INC. 167 157 Opinion of the Court media attention. But the mere fact that petitioner voluntarily chose not to appear before the grand jury, knowing that his action might be attended by publicity, is not decisive on the question of public-figure status. In Gertz, we held that an attorney was not a public figure even though he voluntarily associated himself with a case that was certain to receive extensive media exposure. 418 U.S., at 352. We emphasized that a court must focus on the "nature and extent of an individual's participation in the particular controversy giving rise to the defamation." Ibid. In Gertz, the attorney took no part in the criminal prosecution, never discussed the litigation with the press, and limited his participation in the civil litigation solely to his representation of a private client. Ibid. Similarly, petitioner never discussed this matter with the press and limited his involvement to that necessary to defend himself against the contempt charge. It is clear that petitioner played only a minor role in whatever public controversy there may have been concerning the investigation of Soviet espionage. We decline to hold that his mere citation for contempt rendered him a public figure for purposes of comment on the investigation of Soviet espionage. Petitioner's failure to appear before the grand jury and citation for contempt no doubt were "newsworthy," but the simple fact that these events attracted media attention also is not conclusive of the public-figure issue. A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention. To accept such reasoning would in effect re-establish the doctrine advanced by the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 44 (1971), which concluded that the New York Times standard should extend to defamatory falsehoods relating to private persons if the statements involved matters of public or general concern. We repudiated this proposition in Gertz and in Firestone, however, and we reject it again today. A libel defendant must show more than mere newsworthiness to 168 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. justify application of the demanding burden of New Yark Times. See Time, Inc. v. Firestone, 424 U.S., at 454. Nor do we think that petitioner engaged the attention of the public in an attempt to influence the resolution of the issues involved. Petitioner assumed no "special prominence in the resolution of public questions." See Gertz v. Robert Welch, Inc., 418 U. S., at 351. His failure to respond to the grand jury's subpoena was in no way calculated to draw attention to himself in order to invite public comment or influence the public with respect to any issue. He did not in any way seek to arouse public sentiment in his favor and against the investigation. Thus, this is not a case where a defendant invites a citation for contempt in order to use the contempt citation as a fulcrum to create public discussion about the methods being used in connection with an investigation or prosecution. To the contrary, petitioner's failure to appear before the grand jury appears simply to have been the result of his poor health. 429 F. Supp., at 177 n. 33; App. 91-92 (affidavit of petitioner, June 15, 1976). He then promptly communicated his desire to testify and, when the off er was rejected, passively accepted his punishment. There is no evidence that petitioner's failure to appear was intended to have, or did in fact have, any effect on any issue of public concern. In short, we find no basis whatsoever for concluding that petitioner relinquished, to any degree, his interest in the protection of his own name. This reasoning leads us to reject the further contention of respondents that any person who engages in criminal conduct automatically becomes a public figure for purposes of comment on a limited range of issues relating to his conviction. Brief for Respondents 24; Tr. of Oral Arg. 15, 17. We declined to accept a similar argument in Time, Inc. v. Firestone, supra, at 457, where ,ve said: "[WJhile participants in some litigation may be legitimate 'public figures,' either generally or for the limited 157 WOLSTON v. READER'S DIGEST ASSN., INC. 169 BLACKMUN, J., concurring in result purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others. There appears little reason why these individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom. The public interest in accurate reports of judicial proceedings is substantially protected by Cox Broadcasting Co. [v. Cohn, 420 U. S. 469 (1975)]. As to inaccurate and defamatory reports of facts, matters deserving no First Amendment protection . . . , we think Gertz provides an adequate safeguard for the constitutionally protected interests of the press and affords it a tolerable margin for error by requiring some type of fault." We think that these observations remain sound, and that they control the disposition of this case. To hold otherwise would create an "open season" for all who sought to defame persons convicted of a crime. Accordingly, the judgment of the Court of Appeals is Reversed. MR. JusTICE BLACKMUN, with whom MR. JUSTICE MARSHALL joins, concurring in the result. I agree that petitioner is not a "public figure" for purposes of this case. The Court reaches this conclusion by reasoning that a prospective public figure must enter a controversy "in an attempt to influence the resolution of the issues involved," ante, a.t 168, and that petitioner failed to act in that manner purposefully here. The Court seems to hold, in other words, that a person becomes a limited-issue public figure only if he literally or figuratively "mounts a rostrum" to advocate a particular view. 170 OCTOBER TERM, 1978 BLACKMUN, J., concurring in result 443 u. s. I see no need to adopt so restrictive a definition of "public figure" on the facts before us. Assuming, arguendo, that petitioner gained public-figure status when he became involved in the espionage controversy in 1958, he clearly had lost that distinction by the time respondents published KGB in 1974. Because I believe that the lapse of the intervening 16 years renders consideration of this petitioner's original public-figure status unnecessary, I concur only in the result.* In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), this Court held that a person may become a public figure for a limited range of issues if he "voluntarily injects himself or is drawn into a particular public controversy." Id., at 351. Such a person, the Court reasoned, resembles a public official in that he typically enjoys "significantly greater access to the channels of effective communication" and knowingly "runs the risk of closer public scrutiny" than would have been true had he remained in private life. Id., at 344. The passage of time, I believe, of ten will be relevant in deciding whether a person possesses these two public-figure characteristics. First, a lapse of years between a controversial event and a libelous utterance may diminish the defamed party's access to the means of counterargument. At the height of the publicity *The Court notes, ante, at 166 n. 7, that petitioner at oral argument here disclaimed the contention that the passage of time had restored him to private status, electing to place all his eggs in the more expa.nsive basket that forms the framework of the Court's opinion. Petitioner proffered this contention in both the District Court and the Court of Appeals, however, and both courts expressly considered it. 429 F. Supp. 167, 178 (1977); 188 U.S. App. D. C. 185,189,578 F. 2d 427,431 (1978). Under these circumstances, petitioner's tactical decision does not foreclose the "passage of time" rationale as a ratio decidendi. Indeed, petitioner makes the related argument that, if he should be deemed a public figure, the passage of time would be relevant in determining whether respondents' failure to investigato amounted in this case to "actual malice." Reply Brief for Petitioner 5-6, n. 8; Tr. of Oral Arg. 10-12. WOLSTON v. READER'S DIGEST ASSN., INC. 171 157 BLACKMUN, J ., concurring in result surrounding the espionage controversy here, petitioner may well have had sufficient access to the media effectively to rebut a charge that he was a Soviet spy. It would strain credulity to suggest that petitioner could have commanded such media interest when respondents published their book in 1974. Second, the passage of time may diminish the "risk of public scrutiny" that a putative public figure may fairly be said to have assumed. In ignoring the grand jury subpoena in 1958, petitioner may have anticipated that his conduct would invite critical commentary from the press. Following the contempt citation, however, petitioner "succeeded for the most part in returning to ... private life." Ante, at 163. Any inference that petitioner "assumed the risk" of public scrutiny in 1958 assuredly is negated by his conscious efforts to regain anonymity during the succeeding 16 years. This analysis implies, of course, that one may be a public figure for purposes of contemporaneous reporting o.f a controversial event, yet not be a public figure for purposes of historical commentary on the same occurrence. Historians, consequently, may well run a greater risk of liability for defamation. Yet this result, in my view, does no violence to First Amendment values. While historical analysis is no less vital to the marketplace of ideas than reporting current events, historians work under different conditions than do their media counterparts. A reporter trying to meet a deadline may find it totally impossible to check thoroughly the accuracy of his sources. A historian writing sub specie aeternitatis has both the time for reflection and the opportunity to investigate the veracity of the pronouncements he makes. For these reasons, I conclude that the lapse of 16 years between petitioner's participation in the espionage controversy and respondents' defamatory reference to it was sufficient to erase whatever public-figure attributes petitioner once may have possessed. Because petitioner clearly was a private 172 OCTOBER TERM, 1978 BRENNAN, J., dissenting 443 U.S. individual in 1974, I see no need to decide the more difficult question whether he was a public figure in 1958. MR. JusTICE BRENNAN, dissenting. I dissent. I agree with the holding of the District Court, 429 F. Supp. 167, 176 ( 1977), affirmed by the Court of Appeals, 188 U. S. App. D. C. 185, 189, 578 F. 2d 427, 431 ( 1978), that petitioner qualified "as a public figure for the limited purpose of comment on his connection with, or involvement in, espionage in the 1940's and '50's." I further agree with the holding of the District Court, 429 F. Supp., at 178, affirmed by the Court of Appeals, 188 U. S. App. D. C., at 189, 578 F. 2d, at 431, that petitioner also qualified as a public figure in 1974. That conclusion follows, in my view, for the reasons stated by the Court of Appeals, ibid., 578 F. 2d, at 431: "The issue of Soviet espionage in 1958 and of Wolston's involvement in that operation continues to be a legitimate topic of debate today, for that matter concerns the security of the United States. The mere lapse of time is not decisive." I disagree, however, with the holding of the District Court, affirmed by the Court of Appeals, that respondent Barron was entitled to summary judgment. In my view the evidence raised a genuine issue of fact respecting the existence of actual malice on his part. I would therefore reverse the judgment of the Court of Appeals and remand to the District Court for trial of that issue. LEROY v. GREAT WESTERN UNITED CORP. 173 Syllabus LEROY, ATTORNEY GENERAL OF IDAHO, ET AL. v. GREAT WESTERN UNITED CORP. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 78-759. Argued April 17, 1979-Decided June 26, 1979 After publicly announcing its intent to make a tender offer to purchase shares of stock of a company having substantial assets in Idaho, appellee, a Texas-based corporation which is also engaged in business in New York and Maryland, filed the informational schedule with the Securities and Exchange Commission required by the Securities Exchange Act of 1934 (1934 Act), as amended by the Williams Act, and also filed documents in Idaho in an attempt to satisfy that State's takeover statute. When Idaho officials objected to the filing and delayed the effective date of the tender offer, appellee brought an action in the Federal District Court for the Northern District of Texas against the officials responsible for enforcing Idaho's takeover law, seeking a declaration that the state law was invalid insofar as it purported to apply to interstate tender offers to purchase securities traded on a national exchange. The District Court held that personal jurisdiction over the Idaho defendants had been obtained under the Texas long-arm statute, and that venue could be sustained under the special venue provision in § 27 of the 1934 Act giving federal district courts exclusive jurisdiction of actions brought to enforce "any liability or duty created" by the Act. The court then went on to hold that the Idaho takeover statute was pre-empted by the Williams Act and placed an impermissible burden on interstate commerce. The Court of Appeals affirmed, holding, inter alia, that venue was authorized by § 27 of t-he 1934 Act, because Idaho's enforcement attempt, by conflicting with the Williams Act, constituted a violation of a "duty" imposed by § 28 (a) of the 1934 Act (which provides that nothing in the Act shall affect a state securities regulatory agency's jurisdiction over any security or person insofar as it does not conflict with the Act), and that venue was also proper under 28 U. S. C. § 1391 (b) (which permits actions not founded solely on diversity of citizenship to be brought in the district where all defendants reside or "in which the claim arose") because the allegedly invalid restraint against appellee occurred in the Northern District of Texas and that was accordingly the district "in which the claim arose." 174 Held: OCTOBER TERM, 1978 Syllabus 443 u. s. 1. There is a sound prudential justification in this case for reversing t,he normal order of considering personal jurisdiction in advance of venue, since otherwise this Court would have to decide a constitutional law question not previously decided as to whether personal jurisdiction was properly obtained under the Texas long-arm statute. Pp. 180-181. 2. Venue was improper under § 27 of the 1934 Act because § 28 (a) of that Act imposed no duty on the Idaho officials. Pp. 181-182. 3. Nor was venue available in the Northern District of Texas under 28 U.S. C. § 1391 (b). The District of Idaho, where the actions forming the basis for appcllee's claim took place, is the only one in which "the claim arose" within the meaning of § 1391 (b). Pp. 183-187. 577 F. 2d 1256, reversed. STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 187. Peter E. H e-iser, Jr., Special Deputy Attorney General of Idaho, argued the cause and filed briefs for appellant<,. Ivan Irwin, Jr., argued the cause for appellee. With him on the brief were A. B. Conant, Jr., and James William Moore. Amy Juviler, Assistant Attorney General, argued the cause for the State of New York et al. as amici curiae urging reversal. With her on the brief were Robert Abrams, Attorney General, and Shirley Adelson Siegel, Solicitor General. Deputy Solicitor General Easterbrook argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Elinor Hadley Stillman, and Ralph C. Ferrara.* *Briefs of amici curiae urging reversal were filed by George Deukmejian, Attorney General of California, Arthur C. DeGoede, Assistant Attorney General, and Philip C. Griffin and Ronald V. Thunen, Jr., Deputy Attorneys General; Michael T. Greely, Attorney General of Montana; Rufus L. Edmisten, Attorney General of North Carolina, and Rudolph A. Ashton Ill, Assistant Attorney General; and N. Jerome Diamond, Attorney General of Vermont, for the States of California et al.; by Theodore L. Sendak, AtLEROY v. GREAT WESTERN UNITED CORP. 175 173 Opinion of the Court MR. JUSTICE STEVENS delivered the opinion of the Court. An Idaho statute imposes restrictions on certain purchasers of stock in corporations having substantial assets in Idaho. The questions presented by this appeal are whether the state agents responsible for enforcing the statute may be required to defend its constitutionality in a Federal District Court in Texas and, if so, whether the statute conflicts with the Williams Act amendments to the Securities Exchange Act of 1934,1 or with the Commerce Clause of the United States Constitution.2 Sunshine Mining and Metal Co. (Sunshine) is a "target company" within the meaning of the Idaho Corporate Takeover Act-a statute designed to regulate takeovers of corporations that have certain connections to the State.3 Sunshine's principal business is a silver mining operation in the Coeur torney General, WiUiam G. Mundy, Assistant Attorney General, and Donald P. Bogard for the State of Indiana; by FranC'is X. Bellotti, Attorney General, and William M. O'Brien, Special Assistant Attorney General, for the Commonwealth of Massachusetts; by William J. Brown, Attorney General, and Dcrrwld A. Antrim, Special Assistant Attorney General, for the State of Ohio; by Robert B. Hansen, Attorney General, Michael L. Deamer, Chief Deputy Attorney General, and Donald B. Holbrook for the State of Utah; and by Jon S. Hanson and Richard A. Hemmings for the National Association of Insurance Commissioners. 1 82 Stat. 454; see 15 U. S. C. §§ 78m (d), 78m (e), 78n (d)-78n (f). 2 "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes .... " U. S. Const., Art. I, § 8. 3 Chapter 15 of Title 30 of the Idaho Code is entitled "Corporate Takeovers." Its opening provision contains the following definition: "'Target company' means a corporation or other issuer of securities which is organized under the laws of this state or has its principal office in this state, which has substantial assets located in thi,s state, whose equity securities of any class are or have been registered under chapter 14, title 30, Idaho Code, or predecessor laws or section 12 of the Securities Exchange Act of 1934, and which is or may be involved in a take-over offer relating to any class of its equity securities." Idaho Code § 30-1501 (6) (Supp. 1979) ( emphasis added). 176 OCTOBER TERM, 1978 Opinion of the Court 443U. S. d'Alene Mining District in Idaho. Its executive offices and most of its assets are located in the State. Sunshine is also engaged in business in New York and, through a subsidiary, in Maryland. Its stock is traded over the New York Stock Exchange, and its shareholders are dispersed throughout the country. App. 36. It is a Washington corporation. Great Western United Corp. v. Kidwell, 439 F. Supp. 420, 423-424. Great Western United Corp. (Great Western) is an "offeror" within the meaning of the Idaho statute! Great Western is a publicly owned Delaware corporation with executive headquarters in Dallas, Tex., and corporate offices in Denver, Colo. App. 131. In early 1977, Great Western decided to make a public off er to purchase 2 million shares of Sunshine stock for a premium price. Because consummation of the proposed tender off er would cause Great Western to own more than 5% of Sunshine's outstanding shares, Great Western was required to comply with certain provisions of the Williams Act and arguably also to comply with the Idaho Corporate Takeover Act as well as with similar provisions of New York and Maryland. On March 21, 1977, Great Western publicly announced its intent to make a tender offer for 2 million shares of Sunshine, and its representatives took simultaneous steps to implement the proposed tender offer. They filed a Schedule 13D with the Securities and Exchange Commission in Washington, D. C., 4 " 'Offerer' means a person who makes or in any way participates in making a take-over offer, and includes all affiliates and associates of that person, and all persons acting jointly or in concert for the purpose of acquiring, holding or disposing of or exercising any voting rights attached to the equity securities for which a take-over offer is made. " 'Take-over offer' means the offer to acquire or the acquisition of any equity security of a target company, pursuant to a tender offer or request or invitation for tenders, if after the acquisition thereof the offeror would be directly or indirectly a beneficial owner of more than five per cent (5%) of any class of the outstanding equity securities of the issuer." §§3(}-1501 (3), (5) (Supp. 1979). LEROY v. GREAT WESTERN UNITED CORP. 177 173 Opinion of the Court disclosing the information required by the Williams Act. They consulted with state officials in Idaho, New York, and Maryland about compliance with the corporate takeover laws of those States. And they filed documents with the Idaho Director of Finance in an attempt to satisfy Idaho's statute. On March 25, 1977, Melvin Baptie, who was then the Deputy Administrator of Securities of the Idaho Department of Finance, sent a telecopy letter of objections to Great Westem's filing to the company's offices in Dallas. The letter stated that certain pages of Great Western's SEC Form 13D were missing, asked for several a.dditional items of information, and indicated that no hearing would be scheduled, nor other action taken, until all of the requested information had been received. App. to Juris. Statement A-156 to A-164. On the same day, Tom McEldowney, the Director of Finance of Idaho, entered an order delaying the effective date of the tender offer. Id., at A-165 to A-166. Great Western made no response to Baptie's letter or to McEldowney's order. On March 28, 1977, Great Western filed this action in the United States District Court for the Northern District of Texas1 naming as defendants the state officials responsible for enforcing the Idaho, New York, and Maryland takeover laws. The complaint prayed for a declaration that the state laws were invalid insofar as they purported to apply to interstate cash tender offers to purchase securities traded on the national exchange. App. 1-36. The claims against the Maryland and New York defendants were dismissed because the former did not attempt to enforce their statute against Great Western and the latt{)r expressly stated that they would not assert jurisdiction over the propo~ed tender offer. 439 F. Supp., at 428-429. The two Idaho defendants-McEldowney, the Director of Finance, and Wayne Kidwell, then Attorney General of the State 5-appeared specially to contest jurisdiction and 5 Baptie, who wrote the letter of comment on March 25, 1977, was not named as a defendant. David H. Leroy has now replaced Kidwell as Attorney General of the State. 178 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. venue, and later filed an answer contesting the merits of the claim. The District Court found four separate statutory bases for federal jurisdiction.6 It held that personal jurisdiction over the Idaho defendants had been obtained by service pursuant to the Texas long-arm statute.7 It concluded, however, that venue was improper under the general federal venue statute, 28 U.S. C. § 1391 (b),5 because the defendants obviously did not reside in Texas and the claim arose in Idaho rather than in Texas. Nonetheless, it decided that venue could be sustained under the special venue provision in § 27 of the Securities Exchange Act of 1934 (1934 Act). 48 Stat. 902, as amended, 15 U. S. C. § 78aa. See nn. 9 and 10, infra, and accompanying text. On the merits, the District Court held that the Idaho Corporate Takeover Act is pre-empted by the Williams Act and places an impermissible burden on interstate commerce. It granted injunctive relief that enabled Great Western to acquire the desired Sunshine shares in the fall of 1977. 439 F. Supp., at 434-440. That acquisition did not moot the case, however, because the question whether Great Western has violated Idaho's statute will remain open unless and until the District Court's judgment is finally affirmed. A divided panel of the Court of Appeals for the Fifth Circuit affirmed. The court sustained federal subject-matter 6 "The Court has subject matter jurisdiction over this case on four bases: 28 U. S. C. § 1331 (general federal question), 28 U. S. C. § 1332 (diversity), 28 U. S. C. § 1337 (acts affecting commerce) and Section 27 of the [Securities Exchange Act of 1934, 15 U. S. C. § 78aa] ." 439 F. Supp., at 430. 7 Tex. Rev. Civ. Stat. Ann., Art. 2031b (Vernon 1964). 8 Section 1391 (b) provides: "A civil action wherein jurisdirtion is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law." LEROY v. GREAT WESTERN UNITED CORP. 179 173 Opinion of the Court jurisdiction on the same four grounds relied upon by the District Court. See n. 6, supra. It then advanced alternative theories in support of both its determination that the District Court had personal jurisdiction over the defendants and its conclusion that venue lay in the Northern District of Texas. First, it noted that the Texas long-arm statute authorized the assertion of personal jurisdiction over nonresidents to the fullest extent allowable under the Due Process Clause of the Fourteenth Amendment. It then held that an Idaho official who seeks to enforce an Idaho statute to prevent a Texasbased corporation from proceeding with a national tender offer has sufficient contacts with Texas to support jurisdiction. Second, it held that jurisdiction was available under § 27 of the 1934 Act,9 which gives the federal district courts exclusive jurisdiction over suits brought "to enforce any ... duty created" by the Act. It based this holding on the theory that Idaho's enforcement attempts, by conflicting with the Williams Act, constituted a violation of a "duty" imposed by § 28 (a) of the 1934 Act.1° It relied on the same reasoning to sup- 9 "The district courts of the United States ... shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity or actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder. Any ~rimim.l proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any violation of such chapter or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found .... " 15 U. S. C. § 78aa. 10 Section 28 (a), as set forth in 15 U. S. C. § 78bb (a), provides in pertinent part: "Nothing 'in this chapter shall affect the jurisdiction of the securities commission (or any agency or officer performing like functions) of any State over any security or any person insofar as it does not conflict with the provisions of this chapter or the rules and regulations thereunder." I i i II II Ii 11 I, ' i ' 180 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. port its conclusion that venue was authorized by § 27 of the 1934 Act. Finally, disagreeing with the District Court, the Court of Appeals concluded that venue in the Northern District of Texas was also proper under the general federal venue provision, 28 U. S. C. § 1391 (b), because the allegedly invalid restraint against Great Western occurred there and it was accordingly "the judicial district ... in which the claim arose." Great Western United Corp. v. Kidwell, 577 F. 2d 1256, 1265-1274. On the merits, the Court of Appeals agreed with the analysis of the District Court. Id., at 1274-1287. We noted probable jurisdiction of the appeal. 439 U. S. 1065. Without reaching either the merits or the constitutional question arising out of the attempt to assert personal jurisdiction over appellants, we now reverse because venue did not lie in the Northern District of Texas. I The question of personal jurisdiction, which goes to the court's power to exercise control over the parties, is typically decided in advance of venue, which is primarily a matter of choosing a convenient forum. See generally C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3801, pp. 5-6 (1976) (hereinafter Wright, Miller, & Cooper). On the other hand, neither personal jurisdiction nor venue is fundamentally preliminary in the sense that subject-matter jurisdiction is, for both are personal privileges of the defendant, rather than absolute strictures on the court, and both may be waived by the parties. See Olberding v. Illinois Central R. Co., 346 U. S. 338, 340; Neirbo Co. v. Bethlehem Corp., 308 U. S. 165, 167-168. Accordingly, when there is a sound prudential justification for doing so, we conclude that a court may reverse the normal order of considering personal jurisdiction and venue. Such a justification exists in this case. Although for the reasons discussed in Part II, infra, it is clear that § 27 of the 1934 Act does not provide a basis for personal jurisdiction, the LEROY v. GREAT WESTERN UNITED CORP. 181 173 Opinion of the Court question whether personal jurisdiction was properly obtained pursuant to the Texas long-arm statute is more difficult. Indeed, because the Texas Supreme Court has construed its statute as authorizing the exercise of jurisdiction over nonresidents to the fullest extent permitted by the United States Constitution,11 resolution of this question would require the Court to decide a question of constitutional law that it has not heretofore decided. As a prudential matter it is our practice to avoid the unnecessary decision of novel constitutional questions. We find it appropriate to pretermit the constitutional issue in this case because it is so clear that venue was improper either under § 27 of the 1934 Act or under § 1391 (b) of the Judicial Code. II The linchpin of Great Western's argument that venue is provided by § 27 of the 1934 Act is its interpretation of § 28 (a) of that Act. See nn. 9, 10, supra. It reads § 28 (a) as imposing an affirmative "duty" on the State of Idaho, the violation of which may be redressed in the federal courts under § 27. As Mr. Justice Frankfurter said of a similar argument in a similar case, however, "[t]his is a horse soon curried." Olberding, supra, at 340. The reference in § 27 to the "liabilit[ies] or dut[ies] created by this chapter" clearly corresponds to the various provisions in the 1934 Act that explicitly establish duties for certain participants in the securities market or that subject such persons 11 E. g., U-Anchor Advertising, Inc. v. Burt, 553 S. W. 2d 760 (Tex. 1977). Appellants argue that this construction is only applicable to private commercial defendants and should not govern either in a suit against the agents of another sovereign State or in one against persons who are not engaged in commercial endeavors. Both the District Court and the Court of Appeals, however, have concluded that the statute does extend to the limits of the Due Process Clause in this case, and it is not our practice to re-examine state-law determinations of this kind. E. g., Butner v. United States, 440 U. S. 48, 57- 58; Bishop v. Wood, 426 U. S. 341, 345- 346, and n. 8; Propper v. Clark, 337 U.S. 472, 486-487. 182 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. to possible actions brought by the Government, the Securities and Exchange Commission, or private litigants.12 Section 28 (a) is not such a provision. There is nothing in its text or its legislative history to suggest that it imposes any duty on the States or that indicates who might enforce any such duty. The section was plainly intended to protect, rather than to limit, state authority.13 Because § 28 (a) imposed no duty on appellants, the argument that § 27 establishes venue in the District Court is unsupportable.14 12 E. g., § 14 (a) of the 1934 Act, 15 U. S. C. § 78n (a) ("It shall be unlawful for any person . . . to solicit any proxy . . . in contravention of such rules and regulations as the Commission may prescribe . . .") (emphasis added); § 16 (b), 15 U. S. C. § 78p (b) ("For the purpose of preventing the unfair use of information which may have been obtained by [the] beneficial owner [of 10% of any class of equity security], director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer ( other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the ~suer ... ") (emphasis added); § 17 (a) (1), as set forth in 15 U. S. C. § 78q {a) (1) ("Every national securities exchange, member thereof, broker or dealer who transacts a business in securities through the medium of any such member, registered securities association, registered broker or dealer, registered municipal securities dealer, registered securities information processor, registered transfer a.gent, and registered clearing agency . . . shaU make and keep . . . such records . . . and make ... such reports as the Commission, by rule, prescribes ... ") ( emphasis added). 13 Thomas Corcoran, a principal draftsman of the 1934 Act, indicated to Congress that the purpose of § 28 (a) was to leave the States with as much leeway to regulate securities transactions as the Supremacy Clause would allow them in the absence of such a provision. Hearings on S. Res. 84 (72d Cong.), 56, and 97 (73d Cong.) before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 6577 (1934). In particular, the provision was designed to save state blue-sky laws from preemption. See ibid. 14 When one considers the straightforward language of §§ 27 and 28 (a), it is difficult to regard MR. JusTrCE WHITE'S ingenuous and intricate arguLEROY v. GREAT WESTERN UNITED CORP. 183 173 Opinion of the Court III Nor, as the District Court correctly concluded, is venue available under § 1391 (b). The first test of venue under that provision-the residence of the defendants-obviously points to Idaho rather than Texas. The Court of Appeals reasoned, however, under the second relevant test that the claim arose in Dallas because that is the place where the Idaho officials "invalidly prevented Great Western from initiating a tender offer for Sunshine." 577 F. 2d, at 1273.15 The court buttressed its conclusion by noting that a single action against the officials of New York, Maryland, and Idaho could not have been instituted in any one place unless the claim was treated as having arisen in Dallas. Ibid. The easiest answer to this latter argument is that Great West.em's complaint did not in fact raise justiciable claims against any officials save those in Idaho. But that is not the only answer. Although the legal issues raised in the complaint challenging the constitutionality of the statutes of three different States were similar, and the convenience of Great Western would obviously be served by consolidating the three claims for trial in one district, the general venue statute does not authorize the plaintiff to rely on either of those reasons to justify its choice of forum. In most instances, the purpose of statutorily specified venue ment as a realistic reflection of the actual intent of the legislators who enacted these provisions. Nor is the breadth of the venue created by § 27, see post, at 188-189, citing Ritter v. Zwpan, 451 F. Supp. 926, 928 (ED Mich. 1978), a sufficient reason for assuming that that section, rather than some narrower venue provision, applies whenever a suit involves the 1934 Act. See Radzanower v. Touche Ross & Co., 426 U. S. 148. 15 The Court of Appeals properly concluded that the determination of where "the claim arose" for purposes of federal venue under § 1391 is a federal question whose answer depends on federal law. See cases cited in 1 J. Moore, Federal Practice "f 0.142 [5.-2], pp. 1429- 1430 (1979); Wright, Miller, & Cooper § 3803, pp. 1(}-13. 184 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial.1 ° For that reason, Congress has generally not made the residence of the plaintiff a basis for venue in nondiversity cases. But cf. 28 U. S. C. § 1391 (e). The desirability of consolidating similar claims in a single proceeding may lead defendants, such perhaps as the New York and Maryland officials in this case, to waive valid objections to otherwise improper venue. But that concern does not justify reading the statute to give the plaintiff the right to select the place of trial that best suits his convenience. So long as the plain language of the statute does not open the severe type of "venue gap" that the amendment giving plaintiffs the right to proceed in the district where the claim arose was designed to close,11 there is no reason to read it more broadly on behalf of plaintiffs.18 Moreover, the plain language of § 1391 (b) will not bear the Court of Appeals' interpretation. The statute allows venue in "the judicial district ... in which the claim arose." Without deciding whether this language adopts the occa- 16 Seo Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 493- 494; Denver & R. G. W.R. Co. v. Railroad Trainmen, 387 U.S. 556,560; Neirbo Co. v. Bethlehem Corp., 308 U.S. 165,168; Reuben H. Donnelley Corp. v. FTC, 580 F. 2d 264, 269 (CA7 1978). 17 See Brunette Machine Works v. Kockum Industries, 406 U. S. 706, 710, and n. 8. As Brunette indicates, the amendment of § 1391 to provide for venue where the claim arose was designed to close the "venue gaps" that existed under earlier versions of the statute in situations in which joint tortfeasors, or other multiple defendants who contributed to a single injurious act, could not be sued jointly because they resided in different district.s. 406 U. S., at 710 n. 8. In this case, by contrast, Great Western has att,empted to join in one suit three separate claims-each challenging a different statute-against three sets of defendants from three States. The statute simply does not contemplate such a choice on the part of plaintiffs. 18 "The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a 'liberal' construction." Olberding v. Illinois Central, R. Co., 346 U. S. 338, 340. LEROY v. GREAT WESTERN UNITED CORP. 185 173 Opinion of the Court sionally fictive assumption that a claim may arise in only one district,19 it is absolutely clear that Congress did not intend to provide for venue at the residence of the plaintiff or to give that party an unfettered choice among a host of different districts. Denver & R. G. W.R. Co. v. Railroad Trainmen, 387 U. S. 556, 560. Rather, it restricted venue either to the residence of the defendants or to "a place which may be more convenient to the litigants"-i. e., both of them-"or to the witnesses who are to testify in the case." S. Rep. No. 1752, 89th Cong., 2d Sess., 3 (1966). See Denver & R. G. W. R. Co., supra, at 560. See also Brunette Machine Works v. Kockum Industries, 406 U. S. 706, 710. In our view, therefore, the broadest interpretation of the language of § 1391 (b) that is even arguably acceptable is that in the unusual case in which it is not clear that the claim arose in only one specific district,2° a plaintiff may choose between those two ( or conceivably even more) districts that with approximately equal plausibility-in terms of the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not of the plaintiff)-may be assigned as the locus of the claim. Cf. Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 493-494. This case is not, however, unusual. For the claim involved has only one obvious locus- the District of Idaho. Most importantly, it is action that was taken in Idaho by Idaho residents- the enactment of the statute by the legislature, the review of Great West-em's filing, the forwarding of the comment letter by Deputy Administrator Baptie, and the entry of the order postponing the effective date of the tender by Finance Director McEldowney-as well as the future action that may be taken in the State by its officials to punish 19 The two sides of this question, and the cases supporting each, are discussed in 1 Moore, supra n. 15, at if 0.142 [5.-2], pp. 1426-1435; Wright, Miller, & Cooper § 3806, pp. 28-34. 20 See ALI, Study of Division of Jurisdiction Between State and Federal Courts, Commen,ary 136-137 (1969). 186 OCTOBER TERM, 1978 Opinion of the Court 443U. S. or to remedy any violation of its law, that provides the basis for Great Western's federal claim. For this reason, the bulk of the relevant evidence and witnesses-apart from employees of the plaintiff, and securities experts who come from all over the United States 21-is also located in the State. Less important, but nonetheless relevant, the nature of this action challenging the constitutionality of a state statute makes venue in the District of Idaho appropriate. The merits of Great West-- em's claims may well depend on a proper interpretation of the State's statute, and federal judges sitting in Idaho are better qualified to construe Idaho law, and to assess the character of Idaho's probable enforcement of that law, than are judges sitting elsewhere. See cases cited in n. 11, su:pra. We therefore reject the Court of Appeals' reasoning that the "claim arose" in Dallas because that is where Great Western proposed to initiate its t€nder offer, and that is where Idaho's statute had its impact on Great Western. Aside from the fact that these "contacts" between the "claim" and the Texas District fall far short of those connecting the claim and the Idaho District, we note that this reasoning would subject the Idaho officials to suit in almost every district in the country. For every prospective offeree-be he in New York, Los Angeles, Miami, or elsewhere, rather than in Dallas-could argue with equal force ( or Great Western could argue on his behalf) that he had intended to direct his local broker to accept the tender and was frustrated in that desire by the Idaho law.22 As we noted above, however, such a reading of § 1391 (b) is inconsistent with the underlying purpose of the provision, for it would leave the venue decision entirely in the hands of plaintiffs, rather than making it uprimarily a matter 21 At the trial held in the Northern District of Texas, the witness roster, in addition to various Idaho officials and Great Western employees from Dallas, mainly included experts from the New York area as well as one each from California, Maryland, Texas, and Wisconsin. App. 100-292. 22 Sunshine's shareholders are located in 49 States as well as the District of Columbia and Puerto Rico. Id., at 36. LEROY v. GREAT WESTERN UNITED CORP. 187 173 WHITE, J., dissenting of convenience of litigants and witnesses." Denver & R. G. W. R. Co., supra, at 560.23 In short, the District of Idaho is the only one in which "the claim arose" within the meaning of § 1391 (b). The judgment of the Court of Appeals is reversed. It is so ordered. MR. JusTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting. When Great W est'ern proposed in Dallas, Tex., to make a cash tender offer for up to two million shares of Sunshine, officials in Idaho, Maryland, and New York indicated that the offer would be subject to the corporate takeover statute of each State. Having complied with the provisions of the Williams Act governing tender offers and believing that extraterritorial application of the additional requirements of the state statutes was pre-empted by and in conflict with the federal statute, Great Western brought suit in Federal District Court for the Northern District of Texas for declaratory and injunctive relief against enforcement of the state statutes. Because I conclude that venue in that District and personal jurisdiction over the defendant state officials were authorized by § 27 of the Securities Exchange Act of 1934, 15 U. S. C. § 78aa, I disagree with the Court's disposition of this appeal and would reach the merits of Great Western's contention that Idaho's statute is pre-empted by the Williams Act. I The Williams Act was enacted m the form of a set of amendments to the Securities Exchange Act, which, like the 23 In Denver & R. G. W. R. Co., the Court concluded that the drafters of § 1391 (b) did not intend to provide venue in suits a.ga.inst unincorporated associations in every district in which a member of the association resided. To do so, it noted, would give the plaintiff an unrestrained choice of venues and would accordingly be "patently unfair" to the defendant. 387 U.S., at 560. A like reasoning is controlling here. 188 OCTOBER TERM, 1978 WHITE, J., dissenting 443U.S. Securities Act of 1933 , contains its own venue provision. Section 27 prescribes two separate requirements- one relating to the attributes of the judicial district in which suit is brought, and the second relating to the nature of the suit. I consider these in turn. A Comparison of the terms of § 27 with the terms of the general federal venue statute, 28 U. S. C. § 1391 (b) , shows the relative ease with which venue may be obtained in suits brought under the Securities Exchange Act. Whereas under § 1391 (b) venue is proper only in a judicial district that is either where (a) the defendant(s) reside, or (b) "the claim arose," under § 27 suit may be brought in any district that is either where (a) the defendant may be found , is an inhabitant, or transacts business, or (b) "any act or transaction constituting the violation occurred." As the majority notes, some courts have been reluctant to embrace the view that a claim may arise in more than one district for purposes of § 1391 (b). On the other hand, it has been widely accepted that there may be more than one district where acts constituting a violation may occur for purposes of § 27, and indeed that the act on which venue is predicated need be only a "material" part of an alleged violation of the Securities Exchange Act. 1 "Without question, the intent of the venue ... provisions of the securities laws is to grant potential plaintiffs liberal choice in their selection of a forum." Ritter v. Zuspan, 451 F. Supp. 926, 928 (ED Mich. 1978). Given the underlying policy of § 27 to confer venue in a wide variety of districts in order to ease the task of enforcement of federal securities law, it would be anomalous indeed if venue were not available in the North- 1 See Puma v. Marriott, 294 F. Supp. 1116, 1120 (Del. 1969); Prettner v. Aston, 339 F. Supp. 273 (Del. 1972) ; Mayer v. Development Corp. of America, 396 F. Supp. 917, 928-930 (Del. 1975). See also Black & Co. v. Nova-Tech, Irie., 333 F. Supp. 468 (Ore. 1971). LEROY v. GREAT WESTERN UNITED CORP. 189 173 WHrTE, J., dissenting ern District of Texas in this case. Faced with the alternative left to it by the majority-of instituting separate suits in each State attempting to apply its extraterritorial takeover law, or perhaps waiting and defending separate enforcement actions brought by each State---Great Western might well choose to forgo its tender offer altogether, a result not in keeping with the purposes of the Williams Act or § 27. Although in this case only three States indicated an intention to assert jurisdiction over the tender offer, and only Idaho ultimately attempted to enforce its statute, it is important to note that there are analogous statutes in a total of 36 States.2 With the foregoing in mind, even if the claim in this case did not arise in Dallas within the meaning of§ 1391 (b), Dallas is a place where an act constituting an alleged violation of the Williams Act occurred, because it is where appellants sought to apply Idaho's statute. Of course, for purposes of determining whether venue requirements were met, the substantive allegations of Great Western's claim-that is, that Idaho's statute conflicts with the Williams Act-must be accepted as true. The specific act alleged to violate a duty created by the Williams Act is the application of the Idaho statute to the Dallas tender offer. The gist of the act complained of being extraterritorial application of Idaho's statute, this act obviously occurs not only in Idaho but also in the district where the extraterritorial tender offer is made. B Having determined that the Northern District of Texas has the required relationship to the claim in this case, venue in that District was proper under § 27 as long as the second general requirement of the provision was met; that is, if it may be said that Great Western's suit was "to enforce any liability 2 See Note, Securities Law and the Constitution: State Tender Offer Statutes Reconsidered, 88 Yale L. J. 510, 514-515, n. 29 (1979). 