ADDITIONAL CASES



Supreme Court of the United States

Marvin MILLER, Appellant,

v.

State of CALIFORNIA.

No. 70-73.

Argued Jan. 18-19, 1972.

Reargued Nov. 7, 1972.

Decided June 21, 1973.

Rehearing Denied Oct. 9, 1973.

See414 U.S. 881

Defendant was convicted of mailing unsolicited sexually explicit material in violation of a California statute and the Appellate Department, Superior Court of California, County of Orange, affirmed and defendant appealed. The Supreme Court, Mr. Chief Justice Burger, held that a work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political or scientific value. The Court also rejected the test of ‘utterly without redeeming social value’ as a constitutional standard.

Vacated and remanded.

Mr. Justice Douglas filed a dissenting opinion.

Mr. Justice Brennan filed a dissenting opinion in which Mr. Justice Stewart and Mr. Justice Marshall joined.

SyllabusFN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

*15 Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held:

1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. P. 2614.

2. The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Roth supra, at 489, 77 S.Ct. at 1311, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. P. 2615.

3. The test of ‘utterly without redeeming social value’ articulated in Memoirs, supra, is rejected as a constitutional standard. P. 2615.

4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a ‘national standard.’ Pp. 2618-2620.

Vacated and remanded.

*16 Burton Marks, Beverly Hills, Cal., for appellant.

Michael R. Capizzi, Santa Ana, Cal., for appellee.

Mr. Chief Justice BURGER delivered the opinion of the Court.

This is one of a group of ‘obscenity-pornography’ cases being reviewed by the Court in a re-examination of standards enunciated in earlier cases involving what Mr. Justice Harlan called ‘the intractable obscenity problem.’ **2611 Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 1313, 20 L.Ed.2d 225 (1968) (concurring and dissenting).

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called ‘adult’ material. After a jury trial, he was convicted of violating California Penal Code s 311.2(a), a misdemeanor, by knowingly distributing obscene matter,FN1 *17 and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was specifically*18 based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police.

FN1. At the time of the commission of the alleged offense, which was prior to June 25, 1969, ss 311.2(a) and 311 of the California Penal Code read in relevant part:‘s 311.2 Sending or bringing into state for sale or distribution; printing, exhibiting, distributing or possessing within state‘(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . .’‘s 311. Definitions‘As used in this chapter:‘(a) ‘Obscene’ means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.‘(b) ‘Matter’ means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial represention or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.‘(c) ‘Person’ means any individual, partnership, firm, association, corporation, or other legal entity.‘(d) ‘Distribute’ means to transfer possession of, whether with or without consideration.‘(e) ‘Knowingly’ means having knowledge that the matter is obscene.'Section 311(e) of the California Penal Code, supra, was amended on June 25, 1969, to read as follows:‘(e) ‘Knowingly’ means being aware of the character of the matter.'Cal.Amended Stats.1969, c. 249, s 1, p. 598. Despite appellant's contentions to the contrary, the record indicates that the new s 311(e) was not applied ex post facto to his case, but only the old s 311(e) as construed by state decisions prior to the commission of the alleged offense. See People v. Pinkus, 256 Cal.App.2d Supp. 941, 948-950, 63 Cal.Rptr. 680, 685-686 (App.Dept., Superior Ct., Los Angeles, 1967); People v. Campise, 242 Cal.App.2d Supp. 905, 914, 51 Cal.Rptr. 815, 821 (App.Dept., Superior Ct. San Diego, 1966). Cf. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Nor did s 311.2, supra, as applied, create any ‘direct, immediate burden on the performance of the postal functions,’ or infringe on congressional commerce powers under Art. I, s 8, cl. 3. Roth v. United States, 354 U.S. 476, 494, 77 S.Ct. 1304, 1314, 1 L.Ed.2d 1498 (1957), quoting Railway Mail Assn. v. Corsi, 326 U.S. 88, 96, 65 S.Ct. 1483, 1488, 89 L.Ed. 2072 (1945). See also Mishkin v. New York, 383 U.S. 502, 506, 86 S.Ct. 958, 962, 16 L.Ed.2d 56 (1966); Smith v. California, 361 U.S. 147, 150-152, 80 S.Ct. 215, 217-218, 4 L.Ed.2d 205 (1959).

The brochures advertise four books entitled ‘Intercourse,’ ‘Man-Woman,’ ‘Sex Orgies Illustrated,’ and ‘An Illustrated History of Pornography,’ and a film entitled ‘Marital Intercourse.’ While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women **2612 in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.

I

This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene materialFN2 *19 when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U.S. 557, 567, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969); Ginsberg v. New York, 390 U.S. 629, 637-643, 88 S.Ct. 1274, 1279-1282, 20 L.Ed.2d 195 (1968); Interstate Circuit, Inc. v. Dallas, supra, 390 U.S., at 690, 88 S.Ct., at 1306; Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct., 1414, 1415, 18 L.Ed.2d 515 (1967); Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964). See Rabe v. Washington, 405 U.S. 313, 317, 92 S.Ct. 993, 995, 31 L.Ed.2d 258 (1972) (Burger, C.J., concurring); United States v. Reidel, 402 U.S. 351, 360-362, 91 S.Ct. 1410, 1414-1415, 28 L.Ed.2d 813 (1971) (opinion of Marshall, J.); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952); Breard v. Alexandria, 341 U.S. 622, 644-645, 71 S.Ct. 920, 933-934, 95 L.Ed. 1233 (1951); Kovacs v. Cooper, 336 U.S. 77, 88-89, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949); Prince v. Massachusetts, 321 U.S. 158, 169-170, 64 S.Ct. 438, 443-444, 88 L.Ed. 645 (1944). Cf. Butler v. Michigan, 352 U.S. 380, 382-383, 77 S.Ct. 524, 525, 1 L.Ed.2d 412 (1957); Public Utilities Comm'n v. Pollak, 343 U.S. 451, 464-465, 72 S.Ct. 813, 821-822, 96 L.Ed. 1068 (1952). It is in this context that we are called *20 on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment.

FN2. This Court has defined ‘obscene material’ as ‘material which deals with sex in a manner appealing to prurient interest,’ Roth v. United States, supra, 354 U.S., at 487, 77 S.Ct., at 1310, but the Roth definition does not reflect the precise meaning of ‘obscene’ as traditionally used in the English language. Derived from the Latin obscaenus, ob, to, plus caenum, filth, ‘obscene’ is defined in the Webster's Third New International Dictionary (Unabridged 1969) as ‘1a: disgusting to the senses . . . b: grossly repugnant to the generally accepted notions of what is appropriate . . . 2: offensive or revolting as countering or violating some ideal or principle.’ The Oxford English Dictionary (1933 ed.) gives a similar definition, ‘(o)ffensive to the senses, or to taste or refinement, disgusting, repulsive, filthy, foul, abominable, loathsome.’The material we are discussing in this case is more accurately defined as ‘pornography’ or ‘pornographic material.’ ‘Pornography’ derives from the Greek (porne, harlot, and graphos, writing). The word now means ‘1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of licentiousness or lewdness: a a portrayal of erotic behavior designed to cause sexual excitement.’ Webster's Third New International Dictionary, supra. Pornographic material which is obscene forms a subgroup of all ‘obscene’ expression, but not the whole, at least as the word ‘obscene’ is now used in our language. We note, therefore, that the words ‘obscene material,’ as used in this case, have a specific judicial meaning which derives from the Roth case, i.e., obscene material ‘which deals with sex.’ Roth, supra, at 487, 77 S.Ct., at 1310. See also ALI Model Penal Code s 251.4(l) ‘Obscene Defined.’ (Official Draft, 1962.)

The dissent of Mr. Justice BRENNAN reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured **2613 history of the Court's obscenity decisions. In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Court sustained a conviction under a federal statute punishing the mailing of ‘obscene, lewd, lascivious or filthy . . .’ materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating:

‘All ideas having even the slightest redeeming social importance-unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion-have the full protection of the (First Amendment) guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 768-769, 86 L.Ed. 1031:

“. . . There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene . . .. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social *21 value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .' (Emphasis by Court in Roth opinion.)

‘We hold that obscenity is not within the area of constitutionally protected speech or press.’ 354 U.S., at 484-485, 77 S.Ct., 1309 (footnotes omitted).

Nine years later, in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that under the Roth definition

‘as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because if affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.’ Id., at 418, 86 S.Ct., at 977.

The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by Mr. Justice White's dissent, id., at 460-462, 86 S.Ct., at 999, was further underscored when the Memoirs plurality went on to state:

‘The Supreme Judicial Court erred in holding that a book need not be ‘unqualifiedly worthless before it can be deemed obscene.’ A book cannot be proscribed unless it is found to be utterly without redeeming social value.' Id., at 419, 86 S.Ct., at 978 (emphasis in original).

While Roth presumed ‘obscenity’ to be ‘utterly without redeeming social importance,’ Memoirs required *22 that to prove obscenity it must be affirmatively established that the material is ‘utterly without redeeming social value.’ Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was ‘utterly without redeeming social value’-a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the ‘utterly without redeeming social value’ test had any meaning at all. See Memoirs v. Massachusetts, id., at 459, 86 S.Ct., at 998 (Harlan, J., dissenting). **2614 See also id., at 461, 86 S.Ct., at 999 (White, J., dissenting); United States v. Groner, 479 F.2d 577, 579-581 (CA,5 1973).

[1] [pic]Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S., at 770-771, 87 S.Ct., at 1415-1416. We have seen ‘a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.’ Interstate Circuit, Inc. v. Dallas, 390 U.S., at 704-705, 88 S.Ct., at 1314 (Harlan, J., concurring and dissenting) (footnote omitted).FN3 This is not remarkable, for in the area *23 of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.

FN3. In the absence of a majority view, this Court was compelled to embark on the practice of summarily reversing convictions for the dissemination of materials that at least five members of the Court, applying their separate tests, found to be protected by the First Amendment. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). Thirty-one cases have been decided in this manner. Beyond the necessity of circumstances, however, no justification has ever been offered in support of the Redrup ‘policy.’ See Walker v. Ohio, 398 U.S. 434-435, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970) (dissenting opinions of Burger, C.J., and Harlan, J. The Redrup procedure has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before us.

The case we now review was tried on the theory that the California Penal Code s 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author,FN4 and no Member of the Court today supports the Memoirs formulation.

FN4. See the dissenting opinion of Mr. Justice Brennan in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446 (1973).

II

[2] [pic][3] [pic][4] [pic][5] [pic]This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); United States v. Reidel, 402 U.S., at 354, 91 S.Ct., at 1411-1412; Roth v. United States, supra, 354 U.S., at 485, 77 S.Ct., at 1309.FN5 ‘The First and Fourteenth Amendments have never been treated as absolutes (footnote omitted).’ Breard v. Alexandria, 341 U.S., at 642, 71 S.Ct., at 932, and cases cited. See Times Film Corp. v. Chicago, 365 U.S. 43, 47-50, 81 S.Ct. 391, 393-395, 5 L.Ed.2d 403 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S., at 502, 72 S.Ct., at 780. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be *24 carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, 390 U.S., at 682-685, 88 S.Ct., at 1302-1305. As a result, we now confine the permissible scope of such regulation to works which depict or describe**2615 sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.FN6 A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

FN5. As Mr. Chief Justice Warren stated, dissenting in Jacobellis v. Ohio, 378 U.S. 184, 200, 84 S.Ct. 1676, 1684, 12 L.Ed.2d 793 (1964):‘For all the sound and fury that the Roth test has generated, it has not been proved unsound, and I believe that we should try to live with it-at least until a more satisfactory definition is evolved. No government-be it federal, state, or local-should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of reason in this as in other areas of the law, and we hae attempted in the Roth case to provide such a rule.’

FN6. See, e.g., Oregon Laws 1971, c. 743, Art. 29, ss 255-262, and Hawaii Penal Code, Tit. 37, ss 1210-1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt. II, pp. 126-129, as examples of state laws directed at depiction of defined physical conduct, as opposed to expression. Other state formulations could be equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of them in all other respects nor as establishing their limits as the extent of state power.We do not hold, as Mr. Justice BRENNAN intimates, that all States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be adequate. See United States v. 12 200-ft. Reels of Super 8 mm. Film, 413 U.S. 123, at 130 n. 7, 93 S.Ct. 2665, at 2670 n. 7, 37 L.Ed.2d 500.

[6][7][8]The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S., at 230, 92 S.Ct., at 2246, quoting Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constituional standard the ‘utterly without redeeming social value’ test of *25 Memoirs v. Massachusetts, 383 U.S., at 419, 86 S.Ct., at 977; that concept has never commanded the adherence of more than three Justices at one time.FN7 See supra, at 2613. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellante courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, 408 U.S., at 232, 92 S.Ct., at 2247; Memoirs v. Massachuetts, supra, 383 U.S., at 459-460, 86 S.Ct., at 998 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S., at 204, 84 S.Ct., at 1686 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284-285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964); Roth v. United States, supra, 354 U.S., at 497-498, 77 S.Ct., at 1315-1316 (Harlan, J., concurring and dissenting).

FN7. ‘A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication . . .’ Kois v. Wisconsin, 408 U.S., 229, 231, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312 (1972). See Memoirs v. Massachusetts, 383 U.S. 413, 461, 86 S.Ct. 975, 999, 16 L.Ed.2d 1 (1966) (White, J., dissenting). We also reject, as a constitutional standard, the ambiguous concept of ‘social importance.’ See id., at 462, 86 S.Ct., at 999 (White, J., dissenting).

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures**2616 exhibited or sold in places of public accommodation any more than live sex and nudity can *26 be exhibited or sold without limit in such public places.FN8 At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, 408 U.S., at 230-232, 92 S.Ct., at 2246-2247; Roth v. United States, supra, 354 U.S., at 487, 77 S.Ct., at 1310; Thornhill v. Alabama, 310 U.S. 88, 101-102, 60 S.Ct. 736, 743-744, 84 L.Ed. 1093 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.FN9

FN8. Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. In United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be ‘sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’ See California v. LaRue, 409 U.S. 109, 117-118, 93 S.Ct. 390, 396-397, 34 L.Ed.2d 342 (1972).

FN9. The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S., at 492 n. 30, 77 S.Ct., at 1313 n. 30, ‘it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States 486, 499-500.’

Mr. Justice BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; *27 Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 952, 16 L.Ed.2d 31 (1966); Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); and Memoiors v. Massachusetts, supra, has abandoned his former position and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446 (Brennan, J., dissenting). Paradoxically, Mr. Justice BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he fines the authority to distinguish between a willing ‘adult’ one month past the state law age of majority and a weilling ‘juvenile’ one month younger.

[14] [pic]Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities **2617 may bring prosecution. See Roth v. United States, supra, 354 U.S., at 491-492, 77 S.Ct., at 1312-1313. Cf. Ginsberg v. New York, 390 U.S., at 643, 88 S.Ct., at 1282.FN10 If *28 the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then ‘hard core’ pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, Mr. Justice Douglas contends. As to Mr. Justice Douglas' position, see United States v. Thirty-seven Photographs, 402 U.S. 363, 379-380, 91 S.Ct. 1400, 1409-1410, 28 L.Ed.2d 822 (1971) (Black, J., joined by Douglas, J., dissenting); Ginzburg v. United States, supra, 383 U.S. at 476, 491-492, 86 S.Ct., at 950, 974 (Black, J., and Douglas, J., dissenting); Jacobellis v. Ohio, supra, 378 U.S., at 196, 84 S.Ct., at 1682 (Black, J., joined by Douglas, J., concurring); Roth, supra, 354 U.S., at 508-514, 77 S.Ct., at 1321-1324 (Douglas, J., dissenting). In this belief, however, Mr. Justice DOUGLAS now stands alone.

FN10. As Mr. Justice Brennan stated for the Court in Roth v. United States, supra, 354 U.S., at 491-492, 77 S.Ct., at 1312-1313:‘Many decisions have recognized that these terms of obscenity statutes are not precise. (Footnote omitted.) This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ’. . . (T)he Constitution does not require impossible standards'; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . .’ United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ‘. . . boundaries sufficiently distinct for judges and juries to fairly administer the law . . .. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . .’ Id., 332 U.S. at page 7, 67 S.Ct., at page 1542. See also United States v. Harriss, 347 U.S. 612, 624, n. 15, 14 S.Ct. 808, 815, 98 L.Ed. 989; Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367; United States v. Ragen, 314 U.S. 513, 523-524, 62 S.Ct. 374, 378, 86 L.Ed. 383; United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402; Fox. v. Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232.

Mr. Justice Brennan also emphasizes ‘institutional stress' in justification of his change of view. Nothing that '(t)he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court,’ he quite rightly remarks that the examination of contested materials ‘is hardly a source of edification to the members of this Court.’ *29 Paris Adult Theatre I v. Slaton, supra, 413 U.S., at 92, 93, 93 S.Ct., at 2652. He also notes, and we agree, that ‘uncertainty of the standards creates a continuing source of tension between state and federal courts . . ..’ ‘The problem is . . . that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so.’ Id., at 93, 92, 93 S.Ct., at 2652.

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate ‘hard core’ pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and attempt to provide positive **2618 guidance to federal and state courts alike.

This may not be an easy road, free from difficulty. But no amount of ‘fatigue’ should lead us to adopt a convenient ‘institutional’ rationale-an absolutist, ‘anything goes' view of the First Amendment-because it will lighten our burdens.FN11 ‘Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees.’ Jacobellis v. Ohio, supra, 378 U.S., at 187-188, 84 S.Ct., at 1678 (opinion of Brennan, J.). Nor should we remedy ‘tension between state and federal courts' by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, 354 U.S., at 482-485, 77 S.Ct., at 1307-1309. ‘Our duty admits of no ‘substitute for facing up *30 to the tough individual problems of constitutional judgment involved in every obscenity case.’ ( Roth v. United States, supra, at 498, 77 S.Ct., at 1316); see Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S.Ct., 1432, 1437, 8 L.Ed.2d 639 (opinion of Harlan, J.) (footnote omitted).' Jacobellis v. Ohio, supra, 378 U.S., at 188, 84 S.Ct., at 1678 (opinion of Brennan, J.).

FN11. We must note, in addition, that any assumption concerning the relative burdens of the past and the probable burden under the standards now adopted is pure speculation.

III

[15] [pic]Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the ‘prurient interest’ or is ‘patently offensive.’ These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether ‘the average person, applying contemporary community standards' would consider certain materials ‘prurient,’ it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national ‘community standard’ would be an exercise in futility.

As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a ‘national’ standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case *31 law. The jury, however, was explicitly instructed that, in determining whether the ‘dominant theme of the material as a whole . . . appeals to the prurient interest’ and in determining whether the material ‘goes substantially beyond customary limits of candor and affronts contemporary community standards of decency,’ it was to apply ‘contemporary community standards of the State of California.’

[16] [pic]During the trial, both the prosecution and the defense assumed that the relevant ‘community standards' in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the State's expert on **2619 community standards FN12 or to the instructions of the trial judge on ‘statewide’ standards. On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments.

FN12. The record simply does not support appellant's contention, belatedly raised on appeal, that the State's expert was unqualified to give evidence on California ‘community standards.’ The expert, a police officer with many years of specialization in obscenity offenses, had conducted an extensive statewide survey and had given expert evidence on 26 occasions in the year prior to this trial. Allowing such expert testimony was certainly not constitutional error. Cf. United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969).

[17] [pic]We conclude that neither the State's alleged failure to offer evidence of ‘national standards,’ nor the trial court's charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable ‘national standards' when attempting to determine whether certain materials are obscene as a matter*32 of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200, 84 S.Ct., at 1685:

‘It is my belief that when the Court said in Roth that obscenity is to be defined by reference to ‘community standards,’ it meant community standards-not a national standard, as is sometimes argued. I believe that there is no provable ‘national standard’ . . .. At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.'

[18] [pic][19] [pic][20] [pic][21] [pic][22] [pic]It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.FN13 *33 See Hoyt v. Minnesota, 399 U.S. 524-525, 90 S.Ct. 2241 (1970) (Blackmun, J., dissenting); **2620 Walker v. Ohio, 398 U.S. 434, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970) (Burger, C.J., dissenting); id., at 434-435, 90 S.Ct., at 1884 (Harlan, J., dissenting); Cain v. Kentucky, 397 U.S. 319, 90 S.Ct. 1110, 25 L.Ed.2d 334 (1970) (Burger, C.J., dissenting); id., at 319-320, 90 S.Ct., at 1110 (Harlan, J., dissenting); United States v. Groner, 479 F.2d 577, at 581-583. O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S., at 458, 86 S.Ct., at 997 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, 378 U.S., at 203-204, 84 S.Ct., at 1686 (Harlan, J., dissenting); Roth v. United States, supra, 354 U.S., at 505-506, 77 S.Ct., at 1319-1320 (Harlan, J., concurring and dissenting). People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U.S., at 508-509, 86 S.Ct., at 963, the primary concern with requiring a jury to apply the standard of ‘the average person, applying contemporary community standards' is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person-or indeed a totally insensitive one. See Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311. Cf. the now discredited test in Regina v. Hicklin, (1868) L.R. 3 Q.B. 360. We hold that the requirement that the jury evaluate the materials with reference to ‘contemporary *34 standards of the State of California’ serves this protective purpose and is constitutionally adequate.FN14

FN13. In Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), two Justices argued that application of ‘local’ community standards would run the risk of preventing dissemination of materials in some places because sellers would be unwilling to risk criminal conviction by testing variations in standards from place to place. Id., at 194-195, 84 S.Ct., at 1681-1682 (opinion of Brennan, J., joined by Goldberg, J.). The use of ‘national’ standards, however, necessarily implies that materials found tolerable in some places, but not under the ‘national’ criteria, will nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression, the potential for suppression seems at least as great in the application of a single nation-wide standard as in allowing distribution in accordance with local tastes, a point which Mr. Justice Harlan often emphasized. See Roth v. United States, 354 U.S., at 506, 77 S.Ct., at 1320.Appellant also argues that adherence to a ‘national standard’ is necessary ‘in order to avoid unconscionable burdens on the free flow of interstate commerce.’ As noted supra, at 2611 n. 1, the application of domestic state police powers in this case did not intrude on any congressional powers under Art. I, s 8, cl. 3, for there is no indication that appellant's materials were ever distributed interstate. Appellant's argument would appear without substance in any event. Obscene material may be validly regulated by a State in the exercise of its traditional local power to protect the general welfare of its population despite some possible incidental effect on the flow of such materials across state lines. See, e.g., Head v. New Mexcio Board, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963); Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960); Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949); Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935); Sligh v. Kirkwood, 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835 (1915).

FN14. Appellant's jurisdictional statement contends that he was subjected to ‘double jeopardy’ because a Los Angeles County trial judge dismissed, before trial, a prior prosecution based on the same brochures, but apparently alleging exposures at a different time in a different setting. Appellant argues that once material has been found not to be obscene in one proceeding, the State is ‘collaterally estopped’ from ever alleging it to be obscene in a different proceeding. It is not clear from the record that appellant properly raised this issue, better regarded as a question of procedural due process than a ‘double jeopardy’ claim, in the state courts below. Appellant failed to address any portion of his brief on the merits to this issue, and appellee contends that the question was waived under California law because it was improperly pleaded at trial. Nor is it totally clear from the record before us what collateral effect the pretrial dismissal might have under state law. The dismissal was based, a least in part, on a failure of the prosecution to present affirmative evidence required by state law, evidence which was apparently presented in this case. Appellant's contention, therefore, is best left to the California courts for further consideration on remand. The issue is not, in any event, a proper subject for appeal. See Mishkin v. New York, 383 U.S. 502, 512-514, 86 S.Ct. 958, 965-966, 16 L.Ed.2d 56 (1966).

IV

The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a ‘misuse of the great guarantees of free speech and free press . . ..’ Breard v. Alexandria, 341 U.S., at 645, 71 S.Ct., at 934. The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. ‘The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of *35 political and social changes desired by the people,’ **2621 Roth v. United States, supra, 354 U.S., at 484, 77 S.Ct., at 1308 (emphasis added). See Kois v. Wisconsin, 408 U.S., at 230-232, 92 S.Ct., at 2246-2247; Thornhill v. Alabama, 310 U.S., at 101-102, 60 S.Ct., at 743-744. But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter.FN15

FN15. In the apt words of Mr. Chief Justice Warren, the appellant in this case was ‘plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide.’ Roth v. United States, supra, 354 U.S., at 496, 77 S.Ct., at 1315 (concurring opinion).

There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, see Roth v. United States, supra, 354 U.S., at 482-485, 77 S.Ct., at 1307-1309, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an ‘extraordinarily vigorous period,’ not just in economics and politics, but in belles lettres and in ‘the outlying fields of social and political philosophies.'FN16 We do not see the harsh hand *36 of censorship of ideas-good or bad, sound or unsound-and ‘repression’ of political liberty lurking in every state regulation of commercial exploitation of human interest in sex.

FN16. See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th century, Parrington observed ‘A new age had come and other dreams-the age and the dreams of middle-class sovereignty . . .. From the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of realistic criticism, seeking to evaluate the worth of this new America, and discover if possible other philosophies to take the place of those which had gone down in the fierce battles of the Civil War.’ Id., at 474. Cf. 2 Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic 197-233 (6th ed. 1969); Paths of American Thought 123-166, 203-290 (A. Schlesinger & M. White ed. 1963) (articles of Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and Thought in Modern America 337-386 (1952).

Mr. Justice Brennan finds ‘it is hard to see how state-ordered regimentation of our minds can ever be forestalled.’ Paris Adult Theatre I v. Slaton, 413 U.S., at 110, 93 S.Ct., at 2661 (Brennan, J., dissenting). These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation which Mr. Justice Brennan finds constitutionally permissible, has all the elements of ‘censorship’ for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S., at 690, 88 S.Ct., at 1306.FN17 One can concede that the ‘sexual revolution’ of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive ‘hard core’ materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphine.

FN17. ‘(W)e have indicated . . . that because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults. Ginsberg v. New York, . . . (390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968)).’ Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 690, 88 S.Ct. 1298, at 1306, 20 L.Ed.2d 225 (1968) (footnote omitted).

**2622 In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated *37 above, without a showing that the material is ‘utterly without redeeming social value’; and (c) hold that obscenity is to be determined by applying ‘contemporary community standards,’ see Kois v. Wisconsin, supra, 408 U.S., at 230, 92 S.Ct., at 2246, and Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311, not ‘national standards.’ The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, at 130 n. 7, 93 S.Ct. 2665, at 2670 n. 7, 37 L.Ed.2d 500.

Vacated and remanded.

Mr. Justice DOUGLAS, dissenting.

I

Today we levae open the way for CaliforniaFN1 to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today's decision were never the part of any law.

FN1. California defines ‘obscene matter’ as ‘matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.’ Calif.Penal Code s 311(a).

The Court has worked hard to define obscenity and concededly has failed. In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, it ruled that ‘(o)bscene material is material which deals with sex in a manner appealing to prurient interest.’ Id., at 487, 77 S.Ct., at 1310. Obscenity, it was said, was rejected by the First Amendment because it is ‘utterly without redeeming*38 social importance.’ Id., at 484, 77 S.Ct., at 1308. The presence of a ‘prurient interest’ was to be determined by ‘contemporary community standards.’ Id., at 489, 77 S.Ct., at 1311. That test, it has been said, could not be determined by one standard here and another standard there, Jacobellis v. Ohio, 378 U.S. 184, 194, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793, but ‘on the basis of a national standard.’ Id., at 195, 84 S.Ct., at 1682. My brother Stewart in Jacobellis commented that the difficulty of the Court in giving content to obscenity was that it was ‘faced with the task of trying to define what may be indefinable.’ Id., at 197, 84 S.Ct., at 1683.

In Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1, the Roth test was elaborated to read as follows: ‘(T)hree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.’

In Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, a publisher was sent to prison, not for the kind of books and periodicals he sold, but for the manner in which the publications were advertised. The ‘leer of the sensualist’ was said to permeate the advertisements. Id., at 468, 86 S.Ct., at 946. The Court said, ‘Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact **2623 may be decisive in the determination of obscenity.’ Id., at 470, 86 S.Ct., at 947. As Mr. Justice Black said in dissent, ‘. . . Ginzburg . . . is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal.’ Id., at 476, 86 S.Ct., at 950. That observation by Mr. Justice Black is underlined by the fact that the Ginzburg decision was five to four.

*39 A further refinement was added by Ginsberg v. New York, 390 U.S. 629, 641, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195, where the Court held that ‘it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.’

But even those members of this Court who had created the new and changing standards of ‘obscenity’ could not agree on their application. And so we adopted a per curiam treatment of so-called obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515. Some condemn it if its ‘dominant tendency might be to ‘deprave or corrupt’ a reader.'FN2 Others look not to the content of the book but to whether it is advertised “to appeal to the erotic interests of customers.” FN3 Some condemn only ‘hardcore pornography’; but even then a true definition is lacking. It has indeed been said of that definition, ‘I could never succeed in (defining it) intelligibly,’ but ‘I know it when I see it.’ FN4

FN2. Roth v. United States, 354 U.S. 476, 502, 77 S.Ct. 1304, 1318, 1 L.Ed.2d 1498 (opinion of Harlan, J.).

FN3. Ginzburg v. United States, 383 U.S. 463, 467, 86 S.Ct. 942, 945, 16 L.Ed.2d 31.

FN4. Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (Stewart, J., concurring).

Today we would add a new three-pronged test: ‘(a) whether ‘the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’

Those are the standards we ourselves have written into the Constitution. FN5 Yet how under these vague tests can *40 we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene?

FN5. At the conclusion of a two-year study, the U.S. Commission on Obscenity and Pornography determined that the standards we have written interfere with constitutionally protected materials:‘Society's attempts to legislate for adults in the area of obscenity have not been successful. Present laws prohibiting the consensual sale or distribution of explicit sexual materials to adults are extremely unsatisfactory in their practical application. The Constitution permits material to be deemed ‘obscene’ for adults only if, as a whole, it appeals to the ‘prurient’ interest of the average person, is ‘patently offensive’ in light of ‘community standards,’ and lacks ‘redeeming social value.’ These vague and highly subjective aesthetic, psychological and moral tests do not provide meaningful guidance for law enforcement officials, juries or courts. As a result, law is inconsistently and sometimes erroneously applied and the distinction made by courts between prohibited and permissible materials often appear indefensible. Errors in the application of the law and uncertainty about its scope also cause interference with the communication of constitutionally protected materials.' Report of the Commission on Obscenity and Pornography 53 (1970).

Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal with constitutional terms, since ‘obscenity’ is not mentioned in the Constitution or Bill **2624 of Rights. And the First Amendment makes no such exception from ‘the press' which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated ‘obscene’ publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not ‘obscene.’ The Court is at large because we deal with tastes and standards of literature. What shocks me may *41 be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people.

Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime a publisher would know when he was on dangerous ground. Under the present regime-whether the old standards or the new ones are used-the criminal law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg and has all the evils of an ex post facto law.

My contention is that until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said:

‘The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment.’ Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 707, 88 S.Ct. 1298, 1315, 20 L.Ed.2d 225.

In Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894, we upset a conviction for remaining on property after being asked to leave, while the only unlawful act charged by the statute was entering. We held that the defendants had received no ‘fair warning, at the time of their conduct’*42 while on the property ‘that the act for which they now stand convicted was rendered criminal’ by the state statute. Id., at 355, 84 S.Ct., at 1703. The same requirement of ‘fair warning’ is due here, as much as in Bouie. The latter involved racial discrimination; the present case involves rights earnestly urged as being protected by the First Amendment. In any case-certainly when constitutional rights are concerned-we should not allow men to go to prison or be fined when they had no ‘fair warning’ that what they did was criminal conduct.

II

If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishers, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it doesFN6 **2625 and my views *43 on the issue have been stated over and over again.FN7 But at least a criminal prosecution brought at that juncture would not violate the time-honored void-for-vagueness test.FN8

FN6. It is said that ‘obscene’ publications can be banned on authority of restraints on communications incident to decrees restraining unlawful business monopolies or unlawful restraints of trade, Sugar Institute v. United States, 297 U.S. 553, 597, 56 S.Ct. 629, 641, 89 L.Ed. 859, or communications respecting the sale of spurious or fraudulent securities. Hall v. Geiger-Jones Co., 242 U.S. 539, 549, 37 S.Ct. 217, 220, 61 L.Ed. 480; Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 567, 37 S.Ct. 224, 226, 61 L.Ed. 493; Merrick v. Halsey & Co., 242 U.S. 568, 584, 37 S.Ct. 227, 230, 61 L.Ed. 498. The First Amendment answer is that whenever speech and conduct are brigaded-as they are when one shouts ‘Fire’ in a crowded theater-speech can be outlawed. Mr. Justice Black, writing for a unanimous Court in Giboney v. Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834, stated that labor unions court be restrained from picketing a firm in support of a secondary boycott which a State had validly outlawed. Mr. Justice Black said: ‘It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.’ Id., at 498, 69 S.Ct., at 688.

FN7. See United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500; United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513; Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312; Byrne v. Karalexis, 396 U.S. 976, 977, 90 S.Ct. 469, 470, 24 L.Ed.2d 447; Ginsberg v. New York, 390 U.S. 629, 650, 88 S.Ct. 1274, 1286, 20 L.Ed.2d 195; Jacobs v. New York, 388 U.S. 431, 436, 87 S.Ct. 2098, 2101, 18 L.Ed.2d 1294; Ginzburg v. United States, 383 U.S. 463, 482, 86 S.Ct. 942, 953, 16 L.Ed.2d 31; Memoirs v. Massachusetts, 383 U.S. 413, 424, 86 S.Ct. 975, 980, 16 L.Ed.2d 1; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 72, 83 S.Ct. 631, 640, 9 L.Ed.2d 584; Times Film Corp. v. City of Chicago, 365 U.S. 43, 78, 81 S.Ct. 391, 410, 5 L.Ed.2d 403; Smith v. California, 361 U.S. 147, 167, 80 S.Ct. 215, 226, 4 L.Ed.2d 205; Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697, 79 S.Ct. 1362, 1369, 3 L.Ed.2d 1512; Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 446, 77 S.Ct. 1325, 1330, 1 L.Ed.2d 1469; Superior Films, Inc. v. Department of Education, 346 U.S. 587, 588, 74 S.Ct. 286, 98 L.Ed. 329; Gelling v. Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359.

FN8. The Commission on Obscenity and Pornography has advocated such a procedure:‘The Commission recommends the enactment, in all jurisdictions which enact or retain provisions prohibiting the dissemination of sexual materials to adults or young persons, of legislation authorizing prosecutors to obtain declaratory judgments as to whether particular materials fall within existing legal prohibitions . . ..‘A declaratory judgment procedure . . . would permit prosecutors to proceed civilly, rather than through the criminal process, against suspected violations of obscenity prohibition. If such civil procedures are utilized, penalties would be imposed for violation of the law only with respect to conduct occurring after a civil declaration is obtained. The Commission believes this course of action to be appropriate whenever there is any existing doubt regarding the legal status of materials; where other alternatives are available, the criminal process should not ordinarily be invoked against persons who might have reasonably believed, in good faith, that the books or films they distributed were entitled to constitutional protection, for the threat of criminal sanctions might otherwise deter the free distribution of constitutionally protected material.’ Report of the Commission on Obscenity and Pornography 63 (1970).

No such protective procedure has been designed by California in this case. Obscenity-which even we cannot define with precision-is a hodge-podge. To send *44 men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.

III

While the right to know is the corollary of the right to speak or publish, no one can be forced by government to listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed. 1068, where I protested against making streetcar passengers a ‘captive’ audience. There is no ‘captive audience’ problem in these obscenity cases. No one is being compelled to look or to listen. Those who enter newsstands**2626 or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a ban.

The idea that the First Amendment permits government to ban publications that are ‘offensive’ to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed ‘to invite dispute,’ to induce ‘a condition of unrest,’ to ‘create dissatisfaction with conditions as they are,’ and even to stir ‘people’ to anger.' Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131. The idea that the First Amendment permits punishment for ideas that are ‘offensive’ to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for *45 dispensing tranquilizers to the people. Its prime function was to keep debate open to ‘offensive’ as well as to ‘staid’ people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard ‘offensive’ gives authority to government that cuts the very vitals out of the First Amendment.FN9 As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment-and solely because of it-speakers and publishers have not been threatened or subdued because their thoughts and ideas may be ‘offensive’ to some.

FN9. Obscenity law has had a capricious history:‘The white slave traffic was first exposed by W. T. Stead in a magazine article, ‘The Maiden Tribute.’ The English law did absolutely nothing to the profiteers in vice, but put Stead in prison for a year for writing about an indecent subject. When the law supplies no definite standard of criminality, a judge in deciding what is indecent or profane may consciously disregard the sound test of present injury, and proceeding upon an entirely different theory may condemn the defendant because his words express ideas which are thought liable to cause bad future consequences. Thus musical comedies enjoy almost unbridled license, while a problem play is often forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has been used against Shelley's Queen Mab and the decorous promulgation of pantheistic ideas, on the ground that to attack religion is to loosen the bonds of society and endanger the state. This is simply a roundabout modern method to make heterodoxy in sex matters and even in religion a crime.' Z. Chafee, Free Speech in the United States 151 (1942).

The standard ‘offensive’ is unconstitutional in yet another way. In Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214, we had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and conduct themselves ‘in a manner annoying to persons *46 passing by.’ We struck it down, saying: ‘If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.

‘Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all.’ Id., at 614, 91 S.Ct., at 1688.

**2627 How we can deny Ohio the convenience of punishing people who ‘annoy’ others and allow California power to punish people who publish materials ‘offensive’ to some people is difficult to square with constitutional requirements.

If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it.

We deal with highly emotional, not rational, questions. To many the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires *47 that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections.

Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.

In my dissent in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2642, 37 L.Ed.2d 446, decided this date, I noted that I had no occasion to consider the extent of state power to regulate the distribution of sexually oriented material to juveniles or the offensive exposure of such material to unconsenting adults. In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code s 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that under my dissent in Paris Adult Theatre, I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face.FN* ‘(T)he transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.‘‘ Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972), quoting *48 from Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965). See also Baggett v. Bullitt, 377 U.S. 360, 366, 84 S.Ct. 1316, 1319, 12 L.Ed.2d 377 (1964); Coates v. City of Cincinnati, 402 U.S. 611, 616, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971); id., at 619-620, 91 S.Ct., at 1690-1691 (White, J., dissenting); United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 522-523, 4 L.Ed.2d 524 (1960); NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Since my view in Paris Adult Theatre I represents a substantial departure from the course of our prior decisions, and since the state courts have as yet had no opportunity to consider whether a ‘readily apparent construction suggests itself as a vehicle for rehabilitating the (statute) in a single prosecution,’ Dombrowski v. Pfister, supra, 380 U.S., at 491, 85 S.Ct., at 1123, I **2628 would reverse the judgment of the Appellate Department of the Superior Court and remand the case for proceedings not inconsistent with this opinion. See Coates v. City of Cincinnati, supra, 402 U.S., at 616, 91 S.Ct., at 1689.

FN* Cal. Penal Code s 311.2(a) provides that ‘Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.’

U.S.Cal. 1973.

Miller v. California,

413 U.S. 15, 93 S.Ct. 2607,

Supreme Court of the United States

Thomas VAN ORDEN, Petitioner,

v.

Rick PERRY, in his official capacity as Governor of Texas and Chairman, State Preservation Board, et al.

No. 03-1500.

Argued March 2, 2005.

Decided June 27, 2005.

Background: Texas resident brought § 1983 action against state and state officials, seeking declaration that display of monument inscribed with the Ten Commandments on grounds of Texas State Capitol violated First Amendment's Establishment Clause and injunction requiring its removal. Following bench trial, the United States District Court for the Western District of Texas, Harry Lee Hudspeth, J., entered judgment for state. Resident appealed. The United States Court of Appeals for the Fifth Circuit, Patrick E. Higginbotham, J., 351 F.3d 173, affirmed. Certiorari was granted.

Holdings: The Supreme Court, Chief Justice Rehnquist, held that:

(1) Lemon v. Kurtzman test was not useful in dealing with erection by Texas of passive monument on its Capitol grounds, and court's analysis instead would be driven both by nature of monument and by nation's history,

(2) display was typical of unbroken history, dating back to 1789, of official acknowledgements by all three branches of government of religion's role in American life;

(3) while Ten Commandments were undoubtedly religious, they also had undeniable historical meaning; and

(4) Establishment Clause was not violated by monument's display.

Affirmed.

Justices Scalia and Thomas filed concurring opinions.

Justice Breyer filed opinion concurring in the judgment.

Justice Stevens filed dissenting opinion in which Justice Ginsburg joined.

Justice O'Connor filed dissenting opinion.

Justice Souter filed dissenting opinion in which Justices Stevens and Ginsburg joined.

**2855 *677 Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

Among the 21 historical markers and 17 monuments surrounding the Texas State Capitol is a 6-foot-high monolith inscribed with the Ten Commandments. The legislative record illustrates that, after accepting the monument from the Fraternal Order of Eagles-a national social, civic, and patriotic organization-the State selected a site for it based on the recommendation of the state organization that maintains the capitol grounds. Petitioner, an Austin resident who encounters the monument during his frequent visits to those grounds, brought this 42 U.S.C. § 1983 suit seeking a declaration that the monument's placement violates the First Amendment's Establishment Clause and an injunction requiring its removal. Holding that the monument did not contravene **2856 the Clause, the District Court found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency, and that a reasonable observer, mindful of history, purpose, and context, would not conclude that this passive monument conveyed the message that the State endorsed religion. The Fifth Circuit affirmed.

Held: The judgment is affirmed.

351 F.3d 173, affirmed.

THE CHIEF JUSTICE, joined by Justice SCALIA, Justice KENNEDY, and Justice THOMAS, concluded that the Establishment Clause allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. Reconciling the strong role played by religion and religious traditions throughout our Nation's history, see School Dist. of Abington Township v. Schempp, 374 U.S. 203, 212-213, 83 S.Ct. 1560, 10 L.Ed.2d 844, with the principle that governmental intervention in religious matters can itself endanger religious freedom requires that the Court neither abdicate its responsibility to maintain a division between church and state nor evince a hostility to religion, e.g., Zorach v. Clauson, 343 U.S. 306, 313-314, 72 S.Ct. 679, 96 L.Ed. 954. While the Court has sometimes pointed to Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, for the governing test, Lemon is not useful in dealing with the sort of passive monument that Texas has erected on *678 its capitol grounds. Instead, the analysis should be driven by both the monument's nature and the Nation's history. From at least 1789, there has been an unbroken history of official acknowledgment by all three branches of government of religion's role in American life. Lynch v. Donnelly, 465 U.S. 668, 674, 104 S.Ct. 1355, 79 L.Ed.2d 604. Texas' display of the Commandments on government property is typical of such acknowledgments. Representations of the Commandments appear throughout this Court and its grounds, as well as the Nation's Capital. Moreover, the Court's opinions, like its building, have recognized the role the Decalogue plays in America's heritage. See, e.g., McGowan v. Maryland, 366 U.S. 420, 442, 462, 81 S.Ct. 1101, 6 L.Ed.2d 393. While the Commandments are religious, they have an undeniable historical meaning. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. See, e.g., Lynch v. Donnelly, supra, at 680, 687, 104 S.Ct. 1355. There are, of course, limits to the government's display of religious messages or symbols. For example, this Court held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public schoolroom. Stone v. Graham, 449 U.S. 39, 41-42, 101 S.Ct. 192, 66 L.Ed.2d 199. However, neither Stone itself nor subsequent opinions have indicated that Stone's holding would extend beyond the context of public schools to a legislative chamber, see Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019, or to capitol grounds. Texas' placement of the Commandments monument on its capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day. Indeed, petitioner here apparently walked by the monument for years before bringing this suit. Schempp, supra, and Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467, distinguished. Texas has treated its capitol grounds monuments as representing several strands in the State's political and legal history. The inclusion of the Commandments monument in this group has a dual significance, partaking of both religion and government, that cannot be said **2857 to violate the Establishment Clause. Pp. 2859-2864.

Justice BREYER concluded that this is a difficult borderline case where none of the Court's various tests for evaluating Establishment Clause questions can substitute for the exercise of legal judgment. See, e.g., School Dist. of Abington Township v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560, 10 L.Ed.2d 844 (Goldberg, J., concurring). That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the First Amendment's Religion Clauses-to assure the fullest possible scope of religious liberty and tolerance for all, to avoid the religious divisiveness that promotes social conflict, and to maintain the separation of church and state. No exact formula can dictate a resolution to fact-intensive cases such as this. *679 Despite the Commandments' religious message, an inquiry into the context in which the text of the Commandments is used demonstrates that the Commandments also convey a secular moral message about proper standards of social conduct and a message about the historic relation between those standards and the law. The circumstances surrounding the monument's placement on the capitol grounds and its physical setting provide a strong, but not conclusive, indication that the Commandments' text as used on this monument conveys a predominantly secular message. The determinative factor here, however, is that 40 years passed in which the monument's presence, legally speaking, went unchallenged (until the single legal objection raised by petitioner). Those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their belief systems, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to establish religion. See ibid. The public visiting the capitol grounds is more likely to have considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage. For these reasons, the Texas display falls on the permissible side of the constitutional line. Pp. 2868-2873.

REHNQUIST, C. J., announced the judgment of the Court and delivered an opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., post, p. 2864, and THOMAS, J., post, p. 2864, filed concurring opinions. BREYER, J., filed an opinion concurring in the judgment, post, p. 2868. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, post, p. 2873. O'CONNOR, J., filed a dissenting opinion, post, p. 2891. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined, post, p. 2892.

Paul D. Clement, for the United States as amicus curiae, by special leave of the Court, supporting the respondents.

Erwin Chemerinsky, Counsel of Record, Duke University School of Law Science, Durham, North Carolina, Mark Rosenbaum, Los Angeles, California, Paul Hoffman, Schonbrun, DiSimone, Seplow, Harris & Hoffman, Venice, California, Adam B. Wolf, UCLA School of Law, Los Angeles, California, Counsel for Petitioner.

Greg Abbot, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burrach, Deputy Attorney General for Litigation, Don R. Willett, Deputy Attorney General for Legal Counsel, R. Ted Cruz, Solicitor General, Counsel of Record, Joel L. Thollander, Assistant Solicitor General, Amy Warr, Assistant Solicitor General, **2858 Paul Michael Winget-Hernandez, Assistant Attorney General, Austin, Texas, Counsel for Respondents.

Chief Justice REHNQUIST announced the judgment of the Court and delivered an opinion, in which Justice SCALIA, Justice KENNEDY, and JUSTICE THOMAS join.

*681 The question here is whether the Establishment Clause of the First Amendment allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. We hold that it does.

The 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers commemorating the “people, ideals, and events that compose Texan identity.” Tex. H. Con. Res. 38, 77th Leg., Reg.Sess. (2001).FN1 The monolith challenged here stands 6-feet high and 3 1/2-feet wide. It is located to the north of the Capitol building, between the Capitol and the Supreme Court building. Its primary content is the text of the Ten Commandments. An eagle grasping the American flag, an eye inside of a pyramid, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments. Below the text are two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. The bottom of the monument bears the inscription “PRESENTED*682 TO THE PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961.” App. to Pet. for Cert. 21.

FN1. The monuments are: Heroes of the Alamo, Hood's Brigade, Confederate Soldiers, Volunteer Fireman, Terry's Texas Rangers, Texas Cowboy, Spanish-American War, Texas National Guard, Ten Commandments, Tribute to Texas School Children, Texas Pioneer Woman, The Boy Scouts' Statue of Liberty Replica, Pearl Harbor Veterans, Korean War Veterans, Soldiers of World War I, Disabled Veterans, and Texas Peace Officers.

The legislative record surrounding the State's acceptance of the monument from the Eagles-a national social, civic, and patriotic organization-is limited to legislative journal entries. After the monument was accepted, the State selected a site for the monument based on the recommendation of the state organization responsible for maintaining the Capitol grounds. The Eagles paid the cost of erecting the monument, the dedication of which was presided over by two state legislators.

Petitioner Thomas Van Orden is a native Texan and a resident of Austin. At one time he was a licensed lawyer, having graduated from Southern Methodist Law School. Van Orden testified that, since 1995, he has encountered the Ten Commandments monument during his frequent visits to the Capitol grounds. His visits are typically for the purpose of using the law library in the Supreme Court building, which is located just northwest of the Capitol building.

Forty years after the monument's erection and six years after Van Orden began to encounter the monument frequently, he sued numerous state officials in their official capacities under Rev. Stat. § 1979, 42 U.S.C. § 1983, seeking both a declaration that the monument's placement violates the Establishment Clause and an injunction requiring its removal. After a bench trial, the District Court held that the monument did not contravene the Establishment Clause. It found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to **2859 reduce juvenile delinquency. The District Court also determined that a reasonable observer, mindful of the history, purpose, and context, would not conclude that this passive monument conveyed the message that the State was seeking to endorse religion. The Court of Appeals affirmed the District *683 Court's holdings with respect to the monument's purpose and effect. 351 F.3d 173 (C.A.5 2003). We granted certiorari, 543 U.S. 923, 125 S.Ct. 346, 160 L.Ed.2d 220 (2004), and now affirm.

Our cases, Januslike, point in two directions in applying the Establishment Clause. One face looks toward the strong role played by religion and religious traditions throughout our Nation's history. As we observed in School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963):

“It is true that religion has been closely identified with our history and government .... The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself .... It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people who, in the words of Madison, are ‘earnestly praying, as ... in duty bound, that the Supreme Lawgiver of the Universe ... guide them into every measure which may be worthy of his [blessing ... .]’ ” Id., at 212-213, 83 S.Ct. 1560.FN2

FN2. See also Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (“The history of man is inseparable from the history of religion”); Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (“We are a religious people whose institutions presuppose a Supreme Being”).

The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.

[1] [pic]This case, like all Establishment Clause challenges, presents us with the difficulty of respecting both faces. Our institutions presuppose a Supreme Being, yet these institutions must not press religious observances upon their citizens. One face looks to the past in acknowledgment of our Nation's heritage, while the other looks to the present in demanding a separation between church and state. Reconciling these two faces requires that we neither abdicate our *684 responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage:

“When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups.... [W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.” Zorach v. Clauson, 343 U.S. 306, 313-314, 72 S.Ct. 679, 96 L.Ed. 954 (1952).

See also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 845-846, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (warning against the “risk [of] fostering a pervasive bias or hostility to religion, **2860 which could undermine the very neutrality the Establishment Clause requires”).FN3

FN3. Despite Justice STEVENS' recitation of occasional language to the contrary, post, at 2876, and n. 7 (dissenting opinion), we have not, and do not, adhere to the principle that the Establishment Clause bars any and all governmental preference for religion over irreligion. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987); Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984); Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983); Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). Even the dissenters do not claim that the First Amendment's Religion Clauses forbid all governmental acknowledgments, preferences, or accommodations of religion. See post, at 2876 (opinion of STEVENS, J.) (recognizing that the Establishment Clause permits some “recognition” or “acknowledgment” of religion); post, at 2893-2894, and n. 4 (opinion of SOUTER, J.) (discussing a number of permissible displays with religious content).

*685 These two faces are evident in representative cases both upholding FN4 and invalidating FN5 laws under the Establishment Clause. Over the last 25 years, we have sometimes pointed *686 to **2861 Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), as providing the governing test in Establishment Clause challenges.FN6 Compare Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (applying Lemon ), with Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (not applying Lemon ). Yet, just two years after Lemon was decided, we noted that the factors identified in Lemon serve as “no more than helpful signposts.” Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973). Many of our recent cases simply have not applied the Lemon test. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002); Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). Others have applied it only after concluding that the challenged practice was invalid under a different Establishment Clause test.

FN4. Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (upholding school voucher program); Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (holding that allowing religious school groups to use school facilities does not violate the Establishment Clause); Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (approving a program that provided public employees to teach remedial classes at religious and other private schools), overruling Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985) (barring public school teachers from going to parochial schools to provide remedial education to disadvantaged children), and School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3248, 87 L.Ed.2d 267 (1985) (striking down a program that provided classes to religious school students at public expense in classrooms leased from religious schools); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (holding that the Establishment Clause does not bar disbursement of funds from student activity fees to religious organizations); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993) (allowing a public school district to provide a sign-language interpreter to a deaf student at a Catholic high school as part of a federal program for the disabled); Lynch v. Donnelly, supra (upholding a Christmas display including a crèche); Marsh v. Chambers, supra (upholding legislative prayer); Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983) (upholding tax deduction for certain expenses incurred in sending one's child to a religious school).

FN5. Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (holding unconstitutional student-initiated and student-led prayer at school football games); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (invalidating a state law that created a new school district for a single religious community); Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (prohibiting officially sponsored graduation prayers); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (holding the display of a crèche in a courthouse unconstitutional but allowing the display of a menorah outside a county building); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989) (plurality opinion) (invalidating a sales tax exemption for all religious periodicals); Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (invalidating a law mandating the teaching of creationism if evolution was taught); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985) (invalidating state law that gave employees an absolute right not to work on their Sabbath); Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (invalidating law mandating a daily minute of silence for meditation or voluntary prayer).

FN6. Lemon sets out a three-prong test: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ” 403 U.S., at 612-613, 91 S.Ct. 2105 (citation omitted).

[2] [pic]Whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. Instead, our analysis is driven both by the nature of the monument and by our Nation's history.

As we explained in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984): “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” Id., at 674, 104 S.Ct. 1355. For example, both Houses passed resolutions in 1789 asking President George Washington to issue a Thanksgiving Day Proclamation to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favors of Almighty God.” 1 Annals of Cong. 90, 914 (internal quotation marks omitted). President Washington's proclamation*687 directly attributed to the Supreme Being the foundations and successes of our young Nation:

“Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquillity, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.” 1 J. Richardson, Messages and Papers of the Presidents, 1789-1897, p. 64 (1899).

Recognition of the role of God in our Nation's heritage has also been reflected in our decisions. We have acknowledged, for example, that “religion has been closely identified with our history and government,”**2862 School Dist. of Abington Township v. Schempp, 374 U.S., at 212, 83 S.Ct. 1560, and that “[t]he history of man is inseparable from the history of religion,” Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962).FN7 This recognition *688 has led us to hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State. Marsh v. Chambers, 463 U.S., at 792, 103 S.Ct. 3330.FN8 Such a practice, we thought, was “deeply embedded in the history and tradition of this country.” Id., at 786, 103 S.Ct. 3330. As we observed there, “it would be incongruous to interpret [the Establishment Clause] as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government.” Id., at 790-791, 103 S.Ct. 3330. With similar reasoning, we have upheld laws, which originated from one of the Ten Commandments, that prohibited the sale of merchandise on Sunday. McGowan v. Maryland, 366 U.S. 420, 431-440, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); see id., at 470-488, 81 S.Ct. 1101 (separate opinion of Frankfurter, J.).

FN7. See also Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 26, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (REHNQUIST, C. J., concurring in judgment) (“Examples of patriotic invocations of God and official acknowledgments of religion's role in our Nation's history abound”); id., at 35-36, 124 S.Ct. 2301 (O'CONNOR, J., concurring in judgment) (“It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths”); Lynch v. Donnelly, 465 U.S., at 675, 104 S.Ct. 1355 (“Our history is replete with official references to the value and invocation of Divine guidance”).

FN8. Indeed, we rejected the claim that an Establishment Clause violation was presented because the prayers had once been offered in the Judeo-Christian tradition: In Marsh, the prayers were often explicitly Christian, but the chaplain removed all references to Christ the year after the suit was filed. 463 U.S., at 793-794, and n. 14, 103 S.Ct. 3330.

[3] [pic]In this case we are faced with a display of the Ten Commandments on government property outside the Texas State Capitol. Such acknowledgments of the role played by the Ten Commandments in our Nation's heritage are common throughout America. We need only look within our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets.

*689 Similar acknowledgments can be seen throughout a visitor's tour of our Nation's Capital. For example, a large statue of Moses holding the Ten Commandments, alongside a statue of the Apostle Paul, has overlooked the rotunda of the Library of Congress' Jefferson Building since 1897. And the Jefferson Building's Great Reading Room contains a sculpture of a woman beside the Ten Commandments with a quote above her from the Old Testament (Micah 6:8). A medallion with two tablets depicting the Ten Commandments decorates the floor of the National Archives. Inside the Department of Justice, a statue entitled “The Spirit of Law” has two tablets representing the Ten Commandments lying at its feet. In front of the Ronald Reagan Building is another sculpture that includes a depiction of the Ten Commandments. So too a 24-foot-tall sculpture, depicting, among other things, the Ten Commandments and a cross, stands outside the federal courthouse that houses **2863 both the Court of Appeals and the District Court for the District of Columbia. Moses is also prominently featured in the Chamber of the United States House of Representatives.FN9

FN9. Other examples of monuments and buildings reflecting the prominent role of religion abound. For example, the Washington, Jefferson, and Lincoln Memorials all contain explicit invocations of God's importance. The apex of the Washington Monument is inscribed “Laus Deo,” which is translated to mean “Praise be to God,” and multiple memorial stones in the monument contain Biblical citations. The Jefferson Memorial is engraved with three quotes from Jefferson that make God a central theme. Inscribed on the wall of the Lincoln Memorial are two of Lincoln's most famous speeches, the Gettysburg Address and his Second Inaugural Address. Both inscriptions include those speeches' extensive acknowledgments of God. The first federal monument, which was accepted by the United States in honor of sailors who died in Tripoli, noted the dates of the fallen sailors as “the year of our Lord, 1804, and in the 28 year of the independence of the United States.”

Our opinions, like our building, have recognized the role the Decalogue plays in America's heritage. See, e.g., McGowan v. Maryland, 366 U.S., at 442, 81 S.Ct. 1101; id., at 462, 81 S.Ct. 1101 (separate opinion*690 of Frankfurter, J.).FN10 The Executive and Legislative Branches have also acknowledged the historical role of the Ten Commandments. See, e.g., Public Papers of the Presidents, Harry S. Truman, 1950, p. 157 (1965); S. Con. Res. 13, 105th Cong., 1st Sess. (1997); H. Con. Res. 31, 105th Cong., 1st Sess. (1997). These displays and recognitions of the Ten Commandments bespeak the rich American tradition of religious acknowledgments.

FN10. See also Edwards v. Aguillard, 482 U.S., at 593-594, 107 S.Ct. 2573; Lynch v. Donnelly, 465 U.S., at 677-678, 104 S.Ct. 1355; id., at 691, 104 S.Ct. 1355 (O'CONNOR, J., concurring); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S., at 652-653, 109 S.Ct. 3086 (STEVENS, J., concurring in part and dissenting in part); Stone v. Graham, 449 U.S. 39, 45, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (REHNQUIST, J., dissenting).

[4] [pic][5] [pic]Of course, the Ten Commandments are religious-they were so viewed at their inception and so remain. The monument, therefore, has religious significance. According to Judeo-Christian belief, the Ten Commandments were given to Moses by God on Mt. Sinai. But Moses was a lawgiver as well as a religious leader. And the Ten Commandments have an undeniable historical meaning, as the foregoing examples demonstrate. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. See Lynch v. Donnelly, 465 U.S., at 680, 687, 104 S.Ct. 1355; Marsh v. Chambers, 463 U.S., at 792, 103 S.Ct. 3330; McGowan v. Maryland, supra, at 437-440, 81 S.Ct. 1101; Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 676-678, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).

There are, of course, limits to the display of religious messages or symbols. For example, we held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public schoolroom. Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam). In the classroom context, we found that the Kentucky statute had an improper and plainly religious purpose. Id., at 41, 101 S.Ct. 192. As evidenced by Stone's almost exclusive reliance upon two of our school *691 prayer cases, id., at 41-42, 101 S.Ct. 192 (citing School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962)), it stands as an example of the fact that we have “been particularly vigilant in monitoring compliance**2864 with the Establishment Clause in elementary and secondary schools,” Edwards v. Aguillard, 482 U.S. 578, 583-584, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). Compare Lee v. Weisman, 505 U.S. 577, 596-597, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (holding unconstitutional a prayer at a secondary school graduation), with Marsh v. Chambers, supra (upholding a prayer in the state legislature). Indeed, Edwards v. Aguillard recognized that Stone-along with Schempp and Engel-was a consequence of the “particular concerns that arise in the context of public elementary and secondary schools.” 482 U.S., at 584-585, 107 S.Ct. 2573. Neither Stone itself nor subsequent opinions have indicated that Stone 's holding would extend to a legislative chamber, see Marsh v. Chambers, supra, or to capitol grounds.FN11

FN11. Nor does anything suggest that Stone would extend to displays of the Ten Commandments that lack a “plainly religious,” “pre-eminent purpose,” id., at 41, 101 S.Ct. 192. See Edwards v. Aguillard, supra, at 593-594, 107 S.Ct. 2573 (“ [Stone] did not mean that no use could ever be made of the Ten Commandments, or that the Ten Commandments played an exclusively religious role in the history of Western Civilization”). Indeed, we need not decide in this case the extent to which a primarily religious purpose would affect our analysis because it is clear from the record that there is no evidence of such a purpose in this case.

[6] [pic]The placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day. Indeed, Van Orden, the petitioner here, apparently walked by the monument for a number of years before bringing this lawsuit. The monument is therefore also quite different from the prayers involved in Schempp and Lee v. Weisman. Texas has treated its Capitol grounds monuments as representing the several strands in the State's political and legal history. The inclusion of the Ten Commandments monument in this *692 group has a dual significance, partaking of both religion and government. We cannot say that Texas' display of this monument violates the Establishment Clause of the First Amendment.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice SCALIA, concurring.

I join the opinion of THE CHIEF JUSTICE because I think it accurately reflects our current Establishment Clause jurisprudence-or at least the Establishment Clause jurisprudence we currently apply some of the time. I would prefer to reach the same result by adopting an Establishment Clause jurisprudence that is in accord with our Nation's past and present practices, and that can be consistently applied-the central relevant feature of which is that there is nothing unconstitutional in a State's favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments. See McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S., at 885-894, 125 S.Ct. 2722, 2727-2732, 162 L.Ed.2d 729, 2005 WL 1498988 (SCALIA, J., dissenting).

Justice THOMAS, concurring.

The Court holds that the Ten Commandments monument found on the Texas State Capitol grounds does not violate the Establishment Clause. Rather than trying to suggest meaninglessness where there is meaning, THE CHIEF JUSTICE rightly recognizes that the monument has “religious significance.” Ante, at 2863. He **2865 properly recognizes the role of religion in this Nation's history and the permissibility of government displays acknowledging that history. Ante, at 2861-2862. For those reasons, I join THE CHIEF JUSTICE's opinion in full.

This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing *693 Establishment Clause challenges,FN* and return to the original meaning of the Clause. I have previously suggested that the Clause's text and history “resis[t] incorporation” against the States. See Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 45-46, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (opinion concurring in judgment); see also Zelman v. Simmons-Harris, 536 U.S. 639, 677-680, and n. 3, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (concurring opinion). If the Establishment Clause does not restrain the States, then it has no application here, where only state action is at issue.

FN* See, e.g., County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592-594, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (employing endorsement test); Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (setting forth three-pronged test); Marsh v. Chambers, 463 U.S. 783, 790-792, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (upholding legislative prayer due to its “unique history”); see also Lynch v. Donnelly, 465 U.S. 668, 679-681, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (“[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area”).

Even if the Clause is incorporated, or if the Free Exercise Clause limits the power of States to establish religions, see Cutter v. Wilkinson, 544 U.S. 709, 728, n. 3, 125 S.Ct. 2113, 2118, n. 3, 161 L.Ed.2d 1020 (2005) (THOMAS, J., concurring), our task would be far simpler if we returned to the original meaning of the word “establishment” than it is under the various approaches this Court now uses. The Framers understood an establishment “necessarily [to] involve actual legal coercion.” Newdow, supra, at 52, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment); Lee v. Weisman, 505 U.S. 577, 640, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (SCALIA, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty ”). “In other words, establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers.” Cutter, supra, at 729, 125 S.Ct., at 2126 (THOMAS, J., concurring). And “government practices that have nothing to do with creating or maintaining ... coercive state establishments” simply do not “implicate the possible liberty interest of being *694 free from coercive state establishments.” Newdow, supra, at 53, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment).

There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.

Returning to the original meaning would do more than simplify our task. It also would avoid the pitfalls present in the Court's current approach to such **2866 challenges. This Court's precedent elevates the trivial to the proverbial “federal case,” by making benign signs and postings subject to challenge. Yet even as it does so, the Court's precedent attempts to avoid declaring all religious symbols and words of longstanding tradition unconstitutional, by counterfactually declaring them of little religious significance. Even when the Court's cases recognize that such symbols have religious meaning, they adopt an unhappy compromise that fails fully to account for either the adherent's or the nonadherent's beliefs, and provides no principled way to choose between them. Even worse, the incoherence of the Court's decisions in this area renders the Establishment Clause impenetrable and incapable of consistent application. All told, this Court's jurisprudence leaves courts, governments, and believers and nonbelievers alike confused-an observation that is hardly new. See Newdow, supra, at 45, n. 1, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment) (collecting cases).

First, this Court's precedent permits even the slightest public recognition of religion to constitute an establishment of religion. For example, individuals frequenting a county *695 courthouse have successfully challenged as an Establishment Clause violation a sign at the courthouse alerting the public that the building was closed for Good Friday and containing a 4-inch-high crucifix. Granzeier v. Middleton, 955 F.Supp. 741, 743, and n. 2, 746-747 (E.D.Ky.1997), aff'd on other grounds, 173 F.3d 568, 576 (C.A.6 1999). Similarly, a park ranger has claimed that a cross erected to honor World War I veterans on a rock in the Mojave Desert Preserve violated the Establishment Clause, and won. See Buono v. Norton, 212 F.Supp.2d 1202, 1204-1205, 1215-1217 (C.D.Cal.2002). If a cross in the middle of a desert establishes a religion, then no religious observance is safe from challenge. Still other suits have charged that city seals containing religious symbols violate the Establishment Clause. See, e.g., Robinson v. Edmond, 68 F.3d 1226 (C.A.10 1995); Murray v. Austin, 947 F.2d 147 (C.A.5 1991); Friedman v. Board of Cty. Comm'rs of Bernalillo Cty., 781 F.2d 777 (C.A.10 1985) (en banc). In every instance, the litigants are mere “[p]assersby ... free to ignore [such symbols or signs], or even to turn their backs, just as they are free to do when they disagree with any other form of government speech.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 664, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part).

Second, in a seeming attempt to balance out its willingness to consider almost any acknowledgment of religion an establishment, in other cases Members of this Court have concluded that the term or symbol at issue has no religious meaning by virtue of its ubiquity or rote ceremonial invocation. See, e.g., id., at 630-631, 109 S.Ct. 3086 (O'CONNOR, J., concurring in part and concurring in judgment); Lynch v. Donnelly, 465 U.S. 668, 716-717, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (Brennan, J., dissenting). But words such as “God” have religious significance. For example, just last Term this Court had before it a challenge to the recitation of the Pledge of Allegiance, which includes the *696 phrase “one Nation under God.” The declaration that our country is “ ‘one Nation under God’ ” necessarily “entail[s] an affirmation that God exists.” Newdow, 542 U.S., at 48, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment). This phrase is thus anathema to those who reject God's existence and a validation of His existence to those who accept it. Telling either nonbelievers or believers that the words “under**2867 God” have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like “God” are not vulgarities for which the shock value diminishes with each successive utterance.

Even when this Court's precedents recognize the religious meaning of symbols or words, that recognition fails to respect fully religious belief or disbelief. This Court looks for the meaning to an observer of indeterminate religious affiliation who knows all the facts and circumstances surrounding a challenged display. See, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O'CONNOR, J., concurring in part and concurring in judgment) (presuming that a reasonable observer is “aware of the history and context of the community and forum in which the religious display appears”). In looking to the view of this unusually informed observer, this Court inquires whether the sign or display “sends the ancillary message to ... nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’ ” Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309-310, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (quoting Lynch, supra, at 688, 104 S.Ct. 1355 (O'CONNOR, J., concurring)).

This analysis is not fully satisfying to either nonadherents or adherents. For the nonadherent, who may well be more sensitive than the hypothetical “reasonable observer,” or who may not know all the facts, this test fails to capture completely the honest and deeply felt offense he takes from *697 the government conduct. For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith. The Court's foray into religious meaning either gives insufficient weight to the views of nonadherents and adherents alike, or it provides no principled way to choose between those views. In sum, this Court's effort to assess religious meaning is fraught with futility.

Finally, the very “flexibility” of this Court's Establishment Clause precedent leaves it incapable of consistent application. See Edwards v. Aguillard, 482 U.S. 578, 640, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (SCALIA, J., dissenting) (criticizing the Lemon test's “flexibility” as “the absence of any principled rationale” (internal quotation marks omitted)). The inconsistency between the decisions the Court reaches today in this case and in McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729, 2005 WL 1498988 (2005), only compounds the confusion.

The unintelligibility of this Court's precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections. See, e.g., Harris v. Zion, 927 F.2d 1401, 1425 (C.A.7 1991) (Easterbrook, J., dissenting) (“Line drawing in this area will be erratic and heavily influenced by the personal views of the judges”); post, at 2869 (BREYER, J., concurring in judgment) (“I see no test-related substitute for the exercise of legal judgment”). The outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges.

Much, if not all, of this would be avoided if the Court would return to the views of the Framers and adopt coercion as the touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act **2868 as theological commissions, judging the meaning of religious matters. Most important, our precedent would be capable of consistent and coherent application. While the Court correctly*698 rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order.

Justice BREYER, concurring in the judgment.

In School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), Justice Goldberg, joined by Justice Harlan, wrote, in respect to the First Amendment's Religion Clauses, that there is “no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible.” Id., at 306, 83 S.Ct. 1560 (concurring opinion). One must refer instead to the basic purposes of those Clauses. They seek to “assure the fullest possible scope of religious liberty and tolerance for all.” Id., at 305, 83 S.Ct. 1560. They seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike. Zelman v. Simmons-Harris, 536 U.S. 639, 717-729, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (BREYER, J., dissenting). They seek to maintain that “separation of church and state” that has long been critical to the “peaceful dominion that religion exercises in [this] country,” where the “spirit of religion” and the “spirit of freedom” are productively “united,” “reign[ing] together” but in separate spheres “on the same soil.” A. de Tocqueville, Democracy in America 282-283 (1835) (H. Mansfield & D. Winthrop transls. and eds.2000). They seek to further the basic principles set forth today by Justice O'CONNOR in her concurring opinion in McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S., at 881, 125 S.Ct., at 2727, 2005 WL 1498988.

The Court has made clear, as Justices Goldberg and Harlan noted, that the realization of these goals means that government must “neither engage in nor compel religious practices,” that it must “effect no favoritism among sects or between religion and nonreligion,” and that it must “work deterrence of no religious belief.” Schempp, supra, at 305, 83 S.Ct. 1560 (concurring opinion); see also *699 Lee v. Weisman, 505 U.S. 577, 587, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992); Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The government must avoid excessive interference with, or promotion of, religion. See generally County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 593-594, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); Zelman, supra, at 723-725, 122 S.Ct. 2460 (BREYER, J., dissenting). But the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious. See, e.g., Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). Such absolutism is not only inconsistent with our national traditions, see, e.g., Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Lynch v. Donnelly, 465 U.S. 668, 672-678, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid.

Thus, as Justices Goldberg and Harlan pointed out, the Court has found no single mechanical formula that can accurately draw the constitutional line in every case. See Schempp, 374 U.S., at 306, 83 S.Ct. 1560 (concurring opinion). Where the Establishment Clause is at issue, tests designed to measure “neutrality” alone are **2869 insufficient, both because it is sometimes difficult to determine when a legal rule is “neutral,” and because

“untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.” Ibid.

Neither can this Court's other tests readily explain the Establishment Clause's tolerance, for example, of the prayers that open legislative meetings, see Marsh, supra; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving. See, *700 e.g., Lemon, supra, at 612-613, 91 S.Ct. 2105 (setting forth what has come to be known as the “ Lemon test”); Lynch, supra, at 687, 104 S.Ct. 1355 (O'CONNOR, J., concurring) (setting forth the “endorsement test”); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 800, n. 5, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (STEVENS, J., dissenting) (agreeing that an “endorsement test” should apply but criticizing its “reasonable observer” standard); Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 319, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (REHNQUIST, C. J., dissenting) (noting Lemon's “checkered career in the decisional law of this Court”); County of Allegheny, supra, at 655-656, 109 S.Ct. 3086 (KENNEDY, J., joined by REHNQUIST, C. J., and White and SCALIA, JJ., concurring in judgment in part and dissenting in part) (criticizing the Lemon test).

If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment. See Schempp, supra, at 305, 83 S.Ct. 1560 (Goldberg, J., concurring); cf. Zelman, supra, at 726-728, 122 S.Ct. 2460 (BREYER, J., dissenting) (need for similar exercise of judgment where quantitative considerations matter). That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court's prior tests provide useful guideposts-and might well lead to the same result the Court reaches today, see, e.g., Lemon, supra, at 612-613, 91 S.Ct. 2105; Capitol Square, supra, at 773-783, 115 S.Ct. 2440 (O'CONNOR, J., concurring in part and concurring in judgment)-no exact formula can dictate a resolution to such fact-intensive cases.

The case before us is a borderline case. It concerns a large granite monument bearing the text of the Ten Commandments located on the grounds of the Texas State Capitol. On the one hand, the Commandments' text undeniably has a religious message, invoking, indeed emphasizing, the *701 Deity. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display.

In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also **2870 convey a historical message (about a historic relation between those standards and the law)-a fact that helps to explain the display of those tablets in dozens of courthouses throughout the Nation, including the Supreme Court of the United States. See generally App. to Brief for United States as Amicus Curiae 1a-7a.

Here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. The circumstances surrounding the display's placement on the capitol grounds and its physical setting suggest that the State itself intended the latter, nonreligious aspects of the tablets' message to predominate. And the monument's 40-year history on the Texas state grounds indicates that that has been its effect.

The group that donated the monument, the Fraternal Order of Eagles, a private civic (and primarily secular) organization, while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments' role in shaping civic morality as part of that organization's efforts to combat juvenile delinquency. See Tex. S. Con. Res. 16, 57th Leg., Reg.Sess. (1961). The Eagles' consultation with a committee composed of members of several faiths in order to find a nonsectarian text underscores the group's ethics-based motives. See Brief for Respondents 5-6, and n. 9. The tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the display, a factor which, though not sufficient, thereby further distances *702 the State itself from the religious aspect of the Commandments' message.

The physical setting of the monument, moreover, suggests little or nothing of the sacred. See Appendix A, infra. The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the “ideals” of those who settled in Texas and of those who have lived there since that time. Tex. H. Con. Res. 38, 77th Leg., Reg.Sess. (2001); see Appendix B, infra. The setting does not readily lend itself to meditation or any other religious activity. But it does provide a context of history and moral ideals. It (together with the display's inscription about its origin) communicates to visitors that the State sought to reflect moral principles, illustrating a relation between ethics and law that the State's citizens, historically speaking, have endorsed. That is to say, the context suggests that the State intended the display's moral message-an illustrative message reflecting the historical “ideals” of Texans-to predominate.

If these factors provide a strong, but not conclusive, indication that the Commandments' text on this monument conveys a predominantly secular message, a further factor is determinative here. As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to “engage in” any “religious practic[e],” to “compel” any “religious practic[e],” or to “work deterrence” of any “religious belief.” Schempp, 374 U.S., at 305, 83 S.Ct. 1560 (Goldberg, J., concurring). Those 40 years suggest that *703 the public visiting the capitol grounds has considered the religious aspect of the tablets' message as part of what is a broader **2871 moral and historical message reflective of a cultural heritage.

This case, moreover, is distinguishable from instances where the Court has found Ten Commandments displays impermissible. The display is not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state. See, e.g., Weisman, 505 U.S., at 592, 112 S.Ct. 2649; Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam). This case also differs from McCreary County, where the short (and stormy) history of the courthouse Commandments' displays demonstrates the substantially religious objectives of those who mounted them, and the effect of this readily apparent objective upon those who view them. See ante, at 2738-2740 (opinion of the Court). That history there indicates a governmental effort substantially to promote religion, not simply an effort primarily to reflect, historically, the secular impact of a religiously inspired document. And, in today's world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.

For these reasons, I believe that the Texas display-serving a mixed but primarily nonreligious purpose, not primarily “advanc[ing]” or “inhibit[ing] religion,” and not creating an “excessive government entanglement with religion”-might satisfy this Court's more formal Establishment Clause tests. Lemon, 403 U.S., at 612-613, 91 S.Ct. 2105 (internal quotation marks omitted); see also Capitol Square, 515 U.S., at 773-783, 115 S.Ct. 2440 (O'CONNOR, J., concurring in part and concurring in judgment). But, as I have said, in reaching the conclusion that the Texas display falls on the permissible side of the constitutional line, I rely less upon a literal application of any particular*704 test than upon consideration of the basic purposes of the First Amendment's Religion Clauses themselves. This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.

At the same time, to reach a contrary conclusion here, based primarily on the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid. Zelman, 536 U.S., at 717-729, 122 S.Ct. 2460 (BREYER, J., dissenting).

Justices Goldberg and Harlan concluded in Schempp that

“[t]he First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact.” 374 U.S., at 308, 83 S.Ct. 1560 (concurring opinion).

That kind of practice is what we have here. I recognize the danger of the slippery slope. Still, where the Establishment Clause is at issue, we must “distinguish between real threat and mere shadow.” Ibid. Here, we have only the shadow.

In light of these considerations, I cannot agree with today's plurality's analysis. Nor can I agree with Justice SCALIA's **2872 dissent in McCreary County, ante, 545 U.S., at 885, 125 S.Ct., at 2748, 2005 WL 1498988. I do agree with Justice O'CONNOR's statement of principles in McCreary County, ante, 545 U.S., at 881-883, 125 S.Ct., at 2746, 2005 WL 1498988, though I disagree with *705 her evaluation of the evidence as it bears on the application of those principles to this case.

I concur in the judgment of the Court.

Justice STEVENS, with whom Justice GINSBURG joins, dissenting.

*707 The sole function of the monument on the grounds of Texas' State Capitol is to display the full text of one version of the Ten Commandments. The monument is not a work of art and does not refer to any event in the history of the State. It is significant because, and only because, it communicates the following message:

“I AM the LORD thy God.

Thou shalt have no other gods before me.

**2874 Thou shalt not make to thyself any graven images.

Thou shalt not take the Name of the Lord thy God in vain.

Remember the Sabbath day, to keep it holy.

Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.

Thou shalt not kill.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shalt not bear false witness against thy neighbor.

Thou shalt not covet thy neighbor's house.

Thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's.” See Appendix, infra.FN1

FN1. At the bottom of the message, the observer learns that the display was “[p]resented to the people and youth of Texas by the Fraternal Order of Eagles of Texas” in 1961. See Appendix, infra.

Viewed on its face, Texas' display has no purported connection to God's role in the formation of Texas or the founding of our Nation; nor does it provide the reasonable observer with any basis to guess that it was erected to honor any individual or organization. The message transmitted by Texas' chosen display is quite plain: This State endorses the divine code of the “Judeo-Christian” God.

*708 For those of us who learned to recite the King James version of the text long before we understood the meaning of some of its words, God's Commandments may seem like wise counsel. The question before this Court, however, is whether it is counsel that the State of Texas may proclaim without violating the Establishment Clause of the Constitution. If any fragment of Jefferson's metaphorical “wall of separation between church and State” FN2 is to be preserved-if there remains any meaning to the “wholesome ‘neutrality’ of which this Court's [Establishment Clause] cases speak,” School Dist. of Abington Township v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)-a negative answer to that question is mandatory.

FN2. Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244 (1879); see also Everson v. Board of Ed. of Ewing, 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947).

I

In my judgment, at the very least, the Establishment Clause has created a strong presumption against the display of religious symbols on public property. See, e.g., County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 650, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (STEVENS, J., concurring in part and dissenting in part); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 797, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (STEVENS, J., dissenting). The adornment of our public spaces with displays of religious symbols and messages undoubtedly provides comfort, even inspiration, to many individuals who subscribe to particular faiths. Unfortunately, the practice also runs the risk of “offend[ing] nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful.” Allegheny County, 492 U.S., at 651, 109 S.Ct. 3086 (STEVENS, J., concurring in part and dissenting in part). FN3

FN3. As Senator Danforth recently reminded us, “efforts to haul references of God into the public square, into schools and courthouses, are far more apt to divide Americans than to advance faith.” Danforth, Onward, Moderate Christian Soldiers, N.Y. Times, June 17, 2005, p. A27.

**2875 *709 Government's obligation to avoid divisiveness and exclusion in the religious sphere is compelled by the Establishment and Free Exercise Clauses, which together erect a wall of separation between church and state. FN4 This metaphorical wall protects principles long recognized and often recited in this Court's cases. The first and most fundamental of these principles, one that a majority of this Court today affirms, is that the Establishment Clause demands religious neutrality-government may not exercise a preference for one religious faith over another. See, e.g., McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S., at 874-876, 125 S.Ct., at 2742-2743, 2005 WL 1498988.FN5 This essential command, however, is not merely a prohibition *710 against the government's differentiation among religious sects. We have repeatedly reaffirmed that neither a State nor the Federal Government “can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) (footnote omitted). FN6 This principle is based on the straightforward notion that governmental promotion of orthodoxy is not saved by the aggregation of several orthodoxies under **2876 the State's banner. See Abington, 374 U.S., at 222, 83 S.Ct. 1560.

FN4. The accuracy and utility of this metaphor have been called into question. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 106, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (REHNQUIST, J., dissenting); see generally P. Hamburger, Separation of Church and State (2002). Whatever one may think of the merits of the historical debate surrounding Jefferson and the “wall” metaphor, this Court at a minimum has never questioned the concept of the “separation of church and state” in our First Amendment jurisprudence. THE CHIEF JUSTICE's opinion affirms that principle. Ante, at 2859 (demanding a “separation between church and state”). Indeed, even the Court that famously opined that “[w]e are a religious people whose institutions presuppose a Supreme Being,” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952), acknowledged that “[t]here cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated,” id., at 312, 72 S.Ct. 679. The question we face is how to give meaning to that concept of separation.

FN5. There is now widespread consensus on this principle. See Everson, 330 U.S., at 15, 67 S.Ct. 504, 91 L.Ed. 711 (“Neither a state nor the Federal Government ... can pass laws which aid one religion, aid all religions, or prefer one religion over another”); School Dist. of Abington Township v. Schempp, 374 U.S. 203, 226, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (“In the relationship between man and religion, the State is firmly committed to a position of neutrality”); Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another”); see also Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 748, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (SCALIA, J., dissenting) (“I have always believed ... that the Establishment Clause prohibits the favoring of one religion over others”); but see Church of Holy Trinity v. United States, 143 U.S. 457, 470-471, 12 S.Ct. 511, 36 L.Ed. 226 (1892).

FN6. In support of this proposition, the Torcaso Court quoted James Iredell, who in the course of debating the adoption of the Federal Constitution in North Carolina, stated: “ ‘[I]t is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?’ ” 367 U.S., at 495, n. 10, 81 S.Ct. 1680 (quoting 4 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 194 (2d ed.1891)).

Acknowledgments of this broad understanding of the neutrality principle are legion in our cases.FN7 Strong arguments to the contrary have been raised from time to time, perhaps the strongest in then-Justice REHNQUIST's scholarly dissent*711 in Wallace v. Jaffree, 472 U.S. 38, 91-114, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985).FN8 Powerful as his argument was, we squarely rejected it and thereby reaffirmed the principle that the Establishment Clause requires the same respect for the atheist as it does for the adherent of a Christian faith. As we wrote, “the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” Id., at 52-53, 105 S.Ct. 2479.

FN7. See Everson, 330 U.S., at 18, 67 S.Ct. 504 (the Establishment Clause “requires the state to be ... neutral in its relations with groups of religious believers and non-believers”); Abington, 374 U.S., at 216, 83 S.Ct. 1560 (rejecting the proposition that the Establishment Clause “forbids only governmental preference of one religion over another”); Wallace, 472 U.S., at 52-55, 105 S.Ct. 2479 (the interest in “forestalling intolerance extends beyond intolerance among Christian sects-or even intolerance among ‘religions'-to encompass intolerance of the disbeliever and the uncertain”); cf. Zorach, 343 U.S., at 325, 72 S.Ct. 679 (Jackson, J., dissenting) (“The day that this country ceases to be free for irreligion it will cease to be free for religion-except for the sect that can win political power”).

FN8. Justice SCALIA's dissent in the other Ten Commandments case we decide today, see McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S., at 885-894, 125 S.Ct., at 2727-2732, 2005 WL 1498988, raises similar objections. I address these objections directly in Part III.

In restating this principle, I do not discount the importance of avoiding an overly strict interpretation of the metaphor so often used to define the reach of the Establishment Clause. The plurality is correct to note that “religion and religious traditions” have played a “strong role ... throughout our Nation's history.” Ante, at 2859. This Court has often recognized “an unbroken history of official acknowledgment ... of the role of religion in American life.” Lynch v. Donnelly, 465 U.S. 668, 674, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984); accord, Edwards v. Aguillard, 482 U.S. 578, 606-608, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (Powell, J., concurring). Given this history, it is unsurprising that a religious symbol may at times become an important feature of a familiar landscape or a reminder of an important event in the history of a community. The wall that separates the church from the State does not prohibit the government from acknowledging the religious beliefs and practices of the American people, nor does it require governments to hide works of art or historic memorabilia from public view just because they also have religious significance.

This case, however, is not about historic preservation or the mere recognition of religion. The issue is obfuscated rather than clarified by simplistic commentary on the various *712 ways in which religion has played a role in American life, see ante, at 2859-2862 (plurality opinion), and by the recitation of the many extant governmental “acknowledgments” of the role the Ten Commandments played in our Nation's heritage,FN9 ante, at 2861-2863, and n. 9. **2877 Surely, the mere compilation of religious symbols, none of which includes the full text of the Commandments and all of which are exhibited in different settings, has only marginal relevance to the question presented in this case.

FN9. Though this Court has subscribed to the view that the Ten Commandments influenced the development of Western legal thought, it has not officially endorsed the far more specific claim that the Ten Commandments played a significant role in the development of our Nation's foundational documents (and the subsidiary implication that it has special relevance to Texas). Although it is perhaps an overstatement to characterize this latter proposition as “idiotic,” see Tr. of Oral Arg. 34, as one Member of the plurality has done, at the very least the question is a matter of intense scholarly debate. Compare Brief for Legal Historians and Law Scholars as Amicus Curiae in McCreary County v. American Civil Liberties Union of Ky., O.T.2004, No. 03-1693, with Brief for American Center for Law and Justice as Amicus Curiae. Whatever the historical accuracy of the proposition, the District Court categorically rejected respondents' suggestion that the State's actual purpose in displaying the Decalogue was to signify its influence on secular law and Texas institutions. App. to Pet. for Cert. 32.

The monolith displayed on Texas Capitol grounds cannot be discounted as a passive acknowledgment of religion, nor can the State's refusal to remove it upon objection be explained as a simple desire to preserve a historic relic. This Nation's resolute commitment to neutrality with respect to religion is flatly inconsistent with the plurality's wholehearted validation of an official state endorsement of the message that there is one, and only one, God.

II

When the Ten Commandments monument was donated to the State of Texas in 1961, it was not for the purpose of commemorating a noteworthy event in Texas history, signifying*713 the Commandments' influence on the development of secular law, or even denoting the religious beliefs of Texans at that time. To the contrary, the donation was only one of over a hundred largely identical monoliths, and of over a thousand paper replicas, distributed to state and local governments throughout the Nation over the course of several decades. This ambitious project was the work of the Fraternal Order of Eagles, a well-respected benevolent organization whose good works have earned the praise of several Presidents.FN10

FN10. See Brief for Fraternal Order of Eagles as Amicus Curiae 2-3. The Order was formed in 1898 by six Seattle theater owners, promptly joined by actors, playwrights, and stagehands, and rapidly expanded to include a nationwide membership numbering over a million. Id., at 1-2; see also Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wash.2d 224, 229, 59 P.3d 655, 657 (2002) (en banc); Lahmann v. Grand Aerie of Fraternal Order of Eagles, 180 Ore.App. 420, 422, 43 P.3d 1130, 1131 (2002).

As the story goes, the program was initiated by the late Judge E.J. Ruegemer, a Minnesota juvenile court judge and then-Chairman of the Eagles National Commission on Youth Guidance. Inspired by a juvenile offender who had never heard of the Ten Commandments, the judge approached the Minnesota Eagles with the idea of distributing paper copies of the Commandments to be posted in courthouses nationwide. The State's Aerie undertook this project and its popularity spread. When Cecil B. DeMille, who at that time was filming the movie The Ten Commandments, heard of the judge's endeavor, he teamed up with the Eagles to produce the type of granite monolith now displayed in front of the Texas Capitol and at courthouse squares, city halls, and public parks throughout the Nation. Granite was reportedly chosen over DeMille's original suggestion of bronze plaques to better replicate the original Ten Commandments. FN11

FN11. See Books v. Elkhart, 235 F.3d 292, 294-295 (C.A.7 2000); State v. Freedom From Religion Foundation, Inc., 898 P.2d 1013, 1017 (Colo.1995) (en banc); see also U.S. Supreme Court will hear Ten Commandments Case in Early 2005, . foe. com/ ten command ments/ index.html (all Internet materials as visited June 24, 2005, and available in Clerk of Court's case file).

**2878 *714 The donors were motivated by a desire to “inspire the youth” and curb juvenile delinquency by providing children with a “ ‘code of conduct or standards by which to govern their actions.’ ” FN12 It is the Eagles' belief that disseminating the message conveyed by the Ten Commandments will help to persuade young men and women to observe civilized standards of behavior, and will lead to more productive lives. Significantly, although the Eagles' organization is nonsectarian, eligibility for membership is premised on a belief in the existence of a “Supreme Being.” FN13 As described by the Eagles themselves:

FN12. Brief for Fraternal Order of Eagles as Amicue Curiae 4; Freedom From Religion Foundation, 898 P.2d, at 1017; accord, Tex. S. Con.Res. 16, 57th Leg., Reg.Sess. (1961) (“These plaques and monoliths have been presented by the Eagles to promote youth morality and to help stop the alarming increase in delinquency”).

FN13. According to its articles of incorporation, the Eagles' purpose is to: “ ‘[U]nite fraternally for mutual benefit, protection, improvement, social enjoyment and association, all persons of good moral character who believe in a Supreme Being to inculcate the principles of liberty, truth, justice and equality ....’ ” Fraternal Order of Eagles, 148 Wash.2d, at 229, 59 P.3d, at 657. See also Aerie Membership Application-Fraternal Order of Eagles, . foe. com/ membership/ applications/ aerie.html (“I, being of sound body and mind, and believing in the existence of a Supreme Being ... ”).

“ ‘[I]n searching for a youth guidance program [we] recognized that there can be no better, no more defined program of Youth Guidance, and adult guidance as well, than the laws handed down by God Himself to Moses more than 3000 years ago, which laws have stood unchanged through the years. They are a fundamental part of our lives, the basis of all our laws for living, the foundation of our relationship with our Creator, with our families and with our fellow men. All the concepts we *715 live by-freedom, democracy, justice, honor-are rooted in the Ten Commandments.

. . . . .

“ ‘The erection of these monoliths is to inspire all who pause to view them, with a renewed respect for the law of God, which is our greatest strength against the forces that threaten our way of life.’ ” Anderson v. Salt Lake City Corp., 348 F.Supp. 1170, 1172 (Utah 1972), rev'd, 475 F.2d 29 (C.A.10 1973).

The desire to combat juvenile delinquency by providing guidance to youths is both admirable and unquestionably secular. But achieving that goal through biblical teachings injects a religious purpose into an otherwise secular endeavor. By spreading the word of God and converting heathens to Christianity, missionaries expect to enlighten their converts, enhance their satisfaction with life, and improve their behavior. Similarly, by disseminating the “law of God”-directing fidelity to God and proscribing murder, theft, and adultery-the Eagles hope that this divine guidance will help wayward youths conform their behavior and improve their lives. In my judgment, the significant secular byproducts that are intended consequences of religious instruction-indeed, of the establishment of most religions-are not the type of “secular” purposes that justify government promulgation of sacred religious messages.

Though the State of Texas may genuinely wish to combat juvenile delinquency, and may rightly want to honor the Eagles for their efforts, it cannot effectuate these admirable purposes through an explicitly religious medium. See Bowen v. Kendrick, 487 U.S. 589, 639-640, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (Blackmun, J., dissenting) (“It should be undeniable by now that religious dogma may not be employed**2879 by government even to accomplish laudable secular purposes”). The State may admonish its citizens not to lie, cheat, or steal, to honor their parents, and to respect their neighbors' property; and it may do so by printed words, in television commercials, or on granite *716 monuments in front of its public buildings. Moreover, the State may provide its schoolchildren and adult citizens with educational materials that explain the important role that our forebears' faith in God played in their decisions to select America as a refuge from religious persecution, to declare their independence from the British Crown, and to conceive a new Nation. See Edwards, 482 U.S., at 606-608, 107 S.Ct. 2573 (Powell, J., concurring). The message at issue in this case, however, is fundamentally different from either a bland admonition to observe generally accepted rules of behavior or a general history lesson.

The reason this message stands apart is that the Decalogue is a venerable religious text.FN14 As we held 25 years ago, it is beyond dispute that “[t]he Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths.” Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam). For many followers, the Commandments represent the literal word of God as spoken to Moses and repeated to his followers after descending from Mount Sinai. The message conveyed by the Ten Commandments thus cannot be analogized to an appendage to a common article of commerce (“In God we Trust”) or an incidental part of a familiar recital (“God save the United States and this honorable Court”). Thankfully, the plurality does not attempt to minimize the religious significance of the Ten Commandments. Ante, at 2863 (“Of course, the Ten Commandments are religious-they were so viewed at their inception and so remain”); ante, at 2864-2865 (THOMAS, J., concurring); see also *717 McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S., at 909, 125 S.Ct., at 2758, 2005 WL 1498988 (SCALIA, J., dissenting). Attempts to secularize what is unquestionably a sacred text defy credibility and disserve people of faith.

FN14. In County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), I noted that certain displays of religious images may convey “an equivocal message, perhaps of respect for Judaism, for religion in general, or for law.” Id., at 652, 109 S.Ct. 3086 (opinion concurring in part and dissenting in part). It is rather misleading, however, to quote my comment in that case to imply that I was referring to the text of the Ten Commandments simpliciter. See McCreary County, ante, 545 U.S., at 904, 125 S.Ct., at 2754-2755, 2005 WL 1498988.

The profoundly sacred message embodied by the text inscribed on the Texas monument is emphasized by the especially large letters that identify its author: “I AM the LORD thy God.” See Appendix, infra. It commands present worship of Him and no other deity. It directs us to be guided by His teaching in the current and future conduct of all of our affairs. It instructs us to follow a code of divine law, some of which has informed and been integrated into our secular legal code (“Thou shalt not kill”), but much of which has not (“Thou shalt not make to thyself any graven images .... Thou shalt not covet”).

Moreover, despite the Eagles' best efforts to choose a benign nondenominational text,FN15 the Ten Commandments display **2880 projects not just a religious, but an inherently sectarian, message. There are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious*718 significance.FN16 See Lubet, The Ten Commandments in Alabama, 15 Constitutional Commentary 471, 474-476 (Fall 1998). In choosing to display this version of the Commandments, Texas tells the observer that the State supports this side of the doctrinal religious debate. The reasonable observer, after all, has no way of knowing that this text was the product of a compromise, or that there is a rationale of any kind for the text's selection. FN17

FN15. See ante, at 2869-2870 (BREYER, J., concurring in judgment). Despite the Eagles' efforts, not all of the monuments they donated in fact conform to a “universally-accepted” text. Compare, e.g., Appendix, infra (including the command that “Thou shalt not make to thyself any graven images”), and Adland v. Russ, 307 F.3d 471, 475 (C.A.6 2002) (same), with Freedom From Religion Foundation, 898 P.2d, at 1016 (omitting that command altogether). The distinction represents a critical divide between the Protestant and Catholic faiths. During the Reformation, Protestants destroyed images of the Virgin Mary and of Jesus Christ that were venerated in Catholic churches. Even today there is a notable difference between the imagery in different churches, a difference that may in part be attributable to differing understandings of the meaning of what is the Second Commandment in the King James Bible translation and a portion of the First Commandment in the Catholic translation. See Finkelman, The Ten Commandments on the Courthouse Lawn and Elsewhere, 73 Ford. L.Rev. 1477, 1493-1494 (2005) (hereinafter Finkelman).

FN16. For example, in the Jewish version of the Sixth Commandment God commands: “You shall not murder”; whereas, the King James interpretation of the same command is: “Thou shalt not kill.” Compare W. Plaut, The Torah: A Modern Commentary 534 (1981), with Appendix, infra. The difference between the two versions is not merely semantic; rather, it is but one example of a deep theological dispute. See Finkelman 1481-1500; Maier, Enumerating the Decalogue: Do We Number the Ten Commandments Correctly? 16 Concordia J. 18, 18-26 (1990). Varying interpretations of this Commandment explain the actions of vegetarians who refuse to eat meat, pacifists who refuse to work for munitions makers, prison officials who refuse to administer lethal injections to death row inmates, and pharmacists who refuse to sell morning-after pills to women. See Finkelman 1494-1496; Brief for American Jewish Congress et al. as Amici Curiae 22-23. Although the command is ambiguous, its power to motivate like-minded interpreters of its message cannot be denied.

FN17. Justice SCALIA's willingness to dismiss the distinct textual versions adhered to by different faiths in the name of generic “monotheism” based on mere speculation regarding their significance, McCreary County, ante, 545 U.S., at 909, 125 S.Ct., at 2758, 2005 WL 1498988, is not only somewhat ironic, see A. Scalia, A Matter of Interpretation 23-25 (1997), but also serves to reinforce the concern that interjecting government into the religious sphere will offend “adherents who consider the particular advertisement disrespectful,” Allegheny County, 492 U.S., at 651, 109 S.Ct. 3086 (STEVENS, J., concurring in part and dissenting in part).

The Establishment Clause, if nothing else, prohibits government from “specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ.” Lee v. Weisman, 505 U.S. 577, 641, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (SCALIA, J., dissenting). Given that the chosen text inscribed on the Ten Commandments monument invariably places the State at the center of a serious *719 sectarian dispute, the display is unquestionably unconstitutional under our case law. See Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another”).

Even if, however, the message of the monument, despite the inscribed text, fairly could be said to represent the belief system of all Judeo-Christians, it would still run afoul of the Establishment Clause **2881 by prescribing a compelled code of conduct from one God, namely a Judeo-Christian God, that is rejected by prominent polytheistic sects, such as Hinduism, as well as nontheistic religions, such as Buddhism.FN18 See, e.g., Allegheny County, 492 U.S., at 615, 109 S.Ct. 3086 (opinion of Blackmun, J.) (“The simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm than the endorsement of Christianity alone”). And, at the very least, the text of the Ten Commandments impermissibly commands a preference for religion over irreligion. See, e.g., id., at 590, 109 S.Ct. 3086 (The Establishment Clause “guarantee[s] religious liberty and equality to ‘the infidel, the atheist, or the adherent *720 of a non-Christian faith such as Islam or Judaism’ ” (quoting Wallace, 472 U.S., at 52, 105 S.Ct. 2479)). Any of those bases, in my judgment, would be sufficient to conclude that the message should not be proclaimed by the State of Texas on a permanent monument at the seat of its government.

FN18. See Brief for Hindu American Foundation et al. as Amici Curiae. Though Justice SCALIA disagrees that these sentiments are consistent with the Establishment Clause, he does not deny that our cases wholeheartedly adopt this expression of neutrality. Instead, he suggests that this Court simply discard what he terms the “say-so of earlier Courts,” based in part on his own “say-so” that nonmonotheists make up a statistically insignificant portion of this Nation's religious community. McCreary County, ante, 545 U.S., at 889, 125 S.Ct., at 2730, 2005 WL 1498988. Besides marginalizing the belief systems of more than 7 million Americans by deeming them unworthy of the special protections he offers monotheists under the Establishment Clause, Justice SCALIA's measure of analysis may be cause for concern even for the self-proclaimed “popular” religions of Islam and Judaism. The number of Buddhists alone is nearly equal to the number of Muslims in this country, and while those of the Islamic and Jewish faiths only account for 2.2% of all believers, Christianity accounts for 95.5%. See U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2004-2005, p. 55 (124th ed. 2004) (Table No. 67).

I do not doubt that some Texans, including those elected to the Texas Legislature, may believe that the statues displayed on the Texas Capitol grounds, including the Ten Commandments monument, reflect the “ideals ... that compose Texan identity.” Tex. H. Con. Res. 38, 77th Leg., Reg.Sess. (2001). But Texas, like our entire country, is now a much more diversified community than it was when it became a part of the United States or even when the monument was erected. Today there are many Texans who do not believe in the God whose Commandments are displayed at their seat of government. Many of them worship a different god or no god at all. Some may believe that the account of the creation in the Book of Genesis is less reliable than the views of men like Darwin and Einstein. The monument is no more an expression of the views of every true Texan than was the “Live Free or Die” motto that the State of New Hampshire placed on its license plates in 1969 an accurate expression of the views of every citizen of New Hampshire. See Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977).

Recognizing the diversity of religious and secular beliefs held by Texans and by all Americans, it seems beyond peradventure that allowing the seat of government to serve as a stage for the propagation of an unmistakably Judeo-Christian message of piety would have the tendency to make nonmonotheists and nonbelievers “feel like [outsiders] in matters of faith, and [strangers] in the political community.” Pinette, 515 U.S., at 799, 115 S.Ct. 2440 (STEVENS, J., dissenting). “[D]isplays of this kind inevitably have a greater tendency to emphasize sincere and deeply felt differences among individuals than to achieve an ecumenical goal.” *721 Allegheny County, 492 U.S., at 651, 109 S.Ct. 3086 (STEVENS, **2882 J., concurring in part and dissenting in part).FN19

FN19. The fact that this particular display has stood unchallenged for over 40 years does not suggest otherwise. One need look no further than the deluge of cases flooding lower courts to realize the discord these displays have engendered. See, e.g., Mercier v. Fraternal Order of Eagles, 395 F.3d 693 (C.A.7 2005); ACLU Nebraska Foundation v. Plattsmouth, 358 F.3d 1020 (C.A.8 2004); Adland v. Russ, 307 F.3d 471 (C.A.6 2002); Summum v. Ogden, 297 F.3d 995 (C.A.10 2002); Books v. Elkhart, 235 F.3d 292 (C.A.7 2000); State v. Freedom From Religion Foundation, Inc., 898 P.2d 1013 (Colo.1995); Anderson v. Salt Lake City Corp., 475 F.2d 29 (C.A.10 1973).

Even more than the display of a religious symbol on government property, see Pinette, 515 U.S., at 797, 115 S.Ct. 2440 (STEVENS, J., dissenting); Allegheny County, 492 U.S., at 650-651, 109 S.Ct. 3086 (STEVENS, J., concurring in part and dissenting in part), displaying this sectarian text at the state capitol should invoke a powerful presumption of invalidity. As Justice SOUTER's opinion persuasively demonstrates, the physical setting in which the Texas monument is displayed-far from rebutting that presumption-actually enhances the religious content of its message. See post, at 2895 (dissenting opinion). The monument's permanent fixture at the seat of Texas government is of immense significance. The fact that a monument:

“is installed on public property implies official recognition and reinforcement of its message. That implication is especially strong when the sign stands in front of the seat of the government itself. The ‘reasonable observer’ of any symbol placed unattended in front of any capitol in the world will normally assume that the sovereign-which is not only the owner of that parcel of real estate but also the lawgiver for the surrounding territory-has sponsored and facilitated its message.” Pinette, 515 U.S., at 801-802, 115 S.Ct. 2440 (STEVENS, J., dissenting).

Critical examination of the Decalogue's prominent display at the seat of Texas government, rather than generic citation *722 to the role of religion in American life, unmistakably reveals on which side of the “slippery slope,” ante, at 2871 (BREYER, J., concurring in judgment), this display must fall. God, as the author of its message, the Eagles, as the donor of the monument, and the State of Texas, as its proud owner, speak with one voice for a common purpose-to encourage Texans to abide by the divine code of a “Judeo-Christian” God. If this message is permissible, then the shining principle of neutrality to which we have long adhered is nothing more than mere shadow.

III

The plurality relies heavily on the fact that our Republic was founded, and has been governed since its nascence, by leaders who spoke then (and speak still) in plainly religious rhetoric. THE CHIEF JUSTICE cites, for instance, George Washington's 1789 Thanksgiving Proclamation in support of the proposition that the Establishment Clause does not proscribe official recognition of God's role in our Nation's heritage, ante, at 2861. FN20 Further, the plurality emphatically endorses**2883 the seemingly timeless recognition that our “institutions presuppose a Supreme Being,” ante, at 2859. Many of the submissions made to this Court by the parties and amici, in accord with the plurality's opinion, have relied on the ubiquity of references to God throughout our history.

FN20. This is, of course, a rhetorical approach not unique to the plurality's opinion today. Appeals to such religious speeches have frequently been used in support of governmental transmission of religious messages. See, e.g., Wallace, 472 U.S., at 98-104, 105 S.Ct. 2479 (REHNQUIST, J., dissenting); Lee v. Weisman, 505 U.S. 577, 633-636, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (SCALIA, J., dissenting); Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 318, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (REHNQUIST, C. J., dissenting); cf. Lynch v. Donnelly, 465 U.S. 668, 675-676, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984).

The speeches and rhetoric characteristic of the founding era, however, do not answer the question before us. I have already explained why Texas' display of the full text of the Ten Commandments, given the content of the actual display *723 and the context in which it is situated, sets this case apart from the countless examples of benign government recognitions of religion. But there is another crucial difference. Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.FN21 The permanent placement of a textual religious display on state property is different in kind; it amalgamates otherwise discordant individual views into a collective statement of government approval. Moreover, the message never ceases to transmit itself to objecting viewers whose only choices are to accept the message or to ignore the offense by averting their gaze. Cf. Allegheny County, 492 U.S., at 664, 109 S.Ct. 3086 (KENNEDY, J., concurring in judgment in part and dissenting in part); ante, at 2866 (THOMAS, J., concurring). In this sense, although Thanksgiving Day proclamations and inaugural speeches undoubtedly seem official, in most circumstances they will not constitute the sort of governmental endorsement of religion at which the separation of church and state is aimed.FN22

FN21. It goes without saying that the analysis differs when a listener is coerced into listening to a prayer. See, e.g., Santa Fe Independent School Dist., 530 U.S., at 308-312, 120 S.Ct. 2266.

FN22. With respect to the “legislative prayers” cited approvingly by THE CHIEF JUSTICE, ante, at 2861-2862, I reiterate my view that “the designation of a member of one religious faith to serve as the sole official chaplain of a state legislature for a period of 16 years constitutes the preference of one faith over another in violation of the Establishment Clause.” Marsh v. Chambers, 463 U.S. 783, 823, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (STEVENS, J., dissenting). Thus, Justice Scalia and I are in agreement with respect to at least one point-this Court's decision in Marsh “ignor[ed] the neutrality principle” at the heart of the Establishment Clause. McCreary County, ante, 545 U.S., at 892, 125 S.Ct., at 2751-2752, 2005 WL 1498988 (SCALIA, J., dissenting).

*724 The plurality's reliance on early religious statements and proclamations made by the Founders is also problematic because those views were not espoused at the Constitutional Convention in 1787 FN23 nor enshrined in the Constitution's text. Thus, the presentation of these religious statements as a unified historical narrative is bound to paint a misleading picture. It does so here. In according deference to the statements of George Washington and John Adams, THE CHIEF JUSTICE and Justice SCALIA, see ante, at 2861 (plurality opinion); McCreary County, ante, 545 U.S., at 886, 887-888, 125 S.Ct., at 2749, 2005 WL 1498988 (dissenting opinion), fail **2884 to account for the acts and publicly espoused views of other influential leaders of that time. Notably absent from their historical snapshot is the fact that Thomas Jefferson refused to issue the Thanksgiving proclamations that Washington had so readily embraced based on the argument that to do so would violate the Establishment Clause.FN24 THE CHIEF JUSTICE and Justice SCALIA disregard the substantial debates that took place regarding the constitutionality of the early proclamations and acts they cite, see, e.g., Letter from James Madison to Edward Livingston (July 10, 1822), in 5 Founders' Constitution 105-106 (arguing that Congress' appointment of Chaplains to be paid from the National Treasury was “not with my approbation” and was a “deviation” from the principle of “immunity of Religion from civil *725 jurisdiction”),FN25 and paper over the fact that Madison more than once repudiated the views attributed to him by many, stating unequivocally that with respect to government's involvement with religion, the “ ‘tendency to a usurpation on one side, or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Government from interference, in any way whatever, beyond the necessity of preserving public order, & protecting each sect against trespasses on its legal rights by others.’ ” FN26

FN23. See, e.g., J. Hutson, Religion and the Founding of the American Republic 75 (1998) (noting the dearth of references to God at the Philadelphia Convention and that many contemporaneous observers of the Convention complained that “the Framers had unaccountably turned their backs on the Almighty” because they “ ‘found the Constitution without any acknowledgement of God’ ”).

FN24. See Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808), in 5 Founders' Constitution 98 (P. Kurland & R. Lerner eds.1987) (hereinafter Founders' Constitution); 11 Jefferson's Writings 428-430 (1905); see also Lee, 505 U.S., at 623-625, 112 S.Ct. 2649 (SOUTER, J., concurring) (documenting history); Lynch, 465 U.S., at 716, n. 23, 104 S.Ct. 1355 (Brennan, J., dissenting) (same).

FN25. See also James Madison, Detached Memoranda, in 5 Founders' Constitution 103-104. Madison's letter to Livingston further argued: “There has been another deviation from the strict principle in the Executive Proclamations of fasts & festivals, so far, at least, as they have spoken the language of injunction, or have lost sight of the equality of all religious sects in the eve of the Constitution .... Notwithstanding the general progress made within the two last centuries in favor of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between [Government] & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded [against] .... Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & [Government] will both exist in greater purity, the less they are mixed together.” Id., at 105-106.

FN26. Religion and Politics in the Early Republic 20-21 (D. Dreisbach ed.1996) (hereinafter Dreisbach) (quoting Letter from James Madison to Jasper Adams (1833)). See also Letter from James Madison to Edward Livingston (July 10, 1822), in 5 Founders' Constitution 106 (“We are teaching the world the great truth that [governments] do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of [government]”).

These seemingly nonconforming sentiments should come as no surprise. Not insignificant numbers of colonists came to this country with memories of religious persecution by *726 monarchs on the other side of the Atlantic. See A. Stokes & L. Pfeffer, Church and State in the United States 3-23 (rev. 1st ed.1964). Others experienced religious intolerance at the hands of colonial Puritans, who regrettably failed to practice the tolerance that some of their contemporaries preached. Engel v. Vitale, 370 U.S. 421, 427-429, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). THE CHIEF JUSTICE and Justice SCALIA ignore the separationist impulses-in accord with the **2885 principle of “neutrality”-that these individuals brought to the debates surrounding the adoption of the Establishment Clause.FN27

FN27. The contrary evidence cited by THE CHIEF JUSTICE and Justice SCALIA only underscores the obvious fact that leaders who have drafted and voted for a text are eminently capable of violating their own rules. The first Congress was-just as the present Congress is-capable of passing unconstitutional legislation. Thus, it is no answer to say that the Founders' separationist impulses were “plainly rejected” simply because the first Congress enacted laws that acknowledged God. See McCreary County, ante, 545 U.S., at 896, 125 S.Ct., at 2754-2755, 2005 WL 1498988 (SCALIA, J., dissenting). To adopt such an interpretive approach would misguidedly give authoritative weight to the fact that the Congress that proposed the Fourteenth Amendment also enacted laws that tolerated segregation, and the fact that 10 years after proposing the First Amendment, Congress enacted the Alien and Sedition Act, which indisputably violated our present understanding of the First Amendment. See n. 34, infra; Lee, 505 U.S., at 626, 112 S.Ct. 2649 (SOUTER, J., concurring).