190 OCTOBER TERM, 1978 WHITE, J., dissenting 443 U.S. or duty created by this chapter ... , or to enjoin any violation of such chapter .... " In the majority's view, the term "duty created by this chapter" means only those duties "explicitly" prescribed by a provision of the Williams Act. Ante, at 181-182. The majority would further restrict the term to refer only to duties imposed on "participants in the securities market," ante, at 181, which presumably does not include officials seeking to enforce state corporate takeover laws. But § 27 does not provide that the duty must be "explicitly" stated in a provision of the Williams Act or that only "participants in the securities market" have duties under the Act. Ra.ther, it broadly encompasses all suits to enforce "any ... duty created by" the Act. Here respondent sought an injunction against enforcement of Idaho's statute as applied to its interstate tender offer, on the ground that such enforcement is pre-empted by and in conflict with the Williams Act. The only question, then, is whether the Williams Act imposes on state officials, expressly or impliedly, the duty not to enact or enforce legislation inconsistent therewith. In my view, the answer to this question must be in the affirmative. The Supremacy Clause of the Constitution provides that if state law conflicts with federal law, federal law prevails. Given this command, the very enactment and existence of the Williams Act pre-empts and invalidates all conflicting state efforts to regulate cash tender offers. Viewed from the perspective of potential offerors, the existence of the Act creates the right not to be subject to conflicting state regulation. Viewed from the perspective of state officials, the existence of the Act creates a duty not to undertake conflicting regulation efforts. That the duty alleged to have been violated in this case would not exist in the absence of the Supremacy Clause does not make the duty any less a creation of the Williams Act. "[A]ll federal actions to enjoin a state enactment rest ultimately on the Supremacy Clause," Swift & Co. v. Wickham, 382 U. S. Ill, 126 (1965), whether the substantive federal LEROY v. GREAT WESTERN UNITED CORP. 191 173 WHITE, J., dissenting law relied upon be a statute--as in Swift 3 and as in this caseor another provision of the Constitution, such as the Commerce Clause. Thus, the command of the Supremacy Clause is nPcessary to the authoritative assertion of any federal right or counterpart duty, and imposes the general duty not to act in a manner inconsistent with federal law. However, the specific duty alleged to have been violated in this case- not to enforce extraterritorial state takeover laws such as Idaho's-is imposed by the existence of pre-emptive federal regulation! Just as various provisions of the Williams Act create certain duties on the part of participants in the securities market, the Williams Act as a whole creates the duty on the part of state officials not to regulate in a manner inconsistent with that Act. II Once it is determined that § 27 contemplates venue for Great Western's claim in the Northern District of Texas, the federal court in that District also had personal jurisdiction over the Idaho defendants, they having been served in a "district ... wher [ e] ... found," there being no objection to the 3 A claim of pre-emption is based on an alleged violation of a federal statute. In Swift, appellants-poultry packing companies-alleged that "enforcement [of a Kew York statute's labeling requirements] would violate the ... overriding requirements of [a federal labeling statute]." 382 U. S., at 114. Similarly, state welfare practices may be challenged on the ground that they conflict with the Social Security Act, see, e. g., Edelman v. Jordan, 415 U. S. 651, 675 (1974); Hagans v. Lavine, 415 U. S. 528 (1974); King v. Smith, 392 U.S. 309,312 n. 3 (1968). 4 The Court of Appeals concluded that appellants' duty was created by § 28 (a) of the Securities Exchange Act of 1934, 15 U. S. C. § 78bb (a). See Great Western United Corp. v. Kidwell, 577 F. 2d 1256, 1271-1272 (CA5 1978). However, the duty not to act in a manner inconsistent with the Williams Act would exist even without § 28 (a). Of course, that provision may be relevant in considering the merits of Great Western's claim of pre-emption, in that it may shed light on the nature and scope of state regulation of tender offers that would not be in conflict with the Williams Act. 192 OCTOBER TERM, 1978 WHITE, J., dissenting 443U.S. manner of service of process, and there being no restrictions imposed by the Constitution on the exercise of jurisdiction by the United States over its residents, see Fitzsi.mmons v. Barton, 589 F. 2d 330 (CA7 1979) .5 3 Appellants also raise the is.5ue whether a tender offerer has a cause of action "under the Williams Act amendments to the Securities Exchange Act of 1934 to challenge the constitutionality of state corporate takeover laws." Juris. Statement 4. In Piper v. Chn·s-Craft Industries, Inc., 430 U. S. 1, 47 n. 33 (1977), we left open the question "whether as a general proposition a suit in equity for injunctive relief ... would lie in favor of a tender offeror" under an antifraud provision of the Williams Act.. See also Touche Ross & Co. v. Redington, 442 U. S. 560, 577 (1979), rejecting the notion that § 27 of the Securities &'{change Act of 1934 creates any implied cause of action. However, the complaint alleged a cause of action not only under the Williams Act and § 27, but also under 42 U. S. C. § 1983, see App. 3-4, 13, which applies in suits against state officials. Because the pre-emption claim alleges deprivation of a right secured by a federal statute, see Part I-B of text, supra, it states a cause of action under the "a.nd laws" provision of § 1983. STEELWORKERS v. WEBER 193 Syllabus UNITED STEELWORKERS OF AMERICA, AFL-CIOCLC V. WEBER ET AL. CERTIORARI TO THE UNITED STATES CO"C'RT OF APPEALS FOR THE FIFTH CIRCUIT No. 78-432. Argued March 28, 1979-Decided June 27, 1979* In 1974, petitioners United Steelworkers of America (USWA) and Kaiser Aluminum & Chemical Corp. (Kaiser) entered into a master collectivebargaining agreement covering terms and conditions of employment at 15 Kaiser plants. The agreement included an affirmative action plan designed to eliminate conspicuous racial imbalances in Kaiser's then almost exclusively white craftwork forces by reserving for black employees 50% of the openings in in-plant craft-training programs until the percentage of black craftworkers in a plant is commensurate with the percentage of blacks in the local labor force. This litigation arose from the operation of the affirmative action plan at one of Kaiser's plants where, prior to 1974, only 1.83% of the skilled craftworkers were black, enn though the local work force was approximately 39% black. Pursuant to the national agreement, Kaiser, rather than continuing its practice of hiring trained outsiders, established a training program to train its production workers to fill craft openings, selecting trainees on the basis of seniority, with the proYiso that at least 50% of the trainees were to be black until the percentage of black skilled craftworkers in the plant approximated the percentage of blacks in the local labor force. During the plan's first year of operation, seven black and six white craft trainees were selected from the plant's production work force, with the most senior bla.ck trainee having less SC'niority than several white production workers whose bids for admission were rejected. Thereafter, respondent Weber, one of those white production workers, instituted this class action in Federal District. Court, alleging that because the affirmatin action program had resulted in junior black employees' receiving training in prrference to senior white employees, respondent and other similarly situated white employees had been discriminated against in violation of the provisions of §§ 703 (a) and ( d) of Title VII of the Civil Rights Act of 1964 that make it unlawful to "discriminate ... because *Together with No. 78-435, Kaiser Aluminum & Chemical, Corp. v. Weber et al., and No. 78-436, United States et al. v. Weber et al,., also on certiorari to the same court. 194 OCTOBER TERM, 1978 Syllabus 443 U. 8. of ... race" in hiring and in the selection of apprentices for training programs. The District Court held that the affirmative action plan violated Title VII, entered judgment in favor of the plaintiff class, and granted injunctive relief. The Court of Appeals affirmed, holding that all employment preferences based upon race, including those preferences incidental to bona fide affirmative action plans, violated Title VIl's prohibition against racial discrimination in employment. Held: 1. Title VII's prohibition in §§ 703 (a) and (d) against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans. Pp. 200-208. (a) Respondent Weber's reliance upon a literal construction of the statutory provisions and upon McDntic eship or other training or retraining, including on-the-job training programs to discriminate against. any individual because of his race, color, religion , sex, or national origin in admission to, or 1·mployment in, any progrnm established to provide apprenticeship or other training." STEELWORKERS v. WEBER 201 193 Opinion of the Court expressly left open in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273,281 n. 8 (1976), which held, in a case not involving affirmative action, that Title VII protects whites as well as blacks from certain forms of racial discrimination. Respondent argues that Congress intended in Title VII to prohibit all race-conscious affirmative action plans. Respondent's argument rests upon a literal interpretation of §§ 703 (a) and (d) of the Act. Those sections make it unlawful to "discriminate ... because of ... race" in hiring and in the selection of apprentices for training programs. Since, the argument runs, McDonaldv. Santa Fe Trail Transp. Co., supra, settled that Title VII forbids discrimination against whites as well as blacks, and since the Kaiser-USW A affirmative action plan operates to discriminate against white employees solely because they are white, it follows that the Kaiser-USWA plan violates Title VIL Respondent's argument is not without force. But it overlooks the significance of the fact that the Kaiser-USWA plan is an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation. In this context respondent's reliance upon a literal construction of §§ 703 (a) and (d) and upon McDonald is misplaced. See McDonald v. Santa Fe Trail Transp. Co., supra, at 281 n. 8. It is a "familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." Holy Trinity Church v, United States, 143 U. S. 457, 459 (1892). The prohibition against racial discrimination in §§ 703 (a) and (d) of Title VII must therefore be read against the background of the legislative history of Title VII and the historical context from which the Act arose. See Train v. Colorado Public Interest Research Group, 426 U. S. 1, 10 (1976); National Woodwork Mfrs. Assn. v. NLRB, 386 U. S. 612, 620 (1967); United States v. American Trucking Assns., 310 U.S. 534, 543-544 (1940). Examination of those sources makes I 202 OCTOBER TERM, 1978 Opinion of the Court 443 u. s. clear that an interpretation of the sections that forbade all raceconscious affirmative action would "bring about an end completely at variance with the purpose of the statute" and must be rejected. United States v. Public Utilities Comm'n, 345 U. S. 295, 315 (1953). See Johansen v. United States, 343 U.S. 427, 431 (1952); Longshoremen v. Juneau Spruce Corp., 342 U. S. 237, 243 (1952); Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 (1907). Congress' primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with "the plight of the Negro in our economy." 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey). Before 1964, blacks were largely relegated to "unskilled and semi-skilled jobs." Ibid. (remarks of Sen. Humphrey); id., at 7204 (remarks of Sen. Clark); id., at 7379- 7380 (remarks of Sen. Kennedy). Because of automation the number of such jobs was rapidly decreasing. See id., at 6548 (remarks of Sen. Humphrey); id., at 7204 (remarks of Sen. Clark). As a consequence, "the relative position of the Negro worker [ was] steadily ,vorsening. In 1947 the nonwhite unemployment rate was only 64 percent higher than the white rate; in 1962 it was 124 percent higher." Id., at 6547 (remarks of Sen. Humphrey). See also id., at 7204 (remarks of Sen. Clark). Congress considered this a serious social problem. As Senator Clark told the Senate: "The rate of Negro unemployment has gone up consistently as compared with white unemployment for the past 15 years. This is a social malaise and a social situation which we should not tolerate. That is one of the principal reasons why the bill should pass." Id., at 7220. Congress feared that the goals of the Civil Rights Act-- the integration of blacks into the mainstream of American society- could not be achieved unless this trend were reversed. And Congress recognized that that would not be possible I ......I STEELWORKERS v. WEBER 203 193 Opinion of the Court unless blacks were able to secure jobs "which have a future." Id., at 7204 (remarks of Sen. Clark). See also id., at 7379- 7380 (remarks of Sen. Kennedy). As Senator Humphrey explained to the Senate: "What good does it do a Negro to be able to eat in a fine restaurant if he cannot afford to pay the bill? What good does it do him to be accepted in a hotel that is too expensive for his modest income? How can a Negro child be motivated to take full adva.ntage of integrated educational facilities if he has no hope of getting a job where he can use that education?" Id., at 6547. "Without a job, one cannot afford public convenience and accommodations. Income from employment may be necessary to further a man's education, or that of his children. If his children have no hope of getting a good job, what will motivate them to take advantage of educational opportunities?" Id., at 6552. These remarks echoed President Kennedy's original message to Congress upon the introduction of the Civil Rights Act m 1963. "There is little value in a Negro's obtaining the right to be admitted to hotels and restaurants if he has no cash in his pocket and no job." 109 Cong. Rec. 11159. Accordingly, it was clear to Congress that "[t]he crux of the problem [was] to open employment opportunities for Negroes in occupations which have been traditionally closed to them," 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey), and it was to this problem that Title VII's prohibition against racial discrimination in employment was primarily addressed. It plainly appears from the House Report accompanying the Civil Rights Act that Congress did not inrend wholly to prohibit private and voluntary affirmative action efforts as one method of solving this problem. The Report provides: "No bill can or should lay claim to eliminating all of 204 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. the causes and consequences of racial and other types of discrimination against minorities. There is reason to believe, however, that national leadership provided by the enactment of Federal legislation dealing with the most troublesome problems will create an atmosphere conducive to voluntary or local resolution of other farms of discrimination." H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963). (Emphasis supplied.) Given this legislative history, we cannot agree with respondent that Congress intended to prohibit the private sector from taking effective steps to accomplish the goal that Congress designed Title VII to achieve. The very statutory words intended as a spur or catalyst to cause "employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history," Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975), cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative action efforts to hasten the elimination of such vestiges.4 It would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had "been excluded from the American dream for so long," 110 Cong. Rec. 6552 (1964) (remarks of Sen. Humphrey), constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy. Our conclusion is further reinforced by examination of the 4 The problem that Congress addressed in 1964 remains with us. In 1962, the nonwhite unemployment rate was 124% higher than the white rate. See ll0 Cong. Rec. 6547 (1964) (remarks of Sen. Humphrey). In 1978, the black unemployment rate was 129% higher. See Monthly Labor Review, U. S. Department of Labor, Bureau of Labor Statistics 78 (Mar. 1979). STEELWORKERS v. WEBER 205 193 Opinion of the Court language and legislative history of § 703 (j) of Title VII.5 Opponents of Title VII raised two related arguments against the bill. First, they argued that the Act would be interpreted to require employers with racially imbalanced work forces to grant preferential treatment to racial minorities in order to integrate. Second, they argued that employers with racially imbalanced work forces would grant preferential treatment to racial minorities, even if not required to do so by the Act. See 110 Cong. Rec. 8618-8619 (1964) (remarks of Sen. Sparkman). Had pongress meant to prohibit all raceconscious affirmative action, as respondent urges, it easily could have answered both objections by providing that Title VII would not require or permit racially preferential integration efforts. But Congress did not choose such a course. Rather, Congress added § 703 (j) which addresses only the first objection. The section provides that nothing contained in Title VII "shall be interpreted to require any 5 Section 703 (j) of Title VII, 78 Stat. 257, 42 U. S. C. § 2000e-2 (j), provides: "Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area." Section 703 (j) speaks to substantive liability under Title VII, but it does not preclude courts from considering racial imbalance as evidence of a Title VII violation. See Teamsters v. United States, 431 U. S. 324, 339- 340, n. 20 (1977). Remedies for substantive violations are governed by § 706 (g), 42 U. S. C. § 2000e-5 (g). 206 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. employer ... to grant preferential treatment ... to any group because of the race ... of such ... group on account of" a de facto racial imbalance in the employer's work force. The section does not state that "nothing in Title VII shall be interpreted to permit" voluntary affirmative efforts to correct racial imbalances. The natural inference is that Congress chose not to forbid all voluntary race-conscious affirmative action. The reasons for this choice are evident from the legislative record. Title VII could not have been enact€d into law without substantial support from legislators in both Houses who traditionally resisted federal regulation of private business. Those legislators demanded as a price for their support that "management prerogatives, and union freedoms ... be left undisturbed to the greatest extent possible." H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1963). Section 703 (j) was proposed by Senator Dirksen to allay any fears that the Act might be interpreted in such a way as to upset this compromise. The section was designed to prevent § 703 of Title VII from being interpreted in such a way as to lead to undue "Federal Government interference with private businesses because of some Federal employee's ideas about racial balance or racial imbalance." 110 Cong. Rec. 14314 (1964) (remarks of Sen. Miller).6 See also id., at 9881 (remarks of 6 Title VI of the Civil Rights Act of 1964, considered in University of California Regents v. Bakke, 438 U. S. 265 (1978), contains no provision comparable to § 703 (j). This is because Title VI was an exercise of federal power over a matter in which the Federal Government was already directly involved: the prohibitions against race-based conduct contained in Title VI governed "program[s] or activit[ies] receiving Federal financial assistance." 42 U. S. C. § 2000d. Congress was legislating to assure federal funds would not be used in an improper manner. Title VII, by contrast,, was enacted pursuant to the commerce power to regulate purely private decisionmaking and was not intended to incorporate and particularize the commands of the Fifth and Fourteenth Amendments. Title VII and Title VI, therefore, cannot be read in pari materia. See 110 Cong. Rec. 8315 (1964) (remarks of Sen. Cooper). See also id., at 11615 (remarks of Sen. Cooper). STEELWORKERS v. WEBER 207 193 Opinion of the Court Sen. Allott); id., at 10520 (remarks of Sen. Carlson); id., at 11471 (remarks of Sen. Javits); id., at 12817 (remarks of Sen. Dirksen). Clearly, a prohibition against all voluntary, raceconscious, affirmative action efforts would disserve these ends. Such a prohibition would augment the powers of the Federal Government and diminish traditional management prerogatives while at the same time impeding attainment of the ultimate statutory goals. In view of this legislative history and in view of Congress' desire to avoid undue federal regulation of private businesses, use of the word "require" rather than the phrase "require or permit" in § 703 (j) fortifies the conclusion that Congress did not intend to limit traditional business freedom to such a degree as to prohibit all voluntary, raceconscious affirmative action .7 1 Respondent argues that our construction of § 703 conflicts with various remarks in the legislative record. See, e. g., 110 Cong. Rec. 7213 (1964) (Sens. Clark and Case); id .. at 7218 (Sens. Clark and Cai,e); i'.d.. at 6549 (Sen. Humphrey); id .. at 8921 (Sen. Williams). We do not agree. In Senator Humphrry's word~, these comments were intended as assurances that Title VII would not allow establishment of systems "to maintain racial ba.Jance in rmplo:vment." Id., at 11848 (empha1'is added). They were not addressed to temporary, voluntary, affirmative action measures undertaken to eliminate manifeS't rarial imbalance in traditionally segregated job categorirs. Moreover, the comments referred to by respondent all preceded the adoption of § 703 Ci), 42 U. S. C. § 2000r-2 (j). After § 703 (j) was adopted, congressional comments were all to the effect that employers would not be required to in:stitnte preferential quotas to avoid Title VII liability, see. e. g., ll0 Cong. Rec. 12819 (1964) (remarks of Sen. Dirksen); id., at 13079-13080 (remarks of Sen. Clark); id., at 15876 (re>marks of Re>p. Lindsay). There was no suggestion after the adoption of § 703 (j) that wholly voluntary, race-conscious, affirmative action efforts would in themselves constitute a violation of Title VII. On the contrary, as Representative MacGre>gor told the House shortly before the final vote on Title VII: "Important as the srope and extent of this bill is, it is also vitally important that all Americans understand what this bill does not cover. "Your mail and mine, your contacts and mine with our constituents, indicates a great degree of misunderstanding about this bill. People com208 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. We therefore hold that Title VII's prohibition in §§ 703 (a) and ( d) against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans. III We need not today define in detail the line of demarcation between permissible and impermissible affirmative action plans. It suffices to hold that the challenged Kaiser-USW A affirmative action plan falls on the permissible side of the line. The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and hierarchy. Both \vere structured to "open employment opportunities for J\Tegroes in occupations which have been traditionally closed to them." 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey).8 At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not require the discharge of white workers and their replacement with new black hirees. Cf. 1l1 cDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 (1976). Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not in tended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Preferential selection of craft trainees at the Gramercy plant will end as soon as the percentage of black skilled craft,vorkers in the Gramercy plant approximates the plain about ... preferential treatment or quotas in employment. There is a mistaken belief that CongreRs is legislating in these areas in this bill. When we drafted this bill we i>xrluded these issues largely because the problems raised by these controversial questions are more properly handled at a governmental le\·cl closer to tht> Amnican people and by communities and individuals themseh·es." 110 Cong. Rec. 15893 (1964). 8 See n. 1, supra. This is not to suggest that the freedom of an employer to undertake rare-conscious affirmative action efforts depends on whether or not his effort is motivated by fear of liability under Title VIL STEELWORKERS v. WEBER 209 193 BLACKMUN' J ., concurring percentage of blacks in the local labor force. See 415 F. Supp., at 763. We conclude, therefore, that the adoption of the Kaiser- USWA plan for the Gramercy plant falls within the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories. 9 Accordingly, the judgment of the Court of Appeals for the Fifth Circuit is Reversed. MR. JusTICE PowELL and MR. JUSTICE STEVENS took no part in the consideration or decision of these cases. MR. JUSTICE BLACKMUN, concurring. While I share some of the misgivings expressed in MR. Jus- TICE REHNQursT's dissent, post, p. 219, concerning the extent to which the legislative history of Title VII clearly supports the result the Court reaches today, I believe that additional considerations, practical and equitable, only partially perceived, if perceived at all, by the 88th Congress, support the conclusion reached by the Court today, and I therefore join its opinion as well as its judgment. I In his dissent from the decision of the United States Court of Appeals for the Fifth Circuit, Judge Wisdom pointed out that this litigation arises from a practical problem in the administration of Title VII. The broad prohibition against discrimination places the employer and the union on what he ac- 9 Our disposition makes unnecessa.ry consideration of petitioners' argument that their plan was justified because they feared that black employees would bring suit under Title VII if they did not adopt an affirmative action plan. Nor need we consider petitioners' contention that their affirmative action plan represented an attempt to comply with Exec. Order No. 11246, 3 CFR 339 (1964-1965 Comp.). 210 OCTOBER TERM, 1978 BLACKMUN, J., concurring 443 U.S. curately described as a "high tightrope without a net beneath them." 563 F. 2d 216, 230. If Title VII is read literally, on the one hand they face liability for past discrimination against blacks, and on the other they face liability to whites for any voluntary preferences adopted to mitigate the effects of prior discrimination against blacks. In this litigation, Kaiser denies prior discrimination but concedes that its past hiring practices may be subject to question. Although the labor force in the Gramercy area was approximately 39% black, Kaiser's work force was less than 15% black, and its craftwork force was less than 2% black. Kaiser had made some effort to recruit black painters, carpenters, insulators, and other craftsmen, but it continued to insist that those hired have five years' prior industrial experience, a requirement that arguably was not sufficiently job related to justify under Title VII any discriminatory impact it may have had. See Parson v. Kaiser Aluminum & Chemical Corp., 575 F. 2d 1374, 1389 (CA5 1978), cert. denied sub nom. Steelworkers v. Parson, 441 U. S. 968 (1979). The parties dispute the extent to which black craftsmen were available in the local labor market. They agree, however, that after critical reviews from the Office of Federal Contract Compliance, Kaiser and the Steelworkers established the training program in question here and modeled it along the lines of a Title VII consent decree later entered for the steel industry. See United States v. Allegheny-Ludlum Industries, Inc., 517 F. 2d 826 (CA5 1975). Yet when they did this, respondent Weber sued, alleging that Title VII prohibited the program because it discriminated against him as a white person and it was not supported by a prior judicial finding of discrimination against blacks. Respondent Weber's reading of Title VII, endorsed by the Court of Appeals, places voluntary compliance with Title VII in profound, ante, at. 198 n. I, e~tablish, for example, that although 11.7% of the -Cnited State-" population in 19i0 was black, the percentage of blacks among the membership of carprntrrs' unions in 19i2 was only 3.7o/c. For painters, the percC>ntagr was 4.9, and for electririans, 2.6. U. S. Commission on Civil Rights, The Challrnire Ahead: Equal Opportunity in Referral Union,; 274, 281 (1976). Kaiser's Director of Equal Opportunity Affairs testifird that. as a result of discrimination in employment and training opportunity, hlacks were underrepresented in skilled crafts "in every indu~try in the United States, [Ind in every area of the rnited States." App. 90. While the parties dispute the cause of the rclnti\·e underrepresentation of blacks in Kai~er's rraftwork force, the Court of Appeals indicatc-d that it thoue;ht "the e;eneral Jack of skills among available blarks" was respon•iblc. 563 F. 2d 216, 224 n. 13. There can be little doubt that any lark of ski!! has its root~ in purposeful disrrimination of the past, including segregated and inferior trade schools for blacks in Louisiana, U. S. Commi"Sion on Civil Rights, 50 States Report 209 (1961); traditionally all-whitP craft unions in that State, including the electrical workers and the plumbers . id., at. 2oi;i; union nepotism, Asbestos Workers v. Vogler, 407 F. 2d 1047 (C.'\5 1969); and ;;egrrgnted apprenticeship programE, F. Mar~hall & V. Briggs, The ~egro and Apprenticeship 27 (1967). STEELWORKERS v. WEBER 213 193 BLACKMUN, J., concurring disturbing for me because, as MR. JUSTICE REHNQUIST points out, the Congress that passed Title VII probably thought it was adopting a principle of nondiscrimination tha.t would apply to blacks and whites alike. While st>tting aside that principle can be justified where necessary to advance statutory policy by encouraging reasonable responses as a form of voluntary compliance that mitigates "arguable violations," discarding the principle of nondiscrimination where no countervailing statutory policy exists appears to be at odds with the bargain struck when Title VII was enacted . . \ closer look at the prob1em. however. reveals that in each of the principal ways in which the Court's "traditionally segregated job categories" approach expands on the "arguable violations" theory, still other considerations point in favor of the broad standard adopted by the Court, and make it possible for me to conclude that the Court's reading of the statute is an acceptable one. A. The first point at which the Court departs from the "arguable violations" approach is that it measures an individual employer's capacity for affirmative action solely in terms of a statistical disparity. The individual employer need not have engaged in discriminatory practices in the past. While. under Title VII, a mere disparity may provide the basis for a prima facie case against an employer, Dothard v. Rawlinson, 433 r. S. 321, 329-331 ( 1977). it would not conclusively prove a violation of the Act. Teamsters v. United States, 431 U.S. 324, 339-340. n. 20 (1977); see§ 703 (j), 42 U.S. C. § 2000e-2 (j). As a practical matter, however, this difference may not be that great. While the "arguable violation" standard is conceptually satisfying. in practice the emphasis would be on "arguable" rather than on "violation." The great difficulty in the District Court was that no one had any incentive to prove that Kaiser had violated the Act. Neither Kaiser nor the St~elworkers wanted to establish a past violation, nor did Weber. The blacks harmed had never sued and so had no established representative. The Equal Employment OpporI 214 OCTOBER TERM, 1978 BLACKMUN, J., concurring 443 U.S. tunity Commission declined to intervene, and cannot be expected to intervene in every case of this nature. To make the "arguable violation" standard work, it would have to be set low enough to permit the employer to prove it without obligating himself to pay a damages award. The inevitable tendency would be to avoid hairsplitting litigation by simply concluding that a mere disparity between the racial composition of the employer's work force and the composition of the qualified local labor force would be an "arguable violation," even though actual liability could not be established on that basis alone. See Note, 57 N. C. L. Rev. 695, 714-719 (1979). B. The Court also departs from the "arguable violation" approach by permitting an employer to redress discrimination that lies wholly outside the bounds of Title VIL For example, Title VII provides no remedy for pre-Act discrimination, Hazelwood School District v. United States, 433 U. S. 299, 309-310 (1977); yet the purposeful discrimination that creates a "traditionally segregated job category" may have entirely predated the Act. More subtly, in assessing a prima facie case of Title VII liability, the composition of the employer's work force is compared to the composition of the pool of workers who meet valid job qualifications. Hazelwood, 433 U. S., at 308 and n. 13; Teamsters v. United States, 431 U. S., at 339-340, and n. 20. When a "job category" is traditionally segregated, hmvever, that pool will reflect the effects of segregation, and the Court's approach goes further and permits a comparison with the composition of the labor force as a whole, in which minorities are more heavily represented. Strong considerations of equity support an interpretation of Title VII that would permit private affirmative action to reach where Title VII itself does not. The bargain struck in 1964 with the passage of Title VII guaranteed equal opportunity for white and black alike, but where Title VII provides no remedy for blacks, it should not be construed to foreclose private affirmative action from supplying relief. It seems unfair for respondent Weber to argue, as he does, that the STEELWORKERS v. WEBER 215 193 BLACKMUN, J., concurring asserted scarcity of black craftsmen in Louisiana, the product of historic discrimination, makes Kaiser's training program illegal because it ostensibly absolves Kaiser of an Title VII liability. Brief for Respondents 60. Absent compelling evidence of legislative intent, I would not interpret Title VII itself as a means of "locking in" the effects of segregation for which Title VII provides no remedy. Such a construction, as the Court points out, ante, at 204, would be "ironic," given the broad remedial purposes of Title VIL MR. JcsTICE REHNQUIST's dissent, while it focuses more on what Title VII does not require than on what Title VII forbids, cites several passages that appear to express an intent to "lock in" minorities. In mining the legislative history anew, however, the dissent, in my view, fails to take proper account of our prior cases that have given that history a much more limited reading than that adopted by the dissent. For example, in Griggs v. Duke Power Co., 401 U. S. 424, 434-436, and n. 11 ( 1971), the Court refused to give controlling weight to the memorandum of Senators Clark and Case which the dissent now finds so persuasive. See post, at 239-241. And in quoting a statement from that memorandum that an employer would not be "permitted ... to prefer Negroes for future vaicancies," post, at 240, the dissent does not point out that the Court's opinion in Teamsters v. United States, 431 U. S., at 349-351, implies that that language is limited to the protection of established seniority systems. Here, seniority is not in issue because the craft training program is new and does not involve an abrogation of pre-existing seniority rights. In short, the passages marshaled by the dissent are not so compelling as to merit the whip hand over the obvious equity of permitting employers to ameliorate the effects of past discrimination for which Title VII provides no direct relief. III I also think it significant that, while the Court's opinion does not foreclose other forms of affirmative action, the Kaiser 216 OCTOBER TERM, 1978 B.uRGER, C. J., dissenting 443 U.S. program it approves is a moderate one. The opinion notes that the program does not afford an absolute preference for blacks, and that it ends when the racial composition of Kaiser's craftwork force matches the racial composition of the local population. It thus operates a.s a temporary tool for remedying past discrimination without attempting to "maintain" a previously achieved balance. See Universi,ty of California Regents v. Bakke, 438 U. S. 265, 342 n. 17 (1978) (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.). Because the duration of the program is finite, it perhaps will end even before the "stage of maturity when action along this line is no longer necessary." Id., at 403 (opinion of BLACK MUN, J.). And if the Court has misperceived the political will, it has the assurance that because the question is statutory Congress may set a different course if it so chooses. MR. CHIEF JUSTICE BURGER, dissenting. The Court reaches a result I would be inclined to vote for were I a Member of Congress considering a proposed amendment of Title VII. I cannot join the Court's judgment, however, because it is contrary to the explicit language of the statute and arrived at by means wholly incompatible with long-established principles of separation of powers. Under the guise of statutory "construction," the Court effectively rewrites Title VII to achieve what it regards as a desirable result. It "amends" the statute to do precisely what both its sponsors and its opponents agreed the statute wa.s not intended to do. When Congress enacted Title VII a.f ter long study and searching debate, it produced a statute of extraordinary clarity, which speaks directly to the issue we consider in this case. In § 703 ( d) Congress provided: "It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or 193 STEELWORKERS v. WEBER 217 BURGER, C. J., dissenting retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training." 42 U. S. C. § 2000e-2 ( d). Often we have difficulty interpreting statutes either because of imprecise drafting or because legislativf' compromises have produced genuine ambiguities. But here there is no lack of clarity, no ambiguity. The quota embodied in the collectivebargaining agreement between Kaiser and the Steelworkers unquestionably discriminates on the basis of race against individual employees seeking admission to on-the-job training programs. And, under the plain language of § 703 (d) , that is "an unlawful employment practice." Oddly, the Court seizes upon the very clarity of the statute almost as a justification for evading the unavoidable impact of its language. The Court blandly tells us that Congress could not really have meant what it said, for a "literal construction" would defeat the "purpose" of the statute-at least the congressional "purpose" as five .Justices divine it today. But how are judges supposed to ascertain the purpose of a statute except through the ,vords Congress used and the legislative history of the statute's evolution? One need not even resort to the legislative history to recognize what is apparent from the face of Title VII-that it is specious to suggest that § 703 C.i) contains a negative pregnant that permits employers to do ,vhat §§ 703 (a) and (d) unambiguously and unequivocally forbid employers from doing. Moreover, as MR. JUSTICE REHNQUIST's opinion-which I join-conclusively demonstrates, the legislative history makes equally clear that the supporters and opponents of Title VII reached an agreement about the statute's intended effect. That agreement, expressed so clearly in the language of the statute that no one should doubt its meaning, forecloses the reading which the Court gives the statute today. 218 OCTOBER TERM, 1978 BURGER, C. J., dissenting 443 U.S. Arguably, Congress may not have gone far enough in correcting the effects of past discrimination when it enacted Title VII. The gross discrimination against minorities to which the Court advert&--particularly against Negroes in the building trades and craft unions-is one of the dark chapters in the otherwise great history of the American labor movement. And, I do not question the importance of encouraging voluntary compliance with the purposes and policies of Title VII. But that statute was conceived and enacted to make discrimination against any individual illegal, and I fail to see how "voluntary compliance" with the no-discrimination principle that is the heart and soul of Title VII as currently written will be achieved by permitting employers to discriminate against some individuals to give preferential treatment to others. Until today, I had thought the Court was of the unanimous view that "[dJiscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed" in Title VII. Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971). Had Congress intended otherwise, it very easily could have drafted language allowing what the Court permits today. Far from doing so, Congress expressly prohibited in §§ 703 (a) and (d) the very discrimination against Brian Weber which the Court today approves. If "affirmative action" programs such as the one presented in this case are to be permitted, it is for Congress, not this Court, to so direct. It is often observed that hard cases make bad law. I suspect there is some truth to that adage, for the "hard'' cases always tempt judges to exceed the limits of their authority, as the Court does today by totally rewriting a crucial part of Title VII to reach a "desirable" result. Cardozo no doubt had this type of case in mind when he wrote: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight.- errant, roaming at will in pursuit of his own ideal of 193 STEELWORKERS v. WEBER 219 REHNQUIST, J ., dissenting beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life.' Wide enough in all conscience is the field of discretion that remains.'' The Nature of the Judicial Process 141 (1921). What Cardozo tells us is beware the "good result," achieved by judicially unauthorized or intellectually dishonest means on the appealing notion that the desirable ends justify the improper judicial means. For there is always the danger that the seeds of precedent sown by good men for the best of motives will yield a rich harvest of unprincipled acts of others also aiming at "good ends." MR. JusTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting. In a very real sense, the Court's opinion is ahead of its time: it could more appropriately have been handed down five years from now, in 1984, a year coinciding with the title of a book from which the Court's opinion borrows, perhaps subconsciously, at least one idea. Orwell describes in his book a governmental official of Oceania, one of the three great world powers, denouncing the current enemy, Eurasia, to an assembled crowd: "It was almost impossible to listen to him without being first convinced and then maddened. . . . The speech had been proceeding for perhaps twenty minutes when a messenger hurried onto the platform and a scrap of paper was slipped into the speaker's hand. He unrolled and read it without pausing in his speech. Nothing altered in his voice or manner, or in the content of what he was saying, but suddenly the names were different. Without words 220 OCTOBER TERM, 1978 REHNQUIST, J., dissenting 443 U.S. said, a wave of understanding rippled through the crowd. Oceania was at war with Eastasia! . . . The banners and posters with which the square was decorated were all wrong! ... "[Tl he speaker had swi tchep., pt. 1, p. 26. In a separate Minority Report, howevPr, opponents of the measure on the Committre advanced a Iinf' of attack which was reiterated throughout the debatrs in both the House and Senate and which ultimately led to passage of § 703 (.j). Noting that the word "discrimination" was nowhere defined in H. R. 7152, the Minority Rrport charged that the absence from Title VII of any reference to "racial imbalance" was a "public relations" ruse and that "the administration intends to rely upon its own construction of 'discrimination' as including the lack of racial balance .... " H. R. Rep., pt. 1, pp. 67-68. To demonstrate how the bill would oprrate in practice, the Minority Report posifrd a number of hypothetical employment situations, concluding in each example that the employer "may be forced to hire according to race, to 'racially balance' those who work for 232 OCTOBER TERM, 1978 REHNQUIST, J., dissenting 443 u. s. him in every job classification or be in violation of Federal law." Id., at 69 (emphasis in original).12 When H. R. 7152 reached the House floor, the opening speech in support of its passage was delivered by Representative Celler, Chairman of the House Judiciary Committee and the Congressman responsible for introducing the legislation. A portion of that speech responded to criticism "seriously mis- 12 One example has particular relevance to the instant litigation: ''Under the power granted in this bill, if a carpenters' hiring hall, say, had 20 men awaiting call, the ,first 10 in seniority being white carpenters, the union could be forced to pass them over in favor of carpenters beneath them in seniority but of the stipulated race. And if the union roster did not contain the names of the carpenters of the race needed to 'racially balance' the job, the union agent must, then, go into the street and recruit members of the stipulated race in sufficient number to comply with Federal orders, else his local could be held in violation of Federal law." H. R. Rep., pt. 1, p. 71. From this and other examples, the ::\iinority Report concluded: "That this is, in fact, a not too subtle system of racism-in-reverse cannot be successfully denied." Id., at 73. Obviously responding to the Minority Report's charge that federal agencies, particularly the Equal Employment- Opportunity Commission would equate "discrimination" with "racial imbalance," the Republican sponsors of the bill on the Judiciary Committee stated in a separate Report: "It must also be stressed that the Commission must confine its activities to correcting abuse, not promoting equality with mathematical certainty. In this regard, nothing in the title permits a person to demand employment. . . . Internal affairs of employers and labor organizations must not be interfered with except to the limited extent that correction is required in discrimination practices. Its primary task is to make certain that the channels of employment are open to persons regardless of their race and that jobs in companies or membership in unions are strictly filled on the basis of qualification." Id., pt. 2, p. 29. The Republican supporters of the bill concluded their remarks on Title VII by declaring that "[a]ll vestiges of inequality based solely on race must be removed .... " Id., at 30. STEELWORKERS v. WEBER 233 193 REHNQUIST, J., dissenting represent[ing] what the bill would do and grossly distort[ing] its effects": "[T] he charge has been made that the Equal Employment Opportunity Commission to be established by title VII of the bill would have the power to prevent a business from employing and promoting the people it wished, and that a 'Federal inspector' could then order the hiring and promotion only of employees of certain races or relig10us groups. This description of the bill is entirely wrong .... "Even [a] court could not order that any preference be given to any particular race, religion or other group, but would be limited to ordering an end of discrimination. The statement that a Federal inspector could order the employment and promotion only of members of a specific racial or religious group is therefore patently erroneous. " ... The Bill would do no more than prevent ... employers from discriminating against or in favor of workers because of their race, religion, or national origin. "It is likewise not true that the Equal Employment Opportunity Commission would have power to rectify existing 'racial or religious imbalance' in employment by requiring the hiring of certain people without regard to their qualifications simply because they are of a given race or religion. Only actual discrimination could be stopped." 