Ardent separationists aside, there is another critical nuance lost in the plurality's portrayal of history. Simply put, many of the Founders who are often cited as authoritative expositors of the Constitution's original meaning understood the Establishment Clause to stand for a narrower proposition than the plurality, for whatever reason, is willing to accept. Namely, many of the Framers understood the word “religion” in the Establishment Clause to encompass only the various sects of Christianity.

The evidence is compelling. Prior to the Philadelphia Convention, the States had begun to protect “religious freedom” in their various constitutions. Many of those provisions, however, restricted “equal protection” and “free exercise”*727 to Christians, and invocations of the divine were commonly understood to refer to Christ.FN28 That historical background likely informed the Framers' understanding of the First Amendment. Accordingly, one influential thinker wrote of the First Amendment that “ ‘[t]he meaning of the term “establishment” in this amendment unquestionably is, the preference and establishment given by law to one sect of Christians over every other.’ ” Jasper Adams, The Relation of Christianity to Civil Government in the United States (Feb. 13, 1833) (quoted in Dreisbach 16). That definition tracked the understanding of the text Justice Story adopted in his famous Commentaries, in which he wrote that the “real object” of the Clause was

FN28. See, e.g., Strang, The Meaning of “Religion” in the First Amendment, 40 Duquesne L.Rev. 181, 220-223 (2002).

“not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus sought to cut off the means of religious persecution, (the vice and pest of former ages,) and the power of subverting the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age.” J. Story, Commentaries on the Constitution of the United States § 991, p. 701 (R. Rotunda & J. Nowak eds.1987) (hereinafter Story); see also Wallace, 472 U.S., at 52-55, and n. 36, 105 S.Ct. 2479.FN29

FN29. Justice Story wrote elsewhere that “ ‘Christianity is indispensable to the true interests & solid foundations of all free governments. I distinguish ... between the establishment of a particular sect, as the Religion of the State, & the Establishment of Christianity itself, without any preference of any particular form of it. I know not, indeed, how any deep sense of moral obligation or accountableness can be expected to prevail in the community without a firm persuasion of the great Christian Truths.’ ” Letter to Jasper Adams (May 14, 1833) (quoted in Dreisbach 19).

**2886 *728 Along these lines, for nearly a century after the founding, many accepted the idea that America was not just a religious Nation, but “a Christian nation.” Church of Holy Trinity v. United States, 143 U.S. 457, 471, 12 S.Ct. 511, 36 L.Ed. 226 (1892).FN30

FN30. See 143 U.S., at 471, 12 S.Ct. 511 (“ ‘[W]e are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of ... imposters' ” (quoting People v. Ruggles, 8 Johns. 290, 295 (N.Y.1811))); see also Vidal v. Philadelphia, 2 How. 127, 198-199, 11 L.Ed. 205 (1844). These views should not be read as those of religious zealots. Chief Justice Marshall himself penned the historical genesis of the Court's assertion that our “institutions presuppose a Supreme Being,” see Zorach, 343 U.S., at 313, 72 S.Ct. 679, writing that the “ ‘American population is entirely Christian, & with us, Christianity & Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, & did not often refer to it, & exhibit relations with it,’ ” Letter from John Marshall to Jasper Adams (May 9, 1833) (quoted in Dreisbach 18-19). Accord, Story § 988, at 700 (“[A]t the time of the adoption of the constitution, ... the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state ... ”).

The original understanding of the type of “religion” that qualified for constitutional protection under the Establishment Clause likely did not include those followers of Judaism and Islam who are among the preferred “monotheistic” religions Justice SCALIA has embraced in his McCreary County opinion. See ante, at 2753 (dissenting opinion).FN31 *729 The inclusion of Jews and Muslims inside the category of constitutionally favored religions surely would have shocked Chief Justice Marshall and Justice Story. Indeed, Justice SCALIA is unable to point to any persuasive historical evidence or entrenched traditions in support of his decision to give specially preferred constitutional status to all monotheistic religions. Perhaps this is because the history of the Establishment Clause's original meaning just as strongly supports a preference for Christianity as it does a preference for monotheism. Generic references to “God” hardly constitute evidence that those who spoke the word meant to be inclusive of all monotheistic believers; nor do such references demonstrate that those who heard the word spoken understood it broadly to include all monotheistic faiths. See supra, at 2885. Justice SCALIA's inclusion of Judaism and Islam is a laudable act of religious tolerance, but it is one that is unmoored from the Constitution's history and text, and moreover one that is patently arbitrary in its inclusion of some, but exclusion of other ( e.g., Buddhism), widely practiced non-Christian religions. See supra,**2887 at 2880-2881, and n. 18 (noting that followers of Buddhism nearly equal the number of Americans who follow Islam). Given the original understanding of the men who championed our “Christian nation”-men who had no cause to view anti-Semitism or contempt for atheists as problems worthy of civic concern-one must ask whether Justice SCALIA “has not had the courage (or the foolhardiness) to apply [his originalism] principle consistently.” McCreary County, ante, 545 U.S., at 890, 125 S.Ct., at 2751, 2005 WL 1498988.

FN31. Justice SCALIA's characterization of this conclusion as nothing more than my own personal “assurance” is misleading to say the least. McCreary County, ante, 545 U.S., at 898, 125 S.Ct., at 2754-2755, 2005 WL 1498988. Reliance on our Nation's early constitutional scholars is common in this Court's opinions. In particular, the author of the plurality once noted that “Joseph Story, a Member of this Court from 1811 to 1845, and during much of that time a professor at the Harvard Law School, published by far the most comprehensive treatise on the United States Constitution that had then appeared.” Wallace, 472 U.S., at 104, 105 S.Ct. 2479 (REHNQUIST, J., dissenting). And numerous opinions of this Court, including two notable opinions authored by Justice SCALIA, have seen it fit to give authoritative weight to Joseph Story's treatise when interpreting other constitutional provisions. See, e.g., United States v. Gaudin, 515 U.S. 506, 510-511, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (Fifth Amendment); Harmelin v. Michigan, 501 U.S. 957, 981-982, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Eighth Amendment).

Indeed, to constrict narrowly the reach of the Establishment Clause to the views of the Founders would lead to more than this unpalatable result; it would also leave us with an unincorporated constitutional provision-in other words, one that limits only the federal establishment of “a national religion.” See *730 Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 45, 50, 51, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (THOMAS, J., concurring in judgment); cf. A. Amar, The Bill of Rights 36-39 (1998). Under this view, not only could a State constitutionally adorn all of its public spaces with crucifixes or passages from the New Testament, it would also have full authority to prescribe the teachings of Martin Luther or Joseph Smith as the official state religion. Only the Federal Government would be prohibited from taking sides (and only then as between Christian sects).

A reading of the First Amendment dependent on either of the purported original meanings expressed above would eviscerate the heart of the Establishment Clause. It would replace Jefferson's “wall of separation” with a perverse wall of exclusion-Christians inside, non-Christians out. It would permit States to construct walls of their own choosing-Baptists inside, Mormons out; Jewish Orthodox inside, Jewish Reform out. A Clause so understood might be faithful to the expectations of some of our Founders, but it is plainly not worthy of a society whose enviable hallmark over the course of two centuries has been the continuing expansion of religious pluralism and tolerance. Cf. Abington, 374 U.S., at 214, 83 S.Ct. 1560; Zelman v. Simmons-Harris, 536 U.S. 639, 720, 723, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (BREYER, J., dissenting).

Unless one is willing to renounce over 65 years of Establishment Clause jurisprudence and cross back over the incorporation bridge, see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), appeals to the religiosity of the Framers ring hollow.FN32 But even if **2888 there were a coherent way to embrace *731 incorporation with one hand while steadfastly abiding by the Founders' purported religious views on the other, the problem of the selective use of history remains. As the widely divergent views espoused by the leaders of our founding era plainly reveal, the historical record of the preincorporation Establishment Clause is too indeterminate to serve as an interpretive North Star.FN33

FN32. Justice SCALIA's answer-that incorporation does not empty “the incorporated provisions of their original meaning,” McCreary County, ante, 545 U.S., at 898, 125 S.Ct., at 2755-2756, 2005 WL 1498988-ignores the fact that the Establishment Clause has its own unique history. There is no evidence, for example, that incorporation of the Confrontation Clause ran contrary to the core of the Clause's original understanding. There is, however, some persuasive evidence to this effect regarding the Establishment Clause. See Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 49, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (THOMAS, J., concurring in judgment) (arguing that the Clause was originally understood to be a “federalism provision” intended to prevent “Congress from interfering with state establishments”). It is this unique history, not incorporation writ large, that renders incoherent the postincorporation reliance on the Establishment Clause's original understanding.

Justice THOMAS, at least, has faced this problem head on. See id., at 45, 124 S.Ct. 2301 (opinion concurring in judgment). But even if the decision to incorporate the Establishment Clause was misguided, it is at this point unwise to reverse course given the weight of precedent that would have to be cast aside to reach the intended result. See B. Cardozo, The Nature of the Judicial Process 149 (1921) (“[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case”).

FN33. See Lee, 505 U.S., at 626, 112 S.Ct. 2649 (SOUTER, J., concurring) (“[A]t best, ... the Framers simply did not share a common understanding of the Establishment Clause,” and at worst, their overtly religious proclamations show “that they ... could raise constitutional ideals one day and turn their backs on them the next”); Lynch, 465 U.S., at 716, 104 S.Ct. 1355, 79 L.Ed.2d 604 (Brennan, J., dissenting) (same); cf. Feldman, Intellectual Origins of the Establishment Clause, 77 N.Y.U.L.Rev. 346, 404-405 (2002) (noting that, for the Framers, “the term ‘establishment’ was a contested one” and that the word “was used in both narrow and expansive ways in the debates of the time”).

It is our duty, therefore, to interpret the First Amendment's command that “Congress shall make no law respecting an establishment of religion” not by merely asking what those words meant to observers at the time of the founding, but instead by deriving from the Clause's text and history the broad principles that remain valid today. As we have said in the context of statutory interpretation, legislation “often [goes] beyond the principal evil [at which the statute was aimed] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principalconcerns *732 of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). In similar fashion, we have construed the Equal Protection Clause of the Fourteenth Amendment to prohibit segregated schools, see Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), even though those who drafted that Amendment evidently thought that separate was not unequal. FN34 We have held that the same Amendment prohibits discrimination against individuals on account of their gender, Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), despite the fact that the contemporaries of the Amendment “doubt[ed] very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision,” Slaughter-House Cases, 16 Wall. 36, 81, 21 L.Ed. 394 (1873). And we have construed “evolving standards of decency” to make impermissible practices that were not considered “cruel and unusual” at the founding. See Roper v. Simmons, 543 U.S. 551, 587, 125 S.Ct. 1183, 1205, 161 L.Ed.2d 1 (2005) (STEVENS, J., concurring).

FN34. See Hovenkamp, The Cultural Crises of the Fuller Court, 104 Yale L.J. 2309, 2337-2342 (1995) (“Equal protection had not been identified with social integration when the Fourteenth Amendment was drafted in 1866, nor when it was ratified in 1868, nor when Plessy [ v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256,] was decided in 1896”); see also 1 L. Tribe, American Constitutional Law § 1-14, pp. 54-55, and n. 19 (3d ed.2000) (collecting scholarship).

To reason from the broad principles contained in the Constitution does not, as Justice SCALIA suggests, require us to abandon our heritage in favor of unprincipled expressions of personal preference. The task of applying the broad principles that the Framers wrote into the text of the First Amendment is, in any event, no more **2889 a matter of personal preference than is one's selection between two (or more) sides in a heated historical debate. We serve our constitutional mandate by expounding the meaning of constitutional provisions with one eye toward our Nation's history and the other fixed on its democratic aspirations. See *733 McCulloch v. Maryland, 4 Wheat. 316, 407, 415, 4 L.Ed. 579 (1819) (“[W]e must never forget, that it is a constitution we are expounding” that is intended to “endure for ages to come, and, consequently, to be adapted to the various crises of human affairs”). Constitutions, after all,

“are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.’ The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas.” Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

The principle that guides my analysis is neutrality.FN35 The basis for that principle is firmly rooted in our Nation's *734 history and our Constitution's text. I recognize that the requirement that government **2890 must remain neutral between religion and irreligion would have seemed foreign to some of the Framers; so too would a requirement of neutrality between Jews and Christians. But cf. Letter from George Washington to the Hebrew Congregation in Newport, R.I. (Aug. 18, 1790), in 6 Papers of George Washington 284, 285 (D. Twohig ed.1996). Fortunately, we are not bound by the Framers' expectations-we are bound by the legal principles they enshrined in our Constitution. Story's vision that States should not discriminate between Christian sects has as its foundation the principle that government must remain neutral between valid systems of belief. As religious pluralism has expanded, so has our acceptance of what constitutes valid belief systems. The evil of discriminating today against atheists, “polytheists[,] and believers in unconcerned deities,” McCreary County, ante, 545 U.S., at 893, 125 S.Ct., at 2753, 2005 WL 1498988 (SCALIA, J., dissenting), is in my view a direct descendent of the evil of discriminating among Christian sects. The Establishment Clause *735 thus forbids it and, in turn, prohibits Texas from displaying the Ten Commandments monument the plurality so casually affirms.

FN35. Justice THOMAS contends that the Establishment Clause cannot include such a neutrality principle because the Clause reaches only the governmental coercion of individual belief or disbelief. Ante, at 2865 (concurring opinion). In my view, although actual religious coercion is undoubtedly forbidden by the Establishment Clause, that cannot be the full extent of the provision's reach. Jefferson's “wall” metaphor and his refusal to issue Thanksgiving proclamations, see supra, at 2884, would have been nonsensical if the Clause reached only direct coercion. Further, under the “coercion” view, the Establishment Clause would amount to little more than a replica of our compelled speech doctrine, see, e.g., West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), with a religious flavor. A Clause so interpreted would not prohibit explicit state endorsements of religious orthodoxies of particular sects, actions that lie at the heart of what the Clause was meant to regulate. The government could, for example, take out television advertisements lauding Catholicism as the only pure religion. Under the reasoning endorsed by Justice THOMAS, those programs would not be coercive because the viewer could simply turn off the television or ignore the ad. See ante, at 2865 (“The mere presence of the monument ... involves no coercion” because the passerby “need not stop to read it or even to look at it”).

Further, the notion that the application of a “coercion” principle would somehow lead to a more consistent jurisprudence is dubious. Enshrining coercion as the Establishment Clause touchstone fails to eliminate the difficult judgment calls regarding “the form that coercion must take.” McCreary County, ante, 545 U.S., at 909, 125 S.Ct., at 2761, 2005 WL 1498988 (SCALIA, J., dissenting). Coercion may seem obvious to some, while appearing nonexistent to others. Compare Santa Fe Independent School Dist., 530 U.S., at 312, 120 S.Ct. 2266, with Lee, 505 U.S., at 642, 112 S.Ct. 2649 (SCALIA, J., dissenting). It may be a legal requirement or an effect that is indirectly inferred from a variety of factors. See, e.g., Engel v. Vitale, 370 U.S. 421, 431, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (“When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain”). In short, “reasonable people could, and no doubt would, argue about whether coercion existed in a particular situation.” Feldman, 77 N.Y.U.L.Rev., at 415.

IV

The Eagles may donate as many monuments as they choose to be displayed in front of Protestant churches, benevolent organizations' meeting places, or on the front lawns of private citizens. The expurgated text of the King James version of the Ten Commandments that they have crafted is unlikely to be accepted by Catholic parishes, Jewish synagogues, or even some Protestant denominations, but the message they seek to convey is surely more compatible with church property than with property that is located on the government side of the metaphorical wall.

The judgment of the Court in this case stands for the proposition that the Constitution permits governmental displays of sacred religious texts. This makes a mockery of the constitutional ideal that government must remain neutral between religion and irreligion. If a State may endorse a particular deity's command to “have no other gods before me,” it is difficult to conceive of any textual display that would run afoul of the Establishment Clause.

The disconnect between this Court's approval of Texas' monument and the constitutional prohibition against preferring religion to irreligion cannot be reduced to the exercise of plotting two adjacent locations on a slippery slope. Cf. ante, at 2871 (BREYER, J., concurring in judgment). Rather, it is the difference between the shelter of a fortress and exposure to “the winds that would blow” if the wall were allowed to crumble. See TVA v. Hill, 437 U.S. 153, 195, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (internal quotation marks omitted). That wall, however imperfect, remains worth preserving.

I respectfully dissent.

[Appendix to opinion of STEVENS, J., follows this page.]

**2891 *736

Justice O'CONNOR, dissenting.

*737 For essentially the reasons given by Justice SOUTER, post, p. 2892 (dissenting opinion), as well as the reasons given in my concurrence in McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S. 881, 125 S.Ct. 2722, 162 L.Ed.2d 729, 2005 WL 1498988 (2005), I respectfully dissent.

**2892 Justice SOUTER, with whom Justice STEVENS and Justice GINSBURG join, dissenting.

Although the First Amendment's Religion Clauses have not been read to mandate absolute governmental neutrality toward religion, cf. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the Establishment Clause requires neutrality as a general rule, e.g., Everson v. Board of Ed. of Ewing, 330 U.S. 1, 18, 67 S.Ct. 504, 91 L.Ed. 711 (1947), and thus expresses Madison's condemnation of “employ[ing] Religion as an engine of Civil policy,” Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 187 (G. Hunt ed.1901). A governmental display of an obviously religious text cannot be squared with neutrality, except in a setting that plausibly indicates that the statement is not placed in view with a predominant purpose on the part of government either to adopt the religious message or to urge its acceptance by others.

Until today, only one of our cases addressed the constitutionality of posting the Ten Commandments, Stone v. Graham, 449 U.S. 39, 41-42, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam). A Kentucky statute required posting the Commandments on the walls of public school classrooms, and the Court described the State's purpose (relevant under the tripartite test laid out in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)) as being at odds with the obligation of religious neutrality.

“The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine*738 themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day.” 449 U.S., at 41-42, 101 S.Ct. 192 (footnote and citations omitted).

What these observations underscore are the simple realities that the Ten Commandments constitute a religious statement, that their message is inherently religious, and that the purpose of singling them out in a display is clearly the same.FN1

FN1. The clarity of the religious manifestation in Stone was unaffected by the State's effort to obscure it: the Kentucky statute that mandated posting the Commandments in classrooms also required the addition to every posting of a notation reading, “[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” 449 U.S., at 39-40, n. 1, 101 S.Ct. 192 (internal quotation marks omitted).

In the present case, the religious purpose was evident on the part of the donating organization. When the Fraternal Order of Eagles, the group that gave the monument to the State of Texas, donated identical monuments to other jurisdictions, it was seeking to impart a religious message. See Adland v. Russ, 307 F.3d 471, 475 (C.A.6 2002) (quoting the Eagles' statement in a letter written to Kentucky when a monument was donated to that Commonwealth: “ ‘Most of today's younger generation either have not seen the Ten Commandments or have not been taught them. In our opinion the youth of today is in dire need of learning the simple laws of God ... ’ ”). Accordingly, it was not just the terms of the moral code, but the proclamation that the terms of the code were enjoined by God, that the Eagles put forward in the monuments they donated.

**2893 Thus, a pedestrian happening upon the monument at issue here needs no training in religious doctrine to realize that the statement of the Commandments, quoting God himself, proclaims that the will of the divine being is the source of obligation to obey the rules, including the facially secular ones. In this case, moreover, the text is presented to give particular prominence to the Commandments' first sectarian *739 reference, “I am the Lord thy God.” That proclamation is centered on the stone and written in slightly larger letters than the subsequent recitation. To ensure that the religious nature of the monument is clear to even the most casual passerby, the word “Lord” appears in all capital letters (as does the word “am”), so that the most eye-catching segment of the quotation is the declaration “I AM the LORD thy God.” App. to Pet. for Cert. 21. What follows, of course, are the rules against other gods, graven images, vain swearing, and Sabbath breaking. And the full text of the fifth Commandment puts forward filial respect as a condition of long life in the land “which the Lord they God giveth thee.” See ibid. These “words ... make [the] religious meaning unmistakably clear.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 598, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989).

To drive the religious point home, and identify the message as religious to any viewer who failed to read the text, the engraved quotation is framed by religious symbols: two tablets with what appears to be ancient script on them, two Stars of David, and the superimposed Greek letters Chi and Rho as the familiar monogram of Christ. Nothing on the monument, in fact, detracts from its religious nature,FN2 see ibid. (“Here, unlike in Lynch [ v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) ], nothing in the context of the display detracts from the crèche's religious message”), and the plurality does not suggest otherwise. It would therefore be difficult to miss the point that the government of Texas FN3 is telling everyone *740 who sees the monument to live up to a moral code because God requires it, with both code and conception of God being rightly understood as the inheritances specifically of Jews and Christians. And it is likewise unsurprising that the District Court expressly rejected Texas's argument that the State's purpose in placing the monument on the Capitol grounds was related to the Commandments' role as “part of the foundation of modern secular law in Texas and elsewhere.” App. to Pet. for Cert. 32.

FN2. That the monument also surrounds the text of the Commandments with various American symbols (notably the U.S. flag and a bald eagle) only underscores the impermissibility of Texas's actions: by juxtaposing these patriotic symbols with the Commandments and other religious signs, the monument sends the message that being American means being religious (and not just being religious but also subscribing to the Commandments, i.e., practicing a monotheistic religion).

FN3. There is no question that the State in its own right is broadcasting the religious message. When Texas accepted the monument from the Eagles, the state legislature, aware that the Eagles “for the past several years have placed across the country ... parchment plaques and granite monoliths of the Ten Commandments [in order] to promote youth morality and to help stop the alarming increase in delinquency,” resolved “that the Fraternal Order of the Eagles of the State of Texas be commended and congratulated for its efforts and contributions in combating juvenile delinquency throughout our nation.” App. 97. The State, then, expressly approved of the Eagles' proselytizing, which it made on its own.

The monument's presentation of the Commandments with religious text emphasized and enhanced stands in contrast to **2894 any number of perfectly constitutional depictions of them, the frieze of our own Courtroom providing a good example, where the figure of Moses stands among history's great lawgivers. While Moses holds the tablets of the Commandments showing some Hebrew text, no one looking at the lines of figures in marble relief is likely to see a religious purpose behind the assemblage or take away a religious message from it. Only one other depiction represents a religious leader, and the historical personages are mixed with symbols of moral and intellectual abstractions like Equity and Authority. See County of Allegheny, supra, at 652, 109 S.Ct. 3086 (STEVENS, J., concurring in part and dissenting in part). Since Moses enjoys no especial prominence on the frieze, viewers can readily take him to be there as a lawgiver in the company of other lawgivers; and the viewers may just as naturally see the tablets of the Commandments (showing the later ones, forbidding things like killing and theft, but without the divine preface) as background from which the concept of law *741 emerged, ultimately having a secular influence in the history of the Nation. Government may, of course, constitutionally call attention to this influence, and may post displays or erect monuments recounting this aspect of our history no less than any other, so long as there is a context and that context is historical. Hence, a display of the Commandments accompanied by an exposition of how they have influenced modern law would most likely be constitutionally unobjectionable.FN4 *742 And the Decalogue could, as Stone suggested, be integrated constitutionally into a course of study in public schools. 449 U.S., at 42, 101 S.Ct. 192.FN5

FN4. For similar reasons, the other displays of the Commandments that the plurality mentions, ante, at 2862-2863, do not run afoul of the Establishment Clause. The statues of Moses and St. Paul in the Main Reading Room of the Library of Congress are 2 of 16 set in close proximity, statues that “represent men illustrious in the various forms of thought and activity ... .” The Library of Congress: The Art and Architecture of the Thomas Jefferson Building 127 (J. Cole and H. Reeds eds.1997). Moses and St. Paul represent religion, while the other 14 (a group that includes Beethoven, Shakespeare, Michelangelo, Columbus, and Plato) represent the nonreligious categories of philosophy, art, history, commerce, science, law, and poetry. Ibid. Similarly, the sculpture of the woman beside the Decalogue in the Main Reading Room is 1 of 8 such figures “represent [ing] eight characteristic features of civilized life and thought,” the same 8 features (7 of them nonreligious) that Moses, St. Paul, and the rest of the 16 statues represent. Id., at 125.

The inlay on the floor of the National Archives Building is one of four such discs, the collective theme of which is not religious. Rather, the discs “symbolize the various types of Government records that were to come into the National Archives.” Letter from Judith A. Koucky, Archivist, Records Control Section, to Catherine Millard (Oct. 1, 2003), . christian heritage mins. org/ articles/ Ten_Command ments/ Letter_ archivist.htm (as visited June 16, 2005, and available in Clerk of Court's case file). (The four categories are war and defense, history, justice, and legislation. Each disc is paired with a winged figure; the disc containing the depiction of the Commandments, a depiction that, notably, omits the Commandments' text, is paired with a figure representing legislation. Ibid.)

As for Moses's “prominen[t] featur[ing] in the Chamber of the United States House of Representatives,” ante, at 2863 (plurality opinion), Moses is actually 1 of 23 portraits encircling the House Chamber, each approximately the same size, having no religious theme. The portraits depict “men noted in history for the part they played in the evolution of what has become American law.” Art in the United States Capitol, House Doc. No. 94-660, p. 282 (1978). More importantly for purposes of this case, each portrait consists only of the subject's face; the Ten Commandments appear nowhere in Moses's portrait.

FN5. Similarly permissible, though obviously of a different character, are laws that can be traced back to the Commandments (even the more religious ones) but are currently supported by nonreligious considerations. See McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S., at 861, 125 S.Ct., at 2732, 2005 WL 1498988 (opinion of the Court) (noting that in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), the Court “upheld Sunday closing statutes on practical, secular grounds after finding that the government had forsaken the religious purposes behind centuries-old predecessor laws”).

**2895 Texas seeks to take advantage of the recognition that visual symbol and written text can manifest a secular purpose in secular company, when it argues that its monument (like Moses in the frieze) is not alone and ought to be viewed as only 1 among 17 placed on the 22 acres surrounding the State Capitol. Texas, indeed, says that the Capitol grounds are like a museum for a collection of exhibits, the kind of setting that several Members of the Court have said can render the exhibition of religious artifacts permissible, even though in other circumstances their display would be seen as meant to convey a religious message forbidden to the State. County of Allegheny, 492 U.S., at 595, 109 S.Ct. 3086 (opinion of Blackmun, J., joined by STEVENS, J.); Lynch v. Donnelly, 465 U.S. 668, 692, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'CONNOR, J., concurring). So, for example, the Government of the United States does not violate the Establishment Clause by hanging Giotto's Madonna on the wall of the National Gallery.

But 17 monuments with no common appearance, history, or esthetic role scattered over 22 acres is not a museum, and anyone strolling around the lawn would surely take each memorial on its own terms without any dawning sense that some purpose held the miscellany together more coherently *743 than fortuity and the edge of the grass. One monument expresses admiration for pioneer women. One pays respect to the fighters of World War II. And one quotes the God of Abraham whose command is the sanction for moral law. The themes are individual grit, patriotic courage, and God as the source of Jewish and Christian morality; there is no common denominator. In like circumstances, we rejected an argument similar to the State's, noting in County of Allegheny that “[t]he presence of Santas or other Christmas decorations elsewhere in the ... [c]ourthouse, and of the nearby gallery forum, fail to negate the [crèche's] endorsement effect.... The record demonstrates ... that the crèche, with its floral frame, was its own display distinct from any other decorations or exhibitions in the building.” 492 U.S., at 598-599, n. 48, 109 S.Ct. 3086.FN6

FN6. It is true that the Commandments monument is unlike the display of the Commandments considered in the other Ten Commandments case we decide today, McCreary County. There the Commandments were posted at the behest of the county in the first instance, whereas the State of Texas received the monument as a gift from the Eagles, which apparently conceived of the donation at the suggestion of a movie producer bent on promoting his commercial film on the Ten Commandments, Books v. Elkhart, 235 F.3d 292, 294-295 (C.A.7 2000), cert. denied, 532 U.S. 1058, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (2001). But this distinction fails to neutralize the apparent expression of governmental intent to promote a religious message: although the nativity scene in County of Allegheny was donated by the Holy Name Society, we concluded that “[n]o viewer could reasonably think that [the scene] occupies [its] location [at the seat of county government] without the support and approval of the government.” 492 U.S., at 599-600, 109 S.Ct. 3086, 106 L.Ed.2d 472.

If the State's museum argument does nothing to blunt the religious message and manifestly religious purpose behind it, neither does the plurality's reliance on generalities culled from cases factually different from this one. E.g., ante, at 2861-2862 (“We have acknowledged, for example, **2896 that ‘religion has been closely identified with our history and government,’ School Dist. of Abington Township v. Schempp, 374 U.S., at 212[, 83 S.Ct. 1560], and that ‘[t]he history of man is inseparable from the *744 history of religion,’ Engel v. Vitale, 370 U.S. 421, 434[, 82 S.Ct. 1261, 8 L.Ed.2d 601] (1962)”). In fact, it is not until the end of its opinion that the plurality turns to the relevant precedent of Stone, a case actually dealing with a display of the Decalogue.

When the plurality finally does confront Stone, it tries to avoid the case's obvious applicability by limiting its holding to the classroom setting. The plurality claims to find authority for limiting Stone's reach this way in the opinion's citations of two school-prayer cases, School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). But Stone relied on those cases for widely applicable notions, not for any concept specific to schools. The opinion quoted Schempp's statements that “it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment,” Schempp, supra, at 225, 83 S.Ct. 1560, quoted in Stone, 449 U.S., at 42, 101 S.Ct. 192; and that “the place of the Bible as an instrument of religion cannot be gainsaid,” Schempp, supra, at 224, 83 S.Ct. 1560, quoted in Stone, supra, at 41, n. 3, 101 S.Ct. 192. And Engel was cited to support the proposition that the State was responsible for displaying the Commandments, even though their framed, printed texts were bought with private subscriptions. Stone, supra, at 42, 101 S.Ct. 192 (“[T]he mere posting of the [Commandments] under the auspices of the legislature provides the official support of the State Government that the Establishment Clause prohibits” (ellipsis and internal quotation marks omitted)). Thus, the schoolroom was beside the point of the citations, and that is presumably why the Stone Court failed to discuss the educational setting, as other opinions had done when school was significant. E.g., Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). Stone did not, for example, speak of children's impressionability or their captivity as an audience in a school class. In fact, Stone's reasoning reached the classroom only in noting the lack of support for the claim that the State had brought the Commandments into schools in order to “integrat[e] [them] into the school curriculum.” 449 U.S., at 42, 101 S.Ct. 192. *745 Accordingly, our numerous prior discussions of Stone have never treated its holding as restricted to the classroom. FN7

FN7. In any event, the fact that we have been, as the plurality says, “ ‘particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,’ ” ante, at 2863-2864, does not of course mean that anything goes outside the schoolhouse. As cases like County of Allegheny and Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), illustrate, we have also closely scrutinized government displays of religious symbols. And for reasons discussed in the text, the Texas monument cannot survive even a relaxed level of scrutiny.

Nor can the plurality deflect Stone by calling the Texas monument “a far more passive use of [the Decalogue] than was the case in Stone, where the text confronted elementary school students every day.” Ante, at 2864. Placing a monument on the ground is not more “passive” than hanging a sheet of paper on a wall when both contain the same text to be read by anyone who looks at it. The problem in Stone was simply that the State was putting the Commandments there to be seen, just as the monument's inscription is there for those who walk by it.

**2897 To be sure, Kentucky's compulsory-education law meant that the schoolchildren were forced to see the display every day, whereas many see the monument by choice, and those who customarily walk the Capitol grounds can presumably avoid it if they choose. But in my judgment (and under our often inexact Establishment Clause jurisprudence, such matters often boil down to judgment, see ante, at 2869 (BREYER, J., concurring in judgment)), this distinction should make no difference. The monument in this case sits on the grounds of the Texas State Capitol. There is something significant in the common term “statehouse” to refer to a state capitol building: it is the civic home of every one of the State's citizens. If neutrality in religion means something, any citizen should be able to visit that civic home without having to confront religious expressions clearly meant to convey an official religious position that may be at odds with his own *746 religion, or with rejection of religion. See County of Allegheny, 492 U.S., at 626, 109 S.Ct. 3086 (O'CONNOR, J., concurring in part and concurring in judgment) (“I agree that the crèche displayed on the Grand Staircase of the Allegheny County Courthouse, the seat of county government, conveys a message to nonadherents of Christianity that they are not full members of the political community .... The display of religious symbols in public areas of core government buildings runs a special risk of making religion relevant, in reality or public perception, to status in the political community” (alteration and internal quotation marks omitted)).

Finally, though this too is a point on which judgment will vary, I do not see a persuasive argument for constitutionality in the plurality's observation that Van Orden's lawsuit comes “[f]orty years after the monument's erection ... ,” ante, at 2858, an observation that echoes the State's contention that one fact cutting in its favor is that “the monument had stood in Austin ... for some forty years without generating any controversy or litigation,” Brief for Respondents 25. It is not that I think the passage of time is necessarily irrelevant in Establishment Clause analysis. We have approved framing-era practices because they must originally have been understood as constitutionally permissible, e.g., Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (legislative prayer), and we have recognized that Sunday laws have grown recognizably secular over time, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). There is also an analogous argument, not yet evaluated, that ritualistic religious expression can become so numbing over time that its initial Establishment Clause violation becomes at some point too diminished for notice. But I do not understand any of these to be the State's argument, which rather seems to be that 40 years without a challenge shows that as a factual matter the religious expression is too tepid to provoke a serious reaction and constitute a violation. Perhaps, but the writer of Exodus chapter 20 was not lukewarm, and other explanations may do better in accounting *747 for the late resort to the courts. Suing a State over religion puts nothing in a plaintiff's pocket and can take a great deal out, and even with volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully deterrent. I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause.

I would reverse the judgment of the Court of Appeals.

Supreme Court of the United States

Robert E. LEE, Individually and as Principal of Nathan Bishop Middle School, et al., Petitioners

v.

Daniel WEISMAN etc.

No. 90-1014.

Argued Nov. 6, 1991.

Decided June 24, 1992.

Public school student and her father brought suit seeking permanent injunction to prevent inclusion of invocations and benedictions in form of prayer in graduation ceremonies of city public schools. The United States District Court for the District of Rhode Island, Francis J. Boyle, Chief Judge, 728 F.Supp. 68, granted relief. Appeal was taken. The Court of Appeals for the First Circuit, 908 F.2d 1090, affirmed. Petition for certiorari was granted. The Supreme Court, Justice Kennedy, held that school could not provide for “nonsectarian” prayer to be given by clergyman selected by school.

Affirmed.

Justice Blackmun concurred and filed opinion with which Justice Stevens and Justice O'Connor joined.

Justice Souter concurred and filed opinion, with which Justice Stevens and Justice O'Connor joined.

Justice Scalia dissented and filed opinion with which Chief Justice Rehnquist, Justice White, and Justice Thomas joined.

Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

*577 Principals of public middle and high schools in Providence, Rhode Island, are permitted to invite members of the clergy to give invocations and benedictions at their schools' graduation ceremonies. Petitioner Lee, a middle school principal, invited a rabbi to offer such prayers at the graduation ceremony for Deborah Weisman's class, gave the rabbi a pamphlet containing guidelines for the composition of public prayers at civic ceremonies, and advised him that the prayers should be nonsectarian. Shortly before the ceremony, the District Court denied the motion of respondent Weisman, Deborah's father, for a temporary restraining order to prohibit school officials from including the prayers in the ceremony. Deborah and her family attended the ceremony, and the prayers were recited. Subsequently, Weisman sought a permanent injunction barring Lee and other petitioners, various Providence public school officials, from inviting clergy to deliver invocations and benedictions at future graduations. It appears likely that such prayers will be conducted at Deborah's high school graduation. The District Court enjoined petitioners from continuing the practice at issue on the ground that it violated the Establishment Clause of the First Amendment. The Court of Appeals affirmed.

Held: Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause. Pp. 2655-2661.

(a) This Court need not revisit the questions of the definition and scope of the principles governing the extent of permitted accommodation by the State for its citizens' religious beliefs and practices, for the controlling precedents as they relate to prayer and religious exercise in primary and secondary**2651 public schools compel the holding here. Thus, the Court will not reconsider its decision in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745. The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause, which guarantees at a minimum that a government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which “establishes a *578 [state] religion or religious faith, or tends to do so.” Lynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355, 1361, 79 L.Ed.2d 604. P. 2655.

(b) State officials here direct the performance of a formal religious exercise at secondary schools' promotional and graduation ceremonies. Lee's decision that prayers should be given and his selection of the religious participant are choices attributable to the State. Moreover, through the pamphlet and his advice that the prayers be nonsectarian, he directed and controlled the prayers' content. That the directions may have been given in a good-faith attempt to make the prayers acceptable to most persons does not resolve the dilemma caused by the school's involvement, since the government may not establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds. Pp. 2655-2657.

(c) The Establishment Clause was inspired by the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. Prayer exercises in elementary and secondary schools carry a particular risk of indirect coercion. Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601; School Dist. Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844. The school district's supervision and control of a high school graduation ceremony places subtle and indirect public and peer pressure on attending students to stand as a group or maintain respectful silence during the invocation and benediction. A reasonable dissenter of high school age could believe that standing or remaining silent signified her own participation in, or approval of, the group exercise, rather than her respect for it. And the State may not place the student dissenter in the dilemma of participating or protesting. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the State may no more use social pressure to enforce orthodoxy than it may use direct means. The embarrassment and intrusion of the religious exercise cannot be refuted by arguing that the prayers are of a de minimis character, since that is an affront to the rabbi and those for whom the prayers have meaning, and since any intrusion was both real and a violation of the objectors' rights. Pp. 2657-2659.

(d) Petitioners' argument that the option of not attending the ceremony excuses any inducement or coercion in the ceremony itself is rejected. In this society, high school graduation is one of life's most significant occasions, and a student is not free to absent herself from the exercise in any real sense of the term “voluntary.” Also not dispositive is the contention that prayers are an essential part of these ceremonies because for many persons the occasion would lack meaning without the recognition that human achievements cannot be understood apart from their spiritual essence. This position fails to acknowledge that what *579 for many was a spiritual imperative was for the Weismans religious conformance compelled by the State. It also gives insufficient recognition to the real conflict of conscience faced by a student who would have to choose whether to miss graduation or conform to the state-sponsored practice, in an environment where the risk of compulsion is especially high. Pp. 2659-2660.

(e) Inherent differences between the public school system and a session of a state legislature distinguish this case from **2652 Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019, which condoned a prayer exercise. The atmosphere at a state legislature's opening, where adults are free to enter and leave with little comment and for any number of reasons, cannot compare with the constraining potential of the one school event most important for the student to attend. Pp. 2660-2661.

908 F.2d 1090 (CA1 1990), affirmed.

KENNEDY, J., delivered the opinion of the Court, in which BLACKMUN, STEVENS, O'CONNOR, and SOUTER, JJ., joined. BLACKMUN, J., post, p. 2661, and SOUTER, J., post, p. 2667, filed concurring opinions, in which STEVENS and O'CONNOR, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE and THOMAS, JJ., joined, post, p. 2678.

----

Charles J. Cooper argued the cause for petitioners. With him on the briefs were Michael A. Carvin, Peter J. Ferrara, Robert J. Cynkar, Joseph A. Rotella and Jay Alan Sekulow.

Solicitor General Starr argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Deputy Assistant Attorney General McGinnis, and Richard H. Seamon.

Sandra A. Blanding argued the cause for respondent. With her on the brief were Steven R. Shapiro and John A. Powell. *

* Briefs of amici curiae urging reversal were filed for the Board of Education of Alpine School District by Brinton R. Burbridge and Merrill F. Nelson; for the Christian Legal Society et al. by Edward McGlynn Gaffney, Michael J. Woodruff, Samuel E. Ericsson, and Forest D. Montgomery; for the Clarendon Foundation by Kemp R. Harshman and Ronald D. Maines; for Concerned Women for America et al. by James Matthew Henderson, Sr., Jordan Lorence, Mark N. Troobnick, and Thomas Patrick Monaghan; for Focus on the Family et al. by Stephen H. Galebach and Laura D. Millman; for the Liberty Counsel by Mathew D. Staver; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; for the National Legal Foundation by Robert K. Skolrood and Brian M. McCormick; for the Rutherford Institute et al. by John W. Whitehead, Alexis I. Crow, A. Eric Johnston, Stephen E. Hurst, Joseph Secola, Thomas S. Newberger, J. Brian Heller, Amy Dougherty, David Melton, Thomas W. Strahan, Robert R. Melnick, William Bonner, Larry Crain, W. Charles Bundren, and James Knicely; for Specialty Research Associates, Inc., et al. by Jordan Lorence; for the Southern Baptist Convention Christian Life Commission by Michael K. Whitehead and James M. Smart, Jr.; and for the United States Catholic Conference by Mark E. Chopko and Phillip H. Harris.

Briefs of amici curiae urging affirmance were filed for American for Religious Liberty by Ronald A. Lindsay; and for the American Jewish Congress et al. by Douglas Laycock.

Briefs of amici curiae were filed for the State of Delaware by Charles M. Oberly III, Attorney General of Delaware, Michael F. Foster, Solicitor General, David S. Swayze, and David B. Ripsom; for the Council on Religious Freedom et al. by Lee Boothby, Robert W. Nixon, Walter E. Carson, and Rolland Truman; for the Institute in Basic Life Principles by Joe Reynolds; for the National Coalition for Public Education and Religious Liberty et al. by David B. Isbell and T. Jeremy Gunn; and for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon.

*580 Justice KENNEDY delivered the opinion of the Court.

School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provisions the Fourteenth Amendment makes applicable with full force to the States and their school districts.

*581 I

A

Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June 1989. She was about 14 years old. For many years it has been the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Many, but not all, of the principals elected to include prayers as part of the graduation ceremonies. Acting for himself and his daughter, Deborah's father, Daniel Weisman, objected to any prayers at Deborah's middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah's class. Rabbi Leslie Gutterman, of the Temple Beth El in Providence, accepted.

It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled “Guidelines for Civic Occasions,” prepared by the National Conference of Christians and Jews. The Guidelines recommend that public prayers at nonsectarian civic ceremonies be composed with “inclusiveness and sensitivity,” though they acknowledge that “[p]rayer of any kind may be inappropriate on some civic occasions.” App. 20-21. The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian. Agreed Statement of Facts ¶ 17, id., at 13.

Rabbi Gutterman's prayers were as follows:

“INVOCATION

“God of the Free, Hope of the Brave:

“For the legacy of America where diversity is celebrated and the rights of minorities are protected, we *582 thank You. May these young men and women grow up to enrich it.

“For the liberty of America, we thank You. May these new graduates grow up to guard it.

“For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust.

**2653 “For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it.

“May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled.

AMEN”

“BENEDICTION

“O God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement.

“Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them.

“The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly.

“We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion.

AMEN”

Id., at 22-23.

*583 The record in this case is sparse in many respects, and we are unfamiliar with any fixed custom or practice at middle school graduations, referred to by the school district as “promotional exercises.” We are not so constrained with reference to high schools, however. High school graduations are such an integral part of American cultural life that we can with confidence describe their customary features, confirmed by aspects of the record and by the parties' representations at oral argument. In the Providence school system, most high school graduation ceremonies are conducted away from the school, while most middle school ceremonies are held on school premises. Classical High School, which Deborah now attends, has conducted its graduation ceremonies on school premises. Agreed Statement of Facts ¶ 37, id., at 17. The parties stipulate that attendance at graduation ceremonies is voluntary. Agreed Statement of Facts ¶ 41, id., at 18. The graduating students enter as a group in a processional, subject to the direction of teachers and school officials, and sit together, apart from their families. We assume the clergy's participation in any high school graduation exercise would be about what it was at Deborah's middle school ceremony. There the students stood for the Pledge of Allegiance and remained standing during the rabbi's prayers. Tr. of Oral Arg. 38. Even on the assumption that there was a respectful moment of silence both before and after the prayers, the rabbi's two presentations must not have extended much beyond a minute each, if that. We do not know whether he remained on stage during the whole ceremony, or whether the students received individual diplomas on stage, or if he helped to congratulate them.

The school board (and the United States, which supports it as amicus curiae ) argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents throughout this country who consider that due respect and acknowledgment for divine guidance and for the deepest spiritual aspirations of *584 our people ought to be expressed at an event as important in life as a graduation. We assume this to be so in addressing the difficult case now before us, for the significance of the prayers lies also at the heart of Daniel and Deborah Weisman's case.

B

Deborah's graduation was held on the premises of Nathan Bishop Middle School on June 29, 1989. Four days before the ceremony, Daniel Weisman, in his individual capacity as a Providence taxpayer and as next friend of Deborah, sought a temporary restraining**2654 order in the United States District Court for the District of Rhode Island to prohibit school officials from including an invocation or benediction in the graduation ceremony. The court denied the motion for lack of adequate time to consider it. Deborah and her family attended the graduation, where the prayers were recited. In July 1989, Daniel Weisman filed an amended complaint seeking a permanent injunction barring petitioners, various officials of the Providence public schools, from inviting the clergy to deliver invocations and benedictions at future graduations. We find it unnecessary to address Daniel Weisman's taxpayer standing, for a live and justiciable controversy is before us. Deborah Weisman is enrolled as a student at Classical High School in Providence and from the record it appears likely, if not certain, that an invocation and benediction will be conducted at her high school graduation. Agreed Statement of Facts ¶ 38, App. 17.

The case was submitted on stipulated facts. The District Court held that petitioners' practice of including invocations and benedictions in public school graduations violated the Establishment Clause of the First Amendment, and it enjoined petitioners from continuing the practice. 728 F.Supp. 68 (1990). The court applied the three-part Establishment Clause test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Under that test as described in our past cases, to satisfy the Establishment Clause a governmental*585 practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion. Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973). The District Court held that petitioners' actions violated the second part of the test, and so did not address either the first or the third. The court decided, based on its reading of our precedents, that the effects test of Lemon is violated whenever government action “creates an identification of the state with a religion, or with religion in general,” 728 F.Supp., at 71, or when “the effect of the governmental action is to endorse one religion over another, or to endorse religion in general.” Id., at 72. The court determined that the practice of including invocations and benedictions, even so-called nonsectarian ones, in public school graduations creates an identification of governmental power with religious practice, endorses religion, and violates the Establishment Clause. In so holding the court expressed the determination not to follow Stein v. Plainwell Community Schools, 822 F.2d 1406 (1987), in which the Court of Appeals for the Sixth Circuit, relying on our decision in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), held that benedictions and invocations at public school graduations are not always unconstitutional. In Marsh we upheld the constitutionality of the Nebraska State Legislature's practice of opening each of its sessions with a prayer offered by a chaplain paid out of public funds. The District Court in this case disagreed with the Sixth Circuit's reasoning because it believed that Marsh was a narrow decision, “limited to the unique situation of legislative prayer,” and did not have any relevance to school prayer cases. 728 F.Supp., at 74.

On appeal, the United States Court of Appeals for the First Circuit affirmed. The majority opinion by Judge Torruella adopted the opinion of the District Court. 908 F.2d 1090 (1990). Judge Bownes joined the majority, but wrote a separate concurring opinion in which he decided that the *586 practices challenged here violated all three parts of the Lemon test. Judge Bownes went on to agree with the District Court that Marsh had no application to school prayer cases and that the Stein decision was flawed. He concluded by suggesting that under Establishment Clause rules no prayer, even one excluding any mention of the Deity, could be offered at a public school graduation ceremony. **2655 908 F.2d, at 1090-1097. Judge Campbell dissented, on the basis of Marsh and Stein. He reasoned that if the prayers delivered were nonsectarian, and if school officials ensured that persons representing a variety of beliefs and ethical systems were invited to present invocations and benedictions, there was no violation of the Establishment Clause. 908 F.2d, at 1099. We granted certiorari, 499 U.S. 918, 111 S.Ct. 1305, 113 L.Ed.2d 240 (1991), and now affirm.

II

These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma.

[1] [pic]This case does not require us to revisit the difficult questions dividing us in recent cases, questions of the definition and full scope of the principles governing the extent of permitted accommodation by the State for the religious beliefs and practices of many of its citizens. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). For without reference to those principles in other contexts, the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an *587 unconstitutional one. We can decide the case without reconsidering the general constitutional framework by which public schools' efforts to accommodate religion are measured. Thus we do not accept the invitation of petitioners and amicus the United States to reconsider our decision in Lemon v. Kurtzman, supra. The government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. Conducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students, and that suffices to determine the question before us.

[2] [pic][3] [pic]The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which “establishes a [state] religion or religious faith, or tends to do so.” Lynch, supra, at 678, 104 S.Ct., at 1361; see also County of Allegheny, supra, 492 U.S., at 591, 109 S.Ct., at 3100, quoting Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15-16, 67 S.Ct. 504, 511-512, 91 L.Ed. 711 (1947). The State's involvement in the school prayers challenged today violates these central principles.

[4] [pic]That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State. The reason for the choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent.

Divisiveness, of course, can attend any state decision respecting religions, and neither its existence nor its potential *588 necessarily invalidates the State's attempts**2656 to accommodate religion in all cases. The potential for divisiveness is of particular relevance here though, because it centers around an overt religious exercise in a secondary school environment where, as we discuss below, see infra, at 2659, subtle coercive pressures exist and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation.

The State's role did not end with the decision to include a prayer and with the choice of a clergyman. Principal Lee provided Rabbi Gutterman with a copy of the “Guidelines for Civic Occasions,” and advised him that his prayers should be nonsectarian. Through these means the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that “it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government,” Engel v. Vitale, 370 U.S. 421, 425, 82 S.Ct. 1261, 1264, 8 L.Ed.2d 601 (1962), and that is what the school officials attempted to do.

Petitioners argue, and we find nothing in the case to refute it, that the directions for the content of the prayers were a good-faith attempt by the school to ensure that the sectarianism which is so often the flashpoint for religious animosity be removed from the graduation ceremony. The concern is understandable, as a prayer which uses ideas or images identified with a particular religion may foster a different sort of sectarian rivalry than an invocation or benediction in terms more neutral. The school's explanation, however, does not resolve the dilemma caused by its participation. The question is not the good faith of the school in attempting to make *589 the prayer acceptable to most persons, but the legitimacy of its undertaking that enterprise at all when the object is to produce a prayer to be used in a formal religious exercise which students, for all practical purposes, are obliged to attend.

We are asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition, prayer which is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint. There may be some support, as an empirical observation, to the statement of the Court of Appeals for the Sixth Circuit, picked up by Judge Campbell's dissent in the Court of Appeals in this case, that there has emerged in this country a civic religion, one which is tolerated when sectarian exercises are not. Stein, 822 F.2d, at 1409; 908 F.2d 1090, 1098-1099 (CA1 1990) (Campbell, J., dissenting) (case below); see also Note, Civil Religion and the Establishment Clause, 95 Yale L.J. 1237 (1986). If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself.

The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference.*590 **2657 James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: “[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.” Memorial and Remonstrance Against Religious Assessments (1785), in 8 Papers of James Madison 301 (W. Rachal, R. Rutland, B. Ripel, & F. Teute eds. 1973).

These concerns have particular application in the case of school officials, whose effort to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject. Though the efforts of the school officials in this case to find common ground appear to have been a good-faith attempt to recognize the common aspects of religions and not the divisive ones, our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students. Engel v. Vitale, supra, 370 U.S., at 425, 82 S.Ct., at 1264. And these same precedents caution us to measure the idea of a civic religion against the central meaning of the Religion Clauses of the First Amendment, which is that all creeds must be tolerated and none favored. The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted.

The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position. We turn our attention now to consider the position of the students, both those who desired the prayer and she who did not.

[5] [pic]To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse towards the end of a tolerant citizenry. And tolerance*591 presupposes some mutuality of obligation. It is argued that our constitutional vision of a free society requires confidence in our own ability to accept or reject ideas of which we do not approve, and that prayer at a high school graduation does nothing more than offer a choice. By the time they are seniors, high school students no doubt have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these. Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief, formal prayer ceremony that the school offers in return. This argument cannot prevail, however. It overlooks a fundamental dynamic of the Constitution.

The First Amendment protects speech and religion by quite different mechanisms. Speech is protected by ensuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own. Meese v. Keene, 481 U.S. 465, 480-481, 107 S.Ct. 1862, 1870-1871, 95 L.Ed.2d 415 (1987); see also Keller v. State Bar of California, 496 U.S. 1, 10-11, 110 S.Ct. 2228, 2234-2235, 110 L.Ed.2d 1 (1990); Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all. The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions. **2658 Buckley v. Valeo, 424 U.S. 1, 92-93, and n. 127, 96 S.Ct. 612, 669-670, and n. 127, 46 L.Ed.2d 659 (1976) ( per curiam ). The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in *592 the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.

The lessons of the First Amendment are as urgent in the modern world as in the 18th century when it was written. One timeless lesson is that if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. To compromise that principle today would be to deny our own tradition and forfeit our standing to urge others to secure the protections of that tradition for themselves.

[6] [pic]As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. See, e.g., School Dist. of Abington v. Schempp, 374 U.S. 203, 307, 83 S.Ct. 1560, 1616, 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring); Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 2578, 96 L.Ed.2d 510 (1987); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 261-262, 110 S.Ct. 2356, 2377-2378, 110 L.Ed.2d 191 (1990) (KENNEDY, J., concurring). Our decisions in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), and School Dist. of Abington, supra, recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S., at 661, 109 S.Ct., at 3137 (KENNEDY, J., concurring in judgment in part and dissenting in part). What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

*593 We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district's supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi's prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.

Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State **2659 may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention. Brittain, Adolescent Choices and Parent-Peer Cross-Pressures, *594 28 Am.Sociological Rev. 385 (June 1963); Clasen & Brown, The Multidimensionality of Peer Pressure in Adolescence, 14 J. of Youth and Adolescence 451 (Dec.1985); Brown, Clasen, & Eicher, Perceptions of Peer Pressure, Peer Conformity Dispositions, and Self-Reported Behavior Among Adolescents, 22 Developmental Psychology 521 (July 1986). To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means.

The injury caused by the government's action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and the intrusion of the religious exercise cannot be refuted by arguing that these prayers, and similar ones to be said in the future, are of a de minimis character. To do so would be an affront to the rabbi who offered them and to all those for whom the prayers were an essential and profound recognition of divine authority. And for the same reason, we think that the intrusion is greater than the two minutes or so of time consumed for prayers like these. Assuming, as we must, that the prayers were offensive to the student and the parent who now object, the intrusion was both real and, in the context of a secondary school, a violation of the objectors' rights. That the intrusion was in the course of promulgating religion that sought to be civic or nonsectarian rather than pertaining to one sect does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront. See supra, at 2658.

[7] [pic]There was a stipulation in the District Court that attendance at graduation and promotional ceremonies is voluntary. Agreed Statement of Facts ¶ 41, App. 18. Petitioners and *595 the United States, as amicus, made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school graduation is one of life's most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term “voluntary,” for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts.

The importance of the event is the point the school district and the United States rely upon to argue that a formal prayer ought to be permitted, but it becomes one of the principal reasons why their argument must fail. Their contention, one of considerable **2660 force were it not for the constitutional constraints applied to state action, is that the prayers are an essential part of these ceremonies because for many persons an occasion of this significance lacks meaning if there is no recognition, however brief, that human achievements cannot be understood apart from their spiritual essence. We think the Government's position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of *596 Deborah's classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformance compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands.

The Government's argument gives insufficient recognition to the real conflict of conscience faced by the young student. The essence of the Government's position is that with regard to a civic, social occasion of this importance it is the objector, not the majority, who must take unilateral and private action to avoid compromising religious scruples, hereby electing to miss the graduation exercise. This turns conventional First Amendment analysis on its head. It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk compelling conformity in an environment analogous to the classroom setting, where we have said the risk of compulsion is especially high. See supra, at 2658-2659. Just as in Engel v. Vitale, 370 U.S., at 430, 82 S.Ct., at 1266, and School Dist. of Abington v. Schempp, 374 U.S., at 224-225, 83 S.Ct., at 1572-1573, where we found that provisions within the challenged legislation permitting a student to be voluntarily excused from attendance or participation in the daily prayers did not shield those practices from invalidation, the fact that attendance at the graduation ceremonies is voluntary in a legal sense does not save the religious exercise.

Inherent differences between the public school system and a session of a state legislature distinguish this case from Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The considerations*597 we have raised in objection to the invocation and benediction are in many respects similar to the arguments we considered in Marsh. But there are also obvious differences. The atmosphere at the opening of a session of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the constraining potential of the one school event most important for the student to attend. The influence and force of a formal exercise in a school graduation are far greater than the prayer exercise we condoned in Marsh. The Marsh majority in fact gave specific recognition to this distinction and placed particular reliance on it in upholding the prayers at issue there. 463 U.S., at 792, 103 S.Ct., at 3336. Today's case is different. At a high school graduation, teachers and principals must and do retain a high degree of control over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the students. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). In this atmosphere the state-imposed character of an invocation and benediction by clergy selected by the school combine to make the prayer a state-sanctioned religious exercise in which the student was left with no alternative but to submit. This is different from Marsh and suffices to make the religious exercise a First Amendment violation. Our Establishment Clause **2661 jurisprudence remains a delicate and fact-sensitive one, and we cannot accept the parallel relied upon by petitioners and the United States between the facts of Marsh and the case now before us. Our decisions in Engel v. Vitale, supra, and School Dist. of Abington v. Schempp, supra, require us to distinguish the public school context.

We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure *598 social isolation or even anger may be the price of conscience or nonconformity. But, by any reading of our cases, the conformity required of the student in this case was too high an exaction to withstand the test of the Establishment Clause. The prayer exercises in this case are especially improper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid.

Our jurisprudence in this area is of necessity one of line-drawing, of determining at what point a dissenter's rights of religious freedom are infringed by the State.

“The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.” School Dist. of Abington v. Schempp, supra, 374 U.S., at 308, 83 S.Ct., at 1616 (Goldberg, J., concurring).

Our society would be less than true to its heritage if it lacked abiding concern for the values of its young people, and we acknowledge the profound belief of adherents to many faiths that there must be a place in the student's life for precepts of a morality higher even than the law we today enforce. We express no hostility to those aspirations, nor would our oath permit us to do so. A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution. See School Dist. of Abington, supra, at 306, 83 S.Ct., at 1615 (Goldberg, J., concurring). We recognize that, at graduation time and throughout the course of the educational process, there will *599 be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students. See Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). But these matters, often questions of accommodation of religion, are not before us. The sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment.

For the reasons we have stated, the judgment of the Court of Appeals is

Affirmed.

Justice BLACKMUN, with whom Justice STEVENS and Justice O'CONNOR join, concurring.

Nearly half a century of review and refinement of Establishment Clause jurisprudence has distilled one clear understanding: Government may neither promote nor affiliate itself with any religious doctrine or organization, nor may it obtrude itself in the internal **2662 affairs of any religious institution. The application of these principles to the present case mandates the decision reached today by the Court.

I

This Court first reviewed a challenge to state law under the Establishment Clause in Everson v. Board of Ed. of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947).FN1 Relying on the history of the *600 Clause, and the Court's prior analysis, Justice Black outlined the considerations that have become the touchstone of Establishment Clause jurisprudence: Neither a State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither a State nor the Federal Government, openly or secretly, can participate in the affairs of any religious organization and vice versa.FN2 “In the words of Jefferson, the clause *601 against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’ ” Everson, 330 U.S., at 16, 67 S.Ct., at 511 (quoting Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244 (1879)). The dissenters agreed: “The Amendment's purpose ... was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.” 330 U.S., at 31-32, 67 S.Ct., at 519-520 (Rutledge, J., dissenting, joined by Frankfurter, Jackson, and Burton, JJ.).

FN1. A few earlier cases involving federal laws touched on interpretation of the Establishment Clause. In Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879), and Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890), the Court considered the Clause in the context of federal laws prohibiting bigamy. The Court in Reynolds accepted Thomas Jefferson's letter to the Danbury Baptist Association “almost as an authoritative declaration of the scope and effect” of the First Amendment. 98 U.S., at 164. In that letter Jefferson penned his famous lines that the Establishment Clause built “a wall of separation between church and State.” Ibid. Davis considered that “[t]he first amendment to the Constitution ... was intended ... to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect.” 133 U.S., at 342, 10 S.Ct., at 300. In another case, Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899), the Court held that it did not violate the Establishment Clause for Congress to construct a hospital building for caring for poor patients, although the hospital was managed by sisters of the Roman Catholic Church. The Court reasoned: “That the influence of any particular church may be powerful over the members of a non-sectarian and secular corporation, incorporated for a certain defined purpose and with clearly stated powers, is surely not sufficient to convert such a corporation into a religious or sectarian body.” Id., at 298, 20 S.Ct., at 124. Finally, in 1908 the Court held that “the spirit of the Constitution” did not prohibit the Indians from using their money, held by the United States Government, for religious education. See Quick Bear v. Leupp, 210 U.S. 50, 81, 28 S.Ct. 690, 700, 52 L.Ed. 954.

FN2. The Court articulated six examples of paradigmatic practices that the Establishment Clause prohibits: “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. ” Everson v. Board of Ed. of Ewing, 330 U.S., at 15, 67 S.Ct., at 511-512.

In Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), the Court considered for the first time the constitutionality of prayer in a public school. Students said aloud a short prayer selected by the State Board of Regents: “ ‘Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.’ ” Id., at 422, 82 S.Ct., at 1262. Justice Black, writing for the Court, again made clear that the First Amendment forbids the use of the power or prestige of the government to control, support, or influence the religious beliefs and **2663 practices of the American people. Although the prayer was “denominationally neutral” and “its observance on the part of the students [was] voluntary,” id., at 430, 82 S.Ct., at 1266, the Court found that it violated this essential precept of the Establishment Clause.

A year later, the Court again invalidated government-sponsored prayer in public schools in School Dist. of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). In Schempp, the school day for Baltimore, Maryland, and Abington Township, Pennsylvania, students began with a reading from the Bible, or a recitation of the Lord's Prayer, or both. After a thorough review of the Court's prior Establishment Clause cases, the Court concluded:

*602 “[T]he Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.” Id., at 222, 83 S.Ct., at 1571.

Because the schools' opening exercises were government-sponsored religious ceremonies, the Court found that the primary effect was the advancement of religion and held, therefore, that the activity violated the Establishment Clause. Id., at 223-224, 83 S.Ct., at 1572-1573.

Five years later, the next time the Court considered whether religious activity in public schools violated the Establishment Clause, it reiterated the principle that government “may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite.” Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). “ ‘If [the purpose or primary effect] is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.’ ” Id., at 107, 89 S.Ct., at 272 (quoting Schempp, 374 U.S., at 222, 83 S.Ct., at 1571). Finding that the Arkansas law aided religion by preventing the teaching of evolution, the Court invalidated it.

In 1971, Chief Justice Burger reviewed the Court's past decisions and found: “Three ... tests may be gleaned from our cases.” Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111. In order for a statute to survive an Establishment Clause challenge, “[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally the statute must not foster an excessive government entanglement with *603 religion.” Id., at 612-613, 91 S.Ct., at 2111 (internal quotation marks and citations omitted).FN3 After Lemon, the Court continued to rely on these basic principles in resolving Establishment Clause disputes.FN4

FN3. The final prong, excessive entanglement, was a focus of Walz v. Tax Comm'n of New York City, 397 U.S. 664, 674, 90 S.Ct. 1409, 1414, 25 L.Ed.2d 697 (1970), but harkens back to the final example in Everson: “Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. ” Everson, 330 U.S., at 16, 67 S.Ct., at 511. The discussion in Everson reflected the Madisonian concern that secular and religious authorities must not interfere with each other's respective spheres of choice and influence. See generally The Complete Madison 298-312 (S. Padover ed. 1953).

FN4. Since 1971, the Court has decided 31 Establishment Clause cases. In only one instance, the decision of Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), has the Court not rested its decision on the basic principles described in Lemon. For example, in the most recent Establishment Clause case, Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990), the Court applied the three-part Lemon analysis to the Equal Access Act, which made it unlawful for public secondary schools to deny equal access to any student wishing to hold religious meetings. Id., at 248-253, 110 S.Ct., at 2370-2373 (plurality opinion); id., at 262, 110 S.Ct., at 2378 (Marshall, J., concurring in judgment). In no case involving religious activities in public schools has the Court failed to apply vigorously the Lemon factors.

**2664 Application of these principles to the facts of this case is straightforward. There can be “no doubt” that the “invocation of God's blessings” delivered at Nathan Bishop Middle School “is a religious activity.” Engel, 370 U.S., at 424, 82 S.Ct., at 1263. In the words of Engel, the Rabbi's prayer “is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious.” Ibid. The question then is whether the government has “plac[ed] its official stamp of approval” on the prayer. Id., at 429, 82 S.Ct., at 1266. As the Court ably demonstrates, when the government “compose[s] official prayers,” id., at 425, 82 S.Ct., at 1264, selects the member of the clergy to deliver the prayer, has the prayer delivered at a public school event that is planned, supervised and given by school officials, and pressures*604 students to attend and participate in the prayer, there can be no doubt that the government is advancing and promoting religion.FN5 As our prior decisions teach us, it is this that the Constitution prohibits.

FN5. In this case, the religious message it promotes is specifically Judeo-Christian. The phrase in the benediction: “We must each strive to fulfill what you require of us all, to do justly, to love mercy, to walk humbly” obviously was taken from the Book of the Prophet Micah, ch. 6, v. 8.

II

I join the Court's opinion today because I find nothing in it inconsistent with the essential precepts of the Establishment Clause developed in our precedents. The Court holds that the graduation prayer is unconstitutional because the State “in effect required participation in a religious exercise.” Ante, at 2659. Although our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient. Government pressure to participate in a religious activity is an obvious indication that the government is endorsing or promoting religion.

But it is not enough that the government restrain from compelling religious practices: It must not engage in them either. See Schempp, 374 U.S., at 305, 83 S.Ct., at 1615 (Goldberg, J., concurring). The Court repeatedly has recognized that a violation of the Establishment Clause is not predicated on coercion. See, e.g., id., at 223, 83 S.Ct., at 1572; id., at 229, 83 S.Ct., at 1575 (Douglas, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 72, 105 S.Ct. 2479, 2498, 86 L.Ed.2d 29 (1985) (O'CONNOR, J., concurring in judgment) (“The decisions [in Engel and Schempp ] acknowledged the coercion implicit under the statutory schemes, but they expressly turned only on the fact that the government was sponsoring a manifestly religious exercise” (citation omitted)); Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 786, 93 S.Ct. 2955, 2972, 37 L.Ed.2d 948 (1973) ( “[P]roof of coercion ... [is] not a necessary element of any claim under the Establishment Clause”). The Establishment Clause proscribes public schools from “conveying or attempting to convey*605 a message that religion or a particular religious belief is favored or preferred,” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 593, 109 S.Ct. 3086, 3101, 106 L.Ed.2d 472 (1989) (internal quotation marks omitted; emphasis in original), even if the schools do not actually “impos[e] pressure upon a student to participate in a religious activity.” FN6 **2665 Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 261, 110 S.Ct. 2356, 2378, 110 L.Ed.2d 191 (1990) (KENNEDY, J., concurring in part and concurring in judgment).

FN6. As a practical matter, of course, anytime the government endorses a religious belief there will almost always be some pressure to conform. “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” Engel v. Vitale, 370 U.S. 421, 431, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962).

The scope of the Establishment Clause's prohibitions developed in our case law derives from the Clause's purposes. The First Amendment encompasses two distinct guarantees-the government shall make no law respecting an establishment of religion or prohibiting the free exercise thereof-both with the common purpose of securing religious liberty.FN7 Through vigorous enforcement of both Clauses, we “promote and assure the fullest possible scope of religious liberty and tolerance for all and ... nurture the conditions which secure the best hope of attainment of that end.” Schempp, 374 U.S., at 305, 83 S.Ct., at 1615 (Goldberg, J., concurring).

FN7. See, e.g., Everson, 330 U.S., at 40, 67 S.Ct., at 523 (Rutledge, J., dissenting) (“ ‘Establishment’ and ‘free exercise’ were correlative and coextensive ideas, representing only different facets of the single great and fundamental freedom”); School Dist. of Abington v. Schempp, 374 U.S. 203, 227, 83 S.Ct. 1560, 1574, 10 L.Ed.2d 844 (1963) (Douglas, J., concurring); id., at 305, 83 S.Ct., at 1615 (Goldberg, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 50, 105 S.Ct. 2479, 2486, 86 L.Ed.2d 29 (1985).

There is no doubt that attempts to aid religion through government coercion jeopardize freedom of conscience. Even subtle pressure diminishes the right of each individual to choose voluntarily what to believe. Representative Carroll explained during congressional debate over the EstablishmentClause: *606 “[T]he rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand.” 1 Annals of Cong. 757 (1789).

Our decisions have gone beyond prohibiting coercion, however, because the Court has recognized that “the fullest possible scope of religious liberty,” Schempp, 374 U.S., at 305, 83 S.Ct., at 1615 (Goldberg, J., concurring), entails more than freedom from coercion. The Establishment Clause protects religious liberty on a grand scale; it is a social compact that guarantees for generations a democracy and a strong religious community-both essential to safeguarding religious liberty. “Our fathers seem to have been perfectly sincere in their belief that the members of the Church would be more patriotic, and the citizens of the State more religious, by keeping their respective functions entirely separate.” Religious Liberty, in Essays and Speeches of Jeremiah S. Black 53 (C. Black ed. 1885) (Chief Justice of the Commonwealth of Pennsylvania).FN8

FN8. See also Engel, 370 U.S., at 431, 82 S.Ct., at 1267 (The Clause's “first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion”); Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U.S. 203, 212, 68 S.Ct. 461, 465, 92 L.Ed. 649 (1948) (“[T]he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere”).

The mixing of government and religion can be a threat to free government, even if no one is forced to participate. When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs.FN9 A government cannot *607 be premised on the belief that all persons are created equal when it asserts that God prefers some. Only “[a]nguish, hardship and bitter strife” result “when zealous religious groups struggl[e] with one another to obtain the Government's stamp of approval.” Engel, 370 U.S., at 429, 82 S.Ct., at 1266; see also Lemon, 403 U.S., at 622-623, 91 S.Ct., at 2115-2116; **2666 Aguilar v. Felton, 473 U.S. 402, 416, 105 S.Ct. 3232, 3239, 87 L.Ed.2d 290 (1985) (Powell, J., concurring).FN10 Such a struggle can “strain a political system to the breaking point.” Walz v. Tax Comm'n of New York City, 397 U.S. 664, 694, 90 S.Ct. 1409, 1424, 25 L.Ed.2d 697 (1970) (opinion of Harlan, J.).

FN9. “[T]he Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Wallace v. Jaffree, 472 U.S., at 69, 105 S.Ct., at 2496 (O'CONNOR, J., concurring in judgment) (internal quotation marks omitted).

FN10. Sigmund Freud expressed it this way: “a religion, even if it calls itself the religion of love, must be hard and unloving to those who do not belong to it.” S. Freud, Group Psychology and the Analysis of the Ego 51 (1922). James Madison stated the theory even more strongly in his “Memorial and Remonstrance” against a bill providing tax funds to religious teachers: “It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance.” The Complete Madison, at 303. Religion has not lost its power to engender divisiveness. “Of all the issues the ACLU takes on-reproductive rights, discrimination, jail and prison conditions, abuse of kids in the public schools, police brutality, to name a few-by far the most volatile issue is that of school prayer. Aside from our efforts to abolish the death penalty, it is the only issue that elicits death threats.” Parish, Graduation Prayer Violates the Bill of Rights, 4 Utah Bar J. 19 (June/July 1991).

When the government arrogates to itself a role in religious affairs, it abandons its obligation as guarantor of democracy. Democracy requires the nourishment of dialog and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation. When the government appropriates religious truth, it “transforms rational debate into theological decree.” Nuechterlein, Note, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L.J. 1127, 1131 (1990). Those who disagree no longer are questioning the policy judgment of the elected but the rules of a higher authority who is beyond reproach.

*608 Madison warned that government officials who would use religious authority to pursue secular ends “exceed the commission from which they derive their authority and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.” Memorial and Remonstrance against Religious Assessments (1785), in The Complete Madison 300 (S. Padover ed. 1953). Democratic government will not last long when proclamation replaces persuasion as the medium of political exchange.

Likewise, we have recognized that “[r]eligion flourishes in greater purity, without than with the aid of Gov[ernment].” FN11 Id., at 309. To “make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary,” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952), the government must not align itself with any one of them. When the government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may fear being “taint [ed] ... with a corrosive secularism.” School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 385, 105 S.Ct. 3216, 3223, 87 L.Ed.2d 267 (1985). The favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation.FN12 Keeping religion in the hands of private groups minimizes state intrusion on religious choice and best enables each religion to “flourish according to the *609 zeal of its adherents and the appeal of its dogma.” Zorach, 343 U.S., at 313, 72 S.Ct., at 683.

FN11. The view that the Establishment Clause was primarily a vehicle for protecting churches was expounded initially by Roger Williams. “[W]ordly corruptions ... might consume the churches if sturdy fences against the wilderness were not maintained.” M. Howe, The Garden and the Wilderness 6 (1965).

FN12. “[B]ut when a religion contracts an alliance of this nature, I do not hesitate to affirm that it commits the same error as a man who should sacrifice his future to his present welfare; and in obtaining a power to which it has no claim, it risks that authority which is rightfully its own.” 1 A. de Tocqueville, Democracy in America 315 (H. Reeve transl. 1900).

It is these understandings and fears that underlie our Establishment Clause jurisprudence.**2667 We have believed that religious freedom cannot exist in the absence of a free democratic government, and that such a government cannot endure when there is fusion between religion and the political regime. We have believed that religious freedom cannot thrive in the absence of a vibrant religious community and that such a community cannot prosper when it is bound to the secular. And we have believed that these were the animating principles behind the adoption of the Establishment Clause. To that end, our cases have prohibited government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens were coerced to conform.

I remain convinced that our jurisprudence is not misguided, and that it requires the decision reached by the Court today. Accordingly, I join the Court in affirming the judgment of the Court of Appeals.

Justice SOUTER, with whom Justice STEVENS and Justice O'CONNOR join, concurring.

I join the whole of the Court's opinion, and fully agree that prayers at public school graduation ceremonies indirectly coerce religious observance. I write separately nonetheless on two issues of Establishment Clause analysis that underlie my independent resolution of this case: whether the Clause applies to governmental practices that do not favor one religion or denomination over others, and whether state coercion of religious conformity, over and above state endorsement of religious exercise or belief, is a necessary element of an Establishment Clause violation.

I

Forty-five years ago, this Court announced a basic principle of constitutional law from which it has not strayed: the *610 Establishment Clause forbids not only state practices that “aid one religion ... or prefer one religion over another,” but also those that “aid all religions.” Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). Today we reaffirm that principle, holding that the Establishment Clause forbids state-sponsored prayers in public school settings no matter how nondenominational the prayers may be. In barring the State from sponsoring generically theistic prayers where it could not sponsor sectarian ones, we hold true to a line of precedent from which there is no adequate historical case to depart.

A

Since Everson, we have consistently held the Clause applicable no less to governmental acts favoring religion generally than to acts favoring one religion over others.FN1 Thus, in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), we held that the public schools may not subject their students to readings of any prayer, however “denominationally neutral.” Id., at 430, 82 S.Ct., at 1266. More recently, in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), we held that an Alabama moment-of-silence statute passed for the sole purpose of “returning voluntary prayer to public schools,” id., at 57, 105 S.Ct., at 2490, violated the Establishment Clause even though it did not encourage students to pray to any particular deity. We said that “when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” Id., at 52-53, 105 S.Ct., at 2487-2488. This conclusion, we held,

FN1. Cf. Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (subjecting discrimination against certain religious organizations to test of strict scrutiny).

“derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by **2668 the faithful, *611 and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects-or even intolerance among ‘religions'-to encompass intolerance of the disbeliever and the uncertain.” Id., at 53-54, 105 S.Ct., at 2488 (footnotes omitted).

Likewise, in Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989), we struck down a state tax exemption benefiting only religious periodicals; even though the statute in question worked no discrimination among sects, a majority of the Court found that its preference for religious publications over all other kinds “effectively endorses religious belief.” Id., at 17, 109 S.Ct., at 901 (plurality opinion); see id., at 28, 109 S.Ct., at 907 (BLACKMUN, J., concurring in judgment) (“A statutory preference for the dissemination of religious ideas offends our most basic understanding of what the Establishment Clause is all about and hence is constitutionally intolerable”). And in Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), we struck down a provision of the Maryland Constitution requiring public officials to declare a “ ‘belief in the existence of God,’ ” id., at 489, 81 S.Ct., at 1680, reasoning that, under the Religion Clauses of the First Amendment, “neither a State nor the Federal Government ... can constitutionally pass laws or impose requirements which aid all religions as against non-believers ...,” id., at 495, 81 S.Ct., at 1683. See also Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968) (“The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion”); School Dist. of Abington v. Schempp, 374 U.S. 203, 216, 83 S.Ct. 1560, 1568, 10 L.Ed.2d 844 (1963) (“this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another”); id., at 319-320, 83 S.Ct., at 1622 (Stewart, J., dissenting) (the Clause applies “to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker”).

Such is the settled law. Here, as elsewhere, we should stick to it absent some compelling reason to discard it. See *612 Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2311, 81 L.Ed.2d 164 (1984); Payne v. Tennessee, 501 U.S. 808, 842, 111 S.Ct. 2597, 2617-2618, 115 L.Ed.2d 720 (1991) (SOUTER, J., concurring).

B

Some have challenged this precedent by reading the Establishment Clause to permit “nonpreferential” state promotion of religion. The challengers argue that, as originally understood by the Framers, “[t]he Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion.” Wallace, supra, at 106, 105 S.Ct., at 2515 (REHNQUIST, J., dissenting); see also R. Cord, Separation of Church and State: Historical Fact and Current Fiction (1988). While a case has been made for this position, it is not so convincing as to warrant reconsideration of our settled law; indeed, I find in the history of the Clause's textual development a more powerful argument supporting the Court's jurisprudence following Everson.

When James Madison arrived at the First Congress with a series of proposals to amend the National Constitution, one of the provisions read that “[t]he civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” 1 Annals of Cong. 434 (1789). Madison's language did not last long. It was sent to a Select Committee of the House, which, without explanation, changed it to read that “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” Id., at 729. Thence the proposal went to the Committee of the Whole, which was in turn dissatisfied**2669 with the Select Committee's language and adopted an alternative proposed by Samuel Livermore of New Hampshire: “Congress shall make no laws touching religion, or infringing the rights of conscience.” See id., at 731. Livermore's proposal would have forbidden laws having anything to do with religion and was thus not *613 only far broader than Madison's version, but broader even than the scope of the Establishment Clause as we now understand it. See, e.g., Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (upholding legislative exemption of religious groups from certain obligations under civil rights laws).

The House rewrote the amendment once more before sending it to the Senate, this time adopting, without recorded debate, language derived from a proposal by Fisher Ames of Massachusetts: “Congress shall make no law establishing Religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” 1 Documentary History of the First Federal Congress of the United States of America 136 (Senate Journal) (L. de Pauw ed. 1972); see 1 Annals of Cong. 765 (1789). Perhaps, on further reflection, the Representatives had thought Livermore's proposal too expansive, or perhaps, as one historian has suggested, they had simply worried that his language would not “satisfy the demands of those who wanted something said specifically against establishments of religion.” L. Levy, The Establishment Clause 81 (1986) (hereinafter Levy). We do not know; what we do know is that the House rejected the Select Committee's version, which arguably ensured only that “no religion” enjoyed an official preference over others, and deliberately chose instead a prohibition extending to laws establishing “religion” in general.

The sequence of the Senate's treatment of this House proposal, and the House's response to the Senate, confirm that the Framers meant the Establishment Clause's prohibition to encompass nonpreferential aid to religion. In September 1789, the Senate considered a number of provisions that would have permitted such aid, and ultimately it adopted one of them. First, it briefly entertained this language: “Congress shall make no law establishing One Religious Sect or Society in preference to others, nor shall the rights of conscience be infringed.” See 1 Documentary History, supra, at 151 *614 Senate Journal); id., at 136. After rejecting two minor amendments to that proposal, see ibid., the Senate dropped it altogether and chose a provision identical to the House's proposal, but without the clause protecting the “rights of conscience,” ibid. With no record of the Senate debates, we cannot know what prompted these changes, but the record does tell us that, six days later, the Senate went half circle and adopted its narrowest language yet: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.” Id., at 166. The Senate sent this proposal to the House along with its versions of the other constitutional amendments proposed.

Though it accepted much of the Senate's work on the Bill of Rights, the House rejected the Senate's version of the Establishment Clause and called for a joint conference committee, to which the Senate agreed. The House conferees ultimately won out, persuading the Senate to accept this as the final text of the Religion Clauses: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” What is remarkable is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of “a religion,” “a national religion,” “one religious sect,” or specific “articles of faith.”FN2 The Framers repeatedly*615 considered and deliberately**2670 rejected such narrow language and instead extended their prohibition to state support for “religion” in general.

FN2. Some commentators have suggested that by targeting laws respecting “an” establishment of religion, the Framers adopted the very nonpreferentialist position whose much clearer articulation they repeatedly rejected. See, e.g., R. Cord, Separation of Church and State 11-12 (1988). Yet the indefinite article before the word “establishment” is better seen as evidence that the Clause forbids any kind of establishment, including a nonpreferential one. If the Framers had wished, for some reason, to use the indefinite term to achieve a narrow meaning for the Clause, they could far more aptly have placed it before the word “religion.” See Laycock, “Nonpreferential” Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L.Rev. 875, 884-885 (1986) (hereinafter Laycock, “Nonpreferential” Aid).

Implicit in their choice is the distinction between preferential and nonpreferential establishments, which the weight of evidence suggests the Framers appreciated. See, e.g., Laycock, “Nonpreferential” Aid 902-906; Levy 91-119. But cf. T. Curry, The First Freedoms 208-222 (1986). Of particular note, the Framers were vividly familiar with efforts in the Colonies and, later, the States to impose general, nondenominational assessments and other incidents of ostensibly ecumenical establishments. See generally Levy 1-62. The Virginia statute for religious freedom, written by Jefferson and sponsored by Madison, captured the separationist response to such measures. Condemning all establishments, however nonpreferentialist, the statute broadly guaranteed that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever,” including his own. Act for Establishing Religious Freedom (1785), in 5 The Founders' Constitution 84, 85 (P. Kurland & R. Lerner eds. 1987). Forcing a citizen to support even his own church would, among other things, deny “the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind.” Id., at 84. In general, Madison later added, “religion & Govt. will both exist in greater purity, the less they are mixed together.” Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105, 106.

What we thus know of the Framers' experience underscores the observation of one prominent commentator, that confining the Establishment Clause to a prohibition on preferential aid “requires a premise that the Framers were extraordinarily bad drafters-that they believed one thing but adopted language that said something substantially different, and that they did so after repeatedly attending to the *616 choice of language.” Laycock, “Nonpreferential” Aid 882-883; see also County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 647-648, 109 S.Ct. 3086, 3129-3130, 106 L.Ed.2d 472 (1989) (opinion of STEVENS, J.). We must presume, since there is no conclusive evidence to the contrary, that the Framers embraced the significance of their textual judgment.FN3 Thus, on balance, history neither contradicts nor warrants reconsideration of the settled principle that the Establishment Clause forbids support for religion in general no less than support for one religion or some.

FN3. In his dissent in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), THE CHIEF JUSTICE rested his nonpreferentialist interpretation partly on the post-ratification actions of the early National Government. Aside from the willingness of some (but not all) early Presidents to issue ceremonial religious proclamations, which were at worst trivial breaches of the Establishment Clause, see infra, at 2678, he cited such seemingly preferential aid as a treaty provision, signed by Jefferson, authorizing federal subsidization of a Roman Catholic priest and church for the Kaskaskia Indians. 472 U.S., at 103, 105 S.Ct., at 2514. But this proves too much, for if the Establishment Clause permits a special appropriation of tax money for the religious activities of a particular sect, it forbids virtually nothing. See Laycock, “Nonpreferential” Aid 915. Although evidence of historical practice can indeed furnish valuable aid in the interpretation of contemporary language, acts like the one in question prove only that public officials, no matter when they serve, can turn a blind eye to constitutional principle. See infra, at 2675.

**2671 C

While these considerations are, for me, sufficient to reject the nonpreferentialist position, one further concern animates my judgment. In many contexts, including this one, nonpreferentialism requires some distinction between “sectarian” religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster. Simply by requiring the enquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable to the competence*617 of the federal judiciary, or more deliberately to be avoided where possible.

This case is nicely in point. Since the nonpreferentiality of a prayer must be judged by its text, Justice BLACKMUN pertinently observes, ante, at 2664, n. 5, that Rabbi Gutterman drew his exhortation “ ‘[t]o do justly, to love mercy, to walk humbly’ ” straight from the King James version of Micah, ch. 6, v. 8. At some undefinable point, the similarities between a state-sponsored prayer and the sacred text of a specific religion would so closely identify the former with the latter that even a nonpreferentialist would have to concede a breach of the Establishment Clause. And even if Micah's thought is sufficiently generic for most believers, it still embodies a straightforwardly theistic premise, and so does the rabbi's prayer. Many Americans who consider themselves religious are not theistic; some, like several of the Framers, are deists who would question Rabbi Gutterman's plea for divine advancement of the country's political and moral good. Thus, a nonpreferentialist who would condemn subjecting public school graduates to, say, the Anglican liturgy would still need to explain why the government's preference for theistic over nontheistic religion is constitutional.

Nor does it solve the problem to say that the State should promote a “diversity” of religious views; that position would necessarily compel the government and, inevitably, the courts to make wholly inappropriate judgments about the number of religions the State should sponsor and the relative frequency with which it should sponsor each. In fact, the prospect would be even worse than that. As Madison observed in criticizing religious Presidential proclamations, the practice of sponsoring religious messages tends, over time, “to narrow the recommendation to the standard of the predominant sect.” Madison's “Detached Memoranda,” 3 Wm. & Mary Q. 534, 561 (E. Fleet ed. 1946) (hereinafter Madison's “Detached Memoranda” ). We have not changed much since the days of Madison, and the judiciary should not *618 willingly enter the political arena to battle the centripetal force leading from religious pluralism to official preference for the faith with the most votes.

II

Petitioners rest most of their argument on a theory that, whether or not the Establishment Clause permits extensive nonsectarian support for religion, it does not forbid the state to sponsor affirmations of religious belief that coerce neither support for religion nor participation in religious observance. I appreciate the force of some of the arguments supporting a “coercion” analysis of the Clause. See generally County of Allegheny, supra, 492 U.S., at 655-679, 109 S.Ct., at 3134-3146 (opinion of KENNEDY, J.); McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L.Rev. 933 (1986). But we could not adopt that reading without abandoning our settled law, a course that, in my view, the text of the Clause would not readily permit. Nor does the extratextual evidence of original meaning stand so unequivocally at odds with the textual premise inherent in existing precedent that we should fundamentally reconsider our course.

A

Over the years, this Court has declared the invalidity of many noncoercive state laws and practices conveying a message of religious endorsement. For example, in **2672 County of Allegheny, supra, we forbade the prominent display of a nativity scene on public property; without contesting the dissent's observation that the créche coerced no one into accepting or supporting whatever message it proclaimed, five Members of the Court found its display unconstitutional as a state endorsement of Christianity. Id., at 589-594, 598-602, 109 S.Ct., at 3098-3101, 3103-3105. Likewise, in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), we struck down a state law requiring a moment of silence in public classrooms not because the statute coerced students to participate in prayer (for it did not), but because the manner of *619 its enactment “convey[ed] a message of state approval of prayer activities in the public schools.” Id., at 61, 105 S.Ct., at 2492; see also id., at 67-84, 105 S.Ct., at 2495-2504 (O'CONNOR, J., concurring in judgment). Cf. Engel v. Vitale, 370 U.S., at 431, 82 S.Ct., at 1267 (“When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that”).

In Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), we invalidated a state law that barred the teaching of Darwin's theory of evolution because, even though the statute obviously did not coerce anyone to support religion or participate in any religious practice, it was enacted for a singularly religious purpose. See also Edwards v. Aguillard, 482 U.S. 578, 593, 107 S.Ct. 2573, 2583, 96 L.Ed.2d 510 (1987) (statute requiring instruction in “creation science” “endorses religion in violation of the First Amendment”). And in School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985), we invalidated a program whereby the State sent public school teachers to parochial schools to instruct students on ostensibly nonreligious matters; while the scheme clearly did not coerce anyone to receive or subsidize religious instruction, we held it invalid because, among other things, “[t]he symbolic union of church and state inherent in the [program] threatens to convey a message of state support for religion to students and to the general public.” Id., at 397, 105 S.Ct., at 3230; see also Texas Monthly, Inc. v. Bullock, 489 U.S., at 17, 109 S.Ct., at 901 (plurality opinion) (tax exemption benefiting only religious publications “effectively endorses religious belief”); id., at 28, 109 S.Ct., at 907 (BLACKMUN, J., concurring in judgment) (exemption unconstitutional because State “engaged in preferential support for the communication of religious messages”).

Our precedents may not always have drawn perfectly straight lines. They simply cannot, however, support the position that a showing of coercion is necessary to a successful Establishment Clause claim.

*620 B

Like the provisions about “due” process and “unreasonable” searches and seizures, the constitutional language forbidding laws “respecting an establishment of religion” is not pellucid. But virtually everyone acknowledges that the Clause bans more than formal establishments of religion in the traditional sense, that is, massive state support for religion through, among other means, comprehensive schemes of taxation. See generally Levy 1-62 (discussing such establishments in the Colonies and early States). This much follows from the Framers' explicit rejection of simpler provisions prohibiting either the establishment of a religion or laws “establishing religion” in favor of the broader ban on laws “respecting an establishment of religion.” See supra, at 2668-2669.

While some argue that the Framers added the word “respecting” simply to foreclose federal interference with state establishments of religion, see, e.g., Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1157 (1991), the language sweeps more broadly than that. In Madison's words, the Clause in its final form forbids “everything **2673 like” a national religious establishment, see Madison's “Detached Memoranda” 558, and, after incorporation, it forbids “everything like” a state religious establishment. FN4 Cf. County of Allegheny, 492 U.S., at 649, 109 S.Ct., at 3130 (opinion of STEVENS, J.). The sweep is broad enough that Madison himself characterized congressional provisions for legislative and military chaplains as unconstitutional “establishments.” Madison's “Detached Memoranda” 558-559; see infra, at 2675, and n. 6.

FN4. In Everson v. Board of Ed. of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), we unanimously incorporated the Establishment Clause into the Due Process Clause of the Fourteenth Amendment and, by so doing, extended its reach to the actions of States. Id., at 14-15, 67 S.Ct., at 511; see also Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940) (dictum). Since then, not one Member of this Court has proposed disincorporating the Clause.

*621 While petitioners insist that the prohibition extends only to the “coercive” features and incidents of establishment, they cannot easily square that claim with the constitutional text. The First Amendment forbids not just laws “respecting an establishment of religion,” but also those “prohibiting the free exercise thereof.” Yet laws that coerce nonadherents to “support or participate in any religion or its exercise,” County of Allegheny, supra, at 659-660, 109 S.Ct., at 3136 (opinion of KENNEDY, J.), would virtually by definition violate their right to religious free exercise. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 1599, 108 L.Ed.2d 876 (1990) (under Free Exercise Clause, “government may not compel affirmation of religious belief”), citing Torcaso v. Watkins, 367 U.S. 488 (1961); see also J. Madison, Memorial and Remonstrance Against Religious Assessments (1785) (compelling support for religious establishments violates “free exercise of Religion”), quoted in 5 The Founders' Constitution, at 82, 84. Thus, a literal application of the coercion test would render the Establishment Clause a virtual nullity, as petitioners' counsel essentially conceded at oral argument. Tr. of Oral Arg. 18.

Our cases presuppose as much; as we said in School Dist. of Abington, “[t]he distinction between the two clauses is apparent-a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.” 374 U.S., at 223, 83 S.Ct., at 1572; see also Laycock, “Nonpreferential” Aid 922 (“If coercion is ... an element of the establishment clause, establishment adds nothing to free exercise”). While one may argue that the Framers meant the Establishment Clause simply to ornament the First Amendment, cf. T. Curry, The First Freedoms 216-217 (1986), that must be a reading of last resort. Without compelling evidence to the contrary, we should presume that the Framers meant the Clause to stand for something more than petitioners attribute to it.

*622 C

Petitioners argue from the political setting in which the Establishment Clause was framed, and from the Framers' own political practices following ratification, that government may constitutionally endorse religion so long as it does not coerce religious conformity. The setting and the practices warrant canvassing, but while they yield some evidence for petitioners' argument, they do not reveal the degree of consensus in early constitutional thought that would raise a threat to stare decisis by challenging the presumption that the Establishment Clause adds something to the Free Exercise Clause that follows it.

The Framers adopted the Religion Clauses in response to a long tradition of coercive state support for religion, particularly in the form of tax assessments, but their special antipathy to religious coercion did not exhaust their hostility to the features and incidents of establishment. Indeed, Jefferson and Madison opposed any political appropriation**2674 of religion, see infra, at 2674-2676, and, even when challenging the hated assessments, they did not always temper their rhetoric with distinctions between coercive and noncoercive state action. When, for example, Madison criticized Virginia's general assessment bill, he invoked principles antithetical to all state efforts to promote religion. An assessment, he wrote, is improper not simply because it forces people to donate “three pence” to religion, but, more broadly, because “it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.” J. Madison, Memorial and Remonstrance Against Religious Assessments (1785), in 5 The Founders' Constitution, at 83. Madison saw that, even without the tax collector's participation, an official endorsement of religion can impair religious liberty.

Petitioners contend that because the early Presidents included religious messages in their inaugural and Thanksgiving Day addresses, the Framers could not have meant the *623 Establishment Clause to forbid noncoercive state endorsement of religion. The argument ignores the fact, however, that Americans today find such proclamations less controversial than did the founding generation, whose published thoughts on the matter belie petitioners' claim. President Jefferson, for example, steadfastly refused to issue Thanksgiving proclamations of any kind, in part because he thought they violated the Religion Clauses. Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808), in 5 The Founders' Constitution, at 98. In explaining his views to the Reverend Samuel Miller, Jefferson effectively anticipated, and rejected, petitioners' position:

“[I]t is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U.S. an authority over religious exercises which the Constitution has directly precluded from them. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion.” Id., at 98-99 (emphasis in original).

By condemning such noncoercive state practices that, in “recommending” the majority faith, demean religious dissenters “in public opinion,” Jefferson necessarily condemned what, in modern terms, we call official endorsement of religion. He accordingly construed the Establishment Clause to forbid not simply state coercion, but also state endorsement, of religious belief and observance.FN5 And if he opposed *624 impersonal **2675 Presidential addresses for inflicting “proscription in public opinion,” all the more would he have condemned less diffuse expressions of official endorsement.

FN5. Petitioners claim that the quoted passage shows that Jefferson regarded Thanksgiving proclamations as “coercive”: “Thus, while one may disagree with Jefferson's view that a recommendatory Thanksgiving proclamation would nonetheless be coercive ... one cannot disagree that Jefferson believed coercion to be a necessary element of a First Amendment violation.” Brief for Petitioners 34. But this is wordplay. The “proscription” to which Jefferson referred was, of course, by the public and not the government, whose only action was a noncoercive recommendation. And one can call any act of endorsement a form of coercion, but only if one is willing to dilute the meaning of “coercion” until there is no meaning left. Jefferson's position straightforwardly contradicts the claim that a showing of “coercion,” under any normal definition, is prerequisite to a successful Establishment Clause claim. At the same time, Jefferson's practice, like Madison's, see infra, at 2675, sometimes diverged from principle, for he did include religious references in his inaugural speeches. See Inaugural Addresses of the Presidents of the United States 17, 22-23 (1989); see also n. 3, supra. Homer nodded.

Petitioners also seek comfort in a different passage of the same letter. Jefferson argued that Presidential religious proclamations violate not just the Establishment Clause, but also the Tenth Amendment, for “what might be a right in a state government, was a violation of that right when assumed by another.” Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808), in 5 The Founders' Constitution 99 (P. Kurland & R. Lerner eds. 1987). Jefferson did not, however, restrict himself to the Tenth Amendment in condemning such proclamations by a national officer. I do not, in any event, understand petitioners to be arguing that the Establishment Clause is exclusively a structural provision mediating the respective powers of the State and National Governments. Such a position would entail the argument, which petitioners do not make, and which we would almost certainly reject, that incorporation of the Establishment Clause under the Fourteenth Amendment was erroneous.

During his first three years in office, James Madison also refused to call for days of thanksgiving and prayer, though later, amid the political turmoil of the War of 1812, he did so on four separate occasions. See Madison's “Detached Memoranda” 562, and n. 54. Upon retirement, in an essay condemning as an unconstitutional “establishment” the use of public money to support congressional and military chaplains, id., at 558-560,FN6 he concluded that “[r]eligious proclamations*625 by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed. Altho' recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers.” Id., at 560. Explaining that “[t]he members of a Govt ... can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities,” ibid., he further observed that the state necessarily freights all of its religious messages with political ones: “the idea of policy [is] associated with religion, whatever be the mode or the occasion, when a function of the latter is assumed by those in power.” Id., at 562 (footnote omitted).

FN6. Madison found this practice “a palpable violation of ... Constitutional principles.” Madison's “Detached Memoranda” 558. Although he sat on the committee recommending the congressional chaplainship, see R. Cord, Separation of Church and State: Historical Fact and Current Fiction 23 (1988), he later insisted that “it was not with my approbation, that the deviation from [the immunity of religion from civil jurisdiction] took place in Congs., when they appointed Chaplains, to be paid from the Natl. Treasury.” Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105.

Madison's failure to keep pace with his principles in the face of congressional pressure cannot erase the principles. He admitted to backsliding, and explained that he had made the content of his wartime proclamations inconsequential enough to mitigate much of their impropriety. See ibid.; see also Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105. While his writings suggest mild variations in his interpretation of the Establishment Clause, Madison was no different in that respect from the rest of his political generation. That he expressed so much doubt about the constitutionality of religious proclamations, however, suggests a brand of separationism stronger even than that embodied in our traditional jurisprudence. So too does his characterization of public subsidies for legislative and military chaplains as unconstitutional “establishments,” see supra, at 2675, and n. 6, for the federal courts, however expansive their general view of the Establishment Clause, have upheld both practices. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (legislative chaplains);*626 Katcoff v. Marsh, 755 F.2d 223 (CA2 1985) (military chaplains).

To be sure, the leaders of the young Republic engaged in some of the practices that separationists like Jefferson and Madison criticized. The First Congress did hire institutional chaplains, see Marsh v. Chambers, supra, at 788, 103 S.Ct., at 3334, and Presidents Washington and Adams unapologetically marked days of “ ‘public thanksgiving and prayer,’ ” see R. Cord, Separation of Church and State 53 (1988). Yet in the face of the separationist dissent, those practices prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next. “Indeed, by 1787 the provisions of **2676 the state bills of rights had become what Madison called mere ‘paper parchments'-expressions of the most laudable sentiments, observed as much in the breach as in practice.” Kurland, The Origins of the Religion Clauses of the Constitution, 27 Wm. & Mary L.Rev. 839, 852 (1986) (footnote omitted). Sometimes the National Constitution fared no better. Ten years after proposing the First Amendment, Congress passed the Alien and Sedition Acts, measures patently unconstitutional by modern standards. If the early Congress's political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine to make room for political censorship.

While we may be unable to know for certain what the Framers meant by the Clause, we do know that, around the time of its ratification, a respectable body of opinion supported a considerably broader reading than petitioners urge upon us. This consistency with the textual considerations is enough to preclude fundamentally reexamining our settled law, and I am accordingly left with the task of considering whether the state practice at issue here violates our traditional understanding of the Clause's proscriptions.

*627 III

While the Establishment Clause's concept of neutrality is not self-revealing, our recent cases have invested it with specific content: the State may not favor or endorse either religion generally over nonreligion or one religion over others. See, e.g., County of Allegheny, 492 U.S., at 589-594, 598-602, 109 S.Ct., at 3098-3101, 3103-3105; Texas Monthly, 489 U.S., at 17, 109 S.Ct., at 901 (plurality opinion); id., at 28, 109 S.Ct., at 907 (BLACKMUN, J., concurring in judgment); Edwards v. Aguillard, 482 U.S., at 593, 107 S.Ct., at 2582-2583; School Dist. of Grand Rapids, 473 U.S., at 389-392, 105 S.Ct., at 3225-3227; Wallace v. Jaffree, 472 U.S., at 61, 105 S.Ct., at 2492; see also Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L.Rev. 993 (1990); cf. Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). This principle against favoritism and endorsement has become the foundation of Establishment Clause jurisprudence, ensuring that religious belief is irrelevant to every citizen's standing in the political community, see County of Allegheny, supra, 492 U.S., at 594, 109 S.Ct., at 3101; J. Madison, Memorial and Remonstrance Against Religious Assessments (1785), in 5 The Founders' Constitution, at 82-83, and protecting religion from the demeaning effects of any governmental embrace, see id., at 83. Now, as in the early Republic, “religion & Govt. will both exist in greater purity, the less they are mixed together.” Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 106. Our aspiration to religious liberty, embodied in the First Amendment, permits no other standard.

A

That government must remain neutral in matters of religion does not foreclose it from ever taking religion into account. The State may “accommodate” the free exercise of religion by relieving people from generally applicable rules that interfere with their religious callings. See, e.g., Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987); see also Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). Contrary to the *628 views of some,FN7 such accommodation does **2677 not necessarily signify an official endorsement of religious observance over disbelief.

FN7. See, e.g., Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 726, 101 S.Ct. 1425, 1436, 67 L.Ed.2d 624 (1981) (REHNQUIST, J., dissenting); Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U.Pitt.L.Rev. 673, 685-686 (1980); see also Walz v. Tax Comm'n of New York City, 397 U.S. 664, 668-669, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970); Sherbert v. Verner, 374 U.S. 398, 414, 416, 83 S.Ct. 1790, 1799, 1800, 10 L.Ed.2d 965 (1963) (Stewart, J., concurring in result); cf. Wallace v. Jaffree, 472 U.S., at 83, 105 S.Ct., at 2504 (O'CONNOR, J., concurring in judgment).

In everyday life, we routinely accommodate religious beliefs that we do not share. A Christian inviting an Orthodox Jew to lunch might take pains to choose a kosher restaurant; an atheist in a hurry might yield the right of way to an Amish man steering a horse-drawn carriage. In so acting, we express respect for, but not endorsement of, the fundamental values of others. We act without expressing a position on the theological merit of those values or of religious belief in general, and no one perceives us to have taken such a position.

The government may act likewise. Most religions encourage devotional practices that are at once crucial to the lives of believers and idiosyncratic in the eyes of nonadherents. By definition, secular rules of general application are drawn from the nonadherent's vantage and, consequently, fail to take such practices into account. Yet when enforcement of such rules cuts across religious sensibilities, as it often does, it puts those affected to the choice of taking sides between God and government. In such circumstances, accommodating religion reveals nothing beyond a recognition that general rules can unnecessarily offend the religious conscience when they offend the conscience of secular society not at all. Cf. Welsh v. United States, 398 U.S. 333, 340, 90 S.Ct. 1792, 1796, 26 L.Ed.2d 308 (1970) (plurality opinion). Thus, in freeing the Native American Church from federal laws forbidding peyote use, see Drug Enforcement Administration Miscellaneous Exemptions, *629 21 CFR § 1307.31 (1991), the government conveys no endorsement of peyote rituals, the Church, or religion as such; it simply respects the centrality of peyote to the lives of certain Americans. See Note, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L.J. 1127, 1135-1136 (1990).

B

Whatever else may define the scope of accommodation permissible under the Establishment Clause, one requirement is clear: accommodation must lift a discernible burden on the free exercise of religion. See County of Allegheny, supra, 492 U.S., at 601, n. 51, 109 S.Ct., 3105, n. 51; id., at 631-632, 109 S.Ct., at 3121-3122 (O'CONNOR, J., concurring in part and concurring in judgment); Corporation of Presiding Bishop, supra, 483 U.S., at 348, 107 S.Ct., at 2875 (O'CONNOR, J., concurring in judgment); see also Texas Monthly, supra, 489 U.S., at 18, 18-19, n. 8, 109 S.Ct., at 901, 901-902, n. 8 (plurality opinion); Wallace v. Jaffree, supra, 472 U.S., at 57-58, n. 45, 105 S.Ct., at 2490, n. 45. But see County of Allegheny, supra, 492 U.S., at 663, n. 2, 109 S.Ct., at 3138, n. 2 (KENNEDY, J., concurring in judgment in part and dissenting in part). Concern for the position of religious individuals in the modern regulatory State cannot justify official solicitude for a religious practice unburdened by general rules; such gratuitous largesse would effectively favor religion over disbelief. By these lights one easily sees that, in sponsoring the graduation prayers at issue here, the State has crossed the line from permissible accommodation to unconstitutional establishment.

Religious students cannot complain that omitting prayers from their graduation ceremony would, in any realistic sense, “burden” their spiritual callings. To be sure, many of them invest this rite of passage with spiritual significance, but they may express their religious feelings about it before and after the ceremony. They may even organize a privately sponsored baccalaureate if they desire the company of likeminded students. Because they accordingly have no need for the machinery of the State to affirm their beliefs, the *630 government's sponsorship of prayer at the graduation ceremony is most reasonably understood as an official endorsement of religion and, in this instance, of theistic religion. **2678 One may fairly say, as one commentator has suggested, that the government brought prayer into the ceremony “precisely because some people want a symbolic affirmation that government approves and endorses their religion, and because many of the people who want this affirmation place little or no value on the costs to religious minorities.” Laycock, Summary and Synthesis: The Crisis in Religious Liberty, 60 Geo. Wash.L.Rev. 841, 844 (1992).FN8

FN8. If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver a religious message, it would have been harder to attribute an endorsement of religion to the State. Cf. Witters v. Washington Dept. of Services for Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986). But that is not our case. Nor is this a case where the State has, without singling out religious groups or individuals, extended benefits to them as members of a broad class of beneficiaries defined by clearly secular criteria. See Widmar v. Vincent, 454 U.S. 263, 274-275, 102 S.Ct. 269, 277, 70 L.Ed.2d 440 (1981); Walz, supra, 397 U.S., at 696, 90 S.Ct., at 1425 (opinion of Harlan, J.) (“In any particular case the critical question is whether the circumference of legislation encircles a class so broad that it can be fairly concluded that religious institutions could be thought to fall within the natural perimeter”). Finally, this is not a case like Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), in which government officials invoke spiritual inspiration entirely for their own benefit without directing any religious message at the citizens they lead.

Petitioners would deflect this conclusion by arguing that graduation prayers are no different from Presidential religious proclamations and similar official “acknowledgments” of religion in public life. But religious invocations in Thanksgiving Day addresses and the like, rarely noticed, ignored without effort, conveyed over an impersonal medium, and directed at no one in particular, inhabit a pallid zone worlds apart from official prayers delivered to a captive audience of public school students and their families. Madison himself respected the difference between the trivial and the serious in constitutional practice. Realizing that his contemporaries*631 were unlikely to take the Establishment Clause seriously enough to forgo a legislative chaplainship, he suggested that “[r]ather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex....” Madison's “Detached Memoranda” 559; see also Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders' Constitution, at 105. But that logic permits no winking at the practice in question here. When public school officials, armed with the State's authority, convey an endorsement of religion to their students, they strike near the core of the Establishment Clause. However “ceremonial” their messages may be, they are flatly unconstitutional.

Justice SCALIA, with whom THE CHIEF JUSTICE, Justice WHITE, and Justice THOMAS join, dissenting.

Three Terms ago, I joined an opinion recognizing that the Establishment Clause must be construed in light of the “[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage.” That opinion affirmed that “the meaning of the Clause is to be determined by reference to historical practices and understandings.” It said that “[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 657, 670, 109 S.Ct. 3086, 3135, 3142, 106 L.Ed.2d 472 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part).

These views of course prevent me from joining today's opinion, which is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court-with nary a mention that it is doing *632 so-**2679 lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. See Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954). Today's opinion shows more forcefully than volumes of argumentation why our Nation's protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.

I

Justice Holmes' aphorism that “a page of history is worth a volume of logic,” New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921), applies with particular force to our Establishment Clause jurisprudence. As we have recognized, our interpretation of the Establishment Clause should “compor[t] with what history reveals was the contemporaneous understanding of its guarantees.” Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 604 (1984). “[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.” School Dist. of Abington v. Schempp, 374 U.S. 203, 294, 83 S.Ct. 1560, 1609, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring). “[H]istorical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied” to contemporaneous practices. Marsh v. Chambers, 463 U.S. 783, 790, 103 S.Ct. 3330, 3335, 77 L.Ed.2d 1019 (1983). Thus, “[t]he existence from the beginning of the Nation's life of a practice, [while] not conclusive of its constitutionality ...[,] is a fact of considerable import in the interpretation” of the *633 Establishment Clause. Walz v. Tax Comm'n of New York City, 397 U.S. 664, 681, 90 S.Ct. 1409, 1417-1418, 25 L.Ed.2d 697 (1970) (Brennan, J., concurring).

The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition. Illustrations of this point have been amply provided in our prior opinions, see, e.g., Lynch, supra, 465 U.S., at 674-678, 104 S.Ct., at 1359-1361; Marsh, supra, 463 U.S., at 786-788, 103 S.Ct., at 3333-3334; see also Wallace v. Jaffree, 472 U.S. 38, 100-103, 105 S.Ct. 2479, 2512-2514, 86 L.Ed.2d 29 (1985) (REHNQUIST, J., dissenting); Engel v. Vitale, 370 U.S. 421, 446-450, and n. 3, 82 S.Ct. 1261, 1275-1277, and n. 3, 8 L.Ed.2d 601 (1962) (Stewart, J., dissenting), but since the Court is so oblivious to our history as to suggest that the Constitution restricts “preservation and transmission of religious beliefs ... to the private sphere,” ante, at 2656, it appears necessary to provide another brief account.

From our Nation's origin, prayer has been a prominent part of governmental ceremonies and proclamations. The Declaration of Independence, the document marking our birth as a separate people, “appeal[ed] to the Supreme Judge of the world for the rectitude of our intentions” and avowed “a firm reliance on the protection of divine Providence.” In his first inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President:

“[I]t would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by **2680 themselves for these essential purposes.” Inaugural Addresses of the Presidents of the United States, S.Doc. 101-10, p. 2 (1989).

Such supplications have been a characteristic feature of inaugural addresses ever since. Thomas Jefferson, for example, *634 prayed in his first inaugural address: “[M]ay that Infinite Power which rules the destinies of the universe lead our councils to what is best, and give them a favorable issue for your peace and prosperity.” Id., at 17. In his second inaugural address, Jefferson acknowledged his need for divine guidance and invited his audience to join his prayer:

“I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power, and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.” Id., at 22-23.

Similarly, James Madison, in his first inaugural address, placed his confidence

“in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future.” Id., at 28.