110 Cong. Rec. 1518 (1964) (emphasis added). Representative Ce1Ier's construction of Title VII was repeated by several other supporters during the House debate.13 13 Representative Lindsay had this to say: "This legislation ... does not, as has been suggested heretofore both on and off the floor, force acceptance of people in ... jobs ... because they are Negro. It does not impose quotas or any special privileges of seniority 234 OCTOBER TERM, 1978 REHNQU1sT, .J., dissenting 443 U.S. Thus, the battle lines were drawn early in the legislative struggle over Title VII, with opponents of the measure charging that agencies of the Federal Government such as the Equal Employment Opportunity Commission (EEOC), by interpreting the word "discrimination" to mean the existence of "racial imbalance," would "require" employers to grant preferential treatment to minorities, and supporters responding that the EEOC would be granted no such power and that, indeed, Title VII prohibits discrimination "in favor of workers because of their race." Supporters of H. R. 7152 in the House ultimately prevailed by a vote of 290 to 130,14 and the measure was sent to the Senate to begin what became the longest debate in that body's history. or acceptance. There is nothing whatever in this bill about racial balance as appears so frequently in the minority report of the Committee. "What the bill does do is prohibit discrimination because of race .... " 110 Cong. Rec. 1540 (1964). Representative Minish added: "Under title VII, employment will be on the basis of merit, not of race. This means that no quota system will be set up, no one will be forced to hire incompetent help because of race or religion, and no one will be given a vested right to demand employment for a certain job." Id., at 1600. Representative Goode11, answering the charge that Title VII would be interpreted "to requir[e] a racial baJance," id., at 2557, responded: "There is nothing here as a matter of legisla.tiv€ history that would require racial balancing. . . . We are not talking about a union having to balance its membership or an employer having to balance the number of employees. There is no quota involved. It is a matter of an individual's rights having been violated, charges having been brought, investigatjon carried out and conciliation having been attempted and then proof in court that there was discrimination and denial of rights on the basis of race or color." Id., at 2558. After H. R. 7152 had been passed and sent to the Senate, Republican supporters of the bill in the House prepared an interpretative memorandum making clear that "title VII does not permit the ordering of racial quotas in businesses or unions and does not permit interferences with seniority rights of employees or union members." Id., at 6566 (emphasis added). 14 Eleven Members did not vote. STEELWORKERS v. WEBER 235 193 REHNQUIST, J., dissenting B The Senate debate was broken into three phases: the debate on sending the bill to Committee, the general debate on the bill prior to invocation of cloture, and the debate following cloture. 1 When debate on the motion to refer the bill to Committee opened. opponents of Title VII in the Senate immediately echoed the fears expressed by their counterparts in the House, as is demonstrated by the following colloquy between Senators Hill and Ervin : "Mr. ERVIN. I invite attention to ... Section [703 (a)] .... "I ask the Senator from Alabama if the Commission could not tell an employer that he had too few employees, that he had limited his employment, and enter an order, under [Section 703 (a)], requiring him to hire more persons, not because the employer thought he needed more persons, but because the Commission wanted to compel him to employ persons of a particular race. "Mr. HILL. The Senator is correct. That power is written into the bill. The employer could be forced to hire additional persons . . . ." 110 Cong. Rec. 4764 (1964).15 15 Continning with their exchange, Senators Hill and Ervin broached the subject of racial balance: "Mr. ERVIN. So if the Commissioner ... l'hould be joined by another member of the CommiSl'ion in the finding that the employer had too high a percentage, in the Commission's judgment, of persons of the Caucasian race working in his business, they <'OUlrl make the employer either hire, in addition to his present employees, an extra number of Nf'11;ro employees, or compf'I him to fire employees of the Caucasian race in order to make a place for Negro employees? "Mr. HILL. The Senator is correct, although the employer might not 236 OCTOBER TERM, 1978 REHNQUIST, J., dissenting 443 U.S. Senator Humphrey, perhaps the primary moving force behind H. R. 7152 in the Senate, was the first to state the proponents' understanding of Title VII. Responding to a political advertisement charging that federal agencies were at liberty to interpret the word "discrimination" in Title VII to require racial balance, Senator Humphrey stated: "[T]he meaning of racial or religious discrimination is perfectly clear. . . . [I]t means a distinction in treatment given to different individuals because of their different race, religion, or national origin." Id., at 5423.16 Stressing that Title VII "does not limit the employer's freedom to hire, fire, promote or demote for any reasons- or no reasons-so long as his action is not need the additional employees, and although they might bring his business into bankruptcy." 110 Cong. Rec. 4764 (1964). This view was reiterated by Senator Robertson: "It is contemplated by this title that the percentage of colored and white population in a community shall be in similar percentages in every business establishment that employs over 25 persons. Thus, if there were 10,000 colored persons in a city and 15,000 whites, an employer with 25 employees would, in order to overcome racial imbalance, bo required to have 10 colored personnel and 15 white. And if by chance that employer had 20 colored employees, he would have to fire 10 of them in order to rectify the situation. Of course, this works the other way around where whites would be fired." Id., at 5092. Senator Humphrey interrupted Senator Robertson's discussion, responding: "The bill does not require that at all. If it did, I would vote against it. . . . There is no percentage quota." Ibid. 16 This view was reiterated two days later in the "Bipartisan Civil Rights Newsletter" distributed to the Senate on March 19 by supporters of H. R. 7152: "3. Defining discrimination: Critics of the civil rights bill have charged that the word 'discrimination' is left undefined in the bill and therefore the door is open for interpretation of this term according to 'whim or caprice.' ... "There is no sound basis for uncertainty about the meaning of discrimination in the context of the civil rights bill. It means a distinction in treatment given to different individuals because of their different race, religion, or national origin." Id., at 7477. STEELWORKERS v. WEBER 237 193 REHNQUIS'l', .T., dissenting based on race," Senator Humphrey further stated that "nothing in the hiH would permit any official or court to require any employer or labor union to give preferential treatment to any minority group." lbid.17 After 17 days of debate, the Senate voted to take up the hill directly, without referring it to a committee. Id., at 6455. Consequently, there is no Committee Report in the Senate. 2 Formal debate on the merits of H. R. 7152 began on March 30, 1964. Supporters of the bill in the Senate had made elaborate preparations for this second round. Senator Humphrey, the majority whip, and Senator Kuchel, the minority whip, were selected as the bipartisan floor managers on the entire civil rights bill. Responsibility for explaining and defending each important title of the bill was placed on bipartisan "captains." Senators Clark and Case ·were selected as the bipartisan captains responsible for Title VII. Vaas, Title VII: Legislative History, 7 B. C. Ind. & Com. L. Rev. 431, 444--445 (1966) (hereinafter Title VII: Legislative History). In the opening speech of the formal Senate debate on the bill, Senator Humphrey address<.'d th<.' main concern of Title 17 Earlier in the debatr, Senator Humphrey had introduced a newspaper artide quoting the answers of a Justice Department "expert" t-0 the "10 most commonly expressed objections to rTitle VII]." Insofar as is pertinent here, the article stated: "Objection: The law would rm power Federal 'inspectors' to require employers to hire by race. White people would be fired to make room for Negroes. Seniority rights would be destroyed .... "Reply: The bill requires no such thing. The five-member Equal Employment Opportunity Commission that would be created would have no powers to order anything. . . . " ... The bill would not authorize anyone to order hiring or firing to achieve racial or religious balance. An employer will remain wholly free to hire on the basis of his needs and of the job candidate's qualifications. What is prohibited is the refusal to hire someone because of his race or religion. Similarly, the law will have no effect on union seniority rights." Id., at 5094. 238 OCTOBER TERM, 1978 REHNQUIST, J ., dissenting 443 U.S. VII's opponents, advising that not only does Title VII not require use of racial quotas, it does not permit their use. "The truth," stated the floor leader of the bill, "is that this title forbids discriminating against anyone on account of race. This is the simple and complete truth about title VII." 110 Cong. Rec. 6549 (1964). Senator Humphrey continued: "Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial 'quota' or to achieve a certain racial balance. "That bugaboo has been brought up a dozen times; but it is nonexistent. In fact, the very opposite is true. Title VII prohibits discrimination. In effect, it says that race, religion and national origin are not to be used as the basis for hiring and firing. Title VII is designed to encourage hiring on the basis of ability and qualifications, not race or religion." Ibid. (emphasis added). At the close of his speech, Senator Humphrey returned briefly to the subject of employment quotas: "It is claimed that the bill would require racial quotas for all hiring, when in fact it provides that ra.ce shall not be a basis for making personnel decisions." Id., at 6553. Senator Kuchel delivered the second major speech in support of H. R. 7152. In addressing the concerns of the opposition, he observed that " [ n] othing could be further from the truth" than the charge that "Federal inspectors" would be empowered under Title VII to dictate racial balance and preferential advancement of minorities. Id., at 6563. Senator Kuchel emphasized that seniority rights would in no way be affected by Title VII: "Employers and labor organizations could not discriminate in favor of or against a person because of his race, his religion, or his national origin. In such matters ... the bill now before us ... is color-blind." Id., at 6564 (emphasis added). STEELWORKERS v. WEBER 239 193 REHNQUrsT, J ., dissenting A few days later the Senate's attention focused exclusively on Title VII, as Senators Clark and Case rose to discuss the title of H. R. 7152 on which they shared floor "captain" responsibilities. In an interpretative memorandum submitted jointly to the Senate, Senators Clark and Case took pains to refute the opposition's charge that Title VII would result in preferential treatment of minorities. Their words were clear and unequivocal: ''There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited as to any individual." Id., at 7213.18 18 In obvious reference to the charge that the word "discrimination" in Title VII would be interpreted by federal agencies to mean the absence of racial balance, the interpretative memorandum stated: "[Section 703] prohibits discrimination in employment because of race, color, religion, sex, or national origin. It has been suggested that the concept of discrimination is vague. In fact it is clear and simple and has no hidden meanings. To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited by [Section 703] are those which are based on any five of the forbidden criteria: race, color, religion, sex, and national origin." Id., at. 7213 (emphasis added). Earlier in his speech, Senator Clark introduced a memorandum prepared at his request by the Justice Department with the purpose of responding to criticisms of Title VII leveled by opponents of the measure, particularly Senator Hill. With regard to racial balance, the Justice Department stated: "Finally, it has been asserted that title VII would impose a requirement for 'racial balance.' This is incorrect. There is no provision ... in title VII ... that requires or authorizes any Federal agency or Federal court to require preferential treatment for any individual or any group for the purpose of achieving racial balance. . . . No employer is required to maintain any ratio of Negroes to whites . . . . On the contrary, 240 OCTOBER TERM, 1978 REHNQUIST, J., dissenting 443 U.S. Of particular relevance to the instant litigation were their observations regarding seniority rights. As if directing their comments at Brian Weber, the Senators said: "Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer's obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged-or indeed permitted- to fire whites in order to hire Negroes, or to pref er Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier." Ibid. ( emphasis added).19 any deliberate attempt to maintain a given balance would almost certainly run afoul of title VII because it would involve a failure or refusal to hire some individual because of his race, color, religion, sex, or national origin. What title VII seeks to accomplish, what the civil rights bill seeks to accomplish is equal treatment for all." Id., at 7207. 19 A Justice Department memorandum earlier introduced by Senator Clark, see n. 18, supra, expressed the same view regarding Title VII's impact on seniority rights of employees: "Title VII would have no effect on seniority rights existing at the time it takes effect. . . . This would be true even in the case where owing to discrimination prior to the effective date of the title, white workers had more seniority than Negroes. . . . [A]ssuming that seniority rights were built up over a period of time during which Negroes were not hired, these rights would not be set aside by the taking effect of title VII. Employers and labor organizations would simply be under a duty not to discriminate against ~egroes because of their race." 110 Cong. Rec. 7207 (1964). The interpretation of Title VII contained in the memoranda introduced by Senator Clark totally refutes the Court's implied suggestion that Title VII would prohibit an employer from discriminating on the basis of race in order to maintain a racial balance in his work force, but would permit him to do so in order to a,chieve racial balance. See ante, at 208, and n. 7. The maintain-achieve distinction is analytically indefensible in any event. STEELWORKERS v. WEBER 241 193 REHNQUIST, J., dissenting Thus, with virtual clairvoyance the Senate's leading supporters of Title VII anticipated precisely the circumstances of this case and advised their colleagues that the type of minority preference employed by Kaiser would violate Title VII's ban on racial discrimination. To further accentuate the point, Senator Clark introduced another memorandum dealing with common criticisms of the bill, including the charge that racial quotas would be imposed under Title VII. The ans,ver was simple and to the point: "Quotas are themselves discriminatory." Id., at 7218. Despite these clear statements from the bill's leading and most knowledgeable proponents, the fears of the opponents Apparently, the Court is saying that an employer is free to achieve a racially balanced work force by discriminating against whites, but that once he has reached his goal, he is no longer free to discriminate in order to maintain that racial balance. In other words, once Kaiser reaches its goal of 39% minority representation in craft positions at the Gramercy plant, it can no longer comidn race in admitting employees into its on-thejob training programs, e\'en if the programs become as "all-white" as they were in April 1974. Obviously, the Court is driven to this illogical position by the glaring statement, quoted in text, of Senators Clark and Case that "any deliberate attempt to maintain a racial balance ... would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race." 110 Cong. Rec. 7213 (1964) (emphasis added). Achieving a certain racial balance, however, no less than maintaining such a balance, would require an employer to hire or to refuse to hire on thr basis of race. Further, the Court's own conclusion that Title VII's legislative historr, coupled with the wording of§ 703 (j), evinces a congressional intrnt to leave employers free to employ "private, voluntary, race-conscious affirmative action plans," ante, at. 208, is inconsistent with its maintain-achieve distinction. If Congress' primary purpose in enacting Title VII was to open employment opportunities previously closed to Negroes, it would seem to make little difference whether the employer opening those opportunitiPs was achiPving or maintaining a certain racial balance in his work force. Likewise, if § 703 (j) evinces Congress' intent to permit imposition of race-conscious nffirmative action plans, it would seem to make little difference whether the plan was adopted to achieve or maintain the desired racial balance. 242 OCTOBER TERM, 1978 REHNQUIST, J., dissenting 443U.S. were not put to rest. Senator Robertson reiterated the view that "discrimination" could be interpreted by a federal "bureaucrat" to require hiring quotas. Id., at 7418-7420.20 Senators Smathers and Sparkman, while conceding that Title VII does not in so many words require the use of hiring quotas, repeated the opposition's view that employers would be coerced to grant preferential hiring treatment to minorities by agencies of the Federal Government.21 Senator Williams was quick to respond: "Those opposed to H. R. 7152 should realize that to hire a Negro solely because he is a Negro is racial discrimination, just as much as a 'white only' employment policy. Both forms of discrimination are prohibited by title VII of this bill. The language of that title simply states that race is not a qualification for employment. . . . Some people charge that H. R. 7152 favors the Negro, at the expense of the white majority. But how can the language of equality favor one race or one religion over another? Equality can have only one meaning, and that meaning is self-evident to reasonable men. Those who say that equality means favoritism do violence to common sense." Id., at 8921. 20 Senator Robertson's cbservations prompted Senator Humphrey to make the following offer: "If the Senator can find in title VII . . . any language which provides that an employer will have to hire on the basis of percentage or quota related to color ... I will start eating the pages one after another, because it is not in there." 110 Cong. Rec. 7420 (1964). 21 Referring to the EEOC, Senator Smathers argued that Title VII "would make possible the creation of a Federal bureaucracy which would, in the final analysis, cause a man to hire someone whom he did not want to hire, not on the basis of ability, but on the basis of religion, color, or creed .... " Id., at 8500. Senator Sparkman's comments were to the same effect. See n. 23, infra. Severa.I other opponents of Title VII expressed similar views. See 110 Cong. Rec. 9034-9035 (1964) (remarks of Sens. Stennis and Tower); id., at 9943-9944 (remarks of Sens. Long and Talmadge); id., at 10513 (remarks of Sen. Robertson). STEELWORKERS v. WEBER 243 193 REHNQUIST, J ., dissenting Senator Williams concluded his remarks by noting that Title VII's only purpose is "the elimination of racial and religious discrimination in employment." lbid.22 On May 25, Senator Humphrey again took the floor to defend the bill against "the well-financed drive by certain opponents to confuse and mislead the American people." Id., at 11846. Turning once again to the issue of preferPntial treatment, Senator Humphrey remained faithful to the view that he had repeatedly expressed: "The title does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. It does not provide that any quota systems may be established to maintain racial balance in employment. In fact, the title would prohibit preferential treatment for any particular group, and any person, whether or not a member of any minority group, would be permitted to file a complaint of discriminatory employment practices." Id., at 11848 (emphasis added). While the debate in the Senate raged, a bipartisan coalition under the leadership of Senators Dirksen, Mansfield, Humphrey, and Kuchel was working with House leaders and representatives of the Johnson administration on a number of amendments to H. R. 7152 designed to enhance its prospects of passage. The so-called "Dirksen-Mansfield" amendment was introduced on May 26 by Senator Dirksen as a substitute for the entire House-passed bill. The substitute bill, which ultimately became law, left unchanged the basic prohibitory language of § § 703 (a) and ( d), as well as the remedial provisions in § 706 (g). It added, however, several provisions defining and clarifying the scope of Title VII's substantive pro- 22 Several other proponents of H. R. 7152 commented briefly on Title VII, observing that it did not authorize the imposition of quotas to correct racial imbalance. See id., at 9113 (remarks of Sen. Keating); id., at 9881- 9882 (remarks of Sen. Allott); id., at 10520 (remarks of Sen. Ca.rlson); id., at 11768 (remarks of Sen. McGovern). 244 OCTOBER TERM, 1978 REHNQUIST, J., dissenting 443 U.S. hibitions. One of those clarifying amendments,§ 703 (j), was specifically directed at the opposition's concerns regarding racial balancing and preferential treatment of minorities, providing in pertinent part: "Nothing contained in [Title VII] shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race ... of such individual or group on account of" a racial imbalance in the employer's work force. 42 U. S. C. § 2000e-2 (j); quoted in full in n. 8, supra. The Court draws from the language of § 703 (j) primary support for its conclusion that Title VII's blanket prohibition on racial discrimination in employment does not prohibit preferential treatment of blarks to correct racial imbalance. Alleging that opponents of Title VII had argued (I) that the Act would be interpreted to require employers with racially imbalanced work forces to grnnt preferential treatment to minorities and (2) that "employers with racially imbalanced work forces would grant preferential treatment to racial minorities, even if not required to do so by the Act," ante, at 205, the Court concludes that § 703 (j) is responsive only to the opponents' first objection and that Congress therefore must have intended to permit voluntary, private discrimination against whites in order to correct racial imbalance. Contrary to the Court's analysis, the language of § 703 (j) is precisely tailored to the objection voiced time and again by Title VII's opponents. Not once during the 83 days of debate in the Senate did a speaker, proponent or opponent, suggest that the bill would allow employers voluntaril11 to prefer racial minorities over white persons.2" In light of Title VII's flat 23 The Court cites the remarks of Senator Sparkman in support of its suggestion that opponents had argued that employers would take it upon themselves to balance their work forces by granting preferential treatment to racial minorities. In fact, Senator Sparkman's comments accurately reflerted the opposition's "party line." He argued that while the language of Title VII does not expressly require imposition of racial quotas (no one, of course, had ever argued to the contrary), the law would be applied by STEELWORKERS v. WEBER 245 193 RF:HNQUIST, J., dissenting prohibition on discrimination "against any individual ... because of such individual's race," § 703 (a), 42 U. S. C. § 2000e-2 (a), such a contention would have been, in any event, too preposterous to warrant response. Indeed, speakers on both sides of the issue, as the legislative history makes clear, recognized that Title VII would tolerate no voluntary racial preference, whether in favor of blacks or whites. The complaint consistently voiced by the opponents was that Title VII, particularly the word "discrimination," would be interpreted by federal agencies such as the EEOC to require the federal agencies in such a way that "some kind of quota system will be used." Id., at 8619. Senator Sparkman's view is rPflected in the following exchange with Senator Stennis: "Mr. SPARKMAN. At any ratr, when the Government agent came to interview an rmployer who had 100 persons in his rmploy, the first question would be, 'How many Negroes are you employing?' Suppose the population of that area was 20 perrrnt Kegro. Immediately the agent would say, 'You should haYe at least 20 Kegroes in your employ, and they should be distributed among your supervisory personnel and in all the other categories'; and the agent would insist that that be done immediately. "Mr. STENNIS .... "The Senator from Alabama has made very clear his point about employment on the quota basis. Would not the same basis be applied to promotions? "Mr. SPARKMA~. Certainly it would. As I have said, when the Federal agents came to check on the situation in a ,:mall business which had 100 employees, and when the agents said to the employer, 'You must hire 20 Negroes, and some of them must be employed in supervisory capacitiPs,' and so forth, and so on, the agent would also say, 'And you must promote the Negroes, too, in order to distribute them evenly among the various ranks of your employees.'" Id., at 8618 (emphasis added). Later in his r!'marks, Senator Sparkman stated: "Certainly the suggestion will be made to a small business that may have a small Government contract ... that if it does not carry out the suggestion that has been made to the company by an inspector, its Government contract will not be renewed." Ibid. Except for the size of the business, Senator Sparkman has seen his prophecy fulfilled in this case. 246 OCTOBER TERM, 1978 REHNQUIST, J ., dissenting 443 U.S. correction of racial imbalance through the granting of preferential treatment to minorities. Verbal assurances that Title VII would not require- indeed, would not permit-preferential treatment of blacks having failed, supporters of H. R. 7152 responded by proposing an amendment carefully worded to meet. and put to rest, the opposition's charge. Indeed, unlike §§ 703 (a) and (d) , which are by their terms directed at entities-e. g., employers, labor unions- whose actions are restricted by Title VII's prohibitions, the language of 703 (j) is specifically directed at entities- federal agencies and courts-charged with the responsibility of interpreting Title VII's provisions.2• In light of the background and purpose of § 703 (j), the irony of invoking the section to justify the result in this case is obvious. The Court's frequent references to the "voluntary" nature of Kaiser's racially discriminatory admission quota bear no relationship to the facts of this case. Kaiser and the Steelworkers acted under pressure from an agency of the Federal Government, the Office of Federal Contract Compliance, which found that minorities were being "underutilized" at Kaiser's plants. See n. 2, supra. That is, Kaiser's work force was racially imbalanced. Bowing to that pressure, Kaiser instituted an admissions quota preferring blacks over whites, thus confirming that the fears of Title VII's opponents were well founded. Today, § 703 (.i), adopted to allay those fears , is invoked by the Court to uphold imposition of a racial quota under the very circumstances that the section was intended to prevent.2 5 2 • Compare§ 703 (a), 42 U.S. C . § 2000e-2 (11.) ("It shall be an unlawful employment practice for an employer ... "), with § 703 (j), 42 U. S. C. § 2000e-2 (j) ("Nothing contained in this subchapter shall be interpreted ... "). 25 In support of its reading of § 703 (j), the Court argues that "a prohibition against all voluntary, rare-conscious, affirmative action efforts would disserve" the important policy, expressed in the House Report on H. R. 7152, that Title VII leave "ma.nagement prerogatives, and union STEELWORKERS v. WEBER 247 193 REHNQUIST, J., dissenting Section 703 (j) apparently calmed the fears of most of the opponents; aft«:>r its introduction, complaints concerning racial balance and preferential treatment died down considerably.~6 Proponents of the bill, however, continued to reassure the opposition that its concerns were unfounded. In a len11:thy defense of the entire civil rights bill, Senator Muskie emphasized that the opposition's "torrent of words ... cannot obscure this basic, simple truth: Every Ameriean eitizen has the right to equal treatment-not favored treatment, not complete freedoms ... undi.~turbed to the 11;reatcst extent possible" H. R. Rep., pt. 2, p. 29, quoted ante, at 206. The Court. thus concludes that "Congress did not intend to limit traditional business freedom to such a de11;ree as to prohibit all voluntary, rare-conscious affirmative action." Ante, at 207. Thl' smtrnces in the House Report immediately following the statement quoted by the Court, howe\·er. belie the Court's conclusion: "Internal affairs of employers and labor organizations must not be interfered with except to the limited extent that correction is required in discrimination practices. Its primary task is to make certain that the channels of employment are open to per"ons regardless of their race and that jobs in companies or membership in unions are strictly filled on the basis of qualification." H. R. Rep., pt. 2, p. 29 (E>mpha~is added). Thus, the House Report invoked by the Court is perfectly consistent with the rountle!,S obserrntions elsewhere in Title YII's voluminous legislative history that rmployers are free to makE> employment decisions without governmental interference, so lon11: as those decisions are made without regard to racr. The whole purpo~r of Tit IE> VII wa~ to deprive employer;: of their "traditional business freedom" to discriminate on the basis of race. In this case, the "channels of employment" at Kaiser were hardly "open" to Brian \Veber. 26 Some of the opponents still wrrc not satisfied. For rxample, Senator Ervin of North Carolina continued to maintain that Title VII "would give the Federal Government the pown to go into any business or industry in the United Sta1es ... and tell the operator of that business whom he had to hire." ll0 Cong. Rer. 13077 (1964). Senators Russell and Byrd rrmained of the \'iew that pressures exerted by federal agencies would compel rmployrrs "to give priority definitely and almost completely, in most instan<'<'S. to the members of the minority group." Id., at 13150 (remarks of Sen. Russell). 248 OCTOBER TERM, 1978 REHNQUIST, J ., dissenting 443 U.S. individual equality-just equal treatment." 110 Cong. Rec. 12614 (1964). With particular reference to Title VII, Senator Muskie noted that the measure "seeks to afford to all Americans equal opportunity in employment without discrimination. Not equal pay. Not 'racial balance.' Only equal opportunity." Id., at 12617.21 Senator Saltonstall, Chairman of the Republican Conference of Senators participating in the drafting of the Dirksen- Mansfield amendment, spoke at length on the substitute bill. He advised the Senate that the Dirksen-Mansfield substitute, which included § 703 (j), "provides no preferential treatment for any group of citizens. In fact, it specifically prohibits such treatment." 110 Cong. Rec. 12691 (1964) (emphasis added).28 27 Senator Muskie also addressed the charge that federal agencies would equate "discrimination," as that word is used in Title VII, with "racial balance": "[S]ome of the opposition to this title has been based upon its alleged vagueness [and] its failure to define just what is meant by discrimination . . . . I submit that, on either count, the opposition is not well taken. Discrimination in this bill means just what it means anywhere: a distinction in treatment given to different individuals because of their race ... [a]nd, as a practical matter, we all know what constitutes racial discrimination." Id., at 12617. Senator Muskie then reviewed the various provisions of § 703, concluding that they "provide a clear and definitive indication of the type of practice which this title seeks to eliminate. Any serious doubts concerning [Title VII's] application would, it seems to me, stem at least partially from the predisposition of the person expressing such doubt." 110 Cong. Rec. 12618 (1964). 28 The Court states that congressional mmmPnt.s regarding § 703 (j) "were all to the effect that employers would not be required to institute preferential quotas to avoid Title VII liability." Ante, at 207 n. 7 (emphasis in original). Senator Saltonstall's statement that Title VII of the Dirksen-Mansfield substitute, which contained § 703 (j), "specifically prohibits" preferential treatment for any racial group disproves the Court's observation. Further, in a major statement explaining the purpose of the Dirksen-Mansfield substitute amendments, Senator Humphrey said of STEELWORKERS v. WEBER 249 193 REHNQUIST, J., dissenting On June 9, Senator Ervin offered an amendment that would entirely delete Title VII from the bill. In answer to Senator Ervin's contention that Title VII "would make the members of a particular race special favorites of the laws," id., at 13079, Senator Clark retorted: "The bill does not make anyone higher than anyone else. It establishes no quotas. It leaves an employer free to select whomever he wishes to employ .... "All this is subject to one qualification, and that qualification, is to state: 'In your activity as an employer ... you must not discriminate because of the color of a man's skin .... ' "That is all this provision does .... "It merely says, 'When you deal in interstate commerce, you must not discriminate on the basis of race ... .' " Id., at 13080. The Ervin amendment was defeated, and the Senate turned its attention to an amendment proposed by Senator Cotton to limit application of Title VII to employers of at least 100 employees. During the course of the Senate's deliberations on the amendment, Senator Cotton had a revealing discussion with Senator Curtis, also an opponent of Title VII. Both men expressed dismay that Title VII \vould prohibit preferential hiring of "members of a minority race in order to enhance their opportunity": "Mr. CURTIS. Is it not the opinion of the Senator that any individuals who provide jobs for a class of people who have perhaps not had sufficient opportunity for jobs should be commended rather than outlawed? § 703 (j): "This subsection does not represent any change in the substance of the title. It does state dearly and accurately what we have maintained all along about the bill's intent and meaning." 110 Cong. Rec. 12723 (1964). What Senator Humphrey had "maintnined all along about the bill's intent and meaning," was that it neither required nor permitted imposition of preferential quotas to eliminate racial imbalances. 250 OCTOBER TERM, 1978 REHNQUlST, J., dissenting 443 U.S. "Mr. COTTON. Indeed it is." Id., at 13086.29 Thus, in the only exchange on the Senate floor raising the possibility that an employer might wish to reserve jobs for minorities in order to assist them in overcoming their employment disadvantage, both speakers concluded that Title VII prohibits such, in the words of the Court, "voluntary, private, race-conscious efforts to abolish traditional patterns of racial 29 The complete exchange between Senators Cotton and Curtis, insofar as is pertinent here, is as follows: "Mr. COTTON .... "I would assume that anyone who will administer the laws in future years will not discriminate between the races. If I were a Negro, and by dint of education, training, and hard work I had amassed enough property as a Negro so that I had a business of my own-and there are many of them in this country-and I felt that, having made a success of it myself, I wanted to help people of my own race to step up as I had stepped up, I think I should have the right to do so. I think I should have the right to employ Negroes in my own establishment and put out a helping hand to them if I so desired. I do not believe that anyone in Washington should be permitted to come in and say, 'You cannot employ all Negroes. You must have some Poles. You must have some Yankees.' ... "Mr. CURTIS. ... "The Senator made reference to the fact that a member of a minority race might become an employer and should have a right to employ members of his race in order to give them opportunity. Would not the same thing follow, that a member of a majority race might wish to employ almost entirely, or entirely, members of a minority race in order to enhance their opportunity? And is it not true that under title VII as written, that would constitute discrimination? "Mr. COTION. It certainly would, if someone complained about it and felt that he had been deprived of a job, and that it had been given to a member of a minority race because of his race and not because of some other reason." Id., at 13086. This colloquy refutes the Court's statement that "[t]here was no suggestion after the adoption of § 703 (j) that wholly voluntary, race-conscious, affirmative action efforts would in themselves constitute a violation of Title VII." Ante, at 207 n. 7. STEELWORKERS v. WEBER 251 193 REHNQUIST, J., dissenting segregation and hierarchy." Ante, at 204. Immediately after this discussion, both Senator Dirksen and Senator Humphrey took the floor in defense of the 25-employee limit contained in the Dirksen-Mansfield substitute bill, and neither Senator disputed the conclusions of Senators Cotton and Curtis. The Cotton amendment was defeated. 3 On June 10, the Senate, for the second time in its history, imposed cloture on its Members. The limited debate that followed centered on proposed amendments to the Dirksen- Mansfield substitute. Of some 24 proposed amendments, only 5 were adopted. As the civil rights bill approached its final vote, several supporters rose to urge its passage. Senator Muskie adverted briefly to the issue of preferential treatment: "It has been said that the bill discriminates in favor of the Negro at the expense of the rest of us. It seeks to do nothing more than to lift the Negro from the status of inequality to one of equality of treatment." 110 Cong. Rec. 14328 (1964) (emphasis added). Senator Moss, in a speech delivered on the day that the civil rights bill was finally passed, had this to say about quotas: "The bill does not accord to any citizen advantage or preference--it does not fix quotas of employment or school population-it does not force personal association. What it does is to prohibit public officials and those who invite the public generally to patronize their businesses or to apply for employment, to utilize the offensive, humiliating, and cruel practice of discrimination on the basis of race. In short, the bill does not accord special consideration; it establishes equality." Id., at 14484 (emphasis added). Later that day, June 19, the issue was put to a vote, and the Dirksen-Mansfield substitute bill was passed. 252 OCTOBER TERM, 1978 REHNQUIST, J., dissenting 443 u. s. C The Act's return engagement in the House was brief. The House Committee on Rules reported the Senate version without amendments on June 30, 1964. By a vote of 289 to 126, the House adopted H. Res. 789, thus agreeing to the Senate's amendments of H. R. 7152.30 Later that same day, July 2, the President signed the bill and the Civil Rights Act of 1964 became law. IV Reading the language of Title VII, as the Court purports to do, "against the background of [its] legislative history ... and the historical context from which the Act arose," ante, at 201, one is led inescapably to the conclusion that Congress fully understood what it was saying and meant precisely what it said. Opponents of the civil rights bill did not argue that employers would be permitted under Title VII voluntarily to grant preferential treatment to minorities to correct racial imbalance. The plain language of the statute too clearly prohibited such racial discrimination to admit of any doubt. They argued, tirelessly, that Title VII would be interpreted by federal agencies and their agents to require unwilling employers to racially balance their work forces by granting preferential treatment to minorities. Supporters of H. R. 7152 30 Only three Congressmen spoke to the issue of racial quotas during the House's debate on the Senate amendments. Representative Lindsay stated: "[W]e wish to emphasize also that this bill does not require quotas, racial balance, or any of the other things that the opponents have been saying about it." 110 Cong. Rec. 15876 (1964). Representative Mc- Culloch echoed this understanding, remarking that "[t] he bill does not permit the Federal Government t'J require an employer or union to hire or accept for membership a quota of persons from any particular minority group." Id., at 15893. The remarks of Representative MacGregor, quoted by the Court, ante, at 207-208, n. 7, are singularly unhelpful. He merely noted that by adding§ 703 (i) to Title VII of the House bill, "[t]he Senate ... spelled out [the House's] intentions more specifically." 110 Cong. Rec. 15893 (1964). STEELWORKERS v. WEBER 253 193 REHNQUIST, J ., dissenting responded, equally tirelessly, that the Act would not be so interpreted because not only does it not require preferential treatment of minorities, it also does not permit preferential treatment of any race for any reason. It cannot be doubted that the proponents of Title VII understood the meaning of their words, for " [ s] eldom has similar legislation been debated with greater consciousness of the need for 'legislative history,' or with greater care in the making thereof, to guide the courts in interpreting and applying the law." Title VII: Legislative History, at 444. To put an end to the dispute, supporters of the civil rights bill drafted and introduced § 703 (j). Specifically addressed to the opposition's charge, § 703 (j) simply enjoins federal agencies and courts from interpreting Title VII t-o require an employer to prefer certain racial groups to correct imbalances in his work force. The section says nothing about voluntary preferential treatment of minorities because such racial discrimination is plainly proscribed by §§ 703 (a) and (d). Indeed, had Congress intended to except voluntary, race-conscious preferential treatment from the blanket prohibition of racial discrimination in §§ 703 (a) and (d), it surely could have drafted language better suited to the task than § 703 (j). It knew how. Section 703 (i) provides: "Nothing contained in [Title VII] shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation." 78 Stat. 257, 42 U.S. C. § 2000e-2 (i). V Our task in this case, like any other case involving the construction of a statute, is to give effect to the intent of Congress. To divine that intent, we traditionally look first to the 254 OCTOBER TERM, 1978 REHNQUIST, J., dissenting 443 U.S. words of the statute and, if they are unclear, then to the statute's legislative history. Finding the desired result hopelessly foreclosed by these conventional sources, the Court turns to a third source-the "spirit" of the Act. But close examination of what the Court proffers as the spirit of the Act reveals it as the spirit animating the present majority, not the 88th Congress. For if the spirit of the Act eludes the cold words of the statute itself, it rings out with unmistakable clarity in the words of the elected representatives who made the Act law. It is equality. Senator Dirksen, I think, captured that spirit in a speech delivered on the floor of the Senate just moments before the bill was passed: " ... [T] oday we come to grips finally with a bill that advances the enjoyment of living; but, more than that, it advances the equality of opportunity. "I do not emphasize the word 'equality' standing by itself. It means equality of opportunity in the field of education. It means equality of opportunity in the field of employment. It means equality of opportunity in the field of participation in the affairs of government . . . . 1 "That is it. "Equality of opportunity, if we are going to talk about conscience, is the mass conscience of mankind that speaks in every generation, and it will continue to speak long after we are dead and gone." 110 Cong. Rec. 14510 ( 1964). There is perhaps no device more destructive to the notion of equality than the numerus clau.sus-the quota. Whether described as "benign discrimination" or "affirmative action/' the racial quota is nonetheless a creator of castes, a two-edged sword that must demean one in order to prefer another. In passing Title VII, Congress outlawed all racial discrimination, recognizing that no discrimination based on race is benign, that no action disadvantaging a person because of his color is affirmative. With today's holding, the Court introduces into STEELWORKERS v. WEBER 255 193 REHNQUIST, J., dissenting Title VII a tolerance for the very evil that the law was intended to eradicate, without offering even a clue as to what the limits on that tolerance may be. We are told simply that Kaiser's racially discriminatory admission quota "falls on the permissible side of the line." Ante, at 208. By going not merely beyond, but directly against Title VII's language and legislative history, the Court has sown the wind. Later courts will face the impossible task of reaping the whirlwind. 256 OCTOBER TERM, 1978 Syllabus EDMONDS v. COMPAGNIE GENERALE TRANSATLANTIQUE 443 U.S. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR TIIE FOURTH CIRC"CIT No. 78-479. Argued March 19 , 1979-Decided June 27, 1979 Petitioner longshoreman, while employed by a stevedoring concern that respondent shipowner bad engagc>d to unload cargo from its vessel, was injured in the course of that work, and receivl'd benefits for the injury from his employer under the Long8horcmC'n's and Harbor Workers' C-0mpensation Act (Act). Petitioner also brought this n~ligence action against respondent in Federal District Court, wherC'in the jury determined that petitioner was responsible for lOC'f of the total negligence resulting in his injury, that the stevedore's fault, throuii;h a cocrnployee's negliii;ence, contributed 70"{-, and that respondent was accountable for 20%. Following established maritime law, the Distrirt Court reduced the award to petitioner by the 10'1, attributed to his own negligence but refused further to reduce the award against respondent in proportion to the fault of the stevedore-employn. The Court of App<'als reversed , holding that the 1972 Amendments to the Act had altered the traditional admiralty rule by making the shipowner liable only for that share of the totJi.l damages equivalent to the ratio of its fault to the total fault. Held: 1. Under the 1972 Amendments to the Act, Congress did not intend to change the judicially rreated admiralty rule that the shipowner can be made to pay all the damages not dne to t-he plaintiff's own negligence by imposing a proportionate-fault rule. Pp. 263-271. (a) There is no conflict between the provisions of the Amendments that (1) in the evE>nt of injury to a. person covered by the Act "caused by the negligence of a vessel," surh person may bring an action against the vessel as a. third party, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void, and (2) if suoh person was employed by the vessel to provide stevedoring services, no such action shall be permitted 1f the mjury was "caused by the negligence of persons engaged in providing stevedoring services to the vessel." The first provision addresses the recurring situation, such as in this case, where the party injured by the vessel's negligence is a lon)l;&horcman employed by a stevedoring concern, and does not purport to modify the traditional EDMONDS v. COMPAGNIE GENERALE TRANSATL. 257 256 Syllabus admiralty rule. The second provision applies only to the less familiar arrangement where the ship is its own stevedore, and is to be construed as permitting a third-party suit against the shipowner-stevedore when negligence in its nonstevedoring capacity contributes to the injury. Pp. 263-266. (b) The legislative history does not support the Court of Appeals' interpretation of the statute, which modifies the longshoreman's preexisting rights against the negligent vessel. Pp. 266-268. (c) While some inequity appears inevitable in the present statutory scheme, and while the Court of Appeals' proportionate-fault rule may remove some of the inequities, nevertheless it creates others and appears to shift some burdens to the longshoreman. There is nothing to indicate and it will not be presumed that Congress intended to place the burden of the inequity on the longshoreman whom the Act seeks to protect. Pp. 268-271. 2. Nor will this Court change the traditional rule so as to make the vessel liable only for the damages in proportion to its own negligence. By now changing what Congress understood to be the law and did not itself wish to modify, this Court might knock out of kilter the delicate balance effected by Congress concerning the liability of vessels, as third parties, to pay damages to longshoremen who are injured while engaged in stevedoring operations. This Court should stay its hand in these circumstances. Pp. 271- 273. 