Most recently, President Bush, continuing the tradition established by President Washington, asked those attending his inauguration to bow their heads, and made a prayer his first official act as President. Id., at 346.

Our national celebration of Thanksgiving likewise dates back to President Washington. As we recounted in Lynch:

*635 “The day after the First Amendment was proposed, Congress urged President Washington to proclaim ‘a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.’ President Washington proclaimed November 26, 1789, a day of thanksgiving to ‘offe[r] our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions....' ” 465 U.S., at 675, n. 2, 104 S.Ct., at 1360, n. 2 (citations omitted).

This tradition of Thanksgiving Proclamations-with their religious theme of prayerful gratitude to God-has been adhered to by almost every President. Id., at 675, and nn. 2 and 3, 104 S.Ct., at 1360, and nn. 2 and 3; Wallace v. Jaffree, supra, 472 U.S., at 100-103, 105 S.Ct. at 2512-2514 (REHNQUIST, J., dissenting).

The other two branches of the Federal Government also have a long-established practice of prayer at public events. As we detailed in Marsh, congressional sessions have opened with a chaplain's prayer ever since the First Congress. 463 U.S., at 787-788, 103 S.Ct., at 3334. And this Court's own sessions have opened with the invocation “God save the United States and this Honorable Court” since the days of Chief Justice Marshall. 1 C. Warren, The Supreme Court in United States History 469 (1922).

In addition to this general tradition of prayer at public ceremonies, there exists a more specific tradition of invocations and benedictions at public school graduation exercises. By one account, the first public high school graduation ceremony took place in Connecticut in July 1868-the very month, as it happens, that the Fourteenth Amendment (the vehicle by which the Establishment Clause has been applied against the States) was ratified-when “15 seniors from the **2681 Norwich Free Academy marched in their best Sunday suits and dresses into a church hall and waited through majestic music and long prayers.” Brodinsky, Commencement Rites Obsolete? Not At All, A 10-Week Study Shows, 10 Updating*636 School Board Policies, No. 4, p. 3 (Apr. 1979). As the Court obliquely acknowledges in describing the “customary features” of high school graduations, ante, at 2653, and as respondents do not contest, the invocation and benediction have long been recognized to be “as traditional as any other parts of the [school] graduation program and are widely established.” H. McKown, Commencement Activities 56 (1931); see also Brodinsky, supra, at 5.

II

The Court presumably would separate graduation invocations and benedictions from other instances of public “preservation and transmission of religious beliefs” on the ground that they involve “psychological coercion.” I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays, see County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), has come to “requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.” American Jewish Congress v. Chicago, 827 F.2d 120, 129 (CA7 1987) (Easterbrook, J., dissenting). But interior decorating is a rock-hard science compared to psychology practiced by amateurs. A few citations of “[r]esearch in psychology” that have no particular bearing upon the precise issue here, ante, at 2659, cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. The Court's argument that state officials have “coerced” students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.

The Court identifies two “dominant facts” that it says dictate its ruling that invocations and benedictions at public school graduation ceremonies violate the Establishment Clause. Ante, at 2655. Neither of them is in any relevant sense true.

*637 A

The Court declares that students' “attendance and participation in the [invocation and benediction] are in a fair and real sense obligatory.” Ibid. But what exactly is this “fair and real sense”? According to the Court, students at graduation who want “to avoid the fact or appearance of participation,” ante, at 2656, in the invocation and benediction are psychologically obligated by “public pressure, as well as peer pressure, ... to stand as a group or, at least, maintain respectful silence” during those prayers. Ante, at 2658. This assertion- the very linchpin of the Court's opinion -is almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologically coerced to bow their heads, place their hands in a Dürer-like prayer position, pay attention to the prayers, utter “Amen,” or in fact pray. (Perhaps further intensive psychological research remains to be done on these matters.) It claims only that students are psychologically coerced “to stand ... or, at least, maintain respectful silence.” Ibid. (emphasis added). Both halves of this disjunctive ( both of which must amount to the fact or appearance of participation in prayer if the Court's analysis is to survive on its own terms) merit particular attention.

To begin with the latter: The Court's notion that a student who simply sits in “respectful silence” during the invocation and benediction (when all others are standing) has somehow joined-or would somehow be perceived as having joined-in the prayers is nothing short of ludicrous. We indeed live in a vulgar age. But surely “our social conventions,” ibid., have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence. Since the Court does not **2682 dispute that students exposed to prayer at graduation ceremonies retain (despite “subtle coercive pressures,” ante, at 2656) the free will to sit, cf. ante, at 2658, there is absolutely no basis for the Court's *638 decision. It is fanciful enough to say that “a reasonable dissenter,” standing head erect in a class of bowed heads, “could believe that the group exercise signified her own participation or approval of it,” ibid. It is beyond the absurd to say that she could entertain such a belief while pointedly declining to rise.

But let us assume the very worst, that the nonparticipating graduate is “subtly coerced” ... to stand! Even that half of the disjunctive does not remotely establish a “participation” (or an “appearance of participation”) in a religious exercise. The Court acknowledges that “in our culture standing ... can signify adherence to a view or simple respect for the views of others.” Ibid. (Much more often the latter than the former, I think, except perhaps in the proverbial town meeting, where one votes by standing.) But if it is a permissible inference that one who is standing is doing so simply out of respect for the prayers of others that are in progress, then how can it possibly be said that a “reasonable dissenter ... could believe that the group exercise signified her own participation or approval” ? Quite obviously, it cannot. I may add, moreover, that maintaining respect for the religious observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate-so that even if it were the case that the displaying of such respect might be mistaken for taking part in the prayer, I would deny that the dissenter's interest in avoiding even the false appearance of participation constitutionally trumps the government's interest in fostering respect for religion generally.

The opinion manifests that the Court itself has not given careful consideration to its test of psychological coercion. For if it had, how could it observe, with no hint of concern or disapproval, that students stood for the Pledge of Allegiance, which immediately preceded Rabbi Gutterman's invocation? Ante, at 2653. The government can, of course, no more coerce political orthodoxy than religious orthodoxy. *639 West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943). Moreover, since the Pledge of Allegiance has been revised since Barnette to include the phrase “under God,” recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction. If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court's view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom) ? In Barnette we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence-indeed, even to stand in respectful silence-when those who wished to recite it did so. Logically, that ought to be the next project for the Court's bulldozer.

I also find it odd that the Court concludes that high school graduates may not be subjected to this supposed psychological coercion, yet refrains from addressing whether “mature adults” may. Ante, at 2658. I had thought that the reason graduation from high school is regarded as so significant an event is that it is generally associated with transition from adolescence to young adulthood. Many graduating seniors, of course, are old enough to vote. Why, then, does the Court treat them as though they were first-graders? Will we soon have a jurisprudence that distinguishes between mature and immature adults?

B

The other “dominant fac[t]” identified by the Court is that “[s]tate officials direct the **2683 performance of a formal religious exercise” at school graduation ceremonies. Ante, at 2655. “Direct[ing] the performance of a formal religious exercise” has a sound of liturgy to it, summoning up images of the principal directing acolytes where to carry the cross, or showing the rabbi where to unroll the Torah. A Court professing to be *640 engaged in a “delicate and fact-sensitive” line-drawing, ante, at 2661, would better describe what it means as “prescribing the content of an invocation and benediction.” But even that would be false. All the record shows is that principals of the Providence public schools, acting within their delegated authority, have invited clergy to deliver invocations and benedictions at graduations; and that Principal Lee invited Rabbi Gutterman, provided him a two-page pamphlet, prepared by the National Conference of Christians and Jews, giving general advice on inclusive prayer for civic occasions, and advised him that his prayers at graduation should be nonsectarian. How these facts can fairly be transformed into the charges that Principal Lee “directed and controlled the content of [Rabbi Gutterman's] prayer,” ante, at 2656, that school officials “monitor prayer,” ante, at 2657, and attempted to “ ‘compose official prayers,’ ” ante, at 2656, and that the “government involvement with religious activity in this case is pervasive,” ante, at 2655, is difficult to fathom. The Court identifies nothing in the record remotely suggesting that school officials have ever drafted, edited, screened, or censored graduation prayers, or that Rabbi Gutterman was a mouthpiece of the school officials.

These distortions of the record are, of course, not harmless error: without them the Court's solemn assertion that the school officials could reasonably be perceived to be “enforc[ing] a religious orthodoxy,” ante, at 2658, would ring as hollow as it ought.

III

The deeper flaw in the Court's opinion does not lie in its wrong answer to the question whether there was state-induced “peer-pressure” coercion; it lies, rather, in the Court's making violation of the Establishment Clause hinge on such a precious question. The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state *641 church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. L. Levy, The Establishment Clause 4 (1986). Thus, for example, in the Colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches. Id., at 3-4.

The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level (and to protect state establishments of religion from federal interference). I will further acknowledge for the sake of argument that, as some scholars have argued, by 1790 the term “establishment” had acquired an additional meaning-“financial support of religion generally, by public taxation”-that reflected the development of “general or multiple” establishments, not limited to a single church. Id., at 8-9. But that would still be an establishment coerced by force of law. And I will further concede that our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington, quoted earlier, down to the present day, has, with a few aberrations, see Church of Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892), ruled out of order government-sponsored endorsement of religion-even when no legal coercion is present, and indeed even when no ersatz, “peer-pressure” psycho-coercion is present-where the endorsement is sectarian, in the sense of specifying**2684 details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ). But there is simply no support for the proposition that the officially sponsored nondenominational invocation and benediction read by Rabbi Gutterman-with no one legally coerced to recite *642 them-violated the Constitution of the United States. To the contrary, they are so characteristically American they could have come from the pen of George Washington or Abraham Lincoln himself.

Thus, while I have no quarrel with the Court's general proposition that the Establishment Clause “guarantees that government may not coerce anyone to support or participate in religion or its exercise,” ante, at 2655, I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty-a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone rather than of Freud. The Framers were indeed opposed to coercion of religious worship by the National Government; but, as their own sponsorship of nonsectarian prayer in public events demonstrates, they understood that “[s]peech is not coercive; the listener may do as he likes.” American Jewish Congress v. Chicago, 827 F.2d, at 132 (Easterbrook, J., dissenting).

This historical discussion places in revealing perspective the Court's extravagant claim that the State has “for all practical purposes,” ante, at 2656, and “in every practical sense,” ante, at 2661, compelled students to participate in prayers at graduation. Beyond the fact, stipulated to by the parties, that attendance at graduation is voluntary, there is nothing in the record to indicate that failure of attending students to take part in the invocation or benediction was subject to any penalty or discipline. Contrast this with, for example, the facts of Barnette: Schoolchildren were required by law to recite the Pledge of Allegiance; failure to do so resulted in expulsion, threatened the expelled child with the prospect of being sent to a reformatory for criminally inclined juveniles, and subjected his parents to prosecution (and incarceration) for causing delinquency. 319 U.S., at 629-630, 63 S.Ct., at 1181. To characterize the “subtle coercive pressures,” ante, at 2656, allegedly present here as the “practical” equivalentof *643 the legal sanctions in Barnette is ... well, let me just say it is not a “delicate and fact-sensitive” analysis.

The Court relies on our “school prayer” cases, Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), and School Dist. of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Ante, at 2658. But whatever the merit of those cases, they do not support, much less compel, the Court's psycho-journey. In the first place, Engel and Schempp do not constitute an exception to the rule, distilled from historical practice, that public ceremonies may include prayer, see supra, at 2679-2681; rather, they simply do not fall within the scope of the rule (for the obvious reason that school instruction is not a public ceremony). Second, we have made clear our understanding that school prayer occurs within a framework in which legal coercion to attend school ( i.e., coercion under threat of penalty) provides the ultimate backdrop. In Schempp, for example, we emphasized that the prayers were “prescribed as part of the curricular activities of students who are required by law to attend school.” 374 U.S., at 223, 83 S.Ct., at 1572 (emphasis added). Engel's suggestion that the school prayer program at issue there-which permitted students “to remain silent or be excused from the room,” 370 U.S., at 430, 82 S.Ct., at 1266-involved “indirect coercive pressure,” id., at 431, 82 S.Ct., at 1267, should be understood against this backdrop of legal coercion. The question whether the opt-out procedure in Engel sufficed to dispel the coercion resulting from the mandatory attendance requirement is quite different from the question whether forbidden coercion exists in an environment **2685 utterly devoid of legal compulsion. And finally, our school prayer cases turn in part on the fact that the classroom is inherently an instructional setting, and daily prayer there-where parents are not present to counter “the students' emulation of teachers as role models and the children's susceptibility to peer pressure,” Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 2578, 96 L.Ed.2d 510 (1987)-might be thought to raise special concerns regarding state interference with the liberty of parents to direct the religious upbringing of their children: “Families entrust public*644 schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.” Ibid.; see Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). Voluntary prayer at graduation-a one-time ceremony at which parents, friends, and relatives are present-can hardly be thought to raise the same concerns.

IV

Our Religion Clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions. Foremost among these has been the so-called Lemon test, see Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), which has received well-earned criticism from many Members of this Court. See, e.g., County of Allegheny, 492 U.S., at 655-656, 109 S.Ct., at 3134 (opinion of KENNEDY, J.); Edwards v. Aguillard, supra, 482 U.S., at 636-640, 107 S.Ct., at 2605-2607 (SCALIA, J., dissenting); Wallace v. Jaffree, 472 U.S., at 108-112, 105 S.Ct., at 2516-2518 (REHNQUIST, J., dissenting); Aguilar v. Felton, 473 U.S. 402, 426-430, 105 S.Ct. 3232, 3245-3247, 87 L.Ed.2d 290 (1985) (O'CONNOR, J., dissenting); Roemer v. Board of Pub. Works of Md., 426 U.S. 736, 768-769, 96 S.Ct. 2337, 2355, 49 L.Ed.2d 179 (1976) (WHITE, J., concurring in judgment). The Court today demonstrates the irrelevance of Lemon by essentially ignoring it, see ante, at 2655, and the interment of that case may be the one happy byproduct of the Court's otherwise lamentable decision. Unfortunately, however, the Court has replaced Lemon with its psycho-coercion test, which suffers the double disability of having no roots whatever in our people's historic practice, and being as infinitely expandable as the reasons for psychotherapy itself.

Another happy aspect of the case is that it is only a jurisprudential disaster and not a practical one. Given the odd basis for the Court's decision, invocations and benedictions will be able to be given at public school graduations next *645 June, as they have for the past century and a half, so long as school authorities make clear that anyone who abstains from screaming in protest does not necessarily participate in the prayers. All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country.

* * *

The reader has been told much in this case about the personal interest of Mr. Weisman and his daughter, and very little about the personal interests on the other side. They are not inconsequential. Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one's room. For most believers it is not that, and has never **2686 been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the “protection of divine Providence,” as the Declaration of Independence put it, not just for individuals but for societies; because they believe God to be, as Washington's first Thanksgiving Proclamation put it, the “Great Lord and Ruler of Nations.” One can believe in the effectiveness of such public worship, or one can deprecate and deride it. But the longstanding American tradition of prayer at official ceremonies displays with unmistakable clarity that the Establishment Clause does not forbid the government to accommodate it.

The narrow context of the present case involves a community's celebration of one of the milestones in its young citizens'*646 lives, and it is a bold step for this Court to seek to banish from that occasion, and from thousands of similar celebrations throughout this land, the expression of gratitude to God that a majority of the community wishes to make. The issue before us today is not the abstract philosophical question whether the alternative of frustrating this desire of a religious majority is to be preferred over the alternative of imposing “psychological coercion,” or a feeling of exclusion, upon nonbelievers. Rather, the question is whether a mandatory choice in favor of the former has been imposed by the United States Constitution. As the age-old practices of our people show, the answer to that question is not at all in doubt.

I must add one final observation: The Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration-no, an affection-for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated. To deprive our society of that important unifying mechanism, in order to spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law.

For the foregoing reasons, I dissent.

505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467, 60 USLW 4723, 75 Ed. Law Rep. 43

CHAPTER SEVEN

United States District Court S. D. New York.

HAVILAND & CO., Incorporated, Plaintiff,

v.

MONTGOMERY WARD & CO., Incorporated, Johann Haviland China Corporation, Rosenthal Glass & Silver Corporation, Arthur Scholder, and

Porzellanfabrik Waldershof A.G., vormals Johann Haviland, Defendants.

Dec. 31, 1962.

Action involving plaintiff's trademark. Defendants served a notice to take deposition of plaintiff by chairman of its board of directors, a resident of France, and plaintiff moved to vacate the notice on ground the officer whose testimony was sought was too old and too ill to travel or to be examined upon oral deposition. The District Court, Weinfeld, J., held that in view of showing that officer in question had personal knowledge of issues of plaintiff's and defendants' asserted claims of title, laches and agreements touching upon the marks, defendants were entitled to take his deposition, but in view of his 80 years of age and claimed illness, plaintiff would be given option of having his deposition taken at his residence or some other convenient place in France, conditioned upon payment by plaintiff to defendants of expenses, otherwise the deposition would be directed to be taken in New York.

Order in accordance with opinion.

In view of showing that officer of French corporate plaintiff had personal knowledge of plaintiff's and defendants' asserted claims of title, laches, and agreements touching upon trademarks involved, defendants were entitled to take plaintiff's deposition, but in view of his 80 years of age and claimed illness, plaintiff would be given option of having his deposition taken at his residence or some other convenient place in France, conditioned upon payment by plaintiff to defendants of expenses, otherwise the deposition would be directed to be taken in New York.

*579 Pennie, Edmonds, Morton, Barrows & Taylor, New York City, for plaintiff. Charles E. McKenney, New York City, of counsel.

Spiro Felstiner & Prager, New York City, for defendants. William W. Prager, New York City, of counsel. WEINFELD, District Judge.

This litigation revolves about a trademark ‘Haviland’ claimed by plaintiff, which is used on merchandise, the sale of which runs into millions of dollars annually.

More than two years ago the defendants served a notice to take the deposition of the plaintiff by the Chairman of its Board of Directors, resident in Limoges, France. No action was taken to vacate that notice until recently when the defendants pressed for the examination, whereupon the plaintiff made the present motion to vacate the notice (including a subsequent one served by the defendants). The principal ground for vacatur of the notice is that William D. Haviland, the officer whose testimony is sought, is too old (eighty years) and too ill to travel or to be examined upon oral deposition.

As to the claim of physical incapacity to attend here or to be deposed orally, this issue was raised for the first time eighteen months after the service of the original notice. A physician submitted an affidavit that William D. Haviland has suffered since 1952 from a heart condition, for which the doctor has prescribed rest, absence of any effort, small walks, confinement to his home in windy or cold weather, and prohibition of any travel. The doctor concludes: ‘It would also be prohibited, as regards the physical aspect and while taking into consideration the necessity of moral tranquility, to make an appearance at a lawsuit even if the latter were to take place in Limoges, and, still more so, in the United States.’

Giving full weight to the physician's medical judgment, a fair reading of the *580 affidavit indicates that the proposed witness would be able, without impairment to his health, to testify for limited periods each day at his home or some other convenient place at Limoges. The force of the affidavit is considerably weakened by the references to illnesses not of an uncommon nature, going back to 1941 and 1949, and which have not during the succeeding years prevented him from carrying on business activities on behalf of the plaintiff. It is not unusual in this Court to require defendants, with physical ailments similar to and even more aggravated than that of the witness, to proceed in a criminal prosecution, with its greater emotional impact upon them than would be the case in a civil suit, but for limited periods instead of the usual hours of trial. A similar provision for the protection of the witness to be deposed can readily be provided.

It is also urged that the deposition of William D. Haviland is not necessary, since all the relevant facts have been obtained through the deposition of plaintiff's president. Of course, if such is the fact, then he ought not to be examined. On the other hand, the defendants should not be restricted if the deposition is reasonably calculated to lead to the discovery of admissible evidence touching upon the defense.

William D. Haviland has been active in the affairs of the plaintiff since 1919. The plaintiff claims title to trade-marks in issue through him. Thus, it appears his testimony is important and may be of significance, particularly on the issue of laches with respect to the defendants' use of its trade-mark claimed to infringe on the plaintiff's. The papers on this motion indicate that William D. Haviland has personal knowledge of the issues of plaintiff's and defendants' asserted claims of title, laches and agreements touching upon the marks, as to which an officer of plaintiff who has thus far been examined has denied knowledge.

The plaintiff has selected this forum to enforce its rights and necessarily must expect that its officers and managing agents will be subjected to its process.FN1 Ordinarily, the plaintiff's deposition should be taken in this District, but in view of William D. Haviland's age and the claim of illness, it may, at plaintiff's option, be taken at his residence or some other convenient place at Limoges, France, conditioned, however, upon payment by the plaintiff to the defendants of first class air travel for its counsel, a per diem allowance for necessary attendance upon such deposition, and a reasonable counsel fee for attendance thereat, to be fixed in the order to be entered hereon; otherwise, the deposition shall be taken at this Courthouse. FN2 The order shall contain an appropriate provision that the taking of testimony shall be for limited periods each day, consistent with Haviland's health, and shall continue from day to day until completed.

FN1. See V. O. Machinoimport v. Clark Equipment Co., 11 F.R.D. 55, 58 (S.D.N.Y.1951).

FN2. Cf. Morrison Export Co. v. Goldstone, 12 F.R.D. 258 (S.D.N.Y.1952); Worth v. Trans World Films, Inc., 11 F.R.D. 197 (S.D.N.Y.1951).

S.D.N.Y., 1962

HAVILAND & CO. v. MONTGOMERY WARD & CO.

31 F.R.D. 578, 6 Fed.R.Serv.2d 573

United States Court of Appeals, Second Circuit.

Samuel SIMBLEST, Plaintiff-Appellant,

v.

Joseph MAYNARD, Defendant-Appellee.

No. 661, Docket 34285.

Argued April 1, 1970.

Decided May 12, 1970.

Appeal from judgment n.o.v. in favor of defendant entered in the United States District Court for the District of Vermont, Bernard J. Leddy, Chief Judge, after verdict in favor of plaintiff in diversity negligence action arising out of intersection collision between fire engine and passenger vehicle. The Court of Appeals, Timbers, District Judge, held that plaintiff, who was traveling in westerly direction and, until it was 12 feet away, did not see fire engine which was traveling in southerly direction and which, according to all witnesses except plaintiff, was sounding siren or displaying flashing red light, was guilty of contributory negligence, regardless of whether state or federal standard is applied.

Affirmed.

Evidence in action arising out of intersectional collision between automobile and fire engine failed to establish circumstances under which doctrine of last clear chance could be asserted against driver of fire engine.

*2 Robert Grussing, III, Brattleboro, Vt., for plaintiff-appellant.

Robert H. Erdmann, Burlington, Vt. (Wick, Dinse & Allen, Burlington, Vt., on the brief), for defendant-appellee.

Before KAUFMAN and FEINBERG, Circuit Judges, and TIMBERS, District judge. FNa1

FNa1. Chief Judge of the District of Connecticut, sitting by designation.

TIMBERS, District Judge:

We have before us another instance of Vermont justice- this time at the hands of a federal trial judge who, correctly applying the law, set aside a $17,125 plaintiff's verdict and entered judgment n.o.v. for defendant, Rule 50(b), Fed.R.Civ.P., in a diversity negligence action arising out of an intersection collision between a passenger vehicle driven by plaintiff and a fire engine driven by defendant in Burlington, Vermont, during the electric power blackout which left most of New England in darkness on the night of November 9, 1965. We affirm.

I.

Plaintiff, a citizen and resident of New Hampshire, was 66 years of age at the time of the accident. He was a distributor of reference books and had been in Burlington on business for three days prior to the accident. He was an experienced driver, having driven an average of some 54,000 miles per year since 1922. He was thoroughly familiar with the intersection in question. His eyesight was excellent and his hearing was very good.

Defendant, a citizen of Vermont, had resided in Burlington for 44 years. He had been a full time fireman with the Burlington Fire Department for 17 years. He was assigned to and regularly drove the 500 gallon pumper which he was driving at the time of the accident. He was thoroughly familiar with the intersection in question.

The accident occurred at the intersection of Main Street (U.S. Route 2), which runs generally east and west, and South Willard Street (U.S. Routes 2 and 7), which runs generally north and south. The neighorhood is partly business, partly residential. At approximately the center of the intersection there was an overhead electrical traffic control signal designed to exhibit the usual red and green lights.

At the time of the accident, approximately 5:27 P.M., it was dark, traffic was light and the weather was clear. Plaintiff was driving his 1964 Chrysler station wagon in a westerly direction on Main Street, approaching the intersection. Defendant was driving the fire engine, in response to a fire alarm, in a southerly direction on South Willard Street, also approaching the intersection.

Plaintiff testified that the traffic light was green in his favor as he approached and entered the intersection; but that when he had driven part way through the intersection the power failure extinguished all lights within his range of view, including the traffic *3 light. All other witnesses, for both plaintiff and defendant, testified that the power failure occurred at least 10 to 15 minutes prior to the accident; and there was no evidence, except plaintiff's testimony, that the traffic light was operating at the time of the accident.

Plaintiff also testified that his speed was 12 to 15 miles per hour as he approached the intersection. He did not look to his right before he entered the intersection;FN1 after looking to his left, to the front and to the rear (presumably through a rear view mirror), he looked to his right for the first time when he was one-half to three-quarters of the way through the intersection and then for the first time saw the fire engine within 12 feet of him. He testified that he did not hear the fire engine's siren or see the flashing lights or any other lights on the fire engine.

FN1. Plaintiff has stated in his brief in this Court that ‘as he approached the intersection, he did look to his right’ (Appellant's Brief, 5); and he emphasizes ‘the only direct evidence on this point . . . from the plaintiff who testified as follows:‘Q. You did look to the right? A. Oh yes, sir. I sure did.“ (Appellant's Brief, 12-13.)We find this testimony, lifted out of context, unfortunately to have created a mistaken impression on a critical issue in the case.Plaintiff's complete direct testimony as to when he looked to his right, and in the sequence given, is as follows:‘Direct Examination (By Mr. Grussing)Q. Now, tell us, Mr. Simblest, in your own words, just what occurred when you entered that intersection. A. Well, I will repeat. I had the ‘green’ light with me, proceeded through, was talf to 3/4 through the street, looked to my right, and within 12 feet of me, here is a big, massive fire truck . . .. (Tr. 17)Q. Did you, as you approached this intersection, did you look to your right at all to see what was coming out of the intersection? A. Coming into an intersection with people ready to go across, with fairly decent eyesight I could see from the left to the right to the front, and I had already watched in the rear before they got to that angle.Q. You did look to the right? A. Oh, yes, sir. I sure did.Q. Were you able, or did you see this truck approaching? A. Within ‘12’ feet. It was too late.Q. The first time you saw it, it was within 12 feet of you? A. That is right.' (Tr. 19)

Plaintiff further testified that his view to the north (his right) as he entered the intersection was obstructed by various objects, including traffic signs, trees on Main Street and a Chamber of Commerce information booth on Main Street east of the intersection. All of the evidence, including the photographs of the intersection, demonstrates that, despite some obstruction of plaintiff's view to the north, he could have seen the approaching fire engine if he had looked between the obstructions and if he had looked to the north after he passed the information booth. One of plaintiff's own witnesses, Kathleen Burgess, testified that ‘maybe five to ten seconds previous to when he was struck he might have seen the fire truck,’ referring to the interval of time after plaintiff passed the information booth until the collision.

Defendant testified that, accompanied by Captain Fortin in the front seat, he drove the fire engine from the Mansfield Avenue Fire Station, seven and one-half blocks away from the scene of the accident, in the direction of the fire on Maple Street. While driving in a southerly direction on South Willard Street and approaching the intersection with Main Street, the following warning devices were in operation on the fire engine: the penetrator making a wailing sound; the usual fire siren; a flashing red light attached to the dome of the fire engine; two red lights on either side of the cab; and the usual headlights. Defendant saw plaintiff's car east of the information booth and next saw it as it entered the intersection. Defendant testified that he was traveling 20 to 25 miles per hour as he approached *4 the intersection; FN2 he slowed down, applied his brakes and turned the fire engine to his right, in a westerly direction, in an attempt to avoid the collision. He estimated that he was traveling 15 to 20 miles per hour at the time of impact. A police investigation found a 15 foot skid mark made by the fire engine but no skid marks made by plaintiff's car.

FN2. The maximum speed attributed to the fire engine as it approached the intersection was 30 to 35 miles per hour (testimony of Captain Fortin).

The fire engine struck plaintiff's car on the right side, in the area of the fender and front door. Plaintiff's head struck the post on the left side of his car, causing him to lose consciousness for about a minute. He claims that this injury aggravated a chronic pre-existing degenerative arthritic condition of the spine.

Other witnesses who virtually bracketed the intersection from different vantage points were called. Frank Valz, called by plaintiff, was looking out a window in a building on the northeast corner of the intersection; he saw the fire engine when it was a block north of the intersection; he heard its siren and saw its flashing red lights. Kathleen Burgess, another of plaintiff's witnesses (referred to above), was driving in a northerly direction on South Willard Street, just south of the intersection; seeing the fire engine when it was a block north of the intersection, she pulled over to the curb and stopped; she saw its flashing lights, but did not hear its siren. Holland Smith and Irene Longe, both called by defendant, wee in the building at the southwest corner of the intersection; as the fire engine approached the intersection, they each heard its warning signals and saw its flashing lights in operation.

Defendant's motions for a directed verdict at the close of plaintiff's case and at the close of all the evidence having been denied and the jury having returned a plaintiff's verdict, defendant moved to set aside the verdict and the judgment entered thereon and for entry of judgment n.o.v. in accordance with his motion for a directed verdict. Chief Judge Leddy filed a written opinion granting defendant's motion.

On appeal plaintiff urges that the district court erred in granting defendant's motion for judgment n.o.v. or, in the alternative, in declining to charge the jury on the doctrine of last clear chance. We affirm both rulings of the district court.

II.

[1] [pic][2] [pic]In determining whether the motion for judgment n.o.v. should have been granted, a threshold question is presented as to the correct standard to be applied. This standard has been expressed in various ways. Simply stated, it is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached. See, e.g., Brady v. Southern Railway Company, 320 U.S. 476, 479-80 (1943); O'Connor v. Pennsylvania Railroad Company, 308 F.2d 911, 914-15 (2 Cir. 1962). See also 5 Moore's Federal Practice P50.02(1), at 2320-23 (2d ed. 1968); Wright, Law of Federal Courts § 95, at 425 (2d ed. 1970). On a motion for judgment n.o.v., the evidence must be viewed in the light most favorable to the party against whom the motion is made and he must be given the benefit of all reasonable inferences which may be drawn in his favor from that evidence. O'Connor v. Pennsylvania Railroad Company, supra, at 914-15; 5 Moore, supra, at 2325; Wright, supra, at 425.

[3] [pic]We acknowledge that it has not been settled in a diversity action whether, in considering the evidence in the light most favorable to the party against whom the motion is made, the court may consider all the evidence or only the evidence favorable to such party and the uncontradicted, unimpeached evidence unfavorable to him. Under Vermont law, *5 all the evidence may be considered. Kremer v. Fortin, 119 Vt. 1, 117 A.2d 245 (1955) (intersection collision between fire engine and passenger car). Plaintiff here urges that under the federal standard only evidence favorable to him should have been considered, citing Wilkerson v. McCarthy, 336 U.S. 53, 57 (1949). As plaintiff reads that case, the court below should not have considered anything else, not even the uncontradicted, unimpeached evidence unfavorable to him. However, we are committed to a contrary view in a diversity case. O'Connor v. Pennsylvania Railroad Company, supra.

The Supreme Court at least twice has declined to decide whether the state or federal standard as to the sufficiency of the evidence is controlling on such motions in diversity cases. Mercer v. Theriot, 377 U.S. 152, 156 (1964) (per curiam); Dick v. New York Life Insurance Company, 359 U.S. 437, 444-45 (1959). Our Court likewise has declined to decide this issue in recent cases. Mull v. Ford Motor Company, 368 F.2d 713, 716 n. 4 (2 Cir. 1966); Hooks v. New York Central Railroad Company, 327 F.2d 259, 261 n. 2 (2 Cir. 1964); Jacobs v. Great Atlantic & Pacific Tea Company, 324 F.2d 50, 51 n. 1 (2 Cir. 1963); Evans v. S. J. Groves & Sons Company, 315 F.2d 335, 342 n. 2 (2 Cir. 1963). See 5 Moore, supra, at 2347-50.FN3

FN3. Assuming that the federal standard were controlling, plaintiff's contention that under that standard evidence introduced by the moving party may not be considered is open to question. Plaintiff relies on Wilkerson v. McCarthy, 336 U.S. 53, 57 (1949). But most Courts of Appeals have held that evidence introduced by the moving party may be considered, distinguishing Wilkerson on the ground that FELA cases are sui generis. 5 Moore, supra, at 2329.See especially the comprehensive opinion of the Fifth Circuit in Boeing Company v. Shipman, 411 F.2d 365 (5 Cir. 1969) (en banc), holding (1) that in diversity cases a federal rather than state standard should be applied in testing the sufficiency of the evidence in connection with motions for a directed verdict and for judgment n.o.v.; (2) that the FELA standard for testing the sufficiency of the evidence on such motions is not applicable in diversity cases; and (3) that the federal standard to be applied in diversity cases requires the court to consider ‘all of the evidence- not just that evidence which supports the nonmover's case- but in the light and with all reasonable inferences most favorable to the party opposed to the motion.’ 411 F.2d at 374.

[4] [pic]Our careful review of the record in the instant case leaves us with the firm conviction that, under either the Vermont standard or the more restrictive federal standard, plaintiff was contributorily negligent as a matter of law; and that Chief Judge Leddy correctly set aside the verdict and entered judgment for defendant n.o.v. O'Connor v. Pennsylvania Railroad Company, supra, at 914; Presser Royalty Company v. Chase Manhattan Bank,272 F.2d 838, 840 (2 Cir. 1959).

Under the Vermont standard which permits all the evidence to be considered, Kremer v. Fortin, supra, plaintiff was so clearly guilty of contributory negligence that no further dilation is required.

Under the more restrictive federal standard- i.e., considering only the evidence favorable to plaintiff and the uncontradicted, unimpeached evidence unfavorable to him- while a closer question is presented than under the Vermont standard, we nevertheless hold that plaintiff was guilty of contributory negligence as a matter of law.FN4

FN4. We emphasize that, solely for the purpose of testing the validity of plaintiff's claim under the federal standard, we assume without deciding that the federal standard is as stated. But compare, e.g., Boeing Company v. Shipman, supra note 3, at 373-75.

In our view, applying the federal standard, the critical issue in the case is whether the fire engine was sounding a siren or displaying a red light as it approached the intersection immediately before the collision. Upon this critical issue, Chief Judge Leddy accurately and *6 succinctly summarized the evidence as follows:

‘All witnesses to the accident, except the plaintiff, testified that the fire truck was sounding a siren or displaying a flashing red light. All of the witnesses except Miss Burgess and the plaintiff testified that the fire truck was sounding its siren and displaying a flashing red light.’

The reason such evidence is critical is that under Vermont law, 23 V.S.A. § 1033, upon the approach of a fire department vehicle which is sounding a siren or displaying a red light, or both, all other vehicles are required to pull over to the right lane of traffic and come to a complete stop until the emergency vehicle has passed.FN5 Since the emergency provision of this statute supersedes the general right of way statute regarding intersections controlled by traffic lights, 23 V.S.A. § 1054, the lone testimony of plaintiff that the traffic light was green in his favor as he approached and entered the intersection is of no moment. And since the emergency provision of 23 V.S.A. § 1033 becomes operative if either the siren is sounding or a red light is displayed on an approaching fire engine, we focus upon plaintiff's own testimony that he did not see the fire engine's flashing light, all other witnesses having testified that the red light was flashing.

FN5. 23 V.S.A. § 1033, in relevant part, provides:‘Except as hereinafter provided, all vehicles shall give the right of way to other vehicles approaching at intersecting highways from the right; and shall have the right of way over those approaching from the left; provided that upon the approach of an ambulance, police or fire department vehicle which is sounding a siren or displaying a red light or both, all other vehicles shall pull to the right of the lane of traffic and come to a complete stop until such emergency vehicle has passed . . ..’Violation of this statute under Vermont law constitutes prima facie evidence of negligence. Dashnow v. Myers, 121 Vt. 273, 155 A.2d 859 (1959).

As stated above, plaintiff testified that he first saw the fire engine when he was one-half to three-quarters of the way through the intersection and when the fire engine was within 12 feet of his car. At the speed at which the fire engine was traveling, plaintiff had approximately one-third of a second FN6 in which to observe the fire engine prior to the collision. Accepting plaintiff's testimony that his eyesight was excellent, and assuming that the fire engine's flashing red light was revolving as rapidly as 60 revolutions per minute, plaintiff's one-third of a second observation does not support an inference that the light was not operating, much less does it constitute competent direct evidence to that effect. Opportunity to observe is a necessary ingredient of the competency of eyewitness evidence. Plaintiff's opportunity to observe, accepting his own testimony, simply was too short for his testimony on the operation of the light to be of any probative value whatsoever.

FN6. This is the arithmetical mean (.322 seconds) between the maximum and minimum time intervals, according to the evidence, within which plaintiff could have observed the fire engine travel 12 feet. The minimum interval (.230 seconds) is based on Captain Fortin's testimony that the fire engine was traveling 35 miles per hour as it approached the intersection (supra note 2); the maximum interval (.414 seconds) is based on defendant's testimony that he was traveling 20 miles per hour (supra pages 3 and 4).

[5] [pic]Plaintiff's testimony that he did not see the fire engine's flashing red light, in the teeth of the proven physical facts, we hold is tantamount to no proof at all on that issue. O'Connor v. Pennsylvania Railroad Company, supra, at 915. As one commentator has put it, ‘. . . the question of the total absence of proof quickly merges into the question whether the proof adduced is so insignificant as to be treated as the equivalent of the absence of proof.’ 5 Moore, supra, at 2320. If plaintiff had testified that he had not looked to his right at all, he of course would have been *7 guilty of contributory negligence as a matter of law. We hold that his testimony in fact was the equivalent of his saying that he did not look at all.

Chief Judge Leddy concluded that plaintiff was guilty of contributory negligence as a matter of law; accordingly, he set aside the verdict and entered judgment n.o.v. for defendant. We agree.

III.

[6] [pic]Plaintiff urges in the alternative the claim that the district court erred in declining to charge the jury on the doctrine of last clear chance; of course this doctrine is relevant only if plaintiff was guilty of contributory negligence. Since we hold, as did Chief Judge Leddy, that plaintiff was contributorily negligent, his last clear chance claim is properly before us.

Moreover, we reject defendant's contentions that plaintiff failed properly to plead the doctrine of last clear chance (the complaint was amended to reflect such claim); and that plaintiff's requests to charge on the doctrine consisted of mere abstract propositions of law (the trial judge denied plaintiff's request to charge on last clear chance on the ground that ‘I do not think there is any evidence to support it’).

[7] [pic]We turn directly to whether there was evidence sufficient to warrant charging the jury on the issue of last clear chance. In addition to the usual essential elements of last clear chance, Vermont law requires the existence of a period of time during which plaintiff, in the exercise of due care, could not have avoided the accident and during which defendant, in the exercise of due care, could have avoided the accident. Spencer v. Fondry, 122 Vt. 149, 152, 167 A.2d 372 (1960).

Plaintiff's claim regarding last clear chance is pegged entirely on the theory that, there being no traffic behind his car, defendant should have seen such absence of traffic and should have had sufficient time to turn the fire engine to his left, rather than to his right, and thus to maneuver it into the space to the rear of plaintiff's car.

We agree with Chief Judge Leddy's ruling, directed precisely to plaintiff's claim in this respect, in refusing to charge on the doctrine of last clear chance: ‘The evidence is that, as I recall it, that while there was sufficient space behind the rear of the plaintiff's car and the easterly line of Willard Street, all of the testimony is that at the rate of speed the truck was going and because of the closeness of the two vehicles, it was impossible for the truck to make a maneuvering to go through that space, and that was testified to by the driver and also Miss Burgess who was parked on the opposite side of the intersection.’

[8] [pic]We hold, assuming arguendo there was an interval of time during which plaintiff in the exercise of due care could not have avoided the accident, that- based on the proven physical facts regarding the speed of the fire engine and the proximity of the two vehicles referred to above- the overwhelming, uncontroverted evidence demonstrates that defendant in the exercise of due care simply could not have avoided the accident. Spencer v. Fondry, supra, at 152.

CHAPTER EIGHT

United States District Court,

S.D. New York.

UNITED STATES of America

v.

Bernard L. MADOFF, Defendant.

No. 09 Crim. 213 (DC).

June 17, 2009.

Background: In prosecution for securities fraud and other crimes, news agencies moved court to unseal e-mails submitted to the United States Attorney's Office by defendant's victims.

Holdings: The District Court, Chin, J., held that:

(1) privacy rights of victims who objected to disclosure of their identifying information outweighed presumption of access;

(2) presumption of access outweighed privacy rights of victims who did not object to disclosure of their identifying information ;

(3) First Amendment right of access was satisfied; and

(4) other documents relating to governments efforts would remain under seal.

Ordered accordingly.

Interests of law enforcement outweighed the common law and First Amendment right of access to the sealed documents in securities fraud prosecution which pertained to the government's efforts to retrieve evidence from foreign countries, its efforts to secure forfeiture of assets belonging to defendant, and voluntary restraint agreements (VRAs) between certain individuals, including defendant's wife, and the United States Attorney's Office; disclosing the details of the government's efforts to obtain evidence would undoubtedly hamper the investigation, as the individuals and entities under investigation would be put on notice, making public the government's efforts to secure forfeiture of assets could negatively impact those efforts, disclosing the substance of the VRAs could undermine the government's ability to maximize recovery of assets for victims, and the victims and the public at large were best served by maintaining the sensitive and confidential information under seal. U.S.C.A. Const.Amend. 1.

*422 Lev L. Dassin, Esq., Acting United States Attorney for the Southern District of New York, by Lisa A. Baroni, Esq., Sharon E. Frase, Esq., New York, NY.

Indira Satyendra, Esq., New York, NY, for ABC, Inc.

Hilary Lane, Esq., New York, NY, for NBC Universal, Inc.

Carlotta Cassidy, Esq., New York, NY, for Fox News Network, LLC.

MEMORANDUM DECISION

CHIN, District Judge.

In this case, defendant Bernard L. Madoff has been charged in an eleven-count information with securities fraud and other crimes. On March 12, 2009, he pled guilty to all eleven counts.

Prior to the guilty plea, numerous victims submitted emails to the United States Attorney's Office, some describing the impact Madoff's crimes had on their lives and others asking for an opportunity to be heard at the plea proceedings. With the permission of the Court, the Government filed the emails under seal. Certain other documents in the case have also been filed under seal.

ABC, Inc., NBC Universal, Inc., and Fox News Network, LLC (collectively, the “Media”) request that the emails be unsealed and that the Court make specific *423 findings with respect to the other sealed documents. The Government argues that the majority of the victims' emails (156 out of a total of 188) should be redacted as to the victims' personal identifying information. With respect to the other documents, the Government argues that they should remain sealed for now, except for one letter that the Government consents to releasing in redacted form.

BACKGROUND

On March 6, 2009, the Government filed a notice of its intent to proceed in the case by information, thereby indicating that Madoff intended to waive his right to be prosecuted by indictment. See Fed.R.Crim.P. 7(b) (“An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant-in open court and after being advised of the nature of the charge and of the defendant's rights-waives prosecution by indictment.”). The same day, I issued an order setting forth, inter alia, the procedures by which victims of Madoff's crimes (1) would be notified about court proceedings, and (2) could express their desire to be heard on the issues raised in this case. Specifically, the order authorized the Government to notify victims via the Internet and stated:

The Internet posting by the Government will specify that the Court, in order to conduct orderly proceedings and to maintain a reasonable schedule, requires notice prior to the plea proceeding scheduled for March 12, 2009, from potential victims who wish to be heard during that proceeding. Therefore, any potential victim who wishes to heard shall send a notice by 10:00 a.m. on March 11, 2009, to the United States Attorney's Office.... The Court will rule on whether, and the manner in which, victims may be heard at the proceeding.

The Government collected the emails and provided them to the Court and defense counsel on March 9 and 11, 2009. Per the Government's request, I ordered that the emails be filed under seal.

By letter to the Court dated March 10, 2009, NBC requested that the documents in this case be unsealed. On March 17, 2009, I issued an order directing the Government to confer with the defense and NBC in an effort to agree on what may be unsealed. To the extent that the parties could not agree on items to be unsealed, the Government was to address the Court in writing and NBC was to respond. The parties have done so. The defense takes no position on the unsealing of documents. ABC and Fox News have since joined in NBC's request.

Eleven items (or sets of items, including three sets of emails) have been sealed in this case thus far. The Government has not yet publicly described the other items filed under seal, except for the Government's March 6, 2009 letter to Judge McKenna, which the Government agrees should be made public in redacted form. The Government has submitted, in camera, a letter dated March 31, 2009 describing the sealed documents. The letter will be filed now, under seal.FN1 The emails, the March 6, 2009 letter, and the other sealed documents are discussed in turn.

FN1. The Government's March 31, 2009 letter describes in detail the substance of the redacted sections of the March 6, 2009 letter and the other sealed items. Because I conclude that these items shall remain sealed, the March 31, 2009 letter must also be filed under seal.

DISCUSSION

A. Applicable Law

1. The Right of Access

[1] [pic][2] [pic]Under common law, the public has a “general right to inspect and copy *424 public records and documents, including judicial records and documents.” Nixon v. Warner Comms., Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Similarly, pursuant to the First Amendment, the public has a “qualified ... right to attend judicial proceedings and to access certain judicial documents.” Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir.2004); see also Press-Enterprise Co. v. Superior Court of Cal., 478 U.S. 1, 9, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986); In re New York Times Co., 828 F.2d 110, 114 (2d Cir.1987). “Transparency is pivotal to public perception of the judiciary's legitimacy and independence.” United States v. Aref, 533 F.3d 72, 83 (2d Cir.2008).

a. Common Law Presumption of Access

[3] [pic]In determining whether a document submitted to the Court will be made public pursuant to the common law right of access, a court must: (1) determine that it is a judicial document; (2) determine the weight of the presumption of access attached to the specific judicial document; and (3) balance countervailing interests against the presumption of access. See Lugosch v. Pyramid Co., 435 F.3d 110, 119-20 (2d Cir.2006).

[4] [pic][5] [pic][6] [pic][7] [pic][8] [pic]An item is deemed a judicial document if it is “relevant to the performance of the judicial function and useful in the judicial process.” United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995) (“ Amodeo I ”). The weight of the presumption of access attached to a judicial document is determined “by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.” United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir.1995) (“ Amodeo II ”). The Second Circuit has explained that the weight of presumption will fall “somewhere on a continuum.” Id. For example, the weight of the presumption of access to evidence adduced at trial and documents used by the parties in moving for and opposing summary judgment is great. See, e.g., Lugosch, 435 F.3d at 123; In re Application of National Broadcasting Co., Inc., 635 F.2d 945, 952 (2d Cir.1980). In contrast, “documents that play no role in the performance of Article III functions, such as those passed between the parties in discovery,” are granted little, if any, weight. Amodeo II, 71 F.3d at 1050. Additionally, the public's “ultimate interest in the case should not affect the weight of the presumption.” Lugosch, 435 F.3d at 123.

[9] [pic]The countervailing factors to be balanced against the right of access are specific to the facts of each case. In this case, the Court must consider the privacy interests of the victims and the danger of impairing law enforcement. The Second Circuit has held that “[t]he privacy interests of innocent third parties ... should weigh heavily in a court's balancing equation.” Amodeo II, 71 F.3d at 1050 (internal quotations and citations omitted). The Court has also understood that “[u]nlimited access, while perhaps aiding the professional and public monitoring of courts, might adversely affect law enforcement interests or judicial performance.” Id.

b. The First Amendment

In addition to the common law right of access, the public and the press have a “qualified First Amendment right to attend judicial proceedings and to access certain judicial documents.” Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir.2004); see also In re New York Times Co., 828 F.2d 110, 114 (2d Cir.1987). Courts have followed two different approaches to determine whether the First Amendment right to access attaches to a document. The first is the “experience *425 and logic” approach, which questions “whether the documents have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question.” Lugosch, 435 F.3d at 120 (internal quotations omitted). Courts following this approach “have generally invoked the common law right of access to judicial documents in support of finding a history of openness.” Hartford Courant Co., 380 F.3d at 92. The second approach “view[s] the media's and public's qualified right of access to judicial documents as derived from or a necessary corollary of the capacity to attend the relevant proceedings.” Id. at 93.

[10] [pic][11] [pic][12] [pic]Even if the First Amendment applies, the documents are not automatically made public. “Proceedings may be closed and ... documents may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” In re New York Times, 828 F.2d at 116 (internal quotations omitted). Moreover, when appropriate, the Court's findings may be entered under seal. Id.

2. Victims' Privacy Rights

The Justice for All Act of 2004 (the “Act”) confers specific rights on crime victims, including the “right to be treated with fairness and with respect for the victim's dignity and privacy.” 18 U.S.C. § 3771(a)(8). The Court is to ensure that crime victims are afforded the rights provided under the Act, including the right to reasonable notice of certain court proceedings and the right to be heard. 18 U.S.C. § 3771(a)(2), (a)(4), (b)(1). The Act provides that the victims and the Government may affirmatively assert the victims' rights by moving for relief in the district court, and, if necessary, in the court of appeals. 18 U.S.C. § 3771(d).

B. Application

1. The Emails

On March 28, 2009, the Government emailed the victims who had sent emails in response to the Court's March 6, 2009 order. The Government inquired as to whether the victims consented to the full disclosure of their correspondence. As of March 31, 2009, the Government divided the emails into three categories: (1) 32 emails from victims who consent to having their emails made public; (2) 41 emails from victims who object to the public disclosure of their correspondence; and (3) 115 emails from victims who have not indicated whether they consent or object to disclosure of their correspondence. The first set of emails has not been redacted. The victims' names, addresses, telephone numbers, and email addresses have been redacted from the second and third categories of emails. The Government has provided all the emails-the first set unredacted and the second and third sets redacted-to the Media.

The Media argues that the entirety of the email correspondences should be made public. In other words, the Media requests that the Court unseal the personal identifying information of all the victims who emailed the Government. The Government argues that the personal information should remain redacted based on the privacy rights of the victims. For the following reasons, the identifying information of the 41 victims who object to the disclosure of their correspondence shall remain under seal. The 115 emails from victims who have not indicated whether they object to disclosure shall be unsealed in their entirety.

a. Common Law

[13] [pic][14] [pic]The victims' emails are judicial documents. They were solicited by this Court's March 6, 2009 order and were *426 relevant to the performance of this Court's judicial function because they were used to determine the logistics of the March 12, 2009 plea proceedings. Accordingly, the presumption of access applies to the emails.

The weight of the presumption of access to the emails falls in the middle of the continuum. The emails were not intended to be, and indeed were not, to any significant extent, “part of the process of adjudication.” United States v. Sattar, 471 F.Supp.2d 380, 386 (S.D.N.Y.2006). Instead, they provided the Court with notice of those who sought to be heard. They were not, in themselves, the tools by which victims were heard by the Court. In contrast, in preparation for the sentencing of Madoff-scheduled for June 29, 2009-the Court advised victims in its May 14, 2009 order (later superseded by its May 20, 2009 order) that victims may submit letters as the tool by which they are heard by the Court. Because the letters are intended to be the means by which victims are heard, the Court also advised victims that the letters would be made part of the public record. The emails at issue in this opinion are different from the letters submitted regarding sentencing as the former were not intended to be the means by which victims were heard by the Court. Moreover, prior to the plea proceedings, victims were not provided advance notice that the emails would become part of the public record in this case.

On the other hand, the emails did not merely express a general desire by victims to be heard at the plea proceeding. If they had, I would conclude that the presumption of access to the emails is entitled to little or no weight. Many of the emails, however, addressed substantive aspects of the case and some referenced Madoff's bail status, which was at issue on March 12, 2009. Accordingly, I conclude that the presumption of access to the emails is granted moderate weight.

The presumption of access must be balanced against the victims' privacy rights. As expressed in the Act, victims have the “right to be treated with fairness and with respect for the[ir] dignity and privacy.” 18 U.S.C. § 3771(a)(8). It is this Court's duty, under the Act, to ensure that the victims are afforded their rights. 18 U.S.C. § 3771(b)(1). The Government has redacted the identifying information of victims who opposed unsealing, as well as those who have not indicated whether they oppose or consent to unsealing. These two groups of victims are addressed in turn.

The Government has provided the Court with statements from victims who object to their information becoming public. Examples include: (1) “This has already cost me and my family dearly and the pain is immeasurable. Having the press contact us will only serve to reopen wounds that will take years to heal.”; (2) “I do NOT consent for the safety of my family. More public information is a security issue.”; and (3) “I do NOT consent and do NOT want my correspondence or personal information released. That would be a huge invasion of privacy. I have already been through a lot due to the Madoff fraud and the release of this would certainly cause additional duress.” Based on the sentiments expressed by the victims who oppose unsealing and the Court's duty to treat the victims fairly and with respect for their dignity and privacy, I conclude that the countervailing privacy interests of the victims who oppose the unsealing of their emails is significant. I further note that the analysis is mostly academic. The substance of the emails has been made public. Because only the personal information has been redacted and the victims' privacy interests are significant, the presumption*427 of access to the emails is outweighed. Accordingly, the identifying information shall remain under seal for those victims who oppose disclosure of their correspondence.

With respect to the victims who have neither consented to nor opposed the disclosure of their correspondence, I conclude that the balance tips in the opposite direction. The Government has the authority under the Act to assert victims' rights and it has done so in this case. Nevertheless, the victims were given an adequate opportunity to object to the disclosure of their correspondence and have not done so. In addition, as the Media points out, the victims-as well as any member of the concerned public-were aware that this is an extremely high profile case with intense media coverage. Indeed, some victims intended their correspondence to serve as a tool to be heard on the substantive issues of the case. Some even expressed gratitude for the opportunity to address the Court via email. Given the victims' opportunity to object, the very public nature of the case, and the sentiments expressed in many of the emails, I conclude that the presumption of access outweighs the privacy interests of the victims who did not object to the unsealing of their correspondence. Accordingly, the identifying information of victims who did not affirmatively object to the unsealing of their correspondence shall be made public.FN2

FN2. Because the Government's March 28, 2009 email to victims only gave victims approximately four days to respond, the Government shall redact the identifying information of all victims who emailed an objection to the disclosure of his or her correspondence up to the date of this opinion.

b. The First Amendment

[15] [pic]For the reasons above, I conclude that the First Amendment right of access attaches to these emails. I further conclude that the First Amendment is satisfied.

As ordered above, the emails from victims who did not object to the unsealing of their correspondence will now be unsealed in their entirety. The emails with redactions are minimal. Only 41 out of 188 emails will be redacted. Furthermore, the redactions are “narrowly tailored” to preserve the privacy interests of the victims. The 41 emails have been provided to the Media; only the victims' identifying information has been redacted. Accordingly, the First Amendment is satisfied.

2. The March 6, 2009 Letter and Other Sealed Items

The Government argues that the other sealed documents should remain under seal, except its March 6, 2009 letter to Judge McKenna, which it concedes should be unsealed in part. I have reviewed, in camera, the Government's submissions regarding these sealed documents.

[16] [pic]As a general matter, the sealed information pertains to the ongoing efforts of law enforcement both in the United States and abroad to investigate the Madoff fraud and recover assets for victims. More specifically, the sealed items-including the redacted segments of the March 6, 2009 letter-pertains to three subjects of information: (1) the Government's efforts to retrieve evidence from foreign countries; (2) the Government's efforts to secure forfeiture of assets belonging to Madoff; and (3) voluntary restraint agreements (“VRAs”) between certain individuals, including Ruth Madoff, and the United States Attorney's Office.

The information relating to these three subjects shall remain under seal for the following reasons. First, disclosing the details of the Government's efforts to obtain evidence will undoubtedly hamper the investigation, as the individuals and entities*428 under investigation would be put on notice. Second, making public the Government's efforts to secure forfeiture of assets could negatively impact those efforts. Third, disclosing the substance of the VRAs could undermine the Government's ability to maximize recovery of assets for victims. Accordingly, the countervailing interests of law enforcement outweigh the common law and First Amendment right of access to the sealed documents. Moreover, the victims (and the public at large) are best served by maintaining the sensitive and confidential information under seal.

CONCLUSION

For the reasons stated above, the continued sealing of the information in this case-incorporating the revisions ordered by this opinion-is consistent with both the common law and First Amendment right of access to judicial documents. The Government shall provide the Court with the victims' emails-in both redacted and unredacted form as ordered by this opinion-and the Court will make them part of the public docket of this case. The March 6, 2009 letter, in redacted form, shall be made part of the public record as well. The Government has indicated that it may consent to the unsealing of some of the other sealed documents. The Government is hereby ordered to notify the Court of the status of the sealed documents by July 1, 2009.

SO ORDERED.

S.D.N.Y.,2009.

U.S. v. Madoff

Supreme Court of the United States

Ernesto A. MIRANDA, Petitioner,

v.

STATE OF ARIZONA.

Michael VIGNERA, Petitioner,

v.

STATE OF NEW YORK.

Carl Calvin WESTOVER, Petitioner,

v.

UNITED STATES.

STATE OF CALIFORNIA, Petitioner,

v.

Roy Allen STEWART.

Nos. 759-761, 584.

Argued Feb. 28, March 1 and 2, 1966.

Decided June 13, 1966.

Rehearing Denied No. 584 Oct. 10, 1966.

See 87 S.Ct. 11.

Criminal prosecutions. The Superior Court, Maricopa County, Arizona, rendered judgment, and the Supreme Court of Arizona, 98 Ariz. 18, 401 P.2d 721, affirmed. The Supreme Court, Kings County, New York, rendered judgment, and the Supreme Court, Appellate Division, Second Department, 21 A.D.2d 752, 252 N.Y.S.2d 19, affirmed, as did the Court of Appeals of the State of New York at 15 N.Y.2d 970, 259 N.Y.S.2d 857, 207 N.E.2d 527. The United States District Court for the Northern District of California, Northern Division, rendered judgment, and the United States Court of Appeals for the Ninth Circuit, 342 F.2d 684, affirmed. The Superior Court, Los Angeles County, California, rendered judgment and the Supreme Court of California, 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97, reversed. In the first three cases, defendants obtained certiorari, and the State of California obtained certiorari in the fourth case. The Supreme Court, Mr. Chief Justice Warren, held that statements obtained from defendants during incommunicado interrogation in police-dominated atmosphere, without full warning of constitutional rights, were inadmissible as having been obtained in violation of Fifth Amendment privilege against self-incrimination.

Judgments in first three cases reversed and judgment in fourth case affirmed.

Mr. Justice Harlan, Mr. Justice Stewart, and Mr. Justice White dissented; Mr. Justice Clark dissented in part.

John J. Flynn, Phoenix, Ariz., for petitioner.

Gary K. Nelson, Phoenix, Ariz., for respondent.

Telford Taylor, New York City, for State of New York, as amicus curiae, by special leave of Court. (Also in Nos. 584, 760, 761 and 762)

Duane R. Nedrud, for National District Attorneys Ass'n, as amicus curiae, by special leave of Court. (Also in Nos. 760, 762 and 584)

No. 760:

Victor M. Earle, III, New York City, for petitioner.

William I. Siegel, Brooklyn, for respondent.

No. 761:

F. Conger Fawcett, San Francisco, Cal., for petitioner.

Sol. Gen. Thurgood Marshall, for respondent.

No. 584:

Gorden Ringer, Los Angeles, Cal., for petitioner.

William A. Norris, Los Angeles, Cal., for respondent.

*439 Mr. Chief Justice WARREN delivered the opinion of the Court.

The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.

*440 We dealt with certain phases of this problem recently in **1610 Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). There, as in the four cases before us, law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said ‘I didn't shoot Manuel, you did it,’ they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible.

[1] [pic]This case has been the subject of judicial interpretation and spirited legal debate since it was decided two years ago. Both state and federal courts, in assessing its implications, have arrived at varying conclusions. FN1 A wealth of scholarly material has been written tracing its ramifications and underpinnings.FN2 Police and prosecutor*441 have speculated on its range and desirability.FN3 We granted **1611 certiorari in these cases, 382 U.S. 924, 925, 937, 86 S.Ct. 318, 320, 395, 15 L.Ed.2d 338, 339, 348, in order further to explore some facets of the problems, thus exposed, of applying the privilege against self-incrimination to in-custody interrogation, and to give *442 concrete constitutional guidelines for law enforcement agencies and courts to follow.

FN1. Compare United States v. Childress, 347 F.2d 448 (C.A.7th Cir. 1965), with Collins v. Beto, 348 F.2d 823 (C.A.5th Cir. 1965). Compare People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361 (1964) with People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33 (1964).

FN2. See, e.g., Enker & Elsen, Counsel for the Suspect: Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 and Escobedo v. State of Illinois, 49 Minn.L.Rev. 47 (1964); Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449 (1964); Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1 (1965); Dowling, Escobedo and Beyond: The Need for a Fourteenth Amendment Code of Criminal Procedure, 56 J.Crim.L., C. & P.S. 143, 156 (1965).The complex problems also prompted discussions by jurists. Compare Bazelon, Law, Morality, and Civil Liberties, 12 U.C.L.A.L.Rev. 13 (1964), with Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929 (1965).

FN3. For example, the Los Angeles Police Chief stated that ‘If the police are required * * * to * * * establish that the defendant was apprised of his constitutional guarantees of silence and legal counsel prior to the uttering of any admission or confession, and that he intelligently waived these guarantees * * * a whole Pandora's box is opened as to under what circumstances * * * can a defendant intelligently waive these rights. * * * Allegations that modern criminal investigation can compensate for the lack of a confession of admission in every criminal case is totally absurd!’ Parker, 40 L.A.Bar Bull. 603, 607, 642 (1965). His prosecutorial counterpart, District Attorney Younger, stated that ‘(I)t begins to appear that many of these seemingly restrictive decisions are going to contribute directly to a more effective, efficient and professional level of law enforcement.’ L.A. Times, Oct. 2, 1965, p. 1. The former Police Commissioner of New York, Michael J. Murphy, stated of Escobedo: ‘What the Court is doing is akin to requiring one boxer to fight by Marquis of Queensbury rules while permitting the other to butt, gouge and bite.’ N.Y. Times, May 14, 1965, p. 39. The former United States Attorney for the District of Columbia, David C. Acheson, who is presently Special Assistant to the Secretary of the Treasury (for Enforcement), and directly in charge of the Secret Service and the Bureau of Narcotics, observed that ‘Prosecution procedure has, at most, only the most remote causal connection with crime. Changes in court decisions and prosecution procedure would have about the same effect on the crime rate as an aspirin would have on a tumor of the brain.’ Quoted in Herman, supra, n. 2, at 500, n. 270. Other views on the subject in general are collected in Weisberg, Police Interrogation of Arrested Persons: A Skeptical View, 52 J.Crim.L., C. & P.S. 21 (1961).

[2] [pic]We start here, as we did in Escobedo, with the premise that our holding is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings. We have undertaken a thorough re-examination of the Escobedo decision and the principles it announced, and we reaffirm it. That case was but an explication of basic rights that are enshrined in our Constitution-that ‘No person * * * shall be compelled in any criminal case to be a witness against himself,’ and that ‘the accused shall * * * have the Assistance of Counsel’-rights which were put in jeopardy in that case through official overbearing. These precious rights were fixed in our Constitution only after centuries of persecution and struggle. And in the words of Chief Justice Marshall, they were secured ‘for ages to come, and * * * designed to approach immortality as nearly as human institutions can approach it,’ Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 387, 5 L.Ed. 257 (1821).

Over 70 years ago, our predecessors on this Court eloquently stated:

‘The maxim ‘Nemo tenetur seipsum accusare,’ had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which (have) long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, (were) not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the *443 questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.' Brown v. Walker, 161 U.S. 591, 596-597, 16 S.Ct. 644, 646, 40 L.Ed. 819 (1896).

In stating the obligation of the judiciary to apply these constitutional rights, this Court declared in Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910):

‘* * * our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted**1612 by precedent into importent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The *444 meaning and vitality of the Constitution have developed against narrow and restrictive construction.’

This was the spirit in which we delineated, in meaningful language, the manner in which the constitutional rights of the individual could be enforced against overzealous police practices. It was necessary in Escobedo, as here, to insure that what was proclaimed in the Constitution had not become but a ‘form of words,’ Silverthorn Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920), in the hands of government officials. And it is in this spirit, consistent with our role as judges, that we adhere to the principles of Escobedo today.

[3] [pic][4] [pic][5] [pic][6] [pic][7] [pic][8] [pic][9] [pic]Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.FN4 As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the *445 process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

FN4. This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.

1.

The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features-incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.

An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact **1613 that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930's, including the famous Wickersham Report to Congress by a Presidential Commission, it is clear that police violence and the ‘third degree’ flourished at that time.FN5 *446 In a series of cases decided by this Court long after these studies, the police resorted to physical brutality-beatings, hanging, whipping-and to sustained and protracted questioning incommunicado in order to extort confessions.FN6 The Commission on Civil Rights in 1961 found much evidence to indicate that ‘some policemen still resort to physical force to obtain confessions,’ 1961 Comm'n on Civil Rights Rep., Justice, pt. 5, 17. The use of physical brutality and violence is not, unfortunately, relegated to the past or to any part of the country. Only recently in Kings County, New York, the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party. People v. Portelli, 15 N.Y.2d 235, 257 N.Y.S.2d 931, 205 N.E.2d 857 (1965).FN7

FN5. See, for example, IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement (1931) (Wickersham Report); Booth, Confessions and Methods Employed in Procuring Them, 4 So.Calif.L.Rev. 83 (1930); Kauper, Judicial Examination of the Accused-A Remedy for the Third Degree, 30 Mich.L.Rev. 1224 (1932). It is significant that instances of third-degree treatment of prisoners almost invariably took place during the period between arrest and preliminary examination. Wickersham Report, at 169; Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U.Chi.L.Rev. 345, 357 (1936). See also Foote, Law and Polio Practice: Safeguards in the Law of Arrest, 52 Nw.U.L.Rev. 16 (1957).

FN6. Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940); Canty v. State of Alabama, 309 U.S. 629, 60 S.Ct. 612, 84 L.Ed. 988 (1940); White v. State of Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342 (1940); Vernon v. State of Alabama, 313 U.S. 547, 61 S.Ct. 1092, 85 L.Ed. 1513 (1941); Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663 (1942); Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954). See also Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951).

FN7. In addition, see People v. Wakat, 415 Ill. 610, 114 N.E.2d 706 (1953); Wakat v. Harlib, 253 F.2d 59 (C.A.7th Cir.1958) (defendant suffering from broken bones, multiple bruises and injuries sufficiently serious to require eight months' medical treatment after being manhandled by five policemen); Kier v. State, 213 Md. 556, 132 A.2d 494 (1957) (police doctor told accused, who was strapped to a chair completely nude, that he proposed to take hair and skin scrapings from anything that looked like blood or sperm from various parts of his body); Bruner v. People, 113 Colo. 194, 156 P.2d 111 (1945) (defendant held in custody over two months, deprived of food for 15 hours, forced to submit to a lie detector test when he wanted to go to the toilet); People v. Matlock, 51 Cal.2d 682, 336 P.2d 505, 71 A.L.R.2d 605 (1959) (defendant questioned incessantly over an evening's time, made to lie on cold board and to answer questions whenever it appeared he was getting sleepy). Other cases are documented in American Civil Liberties Union, Illinois Division, Secret Detention by the Chicago Police (1959); Potts, The Preliminary Examination and ‘The Third Degree,’ 2 Baylor L.Rev. 131 (1950); Sterling, Police Interrogation and the Psychology of Confession, 14 J.Pub.L. 25 (1965).

*447 The examples given above are undoubtedly the exception now, but they are sufficiently widespread to be the object of concern. Unless a proper limitation upon custodial interrogation is achieved-such as these decisions will advance-there can be no assurance that practices of this nature will be eradicated in the foreseeable future. The conclusion of the Wickersham**1614 Commission Report, made over 30 years ago, is still pertinent:

‘To the contention that the third degree is necessary to get the facts, the reporters aptly reply in the language of the present Lord Chancellor of England (Lord Sankey): ‘It is not admissible to do a great right by doing a little wrong. * * * It is not sufficient to do justice by obtaining a proper result by irregular or improper means.’ Not only does the use of the third degree involve a flagrant violation of law by the officers of the law, but it involves also the dangers of false confessions, and it tends to make police and prosecutors less zealous in the search for objective evidence. As the New York prosecutor quoted in the report said, ‘It is a short cut and makes the police lazy and unenterprising.’ Or, as another official quoted remarked: ‘If you use your fists, you *448 are not so likely to use your wits.’ We agree with the conclusion expressed in the report, that ‘The third degree brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public.‘‘ IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement 5 (1931).

[10] [pic]Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, ‘Since Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.’ Blackburn v. State of Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960). Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source of information about present police practices, however, may be found in various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics. FN8 These *449 texts are used by law enforcement agencies themselves as guides.FN9 It should be noted that these texts professedly present the most enlightened and effective means presently used to obtain statements through custodial interrogation. By considering these texts and other **1615 data, it is possible to describe procedures observed and noted around the country.

FN8. The manuals quoted in the text following are the most recent and representative of the texts currently available. Material of the same nature appeals in Kidd, Police Interrogation (1940); Mulbar, Interrogation (1951); Dienstein, Technics for the Crime Investigator 97-115 (1952). Studies concerning the observed practices of the police appear in LaFave, Arrest: The Decision To Take a Suspect Into Custody 244-437, 490-521 (1965); LaFave, Detention for Investigation by the Police: An Analysis of Current Practices, 1962 Wash.U.L.Q. 331; Barrett, Police Practices and the Law-From Arrest to Release or Charge, 50 Calif.L.Rev. 11 (1962); Sterling, supra, n. 7, at 47-65.

FN9. The methods described in Inbau & Reid Criminal Interrogation and Confessions (1962), are a revision and enlargement of material presented in three prior editions of a predecessor text, Lie Detection and Criminal Interrogation (3d ed. 1953). The authors and their associates are officers of the Chicago Police Scientific Crime Detection Laboratory and have had extensive experience in writing, lecturing and speaking to law enforcement authorities over a 20-year period. They say that the techniques portrayed in their manuals reflect their experiences and are the most effective psychological stratagems to employ during interrogations. Similarly, the techniques described in O'Hara, Fundamentals of Criminal Investigation (1956), were gleaned from long service as observer, lecturer in police science, and work as a federal criminal investigator. All these texts have had rather extensive use among law enforcement agencies and among students of police science, with total sales and circulation of over 44,000.

The officers are told by the manuals that the ‘principal psychological factor contributing to a successful interrogation is privacy-being alone with the person under interrogation.'FN10 The efficacy of this tactic has been explained as follows:

FN10. Inbau & Reid, Criminal Interrogation and Confessions (1962), at 1.

‘If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and *450 more reluctant to tell of his indiscretions of criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.'FN11

FN11. O'Hara, supra, at 99.

To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense,FN12 to cast blame on the victim or on society.FN13 These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already-that he is guilty. Explanations to the contrary are dismissed and discouraged.

FN12. Inbau & Reid, supra, at 34-43, 87. For example, in Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954), the interrogator-psychiatrist told the accused, ‘We do sometimes things that are not right, but in a fit of temper or anger we sometimes do things we aren't really responsible for,’ id., at 562, 74 S.Ct. at 719, and again, ‘We know that morally you were just in anger. Morally, you are not to be condemned,’ id., at 582, 74 S.Ct. at 729.

FN13. Inbau & Reid, supra, at 43-55.

The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. *451 One writer describes the efficacy of these characteristics in this manner:

‘In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject's necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of **1616 the subject appears highly probable.’ FN14

FN14. O'Hara, supra, at 112.

The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say:

‘Joe, you probably didn't go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that's why you carried a gun-for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication*452 that he was about to pull a gun on you, and that's when you had to act to save your own life. That's about it, isn't it, Joe?'FN15

FN15. Inbau & Reid, supra, at 40.

Having then obtained the admission of shooting, the interrogator is advised to refer to circumstantial evidence which negates the self-defense explanation. This should enable him to secure the entire story. One text notes that ‘Even if he fails to do so, the inconsistency between the subject's original denial of the shooting and his present admission of at least doing the shooting will serve to deprive him of a self-defense ‘out’ at the time of trial.'FN16

FN16. Ibid.

When the techniques described above prove unavailing, the texts recommend they be alternated with a show of some hostility. One ploy often used has been termed the ‘friendly-unfriendly’ or the ‘Mutt and Jeff’ act:

‘* * * In this technique, two agents are employed. Mutt, the relentless investigator, who knows the subject is guilty and is not going to waste any time. He's sent a dozen men away for this crime and he's going to send the subject away for the full term. Jeff, on the other hand, is obviously a kindhearted man. He has a family himself. He has a brother who was involved in a little scrape like this. He disapproves of Mutt and his tactics and will arrange to get him off the case if the subject will cooperate. He can't hold Mutt off for very long. The subject would be wise to make a quick decision. The technique is applied by having both investigators present while Mutt acts out his role. Jeff may stand by quietly and demur at some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt is not present in the room.’ FN17

FN17. O'Hara, supra, at 104, Inbau & Reid, supra, at 58-59. See Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). A variant on the technique of creating hostility is one of engendering fear. This is perhaps best described by the prosecuting attorney in Malinski v. People of State of New York, 324 U.S. 401, 407, 65 S.Ct. 781, 784, 89 L.Ed. 1029 (1945): ‘Why this talk about being undressed? Of course, they had a right to undress him to look for bullet scars, and keep the clothes off him. That was quite proper police procedure. That is some more psychology-let him sit around with a blanket on him, humiliate him there for a while; let him sit in the corner, let him think he is going to get a shellacking.’

*453 The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in his questioning to place the subject among a group of men in a line-up. ‘The witness or complainant (previously coached, if necessary) studies the line-up and confidently points out the subject as the guilty party.'FN18 Then the questioning resumes ‘as though there were now no doubt about the guilt **1617 of the subject.’ A variation on this technique is called the ‘reverse line-up’:

FN18. O'Hara, supra, at 105-106.

‘The accused is placed in a line-up, but this time he is identified by several fictitious witnesses or victims who associated him with diferent offenses. It is expected that the subject will become desperate and confess to the offense under investigation in order to escape from the false accusations.’ FN19

FN19. Id., at 106.

The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely, or who asks for an attorney or relatives. The examiner is to concede him the right to remain silent. ‘This usually has a very undermining effect. First of all, he is disappointed in his expectation of an unfavorable reaction on the part of the interrogator. Secondly, a concession of this right to remain silent impresses*454 the subject with the apparent fairness of his interrogator.’ FN20 After this psychological conditioning, however, the officer is told to point out the incriminating significance of the suspect's refusal to talk:

FN20. Inbau & Reid, supra, at 111.

‘Joe, you have a right to remain silent. That's your privilege and I'm the last person in the world who'll try to take it away from you. If that's the way you want to leave this, O.K. But let me ask you this. Suppose you were in my shoes and I were in yours and you called me in to ask me about this and I told you, ‘I don't want to answer any of your questions.’ You'd think I had something to hide, and you'd probably be right in thinking that. That's exactly what I'll have to think about you, and so will everybody else. So let's sit here and talk this whole thing over.'FN21

FN21. Ibid.

Few will persist in their initial refusal to talk, it is said, if this monologue is employed correctly.

In the event that the subject wishes to speak to a relative or an attorney, the following advice is tendered:

‘(T)he interrogator should respond by suggesting that the subject first tell the truth to the interrogator himself rather than get anyone else involved in the matter. If the request is for an attorney, the interrogator may suggest that the subject save himself or his family the expense of any such professional service, particularly if he is innocent of the offense under investigation. The interrogator may also add, ‘Joe, I'm only looking for the truth, and if you're telling the truth, that's it. You can handle this by yourself.“FN22

FN22. Inbau & Reid, supra, at 112.

*455 From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must ‘patiently maneuver himself or his quarry into a position from which the desired objective may be attained.'FN23 When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.

FN23. Inbau & Reid, Lie Detection and Criminal Interrogation 185 (3d ed. 1953).

Even without employing brutality, the ‘third degree’ or the specific stratagems**1618 described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals. FN24 *456 This fact may be illustrated simply by referring to three confession cases decided by this Court in the Term immediately preceding our Escobedo decision. In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the defendant was a 19-year-old heroin addict, described as a ‘near mental defective,’ id., at 307-310, 83 S.Ct. at 754-755. The defendant in Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), was a woman who confessed to the arresting officer after being importuned to ‘cooperate’ in order to prevent her children from being taken by relief authorities. This Court as in those cases reversed the conviction of a defendant in Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), whose persistent request during his interrogation was to phone his wife or attorney.FN25 In other settings, these individuals might have exercised their constitutional rights. In the incommunicado police-dominated atmosphere, they succumbed.

FN24. Interrogation procedures may even give rise to a false confession. The most recent conspicuous example occurred in New York, in 1964, when a Negro of limited intelligence confessed to two brutal murders and a rape which he had not committed. When this was discovered, the prosecutor was reported as saying: ‘Call it what you want-brain-washing, hypnosis, fright. They made him give an untrue confession. The only thing I don't believe is that Whitmore was beaten.’ N.Y. Times, Jan. 28, 1965, p. 1, col. 5. In two other instances, similar events had occurred. N.Y. Times, Oct. 20, 1964, p. 22, col. 1; N.Y. Times, Aug. 25, 1965, p. 1, col. 1. In general, see Borchard, Convicting the Innocent (1932); Frank & Frank, Not Guilty (1957).

FN25. In the fourth confession case decided by the Court in the 1962 Term, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), our disposition made it unnecessary to delve at length into the facts. The facts of the defendant's case there, however, paralleled those of his co-defendants, whose confessions were found to have resulted from continuous and coercive interrogation for 27 hours, with denial of requests for friends or attorney. See United States ex rel. Caminito v. Murphy, 222 F.2d 698 (C.A.2d Cir. 1955) (Frank, J.); People v. Bonino, 1 N.Y.2d 752, 152 N.Y.S.2d 298, 135 N.E.2d 51 (1956).

In the cases before us today, given this backgound, we concern ourselves primarily with this interrogation atmosphere and the evils it can bring. In No. 759, Miranda v. Arizona, the police arrested the defendant and took him to a special interrogation room where they secured a confession. In No. 760, Vignera v. New York, the defendant made oral admissions to the police after interrogation in the afternoon, and then signed an inculpatory statement upon being questioned by an assistant district attorney later the same evening. In No. 761, Westover v. United States, the defendant was handed over to the Federal Bureau of Investigation by *457 local authorities after they had detained and interrogated him for a lengthy period, both at night and the following morning. After some two hours of questioning, the federal officers had obtained signed statements from the defendant. Lastly, in No. 584, California v. Stewart, the local police held the defendant five days in the station and interrogated him on nine separate occasions before they secured his inculpatory statement.

In these cases, we might not find the defendants' statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. The potentiality for compulsion is forcefully apparent, for example, in Miranda, where the indigent Mexican defendant was a seriously disturbed individual with pronounced sexual **1619 fantasies, and in Stewart, in which the defendant was an indigent Los Angeles Negro who had dropped out of school in the sixth grade. To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice.

[11] [pic]It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. FN26 The current practice of incommunicado interrogation is at odds with one of our *458 Nation's most cherished principles-that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

FN26. The absurdity of denying that a confession obtained under these circumstances is compelled is aptly portrayed by an example in Professor Sutherland's recent article, Crime and Confession, 79 Harv.L.Rev. 21, 37 (1965):‘Suppose a well-to-do testatrix says she intends to will her property to Elizabeth. John and James want her to bequeath it to them instead. They capture the testatrix, put her in a carefully designed room, out of touch with everyone but themselves and their convenient ‘withnesses,’ keep her secluded there for hours while they make insistent demands, weary her with contradictions of her assertions that she wants to leave her money to Elizabeth, and finally induce her to execute the will in their favor. Assume that John and James are deeply and correctly convinced that Elizabeth is unworthy and will make base use of the property if she gets her hands on it, whereas John and James have the noblest and most righteous intentions. Would any judge of probate accept the will so procured as the ‘voluntary’ act of the testatrix?‘

From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and police custodial questioning. It is fitting to turn to history and precedent underlying the Self-Incrimination Clause to determine its applicability in this situation.

II.

We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times.FN27 Perhaps*459 the critical historical event shedding light on its origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject. The Trial of John Lilburn and John Wharton, 3 How.St.Tr. 1315 (1637). He resisted the oath and declaimed the proceedings, stating:

FN27. Thirteenth century commentators found an analogue to the privilege grounded in the Bible. ‘To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.’ Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, 6, III Yale Judaica Series 52-53. See also Lamm, The Fifth Amendment and Its Equivalent in the Halakhan, 5 Judaism 53 (Winter 1956).

‘Another fundamental right I then contended for, was, that no man's conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so.’ Haller & Davies, The Leveller Tracts 1647-1653, p. 454 (1944).

On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation. The lofty principles to which Lilburn had appealed**1620 during his trial gained popular acceptance in England.FN28 These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights. FN29 Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that ‘illegitimate and unconstitutional practices get their first footing * * * by silent approaches and slight deviations from legal modes of procedure.’ Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886). The privilege was elevated to constitutional status and has always been ‘as broad ad the mischief *460 against which it seeks to guard.’ Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892). We cannot depart from this noble heritage.

FN28. See Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 9-11 (1949); 8 Wigmore, Evidence 285-295 (McNaughton rev. 1961). See also Lowell, The Judicial Use of Torture, Parts I and II, 11 Harv.L.Rev. 220, 290 (1897).

FN29. See Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763 (1935); Ullmann v. United States, 350 U.S. 422, 445-449, 76 S.Ct. 497, 510-512, 100 L.Ed. 511 (1956) (Douglas, J., dissenting).

[12] [pic][13] [pic][14] [pic][15] [pic]Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a ‘noble principle often transcends its origins,’ the privilege has come right-fully to be recognized in part as an individual's substantive right, a ‘right to a private enclave where he may lead a private life. That right is the hallmark of our democracy.’ United States v. Grunewald, 233 F.2d 556, 579, 581-582 (Frank, J., dissenting), rev'd, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). We have recently noted that the privilege against self-incrimination-the essential mainstay of our adversary system-is founded on a complex of values, Murphy v. Waterfront Comm. of New York Harbor, 378 U.S. 52, 55-57, n. 5, 84 S.Ct. 1594, 1596-1597, 12 L.Ed.2d 678 (1964); Tehan v. United States ex rel. Shott, 382 U.S. 406, 414-415, n. 12, 86 S.Ct. 459, 464, 15 L.Ed.2d 453 (1966). All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government-state or federal-must accord to the dignity and integrity of its citizens. To maintain a ‘fair state-individual balance,’ to require the government ‘to shoulder the entire load,’ 8 Wigmore, Evidence 317 (McNaughton rev. 1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v. State of Florida, 309 U.S. 227, 235-238, 60 S.Ct. 472, 476-477, 84 L.Ed. 716 (1940). In sum, the privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964).

[16] [pic]The question in these cases is whether the privilege is fully applicable during a period of custodial interrogation.*461 In this Court, the privilege has consistently been accorded a liberal construction. Albertson v. Subversive Activities Control Board, 382 U.S. 70, 81, 86 S.Ct. 194, 200, 15 L.Ed.2d 165 (1965); Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed.2d 1118 (1951); Arnstein v. McCarthy, 254 U.S. 71, 72-73, 41 S.Ct. 26, 65 L.Ed. 138 (1920); Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110 (1892). We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by **1621 law-enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery. FN30

FN30. Compare Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955).

This question, in fact, could have been taken as settled in federal courts almost 70 years ago, when, in Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897), this Court held:

‘In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the fifth amendment * * * commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.‘‘

In Bram, the Court reviewed the British and American history and case law and set down the Fifth Amendment standard for compulsion which we implement today:

‘Much of the confusion which has resulted from the effort to deduce from the adjudged cases what *462 would be a sufficient quantum of proof to show that a confession was or was not voluntary has arisen from a misconception of the subject to which the proof must address itself. The rule is not that, in order to render a statement admissible, the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that, from the causes which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement when but for the improper influences he would have remained silent. * * *’ 168 U.S., at 549, 18 S.Ct. at 189. And see, id., at 542, 18 S.Ct. at 186.

The Court has adhered to this reasoning. In 1924, Mr. Justice Brandeis wrote for a unanimous Court in reversing a conviction resting on a compelled confession, Ziang Sung Wan v. United States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131. He stated:

‘In the federal courts, the requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568.’ 266 U.S., at 14-15, 45 S.Ct. at 3.

In addition to the expansive historical development of the privilege and the sound policies which have nurtured *463 its evolution, judicial precedent thus clearly establishes its application to incommunicado interrogation. In fact, the Government concedes this point as well established in No. 761, Westover v. United States, stating: ‘We have no doubt * * * that it is possible for a suspect's Fifth **1622 Amendment right to be violated during in-custody questioning by a law-enforcement officer.'FN31

FN31. Brief for the United States, p. 28. To the same effect, see Brief for the United States, pp. 40-49, n. 44, Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829 (1943); Brief for the United States, pp. 17-18, McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608 (1943).

[17] [pic]Because of the adoption by Congress of Rule 5(a) of the Federal Rules of Criminal Procedure, and the Court's effectuation of that Rule in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), we have had little occasion in the past quarter century to reach the constitutional issues in dealing with federal interrogations. These supervisory rules, requiring production of an arrested person before a commissioner ‘without unnecessary delay’ and excluding evidence obtained in default of that statutory obligation, were nonetheless responsive to the same considerations of Fifth Amendment policy that unavoidably face us now as to the States. In McNabb, 318 U.S., at 343-344, 63 S.Ct. at 614, and in Mallory, 354 U.S., at 455-456, 77 S.Ct. at 1359-1360, we recognized both the dangers of interrogation and the appropriateness of prophylaxis stemming from the very fact of interrogation itself.FN32

FN32. Our decision today does not indicate in any manner, of course, that these rules can be disregarded. When federal officials arrest an individual, they must as always comply with the dictates of the congressional legislation and cases thereunder. See generally, Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 1 (1958).

[18] [pic][19] [pic][20] [pic]Our decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), necessitates an examination of the scope of the privilege in state cases as well. In Malloy, we squarely held the *464 privilege applicable to the States, and held that the substantive standards underlying the privilege applied with full force to state court proceedings. There, as in Murphy v. Waterfront Comm. of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), and Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), we applied the existing Fifth Amendment standards to the case before us. Aside from the holding itself, the reasoning in Malloy made clear what had already become apparent-that the substantive and procedural safeguards surrounding admissibility of confessions in state cases had become exceedingly exacting, reflecting all the policies embedded in the privilege, 378 U.S., at 7-8, 84 S.Ct. at 1493.FN33 The voluntariness**1623 doctrine in the state cases, as Malloy indicates, encompasses all interrogation practices which are likely to exert such pressure upon an individual as to disable him from *465 making a free and rational choice.FN34 The implications of this proposition were elaborated in our decision in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, decided one week after Malloy applied the privilege to the States.

FN33. The decisions of this Court have guaranteed the same procedural protection for the defendant whether his confession was used in a federal or state court. It is now axiomatic that the defendant's constitutional rights have been violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity. Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961); Siang Sung Wan v. United States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131 (1924). This is so even if there is ample evidence aside from the confession to support the conviction, e.g., Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029 (1945); Bram v. United States, 168 U.S. 532, 540-542, 18 S.Ct. 183, 185-186 (1897). Both state and federal courts now adhere to trial procedures which seek to assure a reliable and clear-cut determination of the voluntariness of the confession offered at trial, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 904 (1964); United States v. Carignan, 342 U.S. 36, 38, 72 S.Ct. 97, 98, 96 L.Ed. 48 (1951); see also Wilson v. United States, 162 U.S. 613, 624, 16 S.Ct. 895, 900, 40 L.Ed. 1090 (1896). Appellate review is exacting, see Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). Whether his conviction was in a federal or state court, the defendant may secure a post-conviction hearing based on the alleged involuntary character of his confession, provided he meets the procedural requirements, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In addition, see Murphy v. Waterfront Comm. of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594 (1964).

FN34. See Lisenba v. People of State of California, 314 U.S. 219, 241, 62 S.Ct. 280, 292, 86 L.Ed. 166 (1941); Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781 (1945); Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963).

Our holding there stressed the fact that the police had not advised the defendant of his constitutional privilege to remain silent at the outset of the interrogation, and we drew attention to that fact at several points in the decision, 378 U.S., at 483, 485, 491, 84 S.Ct. at 1761, 1762, 1765. This was no isolated factor, but an essential ingredient in our decision. The entire thrust of police interrogation there, as in all the cases today, was to put the defendant in such an emotional state as to impair his capacity for rational judgment. The abdication of the constitutional privilege-the choice on his part to speak to the police-was not made knowingly or competently because of the failure to apprise him of his rights; the compelling atmosphere of the in-custody interrogation, and not an independent decision on his part, caused the defendant to speak.

[21] [pic][22] [pic]A different phase of the Escobedo decision was significant in its attention to the absence of counsel during the questioning. There, as in the cases today, we sought a protective device to dispel the compelling atmosphere of the interrogation. In Escobedo, however, the police did not relieve the defendant of the anxieties which they had created in the interrogation rooms. Rather, they denied his request for the assistance of counsel, 378 U.S., at 481, 488, 491, 84 S.Ct. at 1760, 1763, 1765. FN35 This heightened his dilemma, and *466 made his later statements the product of this compulsion. Cf. Haynes v. State of Washington, 373 U.S. 503, 514, 83 S.Ct. 1336, 1343 (1963). The denial of the defendant's request for his attorney thus undermined his ability to exercise the privilege-to remain silent if he chose or to speak without any intimidation, blatant or subtle. The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.

FN35. The police also prevented the attorney from consulting with his client. Independent of any other constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel and excludes any statement obtained in its wake. See People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628 (1963) (Fuld, J.).

It was in this manner that Escobedo explicated another facet of the pre-trial privilege, noted in many of the Court's prior decisions: the protection of rights at trial.FN36 That counsel is present when **1624 statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process. Without the protections flowing from adequate warning and the rights of counsel, ‘all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police.’ Mapp v. Ohio, 367 U.S. 643, 685, 81 S.Ct. 1684, 1707, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting). Cf. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

FN36. In re Groban, 352 U.S. 330, 340-352, 77 S.Ct. 510, 517-523, 1 L.Ed.2d 376 (1957) (Black, J., dissenting); Note, 73 Yale L.J. 1000, 1048-1051 (1964); Comment, 31 U.Chi.L.Rev. 313, 320 (1964) and authorities cited.

*467 III.

[23] [pic][24] [pic]Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.

It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities. Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed.

[25] [pic][26] [pic][27] [pic][28] [pic]At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and *468 unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it-the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It is not just the subnormal or woefully ignorant who succumb to an interrogator's imprecations, whether implied or expressly stated, that the interrogation will continue until a confession is obtained or that silence in the face of accusation is itself damning and will bode ill when presented to a jury.FN37 Further,**1625 the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.

FN37. See p. 1617, supra. Lord Devlin has commented:‘It is probable that even today, when there is much less ignorance about these matters than formerly, there is still a general belief that you must answer all questions put to you by a policeman, or at least that it will be the worse for you if you do not.’ Devlin, The Criminal Prosecution in England 32 (1958).In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964); Comment, 31 U.Chi.L.Rev. 556 (1964); Developments in the Law-Confessions, 79 Harv.L.Rev. 935, 1041-1044 (1966). See also Bram v. United States, 168 U.S. 532, 562, 18 S.Ct. 183, 194, 42 L.Ed. 568 (1897).

[29] [pic]The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information*469 as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation;FN38 a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.

FN38. Cf. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), and the recurrent inquiry into special circumstances it necessitated. See generally, Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 Mich.L.Rev. 219 (1962).

[30] [pic]The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system-that he is not in the presence of persons acting solely in his interest.

[31] [pic][32] [pic]The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere*470 warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more ‘will benefit only the recidivist and the professional.’ Brief for the National District Attorneys Association as amicus curiae, p. 14. Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Cf. Escobedo v. State of Illinois, 378 U.S. 478, 485, n. 5, 84 S.Ct. 1758, 1762. Thus, the need for counsel to protect **1626 the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.

The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial. See Crooker v. State of California, 357 U.S. 433, 443-448, 78 S.Ct. 1287, 1293-1296, 2 L.Ed.2d 1448 (1958) (Douglas, J., dissenting).

[33] [pic][34] [pic][35] [pic]An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request *471 may be the person who most needs counsel. As the California Supreme Court has aptly put it:

‘Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request and by such failure demonstrates his helplessness. To require the request would be to favor the defendant whose sophistication or status had fortuitously prompted him to make it.’ People v. Dorado, 62 Cal.2d 338, 351, 42 Cal.Rptr. 169, 177-178, 398 P.2d 361, 369-370, (1965) (Tobriner, J.).

In Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70 (1962), we stated: ‘(I)t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.’ This proposition applies with equal force in the context of providing counsel to protect an accused's Fifth Amendment privilege in the face of interrogation.FN39 Although the role of counsel at trial differs from the role during interrogation, the differences are not relevant to the question whether a request is a prerequisite.

FN39. See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449, 480 (1964).

[36] [pic][37] [pic]Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of *472 circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

[38] [pic][39] [pic][40] [pic]If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. The financial ability **1627 of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an attorney, our decisions today would be of little significance. The cases before us as well as the vast majority of confession cases with which we have dealt in the past involve those unable to retain counsel.FN40 While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice.FN41 Denial *473 of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford one would be no more supportable by reason or logic than the similar situation at trial and on appeal struck down in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

FN40. Estimates of 50-90% indigency among felony defendants have been reported. Pollock, Equal Justice in Practice, 45 Minn.L.Rev. 737, 738-739 (1961); Birzon, Kasanof & Forma, The Right to Counsel and the Indigent Accused in Courts of Criminal Jurisdiction in New York State, 14 Buffalo L.Rev. 428, 433 (1965).

FN41. See Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 64-81 (1965). As was stated in the Report of the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice 9 (1963):‘When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking reasonable measures to eliminate those factors that are irrelevant to just administration of the law but which, nevertheless, may occasionally affect determinations of the accused's liability or penalty. While government may not be required to relieve the accused of his proverty, it may properly be required to minimize the influence of poverty on its administration of justice.’

[41] [pic][42] [pic]In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent-the person most often subjected to interrogation-the knowledge that he too has a right to have counsel present.FN42 As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.FN43

FN42. Cf. United States ex rel. Brown v. Fay, 242 F.Supp. 273, 277 (D.C.S.D.N.Y.1965); People v. Witenski, 15 N.Y.2d 392, 259 N.Y.S.2d 413, 207 N.E.2d 358 (1965).

FN43. While a warning that the indigent may have counsel appointed need not be given to the person who is known to have an attorney or is known to have ample funds to secure one, the expedient of giving a warning is too simple and the rights involved too important to engage in ex post facto inquiries into financial ability when there is any doubt at all on that score.

[43] [pic][44] [pic][45] [pic][46] [pic]Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner,*474 at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.FN44 At this **1628 point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

FN44. If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements them made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements.

[47] [pic][48] [pic]This does not mean, as some have suggested, that each police station must have a ‘station house lawyer’ present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time.

[49] [pic][50] [pic][51] [pic]*475 If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. State of Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we reassert these standards as applied to incustody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.

[52] [pic][53] [pic][54] [pic]An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), is applicable here:

‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’

See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives *476 some information on his own prior to invoking his right to remain silent when interrogated.FN45

FN45. Although this Court held in Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951), over strong dissent, that a witness before a grand jury may not in certain circumstanes decide to answer some questions and then refuse to answer others, that decision has no application to the interrogation situation we deal with today. No legislative or judicial fact-finding authority is involved here, nor is there a possibility that the individual might make self-serving statements of which he could make use at trial while refusing to answer incriminating statements.

**1629 [55] [pic][56] [pic][57] [pic]Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege. Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.

[58] [pic][59] [pic][60] [pic]The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions' of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly,*477 for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement. In Escobedo itself, the defendant fully intended his accusation of another as the slayer to be exculpatory as to himself.

The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries. Under the system of warnings we delineate today or under any other system which may be devised and found effective, the safeguards to be erected about the privilege must come into play at this point.

[61] [pic][62] [pic]Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1765. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of *478 responsible citizenship for individuals to give whatever information they may have to aid in **1630 law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.FN46

FN46. The distinction and its significance has been aptly described in the opinion of a Scottish court:‘In former times such questioning, if undertaken, would be conducted by police officers visiting the house or place of business of the suspect and there questioning him, probably in the presence of a relation or friend. However convenient the modern practice may be, it must normally create a situation very unfavourable to the suspect.’ Chalmers v. H. M. Advocate, (1954) Sess.Cas. 66, 78 (J.C.).

[63] [pic][64] [pic][65] [pic]In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime,FN47 or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

FN47. See People v. Dorado, 62 Cal.2d 338, 354, 42 Cal.Rptr. 169, 179, 398 P.2d 361, 371 (1965).

[66] [pic][67] [pic]To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to *479 protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. FN48

FN48. In accordance with our holdings today and in Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1765; Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958) and Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958) are not to be followed.

IV.

[68] [pic]A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. See, e.g., Chambers v. State of Florida, 309 U.S. 227, 240-241, 60 S.Ct. 472, 478-479, 84 L.Ed. 716 (1940). The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged. As Mr. Justice Brandeis once observed:

‘Decency, security, and liberty alike demand that government officials shall **1631 be subjected to the same *480 rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means * * * would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.’ Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (dissenting opinion).FN49

FN49. In quoting the above from the dissenting opinion of Mr. Justice Brandeis we, of course, do not intend to pass on the constitutional questions involved in the Olmstead case.

In this connection, one of our country's distinguished jurists has pointed out: ‘The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law.'FN50

FN50. Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 26 (1956).

[69] [pic]If the individual desires to exercise his privilege, he has the right to do so. This is not for the authorities to decide. An attorney may advise his client not to talk to police until he has had an opportunity to investigate the case, or he may wish to be present with his client during any police questioning. In doing so an attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath-to protect to the extent of his ability the rights of his *481 client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution.

In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions. Although confessions may play an important role in some convictions, the cases before us present graphic examples of the overstatement of the ‘need’ for confessions. In each case authorities conducted interrogations ranging up to five days in duration despite the presence, through standard investigating practices, of considerable evidence against each defendant.FN51 Further examples are chronicled in our prior cases. See, e.g., Haynes v. State of Washington, 373 U.S. 503, 518-519, 83 S.Ct. 1336, 1345, 1346, 10 L.Ed.2d 513 (1963); Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739, 5 L.Ed.2d 760 (1961); Malinski v. People of State of New York, 324 U.S. 401, 402, 65 S.Ct. 781, 782 (1945).FN52

FN51. Miranda, Vignera, and Westover were identified by eyewitnesses. Marked bills from the bank robbed were found in Westover's car. Articles stolen from the victim as well as from several other robbery victims were found in Stewart's home at the outset of the investigation.

FN52. Dealing as we do here with constitutional standards in relation to statements made, the existence of independent corroborating evidence produced at trial is, of course, irrelevant to our decisions. Haynes v. State of Washington, 373 U.S. 503, 518-519, 83 S.Ct. 1336, 1345-1346 (1963); Lynumn v. State of Illinois, 372 U.S. 528, 537-538, 83 S.Ct. 917, 922, 9 L.Ed.2d 922 (1963); Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739 (1961); Blackburn v. State of Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960).

**1632 *482 It is also urged that an unfettered right to detention for interrogation should be allowed because it will often redound to the benefit of the person questioned. When police inquiry determines that there is no reason to believe that the person has committed any crime, it is said, he will be released without need for further formal procedures. The person who has committed no offense, however, will be better able to clear himself after warnings with counsel present than without. It can be assumed that in such circumstances a lawyer would advise his client to talk freely to police in order to clear himself.

Custodial interrogation, by contrast, does not necessarily afford the innocent an opportunity to clear themselves. A serious consequence of the present practice of the interrogation alleged to be beneficial for the innocent is that many arrests ‘for investigation’ subject large numbers of innocent persons to detention and interrogation. In one of the cases before us, No. 584, California v. Stewart, police held four persons, who were in the defendant's house at the time of the arrest, in jail for five days until defendant confessed. At that time they were finally released. Police stated that there was ‘no evidence to connect them with any crime.’ Available statistics on the extent of this practice where it is condoned indicate that these four are far from alone in being subjected to arrest, prolonged detention, and interrogation without the requisite probable cause.FN53

FN53. See, e.g., Report and Recommendations of the (District of Columbia) Commissioners' Committee on Police Arrests for Investigation (1962); American Civil Liberties Union, Secret Detention by the Chicago Police (1959). An extreme example of this practice occurred in the District of Columbia in 1958. Seeking three ‘stocky’ young Negroes who had robbed a restaurant, police rounded up 90 persons of that general description. Sixth-three were held overnight before being released for lack of evidence. A man not among the 90 arrested was ultimately charged with the crime. Washington Daily News, January 21, 1958, p. 5, col. 1; Hearings before a Subcommittee of the Senate Judiciary Committee on H.R. 11477, S. 2970, S. 3325, and S. 3355, 85th Cong., 2d Sess. (July 1958), pp. 40, 78.

*483 Over the years the Federal Bureau of Investigation has compiled an exemplary record of effective law enforcement while advising any suspect or arrested person, at the outset of an interview, that he is not required to make a statement, that any statement may be used against him in court, that the individual may obtain the services of an attorney of his own choice and, more recently, that he has a right to free counsel if he is unable to pay. FN54 A **1633 letter received from the Solicitor General in response to a question from the Bench makes it clear that the present pattern of warnings and respect for the *484 rights of the individual followed as a practice by the FBI is consistent with the procedure which we delineate today. It states:

FN54. In 1952, J. Edgar Hoover, Director of the Federal Bureau of Investigation, stated:‘Law enforcement, however, in defeating the criminal, must maintain inviolate the historic liberties of the individual. To turn back the criminal, yet, by so doing, destroy the dignity of the individual, would be a hollow victory.La‘We can have the Constitution, the best laws in the land, and the most honest reviews by courts-but unless the law enforcement profession is steeped in the democratic tradition, maintains the highest in ethics, and makes its work a career of honor, civil liberties will continually-and without end be violated. * * * The best protection of civil liberties is an alert, intelligent and honest law enforcement agency. There can be no alternative., c‘* * * Special Agents are taught that any suspect or arrested person, at the outset of an interview, must be advised that he is not required to make a statement and that any statement given can be used against him in court. Moreover, the individual must be informed that, if he desires, he may obtain the services of an attorney of his own choice.’ Hoover, Civil Liberties and Law Enforcement: The Role of the FBI, 37 Iowa L.Rev. 175, 177-182 (1952).

‘At the oral argument of the above cause, Mr. Justice Fortas asked whether I could provide certain information as to the practices followed by the Federal Bureau of Investigation. I have directed these questions to the attention of the Director of the Federal Bureau of Investigation and am submitting herewith a statement of the questions and of the answers which we have received.

“(1) When an individual is interviewed by agents of the Bureau, what warning is given to him?

“The standard warning long given by Special Agents of the FBI to both suspects and persons under arrest is that the person has a right to say nothing and a right to counsel, and that any statement he does make may be used against him in court. Examples of this warning are to be found in the Westover case at 342 F.2d 684 (1965), and Jackson v. U.S., (119 U.S.App.D.C. 100) 337 F.2d 136 (1964), cert. den. 380 U.S. 935, 85 S.Ct. 1353,

“After passage of the Criminal Justice Act of 1964, which provides free counsel for Federal defendants unable to pay, we added to our instructions to Special Agents the requirement that any person who is under arrest for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, must also be advised of his right to free counsel if he is unable to pay, and the fact that such counsel will be assigned by the Judge. At the same time, we broadened the right to counsel warning*485 to read counsel of his own choice, or anyone else with whom he might wish to speak.

“(2) When is the warning given?

“The FBI warning is given to a suspect at the very outset of the interview, as shown in the Westover case, cited above. The warning may be given to a person arrested as soon as practicable after the arrest, as shown in the Jackson case, also cited above, and in U.S. v. Konigsberg, 336 F.2d 844 (1964), cert. den. (Celso v. United States) 379 U.S. 933 (85 S.Ct. 327, 13 L.Ed.2d 342) but in any event it must precede the interview with the person for a confession or admission of his own guilt.

“(3) What is the Bureau's practice in the event that (a) the individual requests counsel and (b) counsel appears?

“When the person who has been warned of his right to counsel decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point, Shultz v. U.S., 351 F.2d 287 ((10 Cir.) 1965). It may be continued, however, as to all matters other than the person's own guilt or innocence. If he is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent. For example, in Hiram v. U.S., 354 F.2d 4 ((9 Cir.) 1965), the Agent's conclusion that the person arrested had waived his right to counsel was upheld by the courts.

“A person being interviewed and desiring to consult counsel by telephone must be permitted to do so, as shown in Caldwell v. U.S., 351 F.2d 459 ((1 Cir.) 1965). When counsel **1634 appears in person, he is permitted to confer with his client in private.

*486 “(4) What is the Bureau's practice if the individual requests counsel, but cannot afford to retain an attorney?

“If any person being interviewed after warning of counsel decides that he wishes to consult with counsel before proceeding further the interview is terminated, as shown above. FBI Agents do not pass judgment on the ability of the person to pay for counsel. They do, however, advise those who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge.”FN55

FN55. We agree that the interviewing agent must exercise his judgment in determining whether the individual waives his right to counsel. Because of the constitutional basis of the right, however, the standard for waiver iis necessarily high. And, of course, the ultimate responsibility for resolving this constitutional question lies with the courts.

[70] [pic]The practice of the FBI can readily be emulated by state and local enforcement agencies. The argument that the FBI deals with different crimes than are dealt with by state authorities does not mitigate the significance of the FBI experience.FN56

FN56. Among the crimes within the enforcement jurisdiction of the FBI are kidnapping, 18 U.S.C. s 1201 (1964 ed.), white slavery, 18 U.S.C. ss 2421-2423 (1964 ed.), bank robbery, 18 U.S.C. s 2113 (1964 ed.), interstate transportation and sale of stolen property, 18 U.S.C. ss 2311-2317 (1964 ed.), all manner of conspiracies, 18 U.S.C. s 371 (1964 ed.), and violations of civil rights, 18 U.S.C. ss 241-242 (1964 ed.). See also 18 U.S.C. s 1114 (1964 ed.) (murder of officer or employee of the United States).

The experience in some other countries also suggests that the danger to law enforcement in curbs on interrogation is overplayed. The English procedure since 1912 under the Judges' Rules is significant. As recently *487 strengthened, the Rules require that a cautionary warning be given an accused by a police officer as soon as he has evidence that affords reasonable grounds for suspicion; they also require that any statement made be given by the accused without questioning by police.FN57 *488 The right of the individual to **1635 consult with an attorney during this period is expressly recognized.FN58

FN57. (1964) Crim.L.Rev., at 166-170. These Rules provide in part:‘II. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.‘The caution shall be in the following terms:“You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.'‘When after being cantioned a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons present.‘III. * * *‘(b) It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted.‘IV. All written statements made after caution shall be taken in the following manner:‘(a) If a person says that he wants to make a statement he shall be told that it is intended to make a written record of what he says.‘He shall always be asked whether he wishes to write down himself what he wants to say; if he says that he cannot write or that he would like someone to write it for him, a police officer may offer to write the statement for him. * * *‘(b) Any person writing his own statement shall be allowed to do so without any prompting as distinct from indicating to him what matters are material.‘(d) Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters: he shall not prompt him.’The prior Rules appear in Devlin, The Criminal Prosecution in England 137-141 (1958).Despite suggestions of some laxity in enforcement of the Rules and despite the fact some discretion as to admissibility is invested in the trial judge, the Rules are a significant influence in the English criminal law enforcement system. See, e.g., (1964) Crim.L.Rev., at 182; and articles collected in (1960) Crim.L.Rev., at 298-356.

FN58. The introduction to the Judges' Rules states in part:These Rules do not affect the principles‘(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so. * * *’ (1964) Crim.L.Rev., at 166-167.

The safeguards present under Scottish law may be even greater than in England. Scottish judicial decisions bar use in evidence of most confessions obtained through police interrogation.FN59 In India, confessions made to police not in the presence of a magistrate have been excluded*489 by rule of evidence since 1872, at a time when it operated under British law. FN60 Identical provisions appear in the Evidence Ordinance of Ceylon, enacted in 1895.FN61 Similarly, in our country the Uniform Code of Military Justice has long provided that no suspect may be interrogated without first being warned of his right not to make a statement and that any statement he makes may be used against him.FN62 Denial of the right to consult counsel during interrogation has also been proscribed by military tribunals. FN63 **1636 There appears to have been no marked detrimental effect on criminal law enforcement in these jurisdictions as a result of these rules. Conditions of law enforcement in our country are sufficiently similar to permit reference to this experience as assurance that lawlessness will not result from warning an individual of his rights or allowing him to exercise them. Moreover, it is consistent with our legal system that we give at least as much protection to these rights as is given in the jurisdictions described. We deal in our country with rights grounded in a specific requirement of the Fifth Amendment of the Constitution, *490 whereas other jurisdictions arrived at their conclusions on the basis of principles of justice not so specifically defined. FN64

FN59. As stated by the Lord Justice General in Chalmers v. H. M. Advocate, (1954) Sess.Cas. 66, 78 (J.C.):‘The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, e.g., to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded. Once the accused has been apprehended and charged he has the statutory right to a private interview with a solicitor and to be brought before a magistrate with all convenient speed so that he may, if so advised, emit a declaration in presence of his solicitor under conditions which safeguard him against prejudice.’

FN60. ‘No confession made to a police officer shall be provided as against a person accused of any offense.’ Indian Evidence Act s 25.‘No confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.’ Indian Evidence Act s 26. See 1 Ramaswami & Rajagopalan, Law of Evidence in India 553-569 (1962). To avoid any continuing effect of police pressure or inducement, the Indian Supreme Court has invalidated a confession made shortly after police brought a suspect before a magistrate, suggesting: ‘(I)t would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession.’ Sarwan Singh v. State of Punjab, 44 All India Rep. 1957, Sup.Ct. 637, 644.

FN61. I Legislative Enactments of Ceylon 211 (1958).

FN62. 10 U.S.C. s 831(b) (1964 ed.).

FN63. United States v. Rose, 24 CMR 251 (1957); United States v. Gunnels, 23 CMR 354 (1957).

FN64. Although no constitution existed at the time confessions were excluded by rule of evidence in 1872, India now has a written constitution which includes the provision that ‘No person accused of any offence shall be compelled to be a witness against himself.’ Constitution of India, Article 20(3). See Tope, The Constitution of India 63-67 (1960).

[71] [pic][72] [pic][73] [pic]It is also urged upon us that we withhold decision on this issue until state legislative bodies and advisory groups have had an opportunity to deal with these problems by rule making.FN65 We have already pointed out that the Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation. Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it. In any event, however, the issues presented are of constitutional dimensions and must be determined by the courts. The admissibility of a statement in the face of a claim that it was obtained in violation of the defendant's constitutional rights is an issue the resolution of which has long since been undertaken by this Court. See Hopt v. People of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). Judicial solutions to problems of constitutional dimension have evolved decade by decade. As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was our responsibility when Escobedo was before us and it is our *491 responsibility today. Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.

FN65. Brief for United States in No. 761, Westover v. United States, pp. 44-47; Brief for the State of New York as amicus curiae, pp. 35-39. See also Brief for the National District Attorneys Association as amicus curiae, pp. 23-26.