577 F. 2d 1153, reversed and remanded. WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 273. POWELL, J., took no part in the consideration or decision of the case. Calvin W. Breit argued the cause for petitioner. With him on the briefs was C. Arthur Rutter, Jr. Charles F. Tucker argued the cause for respondent. With him on the brief was John B. King, Jr.* *Briefs of amici curiae urging reversal were filed by David R. Owen for Liberty Mutual Insurance Co.; and by Thomas D. Wilcox for the National Association of Stevedores. Briefs of amici curiae urging affinnance were filed by Randall C. Cole258 OCTOBER TERM, 1978 Opinion of the Court 443U.S. MR. JusTICE WHITE delivered the opinion of the Court. On March 3, 1974, the S.S. Atlantic Cognac, a containership owned by respondent, arrived at the Portsmouth Marine Terminal, Va. Petitioner, a longshoreman, was then employed by the Nacirema Operating Co., a stevedoring concern that the shipowner had engaged to unload cargo from the vessel. The longshoreman was injured in the course of that work, and he received benefits for that injury from his employer under the Longshoremen's and Harbor Workers' Compensation Act. 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq. In addition, the longshoreman brought this negligence action against the shipowner in Federal District Court. A jury determined that the longshoreman had suffered total damages of $100,000, that he was responsible for 10% of the total negligence resulting in his injury, that the stevedore's fault, through a co-employee's negligence, contributed 70%, and that the shipowner was accountable for 20%.1 Following an established principle of maritime law, the District Court reduced the award to the longshoreman by the 10% attributed to his own negligence.2 But also in accordance with maritime law, and the common law as well, the court refused further to reduce the award against the shipowner in proportion to the fault of the employer. The United States Court of Appeals for the Fourth Circuit, with two judges dissenting, reversed en bane, holding that the man for American Export Lines, Inc., et al.; and by Graydon S. Staring for the Pacific Merchant Shipping Association. Paul S. Edelman, Arthur Abarbanel, and Bernard M. Goldstein filed a brief for the As.sociation of Trial Lawyers of America as amicus curiae. 1 The District Court set aside R jury verdict for the longshoreman in an earlier trial because of errors in the jury instructions. 2 The plaintiff's negligence is not an absolute bar to recovery under maritime law, which accepts the concept of comparative negligence of plaintiff and defendant. Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 408-409 (1953); The Max Morris, 137 U. S. 1, 15 (1890); see n. 23, infra. EDMONDS v. COMPAGNIE GENERALE TRANSATL. 259 256 Opinion of the Court 1972 Amendments to the Act, 86 Stat. 1251, had altered the traditional admiralty rule by making the shipowner liable only for that share of the total damages equivalent to the ratio of its fault to the total fault. 577 F. 2d 1153, 1155-1156 (1978) .3 Other Courts of Appeals have reached the contrary conclusion.4 We granted certiorari to resolve this conflict, 439 U. S. 952 (1978), and, once again,5 we have before us a question of the meaning of the 1972 Amendments. I Admiralty law is judge-made law to a great extent, United States v. Reliable Transfer Co., 421 U. S. 397, 409 (1975); Fitzgerald v. United States Lines Co., 374 U.S. 16, 20 (1963), and a longshoreman's maritime tort action against a shipowner was recognized long before the 1972 Amendments, see Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 413--414 (1953), as it has been since. 6 As that law had evolved by 1972, a 3 A panel of the Court of Appeals had earlier reached a similar conclusion. 558 F. 2d 186, 193-194 (1977); seen. 26, infra. 4 Zapico v. Bucyrus-Erie Co., 579 F. 2d 714, 725 (CA2 1978); Samueui v. Empresa Lineas Maritimas Argentinas, 573 F. 2d 884, 887-889 (CA5 1978), cert. pending, No. 78-795; Dodge v. Mitsui Shintaku Ginko K. K. Tokyo, 528 F. 2d 669, 671-673 (CA9 1975), cert. denied, 425 U. S. 944 (1976); Shellman v. United States Lines, Inc., 528 F. 2d 675, 679-680 (CA9 1975), cert. denied, 425 U. S. 936 (1976). See also Cella v. Partenreederei MS Ravenna, 529 F. 2d 15, 20 (CAI 1975) (indicating agreement with Dodge, supra), cert. denied, 425 U.S. 975 (1976); Marant v. Farrell Lines, Inc., 550 F. 2d 142, 145-147 (CA3 1977) (discussing but reserving the issue); id., at 147-152 (Van Dusen, J., concurring) (expressing concern over validity of apportionment of damages). 5 See also Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977); Director, Workers' Compensation Programs v. Rasmussen, 440 U. S. 29 (1979); P. C. Pfeiffer Co. v. Diverson Ford, No. 78-425 (to be reargued October Term 1979). 6 Title 33 U. S. C. § 933 (a), which was unchanged in 1972, states that when a longshoreman "determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive ... compensation or to recover damages against such 260 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. longshoreman's award in a suit against a negligent shipowner would be reduced by that portion of the damages assignable to the longshoreman's own negligence; but, as a matter of maritime tort law, the shipowner would be responsible to the longshoreman in full for the remainder, even if the stevedore's negligence contributed to the injuries.1 This latter rule is in accord with the common law, which allows an injured party to sue a tortfeasor for the full amount of damages for an indivisible injury that the tortfeasor's negligence was a substantial factor in causing, even if the concurrent negligence of others contributed to the incident.8 third person." Section 905 (b), which was added in 1972, states that the longshoreman "may bring an action against [the shipowner] as a third party in accordance with the provisions of section 933 .... " 7 See, e. g., Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U. S. 106, 108, 113 (1974) (longshoreman could have recovered entire damages from shipowner responsible for 50% of the total fault); Hal,cyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U. S. 282, 283 (1952) (shipowner responsible for 25% of negligence required to pay 100% of damages, and contribution unavailable from negligent shoreside contractor, an employer under the Act). See also The Atla,s, 93 U. S. 302 (1876); The Juniata, 93 U. S. 337 (1876). We stated the common-law rule in The Atlas and adopted it as part of admiralty jurisprudence: "I'fothing is more clear than the right of a plaintiff, having suffered such a loss, to sue in a common-law action all the wrong-doers, or any one of them, at his election; and it is equally clear, that, if he did not contribute to the disaster, he is entitled to judgment in either case for the full amount of his Joss." 93 U. S., at 315. 8 Restatement (Second) of Torts §§ 433A, 875, and 879 (1965 and 1979); T. Cooley, Law of Torts 142-144 (1879); W. Prosser, Law of Torts § 47, pp. 297-299, and § 52, pp. 314-315 (4th ed. 1971); cf. Washington & Georgetown R. Co. v. Hickey, 166 U. S. 521, 527 (1897). A tortfeasor is not relieved of liability for the entire harm he caused just because another's negligence was also a factor in effecting the injury. "Nor arc the damages against him diminished." Restatement, supra, § 879, Comment a. Likewise, under traditional tort law, a plaintiff obtaining a judgment against more than one concurrent tortfeasor may satisfy it against any one of them. Id., § 886. A concurrent tortfeasor generally may seek contribution from another, id., § 886A, but he is not relieved from liability for the EDMONDS v. COMPAGNIE GENERALE TRANSATL. 261 256 Opinion of the Court The problem we face today, as was true of similar problems the Court has dealt with in the past, is complicated by the overlap of loss-allocating mechanisms that are guided by somewhat inconsistent principles. The liability of the ship to the longshoreman is determined by a combination of judgemade and statutory law and, in the present context, depends on a showing of negligence or some other culpability. The longshoreman-victim, however, and his stevedore-employeralso a tortfeasor in this case-are participants in a workers' compensation scheme that affords benefits to the longshoreman regardless of the employer's fault and provides that the stevedore's only liability for the longshoreman's injury is to the longshoreman in the amount specified in the statute.• 33 U. S. C. § 905. We have more than once attempted to reconcile these systems. We first held that the shipowner could not circumvent the exclusive-remedy provision by obtaining contribution from the concurrent tortfeasor employer. Halcyon Lines v. H aenn Ship Ceiling & Refitting Corp., 342 U. S. 282 (1952); Pope & Talbot, Inc. v. Hawn, supra; see Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 111- 113 (1974). As a matter of maritime law, we also held that a longshoreman working on a vessel was entitled to the warranty of seaworthiness, Seas Shipping Co. v. Sieracki, 328 U. S. 85, 94 (1946), which amounted to liability without fault for most onboard injuries. 1° However, we went on to hold, as a matter of conentire damages even when the nondef Pndant tortfeasor is immune from liability. Id., § 880. These principles, of course, are inapplicable where the injury is divisible and the causation of ea.ch part can be sepa.rately assigned to each tortfeasor. Id., §§ 433A (1) and 881. 9 Generally, workers' compensation benefits are not intended to compensate for an employee's entire losses. 1 A. Larson, Law of Workmen's Compensation § 2.50 (1978). The 1972 Amendments to the Act, however, make a determined effort to narrow the gap between the harm suffered and the benefits payable. 10 See, e. g., Mitchell v. Trawler Racer, Inc., 362 U. S. 539, 549- 550 (1960). 262 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. tract law, that the shipowner could obtain from the stevedore an express or implied warranty of workmanlike service that might result in indemnification of the shipowner for its liability to the longshoreman. Ryan Stevedoring Co. v. Pan- Atlantic S.S. Corp., 350 U. S. 124 (1956). Against this background, Congress acted in 1972, among other things,1' to eliminate the shipowner's liability to the longshoreman for unseaworthiness and the stevedore's liability to the shipowner for unworkmanlike service resulting in injury to the longshoreman-in other words, to overrule Sieracki and Ryan. See Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 260-261, and n. 18 ( 1977) ; Cooper Stevedoring Co. v. Fritz Kopke, Inc., supra, at 113 n. 6. Though admitting that nothing in either the statute or its history expressly indicates that Congress intended to modify as well the existing rules governing the longshoreman's maritime negligence suit against the shipowner by diminishing damages recoverable from the latter on the basis of the proportionate fault of the nonparty stevedore, 577 F. 2d, at 1155, and n. 2, the en bane Court of Appeals found that such a result was necessary to reconcile two sentences added in 1972 as part of 33 U. S. C. § 905 (b). The two sentences state: "In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall 11 The Amendments also increased compensation benefits, expanded the Act's geographic coverage, and instituted a new means of adjudicating compensation cases. Robertson, Jurisdiction, Shipowner Negligence and Stevedore I=unities under the 1972 Amendments to the Longshoremen's Act, 28 Mercer L. Rev. 515, 516 (1977). 256 EDMONDS v. COMPAGNIE GENERALE TRANSATL. 263 Opinion of the Court be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel." 33 U. S. C. § 905 (b). The Court of Appeals described the perceived conflict in this fashion: "The first sentence says that if the injury is caused by the negligence of a vessel the longshoreman may recover, but the second sentence says he may not recover anything of the ship if his injury was caused by the negligence of a person providing stevedoring services. The sentences are irreconcilable if read to mean that any negligence on the part of the ship will warrant recovery while any negligence on the part of the stevedore will defeat it. They may be harmonized only if read in apportioned terms." 577 F. 2d, at 1155. For a number of reasons, we are unpersuaded that Congress intended to upset a "long-established and familiar principl [ e]" of maritime law by imposing a proportionate-fault rule. Cf. Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952). A In the first place, the conflict seen by the Court of Appeals is largely one of its own creation. Both sides admit that each sentence may be read so as not to conflict with the other. The first sentence addresses the recurring situation, reflected by the facts in this case, where the party injured by the negligence of the vessel is a longshoreman employed by a stevedoring concern. In these circumstances, the longshoreman may sue the vessel as a third party, but his employer, the stevedore, is not to be liable directly or indirectly for any damages that may be recovered. This first sentence overrules Ryan and prevents the vessel from recouping from the 264 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. stevedore any of the damages that the longshoreman may recover from the vessel. But the sentence neither expressly nor implicitly purports to overrule or modify the traditional rule that the longshoreman may recover the total amount of his damages from the vessel if the latter's negligence is a contributing cause of his injury, even if the stevedore, whose limited liability is fixed by statute, is partly to blame. The second sentence of the paragraph is expressly addressed to the different and less familiar arrangement where the injured longshoreman loading or unloading the ship is employed by the vessel itself, not by a separate stevedoring companyin short, to the situation where the ship is its own stevedore.12 In this situation, the second sentence places some limitations on suits against the vessel for injuries caused during its stevedoring operations.'3 Whatever these limitations may be, there is no conflict between the two sentences, and one arises only if the second sentence is read, as the Court of Appeals read it, as applying to all injured longshoremen, whether employed by the ship or by an independent stevedore. Nothing in the legislative history advises this construction of the sentence,14 12 The first proposals in the legislative movement that produced the 1972 Amendments would have made all shipowners statutory employers, not just those also acting as stevedores, and thus cut off any tort action by the longshoreman. S. 525, 92d Cong., 1st Sess., § 1 (1971), Legislative History of the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 (Committee Print compiled for the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare), pp. 393-394 ( 1972). Congress ultimately decided to preserve the longshoremen's tort action against shipowners acting as shipowners. 13 In Jackson v. Lykes Bros. S. S. Co., 386 U. S. 731 (1967) , and R eed v. The Yaka, 373 U.S. 410 (1963), we upheld a longshoreman's negligence or unseaworthiness action against the shipowner-stevedore. 14 See S. Rep. No. 92-1125, p. 11 (1972) (hereinafter S. Rep.) ("Accordingly, the bill provides in the case of a longshoreman who is employed directly by the vessel there will be no action for damages if the injury was caused by the negligence of persons engaged in performing longshoring services") ( emphasis supplied). The House Report, H. R. EDMONDS v. COMPAGNIE GENERALE TRANSATL. 265 256 Opinion of the Court and ,ve see no reason to depart from the language of the statute in this respect. Respondent insists that, even though the two sentences may deal with different business arrangements, problems still arise. If under the first sentence a third-party suit against the vessel is authorized when any part of the negligence causing the injury is that of the vessel, it is argued that suit against the vessel under the second sentence should be barred when any part of the negligence causing the injury is that of a coworker also providing stevedoring services to the vessel. Under this interpretation, the employee of the independent stevedore could recover from the ship where the stevedore was responsible for 99% of the negligence, though a ship's employee performing stevedoring services could not hold the vessel liable if his co-worker's negligence ,vas the slightest cause of the injury.15 This is said to be preposterous and contrary to the legislative intent to treat the vessel that provides its own stevedoring services just like other shipowners when and if it negligently causes injury in its capacity as a shipowner and just like other stevedores when it negligently injures in the course of providing its own loading or unloading services.16 Aside from the fact that the problem suggested would arise only in the application of the second sentence, which is not involved in this case, the argument that the words "caused by the negligence of" in the two sentences must be given the same meaning and that they cannot have the meaning ascribed to them by petitioner's construction of the first sentence, logically leads to the conclusion that the injured Rep. No. 92-1441 (1972), is identical to the Senate Report in all respects material to this case. Accordingly, further references will be only to the Senate Report. 15 In many cases, of course, the shipowner whose act or omission contributed only a very small percentage of the total negligence will avoid liability on the ground of lack of causation. 16 S. Rep. 11-12. I I 266 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. longshoreman should never be able to bring suit against the vessel unless it is the sole cause of the injury. This is a doubly absurd conclusion. It is supported by no one, and to avoid it, it is necessary only to construe th€ second sentence to permit a third-party suit against the vessel providing its own loading and unloading services when negligence in its nonstevedoring capacity contributes to the injury. The second sentence means no more than that all longshoremen are to be treated the same whether their employer is an independent stevedore or a shipowner-stevedore and that all stevedores are to be treated the same whether they are independent or an arm of the shipowner itself. This leaves the question of the measure of recovery against a shipowner, whether or not it is doing its own stevedoring, when as shipowner it is only partially responsible for the negligence, but we are quite unable to distill from the face of the obviously awkward wording of the two sentences any indication that Congress intended to modify the pre-existing rule that a longshoreman who is injured by the concurrent negligence of the stevedore and the ship may recover for the entire amount of his injuries from the ship. B The legislative history strongly counsels against the Court of Appeals' interpretation of the statute, which modifies the longshoreman's pre-existing rights against the negligent vessel. The reports and debates leading up to the 1972 Amendments contain not a word of this concept.11 This silence is most eloquent, for such reticence while contemplating an 17 In the Senate hearings, a plaintiff's lawyer mentioned diminution of damages as a possible solution so long as the shipowner's liability for unseaworthiness was retained. The only committee member present rejected this proposal, and Congress apparently never gave it serious consideration. See Hearings on S. 2318, S. 525, and S. 1547 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 354-355 (1972). EDMONDS v. COMPAGNIE GENERALE TRANSATL. 267 256 Opinion of the Court important and controversial change in existing law is unlikely.18 Moreover, the general statements appearing in the legislative history concerning § 905 (b) are inconsistent with what respondent argues was in the back of the legislators' minds about this specific issue. The Committees repeatedly refer to the refusal to limit the shipowner's liability for negligence, 19 which they felt left the vessel in the same position as a land-based third party whose negligence injures an employee.2° Because an employee generally may recover in full from a third-party concurrent tortfeasor,21 these statements are hardly indi-cative of an intent to modify the law in the respect found by the Court of Appeals. At the very least, one would expect some hint of a purpose to work such a change, but there was none. 18 Laborers' lnternatio-nal Union, Local No. 1057 v. NLRB, 186 U. S. App. D. C. 13, 20,567 F. 2d 1006, 1013 (1977). The debate over § 905 (b) involved the removal of the shipowner's liability for unseaworthiness. That occurred as a concomitant of ending liability under the stevedore's warranty of workmanlike service, which was a quid pro quo for increasing :he compensation benefits. See S. Rep. 9-10. Some Congressmen objected to removing the vessel's liability for unseaworthiness because that would deny millions of dollars of relief for longshoremen's injuries. 118 Cong. Rec. 36382--36384 (1972) (Reps. Eckhardt, Dent, and Ashley). Indeed, the concern shared by some Congressmen over any modification of third-party actions "had political ramifications which . . . resulted in forestalling any improvements in the ... Act for over twelve years." S. Rep. 9. Those Congressmen likely would have assailed the diminution of the longshoreman's recovery in proportion to the stevedore's fault if they had any inkling that the Amendments did that. 19 ld., at 2, 5, 10. 20 Id., at 8 ("where a longshoreman or other worker covered under this Act is injured through the fault of the vessel, the vessel should be liable for damages as a third party, just as land-based third parties in nonmaritime pursuits are liable for damages when, through their fault, a worker is injured"); accord, id., at 10 and 11. 21 See n. 8, supra; 2A Larson, supra n. 9, § 75.22, at 14-263; Soule, Toward an Equitable and Rational Allocation of Employee Injury Losses in Cases with Third Party Liability, 1979 Ins. Counsel J. 201, 202-208. 268 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. The shipowner denies that the legislative history is so onesided, relying upon statements that vessels "will not be chargeable with the negligence of the stevedore or [the] employees of the stevedore." S. Rep. 11; see 577 F. 2d, at 1156 n. 2. But in context these declarations deal only with removal of the shipowner's liability under the warranty of seaworthiness for acts of the stevedore 22-even nonnegligent ones.23 C Finally, we note that the proportionate-fault rule adopted by the Court of Appeals itself produces consequences that we doubt Congress intended. It may remove some inequities, but it creates others and appears to shift some burdens to the longshoreman. As we have said, § 905 permits the injured longshoreman to sue the vessel and exempts the employer from any liability to the vessel for any damages that may be recovered. Congress clearly contemplated that the employee be free to sue the third-party vessel, to prove negligence and causation on the vessel's part, and to have the total damages set by the court or jury without regard to the benefits he has received or to which he may be entitled under the Act. Furthermore, 22 S. Rep. 9-11. 23 E. g., Italia Societa per Azioni di Na vigazione v. Oregon Stevedoring Co., 376 U.S. 315 (1964). The shipowner also relies upo:i the Reports' reference to "comparative negligence," S. Rep. 12, but in context it is obvious that Congress alluded only, and not erroneously, see Prosser, Comparative Negligence, 51 Mich. L. Rev. 465 n. 2 (1953), to the comparative negligence of the plaintiff longshoreman and the defendant shipowner-a concept that, unlike the proposal before us today, was well established in admiralty. See S. Rep. 12; 33 U. S. C. § 905 (a); n. 2, supra. It would be particularly curious for Congress to refer expressly to the established principle of comparative negligence, yet say not a word about adopting a new rule limiting the liability of the shipowner on the basis of the nonparty employer's negligence. EDMONDS v. COMPAGNIE GENERALE TRANSATL. 269 256 Opinion of the Court under the traditional rule, the employee may recover from the ship the entire amount of the damages so determined. If he recovers less than the statutory benefits, his employer is still liable for the statutory amount. Under this arrangement, it is true that the ship will be liable for all of the damages found by the judge or jury; yet its negligence may have been only a minor cause of the injury. The stevedore-employer may have been predominantly responsible; yet its liability is limited by the Act, and if it has lien rights on the longshoreman's recovery it may be out-ofpocket even less. Under the Court of Appeals' proportionate-fa.ult rule, however, there will be many circumstances where the longshoreman will not be able to recover in any way the full amount of the damages determined in his suit against the vessel. If, for example, his damages are at least twice the benefits paid or payable under the Act and the ship is less than 50% at fault, the total of his statutory benefits plus the reduced recovery from the ship will not equal his total damages. More generally, it would appear that if the stevedore's proportionate fault is more than the proportion of compensation to actual damages, the longshoreman will always fall short of recovering the amount that the fact.finder has determined is necessary to remedy his total injury, even though the diminution is due not to his fault, but to that of his employer.2' But the impact of the proportionate-fault rule on the longshoreman does not stop there. Under § 933 (b), an administrative order for benefits operates as an assignment to the stevedore-employer of the longshoreman's rights against the third party unless the longshoreman sues within six months. And a corresponding judicially created lien in the employer's 24 See Zapico v. Bucyrus-Erie Co., 579 F. 2d, at 725 ("one is still left to wonder why the longshoreman injured by the negligence of a third party should recover less when his employer has also been negligent than when the employer has been without fault"). 270 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. favor operates where the longshoreman himself sues.25 In the past, this lien has been for the benefits paid up to the amount of the recovery.26 And under § 933 (c), which Congress left intact in 1972, where the stevedore-employer sues the vessel as statutory assignee it may retain from any recovery an amount equal in general to the expenses of the suit, the costs of medical services and supplies it provided the employee, all compensation benefits paid, the present value of benefits to be paid, plus one-fifth of whatever might remain. Under the Court of Appeals' proportionate-fault system, the longshoreman would get very little, if any, of the diminished recovery obtained by his employer. Indeed, unless the vessel's proportionate fault exceeded the ratio of compensation benefits to total damages, the longshoreman would receive nothing from the third-party action, and the negligent stevedore might recoup all the compensation benefits it had paid. Some inequity appears inevitable in the present statutory scheme, but we find nothing to indicate and should not presume that Congress intended to place the burden of the inequity on the longshoreman whom the Act seeks to protect.2' Further, the 1972 Amendments make quite clear that "the employer shall not be liable to the vessel for such damages directly or indirectly," 33 U. S. C. § 905 (b) ( emphasis supplied) ,28 and that with the disappearance of the ship's contribution and indemnity right against the stevedore the latter 25 See The Etna, 138 F. 2d 37 (CA3 1943). 26 The original Fourth Circuit panel opinion would have made the shipowner liable for an amount equal not just to his proportionate fault, but also to the employer's lien. 558 F. 2d, at 194. The en bane court refused to make the vessel liable for the additional amount of the lien and declined to rule on any alteration of the lien since the employer was not party to the suit. 577 F. 2d, at 1156. 27 Cf. NortheMt Marine Terminal, Co. v. Caputo, 432 U. S., at 279. 28 "It is the Committee's intention to prohibit such recovery under any theory including, without limitation, theories based on contract or tort." EDMONDS v. COMPAGNIE GENERALE TRANSATL. 271 256 Opinion of the Court should no longer have to appear routinely in suits between longshoreman and shipowner.2 1) Consequently, as we have done before, we must reject a "theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts ... a remedial Act " Northew;t Marine Terminal Co. v. Caputo, 432 U. S., at 278-279. II Of course, our conclusion that Congress did not intend to change the judicially created rule that the shipowner can be made to pay all the damages not due to the plaintiff's own negligence does not decide whether we are free to and should change that role so as to make the vessel liable only for the damages in proportion to its own negligence. Indeed, some amici in support of respondent share the view that Congress did not change the rule but argue that this Court should do so. We disagree. Though we recently acknowledged the sound arguments supporting division of damages between parties before the court on the basis of their comparative fault, see United States v. Reliable Transfer Co., 421 U. S. 397 (1975),30 we S. Rep. 11; see Pope & Talbot, Inc. v. Hawn, 346 U. S., at 412 ("reduction of r the shipowner's] liability at the expense of [the employer] would be the substantial equivalent of contribution"); Dodge v. Mitsui Shintaku Ginko K. K. Tokyo, 528 F. 2d, at 673; Steinberg, The 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act: Negligence Actions by Longshoremen against Shipowners-A Proposed Solution, 37 Ohio St. L. J. 767, 792-793 (1976). 29 See S. Rep. 9 ("much of the financial resources which could better be utilized to pay improved compensation benefits were now being spent to defray litigation costs" of stevedores in third-party actions). 30 As noted in n. 8, supra, the general rule is that a person whose negligence is a substantial factor in the plaintiff's indivisible injury is entirely liable even if other factors concurred in causing the injury. Normally, the chosen tortfeasor may seek contribution from another concurrent tortf easor. If both are already before the court-for example, when the 272 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. are mindful that here we deal with an interface of statutory and judge-made law. In 1972 Congress aligned the rights and liabilities of stevedores, shipowners, and longshoremen in light of the rules of maritime law that it chose not to change.31 "One of the most controversial and difficult issues plaintiff himself is the concurrent tortfeasor or ,vhen the two tortfeasors are suing each other as in a collision case like Reliable Tran.sf er-a separate contribution action is unnecessary, and damages are simply allocated accordingly. But the stevedore is not a party and cannot be made a party here, so the Reliable Transfer contribution shortcut is inapplicable. Contribution remedies the unjust enrichmei1t of the concurrent tortfeasor, see Leflar, Contribution and Indemnity Between Tortfeasors, 81 U. Pa. L. Rev. 130, 136 (1932), and while it may sometimes limit the ultimate loss of the tortfeasor chosen by the plaintiff, it does not justify allocating more of the loss to the innocent employee, who was not unjustly enriched. See also H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 525 ( tent. ed. 1958). Our prior cases recognize that. Even before Reliable Transfer, we apportioned damages between vessels that collided and sued one another. Reliable Transfer merely changed the apportionment from equal division to division on the basis of relative fault. But we did not upset the rule that the plaintiff may recover from one of the colliding vessels the damage concurrently caused by tho negligence of both. Compare Reliable Transfer Co. (apportionment of damages on basis of relative fault between plaintiff and defendant who concurrently caused grounding), and The Schoaner Catharine v. Dickinson, 17 How. 170 (1855) (equal apportionment of damages between libelant and respondent vessels where both at fault in collision), with The Atlas, 93 U. S. 302 (1876) (in suit by insurer of cargo against one of two ships whose concurrent fault caused collision, the insurer is entitled to recover in full, despite the rule of equal apportionment, because the insurer is not a wrongdoer), and The Juniata, 93 U.S. 337, 340 (1876) (same; if respondent vessel has any rights against nonparty vessel, they "must be settled in another proceeding"). 31 Of course, our decision does not necessarily have any effect on situations where the Act provides the workers' compensation scheme but the third-party action is not governed by principles of maritime law. Cf. Dawson v. Contractors Transp. Corp., 151 U. S. App. D. C. 401, 467 F. 2d 727 (1972) (private employees in the District of Columbia). See also infra, at 273. EDMONDS v. COMPAGNIE GENERALE TRANSATL. 273 256 BLACKMUN, J., dissenting which [Congress was] required to resolve ... concern [ ed] the liability of vessels, as third parties, to pay damages to longshoremen who are injured while engaged in stevedoring operations." S. Rep. 8. By now changing what we have already established that Congress understood to be the law,82 and did not itself wish to modify, we might knock out of kilter this delicate balance. As our cases advise, we should stay our hand in these circumstances. Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U. S., at 112; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U. S., at 285-286. Once Congress has relied upon conditions that the courts have created, we are not as free as we would otherwise be to change them. A change in the conditions would effectively alter the statute by causing it to reach different results than Congress envisioned. Indeed, Congress might have intended to adopt the existing maritime rule even for third-party actions under the Act that are not within the admiralty jurisdiction, though we need not and do not reach that issue today. Accordingly, we reverse the judgment below and remand for proceedings consistent with this opinion. It is so ordered. MR. JuSTICE POWELL took no part in the consideration or decision of this case. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE STEVENS join, dissenting. The jury in this case found that the shipowner, the stevedore, and the longshoreman were each partially responsible 32 Respondent seeks support for its position in the results of "a meeting attended by representatives of labor and industry, Committee members and Committee staff." Brief for Respondent 16. Respondent asserts that the participants at this meeting arrived at a compromise whereby the courts were to fashion the rules to be applied in concurrent-fault situations. No official record of this meeting exists, and subsequent legislative history does not so much as hint at such a compromise. We are not told 274 OCTOBER TERM, 1978 BLACK1\1UN, J., dissenting 443 U.S. for the latter's (petitioner Stanley Edmonds) injury. A member of the ship's crew instructed Edmonds to remove a jack from the rear wheel of a large cargo container. As Edmonds went behind the container to remove the jack, another longshoreman backed a truck into the container, causing it to roll backwards and pin Edmonds against the bulkhead. The jury concluded that the shipowner, as the employer of the crewman, was 20% responsible for the accident; the stevedore, as the employer of the longshoreman driving the truck, was 70% responsible; and Edmonds himself was 10% responsible. The Court holds that the shipowner, who was 20% negligent, must pay 90% of Edmonds' damages. Edmonds, because of his comparative negligence, must absorb 10% of the damages himself. But the stevedore, who, the jury determined, was 70% at fault, will recoup its statutory compensation payments out of the damages payable to Edmonds, and thus will go scot-free.1 The Court does not, and indeed could not, def end this result on grounds of reason or fairness. Today's ruling means that concurrently negligent stevedores will be insulated from the obligation to pay statutory workmen's compensation benefits, and thus will have inadequate incentives to provide a safe working environment for their employees. It also means that shipowners in effect will be held vicariously liable for the negligence of stevedores, and will have to pay damages far out of proportion to their degree of fault. Nor does the Court suggest that its holding is compelled by the language or legisthat the Senators and Representatives who voted for the Amendments when they reached the floor knew of the compromise, and we can only presume that they acted with the existing state of the law, not the probability of future judicial change, in mind. 1 As of December 18, 1978, the stevedore's insurance company had paid Edmonds a total of $49,152 in statutory benefits. Brief for Liberty Mutual Insurance Co. as Amicus Curiae 2. Under the judicially created lien sanctioned by the Court's opinion, ante, at 269-----270, the stevedore's insurer will recover this entire sum out of the $90,000 damages awarded to Edmonds. EDMONDS v. COMPAGNIE GENERALE TRANSATL. 275 256 BLACKMUN, J., dissenting lative history of § 5 (b) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S. C. § 905 (b). The Court appears to advance two justifications for its decision: first, that principles of comparative negligence did not apply under the traditional law of admiralty, and Congress intended to preclude judicial modification of that law when it passed the 1972 Amendments to the LHWCA; and second, that a rule of comparative negligence would be unfair to injured longshoremen. Since I find both purported justifications wholly inadequate to support the Court's decision, I respectfully dissent. I The Court begins with the proposition that, under the law maritime as it existed in 1972, the shipowner could not reduce its liability because of the comparative negligence of the stevedore: I am not entirely convinced. None of the decisions cited by the Court, ante, at 260 n. 7, stands for this proposition; the cases relied upon all concern the conceptually distinct problem~to which the Court has given varying answers-of whether there is a right of contribution among joint tortfeasors. 2 I am willing to assume, however, for purposes of argument, that the Court has correctly stated the "traditional" admiralty rule. The Court next states that Congress itself did not impose a rule of comparative negligence when it adopted § 905 (b) in 1972. Again, I am not altogether sure. As Chief Judge Haynsworth demonstrated in his opinion for the en bane court 2 Technically, there is no issue of "joint and several" liability here, for the stevedore has statutory immunity from tort liability. 33 U. S. C. § 905 (a). Nor are the policies behind the common-law rule of joint and several liability applicable. The common-law rule serves largely to protect plaintiffs from defendants who are unable to pay judgments entered against them. The LHWCA, however, provides safeguards to ensure the payment of compensation benefits. 33 U. S. C. § 932. There is little need, therefore, to make the shipowner liable for full damages to protect the longshoreman from impecunious stevedores. 276 OCTOBER TERM, 1978 BLACKMUN, J., dissenting 443 U.S. below, there is some tension between the first and second sentences of § 905 (b) .3 These sentences are most easily reconciled if one assumes that Congress was thinking in terms of comparative negligence. The Court points out that there are other, less plausible, ways of reconciling the two sentences. Although I feel there is room for debate on this question, I am again willing to assume, for purposes of argument, that Congress did not impose a rule of comparative negligence in thirdparty suits under the LHWCA. I cannot agree, however, with the Court's third proposition: that Congress intended to prohibit this Court from fashioning a rule of comparative negligence in suits for damages by a longshoreman against the shipowner. It is well established that courts exercising jurisdiction in maritime affairs have broad powers of interstitial rulemaking. As the Court stated in United States v. Reliable Transfer Co., 421 U. S. 397, 409 ( 1975), "the Judiciary has traditionally taken the lead in formulating flexible and fair remedies in the law maritime, and 'Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law.' Fitzgerald 3 The first sentence reads: "In the event of injury to a person covered under this chapter cau.sed by the negligence of a vessel, then such person ... may bring an action against such vessel as a third party .... " The second sentence reads: "If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vC'ssel." (Emphasis added.) If the phrase "caused by the negligence" in both sentences is given the same meaning, and interpreted to mean "caused by any negligence what.soever," then an employee of an independent stevedoring company could recover full damages under the first sentence if the shipowner was 1 % negligent. and the stevedore 99% negligent. A longshoreman hired directly by the shipowner, however, would be denied any recovery at all under the second sentence if persons involved in doing stevedoring work committed as little as 1 % of the negligence, even if the shipowner was otherwise 99% negligent. If the statutory phrase "caused by the negligence" is interpreted to import the notion of comparative negligence, this anomaly does not arise. EDMONDS v. COMPAGNIE GENERALE TRANSATL. 277 256 BLACKMUN, J., dissenting v. United States Lines Co., 374 U. S. 16, 20." I find nothing in the language or legislative history of § 905 (b) that indicates Congress intended to reverse this presumption with respect to third-party actions under the LHWCA. The Court suggests that Congress, in enacting § 905 (b), "aligned the rights and liabilities of stevedores, shipowners, and longshoremen" on the specific assumption that the shipowner would not be allowed to reduce its liability because of the stevedore's comparative negligence. Ante, at 272. The legislative history belies this notion. Congress had two narrow objectives in mind in enacting § 905 (b) in 1972: to overcome this Court's decision in Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and its decision in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124 (1956). See S. Rep. No. 92-1125, pp. 8-11 (1972). These decisions had created a form of circuitous liability whereby the longshoreman, under Seas Shipping, sued the shipowner under a theory of unseaworthiness; the shipowner, under Ryan Stevedoring, obtained full indemnity from the stevedore; and the stevedore ended up paying actual damages rather than statutory compensation. Congress overruled the strict-liability theory of Seas Shipping to ensure that " [ t] he vessel will not be chargeable with the negligence of the stevedore or employees of the stevedore." S. Rep. No. 92-1125, supra, at 11. It eliminated the Ryan Stevedoring action for indemnification because if "the vessel's liability is to be based on its own negligence, and the vessel will no longer be liable under the unseaworthiness doctrine for injuries which are really the fault of the stevedore, there is no longer any necessity for permitting the vessel to recover the damages for which it is liable to the injured worker from the stevedore .... " S. Rep. No. 92-1125, supra, at 11. These statements of legislative purpose are as consistent, or more consistent, with a system of comparative negligence, than with a congressional assumption that the shipowner would be fully liable for the concurrent negligence of the stevedore. 278 OCTOBER TERM, 1978 BLACKMUN, J., dissenting 443 U.S. The legislative history indicates that, if anything, Congress intended to preserve the role of the federal courts in filling in the contours of § 905 (b). The House and Senate Reports state that the liability of a shipowner in an action brought by a longshoreman should be analogous to that which "would render a land-based third party in non-maritime pursuits liable under similar circumstances." S. Rep. No. 92-1125, supra, at 11. The Report emphasizes, however, that this does not mean state tort law is to govern third-party negligence suits against the vessel. "[TJhe Committee does not intend that the negligence remedy authorized in the bill shall be applied differently in different ports depending on the law of the State in which the port may be located. The Committee intends that legal questions which may arise in actions brought under these provisions of the Jaw shall be determined as a matter of Federal law. In that connection, the Committee intends that the admiralty concept of comparative negligence, rather than the common law rule as to contributory negligence, shall apply in cases where the injured employee's own negligence may have contributed to causing the injury. Also, the Committee intends that the admiralty rule which precludes the defense of 'assumption of risk' in an action by an injured employee shall also be applicable." Id., at 12. In other words, Congress specifically reaffirmed the admiralty law tradition in the 1972 Amendments, and intended that this Court would continue to resolve "legal questions which may arise in actions brought under these provisions" in accordance with that tradition. In short, in this case, as in Rel-iable Transfer, 421 U. S., at 409, "[nJo statutory or judicial precept precludes a change in the rule [that the shipowner is fully liable for the concurrent negligence of the stevedore], and indeed a proportional fault rule would simply bring recovery [as between the steveEDMONDS v. COMPAGNIE GENERALE TRANSATL. 279 256 BLACKMUK, J., dissenting dore and shipowner J into line with the rule of admiralty law long since established [as between the longshoreman and the shipowner]." II I am also convinced that no injustice to injured longshoremen would result from a rule of comparative negligence. A rule of comparative negligence in no case would reduce the longshoreman's total award below his statutory workmen's compensation benefits.4 The rule of comparative negligence would affect only the relative proportion of statutory benefits and damages in the longshoreman's total compensation package. In the present case, for example, a rule of comparative negligence would mean the longshoreman would receive 20% damages and 80% statutory benefits, as opposed to 90% damages and 10% statutory benefits. At first blush, it might appear that there is something unfair about reducing the total potential award of the longshoreman in this manner. But when the different purposes of the statutory compensation scheme and the third-party action for negligence are considered, it can be seen that this result is fully consistent with the policies of the statute. The LHWCA statutory compensation scheme, like other workmen's compensation plans, is based on a compromise. The longshoreman accepts less than full damages for work-related injuries. In exchange, he is guaranteed that these statutory benefits will be paid for every work-related injury without regard to fault. The third-party tort action, in contrast, embodies an element of risk. The longshoreman faces the prospect of an increased award, but also the possibility of receiving nothing if the shipowner is found not to have been negligent. • Those benefits, after the 1972 Amendments, are relatively generous. The LHWCA claimant receives two-thirds of his lost wages, free of income taxes, and adjusted periodically for inflation, 33 U. S. C. §§ 906, 908; his medical and rehabilitation expenses are paid, § 907; and his attorney's fees are paid. § 928. 