V.

Because of the nature of the problem and because of its recurrent significance in numerous cases, we have to this point discussed the relationship of the Fifth Amendment privilege to police interrogation without specific concentration on the facts of the cases before us. We turn now to these facts to consider the application to these cases of the constitutional principles discussed above. In each instance, we have concluded that statements were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege.

No. 759. Miranda v. Arizona.

On March 13, 1963, petitioner, Ernesto Miranda, was arrested at his home and taken in custody to a Phoenix police station. He was there identified by the complaining witness. The police then took him to ‘Interrogation Room No. 2’ of the detective bureau. There he was questioned by two police officers. The officers admitted at trial that Miranda was **1637 not advised that he had a right to have an attorney present.FN66 Two hours later, the *492 officers emerged from the interrogation room with a written confession signed by Miranda. At the top of the statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and ‘with full knowledge of my legal rights, understanding any statement I make may be used against me.’ FN67

FN66. Miranda was also convicted in a separate trial on an unrelated robbery charge not presented here for review. A statement introduced at that trial was obtained from Miranda during the same interrogation which resulted in the confession involved here. At the robbery trial, one officer testified that during the interrogation he did not tell Miranda that anything he said would be held against him or that he could consult with an attorney. The other officer stated that they had both told Miranda that anything he said would be used against him and that he was not required by law to tell them anything.

FN67. One of the officers testified that he read this paragraph to Miranda. Apparently, however, he did not do so until after Miranda had confessed orally.

At his trial before a jury, the written confession was admitted into evidence over the objection of defense counsel, and the officers testified to the prior oral confession made by Miranda during the interrogation. Miranda was found guilty of kidnapping and rape. He was sentenced to 20 to 30 years' imprisonment on each count, the sentences to run concurrently. On appeal, the Supreme Court of Arizona held that Miranda's constitutional rights were not violated in obtaining the confession and affirmed the conviction. 98 Ariz. 18, 401 P.2d 721. In reaching its decision, the court emphasized heavily the fact that Miranda did not specifically request counsel.

[74] [pic][75] [pic]We reverse. From the testimony of the officers and by the admission of respondent, it is clear that Miranda was not in any way apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner. Without these warnings the statements were inadmissible. The mere fact that he signed a statement which contained a typed-in clause stating that he had ‘full knowledge’ of his ‘legal rights' does not approach the knowing and intelligent waiver required to relinquish constitutional rights. Cf. Haynes v. State of Washington, 373 U.S. 503, 512-513, 83 S.Ct. 1336, 1342, 10 L.Ed.2d 513 (1963); *493 Haley v. State of Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 304, 92 L.Ed. 224 (1948) (opinion of Mr. Justice Douglas).

No. 760. Vignera v. New York.

Petitioner, Michael Vignera, was picked up by New York police on October 14, 1960, in connection with the robbery three days earlier of a Brooklyn dress shop. They took him to the 17th Detective Squad headquarters in Manhattan. Sometime thereafter he was taken to the 66th Detective Squad. There a detective questioned Vignera with respect to the robbery. Vignera orally admitted the robbery to the detective. The detective was asked on cross-examination at trial by defense counsel whether Vignera was warned of his right to counsel before being interrogated. The prosecution objected to the question and the trial judge sustained the objection. Thus, the defense was precluded from making any showing that warnings had not been given. While at the 66th Detective Squad, Vignera was identified by the store owner and a saleslady as the man who robbed the dress shop. At about 3 p.m. he was formally arrested. The police then transported him to still another station, the 70th Precinct in Brooklyn, ‘for detention.’ At 11 p.m. Vignera was questioned by an assistant district attorney in the presence of a hearing reporter who transcribed the questions and Vignera's answers. This verbatim account of these proceedings **1638 contains no statement of any warnings given by the assistant district attorney. At Vignera's trial on a charge of first degree robbery, the detective testified as to the oral confession. The transcription of the statement taken was also introduced in evidence. At the conclusion of the testimony, the trial judge charged the jury in part as follows:

‘The law doesn't say that the confession is void or invalidated because the police officer didn't advise the defendant as to his rights. Did you hear what *494 I said? I am telling you what the law of the State of New York is.’

Vignera was found guilty of first degree robbery. He was subsequently adjudged a third-felony offender and sentenced to 30 to 60 years' imprisonment. FN68 The conviction was affirmed without opinion by the Appellate Division, Second Department, 21 A.D.2d 752, 252 N.Y.S.2d 19, and by the Court of Appeals, also without opinion, 15 N.Y.2d 970, 259 N.Y.S.2d 857, 207 N.E.2d 527, remittitur amended, 16 N.y.2d 614, 261 N.Y.S.2d 65, 209 N.E.2d 110. In argument to the Court of Appeals, the State contended that Vignera had no constitutional right to be advised of his right to counsel or his privilege against self-incrimination.

FN68. Vignera thereafter successfully attacked the validity of one of the prior convictions, Vignera v. Wilkins, Civ. 9901 (D.C.W.D.N.Y. Dec. 31, 1961) (unreported), but was then resentenced as a second-felony offender to the same term of imprisonment as the original sentence. R. 31-33.

[76] [pic]We reverse. The foregoing indicates that Vignera was not warned of any of his rights before the questioning by the detective and by the assistant district attorney. No other steps were taken to protect these rights. Thus he was not effectively apprised of his Fifth Amendment privilege or of his right to have counsel present and his statements are inadmissible.

No. 761. Westover v. United States.

At approximately 9:45 p.m. on March 20, 1963, petitioner, Carl Calvin Westover, was arrested by local police in Kansas City as a suspect in two Kansas City robberies. A report was also received from the FBI that he was wanted on a felony charge in California. The local authorities took him to a police station and placed him in a line-up on the local charges, and at about 11:45 p.m. he was booked. Kansas City police interrogated Westover*495 on the night of his arrest. He denied any knowledge of criminal activities. The next day local officers interrogated him again throughout the morning. Shortly before noon they informed the FBI that they were through interrogating Westover and that the FBI could proceed to interrogate him. There is nothing in the record to indicate that Westover was ever given any warning as to his rights by local police. At noon, three special agents of the FBI continued the interrogation in a private interview room of the Kansas City Police Department, this time with respect to the robbery of a savings and loan association and a bank in Sacramento, California. After two or two and one-half hours, Westover signed separate confessions to each of these two robberies which had been prepared by one of the agents during the interrogation. At trial one of the agents testified, and a paragraph on each of the statements states, that the agents advised Westover that he did not have to make a statement, that any statement he made could be used against him, and that he had the right to see an attorney.

[77] [pic][78] [pic]Westover was tried by a jury in federal court and convicted of the California robberies. His statements were introduced at trial. He was sentenced to 15 years' imprisonment on each count, the sentences to run consecutively. On appeal, the conviction was affirmed by the Court of Appeals for the Ninth Circuit. 342 F.2d 684.

**1639 We reverse. On the facts of this case we cannot find that Westover knowingly and intelligently waived his right to remain silent and his right to consult with counsel prior to the time he made the statement.FN69 At the *496 time the FBI agents began questioning Westover, he had been in custody for over 14 hours and had been interrogated at length during that period. The FBI interrogation began immediately upon the conclusion of the interrogation by Kansas City police and was conducted in local police headquarters. Although the two law enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning. There is no evidence of any warning given prior to the FBI interrogation nor is there any evidence of an articulated waiver of rights after the FBI commenced its interrogation. The record simply shows that the defendant did in fact confess a short time after being turned over to the FBI following interrogation by local police. Despite the fact that the FBI agents gave warnings at the outset of their interview, from Westover's point of view the warnings came at the end of the interrogation process. In these circumstances an intelligent waiver of constitutional rights cannot be assumed.

FN69. The failure of defense counsel to object to the introduction of the confession at trial, noted by the Court of Appeals and emphasized by the Solicitor General, does not preclude our consideration of the issue. Since the trial was held prior to our decision in Escobedo and, of course, prior to our decision today making the objection available, the failure to object at trial does not constitute a waiver of the claim. See, e.g., United States ex rel. Angelet v. Fay, 333 F.2d 12, 16 (C.A.2d Cir. 1964), aff'd, 381 U.S. 654, 85 S.Ct. 1750, 14 L.Ed.2d 623 (1965). Cf. Ziffrin, Inc. v. United States, 318 U.S. 73, 78, 63 S.Ct. 465, 87 L.Ed. 621 (1943).

[79] [pic]We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogation in the same police station-in the same compelling surroundings. Thus, in obtaining a confession from Westover*497 the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of warnings alone was not sufficient to protect the privilege.

No. 584. California v. Stewart.

In the course of investigating a series of purse-snatch robberies in which one of the victims had died of injuries inflicted by her assailant, respondent, Roy Allen Stewart, was pointed out to Los Angeles police as the endorser of dividend checks taken in one of the robberies. At about 7:15 p.m., January 31, 1963, police officers went to Stewart's house and arrested him. One of the officers asked Stewart if they could search the house, to which he replied, ‘Go ahead.’ The search turned up various items taken from the five robbery victims. At the time of Stewart's arrest, police also arrested Stewart's wife and three other persons who were visiting him. These four were jailed along with Stewart and were interrogated. Stewart was taken to the University Station of the Los Angeles Police Department where he was placed in a cell. During the next five days, police interrogated Stewart on nine different occasions. Except during the first interrogation session, when he was confronted with an accusing witness, Stewart was isolated with his interrogators.

**1640 During the ninth interrogation session, Stewart admitted that he had robbed the deceased and stated that he had not meant to hurt her. Police then brought Stewart before a magistrate for the first time. Since there was no evidence to connect them with any crime, the police then released the other four persons arrested with him.

Nothing in the record specifically indicates whether Stewart was or was not advised of his right to remain silent or his right to counsel. In a number of instances, *498 however, the interrogating officers were asked to recount everything that was said during the interrogations. None indicated that Stewart was ever advised of his rights.

[80] [pic]Stewart was charged with kidnapping to commit robbery, rape, and murder. At his trial, transcripts of the first interrogation and the confession at the last interrogation were introduced in evidence. The jury found Stewart guilty of robbery and first degree murder and fixed the penalty as death. On appeal, the Supreme Court of California reversed. 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97. It held that under this Court's decision in Escobedo, Stewart should have been advised of his right to remain silent and of his right to counsel and that it would not presume in the face of a silent record that the police advised Stewart of his rights.FN70

FN70. Because of this disposition of the case, the California Supreme Court did not reach the claims that the confession was coerced by police threats to hold his ailing wife in custody until he confessed, that there was no hearing as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and that the trial judge gave an instruction condemned by the California Supreme Court's decision in People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33 (1964).

[81] [pic][82] [pic]We affirm.FN71 In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and intelligent waiver of *499 these rights be assumed on a silent record. Furthermore, Stewart's steadfast denial of the alleged offenses through eight of the nine interrogations over a period of five days is subject to no other construction than that he was compelled by persistent interrogation to forgo his Fifth Amendment privilege.

FN71. After certiorari was granted in this case, respondent moved to dismiss on the ground that there was no final judgment from which the State could appeal since the judgment below directed that he be retried. In the event respondent was successful in obtaining an acquittal on retrial, however, under California law the State would have no appeal. Satisfied that in these circumstances the decision below constituted a final judgment under 28 U.S.C. s 1257(3) (1964 ed.), we denied the motion. 383 U.S. 903, 86 S.Ct. 885.

Therefore, in accordance with the foregoing, the judgments of the Supreme Court of Arizona in No. 759, of the New York Court of Appeals in No. 760, and of the Court of Appeals for the Ninth Circuit in No. 761 are reversed. The judgment of the Supreme Court of California in No. 584 is affirmed. It is so ordered.

Judgments of Supreme Court of Arizona in No. 759, of New York Court of Appeals in No. 760, and of the Court of Appeals for the Ninth Circuit in No. 761 reversed.

Judgment of Supreme Court of California in No. 584 affirmed.

Mr. Justice CLARK, dissenting in Nos. 759, 760, and 761, and concurring in the result in No. 584.

It is with regret that I find it necessary to write in these cases. However, I am unable to join the majority because its opinion goes too far on too little, while my **1641 dissenting brethren do not go quite far enough. Nor can I join in the Court's criticism of the present practices of police and investigatory agencies as to custodial interrogation. The materials it refers to as ‘police manuals'FN1 are, as I read them, merely writings in this filed by professors and some police officers. Not one is shown by the record here to be the official manual of any police department, much less in universal use in crime detection. Moreover the examples of police brutality mentioned by the CourtFN2 are rare exceptions to the thousands of cases *500 that appear every year in the law reports. The police agencies-all the way from municipal and state forces to the federal bureaus-are responsible for law enforcement and public safety in this country. I am proud of their efforts, which in my view are not fairly characterized by the Court's opinion.

FN1. E.g., Inbau & Reid, Criminal Interrogation and Confessions (1962); O'Hara, Fundamentals of Criminal Investigation (1956); Dienstein, Technics for the Crime Investigator (1952); Mulbar, Interrogation (1951); Kidd, Police Interrogation (1940).

FN2. As developed by my Brother HARLAN, post, pp. 1644-1649, such cases, with the exception of the long-discredited decision in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), were adequately treated in terms of due process.

I.

The ipse dixit of the majority has no support in our cases. Indeed, the Court admits that ‘we might not find the defendants' statements (here) to have been involuntary in traditional terms.’ Ante, p. 1618. In short, the Court has added more to the requirements that the accused is entitled to consult with his lawyer and that he must be given the traditional warning that he may remain silent and that anything that he says may be used against him. Escobedo v. State of Illinois, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1764-1765, 12 L.Ed.2d 977 (1964). Now, the Court fashions a constitutional rule that the police may engage in no custodial interrogation without additionally advising the accused that he has a right under the Fifth Amendment to the presence of counsel during interrogation and that, if he is without funds, counsel will be furnished him. When at any point during an interrogation the accused seeks affirmatively or impliedly to invoke his rights to silence or counsel, interrogation must be forgone or postponed. The Court further holds that failure to follow the new procedures requires inexorably the exclusion of any statement by the accused, as well as the fruits thereof. Such a strict constitutional specific inserted at the nerve center of crime detection may well kill the patient.FN3 *501 Since there is at **1642 this time a paucity of information and an almost total lack of empirical knowledge on the practical operation of requirements truly comparable to those announced by the majority, I would be more restrained lest we go too far too fast.

FN3. The Court points to England, Scotland, Ceylon and India as having equally rigid rules. As my Brother Harlan points out, post, pp. 1652-1653, the Court is mistaken in this regard, for it overlooks counterbalancing prosecutorial advantages. Moreover, the requirements of the Federal Bureau of Investigation do not appear from the Solicitor General's latter, ante, pp. 1633-1634, to be as strict as those imposed today in at least two respects: (1) The offer of counsel is articulated only as ‘a right to counsel’; nothing is said about a right to have counsel present at the custodial interrogation. (See also the examples cited by the Solicitor General, Westover v. United States, 342 F.2d 684, 685 (9 Cir., 1965) (‘right to consult counsel’); Jackson v. United States, 119 U.S.App.D.C. 100, 337 F.2d 136, 138 (1964) (accused ‘entitled to an attorney’).) Indeed, the practice is that whenever the suspect ‘decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point. * * * When counsel appears in person, he is permitted to confer with his client in private.’ This clearly indicates that the FBI does not warn that counsel may be present during custodial interrogation. (2) The Solicitor General's letter states: ‘(T)hose who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, (are advised) of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge.’ So phrased, this warning does not indicate that the agent will secure counsel. Rather, the statement may well be interpreted by the suspect to mean that the burden is placed upon himself and that he may have counsel appointed only when brought before the judge or at trial-but not at custodial interrogation. As I view the FBI practice, it is not as broad as the one laid down today by the Court.

II.

Custodial interrogation has long been recognized as ‘undoubtedly an essential tool in effective law enforcement.’ Haynes v. State of Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513 (1963). Recognition of this fact should put us on guard against the promulgation of doctrinaire rules. Especially is this true where the Court finds that ‘the Constitution has prescribed’ its holding and where the light of our past cases, from Hopt v. People of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), down to Haynes v. State of Washington, supra, is to *502 the contrary. Indeed, even in Escobedo the Court never hinted that an affirmative ‘waiver’ was a prerequisite to questioning; that the burden of proof as to waiver was on the prosecution; that the presence of counsel-absent a waiver-during interrogation was required; that a waiver can be withdrawn at the will of the accused; that counsel must be furnished during an accusatory stage to those unable to pay; nor that admissions and exculpatory statements are ‘confessions.’ To require all those things at one gulp should cause the Court to choke over more cases than Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958), and Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958), which it expressly overrules today.

The rule prior to today-as Mr. Justice Goldberg, the author of the Court's opinion in Escobedo, stated it in Haynes v. Washington-depended upon ‘a totality of circumstances evidencing an involuntary * * * adminission of guilt.’ 373 U.S., at 514, 83 S.Ct. at 1343. And he concluded:

‘Of course, detection and solution of crime is, at best, a difficult and arduous task requiring determination and persistence on the part of all responsible officers charged with the duty of law enforcement. And, certainly, we do not mean to suggest that all interrogation of witnesses and suspects is impermissible. Such questioning is undoubtedly an essential took in effective law enforcement. The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases such as this where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused. * * * We are here impelled to the conclusion, from all of the facts presented, that the bounds of due process have been exceeded.’ Id., at 514-515, 83 S.Ct. at 1344.

*503 III.

I would continue to follow that rule. Under the ‘totality of circumstances' rule of which my Brother Goldberg spoke in Haynes, I would consider in each case whether the police officer prior to custodial interrogation added the warning that the suspect might have counsel present at the interrogation and, further, that a court would appoint one at his request if he was too poor to employ counsel. In the absence of warnings, the burden would be on the State to prove that counsel was knowingly and intelligently waived or that in the totality of the circumstances, including the failure to give **1643 the necessary warnings, the confession was clearly voluntary.

Rather than employing the arbitrary Fifth Amendment ruleFN4 which the Court lays down I would follow the more pliable dictates of the Due Process Clauses of the Fifth and Fourteenth Amendments which we are accustomed to administering and which we know from our cases are effective instruments in protecting persons in police custody. In this way we would not be acting in the dark nor in one full sweep changing the traditional rules of custodial interrogation which this Court has for so long recognized as a justifiable and proper tool in balancing individual rights against the rights of society. It will be soon enough to go further when we are able to appraise with somewhat better accuracy the effect of such a holding.

FN4. In my view there is ‘no significant support’ in our cases for the holding of the Court today that the Fifth Amendment privilege, in effect, forbids custodial interrogation. For a discussion of this point see the dissenting opinion of my Brother WHITE, post, pp. 1655-1657.

I would affirm the convictions in Miranda v. Arizona, No. 759; Vignera v. New York, No. 760; and Westover v. United States, No. 761. In each of those cases I find from the circumstances no warrant for reversal. In *504 California v. Stewart, No. 584, I would dismiss the writ of certiorari for want of a final judgment, 28 U.S.C. s 1257(3) (1964 ed.); but if the merits are to be reached I would affirm on the ground that the State failed to fulfill its burden, in the absence of a showing that appropriate warnings were given, of proving a waiver or a totality of circumstances showing voluntariness. Should there be a retrial, I would leave the State free to attempt to prove these elements.

Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.

I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now once all sides of the problem are considered.

I. INTRODUCTION

At the outset, it is well to note exactly what is required by the Court's new constitutional code of rules for confessions. The foremost requirement, upon which later admissibility of a confession depends, is that a fourfold warning be given to a person in custody before he is questioned, namely, that he has a right to remain silent, that anything he says may be used against him, that he has a right to have present an attorney during the questioning, and that if indigent he has a right to a lawyer without charge. To forgo these rights, some affirmative statement of rejection is seemingly required, and threats, tricks, or cajolings to obtain this waiver are forbidden. If before or during questioning the suspect seeks to invoke his right to remain silent, interrogation must be forgone or cease; a request for counsel *505 brings about the same result until a lawyer is procured. Finally, there are a miscellany of minor directives, for example, the burden of proof of waiver is on the State, admissions and exculpatory statements are treated just like confessions, withdrawal of a waiver is always permitted, and so forth.FN1

FN1. My discussion in this opinion is directed to the main questions decided by the Court and necessary to its decision; in ignoring some of the collateral points, I do not mean to imply agreement.

While the fine points of this scheme are far less clear than the Court admits, the tenor is quite apparent. The new **1644 rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward ‘voluntariness' in a utopian sense, or to view it from a different angle, voluntariness with a vengeance.

To incorporate this notion into the Constitution requires a strained reading of history and precedent and a disregard of the very pragmatic concerns that alone may on occasion justify such strains. I believe that reasoned examination will show that the Due Process Clauses provide an adequate tool for coping with confessions and that, even if the Fifth Amendment privilege against self-incrimination be invoked, its precedents taken as a whole do not sustain the present rules. Viewed as a choice based on pure policy, these new rules prove to be a highly debatable, if not one-sided, appraisal of the competing interests, imposed over widespread objection, at the very time when judicial restraint is most called for by the circumstances.

*506 II. CONSTITUTIONAL PREMISES.

It is most fitting to begin an inquiry into the constitutional precedents by surverying the limits on confessions the Court has evolved under the Due Process Clause of the Fourteenth Amendment. This is so because these cases show that there exists a workable and effective means of dealing with confessions in a judicial manner; because the cases are the baseline from which the Court now departs and so serve to measure the actual as opposed to the professed distance it travels; and because examination of them helps reveal how the Court has coasted into its present position.

The earliest confession cases in this Court emerged from federal prosecutions and were settled on a nonconstitutional basis, the Court adopting the common-law rule that the absence of inducements, promises, and threats made a confession voluntary and admissible. Hopt v. People, of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; Pierce v. United States, 160 U.S. 355, 16 S.Ct. 321, 40 L.Ed. 454. While a later case said the Fifth Amendment privilege controlled admissibility, this proposition was not itself developed in subsequent decisions.FN2 The Court did, however, heighten the test of admissibility in federal trials to one of voluntariness ‘in fact,’ Ziang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. 131 *507 (quoted, ante, p. 1621), and then by and large left federal judges to apply the same standards the Court began to derive in a string of state court cases.

FN2. The case was Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (quoted, ante, p. 1621). Its historical premises were afterwards disproved by Wigmore, who concluded ‘that no assertions could be more unfounded.’ 3 Wigmore, Evidence s 823, at 250, n. 5 (3d ed. 1940). The Court in United States v. Carignan, 342 U.S. 36, 41, 72 S.Ct. 97, 100, 96 L.Ed. 48, declined to choose between Bram and Wigmore, and Stein v. People of State of New York, 346 U.S. 156, 191, n. 35, 73 S.Ct. 1077, 1095, 97 L.Ed. 1522, cast further doubt on Bram. There are, however, several Court opinions which assume in dicta the relevance of the Fifth Amendment privilege to confessions. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048; see Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347, 83 S.Ct. 448, 453, 9 L.Ed.2d 357. On Bram and the federal confession cases generally, see Developments in the Law-Confessions, 79 Harv.L.Rev. 935, 959-961 (1966).

This new line of decisions, testing admissibility by the Due Process Clause, began in 1936 with Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, and must now embrace somewhat more than 30 full opinions of **1645 the Court.FN3 While the voluntariness rubric was repeated in many instances, e.g., Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481, the Court never pinned it down to a single meaning but on the contrary infused it with a number of different values. To travel quickly over the main themes, there was an initial emphasis on reliability, e.g., Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663, supplemented by concern over the legality and fairness of the police practices, e.g., Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192, in an ‘accusatorial’ system of law enforcement, Watts v. State of Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801, and eventually by close attention to the individual's state of mind and capacity for effective choice, e.g., Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325. The outcome was a continuing re-evaluation on the facts of each case of how much pressure on the suspect was permissible.FN4

FN3. Comment, 31 U.Chi.L.Rev. 313 & n. 1 (1964), states that by the 1963 Term 33 state coerced-confession cases had been decided by this Court, apart from per curiams. Spano v. People of State of New York, 360 U.S. 315, 321, n. 2, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265, collects 28 cases.

FN4. Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel, 66 Col.L.Rev. 62, 73 (1966): ‘In fact, the concept of involuntariness seems to be used by the courts as a shorthand to refer to practices which are repellent to civilized standards of decency or which, under the circumstances, are thought to apply a degree of pressure to an individual which unfairly impairs his capacity to make a rational choice.’ See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449, 452-458 (1964); Developments, supra, n. 2, at 964-984.

*508 Among the criteria often taken into account were threats or imminent danger, e.g., Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975, physical deprivations such as lack of sleep or food, e.g., Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948, repeated or extended interrogation, e.g., Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, limits on access to counsel or friends, Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Cicenia v. La. Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523, length and illegality of detention under state law, e.g., Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, and individual weakness or incapacities, Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922. Apart from direct physical coercion, however, no single default or fixed combination of defaults guaranteed exclusion, and synopses of the cases would serve little use because the overall gauge has been steadily changing, usually in the direction of restricting admissibility. But to mark just what point had been reached before the Court jumped the rails in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, it is worth capsulizing the then-recent case of Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336. There, Haynes had been held some 16 or more hours in violation of state law before signing the disputed confession, had received no warnings of any kind, and despite requests had been refused access to his wife or to counsel, the police indicating that access would be allowed after a confession. Emphasizing especially this last inducement and rejecting some contrary indicia of voluntariness, the Court in a 5-to-4 decision held the confession inadmissible.

There are several relevant lessons to be drawn from this constitutional history. The first is that with over 25 years of precedent the Court has developed an elaborate, sophisticated, and sensitive approach to admissibility of confessions. It is ‘judicial’ in its treatment of one case at a time, see **1646 Culombe v. Connecticut, 367 U.S. 568, 635, 81 S.Ct. 1860, 1896, 6 L.Ed.2d 1037 (concurring opinion of The Chief Justice), flexible in its ability to respond to the endless mutations of fact presented, and ever more familiar to the lower courts. *509 Of course, strict certainty is not obtained in this developing process, but this is often so with constitutional principles, and disagreement is usually confined to that borderland of close cases where it matters least.

The second point is that in practice and from time to time in principle, the Court has given ample recognition to society's interest in suspect questioning as an instrument of law enforcement. Cases countenancing quite significant pressures can be cited without difficulty,FN5 and the lower courts may often have been yet more tolerant. Of course the limitations imposed today were rejected by necessary implication in case after case, the right to warnings having been explicitly rebuffed in this Court many years ago. Powers v. United States, 223 U.S. 303, 32 S.Ct. 281, 56 L.Ed. 448; Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090. As recently as Haynes v. State of Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, the Court openly acknowledged that questioning of witnesses and suspects ‘is undoubtedly an essential tool in effective law enforcement.’ Accord, Crooker v. State of California, 357 U.S. 433, 441, 78 S.Ct. 1287, 1292.

FN5. See the cases synopsized in Herman, supra, n. 4, at 456, nn. 36-39. One not too distant example is Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872, in which the suspect was kicked and threatened after his arrest, questioned a little later for two hours, and isolated from a lawyer trying to see him; the resulting confession was held admissible.

Finally, the cases disclose that the language in many of the opinions overstates the actual course of decision. It has been said, for example, that an admissible confession must be made by the suspect ‘in the unfettered exercise of his own will,’ Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, and that ‘a prisoner is not ‘to be made the deluded instrument of his own coniviction,‘‘ Culombe v. Connecticut, 367 U.S. 568, 581, 81 S.Ct. 1860, 1867, 6 L.Ed.2d 1037 (Frankfurter, J., announcing the Court's judgment and an opinion). Though often repeated, such principles are rarely observed in full measure. Even the word ‘voluntary’ may be deemed somewhat*510 misleading, especially when one considers many of the confessions that have been brought under its umbrella. See, e.g., supra, n. 5. The tendency to overstate may be laid in part to the flagrant facts often before the Court; but in any event one must recognize how it has tempered attitudes and lent some color of authority to the approach now taken by the Court.

I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a trompe l'oeil. The Court's opinion in my view reveals no adequate basis for extending the Fifth Amendment's privilege against self-incrimination to the police station. Far more important, it fails to show that the Court's new rules are well supported, let alone compelled, by Fifth Amendment precedents. Instead, the new rules actually derive from quotation and analogy drawn from precedents under the Sixth Amendment, which should properly have no bearing on police interrogation.

The Court's opening contention, that the Fifth Amendment governs police station confessions, is perhaps not an impermissible extension of the law but it has little to commend itself in the present circumstances. Historically, the privilege against self-incrimination did not bear at all on the use of extra-legal confessions, for which distinct standards evolved; indeed, ‘the history of the two principles is wide apart, differing by one hundred years in origin, and derived through separate**1647 lines of precedents. * * *’ 8 Wigmore, Evidence s 2266, at 401 (McNaughton rev. 1961). Practice under the two doctrines has also differed in a number of important respects.FN6 *511 Even those who would readily enlarge the privilege must concede some linguistic difficulties since the Fifth Amendment in terms proscribes only compelling any person ‘in any criminal case to be a witness against himself.’ Cf. Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 25-26 (1965).

FN6. Among the examples given in 8 Wigmore, Evidence s 2266, at 401 (McNaughton rev. 1961), are these: the privilege applies to any witness, civil or criminal, but the confession rule protects only criminal defendants; the privilege deals only with compulsion, while the confession rule may exclude statements obtained by trick or promise; and where the privilege has been nullified-as by the English Bankruptcy Act-the confession rule may still operate.

Though weighty, I do not say these points and similar ones are conclusive, for, as the Court reiterates, the privilege embodies basic principles always capable of expansion.FN7 Certainly the privilege does represent a protective concern for the accused and an emphasis upon accusatorial rather than inquisitorial values in law enforcement, although this is similarly true of other limitations such as the grand jury requirement and the reasonable doubt standard. Accusatorial values, however, have openly been absorbed into the due process standard governing confessions; this indeed is why at present ‘the kinship of the two rules (governing confessions and self-incrimination) is too apparent for denial.’ McCormick, Evidence 155 (1954). Since extension of the general principle has already occurred, to insist that the privilege applies as such serves only to carry over inapposite historical details and engaging rhetoric and to obscure the policy choices to be made in regulating confessions.

FN7. Additionally, there are precedents and even historical arguments that can be arrayed in favor of bringing extra-legal questioning within the privilege. See generally Maguire, Evidence of Guilt s 2.03 at 15-16 (1959).

Having decided that the Fifth Amendment privilege does apply in the police station, the Court reveals that the privilege imposes more exacting restrictions than does the Fourteenth Amendment's voluntariness test.FN8 *512 It then emerges from a discussion of Escobedo that the Fifth Amendment requires for an admissible confession that it be given by one distinctly aware of his right not to speak and shielded from ‘the compelling atmosphere’ of interrogation. See ante, pp. 1623-1624. From these key premises, the Court finally develops the safeguards of warning, counsel, and so forth. I do not believe these premises are sustained by precedents under the Fifth Amendment. FN9

FN8. This, of course, is implicit in the Court's introductory announcement that ‘(o)ur decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (extending the Fifth Amendment privilege to the States) necessitates an examination of the scope of the privilege in state cases as well.’ Ante, p. 1622. It is also inconsistent with Malloy itself, in which extension of the Fifth Amendment to the States rested in part on the view that the Due Process Clause restriction on state confessions has in recent years been ‘the same standard’ as that imposed in federal prosecutions assertedly by the Fifth Amendment. 378 U.S., at 7, 84 S.Ct., at 1493.

FN9. I lay aside Escobedo itself; it contains no reasoning or even general conclusions addressed to the Fifth Amendment and indeed its citation in this regard seems surprising in view of Escobedo's primary reliance on the Sixth Amendment.

The more important premise is that pressure on the suspect must be eliminated though it be only the subtle influence of the atmosphere and surroundings. The Fifth Amendment, however, has never been thought to forbid all pressure to incriminate one's self in the situations **1648 covered by it. On the contrary, it has been held that failure to incriminate one's self can result in denial of removal of one's case from state to federal court, State of Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449; in refusal of a military commission, Orloff v. Willoughby, 345 U.S 83, 73 S.Ct. 534, 97 L.Ed. 842; in denial of a discharge in bankruptcy, Kaufman v. Hurwitz, 4 Cir., 176 F.2d 210; and in numerous other adverse consequences. See 8 Wigmore, Evidence s 2272, at 441-444, n. 18 (McNaughton rev. 1961); Maguire, Evidence of Guilt s 2.062 (1959). This is not to say that short of jail or torture any sanction is permissible in any case; policy and history alike may impose sharp limits. See, e.g., *513 Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. However, the Court's unspoken assumption that any pressure violates the privilege is not supported by the precedents and it has failed to show why the Fifth Amendment prohibits that relatively mild pressure the Due Process Clause permits.

The Court appears similarly wrong in thinking that precise knowledge of one's rights is a settled prerequisite under the Fifth Amendment to the loss of its protections. A number of lower federal court cases have held that grand jury witnesses need not always be warned of their privilege, e.g., United States v. Scully, 2 Cir., 225 F.2d 113, 116, and Wigmore states this to be the better rule for trial witnesses. See 8 Wigmore, Evidence s 2269 (McNaughton rev. 1961). Cf. Henry v. State of Mississippi, 379 U.S. 443, 451-452, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (waiver of constitutional rights by counsel despite defendant's ignorance held allowable). No Fifth Amendment precedent is cited for the Court's contrary view. There might of course be reasons apart from Fifth Amendment precedent for requiring warning or any other safeguard on questioning but that is a different matter entirely. See infra, pp. 1649-1650.

A closing word must be said about the Assistance of Counsel Clause of the Sixth Amendment, which is never expressly relied on by the Court but whose judicial precedents turn out to be linchpins of the confession rules announced today. To support its requirement of a knowing and intelligent waiver, the Court cites Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, ante, p. 1628; appointment of counsel for the indigent suspect is tied to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, ante, p. 1627; the silent-record doctrine is borrowed from Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, ante, p. 1628, as is the right to an express offer of counsel, ante, p. 1626. All these cases imparting glosses to the Sixth Amendment concerned counsel at trial or on appeal. While the Court finds no petinent difference between judicial proceedings and police interrogation, I believe *514 the differences are so vast as to disqualify wholly the Sixth Amendment precedents as suitable analogies in the present cases. FN10

FN10. Since the Court conspicuously does not assert that the Sixth Amendment itself warrants its new police-interrogation rules, there is no reason now to draw out the extremely powerful historical and precedential evidence that the Amendment will bear no such meaning. See generally Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 943-948 (1965).

The only attempt in this Court to carry the right to counsel into the station house occurred in Escobedo, the Court repeating several times that that stage was no less ‘critical’ than trial itself. See 378 U.S. 485-488, 84 S.Ct. 1762-1763. This is hardly persuasive when we consider that a grand jury inquiry, the filing of a certiorari petition, and certainly the purchase of narcotics by an undercover agent from a prospective defendant may all be equally ‘critical’ yet provision of counsel and advice on the score have never been **1649 thought compelled by the Constitution in such cases. The sound reason why this right is so freely extended for a criminal trial is the severe injustice risked by confronting an untrained defendant with a range of technical points of law, evidence, and tactics familiar to the prosecutor but not to himself. This danger shrinks markedly in the police station where indeed the lawyer in fulfilling his professional responsibilities of necessity may become an obstacle to truthfinding. See infra, n. 12. The Court's summary citation of the Sixth Amendment cases here seems to me best described as ‘the domino method of constitutional adjudication * * * wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation.’ Friendly, supra, n. 10, at 950.

III. POLICY CONSIDERATIONS.

Examined as an expression of public policy, the Court's new regime proves so dubious that there can be no due *515 compensation for its weakness in constitutional law. The foregoing discussion has shown, I think, how mistaken is the Court in implying that the Constitution has struck the balance in favor of the approach the Court takes. Ante, p. 1630. Rather, precedent reveals that the Fourteenth Amendment in practice has been construed to strike a different balance, that the Fifth Amendment gives the Court little solid support in this context, and that the Sixth Amendment should have no bearing at all. Legal history has been stretched before to satisfy deep needs of society. In this instance, however, the Court has not and cannot make the powerful showing that its new rules are plainly desirable in the context of our society, something which is surely demanded before those rules are engrafted onto the Constitution and imposed on every State and county in the land.

Without at all subscribing to the generally black picture of police conduct painted by the Court, I think it must be frankly recognized at the outset that police questioning allowable under due process precedents may inherently entail some pressure on the suspect and may seek advantage in his ignorance or weaknesses. The atmosphere and questioning techniques, proper and fair though they be, can in themselves exert a tug on the suspect to confess, and in this light ‘(t)o speak of any confessions of crime made after arrest as being ‘voluntary’ or ‘uncoerced’ is somewhat inaccurate, although traditional. A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser.' Ashcraft v. State of Tennessee, 322 U.S. 143, 161, 64 S.Ct. 921, 929, 88 L.Ed. 1192 (Jackson, J., dissenting). Until today, the role of the Constitution has been only to sift out undue pressure, not to assure spontaneous confessions.FN11

FN11. See supra, n. 4, and text. Of course, the use of terms like voluntariness involves questions of law and terminology quite as much as questions of fact. See Collins v. Beto, 5 Cir., 348 F.2d 823, 832 (concurring opinion); Bator & Vorenberg, supra, n. 4, at 72-73.

*516 The Court's new rules aim to offset these minor pressures and disadvantages intrinsic to any kind of police interrogation. The rules do not serve due process interests in preventing blatant coercion since, as I noted earlier, they do nothing to contain the policeman who is prepared to lie from the start. The rules work for reliability in confessions almost only in the Pickwickian sense that they can prevent some from being given at all.FN12 **1650 In short, the benefit of this new regime is simply to lessen or wipe out the inherent compulsion and inequalities to which the Court devotes some nine pages of description. Ante, pp. 1614-1618.

FN12. The Court's vision of a lawyer ‘mitigat(ing) the dangers of untrustworthiness' ante, p. 1626) by witnessing coercion and assisting accuracy in the confession is largely a fancy; for if counsel arrives, there is rarely going to be a police station confession. Watts v. State of Indiana, 338 U.S. 49, 59, 69 S.Ct. 1347, 1358, 93 L.Ed. 1801 (separate opinion of Jackson, J.): '(A)ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.’ See Enker & Elsen, Counsel for the Suspect, 49 Minn.L.Rev. 47, 66-68 (1964).

What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to frustrate, an instrument of law enforcement that has long and quite reasonably been thought worth the price paid for it.FN13 There can be little doubt that the Court's new code would markedly decrease the number of confessions. To warn the suspect that he may remain silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver by the suspect and an end to questioning whenever he demurs *517 must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation. See, supra, n. 12.

FN13. This need is, of course, what makes so misleading the Court's comparison of a probate judge readily setting aside as involuntary the will of an old lady badgered and beleaguered by the new heirs. Ante, p. 1619, n. 26. With wills, there is no public interest save in a totally free choice; with confessions, the solution of crime is a countervailing gain, however the balance is resolved.

How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role of confessions is notoriously incomplete, see Developments, supra, n. 2, at 941-944, and little is added by the Court's reference to the FBI experience and the resources believed wasted in interrogation. See infra, n. 19, and text. We do know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in crime control,FN14 and that the Court is taking a real risk with society's welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation.

FN14. See, e.g., the voluminous citations to congressional committee testimony and other sources collected in Culombe v. Connecticut, 367 U.S. 568, 578-579, 81 S.Ct. 1860, 1865, 1866, 6 L.Ed.2d 1037, (Frankfurter, J., announcing the Court's judgment and an opinion).

While passing over the costs and risks of its experiment, the Court portrays the evils of normal police questioning in terms which I think are exaggerated. Albeit stringently confined by the due process standards interrogation is no doubt often inconvenient and unpleasant for the suspect. However, it is no less so for a man to be arrested and jailed, to have his house searched, or to stand trial in court, yet all this may properly happen to the most innocent given probable cause, a warrant, or an indictment. Society has always paid a stiff price for law and order, and peaceful interrogation is not one of the dark moments of the law.

This brief statement of the competing considerations seems to me ample proof that the Court's preference is highly debatable at best and therefore not to be read into *518 the Constitution. However, it may make the analysis more graphic to consider the actual facts of one of the four cases reversed by the Court. Miranda v. Arizona serves best, being neither the hardest nor easiest of the four under the Court's standards.FN15

FN15. In Westover, a seasoned criminal was practically given the Court's full complement of warnings and did not heed them. The Stewart case, on the other hand, involves long detention and successive questioning. In Vignera, the facts are complicated and the record somewhat incomplete.

On March 3, 1963, an 18-year-old girl was kidnapped and forcibly raped near Phoenix, Arizona. Ten days later, on the morning of March 13, petitioner Miranda was arrested and taken to the police station. At this time Miranda was 23 years **1651 old, indigent, and educated to the extent of completing half the ninth grade. He had ‘an emotional illness' of the schizophrenic type, according to the doctor who eventually examined him; the doctor's report also stated that Miranda was ‘alert and oriented as to time, place, and person,’ intelligent within normal limits, competent to stand trial, and sane within the legal definitoin. At the police station, the victim picked Miranda out of a lineup, and two officers then took him into a separate room to interrogate him, starting about 11:30 a.m. Though at first denying his guilt, within a short time Miranda gave a detailed oral confession and then wrote out in his own hand and signed a brief statement admitting and describing the crime. All this was accomplished in two hours or less without any force, threats or promises and-I will assume this though the record is uncertain, ante, 1636-1637 and nn. 66-67-without any effective warnings at all.

Miranda's oral and written confessions are now held inadmissible under the Court's new rules. One is entitled to feel astonished that the Constitution can be read to produce this result. These confessions were obtained*519 during brief, daytime questioning conducted by two officers and unmarked by any of the traditional indicia of coercion. They assured a conviction for a brutal and unsettling crime, for which the police had and quite possibly could obtain little evidence other than the victim's identifications, evidence which is frequently unreliable. There was, in sum, a legitimate purpose, no perceptible unfairness, and certainly little risk of injustice in the interrogation. Yet the resulting confessions, and the responsible course of police practice they represent, are to be sacrificed to the Court's own finespun conception of fairness which I seriously doubt is shared by many thinking citizens in this country.FN16

FN16. ‘(J)ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.’ Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674 (Cardozo, J.).

The tenor of judicial opinion also falls well short of supporting the Court's new approach. Although Escobedo has widely been interpreted as an open invitation to lower courts to rewrite the law of confessions, a significant heavy majority of the state and federal decisions in point have sought quite narrow interpretations.FN17 Of *520 the courts that have accepted the invitation, it is hard to know how many have felt compelled by their best guess as to this Court's likely construction; but none of the state decisions saw fit to rely on the state privilege against self-incrimination, and no decision at all **1652 has gone as far as this Court goes today.FN18

FN17. A narrow reading is given in: United States v. Robinson, 354 F.2d 109 (C.A.2d Cir.); Davis v. State of North Carolina, 339 F.2d 770 (C.A.4th Cir.); Edwards v. Holman, 342 F.2d 679 (C.A.5th Cir.); United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (C.A.7th Cir.); People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33; State v. Fox, 131 N.W.2d 684 (Iowa); Rowe v. Commonwealth, 394 S.W.2d 751 (Ky.); Parker v. Warden, 236 Md. 236, 203 A.2d 418; State v. Howard, 383 S.W.2d 701 (Mo.); Bean v. State, 398 P.2d 251 (Nev.); State of New Jersey v. Hodgson, 44 N.J. 151, 207 A.2d 542; People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288; Browne v. State, 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169.An ample reading is given in: United States ex rel. Russo v. State of New Jersey, 351 F.2d 429 (C.A.3d Cir.); Wright v. Dickson, 336 F.2d 878 (C.A.9th Cir.); People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; State v. Dufour, 206 A.2d 82 (R.I.); State v. Neely, 239 Or. 487, 395 P.2d 557, modified 398 P.2d 482.The cases in both categories are those readily available; there are certainly many others.

FN18. For instance, compare the requirements of the catalytic case of People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, with those laid down today. See also Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 670.

It is also instructive to compare the attitude in this case of those responsible for law enforcement with the official views that existed when the Court undertook three major revisions of prosecutorial practice prior to this case, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. In Johnson, which established that appointed counsel must be offered the indigent in federal criminal trials, the Federal Government all but conceded the basic issue, which had in fact been recently fixed as Department of Justice policy. See Beaney, Right to Counsel 29-30, 36-42 (1955). In Mapp, which imposed the exclusionary rule on the States for Fourth Amendment violations, more than half of the States had themselves already adopted some such rule. See 367 U.S., at 651, 81 S.Ct., at 1689. In Gideon, which extended Johnson v. Zerbst to the States, an amicus brief was filed by 22 States and Commonwealths urging that course; only two States besides that of the respondent came forward to protest. See 372 U.S., at 345, 83 S.Ct., at 797. By contrast, in this case new restrictions on police *521 questioning have been opposed by the United States and in an amicus brief signed by 27 States and Commonwealths, not including the three other States which are parties. No State in the country has urged this Court to impose the newly announced rules, nor has any State chosen to go nearly so far on its own.

The Court in closing its general discussion invokes the practice in federal and foreign jurisdictions as lending weight to its new curbs on confessions for all the States. A brief re sume will suffice to show that none of these jurisdictions has struck so one-sided a balance as the Court does today. Heaviest reliance is placed on the FBI practice. Differing circumstances may make this comparison quite untrustworthy,FN19 but in any event the FBI falls sensibly short of the Court's formalistic rules. For example, there is no indication that FBI agents must obtain an affirmative ‘waiver’ before they pursue their questioning. Nor is it clear that one invoking his right to silence may not be prevailed upon to change his mind. And the warning as to appointed counsel apparently indicates only that one will be assigned by the judge when the suspect appears before him; the thrust of the Court's rules is to induce the suspect to obtain appointed counsel before continuing the interview. See ante, pp. 1633-1634. Apparently American military practice, briefly mentioned by the Court, has these same limits and is still less favorable to the suspect than the FBI warning, making no mention of appointed counsel. Developments, supra, n. 2, at 1084-1089.

FN19. The Court's obiter dictum notwithstanding ante, p. 1634, there is some basis for believing that the staple of FBI criminal work differs importantly from much crime within the ken of local police. The skill and resources of the FBI may also be unusual.

The law of the foreign countries described by the Court also reflects a more moderate conception of the rights of *522 the accused as against those of society when other data are considered. Concededly, the English experience is most relevant. In that country, a caution as to silence but not counsel has long been mandated by the ‘Judges' Rules,’ which also place other somewhat imprecise limits on police cross-examination o suspects. However, in the courts discretion confessions can be and apparently quite frequently are admitted in evidence despite disregard of **1653 the Judges' Rules, so long as they are found voluntary under the common-law test. Moreover, the check that exists on the use of pretrial statements is counterbalanced by the evident admissibility of fruits of an illegal confession and by the judge's often-used authority to comment adversely on the defendant's failure to testify.FN20

FN20. For citations and discussion covering each of these points, see Developments, supra, n. 2, at 1091-1097, and Enker & Elsen, supra, n. 12, at 80 & n. 94.

India, Ceylon and Scotland are the other examples chosen by the Court. In India and Ceylon the general ban on police-adduced confessions cited by the Court is subject to a major exception: if evidence is uncovered by police questioning, it is fully admissible at trial along with the confession itself, so far as it relates to the evidence and is not blatantly coerced. See Developments, supra, n. 2, at 1106-1110; Reg. v. Ramasamy (1965) A.C. 1 (P.C.). Scotland's limits on interrogation do measure up to the Court's; however, restrained comment at trial on the defendant's failure to take the stand is allowed the judge, and in many other respects Scotch law redresses the prosecutor's disadvantage in ways not permitted in this country.FN21 The Court ends its survey by imputing *523 added strength to our privilege against self-incrimination since, by contrast to other countries, it is embodied in a written Constitution. Considering the liberties the Court has today taken with constitutional history and precedent, few will find this emphasis persuasive.

FN21. On Comment, see Hardin, Other Answers: Search and Seizure, Coerced Confession, and Criminal Trial in Scotland, 113 U.Pa.L.Rev. 165, 181 and nn. 96-97 (1964). Other examples are less stringent search and seizure rules and no automatic exclusion for violation of them, id., at 167-169; guilt based on majority jury verdicts, id., at 185; and pre-trial discovery of evidence on both sides, id., at 175.

In closing this necessarily truncated discussion of policy considerations attending the new confession rules, some reference must be made to their ironic untimeliness. There is now in progress in this country a massive re-examination of criminal law enforcement procedures on a scale never before witnessed. Participants in this undertaking include a Special Committee of the American Bar Association, under the chairmanship of Chief Judge Lumbard of the Court of Appeals for the Second Circuit; a distinguished study group of the American Law Institute, headed by Professors Vorenberg and Bator of the Harvard Law School; and the President's Commission on Law Enforcement and Administration of Justice, under the leadership of the Attorney General of the United States.FN22 Studies are also being conducted by the District of Columbia Crime Commission, the Georgetown Law Center, and by others equipped to do practical research.FN23 There are also signs that legislatures in some of the States may be preparing to re-examine the problem before us. FN24

FN22. Of particular relevance is the ALI's drafting of a Model Code of Pre-Arraignment Procedure, now in its first tentative draft. While the ABA and National Commission studies have wider scope, the former is lending its advice to the ALI project and the executive director of the latter is one of the reporters for the Model Code.

FN23. See Brief for the United States in Westover, p. 45. The N.Y. Times, June 3, 1966, p. 41 (late city ed.) reported that the Ford Foundation has awarded $1,100,000 for a five-year study of arrests and confessions in New York.

FN24. The New York Assembly recently passed a bill to require certain warnings before an admissible confession is taken, though the rules are less strict than are the Court's. N.Y. Times, May 24, 1966, p. 35 (late city ed.).

*524 It is no secret that concern has been expressed lest long-range and lasting reforms be frustrated by this Court's too rapid departure from existing constitutional standards. Despite the Court's **1654 disclaimer, the practical effect of the decision made today must inevitably be to handicap seriously sound efforts at reform, not least by removing options necessary to a just compromise of competing interests. Of course legislative reform is rarely speedy or unanimous, though this Court has been more patient in the past. FN25 But the legislative reforms when they come would have the vast advantage of empirical data and comprehensive study, they would allow experimentation and use of solutions not open to the courts, and they would restore the initiative in criminal law reform to those forums where it truly belongs.

FN25. The Court waited 12 years after Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, declared privacy against improper state intrusions to be constitutionally safeguarded before it concluded in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, that adequate state remedies had not been provided to protect this interest so the exclusionary rule was necessary.

IV. CONCLUSIONS.

All four of the cases involved here present express claims that confessions were inadmissible, not because of coercion in the traditional due process sense, but solely because of lack of counsel or lack of warnings concerning counsel and silence. For the reasons stated in this opinion, I would adhere to the due process test and reject the new requirements inaugurated by the Court. On this premise my disposition of each of these cases can be stated briefly.

In two of the three cases coming from state courts, Miranda v. Arizona (No. 759) and Vignera v. New York (No. 760), the confessions were held admissible and no other errors worth comment are alleged by petitioners. *525 I would affirm in these two cases. The other state case is California v. Stewart (No. 584), where the state supreme court held the confession inadmissible and reversed the conviction. In that case I would dismiss the writ of certiorari on the ground that no final judgment is before us, 28 U.S.C. s 1257 (1964 ed.); putting aside the new trial open to the State in any event, the confession itself has not even been finally excluded since the California Supreme Court left the State free to show proof of a waiver. If the merits of the decision in Stewart be reached, then I believe it should be reversed and the case remanded so the state supreme court may pass on the other claims available to respondent.

In the federal case, Westover v. United States (No. 761), a number of issues are raised by petitioner apart from the one already dealt with in this dissent. None of these other claims appears to me tenable, nor in this context to warrant extended discussion. It is urged that the confession was also inadmissible because not voluntary even measured by due process standards and because federal-state cooperation brought the McNabb-Mallory rule into play under Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829. However, the facts alleged fall well short of coercion in my view, and I believe the involvement of federal agents in pettioner's arrest and detention by the State too slight to invoke Anderson. I agree with the Government that the admission of the evidence now protested by petitioner was at most harmless error, and two final contentions-one involving weight of the evidence and another improper prosecutor comment-seem to me without merit. I would therefore affirm Westover's conviction.

In conclusion: Nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously*526 taken by the Court in the name of fulfulling its constitutional responsibilities. The foray which the Court makes today brings to mind the wise and farsighted words of Mr. Justice Jackson in Douglas v. City of Jeannette, 319 U.S. 157, 181, 63 S.Ct. 877, 889, 87 L.Ed. 1324 (separate opinion): ‘This Court is forever adding new stories to the temples of **1655 constitutional law, and the temples have a way of collapsing when one story too many is added.’

Mr. Justice WHITE, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.

I.

The proposition that the privilege against self-incrimination forbids incustody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment. As for the English authorities and the common-law history, the privilege, firmly established in the second half of the seventeenth century, was never applied except to prohibit compelled judicial interrogations. The rule excluding coerced confessions matured about 100 years later, ‘(b)ut there is nothing in the reports to suggest that the theory has its roots in the privilege against self-incrimination. And so far as the cases reveal, the privilege, as such, seems to have been given effect only in judicial proceedings, including the preliminary examinations by authorized magistrates.’ Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 18 (1949).

Our own constitutional provision provides that no person ‘shall be compelled in any criminal case to be a witness against himself.’ These words, when ‘(c) onsidered in the light to be shed by grammar and the dictionary * * * appear to signify simply that nobody shall be *527 compelled to give oral testimony against himself in a criminal proceeding under way in which he is defendant.’ Corwin, The Supreme Court's Construction of the Self-Incrimination Clause, 29 Mich.L.Rev. 1, 2. And there is very little in the surrounding circumstances of the adoption of the Fifth Amendment or in the provisions of the then existing state constitutions or in state practice which would give the constitutional provision any broader meaning. Mayers, The Federal Witness' Privilege Against Self-Incrimination: Constitutional or Common-Law? 4 American Journal of Legal History 107 (1960). Such a construction, however, was considerably narrower than the privilege at common law, and when eventually faced with the issues, the Court extended the constitutional privilege to the compulsory production of books and papers, to the ordinary witness before the grand jury and to witnesses generally. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, and Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. Both rules had solid support in common-law history, if not in the history of our own constitutional provision.

A few years later the Fifth Amendment privilege was similarly extended to encompass the then well-established rule against coerced confessions: ‘In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the fifth amendment to the constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.‘‘ Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 187, 42 L.Ed. 568. Although this view has found approval in other cases, Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048; Powers v. United States, 223 U.S. 303, 313, 32 S.Ct. 281, 283, 56 L.Ed. 448; Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347, 83 S.Ct. 448, 453, 9 L.Ed.2d 357, it has also been questioned, see Brown v. State of Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464, 80 L.Ed. 682; United States v. Carignan, 342 U.S. 36, 41, 72 S.Ct. 97, 100, 96 L.Ed. 48; Stein v. People of State of New York, 346 U.S. 156, 191, n. 35, 73 S.Ct. 1077, 1095, 97 L.Ed. 1522, *528 and finds scant support in either the English or American authorities, see generally Regina v. Scott, Dears. & Bell 47; 3 **1656 Wigmore, Evidence s 823 (3d ed. 1940), at 249 (‘a confession is not rejected because of any connection with the privilege against self-crimination’), and 250, n. 5 (particularly criticizing Bram); 8 Wigmore, Evidence s 2266, at 400-401 (McNaughton rev. 1961). Whatever the source of the rule excluding coerced confessions, it is clear that prior to the application of the privilege itself to state courts, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, the admissibility of a confession in a state criminal prosecution was tested by the same standards as were applied in federal prosecutions. Id., at 6-7, 10, 84 S.Ct., at 1492-1493, 1494.

Bram, however, itself rejected the proposition which the Court now espouses. The question in Bram was whether a confession, obtained during custodial interrogation, had been compelled, and if such interrogation was to be deemed inherently vulnerable the Court's inquiry could have ended there. After examining the English and American authorities, however, the Court declared that:

‘In this court also it has been settled that the mere fact that the confession is made to a police officer, while the accused was under arrest in or out of prison, or was drawn out by his questions, does not necessarily render the confession involuntary; but, as one of the circumstances, such imprisonment or interrogation may be taken into account in determining whether or not the statements of the prisoner were voluntary.’ 168 U.S., at 558, 18 S.Ct., at 192.

In this respect the Court was wholly consistent with prior and subsequent pronouncements in this Court.

Thus prior to Bram the Court, in Hopt v. People of Territory of Utah, 110 U.S. 574, 583-587, 4 S.Ct. 202, 206, 28 L.Ed. 262, had upheld the admissibility of a *529 confession made to police officers following arrest, the record being silent concerning what conversation had occurred between the officers and the defendant in the short period preceding the confession. Relying on Hopt, the Court ruled squarely on the issue in Sparf and Hansen v. United States, 156 U.S. 51, 55, 15 S.Ct. 273, 275, 39 L.Ed. 343:

‘Counsel for the accused insist that there cannot be a voluntary statement, a free, open confession, while a defendant is confined and in irons, under an accusation of having committed a capital offence. We have not been referred to any authority in support of that position. It is true that the fact of a prisoner being in custody at the time he makes a confession is a circumstance not to be overlooked, because it bears upon the inquiry whether the confession was voluntarily made, or was extorted by threats or violence or made under the influence of fear. But confinement or imprisonment is not in itself sufficient to justify the exclusion of a confession, if it appears to have been voluntary and was not obtained by putting the prisoner in fear or by promises. Whart(on's) Cr.Ev. (9th Ed.) ss 661, 663, and authorities cited.’

Accord, Pierce v. United States, 160 U.S. 355, 357, 16 S.Ct. 321, 322, 40 L.Ed. 454.

And in Wilson v. United States, 162 U.S. 613, 623, 16 S.Ct. 895, 899, 40 L.Ed. 1090, the Court had considered the significance of custodial interrogation without any antecedent warnings regarding the right to remain silent or the right to counsel. There the defendant had answered questions posed by a Commissioner, who had filed to advise him of his rights, and his answers were held admissible over his claim of involuntariness. ‘The fact that (a defendant) is in custody and manacled does not necessarily render his statement involuntary, nor is that necessarily the effect of popular excitement shortly preceding. * * * And it is laid down *530 that it is not essential to the admissibility of a confession **1657 that it should appear that the person was warned that what he said would be used against him; but, on the contrary, if the confession was voluntary, it is sufficient, though it appear that he was not so warned.’

Since Bram, the admissibility of statements made during custodial interrogation has been frequently reiterated. Powers v. United States, 223 U.S. 303, 32 S.Ct. 281, cited Wilson approvingly and held admissible as voluntary statements the accused's testimony at a preliminary hearing even though he was not warned that what he said might be used against him. Without any discussion of the presence or absence of warnings, presumably because such discussion was deemed unnecessary, numerous other cases have declared that ‘(t) he mere fact that a confession was made while in the custody of the police does not render it inadmissible,’ McNabb v. United States, 318 U.S. 332, 346, 63 S.Ct. 608, 615, 87 L.Ed. 819; accord, United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, despite its having been elicited by police examination. Ziang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 3; United States v. Carignan, 342 U.S. 36, 39, 72 S.Ct. 97, 99. Likewise, in Crooker v. State of California, 357 U.S. 433, 437, 78 S.Ct. 1287, 1290, 2 L.Ed.2d 1448, the Court said that ‘(t)he bare fact of police ‘detention and police examination in private of one in official state custody’ does not render involuntary a confession by the one so detained.' And finally, in Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523, a confession obtained by police interrogation after arrest was held voluntary even though the authorities refused to permit the defendant to consult with his attorney. See generally Culombe v. Connecticut, 367 U.S. 568, 587-602, 81 S.Ct. 1860, 1870, 6 L.Ed.2d 1037 (opinion of Frankfurter, J.); 3 Wigmore, Evidence s 851, at 313 (3d ed. 1940); see also Joy, Admissibility of Confessions 38, 46 (1842).

Only a tiny minority of our judges who have dealt with the question, including today's majority, have considered incustody interrogation, without more, to be a violation of the Fifth Amendment. And this Court, as *531 every member knows, has left standing literally thousands of criminal convictions that rested at least in part on confessions taken in the course of interrogation by the police after arrest.

II.

That the Court's holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a departure from a long line of precedent does not prove either that the Court has exceeded its powers or that the Court is wrong or unwise in its present reinter-pretation of the Fifth Amendment. It does, however, underscore the obvious-that the Court has not discovered or found the law in making today's decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution.FN1 This is what the Court historically has done. Indeed, it is what it must do and will continue to do until and unless there is some fundamental change in the constitutional distribution of governmental powers.

FN1. Of course the Court does not deny that it is departing from prior precedent; it expressly overrules Crooker and Cicenia, ante, at 1630, n. 48, and it acknowledges that in the instant ‘cases we might not find the defendants' statements to have been involuntary in traditional terms,’ ante, at 1618.

But if the Court is here and now to announce new and fundamental policy to govern certain aspects of our affairs, it is wholly legitimate to examine the mode of this or any other constitutional decision in this Court and to inquire into the advisability of its end product in **1658 terms of the long-range interest of the country. At the very least, the Court's text and reasoning should withstand analysis and be a fair exposition of the constitutional provision which its opinion interprets. Decisions*532 like these cannot rest alone on syllogism, metaphysics or some ill-defined notions of natural justice, although each will perhaps play its part. In proceeding to such constructions as it now announces, the Court should also duly consider all the factors and interests bearing upon the cases, at least insofar as the relevant materials are available; and if the necessary considerations are not treated in the record or obtainable from some other reliable source, the Court should not proceed to formulate fundamental policies based on speculation alone.

III.

First, we may inquire what are the textual and factual bases of this new fundamental rule. To reach the result announced on the grounds it does, the Court must stay within the confines of the Fifth Amendment, which forbids self-incrimination only if compelled. Hence the core of the Court's opinion is that because of the ‘compulsion inherent in custodial surroundings, no statement obtained from (a) defendant (in custody) can truly be the product of his free choice,’ ante, at 1619, absent the use of adequate protective devices as described by the Court. However, the Court does not point to any sudden inrush of new knowledge requiring the rejection of 70 years' experience. Nor does it assert that its novel conclusion reflects a changing consensus among state courts, see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, or that a succession of cases had steadily eroded the old rule and proved it unworkable, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Rather than asserting new knowledge, the Court concedes that it cannot truly know what occurs during custodial questioning, because of the innate secrecy of such proceedings. It extrapolates a picture of what it conceives to be the norm from police investigatorial manuals, published in 1959 and 1962 or earlier, without any attempt to allow for adjustments in police practices that may *533 have occurred in the wake of more recent decisions of state appellate tribunals or this Court. But even if the relentless application of the described procedures could lead to involuntary confessions, it most assuredly does not follow that each and every case will disclose this kind of interrogation or this kind of consequence.FN2 Insofar as appears from the Court's opinion, it has not examined a single transcript of any police interrogation, let alone the interrogation that took place in any one of these cases which it decides today. Judged by any of the standards for empirical investigation utilized in the social sciences the factual basis for the Court's premise is patently inadequate.

FN2. In fact, the type of sustained interrogation described by the Court appears to be the exception rather than the rule. A survey of 399 cases in one city found that in almost half of the cases the interrogation lasted less than 30 minutes. Barrett, Police Practices and the Law-From Arrest to Release or Charge, 50 Calif.L.Rev. 11, 41-45 (1962). Questioning tends to be confused and sporadic and is usually concentrated on confrontations with witnesses or new items of evidence, as these are obtained by officers conducting the investigation. See generally LaFave, Arrest: The Decision to Take a Suspect into Custody 386 (1965); ALI, A Model Code of Pre-Arraignment Procedure, Commentary s 5.01, at 170, n. 4 (Tent.Draft No. 1, 1966).

Although in the Court's view in-custody interrogation is inherently coercive, the Court says that the spontaneous product of the coercion of arrest and detention is still to be deemed voluntary. An accused, arrested on probable cause, may blurt out a confession which will be admissible despite the fact that he is alone and in custody, without any showing that **1659 he had any notion of his right to remain silent or of the consequences of his admission. Yet, under the Court's rule, if the police ask him a single question such as ‘Do you have anything to say?’ or ‘Did you kill your wife?’ his response, if there is one, has somehow been compelled, even if the accused has *534 been clearly warned of his right to remain silent. Common sense informs us to the contrary. While one may say that the response was ‘involuntary’ in the sense the question provoked or was the occasion for the response and thus the defendant was induced to speak out when he might have remained silent if not arrested and not questioned, it is patently unsound to say the response is compelled.

Today's result would not follow even if it were agreed that to some extent custodial interrogation is inherently coercive. See Ashcraft v. State of Tennessee, 322 U.S. 143, 161, 64 S.Ct. 921, 929, 88 L.Ed. 1192 (Jackson, J., dissenting). The test has been whether the totality of circumstances deprived the defendant of a ‘free choice to admit, to deny, or to refuse to answer,’ Lisenba v. People of State of California, 314 U.S. 219, 241, 62 S.Ct. 280, 292, 86 L.Ed. 166, and whether physical or psychological coercion was of such a degree that ‘the defendant's will was overborne at the time he confessed,’ Haynes v. State of Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513; Lynumn v. State of Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922. The duration and nature of incommunicado custody, the presence or absence of advice concerning the defendant's constitutional rights, and the granting or refusal of requests to communicate with lawyers, relatives or friends have all been rightly regarded as important data bearing on the basic inquiry. See, e.g., Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921; Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336. FN3 *535 But it has never been suggested, until today, that such questioning was so coercive and accused persons so lacking in hardihood that the very first response to the very first question following the commencement of custody must be conclusively presumed to be the product of an overborne will.

FN3. By contrast, the Court indicates that in applying this new rule it ‘will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given.’ Ante, at 1625. The reason given is that assessment of the knowledge of the defendant based on information as to age, education, intelligence, or prior contact with authorities can never be more than speculation, while a warning is a clear-cut fact. But the officers' claim that they gave the requisite warnings may be disputed, and facts respecting the defendant's prior experience may be undisputed and be of such a nature as to virtually preclude any doubt that the defendant knew of his rights. See United States v. Bolden, 355 F.2d 453 (C.A.7th Cir.1965), petition for cert. pending No. 1146, O.T. 1965 (Secret Service agent); People v. Du Bont, 235 Cal.App.2d 844, 45 Cal.Rptr. 717, pet. for cert. pending No. 1053, Misc., O.T. 1965 (former police officer).

If the rule announced today were truly based on a conclusion that all confessions resulting from custodial interrogation are coerced, then it would simply have no rational foundation. Compare Tot v. United States, 319 U.S. 463, 466, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519; United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210. A fortiori that would be true of the extension of the rule to exculpatory statements, which the Court effects after a brief discussion of why, in the Court's view, they must be deemed incriminatory but without any discussion of why they must be deemed coerced. See Wilson v. United States, 162 U.S. 613, 624, 16 S.Ct. 895, 900, 40 L.Ed. 1090. Even if one were to postulate that the Court's concern is not that all confessions induced by police interrogation are coerced but rather that some such confessions are coerced and present judicial procedures are believed to be inadequate to identify the confessions that are coerced **1660 and those that are not, it would still not be essential to impose the rule that the Court has now fashioned. Transcripts or observers could be required, specific time limits, tailored to fit the cause, could be imposed, or other devices could be utilized to reduce the chances that otherwise indiscernible coercion will produce an inadmissible confession.

On the other hand, even if one assumed that there was an adequate factual basis for the conclusion that all confessions obtained during in-custody interrogation are the product of compulsion, the rule propounded by *536 the Court will still be irrational, for, apparently, it is only if the accused is also warned of his right to counsel and waives both that right and the right against self-incrimination that the inherent compulsiveness of interrogation disappears. But if the defendant may not answer without a warning a question such as ‘Where were you last night?’ without having his answer be a compelled one, how can the Court ever accept his negative answer to the question of whether he wants to consult his retained counsel or counsel whom the court will appoint? And why if counsel is present and the accused nevertheless confesses, or counsel tells the accused to tell the truth, and that is what the accused does, is the situation any less coercive insofar as the accused is concerned? The Court apparently realizes its dilemma of foreclosing questioning without the necessary warnings but at the same time permitting the accused, sitting in the same chair in front of the same policemen, to waive his right to consult an attorney. It expects, however, that the accused will not often waive the right; and if it is claimed that he has, the State faces a severe, if not impossible burden of proof.

All of this makes very little sense in terms of the compulsion which the Fifth Amendment proscribes. That amendment deals with compelling the accused himself. It is his free will that is involved. Confessions and incriminating admissions, as such, are not forbidden evidence; only those which are compelled are banned. I doubt that the Court observes these distinctions today. By considering any answers to any interrogation to be compelled regardless of the content and course of examination and by escalating the requirements to prove waiver, the Court not only prevents the use of compelled confessions but for all practical purposes forbids interrogation except in the presence of counsel. That is, instead of confining itself to protection of the right against compelled*537 self-incrimination the Court has created a limited Fifth Amendment right to counsel-or, as the Court expresses it, a ‘need for counsel to protect the Fifth Amendment privilege * * *.’ Ante, at 1625. The focus then is not on the will of the accused but on the will of counsel and how much influence he can have on the accused. Obviously there is no warrant in the Fifth Amendment for thus installing counsel as the arbiter of the privilege.

In sum, for all the Court's expounding on the menacing atmosphere of police interrogation procedures, it has failed to supply any foundation for the conclusions it draws or the measures it adopts.

IV.

Criticism of the Court's opinion, however, cannot stop with a demonstration that the factual and textual bases for the rule it proponds are, at best, less than compelling. Equally relevant is an assessment of the rule's consequences measured against community values. The Court's duty to assess the consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is ‘to respect the inviolability of the human personality’ and to require government to produce the evidence against the accused by its own independent labors. Ante, at 1620. More than the human dignity of the accused is involved; the human personality of others in the society must also be preserved. **1661 Thus the values reflected by the privilege are not the sole desideratum; society's interest in the general security is of equal weight.

The obvious underpinning of the Court's decision is a deep-seated distrust of all confessions. As the Court declares that the accused may not be interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all but admonishes the lawyer to *538 advise the accused to remain silent, the result adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not. This is the not so subtle overtone of the opinion-that it is inherently wrong for the police to gather evidence from the accused himself. And this is precisely the nub of this dissent. I see nothing wrong or immoral, and certainly nothing unconstitutional, in the police's asking a suspect whom they have reasonable cause to arrest whether or not he killed his wife or in confronting him with the evidence on which the arrest was based, at least where he has been plainly advised that he may remain completely silent, see Escobedo v. State of Illinois, 378 U.S. 478, 499, 84 S.Ct. 1758, 1769, 12 L.Ed.2d 977 (dissenting opinion). Until today, ‘the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence.’ Brown v. Walker, 161 U.S. 591, 596, 16 S.Ct. 644, 646, 40 L.Ed. 819, see also Hopt v. People of Territory of Utah, 110 U.S. 574, 584-585, 4 S.Ct. 202, 207. Particularly when corroborated, as where the police have confirmed the accused's disclosure of the hiding place of implements or fruits of the crime, such confessions have the highest reliability and significantly contribute to the certitude with which we may believe the accused is guilty. Moreover, it is by no means certain that the process of confessing is injurious to the accused. To the contrary it may provide psychological relief and enhance the prospects for rehabilitation.

This is not to say that the value of respect for the inviolability of the accused's individual personality should be accorded no weight or that all confessions should be indiscriminately admitted. This Court has long read the Constitution to proscribe compelled confessions, a salutary rule from which there should be no retreat. But I see no sound basis, factual or otherwise, and the Court gives none, for concluding that the present rule against the receipt of coerced confessions is inadequate for the *539 task of sorting out inadmissible evidence and must be replaced by the per se rule which is now imposed. Even if the new concept can be said to have advantages of some sort over the present law, they are far outweighed by its likely undesirable impact on other very relevant and important interests.

The most basic function of any government is to provide for the security of the individual and of his property. Lanzetta v. State of New Jersey, 306 U.S. 451, 455, 59 S.Ct. 618, 619, 83 L.Ed. 888. These ends of society are served by the criminal laws which for the most part are aimed at the prevention of crime. Without the reasonably effective performance of the task of preventing private violence and retaliation, it is idle to talk about human dignity and civilized values.

The modes by which the criminal laws serve the interest in general security are many. First the murderer who has taken the life of another is removed from the streets, deprived of his liberty and thereby prevented from repeating his offense. In view of the statistics on recidivism in this countryFN4 and of the number of instances**1662 *540 in which apprehension occurs only after repeated offenses, no one can sensibly claim that this aspect of the criminal law does not prevent crime or contribute significantly to the personal security of the ordinary citizen.

FN4. Precise statistics on the extent of recidivism are unavailable, in part because not all crimes are solved and in part because criminal records of convictions in different jurisdictions are not brought together by a central data collection agency. Beginning in 1963, however, the Federal Bureau of Investigation began collating data on ‘Careers in Crime,’ which it publishes in its Uniform Crime Reports. Of 92,869 offenders processed in 1963 and 1964, 76% had a prior arrest record on some charge. Over a period of 10 years the group had accumulated 434,000 charges. FBI, Uniform Crime Reports-1964, 27-28. In 1963 and 1964 between 23% and 25% of all offenders sentenced in 88 federal district courts (excluding the District Court for the District of Columbia) whose criminal records were reported had previously been sentenced to a term of imprisonment of 13 months or more. Approximately an additional 40% had a prior record less than prison (juvenile record, probation record, etc.). Administrative Office of the United States Courts, Federal Offenders in the United States District Courts: 1964, x, 36 (hereinafter cited as Federal Offenders: 1964); Administrative Office of the United States Courts, Federal Offenders in the United States District Courts: 1963, 25-27 (hereinafter cited as Federal Offenders: 1963). During the same two years in the District Court for the District of Columbia between 28% and 35% of those sentenced had prior prison records and from 37% to 40% had a prior record less than prison. Federal Offenders: 1964, xii, 64, 66; Administrative Office of the United States Courts, Federal Offenders in the United States District Court for the District of Columbia: 1963, 8, 10 (hereinafter cited as District of Columbia Offenders: 1963).A similar picture is obtained if one looks at the subsequent records of those released from confinement. In 1964, 12.3% of persons on federal probation had their probation revoked because of the commission of major violations (defined as one in which the probationer has been committed to imprisonment for a period of 90 days or more, been placed on probation for over one year on a new offense, or has absconded with felony charges outstanding). Twenty-three and two-tenths percent of parolees and 16.9% of those who had been mandatorily released after service of a portion of their sentence likewise committed major violations. Reports of the Proceedings of the Judicial Conference of the United States and Annual Report of the Director of the Administrative Office of the United States Courts: 1965, 138. See also Mandel et al., Recidivism Studied and Defined, 56 J. Crim.L., C. & P.S. 59 (1965) (within five years of release 62.33% of sample had committed offenses placing them in recidivist category).

Secondly, the swift and sure apprehension of those who refuse to respect the personal security and dignity of their neighbor unquestionably has its impact on others who might be similarly tempted. That the criminal law is wholly or partly ineffective with a segment of the population or with many of those who have been apprehended and convicted is a very faulty basis for concluding that it is not effective with respect to the great bulk of our citizens or for thinking that without the criminal laws, *541 or in the absence of their enforcement, there would be no increase in crime. Arguments of this nature are not borne out by any kind of reliable evidence that I have been to this date.

Thirdly, the law concerns itself with those whom it has confined. The hope and aim of modern penology, fortunately, is as soon as possible to return the convict to society a better and more law-abiding man than when he left. Sometimes there is success, sometimes failure. But at least the effort is made, and it should be made to the very maximum extent of our present and future capabilities.

The rule announced today will measurably weaken the ability of the criminal law to perform these tasks. It is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty and to increase the number of trials.FN5 Criminal trials, **1663 no *542 matter how efficient the police are, are not sure bets for the prosecution, nor should they be if the evidence is not forthcoming. Under the present law, the prosecution fails to prove its case in about 30% of the criminal cases actually tried in the federal courts. See Federal Offenders: 1964, supra, note 4, at 6 (Table 4), 59 (Table 1); Federal Offenders; 1963, supra, note 4, at 5 (Table 3); District of Columbia Offenders: 1963, supra, note 4, at 2 (Table 1). But it is something else again to remove from the ordinary criminal case all those confessions which heretofore have been held to be free and voluntary acts of the accused and to thus establish a new constitutional barrier to the ascertainment of truth by the judicial process. There is, in my view, every reason to believe that a good many criminal defendants who otherwise would have been convicted on what this Court has previously thought to be the most satisfactory kind of evidence will now under this new version of the Fifth Amendment, either not be tried at all or will be acquitted if the State's evidence, minus the confession, is put to the test of litigation.

FN5. Eighty-eight federal district courts (excluding the District Court for the District of Columbia) disposed of the cases of 33,381 criminal defendants in 1964. Only 12.5% of those cases were actually tried. Of the remaining cases, 89.9% were terminated by convictions upon pleas of guilty and 10.1% were dismissed. Stated differently, approximately 90% of all convictions resulted from guilty pleas. Federal Offenders: 1964, supra, note 4, 3-6. In the District Court for the District of Columbia a higher percentage, 27%, went to trial, and the defendant pleaded guilty in approximately 78% of the cases terminated prior to trial. Id., at 58-59. No reliable statistics are available concerning the percentage of cases in which guilty pleas are induced because of the existence of a confession or of physical evidence unearthed as a result of a confession. Undoubtedly the number of such cases is substantial.Perhaps of equal significance is the number of instances of known crimes which are not solved. In 1964, only 388,946, or 23.9% of 1,626,574 serious known offenses were cleared. The clearance rate ranged from 89.8% for homicides to 18.7% for larceny. FBI, Uniform Crime Reports-1964, 20-22, 101. Those who would replace interrogation as an investigatorial tool by modern scientific investigation techniques significantly overestimate the effectiveness of present procedures, even when interrogation is included.

I have no desire whatsoever to share the responsibility for any such impact on the present criminal process.

In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of *543 course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case.

Nor can this decision do other than have a corrosive effect on the criminal laws as an effective device to prevent crime. A major component in its effectiveness in this regard is its swift and sure enforcement. The easier it is to get away with rape and murder, the less the deterrent effect on those who are inclined to attempt it. This is still good common sense. If it were not, we should posthaste liquidate the whole law enforcement establishment as a useless, misguided effort to control human conduct.

And what about the accused who has confessed or would confess in response to simple, noncoercive questioning and whose guilt could not otherwise be proved? Is it so clear that release is the best thing for him in every case? Has it so unquestionably been resolved that in **1664 each and every case it would be better for him not to confess and to return to his environment with no attempt whatsoever to help him? I think not. It may well be that in many cases it will be no less than a callous disregard for his own welfare as well as for the interests of his next victim.

There is another aspect to the effect of the Court's rule on the person whom the police have arrested on probable cause. The fact is that he may not be guilty at all and may be able to extricate himself quickly and simply if he were told the circumstances of his arrest and were asked to explain. This effort, and his release, must now await the hiring of a lawyer or his appointment by the court, consultation with counsel and then a session with the police or the prosecutor. Similarly, where probable cause exists to arrest several suspects, as where the body of the victim is discovered in a house having several residents, compare Johnson v. State, 238 Md. 140, 207 A.2d 643 (1965), cert. denied, 382 U.S. 1013, 86 S.Ct. 623, 15 L.Ed.2d 528, it will often *544 be true that a suspect may be cleared only through the results of interrogation of other suspects. Here too the release of the innocent may be delayed by the Court's rule.

Much of the trouble with the Court's new rule is that it will operate indiscriminately in all criminal cases, regardless of the severity of the crime or the circumstances involved. It applies to every defendant, whether the professional criminal or one committing a crime of momentary passion who is not part and parcel of organized crime. It will slow down the investigation and the apprehension of confederates in those cases where time is of the essence, such as kidnapping, see Brinegar v. United States, 338 U.S. 160, 183, 69 S.Ct. 1302, 1314, 93 L.Ed. 1879 (Jackson, J., dissenting); People v. Modesto, 62 Cal.2d 436, 446, 42 Cal.Rptr. 417, 423, 398 P.2d 753, 759 (1965), those involving the national security, see United States v. Drummond, 354 F.2d 132, 147 (C.A.2d Cir. 1965) (en banc) (espionage case), pet. for cert. pending, No. 1203, Misc., O.T. 1965; cf. Gessner v. United States, 354 F.2d 726, 730, n. 10 (C.A.10th Cir. 1965) (upholding, in espionage case, trial ruling that Government need not submit classified portions of interrogation transcript), and some of those involving organized crime. In the latter context the lawyer who arrives may also be the lawyer for the defendant's colleagues and can be relied upon to insure that no breach of the organization's security takes place even though the accused may feel that the best thing he can do is to cooperate.

At the same time, the Court's per se approach may not be justified on the ground that it provides a ‘bright line’ permitting the authorities to judge in advance whether interrogation may safely be pursued without jeopardizing the admissibility of any information obtained as a consequence. Nor can it be claimed that judicial time and effort, assuming that is a relevant consideration, *545 will be conserved because of the ease of application of the new rule. Today's decision leaves open such questions as whether the accused was in custody, whether his statements were spontaneous or the product of interrogation, whether the accused has effectively waived his rights, and whether nontestimonial evidence introduced at trial is the fruit of statements made during a prohibited interrogation, all of which are certain to prove productive of uncertainty during investigation and litigation during prosecution. For all these reasons, if further restrictions on police interrogation are desirable at this time, a more flexible approach makes much more sense than the Court's constitutional straitjacket which forecloses more discriminating treatment by legislative or rule-making pronouncements.

**1665 Applying the traditional standards to the cases before the Court, I would hold these confessions voluntary. I would therefore affirm in Nos. 759, 760, and 761, and reverse in No. 584.

384 U.S. 436, 10 Ohio Misc. 9, 86 S.Ct. 1602, 10 A.L.R.3d 974, 16 L.Ed.2d 694, 36 O.O.2d 237, 39 O.O.2d 63

United States Court of Appeals,

Seventh Circuit.

UNITED STATES of America, Plaintiff-Appellee,

v.

Bernardo GARCIA, Defendant-Appellant.

No. 06-2741.

Argued Jan. 10, 2007.

Decided Feb. 2, 2007.

Rehearing and Suggestion for Rehearing En Banc Denied March 29, 2007.

Background: Following denial of his motion to suppress, 2006 WL 1601716, defendant was convicted in the United States District Court for the Western District of Wisconsin, Barbara B. Crabb, J., of crimes relating to the manufacture of methamphetamine. Defendant appealed.

Holding: The Court of Appeals, Posner, Circuit Judge, held that there was no search or seizure under Fourth Amendment when police placed GPS tracking unit underneath defendant's vehicle.

Affirmed.

*995 David Reinhard (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Patrick J. Stangl (argued), Stangl Law Offices, Madison, WI, for Defendant-Appellant.

Before POSNER, MANION, and SYKES, Circuit Judges.

POSNER, Circuit Judge.

The defendant appeals from his conviction for crimes relating to the manufacture of methamphetamine. The only issue is whether evidence obtained as a result of a tracking device attached to his car should have been suppressed as the fruit of an unconstitutional search.

The defendant had served time for methamphetamine offenses. Shortly after his release from prison, a person who was a known user of meth reported to police that the defendant had brought meth to her and her husband, consumed it with them, and told them he wanted to start manufacturing meth again. Another person told the police that the defendant had bragged that he could manufacture meth in front of a police station without being caught. A store's security video system recorded the defendant buying ingredients used in making the drug.

From someone else the police learned that the defendant was driving a borrowed Ford Tempo. They went looking for it and found it parked on a public street near where the defendant was staying. The police placed a GPS (global positioning system) “memory tracking unit” underneath the rear bumper of the Ford. Such a device, pocket-sized, battery-operated, commercially available for a couple of hundred dollars (see, e.g., Vehicle-Tracking, Incorporated, “GPS Vehicle Tracking with the Tracking Key,” vehicle- tracking. com/ products/ Tracking-Key. html, visited Jan. 21, 2007), receives and stores satellite signals that indicate the device's location. So when the police later retrieved the device (presumably when the car was parked on a public street, as the defendant does not argue that the retrieval involved a trespass), they were able to learn the car's travel history since the installation of the device. One thing they learned was that the car had been traveling to a large tract of land. The officers obtained the consent of the tract's owner to search it and they did so and discovered equipment and materials used in the manufacture of meth. While the police were on the property, the *996 defendant arrived in a car that the police searched, finding additional evidence.

The police had not obtained a warrant authorizing them to place the GPS tracker on the defendant's car. The district judge, however, found that they had had a reasonable suspicion that the defendant was engaged in criminal activity, and she ruled that reasonable suspicion was all they needed for a lawful search, although she added that they had had probable cause as well. The defendant argues that they needed not only probable cause to believe that the search would turn up contraband or evidence of crime, but also a warrant. The government argues that they needed nothing because there was no search or seizure within the meaning of the Fourth Amendment.

[1] [pic][2] [pic]The Fourth Amendment forbids unreasonable searches and seizures. There is nothing in the amendment's text to suggest that a warrant is required in order to make a search or seizure reasonable. All that the amendment says about warrants is that they must describe with particularity the object of the search or seizure and must be supported both by an oath or affirmation and by probable cause, which is understood, in the case of searches incident to criminal investigations, to mean probable cause that the search will turn up contraband or evidence of crime. Zurcher v. Stanford Daily, 436 U.S. 547, 554-55, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978). The Supreme Court, however, has created a presumption that a warrant is required, unless infeasible, for a search to be reasonable. E.g., United States v. Leon, 468 U.S. 897, 913-14, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); see Nicholas v. Goord, 430 F.3d 652, 678 (2d Cir.2005). “Although the framers of the Fourth Amendment were more fearful that the warrant would protect the police from the citizen's tort suit through operation of the doctrine of official immunity than hopeful that the warrant would protect the citizen against the police, see [Telford] Taylor, Two Studies in Constitutional Interpretation 23-43 (1969), and although the effective neutrality and independence of magistrates in ex parte proceedings for the issuance of search warrants may be doubted, there is a practical reason for requiring warrants where feasible: it forces the police to make a record before the search, rather than allowing them to conduct the search without prior investigation in the expectation that if the search is fruitful a rationalization for it will not be difficult to construct, working backwards.” United States v. Mazzone, 782 F.2d 757, 759 (7th Cir.1986). But of course the presumption in favor of requiring a warrant, or for that matter the overarching requirement of reasonableness, does not come into play unless there is a search or seizure within the meaning of the Fourth Amendment.

[3] [pic]The defendant's contention that by attaching the memory tracking device the police seized his car is untenable. The device did not affect the car's driving qualities, did not draw power from the car's engine or battery, did not take up room that might otherwise have been occupied by passengers or packages, did not even alter the car's appearance, and in short did not “seize” the car in any intelligible sense of the word. But was there a search? The Supreme Court has held that the mere tracking of a vehicle on public streets by means of a similar though less sophisticated device (a beeper) is not a search. United States v. Knotts, 460 U.S. 276, 284-85, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). But the Court left open the question *997 whether installing the device in the vehicle converted the subsequent tracking into a search. Id. at 279 n. 2, 103 S.Ct. 1081; see also United States v. Karo, 468 U.S. 705, 713-14, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). The courts of appeals have divided over the question. Compare United States v. McIver, 186 F.3d 1119, 1127 (9th Cir.1999), and United States v. Pretzinger, 542 F.2d 517, 520 (9th Cir.1976) (per curiam), holding (and United States v. Michael, 645 F.2d 252, 256 and n. 11 (5th Cir.1981) (en banc), and United States v. Bernard, 625 F.2d 854, 860-61 (9th Cir.1980), intimating) that there is no search, with United States v. Bailey, 628 F.2d 938, 944-45 (6th Cir.1980); United States v. Shovea, 580 F.2d 1382, 1387-88 (10th Cir.1978), and United States v. Moore, 562 F.2d 106, 110-12 (1st Cir.1977), holding the contrary. Several of the cases actually take intermediate positions, such as requiring reasonable suspicion rather than probable cause (a possible interpretation of Michael), or probable cause but no warrant- Shovea and Moore. This court has not spoken to the issue.

If a listening device is attached to a person's phone, or to the phone line outside the premises on which the phone is located, and phone conversations are recorded, there is a search (and it is irrelevant that there is a trespass in the first case but not the second), and a warrant is required. But if police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.

There is a practical difference lurking here, however. It is the difference between, on the one hand, police trying to follow a car in their own car, and, on the other hand, using cameras (whether mounted on lampposts or in satellites) or GPS devices. In other words, it is the difference between the old technology-the technology of the internal combustion engine-and newer technologies (cameras are not new, of course, but coordinating the images recorded by thousands of such cameras is). But GPS tracking is on the same side of the divide with the surveillance cameras and the satellite imaging, and if what they do is not searching in Fourth Amendment terms, neither is GPS tracking.

This cannot be the end of the analysis, however, because the Supreme Court has insisted, ever since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that the meaning of a Fourth Amendment search must change to keep pace with the march of science. So the use of a thermal imager to reveal details of the interior of a home that could not otherwise be discovered without a physical entry was held in Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), to be a search within the meaning of the Fourth Amendment. But Kyllo does not help our defendant, because his case unlike Kyllo is not one in which technology provides a substitute for a form of search unequivocally governed by the Fourth Amendment. The substitute here is for an activity, namely following a car on a public street, that is unequivocally not a search within the meaning of the amendment.

But while the defendant's efforts to distinguish the GPS case from the satellite-imaging and lamppost-camera cases are futile, we repeat our earlier point that there is a difference (though it is not the *998 difference involved in Kyllo) between all three of those situations on the one hand and following suspects around in a car on the other. The new technologies enable, as the old (because of expense) do not, wholesale surveillance. One can imagine the police affixing GPS tracking devices to thousands of cars at random, recovering the devices, and using digital search techniques to identify suspicious driving patterns. One can even imagine a law requiring all new cars to come equipped with the device so that the government can keep track of all vehicular movement in the United States. It would be premature to rule that such a program of mass surveillance could not possibly raise a question under the Fourth Amendment-that it could not be a search because it would merely be an efficient alternative to hiring another 10 million police officers to tail every vehicle on the nation's roads.

Of course the amendment cannot sensibly be read to mean that police shall be no more efficient in the twenty-first century than they were in the eighteenth. United States v. Knotts, supra, 460 U.S. at 283-84, 103 S.Ct. 1081. There is a tradeoff between security and privacy, and often it favors security. Even at the height of the “Warren Court,” the Court held over a strong dissent by Justice Brennan that the planting of an undercover agent in a criminal gang does not become a search just because the agent has a transmitter concealed on his person, even though the invasion of privacy is greater when the suspect's words are recorded and not merely recollected. Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).

Yet Chief Justice Warren, while concurring in the judgment in Lopez, remarked “that the fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual; that indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments; and that these considerations impose a heavier responsibility on this Court in its supervision of the fairness of procedures in the federal court system.” Id. at 441, 83 S.Ct. 1381. These “fantastic advances” continue, and are giving the police access to surveillance techniques that are ever cheaper and ever more effective. Remember the beeper in Knotts? “Officers installed a beeper inside a five-gallon container of chloroform ... [and] followed the car in which the chloroform had been placed, maintaining contact by using both visual surveillance and a monitor which received the signals sent from the beeper.” United States v. Knotts, supra, 460 U.S. at 278, 103 S.Ct. 1081. That was only a modest improvement over following a car by means of unaided human vision.

Technological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive. Whether and what kind of restrictions should, in the name of the Constitution, be placed on such surveillance when used in routine criminal enforcement are momentous issues that fortunately we need not try to resolve in this case. So far as appears, the police of Polk County (a rural county in northwestern Wisconsin), where the events of this case unfolded, are not engaged in mass surveillance. They do GPS tracking only when they have a suspect in their sights. They had, of course, abundant grounds for suspecting the defendant. Should government someday decide to institute programs of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search. Cf. *999 Zurcher v. Stanford Daily, supra, 436 U.S. at 566, 98 S.Ct. 1970.

Affirmed.

United States Court of Appeals,

Ninth Circuit.

CENTER ART GALLERIES-HAWAII, INC.; William D. Mett, Petitioners-Appellees,

v.

UNITED STATES of America, Respondent-Appellant.

No. 88-2474.

Argued and Submitted Sept. 16, 1988.

Decided May 19, 1989.

Government appealed from order of the United States District Court for the District of Hawaii, Edward Rafeedie, J., 681 F.Supp. 677, requiring return of illegally seized property. The Court of Appeals, David R. Thompson, Circuit Judge, held that: (1) warrants authorizing search of art gallery were overly broad; (2) search of gallery was not justified by good-faith exception to exclusionary rule; and (3) inevitable discovery doctrine did not apply to validate searches.

Affirmed.

Leslie E. Osborne, Asst. U.S. Atty., Honolulu, Hawaii, for respondent-appellant.

Brook Hart, Hart & Wolff, Honolulu, Hawaii, and John R. Wing, Weil, Gotshal & Manges, New York City, for petitioners-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before BOOCHEVER, REINHARDT and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

The government appeals the district court's order requiring the return of certain property pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. The government makes three contentions: first, that the district court erred by holding that the search warrants which commanded seizure of the property were overbroad; second, that even if the warrants were overbroad, the district court should have denied the Rule 41(e) motion based on the good faith exception to the exclusionary rule; and third, that the district court should have applied the inevitable discovery doctrine and permitted the government to keep the property even if the seizure was illegal.*749 FN1 We have jurisdiction under 18 U.S.C. § 3731. We affirm.

FN1. The government also raises on appeal the issue whether the seized property was in plain view of the executing officers. We do not consider this issue because it was not presented to the district court. See Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985) (issues raised for the first time on appeal are generally not considered); cf. United States v. Parr, 843 F.2d 1228, 1232 (9th Cir.1988) (refusing to consider plain view argument not presented to district court).

I

FACTS

As part of an investigation of suspected mail and wire fraud involving the sale of forged Salvador Dali artwork, federal agents executed search warrants at six locations under the control of Center Art Galleries-Hawaii. The searches lasted from twelve to fourteen hours. Federal agents seized a total of five truckloads of documents, artwork and other property.

Following the seizures, William Mett and Center Art Galleries (collectively “CAG”) filed a motion in district court seeking the return of the seized property pursuant to Rule 41(e). See Fed.R.Crim.P. 41(e). The district court held that the warrants were unconstitutionally overbroad and ordered the return of all the seized property except artwork attributable to Salvador Dali. See In re Motion for Return of Property Pursuant to Rule 41, 681 F.Supp. 677, 687-88 (D.Haw.1988) [hereinafter In re Motion ]. It is from this order that the government appeals.

II

OVERBREADTH

[1] [pic]We, review a warrant's alleged overbreadth de novo. United States v. McLaughlin, 851 F.2d 283, 285 (9th Cir.1988). “Only a warrant ‘particularly describing the place to be searched and the persons or things to be seized’ is valid. U.S. Const. amend. IV.” United States v. Cardwell, 680 F.2d 75, 77 (9th Cir.1982). “The specificity required in a warrant varies depending on the circumstances of the case and the type of items involved.” United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986); McLaughlin, 851 F.2d at 285; Cardwell, 680 F.2d at 78 (courts must “consider the totality of circumstances in determining the validity of a warrant”). As we explained in Spilotro:

In determining whether a description is sufficiently precise, we have concentrated on one or more of the following: (1) whether probable cause exists to seize all items of a particular type described in the warrant, (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not, and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.

Spilotro, 800 F.2d at 963 (citations omitted); see also McLaughlin, 851 F.2d at 285.

Each of the six warrants was identical except for the place to be searched. The relevant part of the warrants commanded the executing officer to seize:

documents, books, ledgers, records and objects which are evidence of violations of federal criminal law including but not limited to:

records of completed sales, customer correspondence including complaint files and refund-related documents, personnel files including payroll records, lists of current and former employees, employee compensation records for all employees, including but not limited to salesmen, art consultants, gallery directors and managers, records of payments to shareholders, financial records customer account statement sheets, bank records, including but not limited to cancelled checks, monthly account statements and deposit slips, cash receipt and disbursement records, telephone toll records, mail and telegram records including customer mailing lists, sales literature, sales training materials, including written sales pitches and program descriptions, tape recordings relating to sales business, customer contracts and records, business contracts including *750 invoices relating to sources of art work, business agreements, certificates of authenticity, lists of curators, curator contracts, calendars, internal memoranda and handwritten notes, diaries, key punch computer cards, computer floppy disks and diskettes, computer printout sheets with printouts of Information Systems Design programs, computer memory banks, computer tapes or other data storage devices, prints attributed to Salvador Dali; numbered, unnumbered, signed, unsigned, other works of art attributed to Salvador Dali, lead cards, lead sheets, lead source material, sales records and customer/client information, lithographic and etching plates, blank sheets of paper used for art reproduction; signed and unsigned (Rives, Japon and Arches paper), insurance documents relating to refund insurance coverage and refund claims.

We agree with the district court that the warrants are overbroad. The warrants' provision for the almost unrestricted seizure of items which are “evidence of violations of federal criminal law” without describing the specific crimes suspected is constitutionally inadequate. Spilotro, 800 F.2d at 964; Cardwell, 680 F.2d at 78 (“ ‘limiting’ the search to only records that are evidence of the violation of a certain statute is generally not enough”); cf. McLaughlin, 851 F.2d at 286 (warrant described “the specific crimes charged”).

The government also failed to limit the warrants to items pertaining to the sale of Dali artwork despite the total absence of any evidence of criminal activity unrelated to Dali. As the district court noted, “[a]ll of the 22 instances of misrepresentations [alleged in the government's affidavit] concerned Salvador Dali artwork.... CAG is not primarily involved in Dali art. Approximately 80% of its business concerns non-Dali art.” In re Motion, 681 F.Supp. at 681. “There is simply no evidence contained in the affidavit that suggests that CAG was involved in non-Dali related fraud.” Id. at 682. Moreover, the government had the means to identify accounts which may have involved Dali artwork. The lead government investigator “was aware that a special card was created for the file of all clients who were interested in Dali artwork.” Id. at 679; cf. VonderAhe v. Howland, 508 F.2d 364, 366, 370 (9th Cir.1974).

The government contends that: (1) the specificity of the affidavit supporting the warrants cured any overbreadth in the warrants and (2) the warrants' broad scope was justified because CAG was permeated with fraud.

[2] [pic]An affidavit can cure the overbreadth of a warrant if the affidavit is “attached to and incorporated by reference in” the warrant. Spilotro, 800 F.2d at 967; United States v. Leary, 846 F.2d 592, 603 (10th Cir.1988) ( “the affidavit and search warrant must be physically connected so that they constitute one document ... and ... the search warrant must expressly refer to the affidavit and incorporate it by reference using suitable words of reference”) (emphasis added); United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982); see also United States v. Luk, 859 F.2d 667, 676 & n. 8 (9th Cir.1988). The former requirement assures that “the person being searched has notice of the specific items the officer is entitled to seize.” In re Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1319 (9th Cir.1981). The latter requirement helps assure that the affidavit actually limits “the discretion of the officers executing the warrant.” Id. In the case before us, the affidavit was not expressly incorporated into the warrant. Moreover, although the government alleges that some of its officers had copies of the affidavit, the government does not claim that the affidavit was physically attached to the warrants or was given to CAG as part of the search.

[3] [pic]The breadth of the warrants is not justified by the “permeated-with-fraud” circumstance which was present in United States v. Offices Known as 50 State Distributing Company, 708 F.2d 1371 (9th Cir.1983), cert. denied, 465 U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d 677 (1984). There we approved the use of a rather broad warrant where:

*751 [i]t was not possible through more particular description to segregate those business records that would be evidence of fraud from those that would not, for the reason that there was probable cause to believe that fraud permeated the entire business operation....

Id. at 1374. Other circuits have approved such broadly defined warrants when this special circumstance exists. See, e.g., United States v. Brien, 617 F.2d 299, 308, 309 n. 11 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980) (affidavit showed that “entire operation was a scheme to defraud investors;” the “two hundred fifty complaints that surfaced could fairly be inferred to be only the tip of the iceberg”); National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980) (affidavit demonstrated “probable cause to believe that NCTC's business was permeated with fraud”).

In clarifying the nature of this exception, 50 State distinguished cases such as Cardwell-where a warrant allowing widespread seizure of business records was held to have violated the particularity requirement-because the investigations in such cases, and the affidavits supporting the warrants, had focused on a small segment of the business operation and therefore did not concern an operation that was permeated with fraud. 50 State, 708 F.2d at 1375.

Here, the affidavit supporting the warrant contained twenty-two instances of alleged misrepresentation, all involving the work of Dali. According to the district court's findings, only approximately twenty percent of CAG's business was Dali related. The affidavit supporting the CAG warrants did not aver that evidence of Dali fraud was inseparable from other CAG documents or that CAG was permeated with fraud. See United States v. Washington, 797 F.2d 1461, 1473 (9th Cir.1986) (as amended) (to qualify under 50 State, the government must make the required showing in obtaining the search warrant). Thus, the broad scope of the warrants was not justified under the 50 State “business-permeated-with-fraud” doctrine. Cf. 50 State, 708 F.2d at 1374-75; Cardwell, 680 F.2d at 78.

III

THE GOOD FAITH EXCEPTION

At the Rule 41(e) hearing, the government contended that even if the warrants were overbroad, the evidence seized was admissible under the good faith exception to the exclusionary rule. The district court rejected this argument holding that: (1) the good faith exception to the exclusionary rule does not apply to Rule 41(e) motions and (2) even if the good faith exception is “applicable to Rule 41(e), the officers [executing the warrants] failed to meet its requirements.” In re Motion, 681 F.Supp. at 686. We discuss each of these alternative holdings in turn.

A.

[4] [pic]We review the district court's interpretation of Rule 41(e) de novo. United States v. Freitas, 800 F.2d 1451, 1454 (9th Cir.1986).

Rule 41(e) provides in part:

Motion for Return of Property. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property which was illegally seized.... If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.

Fed.R.Crim.P. 41(e).

In United States v. Roberts, 852 F.2d 671 (2d Cir.) [hereinafter Roberts II ], cert. denied, 488 U.S. 993, 109 S.Ct. 556, 102 L.Ed.2d 583 (1988), the Second Circuit held that the judicially created exceptions to the exclusionary rule apply to Rule 41(e) motions. Roberts II, 852 F.2d at 675. The court explained that the rule was merely *752 procedural and “was not intended to create new substantive grounds for suppressing evidence, but simply to provide a pre-indictment procedure for the return of property and the suppression of evidence in accordance with the substantive rights created by the Constitution or recognized in decisional law.” 852 F.2d at 673; see also United States v. Calandra, 414 U.S. 338, 348 n. 6, 94 S.Ct. 613, 620 n. 6, 38 L.Ed.2d 561 (1974) (“Rule 41(e) ... does not constitute a statutory expansion of the exclusionary rule”); United States v. 1328 North Main Street, 634 F.Supp. 1069, 1072 (S.D.Ohio 1986) (“a ruling on the merits of a Rule 41(e) motion seeking suppression as well as return of property must embrace in its analysis the various dimensions of the exclusionary rule”).

The Second Circuit decided Roberts II after the district court rendered its opinion in this case. The district court in this case relied heavily on the holding of the district court in the Roberts case, Roberts v. United States, 656 F.Supp. 929, 934 (S.D.N.Y.1987). That decision was reversed by the Second Circuit in Roberts II.

CAG argues that Roberts II was wrongly decided. According to CAG, Rule 41(e)' s plain language requires, without exception, suppression of all illegally seized evidence. We disagree. Both the rule's language and legislative history suggest that the rule is purely procedural. See Fed.R.Crim.P. 41(e) advisory committee note to the 1972 amendments (noting that “substantive grounds for objecting to illegally obtained evidence ... are not ordinarily codified in the rules”); see also Roberts II, 852 F.2d at 673.

CAG also contends that the Second Circuit in Roberts II misinterpreted United States v. Calandra. CAG argues that Calandra stands for the proposition that Rule 41(e) mirrors “the exclusionary rule as it existed at the time of [the Calandra ] decision-well before the good faith exception was created.” Appellees' Supplemental Brief at 3. We disagree. CAG's interpretation of Calandra is too narrow. Calandra 's conclusion that Rule 41(e) is no broader than the exclusionary rule is perfectly consistent with the Second Circuit's conclusion in Roberts II that Rule 41(e) was intended merely to provide an additional procedure to enforce existing substantive rights. Roberts II, 852 F.2d at 674.

We conclude that the district court erred by holding that the good faith exception to the exclusionary rule does not apply to Rule 41(e) motions. We now consider the district court's alternative holding that even if the good faith exception applies, the government is not entitled to the exception in this case.

B.

1. District Court's Holding re Good Faith

[5] [pic]To invoke the good faith exception to the exclusionary rule, the government must prove that “its agents' reliance upon the warrant was objectively reasonable.” United States v. Michaelian, 803 F.2d 1042, 1048 (9th Cir.1986). See generally United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). “Under Leon, the good faith exception to the exclusionary rule is inapplicable when the warrant is ‘so facially overbroad as to preclude reasonable reliance by the executing officers' or when the officers do not act in good faith.” United States v. Luk, 859 F.2d 667, 677 (9th Cir.1988) (citations omitted). “The question of whether the agents' reliance on the warrant was objectively reasonable is a mixed question of fact and law to be given de novo review.” United States v. Freitas, 800 F.2d 1451, 1454 (9th Cir.1986); United States v. Washington, 797 F.2d 1461, 1473 n. 15 (9th Cir.1986) (as amended). The district court held that the CAG warrants were “so overbroad as to be facially invalid, thereby precluding good faith reliance on the validity of the warrant.” In re Motion, 681 F.Supp. at 686. We agree.

The government argues that Michaelian supports its contention that the officers' reliance on the warrants was objectively reasonable. However, Michaelian is distinguishable because the warrants in that case did not “approximate the degree of facial deficiency which would preclude objective*753 reasonable reliance by federal agents.” Michaelian, 803 F.2d at 1047. Indeed, we limited our holding to facially valid warrants. Id. at 1046. The Michaelian warrants limited the property to be seized to certain categories of documents within specific time periods. Id. The warrants also restricted the search to evidence of specific crimes described in the text of the warrants. Id. at 1046 n. 1. In the present case, the warrants contained no meaningful restriction on which documents could be seized. The warrants were so overbroad that absent some exceptional circumstance, no agent could reasonably rely on them. See United States v. Stubbs, 873 F.2d 210, 212-213, (9th Cir.1989); United States v. Dozier, 844 F.2d 701, 708 (9th Cir.1988); United States v. Crozier, 777 F.2d 1376, 1381 (9th Cir.1985).

The government points to two circumstances which it argues permit reliance on the warrants notwithstanding their broad reach. First, the government contends that reliance on the warrants was reasonable because, like 50 State, CAG was permeated with fraud. As we have previously noted, however, the government made no showing that CAG's business was in fact permeated with fraud. And the district court found that “the facts in this case, as related in [the supporting] affidavit, preclude reliance upon 50 State.” In re Motion, 681 F.Supp. at 686. We agree with the district court's analysis.

[6] [pic]The government next argues that reliance was reasonable because Postal Inspector Richard Portmann, the inspector who applied for the CAG warrants, did all that reasonably could be expected of him in obtaining the warrants. Cf. Massachusetts v. Sheppard, 468 U.S. 981, 989, 104 S.Ct. 3424, 3428, 82 L.Ed.2d 737 (1984) ( Leon 's companion case) (police “took every step that could reasonably be expected of them”). According to the government, Portmann had: (1) modeled the CAG warrants after similar warrants used on the East Coast, (2) consulted with the agent responsible for the East Coast warrants, (3) submitted the CAG warrants to both a United States Attorney and an Assistant United States Attorney for approval and (4) received the approval of a magistrate who made some minor corrections to the inspector's supporting affidavit.

We are unaware of any Ninth Circuit or Supreme Court case which has applied Sheppard to a warrant approximating the degree of facial overbreadth which would preclude reasonable reliance. Cf. Michaelian, 803 F.2d at 1047; United States v. Freitas, 856 F.2d 1425, 1429 (9th Cir.1988) (specifically noting that warrant was sufficiently particular) [hereinafter Freitas II ]. However, even if a Sheppard-type good faith exception may be applied to such an overbroad warrant, the government is not entitled to the exception in this case. The government does not argue that Inspector Portmann warned the magistrate of the apparent overbreadth of the warrants or that Portmann received specific assurances from the magistrate that the CAG warrants were not overbroad. Cf. Sheppard, 468 U.S. at 985-86, 989, 104 S.Ct. at 3426-27, 3428 (judge informed officer that he would make the necessary changes to rectify problem); Freitas II, 856 F.2d at 1431 (magistrate assured agent that he had authority to issue warrant with the controversial provisions); Michaelian, 803 F.2d at 1044, 1047 (not discussing whether a magistrate or judge had made any assurances). When the officer seeking the warrant is aware of an overbreadth problem, as Inspector Portmann was in this case,FN2 we can reasonably expect the officer to bring the problem to an impartial magistrate's or judge's attention and to seek specific assurances that the possible defects will not invalidate the warrant. See United States v. Spilotro, 800 F.2d 959, 968 (9th Cir.1986) (“In Crozier we held that an agent could not rely reasonably on an overly broad warrant limiting a search only to evidence of violation of two statutes, at least absent specific assurances from the magistrate that the overbreadth concern was without merit.”); cf. *754 Luk, 859 F.2d at 677 n. 9 (noting that there was no evidence that the affiant knew that the warrant was overbroad).

FN2. The district court found Portmann “was keenly aware that he was riding the outer limits of the Fourth Amendment.” In re Motion, 681 F.Supp. at 686.

We reject the government's arguments that reliance on the warrants was reasonable under Sheppard.

2. Hearing on Good Faith

[7] [pic]The government contends the district court erred by not holding an evidentiary hearing on the good faith issue. We review a decision not to hold an evidentiary hearing on a motion to suppress for abuse of discretion. United States v. Walczak, 783 F.2d 852, 857 (9th Cir.1986); see also United States v. Batiste, 868 F.2d 1089, 1091-92 (9th Cir.1989). An evidentiary hearing is generally required “if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in issue.” Walczak, 783 F.2d at 857.

We conclude that the district court acted within its discretion in not holding an evidentiary hearing. The government failed to make a sufficient showing of what issues of fact would be resolved by an evidentiary hearing, and what evidence, in addition to that presented by the affidavits, would be adduced by such a hearing. See Walczak, 783 F.2d at 857; United States v. Marcello, 731 F.2d 1354, 1358 (9th Cir.1984); United States v. Ledesma, 499 F.2d 36, 39 (9th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974); Cohen v. United States, 378 F.2d 751, 760 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967); see also 3 C. Wright, Federal Practice and Procedure § 675, at 781-82 (1982) ( “Factual allegations that are general or conclusory or based upon suspicion and conjecture will not suffice.”). Even on appeal, the government's briefs fail to identify any facts it would have brought forth in an evidentiary hearing which were not contained in the affidavits the government presented to the district court.FN3

FN3. We also note that the government failed to allege facts which, even if fully credited, would provide a reasonable basis for the executing officers' reliance on the patently overbroad warrants. See United States v. King, 528 F.2d 68, 69 (9th Cir.1975) (no hearing required “where allegations, even if proved, would not justify relief”); Cohen, 378 F.2d at 760.

IV

INEVITABLE DISCOVERY

[8] [pic]As an additional ground for its argument that it should be entitled to retain the seized items, the government contends that regardless of the validity of the seizure, it inevitably would have obtained the items when CAG responded to subpoenas which the government served after it executed the warrants. By this argument the government invokes the inevitable discovery doctrine of Nix v. Williams, 467 U.S. 431, 447, 104 S.Ct. 2501, 2511, 81 L.Ed.2d 377 (1984). Under this doctrine, evidence which has been illegally obtained will not be suppressed if “the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching.” Id.; see also United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir.1986).

We reject the government's inevitable discovery argument. The argument is based on the premise that by service of the subpoenas the government inevitably would have received the items the subpoenas sought. This is not so. As the Second Circuit in Roberts II pointed out:

The government contends that it inevitably would have discovered the documents under a subpoena that it had issued several months before the search of the premises. The mere fact that the government serves a subpoena, however, does not mean that it will obtain the documents it requests. A subpoena can be invalid for a variety of reasons, as when it is unduly burdensome, when it violates the right against self-incrimination, or when it calls for privileged documents.... Thus, the government cannot show that its subpoena would have inevitably resulted in the discovery of the suppressed documents.

*755 Roberts II, 852 F.2d at 676 (citations omitted).

[9] [pic]Consistent with the Second Circuit's resolution of the question in Roberts II, we hold that while an inevitable discovery analysis is appropriate in the context of a Rule 41(e) proceeding, the doctrine will not be applied to validate an illegal seizure when inevitable discovery is predicated upon a subpoena served to compel production of the seized items. Cf. In re Motion, 681 F.Supp. at 687 (decrying the use of a subpoena served at the time of an illegal search as “an insurance policy” to protect against suppression motions).

CONCLUSION

The warrants in this case were overbroad. While an affidavit can cure overbreadth, to do so the affidavit must be attached to and incorporated by reference into the warrant. Here, the affidavit was not attached, nor was it expressly incorporated into the warrant.

Judicially created exceptions to the exclusionary rule apply to Rule 41(e) motions. Roberts II, 852 F.2d at 675. The overbreadth of the warrants was not justified by the “permeated-with-fraud” exception of United States v. Offices Known as 50 State Distributing Company, 708 F.2d 1371 (9th Cir.1983), cert. denied, 465 U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d 677 (1984). The seizures were not validated by the good faith exceptions of United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984), or Massachusetts v. Sheppard, 468 U.S. 981, 989, 104 S.Ct. 3424, 3428, 82 L.Ed.2d 737 (1984); and the inevitable discovery doctrine of Nix v. Williams, 467 U.S. 431, 447, 104 S.Ct. 2501, 2510, 81 L.Ed.2d 377 (1984) was not brought into play by service of the subpoenas. The district court did not abuse its discretion in declining to hold an evidentiary hearing on the Rule 41(e) motion.

AFFIRMED.

465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552, 57 A.F.T.R.2d 86-1270, 15 Fed. R. Evid. Serv. 1

Supreme Court of the United States

UNITED STATES, Petitioner

v.

John DOE.

No. 82-786.

Argued Dec. 7, 1983.

Decided Feb. 28, 1984.

Owner of sole proprietorships upon whom subpoenas had been served demanding production of certain business records filed motion seeking to quash subpoenas. The United States District Court for the District of New Jersey, H. Lee Sarokin, J., 541 F.Supp. 1, granted motion, and an appeal was taken by the United States. The Court of Appeals, for the Third Circuit, 680 F.2d 327, affirmed. Certiorari was granted. The Supreme Court, Justice Powell, held that: (1) contents of business records were not privileged, but (2) act of producing records was privileged and could not be compelled without a statutory grant of use immunity.

Affirmed in part, reversed in part, and remanded.

Justice O'Connor filed concurring opinion.

Justice Marshall concurred in part, dissented in part, and filed an opinion in which Justice Brennan joined.

Justice Stevens, concurred in part, dissented in part, and filed an opinion.

Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

During a federal grand jury investigation of corruption in the awarding of county and municipal contracts, subpoenas were served on respondent owner of sole proprietorships demanding production of certain business records of several of his companies. Respondent then filed a motion in Federal District Court seeking to quash the subpoenas. The District Court granted the motion (except as to records required by law to be kept or disclosed to a public agency), finding that the act of producing the records would involve testimonial self-incrimination. The Court of Appeals affirmed, holding that the records were privileged, that the act of producing them also would have “communicative aspects of its own” in that the turning over of the records to the grand jury would admit their existence, possession, and authenticity, and that hence respondent was entitled to assert his Fifth Amendment privilege against compelled self-incrimination rather than produce the records. The court further held that in view of the Government's failure to make a formal request for use immunity under 18 U.S.C. §§ 6002 and 6003, it was proper to reject the Government's attempt to compel delivery of the records.

Held:

1. The contents of the subpoenaed records in question are not privileged under the Fifth Amendment. That Amendment only protects the person asserting the privilege from compelled self-incrimination. Fisher v. United States, 425 U.S. 391, 396, 96 S.Ct. 1569, 1573, 48 L.Ed.2d 39. Where the preparation of business records is voluntary, no compulsion is present. Here, respondent does not claim that he prepared the records involuntarily or that the subpoenas would force him to restate, repeat, or affirm the truth of the records' contents. The fact that the records are in his possession is irrelevant to the determination of whether the creation of the records was compelled. Pp. 1241 - 1242.

2. The act of producing the documents at issue in this case is privileged. Pp. 1242 - 1243.

3. The act of producing the subpoenaed documents cannot be compelled without a statutory grant of use immunity pursuant**1239 to 18 U.S.C. §§ 6002 and 6003. This Court will not extend the jurisdiction of courts to include prospective grants of use immunity under a doctrine of constructive*606 use immunity (as the Government urges), in the absence of the formal request that the statute requires. Pp. 1243 - 1244.

680 F.2d 327 (3d Cir.1982), affirmed in part, reversed in part, and remanded.

Samuel A. Alito, Jr., argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Joel M. Gershowitz.

Richard T. Philips argued the cause and filed a brief for respondent.

Justice POWELL delivered the opinion of the Court.

This case presents the issue whether, and to what extent, the Fifth Amendment privilege against compelled self-incrimination applies to the business records of a sole proprietorship.

I

Respondent is the owner of several sole proprietorships. In late 1980, a grand jury, during the course of an investigation of corruption in the awarding of county and municipal contracts, served five subpoenas on respondent. The first two demanded the production of the telephone records of several of respondent's companies and all records pertaining to four bank accounts of respondent and his companies. The subpoenas were limited to the period between January 1, 1977 and the dates of the subpoenas. The third subpoena demanded the production of a list of virtually all the business records of one of respondent's companies for the period between*607 January 1, 1976, and the date of the subpoena.FN1 The fourth subpoena sought production of a similar list of business records belonging to another company.FN2 The final subpoena demanded production of all bank statements and cancelled checks of two of respondent's companies that had accounts at a bank in the Grand Cayman Islands.

FN1. The categories of records sought by the third subpoena were: 1) general ledgers; 2) general journals; 3) cash disbursement journals; 4) petty cash books and vouchers; 5) purchase journals; 6) vouchers; 7) paid bills; 8) invoices; 9) cash receipts journal; 10) billings; 11) bank statements; 12) cancelled checks and check stubs; 13) payroll records; 14) contracts and copies of contracts, including all retainer agreements; 15) financial statements; 16) bank deposit tickets; 17) retained copies of partnership income tax returns; 18) retained copies of payroll tax returns; 19) accounts payable ledger; 20) accounts receivable ledger; 21) telephone company statement of calls and telegrams, and all telephone toll slips; 22) records of all escrow, trust, or fiduciary accounts maintained on behalf of clients; 23) safe deposit box records; 24) records of all purchases and sales of all stocks and bonds; 25) names and home addresses of all partners, associates, and employees; 26) W-2 forms of each partner, associate, and employee; 27) workpapers; and 28) copies of tax returns.

FN2. The only documents requested in the fourth subpoena that were not requested in the third were the company's stock transfer book, any corporate minutes, the corporate charter, all correspondence and memoranda, and all bids, bid bonds, and contracts. The request for “corporate” minutes and the “corporate” charter is puzzling because the company named in the subpoena was an unincorporated sole proprietorship.

II

Respondent filed a motion in federal district court seeking to quash the subpoenas. The District Court for the District of New Jersey granted his motion except with respect to those documents and records required by law to be kept or disclosed to a public agency.FN3 In reaching its decision, the *608 District Court noted that the Government had conceded that the materials sought in the subpoena were or might **1240 be incriminating. The court stated that, therefore, “the relevant inquiry is ... whether the act of producing the documents has communicative aspects which warrant Fifth Amendment protection.” 541 F.Supp. 1, 3 (1981) (emphasis in original). The court found that the act of production would compel respondent to “admit that the records exist, that they are in his possession, and that they are authentic.” Ibid. While not ruling out the possibility that the Government could devise a way to ensure that the act of turning over the documents would not incriminate respondent, the court held that the Government had not made such a showing.

FN3. The District Court mentioned tax returns and W-2 statements as examples of documents falling within this category. Respondent has not challenged this aspect of the District Court's opinion. We therefore understand that this case concerns only business documents and records not required by law to be kept or disclosed to a public agency. We also note that our opinion addresses only the Fifth Amendment implications of the subpoenas. The subpoenas were drawn in the broadest possible terms. It may be that the breadth of the subpoenas is subject to attack on other grounds that are not before us.

The Court of Appeals for the Third Circuit affirmed. It first addressed the question whether the Fifth Amendment ever applies to the records of a sole proprietorship. After noting that an individual may not assert the Fifth Amendment privilege on behalf of a corporation, partnership, or other collective entity FN4 under the holding of Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974), the Court of Appeals reasoned that the owner of a sole proprietorship acts in a personal rather than a representative capacity. As a result, the court held that respondent's claim of the privilege was not foreclosed by the reasoning of Bellis. 680 F.2d 327, 331 (1982).

FN4. Bellis defined a “collective entity” as “an organization which is recognized as an independent entity apart from its individual members.” 417 U.S., at 92, 94 S.Ct., at 2185.

The Court of Appeals next considered whether the documents at issue in this case are privileged. The court noted that this Court held in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), that the contents of business records ordinarily are *609 not privileged because they are created voluntarily and without compulsion. The Court of Appeals nevertheless found that respondent's business records were privileged under either of two analyses. First, the court reasoned that, notwithstanding the holdings in Bellis and Fisher, the business records of a sole proprietorship are no different from the individual owner's personal records. Noting that Third Circuit cases had held that private papers, although created voluntarily, are protected by the Fifth Amendment,FN5 the court accorded the same protection to respondent's business papers.FN6 Second, it held that respondent's act of producing the subpoenaed records would have “communicative aspects of its own.” 680 F.2d, at 335. The turning over of the subpoenaed documents to the grand jury would admit their existence and authenticity. Accordingly, respondent was entitled to assert his Fifth Amendment privilege rather than produce the subpoenaed documents.

FN5. See In re Grand Jury Proceedings (Johanson), 632 F.2d 1033 (CA3 1980); ICC v. Gould, 629 F.2d 847 (CA3 1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981).

FN6. Justice STEVENS apparently reads the Court of Appeals's decision as merely affirming the District Court's finding that the act of producing the subpoenaed records was privileged. In support of this hypothesis, he quotes extensively from that portion of the Court of Appeals's opinion that addresses the act of production issue. The quoted passage, however, begins after the court has discussed whether the records themselves are privileged. After noting that Fisher could be read to deprive the contents of a sole proprietorship's records of Fifth Amendment protection, the court noted that other Third Circuit cases-principally ICC v. Gould, 629 F.2d 847 (1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981)-had refused to adopt that interpretation. The court stated: “ Gould, then, stands for the proposition that an individual's business papers, as well as his personal records, cannot be subpoenaed by a grand jury.” 680 F.2d, at 334 (footnote omitted). The court went on to hold, in the alternative, that the act of production is privileged as well. We note in passing that both parties share our interpretation of the Court of Appeals's opinion. Brief of Petitioner, at 5; Brief of Respondent, at 3-4.

The Government contended that the court should enforce the subpoenas because of the Government's offer not to use respondent's act of production against respondent in any *610 way. The Court of Appeals noted that no formal request for **1241 use immunity under 18 U.S.C. §§ 6002 and 6003 had been made. In light of this failure, the court held that the District Court did not err in rejecting the Government's attempt to compel delivery of the subpoenaed records.

We granted certiorari to resolve the apparent conflict between the Court of Appeals holding and the reasoning underlying this Court's holding in Fisher. We now affirm in part, reverse in part, and remand for further proceedings.

III

A

[1] [pic][2] [pic]The Court in Fisher expressly declined to reach the question whether the Fifth Amendment privilege protects the contents of an individual's tax records in his possession.FN7 The rationale underlying our holding in that case is, however, persuasive here. As we noted in Fisher, the Fifth Amendment protects the person asserting the privilege only from compelled self-incrimination. 425 U.S., at 396, 96 S.Ct., at 1573. Where the preparation of business records is voluntary, no compulsion is present. FN8 A subpoena that demands production of documents*611 “does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought.” Id., at 409, 96 S.Ct., at 1580. Applying this reasoning in Fisher, we stated:

FN7. In Fisher, the Court stated: “Whether the Fifth Amendment would shield the taxpayer from producing his own tax records in his possession is a question not involved here; for the papers demanded here are not his ‘private papers,’ ...” 425 U.S., at 414, 96 S.Ct., at 1582. We note that in some respects the documents sought in Fisher were more “personal” than those at issue here. The Fisher documents were accountant's workpapers in the possession of the taxpayers' lawyers. The workpapers related to the taxpayers' individual personal returns. To that extent, the documents were personal, even though in the possession of a third party. In contrast, each of the documents sought here pertained to respondent's businesses.

FN8. Respondent's principal argument is that the Fifth Amendment should be read as creating a “zone of privacy which protects an individual and his personal records from compelled production.” This argument derives from language in Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886). This Court addressed substantially the same argument in Fisher:

“Within the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court's view, did not involve compelled testimonial self-incrimination of some sort.” 425 U.S., at 399, 96 S.Ct., at 1575.

In Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), the petitioner also relied on Boyd. In rejecting his argument, we observed that “the continued validity of the broad statements contained in some of the Court's earlier cases [has] been discredited by later opinions.” Id., at 472, 96 S.Ct., at 2744. See also United States v. Nobles, 422 U.S. 225, 233, n. 7, 95 S.Ct. 2160, 2167, n. 7, 45 L.Ed.2d 141 (1975).

“[T]he Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications. Schmerber v. California [384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ], supra; United States v. Wade [388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ], supra; and Gilbert v. California [388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) ], supra. The accountant's workpapers are not the taxpayer's. They were not prepared by the taxpayer, and they contain no testimonial declarations by him. Furthermore, as far as this record demonstrates, the preparation of all of the papers sought in these cases was wholly voluntary, and they cannot be said to contain compelled testimonial evidence, either of the taxpayers or of anyone else. The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of **1242 someone else.” Id., at 409-410, 96 S.Ct., at 1580-81.

[3] [pic]This reasoning applies with equal force here. Respondent does not contend that he prepared the documents involuntarily*612 FN9 or that the subpoena would force him to restate, repeat, or affirm the truth of their contents. The fact that the records are in respondent's possession is irrelevant to the determination of whether the creation of the records was compelled. We therefore hold that the contents of those records are not privileged.FN10

FN9. The Court of Appeals recognized the absence of compulsion in the compilation of the records sought in this case and those sought in Fisher. “To be sure, the documents requested here, like those sought in Fisher, were voluntarily prepared, and therefore ‘cannot be said to contain compelled testimonial evidence’ in and of themselves.” 680 F.2d, at 334. The Court of Appeals nevertheless gave our holding in Fisher an unduly restrictive reading and found it not to control the outcome in this case.

FN10. Accord In re Grand Jury Proceedings, 626 F.2d 1051, 1055 (CA1 1980) (“The line of cases culminating in Fisher have stripped the content of business records of any Fifth Amendment protection”). While not directly on point, Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), is consistent with our holding. In Andresen, investigators from a bi-county fraud unit obtained warrants to search the petitioner's office. During the search, the investigators seized several incriminating business records relating to the petitioner's practice as a sole practitioner of real estate law. The petitioner sought suppression of the documents on Fourth and Fifth Amendment grounds. The petitioner based his Fifth Amendment argument on “dicta in a number of cases which imply, or state, that the search for and seizure of a person's private papers violate the privilege against self-incrimination.” Id., at 471, 96 S.Ct., at 2744. The Court dismissed this argument and found the documents not to be privileged because the petitioner “had voluntarily committed to writing” any incriminating statements contained therein. Id., at 473, 96 S.Ct., at 2745. Although Andresen involved a search warrant rather than a subpoena, the underlying principle is the same in this context. If the party asserting the Fifth Amendment privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged.

B

[4] [pic]Although the contents of a document may not be privileged, the act of producing the document may be. Id., at 410, 96 S.Ct., at 1581. A government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an incriminating effect. As we noted in Fisher:

*613 “Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena. Curcio v. United States, 354 U.S. 118, 125 [77 S.Ct. 1145, 1150, 1 L.Ed.2d 1225] (1957). The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both ‘testimonial’ and ‘incriminating’ for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof.” Id., at 410, 96 S.Ct., at 1581.

In Fisher, the Court explored the effect that the act of production would have on the taxpayer and determined that the act of production would have only minimal testimonial value and would not operate to incriminate the taxpayer. Unlike the Court in Fisher, we have the explicit finding of the District Court that the act of producing the documents would involve testimonial self-incrimination.FN11 The Court of Appeals **1243 agreed.FN12 The District Court's finding essentially rests on its *614 determination of factual issues. See United States v. Nixon, 418 U.S. 683, 702, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974). Therefore, we will not overturn that finding unless it has no support in the record. Ibid. Traditionally, we also have been reluctant to disturb findings of fact in which two courts below have concurred. Rogers v. Lodge, 458 U.S. 613, 623 102 S.Ct. 3272, 3278-79, 73 L.Ed.2d 1012 (1982). We therefore decline to overturn the finding of the District Court in this regard, where, as here, it has been affirmed by the Court of Appeals.FN13

FN11. The District Court stated:

“With few exceptions, enforcement of the subpoenas would compel [respondent] to admit that the records exist, that they are in his possession, and that they are authentic. These communications, if made under compulsion of a court decree, would violate [respondent's] Fifth Amendment rights.... The government argues that the existence, possession and authenticity of the documents can be proved without [respondent's] testimonial communication, but it cannot satisfy this court as to how that representation can be implemented to protect the witness in subsequent proceedings.” 541 F.Supp., at 3.

FN12. The Court of Appeals stated:

“In the matter sub judice, however, we find nothing in the record that would indicate that the United States knows, as a certainty, that each of the myriad documents demanded by the five subpoenas in fact is in the appellee's possession or subject to his control. The most plausible inference to be drawn from the broad-sweeping subpoenas is that the Government, unable to prove that the subpoenaed documents exist-or that the appellee even is somehow connected to the business entities under investigation-is attempting to compensate for its lack of knowledge by requiring the appellee to become, in effect, the primary informant against himself.” 680 F.2d, at 335.

FN13. The Government concedes that the act of producing the subpoenaed documents might have had some testimonial aspects, but it argues that any incrimination would be so trivial that the Fifth Amendment is not implicated. The Government finds support for this argument in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). In Marchetti, the Court stated that a party who wishes to claim the Fifth Amendment privilege must be “confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination.” Id., at 53, 88 S.Ct., at 705; see United States v. Apfelbaum, 445 U.S. 115, 128, 100 S.Ct. 948, 956, 63 L.Ed.2d 250 (1980). On the basis of the findings made in this case we think it clear that the risk of incrimination was “substantial and real” and not “trifling or imaginary.” Respondent did not concede in the District Court that the records listed in the subpoena actually existed or were in his possession. Respondent argued that by producing the records, he would tacitly admit their existence and his possession. Respondent also pointed out that if the Government obtained the documents from another source, it would have to authenticate them before they would be admissible at trial. See Fed.R.Evid. 901. By producing the documents, respondent would relieve the Government of the need for authentication. These allegations were sufficient to establish a valid claim of the privilege against self-incrimination. This is not to say that the Government was foreclosed from rebutting respondent's claim by producing evidence that possession, existence, and authentication were a “foregone conclusion.” Fisher, 425 U.S. at 411, 96 S.Ct., at 1581. In this case, however, the Government failed to make such a showing.

IV

The Government, as it concedes, could have compelled respondent to produce the documents listed in the subpoena. *615 Sections 6002 and 6003 of Title 18 provide for the granting of use immunity with respect to the potentially incriminating evidence.FN14 **1244 The Court upheld the constitutionality of the use immunity statute in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

FN14. Section 6002 provides:

“Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to-

(1) a court or grand jury of the United States,

(2) an agency of the United States, or

(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,

and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.”

Section 6003 provides:

“(a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States or a grand jury of the United States, the United States district court for the judicial district in which the proceeding is or may be held shall issue, in accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part.

(b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, request an order under subsection (a) of this section when in his judgment-

(1) the testimony or other information from such individual may be necessary to the public interest; and

(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.”

*616 The Government did state several times before the District Court that it would not use respondent's act of production against him in any way. But counsel for the Government never made a statutory request to the District Court to grant respondent use immunity.FN15 We are urged to adopt a doctrine of constructive use immunity. Under this doctrine, the courts would impose a requirement on the Government not to use the incriminatory aspects of the act of production against the person claiming the privilege even though the statutory procedures have not been followed.

FN15. Despite repeated questioning at oral argument, counsel for the Government gave no plausible explanation for the failure to request official use immunity rather than promising that the act of producing the documents would not be used against respondent.

[5] [pic]We decline to extend the jurisdiction of courts to include prospective grants of use immunity in the absence of the formal request that the statute requires.FN16 As we stated in Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983), in passing the use immunity statute, “Congress gave certain officials in the Department of Justice exclusive authority to grant immunities.” Id., at ----, 103 S.Ct., at 612-613. “Congress foresaw the courts as playing only a minor role in the immunizing process: ...” Id., at ----, n. 11, 103 S.Ct., at 613, n. 11. The decision to seek use immunity necessarily involves a balancing of the Government's interest in obtaining information against the risk that immunity will frustrate the Government's attempts to prosecute the subject of the investigation. See United States v. Mandujano, 425 U.S. 564, 575, 96 S.Ct. 1768, 1776. 48 L.Ed.2d 212 (1976) (plurality op.). Congress expressly left this decision exclusively to the Justice*617 Department. If, on remand, the appropriate official concludes that it is desirable to compel respondent to produce his business records, the statutory procedure for requesting use immunity will be available.FN17

FN16. Of course, courts generally suppress compelled, incriminating testimony that results from a violation of a witness's Fifth Amendment rights. See United States v. Mandujano, 425 U.S. 564, 576, 96 S.Ct. 1768, 1776, 48 L.Ed.2d 212 (1976); United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966). The difference between that situation and the Government's theory of constructive use immunity is that in the latter it is the grant of judicially enforceable use immunity that compels the witness to testify. In the former situation, exclusion of the witness' testimony is used to deter the government from future violations of witnesses' Fifth Amendment rights.

FN17. Respondent argues that any grant of use immunity must cover the contents of the documents as well as the act of production. We find this contention unfounded. To satisfy the requirements of the Fifth Amendment, a grant of immunity need be only as broad as the privilege against self-incrimination. Murphy v. Waterfront Commission, 378 U.S. 52, 107, 84 S.Ct. 1594, 1618, 12 L.Ed.2d 678 (1964) (WHITE, J., concurring); see Pillsbury Co., supra, at ----, n. 8, 103 S.Ct., at 612, n. 8; United States v. Calandra, 414 U.S. 338 at 346, 94 S.Ct. 613 at 619, 38 L.Ed.2d 561 (1974). As discussed above, the privilege in this case extends only to the act of production. Therefore, any grant of use immunity need only protect respondent from the self-incrimination that might accompany the act of producing his business records.

V

[6] [pic]We conclude that the Court of Appeals erred in holding that the contents of the subpoenaed documents were privileged under the Fifth Amendment. The act of producing the documents at issue in this case is privileged and cannot be compelled without a statutory grant of use immunity pursuant to 18 U.S.C. §§ 6002 and 6003. The judgment of the Court of Appeals is, **1245 therefore, affirmed in part, reversed in part,FN18 and the case is remanded to the District Court for further proceedings in accordance with this decision.

FN18. Justice STEVENS states that we should affirm the Court of Appeals decision as a whole because our reasoning is entirely consistent with that of the courts below. See infra, at 1248. As we stated above, see note 6, supra, we read the opinion of the Court of Appeals as holding that the contents of the subpoenaed records were privileged. It is that aspect of the court's opinion that we reverse today. Were we to adopt Justice STEVENS's suggestion, respondent could argue on remand that any grant of use immunity must cover the contents of the records because the records themselves are privileged under the holding of the Court of Appeals. To avoid that result, we must reverse the opinion below insofar as it held that the contents of the subpoenaed records are privileged.

It is so ordered.

Affirmed in part, reversed in part, and remanded.

*618 Justice O'CONNOR, concurring.

I concur in both the result and reasoning of Justice Powell's opinion for the Court. I write separately, however, just to make explicit what is implicit in the analysis of that opinion: that the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind. The notion that the Fifth Amendment protects the privacy of papers originated in Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886), but our decision in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), sounded the death-knell for Boyd. “Several of Boyd's express or implicit declarations [had] not stood the test of time[,]” id., at 407, 96 S.Ct., at 1579, and its privacy of papers concept “had long been a rule searching for a rationale ....” Id., at 409, 96 S.Ct., at 1580. Today's decision puts a long-overdue end to that fruitless search.

Justice MARSHALL, with whom Justice BRENNAN joins, concurring in part and dissenting in part.

I concur in the Court's affirmance of the Court of Appeals' ruling that the act of producing the documents could not be compelled without an explicit grant of use immunity pursuant to 18 U.S.C. §§ 6002 and 6003. I dissent, however, with respect to that part of the Court's opinion reversing the Court of Appeals. The basis for the reversal is the majority's disagreement with the Court of Appeals' discussion of whether the Fifth Amendment protected the contents of the documents respondent sought to withhold from disclosure. Inasmuch as the Court of Appeals' judgment did not rest upon the disposition of this issue, this Court errs by reaching out to decide it. As Justice STEVENS rightly insists, “[t]his Court ... reviews judgments, not statements in opinions.” Post, at 1246 (citing Black v. Cutter Laboratories, 351 U.S. 292, 297, 76 S.Ct. 824, 827, 100 L.Ed. 1188 (1955).

*619 Contrary to what Justice O'CONNOR contends, ante, at 1245, I do not view the Court's opinion in this case as having reconsidered whether the Fifth Amendment provides protection for the contents of “private papers of any kind.” This case presented nothing remotely close to the question that Justice O'CONNOR eagerly poses and answers. First, as noted above, the issue whether the Fifth Amendment protects the contents of the documents was obviated by the Court of Appeals' rulings relating to the act of production and statutory use immunity. Second, the documents at stake here are business records FN1 which implicate a lesser degree of concern for privacy interests than, for example, personal diaries.FN2

FN1. As the majority notes, “each of the documents sought here pertained to respondent's businesses.” Ante, at 1241.

FN2. See Couch v. United States, 409 U.S. 322, 350, 93 S.Ct. 611, 626, 34 L.Ed.2d 548 (1972) (Justice MARSHALL, dissenting) (“Diaries and personal letters that record only their author's personal thoughts lie at the heart of our sense of privacy. In contrast, I see no bar in the ... Fifth Amendment to the seizure of a letter from one conspirator to another directing the recipient to take steps that further the conspiracy. Business records ... lie between those cases.”)

**1246 Were it true that the Court's opinion stands for the proposition that “the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind,” ante, at 1245, I would assuredly dissent. I continue to believe that under the Fifth Amendment “there are certain documents no person ought to be compelled to produce at the Government's request.” Fisher v. United States, 425 U.S. 391, 431-432, 96 S.Ct. 1569, 1590-91, 48 L.Ed.2d 39 (Justice MARSHALL, concurring).

Justice STEVENS, concurring in part and dissenting in part.

“This Court ... reviews judgments, not statements in opinions.” *620 Black v. Cutter Laboratories, 351 U.S. 292, 297, 76 S.Ct. 824, 827, 100 L.Ed. 1188 (1956).FN1 When both the District Court and the Court of Appeals correctly apply the law, and correctly dispose of the issue before them, I think it is poor appellate practice for this Court to reverse.

FN1. More particularly, we review the judgment that the Court of Appeals entered in this case, not the judgment that it may have entered in some other case, see ante at 1240, n. 6, or some isolated statement in its opinion commenting on the holding in some other case.

The question in this case is whether, without tendering statutory immunity, the Government can compel the sole proprietor of a business to produce incriminating records pursuant to a grand jury subpoena. Except for the records that are required by law to be kept or to be disclosed to public agencies, the District Court held that production could not be required. The basis for that decision turned, not on any suggestion that the contents of the documents were privileged, but rather on the significance of the act of producing them. As the District Court explained:

“[T]he relevant inquiry is not whether the subpoenaed documents on their face reveal incriminating communications, but whether the act of producing the documents has communicative aspects which warrant Fifth Amendment protection. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). In yielding to the command of the subpoena, Mr. [Doe] may be required to make any one of several communications. The mere act of producing the documents may be considered ‘a communication of testimonial significance as an admission that the subpoenaed records exist and that they are authentic.’ In Re Grand Jury Empanelled (Colucci), 597 F.2d 851, 862 (3d Cir.1979); Andresen v. Maryland, 427 U.S. 463, 475, 96 S.Ct. 2737, 2746, 49 L.Ed.2d 627 (1976) (“the Fifth Amendment may protect an individual from complying with a subpoena for the production of his personal records in his possession because the very act of production may constitute a compulsory authentication of incriminating information.”). In addition, the act of *621 production may indicate a belief that the papers produced are those described in the subpoena. Fisher, 425 U.S., at 410, 96 S.Ct., at 1581.

With few exceptions, enforcement of the subpoenas would compel Mr. [Doe] to admit that the records exist, that they are in his possession, and that they are authentic. These communications, if made under compulsion of a court decree, would violate Mr. [Doe's] Fifth Amendment rights.” In re Grand Jury Empanelled March 19, 1980, 541 F.Supp. 1, 3 (D.N.J.1981).FN2

FN2. Similarly, during oral argument in the District Court, Judge Sarokin stated: “If you can resolve it to my satisfaction I have no hesitancy in saying, yes, I will direct the turn-over, but only on the condition that the act of turn-over will not be utilized against the target.” Joint App. 35.

The Court of Appeals agreed with the District Court's reasoning and affirmed. It explained:

“To be sure, the documents requested here, like those sought in Fisher, were voluntarily prepared, and therefore ‘cannot be said to contain compelled testimonial evidence’ in and of themselves. See Fisher, supra, 425 U.S. at 409-10 [96 S.Ct., at 1580-81]. But the Supreme Court in Fisher went to great lengths to **1247 demonstrate that, in certain situations, the very act of producing subpoenaed records might amount to an incriminating declaration. See id. at 410-13 [96 S.Ct., at 1580-82]; see also id. at 430-34 [96 S.Ct., at 1590-92] (MARSHALL, J., concurring in the judgment). And such a situation, we believe, is present in the dispute at bar.”

* * *

“The record contains no explanation by the United States as to how documents of this sort could be authenticated without the appellee's explicit or implicit participation. As the district court observed in this connection,

‘the government can give no assurances that the act of turning over the documents will not constitute incriminating*622 admissions against [the appellee] either before the grand jury or at a subsequent trial, if he is indicted. The government argues that the existence, possession and authenticity of the documents can be proved without [the appellee's] testimonial communication, but it cannot satisfy this court as to how that representation can be implemented to protect [the appellee] in subsequent proceedings.’

“Appendix at 98 (footnote omitted). Under these circumstances, we are unable to say, as did the Court in Fisher, that responding to the subpoenas ‘would not appear to represent a substantial threat of self-incrimination.’ 425 U.S. at 413 [96 S.Ct., at 1582].

“Accordingly, we hold, therefore, that enforcement of these subpoenas would result in a compelled testimonial communication, an outcome neither compatible with the fifth amendment nor consonant with Fisher.” In re Grand Jury Empanelled March 19, 1980, 680 F.2d 327, 334, 335-336 (3d Cir.1982).

In addition, the Court of Appeals noted that the Government had had an opportunity to obtain the documents by providing the respondent with statutory immunity, but had declined to do so. It wrote:

“Finally, the United States argues that the district court erred in not compelling the appellee to produce the subpoenaed documents subject to ‘the functional equivalent of use immunity with respect to the act of production.’ Under this arrangement, presumably the appellee would turn over the requested records to the Government, which in turn would be obligated not to use the appellee's act of production against him in any way.

“We are unpersuaded by the Government's proposition. As the appellee stresses, although the Government, on a number of occasions, suggested to the district court that there were means by which the appellee's act of production could be immunized, no procedure ever *623 was agreed upon and no formal immunization offer under 18 U.S.C. § 6002 or § 6003 was advanced. Given this failure on the part of the Government to identify with particularity the immunity proposal it envisioned, we cannot say that the district court erred in rejecting this approach, especially in view of the court's finding that ‘the government can give no assurances that the act of turning over the documents will not constitute incriminating admissions against [the appellee] either before the grand jury or at a subsequent trial.’ Appendix at 98; see United States v. Garcia, 544 F.2d 681, 685 n. 4 (3d Cir.1976).” 680 F.2d, at 337.

This Court's opinion is entirely consistent with both the reasoning of the Court of Appeals and its disposition of the case. This Court agrees that the subpoena directed to respondent should have been quashed-which is all that the judgment we review today contains. Accordingly, the Court of Appeals' judgment should be affirmed.

To the extent that the Court purports to reverse the judgment of the Court of Appeals, I respectfully dissent.

THE PEOPLE, Plaintiff and Respondent,

v.

LEE STEWART PAULSON, Defendant and Appellant

No. A044696.

Court of Appeal, First District, Division 2, California.

Jan 4, 1990.

SUMMARY

An officer of the Department of Alcoholic Beverage Control conducted a search of a bar because of an anonymous tip indicating that narcotics sales were occurring there. The search was conducted without a warrant and pursuant to provisions of the Business and Professions Code prohibiting illegal activities on licensed premises. Cocaine was found in the bar's safe, and the liquor license holder was convicted of one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). (Superior Court of the City and County of San Francisco, No. 128372, Claude D. Perasso, Judge.)

The Court of Appeal affirmed, holding that the administrative search of defendant's bar was constitutionally reasonable. The search advanced a substantial government interest, in that Bus. & Prof. Code, § 24200.5, subd. (a) (revocation of liquor license for permitting illegal sales of drugs or narcotics), reflects a legislative judgment that the use of licensed premises for the purpose of drug sales poses a unique threat to the safety, welfare, health, peace, and morals of the people of the state that must be dealt with more vigorously than other illegal acts taking place on licensed premises. Further, the court held, the prerequisite of a warrant in such instances could easily frustrate inspection, and the statutes under which the search was authorized collectively provide a constitutionally adequate substitute for a warrant: Bus. & Prof. Code, §§ 25753, 25755, advise the licensee that inspections may take place during business hours and adequately limit the discretion of the inspectors as to the time, place, and scope of the search.(Opinion by Kline, P. J., with Benson and Peterson, JJ., concurring.)

Classified to California Digest of Official Reports

(1) Searches and Seizures § 9--Constitutional and Statutory Provisions-- Administrative Searches.

The prohibition of U.S. Const., 4th Amend., against unreasonable searches and seizures applies to commercial premises, as well as to private homes. However, unlike searches of private homes, which generally must be conducted pursuant to a warrant in order to be reasonable, legislative schemes authorizing administrative searches of commercial property without a warrant do not necessarily violate the Fourth Amendment. The greater latitude to conduct such searches reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's homes, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing inspections without warrant.

[Fourth Amendment's prohibition of unreasonable search and seizure as applied to administrative inspections of private property-Supreme Court cases, note, 69 L.Ed.2d, 1078. See also Cal.Jur.3d (Rev), Criminal Law, § 2551; Am.Jur.2d, Searches and Seizures, § 15.]

(2) Searches and Seizures § 9--Constitutional and Statutory Provisions-- Administrative Searches--Limitations.

An exception to the warrant requirement exists for administrative searches of certain closely regulated industries that, by their very nature, require unannounced visits from government agents. No reasonable expectation of privacy could exist for a proprietor over the stock of such enterprises. However, an inspection without warrant will still be deemed unreasonable unless three criteria are met. There must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made; the inspections must be necessary to further the regulatory scheme; and the inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.

(3) Searches and Seizures § 9--Constitutional and Statutory Provisions-- Administrative Searches--Where Regulated Conduct is Also Criminal.

An administrative search of a business, made without warrant, may be upheld even though the administrative provisions under which the search is carried out proscribe conduct that is also criminal.

(4) Searches and Seizures § 54--Without Warrant--Test of Reasonableness-- Administrative Searches.

The reasonableness of an administrative search carried out without a warrant depends on the specific enforcement needs and privacy guaranties of the administrative statute in question.

(5a , 5b) Searches and Seizures § 74--Without Warrant--Search of Premises--Cases Involving Illegal Drugs--Administrative Search of Bar.

A search of a bar, made because of an anonymous tip indicating that narcotics sales were occurring there, which search was conducted without a warrant and pursuant to provisions of the Business and Professions Code was constitutionally reasonable. It advanced a substantial government interest in that Bus. & Prof. Code, § 24200.5, subd. (a) (revocation of liquor license for permitting illegal sales of drugs or narcotics), reflects a legislative judgment that the use of licensed premises for the purpose of drug sales poses a unique threat to the safety, welfare, health, peace, and morals of the people of the state that must be dealt with more vigorously than other illegal acts taking place on licensed premises. Further, the prerequisite of a warrant in such instances could easily frustrate inspection, and the statutes under which the search was authorized collectively provide a constitutionally adequate substitute for a warrant: Bus. & Prof. Code, §§ 25753, 25755, advise the licensee that inspections may take place during business hours and adequately limit the discretion of the inspectors as to time, place, and scope.

(6) Alcoholic Beverages § 5--Alcoholic Beverage Control Act--Validity and Construction of Statute--Prohibition of Permitting Illegal Drug Sales.

Although the use of the word “permitted” in Bus. & Prof. Code, § 24200.5 (revocation of liquor license) indicates that the statute may have been primarily directed to the situation in which a licensee allows others to sell controlled substances or dangerous drugs on its premises, it would be anomalous not to construe it to include also the situation in which the licensee himself carries out the proscribed illegal sales.

COUNSEL

Arthur C. Lipton and David B. Harrison for Defendant and Appellant.

John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Herbert F. Wilkinson and David D. Salmon, Deputy Attorneys General, for Plaintiff and Respondent.*1483

KLINE, P. J.

Introduction

Lee Stewart Paulson appeals his conviction following his plea of nolo contendere to one count of possession of cocaine. (Health & Saf. Code, § 11350, subd. (a).) The court suspended imposition of sentence and placed him on probation for three years on condition he serve 90 days in the county jail. He filed a timely appeal, challenging the lawfulness of the search. Specifically, he contends that the warrantless search of his bar by an officer of the Department of Alcoholic Beverage Control (hereafter Department) exceeded the scope of administrative searches permissible under Business and Professions Code sections 25753 and 25755.FN1 In the alternative, he contends those statutes are unconstitutional.

FN1 All further statutory references are to the Business and Professions Code unless otherwise specified.

Statement of Facts

On February 11, 1988, an anonymous informer tipped the Department that narcotic sales were occurring on the premises of the “My House” bar in San Francisco, and that the narcotics were kept in a safe behind the bar on the premises. A month later, on March 11, 1988, Jerry Meyer, a special investigator for the Department, went to the bar during its hours of operation, entered, identified himself, telephoned appellant (the holder of the liquor license at the premises), informed appellant he was conducting an inspection, and asked appellant to provide access to a safe and locked storage facility. When appellant arrived Meyer, who did not have a search warrant, asked him to open the safe. Appellant did so. Meyer did not seek to obtain consent, although appellant did not object. Twenty-two bindles of cocaine, totaling 5.5 grams, were found in the safe.

At the suppression hearing, Meyer testified that he searched the premises solely because of the tip regarding a narcotics violation. Further, he maintained that the search was conducted under authority of Business and Professions Code sections prohibiting “any kind of illegal activity on licensed premises. ...”

Discussion

I.

(1) The Fourth Amendment's prohibition on unreasonable searches and seizures applies to commercial premises, as well as to private homes. (*1484 New York v. Burger (1987) 482 U.S. 691, 699 [96 L.Ed.2d 601, 612, 107 S.Ct. 2636]; Marshall v. Barlow's, Inc. (1978) 436 U.S. 307, 312 [56 L.Ed.2d 305, 311, 98 S.Ct. 1816]; See v. City of Seattle (1967) 387 U.S. 541, 543, 546 [18 L.Ed.2d 943, 946, 947-948, 87 S.Ct. 1737].) “However, unlike searches of private homes, which generally must be conducted pursuant to a warrant in order to be reasonable under the Fourth Amendment, legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment. See, e.g., United States v. Biswell, 406 U.S. 311 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970). The greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections. United States v. Biswell, supra, at 316.” ( Donovan v. Dewey (1981) 452 U.S. 594, 598-599 [69 L.Ed.2d 262, 268-269, 101 S.Ct. 2534]; Kim v. Dolch (1985) 173 Cal.App.3d 736, 742 [219 Cal.Rptr. 248].)

(2) The Supreme Court has recognized an exception to the warrant requirement for administrative searches of certain “closely regulated industries which, by their very nature, require unannounced visits from government agents.” ( Terry York Imports, Inc. v. Department of Motor Vehicles (1987) 197 Cal.App.3d 307, 319 [242 Cal.Rptr. 790].)FN2 As the Supreme Court observed in Marshall v. Barlow's Inc., supra, 436 U.S. 307, 313 [56 L.Ed.2d 305, 312]: “Certain industries have such a history of government oversight that no reasonable expectation of privacy ... could exist for a proprietor over the stock of such an enterprise.” (See also, New York v. Burger, supra, 482 U.S. 691, 700 [96 L.Ed.2d at p.612].)

FN2 Such closely regulated industries have been recognized by the Supreme Court in Colonnade Corp. v. United States (1970) 397 U.S. 72 [25 L.Ed.2d 60, 90 S.Ct. 774] (liquor licensees); United States v. Biswell (1972) 406 U.S. 311 [32 L.Ed.2d 87, 92 S.Ct. 1593] (licensed firearm dealers); Donovan v. Dewey, supra, 452 U.S. 594 (underground and surface mines); and New York v. Burger, supra, 482 U.S. 691. In California, the exception has been applied in People v. Firstenberg (1979) 92 Cal.App.3d 570 [155 Cal.Rptr. 80], certiorari denied Firstenberg v. California (1980) 444 U.S. 1012 [62 L.Ed.2d 641, 100 S.Ct. 660] (nursing homes); Betchart v. Department of Fish and Game (1984) 158 Cal.App.3d 1104 [205 Cal.Rptr. 135] (preservation of fish and game); People v. Harbor Hut Restaurant (1983) 147 Cal.App.3d 1151 [196 Cal.Rptr. 7] (wholesale fish dealers); and Kim v. Dolch, supra, 173 Cal.App.3d 736 (massage parlors). The United States Court of Appeals for the Ninth Circuit has recognized family day care homes as such an industry. ( Rush v. Obledo (9th Cir. 1985) 756 F.2d 713.)

The liquor industry, the quintessential “closely regulated” business, provided the first opportunity for the Supreme Court to articulate the exception. In Colonnade Corp. v. United States, supra, 397 U.S. 72, the court “considered a warrantless search of a catering business pursuant to several*1485 federal revenue statutes authorizing the inspection of the premises of liquor dealers. Although the court disapproved the search because the statute provided that a sanction be imposed when entry was refused, and because it did not authorize entry without a warrant as an alternative in this situation, it recognized that 'the liquor industry [was] long subject to close supervision and inspection.' Id., at 77.” ( New York v. Burger, supra, 482 U.S. 691, 700 [96 L.Ed.2d at p. 612].) The court recognized that with respect to the liquor industry, Congress has broad authority to fashion standards of reasonableness for searches and seizures. ( Colonnade Corp. v. United States, supra, 397 U.S. at p. 77 [25 L.Ed.2d at pp. 64-65].)

The closely regulated business exception, however, does not always operate to eliminate the warrant requirement. Nor is a long tradition of close government supervision a dispositive consideration in this regard. ( Donovan v. Dewey, supra, 452 U.S. at p. 606 [69 L.Ed.2d at pp. 273-274]; Bionic Auto Parts and Sales, Inc. v. Fahner (7th Cir. 1983) 721 F.2d 1072, 1079.) The warrantless inspection of closely regulated business premises will be deemed unreasonable unless three criteria are met. “First, there must be a 'substantial' government interest that informs the regulatory scheme pursuant to which the inspection is made.” ( New York v. Burger, supra, 482 U.S. 691, 702 [96 L.Ed.2d at p. 614].) In Colonnade, for example, a substantial federal interest was identified “in protecting the revenue against various types of fraud.” (397 U.S. at p. 75 [25 L.Ed.2d at p. 64].) “Second, the warrantless inspections must be 'necessary to further [the] regulatory scheme.”' ( New York v. Burger, supra, 482 U.S. 691, 702 [96 L.Ed.2d 601, 614], quoting Donovan v. Dewey, supra, 452 U.S., at p. 600 [69 L.Ed.2d at p. 270].) “Finally, 'the statute's inspection program, in terms of the certainty and regularity of its application, [ must] provid[ e] a constitutionally adequate substitute for a warrant.' [ Donovan v. Dewey, 452 U.S., at p. 603.] In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. [Italics added.] [Citations.] To perform this first function, the statute must be 'sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.' Donovan v. Dewey, 452 U.S., at 600. In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be 'carefully limited in time, place and scope.' [Italics added.]” ( New York v. Burger, supra, 482 U.S. 691, 703 [96 L.Ed.2d 601, 614], quoting United States v. Biswell, supra, 406 U.S. at p. 315 [32 L.Ed.2d at p. 92].)

(3) It is for purposes of this case important to understand that a warrantless search may be upheld even though the administrative provisions*1486 proscribe conduct which is also criminal. In New York v. Burger, supra, 482 U.S. 691, the Supreme Court upheld the warrantless search of an automobile junkyard pursuant to a statute authorizing such inspections. The statute was clearly aimed at controlling traffic in stolen vehicles and parts. ( New York v. Burger, supra, 482 U.S. 691, 708 [96 L.Ed.2d 601, 617].) Concluding that the business was “closely regulated,” the court found the statute satisfied the three applicable criteria and rejected the conclusion of the New York Court of Appeals that the statute violated the Fourth Amendment as it had no truly administrative purpose but was “'designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property.' [Citation.]” (482 U.S. at p. 698 [96 L.Ed.2d at p.611].) The Supreme Court observed that “a State can address a major social problem both by way of an administrative scheme and through penal sanctions. Administrative statutes and penal laws may have the same ultimate purpose of remedying the social problem, but they have different subsidiary purposes and prescribe different methods of addressing the problem. An administrative statute establishes how a particular business in a 'closely regulated' industry should be operated, setting forth rules to guide an operator's conduct of the business and allowing government officials to ensure that those rules are followed. Such a regulatory approach contrasts with that of the penal laws, a major emphasis of which is the punishment of individuals for specific acts of behavior.” (482 U.S. at pp. 712-713 [96 L.Ed.2d at p. 620], italics in original.) The court declared the statute there at issue “serves the regulatory goals of seeking to ensure that vehicle dismantlers are legitimate businesspersons and that stolen vehicles and vehicle parts passing through automobile junkyards can be identified.” (482 U.S. at p. 714 [96 L.Ed. 2d at p.621], fn. omitted.)FN3

FN3 The dissent in Burger warned of the dangers of such approach, fearing that it would allow the Legislature to “abrogate constitutional protections simply by saying that the purpose of an administrative search scheme is to prevent a certain type of crime.” (482 U.S. 718, 728 [96 L.Ed. 2d at p. 630] [dis. opn. of Brennan, J.].) The dissent also noted that the case did not present “the more difficult question whether a State could take any criminal conduct, make it an administrative violation, and then search without probable cause for violations of the newly created administrative rule. The increasing overlap of administrative and criminal violations creates an obvious temptation for the State to do so, and plainly toleration of this type of pretextual search would allow an end-run around the protections of the Fourth Amendment.” (482 U.S. 728, fn. 17 [96 L.Ed.2d at p. 630].)

(4) Keeping in mind that the reasonableness of a warrantless search depends on the specific enforcement needs and privacy guaranties of the statute in question ( Marshall v. Barlow's, Inc., supra, 436 U.S. at p. 321 [56 L.Ed.2d at pp. 316-317]), we turn to the California statutory scheme at issue here.*1487

II.

A.

The Alcoholic Beverage Control Act is contained in division 9 of the Business and Professions Code. Pursuant to section 25753, “The department may make any examination of the books and records of any licensee or other person and may visit and inspect the premises of any licensee it may deem necessary to perform its duties under this division.”

Section 25755 provides in relevant part as follows: “The director and the persons employed by the department for the administration and enforcement of this division are peace officers in the enforcement of the penal provisions of this division, the rules of the department adopted under the provisions of this division, and any other penal provisions of law of this state prohibiting or regulating the sale, exposing for sale, use, possession, giving away, adulteration, dilution, misbranding or mislabeling of alcoholic beverages or intoxicating liquors, and such persons are authorized, while acting as peace officers, to enforce any penal provisions of law while they are in, on, or about any licensed premises in the course of their employment. [¶] The director, the persons employed by the department of the administration and enforcement of this division, and peace officers ... may, in enforcing the provisions of this division, visit and inspect the premises of any licensee at any time during which the licensee is exercising the privileges authorized by his or her license on the premises.”

Section 24200 sets forth the grounds upon which the Department may suspend or revoke a license. Among the grounds listed are “[w]hen the continuance of a license would be contrary to public welfare or morals” (subd. (a)) and conviction of “any public offense involving moral turpitude” (subd. (d)).

Section 24200.5, subdivision (a), which relates to mandatory revocation, provides in part that, “[n]otwithstanding the provisions of Section 24200, the department shall revoke a license ... [i]f a retail licensee has knowingly permitted the illegal sale, or negotiations for such sales, of controlled substances or dangerous drugs upon his licensed premises.”

B.

(5a) Appellant contends that Officer Meyer's search cannot be upheld, and the fruits thereof must be suppressed, because the search exceeded the scope of the officer's statutory authority. According to appellant, section 25755 would be constitutionally overbroad if construed to permit personsemployed*1488 by the Department to make inspections of licensed premises for the enforcement of penal laws unrelated to the central purpose of the Alcoholic Beverage Control Act. The purpose of the act, appellant emphasizes, is regulation of the sale of alcoholic beverages, not controlled substances and dangerous drugs.FN4 Appellant also contends that the statutory proscription on “any public offense involving moral turpitude” does not limit the discretion of suspecting officers, as the Supreme Court has required ( New York v. Burger, supra, 482 U.S. at p. 703 [96 L.Ed.2d at p. 614]) because the concept of moral turpitude “defies any attempt at a uniform and precise definition.” ( Rice v. Alcoholic Beverage etc. Appeals Bd. (1979) 89 Cal.App.3d 30, 36 [152 Cal.Rptr. 285].) Permitting employees of the Department to conduct warrantless searches of licensed premises for evidence of any public offense they believe involves moral turpitude, appellant argues, “devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search.” ( Marshall v. Barlow's Inc., supra, 436 U.S. at p. 323 [56 L.Ed.2d at pp. 317-318].)

FN4 As used in the Alcoholic Beverage Control Act (§ 24200.5) and in this opinion, “controlled substances” has the same meaning as is given that term in article 1 (commencing with § 11000) of chapter 1 of division 10 of the Health and Safety Code, and “dangerous drugs” has the same meaning given that term in article 8 (commencing with § 4210) of chapter 9 of division 2 of the Business and Professions Code.

We need not address appellant's challenge to the use of section 24200, because the Department does not attempt to justify the warrantless search of appellant's premises solely on the basis of the broad language of that statute; the Department relies as well on considerably more specific language in section 24200.5. (6)(See fn. 5.) As earlier noted, section 24200.5 provides, inter alia, that, “[n]otwithstanding the provisions of section 24200 [relating to discretionary suspension or revocation], the department shall revoke a license ... if a retail licensee has knowingly permitted the illegal sale, or negotiations for such sales, of controlled substances or dangerous drugs upon his licensed premises.” (§ 24200.5, subd. (a), italics added.)FN5

FN5 Though the use of the word “permitted” indicates the statute may have been primarily directed to the situation in which a licensee allows others to sell controlled substances of dangerous drugs on his premises, it would be anomalous not to construe it to also include the situation in which, as here, the licensee himself carries out the proscribed illegal sales.

Permitting the sale of controlled substances or dangerous drugs on licensed premises (which, incidentally, has been adjudicated to involve moral turpitude ( Rice v. Alcoholic Beverage etc. Appeals Bd., supra, 89 Cal.App.3d 30), is the only public offense not itself involving alcoholic beverages requiring license revocation.FN6 (5b) Subdivision (a) of section 24200.5 therefore*1489 reflects a legislative judgment that the use of licensed premises for this purpose poses a unique threat to “the safety, welfare, health, peace and morals of the people of the State” (§ 23001) that must be dealt with more vigorously than almost all other illegal acts that may take place on licensed premises. Drugs and alcohol are both intensively regulated mind-altering substances; are both subject to abuse and addictive; are both attractive to many young persons and others who frequent licensed premises; and their adverse effects are often exacerbated when they are used at or about the same time. In other words, trafficking in dangerous drugs is a particularized criminal act warranting special attention by those charged with enforcement of laws regulating the sale of alcoholic beverages. Absent the threat of mandatory revocation, the Legislature apparently reasoned, such premises would provide a tempting venue for the sale of dangerous drugs.

FN6 The only other ground for mandatory revocation is “[i]f the licensee has employed or permitted any persons to solicit or encourage others, directly or indirectly, to buy them drinks in the licensed premises under any commission, percentage, salary, or other profit-sharing plan, scheme, or conspiracy.” (§ 24200.5, subd. (b).)

For the foregoing reasons, the inspection of appellant's premises advances “a 'substantial' government interest that informs the regulatory scheme pursuant to which the inspection [was] made” and therefore satisfies the first of the three applicable criteria for a warrantless search of a closely regulated business first set forth in Donovan v. Dewey, supra, 452 U.S. at page 600 [69 L.Ed.2d at pages 269-270] and most recently reaffirmed in New York v. Burger, supra, 482 U.S. at page 702 [96 L.Ed.2d at pages 613-614].

The warrantless inspection also meets the second criterion because, as the United States Supreme Court has pointed out, violations of law that can be quickly concealed, such as the sale of contraband, can only be deterred by frequent and unannounced inspections. “'In this context, the prerequisite of a warrant could easily frustrate inspection; and if the necessary flexibility as to time, scope, and frequency is to be preserved, the protections afforded by a warrant would be negligible.”' ( New York v. Burger, supra, 482 U.S. at p. 710 [96 L.Ed.2d at p. 619], quoting United States v. Biswell, supra, 406 U.S. at p. 316 [32 L.Ed.2d at p. 92].)

The inspection satisfies the final criterion because it was authorized by statutes - sections 24200.5, 25753 and 25755 - which collectively provide a “'constitutionally adequate substitute for a warrant.”' ( New York v. Burger, supra, 482 U.S. at p. 703 [96 L.Ed.2d at p. 614], quoting Donovan v. Dewey, supra, 452 U.S. at p. 603 [69 L.Ed.2d at p. 272].) That is, section 24200.5 explicitly informs a licensee that “permitt[ing] the illegal sale, or negotiations for such sales, of controlled substances or dangerous drugs upon his licensed premises” is specifically prohibited. Sections 25753 and*1490 25755 additionally advise licensees that it is the duty of the Department and its duly authorized employees to enforce that prohibition, and that such employees are authorized to act as peace officers and may “visit and inspect the premises of any licensee at any time during which the licensee is exercising the privileges authorized by his or her license on the premises.” (§ 25755.) A licensee thus cannot help but be aware that his property will be subject to periodic inspections during business hours for the specific purpose of determining whether he is permitting the sale of controlled substances or dangerous drugs on his premises. ( Donovan v. Dewey, supra, 452 U.S. at p. 600 [69 L.Ed.2d at pp. 269-270].) Therefore, this is not a case in which, as a condition of doing business, the state has required a blanket submission to warrantless searches at any time or for any purpose. (Compare Finn's Liquor Shop, Inc. v. State Liquor Authority (1969) 24 N.Y.2d 647, 249 N.E.2d 440, 443-445; Washington Massage Foundation v. Nelson (1976) 87 Wn.2d 948 [558 P.2d 231].) The time, place, and scope of authorized inspections adequately limit the discretion of the Department's inspectors. ( United States v. Biswell, supra, 406 U.S. at p. 315 [32 L.Ed.2d at pp. 91-92].)

For the foregoing reasons, we conclude that the search in question satisfies the applicable Fourth Amendment standard of reasonableness. Accordingly, the judgment is affirmed.

Benson, J., and Peterson, J., concurred.

Appellant's petition for review by the Supreme Court was denied March 29, 1990.*1491

Cal.App.1.Dist.

Supreme Court of the United States

CITY OF INDIANAPOLIS, et al., petitioners,

v.

James EDMOND et al.

No. 99-1030.

Argued Oct. 3, 2000.

Decided Nov. 28, 2000.

Motorists brought class action against city, mayor, and members of police department, alleging that drug interdiction checkpoints violated Fourth Amendment. The United States District Court for the Southern District of Indiana, 38 F.Supp.2d 1016, denied motorists' motion for preliminary injunction, and motorists appealed. The United States Court of Appeals for the Seventh Circuit, 183 F.3d 659, reversed, and certiorari was granted. The Supreme Court, Justice O'Connor, held that city's drug interdiction checkpoints were in violation of the Fourth Amendment.

Affirmed.

Chief Justice Rehnquist filed dissenting opinion in which Justice Thomas joined, and in which Justice Scalia joined in part.

Justice Thomas filed dissenting opinion.

Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

Petitioner city operates vehicle checkpoints on its roads in an effort to interdict unlawful drugs. Respondents, who were each stopped at such a checkpoint, filed suit, claiming that the roadblocks violated the Fourth Amendment. The District Court denied respondents a preliminary injunction, but the Seventh Circuit reversed, holding that the checkpoints contravened the Fourth Amendment.

Held: Because the checkpoint program's primary purpose is indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment. Pp. 451-458.

(a) The rule that a search or seizure is unreasonable under the Fourth Amendment absent individualized suspicion of wrongdoing has limited exceptions. For example, this Court has upheld brief, suspicionless seizures at a fixed checkpoint designed to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116, and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412. The Court has also suggested that a similar roadblock to verify drivers' licenses and registrations would be permissible to serve a highway safety interest. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660. However, the Court has never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Pp. 451-453.

(b) The latter purpose is what principally distinguishes the checkpoints at issue from those the Court has previously approved, which were designed to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Petitioners state that the Sitz and Martinez-Fuerte checkpoints had the same ultimate purpose of arresting those suspected of committing crimes. Securing the border and apprehending drunken drivers are law enforcement activities, and authorities employ arrests and criminal prosecutions to pursue these goals. But if this case were to rest at such a high level of generality, there would be little check on the authorities' ability to construct roadblocks for almost any conceivable law enforcement purpose. The checkpoint program is also not justified by the severe and intractable nature of the drug problem. The gravity of the threat alone *33 cannot be dispositive of questions concerning what means law enforcement may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, the Court must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. Nor can the checkpoints' purpose be rationalized in terms of a highway safety concern similar to that in Sitz, or merely likened to the antismuggling purpose in Martinez-Fuerte. Neither Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89, nor **450 Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365, precludes an inquiry into the checkpoint program's purposes. And if the program could be justified by its lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations, authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check. That is why the Court must determine the primary purpose of the checkpoint program. This holding does not alter the constitutional status of the checkpoints approved in Sitz and Martinez-Fuerte, or the type of checkpoint suggested in Prouse. It also does not affect the validity of border searches or searches in airports and government buildings, where the need for such measures to ensure public safety can be particularly acute. Nor does it impair police officers' ability to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose. Finally, the purpose inquiry is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene. Pp. 453-458.

183 F.3d 659, affirmed.

O'CONNOR, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which THOMAS, J., joined, and in which SCALIA, J., joined as to Part I, post, p. 458. THOMAS, J., filed a dissenting opinion, post, p. 462.

Scott Chinn, Indianapolis, IN, for petitioners.

Patricia A. Millett, Washington, DC, for the United States as amicus curiae, by special leave of the Court.

*34 Kenneth J. Falk, Indianapolis, IN, for respondents.

Justice O'CONNOR delivered the opinion of the Court.

In Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), we held that brief, suspicionless seizures at highway checkpoints for the purposes of combating drunk driving and intercepting illegal immigrants were constitutional. We now consider the constitutionality of a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics.

I

In August 1998, the city of Indianapolis began to operate vehicle checkpoints on Indianapolis roads in an effort to interdict unlawful drugs. The city conducted six such roadblocks between August and November that year, stopping *35 1,161 vehicles and arresting 104 motorists. Fifty-five arrests were for drug-related crimes, while 49 were for offenses unrelated to drugs. Edmond v. Goldsmith, 183 F.3d 659, 661 (C.A.7 1999). The overall “hit rate” of the program was thus approximately nine percent.

The parties stipulated to the facts concerning the operation of the checkpoints by the Indianapolis Police Department (IPD) for purposes of the preliminary injunction proceedings instituted below. At each checkpoint location, the police stop a predetermined number of vehicles. Approximately 30 officers are stationed at the checkpoint. Pursuant to written directives issued by the chief of police, at least one officer approaches the vehicle, advises the driver that he or she is being stopped briefly at a drug checkpoint, and asks the driver to produce a license and registration. The officer also looks for signs of impairment and conducts an open-view examination**451 of the vehicle from the outside. A narcotics-detection dog walks around the outside of each stopped vehicle.

The directives instruct the officers that they may conduct a search only by consent or based on the appropriate quantum of particularized suspicion. The officers must conduct each stop in the same manner until particularized suspicion develops, and the officers have no discretion to stop any vehicle out of sequence. The city agreed in the stipulation to operate the checkpoints in such a way as to ensure that the total duration of each stop, absent reasonable suspicion or probable cause, would be five minutes or less.

The affidavit of Indianapolis Police Sergeant Marshall DePew, although it is technically outside the parties' stipulation, provides further insight concerning the operation of the checkpoints. According to Sergeant DePew, checkpoint locations are selected weeks in advance based on such considerations as area crime statistics and traffic flow. The checkpoints are generally operated during daylight hours and are identified with lighted signs reading, “ ‘NARCOTICS *36 CHECKPOINT ___ MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP.’ ” App. to Pet. for Cert. 57a. Once a group of cars has been stopped, other traffic proceeds without interruption until all the stopped cars have been processed or diverted for further processing. Sergeant DePew also stated that the average stop for a vehicle not subject to further processing lasts two to three minutes or less.

Respondents James Edmond and Joell Palmer were each stopped at a narcotics checkpoint in late September 1998. Respondents then filed a lawsuit on behalf of themselves and the class of all motorists who had been stopped or were subject to being stopped in the future at the Indianapolis drug checkpoints. Respondents claimed that the roadblocks violated the Fourth Amendment of the United States Constitution and the search and seizure provision of the Indiana Constitution. Respondents requested declaratory and injunctive relief for the class, as well as damages and attorney's fees for themselves.

Respondents then moved for a preliminary injunction. Although respondents alleged that the officers who stopped them did not follow the written directives, they agreed to the stipulation concerning the operation of the checkpoints for purposes of the preliminary injunction proceedings. The parties also stipulated to certification of the plaintiff class. The United States District Court for the Southern District of Indiana agreed to class certification and denied the motion for a preliminary injunction, holding that the checkpoint program did not violate the Fourth Amendment. Edmond v. Goldsmith, 38 F.Supp.2d 1016 (1998). A divided panel of the United States Court of Appeals for the Seventh Circuit reversed, holding that the checkpoints contravened the Fourth Amendment. 183 F.3d 659 (1999). The panel denied rehearing. We granted certiorari, 528 U.S. 1153, 120 S.Ct. 1156, 145 L.Ed.2d 1068 (2000), and now affirm.

*37 II

[1] [pic][2] [pic]The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). While such suspicion is not an “irreducible” component of reasonableness, Martinez-Fuerte, 428 U.S., at 561, 96 S.Ct. 3074, we have recognized only limited circumstances in which the usual rule does not apply. For example, we have upheld certain regimes of suspicionless searches where the program was designed to serve “special needs, beyond the normal need for law enforcement.” See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (random drug testing of student-athletes); **452 Treasury Employees v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (drug tests for United States Customs Service employees seeking transfer or promotion to certain positions); Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (drug and alcohol tests for railway employees involved in train accidents or found to be in violation of particular safety regulations). We have also allowed searches for certain administrative purposes without particularized suspicion of misconduct, provided that those searches are appropriately limited. See, e.g., New York v. Burger, 482 U.S. 691, 702-704, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (warrantless administrative inspection of premises of “closely regulated” business); Michigan v. Tyler, 436 U.S. 499, 507-509, 511-512, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (administrative inspection of fire-damaged premises to determine cause of blaze); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534-539, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (administrative inspection to ensure compliance with city housing code).

We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, Martinez-Fuerte, supra, and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). In addition, in Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), *38 we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.

In Martinez-Fuerte, we entertained Fourth Amendment challenges to stops at two permanent immigration checkpoints located on major United States highways less than 100 miles from the Mexican border. We noted at the outset the particular context in which the constitutional question arose, describing in some detail the “formidable law enforcement problems” posed by the northbound tide of illegal entrants into the United States. 428 U.S., at 551-554, 96 S.Ct. 3074. These problems had also been the focus of several earlier cases addressing the constitutionality of other Border Patrol traffic-checking operations. See United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In Martinez-Fuerte, we found that the balance tipped in favor of the Government's interests in policing the Nation's borders. 428 U.S., at 561-564, 96 S.Ct. 3074. In so finding, we emphasized the difficulty of effectively containing illegal immigration at the border itself. Id., at 556, 96 S.Ct. 3074. We also stressed the impracticality of the particularized study of a given car to discern whether it was transporting illegal aliens, as well as the relatively modest degree of intrusion entailed by the stops. Id., at 556-564, 96 S.Ct. 3074.

Our subsequent cases have confirmed that considerations specifically related to the need to police the border were a significant factor in our Martinez-Fuerte decision. For example, in United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985), we counted Martinez-Fuerte as one of a number of Fourth Amendment cases that “reflect longstanding concern for the protection of the integrity of the border.” Although the stops in Martinez-Fuerte did not occur at the *39 border itself, the checkpoints were located near the border and served a border control function made necessary by the difficulty of guarding the border's entire length. See Martinez-Fuerte, supra, at 556, 96 S.Ct. 3074.

**453 In Sitz, we evaluated the constitutionality of a Michigan highway sobriety checkpoint program. The Sitz checkpoint involved brief, suspicionless stops of motorists so that police officers could detect signs of intoxication and remove impaired drivers from the road. 496 U.S., at 447-448, 110 S.Ct. 2481. Motorists who exhibited signs of intoxication were diverted for a license and registration check and, if warranted, further sobriety tests. Id., at 447, 110 S.Ct. 2481. This checkpoint program was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue. The gravity of the drunk driving problem and the magnitude of the State's interest in getting drunk drivers off the road weighed heavily in our determination that the program was constitutional. See id., at 451, 110 S.Ct. 2481.

In Prouse, we invalidated a discretionary, suspicionless stop for a spot check of a motorist's driver's license and vehicle registration. The officer's conduct in that case was unconstitutional primarily on account of his exercise of “standardless and unconstrained discretion.” 440 U.S., at 661, 99 S.Ct. 1391. We nonetheless acknowledged the States' “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed.” Id., at 658, 99 S.Ct. 1391. Accordingly, we suggested that “[q]uestioning of all oncoming traffic at roadblock-type stops” would be a lawful means of serving this interest in highway safety. Id., at 663, 99 S.Ct. 1391.

We further indicated in Prouse that we considered the purposes of such a hypothetical roadblock to be distinct from a general purpose of investigating crime. The State proffered*40 the additional interests of “the apprehension of stolen motor vehicles and of drivers under the influence of alcohol or narcotics” in its effort to justify the discretionary spot check. Id., at 659, n. 18, 99 S.Ct. 1391. We attributed the entirety of the latter interest to the State's interest in roadway safety. Ibid. We also noted that the interest in apprehending stolen vehicles may be partly subsumed by the interest in roadway safety. Ibid. We observed, however, that “[t]he remaining governmental interest in controlling automobile thefts is not distinguishable from the general interest in crime control.” Ibid. Not only does the common thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control.

III

[3] [pic][4] [pic]It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment. See, e.g., Sitz, supra, at 450, 110 S.Ct. 2481. The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search. See United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. See ibid. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is “much less intrusive than a typical search.” Ibid. Cf. United States v. Turpin, 920 F.2d 1377, 1385 (C.A.8 1990). Rather, what principally distinguishes these checkpoints from those we have previously approved is their primary purpose.

[5] [pic]As petitioners concede, the Indianapolis checkpoint program unquestionably has the primary purpose of interdicting illegal narcotics. In their stipulation of **454 facts, the parties repeatedly refer to the checkpoints as “drug checkpoints” and *41 describe them as “being operated by the City of Indianapolis in an effort to interdict unlawful drugs in Indianapolis.” App. to Pet. for Cert. 51a-52a. In addition, the first document attached to the parties' stipulation is entitled “DRUG CHECKPOINT CONTACT OFFICER DIRECTIVES BY ORDER OF THE CHIEF OF POLICE.” Id., at 53a. These directives instruct officers to “[a]dvise the citizen that they are being stopped briefly at a drug checkpoint.” Ibid. The second document attached to the stipulation is entitled “1998 Drug Road Blocks” and contains a statistical breakdown of information relating to the checkpoints conducted. Id., at 55a. Further, according to Sergeant DePew, the checkpoints are identified with lighted signs reading, “ ‘NARCOTICS CHECKPOINT ___ MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP.’ ” Id., at 57a. Finally, both the District Court and the Court of Appeals recognized that the primary purpose of the roadblocks is the interdiction of narcotics. 38 F.Supp.2d, at 1026 (noting that both parties “stress the primary purpose of the roadblocks as the interdiction of narcotics” and that “[t]he IPD has made it clear that the purpose for its checkpoints is to interdict narcotics traffic”); 183 F.3d, at 665 (observing that “the City concedes that its proximate goal is to catch drug offenders”).

We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested in Prouse that we would not credit the “general interest in crime control” as justification for a regime of suspicionless stops. 440 U.S., at 659, n. 18, 99 S.Ct. 1391. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the *42 primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.

Petitioners propose several ways in which the narcotics-detection purpose of the instant checkpoint program may instead resemble the primary purposes of the checkpoints in Sitz and Martinez-Fuerte. Petitioners state that the checkpoints in those cases had the same ultimate purpose of arresting those suspected of committing crimes. Brief for Petitioners 22. Securing the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals. See Sitz, 496 U.S., at 447, 450, 110 S.Ct. 2481; Martinez-Fuerte, 428 U.S., at 545-550, 96 S.Ct. 3074. If we were to rest the case at this high level of generality, there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.

[6] [pic]Petitioners also emphasize the severe and intractable nature of the drug problem as justification for the checkpoint program. Brief for Petitioners 14-17, 31. There is no doubt that traffic in illegal narcotics creates social harms of the first magnitude. Cf. Von Raab, 489 U.S., at 668, 109 S.Ct. 1384. The law enforcement problems that the drug trade creates likewise remain daunting and complex, particularly in light of the myriad forms of spin-off crime that it spawns. Cf. Montoya de Hernandez, 473 U.S., at 538, 105 S.Ct. 3304. The same can be said of various other illegal activities, if only to a lesser **455 degree. But the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, we must consider the nature of the interests threatened and their connection*43 to the particular law enforcement practices at issue. We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends.

Nor can the narcotics-interdiction purpose of the checkpoints be rationalized in terms of a highway safety concern similar to that present in Sitz. The detection and punishment of almost any criminal offense serves broadly the safety of the community, and our streets would no doubt be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses, however, is society confronted with the type of immediate, vehicle-bound threat to life and limb that the sobriety checkpoint in Sitz was designed to eliminate.

Petitioners also liken the anticontraband agenda of the Indianapolis checkpoints to the antismuggling purpose of the checkpoints in Martinez-Fuerte. Brief for Petitioners 15-16. Petitioners cite this Court's conclusion in Martinez-Fuerte that the flow of traffic was too heavy to permit “particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens,” 428 U.S., at 557, 96 S.Ct. 3074, and claim that this logic has even more force here. The problem with this argument is that the same logic prevails any time a vehicle is employed to conceal contraband or other evidence of a crime. This type of connection to the roadway is very different from the close connection to roadway safety that was present in Sitz and Prouse. Further, the Indianapolis checkpoints are far removed from the border context that was crucial in Martinez-Fuerte. While the difficulty of examining each passing car was an important factor in validating the law enforcement technique employed in Martinez-Fuerte, this factor alone cannot justify a regime of suspicionless searches or seizures. Rather, we must look more closely at the nature of the public interests that such a regime is designed principally to serve.

*44 The primary purpose of the Indianapolis narcotics checkpoints is in the end to advance “the general interest in crime control,” Prouse, 440 U.S., at 659, n. 18, 99 S.Ct. 1391. We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.

[7] [pic]Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. See 183 F.3d, at 662-663. The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control.FN1

FN1. THE CHIEF JUSTICE's dissent erroneously characterizes our opinion as resting on the application of a “non-law-enforcement primary purpose test.” Post, at 460. Our opinion nowhere describes the purposes of the Sitz and Martinez-Fuerte checkpoints as being “not primarily related to criminal law enforcement.” Post, at 459. Rather, our judgment turns on the fact that the primary purpose of the Indianapolis checkpoints is to advance the general interest in crime control.

THE CHIEF JUSTICE's dissent also erroneously characterizes our opinion as holding that the “use of a drug-sniffing dog ... annuls what is otherwise plainly constitutional under our Fourth Amendment jurisprudence.” Post, at 458. Again, the constitutional defect of the program is that its primary purpose is to advance the general interest in crime control.

**456 *45 Petitioners argue that our prior cases preclude an inquiry into the purposes of the checkpoint program. For example, they cite Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), and Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), to support the proposition that “where the government articulates and pursues a legitimate interest for a suspicionless stop, courts should not look behind that interest to determine whether the government's ‘primary purpose’ is valid.” Brief for Petitioners 34; see also id., at 9. These cases, however, do not control the instant situation.

In Whren, we held that an individual officer's subjective intentions are irrelevant to the Fourth Amendment validity of a traffic stop that is justified objectively by probable cause to believe that a traffic violation has occurred. 517 U.S., at 810-813, 116 S.Ct. 1769. We observed that our prior cases “foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” Id., at 813, 116 S.Ct. 1769. In so holding, we expressly distinguished cases where we had addressed the validity of searches conducted in the absence of probable cause. See id., at 811-812, 116 S.Ct. 1769 (distinguishing Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) (stating that “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence”), Colorado v. Bertine, 479 U.S. 367, 372, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (suggesting that the absence of bad faith and the lack of a purely investigative purpose were relevant to the validity of an inventory search), and Burger, 482 U.S., at 716-717, n. 27, 107 S.Ct. 2636 (observing that a valid administrative inspection conducted with neither a warrant nor probable cause did not appear to be a pretext for gathering evidence of violations of the penal laws)).

[8] [pic]Whren therefore reinforces the principle that, while “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” 517 U.S., at 813, 116 S.Ct. 1769, programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a *46 general scheme without individualized suspicion. Accordingly, Whren does not preclude an inquiry into programmatic purpose in such contexts. Cf. Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997); Treasury Employees v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989); Burger, supra; Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). It likewise does not preclude an inquiry into programmatic purpose here.

Last Term in Bond, we addressed the question whether a law enforcement officer violated a reasonable expectation of privacy in conducting a tactile examination of carry-on luggage in the overhead compartment of a bus. In doing so, we simply noted that the principle of Whren rendered the subjective intent of an officer irrelevant to this analysis. 529 U.S., at 338, n. 2, 120 S.Ct. 1462. While, as petitioners correctly observe, the analytical rubric of Bond was not “ordinary, probable-cause Fourth Amendment analysis,” Whren, supra, at 813, 116 S.Ct. 1769, nothing in **457 Bond suggests that we would extend the principle of Whren to all situations where individualized suspicion was lacking. Rather, subjective intent was irrelevant in Bond because the inquiry that our precedents required focused on the objective effects of the actions of an individual officer. By contrast, our cases dealing with intrusions that occur pursuant to a general scheme absent individualized suspicion have often required an inquiry into purpose at the programmatic level.

[9] [pic][10] [pic]Petitioners argue that the Indianapolis checkpoint program is justified by its lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations. Brief for Petitioners 31-34. If this were the case, however, law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check. For this reason, we examine the available evidence to determine the primary purpose of the checkpoint program. While we recognize the challenges inherent in a purpose inquiry, courts *47 routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful. Cf. 183 F.3d, at 665. As a result, a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar. While reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs and administrative search cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue.FN2

FN2. Because petitioners concede that the primary purpose of the Indianapolis checkpoints is narcotics detection, we need not decide whether the State may establish a checkpoint program with the primary purpose of checking licenses or driver sobriety and a secondary purpose of interdicting narcotics. Specifically, we express no view on the question whether police may expand the scope of a license or sobriety checkpoint seizure in order to detect the presence of drugs in a stopped car. Cf. New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (search must be “ ‘reasonably related in scope to the circumstances which justified the interference in the first place’ ” (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968))); Michigan v. Clifford, 464 U.S. 287, 294-295, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984) (plurality opinion).

It goes without saying that our holding today does nothing to alter the constitutional status of the sobriety and border checkpoints that we approved in Sitz and Martinez-Fuerte, or of the type of traffic checkpoint that we suggested would be lawful in Prouse. The constitutionality of such checkpoint programs still depends on a balancing of the competing interests at stake and the effectiveness of the program. See Sitz, 496 U.S., at 450-455, 110 S.Ct. 2481; Martinez-Fuerte, 428 U.S., at 556-564, 96 S.Ct. 3074. When law enforcement authorities pursue primarily general crime control purposes at checkpoints such as here, however, stops can only be justified by some quantum of individualized suspicion.

Our holding also does not affect the validity of border searches or searches at places like airports and government *48 buildings, where the need for such measures to ensure public safety can be particularly acute. Nor does our opinion speak to other intrusions aimed primarily at purposes beyond the general interest in crime control. Our holding also does not impair the ability of police officers to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose, even where such action may result in the arrest of a motorist for an offense unrelated to that purpose. Finally, we caution that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene. Cf. Whren, supra.

**458 Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment. The judgment of the Court of Appeals is, accordingly, affirmed.

It is so ordered.

Chief Justice REHNQUIST, with whom Justice THOMAS joins, and with whom Justice SCALIA joins as to Part I, dissenting.

The State's use of a drug-sniffing dog, according to the Court's holding, annuls what is otherwise plainly constitutional under our Fourth Amendment jurisprudence: brief, standardized, discretionless, roadblock seizures of automobiles, seizures which effectively serve a weighty state interest with only minimal intrusion on the privacy of their occupants. Because these seizures serve the State's accepted and significant interests of preventing drunken driving and checking for driver's licenses and vehicle registrations, and because there is nothing in the record to indicate that the addition of the dog sniff lengthens these otherwise legitimate seizures, I dissent.

*49 I

As it is nowhere to be found in the Court's opinion, I begin with blackletter roadblock seizure law. “The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.” United States v. Martinez-Fuerte, 428 U.S. 543, 566-567, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). Roadblock seizures are consistent with the Fourth Amendment if they are “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Specifically, the constitutionality of a seizure turns upon “a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Id., at 50-51, 99 S.Ct. 2637.

We first applied these principles in Martinez- Fuerte, supra, which approved highway checkpoints for detecting illegal aliens. In Martinez-Fuerte, we balanced the United States' formidable interest in checking the flow of illegal immigrants against the limited “objective” and “subjective” intrusion on the motorists. The objective intrusion-the stop itself,FN1 the brief questioning of the occupants, and the visual inspection of the car-was considered “limited” because “[n]either the vehicle nor its occupants [were] searched.” Id., at 558, 96 S.Ct. 3074. Likewise, the subjective intrusion, or the fear and surprise engendered in law-abiding motorists by the nature of the stop, was found to be minimal because the “regularized manner in which [the] established checkpoints [were] operated [was] visible evidence, reassuring to law-abiding motorists, that the stops [were] duly authorized and believed to serve the public interest.” Id., at 559, 96 S.Ct. 3074. Indeed, the standardized operation of the roadblocks was viewed as *50 markedly different from roving patrols, where the unbridled discretion of officers in the field could result in unlimited interference with motorists' use of the highways. Cf. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). And although the decision in Martinez-Fuerte did not turn on the checkpoints' effectiveness, the record in one of the consolidated cases demonstrated that illegal aliens were found in 0.12 percent of the stopped vehicles. See 428 U.S., at 554, 96 S.Ct. 3074.

FN1. The record from one of the consolidated cases indicated that the stops lasted between three and five minutes. See United States v. Martinez-Fuerte, 428 U.S. 543, 546-547, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).

In **459 Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), we upheld the State's use of a highway sobriety checkpoint after applying the framework set out in Martinez-Fuerte, supra, and Brown v. Texas, supra. There, we recognized the gravity of the State's interest in curbing drunken driving and found the objective intrusion of the approximately 25-second seizure to be “slight.” 496 U.S., at 451, 110 S.Ct. 2481. Turning to the subjective intrusion, we noted that the checkpoint was selected pursuant to guidelines and was operated by uniformed officers. See id., at 453, 110 S.Ct. 2481. Finally, we concluded that the program effectively furthered the State's interest because the checkpoint resulted in the arrest of two drunk drivers, or 1.6 percent of the 126 drivers stopped. See id., at 455-456, 110 S.Ct. 2481.

This case follows naturally from Martinez-Fuerte and Sitz. Petitioners acknowledge that the “primary purpose” of these roadblocks is to interdict illegal drugs, but this fact should not be controlling. Even accepting the Court's conclusion that the checkpoints at issue in Martinez-Fuerte and Sitz were not primarily related to criminal law enforcement,FN2 the *51 question whether a law enforcement purpose could support a roadblock seizure is not presented in this case. The District Court found that another “purpose of the checkpoints is to check driver's licenses and vehicle registrations,” App. to Pet. for Cert. 44a, and the written directives state that the police officers are to “[l]ook for signs of impairment,” id., at 53a. The use of roadblocks to look for signs of impairment was validated by Sitz, and the use of roadblocks to check for driver's licenses and vehicle registrations was expressly recognized in Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).FN3 That the roadblocks serve these legitimate state interests cannot be seriously disputed, as the 49 people arrested for offenses unrelated to drugs can attest. Edmond v. Goldsmith, 183 F.3d 659, 661 (C.A.7 1999). And it would be speculative to conclude-given the District Court's findings, the written directives, and the actual arrests-that petitioners would not have operated these roadblocks but for the State's interest in interdicting drugs.

FN2. This gloss, see ante, at 452-453, 454-455, is not at all obvious. The respondents in Martinez-Fuerte were criminally prosecuted for illegally transporting aliens, and the Court expressly noted that “[i]nterdicting the flow of illegal entrants from Mexico poses formidable law enforcement problems.” 428 U.S., at 552, 96 S.Ct. 3074. And the Sitz Court recognized that if an “officer's observations suggest that the driver was intoxicated, an arrest would be made.” 496 U.S., at 447, 110 S.Ct. 2481. But however persuasive the distinction, the Court's opinion does not impugn the continuing validity of Martinez-Fuerte and Sitz. See ante, at 457.

FN3. Several Courts of Appeals have upheld roadblocks that check for driver's licenses and vehicle registrations. See, e.g., United States v. Galindo-Gonzales, 142 F.3d 1217 (C.A.10 1998); United States v. McFayden, 865 F.2d 1306 (C.A.D.C.1989).

Because of the valid reasons for conducting these roadblock seizures, it is constitutionally irrelevant that petitioners also hoped to interdict drugs. In Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), we held that an officer's subjective intent would not invalidate an otherwise objectively justifiable stop of an automobile. The reasonableness of an officer's discretionary decision to stop an automobile, at issue in Whren, turns on whether there is probable cause to believe that a traffic violation has occurred. The reasonableness of highway checkpoints, at issue here, turns on whether they effectively serve a significant state interest with minimal intrusion on motorists. The stop in Whren was objectively reasonable because the police officers had witnessed traffic violations; so too the roadblocks here are objectively *52 reasonable because they serve the substantial interests of preventing drunken **460 driving and checking for driver's licenses and vehicle registrations with minimal intrusion on motorists.

Once the constitutional requirements for a particular seizure are satisfied, the subjective expectations of those responsible for it, be it police officers or members of a city council, are irrelevant. Cf. Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) ( “Subjective intent alone ... does not make otherwise lawful conduct illegal or unconstitutional”). It is the objective effect of the State's actions on the privacy of the individual that animates the Fourth Amendment. See Bond v. United States, 529 U.S. 334, 338, n. 2, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (applying Whren to determine if an officer's conduct amounted to a “search” under the Fourth Amendment because “the issue is not his state of mind, but the objective effect of his actions”). Because the objective intrusion of a valid seizure does not turn upon anyone's subjective thoughts, neither should our constitutional analysis.FN4

FN4. Of course we have looked to the purpose of the program in analyzing the constitutionality of certain suspicionless searches. As discussed in Part II, this page and infra, that doctrine has never been applied to seizures of automobiles.

With these checkpoints serving two important state interests, the remaining prongs of the Brown v. Texas balancing test are easily met. The seizure is objectively reasonable as it lasts, on average, two to three minutes and does not involve a search. App. to Pet. for Cert. 57a. The subjective intrusion is likewise limited as the checkpoints are clearly marked and operated by uniformed officers who are directed to stop every vehicle in the same manner. Ibid. The only difference between this case and Sitz is the presence of the dog. We have already held, however, that a “sniff test” by a trained narcotics dog is not a “search” within the meaning of the Fourth Amendment because it does not require physical intrusion of the object being sniffed and it does not expose*53 anything other than the contraband items. United States v. Place, 462 U.S. 696, 706-707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). And there is nothing in the record to indicate that the dog sniff lengthens the stop. Finally, the checkpoints' success rate-49 arrests for offenses unrelated to drugs-only confirms the State's legitimate interests in preventing drunken driving and ensuring the proper licensing of drivers and registration of their vehicles. 183 F.3d, at 661.FN5

FN5. Put in statistical terms, 4.2 percent of the 1,161 motorists stopped were arrested for offenses unrelated to drugs.

These stops effectively serve the State's legitimate interests; they are executed in a regularized and neutral manner; and they only minimally intrude upon the privacy of the motorists. They should therefore be constitutional.

II

The Court, unwilling to adopt the straightforward analysis that these precedents dictate, adds a new non-law-enforcement primary purpose test lifted from a distinct area of Fourth Amendment jurisprudence relating to the searches of homes and businesses. As discussed above, the question that the Court answers is not even posed in this case given the accepted reasons for the seizures. But more fundamentally, whatever sense a non-law-enforcement primary purpose test may make in the search setting, it is ill suited to brief roadblock seizures, where we have consistently looked at “the scope of the stop” in assessing a program's constitutionality. Martinez-Fuerte, 428 U.S., at 567, 96 S.Ct. 3074.

We have already rejected an invitation to apply the non-law-enforcement primary purpose test that the Court now finds so indispensable. The respondents in Sitz argued that the Brown v. Texas balancing test was not the “proper method of analysis” with regards to roadblock seizures:

**461 “Respondents argue that there must be a showing of some special governmental need ‘beyond the normal *54 need’ for criminal law enforcement before a balancing analysis is appropriate, and that [the State] ha[s] demonstrated no such special need.

“But it is perfectly plain from a reading of [ Treasury Employees v.] Von Raab [, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) ], which cited and discussed with approval our earlier decision in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), that it was in no way designed to repudiate our prior cases dealing with police stops of motorists on public highways. Martinez-Fuerte, supra, which utilized a balancing analysis in approving highway checkpoints for detecting illegal aliens, and Brown v. Texas, supra, are the relevant authorities here.” 496 U.S., at 449, 450, 110 S.Ct. 2481.

Considerations of stare decisis aside, the “perfectly plain” reason for not incorporating the “special needs” test in our roadblock seizure cases is that seizures of automobiles “deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection.” Martinez-Fuerte, supra, at 561, 96 S.Ct. 3074.

The “special needs” doctrine, which has been used to uphold certain suspicionless searches performed for reasons unrelated to law enforcement, is an exception to the general rule that a search must be based on individualized suspicion of wrongdoing. See, e.g., Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (drug test search); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (home administrative search). The doctrine permits intrusions into a person's body and home, areas afforded the greatest Fourth Amendment protection. But there were no such intrusions here.

“[O]ne's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence.” Martinez-Fuerte, supra, at 561, 96 S.Ct. 3074. This is because “[a]utomobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls.” *55 South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); see also New York v. Class, 475 U.S. 106, 113, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (“[A]utomobiles are justifiably the subject of pervasive regulation by the State”); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects”). The lowered expectation of privacy in one's automobile is coupled with the limited nature of the intrusion: a brief, standardized, nonintrusive seizure.FN6 The brief seizure of an automobile can hardly be compared to the intrusive search of the body or the home. Thus, just as the “special needs” inquiry serves to both define and limit the permissible scope of those searches, the Brown v. Texas balancing test serves to define and limit the permissible scope of automobile seizures.

FN6. This fact distinguishes the roadblock seizure of an automobile from an inventory search of an automobile. Cf. Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (automobile inventory search).

Because of these extrinsic limitations upon roadblock seizures, the Court's newfound non-law-enforcement primary purpose test is both unnecessary to secure Fourth Amendment rights and bound to produce wide-ranging litigation over the “purpose” of any given seizure. Police designing highway roadblocks can never be sure of their validity, since a jury might later determine that a forbidden purpose **462 exists. Roadblock stops identical to the one that we upheld in Sitz 10 years ago, or to the one that we upheld 24 years ago in Martinez-Fuerte, may now be challenged on the grounds that they have some concealed forbidden purpose.

Efforts to enforce the law on public highways used by millions of motorists are obviously necessary to our society. The Court's opinion today casts a shadow over what had been assumed, on the basis of stare decisis, to be a perfectly lawful activity. Conversely, if the Indianapolis police had assigned a different purpose to their activity here, but in no way changed what was done on the ground to individual *56 motorists, it might well be valid. See ante, at 457, n. 2. The Court's non-law-enforcement primary purpose test simply does not serve as a proxy for anything that the Fourth Amendment is, or should be, concerned about in the automobile seizure context.

Petitioners' program complies with our decisions regarding roadblock seizures of automobiles, and the addition of a dog sniff does not add to the length or the intrusion of the stop. Because such stops are consistent with the Fourth Amendment, I would reverse the decision of the Court of Appeals.

Justice THOMAS, dissenting.

Taken together, our decisions in Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), stand for the proposition that suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that limits the discretion of the officers conducting the stops. I am not convinced that Sitz and Martinez-Fuerte were correctly decided. Indeed, I rather doubt that the Framers of the Fourth Amendment would have considered “reasonable” a program of indiscriminate stops of individuals not suspected of wrongdoing.

Respondents did not, however, advocate the overruling of Sitz and Martinez-Fuerte, and I am reluctant to consider such a step without the benefit of briefing and argument. For the reasons given by THE CHIEF JUSTICE, I believe that those cases compel upholding the program at issue here. I, therefore, join his opinion.

Supreme Court of the United States

UNITED STATES DEPARTMENT OF JUSTICE, et al., Petitioners

v.

Vincent James LANDANO.

No. 91-2054.

Argued Feb. 24, 1993.

Decided May 24, 1993.

Inmate, convicted for murder of police officer, sought to obtain Federal Bureau of Investigation (FBI) files under Freedom of Information Act (FOIA). The United States District Court for the District of New Jersey, 751 F.Supp. 502, 758 F.Supp. 1021, granted summary judgment for inmate, and FBI appealed. The United States Court of Appeals for the Third Circuit, 956 F.2d 422, affirmed in part, reversed in part and remanded, and certiorari was granted. The Supreme Court, Justice O'Connor, held that government is not entitled to presumption that all sources supplying information to FBI in course of criminal investigation are confidential sources within meaning of section of FOIA exempting agency records compiled for law enforcement purposes by law enforcement authorities in course of criminal investigation if records' release “could reasonably be expected to disclose” identity of, or information provided by, “confidential source.”

Vacated and remanded.

Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

Respondent Landano was convicted in New Jersey state court for murdering a police officer during what may have been a gang-related robbery. In an effort to support his claim in subsequent state-court proceedings that the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the Federal Bureau of Investigation (FBI) for information it had compiled in connection with the murder investigation. When the FBI redacted some documents and withheld others, Landano filed this action in the Federal District Court, seeking disclosure of the requested**2016 files' contents. The FBI claimed that it withheld the information under Exemption 7(D), which exempts agency records compiled for law enforcement purposes by law enforcement authorities in the course of a criminal investigation if the records' release “could reasonably be expected to disclose” the identity of, or information provided by, a “confidential source.” The court held that the FBI had to articulate case-specific reasons for nondisclosure of information given by anyone other than a regular informant, and the Court of Appeals affirmed in relevant part. It held that a source is confidential if there has been an explicit assurance of confidentiality or circumstances from which such an assurance could reasonably be inferred. However, it rejected the Government's argument that a presumption of confidentiality arises whenever any individual or institutional source supplies information to the FBI during a criminal investigation and declined to rule that a presumption may be based on the particular investigation's subject matter. Rather, it held that, to justify withholding under Exemption 7(D), the Government had to provide detailed explanations relating to each alleged confidential source.

Held:

1. The Government is not entitled to a presumption that all sources supplying information to the FBI in the course of a criminal investigation are confidential sources within the meaning of Exemption 7(D). Pp. 2019-2023.

(a) A source should be deemed “confidential” if the source furnished information with the understanding that the FBI would not divulge the *166 communication except to the extent it thought necessary for law enforcement purposes. Contrary to respondent's position, Congress could not have intended to limit the exemption to only those sources who are promised complete anonymity or secrecy, because at the time an interview is conducted, neither a source nor the FBI ordinarily knows whether a communication will need to be disclosed. Pp. 2020-2021.

(b) Nonetheless, the presumption for which the Government argues in this case is unwarranted, because it does not comport with common sense and probability. During the course of a criminal investigation, the FBI collects diverse information, ranging from the extremely sensitive to the routine, from a variety of individual and institutional sources. While most individual sources may expect confidentiality, the Government offers no explanation, other than administrative ease, why that expectation always should be presumed. The justifications for presuming the confidentiality of all institutional sources are even less persuasive, given the wide variety of information that such sources are asked to give. Considerations of fairness also counsel against the Government's rule. Its presumption is, in practice, all but irrebuttable, because a requester without knowledge about the particular source or the withheld information will very rarely be in a position to offer persuasive evidence that the source had no interest in confidentiality. While Exemption 7(D)'s “could reasonably be expected to” language and this Court's decision in Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774, may support some inferences of confidentiality, they do not support the presumption that all FBI criminal investigative sources are exempt. Nor does the FOIA's legislative history indicate that Congress intended to create such a rule. Pp. 2020-2023.

2. Some narrowly defined circumstances can provide a basis for inferring confidentiality. For example, it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential. Similarly, the character of the crime at issue and the source's relation to the crime may be relevant to determining whether a source cooperated with the FBI with an implied assurance of confidentiality. Most people would think that witnesses to a gang-**2017 related murder likely would be unwilling to speak to the FBI except under such conditions. The Court of Appeals erred in declining to rely on such circumstances. This more particularized approach is consistent with Congress' intent to provide workable FOIA disclosure rules. And when a document containing confidential source information is requested, it is generally possible to establish the nature of the crime and the source's relation to it. Thus, the requester will have a more realistic opportunity to develop an argument that the circumstances do not support an inference of confidentiality. To the extent that the Government's*167 proof may compromise legitimate interests, the Government still can attempt to meet its burden with in camera affidavits. Pp. 2023-2024.

956 F.2d 422 (CA3 1992), vacated and remanded.

O'CONNOR, J., delivered the opinion for a unanimous Court.

John F. Daly, Washington, DC, for petitioners.

Neil Marc Mullin, West Orange, NJ, for respondent.

Justice O'CONNOR delivered the opinion of the Court.

Exemption 7(D) of the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), exempts from disclosure agency records “compiled for law enforcement purposes ... by criminal law enforcement authority in the course of a criminal investigation” if release of those records “could reasonably be expected to disclose” the identity of, or information provided by, a “confidential source.” § 552(b)(7)(D). This case concerns the evidentiary showing that the Government must make to establish that a source is “confidential” within the meaning of Exemption 7(D). We are asked to decide whether the Government is entitled to a presumption that all sources supplying information to the Federal Bureau of Investigation (FBI or Bureau) in the course of a criminal investigation are confidential sources.

I

Respondent Vincent Landano was convicted in New Jersey state court for murdering Newark, New Jersey, police officer John Snow in the course of a robbery. The crime received considerable media attention. Evidence at trial showed that the robbery had been orchestrated by Victor Forni and a motorcycle gang known as “the Breed.” There *168 was testimony that Landano, though not a Breed member, had been recruited for the job. Landano always has maintained that he did not participate in the robbery and that Forni, not he, killed Officer Snow. He contends that the prosecution withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Although his efforts to obtain state postconviction and federal habeas relief thus far have proved unsuccessful, see Landano v. Rafferty, 897 F.2d 661 (CA3), cert. denied, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990); Landano v. Rafferty, 856 F.2d 569 (CA3 1988), cert. denied, 489 U.S. 1014, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989); State v. Landano, 97 N.J. 620, 483 A.2d 153 (1984), Landano apparently is currently pursuing a Brady claim in the state courts, see Landano v. Rafferty, 970 F.2d 1230, 1233-1237 (CA3), cert. denied, 506 U.S. 955, 113 S.Ct. 412, 121 L.Ed.2d 336 (1992); Brief for Petitioners 3, n. 1. Seeking evidence to support that claim, Landano filed FOIA requests with the FBI for information that the Bureau had compiled in the course of its involvement in the investigation of Officer Snow's murder. Landano sought release of the Bureau's files on both Officer Snow and Forni. The FBI released several hundred pages of documents. The Bureau redacted some of these, however, and withheld several hundred other pages altogether.

**2018 Landano filed an action in the United States District Court for the District of New Jersey seeking disclosure of the entire contents of the requested files. In response, the Government submitted a declaration of FBI Special Agent Regina Superneau explaining the Bureau's reasons for withholding portions of the files. The information withheld under Exemption 7(D) included information provided by five types of sources: regular FBI informants; individual witnesses who were not regular informants; state and local law enforcement agencies; other local agencies; and private financial or commercial institutions. Superneau Declaration, App. 28. Agent Superneau explained why, in the Government's view, all such sources should be presumed confidential.*169 The deleted portions of the files were coded to indicate which type of source each involved. The Bureau provided no other information about the withheld materials. Id., at 33-41.

On cross-motions for summary judgment, the District Court largely rejected the Government's categorical explanations. See 751 F.Supp. 502 (NJ 1990), clarified on reconsideration, 758 F.Supp. 1021 (NJ 1991). There was no dispute that the undisclosed portions of the Snow and Forni files constituted records or information compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation. The District Court concluded however, that the Government had not met its burden of establishing that each withheld document reasonably could be expected to disclose the identity of, or information provided by, a “confidential source.” Although the court evidently was willing to assume that regular FBI informants were confidential sources, it held that the FBI had to articulate “case-specific reasons for non-disclosure” of all other information withheld under Exemption 7(D). 751 F.Supp., at 508.

The Court of Appeals for the Third Circuit affirmed in relevant part. 956 F.2d 422 (1992). Relying on legislative history, the court stated that a source is confidential within the meaning of Exemption 7(D) if the source received an explicit assurance of confidentiality or if there are circumstances “ ‘from which such an assurance could reasonably be inferred.’ ” Id., at 433 (quoting S.Rep. No. 93-1200, p. 13 (1974)). An “assurance of confidentiality,” the court said, is not a promise of absolute anonymity or secrecy, but “an assurance that the FBI would not directly or indirectly disclose the cooperation of the interviewee with the investigation unless such a disclosure is determined by the FBI to be important to the success of its law enforcement objective.” 956 F.2d, at 434.

*170 The court then addressed the Government's argument that a presumption of confidentiality arises whenever any individual or institutional source supplies information to the Bureau during a criminal investigation. As the Court of Appeals phrased it, the issue was “whether the fact that the source supplied information to the FBI in the course of a criminal investigation is alone sufficient to support an inference that the source probably had a reasonable expectation that no unnecessary disclosure of his or her cooperation would occur.” Ibid. The court thought the question “close.” Ibid. On one hand, the Bureau tends to investigate significant criminal matters, and the targets of those investigations are likely to resent cooperating witnesses. This is especially so where, as here, the investigation concerns a highly publicized, possibly gang-related police shooting. Id., at 434, and n. 5. On the other hand, the court recognized that “there are undoubtedly many routine FBI interviews in the course of criminal investigations that are unlikely to give rise to similar apprehensions on the part of the interviewee.” Id., at 434.

The Court of Appeals recognized that a number of other courts had adopted the Government's position. See, e.g., Nadler v. United States Dept. of Justice, 955 F.2d 1479, 1484-1487 (CA11 1992); **2019 Schmerler v. FBI, 283 U.S.App.D.C. 349, 353, 900 F.2d 333, 337 (1990); Donovan v. FBI, 806 F.2d 55, 61 (CA2 1986); Johnson v. United States Dept. of Justice, 739 F.2d 1514, 1517-1518 (CA10 1984); Ingle v. Department of Justice, 698 F.2d 259, 269 (CA6 1983); Miller v. Bell, 661 F.2d 623, 627 (CA7 1981) ( per curiam ), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982). Considering itself bound by its previous decision in Lame v. United States Department of Justice, 654 F.2d 917 (CA3 1981), however, the Court of Appeals took a different view. It declined to rely either on the Government's proposed presumption or on the particular subject matter of the investigation. Instead, it determined that, to justify withholding information under Exemption *171 7(D), the Government had to provide “ ‘detailed explanations relating to each alleged confidential source.’ ” 956 F.2d, at 435 (quoting Lame, supra, at 928).

We granted certiorari to resolve the conflict among the Courts of Appeals over the nature of the FBI's evidentiary burden under Exemption 7(D). 506 U.S. 813, 113 S.Ct. 51, 121 L.Ed.2d 21 (1992).

II

A

Exemption 7(D) permits the Government to withhold

“records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation ..., information furnished by a confidential source.” § 552(b)(7)(D).

The Government bears the burden of establishing that the exemption applies. § 552(a)(4)(B).

We have described the evolution of Exemption 7(D) elsewhere. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 155-157, 110 S.Ct. 471, 476-478, 107 L.Ed.2d 462 (1989); FBI v. Abramson, 456 U.S. 615, 621-622, 102 S.Ct. 2054, 2059-2060, 72 L.Ed.2d 376 (1982). When FOIA was enacted in 1966, Exemption 7 broadly protected “ ‘investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.’ ” Id., at 621, 102 S.Ct., at 2059. Congress revised the statute in 1974 to provide that law enforcement records could be withheld only if the agency demonstrated one of six enumerated harms. The 1974 version of Exemption 7(D) protected

“ ‘investigatory records compiled for law enforcement purposes [the production of which] would ... disclose *172 the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, ... confidential information furnished only by the confidential source.’ ” Id., at 622, 102 S.Ct., at 2059.

Congress adopted the current version of Exemption 7(D) in 1986. The 1986 amendment expanded “records” to “records or information,” replaced the word “would” with the phrase “could reasonably be expected to,” deleted the word “only” from before “confidential source,” and clarified that a confidential source could be a state, local, or foreign agency or a private institution. See 5 U.S.C. § 552(b)(7)(D).

Under Exemption 7(D), the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential. According to the Conference Report on the 1974 amendment, a source is confidential within the meaning of Exemption 7(D) if the source “provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.” **2020 S.Rep. No. 93-1200, at 13, U.S.Code Cong. & Admin.News pp. 6267, 6291. In this case, the Government has not attempted to demonstrate that the FBI made explicit promises of confidentiality to particular sources. That sort of proof apparently often is not possible: The FBI does not have a policy of discussing confidentiality with every source, and when such discussions do occur, agents do not always document them. Tr. of Oral Arg. 7-8, 47-48. The precise question before us, then, is how the Government can meet its burden of showing that a source provided information on an implied assurance of confidentiality. The parties dispute two issues: the meaning of the word “confidential,” and whether, absent specific evidence to the contrary, an implied assurance of confidentiality always can be inferred from the fact that a source cooperated with the FBI during a criminal investigation.

*173 B

Landano argues that the FBI's sources in the Snow investigation could not have had a reasonable expectation of confidentiality because the Bureau might have been obliged to disclose the sources' names or the information they provided under Brady, the Jencks Act, 18 U.S.C. § 3500, or federal discovery rules, see Fed.Rules Crim.Proc. 16, 26.2. He also points out that some FBI witnesses invariably will be called to testify publicly at trial. Landano apparently takes the position that a source is “confidential” for purposes of Exemption 7(D) only if the source can be assured, explicitly or implicitly, that the source's cooperation with the Bureau will be disclosed to no one. We agree with the Court of Appeals that this cannot have been Congress' intent.

FOIA does not define the word “confidential.” In common usage, confidentiality is not limited to complete anonymity or secrecy. A statement can be made “in confidence” even if the speaker knows the communication will be shared with limited others, as long as the speaker expects that the information will not be published indiscriminately. See Webster's Third New International Dictionary 476 (1986) (defining confidential to mean “communicated, conveyed, [or] acted on ... in confidence: known only to a limited few: not publicly disseminated”). A promise of complete secrecy would mean that the FBI agent receiving the source's information could not share it even with other FBI personnel. See Dow Jones & Co. v. Department of Justice, 286 U.S.App.D.C. 349, 357, 917 F.2d 571, 579 (1990) (Silberman, J., concurring in denial of rehearing en banc). Such information, of course, would be of little use to the Bureau.

[1] [pic]We assume that Congress was aware of the Government's disclosure obligations under Brady and applicable procedural rules when it adopted Exemption 7(D). Congress also must have realized that some FBI witnesses would testify at trial. We need not reach the question whether a confidential source's public testimony “waives” the FBI's right to withholdinformation *174 provided by that source. See, e.g., Irons v. FBI, 880 F.2d 1446 (CA1 1989) (en banc). For present purposes, it suffices to note that, at the time an interview is conducted, neither the source nor the FBI agent ordinarily knows whether the communication will be disclosed in any of the aforementioned ways. Thus, an exemption so limited that it covered only sources who reasonably could expect total anonymity would be, as a practical matter, no exemption at all. Cf. John Doe, 493 U.S., at 152, 110 S.Ct., at 475 (FOIA exemptions “are intended to have meaningful reach and application”). We therefore agree with the Court of Appeals that the word “confidential,” as used in Exemption 7(D), refers to a degree of confidentiality less than total secrecy. A source should be deemed confidential if the source furnished information with the understanding that the FBI would not divulge the communication except to the extent the Bureau thought necessary for law enforcement purposes.

**2021 C

[2] [pic]The Government objects to the Court of Appeals' requirement that it make an individualized showing of confidentiality with respect to each source. It argues that an assurance of confidentiality is “ ‘inherently implicit’ ” whenever a source cooperates with the FBI in a criminal investigation. Brief for Petitioners 18-20 (quoting Miller v. Bell, 661 F.2d, at 627). The Government essentially contends that all FBI sources should be presumed confidential; the presumption could be overcome only with specific evidence that a particular source had no interest in confidentiality.

This Court previously has upheld the use of evidentiary presumptions supported by considerations of “fairness, public policy, and probability, as well as judicial economy.” Basic Inc. v. Levinson, 485 U.S. 224, 245, 108 S.Ct. 978, 990, 99 L.Ed.2d 194 (1988). We also have recognized the propriety of judicially created presumptions under federal statutes that make no express provision *175 for their use. See, e.g., ibid. But we are not persuaded that the presumption for which the Government argues in this case is warranted.

Although the Government sometimes describes its approach as “categorical,” see, e.g., Superneau Declaration, App. 33-41, the proposed rule is not so much categorical as universal, at least with respect to FBI sources. The Government would have us presume that virtually every source is confidential: the paid informant who infiltrates an underworld organization; the eyewitness to a violent crime; the telephone company that releases phone records; the state agency that furnishes an address. The only “sources” that the Government is willing to state are not presumptively confidential (though they may be exempt from disclosure under other FOIA provisions) are newspaper clippings, wiretaps, and witnesses who speak to an undercover agent and therefore do not realize they are communicating with the FBI. Although we recognize that confidentiality often will be important to the FBI's investigative efforts, we cannot say that the Government's sweeping presumption comports with “common sense and probability.” Basic Inc., supra, at 246, 108 S.Ct., at 991.

The FBI collects information from a variety of individual and institutional sources during the course of a criminal investigation. See, e.g., Superneau Declaration, App. 35-41. The Bureau's investigations also cover a wide range of criminal matters. See 28 U.S.C. § 533 (FBI authorized to investigate “crimes against the United States” and to conduct other investigations “regarding official matters under the control of the Department of Justice and the Department of State”); § 540 (FBI authorized to investigate certain felonious killings of state and local law enforcement officers). In this case, the Bureau participated in the investigation of a state crime in part because of the need for interstate “unlawful flight” warrants to apprehend certain suspects. Brief for Petitioners 2, n. 1. The types of information the Bureau *176 collects during an investigation also appear to be quite diverse. Although the Government emphasizes the difficulty of anticipating all the ways in which release of information ultimately may prove harmful, it does not dispute that the communications the FBI receives can range from the extremely sensitive to the routine.

The Government maintains that an assurance of confidentiality can be inferred whenever an individual source communicates with the FBI because of the risk of reprisal or other negative attention inherent in criminal investigations. See Superneau Declaration, App. 37-38. It acknowledges, however, that reprisal may not be threatened or even likely in any given case. Id., at 38. It may be true that many, or even most, individual sources will expect confidentiality. But the Government offers no explanation, other than ease of administration, why that expectation always should be presumed. The justifications offered for presuming the confidentiality of all institutional sources are less persuasive. The Government “is convinced” that the willingness of other law enforcement agencies to **2022 furnish information depends on a “traditional understanding of confidentiality.” Id., at 40. There is no argument, however, that disclosure ordinarily would affect cooperating agencies adversely or that the agencies otherwise would be deterred from providing even the most nonsensitive information. The Government does suggest that private institutions might be subject to “possible legal action or loss of business” if their cooperation with the Bureau became publicly known. Id., at 41. But the suggestion is conclusory. Given the wide variety of information that such institutions may be asked to provide, we do not think it reasonable to infer that the information is given with an implied understanding of confidentiality in all cases.

Considerations of “fairness” also counsel against the Government's rule. Basic Inc., supra, at 245, 108 S.Ct., at 990. The Governmentacknowledges *177 that its proposed presumption, though rebuttable in theory, is in practice all but irrebuttable. Tr. of Oral Arg. 22-23. Once the FBI asserts that information was provided by a confidential source during a criminal investigation, the requester-who has no knowledge about the particular source or the information being withheld-very rarely will be in a position to offer persuasive evidence that the source in fact had no interest in confidentiality. See Dow Jones & Co. v. Department of Justice, 286 U.S.App.D.C., at 355, 917 F.2d, at 577.