280 OCTOBER TERM, 1978 BLACK:MUN, J., dissenting 443 U.S. The problem of perceiving the equities arises because of the interaction of the compensation scheme and the tort scheme. If a longshoreman is injured while working on a vessel, and the stevedore is 100% at fault, no one considers it unjust that the longshoreman receives only statutory benefits. The award of less than full damages is the quid pro quo for the guarantee of recovery without regard to the employer's fault. Similarly, if a longshoreman is injured and the shipowner is 100% to blame, everyone agrees that it is fitting and proper for the shipowner to pay full damages. The Court, however, perceives "some inequity" in not allowing the longshoreman to obtain full damages when the shipowner has been determined to be only 20% negligent. Presumably, this same "inequity" would result if the longshoreman did not obtain full damages when the shipowner was 10% or 5% or even 1 % negligent. This is not equity, however, but a windfall. Under the Court's rule, the longshoreman is guaranteed statutory compensation without regard to fault and is given a riskfree chance to obtain full damages if the shipowner is found negligent in even the slightest degree. A more evenhanded equity, in my view, would be for the longshoreman to recover damages for that portion of the injury for which the shipowner's negligence is responsible, and to recover the balance in statutory compensation, representing that portion of the injury for which the longshoreman is guaranteed an award regardless of fault.5 III In sum, this case presents the relatively common situation where a statute is open to two interpretations, and the legislative history, although instructive as to the overriding purposes of Congress, provides no specific guidance as to which 5 See Coleman & Daly, Equitable Credit: Apportionment of Damages According to Fault in Tripartite Litigation Under the 1972 Amendments to the Longshoremcn's and Harbor Workers' Compensation Act, 35 Md. L. Rev. 351 (1976). - ..... EDMONDS v. COMPAGNIE GENERALE TRANSATL. 281 256 BLACK~UN, J., dissenting interpretation Congress would have adopted if it had addressed the precise issue. Our duty, in such a case, is to adopt the interpretation most consonant with reason, equity, and the underlying purposes Congress sought to achieve. If we are wrong, Congress can, as it has in the past, step in and adopt some other solution. But the problem should not be resolved by complacently accepting an unfair and unjust result, on the assumption the choice between the two interpretations ideally should be made by Congress. Under that approach, the Court and the country at large may end up with nothing more than an unfair and unjust result. I I I 282 OCTOBER TERM, 1978 Syllabus 443 U.S. CALIFANO, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. BOLES ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS No. 78-808. Argued April 25, 1979---Decided June 27, 1979 Held: Section 202 (g) (1) of the Social Security Act restricting "mother's insurance benefits" to widows and divorced wives of wage earners does not violate the equal protection component of the Due Process Clause of the Fifth Amendment by thus denying such benefits to the mother of an illegitimate child because she was never married to the wage earner who fathered the child. Pp. 288-297. (a) Such denial bears a rational relation to the Government's desire to ease the economic dislocation that occurs when the wage earner dies and the surviving parent is left with the choice to stay home and care for the children or to go to work. Congress could reasonably conclude that a woman who never married the wage earner is far less likely than one who did to be dependent upon the wage earner at the time of his death. Pp. 288-293. (b) The incidental and, to a large degree, speculative impact of § 202 (g) (1) on illegitimate children as a class is not sufficient to treat the denial of "mother's insurance benefits" to unwed mothers as discrimination against the children. The focus of these benefits is on the economic dilemma of the surviving spouse or former spouse, whereas the needs, as such, of the minor children of the dec,eased wage earner are addressed through the separate "child's insurance benefits" provided by the Act. Pp. 293-296. 464 F. Supp. 408, reversed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, PowELL, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, WHITE, and BLACKMUN, JJ., joined, post, p. 297. Harriet S. Shapiro argued the cause for appellant. With her on the briefs were Solicitor General M cCree, Assistant Attorney General Babcock, William Kanter, and Susan A. Ehrlich. CALIFANO v. BOLES 283 282 Opinion of the Court Herbert Semmel argued the cause for appellees. With him on the brief was Nancy Duff Campbell. MR. JUSTICE REHNQUIST delivered the opinion of the Court. Since the Depression of the 1930's, the Government has taken increasingly upon itself the task of insulating the economy at large and the individual from the buffeting of economic fortune. The federal old-age, survivors, and disability insurance provisions of the Social Security Act (SSA) are possibly the pre-eminent examples: attempts to obviate, through a program of forced savings, the economic dislocations that may otherwise accompany old age, disability, or the death of a breadwinner. As an exercise in governmental administration, the social security system is of unprecedented dimension; in fiscal year 1977 nearly 150 million claims were filed.1 Given this magnitude, the number of times these SSA claims have reached this Court warrants little surprise.2 Our 1 Social Security Administration's Office of Management and Administration, The Year in Review: The Administration of Social Security Programs 1977, p. ii (July 1978). 2 Califano v. Yama.saki, 442 U.S. 682 (1979); Califano v. Jobst, 434 U. S. 47 (1977); Califano v. Webster, 430 U. S. 313 (1977); Califano v. Goldfarb, 430 U. S. 199 (1977); Mathews v. De Castro, 429 U. S. 181 (1976); Norton v. Mathews, 427 U. S. 524 (1976); Mathews v. Lucas, 427 U.S. 495 (1976); Mathews v. Eldridge, 424 U.S. 319 (1976); Weinberger v. Salfi, 422 U. S. 749 (1975); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Jimenez v. Weinberger, 417 U. S. 628 (1974); Richardson v. Wright, 405 U.S. 208 (1972); Richardson v. Belcher, 404 U.S. 78 (1971); Richardson v. Perales, 402 U. S. 389 (1971); Flemming v. Nestor, 363 U. S. 603 (1960). Ylany other cases have been disposed of by summary action. This Court has also had numerous cases involving claims arising under federal-state cooperative welfare programs authorized by the SSA. See, e. g., Graham v. Richardson, 403 U. S. 365 (1971) (Assistanoe to Persons Permanently and Totally Disabled); California Human Resources Dept. v. Java, 402 U. S. 121 (1971) (unemployment insurance); Dandridge v. Williams, 397 U. S. 471 (1970) (Aid to Families With Dependent Children). 284 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. cases evidence a sensitivity to the legislative and administrative problems posed in the design of such a program and in the adjudication of claims on this scale. The problems are generally of two types. The first is categorization.3 In light of the specific dislocations Congress wishes to alleviate, it is necessary to define categories of beneficiaries. The process of categorization presents the difficulties inherent in any linedrawing exercise where the draftsman confronts a universe of potential beneficiaries with different histories and distinct needs. He strives for a level of generality that is administratively practicable, with full appreciation that the included class has members whose "needs" upon a statutorily defined occurrence may not be as marked as those of isolated individuals outside the classification. "General rules are essential if a fund of this magnitude is to be administered with a modicum of efficiency, even though such rules inevitably produce seemingly arbitrary consequences in some individual cases." Califano v. Jobst, 434 U.S. 47, 53 (1977). A process of case-by-case adjudication that would provide a "perfect fit" in theory would increase administrati~e expenses to a degree that benefit levels would probably be reduced, precluding a 3 The bulk of our cases fall under this heading. Califano v. Jobst, supra (termination of dependent child's bC'nefits upon his marriage); Califano v. Webster, supra (gender-based differences in benefit computation); Califano v. Goldfarb, supra (gender-based differences in defining dependent of deceased wage earner); Mathews v. De C(])Jtro. supra (denial of "wife's insurance benefits" to divorced women under 62 years of age); Norton v. Mathews, supra (illrgitimate children denied presumption of dependency enjoyed by legitimates); Mathews v. Lucas, supra (same as Norton); Weinberger v. Salfi, supra (duration-of-relationship requirements for receipt of mother's or child's insurance benefits); Weinberger v. Wiesenfeld, supra (grnder-based denial of survivor's benefits to widowers); .Jimenez v. Weinberger, supra (denial of disability insurance benefits to illegitimate children born after onset of wage earner's disability); Richardson v. Belcher, supra (reduction in social security benefits to reflect state workmen's compensation benefits); Flemming v. Nestor, supra (termination of insurance benefits to aliens upon their deportation). CALIFANO v. BOLES 285 282 Opinion of the Court perfect fit in fact. Mathews v. Luca.s, 427 U. S. 495, 509 (1976); Weinberger v. Salfi, 422 U.S. 749, 776-777 (1975). The second type of problem that has been brought to this Court involves the Social Security Administration's procedures for dispute resolution where benefits have been denied, decreased, or terminated because the Administration has concluded that the claimant is not entitled to what he has requested or to what he has received in the past.4 Again the Court has been sensitive to the special difficulties presented by the mass administration of the social security system. After the legislative task of classification is completed, the administrative goal is accuracy and promptness in the actual allocation of benefits pursuant to those classifications. The magnitude of that task is not amenable to the full trappings of the adversary process lest again benefit levels be threatened by the costs of administration. Mathews v. Eldridge, 424 U. S. 319, 343-349 (1976); Richardson v. Perales, 402 U. S. 389, 406 (1971). Fairness can best be assured by Congress and the Social Security Administration through sound managerial techniques and quality control designed to achieve an acceptable rate of error. This case involves a challenge to a categorization. Appellees Norman J. Boles and Margaret Gonzales represent a nationwide class of all illegitimate children and their mothers who are allegedly ineligible for insurance benefits under the SSA because in each case the mother was never married to the wage earner who fathered her child. Section 202 (g) (1) of the SSA, as amended, 42 U.S. C. § 402 (g)(l), only makes "mother's insurance benefits" available to widows and di- • Califano v. Yamasaki. supra (lack of prerecoupment oral hearing in overpayment cases); Mathews v. Eldridge, supra (question whether evidentiary hearing necessary before termination of disability insurance benefits); Richardson v. Wright, supra (challenge to procedures employed in suspension or termination of disability benefits); Richardson v. Perales, supra (written reports by physicians who have examined disability insurance claimants are "substantial evidence" supporting denial of benefits). 286 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. vorced wives.5 By virtue of this Court's decision in Weinberger v. Wiesenfeld, 420 U. S. 636 ( 1975), "mother's insurance benefits" are available to widowers, leaving the title 5 Section 202 (g) (1), as set forth in 42 U. S. C. § 402 (g)(l), provides: "(1) The widow and every surviving divorced mother (as defined in section 416 (d) of this title) of an individual who died a fully or currently insured individual, if such widow or surviving divorced mother- " (A) is not married, "(B) is not entitled to a widow's insurance benefit, " ( C) is not entitled to old-age insurance benefits, or is entitled to old-age insuranoo benefits each of which is less than three-fourths of the primary insurance amount of such individual, "(D) has filed application for mother's insurance benefits, or was entitled to wife's insurance benefits on the basis of the wages and self-employment income of such individual for the month preceding the month in which he died, "(E) at the time of filing such application has in her care a child or such individual entitled to a child's insurance benefit, and "(F) in the case of a surviving divorced mother- " (i) the child referred to in subparagraph (E) is her son, daughter, or legally adopted child, and "(ii) the benefits referred to in such subparagraph are payable on the basis of such individual's wages and self-employment income, "shall (subject to subsection (s) of this section) be entitled to a mother's insurance benefit for each month, beginning with the first month after August 1950 in which she becomes so entitled to such insurance benefits and ending with the month prec.eding the first month in which any of the following occurs: no child of such deceased individual is entitled to a child's insurance benefit, such widow or surviving divorced mother becomes entitled to an old-age insurance benefit equal to or exceeding three-fourths of the primary insurance amount of such deceased individual, she becomes entitled to a widow's insuranoe benefit, she remarries, or she dies. Entitlement to such benefits shall also end, in the case of a surviving divorced mother, with the month immediately preceding the first month in which no son, daughtN, or legally adopted child of such surviving divorced mother is entitled to a child's insurance benefit on the basis of the wages and self-employment income of such deceased individual." Section 216 (d)(3), 42 U.S. C. §416 (d)(3), states: "(3) The term 'surviving divorced mother' means a woman divorced from an individual who has died, but only if (A) she is the mother of his CALIFANO v. BOLES 287 282 Opinion of the Court of these benefits a misnomer. There we held that the provision of such benefits only to women violated the Due Process Clause of the Fifth Amendment. Norman W. Boles died in 1971. He left a widow, Nancy L. Boles, and their two children, who were each promptly awarded child's insurance benefits. Nancy Boles receives mother's insurance benefits. Appellee Gonzales lived with Norman W. Boles for three years before his marriage to Nancy Boles and bore a son by him, Norman J. Boles.6 Gonzales sought mother's insurance benefits for herself and child's benefits for her son. Her son was granted benefits, but her personal request was denied because she had never been married to the wage earner. Gonzales exhausted her administrative remedies and then filed this suit in the United States District Court for the Western District of Texas. The District Court certified a class of "all illegitimate children and their mothers who are presently ineligible for Mother's Insurance Benefits solely because 42 U. S. C. § 402 (g) ( 1) restricts such benefits to women who were once married to the fathers of their children." App. to Juris. Statement la-2a. The District Court found that § 202 (g) ( 1) of the SSA was unconstitutional. There were three steps in its logic. First, it read Weinberger v. Wiesenfeld, supra, as holding that mother's insurance benefits are chiefly for the benefit of the child. It quoted from a passage in that opinion where this Court observed: "[Section] 402 (g), linked as it is directly to responsibility for minor children, was intended to permit women to elect son or daughter, (B) she legally adopted his son or daughter while she was married to him and while such son or daughter was under the age of 18, (C) he legally adopted her son or daughter while she was married to him and while such son or daughter was under the age of 18, or (D) she was married to him at the time both of them legally adopted a child under the age of 18." 6 Norman W. Boles had acknowledged his paternity of Norman J. Boles. 288 OCTOBER TERM, 1978 Opinion of the Court 443 u. s. not to work and to devote themselves to the care of children .... "That the purpose behind § 402 (g) is to provide children deprived of one parent with the opportunity for the personal attention of the other could not be more clear in the legislative history." 420 U. S., at 648-649. On the basis of this language it then concluded that for purposes of equal protection analysis, the pertinent discrimination in this case is not unequal treatment of unwed mothers, but rather discrimination against illegitimate children. In its final step the District Court held that the application of § 202 (g)(l) at issue here is unconstitutional, relying on cases of this Court invalidating on constitutional grounds legislation that discriminated against illegitimates solely because of their status at birth. E. g., Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Gomez v. Perez, 409 U. S. 535 (1973); Jimenez v. Weinberger, 417 U. S. 628 (1974); Trimble v. Gordon, 430 U.S. 762 (1977). We noted probable jurisdiction, 439 U. S. 1126 (1979), and now conclude that the District Court incorrectly analyzed the equal protection issue in this case. We accordingly reverse. As this Court noted in Weinberger v. Wiesenfeld, supra, at 643, § 202 (g) "was added to the Social Security Act in 1939 as one of a large number of amendments designed to 'afford more adequate protection to the family as a unit.' H. R. Rep. No. 728, 76th Cong., 1st Sess., 7 (1939)." The benefits created in 1939 "were intended to provide persons dependent on the wage earner with protection against the economic hardship occasioned by loss of the wage earner's support." Califano v. Jobst, 434 U.S., at 50; see Mathews v. De Castro, 429 U. S. 181, 185- 186 (1976). Specifically, § 202 (g) "was intended to permit women [and now men] to elect not to work and to devote themselves to care of children." 420 U. S., at 648. The animating concern was the economic dislocation that occurs when the wage earner dies and the surCALIF ANO v. BOLES 289 282 Opinion of the Court v1vmg parent is left with the choice to stay home and care for the children or to go to work, a hardship often exacerbated by years outside the labor force. "Mother's insurance benefits" were intended to make the choice to stay home easier. But the program was not designed to be, and we think is not now, a general system for the dispensing of child-care subsidies. 7 Instead, Congress sought to limit the category of beneficiaries to those \Vho actually suffer economic dislocation upon the death of a wage earner and are likely to be confronted at that juncture with the choice between employment or the assumption of full-time child-care responsibilities. In this light there is an obvious logic in the exclusion from § 202 (g) of women or men who have never married the wage earner. "Both tradition and common experience support the conclusion that marriage is an event which normally marks an important change in economic status." Califano v. Jobst, supra, at 53. Congress could reasonably conclude that a woman who has never been married to the wage earner is far less likely to be dependent upon the wage earner at the time of his death. He was never legally required to support her and therefore was less likely to have been an important source of income. Thus, the possibility of severe economic dislocation upon his death is more remote. We confronted an analogous classification in Mathews v. De Castro, supra, which involved a challenge to the exclusion of divorced women from "wife's income benefits." In concluding that the classification did not deny equal protection, we observed: "Divorce by its nature works a drastic change in the economic and personal relationship between a husband 1 Califano v. Jobst, 434 U.S., at 52: "The statute is designed to provide the wage earner and the dependent members of his family with protection against the hardship occasioned by his loss of earnings; it is not simply a welfare program generally benefiting needy persons." See also Mathews v. De Castro, 429 U.S., at 185-186. 290 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. and wife. . . . Congress could have rationally assumed that divorced husbands and wives depend less on each other for financial and other support than do couples who stay married. The problems that a divorced wife may encounter when her former husband becomes old or disabled may well differ in kind and degree from those that a woman married to a retired or disabled husband must face. . . . She may not feel the pinch of the extra expenses accompanying her former husband's old age or disability. . . . It was not irrational for Congress to recognize this basic fact in deciding to defer monthly payments to divorced wives of retired or disabled wage earners until they reach the age of 62." 429 U. S., at 188-189. Likewise, Weinberger v. Salfi, 422 U.S. 749 (1975), upheld a 9-month duration-of-relationship eligibility requirement for the wife and stepchildren of a deceased wage earner. The stated purpose of the requirement was "to prevent the use of sham marriages to secure Social Security payments." Id., at 767. We found that the only relevant constitutional argument was whether "the test [ appellees could not] meet [was] not so rationally related to a legitimate legislative objective that it [ could] be used to deprive them of benefits available to those who [did] satisfy that test." Id., at 772. We recognized that the statutory requirement would deny benefits in some cases of legitimate, sincere marriage relationships. "While it is possible to debate the wisdom of excluding legitimate claimants in order to discourage sham relationships, and of relying on a rule which may not exclude some obviously sham arrangements, we think it clear that Congress could rationally choose to adopt such a course. Large numbers of people are eligible for these programs and are potentially subject to inquiry as to the validity of their relationships to wage earners. . . . Not only does the prophylactic approach thus obviate the 282 CALIFANO v. BOLES 291 Opinion of the Court necessity for large numbers of individualized determinations, but it also protects large numbers of claimants who satisfy the rule from the uncertainties and delays of administrative inquiry into the circumstances of their marriages." Id., at 781-782. It is with this background that we must analyze what the District Court in this case perceived to be the flaw in relying on dependence as a rationale for the statutory distinction between married and unmarried persons. The District Court pointed out that in 1972 Congress lifted the requirement that divorced women seeking mother's insurance benefits show that they were in some measure dependent on the wage earner immediately before his death.8 It seized this fact as refutation of any characterization of these benefits as an attempt to ease the dislocation of those who had been dependent on the deceased. We think the District Court is demanding a precision not warranted by our cases. Certainly Congress did not envision such precision. The legislative history surrounding the devolution of support requirements suggests that its effect on mother's insurance benefits was an incidental and relatively minor byproduct of 8 Originally, nothing similar to mother's insurance benefits for divorced women was provided by the SSA. Then in 1950 these benefits, subject to limitations not relevant here, were made available to a surviving divorced wife, if she had not remarried, had a child in her care entitled to child's insurance benefits, and at the time of the wage earner's death had been receiving at least one-half of her support from him. Act of Aug. 28, 1950, § 101 (a), 64 Stat. 485. In 1965, the remarriage bar to mother's insurance benefits was relaxed. A woman's rights as a surviving divorced mother would be restored if her second marriage ended in divorce. Moreover, a showing that she was receiving or entitled to rrceive "substantial contributions" from the wage earner at the time of his death would suffice in lieu of a showing that she received at least one-half of her support from the wage earner. Old-Age, Survivors, and Disability Amendments of 1965, § 308, 79 Stat. 377-379. Finally, in 1972 Congress made the changes discussed by the District Court. Social Security Amendments of 1972, § 114 (c), 86 Stat. 1348. 292 OCTOBER TER:\1, 1978 Opinion of the Court 443 U.S. Congress' core concern: older women who were married to wage earners for over 20 years-women who of ten only knew work as housewives-and ·who ·were not eligible for surviving divorced wife's insurance benefits because state divorce laws did not permit alimony or because they had accepted a property settlement in lieu of alimony.0 The Social Security laws 9 Interestingly, younger women receiving mother's benefits are not even mentioned in the Committee Reports on the 1972 amendment. "Benefits, under present law, arc payable to a divorced wife age 62 or older and a divorced widow age 60 or older if her marriage lasted at least 20 years before the divorce, and to a surviving divorced mother. In order to qualify for any of these benefits a divorced woman is requirrd to show that: (1) she was receiving at least one-half of her support from her former husband; (2) she was receiving substantial contributions from her former husband pursuant to a written agreement; or (3) there was a court order in effect providing for substantial contributions to her support by her former husband. "In some States the courts are prohibited from providing for alimony, and in these States a divorced woman is precluded from meeting the third support requirement. Even in States which allow alimony, the court may have decided at the time of the divorce that the wife was not in need of financial support. Moreover, a divorced woman's eligibility for social security benefits may depend on the advice she received at the time of her divorce. If a woman accepted a property settlement in lieu of alimony, she could, in effect, have disqualified herself for divorced wife's, divorced widow's, or surviving divorced mother's benefits. "The intent of providing benefits to divorced women is to protect women whose marriages are dissolved when they are far along in years-particularly housewives who have not been able to work and earn social security protection of their own. The committee believes that the support requirements of the law have operated to deprive some divorced women of the protection they should have received and, therefore, recommends that these requirements be eliminated. The requirement that the marriage of a divorced wife or widow must have lasted for at least 20 years before the divorce would not be changed." S. Rep. No. 92-1230, p. 142 (1972). See H. R. Rep. No. 92-231, pp. 54-55 (1971). When the 1965 changes were made there was only passing mention of younger women receiving mother's insurance benefits. S. Rep. No. 404, 89th Cong., 1st Sess., 108 (1965). CALIFANO v. BOLES 293 282 Opinion of the Court have maintained uniform support requirements for divorced ,vife's, divorced widow's, and surviving divorced mother's benefits. Obviously administration is thereby simplified. Undoubtedly, some younger divorced wives ·with children of deceased wage earners in their care who could not meet the old support requirements incidentally benefit from Congress' concern that many older women were being victimized once by state divorce laws and again by the Social Security laws.10 However, when Congress seeks to alleviate hardship and inequity under the Social Security laws, it may quite rightly conceive its task to be analogous to painting a fence, rather than touching up an etching. We have repeatedly stated that there is no constitutional requirement that "a statutory provision ... filte[r] out those, and only those, who are in the factual position which generated the congressional concern reflected in the statute." Weinberger v. Sa.lfi, 422 U. S., at 777; Mathews v. De Castro, 429 U. S., at 189. In sum, we conclude that the denial of mother's insurance benefits to a woman who never married the wage earner bears a rational relation to the Government's desire to ease economic privation brought on by the wage earner's death. But the appellees argue that to characterize the problem in this fashion is to miss the point because at root this case involves discrimination against illegitimate children. Quite naturally, those who seek benefits denied them by statute will frame the constitutional issue in a manner most favorable to their claim. The proper classification for purposes of equal 10 There are no precise figures as to the extra cost to the insurance fund posed by this exp:rnsion of mother's insurance benefits. It can be inferred from the attention this expansion received in the legislative history that its cost was a relatively Rmall part of the $23 million annual increase in benefits estimatui for eliminating support requirements across the board. See S. Rep. No. 92-1230, supra, at 142. The Department of Health, Education, and Welfare has estimated that compliance with the District Court's decision in this case will cost $60 million annually. 294 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. protection analysis is not an exact science, but scouting must begin with the statutory classification itself. Only when it is shown that the legislation has a substantial disparate impact on classes defined in a different fashion may analysis continue on the basis of the impact on those classes. We conclude that the legislation in this case does not have the impact on illegitimates necessary to warrant further inquiry whether § 202 (g) is the product of discriminatory purposes. See Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 (1979). "Mother's insurance benefits" are distinct from "child's insurance benefits." The latter are benefits paid to the minor children of the deceased wage earner 11 and, as noted, Gonzales' son did receive child's insurance benefits. The benefit to a child as a result of the parent or guardian's receipt of mother's insurance benefits is incidental: mother's insurance benefit payments do not vary with the number of children within the recipient's care, they are not available in the foster care context, and they are lost on remarriage or if the surviving parent earns a substantial income- all despite the needs of the child. Thus, the focus of these benefits is on the economic dilemma of the surviving spouse or former spouse; the child's needs as such are addressed through the separate child's insurance benefits.12 Nor 11 In Jimenez v. Weinberger, 417 U. S. 628 (1974), this Court struck down an absolute bar to child's insurance benefits for illegitimate children whose paternity had never been acknowledged or affirmed by evidence of domicile with, or support by, the wage earner before the onset of the disability. 12 There is obviously a significant difference between this interpretation of the statutory purpose and that subscribed to by the author of this opinion in his separate concurrence in Weinberger v. Wiesenfeld, 420 U. S., at 655. To the extent that these interpretations conflict, the author feels he can do no better than quote Mr. Justice Jackson, concurring in McGrath v. Kristensen, 340 U.S. 162, 177-178 (1950): "Precedent, however, is not lacking foT ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, recanting views he CALIFANO v. BOLES 295 282 Opinion of the Court is it invariably true that whatever derivative benefits are enjoyed by the child whose parent or guardian receives mother's insurance benefits will not be enjoyed by illegitimate children. If the illegitimate child is cared for by the deceased wage earner's wife, she will receive mother's insurance benefits even though she has no natural children of her own and never adopted the child.13 And many legitimate children live in households that are not headed by individuals eligible for mother's benefits. In order to make out a disparate impact warranting further scrutiny under the Due Process Clause of the Fifth Amendment, it is necessary to show that the class which is purportedly discriminated against consequently suffers significant deprivation of a benefit or imposition of a substantial burden. If the class of beneficiaries were expanded in the fashion pressed by appellees, the beneficiaries, in terms of those who would exercise dominion over the benefits and whose freedom of choice would be enhanced thereby, would be unwed mothers, not illegitimate children. Certainly every governmental benefit has a ripple effect through familial relationships and the economy generally, its propagation determined by the proximity and sensibilities of others. Possibly the largest class of incidental beneficiaries are those who are gratified in a nonmaterial way to see a friend or relative rehad pressed upon the Court as Attorney General of Maryland in Brown v. Maryland, 12 Wheat. 419. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' Andrews v. Styrap, 26 L. T. R. (N. S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: 'My own error, however, can furnish no ground for its being adopted by this Court ... .' United States v. Gooding, 12 Wheat. 460, 478. . . . If there are other ways of gracefully and good-naturedly surrendering former views to a better considered position, I invoke them all." 13 Compare 42 U.S. C. §402(g)(l)(E) with §402(g)(l)(F)(i). 296 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. ceive benefits. Some limits must be imposed for purposes of constitutional analysis, and we conclude that in this case the incidental and, to a large degree, speculative impact on illegitimates as a class is not sufficient to treat the denial of mother's insurance benefits to unwed mothers as discrimination against illegitimate children. The SSA and its amendments are the product of hard choices and countervailing pressures. The desire to alleviate hardship wherever it is found is tempered by the concern that the social security system in this country remain a contributory insurance plan and not become a general welfare program. General welfare objectives are addressed through public assistance legislation. In light of the limited resources of the insurance fund, any expansion of the class of beneficiaries invariably poses the prospect of reduced benefits to individual claimants. We need look no further than the facts of this case for an illustration. The benefits available to Norman W. Boles' beneficiaries under the Act are limited by his earnings record. The effect of extending benefits to Gonzales will be to reduce benefits to Nancy Boles and her children by 20%.14 Thus, the end result of extending benefits to Gonzales may be to deprive Nancy Boles of a meaningful choice between full-time employment and staying home with her children, thereby undermining the express legislative purpose of mother's insurance benefits. We think Congress could rationally choose to concentrate limited funds where the need is likely to be greatest. Because of our disposition of the Fifth Amendment issue, we need not and do not reach the appellant's other arguments: that the District Court improperly certified a nationwide class that included individuals who were not shown to have met the jurisdictional requirements of § 205 (g) of the 14 Brief for Appellant 29 n. 22. CALIFANO v. BOLES 297 282 MARSHALL, J., dissenting SSA, 42 U. S. C. § 405 (g) ,15 and that sovereign immunity barred that court's award of retroactive monetary relief. The judgment of the District Court is accordingly Reversed. MR. JUSTICE MARSHALL, with whom MR. JusTICE BRENNAN, MR. JusTicE WHITE, and MR. JUSTICE BLACKMUN join, dissenting. The critical question in this dispute is whether § 202 (g) of the Social Security Act, 42 U. S. C. § 402 (g), discriminates against unmarried parents or against illegitimate children. The Court determines that the intended beneficiaries of § 202 (g) are dependent spouses, and that the statute therefore distinguishes between categories of parents. Having thus characterized the statute, the Court concludes that the use of marital status as an index of dependency on a deceased wage earner is permissible under Califano v. Jobst, 434 U. S. 47, 50 (1977), and Mathews v. De Castro, 429 U. S. 181, 185~186 (1976). If, however, as the District Court found, the statute benefits children, then it incorporates a distinction based on legitimacy which must be tested under the more rigorous standards of Jimenez v. Weinberger, 417 U.S. 628 (1974), and Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972). Determining the proper classification for purposes of equal protection analysis is, to be sure, not "an exact science." Ante, at 294. But neither is it an exercise in statutory revision. And only by disregarding the clear legislative history, structure, and effect of the Mother's Insurance Benefits Program can the Court characterize dependent spouses, rather than children, as the intended beneficiaries of § 202 (g). Just four Terms ago, a unanimous Court concluded that the clear purpose underlying § 202 (g) "is to provide children deprived of one parent with the opportunity for the personal attention 15 See Califano v. Yamasaki, 442 U.S. 682 (1979). i L 298 OCTOBER TERM, 1978 MARSHALL, J ., dissenting 443 u. s. of the other." Weinberger v. Wiesenfeld, 420 U.S. 636, 648- 649 (1975).1 Indeed, the author of today's opinion for the Court concurred separately in Wiesenfeld on the ground that an examination of the legislative history and statutory context of § 202 (g) "convincingly demonstrates that the only purpose of [ § 202 (g) l is to make it possible for children of deceased contributing workers to have the personal care and attention of a surviving parent." 420 U. S., at 655 (REHNQUIST, J., concurring) (emphasis added). That same legislative history and statutory context now persuade the Court that the "animating concern" of § 202 (g) is to assist a surviving spouse, and that any benefit to a child is merely "incidental." Ante, at 288-289, 294. I cannot agree. In my judgment, the history and structure of the Act establish as "convincingly" here as they did in Wiesenfeld that § 202 (g) was designed to aid children. And because denial of support for illegitimates bears no substantial relationship to that purpose, I respectfully dissent. I The Court concedes, as it must, that Congress intended the Mother's Insurance Benefits Program to enable surviving spouses to stay at home and care for their children. Ante, at 288. Despite this concession, the Court manages to conclude that the sole beneficiaries of the program, for equal protection purposes, are the spouses who provide care, not the children who receive it. Unencumbered by a.ny direct support from the legislative history, the Court reaches this conclusion by positing that the program was designed to aid surviving parents who "actually suffer economic dislocation upon the death of a wage earner." Ante, at 289. Given this a.ssert€d pur- 1 In Wiesenfeld, the Court held that § 202 (g) 's denial of benefits to widowers reflected impermissible gender-based discrimination. In so ruling, we reasoned that classifications based on the sex of the surviving parent bore no relationship to the statutory objective of enabling children who had lost one parent to receive full-time care by the other. See 420 U.S., at 651. CALIFANO v. BOLES 299 282 MARSHALL, J., dissenting pose, the Court finds "obvious logic" in § 202 (g) 's exclusion of unwed mothers, since ucongress could reasonably conclude that a woman who has never been married to the wage earner is far less likely to be dependent upon the ,vage earner at the time of his death." Ante, at 289. However, neither the history nor structure of the statute supports the Court's determination that Congress enacted § 202 (g) to assist dependent spouses rather than their children. Aid to surviving parents was first extended under the Social Security Act Amendments of 1939 in the form of "widows' benefits." The Advisory Council on Social Security, which formulated the program, indicated that payments were "intended as supplements to the orphans' benefits with the purpose of enabling the widow to remain at home and care for the children." Final Report of the Advisory Council on Social Security 31 (1938). Proposals to grant benefits to dependent widows ,vithout minor children were rejected, on the apparent theory that young childless women could work and older widows would have savings or grown children able to assist them. Report of the Social Security Board, H. R. Doc. No. 110, 76th Cong., 1st Sess., 7-8 (1939). See also H. R. Rep. No. 728, 76th Cong., 1st Sess., 36-37 (1939); Hearings on the Social Security Act Amendments of 1939 before the House Committee on ·ways and Means, 76th Cong., 1st Sess., 61 (1939). Subsequent re-enactments of the program reflected no change in the underlying statutory objective-to allow surviving parents "to stay home and care for [their] children instead of working." 1971 Advisory Council on Social Security, Reports on the Old-Age, Survivors, and Disability Insurance and Medicare Programs 30 (1971). Moreover, the entire structure of the statute belies the Court's determination that Congress intended mother's insurance to aid a wage earner's economically dependent spouse rather than his children. Section 202 (g) imposes no express requirement of dependency. As the District Court noted, 300 OCTOBER TERM, 1978 MARSHALL, J., dissenting 443 u. s. mothers and their legitimate children may obtain benefits under § 202 (g) "regardless of whether [ the wage earner] was living with them or supporting them at the time of his death. or even if he never lived with or supported them." 464 F. Supp. 408, 412 (WD Tex. 1978). By contrast, an unmarried mother and her child who were fully dependent on the insured nonetheless remain ineligible for assistance under § 202 (g). That divorced parents and their children qualify for mother's insurance further undercuts the Court's attempted linkage between the marital requirement and dependency. A woman previously married to a deceased ,vage earner is eligible for benefits even if neither she nor her child ever received support from the father, and even if the father vvas excused from any legal support obligations in the divorce proceedings. Indeed, a mother whose second marriage tBrrninates in death or divorce may claim benefits on the account of her first husband although in all likelihood, any entitlement to support terminated upon her remarriage. See 464 F. Supp., at 413.2 In short, nothing in the structure or history of the statute sustains the Court's conclusion that the purpose of § 202 (g) is to benefit dependent spouses as opposed to children. Equally untenable is the Court's further determination that § 202 (g) has insufficient discriminatory impact on illegitimates to warrant further analysis. See ante, at 294. In con- 2 The Court dismisses this awkward fact with an equally awkward metaphor. In the Court's view, Congress' inclusion of divorced parents represents an attrmpt to "alleviate hardship and inequity under the Social Security laws." Ante, at 293. And, under the Court's analysis, when Congress undertakes such an endeavor, "it may quite rightly conceive its task to be analogous to painting a fence, rather than touching up an etching." Ibid. But this cha.racteri:.ia.tion of legislative technique elides the issue relevant here, the purpose of the statutory scheme. Metaphor cannot mask the significance of Congress' decision to confer benefits on divorc,ed spouses. That these individuals may obtain mother's insurance of itself negates the proposition that the painter-draftsman was concerned with assisting dependent parents rather than their children. CALIFANO v. BOLES 301 282 MARSHALL, J., dissenting eluding that § 202 (g) has no such disparate effect, the Court reasons first that "[t]he benefit to a child as a result of the parent or guardian's receipt of mother's insurance benefits is incidental: mother's insurance benefit payments do not vary with the number of children within the recipient's care, they are not available in the foster care context, and they are lost on remarriage or if the surviving parent earns a substantial income .... " Ante, at 294. But none of these enumerated eligibility requirements support the Court's characterization of children as "incidental" rather than intended beneficiaries of § 202 (g). On the contrary, these restrictions, together with two others the Court neglects to mention, are consistent with the stated purpose of the program- to afford parents who would otherwise be forced to work the option of caring for their children at home. That objective is plainly served by eligibility limitations excluding individuals whose economic resources already permit such a choice. Factors including remarriage, outside income, and qualification for foster care payments directly or indirectly reflect such resources; the number of the recipient's children does not. Similarly, the conditions that mother's benefits cease when a child reaches 18 or leaves the parent's care and custody, see § 202 (d)(5), 42 U. S. C. § 402 (d)(5), also reinforce the conclusion that children are the actual beneficiaries of § 202 (g). For the parent's eligibility continues "only so long as it is realistic to think that the children might need their parent at home." Weinberger v. Wiesenfeld, 420 U. S., at 650 n. 17. The Court further submits that the discriminatory impact of § 202 (g) is not of constitutional dimension because an illegitimate child could conceivably obtain benefits if he leaves the home of his natural mother to live with his deceased father's wife. This suggestion, of course, presupposes both an extraordinary beneficence on the part of the wife, and no 302 OCTOBER TERM, 1978 MARSHALL, J., dissenting 443 U. 8. strong attachment between the natural mother and her child, assumptions which the Court does not and could not defend.3 And forcing a child to forgo living with his natural mother in order to obtain assistance under § 202 (g) hardly comports with the articulated purpose of the program, to encourage parental care. In any event, as this Court's prior holdings amply demonstrate, a statute that disadvantages illegitimates as a class is not saved simply because not all members of that class are penalized under all conceivable circumstances. For example, in both Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), and Jimenez v. Weinberger, 417 U.S. 628 (1974), we rejected an argument that illegitimates suffered no discrimination under statutes extending benefits to legitimate children but only to certain categories of illegitimates.4 Similarly, in 3 Although statistics in this area are difficult to obtain, available data reveal that a very high percentage of illegitimate children reside with their natural mothers. Approximately one-half of all illegitimate births are to women under age 20, see Department of Health, Education, and Welfare, Monthly Vital Statistics Report, Final Natality Statistics, 1977, p. 19 (Feb. 1979), :rnd studies indicate that between 86% and 93% of these mothers are living with their children. See Report by the Alan Guttmacher Institute, Research and Development Division of the Planned Parenthood Federation of America, 11 Million Teenagers 11 (1976) (hereinafter cited as Planned Parenthood Report); F. Furstenberg, Unplanned Parenthood 174 (1966) (hereinafter cited as Furstenberg); Zelnik & Kantner, the Resolution of Teenage First Pregnancies, 6 Family Planning Perspectives 77 (1974) (Table 5). Comparable figures have been reported for mothers over age 20. Soc Wisconsin Department of Health and Social Services, Unmarried Mothers in Wisconsin, 1974 (1975) (Tables 11, 13). The remaining children are residing with either adoptive parents or other individuals. See Planned Parenthood Report 11; Furstenberg 174. One in-depth study found that the latter separations were generally attributable to the mother's illness or inability to obtain child care during hours of employment. lbul. 4 Under the workmen's compensation statute at issue in Weber, illegitimate children could recover benefits on the same basis as legitimates only if acknowledged by their fathers. See 406 U. S., at 167-168. Jimenez involved a statute granting disability insurance benefits to illegitimates CALIFANO v. BOLF.8 303 282 MARSHALL, J., dissenting Trimble v. Gordon, 430 U. S. 762 (1977), the Court held unconstitutional a statute denying illegitimate children the right to inherit from their intestate fathers even though illegitimates whose fathers wrote wills were not disadvantaged by the provision. So too here, the Court cannot dismiss the discriminatory impact of § 202 ( g) by a "hypothetical reshuffling of the facts," Trimble v. Gordon, supra, at 774, particularly one that disregards the very relationship between a surviving single parent and child which the statute was intended to foster. Finally, the Court suggests that § 202 (g) does not disadvantage illegitima.tes in any constitutionally cognizable sense because it is surviving spouses, not their children, who "exercise dominion over the benefits and whose freedom of choice [is] enhanced thereby." Ante, at 295. However, that the parent makes the decision to stay at home does not render the child any less the beneficiary of that choice. As a practical matter, the parent also exercises "dominion" over the children's insurance benefits afforded by § 202 ( d) of the Act, 42 U. S. C. § 402 (d) , but the child is nonetheless the recipient. Children now become "incidental" and "speculative" beneficiaries of § 202 (g) only because the Court declares them to be so. I would adhere to the understanding, unanimously expressed in Wiesenfeld, that the Mother's Insurance Program, both in purpose and effect, is a form of assistance to children. Thus, the statute's eligibility restrictions should be evaluated as they in fact operate, as discrimination based on legitimacy. II Statutes that foreclose opportunities solely because of a child's status at birth represent a particularly invidious form where: ( 1) state law permitted them to inherit from the wage earner; (2) their illegitimacy resulted from formal or nonobvious defects in their parents' marriage ceremony; (3) they had subsequently been legitimated; or (4) the disabled wage-earning parent had contributed to their support or had lived with them prior to disability. See 417 U. S., at 631, and n. 2. 304 OCTOBER TERM, 1978 MARSHALL, J ., dissenting 443 u. s. of discrimination. Gomez v. Perez, 409 U. S. 535 (1973); Levy v. Louigi,ana, 391 U. S. 68 (1968). To penalize an illegitimate child for conduct he could not prevent and a status he cannot alter is both "illogical and unjust." Weber v. Aetna Casualty & Surety Co., supra, at 175. Accordingly, classifications based on legitimacy violate the equal protection requirements of the Fifth Amendment 5 unless they bear a close and substantial relationship to a permissible governmental interest. See Jimenez v. Weinberger, supra, at 637; Mathews v. Lucas, 427 U. S. 495, 509-510 (1976). In arguing that § 202 ( g) meets this test, the Secretary suggests that legitimate children as a class are more likely than illegitimates to be dependent on the insured wage earner at the time of his death. Therefore, because the statute establishes a maximum amount payable to any one wage earner's survivors, the Secretary contends that the exclusion of illegitimates is an appropriate means of allocating finite resources to those most likely t-0 have suffered economically from the insured's death. Brief for Appellant 28. The threshold difficulty with this argument is that § 202 (g)'s marital restriction bars recovery by illegitimates regardless of whether any other individuals are eligible to claim benefits on a particular wage earner's account. Thus, the restriction defended here as a rationing device withholds assistance to illegitimates even when there are no competing claimants among whom to ration. Insofar as the exclusion of illegitimates is designed to allocate limited funds on the basis of need, it is not carefully tailored to achieve that objective. See Trimble v. Gordon, supra, at 770-771; Gomez v. Perez, supra, at 538.0 5 See Vance v. Bradley, 440 U. S. 93, 94-95, n. 1 (1979); Bolling v. Sharpe, 347 U. S. 497, 499 (1954). 0 That Congress has established a maximum which cannot fully provide for all survivors affords no basis for preferring legitimate rhildren over dependent illegitimates. See Weber v. Aetna Casualty & Surety Co., 406 CALIFANO v. BOLES 305 282 MARSHALL, J ., dissenting But even if § 202 (g) 's marital restriction operated only in contexts of multiple claimants, it could not withstand scrutiny under Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972), and Jimenez v. Weinberger, 417 U.S. 628 (1974). In both those cases, the Court recognized that the marital status of parents is not a sufficiently accurate index of the economic needs of their children to warrant conclusively denying assistance to illegitimates. At issue in Weber was a workmen's compensation scheme which provided that unacknowledged illegitimate children could recover on the account of an insured only if payments to other eligible claimants did not exhaust the maximum allowable benefits. Noting that an unacknowledged illegitimate child "may suffer as much from the loss of a parent as a child born within wedlock," 406 U. S., at 169, the Court declined to view status at birth as an adequate proxy for economic dependence. See also Richardson v. Griffin, 409 U. S. 1069 (1972), summarily aff'g 346 F. Supp. 1226 (Md.); Richardson v. Davis, 409 U. S. 1069 (1972), summarily aff'g 342 F. Supp. 588 (Conn.). Again in Jimenez v. Weinberger, we struck down a statute granting social security benefits to a disabled worker's legitimate children born after the onset of disability but not to afterborn illegitimate children except under certain limited circumstances. See n. 4, supra.. The constitutional infirmities identified in Jimenez are equally evident in this case; that statute, like § 202 ( g), was overinclusive to the extent it aided legitimate children not actually dependent on the insured wage earner, and underinclusive to the extent it withheld assistance from illegitimate children who were in fact dependent. And here, as in Jimenez, it serves no purpose consistent with the aims of the Social Security Act to deny illegitimates all op- U. S. 164, 175-176 (1972); Richardson v. Griffin, 409 U. S. 1069 (1972), summarily aff'g 346 F. Supp. 1226 (Md.); Richardson v. Davis, 409 U. S. 1069 (1972), summarily aff'g 342 F. Supp. 588 (Conn.). 306 OCTOBER TERM, 1978 MARSHALL, J., dissenting 443U.S. portunity to establish their dependence and their concomitant right to insurance benefits. See 417 U. S., at 636.7 We cannot, of course, expect perfect congruence between legislative ends and means in the administration of a complex statutory scheme. See ante, at 284--285. But neither should we give our imprimatur to distinctions needlessly predicated on a disfavored social status, particularly one beyond an individual's power to affect. Although a "blanket and conclusive exclusion" of illegitimate children may be an administratively expedient means of screening for dependence under § 202 (g), see Jimenez v. Weinberger, supra, at 636, it is also inaccurate, unjust, and, under this Court's settled precedents, unconstitutional. I respectfully dissent. 7 Unlike the statute upheld in Mathews v. Lucas, 427 U.S. 495 (1976), which presumed the dependence of legitimate children but required proof of dependence by illegitimates, § 202 (g) conclusively bars recovery even to those illegitimates who could establish that they were supported by the deceased wage earner at the time of his death. JACKSON v. VIRGINIA 307 Syllabus JACKSON V. VIRGINIA ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 78-5283. Argued March 21', 1979-Decided June 28, 1979 Petitioner was convicted of first-degree murder after a bench trial in a Virginia court, and his motion and petition in the state courts to set aside the conviction on the ground that there was insufficient evidence of premeditation, a necessary element of first-degree murder, were denied. He then brought a habeas corpus proceeding in Federal District Court, which, applying the "no evidence" criterion of Thompson v. Louisville, 362 U. S. 199, found the record devoid of evidence of premeditation and granted the writ. Applying the same criterion, the Court of Appeals reversed, holding that there was some evidence that petitioner had intended to kill the victim. Held: 1. A federal habeas corpus court must consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. In re Winship, 397 U. S. 358. Pp. 313-324. (a) In re Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proofdefined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. Pp 313-316. (b) After In re Winship, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whethPr the jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The relevant question is whether after viewing the evidence in the light most favorable to the proscrution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Thompson "no evidence" rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt. Pp. 316-320. (c) In a challenge to a state conviction brought under 28 U. S. C. § 2254, which requires a federal court to entertain a state prisoner's claim that he is being held in "custody in violation of the Constitution 308 OCTOBER TERM, 1978 Syllabus 443 U.S. or laws or treaties of the United States," the applicant is entitled to habeas corpus relief if it is found that upon the evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Pp. 320-324. 2. A review of the record in this case in the light most favorable to the prosecution shows that a rational factfinder could have found petitioner guilty bi>yond a reasonable doubt of first-degree murder under Virginia law. Pp. 324-326. 580 F. 2d 1048, affirmed. STEWART, J., delivered the opm1on of the Court, in which BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEVENS, ,T., filed an opinion concurring in the judgment, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 326. POWELL, J., took no part in the consideration or decision of the case. Carolyn J. Colville, by appointment of the Court, 439 U. S. 1064, argued the cause pro !we vice and filed briefs for petitioner. Marshall Coleman, Attorney General of Virginia, argued the cause for respondents. With him on the brief was Linwood T. Wells, Assistant Attorney General.* ·X•Briefs of amici curiae urging affirmance were fil<'r Virginia law, murder is dPfined as "the unlawful killing of another with malice aforethought." Stapleton v. Commonwealth, 123 Va. 825,968. E. 801. Pre>meditation , or specific intent to kill, distinguishes murdn in the first from murder in the second degree; proof of this element is essential to conviction of the former offense, and the burden of proving it clearly rests with the prosecution. Shiflett v. Commonwealth, 143 Va. 609, 130 S. E. 777; J efferson v. Commonwealth, 214 Va. 432, 201 S. E. 2d 749. That the petitioner had shot and killed Mr::;.. Cole was not in dispute at the trial. The State's evidenc<> established that 1 The del!;rres of murder in Virginia. are specified in Va. Code § 18.2-32 (1975) as follows: "Murder, other than rapital murder, hy poison, lying in wait, imprisonment, starving, or by any willful, delibnate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, robbery, burglary or abduction ... is murder of the first degree, punishable as a Class 2 felony. "All murder otlwr than capital murnre for Class 3 Monies can range from 5 to 20 years, § 18.2-10 (r). Murder itself takes its drfinition in Virginia from the common law. Stapleton v. Commonwealth, 123 Va. 825, 96 S. E. 01. 310 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. she had been a member of the staff at the local county jail, that she had befriended him while he was imprisoned there on a disorderly conduct charge, and that when he was released she had arranged for him to live in the home of her son and daughter-in-law. Testimony by her relatives indicated that on the day of the killing the petitioner had been drinking and had spent a great deal of time shooting at targets with his revolver. Late in the afternoon, according to their testimony, he had unsuccessfully attempted to talk the victim into driving him to North Carolina. She did drive the petitioner to a local diner. There the two were observed by several police officers, who testified that both the petitioner and the victim had been drinking. The two were observed by a deputy sheriff as they were prepa.ring to leave the diner in her car. The petitioner was then in possession of his revolver, and the sheriff also observed a kitchen knife in the automobile. The sheriff testified that he had offered to keep the revolver until the petitioner sobered up, but that the latter had indicated that this would be unnecessary since he and the victim were about to engage in sexual a.ctivity. Her body was found in a secluded church parking lot a day and a half later, naked from the waist down, her slacks beneath her body. Uncontradicted medical and expert evidence established that she had been shot twice at close range with the petitioner's gun. She appeared not to have been sexually molested. Six cartridge cases identified as having been fired from the petitioner's gun were found near the body. After shooting Mrs. Cole, the petitioner drove her car to North Carolina, where, after a short trip to Florida, he was arrested several days later. In a post.arrest statement, introduced in evidence by the prosecution, the petitioner admitted that he had shot the victim. He contended, however, that the shooting had been accidental. When asked to describe his condition at the time of the shooting, he indicated that he had not been drunk, but had been "pretty high." His JACKSON v. VIRGINIA 311 307 Opinion of the Court story was that the victim had attacked him with a knife when he resisted her sexual advances. He said that he had defended himself by firing a number of warning shots into the ground, and had then reloaded his revolver. The victim, he said, then attempted to take the gun from him, and the gun "went off" in the ensuing struggle. He said that he fled without seeking help for the victim because he was afraid. At the trial, his position was that he had acted in self-defense. Alternatively, he claimed that in any event the State's own evidence showed that he had been too intoxicated to form the specific intent necessary under Virginia law to sustain a conviction of murder in the first degree.2 The trial judge, declaring himself convinced beyond a reasonable doubt that the petitioner had committed first-degree murder, found him guilty of that offense.3 The petitioner's motion to set aside the judgment as contrary to the evidence was denied, and he was sentenced to serve a term of 30 years in the Virginia state penitentiary. A petition for writ of error to the Virginia Supreme Court on the ground that the evidence was insufficient to support the conviction was denied.4 1 Under Virginia law, voluntary intoxication-although not an affirmative defense to second-degree murder-is material to the element of premeditation and may be found to have negated it. Hatcher v. Commonwealth, 218 Va. 811, 241 S. E. 2d 756. 3 When trial without a jury is had on a not guilty plea in Virginia, the court is to "have and exercise all the powers, privileges and duties given to juries .... " Va. Code§ 19.2-257 (1975). 4 There is no appeal as of right from a criminal conviction in Virginia. Saunders v. Reynolds, 214 Va. 697, 204 S. E. 2d 421. Ea.ch petition for writ of error under Va. Code § 19.2- 317 (1975) is reviewed on the merits, however, and the effect of a denial is to affirm the judgment of conviction on the merits. Saunders v. Reynolds, supra. The petition for writ of error alleged that "the trial Court erred in finding the Petitioner guilty of first-degree murder in light of the evidence introduced on behalf of the Commonwealth, and on unwarranted inferences drawn from this evidence." The petitioner contended that an affirmance would violate the Due Process Clause of the Fourteenth Amendment. In 312 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. The petitioner then commenced this habeas corpus proceeding in the United States District Court for the Eastern District of Virginia, raising the same basic claim.5 Applying the "no evidence" criterion of Thompson v. Louisville, 362 U. S. 199, the District Court found the record devoid of evidence of premeditation and granted the writ. The Court of Appeals for the Fourth Circuit reversed the judgment." The court noted that a dissent from the denial of certiorari in a case in this Court had exposed the question whether the constitutional rule of In re Winship, 397 U. S. 358, might compel a new criterion by which the validity of a state criminal conviction must be tested in a federal habeas corpus proceeding. See Freeman v. Zahradnick, 429 U. S. 1111 (dissent from denial of certiorari). But the appellate court held that in the absence of further guidance from this Court it would apply the same "no evidence" criterion of Thompson v. Louisville that the District Court had adopted. The court was of the view that some evidence that the petitioner had intended to kill the victim could be found in the facts that the petitioner had reloaded his gun after firing warning shots, that he had had time to do so, and that the victim was then shot not once but twice. The court also concluded that the state trial judge could have found that the petitioner was not so intoxicated as to be incapable of premeditation. We granted certiorari to consider the petitioner's claim that under In re Winship, supra, a federal habeas corpus court must its order denying Jackson's petition, the Virginia Supreme Court stated it was "of [the] opinion that there is no reversible error in the judgment complained of . . . ." Virginia law requires sufficiency claims to be raised on direct appeal; such a claim may not be raised in a state habeas corpus proceeding. Pettus v. Peyton, 207 Va. 906, 153 S. E. 2d 278. 5 The District Court correctly found that the petitioner had exhausted his state remedies on this issue. See n. 4, supra. 6 The opinions of the District Court and the Court of Appeals are not reported. The Court of Appeals' judgment order is reported at 580 F. 2d 1048. JACKSON v. VIRGINIA 313 307 Opinion of the Court consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt. 439 U. S. 1001. II Our inquiry in this case is narrow. The petitioner has not seriously questioned any aspect of Virginia law governing the allocation of the burden of production or persuasion in a murder trial. See Mullaney v. Wilbur, 421 U. S. 684; Patterson v. New York, 432 U. S. 197. As the record demonstrates, the judge sitting as factfinder in the petitioner's trial was aware that the State bore the burden of establishing the element of premeditation, and stated that he was applying the reasonabledoubt standard in his appraisal of the State's evidence. The petitioner, moreover, does not contest the conclusion of the Court of Appeals that under the "no evidence" rule of Thompson v. Louisville, supra, his conviction of firstdegree murder is sustainable. And he has not attacked the sufficiency of the evidence to support a conviction of seconddegree murder. His sole constitutional claim, based squarely upon Winship, is that the District Court and the Court of Appeals were in error in not recognizing that the question to be decided in this case is whether any rational factfinder could have concluded beyond a reasonable doubt that the killing for which the petitioner was convicted was premeditated. The question thus raised goes to the basic nature of the constitutional right recognized in the Winship opinion. III A This is the first of our cases to expressly consider the question whether the due process standard recognized in Winship constitutionally protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion 314 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. that every element of the crime has been established beyond a reasonable doubt. Upon examination of the fundamental differences between the constitutional underpinnings of Thompson v. Louisville, supra, and of In re Winship, supra, the answer to that question, we think, is clear. It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. Cole v. Arkansas, 333 U. S. 196, 201; Presnell v. Georgia, 439 U. S. 14. These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend. E. g., Hovey v. Elliott, 167 U. S. 409, 416-420. Cf. Boddie v. Connecticut, 401 U. S. 371, 377-379. A meaningful opportunity to defend, if not the right to a trial itself, presumes as well that a total want of evidence to support a charge will conclude the case in favor of the accused. Accordingly, we held in the Thompson case that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. See also Vachon v. New Hampshire, 414 U.S. 478; Adderley v. Florida, 385 U. S. 39; Gregory v. Chicago, 394 U. S. 111; Douglas v. Buder, 412 U. S. 430. The "no evidence" doctrine of Thompson v. Louisville thus secures to an accused the most elemental of due process rights: freedom from a wholly arbitrary deprivation of liberty. The Court in Thompson explicitly stated that the due process right at issue did not concern a question of evidentiary "sufficiency." 362 U. S., at 199. The right established in In re Winship, however, clearly stands on a different footing. Winship involved an adjudication of juvenile delinquency made by a judge under a state statute providing that the prosecution must prove the conduct charged as delinquentwhich in Winship would have been a criminal offense if engaged in by an adult-by a preponderance of the evidence. JACKSON v. VIRGINIA 315 307 Opinion of the Court Applying that standard, the judge was satisfied that the juvenile was "guilty," but he noted that the result might well have been different under a standard of proof beyond a reasonable doubt. In short, the record in Winship was not totally devoid of evidence of guilt. The constitutional problem addressed in Winship was thus distinct from the stark problem of arbitrariness presented in Thompson v. Louisville. In Winship, the Court held for the first time that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U. S., at 364. In so holding, the Court emphasized that proof beyond a reasonable doubt has traditionally been regarded as the decisive difference between criminal culpability and civil liability. Id., at 358-362. See Davis v. United States, 160 U. S. 469; Brinegar v. United States, 338 U.S. 160, 174; Lelandv. Oregon, 343 U.S. 790; 9 J. Wigmore, Evidence § 2495, pp. 307-308 (3d ed. 1940). Cf. Woodby v. INS, 385 U. S. 276, 285. The standard of proof beyond a reasonable doubt, said the Court, "plays a vital role in the American scheme of criminal procedure," because it operates to give "concrete substance" to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. 397 U. S., at 363. At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. Id., at 372 (Harlan, J., concurring). The constitutional standard recognized in the Winship case was expressly phrased as one that protects an accused against a conviction except on "proof beyond a reasonable doubt .... " In subsequent cases discussing the reasonable-doubt standard, we have never departed from this definition of the rule or from 316 OCTOBER TERM, 1978 Opinion of the Court 443U.S. the Winship understanding of the central purposes it serves. See, e. g., Ivan V. v. City of New York, 407 U.S. 203, 204; Lego v. Twomey, 404 U. S. 477, 486-487; Mullaney v. Wilbur, 421 U.S. 684; Patterson v. New York, 432 U.S. 197; Cool v. United States, 409 U. S. 100, 104. In short, Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. B Although several of our cases have intimated that the factfinder's application of the reasonable-doubt standard to the evidence may present a federal question when a state conviction is challenged, Lego v. Twomey, supra, at 487; Johnson v. Louisiana, 406 U. S. 356, 360, the Federal Courts of Appeals have generally assumed that so long as the reasonable-doubt instruction has been given at trial, the no-evidence doctrine of Thompson v. Louisville remains the appropriate guide for a federal habeas corpus court to apply in assessing a state prisoner's challenge to his conviction as founded upon insufficient evidence. See, e. g., Cunha v. Brewer, 511 F. 2d 894 (CA8).7 We cannot agree. The Winship doctrine requires more than simply a trial 7 The Court of Appeals in the present case, of course, recognized that Winship may have changed the constitutional standard in federal habeas corpus. And the Court of Appeals for the Sixth Circuit recently recognized the possible impact of Winship on federal habeas corpus in a case in which it held that "a rational trier o-f fact could have found the defendant ... guilty beyond a reasonable doubt." Spruytte v. Koehler, affinnance order, 590 F. 2d 335. An even more recent case in that court provoked a lively debate among three of its members regarding the effect of Winship upon federal habeas corpus. The writ was granted in that case, even though the trial record concededly contained "some evidence" of the applicant's guilt. See Speigner v. Jago, 603 F. 2d 1208. JACKSON v. VIRGINIA 317 307 Opinion of the Court ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence.8 A "reasonable doubt," at a minimum, is one based upon "reason." 9 Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. In a federal trial, such an occurrence has traditionally been deemed to require reversal of the conviction. Glasser v. United States, 315 U. S. 60, 80; Bronston v. United States, 409 U. S. 352. See also, e.g., Curley v. United States, 81 U.S. App. D. C. 389, 392-393, 160 F. 2d 229, 232-233.10 Under Winship, which established 8 The trier of fact in this case was a judge and not a jury. But this is of no constitutional significance. The record makes clear that the judge deemed himself "properly instructed." 9 A "reasonable doubt" has often been described as one "based on reason which arises from the evidence or lack of evidence." Johnson v. Louisiana, 406 U. S. 356, 360 (citing cases). For a discussion of variations in the definition used in jury instructions, see Holland v. United States, 348 U.S. 121, 140 (rejecting contention that circumstantial evidence must exclude every hypothesis but that of guilt). 10 This, of course, does not mean that convictions are frequently reversed upon this ground. The practice in the federal courts of entertaining properly preserved challenges to evidentiary sufficiency, see Fed. Rule Crim. Proc. 29, serves only to highlight the traditional understanding in our system that the application of the beyond-a-reasonable-doubt standard to the evidence is not irretrievably committed to jury discretion. To be sure, the factfinder in a criminal case has traditionally been permitted to enter an unassailable but unreasonable verdict of "not guilty." This is the logical corollary of the rule that there can be no appeal from a judgment of acquittal, even if the evidence of guilt is overwhelming. The power of the factfinder to err upon the side of mercy, however, has never been thought to include a power to enter an unreasonable verdict of guilty. Carpenters & Joiners v. United States, 330 U. S. 395, 408. Cf. Capitol, Traction Co. v. Hof, 174 U. S. 1, 13-14. Any such premise is wholly belied by the settled practice of testing evidentiary sufficiency through a motion for judgment of acquittal and a postverdict appeal from the denial 318 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs in a state trial, it cannot constitutionally stand. A federal court has a duty to assess the historic facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court. For example, on direct review of a state-court conviction, where the claim is made that an involuntary confession was used against the defendant, this Court reviews the facts to determine whether the confession was wrongly admitted in evidence. Blackburn v. Alabama, 361 U. S. 199, 205-210. Cf. Drope v. Missouri, 420 U. S. 162, 174--175, and n. 10. The same duty obtains in federal habeas corpus proceedings. See Townsend v. Sain, 372 U. S. 293, 318; Brown v. Allen, 344 U. S. 443, 506-507 (opinion of Frankfurter, J.). After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.11 But this inquiry does not require a court to "ask of such a motion. See generally 4 L. Orfield, Criminal Procedure Under the Federal Rules §§29:1-29:29 (1967 and Supp. 1978) l1 Until 1972, the Court of Appeals for the Second Circuit took the position advanced today by the opinion concurring in the judgment that the beyond-a-reasonable-doubt standard is merely descriptive of the state of mind required of the factfinder in a criminal case and not of the actual quantum and quality of proof necessary to support a criminal conviction. Thus, that court held that in a jury trial the judge need not distinguish between criminal and civil cases for the purpose of ruling on a motion for judgment of acquittal. United States v. Feinberg, 140 F. 2d 592, 594. In United States v. Taylor, 464 F. 2d 240 (CA2), Feinberg was overruled, partly on the strength of Winship. The Taylor court adopted the directed- verdict criterion articulated in Curley v. United States, 81 U. 8. App. D. C. 389, 392-393, 160 F. 2d 229, 232-233 (If "reasonable" jurors "must necessarily have ... a reasonable doubt" as to guilt, the judge "must require acquittal, because no other result is permissible within the JACKSON v. VIRGINIA 319 307 Opinion of the Court itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Woodby v. INS, 385 U. S., at 282 (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U. S., at 362. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a def end ant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.12 The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law.13 fixed bounds of jury consideration"). This is now the prevailing criterion for judging motions for acquittal in federal criminal trials. See generally 2 C. Wright, Federal Practice and Procedure§ 467 (1969 and Supp. 1978). 12 Contrary to the suggestion in the opinion concurring in the judgment, the criterion announced today as the constitutional minimum required to enforce the due process right established in Winship is not novel. See, e.g., United States v. Amato, 495 F. 2d 545,549 (CA5) ("whether, taking the view [of the evidence] most favorable to the Government, a reasonably- minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt") (emphasis added) ; United States v. Jo~genson, 451 F. 2d 516, 521 (CAlO) (whether, "considering the evidence in the light most favorable to the government, there is substantial evidence from which a jury might reasonably find that an accused is guilty beyond a reasonable doubt") (emphasis added). Glasser v. United States, 315 U.S. 60, 80, has universally been understood as a case applying this criterion. See, e. g., Harding v. United States, 337 F. 2d 254, 256 (CA8). See generally 4 Orfield, supra n. 10, § 29.28. 13 The question whether the evidence is constitutionally sufficient is of course wholly unrelated to the question of how rationally the verdict 320 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. That the Thompson "no evidence" rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt is readily apparent. "[Al mere modicum of evidence may satisfy a 'no evidence' standard .... " Jacobellis v. Ohio, 378 U. S. 184, 202 (Warren, C. J., dissenting). Any evidence that is relevant-that has any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence, cf. Fed. Rule Evid. 401-could be deemed a "mere modicum." But it could not seriously be argued that such a "modicum" of evidence could by itself rationally support a conviction beyond a reasonable doubt. The Thompson doctrine simply fails to supply a workable or even a predictable standard for determining whether the due process command of Winship has been honored.14 C Under 28 U. S. C. § 2254, a federal court must entertain a claim by a state prisoner that he or she is being held in "custody in violation of the Constitution or laws or treaties of the was actually reached. Just as the standard announced today does not permit a court to make its own subjective determination of guilt or innocence, it docs not require scrutiny of the reasoning process actually used by the factfinder-if known. See generally 3 F. Wharton, Criminal Procedure § 520 (12th ed. 1975 and Supp. 1978). 14 Application of the Thompson standard to ftSsess the YRlidity of ft criminal conviction after Winship could lead to absurdly unjust results. Our cases have indicated that failure to instruct a jury on the necessity of proof of guilt beyond a reasonable doubt can never be harmless error. See Cool v. United States, 409 U. S. 100. Cf. Taylor v. Kentucky, 436 U. S. 478. Thus, a defendant whose guilt was acttwlly proved by overwhelming evidence would be denied due process if the jury was instructed that he could be found guilty on a mere prC'ponderance of the evidence. Yet a defendant against whom there was but onC' slender bit of evidence would not be denied due process so long as the jury has been properly instructed on the prosecution's burden of proof beyond a reasonable doubt. Such results would be wholly faithless to the constitutional rationale of Winship. JACKSON v. VIRGINIA 321 307 Opinion of t.he Court United States." Under the Winship decision, it is clear that a state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt has stated a federal constitutional claim. Thus, assuming that state remedies have been exhausted, see 28 U. S. C. § 2254 (b), and that no independent and adequate state ground stands as a bar, see Estelle v. Williams, 425 U. S. 501; Francis v. Henderson, 425 U. S. 536; Wainwright v. Sykes, 433 U. S. 72; Fay v. Noia, 372 l:". S. 391, 438, it follows that such a claim is cognizable in a federal habeas corpus proceeding. The respondents have argued, nonetheless, that a challenge to the constitutional sufficiency of the evidence should not be entertained by a federal district court under 28 U. S. C. § 2254. In addition to the argument that a Winship standard invites replication of state criminal trials in the guise of § 2254 proceedings-an argument that simply fails to recognize that courts can and regularly do gauge the sufficiency of the evidence without intruding into any legitimate domain of the trier of fact-the respondents have urged that any departure from the Thompson test in federal habeas corpus proceedings will expand the number of meritless claims brought to the federal courts, will duplicate the work of the state appellate courts, will disserve the societal interest in the finality of state criminal proceedings, and will increase friction between the federal and state judiciaries. In sum, counsel for the State urges that this type of constitutional claim should be deemed to fall within the limit on federal habeas corpus jurisdiction identified in Stone v. PoweU, 428 U. S. 465, with respect to Fourth Amendment claims. ·we disagree. First, the burden that is likely to follow from acceptance of the Winship standard has, we think, been exaggerated. Federal- court challenges to the eviclentiary support for state convictions have since Thompson been dealt with under § 2254. E. g., Freeman v. Stone, 444 F. 2d 113 (CA9); Grieco v. I 322 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. Meachum, 533 F. 2d 713 (CAI); Williams v. Peyton, 414 F. 2d 776 (CA4). A more stringent standard will expand the contours of this type of claim, but will not create an entirely new class of cases cognizable on federal habeas corpus. Furthermore, most meritorious challenges to constitutional sufficiency of the evidence undoubtedly will be recognized in the state courts, and, if the state courts have fully considered the issue of sufficiency, the task of a federal habeas court should not be difficult. Cf. Brown v. Allen, 344 U. S., at 463.15 And this type of claim can almost always be judged on the written record without need for an evidentiary hearing in the federal court. Second, the problems of finality and federal-state comity arise whenever a state prisoner invokes the jurisdiction of a federal court to redress an alleged constitutional violation. A challenge to a state conviction brought on the ground that the evidence cannot fairly be deemed sufficient to have established guilt beyond a reasonable doubt states a federal constitutional claim. Although state appellate review undoubtedly will serve in the vast majority of cases to vindicate the due process protection that follows from Winship, the same could also be said of the vast majority of other federal constitutional rights that may be implicated in a state criminal trial. It is the occasional abuse that the federal writ of habeas corpus stands ready to correct. Brown v. Allen, supra, at 498-501 (opinion of Frankfurter, J.). 1 ~ The Virginia Supreme Court's order denying Jackson's petition for writ of error does not make clear what criterion was applied to the petitioner's claim that the evidence in support of his first-degree murder conviction was insufficient. See n. 4, supra. At oral argu~ent, counsel for the petitioner contended that tho Virginia sufficiency standard is not keyed to Winship. Counsel for the State disagreed. Under these circumstances, we decline to speculate as to the criterion that the state court applied. The fact that a state appellate court invoked the proper standard, however, although entitled to great weight, does not totally bar a properly presented claim of this type under § 2254. ..... JACKSON v. VIRGINIA 323 307 Opinion of the Court The respondents have argued nonetheless that whenever a person convicted in a state court has been given a "full and fair hearing" in the state system-meaning in this instance state appellate review of the sufficiency of the evidence-- further federal inquiry-a.part from the possibility of discretionary review by this Court--should be foreclosed. This argument would prove far too much. A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional la\v. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. See 28 U. S. C. §§ 2254 (b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. Tht> duty of a federal habeas corpus court to appraise a claim that constitutional error did occur-reflecting as it does the belief that the "finality" of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right-is not one that can be so lightly abjured. The constitutional issue presented in this case is far different from the kind of issue that was the subject of the Court's decision in Stone v. Powell, supra. The question whether a defendant has been convicted upon inadequate evidence is central to the basic question of guilt or innocence. The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. E. g., Mullaney v. Wilbur, 421 U. S., at 697-698 (requirement of proof beyond a reasonable doubt is not "limit[ ed] to those facts which, if not proved, would wholly exonerate" the accused). Under our system of criminal justice even a thief 324 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar. We hold that in a challenge to a state criminal conviction brought under 28 U. S. C. § 2254-if the settled procedural prerequisites for such a claim have otherwise been satisfiedthe applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.16 IV Turning finally to the specific facts of this case, we reject the petitioner's claim that under the constitutional standard dictated by Winship his conviction of first-degree murder cannot stand. A review of the record in the light most favorable to the prosecution convinces us that a rational factfinder could readily have found the petitioner guilty beyond a reasonable doubt of first-degree murder under Virginia law. There was no question at the trial that the petitioner had fatally shot Mary Cole. The crucial factual dispute went to the sufficiency of the evidence to support a finding that he had specifically intended to kill her. This question, as the Court of Appeals recognized, must be gauged in the light of applicable Virginia law defining the element of premeditation. Under that law it is well settled that premeditation need not exist for any particular length of time, and that an intent to kill may be formed at the moment of the commission of the unlawful act. Commonwealth v. Brown, 90 Va. 671, 19 S. E. 447. From the circumstantial evidence in the record, it is 16 The respondents have suggested that this constitutional standard will invite int.rnsions upon the power of the States to define criminal offenses. Quite to the contrary, the standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by sta.te law. Whether the State could constitutionally make the conduct at issue criminal at all is, of course, a distinct question. See Papachristou v. Jacksonville, 405 U. S. 156; Robin.son v. Cal,ifornia, 370 U. S. 660. JACKSON v. VIRGINIA 325 307 Opinion of the Court clear that the trial judge could reasonably have found beyond a reasonable doubt that the petitioner did possess the necessary intent at or before the time of the killing. The prosecution's uncontradicted evidence established that the petitioner shot the victim not once but twice. The petitioner himself admitted that the fatal shooting had occurred only after he had first fired several shots into the ground and then reloaded his gun. The evidence was clear that the two shots that killed the victim were fired at close, and thus predictably fatal, range by a person who was experienced in the use of the murder weapon. Immediately after the shooting, the petitioner drove ,vithout mishap from Virginia to North Carolina, a fact quite at odds with his story of extreme intoxication. Shortly before the fatal episode, he had publicly expressed an intention to have sexual relations with the victim. Her body was found partially unclothed. From these uncontradicted circumstances, a rational factfinder readily could have inferred beyond a reasonable doubt that the petitioner, notwithstanding evidence that he had been drinking on the day of the killing, did have the capacity to form and had in fact formed an intent to kill the victim. The petitioner's calculated behavior both before and after the killing demonstrated that he was fully capable of committing premeditated murder. His claim of self-defense would have required the trial judge to draw a series of improbable inferences from the basic facts, prime among them the inference that he was wholly uninterested in sexual activity with the victim but that she was so interested as to have willingly removed part of her clothing and then attacked him with a knife when he resisted her advances, even though he was armed with a loaded revolver that he had just demonstrated he knew how to use. It is evident from the record that the trial judge found this story, including the petitioner's belated contention that he had been so intoxicated as to be incapable of premeditation, incredible. 326 OCTOBER TERM, 1978 STEVENS, J., concurring in judgment 443U.S. Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner's challenge be sustained. That theory the Court has rejected in the past. Holland v. United States, 348 U. S. 121, 140. We decline to adopt it today. Under the standard established in this opinion as necessary to preserve the due process protection recognized in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume-Bven if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. Applying these criteria, we hold that a rational trier of fact could reasonably have found that the petitioner committed murder in the first degree under Virginia law. For these reasons, the judgment of the Court of Appeals is affirmed. It is so ordered. MR. JUSTICE POWELL took no part in the consideration or decision of this case. MR. JusTICE STEVENS, with whom THE CHIEF JUSTICE and MR. JusTICE REHNQUIST join, concurring in the judgment. The Constitution prohibits the criminal conviction of any person except upon proof sufficient to convince the trier of fact of guilt beyond a reasonable doubt. Cf. ante, at 309. This rule has prevailed in our courts "at least from our early years as a Nation." In re Winship, 397 U. S. 358, 361. Today the Court creates a new rule of law-one that has never prevailed in our jurisprudence. According to the Court, the Constitution now prohibits the criminal conviction of any person-including, apparently, a person against whom the facts have already been found beyond a reasonable doubt by a jury, a trial judge, and one or more levels of state appellate judges-except upon proof sufficient to convince a federal JACKSON v. VIRGINIA 327 307 STEVENS, J ., concurring in judgment judge that a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Ante, at 319. The adoption of this novel constitutional rule is not necessary to the decision of this case. Moreover, I believe it is an unwise act of lawmaking. Despite its chimerical appeal as a new counterpart to the venerable principle recognized in Winship, I am persuaded that its precipitous adoption will adversely affect the quality of justice administered by federal judges. For that reason I shall analyze this new brainchild with some care. I shall begin by explaining why neither the record in this case, nor general experience with challenges to the sufficiency of the evidence supporting criminal convictions, supports, much less compels, the conclusion that there is any need for this new constitutional precept. I shall next show that it is not logically compelled by either the holding or the analysis in In re Winship, supra.. Finally, I shall try to demonstrat.e why the Court's new rule-if it is not just a meaningless shibboleth-threatens serious harm to the quality of our judicial system. I It is, of course, part of this Court's tradition that new rules of law emerge from the process of case-by-case adjudication of constitutional issues. Widespread concern that existing constitutional doctrine is unjust often provides the occasion, and is sometimes even relied upon as a justification, for the exercise of such lawmaking authority by the Court. Without entering the debate over the legitimacy of this justification for judicial action, it is at least certain that it should not be the basis for dramatic-indeed, for any-constitutional lawmaking efforts unless ( 1) those efforts are necessary to the decision of the case at hand and (2) powerful reasons favor a change in the law. See Ashwander v. TVA, 297 U. S. 288, 345-348 ( Brandeis, J., concurring). 328 OCTOBER TERM, 1978 STEVENS, J., concurring in judgment 443 U. S. In this case, the Court's analysis fails on both counts. It has accordingly formulated a new constitutional principle under the most dangerous possible circumstances--i. e., where the exercise of judicial authority is neither necessitated nor capable of being limited by "the precise facts to which [the rule is originally] to be applied," Liverpool, N. Y. & P. S. S. Co. v. Emigration Comm'rs, 113 U. S. 33, 39, nor even by some broader set of identifiable experiences with the evil supposedly involved. Most significantly, the Court has announced its new constitutional edict in a case in which it has absolutely no bearing on the outcome. The only factual issue at stake is whether petitioner intended to kill his victim. If the evidence is viewed "in the light most favorable to the prosecution," ante, at 319- and, indeed, we may view it through the eyes of the actual factfinder, whose observations about the evidence are recorded in the trial transcript- there can be only one answer to that question no matter what standard of appellate review is applied. In Part IV of its opinion, the Court accepts this conclusion. There is, therefore, no need to fashion a broad new rule of constitutional law to dispose of this squalid but rather routine murder case. Under any view, the evidence is sufficient. The Court's new rule is adopted simply to forestall some hypothetical evil that has not been demonstrated, and in my view is not fairly demonstrable. Although the Judiciary has received its share of criticism-principally because of the delays and costs associated with litigation-I am aware of no general dissatisfaction with the accuracy of the factfi.nding process or the adequacy of the rules applied by state appellate courts when reviewing claims of insufficiency. What little evidence the Court marshals in favor of a contrary conclusion is unconvincing. See ante, at 317-318, n. 10. The Court is simply incorrect in implying that there are a significant number of occasions when federal convictions are JACKSON v. VIRGINIA 329 307 STEVENS, J., concurring in judgment overturned on appeal because no rational trier of fact could have found guilt beyond a reasonable doubt. The two opinions of this Court cited ante, at 317, stand for no such proposition. In neither was a conviction reversed for insufficiency. See Glasser v. United States, 315 U. S. 60; Bronston v. United States, 409 U. S. 352. Moreover, a study of the 127 federal criminal convictions that were reviewed by the various Courts of Appeals and reported in the most recent hardbound volume of the Federal Reporter, Second Series, Volume 589, reveals that only 3 were overturned on sufficiency grounds. And of those, one was overturned under a "no evidence" standard, while the other two, in which a total of only 3 out of 36 counts were actually reversed, arguably involved legal issues masquerading as sufficiency questions.1 It is difficult to believe that the federal courts will turn up more sufficiency problems than this on habeas review when, instead of acting as the first level of 1 In United States v. Tarr, 589 F. 2d 55 (CAI 1978), the court overturned one of two counts of which appellant was convicted because there was insufficient evidence to prove that he had the intf>nt to aid and abet. the unauthorized transfer of a machinegun in violation of 26 U. S. C. § 5861 (e) and 18 U. S. C. § 2. The court found "no evidence" that appellant had the requisite knowledge. 