The Government contends that its presumption is supported by the phrase “could reasonably be expected to” and by our decision in Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). In Reporters Committee we construed Exemption 7(C), which allows the Government to withhold law enforcement records or information the production of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). We held that certain criminal “rap sheet” information was categorically exempt from disclosure because the release of such information invariably constitutes an unwarranted invasion of privacy. 489 U.S., at 780, 109 S.Ct., at 1485. Our approval of a categorical approach was based in part on the phrase “could reasonably be expected to,” which Congress adopted in 1986 to ease the Government's burden of invoking Exemption 7, see id., at 756, n. 9, 109 S.Ct., at 1473, n. 9, and to “replace a focus on the effect of a particular disclosure ‘with a standard of reasonableness ... based on an objective test,’ ” id., at 778, n. 22, 109 S.Ct., at 1484, n. 22 (quoting S.Rep. No. 98-221, p. 24 (1983)). As explained more fully in Part III, below, we agree with the Government that when certain circumstances characteristically support an inference of confidentiality, the Government similarly should be able to claim exemption under Exemption 7(D) without detailing the circumstances surrounding a particular interview. Neither the *178 language of Exemption 7(D) nor Reporters Committee, however, supports the proposition that the category of all FBI criminal investigative sources is exempt.

The Government relies extensively on legislative history. It is true that, when Congress debated the adoption of Exemption 7(D), several Senators recognized the importance of confidentiality to the FBI and argued that the exemption should not jeopardize the effectiveness of the Bureau's investigations. See, e.g., 120 Cong.Rec. 17036, 17037 (May 30, 1974) (Sen. Thurmond) (“It is just such assurance [of confidentiality] that encourages individuals from all walks of life to furnish this agency information ...”). But Congress did not expressly create a blanket exemption for the FBI; the language that it adopted requires every agency to establish that a confidential source furnished the information sought to be withheld under Exemption 7(D). The Government cites testimony presented to Congress prior to passage of the 1986 amendment emphasizing that the threat of **2023 public exposure under FOIA deters potential sources from cooperating with the Bureau in criminal investigations. See, e.g., FBI Oversight: Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 96th Cong., 2d Sess., pp. 97, 99-100, 106 (1980) (FBI Dir. William Webster); see also Freedom of Information Act: Hearings before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., pp. 990-1040 (1981). But none of the changes made to Exemption 7(D) in 1986 squarely addressed the question presented here. In short, the Government offers no persuasive evidence that Congress intended for the Bureau to be able to satisfy its burden in every instance simply by asserting that a source communicated with the Bureau during the course of a criminal investigation. Had Congress meant to create such a rule, it could have done so much more clearly.

*179 III

Although we have determined that it is unreasonable to infer that all FBI criminal investigative sources are confidential, we expect that the Government often can point to more narrowly defined circumstances that will support the inference. For example, as the courts below recognized, and respondent concedes, see Brief for Respondent 46, it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential. The nature of the informant's ongoing relationship with the Bureau, and the fact that the Bureau typically communicates with informants “only at locations and under conditions which assure the contact will not be noticed,” Superneau Declaration, App. 36, justify the inference.

[3] [pic]There may well be other generic circumstances in which an implied assurance of confidentiality fairly can be inferred. The Court of Appeals suggested that the fact that the investigation in this case concerned the potentially gang-related shooting of a police officer was probative. We agree that the character of the crime at issue may be relevant to determining whether a source cooperated with the FBI with an implied assurance of confidentiality. So too may the source's relation to the crime. Most people would think that witnesses to a gang-related murder likely would be unwilling to speak to the Bureau except on the condition of confidentiality.

The Court of Appeals below declined to rely on such circumstances. But several other Court of Appeals decisions (including some of those the Government cites favorably) have justified nondisclosure under Exemption 7(D) by examining factors such as the nature of the crime and the source's relation to it. See, e.g., Keys v. United States Dept. of Justice, 265 U.S.App.D.C. 189, 197-198, 830 F.2d 337, 345-346 (1987) (individuals who provided information about subject's possible Communist sympathies, criminal activity, and murder by foreign operatives would have worried about retaliation);*180 Donovan v. FBI, 806 F.2d, at 60-61 (on facts of this case, in which FBI investigated murder of American churchwomen in El Salvador, “it cannot be doubted that the FBI's investigation would have been severely curtailed, and, perhaps, rendered ineffective if its confidential sources feared disclosure”); Parton v. United States Dept. of Justice, 727 F.2d 774, 776-777 (CA8 1984) (prison officials who provided information about alleged attack on inmate faced “high probability of reprisal”); Miller v. Bell, 661 F.2d, at 628 (individuals who provided information about self-proclaimed litigious subject who sought to enlist them in his “anti-government crusade” faced “strong potential for harassment”); Nix v. United States, 572 F.2d 998, 1003-1004 (CA4 1978) (risk of reprisal faced by guards and prison inmates who informed on guards who allegedly beat another inmate supported finding of implied assurance of confidentiality).

We think this more particularized approach is consistent with Congress' intent to provide “ ‘ “workable” rules' ” of FOIA disclosure. **2024 Reporters Committee, 489 U.S., at 779, 109 S.Ct., at 1485 (quoting FTC v. Grolier Inc., 462 U.S. 19, 27, 103 S.Ct. 2209, 2214, 76 L.Ed.2d 387 (1983)); see also EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). The Government does not deny that, when a document containing confidential source information is requested, it generally will be possible to establish factors such as the nature of the crime that was investigated and the source's relation to it. Armed with this information, the requester will have a more realistic opportunity to develop an argument that the circumstances do not support an inference of confidentiality. To the extent that the Government's proof may compromise legitimate interests, of course, the Government still can attempt to meet its burden with in camera affidavits.

IV

The Government has argued forcefully that its ability to maintain the confidentiality of all of its sources is vital to effective law enforcement. A prophylactic rule protecting *181 the identities of all FBI criminal investigative sources undoubtedly would serve the Government's objectives and would be simple for the Bureau and the courts to administer. But we are not free to engraft that policy choice onto the statute that Congress passed. For the reasons we have discussed, and consistent with our obligation to construe FOIA exemptions narrowly in favor of disclosure, see, e.g., John Doe, 493 U.S., at 152, 110 S.Ct., at 475; Department of Air Force v. Rose, 425 U.S. 352, 361-362, 96 S.Ct. 1592, 1599-1600, 48 L.Ed.2d 11 (1976), we hold that the Government is not entitled to a presumption that a source is confidential within the meaning of Exemption 7(D) whenever the source provides information to the FBI in the course of a criminal investigation.

More narrowly defined circumstances, however, can provide a basis for inferring confidentiality. For example, when circumstances such as the nature of the crime investigated and the witness' relation to it support an inference of confidentiality, the Government is entitled to a presumption. In this case, the Court of Appeals incorrectly concluded that it lacked discretion to rely on such circumstances. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Supreme Court of the United States

UNITED STATES DEPARTMENT OF JUSTICE, et al., Petitioners

v.

Vincent James LANDANO.

No. 91-2054.

Argued Feb. 24, 1993.

Decided May 24, 1993.

Inmate, convicted for murder of police officer, sought to obtain Federal Bureau of Investigation (FBI) files under Freedom of Information Act (FOIA). The United States District Court for the District of New Jersey, 751 F.Supp. 502, 758 F.Supp. 1021, granted summary judgment for inmate, and FBI appealed. The United States Court of Appeals for the Third Circuit, 956 F.2d 422, affirmed in part, reversed in part and remanded, and certiorari was granted. The Supreme Court, Justice O'Connor, held that government is not entitled to presumption that all sources supplying information to FBI in course of criminal investigation are confidential sources within meaning of section of FOIA exempting agency records compiled for law enforcement purposes by law enforcement authorities in course of criminal investigation if records' release “could reasonably be expected to disclose” identity of, or information provided by, “confidential source.”

Vacated and remanded.

[1] [pic]KeyCite Citing References for this Headnote

[pic]326 Records

   [pic]326II Public Access

     [pic]326II(B) General Statutory Disclosure Requirements

       [pic]326k53 Matters Subject to Disclosure; Exemptions

         [pic]326k60 k. Investigatory or Law Enforcement Records. Most Cited Cases

Word “confidential,” as used in section of Freedom of Information Act (FOIA) exempting agency records compiled for law enforcement purposes by law enforcement authorities in course of criminal investigation if records' release “could reasonably be expected to disclose” the identity of, or information provided by, “confidential source,” refers to degree of confidentiality less than total secrecy; source should be deemed “confidential” if source who furnished information with understanding that Federal Bureau of Investigation (FBI) would not divulge communication except to extent that Bureau thought necessary for law enforcement purposes. 5 U.S.C.A. § 552(b)(7)(D).

[2] [pic]KeyCite Citing References for this Headnote

[pic]326 Records

   [pic]326II Public Access

     [pic]326II(B) General Statutory Disclosure Requirements

       [pic]326k61 Proceedings for Disclosure

         [pic]326k65 k. Evidence and Burden of Proof. Most Cited Cases

Government is not entitled to presumption that all sources supplying information to Federal Bureau of Investigation (FBI) in course of criminal investigation are confidential sources within meaning of section of Freedom of Information Act (FOIA) exempting agency records compiled for law enforcement purposes by law enforcement authorities in course of criminal investigation if records' release “could reasonably be expected to disclose” identity of, or information provided by, “confidential source.” 5 U.S.C.A. § 552(b)(7)(D).

[3] [pic]KeyCite Citing References for this Headnote

[pic]326 Records

   [pic]326II Public Access

     [pic]326II(B) General Statutory Disclosure Requirements

       [pic]326k53 Matters Subject to Disclosure; Exemptions

         [pic]326k60 k. Investigatory or Law Enforcement Records. Most Cited Cases

Character of crime at issue, or relation of source to crime, may be relevant to determining whether source cooperated with Federal Bureau of Investigation (FBI) with implied assurance of confidentiality, as required under section of Freedom of Information Act (FOIA) exempting agency records compiled for law enforcement purposes by law enforcement authorities in course of criminal investigation if records' release “could reasonably be expected to disclose” identity of, or information provided by, “confidential source.” 5 U.S.C.A. § 552(b)(7)(D).

**2015 Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

Respondent Landano was convicted in New Jersey state court for murdering a police officer during what may have been a gang-related robbery. In an effort to support his claim in subsequent state-court proceedings that the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, by withholding material exculpatory evidence, he filed Freedom of Information Act (FOIA) requests with the Federal Bureau of Investigation (FBI) for information it had compiled in connection with the murder investigation. When the FBI redacted some documents and withheld others, Landano filed this action in the Federal District Court, seeking disclosure of the requested**2016 files' contents. The FBI claimed that it withheld the information under Exemption 7(D), which exempts agency records compiled for law enforcement purposes by law enforcement authorities in the course of a criminal investigation if the records' release “could reasonably be expected to disclose” the identity of, or information provided by, a “confidential source.” The court held that the FBI had to articulate case-specific reasons for nondisclosure of information given by anyone other than a regular informant, and the Court of Appeals affirmed in relevant part. It held that a source is confidential if there has been an explicit assurance of confidentiality or circumstances from which such an assurance could reasonably be inferred. However, it rejected the Government's argument that a presumption of confidentiality arises whenever any individual or institutional source supplies information to the FBI during a criminal investigation and declined to rule that a presumption may be based on the particular investigation's subject matter. Rather, it held that, to justify withholding under Exemption 7(D), the Government had to provide detailed explanations relating to each alleged confidential source.

Held:

1. The Government is not entitled to a presumption that all sources supplying information to the FBI in the course of a criminal investigation are confidential sources within the meaning of Exemption 7(D). Pp. 2019-2023.

(a) A source should be deemed “confidential” if the source furnished information with the understanding that the FBI would not divulge the *166 communication except to the extent it thought necessary for law enforcement purposes. Contrary to respondent's position, Congress could not have intended to limit the exemption to only those sources who are promised complete anonymity or secrecy, because at the time an interview is conducted, neither a source nor the FBI ordinarily knows whether a communication will need to be disclosed. Pp. 2020-2021.

(b) Nonetheless, the presumption for which the Government argues in this case is unwarranted, because it does not comport with common sense and probability. During the course of a criminal investigation, the FBI collects diverse information, ranging from the extremely sensitive to the routine, from a variety of individual and institutional sources. While most individual sources may expect confidentiality, the Government offers no explanation, other than administrative ease, why that expectation always should be presumed. The justifications for presuming the confidentiality of all institutional sources are even less persuasive, given the wide variety of information that such sources are asked to give. Considerations of fairness also counsel against the Government's rule. Its presumption is, in practice, all but irrebuttable, because a requester without knowledge about the particular source or the withheld information will very rarely be in a position to offer persuasive evidence that the source had no interest in confidentiality. While Exemption 7(D)'s “could reasonably be expected to” language and this Court's decision in Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774, may support some inferences of confidentiality, they do not support the presumption that all FBI criminal investigative sources are exempt. Nor does the FOIA's legislative history indicate that Congress intended to create such a rule. Pp. 2020-2023.

2. Some narrowly defined circumstances can provide a basis for inferring confidentiality. For example, it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential. Similarly, the character of the crime at issue and the source's relation to the crime may be relevant to determining whether a source cooperated with the FBI with an implied assurance of confidentiality. Most people would think that witnesses to a gang-**2017 related murder likely would be unwilling to speak to the FBI except under such conditions. The Court of Appeals erred in declining to rely on such circumstances. This more particularized approach is consistent with Congress' intent to provide workable FOIA disclosure rules. And when a document containing confidential source information is requested, it is generally possible to establish the nature of the crime and the source's relation to it. Thus, the requester will have a more realistic opportunity to develop an argument that the circumstances do not support an inference of confidentiality. To the extent that the Government's*167 proof may compromise legitimate interests, the Government still can attempt to meet its burden with in camera affidavits. Pp. 2023-2024.

956 F.2d 422 (CA3 1992), vacated and remanded.

O'CONNOR, J., delivered the opinion for a unanimous Court.

John F. Daly, Washington, DC, for petitioners.

Neil Marc Mullin, West Orange, NJ, for respondent.

Justice O'CONNOR delivered the opinion of the Court.

Exemption 7(D) of the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), exempts from disclosure agency records “compiled for law enforcement purposes ... by criminal law enforcement authority in the course of a criminal investigation” if release of those records “could reasonably be expected to disclose” the identity of, or information provided by, a “confidential source.” § 552(b)(7)(D). This case concerns the evidentiary showing that the Government must make to establish that a source is “confidential” within the meaning of Exemption 7(D). We are asked to decide whether the Government is entitled to a presumption that all sources supplying information to the Federal Bureau of Investigation (FBI or Bureau) in the course of a criminal investigation are confidential sources.

I

Respondent Vincent Landano was convicted in New Jersey state court for murdering Newark, New Jersey, police officer John Snow in the course of a robbery. The crime received considerable media attention. Evidence at trial showed that the robbery had been orchestrated by Victor Forni and a motorcycle gang known as “the Breed.” There *168 was testimony that Landano, though not a Breed member, had been recruited for the job. Landano always has maintained that he did not participate in the robbery and that Forni, not he, killed Officer Snow. He contends that the prosecution withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Although his efforts to obtain state postconviction and federal habeas relief thus far have proved unsuccessful, see Landano v. Rafferty, 897 F.2d 661 (CA3), cert. denied, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990); Landano v. Rafferty, 856 F.2d 569 (CA3 1988), cert. denied, 489 U.S. 1014, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989); State v. Landano, 97 N.J. 620, 483 A.2d 153 (1984), Landano apparently is currently pursuing a Brady claim in the state courts, see Landano v. Rafferty, 970 F.2d 1230, 1233-1237 (CA3), cert. denied, 506 U.S. 955, 113 S.Ct. 412, 121 L.Ed.2d 336 (1992); Brief for Petitioners 3, n. 1. Seeking evidence to support that claim, Landano filed FOIA requests with the FBI for information that the Bureau had compiled in the course of its involvement in the investigation of Officer Snow's murder. Landano sought release of the Bureau's files on both Officer Snow and Forni. The FBI released several hundred pages of documents. The Bureau redacted some of these, however, and withheld several hundred other pages altogether.

**2018 Landano filed an action in the United States District Court for the District of New Jersey seeking disclosure of the entire contents of the requested files. In response, the Government submitted a declaration of FBI Special Agent Regina Superneau explaining the Bureau's reasons for withholding portions of the files. The information withheld under Exemption 7(D) included information provided by five types of sources: regular FBI informants; individual witnesses who were not regular informants; state and local law enforcement agencies; other local agencies; and private financial or commercial institutions. Superneau Declaration, App. 28. Agent Superneau explained why, in the Government's view, all such sources should be presumed confidential.*169 The deleted portions of the files were coded to indicate which type of source each involved. The Bureau provided no other information about the withheld materials. Id., at 33-41.

On cross-motions for summary judgment, the District Court largely rejected the Government's categorical explanations. See 751 F.Supp. 502 (NJ 1990), clarified on reconsideration, 758 F.Supp. 1021 (NJ 1991). There was no dispute that the undisclosed portions of the Snow and Forni files constituted records or information compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation. The District Court concluded however, that the Government had not met its burden of establishing that each withheld document reasonably could be expected to disclose the identity of, or information provided by, a “confidential source.” Although the court evidently was willing to assume that regular FBI informants were confidential sources, it held that the FBI had to articulate “case-specific reasons for non-disclosure” of all other information withheld under Exemption 7(D). 751 F.Supp., at 508.

The Court of Appeals for the Third Circuit affirmed in relevant part. 956 F.2d 422 (1992). Relying on legislative history, the court stated that a source is confidential within the meaning of Exemption 7(D) if the source received an explicit assurance of confidentiality or if there are circumstances “ ‘from which such an assurance could reasonably be inferred.’ ” Id., at 433 (quoting S.Rep. No. 93-1200, p. 13 (1974)). An “assurance of confidentiality,” the court said, is not a promise of absolute anonymity or secrecy, but “an assurance that the FBI would not directly or indirectly disclose the cooperation of the interviewee with the investigation unless such a disclosure is determined by the FBI to be important to the success of its law enforcement objective.” 956 F.2d, at 434.

*170 The court then addressed the Government's argument that a presumption of confidentiality arises whenever any individual or institutional source supplies information to the Bureau during a criminal investigation. As the Court of Appeals phrased it, the issue was “whether the fact that the source supplied information to the FBI in the course of a criminal investigation is alone sufficient to support an inference that the source probably had a reasonable expectation that no unnecessary disclosure of his or her cooperation would occur.” Ibid. The court thought the question “close.” Ibid. On one hand, the Bureau tends to investigate significant criminal matters, and the targets of those investigations are likely to resent cooperating witnesses. This is especially so where, as here, the investigation concerns a highly publicized, possibly gang-related police shooting. Id., at 434, and n. 5. On the other hand, the court recognized that “there are undoubtedly many routine FBI interviews in the course of criminal investigations that are unlikely to give rise to similar apprehensions on the part of the interviewee.” Id., at 434.

The Court of Appeals recognized that a number of other courts had adopted the Government's position. See, e.g., Nadler v. United States Dept. of Justice, 955 F.2d 1479, 1484-1487 (CA11 1992); **2019 Schmerler v. FBI, 283 U.S.App.D.C. 349, 353, 900 F.2d 333, 337 (1990); Donovan v. FBI, 806 F.2d 55, 61 (CA2 1986); Johnson v. United States Dept. of Justice, 739 F.2d 1514, 1517-1518 (CA10 1984); Ingle v. Department of Justice, 698 F.2d 259, 269 (CA6 1983); Miller v. Bell, 661 F.2d 623, 627 (CA7 1981) ( per curiam ), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982). Considering itself bound by its previous decision in Lame v. United States Department of Justice, 654 F.2d 917 (CA3 1981), however, the Court of Appeals took a different view. It declined to rely either on the Government's proposed presumption or on the particular subject matter of the investigation. Instead, it determined that, to justify withholding information under Exemption *171 7(D), the Government had to provide “ ‘detailed explanations relating to each alleged confidential source.’ ” 956 F.2d, at 435 (quoting Lame, supra, at 928).

We granted certiorari to resolve the conflict among the Courts of Appeals over the nature of the FBI's evidentiary burden under Exemption 7(D). 506 U.S. 813, 113 S.Ct. 51, 121 L.Ed.2d 21 (1992).

II

A

Exemption 7(D) permits the Government to withhold

“records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation ..., information furnished by a confidential source.” § 552(b)(7)(D).

The Government bears the burden of establishing that the exemption applies. § 552(a)(4)(B).

We have described the evolution of Exemption 7(D) elsewhere. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 155-157, 110 S.Ct. 471, 476-478, 107 L.Ed.2d 462 (1989); FBI v. Abramson, 456 U.S. 615, 621-622, 102 S.Ct. 2054, 2059-2060, 72 L.Ed.2d 376 (1982). When FOIA was enacted in 1966, Exemption 7 broadly protected “ ‘investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.’ ” Id., at 621, 102 S.Ct., at 2059. Congress revised the statute in 1974 to provide that law enforcement records could be withheld only if the agency demonstrated one of six enumerated harms. The 1974 version of Exemption 7(D) protected

“ ‘investigatory records compiled for law enforcement purposes [the production of which] would ... disclose *172 the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, ... confidential information furnished only by the confidential source.’ ” Id., at 622, 102 S.Ct., at 2059.

Congress adopted the current version of Exemption 7(D) in 1986. The 1986 amendment expanded “records” to “records or information,” replaced the word “would” with the phrase “could reasonably be expected to,” deleted the word “only” from before “confidential source,” and clarified that a confidential source could be a state, local, or foreign agency or a private institution. See 5 U.S.C. § 552(b)(7)(D).

Under Exemption 7(D), the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential. According to the Conference Report on the 1974 amendment, a source is confidential within the meaning of Exemption 7(D) if the source “provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.” **2020 S.Rep. No. 93-1200, at 13, U.S.Code Cong. & Admin.News pp. 6267, 6291. In this case, the Government has not attempted to demonstrate that the FBI made explicit promises of confidentiality to particular sources. That sort of proof apparently often is not possible: The FBI does not have a policy of discussing confidentiality with every source, and when such discussions do occur, agents do not always document them. Tr. of Oral Arg. 7-8, 47-48. The precise question before us, then, is how the Government can meet its burden of showing that a source provided information on an implied assurance of confidentiality. The parties dispute two issues: the meaning of the word “confidential,” and whether, absent specific evidence to the contrary, an implied assurance of confidentiality always can be inferred from the fact that a source cooperated with the FBI during a criminal investigation.

*173 B

Landano argues that the FBI's sources in the Snow investigation could not have had a reasonable expectation of confidentiality because the Bureau might have been obliged to disclose the sources' names or the information they provided under Brady, the Jencks Act, 18 U.S.C. § 3500, or federal discovery rules, see Fed.Rules Crim.Proc. 16, 26.2. He also points out that some FBI witnesses invariably will be called to testify publicly at trial. Landano apparently takes the position that a source is “confidential” for purposes of Exemption 7(D) only if the source can be assured, explicitly or implicitly, that the source's cooperation with the Bureau will be disclosed to no one. We agree with the Court of Appeals that this cannot have been Congress' intent.

FOIA does not define the word “confidential.” In common usage, confidentiality is not limited to complete anonymity or secrecy. A statement can be made “in confidence” even if the speaker knows the communication will be shared with limited others, as long as the speaker expects that the information will not be published indiscriminately. See Webster's Third New International Dictionary 476 (1986) (defining confidential to mean “communicated, conveyed, [or] acted on ... in confidence: known only to a limited few: not publicly disseminated”). A promise of complete secrecy would mean that the FBI agent receiving the source's information could not share it even with other FBI personnel. See Dow Jones & Co. v. Department of Justice, 286 U.S.App.D.C. 349, 357, 917 F.2d 571, 579 (1990) (Silberman, J., concurring in denial of rehearing en banc). Such information, of course, would be of little use to the Bureau.

[1] [pic]We assume that Congress was aware of the Government's disclosure obligations under Brady and applicable procedural rules when it adopted Exemption 7(D). Congress also must have realized that some FBI witnesses would testify at trial. We need not reach the question whether a confidential source's public testimony “waives” the FBI's right to withholdinformation *174 provided by that source. See, e.g., Irons v. FBI, 880 F.2d 1446 (CA1 1989) (en banc). For present purposes, it suffices to note that, at the time an interview is conducted, neither the source nor the FBI agent ordinarily knows whether the communication will be disclosed in any of the aforementioned ways. Thus, an exemption so limited that it covered only sources who reasonably could expect total anonymity would be, as a practical matter, no exemption at all. Cf. John Doe, 493 U.S., at 152, 110 S.Ct., at 475 (FOIA exemptions “are intended to have meaningful reach and application”). We therefore agree with the Court of Appeals that the word “confidential,” as used in Exemption 7(D), refers to a degree of confidentiality less than total secrecy. A source should be deemed confidential if the source furnished information with the understanding that the FBI would not divulge the communication except to the extent the Bureau thought necessary for law enforcement purposes.

**2021 C

[2] [pic]The Government objects to the Court of Appeals' requirement that it make an individualized showing of confidentiality with respect to each source. It argues that an assurance of confidentiality is “ ‘inherently implicit’ ” whenever a source cooperates with the FBI in a criminal investigation. Brief for Petitioners 18-20 (quoting Miller v. Bell, 661 F.2d, at 627). The Government essentially contends that all FBI sources should be presumed confidential; the presumption could be overcome only with specific evidence that a particular source had no interest in confidentiality.

This Court previously has upheld the use of evidentiary presumptions supported by considerations of “fairness, public policy, and probability, as well as judicial economy.” Basic Inc. v. Levinson, 485 U.S. 224, 245, 108 S.Ct. 978, 990, 99 L.Ed.2d 194 (1988). We also have recognized the propriety of judicially created presumptions under federal statutes that make no express provision *175 for their use. See, e.g., ibid. But we are not persuaded that the presumption for which the Government argues in this case is warranted.

Although the Government sometimes describes its approach as “categorical,” see, e.g., Superneau Declaration, App. 33-41, the proposed rule is not so much categorical as universal, at least with respect to FBI sources. The Government would have us presume that virtually every source is confidential: the paid informant who infiltrates an underworld organization; the eyewitness to a violent crime; the telephone company that releases phone records; the state agency that furnishes an address. The only “sources” that the Government is willing to state are not presumptively confidential (though they may be exempt from disclosure under other FOIA provisions) are newspaper clippings, wiretaps, and witnesses who speak to an undercover agent and therefore do not realize they are communicating with the FBI. Although we recognize that confidentiality often will be important to the FBI's investigative efforts, we cannot say that the Government's sweeping presumption comports with “common sense and probability.” Basic Inc., supra, at 246, 108 S.Ct., at 991.

The FBI collects information from a variety of individual and institutional sources during the course of a criminal investigation. See, e.g., Superneau Declaration, App. 35-41. The Bureau's investigations also cover a wide range of criminal matters. See 28 U.S.C. § 533 (FBI authorized to investigate “crimes against the United States” and to conduct other investigations “regarding official matters under the control of the Department of Justice and the Department of State”); § 540 (FBI authorized to investigate certain felonious killings of state and local law enforcement officers). In this case, the Bureau participated in the investigation of a state crime in part because of the need for interstate “unlawful flight” warrants to apprehend certain suspects. Brief for Petitioners 2, n. 1. The types of information the Bureau *176 collects during an investigation also appear to be quite diverse. Although the Government emphasizes the difficulty of anticipating all the ways in which release of information ultimately may prove harmful, it does not dispute that the communications the FBI receives can range from the extremely sensitive to the routine.

The Government maintains that an assurance of confidentiality can be inferred whenever an individual source communicates with the FBI because of the risk of reprisal or other negative attention inherent in criminal investigations. See Superneau Declaration, App. 37-38. It acknowledges, however, that reprisal may not be threatened or even likely in any given case. Id., at 38. It may be true that many, or even most, individual sources will expect confidentiality. But the Government offers no explanation, other than ease of administration, why that expectation always should be presumed. The justifications offered for presuming the confidentiality of all institutional sources are less persuasive. The Government “is convinced” that the willingness of other law enforcement agencies to **2022 furnish information depends on a “traditional understanding of confidentiality.” Id., at 40. There is no argument, however, that disclosure ordinarily would affect cooperating agencies adversely or that the agencies otherwise would be deterred from providing even the most nonsensitive information. The Government does suggest that private institutions might be subject to “possible legal action or loss of business” if their cooperation with the Bureau became publicly known. Id., at 41. But the suggestion is conclusory. Given the wide variety of information that such institutions may be asked to provide, we do not think it reasonable to infer that the information is given with an implied understanding of confidentiality in all cases.

Considerations of “fairness” also counsel against the Government's rule. Basic Inc., supra, at 245, 108 S.Ct., at 990. The Governmentacknowledges *177 that its proposed presumption, though rebuttable in theory, is in practice all but irrebuttable. Tr. of Oral Arg. 22-23. Once the FBI asserts that information was provided by a confidential source during a criminal investigation, the requester-who has no knowledge about the particular source or the information being withheld-very rarely will be in a position to offer persuasive evidence that the source in fact had no interest in confidentiality. See Dow Jones & Co. v. Department of Justice, 286 U.S.App.D.C., at 355, 917 F.2d, at 577.

The Government contends that its presumption is supported by the phrase “could reasonably be expected to” and by our decision in Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). In Reporters Committee we construed Exemption 7(C), which allows the Government to withhold law enforcement records or information the production of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). We held that certain criminal “rap sheet” information was categorically exempt from disclosure because the release of such information invariably constitutes an unwarranted invasion of privacy. 489 U.S., at 780, 109 S.Ct., at 1485. Our approval of a categorical approach was based in part on the phrase “could reasonably be expected to,” which Congress adopted in 1986 to ease the Government's burden of invoking Exemption 7, see id., at 756, n. 9, 109 S.Ct., at 1473, n. 9, and to “replace a focus on the effect of a particular disclosure ‘with a standard of reasonableness ... based on an objective test,’ ” id., at 778, n. 22, 109 S.Ct., at 1484, n. 22 (quoting S.Rep. No. 98-221, p. 24 (1983)). As explained more fully in Part III, below, we agree with the Government that when certain circumstances characteristically support an inference of confidentiality, the Government similarly should be able to claim exemption under Exemption 7(D) without detailing the circumstances surrounding a particular interview. Neither the *178 language of Exemption 7(D) nor Reporters Committee, however, supports the proposition that the category of all FBI criminal investigative sources is exempt.

The Government relies extensively on legislative history. It is true that, when Congress debated the adoption of Exemption 7(D), several Senators recognized the importance of confidentiality to the FBI and argued that the exemption should not jeopardize the effectiveness of the Bureau's investigations. See, e.g., 120 Cong.Rec. 17036, 17037 (May 30, 1974) (Sen. Thurmond) (“It is just such assurance [of confidentiality] that encourages individuals from all walks of life to furnish this agency information ...”). But Congress did not expressly create a blanket exemption for the FBI; the language that it adopted requires every agency to establish that a confidential source furnished the information sought to be withheld under Exemption 7(D). The Government cites testimony presented to Congress prior to passage of the 1986 amendment emphasizing that the threat of **2023 public exposure under FOIA deters potential sources from cooperating with the Bureau in criminal investigations. See, e.g., FBI Oversight: Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 96th Cong., 2d Sess., pp. 97, 99-100, 106 (1980) (FBI Dir. William Webster); see also Freedom of Information Act: Hearings before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., pp. 990-1040 (1981). But none of the changes made to Exemption 7(D) in 1986 squarely addressed the question presented here. In short, the Government offers no persuasive evidence that Congress intended for the Bureau to be able to satisfy its burden in every instance simply by asserting that a source communicated with the Bureau during the course of a criminal investigation. Had Congress meant to create such a rule, it could have done so much more clearly.

*179 III

Although we have determined that it is unreasonable to infer that all FBI criminal investigative sources are confidential, we expect that the Government often can point to more narrowly defined circumstances that will support the inference. For example, as the courts below recognized, and respondent concedes, see Brief for Respondent 46, it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential. The nature of the informant's ongoing relationship with the Bureau, and the fact that the Bureau typically communicates with informants “only at locations and under conditions which assure the contact will not be noticed,” Superneau Declaration, App. 36, justify the inference.

[3] [pic]There may well be other generic circumstances in which an implied assurance of confidentiality fairly can be inferred. The Court of Appeals suggested that the fact that the investigation in this case concerned the potentially gang-related shooting of a police officer was probative. We agree that the character of the crime at issue may be relevant to determining whether a source cooperated with the FBI with an implied assurance of confidentiality. So too may the source's relation to the crime. Most people would think that witnesses to a gang-related murder likely would be unwilling to speak to the Bureau except on the condition of confidentiality.

The Court of Appeals below declined to rely on such circumstances. But several other Court of Appeals decisions (including some of those the Government cites favorably) have justified nondisclosure under Exemption 7(D) by examining factors such as the nature of the crime and the source's relation to it. See, e.g., Keys v. United States Dept. of Justice, 265 U.S.App.D.C. 189, 197-198, 830 F.2d 337, 345-346 (1987) (individuals who provided information about subject's possible Communist sympathies, criminal activity, and murder by foreign operatives would have worried about retaliation);*180 Donovan v. FBI, 806 F.2d, at 60-61 (on facts of this case, in which FBI investigated murder of American churchwomen in El Salvador, “it cannot be doubted that the FBI's investigation would have been severely curtailed, and, perhaps, rendered ineffective if its confidential sources feared disclosure”); Parton v. United States Dept. of Justice, 727 F.2d 774, 776-777 (CA8 1984) (prison officials who provided information about alleged attack on inmate faced “high probability of reprisal”); Miller v. Bell, 661 F.2d, at 628 (individuals who provided information about self-proclaimed litigious subject who sought to enlist them in his “anti-government crusade” faced “strong potential for harassment”); Nix v. United States, 572 F.2d 998, 1003-1004 (CA4 1978) (risk of reprisal faced by guards and prison inmates who informed on guards who allegedly beat another inmate supported finding of implied assurance of confidentiality).

We think this more particularized approach is consistent with Congress' intent to provide “ ‘ “workable” rules' ” of FOIA disclosure. **2024 Reporters Committee, 489 U.S., at 779, 109 S.Ct., at 1485 (quoting FTC v. Grolier Inc., 462 U.S. 19, 27, 103 S.Ct. 2209, 2214, 76 L.Ed.2d 387 (1983)); see also EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). The Government does not deny that, when a document containing confidential source information is requested, it generally will be possible to establish factors such as the nature of the crime that was investigated and the source's relation to it. Armed with this information, the requester will have a more realistic opportunity to develop an argument that the circumstances do not support an inference of confidentiality. To the extent that the Government's proof may compromise legitimate interests, of course, the Government still can attempt to meet its burden with in camera affidavits.

IV

The Government has argued forcefully that its ability to maintain the confidentiality of all of its sources is vital to effective law enforcement. A prophylactic rule protecting *181 the identities of all FBI criminal investigative sources undoubtedly would serve the Government's objectives and would be simple for the Bureau and the courts to administer. But we are not free to engraft that policy choice onto the statute that Congress passed. For the reasons we have discussed, and consistent with our obligation to construe FOIA exemptions narrowly in favor of disclosure, see, e.g., John Doe, 493 U.S., at 152, 110 S.Ct., at 475; Department of Air Force v. Rose, 425 U.S. 352, 361-362, 96 S.Ct. 1592, 1599-1600, 48 L.Ed.2d 11 (1976), we hold that the Government is not entitled to a presumption that a source is confidential within the meaning of Exemption 7(D) whenever the source provides information to the FBI in the course of a criminal investigation.

More narrowly defined circumstances, however, can provide a basis for inferring confidentiality. For example, when circumstances such as the nature of the crime investigated and the witness' relation to it support an inference of confidentiality, the Government is entitled to a presumption. In this case, the Court of Appeals incorrectly concluded that it lacked discretion to rely on such circumstances. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

U.S.,1993.

U.S. Dept. of Justice v. Landano

CHAPTER NINE

Supreme Court of the United States

DEPARTMENT OF THE INTERIOR AND BUREAU OF INDIAN AFFAIRS, Petitioners,

v.

WATER USERS PROTECTIVE ASSOCIATION.

No. 99-1871.

Argued Jan. 10, 2001.

Decided March 5, 2001.

Nonprofit association of water users brought action against Department of the Interior under Freedom of Information Act (FOIA) seeking documents submitted by Indian tribes at request of Department in course of administrative and adjudicative proceedings regarding water rights allocation. The United States District Court for the District of Oregon, Michael R. Hogan, Chief District Judge, granted Department's motion for summary judgment, and association appealed. The Court of Appeals, Schwarzer, Senior District Judge, 189 F.3d 1034, reversed. Certiorari was granted. The Supreme Court, Justice Souter, held that, without regard to whether Freedom of Information Act (FOIA) exemption for inter- or intra-agency memoranda or letters is broad enough to reach documents authored, not by employee of agency, but by independent contractor acting as consultant, exemption did not protect from disclosure documents that were submitted by Indian tribes at request of Department of Interior in course of administrative and adjudicative proceedings in which tribes had direct interest.

Affirmed.

SyllabusFN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

*1 The Department of the Interior's Bureau of Reclamation (Reclamation) administers the Klamath Irrigation Project (Project), which uses water from the Klamath River Basin to irrigate parts of Oregon and California. After the Department began developing the Klamath Project Operation Plan (Plan) to provide water allocations among competing uses and users, the Department asked the Klamath and other Indian Tribes (Basin Tribes or Tribes) to consult with Reclamation on the matter. A memorandum of understanding between those parties called for assessment, in consultation with the Tribes, of the impacts of the Plan on tribal trust resources. During roughly the same period, the Department's Bureau of Indian Affairs (Bureau) filed claims on behalf of the Klamath Tribe in an Oregon state-court adjudication intended to allocate water rights. Since the Bureau is responsible for administering land and water held in trust for Indian tribes, it consulted with the Klamath Tribe, and the two exchanged written memorandums on the appropriate scope of the claims ultimately submitted by the Government for the benefit of the Tribe. Respondent Klamath Water Users Protective Association (Association) is a nonprofit group, most of whose members receive water from the Project and have interests adverse to the tribal interests owing to **1062 scarcity of water. The Association filed a series of requests with the Bureau under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking access to communications between the *2 Bureau and the Basin Tribes. The Bureau turned over several documents, but withheld others under the attorney work-product and deliberative process privileges that are said to be incorporated in FOIA Exemption 5, which exempts from disclosure “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). The Association then sued the Bureau under FOIA to compel release of the documents. The District Court granted the Government summary judgment. The Ninth Circuit reversed, ruling out any application of Exemption 5 on the ground that the Tribes with whom the Department has a consulting relationship have a direct interest in the subject matter of the consultations. The court said that to hold otherwise would extend Exemption 5 to shield what amount to ex parte communications in contested proceedings between the Tribes and the Department.

Held: The documents at issue are not exempt from FOIA's disclosure requirements as “inter-agency or intra-agency memorandums or letters.” Pp. 1065-1070.

(a) Consistent with FOIA's goal of broad disclosure, its exemptions have been consistently given a narrow compass. E.g., U.S. Department of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112. P. 1065.

(b) To qualify under Exemption 5's express terms, a document must satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds the document. This Court's prior Exemption 5 cases have addressed the second condition, and have dealt with the incorporation of civil discovery privileges. So far as they matter here, those privileges include the privilege for attorney work product and the so-called “deliberative process” privilege, which covers documents reflecting advisory opinions, recommendations, and deliberations that are part of a process by which Government decisions and policies are formulated. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29. The point of Exemption 5 is not to protect Government secrecy pure and simple, and the Exemption's first condition is no less important than the second; the communication must be “inter-agency or intra-agency,” 5 U.S.C. § 552(b)(5). “[A]gency” is defined to mean “each authority of the Government,” § 551(1), and includes entities such as Executive Branch departments, military departments, Government corporations, Government-controlled corporations, and independent regulatory agencies, § 552(f). Although Exemption 5's terms and the statutory definitions say nothing about communications with outsiders, some Courts of Appeals have held that a document prepared for a Government agency by an outside consultant qualifies as an *3 “intra-agency” memorandum. In such cases, the records submitted by outside consultants played essentially the same part in an agency's deliberative process as documents prepared by agency personnel. The fact about the consultant that is constant in the cases is that the consultant does not represent its own interest, or the interest of any other client, when it advises the agency that hires it. Its only obligations are to truth and its sense of what good judgment calls for, and in those respects it functions just as an employee would be expected to do. Pp. 1065-1067.

(c) The Department misplaces its reliance on this consultant corollary to Exemption 5. The Department's argument skips a necessary step, for it ignores the first condition of Exemption 5, that the **1063 communication be “intra-agency or inter-agency.” There is no textual justification for draining that condition of independent vitality. Once the intra-agency condition is applied, it rules out any application of Exemption 5 to tribal communications on analogy to consultants' reports (assuming, which the Court does not decide, that these reports may qualify as intra-agency under Exemption 5). Consultants whose communications have typically been held exempt have not communicated with the Government in their own interest or on behalf of any person or group whose interests might be affected by the Government action addressed by the consultant. In that regard, consultants may be enough like the agency's own personnel to justify calling their communications “intra-agency.” The Tribes, on the contrary, necessarily communicate with the Bureau with their own, albeit entirely legitimate, interests in mind. While this fact alone distinguishes tribal communications from the consultants' examples recognized by several Circuits, the distinction is even sharper, in that the Tribes are self-advocates at the expense of others seeking benefits inadequate to satisfy everyone. As to those documents bearing on the Plan, the Tribes are obviously in competition with nontribal claimants, including those irrigators represented by the respondent. While the documents at issue may not take the formally argumentative form of a brief, their function is quite apparently to support the tribal claims. The Court rejects the Department's assertion that the Klamath Tribe's consultant-like character is clearer in the circumstances of the Oregon adjudication, where the Department merely represents the interests of the Tribe before a state court that will make any decision about the respective rights of the contenders. Again, the dispositive point is that the apparent object of the Tribe's communications is a decision by a Government agency to support a claim by the Tribe that is necessarily adverse to the interests of competitors because there is not enough water to satisfy everyone. The position of the Tribe as Government beneficiary is a far cry from the position of the paid consultant. The *4 Court also rejects the Department's argument that compelled release of the documents at issue would impair the Department's performance of its fiduciary obligation to protect the confidentiality of communications with tribes. This boils down to requesting that the Court read an “Indian trust” exemption into the statute. There is simply no support for that exemption in the statutory text, which must be read strictly to serve FOIA's mandate of broad disclosure. Pp. 1067-1070.

189 F.3d 1034, affirmed.

SOUTER, J., delivered the opinion for a unanimous Court.

Malcolm L. Stewart, Washington, DC, for petitioners.

Andrew M. Hitchings, Sacramento, CA, for respondent.

Justice SOUTER delivered the opinion of the Court.

Documents in issue here, passing between Indian Tribes and the Department of the Interior, addressed tribal interests subject to state and federal proceedings to determine water allocations. The question is whether the documents are exempt from the disclosure requirements of the Freedom of Information Act, as “intra-agency memorandums or *5 letters” that would normally be privileged in civil discovery. 5 U.S.C. § 552(b)(5). We hold they are not.

I

Two separate proceedings give rise to this case, the first a planning effort within the Department of the Interior's Bureau of Reclamation, and the second a state water **1064 rights adjudication in the Oregon courts. Within the Department of the Interior, the Bureau of Reclamation (Reclamation) administers the Klamath Irrigation Project (Klamath Project or Project), which uses water from the Klamath River Basin to irrigate territory in Klamath County, Oregon, and two northern California counties. In 1995, the Department began work to develop a long-term operations plan for the Project, to be known as the Klamath Project Operation Plan (Plan), which would provide for allocation of water among competing uses and competing water users. The Department asked the Klamath as well as the Hoopa Valley, Karuk, and Yurok Tribes (Basin Tribes) to consult with Reclamation on the matter, and a memorandum of understanding between the Department and the Tribes recognized that “[t]he United States Government has a unique legal relationship with Native American tribal governments,” and called for “[a]ssessment, in consultation with the Tribes, of the impacts of the [Plan] on Tribal trust resources.” App. 59, 61.

During roughly the same period, the Department's Bureau of Indian Affairs (Bureau) filed claims on behalf of the Klamath Tribe alone in an Oregon state-court adjudication intended to allocate water rights. Since the Bureau is responsible for administering land and water held in trust for Indian tribes, 25 U.S.C. § 1a; 25 CFR subch. H, pts. 150-181 (2000), it consulted with the Klamath Tribe, and the two exchanged written memorandums on the appropriate scope of the claims ultimately submitted by the United States for the benefit of the Klamath Tribe. The Bureau does not, however,*6 act as counsel for the Tribe, which has its own lawyers and has independently submitted claims on its own behalf.FN1

FN1. The Government is “not technically acting as [the Tribes'] attorney. That is, the Tribes have their own attorneys, but the United States acts as trustee.” Tr. of Oral Arg. 5. “The United States has also filed claims on behalf of the Project and on behalf of other Federal interests” in the Oregon adjudication. Id., at 6. The Hoopa Valley, Karuk, and Yurok Tribes are not parties to the adjudication. Brief for Respondent 7.

Respondent, the Klamath Water Users Protective Association (Association), is a nonprofit association of water users in the Klamath River Basin, most of whom receive water from the Klamath Project, and whose interests are adverse to the tribal interests owing to scarcity of water. The Association filed a series of requests with the Bureau under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking access to communications between the Bureau and the Basin Tribes during the relevant time period. The Bureau turned over several documents but withheld others as exempt under the attorney work-product and deliberative process privileges. These privileges are said to be incorporated in FOIA Exemption 5, which exempts from disclosure “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). The Association then sued the Bureau under FOIA to compel release of the documents.

By the time of the District Court ruling, seven documents remained in dispute, three of them addressing the Plan, three concerned with the Oregon adjudication, and the seventh relevant to both proceedings. See 189 F.3d 1034, 1036 (C.A.9 1999), App. to Pet. for Cert. 41a-49a. Six of the documents were prepared by the Klamath Tribe or its representative and were submitted at the Government's behest to the Bureau or to the Department's Regional Solicitor; a Bureau official prepared the seventh document and gave it to lawyers for the Klamath and Yurok Tribes. See ibid.

*7 The District Court granted the Government's motion for summary judgment. It held that each document qualified as an inter-agency or intra-agency communication for purposes of Exemption 5, and that **1065 each was covered by the deliberative process privilege or the attorney work-product privilege, as having played a role in the Bureau's deliberations about the Plan or the Oregon adjudication. See 189 F.3d, at 1036, App. to Pet. for Cert. 31a-32a, 56a-65a.

The Court of Appeals for the Ninth Circuit reversed. 189 F.3d 1034 (1999). It recognized that some Circuits had adopted a “functional” approach to Exemption 5, under which a document generated outside the Government might still qualify as an “intra-agency” communication. See id., at 1037-1038. The court saw no reason to go into that, however, for it ruled out any application of Exemption 5 on the ground that “the Tribes with whom the Department has a consulting relationship have a direct interest in the subject matter of the consultations.” Id., at 1038. The court said that “[t]o hold otherwise would extend Exemption 5 to shield what amount to ex parte communications in contested proceedings between the Tribes and the Department.” Ibid. Judge Hawkins dissented, for he saw the documents as springing “from a relationship that remains consultative rather than adversarial, a relationship in which the Bureau and Department were seeking the expertise of the Tribes, rather than opposing them.” Id., at 1045. He saw the proper enquiry as going not to a document's source, but to the role it plays in agency decisionmaking. See id., at 1039. We granted certiorari in view of the decision's significant impact on the relationship between Indian tribes and the Government, 530 U.S. 1304, 121 S.Ct. 28, 147 L.Ed.2d 1051 (2000), and now affirm.

II

[1] [pic]Upon request, FOIA mandates disclosure of records held by a federal agency, see 5 U.S.C. § 552, unless the documents fall within enumerated exemptions, see § 552(b). “[T]hese *8 limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act,” Department of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); “[c]onsistent with the Act's goal of broad disclosure, these exemptions have been consistently given a narrow compass,” U.S. Department of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); see also FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) (“FOIA exemptions are to be narrowly construed”).

A

[2] [pic]Exemption 5 protects from disclosure “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.” 5 U.S.C. § 552(b)(5). To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.

[3] [pic][4] [pic][5] [pic]Our prior cases on Exemption 5 have addressed the second condition, incorporating civil discovery privileges. See, e.g., United States v. Weber Aircraft Corp., 465 U.S. 792, 799-800, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (“Exemption 5 withholds from a member of the public documents which a private party could not discover in litigation with the agency”). So far as they might matter here, those privileges include the privilege for attorney work-product and what is sometimes called the “deliberative process” privilege. Work product protects “mental processes of the attorney,” United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), while deliberative process covers “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies **1066 are formulated,” Sears, Roebuck & Co., 421 U.S., at 150, 95 S.Ct. 1504 (internal quotation marks omitted). The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves*9 if each remark is a potential item of discovery and front page news, and its object is to enhance “the quality of agency decisions,” id., at 151, 95 S.Ct. 1504, by protecting open and frank discussion among those who make them within the Government, see EPA v. Mink, 410 U.S. 73, 86-87, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); see also Weber Aircraft Corp., supra, at 802, 104 S.Ct. 1488.

[6] [pic]The point is not to protect Government secrecy pure and simple, however, and the first condition of Exemption 5 is no less important than the second; the communication must be “inter-agency or intra-agency.” 5 U.S.C. § 552(b)(5). Statutory definitions underscore the apparent plainness of this text. With exceptions not relevant here, “agency” means “each authority of the Government of the United States,” § 551(1), and “includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government ..., or any independent regulatory agency,” § 552(f).

[7] [pic]Although neither the terms of the exemption nor the statutory definitions say anything about communications with outsiders, some Courts of Appeals have held that in some circumstances a document prepared outside the Government may nevertheless qualify as an “intra-agency” memorandum under Exemption 5. See, e.g., Hoover v. U.S. Dept. of Interior, 611 F.2d 1132, 1137-1138 (C.A.5 1980); Lead Industries Assn. v. OSHA, 610 F.2d 70, 83 (C.A.2 1979); Soucie v. David, 448 F.2d 1067 (C.A.D.C.1971). In Department of Justice v. Julian, 486 U.S. 1, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988), Justice SCALIA, joined by Justices O'CONNOR and White, explained that “the most natural meaning of the phrase ‘intra-agency memorandum’ is a memorandum that is addressed both to and from employees of a single agency,” id., at 18, n. 1, 108 S.Ct. 1606 (dissenting opinion). But his opinion also acknowledged the more expansive reading by some Courts of Appeals:

“It is textually possible and ... in accord with the purpose of the provision, to regard as an intra-agency memorandum*10 one that has been received by an agency, to assist it in the performance of its own functions, from a person acting in a governmentally conferred capacity other than on behalf of another agency- e.g., in a capacity as employee or consultant to the agency, or as employee or officer of another governmental unit (not an agency) that is authorized or required to provide advice to the agency.” Ibid. FN2

FN2. The majority in Julian did not address the question whether the documents at issue were “inter-agency or intra-agency” records within the meaning of Exemption 5, because it concluded that the documents would be routinely discoverable in civil litigation and therefore would not be covered by Exemption 5 in any event. 486 U.S., at 11-14, 108 S.Ct. 1606.

Typically, courts taking the latter view have held that the exemption extends to communications between Government agencies and outside consultants hired by them. See, e.g., Hoover, supra, at 1138 (“In determining value, the government may deem it necessary to seek the objective opinion of outside experts rather than rely solely on the opinions of government appraisers”); Lead Industries Assn., supra, at 83 (applying Exemption 5 to cover draft reports “prepared by outside consultants who had testified on behalf of the agency rather than agency staff”); see also Government Land Bank v. GSA, 671 F.2d 663, 665 (CA1 1982) (“Both parties agree that a property appraisal, performed under contract by an independent professional, is an ‘intra-agency’ document for purposes**1067 of the exemption”). In such cases, the records submitted by outside consultants played essentially the same part in an agency's process of deliberation as documents prepared by agency personnel might have done. To be sure, the consultants in these cases were independent contractors and were not assumed to be subject to the degree of control that agency employment could have entailed; nor do we read the cases as necessarily assuming that an outside consultant must be devoid of a definite point of view when the agency contracts for its services. But the fact *11 about the consultant that is constant in the typical cases is that the consultant does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it. Its only obligations are to truth and its sense of what good judgment calls for, and in those respects the consultant functions just as an employee would be expected to do.

B

The Department purports to rely on this consultant corollary to Exemption 5 in arguing for its application to the Tribe's communications to the Bureau in its capacity of fiduciary for the benefit of the Indian Tribes. The existence of a trust obligation is not, of course, in question, see United States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 707, 107 S.Ct. 1487, 94 L.Ed.2d 704 (1987); United States v. Mitchell, 463 U.S. 206, 225, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); Seminole Nation v. United States, 316 U.S. 286, 296-297, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942). The fiduciary relationship has been described as “one of the primary cornerstones of Indian law,” F. Cohen, Handbook of Federal Indian Law 221 (1982), and has been compared to one existing under a common law trust, with the United States as trustee, the Indian tribes or individuals as beneficiaries, and the property and natural resources managed by the United States as the trust corpus. See, e.g., Mitchell, supra, at 225, 103 S.Ct. 2961. Nor is there any doubt about the plausibility of the Government's assertion that the candor of tribal communications with the Bureau would be eroded without the protections of the deliberative process privilege recognized under Exemption 5. The Department is surely right in saying that confidentiality in communications with tribes is conducive to a proper discharge of its trust obligation.

From the recognition of this interest in frank communication, which the deliberative process privilege might protect, the Department would have us infer a sufficient justification for applying Exemption 5 to communications with the Tribes, in the same fashion that Courts of Appeals have found sufficient reason to favor a consultant's advice that *12 way. But the Department's argument skips a necessary step, for it ignores the first condition of Exemption 5, that the communication be “intra-agency or inter-agency.” The Department seems to be saying that “intra-agency” is a purely conclusory term, just a label to be placed on any document the Government would find it valuable to keep confidential.

There is, however, no textual justification for draining the first condition of independent vitality, and once the intra-agency condition is applied,FN3 it rules out any application of Exemption 5 to tribal communications on analogy to consultants' reports (assuming, which we do not decide, that these reports may qualify as intra-agency under Exemption 5). As mentioned already, consultants whose communications have typically been held exempt have not been communicating with the Government in their own interest or on behalf of any person or group whose interests might be **1068 affected by the Government action addressed by the consultant. In that regard, consultants may be enough like the agency's own personnel to justify calling their communications “intra-agency.” The Tribes, on the contrary, necessarily communicate with the Bureau with their own, albeit entirely legitimate, interests in mind. While this fact alone distinguishes tribal communications from the consultants' examples recognized by several Courts of Appeals, the distinction is even sharper, in that the Tribes are self-advocates at the expense of others seeking benefits inadequate to satisfy everyone.FN4

FN3. Because we conclude that the documents do not meet this threshold condition, we need not reach step two of the Exemption 5 analysis and enquire whether the communications would normally be discoverable in civil litigation. See United States v. Weber Aircraft Corp., 465 U.S. 792, 799, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984).

FN4. Courts of Appeals have recognized at least two instances of intra-agency consultants that arguably extend beyond what we have characterized as the typical examples. In Public Citizen, Inc. v. Department of Justice, 111 F.3d 168 (C.A.D.C.1997), former Presidents were so treated in their communications with the National Archives and Records Administration, even though the Presidents had their own, independent interests, id., at 171. And in Ryan v. Department of Justice, 617 F.2d 781 (C.A.D.C.1980), Senators' responses to the Attorney General's questionnaires about the judicial nomination process were held exempt, even though we would expect a Senator to have strong personal views on the matter. We need not decide whether either instance should be recognized as intra-agency, even if communications with paid consultants are ultimately so treated. As explained above, the intra-agency condition excludes, at the least, communications to or from an interested party seeking a Government benefit at the expense of other applicants.

*13 As to those documents bearing on the Plan, the Tribes are obviously in competition with nontribal claimants, including those irrigators represented by the respondent. App. 66-71. The record shows that documents submitted by the Tribes included, among others, “a position paper that discusses water law legal theories” and “addresses issues related to water rights of the tribes,” App. to Pet. for Cert. 42a-43a, a memorandum “contain[ing] views on policy the BIA could provide to other governmental agencies,” “views concerning trust resources,” id., at 44a, and a letter “conveying the views of the Klamath Tribes concerning issues involved in the water rights adjudication,” id., at 47a. While these documents may not take the formally argumentative form of a brief, their function is quite apparently to support the tribal claims. The Tribes are thus urging a position necessarily adverse to the other claimants, the water being inadequate to satisfy the combined demand. As the Court of Appeals said, “[t]he Tribes' demands, if satisfied, would lead to reduced water allocations to members of the Association and have been protested by Association members who fear water shortages and economic injury in dry years.” 189 F.3d, at 1035.

The Department insists that the Klamath Tribe's consultant-like character is clearer in the circumstances of the Oregon adjudication, since the Department merely represents the interests of the Tribe before a state court that will *14 make any decision about the respective rights of the contenders. Brief for Petitioners 42-45; Reply Brief for Petitioners 4-6. But it is not that simple. Even if there were no rival interests at stake in the Oregon litigation, the Klamath Tribe would be pressing its own view of its own interest in its communications with the Bureau. Nor could that interest be ignored as being merged somehow in the fiduciary interest of the Government trustee; the Bureau in its fiduciary capacity would be obliged to adopt the stance it believed to be in the beneficiary's best interest, not necessarily the position espoused by the beneficiary itself. Cf. Restatement (Second) of Trusts § 176, Comment a (1957) (“[I]t is the duty of the trustee to exercise such care and skill to preserve the trust property as a man of ordinary prudence would exercise in dealing with his own property ...”).

But, again, the dispositive point is that the apparent object of the Tribe's communications is a decision by an agency of the Government to support a claim by the Tribe that is necessarily adverse to the interests of competitors. Since there is **1069 not enough water to satisfy everyone, the Government's position on behalf of the Tribe is potentially adverse to other users, and it might ask for more or less on behalf of the Tribe depending on how it evaluated the tribal claim compared with the claims of its rivals. The ultimately adversarial character of tribal submissions to the Bureau therefore seems the only fair inference, as confirmed by the Department's acknowledgment that its “obligation to represent the Klamath Tribe necessarily coexists with the duty to protect other federal interests, including in particular its interests with respect to the Klamath Project.” Reply Brief for Petitioners 8; cf. Nevada v. United States, 463 U.S. 110, 142, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983) (“[W]here Congress has imposed upon the United States, in addition to its duty to represent Indian tribes, a duty to obtain water rights for reclamation projects, and has even authorized the inclusion of reservation lands within a project, the analogy of a faithless private fiduciary cannot be *15 controlling for purposes of evaluating the authority of the United States to represent different interests”). The position of the Tribe as beneficiary is thus a far cry from the position of the paid consultant.

[8] [pic]Quite apart from its attempt to draw a direct analogy between tribes and conventional consultants, the Department argues that compelled release of the documents would itself impair the Department's performance of a specific fiduciary obligation to protect the confidentiality of communications with tribes.FN5 Because, the Department argues, traditional fiduciary standards forbid a trustee to disclose information acquired as a trustee when it should know that disclosure would be against the beneficiary's interests, excluding the Tribes' submissions to the Department from Exemption 5 would handicap the Department in doing what the law requires. Brief for Petitioners 36-37.FN6 And in much the same vein, the Department presses the argument that “FOIA is intended to cast light on existing government practices; it should not be interpreted and applied so as to compel federal agencies to perform their assigned substantive functions in other than the normal manner.” Id., at 29.

FN5. The Department points out that the Plan-related documents submitted by the Tribes were furnished to the Bureau rather than to Reclamation, a fact which the Department claims reinforces the conclusion that the documents were provided to the Department in its capacity as trustee. Brief for Petitioners 47. This fact does not alter our analysis, however, because we think that even communications made in support of the trust relationship fail to fit comfortably within the statutory text.

FN6. We note that the Department cites the Restatement for the proposition that a “ ‘trustee is under a duty to the beneficiary not to disclose to a third person information which he has acquired as trustee where he should know that the effect of such disclosure would be detrimental to the interest of the beneficiary.’ ” Brief for Petitioners 36 (quoting Restatement (Second) of Trusts § 170, Comment s (1957)). It is unnecessary for us to decide if the Department's duties with respect to its communications with Indian tribes fit this pattern.

All of this boils down to requesting that we read an “Indian trust” exemption into the statute, a reading that is out *16 of the question for reasons already explored. There is simply no support for the exemption in the statutory text, which we have elsewhere insisted be read strictly in order to serve FOIA's mandate of broad disclosure,FN7 which was obviously expected and **1070 intended to affect Government operations. In FOIA, after all, a new conception of Government conduct was enacted into law, “ ‘a general philosophy of full agency disclosure.’ ” U.S. Department of Justice v. Tax Analysts, 492 U.S., at 142, 109 S.Ct. 2841 (quoting S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)). “Congress believed that this philosophy, put into practice, would help ‘ensure an informed citizenry, vital to the functioning of a democratic society.’ ” 492 U.S., at 142, 109 S.Ct. 2841 (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978)). Congress had to realize that not every secret under the old law would be secret under the new.

FN7. The Department does not attempt to argue that Congress specifically envisioned that Exemption 5 would cover communications pursuant to the Indian trust responsibility, or any other trust responsibility. Although as a general rule we are hesitant to construe statutes in light of legislative inaction, see Bob Jones Univ. v. United States, 461 U.S. 574, 600, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983), we note that Congress has twice considered specific proposals to protect Indian trust information, see Indian Amendment to Freedom of Information Act: Hearings on S. 2652 before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 94th Cong., 2d Sess. (1976); Indian Trust Information Protection Act of 1978, S. 2773, 95th Cong., 2d Sess. (1978). We do so because these proposals confirm the commonsense reading that we give Exemption 5 today, as well as to emphasize that nobody in the Federal Government should be surprised by this reading.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

CHAPTER TEN

United States Court of Appeals,

Second Circuit.

AMERICAN GEOPHYSICAL UNION, et al., Plaintiffs-Counterclaim-Defendants-Appellees,

v.

TEXACO INC., Defendant-Counterclaim-Plaintiff-Appellant.

In re TEXACO INC., et al., Reorganized Debtors.

ACADEMIC PRESS, INC., et al., Petitioners-Appellees,

v.

TEXACO INC., Respondent-Appellant.

No. 1479, Docket 92-9341.

Argued May 20, 1993.

Decided Oct. 28, 1994.

As Amended on Denial of Rehearing

Dec. 23, 1994.

Publishers of scientific and medical journals brought copyright infringement action against corporation that had made unauthorized copies of copyrighted articles for use of its researchers. The United States District Court for the Southern District of New York, Pierre N. Leval, J., ruled that such copying was not fair use, 802 F.Supp. 1, and granted motion for immediate appeal. The Court of Appeals, Jon O. Newman, Chief Judge, held that corporation's copying was not fair use.

Affirmed.

Jacobs, Jr., Circuit Judge, filed dissenting opinion.

*882 Thomas A. Smart, New York City (Milton J. Schubin, Michael Malina, Richard A. De Sevo, Kaye, Scholer, Fierman, Hays & Handler, New York City, Joseph P. Foley, Texaco Inc. White Plains, NY, on the brief), for appellant.

Stephen Rackow Kaye, New York City (Jon A. Baumgarten, James F. Parver, Christopher A. Meyer, Karen E. Clarke, Susan L. Hochman, Proskauer Rose Goetz & Mendelsohn, New York City, on the brief), for appellees.

*883 Susan G. Braden, Rueben B. Robertson, Ingersoll and Bloch, Washington, DC, submitted a brief for amicus curiae and the Amer. Library Ass'n.

Ritchie T. Thomas, James V. Dick, Susan Neuberger Weller, Squire, Sanders & Dempsey, Washington, DC, submitted a brief for amicus curiae and the Ass'n of Research Libraries, Amer. Ass'n of Law Libraries, Special Libraries Ass'n, Medical Library Ass'n, Amer. Council of Learned Societies, Nat. Humanities Alliance, and Ass'n of Academic Health Sciences Library Directors.

Lawrence E. Abelman, Jeffrey A. Schwab, Norman S. Beier, Nancy J. Mertzel, Abelman, Frayne & Schwab, New York City, submitted a brief for amicus curiae and the Amer. Auto. Mfrs. Ass'n and Chemical Mfrs. Ass'n.

Before: NEWMAN, Chief Judge,FN* WINTER and JACOBS, Circuit Judges.

FN* Chief Judge Newman replaced the Honorable Charles E. Stewart, Jr., of the District Court for the Southern District of New York, sitting by designation, who recused himself after oral argument.

JON O. NEWMAN, Chief Judge:

This interlocutory appeal presents the issue of whether, under the particular circumstances of this case, the fair use defense to copyright infringement applies to the photocopying of articles in a scientific journal. This issue arises on the appeal of defendant Texaco Inc. from the July 23, 1992, order of the United States District Court for the Southern District of New York (Pierre N. Leval, Judge) holding, after a limited-issue bench trial, that the photocopying of eight articles from the Journal of Catalysis for use by one of Texaco's researchers was not fair use. See American Geophysical Union v. Texaco Inc., 802 F.Supp. 1 (S.D.N.Y.1992). Though not for precisely the same reasons, we agree with the District Court's conclusion that this particular copying was not fair use and therefore affirm.

Background

The District Court Proceedings. Plaintiffs American Geophysical Union and 82 other publishers of scientific and technical journals (the “publishers”) brought a class action claiming that Texaco's unauthorized photocopying of articles from their journals constituted copyright infringement. Among other defenses, Texaco claimed that its copying was fair use under section 107 of the Copyright Act, 17 U.S.C. § 107 (1988). Since it appeared likely that the litigation could be resolved once the fair use defense was adjudicated, the parties agreed that an initial trial should be limited to whether Texaco's copying was fair use, and further agreed that this issue would be submitted for decision on a written record.

To avoid extended discovery and narrow the scope of the one-issue trial, the parties made a significant stipulation, providing that the fair use trial would focus exclusively on the photocopying of particular journal articles by one Texaco researcher. By random selection, the parties selected for the focus of the fair use trial copying done by Dr. Donald H. Chickering, II, a scientist at Texaco's research center in Beacon, New York, and, from his files, the publishers selected photocopies of eight particular articles from the Journal of Catalysis.

In a comprehensive opinion, reported at 802 F.Supp. 1, the District Court considered the statutory fair use factors identified in section 107, weighed other equitable considerations, and held that Texaco's photocopying of these eight articles for Chickering did not constitute fair use. The District Court certified its ruling for interlocutory appeal under 28 U.S.C. § 1292(b) (1988).

Essential Facts. Employing between 400 and 500 researchers nationwide, Texaco conducts considerable scientific research seeking to develop new products and technology primarily to improve its commercial performance in the petroleum industry. As part of its substantial expenditures in support of research activities at its Beacon facility, Texaco subscribes to many scientific and technical journals and maintains a sizable library with these materials. Among the periodicals that Texaco receives at its Beacon research facility is the Journal of Catalysis (“ Catalysis ”), a monthly publication produced by Academic *884 Press, Inc., a major publisher of scholarly journals and one of the plaintiffs in this litigation. Texaco had initially purchased one subscription to Catalysis for its Beacon facility, and increased its total subscriptions to two in 1983. Since 1988, Texaco has maintained three subscriptions to Catalysis.

Each issue of Catalysis contains articles, notes, and letters (collectively “articles”), ranging in length from two to twenty pages. All of the articles are received by the journal's editors through unsolicited submission by various authors. Authors are informed that they must transfer the copyright in their writings to Academic Press if one of their articles is accepted for publication, and no form of money payment is ever provided to authors whose works are published. Academic Press typically owns the copyright for each individual article published in Catalysis, and every issue of the journal includes a general statement that no part of the publication is to be reproduced without permission from the copyright owner. The average monthly issue of Catalysis runs approximately 200 pages and comprises 20 to 25 articles.

Chickering, a chemical engineer at the Beacon research facility, has worked for Texaco since 1981 conducting research in the field of catalysis, which concerns changes in the rates of chemical reactions. To keep abreast of developments in his field, Chickering must review works published in various scientific and technical journals related to his area of research. Texaco assists in this endeavor by having its library circulate current issues of relevant journals to Chickering when he places his name on the appropriate routing list.

The copies of the eight articles from Catalysis found in Chickering's files that the parties have made the exclusive focus of the fair use trial were photocopied in their entirety by Chickering or by other Texaco employees at Chickering's request. Chickering apparently believed that the material and data found within these articles would facilitate his current or future professional research. The evidence developed at trial indicated that Chickering did not generally use the Catalysis articles in his research immediately upon copying, but placed the photocopied articles in his files to have them available for later reference as needed. Chickering became aware of six of the photocopied articles when the original issues of Catalysis containing the articles were circulated to him. He learned of the other two articles upon seeing a reference to them in another published article. As it turned out, Chickering did not have occasion to make use of five of the articles that were copied.

Discussion

I. The Nature of the Dispute

[1] The parties and many of the amici curiae have approached this case as if it concerns the broad issue of whether photocopying of scientific articles is fair use, or at least the only slightly more limited issue of whether photocopying of such articles is fair use when undertaken by a research scientist employed at a for-profit corporation. Such broad issues are not before us. Fair use is a doctrine the application of which always depends on consideration of the precise facts at hand, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, ----, 114 S.Ct. 1164, 1170, 127 L.Ed.2d 500 (1994); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549, 105 S.Ct. 2218, 2225, 85 L.Ed.2d 588 (1985); Wright v. Warner Books, Inc., 953 F.2d 731, 740 (2d Cir.1991); H.R.Rep. No. 1476, 94th Cong., 2d Sess. 65-66 (1976) U.S.Code Cong. & Admin.News pp. 5659, 5679 (“no generally applicable definition [of fair use] is possible, and each case raising the question must be decided on its own facts”), and in this case the parties have helpfully circumscribed the scope of the issue to be decided by tendering for the District Court's decision the facts concerning the copying of eight particular articles. Our concern is whether the copying of these eight articles was properly determined not to be fair use. Thus, the many background details stressed by each side are of only limited relevance in resolving this specific case.FN1

FN1. Texaco, for example, uses a significant portion of its initial brief to expound on photocopying activities in various industries. Similarly, a large part of the publishers' statement of facts is devoted to a broad discussion of Texaco's photocopying practices, the social importance of academic and scientific journals, and the economics of journal publication and photocopying. These and other details presented by the parties are discussed in the District Court's opinion, 802 F.Supp. at 4-9.

*885 A. Fair Use and Photocopying

We consider initially the doctrine of fair use and its application to photocopying of documents. Seeking “to motivate the creative activity of authors ... by the provision of a special reward,” Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984), copyright law grants certain exclusive rights in original works to authors, see 17 U.S.C. §§ 102(a), 106, 201(a). However, the fair use doctrine “tempers the protection of copyright by allowing ... [the] use [of] a limited amount of copyrighted material under some circumstances.” Twin Peaks Productions, Inc. v. Publications International, Ltd., 996 F.2d 1366, 1373 (2d Cir.1993). Traditionally conceived as based on authors' implied consent to reasonable uses of their works, see Harper & Row, 471 U.S. at 549-50, 105 S.Ct. at 2224-25, or on an exception to authors' monopoly privileges needed in order to fulfill copyright's purpose to promote the arts and sciences, see Campbell, 510 U.S. at ----, 114 S.Ct. at 1169, the fair use doctrine has a lengthy and rich common-law history, see William F. Patry, The Fair Use Privilege in Copyright Law 1-63 (1985) [hereinafter Patry, The Fair Use Privilege ], and is now codified in section 107 of the Copyright Act, 17 U.S.C. § 107.FN2

FN2. In full, 17 U.S.C. § 107 reads:

§ 107. Limitation on exclusive rights: Fair Use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

As with the development of other easy and accessible means of mechanical reproduction of documents, the invention and widespread availability of photocopying technology threatens to disrupt the delicate balances established by the Copyright Act. See 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[E][1], at 13-225 to 13-226 (1994) [hereinafter Nimmer on Copyright ] (noting that “unrestricted photocopying practices could largely undercut the entire law of copyright”); see also Sony, 464 U.S. at 467-68 n. 16, 104 S.Ct. at 801-02 n. 16 (Blackmun, J., dissenting) (recognizing that the “advent of inexpensive and readily available copying machines ... has changed the dimensions” of the legal issues concerning the practice of making personal copies of copyrighted materials). As a leading commentator astutely notes, the advent of modern photocopying technology creates a pressing need for the law “to strike an appropriate balance between the authors' interest in preserving the integrity of copyright, and the public's right to enjoy the benefits that photocopying technology offers.” 3 Nimmer on Copyright § 13.05 [E][1], at 13-226.

Indeed, if the issue were open, we would seriously question whether the fair use analysis that has developed with respect to works of authorship alleged to use portions of copyrighted material is precisely applicable to copies produced by mechanical means. The traditional fair use analysis, now codified in section 107, developed in an effort to adjust the competing interests of authors-the author of the original copyrighted work and the author of the secondary work that “copies” a portion of the original work in the course of producing what is claimed to be a new work. Mechanical “copying” of an entire document, made readily feasible and economical by the advent of xerography, see SCM Corp. v. Xerox Corp., 463 F.Supp. 983, 991-94 (D.Conn.1978), aff'd, 645 F.2d 1195 (2d Cir.1981), cert. denied, 455 U.S. 1016, 102 S.Ct. 1708, 72 L.Ed.2d 132 (1982), is obviously an activity entirely different from creating a work of authorship. Whatever social utility copying *886 of this sort achieves, it is not concerned with creative authorship.

Though we have been instructed to defer to Congress “when major technological innovations alter the market for copyrighted materials,” Sony, 464 U.S. at 431, 104 S.Ct. at 783, Congress has thus far provided scant guidance for resolving fair use issues involving photocopying, legislating specifically only as to library copying, see 17 U.S.C. § 108, and providing indirect advice concerning classroom copying.FN3 See generally 3 Nimmer on Copyright § 13.05[E]. However, we learn from the Supreme Court's consideration of copying achieved by use of a videotape recorder that mechanical copying is to be assessed for fair use purposes under the traditional mode of analysis, including the four statutory factors of section 107. See Sony, 464 U.S. at 447-56, 104 S.Ct. at 791-96. We therefore are obliged to apply that analysis to the photocopying that occurred in this case.

FN3. See Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions, quoted in Patry, The Fair Use Privilege, at 308, discussed infra, note 5.

B. The Precise Copyrights at Issue

[2] We must first identify precisely the copyrighted works alleged to be infringed, since certain arguments made on appeal seem to focus on different works. The publishers typically hold two separate sets of copyrights in their journal publications. As a consequence of the publishers' requirement that authors transfer their copyrights when their articles are accepted for publication, the publishers usually possess the copyrights that subsist in each individual article appearing within their journals.FN4 Moreover, to the extent that the compilation of a journal issue involves an original work of authorship, the publishers possess a distinct copyright in each journal issue as a collective work, see 17 U.S.C. § 103; see also 17 U.S.C. § 101 (defining “compilation” and “collective work”). See generally Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 356-61, 111 S.Ct. 1282, 1293-96, 113 L.Ed.2d 358 (1991) (discussing extent of copyright protection in compilations and collective works).

FN4. For various reasons, for example, because certain articles are the work of the United States Government (which makes copyright protection unavailable, see 17 U.S.C. § 105), the publishers do not always possess the copyrights for all articles within each journal.

From the outset, this lawsuit concerned alleged infringement of the copyrights in individual journal articles, copyrights assigned by the authors to the publishers. More specifically, by virtue of the parties' stipulation, this case now concerns the copyrights in the eight articles from Catalysis found in Chickering's files, copyrights now owned by Academic Press. There are no allegations that raise questions concerning Academic Press's potential copyrights in whole issues or annual volumes of Catalysis as collective works.

C. Burdens of Proof and Standard of Review

[3][4] Fair use serves as an affirmative defense to a claim of copyright infringement, and thus the party claiming that its secondary use of the original copyrighted work constitutes a fair use typically carries the burden of proof as to all issues in the dispute. See Campbell, 510 U.S. at ----, 114 S.Ct. at 1177. Moreover, since fair use is a “mixed question of law and fact,” Harper & Row, 471 U.S. at 560, 105 S.Ct. at 2230, we review the District Court's conclusions on this issue de novo, though we accept its subsidiary findings of fact unless clearly erroneous, see Twin Peaks, 996 F.2d at 1374.

II. The Enumerated Fair Use Factors of Section 107

Section 107 of the Copyright Act identifies four non-exclusive factors that a court is to consider when making its fair use assessment, see 17 U.S.C. § 107(1)-(4). The District Court concluded that three of the four statutory factors favor the publishers. As detailed below, our analysis of certain statutory factors differs somewhat from that of the District Court, though we are in agreement on the ultimate determination. Our differences stem primarily from the fact that, unlike the District Court, we have had the benefit of the Supreme Court's important decision in Campbell, decided after Judge Leval issued his opinion.

A. First Factor: Purpose and Character of Use

[5] The first factor listed in section 107 is “the purpose and character of the use, including*887 whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). Especially pertinent to an assessment of the first fair use factor are the precise circumstances under which copies of the eight Catalysis articles were made. After noticing six of these articles when the original copy of the journal issue containing each of them was circulated to him, Chickering had them photocopied, at least initially, for the same basic purpose that one would normally seek to obtain the original-to have it available on his shelf for ready reference if and when he needed to look at it. The library circulated one copy and invited all the researchers to make their own photocopies. It is a reasonable inference that the library staff wanted each journal issue moved around the building quickly and returned to the library so that it would be available for others to look at. Making copies enabled all researchers who might one day be interested in examining the contents of an article in the issue to have the issue readily available in their own offices. In Chickering's own words, the copies of the articles were made for “my personal convenience,” since it is “far more convenient to have access in my office to a photocopy of an article than to have to go to the library each time I wanted to refer to it.” Affidavit of Donald Chickering at 11 (submitted as direct trial testimony) [hereinafter Chickering testimony ]. Significantly, Chickering did not even have occasion to use five of the photocopied articles at all, further revealing that the photocopies of the eight Catalysis articles were primarily made just for “future retrieval and reference.” Id.

It is true that photocopying these articles also served other purposes. The most favorable for Texaco is the purpose of enabling Chickering, if the need should arise, to go into the lab with pieces of paper that (a) were not as bulky as the entire issue or a bound volume of a year's issues, and (b) presented no risk of damaging the original by exposure to chemicals. And these purposes might suffice to tilt the first fair use factor in favor of Texaco if these purposes were dominant. For example, if Chickering had asked the library to buy him a copy of the pertinent issue of Catalysis and had placed it on his shelf, and one day while reading it had noticed a chart, formula, or other material that he wanted to take right into the lab, it might be a fair use for him to make a photocopy, and use that copy in the lab (especially if he did not retain it and build up a mini-library of photocopied articles). This is the sort of “spontaneous” copying that is part of the test for permissible nonprofit classroom copying. See Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions, quoted in Patry, The Fair Use Privilege, at 308.FN5 But that is not what happened here as to the six items copied from the circulated issues.

FN5. These guidelines were included in the legislative history of the 1976 revision of the Copyright Act, see H.R.Rep. No. 1476, 94th Cong., 2d Sess. 68-71 (1976), U.S.Code Cong. & Admin.News pp. 5681-5685 and were endorsed by the House Judiciary Committee as “a reasonable interpretation of the minimum standards of fair use.” Id. at 72. Though these guidelines are not considered necessarily binding on courts, see Marcus v. Rowley, 695 F.2d 1171, 1178 (9th Cir.1983), they exist as a persuasive authority marking out certain minimum standards for educational fair uses, see Basic Books, Inc. v. Kinko's Graphics Corp., 758 F.Supp. 1522-36 (S.D.N.Y.1991). See generally 3 Nimmer on Copyright § 13.05[E] [3] [a], at 13-226.1 to 13-226.2 (discussing nature and impact of guidelines); Patry, The Fair Use Privilege, at 307-09, 404-07 (same).

As to the other two articles, the circumstances are not quite as clear, but they too appear more to serve the purpose of being additions to Chickering's office “library” than to be spontaneous copying of a critical page that he was reading on his way to the lab. One was copied apparently when he saw a reference to it in another article, which was in an issue circulated to him. The most likely inference is that he decided that he ought to have copies of both items-again for placement on his shelf for later use if the need arose. The last article was copied, according to his affidavit, when he saw a reference to it “elsewhere.” Chickering testimony at 22. What is clear is that this item too was simply placed “on the shelf.” As he testified, “I kept a copy to refer to in case I became more involved in support effects research.” Id.

The photocopying of these eight Catalysis articles may be characterized as “archival”- i.e., done for the primary purpose of providing*888 Chickering with his own personal copy of each article without Texaco's having to purchase another original journal.FN6 The photocopying “merely ‘supersede[s] the objects' of the original creation,” Campbell, 510 U.S. at ----, 114 S.Ct. at 1171 (quoting Folsom v. Marsh, 9 F.Cas. 342, 348 (No. 4,901) (C.C.D.Mass.1841)), and tilts the first fair use factor against Texaco.

FN6. In this regard, the District Court's conclusion that the “primary aspect” of Texaco's copying was to multiply copies is accurate, see 802 F.Supp. at 14-15, irrespective of the evidence (or lack of evidence) concerning the nature and scope of Texaco's photocopying activity for its entire population of scientists. Even if the photocopies of the Catalysis articles in Chickering's files were the only copies ever made by Texaco-which, as Texaco stresses, is all that the evidence developed below conclusively showed-the primary objective in making these single copies was to provide Chickering with his own, additional, readily accessible copy of the original article. As the District Court noted, “[I]f Chickering were the subscriber and sole user of the subscription to Catalysis, and he made an extra copy of an article for use in the lab or for marking with scratch notes, the argument [for a transformative” fair use] might have considerable force.” 802 F.Supp. at 14.

Texaco criticizes three aspects of the District Court's analysis of the first factor. Relying largely on the Supreme Court's discussion of fair use in Sony, the District Court suggested that a secondary user will “win” this first factor by showing a “transformative (or productive) nonsuperseding use of the original, or [a] noncommercial use, generally for a socially beneficial or widely accepted purpose.” 802 F.Supp. at 12. The District Court then concluded that Texaco's copying is “neither transformative nor noncommercial,” id. at 13: not transformative because Texaco “simply makes mechanical photocopies of the entirety of relevant articles” and the “primary aspect” of Texaco's photocopying is to multiply copies, see id. at 13-15; and not noncommercial because, though it facilitates research, this research is conducted solely for commercial gain, see id. at 15-16.

Texaco asserts that the District Court mischaracterized the inquiry under the first factor and overlooked several relevant considerations. First, Texaco contends that the District Court inappropriately focussed on the character of the user rather than the nature of the use in labeling Texaco's copying as commercial. Texaco claims that its status as a for-profit corporation has no bearing on the fair use analysis, and that its use should be considered noncommercial since it photocopied articles in order to aid Chickering's research. Texaco emphasizes that “research” is explicitly listed in the preamble of section 107, a circumstance that Texaco contends should make its copying favored under the first factor and throughout the entire fair use analysis.FN7

FN7. Though Texaco claims that its copying is for “research” as that term is used in the preamble of section 107, this characterization might somewhat overstate the matter. Chickering has not used portions of articles from Catalysis in his own published piece of research, nor has he had to duplicate some portion of copyrighted material directly in the course of conducting an experiment or investigation. Rather, entire articles were copied as an intermediate step that might abet Chickering's research.

Second, Texaco contends that the District Court put undue emphasis on whether its use was “transformative,” especially since the Supreme Court appears to have rejected the view that a use must be transformative or productive to be a fair use. See Sony, 464 U.S. at 455 n. 40, 104 S.Ct. at 795 n. 40 (“The distinction between ‘productive’ and ‘unproductive’ uses may be helpful in calibrating the balance [of interests], but it cannot be wholly determinative.”). Texaco asserts that the “transformative use” concept is valuable only to the extent that it focusses attention upon whether a second work unfairly competes with the original. Texaco states that in this case, where the photocopies it made were not sold or distributed in competition with the original, the nontransformative nature of its copying should not prevent a finding of fair use. Texaco also suggests that its use should be considered transformative: photocopying the article separated it from a bulky journal, made it more amenable to markings, and provided a document that could be readily replaced if damaged in a laboratory, all of which “transformed” the original article into a form that better served Chickering's research needs.

Finally, Texaco claims that it should prevail on the first factor because, as the District*889 Court acknowledged, the type of photocopying it conducted is widespread and has long been considered reasonable and customary. Texaco stresses that some courts and commentators regard custom and common usage as integral to the fair use analysis. See, e.g., Williams & Wilkins Co. v. United States, 203 Ct.Cl. 74, 487 F.2d 1345, 1353-56 (1973), aff'd by equally divided Court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1975); Lloyd L. Weinreb, Fair's Fair: A Comment on the Fair Use Doctrine, 103 Harv.L.Rev. 1137, 1140 (1990) [hereinafter Weinreb, Fair's Fair ]. We consider these three lines of attack separately.

1. Commercial use. We generally agree with Texaco's contention that the District Court placed undue emphasis on the fact that Texaco is a for-profit corporation conducting research primarily for commercial gain. Since many, if not most, secondary users seek at least some measure of commercial gain from their use, unduly emphasizing the commercial motivation of a copier will lead to an overly restrictive view of fair use. See Campbell, 510 U.S. at ----, 114 S.Ct. at 1174; see also Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1262 (2d Cir.1986) (noting that if “commercial” nature of a secondary use is over-emphasized in the analysis, “fair use would be virtually obliterated”), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987). See generally 3 Nimmer on Copyright § 13.05[A][1][c], at 13-162 to 13-163 (categorical rule against commercial uses unwarranted since this “would cause the fair use analysis to collapse in all but the exceptional case of nonprofit exploitation”). Though the Supreme Court had stated in Sony that every commercial use was “presumptively” unfair, see 464 U.S. at 451, 104 S.Ct. at 793, that Court and lower courts have come to explain that the commercial nature of a secondary use simply “ ‘tends to weigh against a finding of fair use.’ ” Campbell, 510 U.S. at ----, 114 S.Ct. at 1174 (quoting Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231); accord Rogers v. Koons, 960 F.2d 301, 309 (2d Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992); Sega Enterprises Limited v. Accolade, Inc., 977 F.2d 1510, 1522 (9th Cir.1992); Maxtone-Graham, 803 F.2d at 1262.

“Indeed, Campbell warns against ‘elevat[ing] ... to a per se rule’ Sony' s language about a presumption against fair use arising from commercial use. [510 U.S. at ----,] 114 S.Ct. at 1174. Campbell discards that language in favor of a more subtle, sophisticated approach, which recognizes that ‘the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.’ Id. at ----, 114 S.Ct. at 1171. The Court states that ‘the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry,’ id. [at ----, 114 S.Ct.] at 1174, and points out that ‘[i]f, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107....’ Id.”

We do not mean to suggest that the District Court overlooked these principles; in fact, the Court discussed them insightfully, see 802 F.Supp. at 12-13. Rather, our concern here is that the Court let the for-profit nature of Texaco's activity weigh against Texaco without differentiating between a direct commercial use and the more indirect relation to commercial activity that occurred here. Texaco was not gaining direct or immediate commercial advantage from the photocopying at issue in this case- i.e., Texaco's profits, revenues, and overall commercial performance were not tied to its making copies of eight Catalysis articles for Chickering. Cf. Basic Books, Inc. v. Kinko's Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y.1991) (revenues of reprographic business stemmed directly from selling unauthorized photocopies of copyrighted books). Rather, Texaco's photocopying served, at most, to facilitate Chickering's research, which in turn might have led to the development of new products and technology that could have improved Texaco's commercial performance. Texaco's photocopying is more appropriately labeled an “intermediate use.” See Sega Enterprises, 977 F.2d at 1522-23 (labeling secondary use “intermediate” and finding first factor in favor of for-profit company, even though ultimate purpose of copying was to develop competing commercial product, because immediate*890 purpose of copying computer code was to study idea contained within computer program).

We do not consider Texaco's status as a for-profit company irrelevant to the fair use analysis. Though Texaco properly contends that a court's focus should be on the use of the copyrighted material and not simply on the user, it is overly simplistic to suggest that the “purpose and character of the use” can be fully discerned without considering the nature and objectives of the user. FN8

FN8. See Patry, The Fair Use Privilege, at 416-17 (noting that the nature of person or entity engaging in use affects the character of the use); Report of the Register of Copyrights-Library Reproduction of Copyrighted Works (17 U.S.C. 108) 85 (1983) (explaining that though a scientist in a for-profit firm and a university student may engage in the same photocopying of scholarly articles to facilitate their research, “the copyright consequences are different: [the scientist's] copying is of a clearly commercial nature, and less likely to be fair use”) quoted in Patry, The Fair Use Privilege, at 417 n. 307.

Ultimately, the somewhat cryptic suggestion in section 107(1) to consider whether the secondary use “is of a commercial nature or is for nonprofit educational purposes” connotes that a court should examine, among other factors, the value obtained by the secondary user from the use of the copyrighted material. See Rogers, 960 F.2d at 309 (“The first factor ... asks whether the original was copied in good faith to benefit the public or primarily for the commercial interests of the infringer.”); MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2d Cir.1981) (court is to consider “whether the alleged infringing use was primarily for public benefit or for private commercial gain”). The commercial/nonprofit dichotomy concerns the unfairness that arises when a secondary user makes unauthorized use of copyrighted material to capture significant revenues as a direct consequence of copying the original work. See Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231 (“The crux of the profit/nonprofit distinction is ... whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”).

Consistent with these principles, courts will not sustain a claimed defense of fair use when the secondary use can fairly be characterized as a form of “commercial exploitation,” i.e., when the copier directly and exclusively acquires conspicuous financial rewards from its use of the copyrighted material. See Harper & Row, 471 U.S. at 562-63, 105 S.Ct. at 2231-32; Twin Peaks, 996 F.2d at 1375; Rogers, 960 F.2d at 309; Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, Inc., 621 F.2d 57, 61 (2d Cir.1980); Meeropol v. Nizer, 560 F.2d 1061, 1069 (2d Cir.1977) (examining whether use was “predominantly for commercial exploitation”), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978). Conversely, courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest. See Twin Peaks, 996 F.2d at 1375; Sega Enterprises, 977 F.2d at 1523; Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 307-09 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). The greater the private economic rewards reaped by the secondary user (to the exclusion of broader public benefits), the more likely the first factor will favor the copyright holder and the less likely the use will be considered fair.

As noted before, in this particular case the link between Texaco's commercial gain and its copying is somewhat attenuated: the copying, at most, merely facilitated Chickering's research that might have led to the production of commercially valuable products. Thus, it would not be accurate to conclude that Texaco's copying of eight particular Catalysis articles amounted to “commercial exploitation,” especially since the immediate goal of Texaco's copying was to facilitate Chickering's research in the sciences, an objective that might well serve a broader public purpose. See Twin Peaks, 996 F.2d at 1375; Sega Enterprises, 977 F.2d at 1522. Still, we need not ignore the for-profit nature of Texaco's enterprise, especially since we can confidently conclude that Texaco reaps at least some indirect economic advantage from its photocopying. As the publishers emphasize, Texaco's photocopying for Chickering could be regarded simply as another “factor of production” utilized in Texaco's efforts to develop profitable products. Conceptualized in this way, it is not obvious why it is fair for Texaco to avoid having to pay at least some *891 price to copyright holders for the right to photocopy the original articles.

2. Transformative Use. The District Court properly emphasized that Texaco's photocopying was not “transformative.” After the District Court issued its opinion, the Supreme Court explicitly ruled that the concept of a “transformative use” is central to a proper analysis under the first factor, see Campbell, 510 U.S. at ---- - ----, 114 S.Ct. at 1171-73. The Court explained that though a “transformative use is not absolutely necessary for a finding of fair use, ... the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Id. at ----, 114 S.Ct. at 1171.

The “transformative use” concept is pertinent to a court's investigation under the first factor because it assesses the value generated by the secondary use and the means by which such value is generated. To the extent that the secondary use involves merely an untransformed duplication, the value generated by the secondary use is little or nothing more than the value that inheres in the original. Rather than making some contribution of new intellectual value and thereby fostering the advancement of the arts and sciences, an untransformed copy is likely to be used simply for the same intrinsic purpose as the original, thereby providing limited justification for a finding of fair use. See Weissmann v. Freeman, 868 F.2d 1313, 1324 (2d Cir.) (explaining that a use merely for the same “intrinsic purpose” as original “moves the balance of the calibration on the first factor against” secondary user and “seriously weakens a claimed fair use”), cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989).FN9

FN9. See also Marcus v. Rowley, 695 F.2d at 1175 (emphasizing that “a finding that the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used is strong indicia of no fair use.”). See generally Leon E. Seltzer, Exemptions and Fair Use in Copyright 24 (1978) (noting traditional limit on the applicability of fair use doctrine when reproduction of original work is done “in order to use it for its intrinsic purpose-to make what might be called the ‘ordinary’ use of it”).

In contrast, to the extent that the secondary use “adds something new, with a further purpose or different character,” the value generated goes beyond the value that inheres in the original and “the goal of copyright, to promote science and the arts, is generally furthered.” Campbell, 510 U.S. at ----, 114 S.Ct. at 1171; see also Pierre N. Leval, Toward a Fair Use Standard, 103 Harv.L.Rev. 1105, 1111 (1990) [hereinafter Leval, Toward a Fair Use Standard ]. It is therefore not surprising that the “preferred” uses illustrated in the preamble to section 107, such as criticism and comment, generally involve some transformative use of the original work. See 3 Nimmer on Copyright § 13.05[A][1][b], at 13-160.

Texaco suggests that its conversion of the individual Catalysis articles through photocopying into a form more easily used in a laboratory might constitute a transformative use. However, Texaco's photocopying merely transforms the material object embodying the intangible article that is the copyrighted original work. See 17 U.S.C. §§ 101, 102 (explaining that copyright protection in literary works subsists in the original work of authorship “regardless of the nature of the material objects ... in which they are embodied”). Texaco's making of copies cannot properly be regarded as a transformative use of the copyrighted material. See Steven D. Smit, “ Make a Copy for the File ...”: Copyright Infringement by Attorneys, 46 Baylor L.Rev. 1, 15 & n. 58 (1994); see also Basic Books, 758 F.Supp. at 1530-31 (repackaging in anthology form of excerpts from copyrighted books not a transformative use).

Even though Texaco's photocopying is not technically a transformative use of the copyrighted material, we should not overlook the significant independent value that can stem from conversion of original journal articles into a format different from their normal appearance. See generally Sony, 464 U.S. at 454, 455 n. 40, 104 S.Ct. at 795 n. 40 (acknowledging possible benefits from copying that might otherwise seem to serve “no productive purpose”); Weinreb, Fair's Fair, at 1143 & n. 29 (discussing potential value from non-transformative copying). As previously explained, Texaco's photocopying converts *892 the individual Catalysis articles into a useful format. Before modern photocopying, Chickering probably would have converted the original article into a more serviceable form by taking notes, whether cursory or extended; FN10 today he can do so with a photocopying machine. Nevertheless, whatever independent value derives from the more usable format of the photocopy does not mean that every instance of photocopying wins on the first factor. In this case, the predominant archival purpose of the copying tips the first factor against the copier, despite the benefit of a more usable format.

FN10. In stating that a handwritten copy would have been made, we do not mean to imply that such copying would necessarily have been a fair use. Despite the 1973 dictum in Williams & Wilkins asserting that “it is almost unanimously accepted that a scholar can make a handwritten copy of an entire copyrighted article for his own use ...,” 487 F.2d at 1350, the current edition of the Nimmer treatise reports that “[t]here is no reported case on the question of whether a single handwritten copy of all or substantially all of a book or other protected work made for the copier's own private use is an infringement or fair use.” 3 Nimmer on Copyright § 1305[E][4][a], at 13-229.

3. Reasonable and Customary Practice. Texaco contends that Chickering's photocopying constitutes a use that has historically been considered “reasonable and customary.” We agree with the District Court that whatever validity this argument might have had before the advent of the photocopying licensing arrangements discussed below in our consideration of the fourth fair use factor, the argument today is insubstantial. As the District Court observed, “To the extent the copying practice was ‘reasonable’ in 1973 [when Williams & Wilkins was decided], it has ceased to be ‘reasonable’ as the reasons that justified it before [photocopying licensing] have ceased to exist.” 802 F.Supp. at 25.

In amplification of Texaco's arguments, our dissenting colleague makes two further points about the first factor analysis that merit a response. First, the dissent disputes our characterization of Chickering's use as “archival” on the ground that such a use would occur in an institutional setting, whereas Chickering copied for his personal use. Second, the dissent contends that Chickering's use is transformative because it is an important step in the process of doing research. We think the proper response to these observations emerges from considering how they would fare if the Texaco library had sent around entire books, rather than issues of a journal. Clearly, Chickering (and all the other researchers at the Beacon facility) would be making archival use of the circulating books if they made photocopies of the books for their individual offices and thereby spared Texaco the expense of buying them all individual volumes. An individual copies for archival purposes even if the resulting archive remains in a private office. When a corporation invites such archival copying by circulating items likely to be worth copying (whether articles or entire books), any distinction between individual and institutional archiving loses all significance.

Moreover, the concept of a “transformative” use would be extended beyond recognition if it was applied to Chickering's copying simply because he acted in the course of doing research. The purposes illustrated by the categories listed in section 107 refer primarily to the work of authorship alleged to be a fair use, not to the activity in which the alleged infringer is engaged. Texaco cannot gain fair use insulation for Chickering's archival photocopying of articles (or books) simply because such copying is done by a company doing research. It would be equally extravagant for a newspaper to contend that because its business is “news reporting” it may line the shelves of its reporters with photocopies of books on journalism or that schools engaged in “teaching” may supply its faculty members with personal photocopies of books on educational techniques or substantive fields. Whatever benefit copying and reading such books might contribute to the process of “teaching” would not for that reason satisfy the test of a “teaching” purpose.

On balance, we agree with the District Court that the first factor favors the publishers, primarily because the dominant purpose of the use is “archival”-to assemble a set of papers for future reference, thereby serving the same purpose for which additional subscriptions*893 are normally sold, or, as will be discussed, for which photocopying licenses may be obtained.

B. Second Factor: Nature of Copyrighted Work

[6] The second statutory fair use factor is “the nature of the copyrighted work.” 17 U.S.C. § 107(2). In assessing this factor, the District Court noted that the articles in Catalysis “are created for publication with the purpose and intention of benefiting from the protection of the copyright law,” and that copyright protection “is vitally necessary to the dissemination of scientific articles of the sort that are at issue.” 802 F.Supp. at 16. Nevertheless, the Court ultimately concluded that this factor favored Texaco because the photocopied articles were essentially factual in nature and the “ ‘scope of fair use is greater with respect to factual than nonfactual works.’ ” Id. at 16-17 (quoting New Era Publications International, ApS v. Carol Publishing Group, 904 F.2d 152, 157 (2d Cir.), cert. denied, 498 U.S. 921, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990)).

On appeal, the publishers stress the District Court's comments concerning the importance of broad copyright protection for journal publications in order to foster journal production. Further, citing Harper & Row for the proposition that the creativity of an original work weighs against finding fair use, see 471 U.S. at 563, 105 S.Ct. at 2232, the publishers also point out that “the journal articles are expressions of highly original, creative and imaginative thinking.”

Though a significant measure of creativity was undoubtedly used in the creation of the eight articles copied from Catalysis, even a glance at their content immediately reveals the predominantly factual nature of these works. FN11 Moreover, though we have previously recognized the importance of strong copyright protection to provide sufficient incentives for the creation of scientific works, see Weissmann, 868 F.2d at 1325, nearly every category of copyrightable works could plausibly assert that broad copyright protection was essential to the continued vitality of that category of works.

FN11. Not only are the Catalysis articles essentially factual in nature, but the evidence suggests that Chickering was interested exclusively in the facts, ideas, concepts, or principles contained within the articles. Though scientists surely employ creativity and originality to develop ideas and obtain facts and thereafter to convey the ideas and facts in scholarly articles, it is primarily the ideas and facts themselves that are of value to other scientists in their research.

Ultimately, then, the manifestly factual character of the eight articles precludes us from considering the articles as “within the core of the copyright's protective purposes,” Campbell, 510 U.S. at ----, 114 S.Ct. at 1175; see also Harper & Row, 471 U.S. at 563, 105 S.Ct. at 2232 (“The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.”). Thus, in agreement with the District Court, we conclude that the second factor favors Texaco.

C. Third Factor: Amount and Substantiality of Portion Used

[7] The third statutory fair use factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). The District Court concluded that this factor clearly favors the publishers because Texaco copied the eight articles from Catalysis in their entirety.

Texaco makes various responses to the District Court's straightforward conclusion. First, Texaco claims that this factor is significant only as a means to determine whether a copy unfairly supersedes demand for the original and should be considered “largely irrelevant” where, as here, a copy is not sold or distributed. Second, Texaco claims that, rather than focus on Texaco's copying of entire articles, it is more appropriate to consider that Texaco copied only a very small portion of any particular issue or volume of Catalysis. Finally, Texaco cites Sony and Williams & Wilkins for the proposition that the copying of entire copyrighted works can still constitute fair use. See Sony, 464 U.S. at 449-50, 104 S.Ct. at 792; Williams & Wilkins, 487 F.2d at 1353.

[8] Texaco's suggestion that we consider that it copied only a small percentage of the total compendium of works encompassed within Catalysis is superficially intriguing, especially since Catalysis is traditionally marketed only as a periodical by issue or *894 volume. However, as the District Court recognized, each of the eight articles in Catalysis was separately authored and constitutes a discrete “original work[ ] of authorship,” 17 U.S.C. § 102. As we emphasized at the outset, each article enjoys independent copyright protection, which the authors transferred to Academic Press, and what the publishers claim has been infringed is the copyright that subsists in each individual article-not the distinct copyright that may subsist in each journal issue or volume by virtue of the publishers' original compilation of these articles. The only other appellate court to consider the propriety of photocopying articles from journals also recognized that each article constituted an entire work in the fair use analysis. See Williams & Wilkins, 487 F.2d at 1353.

Despite Texaco's claims that we consider its amount of copying “minuscule” in relation to the entirety of Catalysis, we conclude, as did the District Court, that Texaco has copied entire works. Though this conclusion does not preclude a finding of fair use, it militates against such a finding, see Sony, 464 U.S. at 449-50, 104 S.Ct. at 792, and weights the third factor in favor of the publishers.

Finally, though we are sensitive to Texaco's claim that the third factor serves merely as a proxy for determining whether a secondary use significantly interferes with demand for the original-a concern echoed by some commentators, see William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv.L.Rev. 1661, 1678 (1988) [hereinafter Fisher, Reconstructing Fair Use ]-we think this factor serves a further end that advances the fair use analysis. Specifically, by focussing on the amount and substantiality of the original work used by the secondary user, we gain insight into the purpose and character of the use as we consider whether the quantity of the material used was “reasonable in relation to the purpose of the copying.” See Campbell, 510 U.S. at ----, 114 S.Ct. at 1175. In this case, the fact that Texaco photocopied the eight Catalysis articles in their entirety weakens its assertion that the over-riding purpose and character of its use was to enable the immediate use of the article in the laboratory and strengthens our view that the predominant purpose and character of the use was to establish a personal library of pertinent articles for Chickering. Cf. id. at ----, 114 S.Ct. at 1176 (intimating that extent of copying can provide insight into primary purpose of copying).

D. Fourth Factor: Effect Upon Potential Market or Value

[9] The fourth statutory fair use factor is “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). Assessing this factor, the District Court detailed the range of procedures Texaco could use to obtain authorized copies of the articles that it photocopied and found that “whatever combination of procedures Texaco used, the publishers' revenues would grow significantly.” 802 F.Supp. at 19. The Court concluded that the publishers “powerfully demonstrated entitlement to prevail as to the fourth factor,” since they had shown “a substantial harm to the value of their copyrights” as the consequence of Texaco's copying. See id. at 18-21.

Prior to Campbell, the Supreme Court had characterized the fourth factor as “the single most important element of fair use,” Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233; accord 3 Nimmer on Copyright § 13.05[A][4], at 13-183. However, Campbell's discussion of the fourth factor conspicuously omits this phrasing. Apparently abandoning the idea that any factor enjoys primacy, Campbell instructs that ‘[a]ll [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright.’ 510 U.S. at ----, 114 S.Ct. at 1171.

In analyzing the fourth factor, it is important (1) to bear in mind the precise copyrighted works, namely the eight journal articles, and (2) to recognize the distinctive nature and history of “the potential market for or value of” these particular works.FN12 Specifically,*895 though there is a traditional market for, and hence a clearly defined value of, journal issues and volumes, in the form of per-issue purchases and journal subscriptions, there is neither a traditional market for, nor a clearly defined value of, individual journal articles. As a result, analysis of the fourth factor cannot proceed as simply as would have been the case if Texaco had copied a work that carries a stated or negotiated selling price in the market.

FN12. We focus on the eight articles to emphasize the special characteristics of articles as distinguished from journal issues or bound volumes. In doing so, we recognize, as did the District Court, see 802 F.Supp. at 18 n. 15, that the fourth factor is concerned with the category of a defendant's conduct, not merely the specific instances of copying. See 3 Nimmer on Copyright § 13.05[A][4], at 13-183 to 13-184 (“[I]t is a mistake to view [the fourth] factor ... as merely raising the question of the extent of damages to plaintiff caused by the particular activities of the defendant. This factor rather poses the issue of whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market for or value of the plaintiff's present work.”) (emphasis added).

Like most authors, writers of journal articles do not directly seek to capture the potential financial rewards that stem from their copyrights by personally marketing copies of their writings. Rather, like other creators of literary works, the author of a journal article “commonly sells his rights to publishers who offer royalties in exchange for their services in producing and marketing the author's work.” Harper & Row, 471 U.S. at 547, 105 S.Ct. at 2223. In the distinctive realm of academic and scientific articles, however, the only form of royalty paid by a publisher is often just the reward of being published, publication being a key to professional advancement and prestige for the author, see Weissmann, 868 F.2d at 1324 (noting that “in an academic setting, profit is ill-measured in dollars. Instead, what is valuable is recognition because it so often influences professional advancement and academic tenure.”). The publishers in turn incur the costs and labor of producing and marketing authors' articles, driven by the prospect of capturing the economic value stemming from the copyrights in the original works, which the authors have transferred to them. Ultimately, the monopoly privileges conferred by copyright protection and the potential financial rewards therefrom are not directly serving to motivate authors to write individual articles; rather, they serve to motivate publishers to produce journals, which provide the conventional and often exclusive means for disseminating these individual articles. It is the prospect of such dissemination that contributes to the motivation of these authors.

Significantly, publishers have traditionally produced and marketed authors' individual articles only in a journal format, i.e., in periodical compilations of numerous articles. In other words, publishers have conventionally sought to capture the economic value from the “exclusive rights” to “reproduce” and “distribute copies” of the individual articles, see 17 U.S.C. § 106(1) & (3), solely by compiling many such articles together in a periodical journal and then charging a fee to subscribe. Publishers have not traditionally provided a simple or efficient means to obtain single copies of individual articles; reprints are usually available from publishers only in bulk quantities and with some delay.

This marketing pattern has various consequences for our analysis of the fourth factor. First, evidence concerning the effect that photocopying individual journal articles has on the traditional market for journal subscriptions is of somewhat less significance than if a market existed for the sale of individual copies of articles. Second, this distinctive arrangement raises novel questions concerning the significance of the publishers' establishment of an innovative licensing scheme for the photocopying of individual journal articles.

1. Sales of Additional Journal Subscriptions, Back Issues, and Back Volumes. Since we are concerned with the claim of fair use in copying the eight individual articles from Catalysis, the analysis under the fourth factor must focus on the effect of Texaco's photocopying upon the potential market for or value of these individual articles. Yet, in their respective discussions of the fourth statutory factor, the parties initially focus on the impact of Texaco's photocopying of individual journal articles upon the market for Catalysis journals through sales of Catalysis subscriptions, back issues, or back volumes.

As a general matter, examining the effect on the marketability of the composite work containing a particular individual copyrighted work serves as a useful means to gauge the impact of a secondary use “upon the potential market for or value of” that individual work, since the effect on the marketability of the composite work will frequently be directly relevant to the effect on the market for or *896 value of that individual work.FN13 Quite significantly, though, in the unique world of academic and scientific articles, the effect on the marketability of the composite work in which individual articles appear is not obviously related to the effect on the market for or value of the individual articles. Since (1) articles are submitted unsolicited to journals, (2) publishers do not make any payment to authors for the right to publish their articles or to acquire their copyrights, and (3) there is no evidence in the record suggesting that publishers seek to reprint particular articles in new composite works, we cannot readily conclude that evidence concerning the effect of Texaco's use on the marketability of journals provides an effective means to appraise the effect of Texaco's use on the market for or value of individual journal articles.

FN13. One reason that the effect on the marketability of the composite work is typically relevant is because the strength of the market for the composite work will influence the payment producers will be willing to give to the author of the individual work for permission to include that individual work. For example, if a secondary use of a copyrighted story adversely affects purchases of a collection of short stories in which this story appears, then other producers of short story collections will less likely seek to have, or will pay less to have, that story as part of their collections. In this way, the market for or value of the story has clearly been affected by the secondary use.

These considerations persuade us that evidence concerning the effect of Texaco's photocopying of individual articles within Catalysis on the traditional market for Catalysis subscriptions is of somewhat limited significance in determining and evaluating the effect of Texaco's photocopying “upon the potential market for or value of” the individual articles. We do not mean to suggest that we believe the effect on the marketability of journal subscriptions is completely irrelevant to gauging the effect on the market for and value of individual articles. Were the publishers able to demonstrate that Texaco's type of photocopying, if widespread,FN14 would impair the marketability of journals, then they might have a strong claim under the fourth factor. Likewise, were Texaco able to demonstrate that its type of photocopying, even if widespread, would have virtually no effect on the marketability of journals, then it might have a strong claim under this fourth factor.

FN14. Properly applied, the fourth factor requires a court to consider “not only ... particular actions of the alleged infringer, but also ‘whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market’ for the original.” Campbell, 510 U.S. at ----, 114 S.Ct. at 1177 (quoting 3 Nimmer on Copyright § 13.05[A][4] ). Accord Harper & Row, 471 U.S. at 568-69, 105 S.Ct. at 2234-35; Rogers, 960 F.2d at 312.

On this record, however, the evidence is not resounding for either side. The District Court specifically found that, in the absence of photocopying, (1) “Texaco would not ordinarily fill the need now being supplied by photocopies through the purchase of back issues or back volumes ... [or] by enormously enlarging the number of its subscriptions,” but (2) Texaco still “would increase the number of subscriptions somewhat.” 802 F.Supp. at 19. FN15 This moderate conclusion concerning the actual effect on the marketability of journals, combined with the uncertain relationship between the market for journals and the market for and value of individual articles, leads us to conclude that the evidence *897 concerning sales of additional journal subscriptions, back issues, and back volumes does not strongly support either side with regard to the fourth factor. Cf. Sony, 464 U.S. at 451-55, 104 S.Ct. at 793-95 (rejecting various predictions of harm to value of copyrighted work based on speculation about possible consequences of secondary use). At best, the loss of a few journal subscriptions tips the fourth factor only slightly toward the publishers because evidence of such loss is weak evidence that the copied articles themselves have lost any value.

FN15. Texaco assails the conclusion that, without photocopying, it would increase subscriptions “somewhat” as an improper inference unsupported by the evidence. Though we accept Texaco's assertion that additional subscriptions provide an imperfect substitute for the copies of individual articles that scientists need and prefer, we cannot conclude that the District Court's factual finding that “Texaco would add at least a modest number of subscriptions,” 802 F.Supp. at 19, is clearly erroneous.