589 F. 2d, at 60. In United States v. Whetzel, 191 U. S. App. D. C. 184, 589 F. 2d 707 (1978), the court overturned 2 of the 35 counts of appellant's conviction because "the Government failed to offer proof that would permit a jury to reasonably infer that the merchandise [appellant] transported had a value of $5,000." Id., at 188, 589 F. 2d, at 711. However, the basis for this determination was that the Government's valuation method, which the trial court allowed the jury to consider, was legally erroneous. Similiarly, in United States v. Fearn, 589 F. 2d 1316 (CA7 1978), the court overturned the conviction based on a federal nonconstitutional rule, which surely would not apply in habeas review of state convictions, "that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused." Id., at 1321. The court did not independently analyze whether the uncorroborated confession involved in that case could itself have allowed a rational trier of fact to find guilt beyond a reasonable doubt. 330 OCTOBER TERM, 1978 STEVENS, J., concurring in judgment 443U.S. review, as in the cases studied, they will be acting as the second, third, or even fourth level of appellate review. In short, there is simply no reason to tinker with an elaborate mechanism that is now functioning well. II There is nothing in the facts of this case or, so far as the Court has demonstrated, in those of cases like it to warrant today's excursion into constitutional rulemaking. The Court instead portrays its rule as the logical corollary of the principle recognized in Winship regarding the subjective state of mind that persons charged with the responsibility of evaluating the credibility of evidence must possess before they find the defendant guilty in a criminal case. But an examination of Winship reveals that it has nothing to do with appellate, much less habeas corpus, review standards; that the reasoning used in that case to reach its conclusion with respect to the trier of fact does not support, and indeed counsels against, the Court's conclusion with respect to federal habeas judges; and that there is no necessary connection between the rule recognized in Winship and the rule invented by the Court today. In distinct contrast to the circumstances of this case, the facts of Winship presented "a case where the choice of the standard of proof has made a difference: the [trial] judge below forthrightly acknowledged that he believed by a preponderance of the evidence [in], but was not convinced beyond a reasonable doubt" of, the juvenile's guilt. 397 U. S., at 369 (Harlan, J., concurring). Because the trier of fact entertained such a doubt, this Court held that the juvenile was constitutionally entitled to the same verdict that an adult defendant in a criminal case would receive. In so holding, the Court merely extended to juveniles a protection that had traditionally been available to defendants in criminal trials in this Nation. Id., at 361. But nothing in the Winship opinion suggests that it also JACKSON v. VIRGINIA 331 307 STEVENS, J., concurring in judgment bore on appellate or habeas corpus procedures. Although it repeatedly emphasized the function of the reasonable-doubt standard as describing the requisite "subjective state of certitude" of the "factfinder," 2 it never mentioned the question of how appellate judges are to know whether the trier of fact really was convinced beyond a reasonable doubt, or, indeed, whether the factfinder was a "rational" person or group of persons. Yioreover, the mode of analysis employed in Winship finds no counterpart in the Court's opinion in this case. For example, in Winship, the Court pointed out the breadth of both the historical and the current acceptance of the reasonabledoubt trial standard.3 In this case, by contrast, the Court 2 In In re Winship, 397 U. S., at 364, thr Court stated: "As we said in Speiser v. Randall, [357 U. S. 513,] 525-526: 'There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value-as a criminal defendant his liberty-this margin of error is reduced as to him by the process of placing on the other party the burden of ... persuading the factfinder at the conclusion of the trial of his guilt beyond a rrasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of ... convincing the factfinder of his guilt.' To this end, the reasonabledoubt standard is indispensable, for it 'impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.' Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967)." (Emphasis added.) Later on the same page, the Court added: "It is also important in our free society that cwry individual going about his ordinary affairs have confidence that his iovernment cannot adjudge him guilty of a criminal offense u·ithout convincing a proper factfi,-nder of his guilt with utmost certainty.'' Ibid. (emphasis added). See also id., at 370 (Ha.rlan, J., concurring) ("[A] standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication") ( emphasis added). 3 The Court, relying on treatises that analyzed the law in all 50 States as well as in the federal system, determined both that the reasonable-doubt 332 OCTOBER TERM, 1978 STEVENS, J., concurring in judgment 443 U.S. candidly recognizes that the Federal Courts of Appeals have "generally" rejected the habeas standard that it adopts today. Ante, at 316.4 The Winship court relied on nine prior opinions of this Court that bore directly on the issue presented. 397 1J. S., at 362. Here, the Court purportedly relies on two prior decisions, but as is pointed out, mpra, at 329, nPither of these cases itself applied a "reasonable doubt" appellate standard to overturn a conviction, neither purported to be interpreting the Constitution, and neithf'r expressed any viev,r whatsoever on the appropriate standard in collateral proceedings such as are involved in this case.5 As the Court itself notes, we have instead repeatedly endorsed the "no evidence" test. and have continued to do so after Winship was decided. Vachon v. standard has prrvailed at the trial level "at least from our early years as a Nation" and that it "is now accepted in common law jurisdictions as the measure of pl:'rsuasion by whi<'h the prosecution must convince the trier of all the essential elrmC"nts of guilt." Id.,· at 361 (emphasis added). See also id., at 372 (Harlnn, J., concurring) ("It is only because of t he nearly complete and long-standing acceptance of the rensonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation") (rmphasis added). 4 The Court has undertaken no systematic analysis of the standards for reviewing the sufficiency of the evidence that pn,vail eithrr in state habeas corpus and other collateral procrrdings or in state appellate courts. What sources I have discovered suggest that "varied standards" are in use and that each is "subject to shifting and elastic definitions." ,vinningham, The Dilemma of the Directed Acquittal, 15 Vand. L. Rev. 699, 705-706 (1962). See ALI Code of Criminal Procedure, Commentary on§ 321, pp. 961- 962 (1930); Rules of Criminal Procedure 481 (c) , 522 (a) and commentary, 10 U. L.A. (1974). 5 It hardly bears repeating that habeas corpus is not intended as a substitute for appeal, nor as a device for rcviewing the merits of guilt determinations at criminal trials. See generally Stone v. Powell, 428 U. S. 465. Instead, it is designed to guard against extreme malfunctions in the state criminal justice systems. JACKSON v. VIRGINIA 333 307 STEVENS, J., concurring in judgment New Hampshire, 414 U. S. 478; Douglas v. Buder, 412 U. S. 430; Gregory v. Chicago, 394 U. S. 111; Adderley v. Florida, 385 U. S. 39; Thompson v. Louisville, 362 U. S. 199. See also Clyatt v. United States, 197 U.S. 207,222. The primary reasoning of the Court in Winship is also inapplicable here. The Court noted in that case that the reasonable- doubt standard has the desirable effect of significantly reducing the risk of an inaccurate factfinding and thus of erroneous convictions, as well as of instilling confidence in the criminal justice system. 397 U. S., at 363-364. See also id., at 370-372 (Harlan, J., concurring). In this case, however, it would be impossible (and the Court does not even try) to demonstrate that there is an appreciable risk that a factfinding made by a jury beyond a reasonable doubt, and twice reviewed by a trial judge in ruling on directed verdict and post-trial acquittal motions and by one or more levels of appellate courts on direct appeal, as well as by two federal habeas courts under the Thompson "no evidence" rule, is likely to be erroneous.6 Indeed, the very premise of Winship is that properly select€d judges and properly instructed juries act rationally, that the former will tell the truth when they declare that they are convinced beyond a reasonable doubt and the latter will conscientiously obey and understand the reasonable-doubt instructions they receive before retiring to reach a verdict, and therefore that either factfinder will itself provide the necessary bulwark against erroneous factual determinations. To presume otherwise is to make light of Winship.1 6 As I discuss earlier, see supra, at 329, the incidence of factual error at the trial level in federal courts appears to be exceedingly low, even when measured by the relatively strict appellate standard used by the Federal Courts of Appeals. Presumably the incidence of errors that survive that first level of review is even smaller. 7 Indeed, the Court makes light of Winship by suggesting that, in the absence of its new habeas procedure, the result of that case is simply "a trial ritual." Ante, at 316-317. Far more likely in my view is that the 334 OCTOBER TERM, 1978 STEVENS, J., concurring in judgment 443 U.S. Having failed to identify the evil against which the rule is directed, and having failed to demonstrate how it follows from the analysis typically used in due process cases of this character, the Court places all of its reliance on a dry, and in my view incorrect, syllogism: If Winship requires the factfinder to apply a reasonable-doubt standard, then logic requires a reviewing judge to apply a like standard But, taken to its ultimate conclusion, this "logic" would require the reviewing court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Woodby v. INS, 385 U. S. 276, 282 ( emphasis added). The Court, however, rejects this standard, as well as others that might be considered consist~mt with Winship. For example, it does not require the reviewing court to view just the evidence most favorable to the prosecution and then to decide whether that evidence convinced it beyond a reasonable doubt, nor whether, based on the entire record, rational triers of fact could be convinced of guilt beyond a reasonable doubt. Instead, and without explanation, it chooses a still narrower standard that merely asks whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Ante, at 319.8 It seems to me that if "logic" allows Court's difficult-to-apply but largely unnecessary rnle will it,;elf result in a "collateral-attack ritual" that, will underminC' the integrity of both the state and federal judiciaries. See infra, at 336-339. 8 So far as I can determine, this standard first appeared in our jurisprudencC' in Mn . .JusncE 8TEWART's opinion dissenting from the Court's denial of certiorari in Freeman v. Za.hradnick, 429 U. S. 1111, 1112, ll 13, 1114, 1116. At that time, it gave the impression of being somewhat narrower than-if only because it was stated quite differently from-the test used by the Courts of Apprals in reviewing federal ronvirtions on direct appeal. See Curley v. United States, 81 U. S. App. D. C. 389, 392- 393, 160 F. 2d 229, 232-233 (1947). Although the Court twice repeats the Freeman test, see ante, at 313, 319, it now appears either to equate that standard with the-in my view-broader federal direct-review standard, JACKSON v. VIRGINIA 335 307 STEVENS, J., concurring in judgment this choice after Winship it should also allow the presumption that the Court has rejected-that trial judges and juries will act rationally and honestly in applying the reasonable-doubt standard, at least so long as the trial is free of procedural error and the record contains evidence tending to prove each of the elements of the offense. Time may prove that the rule the Court has adopted today is the wisest compromise between one extreme that maximizes the protection against the risk that innocent persons will be erroneously convicted and the other extreme that places the greatest faith in the ability of fair procedures to produce just verdicts. But the Court's opinion should not obscure the fact that its new rule is not logically compelled by the analysis or the holding in Winship or in any other precedent, or the fact that the rule reflects a new policy choice rather than the application of a pre-existing rule of law. III The Court cautions against exaggerating the significance of its new rule. Ante, at 321. It is true that in practice there may be little or no difference between a record that does not contain at least some evidence tending to prove every element of an offense and a record containing so little evidence that no rational factfinder could be persuaded of guilt beyond a reasonable doubt. Moreover, I think the Court is quite correct when it acknowledges that "most meritorious challenges to constitutional sufficiency of the evidence undoubtedly will be recognized in the state courts." Ante, at 322. But this only means that the new rule will seldom, if ever, provide a convicted state prisoner with any tangible benefits. It does not mean that the rule will have no impact on the administration of justice. On the contrary, I am persuaded that it will be seriously harmful both to the state and federal judiciaries. or to endorse both standards despite their differences. See ante, at 318, Bnd nn. 11, 12. 336 OCTOBER TERM, 1978 STEVENS, J., concurring in judgment 443 U. S. The Court indicates that the new standard to be applied by federal judges in habeas corpus proceedings may be substantially the same as the standard most state reviewing courts are already applying. Ante, at 322. The federal district courts are therefore being directed simply to duplicate the reviewing function that is no,v being performed adequately by state appellate courts. In my view, this task may well be inconsistent with the prohibition-added by Congress to the federal habeas statute in order to forestall undue federal interference with state proceedings, see Wainwright v. Sykes, 433 l:. S. 72, 80-against overturning "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction." 28 P. S. C. § 2254 (d). See LaVallee v. Delle Rose, 410 r. S. 690. In any case, to assign a single federal district judge the responsibility of directly reviewing. and inevitably supervising_ the most routine work of the highest courts of a State can only undermine the morale and the esteem of the state judiciaryparticularly when the stated purpose of the additional layer of review is to determine whether the State's factfind er is "rational." 9 Such consequences are intangible but nonetheless significant. 0 In the past, collateral review of state proceedings has been justified largely on the grounds (1) that federal judges have special expertise in the federal issues that regularly arise in habeas corpus proceeding, and (2) that they are less susceptible than state judges to political pressures against applying constitutional rules to overturn convictions. See, e. g., Ra.rtels, Avoiding a Comity of Errors, 29 Stan. L. Rev. 27, 30 n. 9 (1976). Cf. Steffel v. Thompson, 415 U.S. 452, 464; Mitchum v. Foster, 407 U.S. 225, 242. But neither of these justifications has any force in the present context. State judges are more familiar with the e!C'ments of state offenses than are federal judges and should be better able to evaluate sufficiency daims. Moreover, of all decisions owrturning convictions, the least likely to be unpopular and thus to distort. f'tate decisionmaking processes are ones based on the inadequacy of the evidence. Indeed, once federal courts were divested of authority to second-guess state courts on Fourth Amendment issues, which are far more likely to generate politically motivated JACKSON v. VIRGINIA 337 307 STEVENS, J., concurring in judgment The potential effect on federal judges is even more serious. Their burdens are already so heavy that they are delegating to staff assistants more and more work that we once expected judges to perform.10 The new standard will invite an unknown number of state prisoners to make sufficiency challenges that they would not have made under the old rule. Moreover, because the "rational trier of fact" must certainly base its decisions on all of the evidence, the Court's broader standard may well require that the entire transcript of the state trial be read whenever the factfinders' rationality is challenged under the Court's rule.11 Because this task will confront the courts of appeals as well as district courts, it will surely impose countless additional hours of unproductive labor on federal judges and their assistants.12 The increasing volstate- court decisions, see Stone v. Powell, 428 U. S. 465, a like result in this case would seem to be a fortiori. 1° For example, the heavy federal workload has required the 13 regular and 7 senior judges on the Ninth Circuit t-0 hire 30 staff attorneys and 33 law clerks to assist them in their labors. 11 Additional burdens will also be imposed if the Court's rule is extended to federal habeas proceedings reviewing federa.l criminal trials, as wen as to ones reviewing state civil commitment proceedings in which we have recently required at least the "clear and convincing" test to be applied as a matter of federal constitutional law. Addington v. Texas, 441 U. S. 418. This Court's workload will also increase, of course, when its certiorari docket expands to accommodate the challenges generated by the Court's new rule. The effect will be even greater if the Court's opinion is read to require state appellate courts to apply the reasonable-doubt test on direct review and to require this Court to apply it when reviewing the decisions of those courts on certiorari. 12 Professor Bator has persuasively explained how the law of diminishing returns inevitably makes it unwise to have duplicative review processes on the "merits" in criminal cases: "[/Jf a criminal judgment is ever to be final, the notion of legality must at some point include the assignment of final competences to determine legality. But, it may be asked, why should we seek a point at which such a judgment becomes final? Conceding that no process can assure ultimate truth, will not 11epetition of inquiry stand a better chance of approximat338 OCTOBER TERM, 1978 STEVENS, J., concurring in judgment 443 U.S. ume of work of this character has already led some of our most distinguished lawyers to discontinue or reject service on the federal bench.13 The addition of a significant volume ing it? In view of the awesomeness of the consequences of conviction, shouldn't we allow redetermination of the merits in an attempt to make sure that no error has occurred? "Surely the answer runs, in the first place, in terms of conservation of resources-and I mean not only simple economic resources, but all of the intellectual, moral, and political resources involved in the legal system. The presumption must be, it seems to me, that if a job can be well done once, it should not be done twice. If one set of institutions is as capable of performing the task at hand as another, we should not ask both to do it. The challenge really runs the other way: if a proceeding is held to determine the facts and law in a case, and the processes used in that proceeding are fitted to the task in a manner not inferior t-0 those which would be used in a second proceeding, so that one cannot demonstrate that relitigation would not merely consist of repetition and second-guessing, why should not the first proceeding 'count'? Why should we duplicate effort? After all, it is the very purpose of the first go-around to decide the case. Neither it nor any subsequent go-around can assure ultimate truth. If, then, the previous determination is to be ignored, we must have some masoned institutional justification why this should be so. "Mere iteration of process can do other kinds of damage. I could imagine nothing more subversive of a judge's sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by someone else. Of course this does not mean that we should not have appea.ls. As we shall see, important functional and ethical purposes are served by allowing recourse to 3Jl appellate court in a unitary system, and to a federal supreme court in a federal system. The acute question is the effect it will have on a trial judge if vie then allow still further recourse where these purposes may no longer be rekvant. What seems so objectionable is second-guessing merely for the sake of second-guessing, in the service of the illusory notion that if we only try hard enough we will find the 'truth.'" Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 450-451 (1963). See also F. James, Civil Procedure 518 (1965). 13 The testimony of Griffin Bell at his confirmation hearings for Attorney General is particularly relevant. When asked by Senator Scott of VirJACKSON v. VIRGINIA 339 307 STEVENS, J., concurring in judgment of pointless labor can only impair the quality of justice administered by federal judges and thereby undermine "the respect and confidence of the community in applications of the ... law." In re Winship, 397 U. S., at 364. For these reasons, I am unable to join the Court's gratuitous directive to our colleagues on the federal bench. ginia why he had earlier resigned from his seat on the Court of Appeals for the Fifth Circuit, Judge Bell responded: "I found it not to be a rewarding experience any longer. Whether it was because there was no more excitement after the 19601s1 or whether it was because the case load changed, but the work load was oppressive. I would not have minded the work load, but the character of the cases changed. It was almost lik(> S(>rving on a criminal court. I did not want to do that any longer." Hearings on the Prospective Nomination of Griffin B. Bell, of Georgia, to be Attorney General, before the Senate Committee on the Judiciary, 95th Cong., 1st Se:ss., 27 (1977). 340 OCTOBER TERM, 1978 Syllabus 443 U.S. FEDERAL OPEN :MARKET COMMITTEE OF THE FEDERAL RESERVE SYSTE.M v. MERRILL CERTIORARI TO THE L'NITED STATES COL"RT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT '.\Jo. 77-1387. Argued December 6, 1978-Decided .JunC' 28, 1979 This case presents the question whether the Freedom of Information Act (FOLi\) is Yiolat-ed by petitioner's practice, authorized by regulation, 12 CFR § 271.5 (1978), of withholding certain monPtnry policy directives from the public during the month they are in effect, such directives being published in full in the Frderal Register at the end of the month. To implement its authority to conduct open market operations of the Federal Reserve System, petitioner has established a combined investment pool for all Federal Reserve banks, administered by the Account :\fanager. Petitioner meets npproximately once a month to review the overall state of the economy and consider the appropriate course of monetary and open market policy. Its principal conclusions are embodied in a "Domestic Policy Directiw," which indicates in ge>neral terms whether petitioner wishes to follow an expansionary, deflationary, or unchanged monetary r)o!icy in the period ahead, and which indudes specific tolerance ranges for the growth in the money supply and for the federal funds rate. The Account Manager is guided by the Domestic Policy Directive in his transactions with dealers who trade in Government securities. A Domestic Policy Directi\·e exists as a document for approximately one month before it appears in the Federal Register, by which time it has been supplanted by a new Directive. Respondent, who had been denied immediate nccess under the FOIA to certain records of petitioner's policy actions, instituted suit for declaratory and injunctive relief against the operation of 12 CFR § 271.5 and the policy of delayed disclosure. Without rxpressly considning petitioner's contention that immediate disclosurt> of Domestic Policy Directives and tolerance ranges would interfere with the conduct of national monetary policy, the District Court entered judgment for respondrnt, holding, inter alia, that the Directives were "statements of general policy" which, under the FOIA, had to be "currently" published in the Federal Register; that the I-month delay failed to satisfy the current publication requirement; and that the Directives could not be withheld under Exemption 5 of the FOIA, which applies to documents that are "interagency or intra-agency memorandums or letters which would not be 340 FEDERAL OPEN MARKET COMMITTEE v. MERRILL 341 Syllabus available by law to a party ... in litigation with the agency." The Court of Appeals affirmed, rrlso expressing no opinion about petitioner's assertion that immediate disclosure of Domestic Policy Directives and tolerance ranges would seriously interfere with the conduct of national monetary policy. Held: 1. Petitioner's Domestic Poliry Directives are "intra-agency memorandums" within the meaning of Exemption 5 of the FOIA. Petitioner is clearly an "agency" as that term is defined in the Administrative Procedure Act, and the Directives are essentially petitioner's written instructions to the Account Manager, a subordinate official of the agency. The instructions are binding only upon the Account Manager, and neither establish rules that govern the adjudication of individual rights nor require particular conduct or forbearance by any member of the public. Pp. 352-353. 2. Although Exemption 5 does not confer general authority upon an agency, without regard to any privilege enjoyed by the Government in the civil discovery context, to delay disclosure of intra-agency memorandums that would undermine the effectiveness of the agency's policy if released immediately, nevertheless Exemption 5 docs incorporate a qualified privilege for confidential commercial information, at least to the extent that this information is generated by the Government itself in the process leading up to awarding a contract. See Fed. Rule Civ. Proc. 26 ( c) (7). Pp. 353- 360. 3. Although petitioner's Domestic Policy Directives can fairly be described as containing confidential commercial information generated in the process of awarding a contract, it does not necessarily follow that they would be protected against immediate disclosure in the civil discovery process. If the Directives contain sensitive information not otherwise available, and if immediate release of the Directives would significantly harm the Government's monetary functions or ~ommnr.iAl interests, then a slight delay in the publication of the Directives, such as that authorized by 12 CFR § 271.5, would be permitted under Exemption 5. Determination of whether, or to what extent, the Directives would in fact be afforded protection in civil discovery must await the development of a proper record on remand. If the District Court concludes that the Directives would be afforded protection, then it should also consider whether the operative portions of the Directives can faasibly be segregated from the purely descriptive materials therein, and the latter made subject to disclosure or publication without delay. See EPA v. Mink, 410 U. S. 73, 91. Pp. 361-364, 184 U. 8. App. D. C. 203, 565 F. 2d 778, vacated and remanded. 342 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. BLACKMUN, J., deliveJ1ed the opinion of the Court, in which BURGER, C. J., and BRENNAN, \VHITE, MARSHALL, PowELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which STEWART, J., joined in part, post, p. 364. Kenneth S. Geller argued the cause for petitioner. With him on the briefs were Solicitor General M cCree, Assistant Attorney General Babcock, Leonard Schaitman, and Thomas G. Wilson. Victor H. Kramer argued the cause for respondent. With him on the brief was Douglru; L. Parker.* MR. JusTICE BLACKMUN delivered the opinion of the Court. The Federal Open Market Committee has a practice, authorized by regulation, 12 CFR § 271.5 (1978),1 of withholding *Diane B. Cohn and Girardeau A. Spann filed a brief for the Reporters Committee for Freedom of the Press et al. as amici curiae urging affinnance. 1 The regulation provides: "§ 271.5 Deferment of availability of certain information. "(a) Deferred availability of information. In some instances, certain types of information of the Committee are not published in the FEDERAL REGISTER or made available for public inspection or copying until after such period of time as the Committee may determine to be reasonably necessary to avoid the effects described in paragraph (b) of this section or as may otherwise be necessary to prevent impairment of the effective discharge of the Committee's statutory :responsibilities. "(b) Reasons for deferment of availability. Publication of, or access to, certain information of the Committee may be deferred because earlier disclosure of such information would: " ( 1) Interfere with the orderly execution of policies adopted by the Committee in the performance of its statutory functions; "(2) Permit speculators and others to gain unfair profits or to obtain advantages by speculative trading in securities, foreign exchange, or otherwise; "(3) Result in unnecessary or unwarranted disturbances in the securities market; " ( 4) Make open market operations more costly; "(5) Interfere with the orderly execution of the objectives or policies FEDERAL OPEN MARKET COMMITTEE v. MERRILL 343 340 Opinion of the Court certain monetary policy directives from the public during the month they are in effect. At the end of the month, the directives are published in full in the Federal Register. The United States Court of Appeals for the District of Columbia Circuit held that this practice violates the Freedom of Information Act, 5 U. S. C. § 552. 184 U. S. App. D. C. 203, 565 F. 2d 778 ( 1977). We granted certiorari on the strength of the Committee's representations that this ruling could seriously interfere with the implementation of national monetary policy. 436 U.S. 917 (1978). I Open market operations-the purchase and sale of Government securities in the domestic securities market-are the most important monetary policy instrument of the Federal Reserve System.2 When the Federal Reserve System buys securities in the open market, the payment is ordinarily credited in the reserve account of the seller's bank, increasing the total volume of bank reserves. When the Federal Reserve System sells securities on the open market, the sales price usually is debited in the reserve account of the buyer's bank, decreasing the total volume of reserves. Changes in the volume of bank reserves affect the ability of banks to make loans of other Government agencies concerned with domestic or foreign economic or fiscal matters; or "(6) Interfere with, or impair the effectiveness of, financial transactions with foreign banks, bankers, or countries that may influence the flow of gold and of dollar balances to or from foreign countries." 2 App. 46, 55. See generally Board of Governors of the Federal Reserve System, The Federal Reserve System, Purposes and Functions 14--15, 49-67 (197 4). Other major economic tools employed by the Federal Reserve System include the setting of reserve requirements for commercial banks that are members of the Federal Reserve System, and the determination of the discount rate for borrowing by member banks. App. 46, 56. 344 and investments.3 interest rates and whole. OCTOBER TERM, 1978 Opinion of the Court 443 U.S. This in turn has a substantial impact on investment activity in the economy as a The Federal Open Market Committee (FOMC or Committee), petitioner herein, by statute has exclusive control over the open market operations of the entire Federal Reserve System. 12 U. S. C. § 263 (b). The FO:MC • is charged with conducting open market operations "with a view to accommodating commerce and business and with regard to their bearing upon the general credit situation of the country." § 263 (c). To implement this authority, the Committee has established a combined investment pool for all Federal Reserve banks, known as the System Open Market Account. A senior officer of the Federal Reserve Bank of X ew York is regularly appointed Account :Manager of the System Open Market Account. The FOMC meets approximately once a month to review the overall state of the economy and consider the appropriate course of monetary and open market policy. The Committee's principal conclusions are embodied in a statement called the Domestic Policy Directive. The Directive summarizes the economic and monetary background of the FOMC's deliberations and indicates in general terms whether the Committee ·wishes to follow an expansionary, deflationary, or unchanged monetary policy in the period ahead. The Committee also attempts to agree on specific tolerance ranges 3 Under the Federal Reserve Board's Regulation D, 12 CFR Pt. 204 (1978), member banks are required to hold reserves in a prescribed ratio to deposits. 1'-'lember banks typically respond to an increase in arnilable reserves (or to a reduction in the required reserve-to-deposit ratio) by either making new loans and investments, or by selling their excess reserves to other member banh that can take advantage of these reserves because of particular lending or investment opportunities. App. 47. 4 The Committee is composed of the seven members of the Board of Governors of the Federal Reserve System, nnd five representatives of the Federal Reserve banks. 12 U. S. C. § 263 (a). FEDERAL OPEN MARKET COMMITTEE v. MERRILL 345 340 Opinion of the Court for the growth in the money supply and for the federal funds rate.5 The recent practice of the Committee has been to include these tolerance ranges in the Domestic Policy Directive.6 5 The tolerance ranges for the growth of the money supply are stated in terms of "M1," defined as currency in circulation plus demand deposits held by the public in commercial banks, and "M2 ," defined as "Mi'' plus time and savings deposits, other than large negotiable certificates of deposit, held in commercial banks. App. 81. The federal funds rate is the rate at which commercial banks are willing to lend or borrow immediately available reserves on an overnight basis. Id., at 78. As such, it is particularly sensitive to changes in the availability of reserves. The Committee's use of these concepts, expressed in terms of tolerance ranges, is illustrated by the operative language of the Domestic Policy Directive adopted at the October 17, 1978, meeting of the FOMC: "Early in the period before the next regular meeting, System open market operations shall be directed at attaining a weekly-average Federal funds rate slightly above the current level. Subsequently, operations shall be directed at maintaining the weekly-average Federal funds rate within the range of 83/4 to 9¼ per cent. In deciding on the specific objective for the Federal fonds rate the 11anager shall be guided mainly by a range of tolerance for growth in M-2 over the October-November period of 5½ to 9½ per cent, provided that growth of M-1 over that period does not exceed an annual rate of 6½ per cent." 64 Fed. Res. Bull. 947, 956, (1978). 6 Prior to February 1977, the Domestic Policy Directives did not include specific tolerance ranges for the growth in money supply and the federal funds rate. Instead, the operative language of the Directives contained such general phrases as "the Committee seeks to achieve some easing in bank reserve and money market conditions, provided that the monetary aggregates do not appear to be growing excessively"; "the Committee seeks to achieve ba,nk reserve and money market conditions consistent with more rapid growth in monetary aggregates over the months ahead than has occurred in recent months"; or "the Committee seeks to achieve bank reserve and money market conditions consistent with moderate growth in monetary aggregates over the months ahead." App. 82-83. The record does not indicate in what manner the tolerance ranges were communicated to the Account Manager during this period. After February 1977, the operative language of the Directives began to incorporate specific tolerance ranges of the form set forth in n. 5, supra. The record contains no explanation as to why the FOMC began including 346 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. The day-to-day operations of the Account Manager are guided by the Domestic Policy Directive and associated tolerance ranges, a.nd by a daily conference call with the staff and at least one member of the FOMC. Subject to this oversight, the Manager has broad discretion in implementing the Committee's policy. In transacting business for the System Open Market Account, he deals with about 25 dealers who actively trade in United States Government and federal agency securities. Roughly half of these dealers are departments of large commercial banks; the others include large investment firms and smaller firms that specialize in Government securities. These dealers trade primarily for their own account. App. 33. The Federal Reserve Board is required by statute to keep a record of all policy actions taken by the FOMC with respect to open market operations. 12 U. S. C. § 247a. To comply with this requirement, the FOMC secretariat prepares a document during the month a.f ter each Committee meeting. This document is called the Record of Policy Actions. It contains a general review of economic and monetary conditions at the time of the meeting, the text of the Domestic Policy Directive, any other policy actions taken by the Committee, the votes on these actions, and the dissenting views, if any. A draft of the Record of Policy Actions is distributed to the participants at the next meeting of the Committee for their comments, and is revised and released for publication in the Federal Register a few days later. 41 Fed. Reg. 22261 (1976). In other ,vords, the Record of Policy Actions is published in the Federal Register aJmost as soon as it is drafted and approved in final form by the Committee.7 The Domestic the tolerance ranges in the Directives at that time. Nor is there any explanation in the Record of Policy Artions issued after the February meeting. 63 Fed. Res. Bull. 380-394-(1977). 7 Prior to 1967, the Records of Policy Actions were published only in the Federal Reserve Board's Annual Report to Congress. See Committee's Press Release, Mar. 24, 1975, App. 59; 413 F. Supp. 494, 504 (DC 1976). In response to the passage of the Freedom of Information Act in that FEDERAL OPEN MARKET COMMITTEE v. MERRILL 347 340 Opinion of the Court Policy Directive, however, exists as a document for approximately one month before it makes its first public appearance as part of the Record of Policy Actions. Moreover, by the time the Domestic Policy Directive is released as part of the Record of Policy Actions, it has been supplanted by a new Directive and is no longer the current and effective policy of the FOMC. II Respondent, when this action was instituted in May 1975, was a law student at Georgetown University Law Center, Washington, D. C. App. 8. The complaint alleged that he had "developed a strong interest in administrative law and the operation of agencies of the federal government," and had formed a desire to study "the process by which the FOMC regulates the national money supply through the frequent adoption of domestic policy directives." Ibid. In pursuit of these professed academic interests, respondent in March 1975, through counsel, filed a request under the Freedom of Information Act (FOIA) seeking the "[r]ecords of policy actions taken by the Federal Open Market Committee at its meetings in January 1975 and February 1975, including, but not limited to, instructions to the Manager of the Open Market Account and any other person relating to the purchase and sale of securities and foreign currencies." Id., a.t 13.8 year, the FOMC instituted a policy of releasing the Record of Policy Actions, including the Domestic Policy Directive, 90 days after the Directive was adopted by the Commission. Ibid. On March 21, 1975, just before the instant lawsuit was filed, the period of delay was shortened to 45 days. 40 Fed. Reg. 13204 (1975). The present policy was adopted on May 24, 1976. 41 Fed. Reg. 22261 (1976). Because the Rerord of Policy Actions is not completed :md formally adopted until the meeting after the meeting to which it applies, respondent apparently conceded in the Court of Appeals that the Committee's present guidelines for release of that document are consistent with the FOIA. See 184 U. S. App. D. C. 203, 207, 565 F. 2d 778, 782 (1977). 8 Respondent also requested the Memoranda of Discussion for the January 1975 and February 1975 meetings. App. 13. Memoranda of Discus348 OCTOBER TERYI, 1978 Opinion of the Court 443U.S. The FOMC denied the request, explaining that the Records of Policy Actions, including the Domestic Policy Directive, were available only on a delayed basis under the policy set forth in 12 CFR § 271.5.0 An administrative appeal resulted in release of the requested documents, but only because the withholding period by then had expired. Governor Robert C. Holland of the Federal Reserve Board, on behalf of the Committee, wrote to respondent's counsel that the Committee remained firmly committed to what he described as "a legislative policy against premature disclosures which would impair the effectiveness of the operations of Government agencies." App. 21. Respondent then instituted this litigation in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief against the operation of 12 CFR § 271.5 and the policy of delayed disclosure. App. 7. The FOMC in due course moved for summary judgment, and submitted affidavits from Committee members and staff that generally advanced two reasons why immediate disclosure of the Domestic Policy Directives and tolerance ranges would interfere with the FOMC's statutory functions. First, the Committee argued that immediate release of the sion were detailed minutes of the statements made and actions taken at the Committee's meetings. The District Court held that under 5 U. S. C. § 552 (b) ( 5) respondent was entitled to those parts of the :Memoranda that contained "reasonably segregable" statements of fart, 413 F. Supp., at 506, and the parties subsequently agreed on the factual portions of the Memoranda to be produced. This ruling was not challenged in the Court of Appeals, see 184 U. S. App. D. C., at 207 n. 8, 565 F. 2d, at 782 n. 8, and is not in issue here. In May 1976, the FOMC voted to discontinue the preparation of Memoranda of Discussion, 62 Fed. Res. Bull. 581, 590-591 (1976). 9 In accordance with the then-current policy of the FOMC, see n. 7, supra, the regulation specifically provided that "the Committee's current economic policy directive adopted at each meeting of the Committee is pubished in the FEDERAL REGISTER approximately 90 days after the date of its adoption." 12 CFR § 271.5 (1975). FEDERAL OPEN MARKET COMMITTEE v. MERRILL 349 340 Opinion of the Court Domestic Policy Directive and tolerance ranges would make it difficult to implement limited or gradual changes in monetary policy. Disclosure of the FOMC's monetary policy objectives would have an immediate "announcement effect," as market participants moved quickly to adjust their holdings of Government securities in anticipation of purchases or sales by the System Open Market Account. This would result in sudden price and interest rate movements, which might be considerably larger than the Committee contemplated and might be beyond the power of the FOMC or the Federal Reserve to control. Second, the FOMC contended that immediate disclosure of the Directive and tolerance ranges would permit large institutional investors, who would have the means to analyze the information quickly and act rapidly in buying or selling securities, to obtain an unfair advantage over small investors. Respondent submitted no counter-affidavits to these contentions, since he considered them "irrelevant" to the legal issues presented. Brief for Respondent 33-34, n. 12. The District Court apparently agreed. Without addressing the FOMC's affidavits, or entering any findings about the effect that premature disclosure might have on open market operations, the court granted summary judgment for respondent. 413 F. Supp. 494 (DC 1976). It held, as the FOMC had conceded. that the Domestic Policy Directives were "statements of general policy ... formulated and adopted by the agency" that, under 5 U. S. C. § 552 (a)(l)(D) , had to be "currently publish [ ed] in the Federal Register for the guidance of the public." 10 It further concluded that by waiting until a new 10 Section 552 provides: "(a) Each agency shall make available to the public information as follows: "(I) Each agrncy ~hall separately state and currently publish in the Federal Register for the guidance of the public- " (D) substantive rules of general applicability adopted as authorized by 350 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. Directive had been promulgated before publishing the preceding one, the FOMC was in violation of the "current publication" requirement. 413 F. Supp., at 505. Finally, the court rejected the Committee's contentions that the Domestic Policy Directives could be withheld under either Exemption 2 of the FOIA, relating to internal personnel rules and practices of an agency, or Exemption 5, relating to inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with an agency.11 On appeal to the United States_ Court of Appeals for the District of Columbia Circuit, the FOMC did not contest the ruling that the Domestic Policy Directives were "statements of general policy" that, under § 552 (a)(l)(D), had to be "currently publish[ed]" in the Federal Register. Similarly, it did not challenge the conclusion that the 1-month delay failed to satisfy the current-publication requirement. Moreover, the Committee abandoned the argument that the Directives were covered by Exemption 2. The Committee, instead, concentrated on the contention that premature disclosure would seriously disrupt the conduct of open market operations, and continued to urge that the policy of delayed disclosure was authorized by Exemption 5. law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency." The District Court also held that policy actions of the FOMC other than the Domestic Policy Directive had to be indexed and promptly disclosed pursuant to 5 U.S. C. § 552 (a) (B). 11 Title 5 U. S. C. § 552 also provides: "(b) This section does not apply to matters that are- "(2) related solely to the internal personnel rules and practices of an agency; " ( 5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." FEDERAL OPEN MARKET COMMITTEE v. MERRILL 351 340 Opinion of the Court The Court of Appeals rejected the FOMC's Exemption 5 arguments. It held that the Domestic Policy Directives were not exempt from disclosure under the "executive" privilege attaching to predecisional communications. It also ruled that Exemption 5 was not designed to protect against premature disclosure of otherwise final decisions. Finally, it concluded that there was no other civil discovery privilege that could serve as a basis for holding that the Directives were exempt from disclosure under Exemption 5. Like the District Court, the Court of Appeals expressed no opinion about the FOMC's assertion that immediate disclosure of the Domestic Policy Directives and tolerance ranges would seriously interfere with the conduct of national monetary policy. If the assertion were true, the court suggested, Congress could specifically exempt this material from the prompt-disclosure requirement of the FOIA.12 184 U. S. App. D. C. 203, 565 F. 2d 778 (1977). III This Court has had frequent occasion to consider the FOIA,13 and it is not necessary to describe its history and background in detail. It suffices to say that the purpose of the FOIA is "to establish a general philosophy of full agency disclosure unless information is exempted under clearly delin- 12 The third exemption specified by 5 U. S. C. § 552 (b) covers matters that are "(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 13 See EPA v. Mink, 410 U. S. 73 (1973); Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1 (1974); NLRB v. Sears, Roebuck & Co., 421 U. S. 132 (1975); Renegotiation Board v. Grumman Aircraft Corp., 421 U.S. 168 (1975); FAA Adminuitrator v. Robertson, 422 U.S. 255 (1975); Department of Air Force v. Rose, 425 U. S. 352 ( 1976); NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214 (1978); Chrysler Corp. v. Brown, 441 U.S. 281 (1979). 