First, though Texaco claims that there is no reliable evidence suggesting that photocopying served to facilitate journal circulation, the evidence concerning Texaco's routing practices supports the District Court's inference that, without photocopying, Texaco will need a greater number of subscriptions to insure the prompt circulation of journals. Second, as discussed in connection with the first statutory factor, the dominant reason for, and value derived from, the copying of the eight particular Catalysis articles was to make them available on Chickering's shelf for ready reference when he needed to look at them. Thus, it is reasonable to conclude that Texaco would purchase at least a few additional subscriptions to serve this purpose, i.e., to provide certain researchers with personal copies of particular articles in their own offices.

2. Licensing Revenues and Fees. The District Court, however, went beyond discussing the sales of additional journal subscriptions in holding that Texaco's photocopying affected the value of the publishers' copyrights. Specifically, the Court pointed out that, if Texaco's unauthorized photocopying was not permitted as fair use, the publishers' revenues would increase significantly since Texaco would (1) obtain articles from document delivery services (which pay royalties to publishers for the right to photocopy articles), (2) negotiate photocopying licenses directly with individual publishers, and/or (3) acquire some form of photocopying license from the Copyright Clearance Center Inc. (“CCC”).FN16 See 802 F.Supp. at 19. Texaco claims that the District Court's reasoning is faulty because, in determining that the value of the publishers' copyrights was affected, the Court assumed that the publishers were entitled to demand and receive licensing royalties and fees for photocopying. Yet, continues Texaco, whether the publishers can demand a fee for permission to make photocopies is the very question that the fair use trial is supposed to answer.

FN16. The CCC is a central clearing-house established in 1977 primarily by publishers to license photocopying. The CCC offers a variety of licensing schemes; fees can be paid on a per copy basis or through blanket license arrangements. Most publishers are registered with the CCC, but the participation of for-profit institutions that engage in photocopying has been limited, largely because of uncertainty concerning the legal questions at issue in this lawsuit. A more extended discussion of the formation, development, and effectiveness of the CCC and its licensing schemes is contained in Stanley M. Besen & Sheila Nataraj Kirby, Compensating Creators of Intellectual Property: Collectives that Collect (1989); see also American Geophysical Union v. Texaco Inc., 802 F.Supp. at 7-9.

It is indisputable that, as a general matter, a copyright holder is entitled to demand a royalty for licensing others to use its copyrighted work, see 17 U.S.C. § 106 (copyright owner has exclusive right “to authorize” certain uses), and that the impact on potential licensing revenues is a proper subject for consideration in assessing the fourth factor, see, e.g., Campbell, 510 U.S. at ----, 114 S.Ct. at 1178; Harper & Row, 471 U.S. at 568-69, 105 S.Ct. at 2234-35; Twin Peaks, 996 F.2d at 1377; DC Comics Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 28 (2d Cir.1982); United Telephone Co. of Missouri v. Johnson Publishing Co., Inc., 855 F.2d 604, 610 (8th Cir.1988).

However, not every effect on potential licensing revenues enters the analysis under the fourth factor.FN17 Specifically, courts have recognized limits on the concept of “potential licensing revenues” by considering only traditional, reasonable, or likely to be developed markets when examining and assessing a secondary use's “effect upon the potential market for or value of the copyrighted work.” See Campbell, 510 U.S. at ----, 114 S.Ct. at 1178 (“The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.”); Harper & Row, 471 U.S. at 568, 105 S.Ct. at 2234 *898 (fourth factor concerned with “use that supplants any part of the normal market for a copyrighted work”) (emphasis added) (quoting S.Rep. No. 473, 94th Cong., 1st Sess. 65 (1975)); see also Mathieson v. Associated Press, 23 U.S.P.Q.2d 1685, 1690-91, 1992 WL 164447 (S.D.N.Y.1992) (refusing to find fourth factor in favor of copyright holder because secondary use did not affect any aspect of the normal market for copyrighted work).

FN17. As Texaco notes and others have recognized, a copyright holder can always assert some degree of adverse affect on its potential licensing revenues as a consequence of the secondary use at issue simply because the copyright holder has not been paid a fee to permit that particular use. See Leval, Toward a Fair Use Standard, at 1124 (“By definition every fair use involves some loss of royalty revenue because the secondary user has not paid royalties.”); Fisher, Reconstructing Fair Use, at 1671 (noting that in almost every case “there will be some material adverse impact on a ‘potential market’ ” since the secondary user has not paid for the use). Thus, were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder. See Leval, Toward a Fair Use Standard, at 1125; Fisher, Reconstructing Fair Use, at 1672.

For example, the Supreme Court recently explained that because of the “unlikelihood that creators of imaginative works will license critical reviews or lampoons” of their works, “the law recognizes no derivative market for critical works,” Campbell, 510 U.S. at ----, 114 S.Ct. at 1178. Similarly, other courts have found that the fourth factor will favor the secondary user when the only possible adverse effect occasioned by the secondary use would be to a potential market or value that the copyright holder has not typically sought to, or reasonably been able to, obtain or capture. See Twin Peaks, 996 F.2d at 1377 (noting that fourth factor will favor secondary user when use “filled a market niche that the [copyright owner] simply had no interest in occupying”); Pacific and Southern Co. v. Duncan, 744 F.2d 1490, 1496 (11th Cir.1984) cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985) (noting that the fourth factor may not favor copyright owner when the secondary user “profits from an activity that the owner could not possibly take advantage of”).FN18

FN18. The Supreme Court's holding in Sony implicitly recognizes limits on the concept of “potential market for or value of the copyrighted work.” Despite Justice Blackmun's dissenting view that the copying of television programs to enable private viewing at a more convenient time, i.e., “time-shifting,” deprived copyright holders of the ability to exploit the “sizable market” of persons who “would be willing to pay some kind of royalty” for the “privilege of watching copyrighted work at their convenience,” Sony, 464 U.S. at 485, 104 S.Ct. at 811, the majority found that the copyright holders “failed to demonstrate that time-shifting would cause any likelihood of non-minimal harm to the potential market for, or the value of, their copyrighted works.” Id. at 456, 104 S.Ct. at 796. The Court thus implicitly ruled that the potential market in licensing royalties enunciated by Justice Blackmun should be considered too insubstantial to tilt the fourth fair use factor in favor of the copyright holder.

Thus, Texaco is correct, at least as a general matter, when it contends that it is not always appropriate for a court to be swayed on the fourth factor by the effects on potential licensing revenues. Only an impact on potential licensing revenues for traditional, reasonable, or likely to be developed markets should be legally cognizable when evaluating a secondary use's “effect upon the potential market for or value of the copyrighted work.”

Though the publishers still have not established a conventional market for the direct sale and distribution of individual articles, they have created, primarily through the CCC, a workable market for institutional users to obtain licenses for the right to produce their own copies of individual articles via photocopying. The District Court found that many major corporations now subscribe to the CCC systems for photocopying licenses. 802 F.Supp. at 25. Since the Copyright Act explicitly provides that copyright holders have the “exclusive rights” to “reproduce” and “distribute copies” of their works, see 17 U.S.C. § 106(1) & (3), and since there currently exists a viable market for licensing these rights for individual journal articles, it is appropriate that potential licensing revenues for photocopying be considered in a fair use analysis.

Despite Texaco's claims to the contrary, it is not unsound to conclude that the right to seek payment for a particular use tends to become legally cognizable under the fourth fair use factor when the means for paying for such a use is made easier. This notion is not inherently troubling: it is sensible that a particular unauthorized use should be considered “more fair” when there is no ready market or means to pay for the use, while such an unauthorized use should be considered “less fair” when there is a ready market or means to pay for the use. The vice of circular reasoning arises only if the availability of payment is conclusive against fair use. Whatever the situation may have been previously, before the development of a market for institutional users to obtain licenses to photocopy articles, see *899 Williams & Wilkins, 487 F.2d at 1357-59, it is now appropriate to consider the loss of licensing revenues in evaluating “the effect of the use upon the potential market for or value of” journal articles. It is especially appropriate to do so with respect to copying of articles from Catalysis, a publication as to which a photocopying license is now available. We do not decide how the fair use balance would be resolved if a photocopying license for Catalysis articles were not currently available.

In two ways, Congress has impliedly suggested that the law should recognize licensing fees for photocopying as part of the “potential market for or value of” journal articles. First, section 108 of the Copyright Act narrowly circumscribes the conditions under which libraries are permitted to make copies of copyrighted works. See 17 U.S.C. § 108. Though this section states that it does not in any way affect the right of fair use, see id. § 108(f)(4), the very fact that Congress restricted the rights of libraries to make copies implicitly suggests that Congress views journal publishers as possessing the right to restrict photocopying, or at least the right to demand a licensing royalty from nonpublic institutions that engage in photocopying. Second, Congress apparently prompted the development of CCC by suggesting that an efficient mechanism be established to license photocopying, see S.Rep. No. 983, 93d Cong., 2d Sess. 122 (1974); S.Rep. No. 473, 94th Cong., 1st Sess. 70-71 (1975); H.R.Rep. No. 83, 90th Cong., 1st Sess. 33 (1968). It is difficult to understand why Congress would recommend establishing such a mechanism if it did not believe that fees for photocopying should be legally recognized as part of the potential market for journal articles.

Primarily because of lost licensing revenue, and to a minor extent because of lost subscription revenue, we agree with the District Court that “the publishers have demonstrated a substantial harm to the value of their copyrights through [Texaco's] copying,” 802 F.Supp. at 21, and thus conclude that the fourth statutory factor favors the publishers.

E. Aggregate Assessment

[10] We conclude that three of the four statutory factors, including the important first and fourth factors, favor the publishers. We recognize that the statutory factors provide a nonexclusive guide to analysis, see Harper & Row, 471 U.S. at 560, 105 S.Ct. at 2230, but to whatever extent more generalized equitable considerations are relevant, we are in agreement with the District Court's analysis of them. See 802 F.Supp. at 21-27. We therefore agree with the District Court's conclusion that Texaco's photocopying of eight particular articles from the Journal of Catalysis was not fair use.

Though we recognize the force of many observations made in Judge Jacobs's dissenting opinion, we are not dissuaded by his dire predictions that our ruling in this case “has ended fair-use photocopying with respect to a large population of journals,” 37 F.3d at 906, or, to the extent that the transactional licensing scheme is used, “would seem to require that an intellectual property lawyer be posted at each copy machine,” id. at 905. Our ruling is confined to the archival photocopying revealed by the record-the precise copying that the parties stipulated should be the basis for the District Court's decision now on appeal and for which licenses are in fact available. And the claim that lawyers need to be stationed at copy machines is belied by the ease with which music royalties have been collected and distributed for performances at thousands of cabarets, without the attendance of intellectual property lawyers in any capacity other than as customers. If Texaco wants to continue the precise copying we hold not to be a fair use, it can either use the licensing schemes now existing or some variant of them, or, if all else fails, purchase one more subscription for each of its researchers who wish to keep issues of Catalysis on the office shelf.

Conclusion

The order of the District Court is affirmed.FN19

FN19. Though neither the limited trial nor this appeal requires consideration of the publishers' remedy if infringement is ultimately found, we note that the context of this dispute appears to make ill-advised an injunction, which, in any event, has not been sought. If the dispute is not now settled, this appears to be an appropriate case for exploration of the possibility of a court-imposed compulsory license. See Campbell, 510 U.S. at ---- n. 10, 114 S.Ct. at 1171 n. 10; 3 Nimmer on Copyright § 13.05[E][4][e], at 13-241 to 13-242.

*900 JACOBS, Circuit Judge, dissenting:

The stipulated facts crisply present the fair use issues that govern the photocopying of entire journal articles for a scientist's own use, either in the laboratory or as part of a personal file assisting that scientist's particular inquiries. I agree with much in the majority's admirable review of the facts and the law. Specifically, I agree that, of the four nonexclusive considerations bearing on fair use enumerated in section 107, the second factor (the nature of the copyrighted work) tends to support a conclusion of fair use, and the third factor (the ratio of the copied portion to the whole copyrighted work) militates against it. I respectfully dissent, however, in respect of the first and fourth factors. As to the first factor: the purpose and character of Dr. Chickering's use is integral to transformative and productive ends of scientific research. As to the fourth factor: the adverse effect of Dr. Chickering's use upon the potential market for the work, or upon its value, is illusory. For these reasons, and in light of certain equitable considerations and the overarching purpose of the copyright laws, I conclude that Dr. Chickering's photocopying of the Catalysis articles was fair use.

A. Purpose and Character of the Use

The critical facts adduced by the majority are that Dr. Chickering is a chemical engineer employed at a corporate research facility who keeps abreast of developments in his field by reviewing specialized scientific and technical journals, and who photocopies individual journal articles in the belief that doing so will facilitate his current or future professional research. 37 F.3d at 884. I agree with the majority that the immediate goal of the photocopying was “to facilitate Chickering's research in the sciences, an objective that might well serve a broader public purpose.” 37 F.3d at 890-91. The photocopying was therefore integral to ongoing research by a scientist. In my view, all of the statutory factors organize themselves around this fact. The four factors listed in section 107 (and reviewed one by one in the majority opinion) are considerations that bear upon whether a particular use is fair; but those factors are informed by a preamble sentence in section 107 that recites in pertinent part that “the fair use of a copyrighted work, including such use by reproduction in copies ... for purposes such as ... scholarship, or research, is not an infringement of copyright.”

“[T]here is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described in section 107.” Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir.1991). Much of our fair use case law has been generated by the use of quotation in biographies, a practice that fits “ ‘comfortably within’ the[ ] statutory categories ‘of uses illustrative of uses that can be fair.’ ” New Era Publications Int'l, ApS v. Carol Pub. Group (New Era II), 904 F.2d 152, 156 (2d Cir.) (quoting Salinger v. Random House, Inc., 811 F.2d 90, 96 (2d Cir.), cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987)), cert. denied, 498 U.S. 921, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990)). The photocopying of journal articles as part of ongoing scientific research fits just as squarely within the scope of these illustrative fair uses. This court has stated on several occasions: “ ‘[I]f a book falls into one of these categories [i.e., criticism, scholarship or research], assessment of the first fair use factor should be at an end....’ ” Wright, 953 F.2d at 736 (quoting New Era II, 904 F.2d at 156 (quoting New Era Publications Int'l, ApS v. Henry Holt & Co., 884 F.2d 659, 661 (2d Cir.1989) (Miner, J., concurring in denial of rehearing in banc))). This is so “even though, as will often be the case,” the copyist “ ‘anticipates profits.’ ” Wright, 953 F.2d at 736-37 (quoting New Era II, 904 F.2d at 156 (quoting Salinger, 811 F.2d at 96)).

The majority recognizes that photocopying puts the articles into a “a useful format,” 37 F.3d at 891, for use in a laboratory, where the bound volume or whole journal would be cumbersome and subject to damage, and that “these purposes might suffice to tilt the first *901 fair use factor in favor of Texaco if these purposes were dominant.” 37 F.3d at 887. This view modifies the district court's conclusion that fair use might allow the photocopying of whole articles for use in the laboratory “if the original were copied onto plastic paper so that it could be used in a wet environment, onto metal so that it would resist extreme heat, onto durable archival paper to prevent deterioration, or onto microfilm to conserve space....” American Geophysical Union v. Texaco Inc. 802 F.Supp. 1, 14 (1992). The majority notes, however, that Dr. Chickering “did not even have occasion to use five of the photocopied articles at all,” 37 F.3d at 884, and emphasizes that Dr. Chickering's photocopying was done to assemble a personal file used, in Dr. Chickering's phrase, for “future retrieval and reference.” 37 F.3d at 887. The majority calls this a “predominant[ly] archival purpose,” 37 F.3d at 892, and therefore not in the nature of research. In my view, the research function is far broader than the majority opinion and the district court opinion contemplate.

Replication of laboratory experiments is of course a form of scientific research, but it is not the whole or main part of it. Often, a researcher needs to know what others have thought and done in order to steer clear of repetition and dead ends, to evaluate theories and hypotheses for possible theoretical development or commercial application, to give credit to others, and much else. None of this requires a scientist to enter a laboratory. In any event, to describe Dr. Chickering's file as “archival,” as the majority does, is a misnomer: an archive is ordinarily a bulk of documents accumulated by a bureaucratic process and serving as a resource for public or institutional reference. By contrast, Dr. Chickering's personal file contains articles available for reference to assist the memory, curiosity and ongoing inquiries of a single researcher. As such, it is part of a transformative process of scientific research that has a long history.

The majority concludes that the photocopying was “done for the primary purpose of providing Chickering with his own personal copy of each article,” dismissively rejecting (in a footnote) Texaco's argument that the true, and fundamental, purpose for the photocopying was research:

Though Texaco claims that its copying is for “research” as that term is used in the preamble of section 107, this characterization might somewhat overstate the matter. Chickering has not used portions of articles from Catalysis in his own published piece of research, nor has he had to duplicate some portion of copyrighted material directly in the course of conducting an experiment or investigation. Rather, entire articles were copied as an intermediate step that might abet Chickering's research.

37 F.3d at 888 n. 7. In my view, it is no overstatement to call this process research. I have difficulty thinking of anything else to call it.

The scientific method, properly conceived, is much more than a system of repeated laboratory experimentation. Rather, it is a dynamic process of “planned co-operation of scientists, each of whom uses and continues the investigations of his predecessors....” Edgar Zilsel, “The Sociological Roots of Science,” in Hugh F. Kearney, ed. Origins of the Scientific Revolution, 97 (1968). The scientific journal is an essential tool in this incremental, ongoing, transformative process. The physicist Peter L. Kapitza has noted the central role that journals play in it:

[T]he fundamental factor determining the collective work of scientists is the organization of information exchange. The more effectively this is carried out, the greater its scale and the more intensively science develops. The most effective method of scientific information up to date [sic] appears to be its dissemination through periodicals, since one can most widely and quickly communicate the scientific achievements in this way to a large number of interested scientists.

Peter L. Kapitza, Experiment, Theory, Practice, 173 (1980). Today there are some 200,000 scientific journals published worldwide. Id. at 174.

A use that is reasonable and customary is likely to be a fair one. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 550, 105 S.Ct. 2218, 2225, 85 L.Ed.2d 588 (1985) (“the fair use doctrine *902 was predicated on the author's implied consent to ‘reasonable and customary’ use”). The district court, the majority and I start from the same place in assessing whether Dr. Chickering's photocopying is a reasonable and customary use of the material: making single photocopies for research and scholarly purposes has been considered both reasonable and customary for as long as photocopying technology has been in existence. See Williams & Wilkins Co. v. United States, 203 Ct.Cl. 74, 487 F.2d 1345, 1355-56 (1973), aff'd by an equally divided court, 420 U.S. 376, 95 S.Ct. 1344, 43 L.Ed.2d 264 (1976). The majority quotes the district court's short answer to this important insight: “To the extent the copying practice was ‘reasonable’ in 1973 [when Williams v. Wilkins was decided], it has ceased to be ‘reasonable’ as the reasons that justified it before [photocopying licensing] have ceased to exist.” 802 F.Supp. at 25. I do not agree at all that a reasonable and customary use becomes unfair when the copyright holder develops a way to exact an additional price for the same product. Moreover, I view the advent of the CCC as an event that bears analytically upon the distinct question of whether Dr. Chickering's use supersedes the original (the fourth factor). I therefore reach an issue-reasonable and customary use-not explored by the district court or by the majority.

Consider what Dr. Chickering actually does with scientific journals. As a research scientist, he routinely sifts through the latest research done by his peers, much of which is printed in journals such as Catalysis. He determines which articles potentially assist his specific trains of thought and lines of inquiry, and he photocopies them. Relative to the volume of articles in each issue, his photocopying is insubstantial. He then files the articles for possible future use or study. As the majority observes, “[b]efore modern photocopying, Chickering probably would have converted the original article into a more serviceable form by taking notes, whether cursory or extended; today he can do so with a photocopying machine.” 37 F.3d at 891-92. The majority's footnote 10, appended to this passage, questions whether or not a scholar's handwritten copy of a full work is “necessarily” a fair use. As the majority adds, however, Williams & Wilkins says it is:

[I]t is almost unanimously accepted that a scholar can make a handwritten copy of an entire copyrighted article for his own use, and in the era before photoduplication it was not uncommon (and not seriously questioned) that he could have his secretary make a typed copy for his personal use and files. These customary facts of copyright-life are among our givens.

Williams & Wilkins, 487 F.2d at 1350. What Dr. Chickering does is simply a technologically assisted form of note-taking, such as has long been customary among researchers: the photocopy machine saves Dr. Chickering the toil and time of recording notes on index cards or in notebooks, and improves the accuracy and range of the data, charts, and formulas he can extract from the passing stream of information; but the note-taking purpose remains the same.

The anthropologist Bruno Latour spent two years studying scientists at the Salk Institute for Biological Sciences. During the course of his study, he conducted anthropological observations of a neurobiologist working on an article for a journal. This scientist's desk was littered with copies of journal articles authored by other scientists:

Xeroxed copies of articles, with words underlined and exclamation marks in the margins, are everywhere. Drafts of articles in preparation intermingle with diagrams scribbled on scrap paper, letters from colleagues and reams of paper spewed out by the computer in the next room; pages cut from articles are glued to other pages; excerpts from draft paragraphs change hands between colleagues while more advanced drafts pass from office to office being altered constantly, retyped, recorrected, and eventually crushed into the format of this or that journal.

Bruno Latour and Steve Woolgar, Laboratory Life: The Social Construction of Scientific Facts, 49 (1979). One essential step toward this drafting process is the accumulation over time of the journal articles that reflect the current state of knowledge that the journal author seeks to advance. Latour *903 confirms that the photocopying of journal articles, and the use of them, is customary and integral to the creative process of science.

The majority emphasizes that, as it happened, Dr. Chickering did not “use” the photocopied articles because, in five out of eight instances, he filed them away. There is nothing odd about making notes one does not immediately use, or that one may never consult again. Photocopies, which to Dr. Chickering are the functional counterpart of notes, are used (or not, as the case may be) in the same way. Dr. Chickering's filing away of these photocopies does not subvert his claim of fair use. Like the majority, I am convinced that his deposit of the photocopied articles in his personal file, pending his personal use of them in the future, is an important fact bearing upon fair use; but the dominant significance of that fact, under the first factor of section 107, is that (whether he “uses” them or files them) the articles are not re-sold or retailed in any way. If the copies were sold by Dr. Chickering, that would be a telling-possibly determinative-fact. What Dr. Chickering has done reinforces the view that his photocopying was not commercial in purpose or character.

The majority recognizes that, while the photocopying of the Catalysis articles was “not technically a transformative use,” there is “significant independent value” in converting the articles to a photocopied format. 37 F.3d at 891. Nevertheless, the majority concludes that this transformative process does not militate in favor of fair use because of the “predominant archival purpose”. In my view, however, the “archival purpose” is just a step in the process of taking and keeping notes, which should ordinarily entail no transformation of the material. Good notes, being as precise and copious as time allows, do not aspire to transform the original text, but are useful in research only to the extent that they faithfully record the original. Accordingly, I find the nature and purpose of the use to be fully transformative, and therefore find that this factor weighs clearly in favor of Texaco.

B. Effect Upon Potential Market or Value

In gauging the effect of Dr. Chickering's photocopying on the potential market or value of the copyrighted work, the majority properly considers two separate means of marketing: (1) journal subscriptions and sales, and (2) licensing revenues and fees.

(1) Subscriptions and sales. The majority makes clear that, considered solely in terms of journal subscriptions and sales, this factor is a toss-up that may tip in the publisher's favor, but only after teetering for a while: “At best, the loss of a few journal subscriptions tips the fourth factor only slightly toward the publishers because evidence of such loss is weak evidence that the copied articles themselves have lost any value.” 37 F.3d at 896-97. The majority pointedly observes that no evidence is offered that the photocopying at issue here, “if widespread, would impair the marketability of journals....” 37 F.3d at 896. Since Dr. Chickering's use maximizes the utility of a Catalysis subscription for the only audience it is ever likely to capture, I do not consider that the failure of proof in this respect is an oversight by the publishers or their able counsel.

As to the individual articles photocopied by Dr. Chickering, I agree with the majority-as I read the opinion-that one cannot put a finger on any loss suffered by the publishers in the value of the individual articles or in the traditional market for subscriptions and back issues. The district court found that Texaco would not purchase back-issues or back volumes in the numbers needed to supply individual copies of articles to individual scientists.

Finally, the circulation of Catalysis among a number of Texaco scientists can come as no surprise to the publisher of Catalysis, which charges double the normal subscription rate to institutional subscribers. The publisher must therefore assume that, unless they are reading Catalysis for pleasure or committing it to memory, the scientists will extract what they need and arrange to copy it for personal use before passing along the institutional copies.

*904 (2) Licensing Revenues and Fees. The majority states that “[o]nly an impact on potential licensing revenues for traditional, reasonable, or likely developed markets should be legally cognizable when evaluating a secondary use's ‘effect upon the potential market for or value of the copyrighted work.’ ” 37 F.3d at 897-98. That statement of the law, with which I fully agree, supports the conclusion that the availability of a CCC license has little to do with fair use. The Supreme Court, in Harper & Row, held that this fourth factor addresses “ ‘use that supplants any part of the normal market for a copyrighted work....’ ” 471 U.S. at 568, 105 S.Ct. at 2235 (quoting S.Rep. No. 473, 94th Cong., 1st Sess. 65 (1975)). The Court has more recently declared, in considering the fair use ramifications of parody, that “[t]he market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, ----, 114 S.Ct. 1164, 1178, 127 L.Ed.2d 500 (1994). One factor deemed to make parody eligible for treatment as a fair use is that copyright holders do not ordinarily license artistic criticisms of their own works. However, even if authors were to seek to license these secondary works, it is not clear that they would succeed, because the Court found the secondary works to be a fair use: “when ... the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred.” Id. at ----, 114 S.Ct. at 1177.

In this case the only harm to a market is to the supposed market in photocopy licenses. The CCC scheme is neither traditional nor reasonable; and its development into a real market is subject to substantial impediments. There is a circularity to the problem: the market will not crystallize unless courts reject the fair use argument that Texaco presents; but, under the statutory test, we cannot declare a use to be an infringement unless (assuming other factors also weigh in favor of the secondary user) there is a market to be harmed. At present, only a fraction of journal publishers have sought to exact these fees. I would hold that this fourth factor decisively weighs in favor of Texaco, because there is no normal market in photocopy licenses, and no real consensus among publishers that there ought to be one.

The majority holds that photocopying journal articles without a license is an infringement. Yet it is stipulated that (a) institutions such as Texaco subscribe to numerous journals, only 30 percent of which are covered by a CCC license; (b) not all publications of each CCC member are covered by the CCC licenses; and (c) not all the articles in publications covered by the CCC are copyrighted. It follows that no CCC license can assure a scientist that photocopying any given article is legal. I will separately consider the Transactional Reporting Service (the per-copy transactional license) and the Annual Authorization Service (the blanket license). I confine my discussion here to scientists, although I note that the record reflects CCC's intention to pursue licensing arrangements in other sectors as well.

Under a transactional license, the user must undertake copyright research every time an article is photocopied. First, one must consult a directory to determine whether or not the publisher of the journal is a member of the CCC. If it is, one must ascertain whether the particular publication is one that is covered by the CCC arrangement, because not all publications of participating publishers are covered. Then one must somehow determine whether the actual article is one in which the publisher actually holds a copyright, since there are many articles that, for such reasons as government sponsorship of the research, are not subject to copyright. The production director of plaintiff Springer-Verlag testified at trial that it is almost impossible to tell which articles might be covered by a copyright. Since even an expert has difficulty making such a determination, the transactional scheme would seem to require that an intellectual property lawyer be posted at each copy machine. Finally, once it is determined that the specific article is covered, the copyist will need to record in a log the date, name of publication, publisher, title and author of article, and number of pages copied.

*905 It may be easier to hand copy the material. The transactions costs alone would compel users to purchase a blanket license. However, if (as the majority holds) three of the fair use factors tip in favor of the publishers even without considering the market for license fees, a blanket license is no safe harbor. Individual publishers remain free to stand upon the rights conferred in this Court's opinion, and negotiate separate licenses with separate terms, or sell offprints and refuse any license at all. Unless the publisher's licensing rights are made to depend upon whether or not the publisher participates in the CCC, we have the beginnings of a total market failure: with many thousands of scientific publications in circulation, a user cannot negotiate licensing fees individually with numerous publishers-unless it does nothing else. For many publications, licenses are simply not available. As to those, Dr. Chickering has the choice of hand copying, typescript, or the photocopying of selected pages only.

The blanket license fares no better. The CCC license cannot confer absolution for the photocopying of articles published by non-members of the CCC. Nor can the participating publishers properly collect fees for the photocopying of articles for which they do not hold the copyright. The district court found that there is currently a viable market for licensing, chiefly for the following reasons:

(a) “[M]any of the largest corporations involved in research have become licensees under a CCC Annual Authorization.” 802 F.Supp. at 24. However, until this case is decided, companies have had little choice but to become licensees or defendants.

(b) The CCC has developed an Annual Authorization arrangement that “permits free copying without any administrative burden of record-keeping or reporting.” Id.. That system works, however, only if one ignores the rights of publishers who are non-members of the CCC.

(c) “[P]ublishers and individual users have ... developed private annual licensing agreements. For example, AT & T Bell Labs, in addition to its membership in the CCC, has over 200 agreements with publishers covering photocopying with respect to some 350 journals that are not registered with the CCC. Furthermore, publishers have extended photocopying licenses to document delivery services.” Id. at 24-25.

These developments “(and the other parallel steps taken by the owner-user communities)”, satisfy the district court that “[r]easonably priced, administratively tolerable licensing procedures are available....” Id. at 25.

It is hard to escape the conclusion that the existence of the CCC-or the perception that the CCC and other schemes for collecting license fees are or may become “administratively tolerable”-is the chief support for the idea that photocopying scholarly articles is unfair in the first place. The majority finds it “sensible” that a use “should be considered ‘less fair’ when there is a ready market or means to pay for the use.” 37 F.3d at 898. That view is sensible only to a point. There is no technological or commercial impediment to imposing a fee for use of a work in a parody, or for the quotation of a paragraph in a review or biography. Many publishers could probably unite to fund a bureaucracy that would collect such fees. The majority is sensitive to this problem, but concludes that “[t]he vice of circular reasoning arises only if the availability of payment is conclusive against fair use.” 37 F.3d at 898. That vice is not avoided here. The majority expressly declines to “decide how the fair use balance would be resolved if a photocopying license for Catalysis articles were not currently available.” 37 F.3d at 899. Moreover, the “important” fourth factor, 37 F.3d at 899, tips in favor of the publishers (according to the majority) “[p]rimarily because of lost licensing revenue” and only “to a minor extent” on the basis of journal sales and subscriptions. 37 F.3d at 899.

I do not agree with the majority that the publishers “have created, primarily through the CCC, a workable market for institutional users to obtain licenses for the right to produce their own copies of individual articles via photocopying.” 37 F.3d at 898. By the CCC's admission, in its correspondence with the Antitrust Division of the Justice Department, “the mechanism for the negotiation of a photocopy license fee is often not even in *906 place.... Nor can it be said that CCC's current licensing programs have adequately met the market's needs.” FN1 There is nothing workable, and there is no market.

FN1. Letter from R. Bruce Rich, Weil, Gotshal & Manges (as counsel to CCC) to Thomas H. Liddle, Antitrust Division, United States Department of Justice (February 2, 1992) (filed as part of supplementation of record, pursuant to motion granted on October 12, 1993).

Even if the CCC is or becomes workable, the holder of a CCC blanket license is not thereby privileged to photocopy journal articles published by non-members of the CCC, as to which articles there is no “ready market or means to pay for the fair use”. See 37 F.3d at 898. This Court has ended fair-use photocopying with respect to a large population of journals, but the CCC mechanism allows fair-use photocopying only of some of them. The facts before us demonstrate that the holder of a blanket license must still deal separately with CCC-member Bell Labs as to certain hundreds of its publications. With respect to the journals for which the publishers do not market licenses, users will either (a) research which publications are in this category and copy them longhand, in typescript or in partial photocopy, or (b) ignore our fair-use doctrine as unworkable. Neither option serves scientific inquiry or respect for copyright. In any event, it seems to me that when a journal is used in a customary way-a way that the authors uniformly intend and wish-the user should not be subjected on a day to day basis to burdens that cannot be satisfied without a team of intellectual property lawyers and researchers.

The fourth factor tips decidedly in Texaco's favor because there is no appreciable impairment of the publishing revenue from journal subscriptions and sales; because the publisher captures additional revenue from institutional users by charging a double subscription price (and can presumably charge any price the users will pay); and because the market for licensing is cumbersome and unrealized.

C. Equitable Considerations

The fair use doctrine is an “equitable rule of reason.” Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 448 & n. 31, 104 S.Ct. 774, 792 & n. 31, 78 L.Ed.2d 574 (1984). Applying the doctrine requires a case-by-case review that includes the four factors listed in section 107; but the statutory list is not exhaustive or exclusive. See Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2225. The purpose of this equitable rule is “ ‘to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’ ” Harper & Row, 471 U.S. at 550 n. 3, 105 S.Ct. at 2225 n. 3 (quoting Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir.1980)).

“ ‘[T]he author's consent to a reasonable use of his copyrighted works ha[s] always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus ... frustrate the very ends sought to be attained.’ ” Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2225 (quoting H. Ball, Law of Copyright and Literary Property 260 (1944)). “[T]he fair use doctrine [is] predicated on the author's implied consent to ‘reasonable and customary’ use when he release[s] his work for public consumption....” Id. at 550, 105 S.Ct. at 2225. All facts bearing upon the terms of that consent are germane to this analysis.

The single fact that evidences the fair use expectation of the people whose creativity Congress seeks to stimulate, is that they give away their copyright in order to promote their work, their ideas and their reputations. The district court found that the “publishers do not pay authors money to publish their articles....” American Geophysical, 802 F.Supp. at 26. The majority finds, “[n]o form of money payment is ever provided to authors whose works are published.” 37 F.3d at 883-84; see also id. at 896 (“[P]ublishers do not make any payment to authors for the right to publish their articles or to acquire their copyrights....”).

This is not to say, however, that the authors derive no benefit from the use of their *907 works. To the contrary: “[T]he authors derive benefit from the publication of their works far more important than any small royalty the traffic might bear.” American Geophysical, 802 F.Supp. at 26. The authors of scientific articles work and publish in order to gain distinction, appointment, resources, tenure. But they seek and derive absolutely no direct cash benefit from publication. It seems to me that this fact is of great importance: it means that, so long as the copyright system assures sufficient revenue to print and distribute scientific journals, the level of copyright revenue is not among the incentives that drive the authors to the creative acts that the copyright laws are intended to foster.

As to this issue, the majority adopts the district court's view that it is “irrelevant” because the authors have assigned the copyright to publishers who risk capital to achieve the wide dissemination of the articles that the authors want and need. 802 F.Supp. at 27. The district court greatly overstates the case in concluding that “[o]nce an author has assigned her copyright, her approval or disapproval of photocopying is of no further relevance.” Id. As a commercial proposition, that is unassailable. But equitable considerations under the copyright law justify an inquiry into the incentives for creating the work-here, the scientific journal articles. See Harper & Row, 471 U.S. at 550 n. 3, 105 S.Ct. at 2225 n. 3 (equitable rule of reason permits inquiry into whether “rigid application of the copyright statute ... would stifle the very creativity which that law is designed to foster.”). “ ‘The immediate effect of our copyright law is to secure a fair return for an ‘author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.’ ” Fogerty v. Fantasy, Inc., 510 U.S. 517, ----, 114 S.Ct. 1023, 1029, 127 L.Ed.2d 455 (1994) (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975)). To that end, we are reminded that:

“The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”

Id. 510 U.S. at ----, 114 S.Ct. at 1030 (quoting Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-50, 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991)).

The CCC's licensing fees unquestionably benefit the copyright holders, but no argument has been made that this additional revenue will fuel scientific creativity. According to Kapitza, “[e]very 10-15 years, the number of journals doubles and it has now reached the imposing number of 200,000.” Experiment, Theory, Practice at 174. This proliferation of journals has been accomplished through sales and subscriptions. Clearly, the incentives currently in place for journal publishing assure a fair return, or else we would not see the exponential growth in scientific journals reported by Kapitza. Under the current system, publishers sell journals and subscriptions. They can, and do, charge institutional users more money, and are free to charge what they like.

Since the copyright laws seek to stimulate creativity, we should consider the incentives chiefly from the perspective of the authors and scientists. It has been recognized by this Court that in the scientific community, “what is valuable [to the authors] is recognition because it so often influences professional advancement and academic tenure.” Weissmann v. Freeman, 868 F.2d 1313, 1324 (2d Cir.), cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989). From their point of view, then, what is truly important is the wide dissemination of their works to their colleagues.

The incentives for scientific publication have been in place since the project of science began to be perceived as a cooperative venture more than three centuries ago. See E. Zilsel, “The Sociological Roots of Science,” in Hugh F. Kearney, ed., Origins of the Scientific Revolution, at 97 (1968) (“In his Nova Atlantis Bacon depicted an ideal state in which technological and scientific progress is reached by planned co-operation of scientists, each of whom uses and continues the investigations of his predecessors and fellow workers.”). FN2 Scientists communicate through *908 journals, and use them to stake claims to new ideas, disseminate their ideas, and advance their careers and reputations. These “authors have a far greater interest in the wide dissemination of their work than in royalties....” American Geophysical, 802 F.Supp. at 27. That, evidently, is why they do not seek or expect royalties, and that is why licensing fees cannot be expected to increase or diminish their creativity or their drive to publish. The majority's ruling on fair use will add to the cost, time and effort that scientists spend to scan, keep and use journal articles, and will therefore tend to diminish the only reward that the authors seek from publication.

FN2. The Royal Society of London, founded in 1662, was the first to give institutional validity to the Baconian principles of verified experimentation and public reporting of theories and experimental results. See William Eamon, “From the Secrets of Nature to Public Knowledge,” reprinted in David C. Lindberg and Robert S. Westman, eds. Reappraisals of the Scientific Revolution, at 349-57 (1991). The “ideal of cooperative research” allowed scientists to approach their work more methodically, and the project of science evolved into the system of experimentation, reporting, verification, and modification that is the scientific method. Id. The first scientific journal, Philosophical Transactions, was published in London in the 1660s. A. Rupert Hall, The Revolution in Science, 1500-1700, 230-31 (1983). The publisher, Henry Oldenburg, “created the scientific journal and the scientific paper as a means of communication,” providing a vehicle for international communication between scientists about the results of their experiments. Id. at 231. In Philosophical Transactions, “[f]requent controversies over moot theoretical issues directed experimental interest to the testing of the conflicting theories; new hypotheses were broadcast; recent scientific works were critically reviewed; and plans for initiating research along certain lines were made public.” Robert K. Merton, Science, Technology & Society in Seventeenth Century England, 224 (1978).

Nowhere in the case law is there support for the proposition that the monopoly granted by copyright is designed to ensure the holder a maximum economic return; rather, the law's purpose is to balance competing interests-assuring the author a fair return, while permitting creative uses that build upon the author's work. See, e.g., Fogerty, 510 U.S. at ----, 114 S.Ct. at 1029 (“While it is true that one of the goals of the Copyright Act is to discourage infringement, it is by no means the only goal of that Act.... ‘The immediate effect of our copyright law is to secure a fair return for an ‘author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity....’ ”) (quoting Twentieth Century Music, 422 U.S. at 156, 95 S.Ct. at 2044 (1975)); Harper & Row, 471 U.S. at 546, 105 S.Ct. at 2223 (“The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors.”). More fundamentally, Dr. Chickering's photocopying is part of a creative enterprise that Dr. Chickering conducts in common with the authors of the articles. For that reason, and the others stated in this dissent, I conclude that Dr. Chickering's photocopying of isolated journal articles to assist his own research inquiries is fair use.

Dec. 23, 1994

PER CURIAM:

The petition for rehearing is denied. The opinion filed October 28, 1994, is amended in the following respects:

[Editor's Note: Amendments incorporated for purpose of publication.]

Judge Jacobs votes to grant the petition for rehearing, but agrees with the language changes made by this amending opinion.

37 F.3d 881, 63 USLW 2295, 1994 Copr.L.Dec. P 27,312, 32 U.S.P.Q.2d 1545

United States Court of Appeals,

Ninth Circuit.

Patricia HART, Plaintiff-Appellant,

v.

Larry G. MASSANARI, Acting Commissioner of Social Security Administration, FN* Defendant-Appellee.

FN* Larry G. Massanari is substituted for his predecessor, Kenneth Apfel, as Acting Commissioner of the Social Security Administration. Fed. R.App. P. 43(c)(2).

No. 99-56472

Sept. 24, 2001.

Submitted March 5, 2001 FN**

FN** The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).

Filed Sept. 24, 2001

Action was brought against Acting Commissioner of Social Security Administration (SSA). The United States District Court for the Central District of California, Arthur Nakazato, United States Magistrate Judge, found for Acting Commissioner, and appeal was taken. After ordering appellant's counsel to show cause why he should not be disciplined for citing unpublished opinion in his opening brief, the Court of Appeals, Kozinski, Circuit Judge, held that: (1) Ninth Circuit rule generally prohibiting citation to unpublished dispositions and orders did not violate constitutional article governing judiciary, but (2) counsel's violation of such rule was not willful so as to warrant sanctions.

Order to show cause discharged.

The Ninth Circuit's rules providing for sanctions are not meant to punish attorneys who, in good faith, seek to test a rule's constitutionality.

*1158 Lawrence D. Rohlfing, Esq., Rohlfing Law Firm, Santa Fe Springs, California, for the plaintiff-appellant.

Kaladharan M.G. Nayar, Office of the Regional Attorney, Social Security Administration, San Francisco, California, for the defendant-appellant.

Appeal from the United States District Court for the Central District of California Arthur Nakazato, Magistrate Judge, Presiding. D.C. No. CV-97-02082-TJH(ANx).

Before: KOZINSKI and TALLMAN, Circuit Judges, and ZAPATA, District Judge.FN***

FN*** The Honorable Frank Zapata, United States District Judge for the District of Arizona, sitting by designation.

KOZINSKI, Circuit Judge.

Appellant's opening brief cites Rice v. Chater, No. 95-35604, 1996 WL 583605 (9th Cir. Oct.9, 1996). Rice is an unpublished*1159 disposition, not reported in the Federal Reporter except as a one-line entry in a long table of cases. See Decisions Without Published Opinions, 98 F.3d 1345, 1346 tbl. (9th Cir.1996). The full text of the disposition can be obtained from our clerk's office, and is available on Westlaw® and LEXIS®. However, it is marked with the following notice: “This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.” Our local rules are to the same effect: “Unpublished dispositions and orders of this Court are not binding precedent ... [and generally] may not be cited to or by the courts of this circuit ....” 9th Cir. R. 36-3.

We ordered counsel to show cause as to why he should not be disciplined for violating Ninth Circuit Rule 36-3. Counsel responds by arguing that Rule 36-3 may be unconstitutional. He relies on the Eighth Circuit's opinion in Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir.2000). Anastasoff, while vacated, continues to have persuasive force. See, e.g., Williams v. Dallas Area Rapid Transit, 256 F.3d 260 (5th Cir.2001) (Smith, J., dissenting from denial of reh'g en banc).FN1 It may seduce members of our bar into violating our Rule 36-3 under the mistaken impression that it is unconstitutional. We write to lay these speculations to rest.

FN1. See also Coleen M. Barger, Anastasoff, Unpublished Opinions, and “No-Citation” Rules, 3 J.App. Prac. & Process 169, 169-70 (2001). Barger notes that “[t]he chief judge of the District of Massachusetts seems determined to force the issue in the First Circuit,” citing 1st Cir. R. 36(b)(2)(F) (“Unpublished opinions may be cited only in related cases ....”), “as he has begun to routinely insert the following footnote in his opinions whenever he cites unpublished opinions to support his reasoning”:For the propriety of citing unpublished decisions, see Anastasoff v. United States, 223 F.3d 898, 899-905 (8th Cir.) (R. Arnold, J.) (holding that unpublished opinions have precedential effect), vacated as moot, No. 99-3917, 2000 WL 1863092 (8th Cir. Dec. 18, 2000); Giese v. Pierce Chem. Co., 43 F.Supp.2d 98, 103 (D.Mass.1999) (relying on unpublished opinions' persuasive authority), and Richard S. Arnold, Unpublished Opinions: A Comment, 1 J.App. Prac. & Process 219 (1999).

See, e.g., Suboh v. City of Revere, 141 F.Supp.2d 124, 144 n. 18 (D.Mass.2001) (Young, C.J.).

I

A. Anastasoff held that Eighth Circuit Rule 28A(i), which provides that unpublished dispositions are not precedential-and hence not binding on future panels of that court FN2-violates Article III of the Constitution. See 223 F.3d at 899. According to Anastasoff, exercise of the “judicial Power” precludes federal courts *1160 from making rulings that are not binding in future cases. Or, to put it differently, federal judges are not merely required to follow the law, they are also required to make law in every case. To do otherwise, Anastasoff argues, would invite judicial tyranny by freeing courts from the doctrine of precedent: “ ‘A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.’ ” Id. at 904 (quoting Joseph Story, Commentaries on the Constitution of the United States § 377 (1833)).FN3

FN2. Our rule operates somewhat differently from that of the Eighth Circuit, though it is in essential respects the same. While Eighth Circuit Rule 28A(i) says that “[u]npublished decisions are not precedent,” we say that unpublished dispositions are “not binding precedent.” Our rule, unlike that of the Eighth Circuit, prohibits citation of an unpublished disposition to any of the courts of our circuit. The Eighth Circuit's rule allows citation in some circumstances, but provides that the authority is persuasive rather than binding. See 8th Cir. R. 28A(i) ( “Parties may ... cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well.”). The difference is not material to the rationale of Anastasoff because both rules free later panels of the court, as well as lower courts within the circuit, to disregard earlier rulings that are designated as nonprecedential.For a comprehensive table of nonpublication and noncitation rules across all circuits and states, see Melissa M. Serfass & Jessie L. Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions, 3 J.App. Prac. & Process 251, 253-85 tbl. 1 (2001).

FN3. In the passage cited by Anastasoff, Justice Story argued only that the judicial decisions of the Supreme Court were “conclusive and binding,” and that inferior courts were not free to disregard the “decisions of the highest tribunal.” He said nothing to suggest that the principle of binding authority constrained the “judicial Power,” as Anastasoff does; rather, he recognized that the decisions of the Supreme Court were binding upon the states because they were the “supreme law of the land.” Story, supra, §§ 376-78.

We believe that Anastasoff overstates the case. Rules that empower courts of appeals to issue nonprecedential decisions do not cut those courts free from all legal rules and precedents; if they did, we might find cause for alarm. But such rules have a much more limited effect: They allow panels of the courts of appeals to determine whether future panels, as well as judges of the inferior courts of the circuit, will be bound by particular rulings. This is hardly the same as turning our back on all precedents, or on the concept of precedent altogether. Rather, it is an effort to deal with precedent in the context of a modern legal system, which has evolved considerably since the early days of common law, and even since the time the Constitution was adopted.

The only constitutional provision on which Anastasoff relies is that portion of Article III that vests the “judicial Power” of the United States in the federal courts. U.S. Const. art. III, § 1, cl. 1. Anastasoff may be the first case in the history of the Republic to hold that the phrase “judicial Power” encompasses a specific command that limits the power of the federal courts. There are, of course, other provisions of Article III that have received judicial enforcement, such as the requirement that the courts rule only in “Cases” or “Controversies,” see, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and that the pay of federal judges not be diminished during their good behavior. See, e.g., United States v. Hatter, 532 U.S. 557, ---- - ----, 121 S.Ct. 1782, 1790-91, 149 L.Ed.2d 820 (2001). The judicial power clause, by contrast, has never before been thought to encompass a constitutional limitation on how courts conduct their business.

There are many practices that are common or even universal in the federal courts. Some are set by statute, such as the courts' basic organization. See, e.g., 28 U.S.C. § 43 (creating a court of appeals for each circuit); 28 U.S.C. § 127 (dividing Virginia into two judicial districts); 28 U.S.C. § 2101 (setting time for direct appeals to the Supreme Court and for applications to the Supreme Court for writs of certiorari). See generally David McGowan, Judicial Writing and the Ethics of the Judicial Office, 14 Geo. J. Legal Ethics 509, 509-10 (2001). Others are the result of tradition, some dating from the days of the common law, others of more recent origin. Among them are the practices of issuing written opinions that speak for the court rather than for individual judges, adherence to the adversarial (rather than inquisitorial) model of developing cases, limits on the exercise of equitable relief, *1161 hearing appeals with panels of three or more judges and countless others that are so much a part of the way we do business that few would think to question them. While well established, it is unclear that any of these practices have a constitutional foundation; indeed, Hart (no relation so far as we know), in his famous Dialogue, concluded that Congress could abolish the inferior federal courts altogether. See Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L.Rev. 1362, 1363-64 (1953). While the greater power does not always include the lesser, the Dialogue does suggest that much of what the federal courts do could be modified or eliminated without offending the Constitution.

Anastasoff focused on one aspect of the way federal courts do business-the way they issue opinions-and held that they are subject to a constitutional limitation derived from the Framers' conception of what it means to exercise the judicial power. Given that no other aspect of the way courts exercise their power has ever been held subject to this limitation,FN4 we question whether the “judicial Power” clause contains any limitation at all, separate from the specific limitations of Article III and other parts of the Constitution. The more plausible view is that when the federal courts rule on cases or controversies assigned to them by Congress, comply with due process, accord trial by jury where commanded by the Seventh Amendment and generally comply with the specific constitutional commands applicable to judicial proceedings, they have ipso facto exercised the judicial power of the United States. In other words, the term “judicial Power” in Article III is more likely descriptive than prescriptive.FN5

FN4. To be sure, exercise of the judicial power is subject to a number of explicit constraints, such as the requirements of due process, trial by jury, the availability of counsel in criminal cases, the ex post facto clause and the prohibition against bills of attainder-to name just a few.

FN5. Because the matter arises so seldom, there is little authority on this point, but the authority that does exist supports the view that the text of the judicial power clause is merely descriptive. For example, United States v. Ferreira, 54 U.S. (13 How.) 40, 14 L.Ed. 40 (1851), considered whether decisions of district courts as to whether certain Spanish citizens were entitled to compensation pursuant to a treaty between Spain and the United States were an exercise of the judicial power. If the district judges found the claimants entitled to compensation, they were to recommend that the Secretary of the Treasury make such payments, and the latter could (but was not required to) pay the claim. In concluding that such recommendations did not constitute an exercise of the judicial power (and hence were not reviewable by the Supreme Court), the opinion noted the ways in which the procedures for establishing these claims differed from “the ordinary forms of a court of justice”:For there is to be no suit; no parties in the legal acceptance of the term, are to be made-no process to issue; and no one is authorized to appear on behalf of the United States, or to summon witnesses in the case. The proceeding is altogether ex parte; and all that the judge is required to do, is to receive the claim when the party presents it, and to adjust it upon such evidence as he may have before him, or be able himself to obtain. But neither the evidence, nor his award, are to be filed in the court in which he presides, nor recorded there; but he is required to transmit, both the decision and the evidence upon which he decided, to the Secretary of the Treasury; and the claim is to be paid if the Secretary thinks it just and equitable, but not otherwise. It is to be a debt from the United States upon the decision of the Secretary, but not upon that of the judge.

See also Missouri v. Jenkins, 515 U.S. 70, 130-33, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Thomas, J., concurring) (listing various functional limitations on the exercise of the judicial power, including federalism, separation of powers and the prohibition against deciding political questions); Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 815-18, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) (Scalia, J., concurring) (discussing the functional limitation of separation of powers on the exercise of the judicial power).

*1162 If we nevertheless were to accept Anastasoff 's premise that the phrase “judicial Power” contains limitations separate from those contained elsewhere in the Constitution, we should exercise considerable caution in recognizing those limitations, lest we freeze the law into the mold cast in the eighteenth century. The law has changed in many respects since the time of the Framing, some superficial, others quite fundamental. For example, as Professor William Nelson has convincingly demonstrated, colonial juries “usually possessed the power to find both law and fact in the cases in which they sat,” and were not bound to follow the instructions given to them by judges. See William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review 16-17 (2000). Today, of course, we would consider it unfair-probably unconstitutional-to allow juries to make up the law as they go along.

Another example: At the time of the Framing, and for some time thereafter, the practice that prevailed both in the United States and England was for judges of appellate courts to express separate opinions, rather than speak with a single (or at least majority) voice. The practice changed around the turn of the nineteenth century, under the leadership of Chief Justice Marshall. See George L. Haskins & Herbert A. Johnson, Foundations of Power: John Marshall, 1801-15, in 2 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 382-89 (Paul A. Freund ed., 1981).

And yet another example: At the time of the Framing, and for some time thereafter, it was considered entirely appropriate for a judge to participate in the appeal of his own decision; indeed, before the creation of the Circuit Courts of Appeals, appeals from district court decisions were often taken to a panel consisting of a Supreme Court Justice riding circuit, and the district judge from whom the decision was taken. Act of March 2, 1793, ch. 22, § 1, 1 Stat. 333; see also Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3504 (2d ed.1984). Today, of course, it is widely recognized that a judge may not hear the appeal from his own decision. There are doubtless many more such examples.FN6

FN6. The three examples we have given, though apparently disparate, actually bear on the question of what weight was given to precedent at the time of the Framing. In a regime where juries have power to decide the law, the concept of “binding” precedent has a very different, and much more diluted, meaning than in the current regime where jury verdicts are routinely reversed if they are not supported by the evidence in light of the applicable law. Similarly, binding precedent means something different altogether when a court speaks with seven or nine voices than with a single voice. Nine judges speaking separately may well agree on the outcome of a case, but they cannot give the kind of specific guidance as to the conduct of future cases that can be found in a single opinion speaking for the court. Finally, during the time when appeals were conducted by two-judge panels consisting of the circuit justice flanked by the district judge whose ruling was being appealed produced remarkably few-if any-written rulings. The precedential value of rulings from such panels was, for obvious reasons, not particularly valuable guidance in future cases. Anastasoff 's view that the judicial process underwent such fundamental changes, yet the process of producing precedential opinions remained essentially unchanged, strikes us as inherently doubtful. Anastasoff 's historical analysis has been called into question even by academics who generally agree with the result. See, e.g., Polly J. Price, Precedent and Judicial Power After the Founding, 42 B.C. L.Rev. 81, 84, 90-93 (2000); Salem M. Katsh & Alex V. Chachkes, Constitutionality of “No-Citation” Rules, 3 J.App. Prac. & Process 287, 288 & n. 5 (2001).

*1163 One danger of giving constitutional status to practices that existed at common law, but have changed over time, is that it tends to freeze certain aspects of the law into place, even as other aspects change significantly. See note 6 supra. This is a particularly dangerous practice when the constitutional rule in question is not explicitly written into the Constitution, but rather is discovered for the first time in a vague, two-centuries-old provision. The risk that this will allow judges to pick and choose those ancient practices they find salutary as a matter of policy, and give them constitutional status, is manifest. Compare Richard S. Arnold, Unpublished Opinions: A Comment, 1 J.App. Prac. & Process 219 (1999) (suggesting that all opinions be published and given precedential value), with Anastasoff, 223 F.3d 898 (holding that the Eighth Circuit's rule barring citation to unpublished opinions violates Article III). Thus, in order to follow the path forged by Anastasoff, we would have to be convinced that the practice in question was one the Framers considered so integral and well-understood that they did not have to bother stating it, even though they spelled out many other limitations in considerable detail. Specifically, to adopt Anastasoff 's position, we would have to be satisfied that the Framers had a very rigid conception of precedent, namely that all judicial decisions necessarily served as binding authority on later courts.

This is, in fact, a much more rigid view of precedent than we hold today. As we explain below, most decisions of the federal courts are not viewed as binding precedent. No trial court decisions are; almost four-fifths of the merits decisions of courts of appeals are not. See p. 1177 infra. FN7 To be sure, Anastasoff challenges the latter practice. We find it significant, however, that the practice has been in place for a long time, yet no case prior to Anastasoff has challenged its constitutional legitimacy. The overwhelming consensus in the legal community has been that having appellate courts issue nonprecedential decisions is not inconsistent with the exercise of the judicial power.

FN7. Rules limiting the precedential effect of unpublished decisions exist in every federal circuit and all but four states (Connecticut, Delaware, New York and North Dakota). See Serfass & Cranford, note 2 supra, at 260-61 tbl. 1, 273-74 tbl. 1. But see Eaton v. Chahal, 146 Misc.2d 977, 553 N.Y.S.2d 642, 646 (N.Y.Sup.Ct.1990) (“[U]nreported decisions issued by judges of coordinate jurisdiction ... are not binding precedent upon this court....”) The near-universal adoption of the practice illustrates not only that the practice is consistent with the prevailing conception of the judicial power, but also that it reflects sound judicial policy.

To accept Anastasoff 's argument, we would have to conclude that the generation of the Framers had a much stronger view of precedent than we do. In fact, as we explain below, our concept of precedent today is far stricter than that which prevailed at the time of the Framing. The Constitution does not contain an express prohibition against issuing nonprecedential opinions because the Framers would have seen nothing wrong with the practice.

B. Modern federal courts are the successors of the English courts that developed the common law, but they are in many ways quite different, including how they understand the concept of precedent. Common law judges did not make law as we understand that concept; rather, they “found” the law with the help of earlier cases that had considered similar matters. An opinion was evidence of what the law *1164 is, but it was not an independent source of law. See Theodore F.T. Plucknett, A Concise History of the Common Law 343-44 (5th ed.1956).FN8 The law was seen as something that had an existence independent of what judges said: “a miraculous something made by nobody ... and merely declared from time to time by the judges.” 2 John Austin, Lectures on Jurisprudence or The Philosophy of Positive Law 655 (4th ed. 1873) (emphasis omitted). Opinions were merely judges' efforts to ascertain the law, much like scientific experiments were efforts to ascertain natural laws. If an eighteenth-century judge believed that a prior case was wrongly decided, he could say that the prior judge had erred in his attempt to discern the law. See Bole v. Horton, 124 Eng. Rep. 1113, 1124 (C.P.1673). Neither judges nor lawyers understood precedent to be binding in Anastasoff 's strict sense. FN9

FN8. As Hale described it, judicial decisions “do not make a Law properly so-called,” but “they have a great Weight and Authority in Expounding, Declaring, and Publishing what the Law of this Kingdom is, [and] are a greater Evidence [of a law] than the Opinion of any private Persons, as such, whatsoever.” Sir Matthew Hale, The History of the Common Law of England 68 (London, Nutt & Gosling 1739). In Lord Mansfield's view, “[t]he reason and spirit of cases make law; not the letter of particular precedents.” Fisher v. Prince, 97 Eng. Rep. 876, 876 (K.B.1762).

FN9. As Holdsworth put it:The general rule is clear. Decided cases which lay down a rule of law are authoritative and must be followed. But in very many of the statements of this general rule there are reservations of different kinds.... The fundamental principle, upon which all these reservations ultimately rest, is the principle stated by Coke, Hale and Blackstone, that these cases do not make law, but are only the best evidence of what the law is. They are not, as Hale said, “law properly so called,” but only very strong evidence of the law. They are evidence, as Coke said, of the existence of those usages which go to make up the common law; and, conversely, the fact that no case can be produced to prove the existence of an alleged usage is evidence that there is no such usage. This principle is the natural, though undesigned, result of the unofficial character of the reports; and it is clear that its adoption gives the courts power to mould as they please the conditions in which they will accept a decided case or a series of decided cases as authoritative. If the cases are only evidence of what the law is the courts must decide what weight is to be attached to this evidence in different sets of circumstances. The manner in which they have decided this question has left them many means of escape from the necessity of literal obedience to the general rule that decided cases must always be followed. They have allowed many exceptions to, and modifications of, this rule if, in their opinion, a literal obedience to it would produce either technical departures from established principles, or substantial inconveniences which would be contrary to public policy.

Sir William Holdsworth, 12 A History of English Law 150-51 (1938) (footnotes omitted) (emphasis added).

One impediment to establishing a system of strict binding precedent was the absence at common law of a distinct hierarchy of courts. See Plucknett, supra, at 350.FN10 Only towards the end of the nineteenth century, after England had reorganized its courts, was the position of the House of Lords at the head of its judicial hierarchy confirmed. Before that, there *1165 was no single high court that could definitively say what the law was. Thus, as late as the middle of the nineteenth century, an English judge might ignore decisions of the House of Lords,FN11 and the Exchequer and Queen's Bench held different views on the same point as late as 1842. FN12 See id. at 350. Common law judges looked to earlier cases only as examples of policy or practice, and a single case was generally not binding authority.FN13 Eighteenth-century judges did not feel bound to follow most decisions that might lead to inconvenient results, and judges would even blame reporters for cases they disliked. See Plucknett, supra, at 349.

FN10. As one commentator has noted:[T]wo conditions had to be satisfied before the doctrine of stare decisis could be established. (1) There had to exist reliable reports of cases. It is obvious that if cases are to be binding, there should be precise records of what they lay down. (2) There had also to be a settled judicial hierarchy. Equally obvious is it that until this was settled it could not be known which decisions were binding. Not until roughly the middle of the last century were these conditions fulfilled, and it is from about then that the modern doctrine [of stare decisis] emerges.

R.W.M. Dias, Jurisprudence 30-31 (2d ed.1964).

FN11. One reason that House of Lords decisions commanded little respect was that as late as 1844, judicial deliberations could be conducted by lay peers, who brought far less training and experience to bear on legal issues than did the judges of the Exchequer Chamber. Dias, note 10 supra, at 32-33.

FN12. The three common law courts of first instance-the King's (or Queen's) Bench, Common Pleas and Exchequer-had overlapping jurisdiction in many common classes of cases. See Plucknett, supra, at 210.

FN13. The absence of an appellate hierarchy that could definitively settle legal issues was a continuing problem until the nineteenth century. The need for such definitive resolution nevertheless existed and the common law judges invented a substitute: the Exchequer Chamber. When a particularly vexing legal issue arose that was common to two or more of the courts, all the judges would meet, sometimes including the Lord Chancellor, the barons of the Exchequer, the members of the Council and the serjeants. See Plucknett, supra, at 151 (the Council consisted of the King's closest advisers); id. at 224 (serjeants were, essentially, lawyers known for wearing the coif, “a close-fitting cap of white silk or linen fastened under the chin; hence the term ‘order of the coif.’ ”)The Exchequer Chamber debated particular legal issues and came up with a definitive ruling, which was then announced in the court where the case raising the issue originated. Id. at 162-63. The Exchequer Chamber was not a separate court; it was referred to by that name because these meetings were held in the court of the Exchequer, which “had ample office accommodation” to allow all the judges to meet in one place. Plucknett, supra, at 162 n. 7. The Exchequer Chamber might best be viewed as a super-en banc court including all of England's judicial officers.

Unlike other decisions at common law, decisions reached by the Exchequer Chamber were considered binding precedent and, according to Plucknett, this is the first time we find “the principle that a single case may be precedent.” Id. at 348. The Exchequer Chamber is significant for our analysis because it clearly suggests common law judges knew the distinction between binding and persuasive precedent. The vast majority of precedents at common law were considered more or less persuasive; only the few decisions agreed-to by all English judges sitting together were afforded the status that the Anastasoff court would now afford to every decision of a three-judge court of appeals as a matter of constitutional imperative.

The idea that judges declared rather than made the law remained firmly entrenched in English jurisprudence until the early nineteenth century. David M. Walker, The Oxford Companion to Law 977 (1980). Blackstone, who wrote his Commentaries only two decades before the Constitutional Convention and was greatly respected and followed by the generation of the Framers, noted that “the ‘law,’ and the ‘opinion of the judge’ are not ... one and the same thing; since it sometimes may happen that the judge may mistake the law”; in such cases, the precedent simply “was not law.” 1 William Blackstone, Commentaries *70-71 (1765).

For centuries, the most important sources of law were not judicial opinions themselves, but treatises that restated the law, such as the commentaries of Coke and Blackstone. Because published opinions were relatively few, lawyers and judges *1166 relied on commentators' synthesis of decisions rather than the verbatim text of opinions.FN14

FN14. In the first century of American jurisprudence, Blackstone's “Commentaries were not merely an approach to the study of law; for most lawyers they constituted all there was of the law.” Daniel J. Boorstin, The Mysterious Science of the Law 3 (1941).

Case reporters were entrepreneurs who scribbled down jury charges as they were delivered by judges, then printed and sold them. Or, reporters might cobble together case reports from secondhand sources and notes found in estates, sometimes years after the cases were decided. See Robert C. Berring, Legal Research and Legal Concepts: Where Form Molds Substance, 75 Cal. L.Rev. 15, 18-19 (1987). For example, Heydon's Case was decided in 1584, but Lord Coke did not publish his account of it until 1602. See Allen Dillard Boyer, “ Understanding, Authority, and Will”: Sir Edward Coke and the Elizabethan Origins of Judicial Review, 39 B.C. L.Rev. 43, 79 (1997). Not surprisingly, case reports often contradicted each other in describing the reasoning, and even the names, of particular cases. See Berring, supra, at 18.FN15 The value of case reports turned not on the accuracy of the report but on the acuity of their authors. See id. at 18-19.FN16

FN15. For example, “ Clerk v. Day was reported in four different books, and in not one of them correctly-not even as to name.... Arbitrary spelling of the names of cases is a bibliographical irritation, and sometimes a difficulty. Fetter v. Beal ... is a pretty good disguise for Fitter v. Veal ....” Percy H. Winfield, The Chief Sources of English Legal History 185 n. 3 (1925) (citations omitted).

FN16. As Holdsworth wrote:[I]n the eighteenth century, because the reports were made by private reporters, the reports of decided cases possessed, as we have seen, very different degrees of authority. It was always possible for a judge who was trying a case to decry the authority of a report which laid down a rule with which he disagreed. We have seen that Lord Mansfield, when he was pressed by a case which laid down a rule with which he did not like, was rather too apt to take this line. It is no doubt a line which it became less possible to take as the reports improved in quality, and as reporting became more standardized and more stereotyped. But within limits this censorship of reports is both legitimate and necessary.... Thus in the case of Chillingworth v. Esche [1924] 1 Ch. at pp. 112-113 Warrington L.J. said, “there are one or two points raised by Mr. Micklem with which I think I ought to deal. He relies on Moeser v. Wisker ((1871) L.R. 6 C.P. 120). In my opinion that is a case which never ought to have been reported. It was an ex parte application. The judges seized on a single fact, and decided on that fact. The purchaser in that case had no opportunity of stating his view.”

Holdsworth, note 9 supra, at 154 & 154 n. 3 (footnotes omitted).

Coke's intellectual reputation made him the most valued, and the most famous, of the private reporters. His reports were not verbatim transcriptions of what the judges actually said, but vehicles for Coke's own jurisprudential and political agenda. See Boyer, supra, at 80 (“In the name of judicial reason, Coke was willing to rewrite the law.... In 1602, his chief way of shaping the law was in the way he reported it.”). Like other reporters, Coke often distorted the language and meaning of prior decisions that were inconsistent with what he considered the correct legal principle. See Harold J. Berman & Charles J. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 Emory L.J. 437, 447 (1996). “There was no clear boundary in his mind between what a case said and what he thought it ought to say, between the reasons which actually prompted the decision, and the elaborate commentary which he could easily weave around any question.” *1167 Plucknett, supra, at 281.FN17 Contrary to Anastasoff 's view, it was emphatically not the case that all decisions of common law courts were treated as precedent binding on future courts unless distinguished or rejected. Rather, case reporters routinely suppressed or altered cases they considered wrongly decided. Indeed, sorting out the decisions that deserved reporting from those that did not became one of their primary functions. FN18

FN17. Coke was not alone in this practice:[B]arristers have sometimes exercised some kind of censorship over the cases which they have reported.... For instance ... Atlay, The Victorian Chancellors ii 138, says, “Campbell was no mere stenographer; he exercised an absolute discretion as to what decisions he reported and what he suppressed, and sternly rejected any which appeared to him inconsistent with former rulings or recognised principles. He jocularly took credit for helping to establish the Chief Justice's reputation as a lawyer, and he used to boast that he had, in one of his drawers, material for an additional volume in the shape of ‘bad Ellenborough law’.”

Holdsworth, note 9 supra, at 158 & 158 n. 1.

FN18. As one commentator has noted:It would appear also that from about 1785 judges were beginning to favour particular reporters chosen for each court and to prefer citation from them and no other.... The question what cases should be reported bristles with problems. The decision rests ultimately with the individual reporter.

Dias, note 10 supra, at 33.

A survey of the legal landscape as it might have been viewed by the generation of the Framers casts serious doubt on the proposition-so readily accepted by Anastasoff-that the Framers viewed precedent in the rigid form that we view it today. Indeed, it is unclear that the Framers would have considered our view of precedent desirable.FN19 The common law, at its core, was a reflection of custom, and custom had a built-in flexibility that allowed it to change with circumstance. Thus, “when Lord Mansfield incorporated the custom of merchants into the common law, it was a living flexible custom, responding to the growth and change of mercantile habits.” Plucknett, supra, at 350. Embodying that custom into a binding decision raised the danger of ossifying the custom: “[I]f perchance a court has given a decision on a point of that custom, it loses for ever its flexibility and is fixed by the rule of precedent at the point where the court touched it.” Id. It is entirely possible that lawyers of the eighteenth century, had they been confronted with the regime of rigid precedent that is in common use today, would have reacted with alarm.FN20

FN19. As another commentator has noted:The Framers were familiar with the idea of precedent. But ... [t]he whole idea of just what precedent entailed was unclear. The relative uncertainty over precedent in 1789 also reflects the fact that “many state courts were manned by laymen, and state law and procedure were frequently in unsettled condition. The colonial and state courts did not enjoy high prestige, and their opinions were not even deemed worthy of publication.”

Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L.Rev. 723, 770 n. 267 (1988) (citations omitted). See also Melissa H. Weresh, The Unpublished, Non-Precedential Decision: An Uncomfortable Legality?, 3 J.App. Prac. & Process 175, 186 (2001) (“Stare decisis and the American common law system have never required the publication of all decisions.”)

FN20. Far from being the strict and uncontroverted doctrine that Anastasoff attempts to portray, the concept of precedent at the time of the Framers was the subject of lively debate. Adherence to the common law was not “inevitable and unopposed.” Robert H. Jackson, The Supreme Court in the American System of Government 29 (1955). “[T]he parameters of judicial power were highly contested in the late colonial and early Republic periods.... [N]o one knew the exact role that judges would have in the new experiment in government that formed the United States.” R. Ben Brown, Judging in the Days of the Early Republic: A Critique of Judge Richard Arnold's Use of History in Anastasoff v. United States, 3 J.App. Prac. & Process 355, 375, 383 (2001). Therefore, “lawyers, judges and legal commentators contested the question of just what body of law judges should use to decide cases in the early Republic.” Id. at 358.On one side of the debate was Blackstone himself. “Far from providing support for Judge Arnold's claim that the colonial judiciary was bound by common law precedent, Blackstone's thesis was just the opposite”: that American courts were not bound by English precedent. Id. at 357 (footnotes omitted). St. George Tucker, a prominent nineteenth-century American scholar, disagreed. Id. at 358.

Amidst this disagreement, American judges not only routinely picked and chose which English precedents to follow, but also felt free to ignore their own decisions. Id. at 359, 360-63 (discussing Fitch v. Brainerd, 2 Day 163 (Conn.1805) (available at 1805 WL 203), in which the Connecticut Supreme Court declared, without explanation, that its prior decision adopting an English precedent authored by Lord Mansfield, “was not law.”) Such cavalier treatment of precedent-the Fitch court did not acknowledge the precedent as binding and distinguish or reject it, but simply declared it “was not law”-illustrates that precedent at the time of the Framers was a far more fluid concept than it is today, and certainly more so than the strict form advocated by Anastasoff.

*1168 The modern concept of binding precedent-where a single opinion sets the course on a particular point of law and must be followed by courts at the same level and lower within a pyramidal judicial hierarchy-came about only gradually over the nineteenth and early twentieth centuries. Lawyers began to believe that judges made, not found, the law. This coincided with monumental improvements in the collection and reporting of case authorities. As the concept of law changed and a more comprehensive reporting system began to take hold, it became possible for judicial decisions to serve as binding authority. FN21

FN21. As Plucknett notes, “[t]he nineteenth century produced the changes which were necessary for the establishment of the rigid and symmetrical theory [of case precedent] as it exists today.” Plucknett, supra, at 350. Among the changes he points to was the establishment of a strict appellate hierarchy and the standardization of case law reporting. Id.

Early American reporters resembled their English ancestors-disorganized and meager FN22-but the character of the reporting*1169 process began to change, after the Constitution was adopted, with the emergence of official reporters in the late eighteenth century and the early nineteenth century. See Berring, supra, at 20-21. And, later in the nineteenth century, the West Company began to publish standardized case reporters, which were both accurate and comprehensive, making “it possible to publish in written form all of the decisions of courts.” Id. at 21. Case reports grew thicker, and the weight of precedent began to increase-weight, that is, in terms of volume.

FN22. The first volumes of the United States Reports reveal the idiosyncratic and sometimes unreliable character of the early reporters. The first volume contains not a single decision of the United States Supreme Court. See Craig Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendancy, 83 Mich. L.Rev. 1291, 1296 (1985). The reporter, Alexander James Dallas, began his career by publishing decisions of the Pennsylvania and Delaware courts, but not until 1806 were Pennsylvania judges required to reduce their opinions to writing (and then only at the parties' request). Dallas's first volume therefore contains only brief descriptions of the earliest decisions, based on notes preserved by judges and lawyers. See id. at 1295-98. And, while his second volume does contain decisions of the United States Supreme Court, Dallas could not always rely on a written opinion as the basis of his report because the Court did not invariably reduce its opinions to writing:Not a single formal manuscript opinion is known to have survived from the Court's first decade; and few, if any, may ever have existed for Dallas to draw upon. Nor may it be confidently assumed that in all instances Dallas was present in court to take down what the Justices said, or that he was able afterwards to consult any notes they may have kept of the opinions they announced.... Delay, expense, omission and inaccuracy: these were among the hallmarks of Dallas' work.

Id. at 1305 (footnotes omitted).At that time, the Supreme Court had no official reporter and cases were never printed. United States v. Yale Todd, decided by the Supreme Court in 1784, is a typical example. Because “[t]here was no official reporter at that time, [the] case has not been printed.” United States v. Ferreira, 54 U.S. (13 How.) 40, 52, 14 L.Ed. 40 (1851). So said Chief Justice Taney in a note added following Ferreira, describing Yale Todd. “[A]s the subject is one of much interest, and concerns the nature and extent of judicial power, the substance of the decision in Yale Todd's case is inserted here, in order that it may not be overlooked, if similar questions should hereafter arise.” Id.

The more cases were reported, the harder became the task of searching for relevant decisions. At common law, circuit-riding judges often decided cases without referring to any reporters at all, see Fentum v. Pocock, 5 Taunt. 192, 195, 128 Eng. Rep. 660, 662 (C.P.1813) (Mansfield, C.J.) (“It [was] utterly impossible for any Judge, whatever his learning and abilities may be, to decide at once rightly upon every point which [came] before him at Nisi Prius ....”), and reporters simply left out decisions they considered wrong or those that merely repeated what had come before. Sir Francis Bacon recommended that cases “merely of iteration and repetition” be omitted from the case reports altogether, and Coke warned judges against reporting all of their decisions for fear of weighing down the law. See Kirt Shuldberg, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals, 85 Cal. L.Rev. 541, 545 & n. 8 (1997). Indeed, the English opinion-reporting system has never published, and does not today publish, every opinion of English appellate courts, even though the total number of opinions issued each year in both the English Court of Appeal and House of Lords combined is little more than 1000-less than a quarter of the number of dispositions issued annually by the Ninth Circuit in recent years, see note 37 infra. Robert J. Martineau, Appellate Justice in England and the United States: A Comparative Analysis 107, 150 (1990); Robert J. Martineau, Restrictions on Publication and Citation of Judicial Opinions: A Reassessment, 28 U. Mich. J.L. Ref. 119, 136 (1995).FN23

FN23. In 1986, only 39% of the 884 opinions of the English Court of Appeal were reported. Martineau, Appellate Justice, supra, at 107, 150. “Although technically a judgment need not be reported to be cited as precedent [in England] ... the reality is that unless a judgment is reported it is not likely to be used as precedent.” Id. at 104. Nevertheless, “[t]here does not appear to be among the judges and the bar any current dissatisfaction with the system except that some believe too many, not too few, judgments are reported.” Id. at 107.

II

[1] [pic]Federal courts today do follow some common law traditions. When ruling on a novel issue of law, they will generally consider how other courts have ruled on the same issue. This consideration will not be limited to courts at the same or higher level, or even to courts within the same system of sovereignty. Federal courts of appeals will cite decisions of district courts, even those in other circuits; the Supreme Court may cite the decisions of the inferior courts, see, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 491, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (citing Associated Gen. Contractors of Cal. v. City & County of San Francisco, 813 F.2d 922, 929 (9th Cir.1987)), or those of the state courts, see, e.g., Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 121 S.Ct. 1446, 1452, 149 L.Ed.2d 391 (2001) *1170 (citing J & K Painting Co. v. Bradshaw, 45 Cal.App.4th 1394, 1402, 53 Cal.Rptr.2d 496 (Cal.Ct.App.1996)). It is not unusual to cite the decision of courts in foreign jurisdictions, so long as they speak to a matter relevant to the issue before us. See, e.g., Mozes v. Mozes, 239 F.3d 1067, 1071 (9th Cir.2001). The process even extends to non-case authorities, such as treatises and law review articles. See id. at 1071 & n. 7.

[2] [pic]Citing a precedent is, of course, not the same as following it; “respectfully disagree” within five words of “learned colleagues” is almost a cliche. After carefully considering and digesting the views of other courts and commentators-often giving conflicting guidance on a novel legal issue-courts will then proceed to follow one line of authority or another, or sometimes strike out in a completely different direction. While we would consider it bad form to ignore contrary authority by failing even to acknowledge its existence, it is well understood that-in the absence of binding precedent-courts may forge a different path than suggested by prior authorities that have considered the issue. So long as the earlier authority is acknowledged and considered, courts are deemed to have complied with their common law responsibilities.

[3] [pic][4] [pic]But precedent also serves a very different function in the federal courts today, one related to the horizontal and vertical organization of those courts. See John Harrison, The Power of Congress Over The Rules of Precedent, 50 Duke L.J. 503 (2000). A district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue, or with Supreme Court Justices writing for a majority of the Court.FN24 Binding authority within this regime cannot be considered and cast aside; it is not merely evidence of what the law is. Rather, caselaw on point is the law. If a court must decide an issue governed by a prior opinion that constitutes binding authority, the later court is bound to reach the same result, even if it considers the rule unwise or incorrect. Binding authority must be followed unless and until overruled by a body competent to do so.

FN24. The same practice is followed in the state courts as well. See, e.g., Auto Equity Sales, Inc. v. Superior Court of Santa Clara County, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, 940 (Cal.1962) ( “Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.”).

[5] [pic]In determining whether it is bound by an earlier decision, a court considers not merely the “reason and spirit of cases” but also “the letter of particular precedents.” Fisher v. Prince, 97 Eng. Rep. 876, 876 (K.B.1762). This includes not only the rule announced, but also the facts giving rise to the dispute, other rules considered and rejected and the views expressed in response to any dissent or concurrence.FN25 Thus, when crafting binding *1171 authority, the precise language employed is often crucial to the contours and scope of the rule announced.FN26

FN25. For example, in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), a majority held that the rule announced in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (plaintiff must show “actual malice” to obtain punitive damages for false and defamatory statements), applies only to statements involving matters of public concern. Relying on the language and context of Gertz, the Court rejected the dissenters' claim that the Gertz rule applied to all defamatory statements, and instead concluded that Gertz left it an open question whether the rule applied to statements not of public concern. Compare Dun & Bradstreet, 472 U.S. at 757 n. 4, 105 S.Ct. 2939 (“The dissent states that ‘[a]t several points the Court in Gertz makes perfectly clear [that] the restrictions of presumed and punitive damages were to apply in all cases.’ Given the context of Gertz, however, the Court could have made ‘perfectly clear’ only that these restrictions applied in cases involving public speech.” (citations omitted)), with id. at 785 n. 11, 105 S.Ct. 2939 (“Distrust of placing in the courts the power to decide what speech was of public concern was precisely the rationale Gertz offered for rejecting [an alternative] approach. It would have been incongruous for the Court to go on to circumscribe the protection against presumed and punitive damages by reference to a judicial judgment as to whether the speech at issue involved matters of public concern.” (citation omitted)).

FN26. This is consistent with the practice in our court-and all other collegial courts of which we are aware-in which the judges who join an opinion authored by another judge make substantive suggestions, often conditioning their votes on reaching agreement on mutually acceptable language.

[6] [pic][7] [pic]Obviously, binding authority is very powerful medicine. A decision of the Supreme Court will control that corner of the law unless and until the Supreme Court itself overrules or modifies it. Judges of the inferior courts may voice their criticisms, but follow it they must. See, e.g., Ortega v. United States, 861 F.2d 600, 603 & n. 4 (9th Cir.1988) ( “This case is squarely controlled by the Supreme Court's recent decision.... [We] agree[ ] with the dissent that [appellant] deserves better treatment from our Government. Unfortunately, legal precedent deprives us of discretion to do equity.”). The same is true as to circuit authority, although it usually covers a much smaller geographic area.FN27 Circuit law, a concept wholly unknown at the time of the Framing, see Danny J. Boggs & Brian P. Brooks, Unpublished Opinions & the Nature of Precedent, 4 Green Bag 2d 17, 22 (2000), binds all courts within a particular circuit, including the court of appeals itself. Thus, the first panel to consider an issue sets the law not only for all the inferior courts in the circuit, but also future panels of the court of appeals.

FN27. The exception is the Federal Circuit, which has a geographic area precisely the same as the Supreme Court, but much narrower subject-matter jurisdiction. See 28 U.S.C. § 1295(a).

[8] [pic][9] [pic][10] [pic][11] [pic]Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court.FN28 As Anastasoff itself states, a later three-judge panel considering a case that is controlled by the rule announced in an earlier panel's opinion has no choice but to apply the earlier-adopted rule; it may not any more disregard the earlier panel's opinion than it may disregard a ruling of the Supreme Court. Anastasoff, 223 F.3d at 904; see also Santamaria v. Horsley, 110 F.3d 1352, 1355 (9th Cir.1997) (“It is settled law that one three-judge panel of this court cannot ordinarily reconsider or overrule the decision of a prior panel.”), rev'd, 133 F.3d 1242 (9th Cir.) (en banc), amended by 138 F.3d 1280 (9th Cir.), cert. denied, 525 U.S. 823-24, 119 S.Ct. 68, 142 L.Ed.2d 53 (1998); Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 425-26 (5th Cir.1987) (A “purpose of institutional orderliness [is served] by our insistence that, in the absence of intervening Supreme Court precedent, one panel cannot overturn another panel, regardless of how *1172 wrong the earlier panel decision may seem to be.”). Designating an opinion as binding circuit authority is a weighty decision that cannot be taken lightly, because its effects are not easily reversed. Whether done by the Supreme Court or the court of appeals through its “unwieldy” and time-consuming en banc procedures, Richard A. Posner, The Federal Courts: Crisis and Reform 101 (1985),FN29 overruling such authority requires a substantial amount of courts' time and attention-two commodities already in very short supply.

FN28. Or, unless Congress changes the law. See, e.g., Van Tran v. Lindsey, 212 F.3d 1143, 1149 (9th Cir.) (earlier caselaw established that mixed questions in habeas petitions were reviewed de novo, but under the Anti-Terrorism and Effective Death Penalty Act of 1996, the standard of review is governed by 28 U.S.C. § 2254(d)), cert. denied, 531 U.S. 944, 121 S.Ct. 340, 148 L.Ed.2d 274 (2000).

FN29. An impressive array of judges and academics have noted the rigors of en banc procedures. See Richard S. Arnold, Why Judges Don't Like Petitions for Rehearing, 3 J.App. Prac. & Process 29, 37 (2001) (“[O]n many days, I confess, I find myself wishing that there were no such thing [as en banc rehearing].”); Pamela Ann Rymer, How Big Is Too Big?, 15 J.L. & Pol. 383, 392 (1999) (“expensive and time consuming”); Joseph T. Sneed, The Judging Cycle: Federal Circuit Court Style, 57 Ohio St. L.J. 939, 942 (1996) (“time consuming and complex”); James Oakes, Personal Reflections on Learned Hand and the Second Circuit, 47 Stan. L.Rev. 387, 393 (1995) (“enormously time-consuming and expensive”); Deanell Reece Tacha, The “C” Word: On Collegiality, 56 Ohio St. L.J. 585, 590 (1995) (“time-consuming and expensive”); Irving R. Kaufman, Do the Costs of the En Banc Proceeding Outweigh Its Advantages?, 69 Judicature 7, 7 (1985) (“the most time consuming and inefficient device in the appellate judiciary's repertoire”); J. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial System: A Study of the Second, Fifth, and District of Columbia Circuits 217 (1981) (“most circuit judges regard en bancs as a ‘damned nuisance’ ”).Because they are so cumbersome, en banc procedures are seldom used merely to correct the errors of individual panels: “[W]e do not take cases en banc merely because of disagreement with a panel's decision, or rather a piece of a decision.... We take cases en banc to answer questions of general importance likely to recur, or to resolve intracircuit conflicts, or to address issues of transcendent public significance-perhaps even to curb a ‘runaway’ panel-but not just to review a panel opinion for error, even in cases that particularly agitate judges....” EEOC v. Ind. Bell Tel. Co., 256 F.3d 516, 86 Fair Empl. Prac. Cas. (BNA) 1, 2001 WL 717685, at *11 (7th Cir.2001) (en banc) (Posner, J., concurring). See also Fed. R.App. P. 35(a) (“An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance.”); Arnold, supra, at 36 (“Petitions for rehearing are generally denied unless something of unusual importance-such as a life-is at stake, or a real and significant error was made by the original panel, or there is conflict within the circuit on a point of law.”) It is therefore very important that three-judge panel opinions be decided correctly and that they state their holdings in a way that is easily understood and applied in future cases.

[12] [pic]Controlling authority has much in common with persuasive authority. Using the techniques developed at common law, a court confronted with apparently controlling authority must parse the precedent in light of the facts presented and the rule announced. Insofar as there may be factual differences between the current case and the earlier one, the court must determine whether those differences are material to the application of the rule or allow the precedent to be distinguished on a principled basis. Courts occasionally must reconcile seemingly inconsistent precedents and determine whether the current case is closer to one or the other of the earlier opinions. See, e.g., Mont. Chamber of Commerce v. Argenbright, 226 F.3d 1049, 1057 (9th Cir.2000).

But there are also very important differences between controlling and persuasive authority. As noted, one of these is that, if a controlling precedent is determined to be on point, it must be followed. Another important distinction concerns the scope of controlling authority. Thus, an opinion of our court is binding within our circuit, not *1173 elsewhere in the country. The courts of appeals, and even the lower courts of other circuits, may decline to follow the rule we announce-and often do. This ability to develop different interpretations of the law among the circuits is considered a strength of our system. It allows experimentation with different approaches to the same legal problem, so that when the Supreme Court eventually reviews the issue it has the benefit of “percolation” within the lower courts. See Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N.Y.U. L.Rev. 681, 716 (1984). Indeed, the Supreme Court sometimes chooses not to grant certiorari on an issue, even though it might deserve definitive resolution, so it will have the benefit of a variety of views from the inferior courts before it chooses an approach to a legal problem. See McCray v. New York, 461 U.S. 961, 963, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983) (Stevens, J., respecting denial of petitions for writs of certiorari) (“[I]t is a sound exercise of discretion for the Court to allow [other courts] to serve as laboratories in which the issue receives further study before it is addressed by this Court.”).

[13] [pic]The various rules pertaining to the development and application of binding authority do not reflect the developments of the English common law. They reflect, rather, the organization and structure of the federal courts and certain policy judgments about the effective administration of justice. See Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (stare decisis is a “principle of policy,” and “not an inexorable command”); see, e.g., Textile Mills Secs. Corp. v. Comm'r, 314 U.S. 326, 334-35, 62 S.Ct. 272, 86 L.Ed. 249 (1941) (en banc rehearing “makes for more effective judicial administration”). Circuit boundaries are set by statute and can be changed by statute. When that happens, and a new circuit is created, it starts without any circuit law and must make an affirmative decision whether to create its circuit law from scratch or to adopt the law of another circuit-generally the circuit from which it was carved-as its own. Compare Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all decisions issued by the former Fifth Circuit before its split into the Fifth and Eleventh Circuits), and South Corp. v. United States, 690 F.2d 1368, 1370-71 (Fed.Cir.1982) (en banc) (adopting as binding precedent all decisions of the Federal Circuit's predecessor courts, the Court of Claims and the Court of Customs and Patent Appeals), with Estate of McMorris v. Comm'r, 243 F.3d 1254, 1258 (10th Cir.2001) (“[W]e have never held that the decisions of our predecessor circuit [the former Eighth Circuit] are controlling in this court.”). The decision whether to adopt wholesale the circuit law of another court is a matter of judicial policy, not a constitutional command.

How binding authority is overruled is another question that was resolved by trial and error with due regard to principles of sound judicial administration. Early in the last century, when the courts of appeals first grew beyond three judges, the question arose whether the courts could sit en banc to rehear cases already decided by a three-judge panel. The lower courts disagreed, but in Textile Mills Securities Corporation v. Commissioner, the Supreme Court sustained the authority of the courts of appeals to sit en banc. Textile Mills Secs. Corp. v. Comm'r, 314 U.S. 326, 335, 62 S.Ct. 272, 86 L.Ed. 249 (1943) (“Conflicts within a circuit will be avoided. Finality of decision in the circuit courts of appeal will be promoted. Those considerations are especially important in view of the fact that in our federal judicial system *1174 these courts are the courts of last resort in the run of ordinary cases.”). En banc rehearing would give all active judges an opportunity to hear a case “[w]here ... there is a difference in view among the judges upon a question of fundamental importance, and especially in a case where two of the three judges sitting in a case may have a view contrary to that of the other ... judges of the court.” Comm'r v. Textile Mills Secs. Corp., 117 F.2d 62, 70 (3d Cir.1940), aff'd, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249 (1943). Congress codified the Textile Mills decision just five years later in 28 U.S.C. § 46(c), leaving the courts of appeals “free to devise [their] own administrative machinery to provide the means whereby a majority may order such a hearing.” W. Pac. R.R. v. W. Pac. R.R., 345 U.S. 247, 250, 73 S.Ct. 656, 97 L.Ed. 986 (1953).

[14] [pic][15] [pic][16] [pic]That the binding authority principle applies only to appellate decisions, and not to trial court decisions, is yet another policy choice. There is nothing inevitable about this; the rule could just as easily operate so that the first district judge to decide an issue within a district, or even within a circuit, would bind all similarly situated district judges, but it does not. The very existence of the binding authority principle is not inevitable. The federal courts could operate, though much less efficiently, if judges of inferior courts had discretion to consider the opinions of higher courts, but “respectfully disagree” with them for good and sufficient reasons. FN30

FN30. Some state court systems apply the binding authority principle differently than do the federal courts. In California, for example, an opinion by one of the courts of appeal is binding on all trial courts in the state, not merely those in the same district. Judicial Council of California, Report of the Appellate Process Task Force 59 (2000); Jon B. Eisenberg, Ellis J. Horvitz & Justice Howard B. Wiener, California Practice Guide: Civil Appeals and Writs § 14:193 (2000) (“A court of appeal decision must be followed by all superior and municipal courts, regardless of which appellate district rendered the opinion.”) However, court of appeal panels are not bound by the opinions of other panels, even those within the same district. In re Marriage of Shaban, 88 Cal.App.4th 398, 105 Cal.Rptr.2d 863, 870-71 (2001) (“[B]ecause there is no ‘horizontal stare decisis' within the Court of Appeal, intermediate appellate court precedent that might otherwise be binding on a trial court ... is not absolutely binding on a different panel of the appellate court.” (citations omitted)). See also Report of the Appellate Process Task Force, supra, at 60-61; Eisenberg, Horvitz & Wiener, supra, § 14:193.1 (“In contrast, a decision by one court of appeal is not binding on other courts of appeal.”)California's management of precedent differs from that of the federal courts in another important respect: The California Supreme Court may “depublish” a court of appeal opinion-i.e., strip a published decision of its precedential effect. See Cal. R. Ct. 976(c)(2); Steven B. Katz, California's Curious Practice of “Pocket Review”, 3 J.App. Prac. & Process 385 (2001). California's depublication practice shows that it is possible to adopt more aggressive methods of managing precedent than those used by the federal courts.

III

While we agree with Anastasoff that the principle of precedent was well established in the common law courts by the time Article III of the Constitution was written, we do not agree that it was known and applied in the strict sense in which we apply binding authority today. It may be true, as Anastasoff notes, that “judges and lawyers of the day recognized the authority of unpublished decisions even when they were established only by memory or by a lawyer's unpublished memorandum,” 223 F.3d at 903, but precedents brought to the attention of the court in that fashion obviously could not serve as the kind of rigid constraint that binding authority provides today. Unlike our practice today, a single *1175 case was not sufficient to establish a particular rule of law, and case reporters often filtered out cases that they considered wrong, or inconsistent with their view of how the law should develop. See pp. 1166-67 supra. The concept of binding case precedent, though it was known at common law, see note 13 supra, was used exceedingly sparingly. For the most part, common law courts felt free to depart from precedent where they considered the earlier-adopted rule to be no longer workable or appropriate.

Case precedent at common law thus resembled much more what we call persuasive authority than the binding authority which is the backbone of much of the federal judicial system today. The concept of binding precedent could only develop once two conditions were met: The development of a hierarchical system of appellate courts with clear lines of authority, and a case reporting system that enabled later courts to know precisely what was said in earlier opinions. See note 21 supra. As we have seen, these developments did not come about-either here or in England-until the nineteenth century, long after Article III of the Constitution was written.

[17] [pic]While many consider the principle of binding authority indispensable-perhaps even inevitable-it is important to note that it is not an unalloyed good. While bringing to the law important values such as predictability and consistency, it also (for the very same reason) deprives the law of flexibility and adaptability. See Planned Parenthood v. Casey, 505 U.S. 833, 868, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (“The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”).FN31 A district court bound by circuit authority, for example, has no choice but to follow it, even if convinced that such authority was wrongly decided. Appellate courts often tolerate errors in their caselaw because the rigors of the en banc process make it impossible to correct all errors. See note 29 supra.

FN31. It also forces judges in certain instances to act in ways they may consider to be contrary to the Constitution. Some have argued that the duty of judges to follow the Constitution stands on a higher footing than the rule requiring adherence to precedent, and judges should not follow precedent when they believe that to do so would violate the Constitution. See Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23, 27-28 (1994).

A system of strict binding precedent also suffers from the defect that it gives undue weight to the first case to raise a particular issue. This is especially true in the circuit courts, where the first panel to consider an issue and publish a precedential opinion occupies the field, whether or not the lawyers have done an adequate job of developing and arguing the issue.

[18] [pic]The question raised by Anastasoff is whether one particular aspect of the binding authority principle-the decision of which rulings of an appellate court are binding-is a matter of judicial policy or constitutional imperative. We believe Anastasoff erred in holding that, as a constitutional matter, courts of appeals may not decide which of their opinions will be deemed binding on themselves and the courts below them. For the reasons explained, the principle of strict binding authority is itself not constitutional, but rather a matter of judicial policy. Were it otherwise, it would cast doubt on the federal court practice of limiting the binding effect of appellate decisions to the courts of a particular circuit. Circuit boundaries*1176 -and the very system of circuit courts-are a matter of judicial administration, not constitutional law. If, as Anastasoff suggests, the Constitution dictates that every “declaration of law ... must be applied in subsequent cases to similarly situated parties,” 223 F.3d at 900, then the Second Circuit would have no authority to disagree with a ruling of the Eighth Circuit that is directly on point, and the first circuit to rule on a legal issue would then bind not only itself and the courts within its own circuit, but all inferior federal courts.

Another consequence of Anastasoff 's reasoning would be to cast doubt on the authority of courts of appeals to adopt a body of circuit law on a wholesale basis, as did the Eleventh Circuit in Bonner, and the Federal Circuit in South Corp. See p. 1173 supra. Circuits could, of course, adopt individual cases from other circuits as binding in a case raising a particular legal issue. See, e.g., Charles v. Lundgren & Assocs., P.C., 119 F.3d 739, 742 (9th Cir.) (“Because we have the benefit of the Seventh Circuit's cogent analysis, we will not replow plowed ground. Instead, we adopt the reasoning of the Seventh Circuit ....” ) cert. denied, 522 U.S. 1028, 118 S.Ct. 627, 139 L.Ed.2d 607 (1997). But adopting a whole body of law, encompassing countless rules on matters wholly unrelated to the issues raised in a particular case, is a very different matter. If binding authority were a constitutional imperative, it could only be created through individual case adjudication, not by a decision unconstrained by the facts before the court or its prior caselaw.

Nor is it clear, under the reasoning of Anastasoff, how courts could limit the binding effect of their rulings to appellate decisions. Under Anastasoff 's reasoning, district court opinions should bind district courts, at least in the same district, or even nationwide. After all, the Constitution vests the same “judicial Power” in all federal courts, so Anastasoff 's conclusion that judicial decisions must have precedential effect would apply equally to the thousands of unpublished decisions of the district courts.

No doubt the most serious implication of Anastasoff 's constitutional rule is that it would preclude appellate courts from developing a coherent and internally consistent body of caselaw to serve as binding authority for themselves and the courts below them. Writing an opinion is not simply a matter of laying out the facts and announcing a rule of decision. Precedential opinions are meant to govern not merely the cases for which they are written, but future cases as well.

[19] [pic][20] [pic][21] [pic][22] [pic]In writing an opinion, the court must be careful to recite all facts that are relevant to its ruling, while omitting facts that it considers irrelevant. Omitting relevant facts will make the ruling unintelligible to those not already familiar with the case; including inconsequential facts can provide a spurious basis for distinguishing the case in the future. The rule of decision cannot simply be announced, it must be selected after due consideration of the relevant legal and policy considerations. Where more than one rule could be followed-which is often the case-the court must explain why it is selecting one and rejecting the others. Moreover, the rule must be phrased with precision and with due regard to how it will be applied in future cases. A judge drafting a precedential opinion must not only consider the facts of the immediate case, but must also envision the countless permutations of facts that might arise in the universe of future cases. Modern opinions generally call for the most precise drafting and re-drafting to ensure that the rule announced sweeps neither too broadly nor too narrowly, and that it does not *1177 collide with other binding precedent that bears on the issue. See Fred A. Bernstein, How to Write it Right, Cal. Lawyer, at 42 (June 2000). Writing a precedential opinion, thus, involves much more than deciding who wins and who loses in a particular case. It is a solemn judicial act that sets the course of the law for hundreds or thousands of litigants and potential litigants. When properly done, it is an exacting and extremely time-consuming task.FN32

FN32. Opinion writing is a “reflective art,” an absolute necessity of which is “fully adequate time to contemplate, think, write and re-write.” Howard T. Markey, On the Present Deterioration of the Federal Appellate Process: Never Another Learned Hand, 33 S.D. L.Rev. 371, 379, 384 (1988). Judge Markey rightly mourns the age when a judge could, as Judge Hand did, talk at length about each case, “with his feet on the desk and hands behind his head,” and “having reached his decision, ... wr[i]te the entire opinion in longhand.” Id. at 380. Today, “[t]here simply isn't time” to engage in such “reflective personal craftsmanship.” Id. at 379-80.

It goes without saying that few, if any, appellate courts have the resources to write precedential opinions in every case that comes before them.FN33 The Supreme Court certainly does not. Rather, it uses its discretionary review authority to limit its merits docket to a handful of opinions per justice, from the approximately 9000 cases that seek review every Term. FN34 While federal courts of appeals generally lack discretionary review authority, they use their authority to decide cases by unpublished-and nonprecedential-dispositions to achieve the same end: They select a manageable number of cases in which to publish precedential opinions, and leave the rest to be decided by unpublished dispositions or judgment orders. In our circuit, published dispositions make up approximately 16 percent of decided cases; in other circuits, the percentage ranges from 10 to 44, the national average being 20 percent. Administrative Office of the United States Courts, Judicial Business of the United States Courts 44 tbl. S-3 (2000).

FN33. As Judge Posner has noted:Given the workload of the federal courts of appeals today, the realistic choice is not between limited publication, on the one hand, and, on the other, improving and then publishing all the opinions that are not published today; it is between preparing but not publishing opinions in many cases and preparing no opinions in those cases. It is a choice, in other words, between giving the parties reasons for the decision of their appeal and not giving them reasons even though the appeal is not frivolous.

Richard A. Posner, The Federal Courts: Challenge and Reform 168-69 (1996).

FN34. The United States Supreme Court decided seventy-seven cases in October Term 1999, which represents less than nine opinions per justice. Statistics for the Supreme Court's October Term 1999, 69 U.S.L.W. 3076 (BNA 2000). By comparison, in 1999, each active judge in our court heard an average of 450 cases and had writing responsibility for an average of twenty opinions and 130 unpublished dispositions. See infra note 37.

That a case is decided without a precedential opinion does not mean it is not fully considered, or that the disposition does not reflect a reasoned analysis of the issues presented.FN35 What it does mean is that *1178 the disposition is not written in a way that will be fully intelligible to those unfamiliar with the case, and the rule of law is not announced in a way that makes it suitable for governing future cases. As the Federal Judicial Center recognized, “the judicial time and effort essential for the development of an opinion to be published for posterity and widely distributed is necessarily greater than that sufficient to enable the judge to provide a statement so that the parties can understand the reasons for the decision.” Federal Judicial Center, Standards for Publication of Judicial Opinions 3 (1973). An unpublished disposition is, more or less, a letter from the court to parties familiar with the facts, announcing the result and the essential rationale of the court's decision. Deciding a large portion of our cases in this fashion frees us to spend the requisite time drafting precedential opinions in the remaining cases.

FN35. Sufficient restrictions on judicial decisionmaking exist to allay fears of irresponsible and unaccountable practices such as “burying” inconvenient decisions through nonpublication. In Unpublished Decisions in the Federal Courts of Appeals: Making the Decision to Publish, 3 J.App. Prac. & Process 325 (2001), Professor Stephen L. Wasby concludes, after “extended observation of the ... Ninth Circuit,” id. at 331, that formal publication guidelines and judges' enforcement of them through their interactions with each other, keep judges honest in deciding whether or not to publish. See also Martineau, Restrictions on Publication and Citation of Judicial Opinions: A Reassessment, supra, at 132 (“American appellate systems ... have many built-in protections to prevent against [judicial] irresponsibility without mandatory publication of opinions.”)

Should courts allow parties to cite to these dispositions, however, much of the time gained would likely vanish. Without comprehensive factual accounts and precisely crafted holdings to guide them, zealous counsel would be tempted to seize upon superficial similarities between their clients' cases and unpublished dispositions. Faced with the prospect of parties citing these dispositions as precedent, conscientious judges would have to pay much closer attention to the way they word their unpublished rulings. Language adequate to inform the parties how their case has been decided might well be inadequate if applied to future cases arising from different facts. And, although three judges might agree on the outcome of the case before them, they might not agree on the precise reasoning or the rule to be applied to future cases. Unpublished concurrences and dissents would become much more common, as individual judges would feel obligated to clarify their differences with the majority, even when those differences had no bearing on the case before them. In short, judges would have to start treating unpublished dispositions-those they write, those written by other judges on their panels, and those written by judges on other panels-as mini-opinions.FN36 This new responsibility would cut severely into the time judges need to fulfill their paramount duties: producing well-reasoned published opinions and keeping the law of the circuit consistent through the en banc process. The quality of published opinions would sink as judges were forced to devote less and less time to each opinion.FN37

FN36. See Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 Ohio St. L.J. 177, 196 (“[I]t will not save us any time if [unpublished opinions] are being cited back to us. We will have to prepare unpublished opinions as we do published opinions-as if they were creating precedent.”).

FN37. Recent figures tell a striking story. In 1999, our court decided some 4500 cases on the merits, about 700 by opinion and 3800 by unpublished disposition. Each active judge heard an average of 450 cases as part of a three-judge panel and had writing responsibility in a third of those cases. That works out to an average of 150 dispositions-20 opinions and 130 unpublished dispositions-per judge. In addition, each judge had to review, comment on, and eventually join or dissent from 40 opinions and 260 unpublished dispositions circulated by other judges with whom he sat. See Alex Kozinski & Stephen Reinhardt, Please Don't Cite This! Why We Don't Allow Citation to Unpublished Dispositions, Cal. Law., June 2000, at 44; see also Report of the Federal Courts Study Committee 109 (Apr. 2, 1990) (noting the federal appellate courts' “crisis of volume”).

*1179 [23] [pic]Increasing the number of opinions by a factor of five, as Anastasoff suggests, doesn't seem to us a sensible idea, even if we had the resources to do so. Adding endlessly to the body of precedent-especially binding precedent-can lead to confusion and unnecessary conflict. Judges have a responsibility to keep the body of law “cohesive and understandable, and not muddy[ ] the water with a needless torrent of published opinions.” Martin, note 36 supra, at 192. Cases decided by nonprecedential disposition generally involve facts that are materially indistinguishable from those of prior published opinions. Writing a second, third or tenth opinion in the same area of the law, based on materially indistinguishable facts will, at best, clutter up the law books and databases with redundant and thus unhelpful authority. Yet once they are designated as precedent, they will have to be read and analyzed by lawyers researching the issue, materially increasing the costs to the client for absolutely no legitimate reason. Worse still, publishing redundant opinions will multiply significantly the number of inadvertent and unnecessary conflicts, because different opinion writers may use slightly different language to express the same idea. As lawyers well know, even small differences in language can have significantly different implications when read in light of future fact patterns, so differences in phrasing that seem trivial when written can later take on a substantive significance.

The risk that this may happen vastly increases if judges are required to write many more precedential opinions than they do now, leaving much less time to devote to each.FN38 Because conflicts-even inadvertent ones-can only be resolved by the exceedingly time-consuming and inefficient process of en banc review, see Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc) (conflict in panel opinions must be resolved by en banc court), cert. denied, 485 U.S. 989, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988), an increase in intracircuit conflicts would leave much less time for us to devote to normal panel opinions. Maintaining a coherent, consistent and intelligible body of caselaw is not served by writing more opinions; it is served by taking the time to make the precedential opinions we do write as lucid and consistent as humanly possible.FN39

FN38. Concerned that judges spend too little time writing (as opposed to editing) precedential opinions, commentators have suggested that judges should do the preliminary drafting of all published opinions. See, e.g., David McGowan, Judicial Writing and the Ethics of the Judicial Office, 14 Geo. J. Legal Ethics 509, 514, 555-56 (2001). Adoption of such proposals would, however, “produce fewer published opinions [and] more unpublished dispositions.” Id. at 593. By preventing judges from determining which of their opinions will be citable as precedent, Anastasoff would have precisely the opposite effect, forcing judges to spread their resources more thinly, resulting in even less judicial involvement in precedential opinions.

FN39. Anastasoff suggests that the appointment of more judges would enable courts to write binding opinions in every case. See 223 F.3d at 904. We take no position as to whether there should be more federal judges, that being a policy question for Congress to decide. We note, however, that Congress would have to increase the number of judges by something like a factor of five to allocate to each judge a manageable number of opinions each year. But adding more judges, and more binding precedents, creates its own set of problems by significantly increasing the possibility of conflict within the same circuit as each judge will have an increased body of binding caselaw to consider and reconcile.That problem, in turn, could be ameliorated by increasing the number of circuits, but that would increase the number of inter-circuit conflicts, moving the problem up the chain of command to the Supreme Court, which likewise does not have the capacity to significantly increase the number of opinions it issues each year. See Wisniewski v. United States, 353 U.S. 901, 901-02, 77 S.Ct. 633, 1 L.Ed.2d 658 (1957) (per curiam) (noting the problems of intra-circuit consistency raised by the growing number of circuit judgeships). In the end, we do not believe that more law makes for better law.

*1180 IV

[24] [pic]Unlike the Anastasoff court, we are unable to find within Article III of the Constitution a requirement that all case dispositions and orders issued by appellate courts be binding authority. On the contrary, we believe that an inherent aspect of our function as Article III judges is managing precedent to develop a coherent body of circuit law to govern litigation in our court and the other courts of this circuit. We agree with Anastasoff that we-and all courts-must follow the law. But we do not think that this means we must also make binding law every time we issue a merits decision. The common law has long recognized that certain types of cases do not deserve to be authorities, and that one important aspect of the judicial function is separating the cases that should be precedent from those that should not.FN40 Without clearer guidance than that offered in Anastasoff, we see no constitutional basis for abdicating this important aspect of our judicial responsibility.

FN40. This is hardly a novel view:[C]ertain types of cases do not deserve to be authorities. One type, already alluded to, is that in which there is no discoverable ratio decidendi. Others are cases turning purely on fact, those involving the exercise of discretion, and those which judges themselves do not think worthy of being precedents.

Dias, note 10 supra, at 55 (footnotes omitted) (citing R. v. Stokesley (Yorkshire) Justices, Ex parte Bartram [1956] 1 All E.R. 563 at 565).

[25] [pic][26] [pic][27] [pic]Contrary to counsel's contention, then, we conclude that Rule 36-3 is constitutional. We also find that counsel violated the rule. Nevertheless, we are aware that Anastasoff may have cast doubt on our rule's constitutional validity. Our rules are obviously not meant to punish attorneys who, in good faith, seek to test a rule's constitutionality. We therefore conclude that the violation was not willful and exercise our discretion not to impose sanctions.

The order to show cause is DISCHARGED.

CHAPTER TWELVE

CHAPTER 13

United States Court of Appeals,

Fifth Circuit.

CARNIVAL LEISURE INDUSTRIES, LTD., Plaintiff-Appellee,

v.

George J. AUBIN, Defendant-Appellant.

No. 89-6289.

Aug. 16, 1991.

Owner of gambling casino in Bahamas sued gambler, seeking enforcement of debt incurred for credit advanced for gambling purposes. The United States District Court for the Southern District of Texas, Lynn N. Hughes, J., entered summary judgment for casino owner. Gambler appealed. The Court of Appeals, Garwood, Circuit Judge, held that Texas public policy prevents enforcement of such debts.

Reversed and remanded.

Vela, District Judge, sitting by designation, issued concurring opinion.

Texas public policy prevented enforcement of debt incurred for credit advanced to gambler by participant in gambling activity, a foreign casino; Texas' enactment of statutes legalizing some forms of gambling was not judicially cognizable change in public policy with respect to gambling generally, and even if it were, such shift would not be inconsistent with continued public policy disfavoring gambling on credit. V.T.C.A., Penal Code §§ 47.01-47.08.

*624 Clinard J. Hanby, Houston, Tex., for defendant-appellant.

Hugh L. McKenney, McKenney & Jesse, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD and WIENER, Circuit Judges, and VELA, District Judge. FN1

FN1. District Judge of the Southern District of Texas, sitting by designation.

GARWOOD, Circuit Judge:

Appellant-defendant George J. Aubin (Aubin) appeals the district court's grant of summary judgment in favor of appellee-plaintiff Carnival Leisure Industries, Ltd. (Carnival Leisure) enforcing a gambling debt of $25,000. Aubin claims that Texas public policy prevents enforcement of debts incurred for funds or credit advanced to a gambler for gambling purposes by a participant in the gambling activity. We agree and accordingly reverse.