352 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. eated statutory language." S. Rep. Ko. 813, 89th Cong., 1st Sess., 3 (1965). The Act makes available to any person all agency records, which it divides into three categories: some must be currently published in the Federal Register, 5 U. S. C. § 552 (a)(l); others must be "pr::imptly publish[ed]" or made publicly available and indexed, § 552 (a) (2); and all others must be promptly furnished on request, § 552 (a) (3). It then defines nine specific categories of records to which the Act "does not apply." § 552 (b). The district court is given jurisdiction to enjoin an agency from withholding agency records, and to order the production of any agency records improperly withheld. § 552 (a)(4)(B). The burden in any such proceeding is on the agency to establish that the requested information is exempt. Ibid. At issue here is Exemption 5 of the FOL\, which provides that the affirmative disclosure provisions do not apply to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." § 552 (b) (5). Exemption 5, in other words, applies to documents that (a) are "interagency or intra-agency memorandums or letters," and (b) consist of material that "would not be available by Ia,v to a party ... in litigation with the agency." A There can be little doubt that the FOMC's Domestic Policy Directives constitute "inter-agency or intra-agency memorandums or letters." FOMC is clearly an "agency" as that term is defined in the Administrative Procedure Act. 5 U.S. C. §§ 551 (1), 552 (e). And the Domestic Policy Directives are essentially the FOMC's written instructions to the Account Manager, a subordinate official of the agency. These instructions, although possibly of interest to members of the public, are binding only upon the Account Manager. The Directives do not establish rules that govern the adjudication of inFEDERAL OPEN MARKET COMMITTEE v. MERRILL 353 340 Opinion of the Court dividual rights, nor do they require particular conduct or forbearance by any member of the public. They are thus "intra-agency memorandums" within the meaning of Exemption 5. B Whether the Domestic Policy Directives "would not be available by law to a party ... in litigation with the agency" presents a more difficult question. The House Report stat~s that Exemption 5 was intended to allow an agency to withhold intra-agency memoranda which would not "routinely be disclosed to a private party through the discovery process in litigation with the agency .... " H. R. Rep. No. 1497, 89th Cong .. 2d Sess., 10 (1966). EPA v. Mink, 410 U.S. 73, 86-87 (1973), recognized that one class of intra-agency memoranda shielded by Exemption 5 is agency reports and working papers subject to the "executive" privilege for predccisional deliberations. 1V. LRB v. Sears, Roebuck & Co., 421 lT. S. 132 (1975), confirmed this interpretation, and further held that Exemption 5 c>ncompasscs materials that constitute a privileged attorney's work product. Id., at 154-155. The FOMC does not contend that the Domestic Policy Directives are protected by either the privilege for predecisional communications or the privilege for an attorney's work product.14 Its principal argument, instead, is that Exemption 5 confers general authority upon an agency to delay disclosure of intra-agency memoranda that would undermine the effectiveness of the agency's policy if released immediately. This general authority exists, according to the FOMC, even if the memoranda in question could be routinely discovered by a party in civil litigation with the agency. We must reject this analysis. First, since the FOMC does not indicat€ that the asserted authority to defer disclosure of 14 Although the FOMC argued in the Court of Appeals that the Domestic Policy Directives wen' protected by executive privilege, it has not presented that argument here. Brief for Petitioner 30 n. 22. 354 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. intra-agency memoranda rests on a privilege enjoyed by the Government in the civil discovery context, its argument is fundamentally at odds with the plain language of the statute. EPA v. Mink, 410 U.S., at 85-86; NLRB v. Sears, Roebuck & Co., 421 U. S., at 149. In addition, the Committee's argument proves too much. Such an interpretation of Exemption 5 would appear to allow an agency to withhold any memoranda, even those that contain final opinions and statements of policy, whenever the agency concluded that disclosure would not promote the "efficiency" of its operations or otherwise would not be in the "public interest." This would leave little, if anything, to FOIA's requirement of prompt disclosure, and would run counter to Congress' repeated rejection of any interpretation of the FOIA which would allow an agency to withhold information on the basis of some vague "public interest" standard. H. R. Rep. No. 1497, supra, at 5, 9; S. Rep. No. 813, supra, at 3, 5, 8; EPA v. Mink, 410 U. S., at 78-80. The FOMC argues, in the alternative, that there are several civil discovery privileges, in addition to the privileges for predecisional communications and an attorney's work product, that would allow a district court to delay discovery of documents such as the Domestic Policy Directives until they are no longer operative. The Committee contends that Exemption 5 incorporates each of these privileges, and that it thus shields the Directives from a requirement of immediate disclosure. Preliminarily, we note that it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery. See NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 254 n. 12 (1978) (PowELL, J., concurring in part and dissenting in part). There are, to be sure, statements in our cases construing Exemption 5 that imply as much. See, e. g., Renegot-iation Board v. Grumman Aircraft Corp., 421 U.S. 168, 184 (1975) ("Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and FEDERAL OPEN MARKET COMMITTEE v. MERRILL 355 340 Opinion of the Court case law in the pretrial discovery context"). Heretofore, however, this Court has recognized only two privileges in Exemption 5, and, as NLRB v. Sears, Roebuck & Co., 421 U.S., at 150- 154, emphasized, both these privileges are expressly mentioned in the legislative history of that Exemption.15 Moreover, material that may be subject to some other discovery privilege may also be exempt from disclosure under one of the other eight exemptions of FOIA, particularly Exemptions 1, 4, 6, and 7.16 We hesitate to construe Exemption 5 to incorporate a civil discovery privilege that would substantially duplicate another exemption. Given that Congress specifically recognized that certain discovery privileges were incorporated into Exemption 5, and dealt with other civil discovery privileges in exemptions other than Exemption 5, a claim that a privilege other than executive privilege or the attorney privilege is covered by Exemption 5 must be viewed with caution. The most plausible of the three privileges asserted by the FOMC 11 is based on Fed. Rule Civ. Proc. 26 (c)(7), which 15 See H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966) (referring to "advice from staff assistants and the exchange of ideas among agency personnel"); S. Rep. No. 813, 89th Cong., 1st Sess., 2 (1965) (noting that Exemption 5 includes "the working papers of the agency attorney and documents which would come within the attorney-client privilege if applied to private parties") . 16 Exemption 1 applies to classified national security information ; Exemption 4 applies to trade secrets and privileged commercial or financial information obtained from a person; Exemption 6 covers personnel and medical files the disclosure of which would constitute a clearly unwarranted invasion of privacy; and Exemption 7 shields certain types of investigatory records gathered for law enforcement purposes. 5 U. S. C. §§ 552 (b)(l), (4), (6), (7). 17 The two other privileges advanced by the FOMC are a privilege for "official gove-rnmcnt information" whose disclosure would be harmful to the public interest, see Machin v. Zuckert, 114 U. S. App. D. C. 335. 338, 316 F. 2d 336, 339, cert. denied, 375 U. S. 896 (1963), and a priYilege based on Fed. Rule Civ. Proc. 26 ( c) (2), which permits a court to order that discovery "may be had only on specified terms and conditions, including a designation of the time or place." In light of our disposition of 356 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. provides that a district court, "for good cause shown," may order "that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way." 18 The Committee argues that the Domestic Policy Directives constitute "confidential ... commercial information," at least during the month in which they provide guidance to the Account Manager, and that they therefore would be privileged from civil discovery during this period. The federal courts have long recognized a qualified evidentiary privilege for trade secrets and other confidential commercial information. See, e. g., E. I. du Pont de Nemours Powder Co. v. Masland, 244 U.S. 100, 103 (1917); 8 J. Wigmore, Evidence § 2212, pp. 156- 157 (McNaughton rev. 1961 ). The Federal Rules of Civil Procedure provide similar qualified protection for trade secrets and confidential commercial information in the civil discovery context. Federal Rule Civ. Proc. 26 (c)(7), which replaced former Rule 30 (b) in 1970, was intended in this respect to "reflec [ t] existing law." Advisory Committee's Xotcs on Fed. Rule CiY. Proc. 26, 28 U. S. C. App., p. 444. The Federal Rules, of course, are fully applicable to the United States as a party. See, e. g., United States v. Procter & Gamble Co., 356 U. S. 677, 681 (1958); 4 J. Moore, Federal Practice ,r 26.61 [2], p. 26-263, (1976). And this case, we do not consider whether either asserted privilege is incorporat€ d in Exemption 5. 1 s The full text reads: "Upon motion by a party or by the person from whom discovery is sought, and for good rause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order whirh justice requires to protect a party or person from annoyance, rmbarrassmrnt, oppression, or undue burden or expense, including one or more of the following: ... (7) that a trade secret or other confidential research, development, or commerrial information not be disclosed or be diselosed only in a designated way." Fed. Rule Civ. Proc. 26 (c) (7). FEDERAL OPEN MARKET COMMITTEE v. MERRILL 357 340 Opinion of the Court we see no reason why the Government could not, in an appropriate case, obtain a protective order under Rule 26 (c)(7).19 To be surr, the House and Senate Reports do not provide the same unequivocal support for an Exemption 5 privilege for "confidential ... commercial information" as they do for the executive and attorney work product privileges. Nevertheless, we think that the House Report, when read in conjunction with the hearings conducted by the relevant House and Senate Committees, can fairly be read as authorizing at least a limited form of Exemption 5 protection for "confidential ... commercial information." In hearings that precedPd the Pnactment of the FOIA, various agencies complained that the original Senate bill, which did not include the present Exemption 5,20 failed to 19 Ser Menominee Engineering Corp. v. United States, 20 Fed. Rules Serv. 2d 894 (Ct. Cl. 1975); Consolidated Box Co., Inc. v. United States, 18 Fed. Rules Serv. 2d 115 (Ct. Cl. 1973) (involving applications for protective ordrrs under the identically worded Rule 71 (f) of the Court of Claims). 20 S. 1666, introduced in the 88th Congrrss in 1963, included a fifthnumbered exemption for "intra-agC'nc~r or inter-agency memorandums or letters dealing solely with matters of law or policy." It was reported favorably by the Senate Judiciary CommitteC', S. Rep. No. 1219, 88th Cong., 2d Sess. (1964), and pas~ed thr Senatr, but rearhed the House too late for action. Department of Air Force v. Rose. 425 U. S., at 362- 363; Renegotiation Board v. Bannercraft Clothing Co., 415 U. S., at 18 n. 18. Substantially the same measure was rrint.roduced in the 89th Congress as S. 1160 and H. R. ,5012. Freedom of Information Source Book, Subrommittec on Administrative Practice and Procedure, Senate Judiciary Committrr. S. Doc. No. 93-82, p. 8 (1974). After additional hearings in the House in ?viarch and April 196.5, Hearings on H. R. 5012, etc., before a Subrommitt<'e of the House Commit.tee on Government Operations, 89t h Cong., 1st Sess. (1965), and in the Senate in l\fay 1965, Hearings on S. 1160, ek, before the Subrommittee on Administrative Practicr :rnd Procedure of the Senate Committee on the JudiciaD', 89th Cong., 1st Srss. (1965), the Senate Judiciary Committee struck the words "dealing solely with matters of law or policy," and inserted in lieu thereof "which would not be available by law to a private party in litigation with 358 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. provide sufficient protection for confidential commercial information and other information about Government business transactions. For example, the Department of Defense expressed concern that information relating to the purchase or sale of real estate, materials, or other property might not be protected, Hearings on S. 1160, etc., before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 418 (1965); the General Services Administration stressed the need to avoid early disclosure of information that might prejudice the ,Government's bargaining position in business transactions, ,id., at 480; and the Post Office Department urged that in matters such as the negotiation of contracts, it should stand on the same footing as a private party. Hearings on H. R. 5012, etc., before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 224 (1965). Included among those expressing such criticism was the Acting General Counsel of the Department of the Treasury, who specifically referred to the Department's concern about premat'ure disclosure of information concerning Federal Reserve open market operations. Id., at 49.21 the agency." S. Rep. No. 813, supra n. 15, at 1. The bill, as thus amended, passed the Senate on October 13, 1965. It was reported favorably by the House Committee on Government Operations, H. R. Rep. No. 1497, supra n. 15, passed the House on June 20, 1966, and was signed by President Johnson on July 4, 1966. 21 Acting General Counsel Smith stated: "I might interpolate at this point another example or two which I do not have in my statement. Information as to purchases by the Federal Reserve System, for example, of Government securities in the market, if prematurely disclosed could have, we feel; serious effects on the orderly handling of the Government's financing requirements so that in all of these things there is a question of timing. There are many things on which full disclosure is made in reports which are published or filed with the Congress with a timelag, there is no basic secrecy about these matters, and yet the premature release of these could be very damaging to the general interest." FEDERAL OPEN MARKET COMMITTEE v. MERRILL 359 340 Opinion of the Court After the hearings were completed, Congress amended the provision that ultimately became Exemption 5 to provide for nondisclosure of materials that "would not be available by law to a party ... in litigation with the agency." The House Report, echoing the Report on the original Senate bill, S. Rep. No. 1219, 88th Cong., 2d Scss., 6---7, 13---14 (1964), explained that one purpose of the revised Exemption 5 was to protect internal agency deliberations and thereby ensure "full and frank exchange of opinions" within an agency. H. R. Rep. No. 1497, supra n. 15, at 10. It then added, significantly: "Moreover, a Government agency cannot alwa.ys operate effectively if it is required to disclose documents or information which it has received or generated before it completes the process of awarding a contract or issuing an order, decision or regulation. This clause is intended to exempt from disclosure this and other information and records wherever necessary without, at the same time, permitting indiscriminate administrative secrecy" ( emphasis added). Ibid. In light of the complaints registered by the agencies about premature disclosure of information relating to Government contracts, we think it is reasonable to infer that the House Report, in referring to "information ... generated [in] the process of awarding a contract." specifically contemplated a limited privilege for confidential commercial information pertaining to such contracts.22 This conclusion is reinforced by consideration of the cliff erences bet,veen commercial information generated in the process of awarding a contract, and the type of material protected by executive privilege. The purpose of the privilege for predecisional deliberations is to insure that a decision- 22 Although the Senate Report does not contain a similar reference to information generated in the process of awarding a contract, there is no inconsistency in this respect between the House Report and the Senate Report. Cf. Department of Air Poree v. Rose, 425 U. S., at 363-367. 360 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. maker will receive the unimpeded advice of his associates. The theory is that if advice is revealed, associates may be reluctant to be candid and frank. It follows that documents shielded by executive privilege remain privileged even after the decision to which they pertain may have been effected, since disclosure at any time could inhibit the free flow of advice. including analysis, reports, and expression of opinion ·within the agency. The theory behind a privilege for confidential commercial information generated in the process of awarding a contract, however, is not that the flow of advice may be hampered, but that the Government will be placed at a competitive disadvantage or that the consummation of the contract may be endangered. Consequently, the rationale for protecting such information expires as soon as the contract is awarded or the offer withdrawn. We are further convinced that recognition of an Exemption 5 privilege for confidential commercial information generated in the process of awarding a contract would not substantially duplicate any other FOIA exemption. The closest possibility is Exemption 4, which applies to "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U. S. C. § 552 (b) ( 4). Exemption 4, however, is limited to information "obtained from a person," that is, to information obtained outside the Government. See 5 U. S. C. § 551 (2). The privilege for confidential information about Government contracts recognized by the House Report, in contrast, is necessarily confined to information generated by the Federal Government itself. We accordingly conclude that Exemption 5 incorporates a qualified privilege for confidential commercial information, at least to the extent that this information is generated by the Government itself in the process leading up to awarding a contract.23 23 Our conclusion that the Domestic Policy Directives are at least FEDERAL OPEN MARKET COMMITTEE v. MERRILL 361 340 Opinion of the Court C The only remammg questions are whether the Domestic Policy Directives constitute confidential commercial information of the sort given qualified protection by Exemption 5, and, if so, whether they would in fact be privileged in civil discovery. Although the analogy is not exact, we think that the Domestic Policy Directives and associated tolerance ranges are substantially similar to confidential commercial information generated in the process of awarding a contract. During the month that the Directives provide guidance to the Account Manager, they are surely confidential, and the information is commercial in nature because it relates to the buying and selling of securities on the open market. Moreover, the Directive and associated tolerance ranges are generated in the course of providing ongoing direction to the Account potentially eligible for protection under Exemption 5 does not conflict with the District Court's finding that the Directives are "statements of general policy ... formulated and adopted by the agency," which must be "currently publish[ed]" in the Federal Register pursuant to 5 U.S. C. §552 (a)(l). 413 F. Supp., at 504--505. It is true that in NLRB v. Sears, Roebuck & Co., we noted that there is an obvious relationship between Exemption 5 and the affirmative portion of the FOIA which requires the prompt disclosure and indexing of final opinions and statements of policy that have been adopted by the agency. 5 U. S. C. § 552 (a) (2). \Ve held that, with respect to final opinions, Exemption 5 can never apply; with respect to other documents covered by 5 U. S. C. § 552 (a) (2), we said that we would be "reluctant" to hold that the Exemption 5 privilege would ever apply. 421 U. S., at 153-154. These observations, however, were made in the course of a discussion of the privilege for predecisional communications. It should be obvious that the kind of mutually exclusive relationship between final opinions and statements of policy, on one hand, and predecisional communications, on the other, does not necessarily exist between final statements of policy and other Exemption 5 privileges. In this respect, we note that Sears itself held that a memorandum subject to the affirmative disclosure requirement of § 552 (a) (2) was nevertheless shielded from disclosure under Exemption 5 because it contained a privileged attorney's work product. 421 U.S., at 160. 362 OCTOBER TERM, 1978 Opinion of the Court 443U.S. Manager in the execution of large-scale transactions in Government securities; they are, in this sense, the Government's buy-sell order to its broker. Although the Domestic Policy Directives can fairly be described as containing confidential commercial information generated in the process of awarding a contract, it does not necessarily follow that they are protected against immediate disclosure in the civil discovery process. As with most evidentiary and discovery privileges recognized by law, "there is no absolute privilege for trade secrets and similar confidential information." 8 C. Wright & A. Miller, Federal Practice and Procedure§ 2043, p. 300 ( 1970); 4 J. Moore, Federal Practice ,i- 26.60 [ 4J, p. 26-242 (1970). Cf. United States v. Nixon, 418 U. S. 683, 705-707 (1974). "The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case \Veighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection." Advisory Committee's Notes on Fed. Rule Civ. Proc. 26, 28 U. S. C. App., p. 444; 4 J. Moore, Federal Practice ,i- 26.75, pp. 26--540 to 26-543 (1970).24 We are mindful that "the discovery rules can only be applied under Exemption 5 by way of rough analogies," EPA v. Mink, 410 U. S., at 86, and, in particular, that the individual FOIA appli- 24 Actually, orders forbidding any disclosure of trade secrets or confidential commercial information are rare. More commonly, the trial court will enter a protective order restricting disclosure to counsel, see, e. g., Chesa International, Ltd. v. Fashion Associates, Inc., 425 F. Supp. 234 (SDNY 1977); Xerox Corp. v. International Bus£-r1ess Machines Corp., 64 F. R. D. 367 (SDNY 1974); Scovill Mfg. Co. v. Sunbeam Corp., 61 F. R. D. 598 (Del. 1973); or to the parties, see, e. g., Borden Co. v. Sylk, 289 F. Supp. 847 (ED Pa. 1968); United States v. Article of Drug Consisting of 30 Individually Cartoned Jars, More or Less, 43 F. R. D. 181 (Del. 1967); United States v. Standard Oil Co. (New Jersey) , 23 F. R. D. 1 (SDNY 1958). We think the Domestic Policy Directives should be considered "privileged," for Exemption 5 purposes, if any type of order would be appropriate forbidding disclosure of the confidential material therein to the general public. FEDERAL OPEN MARKET COMMITTEE v. MERRILL 363 340 Opinion of the Court cant's need for information is not to be taken into account in determining ,vhether materials are exempt under Exemption 5. Ibid.; NLRB v. Sears, Roebuck & Co., 421 U. S., at 149 n. 16. Nevertheless, the sensitivity of the commercial secrets involved, and the harm that would be inflicted upon the Government by premature disclosure, should continue to serve as relevant criteria in determining the applicability of this Exemption 5 privilege. Accordingly, we think that if the Domestic Policy Directives contain sensitive information not otherwise available, and if immediate release of these Directives would significantly harm the Government's monetary functions or commercial interests, then a slight delay in the publication of the Directives, such as that authorized by 12 CFR § 271.5, would be permitted under Exemption 5. Here, the District Court made no findings about the impact of immediate disclosure of the Domestic Policy Directives and tolerance ranges. The Committee submitted unanswered affidavits purporting to sho,v that prompt disclosure of this information would interfere with the orderly execution of the FOMC's monetary policies, and would give unfair advantage to large investors. In this Court, the FOMC has sought to supplement those affidavits by arguing, for the first time, that immediat€ release of the Domestic Policy Directives would jeopardize the Government's commercial interests by imposing substantial additional borrowing costs on the United States Treasury/" Respondent has sought, again for the first 25 In its brief, the Committee argues that the "announcement effect" produced by immediate disclosure of the Directives and tolerance ranges would cause sharper fluctuations in the interest rates on Government securities traded by the System Open Market Account. As a result of these fluctuations, the risk of dealing in or purchasing Government securities would increase. To compensate for this larger risk, dealers and purchasers would demand a higher yield on Government securities. Given the huge amount of borrowing by the Federal Government each year, even a small change in yield on Government securities would represent a substantial cost to the Government. The F0~1C estimates that the cost might run as high as $300 million annually. Brief for Petitioner 29. 364 OCTOBER TER:\I, 19i8 STEVENS, J., dissenting 443 U.S. time, to show that there is substantial disagreement among experts about the impact of prompt disclosure of the Directives, and that some experts actua11y believe prompt disclosure would have a beneficial effect. Brief for Respondent 33-46. Under the circumstances, we do not consider whether, or to what extent, the Domestic Policy Directives would in fact be afforded protection in civil discovery. That determination must await the development of a proper record. If the District Court on remand concludes that the Directives would be afforded protection. then it should also consider ,vhether the operative portions of the Domestic Policy Directives 20 can feasibly be segregated from the purely descriptive materials therein, and the latter made subject to disclosure or publication without delay. See EPA v. Mink, 410 U. S., at 91. The judgment of the Court of Appeals is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. MR. JvsTICE STEVENS, with whom MR. J'L"STICE STEWART* joins, dissenting. The practical question in this case is whether the Federal Reserve System's monthly changes in monetary policy should be made available immediately to the general public or should be filtered into the market through a handful of sophisticated representatives of large commercial banks and investment firms. The legal question is whether the statutory requirement that statements describing such policy changes be published "currently" means what it says. On the practical level, it seems to me that the operation of an "open" market committee should be open to all~not just 26 See nn. 5 and 6, supra. *~fa. J.usTICE STEWART joins this dissenting opinion insofar as it expresses ,·iews concerning the "legal question" presented. FEDERAL OPEN MARKET COMMITTEE v. MERRILL 365 340 STEVENS, J., dissenting to a selected few.1 On the legal level, I am satisfied that the District Court and the Court of Appeals correctly read the plain language of the Freedom of Information Act. The FOIA, 5 U. S. C. § 552 (a)(l), provides that every "agency shall separately state and currently publish in the Federal Register for the guidance of the public ... statements of general policy ... formulated and adopted by the agency." It is agreed that the Federal Open Market Committee is an agency within the meaning of the Act, and both the District Court and the Court of Appeals concluded that the monthly monetary policy directives are "statements of general policy." This Court does not disagree with that conclusion. It is plain therefore that the statute imposes a mandatory requirement of "current" publication. In my opinion that requirement is not satisfied by withholding publication "temporarily"-i. e., until the policy directives become obsolete. The same principle of construction should apply to monthly policy statements as to annual policy statements. They should be made public while they are effective. Although the Court recognizes that these policy directives may not be permanently withheld from public view without violating the Act, it nonetheless concludes that their tempo- 1 As Professor Milton Friedman of the University of Chicago stated: "May I say also that I have long been in favor of the immediate release of the records of policy actions of the FOMC. I have recommended repeatedly in testimony to Congress that the FOMC meetings be held on a Friday so that the record of policy actions can be written ... and then released not later than Sunday night so that no business days pass without this record being available." Hearings on H. R. 9465 and 9589 before the Subcommittee on Domestic Monetary Policy of the House Committee on Banking, Finance and Urban Affairs, 95th Cong., 1st Sess., 202 (1977). These views also reflect those of Sherman Maisel, a former member of the Federal Resenre Board, who has written in this context that "[m]ost experts on markets ... believe that the better the information, the better the market." S. Maisel, Managing the Dollar 175 (1973). 366 OCTOBER TERM, 1978 STEVENS, J., dissenting 443 U.S. rary suppression is warranted by one of the statutory exemptions to the Act. I find this conclusion incomprehensible. In the first place, nothing in any of the nine exemptions to the Act has any bearing on the present situation.2 But more 2 The Court relies on Exemption 5, but I find its analysis unpersuasive. The Court admirably recognizes the danger of allowing every conceivable discovery privilege to be read into Exemption 5. See ante, at 354-355. It proposes, therefore, that only those privileges that are recognized in the legislative history of FOIA should be incorporated in the Exemption. To the extent, however, that every reference in the subcommittee hearings to the danger of disclo:,ing some type of governmental information suffices under this test-virtually every agency appeared before Congress with a list of such "dangers"-the Exemption would render the Act meaningless. On the other hand, if the Court's test is designed to limit Exemption 5 to those references in the legislative history that clearly bear on Congress' final understanding of the Act, I sec no justification for the Court's recognition of a vague "commercial information" component of that Exemption. First, the passage in the House Report that the Court relies on, which refers to "information which [an agency] has received or generated before it completes the process of awarding a contract," H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966), is rather clearly directed both at a different governmental activity (i. e., procurement of goods or services by the Government acting as commercial buyer) and at a different stage in the course of that activity (i. e., "before it completes [its] process") than is involved in this case. Here, the agency is engaged in a clearly governmental activity-the regulation of financial markets-and has already settled upon its final position and has acted upon it. Moreover, the absence in the Senate Report of even this thin reed to support the Court's analysis is significant in light of our recognition that that Report, rather than the House Report, is the most accurate reflection of the congressional will with respect to FOIA. Department of Air Force v. Rose, 425 U. S. 352, 363-367. Finally, the fact that Congress did include a "commercial information" exemption in the Act, albeit one that clearly does not apply in this case-Exemption 4-should persuasively counsel against our adopting a novel and strained interpretation of another exemption to encompass such information. This is particularly so in this case in view of the fact that the very agency involved here unsuccessfully requested that Congress amend the proposed Exemption 4 to provide protection for the policy directives involved in this case. Hearings on H. R. 5012, etc., before a Subcommittee of the House Committee on GovernFEDERAL OPEN MARKET COMMITTEE v. MERRILL 367 340 STEVENS, J., dissenting fundamentally, the Court's temporary exemption is inconsistent with the structure of the Act. Under FOIA, all information must be released, in the specified manner-i. e., in this case, "currently"-unless it fits into one of nine categories. As to material in those categories, the Act simply "does not apply." 5 U. S. C. § 552 (b) (emphasis added). Between "current" release and total exemption, therefore, the statute establishes no middle ground. Accordingly, I cannot agree with the Court's recognition of a third alternative for "exempt" material to which the Act nonetheless applies-albeit on a delayed basis. If there is to be a new category subject to full disclosure but only after a "slight delay," I believe it should be created by Congress rather than the Court. The Court's nev>'ly created category will impose substantial litigation costs and burdens on any requesting party seeking to overcome an agency's objection to immediate disclosure. For henceforth that party must prove that compliance with the statute's disclosure mandate would not "significantly harm the Government's monetary functions or commercial interests." Ante, at 363. The imposition of such an obstacle to prompt disclosure is inconsistent with the overriding statutory policy of giving the ordinary citizen unfettered access to information about how his Government operates.3 I respectfully dissent. ment Operations, 89th Cong., 1st Sess., 51, 55, 228, 229 (1965). Having failed to provide such protection in Exemption 4, which so clearly relates to commercial information, Congress wiH no doubt be surprised to find that the Court has read that protection into Exemption 5. 3 E. g., Department of Air Force v. Rose, supra, at 361; EPA v. Mink, 410 U. S. 73, 79-80. 368 OCTOBER TERM, 1978 Syllabus 443 U.S. GANNETT CO., INC. v. DEPASQUALE, COUNTY COURT JUDGE OF SENECA COUNTY, N. Y., ET AL. CERTIORARI TO THE COURT OF APPEALS OF NEW YORK No. 77-1301. Argued November 7, 1978-Decided July 2, 1979 At a pretrial hearing on a motion to suppress allegedly involuntary confessions and certain physical evidence, respondents Greathouse and Jones, who were defendants in a state prosecution for second-degree murder, robbery, and grand larceny, requested that the public and the press be excluded from the hearing, arguing that the unabated buildup of adverse publicity had jeopardized their ability to receive a fair trial. The District Attorney did not oppose the motion and a reporter employed by petitioner, whose newspapers had given extensive coverage of the crime through the defendants' indictment and arraignment, made no objection at the time of the closure motion though she was present in the courtroom. Respondent trial judge granted the motion, and, in response to the reporter's letter on the next day asserting a right to cover the hearing and requesting access to the transcript, stated that the suppression hearing had concluded and that any decision on immediate release of the transcript had been reserved. Petitioner then moved to have the closure order set aside but the trial judge, after a hearing, refused to vacate the order or grant petitioner immediate access to the transcript, ruling that the interest of the press and the public was outweighed by the defendants' right to a fair trial. Petitioner immediately commenced a proceeding in the nature of prohibition and mandamus in the New York Supreme Court, Appellate Division, challenging the trial court's orders on First, Sixth, and Fourteenth Amendment grounds. The Appellate Division vacated the orders, holding that they transgressed the public's vital interest in open judicial proceedings and further constituted an unlawful prior restraint in violation of the First and Fourteenth Amendments. The New York Court of Appeals, although holding that the case was technically moot because shortly before entry of the Appellate Division's judgment, the defendants had pleaded guilty to lesser included offenses and a transcript of the suppression hearing was made available to petitioner, nevertheless retained jurisdiction in view of the importance of the issues and upheld the exclusion of the press and the public from the pretrial proceeding. Held: 1. The controversy is not moot. This Court's jurisdiction is not de368 GANNEIT CO. v. DEPASQUALE Syllabus 369 feated "simply because the order attacked has expired, if the underlying dispute between the parties is one 'capable of repetition, yet evading review.'" Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546. Here, the order closing the pretrial hearing is too short in its duration to permit full review, and it is reasonably to be expected that petitioner will be subjected to similar closure orders in the future. Pp. 377-378. 2. The Constitution does not give petitioner an affirmative right of access to the prrtrial proceeding, all the participants in the litigation having agreed that it should be dosed to protect the fair-trial rights of the defendants. Pp. 378--394. (a) To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity, and he may take protective measures even when they are not strictly and inescapably necessary. Publicity concerning pretrial suppression hearings poses special risks of unfairness because it may influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial. Pp. 378--379. (b) The Sixth Amendment's guarantee of a public trial is for the benefit of the defendant alone. The Constitution nowhere mentions any right of accrss to a criminal trial on the part of the public. Cf. In re Oliver, 333 U.S. 257; Estes v. Texas. 381 U.S. 532. While there is a strong societal interest in public trials, nevertheless members of the public do not have an enforceable right to a public trial that can be asserted independently of the parties in the litigation. The adversary system of criminal justice is premised upon the proposition that the public interest is fully protected by the participants in the litigation. Pp. 379-384. (c) The history of the Sixth Amendment's public-trial guarantee demonstrates no more than the existence of a common-law rule of open civil and criminal proceedings, not a constitutional right of members of the general public to attend a criminal trial. Even if the Sixth and Fourteenth Amendments could properly be viewed as embodying the common-law right of the public to attend criminal trials, there is no persuasive evidence that the public had any right at common law to attend pretrial proceedings. To the contrary, by the time of the adoption of the Constitution, public trials were clearly associated with the protection of the defendant, and pretrial proceedings, precisely because of the same concern for a fair trial, were never oharacterized by the Rllme degree of openness as were actual trials. Pp. 384-391. (d) Even assuming, arguendo, that the First and Fourteenth Amendments may guarantee a right to members of the press and the public 370 OCTOBER TERM, 1978 Opinion of the Court 443U.S. to attend criminal trials in some situations, this putative right was given all appropriate deference by the state nisi prius court in the present case. Even though none of the spectators present in the courtroom, including petitioner's reporter, objected when t-he defendants made the closure motion, petitioner's counsel was given an opportunity to be heard, and the trial court thneafter concluded that the defendants' right to a fair trial outweighed the "constitutional rights of the press and the public." Furthermore, any denial of access was only temporary; once the danger of prejudice had dissipated, a transcript of the suppression hearing was made available. Thus, any First and Fourteenth Amendment right of petitie,ner to attend criminal trials was not violated. Pp. 391-393. 43 N. Y. 2d 370. 372 N. E. 2d 544. affirmed. Sn::wART, J., delivered the opinion of the Court, in which BuRGER, C. J., and PowELL, REHNQUIST, and STEVENS, JJ., joined. BURGER, C. J., post, p. 394, PowELL, J., post, p. 397, and REHNQUIST, J., post, p. 403, filed concurring opinions. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 406. Robert C. Bernius argued the cause for petitioner. With him on the briefs was John Stuart Smith. Bernard Kobroff argued the cause and filed a brief for respondents.* MR. JUSTICE STEWART delivered the opinion of the Court. The question presented in this case is whether members of the public have an independent constitutional right to insist upon access to a pretrial judicial proceeding, even though *Briefs of amici curiae urging reversal were filed by David Rudenstine, Bruce J. Ennis, and Joel M. Gora for the American Civil Liberties Union ct al.; by Arthur B. Hanson, Frank M. Northam, and Richard M. Schmidt, Jr., for the American Newspaper Publishers Association et al.; and by Anthony F. Essaye for the Deadline Club, the New York City Chapter of the Society of Professional Journalists, Sigma Delta Chi, et al. Briefs of amici curiae were filed by E. Barrett Prettyman, Jr., and Erwin Krnsnow for the Reporters Committee for Freedom of the Press et al.; and by Floyd Abrams for New York Times Co. GANNETT CO. v. DEPASQUALE 371 368 Opinion of the Court the accused, the prosecutor, and the trial judge all have agreed to the closure of that proceeding in order to assure a fair trial. I Wayne Clapp, aged 42 and residing at Henrietta, a Rochester, N. Y., suburb, disappeared in July 1976. He was last seen on July 16 when, with two male companions, he went out on his boat to fish in Seneca Lake, about 40 miles from Rochester. The two companions returned in the boat the same day and drove away in Clapp's pickup truck. Clapp was not with them. When he failed to return home by July 19, his family reported his absence to the police. An examination of the boat, laced with bulletholes, seemed to indicate that Clapp had met a violent death aboard it. Police then began an intensive search for the two men. They also began lake-dragging operations in an attempt to locate Clapp's body. The petitioner, Gannett Co., Inc., publishes two Rochester newspapers, the morning Democrat & Chronicle and the evening Times-Union.1 On July 20, each paper carried its first 1 The Democrat & Chronicle and the Times-Union are published in Rochester, N. Y. Rochester, in Monroe County, is approximately 40 miles from the Seneca County line. The circulation of the newspapers is primarily in Monroe County. There are some subscribers, however, in Seneca County. In 1976, when this case arose, the Democrat & Chronicle had a Seneca County daily circulation of 1,022, giving it a 9.6% share of the market in that county, and a Sunday circulation of 1,532, for a 14.3% share of the market. The Times-Union published only a daily edition and had but one subscriber in Seneca County. American Newspaper Markets, Inc., Circulation '77 / '78, pp. 522, 541. The Bureau of the Census estimated Seneca County's 1976 population at 34,000. U. S. Department of Commerce, Bureau of the Census, Current Population Reports, Series P-26, No. 76-32, Population Estimates 3 (Aug. 1977). The petitioner in 1976 also owned a Rochester, N. Y., television station. And there were other newspapers in Seneca County at that time. See Circulation '77 /78, supra, at 522. The record in this case, however, contains no evidence concerning newspaper coverage of Clapp's disappearance 372 OCTOBER TERM, 1978 Opinion of the Court 443 U.S. story about Clapp's disappearance. Each reported the few details that were then known and stated that the police were theorizing that Clapp had been shot on his boat and his body dumped overboard. Each stated that the body was missing. The Times-Union mentioned the names of respondents Greathouse and Jones and said that Greathouse "was identified as one of the two companions who accompanied Clapp Friday" on the boat; said that the two were aged 16 and 21, respectively; and noted that the police were seeking the two men and Greathouse's wife, also 16. Accompanying the evening story was a 1959 photograph of Clapp. The report also contained an appeal from the state police for assistance. Michigan police apprehended Greathouse, Jones, and the woman on July 21. This came about when an interstat£ bulletin describing Clapp's truck led to their discovery in Jackson County, Mich., by police who observed the truck parked at a local mot£!. The petitioner's two Rochester papers on July 22 reported the details of the capture. The stories recounted how the Michigan police, after having arrest£ d Jones in a park, used a helicopt£r and dogs and tracked down Greathouse and the ·woman in some woods. They recited that Clapp's truck was located near the park. The stories also stated that Seneca County police theorized that Clapp wa.s shot with his own pistol, robbed, and his body thrown into Seneca Lake. The articles provided background on Clapp's life, sketched the events surrounding his disappearance, and said that 1-.rew York had issued warrants for the arrest of the three persons. One of the articles reported that the Seneca County District Attorney would seek to extradite the suspects and would attempt to carry through with a homicide prosecution even if Clapp's body were not found. The paper also quoted the prosecutor as stating, however, that and the subsequent prosecution of respondents Greathouse and Jones other than that which appeared in the Democrat & Chronicle and the Times-Union. GANNETT CO. v. DEPASQUALE 373 368 Opinion of the Court the evidence was still developing and "the case could change." The other story noted that Greathouse and Jones were from Texas and South Carolina, respectively. Both papers carried stories on July 23. These revealed that Jones, the adult, had waived extradition and that New York police had traveled to Michigan and were questioning the suspects. The articles referred to police speculation that extradition of Greathouse and the woman might involve "legalities" because they ,vere only 16 and considered juveniles in Michigan. The morning story provided details of an interview with the landlady from whom the suspects had rented a room while staying in Seneca County at the time Clapp disappeared. It also noted that Greathouse, according to state police, was on probation in San Antonio, Tex., but that the police did not know the details of his criminal record. The Democrat & Chronicle carried another story on the morning of July 24. It stated that Greathouse had led the Michigan police to the spot where he had buried a .357 magnum revolver belonging to Clapp and that the gun was being returned to New York with the three suspects. It also stated that the police had found ammunition at the motel where Greathouse and the woman were believed to have stayed before they were arrest€d. The story repeated the basic facts known about the disappearance of Clapp and the capture of the three suspects in Michigan. It stated that New York police continued to search Seneca Lake for Clapp's body. On July 25, the Democrat & Chronicle reported that Greathouse and Jones had been arraigned before a Seneca County Magistrate on second-degree murder charges shortly after their arrival from Michigan; that they and the woman also had been arraigned on charges of second-degree grand larceny; that the three had been committed to the Seneca County jail; that all three had "appeared calm" during the court session; and that the Magistrate had read