Facts and Proceedings Below

During a January 1987 visit to the Bahamas, Aubin, a Texas resident, visited Cable Beach Hotel and Casino (the Casino), which was owned and operated by Carnival Leisure. While gambling at the Casino, Aubin received markers or chips from the Casino and the Casino received drafts drawn on Aubin's bank accounts in Texas. Aubin spent all of the markers provided on gambling, although he could also have spent them on food, beverages, souvenirs, or lodging at the Casino. Aubin ultimately gambled and lost $25,000, leaving the Casino with the same amount in bank drafts.

Carnival Leisure was unable to cash the bank drafts because Aubin had subsequently directed his bank to stop payment. Carnival Leisure sued Aubin in the United States District Court for the Southern District of Texas to enforce the debt. The district court granted Carnival Leisure's motion for summary judgment against Aubin in the amount of $25,000 and attorney's fees and costs. Carnival Leisure claimed that the debt was enforceable under Texas law because public policy had changed and now favored enforcement of gambling debts. The district court agreed. Aubin raises on appeal only the issue of whether public policy in Texas continues to prevent the enforcement of gambling debts.

*625 Discussion

Gulf Collateral, Inc. v. Johnston, 496 S.W.2d 123, 124 (Tex.Civ.App.1973), restates the long-standing rule in Texas against enforcing gambling debts:

“ ‘Patrons of gambling establishments occasionally borrow money from the proprietor or secure cash or chips from him by giving a check or other instrument, so as to take part in the game. It has been recognized that under such circumstances the proprietor (who is regarded as a participant in the game) cannot recover from the borrower on the loan or because the check or other instrument has been dishonored.’ ” Id. (quoting 53 A.L.R.2d at 372).

See Gulf Collateral, Inc. v. George, 466 S.W.2d 21 (Tex.Civ.App.1971); Gulf Collateral, Inc. v. Cauble, 462 S.W.2d 619 (Tex.Civ.App.1971); Springer v. Sahara Casinos Co., 322 S.W.2d 33 (Tex.Civ.App.1959). Both parties concede that under this rule Aubin's debt to Carnival Leisure would be unenforceable under Texas law.FN2

FN2. The district court looked solely to Texas law and made no determination of Bahamian law. Neither party challenges the district court's choice of Texas law in this case. We therefore do not rule on the question of whether the law of the Bahamas should have been applied or whether its application would require enforcement of Aubin's debt. Neither party has provided evidence (or requested judicial notice) as to Bahamian law or as to whether gambling is legal or whether gambling debts are legally enforceable in the Bahamas. It is noteworthy, however, that the Texas Supreme Court has stated that where collection of the gambling debt entails the cashing of a check (inferentially of a Texas resident) on a Texas bank, Texas courts apply Texas law. Castilleja v. Camero, 414 S.W.2d 424, 427 (Tex.1967) (citing Springer, supra, and Garza v. Richmond, 249 S.W. 889 (Tex.Civ.App.1923)); see George, 466 S.W.2d at 23.

Carnival Leisure claims, however, that since 1973 the public policy of Texas toward gambling and the legality of gambling debts has changed. Although gambling is generally proscribed in Texas, Tex.Penal Code §§ 47.01-.08, there has been an exception for the “social” gambler since 1973. Tex.Penal Code § 47.02(b). The Texas legislature enacted the Bingo Enabling Act in 1981, Tex.Rev.Civ.Stat.Ann. art. 179d (Vernon 1991), the Texas Racing Act in 1986, Tex.Rev.Civ.Stat.Ann. art. 179e (Vernon 1991), and the Charitable Raffle Enabling Act in 1989, Tex.Rev.Civ.Stat.Ann. art. 179f (Vernon 1991). Provisions were added to the Texas Penal Code excepting these three activities from its general proscription against gambling. Tex.Penal Code §§ 47.02(c), 47.10 (bingo exception); Tex.Penal Code § 47.11 (racing exception); Tex.Penal Code §§ 47.02(c), 47.12 (raffling exception).

The enactment of statutes legalizing some forms of gambling admittedly evidences some dissipation or narrowing of public disapproval of gambling. However, such statutes hardly introduce a judicially cognizable change in public policy with respect to gambling generally. See GNLV Corp. v. Jackson, 736 S.W.2d 893, 894 (Tex.App.1987) (stating in dicta that “Texas has a well-established public policy of not recognizing or enforcing rights arising from gambling transactions.”) (citation omitted). The social gambling permitted by section 47.02(b) is confined to private places where no one receives any benefit other than his personal winnings and all participants are subject to the same risks, a categorically vastly different kind of activity from the sort involved here. Moreover, Johnston was decided the same year section 47.02(b) was enacted, and Jackson was handed down over a decade later. The racing, bingo, and raffling exceptions are narrow, strictly regulated exceptions to a broad public policy in Texas against most forms of gambling.FN3 Further, the kind of *626 gambling engaged in here is not of the sort permitted by any of these exceptions.

FN3. Appellees rely on National Recovery Systems, Div. Assignee of Caesar Tahoe Corp. v. Kasle, 662 F.Supp. 139 (E.D.Mich.1987), arguing that the district court in that case ruled that Michigan's enactment of gambling statutes similar to gambling statutes enacted in Texas represented a shift in public policy. The Kasle court held that Michigan's public policy would not be offended by the enforcement of a gambling debt that would have been enforceable where the debt was incurred.

The reasoning of Kasle does not assist resolution of the instant case. First, a subsequent ruling by a federal district court flatly rejected Kasle 's assessment of Michigan's public policy. Boardwalk Regency Corp. v. Travelers Express Co., Inc., 745 F.Supp. 1266, 1272 (E.D.Mich.1990) (relying on Michigan statute that “conclusively establishes public policy regarding claims asserted by directly barring enforcement of contracts for gambling debts.”). Second, The Kasle court, in applying Nevada law, concluded that the debt sued upon would have been enforceable in Nevada, citing Sigel v. McEvoy, 101 Nev. 623, 707 P.2d 1145 (1985). The situation in Kasle is inapposite because the district court in the instant case applied only Texas and not Bahamian law.

In any event, we do not find Kasle 's reasoning persuasive insofar as it suggests that the Texas legislature's enactment of narrow, limited exceptions to its statute criminalizing gambling removes the public policy against the sort of gambling (and the enforcement of debts therefrom) that continues to be illegal.

Even if gambling legislation in Texas were evidence sufficient to warrant judicial notice of a shift in public policy with respect to legalized gambling, such a shift would not be inconsistent with a continued public policy disfavoring gambling on credit. See, e.g., King International Corp. v. Voloshin, 33 Conn.Supp. 166, 366 A.2d 1172, 1174 (Super.Ct.1976) (“It is not incongruous for a legislature to sanction certain forms of gambling and still refuse the collection of gambling debts.”). In fact, in enacting the Texas Racing Act, the legislature both expanded the field of legalized gambling and implicitly restated its disapproval of gambling on credit. The Act provides that the Texas Racing Commission “shall adopt rules prohibiting an association from accepting a wager made on credit and shall adopt rules prohibiting automatic banking machines within the enclosure.” Tex.Rev.Civ.Stat.Ann. art. 179e, § 11.04(c) (Vernon 1991).FN4 Bingo game operators are effectively prohibited from loaning bingo-generated funds to customers for the purpose of enabling participation in bingo games. See Tex.Rev.Civ.Stat.Ann. art. 179d, § 19a (Vernon 1991).

FN4. The Texas Racing Act also limits wagering according to the following terms: “Only a person inside the enclosure where a race meeting is authorized may wager on the result of a race presented by the association by contributing money to the pari-mutuel pool operated by the association.” Tex.Rev.Civ.Stat.Ann. art. 179e, § 11.04(a) (Vernon 1990). In the context of the prohibition of wagering on credit, it is reasonable to interpret “money” to mean only United States currency, thus further reinforcing the legislative policy against gambling on credit.

“On appeal, we evaluate a district court's decision to grant summary judgment by reviewing the record under the same standards used by the district court. Therefore, we cannot affirm a summary judgment ruling unless ‘we are convinced ... that the movant is “entitled to a judgment as a matter of law.” ’ ” Herrera v. Millsap, 862 F.2d 1157, 1159 (5th Cir.1989) (citations omitted) (quoting Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th Cir.1987) (quoting Fed.R.Civ.P. 56(c))). Although Aubin could have used the loaned markers for non-gambling purposes at the Casino, it is undisputed that they were in fact used exclusively for gambling. Aubin's gambling debt therefore fits squarely within the terms of Johnston 's statement of the public policy of Texas prohibiting enforcement of gambling debts owed to gambling participants incurred for the purpose of gambling.

Conclusion

We hold that the public policy in Texas against gambling on credit prevents enforcement of a debt incurred for the purpose of gambling and provided by a participant in the gambling activity. As “we are bound to apply state law as it is, not as we might wish that it were,” Sheppard Federal Credit Union v. Palmer, 408 F.2d 1369, 1372 (5th Cir.1969), the district court's grant of summary judgment in favor of Carnival Leisure is accordingly REVERSED and this case is REMANDED to the district court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

VELA, District Judge, concurring:

I reluctantly concur in this panel's opinion. I recognize that Texas case law currently supports Judge Garwood's well reasoned opinion and in all likelihood, the Texas Supreme Court would have come to the very same decision but the unfortunate outcome seems most inequitable.

*627 The change in Texas' public policy on gambling should not be described as an evolution but rather a revolution. With talk of a possible state lottery it appears more forms of gambling are becoming acceptable in this State. The result here may be legally justified, however it sends out a poor message to would be gamblers. Go on credit and the House takes the risk. Aubin had profited from a similar exception in Aubin v. Hunsucker, 481 S.W.2d 952 (Tex.Civ.App.Austin 1972), and once again avoids an obligation which was knowingly made.

As occasionally it occurs, an outcome which is unjust is not only legally valid but mandated. I therefore feel compelled to concur, but with the above mentioned explanations and frustrations.

C.A.5 (Tex.),1991.

Carnival Leisure Industries, Ltd. v. Aubin

938 F.2d 624

CHAPTER 15

Missouri Court of Appeals,

Southern District,

Division One.

In re the ESTATE OF Duncan R. DANFORTH, Deceased.

Frank DANFORTH and Janette Fiene, Respondents,

v.

Loretta Ollison DANFORTH, Appellant.

No. 14141.

Feb. 4, 1986.

Motion for Rehearing or To Transfer

to Supreme Court Denied

Feb. 19, 1986.

Application to Transfer Denied

March 25, 1986.

As surviving spouse of decedent, wife filed election to take against will. Decedent's children filed motion opposing such election and prayed for order and judgment denying wife inheritance. After bench trial, the Circuit Court, Camden County, Probate Division, Mary A. Dickerson, Associate Judge, entered judgment denying wife all rights as widow, and wife appealed. The Court of Appeals, Titus, P.J., held that wife's fraud in procuring marriage and her conspiracy in murder of decedent barred her from receiving any portion of estate.

Affirmed.

Bart L. Strother, Morris & Foust, Kansas City, for respondents.

John C. Milholland Cenobio Lozano, Jr., Harrisonville, for appellant.

TITUS, Presiding Judge.

Doctor Duncan R. Danforth, a 75-year-old man of substantial means, married 21-year-old Loretta Ollison (Loretta) on Wednesday, August 13, 1980. Immediately following the ceremony the newlyweds went to a lawyer's office where Dr. Danforth executed a newly prepared will naming Loretta a principal beneficiary of his estate. On Sunday, August 17, 1980, Dr. Danforth was murdered by Michael Stith (Stith), Loretta's lover, after two exconvicts employed by Stith and Loretta to kill Dr. Danforth reneged on their previous agreement to do so. Loretta was jury-convicted of conspiracy to commit capital murder, § 564.016,FN1 and sentenced to imprisonment for ten years which was affirmed upon appeal. State v. Danforth, 654 S.W.2d 912 (Mo.App.1983). Stith was jury-convicted of capital murder, formerly § 565.001, and sentenced to life imprisonment without the possibility of parole for 50 years. State v. Stith, 660 S.W.2d 419 (Mo.App.1983). After the probate court granted letters testamentary to Dr. Danforth's 1980 will, the children of Dr. Danforth filed a will contest case in which the circuit court entered judgment setting aside the 1980 will on the basis of fraud and establishing a previous 1978 will as the last will and testament of Dr. Danforth. Danforth v. Danforth, 663 S.W.2d 288 (Mo.App.1983). As the surviving spouse of Dr. Danforth, Loretta on May 11, 1984, filed her election to take against the 1978 will. § 474.160. Dr. Danforth's children filed a motion “in opposition” and “objecting” to such election and prayed for an order and judgment denying Loretta inheritance, etc. After a bench trial, the court entered judgment denying Loretta all rights as the widow. This appeal ensued.

FN1. Statutory references are to V.A.M.S.

[1] [pic][2] [pic][3] [pic][4] [pic][5] [pic]Loretta proffered no evidence in this matter. At the trial hereof Dr. Danforth's children, among other things, offered Exhibit C consisting of a copy of the transcript of the trial wherein Loretta was tried and convicted of conspiracy to commit capital murder. Loretta's first point relied on, in substance, is that as the children introduced the criminal case transcript, wherein Loretta and her parents as part of her defense testified Loretta's marriage to Dr. Danforth was not induced by fraud, the children are bound thereby and therefore the trial court erred in entering judgment denying Loretta's election to take against the 1978 will. This ignores the fact the transcript and opinion of Danforth, 654 S.W.2d 912, were expressly offered and admitted for the limited and specific purpose of providing the court nisi with factual background. When evidence, as here, is proffered and admitted for one purpose only it may not be used for another and different purpose. 88 C.J.S. Trial, § 87 (1955). Courts take judicial notice of the laws of Missouri which include opinions of appellate courts, and it is permissible to examine the record resulting in an opinion to ascertain the grounds upon which an opinion is based. Matthews v. McVay, 241 Mo.App. 998, 1006[6, 7], 234 S.W.2d 983, 988[6, 7] (1950). Even if we assume, and we do not, that the introduction of the transcript for the limited purpose noted somehow made Loretta and her parents witnesses for the children, Loretta's contentions overlook the rule that a party is not bound by the testimony of his witnesses insofar as such testimony, as here, is strongly contradicted by the party's other evidence. Young v. Kansas City Southern Railway Company, 374 S.W.2d 150, 153[3] (Mo.1964). Or, differently stated, a party is bound by testimony of a witness called by him only if that testimony stands uncontradicted. If such testimony is contradicted*611 by other evidence and circumstances, the party offering the witness is not bound by the unfavorable testimony. International Harvester Credit v. Formento, 593 S.W.2d 576, 578[2] (Mo.App.1979). Furthermore, as arbiter of the facts, the trial judge had leave to believe or disbelieve all, part or none of the testimony of any witness and, even if such testimony is not contradicted, the trial court does not have to believe it. Barnes v. Bank of Bourbon, 619 S.W.2d 906, 907[2] (Mo.App.1981); Gee v. Gee, 605 S.W.2d 815, 818[5] (Mo.App.1980). Loretta's first point is denied.

In Danforth v. Danforth, 663 S.W.2d 288, the children of Dr. Danforth in 1980 filed a two-count petition to contest his 1980 will. § 473.083. Count I alleged that when the doctor executed the 1980 will he was not possessed of the necessary capacity to make a will, and that the will was procured by Loretta's undue influence and fraud and was therefore invalid. Count II “in the alternative,” inter alia, alleged Loretta “was reduced to widowhood by her own felonious act [and] is therefore forever barred from her inheritance rights” or from taking under the will. The children, ere trial, voluntarily dismissed Count II “without prejudice” and, per jury verdict, it was held and affirmed on appeal the 1980 will was procured by Loretta's fraud and was invalid. In 1981 Loretta filed a four-count Petition for Damages for libel because of what Dr. Danforth's children had alleged in Count II of the Petition to Contest Will. The children answered in the form of general denials and alleged that none of Loretta's counts stated a cause of action and that the words used by the children in Count II of the will contest action were privileged. The children filed no counterclaim and before the cause came to trial, Loretta dismissed her Petition for Damages “with prejudice to its refiling and at the cost of plaintiff.”

As written, Loretta's second point relied on is diffuse and difficult to comprehend. The best we can understand it is that Loretta is claiming the court nisi erred in denying her election to take against the 1978 will because the children's claimed objection to such election “was required to have been filed as a compulsory counterclaim in the libel action but it was not [and the children's present] claim is barred for failure to plead it as a counterclaim in the libel action.”

[6] [pic][7] [pic]Even if it be assumed, and we make no such assumption, see Rule 55.32(a), V.A.M.R., the children's present contentions were required to be made in a compulsory counterclaim in the libel action, the trouble we find with Loretta's second point is that the libel action was voluntarily dismissed with prejudice without a trial and up to the time of dismissal the trial court had the discretionary power to permit the children, by amendment, to file such a counterclaim. Rule 55.32(e), V.A.M.R. A dismissal, as here, with prejudice simply serves as a mechanism to terminate the litigation rather than to adjudicate the issues therein involved. Denny v. Mathieu, 452 S.W.2d 114, 118[3] (Mo. banc 1970); Peoples-Home Life Ins. Co. v. Haake, 604 S.W.2d 1, 8-9[9] (Mo.App.1980). Under such circumstances, the failure of the children to counterclaim before the dismissal, if such was necessary, should not act as a bar to any present assertions by them. Black v. Sanders, 414 S.W.2d 241, 244[4] (Mo.1967). Loretta's second point relied on is denied.

[8] [pic]As written, Loretta's third point relied on is complex and prolix. In substance, the understandable portion of the point and the argument thereunder, is the claim that fraud cannot be the basis for excluding her from benefiting from the estate as fraud is not grounds for posthumously annulling a marriage. She also suggests that as § 474.160 does not expressly divest the rights there given a surviving spouse because she has been convicted of conspiracy to commit capital murder, the trial court erred in holding her conviction served to forfeit such statutory rights.

It was held in In re Estate of Laspy, 409 S.W.2d 725, 736[9] (Mo.App.1966), that the *612 judgment of the wife's criminal conviction “shall be accepted as conclusive evidence in this civil suit that the killing of her husband was not done in self-defense, was legally unjustifiable, and was an intentional manslaughter-hence, a crime that bars her from any benefit arising out of her victim's estate, and that she is collaterally estopped by that judgment from further consideration of the issues it determined.” The term “surviving spouse” as used in § 474.160 and other sections of the probate code, “means one who has been reduced to that condition by the ordinary and usual vicissitudes of life, and not one who, by felonious act, has himself created that condition.” Perry v. Strawbridge, 209 Mo. 621, 645-646[5], 108 S.W. 641, 648[7] (1908).

A reading of State v. Danforth, and the other opinions cited in the first paragraph hereof, quickly demonstrates that Loretta's fraud in procuring the marriage and her conspiracy in the murder of Dr. Danforth cannot be disputed. Whether the marriage was void or voidable is not in question as the marriage itself is not under collateral attack. Instead, Loretta's undertaking to enrich herself via her fraud and conspiracy to commit murder is under direct attack. If, as the record demonstrates, Loretta's marriage to Dr. Danforth was not in good faith and without love but only with mercenary motives to acquire his property, she was guilty of fraud. Andris v. Andris, 343 Mo. 1162, 1166 [1], 125 S.W.2d 38, 40[1] (1938). As quoted by State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 502 (Mo.App.1985), “no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his iniquity, or to acquire property by his own crime.” If Loretta's arguments are sound, she would be permitted to receive an estate, or a major portion thereof, which issues from her own fraud and which emanates from her own involvement in criminally obtaining the death of her supposed benefactor. We recite from respondents' brief: “Loretta attempts to escape the law by arguing that her particular iniquity has not yet been held to bar a spouse. The same argument was made by Mr. Evans ( Perry v. Strawbridge ) and by Mrs. Laspy ( In Re Estate of Laspy ). Like them, Loretta too can take solace in being the first.” The third point relied on is denied.

Loretta's fourth and final point relied on reads: “The court erred in entering judgment against appellant because there is no competent evidence in the record to prove that Mike Stith murdered appellant's husband, a condition precedent to holding appellant to be vicariously liable for murder and barred from inheritance by having murdered her husband, in that, respondent's only evidence on the point [an appellate court opinion] is inadmissible hearsay, admitted over objection of appellant.”

Section 477.231, in part, declares: “The supreme court may declare the published volumes of the decisions of the supreme court as the same are published by any person, firm or corporation, to be official reports of the decisions of the supreme court, and the court of appeals may jointly make a similar declaration with respect to published volumes of the opinions of the court of appeals.” In accordance with such authorization, there appears in the front portion of each volume of the South Western Reporter-Missouri Cases declarations of the Missouri Supreme Court and the Missouri Courts of Appeal that published volumes of the decisions of each court appearing in the South Western Reporter be the official reports of the opinions of such courts.

[9] [pic][10] [pic]Loretta's final point ignores the provisions of § 477.231, the declaration just noted and the fact that the trial court took “judicial notice” of the three cases cited in the opening paragraph of this opinion as reported in the South Western Reporter. The trial court did not take “judicial notice” of the photocopies of such opinions, only the reported opinions, as the photocopies were employed as a matter of convenience only. Also, the trial court was asked to “judicially notice” State v. Stith for the limited and lone purpose of the fact of Stith's conviction and not as evidence of the facts upon which his murder conviction was *613 predicated. Moreover, no objection at trial was made to the photocopy exhibits of the published opinions for the reasons they were photocopies. Upon appeal the only objections to evidence that can be considered are those that are made in the trial court. State ex rel. State Highway Comm. v. Northeast Building Company, 421 S.W.2d 297, 301[4] (Mo.1967).

Loretta's final point is denied and the judgment nisi is affirmed.FN2

FN2. Respondents' “request for damages” pursuant to Rule 84.19 is overruled. Also, “Appellant's Motion to Strike Respondents' Statement of Facts” which was “taken with the case” is hereby overruled.

FLANIGAN and GREENE, JJ., concur.

CHAPTER 18

Supreme Court of the United States

Margaret KAWAAUHAU, et vir., Petitioners,

v.

Paul W. GEIGER.

No. 97-115.

Argued Jan. 21, 1998.

Decided March 3, 1998.

Judgment creditors filed complaint seeking to deny discharge of debts owed by Chapter 7 debtor-physician resulting from malpractice action. The Bankruptcy Court, David P. McDonald, J., 172 B.R. 916, found for creditors, and debtor appealed. The United States District Court for the Eastern District of Missouri, Jean C. Hamilton, Chief Judge, affirmed, and debtor appealed. A panel of the United States Court of Appeals for the Eight Circuit reversed, 93 F.3d 443, and rehearing en banc was granted. The Court of Appeals, 113 F.3d 848, adhered to panel's decision. Certiorari was granted. The Supreme Court, Justice Ginsburg, held that debts arising from recklessly or negligently inflicted injuries do not fall within the willful and malicious injury exception to discharge.

Affirmed.

Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

When petitioner Kawaauhau sought treatment for her injured foot, respondent Dr. Geiger examined and hospitalized her to attend to the risk of infection. Although Geiger knew that intravenous penicillin would have been more effective, he prescribed oral penicillin, explaining in his testimony that he understood his patient wished to minimize treatment costs. Geiger then departed on a business trip, leaving Kawaauhau in the care of other physicians, who decided she should be transferred to an infectious disease specialist. When Geiger returned, he canceled the transfer and discontinued all antibiotics because he believed the infection had subsided. Kawaauhau's condition deteriorated, requiring amputation of her leg below the knee. After trial in the malpractice suit brought by Kawaauhau and her husband, the jury found Geiger liable and awarded the Kawaauhaus approximately $355,000 in damages. Geiger, who carried no malpractice insurance, moved to Missouri, where his wages were garnished by the Kawaauhaus. Geiger then petitioned for bankruptcy. The Kawaauhaus requested the Bankruptcy Court to hold the malpractice judgment nondischargeable under **975 11 U.S.C. § 523(a)(6), which provides that a “discharge [in bankruptcy] ... does not discharge an individual debtor from any debt ... for willful and malicious injury ... to another.” Concluding that Geiger's treatment fell far below the appropriate standard of care and therefore ranked as “willful and malicious,” that court held the debt nondischargeable. The District Court affirmed, but the Eighth Circuit reversed, holding that § 523(a)(6)'s exemption from discharge is confined to debts for an intentional tort, so that a debt for malpractice remains dischargeable because it is based on negligent or reckless conduct.

Held: Because a debt arising from a medical malpractice judgment attributable to negligent or reckless conduct does not fall within the § 523(a)(6) exception, the debt is dischargeable in bankruptcy. Section 523(a)(6)'s words strongly support the Eighth Circuit's reading that only acts done with the actual intent to cause injury fall within the exception's scope. The section's word “willful” modifies the word “injury,” indicating that nondischargeability takes a deliberate or intentional injury, not merely, as the Kawaauhaus urge, a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts *58 resulting from unintentionally inflicted injuries, it might have described instead “willful acts that cause injury” or selected an additional word or words, i.e., “reckless” or “negligent,” to modify “injury.” Moreover, § 523(a)(6)'s formulation triggers in the lawyer's mind the category “intentional torts,” which generally require that the actor intend the consequences of an act, not simply the act itself. The Kawaauhaus' more encompassing interpretation could place within the excepted category a wide range of situations in which an act is intentional, but injury is unintended, i.e., neither desired nor in fact anticipated by the debtor. A construction so broad would be incompatible with the well-known guide that exceptions to discharge should be confined to those plainly expressed, and would render superfluous the exemptions from discharge set forth in §§ 523(a)(9) and 523(a)(12). The Kawaauhaus rely on Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754, which held that a damages award for the tort of “criminal conversation” survived bankruptcy under the 1898 Bankruptcy Act's exception from discharge for judgments in civil actions for “ ‘willful and malicious injuries.’ ” The Tinker opinion repeatedly recognized that at common law the tort in question ranked as trespass vi et armis, akin to a master's “ ‘action of trespass and assault ... for the battery of his servant.’ ” Tinker placed criminal conversation solidly within the traditional intentional tort category, and this Court so confines its holding; that decision provides no warrant for departure from the current statutory instruction that, to be nondischargeable, the judgment debt must be “for willful and malicious injury.” See, e.g., Davis v. Aetna Acceptance Co., 293 U.S. 328, 332, 55 S.Ct. 151, 153, 79 L.Ed. 393. The Kawaauhaus' argument that, as a policy matter, malpractice judgments should be excepted from discharge, at least when the debtor acted recklessly or carried no malpractice insurance, should be addressed to Congress. Debts arising from reckless or negligently inflicted injuries do not fall within § 523(a)(6)'s compass. Pp. 976-978.

113 F.3d 848 (C.A.8 1997), affirmed.

GINSBURG, J., delivered the opinion for a unanimous Court.

Norman W. Pressman, St. Louis, MO, for petitioners.

Laura K. Grandy, Belleville, IL, for respondent.

*59 Justice GINSBURG delivered the opinion of the Court.

Section 523(a)(6) of the Bankruptcy Code provides that a debt “for willful and malicious injury by the debtor to another” is not dischargeable. 11 U.S.C. § 523(a)(6). The question before us is whether a debt arising from a medical malpractice judgment, attributable to negligent or reckless conduct, falls within this statutory exception. We hold **976 that it does not and that the debt is dischargeable.

I

In January 1983, petitioner Margaret Kawaauhau sought treatment from respondent Dr. Paul Geiger for a foot injury. Geiger examined Kawaauhau and admitted her to the hospital to attend to the risk of infection resulting from the injury. Although Geiger knew that intravenous penicillin would have been more effective, he prescribed oral penicillin, explaining in his testimony that he understood his patient wished to minimize the cost of her treatment.

Geiger then departed on a business trip, leaving Kawaauhau in the care of other physicians, who decided she should be transferred to an infectious disease specialist. When Geiger returned, he canceled the transfer and discontinued all antibiotics because he believed the infection had subsided. Kawaauhau's condition deteriorated over the next few days, requiring the amputation of her right leg below the knee.

Kawaauhau, joined by her husband Solomon, sued Geiger for malpractice. After a trial, the jury found Geiger liable and awarded the Kawaauhaus approximately $355,000 in damages.FN1 Geiger, who carried no malpractice insurance, FN2 *60 moved to Missouri, where his wages were garnished by the Kawaauhaus. Geiger then petitioned for bankruptcy. The Kawaauhaus requested the Bankruptcy Court to hold the malpractice judgment nondischargeable on the ground that it was a debt “for willful and malicious injury” excepted from discharge by 11 U.S.C. § 523(a)(6). The Bankruptcy Court concluded that Geiger's treatment fell far below the appropriate standard of care and therefore ranked as “willful and malicious.” Accordingly, the Bankruptcy Court held the debt nondischargeable. In re Geiger, 172 B.R. 916, 922-923 (Bkrtcy.Ct.E.D.Mo.1994). In an unpublished order, the District Court affirmed. App. to Pet. for Cert. A-18 to A-22.

FN1. The jury awarded Margaret Kawaauhau $203,040 in special damages and $99,000 in general damages. In re Geiger, 172 B.R. 916, 919 (Bkrtcy.Ct.E.D. Mo.1994). In addition, the jury awarded Solomon Kawaauhau $18,000 in general damages for loss of consortium and $35,000 for emotional distress. Ibid.

FN2. Although the record is not clear on this point, it appears that Dr. Geiger was not required by state law to carry medical malpractice insurance. See Tr. of Oral Arg. 19.

A three-judge panel of the Court of Appeals for the Eighth Circuit reversed, 93 F.3d 443 (1996), and a divided en banc court adhered to the panel's position, 113 F.3d 848 (1997) (en banc). Section 523(a)(6)'s exemption from discharge, the en banc court held, is confined to debts “based on what the law has for generations called an intentional tort.” Id., at 852. On this view, a debt for malpractice, because it is based on conduct that is negligent or reckless, rather than intentional, remains dischargeable.

The Eighth Circuit acknowledged that its interpretation of § 523(a)(6) diverged from previous holdings of the Sixth and Tenth Circuits. See id., at 853 (citing Perkins v. Scharffe, 817 F.2d 392, 394(CA6), cert. denied, 484 U.S. 853, 108 S.Ct. 156, 98 L.Ed.2d 112 (1987), and In re Franklin, 726 F.2d 606, 610 (C.A.10 1984)). We granted certiorari to resolve this conflict, 521 U.S. 1153, 118 S.Ct. 31, 138 L.Ed.2d 1061 (1997), and now affirm the Eighth Circuit's judgment.

II

Section 523(a)(6) of the Bankruptcy Code provides:

“(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt-

*61 . . . . .

“(6) for willful and malicious injury by the debtor to another entity or to the property of another entity.”

The Kawaauhaus urge that the malpractice award fits within this exception because Dr. Geiger intentionally rendered inadequate medical care to Margaret Kawaauhau that necessarily led to her injury. According to the Kawaauhaus, Geiger deliberately chose **977 less effective treatment because he wanted to cut costs, all the while knowing that he was providing substandard care. Such conduct, the Kawaauhaus assert, meets the “willful and malicious” specification of § 523(a)(6).

We confront this pivotal question concerning the scope of the “willful and malicious injury” exception: Does § 523(a)(6)'s compass cover acts, done intentionally,FN3 that cause injury (as the Kawaauhaus urge), or only acts done with the actual intent to cause injury (as the Eighth Circuit ruled)? The words of the statute strongly support the Eighth Circuit's reading.

FN3. The word “willful” is defined in Black's Law Dictionary as “voluntary” or “intentional.” Black's Law Dictionary 1434 (5th ed.1979). Consistently, legislative reports note that the word “willful” in § 523(a)(6) means “deliberate or intentional.” See S.Rep. No. 95-989, p. 79 (1978) U.S.Code Cong. & Admin.News pp. 5787, 5864; H.R.Rep. No. 95-595, p. 365 (1977) U.S.Code Cong. & Admin.News pp. 5963, 6320.

[1] [pic][2] [pic][3] [pic][4] [pic][5] [pic]The word “willful” in (a)(6) modifies the word “injury,” indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts resulting from unintentionally inflicted injuries, it might have described instead “willful acts that cause injury.” Or, Congress might have selected an additional word or words, i.e., “reckless” or “negligent,” to modify “injury.” Moreover, as the Eighth Circuit observed, the (a)(6) formulation triggers in the lawyer's mind the category “intentional torts,” as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend “the conse quences*62 of an act,” not simply “the act itself.” Restatement (Second) of Torts § 8A, Comment a, p. 15 (1964) (emphasis added).

The Kawaauhaus' more encompassing interpretation could place within the excepted category a wide range of situations in which an act is intentional, but injury is unintended, i.e., neither desired nor in fact anticipated by the debtor. Every traffic accident stemming from an initial intentional act-for example, intentionally rotating the wheel of an automobile to make a left-hand turn without first checking oncoming traffic-could fit the description. See 113 F.3d, at 852. A “knowing breach of contract” could also qualify. See ibid. A construction so broad would be incompatible with the “well-known” guide that exceptions to discharge “should be confined to those plainly expressed.” Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915).

Furthermore, “we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 837, 108 S.Ct. 2182, 2189, 100 L.Ed.2d 836 (1988). Reading § 523(a)(6) as the Kawaauhaus urge would obviate the need for § 523(a)(9), which specifically exempts debts “for death or personal injury caused by the debtor's operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance.” 11 U.S.C. § 523(a)(9); see also § 523(a)(12) (exempting debts for “malicious or reckless failure” to fulfill certain commitments owed to a federal depository institutions regulatory agency).FN4

FN4. Sections 523(a)(9) and (12) were added to the Bankruptcy Code in 1984 and 1990 respectively. See Pub.L. 98-353, 98 Stat. 364 (1984), and Pub.L. 101-647, 104 Stat. 4865 (1990).

The Kawaauhaus heavily rely on Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), which presented this question: Does an award of damages for “criminal conversation” survive bankruptcy under the 1898 Bankruptcy Act's exception from *63 discharge for judgments in civil actions for “ ‘willful and malicious injuries to the person or property of another’ ”? Id., at 481, 24 S.Ct., at 506. The Tinker Court held such an award a nondischargeable debt. The Kawaauhaus feature certain statements in the Tinker opinion, in particular: “[An] act is willful ... in the sense that it is intentional and voluntary” even if performed “without any particular malice,” id., at 485, 24 S.Ct., at 508; an act that “necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the [bankruptcy discharge] exception,” **978 id., at 487, 24 S.Ct., at 509. See also id., at 487, 24 S.Ct., at 509 (the statute exempts from discharge liability for “ ‘a wrongful act, done intentionally, without just cause or excuse’ ”) (quoting from definition of malice in Bromage v. Prosser, 4 Barn. & Cress. 247, 107 Eng. Rep. 1051 (K.B.1825)).

The exposition in the Tinker opinion is less than crystalline. Counterbalancing the portions the Kawaauhaus emphasize, the Tinker Court repeatedly observed that the tort in question qualified in the common law as trespassory. Indeed, it ranked as “trespass vi et armis.” 193 U.S., at 482, 483, 24 S.Ct., at 507. Criminal conversation, the Court noted, was an action akin to a master's “action of trespass and assault ... for the battery of his servant,” id., at 482, 24 S.Ct., at 507. Tinker thus placed criminal conversation solidly within the traditional intentional tort category, and we so confine its holding. That decision, we clarify, provides no warrant for departure from the current statutory instruction that, to be nondischargeable, the judgment debt must be “for willful and malicious injury.”

Subsequent decisions of this Court are in accord with our construction. In McIntyre v. Kavanaugh, 242 U.S. 138, 37 S.Ct. 38, 61 L.Ed. 205 (1916), a broker “deprive[d] another of his property forever by deliberately disposing of it without semblance of authority.” Id., at 141, 37 S.Ct., at 39. The Court held that this act constituted an intentional injury to property of another, bringing it within the discharge exception. But in *64 Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934), the Court explained that not every tort judgment for conversion is exempt from discharge. Negligent or reckless acts, the Court held, do not suffice to establish that a resulting injury is “wilful and malicious.” See id., at 332, 55 S.Ct., at 153.

Finally, the Kawaauhaus maintain that, as a policy matter, malpractice judgments should be excepted from discharge, at least when the debtor acted recklessly or carried no malpractice insurance. Congress, of course, may so decide. But unless and until Congress makes such a decision, we must follow the current direction § 523(a)(6) provides.

* * *

We hold that debts arising from recklessly or negligently inflicted injuries do not fall within the compass of § 523(a)(6). For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is

Affirmed.

CHAPTER 19

United States Court of Appeals,

Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald V. CLOUD, Defendant-Appellant.

No. 87-1197.

Argued and Submitted June 15, 1988.

Decided April 5, 1989.

Defendant was convicted, in the United States District Court for the Northern District of California, Samuel Conti, J., of bank fraud and conspiracy to commit bank fraud, and ordered to pay restitution to victim's insurer, and he appealed. The Court of Appeals, Cynthia Holcomb Hall, Circuit Judge, held that: (1) convictions were supported by sufficient evidence, and (2) defendant was properly ordered to pay restitution to victim's insurer.

Affirmed.

Howard L. Weitzman and Steve Cochran, Wyman, Bautzer, Christensen, Kuchel & Silbert, Los Angeles, Cal., for defendant-appellant.

Ross W. Nadel, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

David T. DiBiase, Michael S. Robinson, Anderson, McPharlin & Conners, Los Angeles, Cal., for the amicus curiae, Continental Ins. Co.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE, ALARCON and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Appellant Ronald V. Cloud appeals from his conviction following a jury trial on charges of aiding and abetting bank fraud, in violation of 18 U.S.C. §§ 2 and 1344 (1982 & Supp. IV 1986), and conspiracy to commit bank fraud, in violation of 18 U.S.C. § 371 (1982). Cloud also challenges the district court's order, entered pursuant to the Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 3663-3664 (Supp. IV 1986) (“VWPA”), requiring him to pay $7.5 million restitution to the insurance company that compensated the direct victim of the bank fraud at issue in this case. We affirm both appellant's conviction and the district court order of restitution.

I

The charges in this case stem from the January 1985 sale of the Cal-Neva Lodge, a hotel and casino complex located in the Lake Tahoe area near the California-Nevada border, by Ronald Cloud to Jon R. Perroton and Cobalt Capitol Corporation, a business association controlled by Perroton.FN1

FN1. On June 21, 1985, Jon Perroton was sentenced to twenty years in prison after he pleaded guilty to three counts of bank larceny, interstate transportation of moneys taken by fraud, and bank fraud, in violation of 18 U.S.C. §§ 2113(b), 2314, and 1344 (1982 & Supp. IV 1986), respectively. Perroton was prosecuted in the district court for the Northern District of California in case CR-85-0130-SC. Only the bank fraud count arose out of his purchase of the Cal-Neva Lodge. Perroton was also ordered to pay restitution in the amount of $10 million, or a sum to be determined by the probation office.

Viewed in the light most favorable to the government, the evidence adduced at trial is as follows. Appellant Ronald Cloud is a sophisticated, 68-year old entrepreneur who has been in business for over forty years. He currently owns companies in the business of plumbing, irrigation, electric appliances, and grape cultivation. Cloud is experienced in the purchase and sale of real property and has extensive real estate holdings, valued at the time of trial at over $65 million. Appellant also has experience in the fields of banking and finance, having been the founder and chairman of Continental National Bank of Fresno.

In July of 1980, Cloud (along with his wife, Jessman Cloud) FN2 purchased the Cal-Neva Lodge for $10 million from Tracinda Corporation. To finance this purchase, Cloud assumed a $4.3 million loan with First Interstate Bank and Tracinda carried another $4.8 million in the form of a second mortgage. Cloud's equity in the Lodge at the time of purchase appears to have been approximately $1.9 million. After three years of mounting operating losses, Cloud closed the Lodge and actively began seeking a new buyer in October of 1983.

FN2. Although she was nominally a party to the transactions by which her husband purchased and resold the Cal-Neva Lodge, Jessman Cloud was not charged in connection with the bank fraud at issue in this case.

Cloud's first contacts with Jon Perroton took place over a year later in December of 1984. At that time the two men met and orally agreed that Cloud would transfer the Cal-Neva Lodge to Perroton for $18 million. Cloud refused to sign any documents *849 with respect to the sale at that stage of their dealings.

On January 2, 1985, Perroton first met with an officer of Hibernia Bank, a vice president for corporate lending named Louis Chou, to discuss a possible loan transaction to finance his purchase of the Cal-Neva Lodge. It is undisputed that Perroton made multiple false representations during the financing negotiations and presented falsified documents, including a forged sales agreement, in order to obtain the $20 million loan that Hibernia approved on January 9, 1985. In particular, Perroton told Chou that the sale price for the Lodge was to be $27.5 million and that $7.5 million had already been paid to the Clouds outside of escrow. Perroton also falsely asserted that Sheraton Hotels would lease and operate the Cal-Neva, and would guarantee any loan Hibernia made to finance the acquisition of the Lodge.

The Cal-Neva transaction proceeded swiftly toward closing. An escrow was opened with Transamerica Title Company on January 8, 1985, by an escrow officer named Mickey Eakin. At that time, Perroton misrepresented the essential terms of the sale to Eakin, just as he had to Hibernia. Cloud met with Perroton again for approximately half an hour on January 9, 1985, at which time they agreed to adjust the sale price downward to $17,030,000. On January 11, 1985, Hibernia prepared cashier's checks totalling $20 million for deposit in escrow to be held uncashed by Eakin until the close of escrow. Although Hibernia issued these checks on January 14, 1985, the funds continued to be the bank's property until the close of escrow.

According to Eakin, Cloud spoke with her three or four times over the telephone prior to closing to inquire about the progress of the transaction and the projected closing date. Cloud met Eakin in person for the first time on January 15, 1985. On that date Perroton and his partner, Gene Cochran, drove Cloud-along with his son Steve Cloud, and attorney, James Samarco-to the San Francisco offices of Transamerica Title from the airport into which the Cloud party had flown from Fresno in Cloud's private plane. The purpose of the January 15 meeting was to sign mutual escrow instructions on the Cal-Neva Lodge sale.

Eakin testified that the five men met that day in a conference room at Transamerica, outside of her hearing, to discuss the escrow instructions that she had presented. The only evidence of what happened in the conference room came from Ronald and Steve Cloud and James Samarco. Their testimony revealed that Cloud reviewed the escrow instructions, and noticed that the sale price and down payment figures were inaccurately stated at $27.5 million and $7.5 million, respectively. Cloud also noticed that the Hibernia loan to Perroton was for $20 million, almost $3 million above what he knew to be the true sale price.

The Clouds and Samarco were clearly concerned about the false figures that appeared in the escrow instructions, especially about the tax consequences of the inflated sale price. Without explanation, Samarco asked Eakin to make certain additions to the escrow instructions, including the following language: “Seller to net the sum of $17,030,000 plus or minus the proration of taxes and bonds and less the first and second trust deeds.” (Emphasis added). As thus amended, the escrow instructions continued to reflect a sale price of $27.5 million and a down payment of $7.5 million, figures that Perroton insisted were “for [his] purposes only.”

Cloud signed the amended escrow instructions and the grant deeds to the property, and took both sets of documents home to Fresno so that his wife could sign them. Cloud returned the signed escrow instructions to Transamerica Title three days later, on January 18, 1985. Hibernia was informed on January 22, 1985 that the instructions had been signed.

The Cal-Neva Lodge escrow closed on January 23, 1985, at a meeting at Transamerica Title at which Cloud, Samarco, Perroton, and Cochran were present. Eakin disbursed the $20 million loan proceeds after receiving authorization from Hibernia. Eakin also prepared a settlement statement *850 for the transaction containing the same false $27.5 million sale price and $7.5 million “cash outside of escrow” figures that had been supplied by the parties. Cloud reviewed the settlement statement at the closing but did not discuss its contents. Finally, Eakin issued checks to Cloud personally for $10,067,137, and to Cloud's mortgagees for $6,971,803. Taken together these checks totalled $17,038,940-roughly the amount that Cloud's amendments to the escrow instructions indicated he was to “net” from the sales proceeds.

Hibernia claims that its losses on the Cal-Neva Lodge loan exceeded $24.5 million. The bank has recovered a substantial portion of this asserted loss from, among others, its insurer, Continental Insurance Company. Pursuant to a settlement agreement executed on July 19, 1985, Continental paid $7.5 million to resolve Hibernia's claim of loss under the terms of a “banker's blanket bond.” Hibernia also recovered $1.5 million from Cloud upon an settlement agreement executed on June 18, 1987.FN3

FN3. Hibernia acquired the Cal-Neva Lodge and sold it for $10 million; the bank also recovered $2.2 million from Perroton, and $2.6 million from the law firm that prepared its escrow instructions for the Cal-Neva transactions. To date, then, it appears that Hibernia has recovered $23.8 million of its losses.

II

Cloud argues that the foregoing evidence is insufficient to support his convictions for aiding and abetting bank fraud and for conspiracy. There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found each of the essential elements of the crime beyond a reasonable doubt. United States v. Penagos, 823 F.2d 346, 347 (9th Cir.1987); United States v. Pemberton, 853 F.2d 730, 733 (9th Cir.1988).

A

[1] [pic]In order to obtain a conviction for bank fraud in violation of 18 U.S.C. § 1344,FN4 the government must prove beyond a reasonable doubt that the defendant knowingly (1) engaged in a scheme to defraud a federally chartered or insured financial institution, or (2) participated in a scheme to obtain money under custody or control of a federally chartered or insured financial institution by means of material, false statements or representations. See United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir.1987). For purposes of the bank fraud statute, the terms “scheme” and “artifice” are defined to include “any plan, pattern or cause [sic] of action, including false and fraudulent pretenses and misrepresentations, intended to deceive others in order to obtain something of value, such as money, from the institution to be deceived.” Id. It is sufficient to prove that there was a fraudulent scheme in which the defendant participated; it is not determinative that a defendant was not on hand at the “launching” of the scheme if he “came aboard” later. See United States v. Toney, 598 F.2d 1349, 1356 (5th Cir.1979), cert. denied, 444 U.S. 1033, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980) (mail fraud).

FN4. Section 1344(a) defines bank fraud as the knowing execution or attempted execution of “a scheme or artifice-(1) to defraud a federally chartered or insured financial institution; or (2) to obtain any of the moneys ... owned by or under the custody or control of a federally chartered or insured financial institution by means of false or fraudulent pretenses, representations, or promises....” 18 U.S.C. § 1344(a) (Supp. IV 1986).

Conviction as an aider and abettor requires proof beyond a reasonable doubt that the defendant willingly associated himself with a criminal venture and participated therein as something he wished to bring about. United States v. Zemek, 634 F.2d 1159, 1174 (9th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 (1981). Aiding and abetting means to assist the perpetrator of a crime. United States v. Reese, 775 F.2d 1066, 1072 (9th Cir.1985); United States v. Barnett, 667 F.2d 835, 841 (9th Cir.1982). An abettor's criminal intent may be inferred from the attendant facts and circumstances and need not be established by direct evidence. *851 Reese, 775 F.2d at 1072; see also Zemek, 634 F.2d at 1180.

The evidence in this case established that sometime in December of 1984 or early January of 1985, Jon Perroton “launched” a fraudulent scheme to obtain money from Hibernia Bank by means of false representations. It is uncontroverted that Perroton falsely stated the sale price and down payment for the Cal-Neva Lodge, and presented a forged sales agreement to the bank, in order to obtain funds with which to complete the Cal-Neva transaction with Cloud.

[2] [pic]The issue before this court, however, is whether a rational trier of fact could conclude on the basis of all the evidence that Cloud at some point knowingly “came aboard” and participated in Perroton's bank fraud scheme. We conclude that a reasonable jury could have found that Cloud “came aboard” on January 15, 1985, at the meeting to sign the escrow instructions, if not before.

There is no question Cloud knew that the sale price was not $27.5 million, that he had not received $7.5 million outside of escrow, and that on their face the escrow instructions (as well as the settlement statement later derived from them) reflected these false figures. There is likewise no doubt that Cloud, who was a sophisticated businessman with extensive experience both in real estate transactions and in banking, knew that the escrow would not have closed and that the Hibernia funds would not have been disbursed if he had not signed the escrow instructions.

[3] [pic]Cloud's primary contention regarding the sufficiency of the evidence to support his bank fraud conviction, however, is that the amendments upon which his attorney insisted served to correct or clarify any possible false representations in the escrow instructions.FN5 He argues, in effect, that no reasonable jury could conclude beyond a reasonable doubt that the escrow instructions he executed were false. We disagree. Far from correcting any possible misrepresentation as to the sale price, the modification indicating that Cloud was to “net” $17 million reasonably could be construed as confirming that the “gross” sale price actually was the higher $27.5 million figure. The jury apparently credited testimony by Eakin that she now interprets the escrow instructions, including the modifications suggested by Samarco, as having falsely stated the sale price.

FN5. In an argument that he seems to have abandoned in his reply brief, Cloud mistakenly relies on United States v. Bales, 813 F.2d 1289 (4th Cir.1987), for the proposition that the government must prove he knowingly made false representations directly to a bank. The bank fraud statute itself contains no such requirement. See 18 U.S.C. § 1344. A careful reading of its opinion, moreover, indicates that the Bales court imposed no such requirement. Id. 813 F.2d at 1293 n. 2 (conviction under 18 U.S.C. § 1014 requires proof that defendant made a false statement to a bank; conviction under 18 U.S.C. § 1344 requires proof that the defendant knowingly executed or attempted to execute a scheme or artifice to obtain money or property owned by or under the custody or control of a federally chartered or insured bank, by means of false pretenses, representations or promises).

Even assuming the government must prove that false representations were made to a bank for purposes of section 1344, there was sufficient evidence to support Cloud's conviction for aiding and abetting bank fraud. As an aider and abettor, Cloud is liable for Perroton's false representations to the bank. As noted infra, moreover, Cloud provided confirmation of the false statements in the escrow instructions to Eakin, an escrow officer who was acting in part as an agent for the bank, in full awareness that she would have stopped the transaction from closing if he had not done so.

Cloud does not even attempt to argue, moreover, that the changes his attorney requested did anything to “correct” the falsely-stated figure for cash he purportedly received outside of escrow. The government was not required to prove every allegation of fraud; proof of this one material misrepresentation might have been sufficient to support Cloud's conviction. See United States v. Halbert, 640 F.2d 1000, 1008 (9th Cir.1981); United States v. Beecroft, 608 F.2d 753, 757 (9th Cir.1979).

[4] [pic]We are persuaded that, viewed in a light most favorable to the government, there was sufficient evidence upon which a rational jury could conclude that Cloud affirmatively assisted in the execution of Perroton's fraudulent scheme to obtain the *852 Hibernia funds when he signed the mutual escrow instructions knowing that they contained materially false representations.FN6

FN6. Cloud also appears to argue that: (1) even if the escrow instructions falsely stated the sales price and down payment figures, these representations were not made with the intent to deceive the bank; and (2) the bank did not rely on any material misrepresentations in the escrow instructions that were attributable to him. We reject both arguments.

To act with the “intent to defraud” means to act willfully, and with the specific intent to deceive or cheat for the purpose of either causing some financial loss to another, or bringing about some financial gain to oneself. See United States v. Peden, 556 F.2d 278 (5th Cir.) cert. denied, 434 U.S. 871, 98 S.Ct. 216, 54 L.Ed.2d 150 (1977); see also E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 16.05 (3d ed. 1977). It is a well-established principle that fraudulent intent may be established by circumstantial evidence and inferences drawn from all the evidence. See Bales, 813 F.2d at 1294 (citing Mitchell v. Union Pacific Railroad Co., 188 F.Supp. 869, 872 (S.D.Cal.1960)). There was evidence before it from which the jury could infer that Cloud made a calculated decision to sign the instructions in order to obtain his share of the loan proceeds, knowing that the bank could be deceived by materially false statements that appeared on the face of the instructions. For example, the jury heard evidence that Cloud decided to sell the Cal-Neva Lodge after three years of mounting operating losses, and that five years after he purchased the Lodge he sold the losing business at a before-tax profit of over $7 million.

The fact of Hibernia's reliance on false representations made by Cloud, likewise, can hardly be doubted on the facts of this case. The falsely-stated sales price and down payment were the same figures upon which Hibernia officials had relied in approving the loan to Perroton. Both Chou and Eakin testified that the escrow never would have closed, and that the Hibernia funds would not have been disbursed, if Cloud had objected to the misstated information or declined to sign the escrow instructions. At a minimum it appears that Eakin, who was acting in part as an agent of Hibernia, relied on Cloud's apparent confirmation of the false figures. A rational trier of fact could also have concluded, on the basis of Chou's and Eakin's testimony and evidence that Hibernia authorized disbursement of the loan proceeds only after Chou was notified that the escrow instructions had been signed, that Hibernia itself relied on misrepresentations attributable to Cloud.

B

Cloud also contends that there was insufficient evidence to support his conspiracy conviction. The elements of conspiracy are: (1) an agreement to accomplish an illegal objective, (2) coupled with one or more acts in furtherance of the illegal purpose, and (3) the requisite intent necessary to commit the underlying substantive offense. Pemberton, 853 F.2d at 733; United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir.1986). The agreement need not be explicit; it may be inferred from the defendant's acts pursuant to a fraudulent scheme or from other circumstantial evidence. United States v. Thomas, 586 F.2d 123, 132 (9th Cir.1978); United States v. Oropeza, 564 F.2d 316, 321 (9th Cir.1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978). An inference of the existence of a conspiratorial agreement may also be drawn “if there be concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose.” United States v. Monroe, 552 F.2d 860, 862-63 (9th Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1069 (1977) (quoting United States v. Camacho, 528 F.2d 464, 469 (9th Cir.) (citations omitted), cert. denied, 425 U.S. 995, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976)).

[5] [pic]A rational jury could conclude beyond a reasonable doubt from the evidence in this case that Cloud and Perroton agreed on January 15, 1985, to engage in a bank fraud scheme. Specifically, the jury reasonably could have inferred that an “agreement” was reached during the meeting at which Cloud and Perroton, along with their associates, discussed the discrepancy between the true sale price and downpayment figures and those appearing on the escrow instructions presented by Eakin. Emerging to sign the escrow instructions after resolving an admitted dispute over the accuracy of those figures is conduct from which it can be inferred that Cloud and Perroton came to a “meeting of the minds” to go forward with the Cal-Neva deal using falsified documents to memorialize the transaction.

As for the other conspiracy elements, the execution of mutual escrow instructions containing materially false representations *853 was compelling evidence of an overt act in furtherance of the illegal objective. In light of our holding that Cloud was properly convicted of bank fraud, it is also clear that the government has established the requisite intent element for conspiracy to commit bank fraud. We conclude that there was sufficient evidence to support Cloud's conviction for conspiracy to commit bank fraud.

III

Cloud raises several challenges to the district court's order under which he is required to pay a $500,000 fine and $7.5 million in restitution to Continental Insurance Company. First, he argues that the district court was not authorized under the Victim and Witness Protection Act to order restitution in this case because an agreement he entered into with Hibernia Bank, and another contract executed by Hibernia and Continental, fully settled all the victims' claims against him. Second, Cloud contends that the district court abused its discretion by ordering restitution, without making explicit findings of fact, in an amount that was excessive in light of his relative culpability and his net profit on the Cal-Neva Lodge transaction. Finally, Cloud contends that the restitution order and fine were illegal insofar as the district court ordered that the remaining unpaid balance of either penalty will become immediately due and payable upon his death. We will consider each of Cloud's arguments in turn.

A

We have recently held that an insurance company is a proper beneficiary of a VWPA restitution order, under 18 U.S.C. § 3663(e)(1) (formerly 18 U.S.C. § 3579(e)(1)), where the insurer has compensated the direct victim of a criminal offense. United States v. Youpee, 836 F.2d 1181, 1184 (9th Cir.1988). Whether a district court may order VWPA restitution in favor of an insurance company where settlement agreements have been executed between the defendant and his direct victim, and between the direct victim and its insurer, however, is a related question of law which we will review de novo. See United States v. Spinney, 795 F.2d 1410, 1416 (9th Cir.1986); see also Youpee, 836 F.2d at 1183 (legality of sentence is reviewable de novo).

Prior to sentencing, Cloud entered into an “AGREEMENT REGARDING SETTLEMENT, RESTITUTION AND MUTUAL RELEASE” by which he agreed to pay Hibernia a total of $1.5 million to settle all its remaining claims against him. Pursuant to a “SETTLEMENT AGREEMENT AND MUTUAL RELEASE” executed with Hibernia, Continental waived “ all subrogation claims and rights which may arise by virtue of its payment to Hibernia [of $7.5 million] pursuant to this Agreement and all direct rights or causes of action against any party arising out of or in any way connected with the Hibernia claim.” (Emphasis added).

[6] [pic]Relying primarily on language in a Fourth Circuit case, United States v. Bruchey, 810 F.2d 456 (4th Cir.1987), Cloud argues that the district court had no authority under the VWPA to order him to pay restitution to Continental as a result of these settlement agreements among the parties. FN7 Without referring to any statutory*854 provision, legislative history, or case law authority, the Bruchey court declared that:

FN7. Cloud also argues, somewhat incredibly, that he was an intended third-party beneficiary of the agreement by which Continental waived its subrogation and direct rights to sue “any party” in connection with the Cal-Neva transaction. A third party qualifies as a beneficiary under a contract if the parties intended to benefit the third party, and the terms of the contract make that intent evident. See Karo v. San Diego Symphony Orchestra Ass'n, 762 F.2d 819, 821-22 (9th Cir.1985). Under California law, a third-party may enforce a contract made expressly for her benefit at any time before the parties rescind it. Cal.Civ.Code § 1559 (West 1982). If Cloud could establish that he was an intended third-party beneficiary, perhaps he could assert the waiver provision as a defense to a civil action commenced by Continental. It does not follow, however, that he can assert any contractual rights he might have to defeat the jurisdiction of a federal court to order restitution pursuant to the VWPA. In any event, we need not resolve the parties' dispute about Cloud's third-party beneficiary claim because he failed to raise it in the district court in the first instance. See United States v. Grewal, 825 F.2d 220, 223 (9th Cir.1987) (citing United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983), cert. denied 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984)).

Where the victim and defendant voluntarily execute [a promissory note or the like], the judge can certainly factor that agreement into his sentencing decision. We must observe, however, that such a voluntarily executed agreement constitutes full and immediate restitution-fully settling the victim's claim against the defendant. The district court, once it found that the agreement had been reached, would have no further role to play under the VWPA.

810 F.2d at 460 (emphasis in original). We believe that these statements, which clearly constitute dicta,FN8 are ill-advised.

FN8. The facts in Bruchey, briefly stated, were that the district court had compelled the defendant to sign a long-term promissory note payable to the victim as a form of restitution. Because the court failed to make specific findings of fact, and because the term of the restitution order exceeded time limits established by the VWPA, see 18 U.S.C. § 3663(i)(2), the Fourth Circuit vacated and remanded. Bruchey, 810 F.2d at 458-60. The existence of a promissory note or other settlement agreement was, therefore, not material to the court's judgment.

[7] [pic]A faulty premise underlying Cloud's argument here is that Continental had a pre-existing “right” to receive restitution under the VWPA that it could assert or waive. The Supreme Court has held that criminal restitution is not ordered because victims have an independent legal entitlement to it but, rather, as a means of achieving penal objectives such as deterrence, rehabilitation, or retribution:

Although restitution does resemble a judgment ‘for the benefit of the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim's injury, but on the penal goals of the State and the situation of the defendant.

Kelly v. Robinson, 479 U.S. 36, 52, 107 S.Ct. 353, 362, 93 L.Ed.2d 216 (1986).FN9 Accord United States v. Keith, 754 F.2d 1388, 1391-92 (9th Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 93, 88 L.Ed.2d 76 (1985). Although the Kelly Court was discussing restitution ordered pursuant to a state criminal statute, the Court suggested that its holding might apply as well to VWPA restitution. Kelly, 479 U.S. at 53 n. 14, 107 S.Ct. at 363 n. 14.

FN9. The Kelly Court went on to endorse the view of the judge who had decided the case before it in the bankruptcy proceedings below:

“Unlike an obligation which arises out of a contractual, statutory or common law duty, [the restitution] obligation is rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose.”

Kelly, 479 U.S. at 52, 107 S.Ct. at 362 (quoting In re Pellegrino, 42 B.R. 129 (D.Conn.1984)).

[8] [pic]Under the reasoning of Kelly, neither Hibernia nor Continental had an independently enforceable right to receive restitution under the VWPA. It follows that Continental did not waive either a direct or subrogation right to receive VWPA restitution when it settled Hibernia's claim of loss. We therefore conclude that, despite the existence of settlement agreements among the parties, the district court was authorized by the VWPA to order Cloud to pay restitution to the insurance company in this case.FN10

FN10. We do not by our holding mean to imply that Continental, or any other recipient of VWPA restitution, may obtain a double recovery for injuries resulting from the relevant criminal offense. The VWPA itself expressly forecloses this possibility. See 18 U.S.C. §§ 3663(e)(1) and (2). District courts can factor into their sentencing decisions the existence of settlement agreements between the defendant and any victims of the offense. In fact, when ordering restitution under the VWPA, the district court arguably is required by sections 3663(e)(1) and (2) to consider such agreements. The district court in this case was fully apprised of, and clearly considered, the existence and terms of the settlement agreements among the parties.

B

We turn next to Cloud's argument that an excessive amount of restitution was ordered*855 in violation of the VWPA. An order of restitution under the VWPA is part of the sentencing process. See United States v. Richard, 738 F.2d 1120, 1122 (10th Cir.1984). A sentence which is within statutory limits is reviewed only for an abuse of discretion. Youpee, 836 F.2d at 1182.

Under the VWPA, the district court may order restitution to any positively identifiable victim of a fraudulent scheme in a definite amount that is supported by the evidence, limited by the victim's actual losses, and judicially established in a proceeding in which the defendant has the opportunity to refute the amount ordered. United States v. Pomazi, 851 F.2d 244, 249-50 (9th Cir.1988). In addition, the victims of the offense should be allowed to participate in the sentencing hearing so that their losses can be accurately determined. United States v. Weir, 861 F.2d 542, 546 (9th Cir.1988).

[9] [pic]In a section entitled “Procedure for issuing order of restitution,” the VWPA specifically requires the district court to “consider” the amount of loss sustained by the victim, the financial resources and earning ability of the defendant, the financial needs of the defendant and her dependents, and other factors it deems appropriate. 18 U.S.C. § 3664(a). The VWPA also provides, however, that the imposition of a restitution order should not “unduly complicate or prolong the sentencing process.” 18 U.S.C. § 3663(d). FN11

FN11. In a footnote in his opening brief, Cloud argues that the district court was required to make clear findings of fact before entering an order of restitution, and that the failure to do so was an abuse of discretion. This court has recently held that a district court is required to make “factual determinations” under the VWPA and enter a specific order of restitution based on such facts. United States v. Weir, 861 F.2d 542, 546 (9th Cir.1988). After citing to a Tenth Circuit case, United States v. Watchman, 749 F.2d 616, 618 (10th Cir.1984), the Weir court sketched only a bare outline of the factfinding process that is required before imposition of a VWPA restitution order. The object, of course, is to make an order of restitution that is complete and accurate, and one that has a sound basis in fact. Weir, 861 F.2d at 546.

Other courts that have considered this issue have held that the district court is required to make clear and specific findings of fact before entering a restitution order. See, e. g., Bruchey, 810 F.2d at 459; United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985); and United States v. Durham, 755 F.2d 511, 514-15 (6th Cir.1985). These courts presumably envision some sort of formal adversarial presentation of evidence, after which the court can resolve factual disputes and enter findings accordingly.

Prior to Weir, however, this court held that neither the VWPA nor Fed.R.Crim.P. 32 requires the district court to hold a full-blown evidentiary hearing on the issue of restitution. United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 93, 88 L.Ed.2d 76 (1985); see also United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert denied, 479 U.S. 963, 107 S.Ct. 462, 93 L.Ed.2d 407 (1986). More recently, we have held that the district court is not required to discuss on the record the factors Congress has listed in section 3664(a). Grewal, 825 F.2d at 223.

There is nothing in the text or legislative history of the VWPA to indicate that Congress intended the sentencing hearing to be transformed into a second trial on the issue of restitution. If anything, congressional intent appears to have been quite the contrary. See, e.g., 18 U.S.C. § 3663(d). Accordingly, we decline to read Weir, by its uncritical and passing reference to Watchman, as having worked any major change in the law of this circuit. The sentencing hearing in this case was adequate, and we are satisfied by the record that the district court was well within its discretion to order $7.5 million restitution to Continental on the basis of the materials submitted and arguments presented by the parties. Formal findings of fact were not required.

It is clear from the record in this case that the district court considered the relevant factors as required by the VWPA. At sentencing, the court commented on Cloud's financial resources and his role and culpability in the fraud. Further, the sentencing court indicated before ordering $7.5 million restitution that it had considered the following materials: the presentence report prepared by the probation office, the evidence presented at trial, letters of recommendation and materials submitted by Continental, memoranda and other documents submitted by the government and Cloud's attorney, and the arguments of the parties.FN12

FN12. An attorney representing Continental was present at the sentencing hearing but declined the court's invitation to present any argument.

[10] [pic]Cloud contends, however, that the district court erred by failing to consider *856 his relative culpability for Continental's losses.FN13 Some courts have indicated that relative degree of responsibility may be an appropriate factor to consider when imposing restitution obligations. See e.g., United States v. Anglian, 784 F.2d 765, 768 (6th Cir.), cert. denied, 479 U.S. 841, 107 S.Ct. 148, 93 L.Ed.2d 89 (1986). It is not, however, among those Congress has mandated in section 3664(a) for consideration by the district court. We reject Cloud's argument that the district court abused its discretion by failing to consider his relative culpability.FN14

FN13. It may well have been that the district court actually did consider Cloud's relative culpability when it ordered him to pay Continental $7.5 million restitution. The parties had supplied the sentencing court with the “Judgment and Probation/Commitment Order” by which Jon Perroton was ordered to pay $10 million restitution. The court also knew, however, that Perroton was incarcerated, that he had a negative net worth, and that Cobalt Capital Corporation was bankrupt.

In addition to Perroton, however, Cloud maintains that the district court should have considered the relative fault of Hibernia Bank, Hibernia's lawyers, and Transamerica Title Company in setting the amount of restitution. The notion that a sentencing court should consider the comparative fault of a crime victim when ordering restitution is a strange one indeed.

A secondary theme in Cloud's “relative culpability” argument is that he was not directly responsible for Hibernia's (now Continental's) losses. We note that there appears to be a conflict in this circuit regarding the nexus the government must establish between the defendant's criminal conduct and the victim's losses to support a VWPA restitution order. Compare Spinney, 795 F.2d at 1417 (government need not prove that the defendant was directly responsible for the loss); with United States v. Tyler, 767 F.2d 1350, 1351-52 (9th Cir.1985) (restitution is proper only for losses directly resulting from the defendant's offense). Under either test, we believe Cloud's responsibility was sufficiently direct to warrant the district court in ordering him to restore $7.5 million of the estimated $24.5 Hibernia lost as a result of the bank fraud for which both he and Perroton were convicted.

FN14. We also note our recent holding that joint and several liability for the entire loss may be imposed by the sentencing court, pursuant to an order of restitution, on each of the participants in a fraudulent scheme. United States v. Van Cauwenberghe, 827 F.2d 424, 435 (9th Cir.1987) (amended opinion). Subject to the statutory limitation on double recovery, both Cloud and Perroton could have been ordered to restore Continental's entire loss, plus the amount of unrecovered loss suffered by Hibernia. As in Van Cauwenberghe, then, it was not an abuse of discretion for the district court to order the lower amount.

[11] [pic]Cloud also argues that the amount of restitution ordered was excessive because he claims to have “netted” only $2.9 million on the sale of the Cal-Neva Lodge.FN15 The monetary benefit Cloud obtained from the fraudulent Cal-Neva transaction is not one of the factors the district court was required to consider under the VWPA. 18 U.S.C. § 3664(a); see also Anglian, 784 F.2d at 767. The district court expressly found, however, that Cloud received a net benefit in excess of $7 million on the sale. Based on the information before it (that Cloud purchased the Cal-Neva for $10 million by assuming two mortgages and initially investing approximately $1.9 million of his own funds, and paid off both mortgages to clear over $10 million at the closing of the sale five years later to Perroton), the district court clearly did not abuse its discretion in ordering Cloud to pay $7.5 million in restitution to Continental.

FN15. Cloud's calculation takes into consideration improvements he made on the property, taxes paid on the sales proceeds, and operating losses of nearly $4 million during his ownership. The district court was fully apprised of Cloud's proposed method for computing his “profits” on the sale, and did not abuse its discretion by choosing a different formula.

C

Cloud's final contention is that the district court's order is illegal to the extent that it directs payment of any unpaid fine and restitution upon his death. Appellant argues that such a provision violates the abatement rule of United States v. Oberlin, 718 F.2d 894 (9th Cir.1983). See also United States v. Patterson, 819 F.2d 1495, 1511 n. 10 (9th Cir.1987).

Concisely stated, the rule of abatement is that “[d]eath pending appeal of a criminal conviction abates not only the appeal but all proceedings in the prosecution from its inception.” Oberlin, 718 F.2d at 895-96. In Oberlin, we held that a criminal prosecution,*857 including both a conviction upon jury verdict and an order of forfeiture, abated ab initio upon the death of a defendant who committed suicide a few hours after his sentencing hearing. Oberlin, 718 F.2d at 896. Although the defendant had not filed a timely notice of appeal before his death, the rule of abatement was triggered because Oberlin's death prevented a final resolution of the issue of his guilt or innocence in an appeal which was an “integral part of [our] system for finally adjudicating [his] guilt or innocence.” Id. (quoting Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956)).

[12] [pic]The rule of abatement is basically one that precludes review of a criminal conviction or sentence or other penal sanction where the accused has died during the pendency of an appeal of right. Where, as here, the defendant has not died pending resolution of his appeal, the rule of abatement is simply inapplicable.FN16

FN16. Cloud also challenges the district court's order imposing a $500,000 fine on the ground that it violated the rule of abatement. In light of our holding that the abatement rule is inapplicable where a defendant has not died pending appeal, there is no reason to disturb the district court's order imposing the fine.

[13] [pic]Cloud also argues that the provision by which the unpaid balance of the restitution payments becomes due and payable upon his death is void under 18 U.S.C. § 3565(h) (1982) (repealed effective November 1, 1987). Before it was repealed, section 3565(h) provided that an “... obligation to pay a fine or penalty ceases upon the death of the defendant....” We need not decide this issue, however, because it does not appear that Cloud presented it to the court below. United States v. Grewal, 825 F.2d 220, 223 (9th Cir.1987) (citing United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984)).

AFFIRMED.

Supreme Court of the United States

Arthur DIXSON, Petitioner,

v.

UNITED STATES.

James Lee HINTON, Petitioner,

v.

UNITED STATES.

Nos. 82-5279, 82-5331.

Argued Oct. 12, 1983.

Decided Feb. 22, 1984.

Defendants were convicted before the United States District Court for the Central District of Illinois, Peoria Division, Robert D. Morgan, J., of violating federal bribery statute, and they appealed. The Court of Appeal, 683 F.2d. 195, affirmed. Certiorari was granted. The Supreme Court, Justice Marshall, held that executives of private nonprofit corporation having operational responsibility for administration of federal housing grant program within city under terms of subgrant from city were “public officials” within meaning of federal bribery statute, and thus were subject to prosecution under statute.

Affirmed.

Justice O'Connor dissented and filed an opinion in which Justice Brennan, Justice Rehnquist, and Justice Stevens joined.

Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

The city of Peoria received federal block grants from the Department of Housing and Urban Development under the Housing and Community Development Act of 1974 (HCDA), which provides for such grants for urban renewal programs. As authorized by the HCDA, the city designated a community-based, social service corporation to be the city's subgrantee in charge of the administration of the federal grants. Petitioners, officers responsible for the expenditure of the federal funds and administration of the corporation's urban renewal programs, were indicted for violating the federal bribery statute, 18 U.S.C. § 201, by using their positions to extract kickbacks from contractors seeking to work on housing**1173 rehabilitation projects. Before trial, the Federal District Court denied petitioners' motions to dismiss the indictment on the asserted ground that they were not “public officials” under 18 U.S.C. § 201(a), which defines the term “public official” as including “an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, ... in any official function, under or by authority of any such department, agency, or branch of Government.” Petitioners were convicted, and the Court of Appeals affirmed.

Held: Petitioners are “public officials” within the meaning of § 201(a) and thus are subject to prosecution under the bribery statute. Pp. 1177 - 1183.

(a) There is no merit in petitioners' contention that they cannot be considered to be persons “acting for or on behalf of the United States” under the statutory definition because neither they nor their employer ever entered into any direct agreement with the Federal Government. Although the language of § 201(a) does not decide the dispute, its legislative history-including Congress' longstanding commitment to a broadly drafted federal bribery statute, its desire to continue that tradition when it adopted the language of § 201(a) in the 1962 revisions of the federal conflicts of interest and bribery statutes, and its awareness of the federal judiciary's interpretation of the identical phrase in earlier federal bribery statutes to have a broad jurisdictional reach (particularly the Second Circuit's*483 decision in United States v. Levine, 129 F.2d 745 (CA 2 1942))-establishes that Congress never intended § 201(a)'s open-ended definition of “public official” to be restricted to persons in a formal employment or agency relationship with the Government. The proper inquiry is whether the person occupies a position of public trust with official federal responsibilities. Pp. 1177 - 1180.

(b) Given the structure of the HCDA program and petitioners' responsible positions as administrators of the subgrant, they served as public officials for purposes of § 201(a). In allocating the federal resources made available to the city through the HCDA grant program, petitioners were charged with abiding by federal guidelines, which dictated both where and how the federal funds could be distributed. By accepting the responsibility for distributing the federal resources, petitioners assumed the quintessentially official role of administering a social service program established by Congress. Pp. 1180 - 1181.

(c) The majority of recent decisions in lower federal courts supports the conclusion that employment by the United States or some other similarly formal contractual or agency bond is not a prerequisite to prosecution under the federal bribery statute. Pp. 1181 - 1182.

(d) The holding here does not mean that the mere presence of some federal assistance brings a local organization and its employees within the jurisdiction of the federal bribery statute, or that all employees of local organizations responsible for administering federal grant programs are public officials within the meaning of § 201(a). To be a public official under the statute, an individual must possess some degree of official responsibility for carrying out a federal program or policy. Pp. 1182 - 1183.

683 F.2d 195 (CA7 1982), affirmed.

Donald V. Morano, by appointment of the Court, 459 U.S. 1168, argued the cause for petitioners. With him on the briefs were Michael P. Seng and Edward Burke Arnolds. Richard D. Trainor, Robert D. Quinlivan, Jr., and Ronald F. Neville filed a brief for petitioner in No. 82-5331.

Richard G. Wilkins argued the cause for the United States. With him on the brief were Solicitor General Lee, Assistant Attorney General Jensen, and Deputy Solicitor General Bator.

*484 Justice MARSHALL delivered the opinion of the Court.

These consolidated cases present the question whether officers of a private, nonprofit corporation administering and expending federal community development block grants are “public officials” for purposes of the federal bribery statute. 18 U.S.C. § 201(a).

I

In 1979, the City of Peoria received two federal block grants from the Department of Housing and Urban Development (HUD). The first was a $400,000 Community Development Block Grant; the second a $636,000 Metro Reallocation Grant. Both **1174 grants were funded through the Housing and Community Development Act of 1974, 88 Stat. 633, as amended, 42 U.S.C. §§ 5301-5320 (1976 ed. and Supp. V). Under that Act, the Secretary of HUD is authorized to dispense federal block grants to state and local governments and nonprofit community organizations for urban renewal programs such as the rehabilitation of residential structures, code enforcement in deteriorating areas, and the construction of public works projects.

The City of Peoria subsequently designated United Neighborhoods, Inc. (UNI), a community-based, social-service organization, to be the City's subgrantee in charge of the administration of the federal block grant funds.FN1 UNI in turn hired petitioner Dixson to serve as the corporation's Executive Director and petitioner Hinton as its Housing Rehabilitation Coordinator. Petitioner Dixson was responsible for the general supervision of UNI's programs, including fiscal control and execution of contracts. Petitioner Hinton's duties included contracting with persons applying for housing rehabilitation assistance, and contracting with demolition firms.

FN1. Local recipients of Housing and Community Development Act (HCDA) block grants have the option of distributing the funds directly or of subcontracting the administration of the funds to private, nonprofit organizations. 42 U.S.C. § 5302(a)(1), (c); 24 CFR 570.204 (1983).

*485 A federal grand jury named petitioners in an 11-count indictment filed on March 12, 1981. The indictment charged that petitioners, as “public officials” under 18 U.S.C. § 201(a), had sought a series of bribes in return for “being influenced in their performance of an official act in respect to the awarding of housing rehabilitation contracts” in violation of 18 U.S.C. § 201(c)(1), (2).

According to the Government's evidence at trial, petitioners used their positions to extract $42,604 in kick-backs from contractors seeking to work on UNI's housing rehabilitation projects. One contractor testified how he was approached by petitioner Hinton and persuaded to pay petitioners 10 percent of each housing rehabilitation contract that petitioners awarded him. The contractor explained that on ten occasions, he received first draw checks from UNI for 20 percent of the contract price, deposited the check at his bank, and paid half the amount of the check in cash to petitioners. A second contractor testified as to substantially the same arrangement.

Before trial, petitioners moved to dismiss the indictment on the grounds that they were not “public officials” within the meaning of the federal statute. Their motions were denied, and following a jury trial in the United States District Court for the Central District of Illinois, petitioners were convicted as charged. The District Court sentenced each to 7 1/2 years imprisonment, to be followed by 3 years' probation. Petitioners appealed to the United States Court of Appeals for the Seventh Circuit, which affirmed. United States v. Hinton, 683 F.2d 195 (CA7 1982). Both petitioners filed petitions for writs of certiorari, and we granted the writs. 459 U.S. 1085, 103 S.Ct. 567, 74 L.Ed.2d 930 (1982). We now affirm.

II

Petitioners' sole claim is that they were not “public officials” within the meaning of 18 U.S.C. § 201(a) and therefore not subject to prosecution under the federal bribery *486 statute.FN2 Since our disposition of **1175 this claim turns on the relationship between petitioners and the federal government, we begin our discussion with an analysis of the Housing and Community Development Act (HCDA) block grant program and petitioners' role in administering that program.

FN2. Section 201 of title 18 reads in pertinent part:

“(a) For the purposes of this section: ‘public official’ means Member of Congress, the Delegate from the District of Columbia, or Resident Commissioner, either before or after he has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror;

* * *

“(c) Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself or for any other person or entity, in return for:

“(1) being influenced in his performance of any official act; or

“(2) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud on the United States; ...

* * *

“Shall be fined not more than $20,000 or three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.”

Congress passed the HCDA to meet the social, economic, and environmental problems facing cities. 42 U.S.C. § 5301(a). The primary objective of the Act is “the development of viable urban communities.” § 5301(c). While the HCDA addressed a national problem, Congress enacted the legislation as a federal block grant statute, under which the day-to-day administration of the federal program, including the actual expenditure of federal funds, is delegated to State and local authorities.

The HCDA creates a “consistent system of Federal aid,” § 5301(d), by distributing funds committed by Congress through organizations outside the federal government, while *487 retaining federal control to assure compliance with statutory federal objectives and implementing regulations. Congress itself specified the 17 categories of community projects upon which HCDA grants can be spent. § 5305. Within the federal constraints, grant recipients design programs addressing local needs. To obtain federal funds, local communities must submit to the Secretary a plan made in accordance with national urban growth policies, and supplement the plan with annual performance reports. § 5304(a), (d). The federal government retains the right to audit the records of HCDA programs, § 5304(e), and to recover improperly expended funds. § 5311(b)(2).

HCDA grantees give assurances to HUD that they, and their subgrantees, will abide by specific financial accountability, equal opportunity, fair labor, environmental, and other requirements. §§ 5304, 5309, 5310; 24 CFR § 570.307 (1983). By administering HCDA funds, private nonprofit organizations subject themselves to numerous federal restrictions beyond those imposed directly by HUD. Like other recipients of federal grant funds, HUD grantees and subgrantees are subject to a uniform audit procedure, adopted by the federal government as “an integral element” of “full accountability by those entrusted with responsibility for administering the programs.” FN3

FN3. “Guidelines for Financial and Compliance Audits of Federally Assisted Programs,” reprinted at 45 Fed.Reg. 21837, 21838. The “Guidelines” explain the uniform audit procedure, and are distributed as Attachment P to OMB Circular A-102, “Uniform Requirements for Assistance to State and Local Governments.” See also id., Attachment O, which contains a Code of Conduct for administering federal funds, including a specific requirement that “the grantee's officers, employees or agents shall neither solicit nor accept ... anything of monetary value from contractors, potential contractors, or parties to subagreements.”

UNI voluntarily assumed the status of CDA subgrantee when UNI and the City of Peoria signed five separate grant agreements in March and October 1979, pursuant to *488 which UNI hired petitioners. Under the first four of these agreements, the City promised to provide UNI with $492,500, and UNI committed itself to spend these funds on urban renewal projects and related administrative costs, such as salaries and fringe benefits for UNI employees. The agreements specifically allocated funds to petitioners' salaries: $16,000 of the City grants was for UNI's Executive Director and $15,500 was for a Rehabilitation Coordinator.

In a fifth agreement, Peoria promised UNI another $669,200 to be used “solely for a program operated by UNI which provides loans and grants to the rehabilitation of residential housing units in the designated Metropolitan Reallocation Grant Area.” One anomaly in the five Peoria-UNI contracts is that, beyond this reference to the **1176 “Metropolitan Reallocation Grant Area” and to “312 loans,” FN4 none of these first contracts explicitly refers to the federal act or to UNI's new status of subgrantee.FN5 UNI's application to participate in the federally-funded program, however, unequivocally shows UNI's awareness of the federal government's relationship to, and interest in, the grant agreements. UNI's proposal to Peoria stated: “[W]e wish to undertake a joint effort with the City of Peoria to achieve the common goals as set forth in the Housing and Community Development*489 Act to insure safe, sanitary and decent housing for all people.” (Emphasis added.)

FN4. One of Peoria's HCDA grants was a Metro Reallocation Grant. 42 U.S.C. § 5306(c). HUD rehabilitation loans to owners and tenants in urban renewal areas are called “312 loans.” PL 88-560, Title III, § 312 (Sept. 2, 1964), codified at 42 U.S.C. (& Supp. V) § 1452. The Secretary of HUD is authorized by statute “to delegate to or use as his agent any Federal or local public or private agency or organization ... to carry out the objectives of [the loan program].” Id., at (a), (f).

FN5. When UNI and Peoria renewed their agreement for the following fiscal year, a few days after the period named in the indictment, they amended the first series of contracts to warrant in explicit terms that UNI would comply with HUD Community Development Block Grants regulations, 24 CFR pt. 570. Gov't Exh. 25.

Moreover, there is no suggestion in the record that petitioners and other UNI executives failed to understand that they were involved in a federal program. As described above, the task of distributing HCDA funds is governed in numerous respects by federal statutes and regulations. Knowledge of the existence and applicability of these federal requirements and guidelines is presumed as a matter of law.FN6 As a matter of fact, the federal interest in protecting the integrity of its block grant funds undoubtedly was driven home to petitioners when, in early 1980, in the midst of the period covered by the Government's indictment, Arthur Andersen & Co. conducted an audit of UNI's records in accordance with HUD's “Audit Guide and Standards for Community Development Block Grant Recipients.”

FN6. 44 U.S.C. § 1507 (1976). The appearance of rules and regulations in the Federal Register gives legal notice of their contents.

Petitioners' responsibilities included receiving applications for housing assistance and soliciting contractor bids for qualified rehabilitation proposals. According to UNI's organizational structure, petitioners were supposed to submit the bids on qualified proposals to UNI's Housing Committee for final approval, but, in fact, the Committee's review was a “mere formality.” FN7 As a practical matter, petitioners alone decided which property owners and contractors in the City of Peoria would be the beneficiaries of the federal funds made available to the City through the HCDA block grant program.

FN7. Of the 10 contracts awarded to one of the contractors who testified on behalf of the government at trial, UNI's Housing Committee approved only one. Petitioner Hinton signed the remaining nine.

III

Petitioners contend now, as they have throughout this litigation, that, as executives of a private nonprofit corporation unaffiliated with the federal government, they were never *490 “public officials” as Congress defined that term. 18 U.S.C. § 201(a).

Under section 201(a), the term “public official” includes “an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, ... in any official function, under or by authority of any such department, agency or branch of Government.” There being no basis for claiming that petitioners were officers or employees of the United States, the Government's sole contention is that petitioners acted “for or on behalf of” the United States “in an official function” under the authority of HUD.

Petitioners argue that they can not be considered to have acted “for or on behalf **1177 of the United States” because neither they nor their employer UNI ever entered into any agreement with the United States or any subdivision of the federal government. In advancing this position, petitioners rely primarily on two Second Circuit decisions holding that a New York City employee involved in the administration of the federal Model Cities Program was not a public official under section 201. United States v. Loschiavo, 531 F.2d 659 (CA2 1976); United States v. Del Toro, 513 F.2d 656, (CA2), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975). Petitioners and these Second Circuit decisions rest on the premise that an individual does not work “for or on behalf of the United States ... in an official function” without some formal bond with the United States, such as an agency relationship, an employment contract, or a direct contractual obligation.

The Government, in response, argues that the term “public official” has a broader sweep, covering not only parties in privity with the United States, but also any private individuals responsible for administering federally-funded and federally-supervised programs. The Government defends the decision of the Seventh Circuit in the instant case, which held that the “substantial federal supervision over the cities and all sub-grantees responsible for local distribution of grant funds” made petitioners' public officials for purposes of section 201. *491 United States v. Hinton, supra, at 197-198. The court reasoned that petitioners “were acting as federal agents in the sense of having discretion in administering the expenditure of federal funds.” Id., at 199.

As is often the case in matters of statutory interpretation, the language of section 201(a) does not decide the dispute. The words can be interpreted to support either petitioners' or the Government's reading. We must turn, therefore, to the legislative history of the federal bribery statute to determine whether these materials clarify which of the proposed readings is consistent with Congress's intent. If the legislative history fails to clarify the statutory language, our rule of lenity would compel us to construe the statute in favor of petitioners, as criminal defendants in this case. See Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971).

A

Congress passed the current federal bribery provision, including section 201(a), in 1962, as part of an effort to reformulate and rationalize all federal criminal statutes dealing with the integrity of government. At the time of the 1962 revisions, general federal bribery statutes had been in existence for more than a century. From the start, Congress drafted its bribery statutes with broad jurisdictional language,FN8 and *492 periodically amended the provisions to ensure that the scope of federal criminal liability kept pace with the growth and diversification of the federal government.FN9 Prior to 1962, in recognition of Congress's **1178 apparent desire for the federal bribery statues to have wide application, the federal judiciary interpreted the statutes and, indeed, the phrase “person acting for or on behalf of the United States” to have a broad jurisdictional reach.FN10

FN8. Congress passed the first federal bribery statute of general application in 1853. See Act of Feb. 26, 1853, ch. 81, § 6, 10 Stat. 171. As its name-“An Act to Prevent Frauds on the Treasury”-implies, the Act sought to prevent the misuse of federal funds by any person charged with a public trust. See Cong.Globe, 32d Cong., 2d Sess. 392 (1853). Although primarily concerned with individuals who were bringing fraudulent claims against the United States, id., 242, 295-296, Congress did not limit this early statute to fraudulent claims, but chose to draft a general provision encompassing the bribery not only of Members of Congress, but also of “any officer of the United States, or person holding any place of public trust or profit, or discharging any official function under, or in connection with, any department of the Government of the United States.” (Emphasis supplied).

FN9. One telling amendment came in 1948, largely as a result of this Court's decision in United States v. Strang, 254 U.S. 491, 41 S.Ct. 165, 65 L.Ed. 368 (1921). In Strang, the Court had considered whether a person working for a federally owned and controlled corporation was covered by the 1909 version of the federal conflict-of-interest statute. Act of Mar. 4, 1909, ch. 321, § 41, 35 Stat. 1097. The Court ruled that such a person was not covered because his employer was “a separate entity” from the United States. 254 U.S., at 493, 41 S.Ct., at 165. To Congress, the Strang decision indicated that the existing federal bribery statute was inadequate to reach “the present ramifications of the executive branch [which] were not foreseen” when the 1909 Code was enacted. H.R.Rep. No. 304, 80th Cong., 1st Sess. A14 (1947). Accordingly, the 1948 Congress supplemented its earlier language to read “any officer or employee or person acting for or on behalf of the United States, or any department or agency thereof, in any official function, under or by authority of any such department or agency.” Act of June 25, 1948, ch. 645, § 1, 62 Stat. 691 (italics indicate new language). While the 1948 amendment expressly broadened the scope of the federal bribery law, a House Report suggests that drafters of the 1948 revisions were uncertain whether the amendments were necessary and included them only to guarantee “what appeared unquestionably to be the intent of Congress, namely, to cover all persons acting for the United States Government in an official function.” H.R.Rep. No. 304, supra, at A15.

FN10. For instance, before 1948, employees of government agencies were not expressly covered by the federal bribery statutes. See supra, note 9. Nevertheless, federal courts repeatedly found that these employees were covered by the term “person acting for or on behalf of the United States.” See, e.g., United States v. Birdsall, 233 U.S. 223, 230-231, 34 S.Ct. 512, 514-515, 58 L.Ed. 930 (1914); United States v. Levine, 129 F.2d 745 (CA2 1942). But cf. United States v. Strang, supra.

When drafting section 201(a), Congress was aware of previous federal bribery statutes, as well as the judicial interpretation given those statutes. The phrase at issue here-“person *493 acting for or on behalf of the United States”-was taken directly from predecessor bribery statutes.FN11 Moreover, the reenactment of this language was no happenstance. Earlier versions of the 1962 statute omitted the phrase, but Department of Justice testimony that “its removal would be undesirable” convinced Congress to retain the language.FN12

FN11. The term “any person acting for or on behalf of the United States” was coined in the recodifications of the 1870's, Rev.Stat. §§ 5451, 5501 (1878 ed.), and replaced the phrase “person holding any place of public trust or profit, or discharging any official function under, or in connection with [the Government],” which appeared in previous statutes. See, supra, note 7. For purposes of our decision today, it is of some relevance that the term “persons acting for or on behalf of the United States” was originally drafted as a stylistic substitution for “persons holding any position of public trust,” and that Congress accepted the analogous language. See 2 Cong.Rec. 129 (1873) (remarks of Mr. Butler) (statutory revision committee's authority limited); Dwan & Feidler, The Federal Statutes-Their History and Use, 22 Minn.L.Rev. 1008, 1012-1017 (1937-1938) (1878 version corrected congressionally-identified errors in 1873 Rev.Stat.).

FN12. Federal Conflict of Interest Legislation: Hearings on H.R. 302, H.R. 3050, H.R. 3411, H.R. 3412, and H.R. 7139 Before the Antitrust Subcomm. of the House Comm. on the Judiciary, 87th Cong., 1st Sess. 36 (1961). The Department of Justice Analysis of H.R. 3411 stated:

“The definition of ‘public official’ ... does not include any reference to persons ‘acting for or in [ sic ] behalf of the United States.’ This latter phrase appears in the existing law and we think its removal would be undesirable. Under the proposed definition it could be construed that, under certain circumstances, a person acting in behalf of the United States would not be held to be an ‘officer, agent, or employee of the United States' as these terms are used in the bill. Persons acting in such a capacity should be protected from bribe offers (or punished for their acceptance).” Ibid.

Standing alone, Congress' purposeful retention of the “acting for or on behalf of the Government” phrase does not advance our inquiry into the scope and meaning of those words. When, however, we compare the phrase as enacted with the proposed definition of “public official” in earlier draft bills that were not enacted, we conclude that Congress could not have meant to restrict the definition, as petitioners argue, to those persons in an employment or agency relationship*494 with the federal government. Such persons were clearly covered by successive, rejected versions of the reform bill, which defined “public official” in pertinent part as “an officer, agent, or employee of the United States in the executive, legislative, or judicial branch of the Government, or of any agency.” FN13 If **1179 Congress intended courts to restrict their reading of the jurisdictional definition to persons in a formal employment or agency relationship with the Government, it would have had no reason to accede to the Department of Justice's urging to retain the “acting for or on behalf of” language.

FN13. See H.R. 12547, 85th Cong., 2d Sess. § 201(a) (1958); H.R. 2156, 86th Cong., 1st Sess. § 201(a) (1959); H.R. 3411, 87th Cong., 1st Sess. § 201(a) (1961). The complete definition of “public official” in each of these bills was: “Member of, or Delegate to Congress, or Resident Commissioner, either before or after he has qualified, an officer, agent, or employee of the United States in the executive, legislative, or judicial branch of the Government, or of any agency, or juror.”

Moreover, we find the legislative history of section 201(a) inconsistent with the view that the words “person acting for or on behalf of the United States” were added simply to bring within the jurisdiction of the federal bribery laws those individuals tied to the federal government by direct contractual obligations. Committee reports from both Houses of Congress emphasized that the new bribery laws made “no significant changes of substance” and “would not restrict the broad scope of the present bribery statutes as construed by the courts.” S.Rep. No. 2213, 87th Cong., 2d Sess. 4 (1962); H.R.Rep. No. 748, 87th Cong., 1st Sess. 17 (1961), U.S.Code Cong. & Admin.News 1962, pp. 3852, 3853. Federal courts interpreting the federal bribery laws prior to 1962 had generally avoided formal distinctions, such as the requirement of a direct contractual bond, that would artificially narrow the scope of federal criminal jurisdiction. See supra, note 10.

Of particular relevance to the instant case is the House Judiciary Committee's citation of the Second Circuit's decision in United States v. Levine, 129 F.2d 745 (CA2 1942), as an example*495 of how the judiciary had in the past properly construed the federal bribery laws. See H.R.Rep. No. 748, supra, at 17. The Levine decision involved the application of the 1909 bribery statute to a low-level official in a decentralized federal assistance program. FN14 The defendant in Levine worked for a locally-administered price stabilization program, the Market Administrator of the New York Metropolitan Milk Marketing Area,FN15 and was responsible for receiving milk handlers' market surplus claims, and checking them for accuracy. Levine solicited a bribe from one of the handlers within his jurisdiction in return for his promise to prevent investigations of the claims.

FN14. At the time of the Levine opinion, the federal bribery statute applied by its terms only to officers of the United States or persons acting for or on behalf of the United States or Congress in any official capacity. Section 117 of the Criminal Code of 1909, 18 U.S.C. § 207.

FN15. The program was established by the Secretary of Agriculture to achieve goals set by the Agricultural Marketing Agreement Act of 1937. See 5 F.R. 1258 (Apr. 2, 1940). The Act authorized the Secretary to stabilize farm prices by issuing marketing orders to regulate production in whichever regions of the country were in need of such assistance. 7 U.S.C. §§ 601, 608c (1940). As such, the Act was an early form of federal assistance program, and, in its present form, is still classified as such. See Office of Management and Budget, Catalog of Federal Assistance Programs § 10.155 (1983). A Marketing Administrator, appointed by the Secretary of Agriculture and paid with federal funds, was to supervise the Area. The Marketing Administrator was to hire his own staff to administer the price stabilization program locally. The staff salary and other administrative expenses were to be paid through a levy imposed on milk producers within the Area. 5 F.R. 1263.

Although hired by a Market Administrator who, in turn, had been appointed by the Secretary of Agriculture, Levine himself was neither employed by the United States nor paid with federal funds. Nevertheless, Levine's duties were critical to the proper administration of the federally assisted New York Milk Marketing Area. Because claims for payment were not rechecked by anyone else, his duties resulted in expenditures from the federal treasury. After reviewing*496 these facts, the Second Circuit concluded that, notwithstanding the absence of a direct contractual bond between the defendant and the United States, Levine's responsible position made him a “public official” for purposes of the federal bribery laws. 129 F.2d, at 747. By explicitly endorsing the Second Circuit's analysis in Levine, the House Judiciary Committee **1180 strongly intimated that the phrase “acting for or on behalf of the United States” covers something more than a direct contractual bond.

[1] [pic]Congress's long-standing commitment to a broadly-drafted federal bribery statute, its expressed desire to continue that tradition with the 1962 revisions, its affirmative adoption of the language at issue in this case, and the House Report's endorsement of the Second Circuit's reasoning in Levine, combine to persuade us that Congress never intended section 201(a)'s open-ended definition of “public official” to be given the cramped reading proposed by petitioners. We agree with the Government that section 201(a) has been accurately characterized as a “comprehensive statute applicable to all persons performing activities for or on behalf of the United States,” whatever the form of delegation of authority.FN16 To determine whether any particular individual falls within this category, the proper inquiry is not simply whether the person had signed a contract with the United States or agreed to serve as the Government's agent, but rather whether the person occupies a position of public trust with official federal responsibilities. Persons who hold such positions are public officials within the meaning of section 201 and liable for prosecution under the federal bribery statute.

FN16. Conflicts of Interest: Hearings on H.R. 8140 Before the Senate Comm. on the Judiciary, 87th Cong., 2d Sess. 22 (1962) (Statement of Deputy Attorney General Katzenbach).

B

[2] [pic]Given the structure of the Housing and Community Development Act program and petitioners' responsible positions as administrators of the subgrant, we *497 have little difficulty concluding that these persons served as public officials for purposes of section 201(a). As executives of UNI, petitioners had operational responsibility for the administration of the HCDA grant program within the City of Peoria. In allocating the federal resources made available to the City through the HCDA grant program, petitioners were charged with abiding by federal guidelines, which dictated both where and how the federal funds could be distributed. By accepting the responsibility for distributing these federal fiscal resources, petitioners assumed the quintessentially official role of administering a social service program established by the United States Congress.

Lest there be any doubt that Congress intended section 201(a) to cover local officials like petitioners, one need only compare petitioners to the defendant in Levine, whose conviction the House Judiciary Committee explicitly endorsed. See supra, pages 1179 - 1180. Both Levine and petitioners worked in decentralized federal assistance programs. Both Levine and petitioners effectively determined who would be the beneficiary of federal dollars, and both solicited bribes to influence their official decisions. Levine held a position of public trust with official federal responsibilities: to collect and investigate the accuracy of data submitted by milk producers in support of their claims for federal subsidies. Petitioners held a position of public trust with official federal responsibilities: allocating federal resources, pursuant to complex statutory and regulatory guidelines, in the form of residential rehabilitation contracts. Indeed, in certain respects, petitioners performed duties that were more clearly “official” and more obviously undertaken “for or on behalf of the United States” than the responsibilities of the defendant in Levine. Where Levine was paid through a levy imposed on local businesses participating in the marketing order, petitioners' salaries were completely funded by the HCDA grant. Where Levine simply compiled data that was submitted to the Department of Agriculture for eventual disbursement, petitioners personally *498 bestowed the benefits of the HCDA program to residents of Peoria.

IV

A

In concluding that employment by the United States or some other similarly formal**1181 contractual or agency bond is not a prerequisite to prosecution under the federal bribery statute, we are supported by the majority of recent decisions in the Federal District Courts and Courts of Appeals. In United States v. Hollingshead, 672 F.2d 751 (CA9 1982), the Ninth Circuit determined an employee of the Federal Reserve Bank of San Francisco, which is a private banking institution, was a public official for purposes of § 201(a) because the employee was responsible for carrying out tasks delegated by a federal agency and was subject to substantial federal supervision. The defendant received bribes and kickbacks from independent contractors to influence him in making capital purchase requisitions. In short, like petitioners, he was in a position of responsibility, acting for or on behalf of the federal government in administering expenditure of federal funds. Similarly, in United States v. Kirby, 587 F.2d 876, 879-880 (CA7 1978), the Seventh Circuit ruled that two privately employed grain inspectors, licensed by the Department of Agriculture, were public officials because they had responsibility for implementing a warehouse licensing program established by Congress.FN17 For analogous reasons, a *499 Federal District Court of the District of New Mexico found a state employee responsible for administering the Farmers Home Administration rural housing improvement grant program to be included with section 201(a). United States v. Gallegos, 510 F.Supp. 1112, 1113-1114 (DNM 1981). Again, the defendant's official duties in processing grant applications directly influenced the expenditure of federal funds. See also United States v. Mosley, 659 F.2d 812 (CA7 1981); Harlow v. United States, 301 F.2d 361 (CA5), cert. denied, 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56 (1962); United States v. Griffin, 401 F.Supp. 1222 (S.D.Ind.1975), aff'd without opinion sub nom. United States v. Metro Management Corp., 541 F.2d 284 (CA7 1976). But see United States v. Loschiavo, supra; United States v. Del Toro, supra; United States v. Hoskins, 520 F.Supp. 410 (N.D.Ill.1981).

FN17. Petitioners argue that the Kirby defendants were liable under the federal bribery statute only because the Grain Standards Act explicitly provides that grain inspectors are “persons acting for or on behalf of the United States” for purposes of section 201(a). See 7 U.S.C. 84(d). We disagree with this analysis. The Kirby defendants acted under the United States Warehouse Act, 7 U.S.C. § 252, which unlike the Grain Standards Act makes no reference to section 201(a).

We also reject petitioners' more general argument that because section 201(a) is incorporated directly into the Grain Standards Act, Congress did not intend for section 201(a) to apply to other private individuals who conduct analogous services on behalf of the United States. Precisely this argument was raised in and disposed of by the Second Circuit in Levine, the case cited by Congress as correctly construing a predecessor of section 201(a). See, supra, pp. 1179 - 1180. The Second Circuit wrote, and we agree:

“The mere fact that several other Acts creating different agencies of government have specifically provided that the employees of those agencies are to be subject to this criminal provision does not, of course, mean that the broad provisions of the section are not applicable to this Market Administrator and his employees.” 129 F.2d, at 748.

B

[3] [pic]By finding petitioners to be public officials within the meaning of section 201(a), we do not mean to suggest that the mere presence of some federal assistance brings a local organization and its employees within the jurisdiction of the federal bribery statute or even that all employees of local organizations responsible for administering federal grant programs are public officials within the meaning of section 201(a). To be a public official under section 201(a), an individual must possess some degree of official responsibility for carrying out a federal program or policy. Our opinion today is, therefore, fully consistent with *500 Krichman v. United States, 256 U.S. 363, 41 S.Ct. 514, 65 L.Ed. 992 (1921), in which this Court ruled that a baggage porter, although employed by a federally controlled railroad, could not be said to have “acted for or on behalf of the United States” **1182 because the porter lacked any duties of an official character. Similarly, individuals who work for block grant recipients and business people who provide recipients with goods and services can not be said to be public officials under section 201(a) unless they assume some duties of an official nature.

We recognize that the manner in which the HCDA block grant program combines local administration with federal funding initially creates some confusion as to whether local authorities administering HCDA grants should be considered public officials under the federal bribery statute.FN18 However, when one examines the structure of the program and sees that the HCDA vests in local administrators like petitioners Hinton and Dixson the power to allocate federal fiscal resources for the purpose of achieving congressionally-established goals, the confusion evaporates and it becomes clear that these local officials hold precisely the sort of positions of national public trust that Congress intended to cover with the “acting for or on behalf of” language in the bribery statute.FN19 The federal government has a strong and legitimate *501 interest in prosecuting petitioners for their misuse of government funds. As this Court has said in another, closely related context, grant funds to state and local governments “are as much in need of protection from [fraud] as any other federal money, and the statute does not make the extent of [grant monies'] safeguard dependent upon the bookkeeping devices used for their distribution.” United States ex rel. Marcus v. Hess, 317 U.S. 537, 544, 63 S.Ct. 379, 384, 87 L.Ed. 443 (1943) (footnote omitted) (holding that one who contracts with a local governmental unit to work on federally-funded projects can “cheat the United States” through the state intermediary).

FN18. We have noted the juxtaposition of local control over daily operations and federal retention of oversight of its funds in another context. In United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976), the Court noted that federal funding and federal regulation do not convert the acts of recipients, be they entrepreneurs or states, into federal governmental acts, for purposes of the Federal Tort Claims Act, precisely because the local entities, such as UNI, have complete control over daily operations. We also noted, however, that those entities are responsible to the United States for compliance with the specifications of a contract or grant. Id., at 815-816, 96 S.Ct., at 1976-1977. Regulation and oversight of the funds, as stressed in Orleans, is aimed precisely at the harm that occurred here-diversion of federal money to unauthorized purposes. Id., at 818, 96 S.Ct., at 1977.

FN19. Because the legislative history of section 201(a) shows that Congress intended the phrase “persons acting for or on behalf of the United States ... in any official function” to encompass individuals like petitioners, we have no need to resort to the rule of lenity in deciding this case. “ ‘The canon in favor of strict construction [of criminal statutes] ... does[not] demand that a statute be given the “narrowest meaning”; it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers.’ ” United States v. Moore, 423 U.S. 122, 145, 96 S.Ct. 335, 346, 46 L.Ed.2d 333 (1975), quoting United States v. Brown, 333 U.S. 18, 25-26, 68 S.Ct. 376, 379-380, 92 L.Ed. 442 (1948).

Because we agree with the Seventh Circuit that petitioners were public officials under section 201(a), the judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice O'CONNOR, with whom Justice BRENNAN, Justice REHNQUIST, and Justice STEVENS join, dissenting.

The rule of lenity demands that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). The Court concludes that congressional intent to include persons like petitioners within the coverage of 18 U.S.C. § 201 is clear enough to make the rule of lenity inapplicable. The statutory language admits of the Court's reading, and the case for that reading would be strong, though perhaps not persuasive, if § 201 were a civil statute. I differ with the Court in that I find the evidence of congressional intent too weak to meet the higher standard for resolving facial ambiguity against a defendant when **1183 interpreting a criminal statute. In my view, the evidence of intent offered by the Court's *502 opinion cannot carry the weight the Court places on it, and there is good reason to reject the Court's interpretation of the statute.

I

The language of § 201 and of its predecessors, as the Court's opinion points out, is intentionally broad. But that fact merely creates the interpretive problem-it does not resolve it. Congress intended to carry forward the pre-1962 bribery statute when it enacted § 201, and it understood the coverage of the bribery law to be broad. See ante, at 1177 - 1178, 1179. Moreover, the purpose of the statute was undoubtedly to proscribe bribery of all those who carry out a federal trust. Id., at 1180. To say that the statute is broadly aimed at all persons bearing a federal trust, however, is not to resolve the ambiguity over what constitutes a federal trust. Indeed, the statutory language-“acting for or on behalf of the United States”-is merely a formulation of the public trust idea, and the Court concedes that the statutory language can accommodate both petitioners' and respondent's views. Ante, at 1177. The breadth of the language accordingly offers little help in defining the ambiguous coverage of the statute.

The legislative history likewise provides no significant support for the Court's reading of the statute. The critical statutory language has been a part of the federal bribery statute for more than one hundred years. See ante, at 1178, n. 11. Yet, as the Court's opinion indicates, Congress apparently has never specifically considered the statute's coverage of federal grant recipients. The legislative history is simply silent on the question to be answered in this case.

The Court mentions the 1948 extension of the bribery statute and suggests that it is significant. Ante, at 1178, n. 9. As the legislative history of that extension makes clear, the only specific purpose of the extension was to ensure coverage of persons acting for federally owned or controlled corporations. Id.; H.R.Rep. No. 304, 80th Cong., 1st Sess., A14 *503 (1947). There is no reason to believe, and it would be exceedingly odd to suggest, that Congress thought of federal grant recipients generally, or of grant recipients that are state or local governments in particular, as somehow analogous to federally controlled corporations. Accordingly, the 1948 extension provides no support for reading the bribery statute to cover persons like petitioners.

The legislative history of § 201 from the 87th Congress, which enacted the current version of the statute, contains two items that bear on the meaning of the statute's “acting for ...” language. The Court relies heavily on these two items. One, however, offers no support for the Court's reading, and the other offers support of, at best, weak and uncertain significance.

First, the Court notes, ante, at 1179, that the House Judiciary Committee cited United States v. Levine, 129 F.2d 745 (CA2 1942), as an example of judicial construction of the statute. H.R.Rep. No. 748, 87th Cong., 1st Sess., 18 (1961). The Court concludes that this citation establishes congressional intent to include within the coverage of the bribery statute persons other than those with direct contractual bonds to the United States. Ante, at 1180. That conclusion is surely correct. But saying that the class covered by the statute includes more than direct contractors does not begin to define the class actually covered and, in particular, does not imply that the class includes individuals employed by federal grant recipients or by their subgrantees.

Moreover, the Levine case itself does not suggest inclusion of such individuals. The individual involved in Levine was an employee of a person appointed by the Federal Government to carry out a federally defined regulatory task. As an employee of an agent of the United States, he was obviously acting for the United States. An employee of a grantee or subgrantee of the United States is in a quite different position.**1184 It is by no means obvious that such a person is acting for the United States, since a grantee does not necessarily have an agency relationship with the United States. Indeed,*504 as the Court concedes, ante, at 1180, not all recipients of federal grant funds are acting for the United States: for example, recipients of science research funds are surely not acting for the United States, even when they use some of those funds to purchase assistance in accordance with the federally approved grant proposal. That Congress approved the Levine case simply cannot support an inference that Congress intended the bribery statute to cover persons in petitioners' position.

The Court also relies on the 87th Congress's retention of the “acting for ...” language after several bills not containing that language had been proposed. Ante, at 1178 - 1179. Those bills proscribed acceptance of a bribe by “an officer, agent, or employee of the United States in the executive, legislative, or judicial branch of the Government, or of any agency.” See ante, at 1179, n. 13. The Department of Justice recommended retention of the pre-1962 language because the proposed “officer, agent, or employee” language “could be construed” to be narrower than the “acting for ...” language. See ante, at 1179, n. 12. The Court accordingly concludes that Congress intended the bribery statute to cover more than those persons with a formal employment or agency relationship with the United States.

This conclusion is too strong. Neither the Department of Justice testimony nor anything else in the legislative history explains what persons were thought to be outside the coverage of the discarded bills but within the coverage of the “acting for ...” language. For all the legislative history shows, no one in Congress or appearing before Congress had any such persons in mind. Indeed, the Court's interpretation of the statute suggests as much. Anyone who “occupies a position of public trust with official federal responsibilities,” ante, at 1180, would seem to be an “agent” of the United States when carrying out those responsibilities, since the Court gives meaning to its public trust test by requiring federal direction of the tasks to be performed by the person bribed, ante, at 1180 - 1181, 1182. See *505 Restatement (Second) of Agency § 1 (1957) (agency relationship created when one person agrees with another “that the other shall act on his behalf and subject to his control”). The most that can be said of Congress's reenactment of the “acting for ...” language following the proposal and criticism of the alternative bills is that Congress thought that there could conceivably be some difference between the enacted and unenacted language and that the pre-1962 language should be retained out of caution, as Congress did not intend to narrow the coverage of the bribery statute.

The conclusion that employees of federal grant recipients or their subgrantees were intended to be covered by the federal bribery statute finds as little support in the cases cited by the Court, ante, at 1181 - 1182, as it does in the statutory language and legislative history. The only case from this Court that interpreted the language at issue is Krichman v. United States, 256 U.S. 363, 41 S.Ct. 514, 65 L.Ed. 992 (1921), and that case, if relevant at all, cannot support respondent, since it held that the defendant was not covered by the bribery statute. The lower court cases relied on by the Court that involve grant-in-aid programs are in conflict. Compare United States v. Loschiavo, 531 F.2d 659 (CA2 1976); United States v. Del Toro, 513 F.2d 656 (CA2 1975); United States v. Hoskins, 520 F.Supp. 410 (ND Ill.1981) with United States v. Mosley, 659 F.2d 812 (CA7 1981); United States v. Hinton, 683 F.2d 195 (CA7 1982) (decision below in this case). Thus, there is no consistent lower court construction of the statute as it applies to grant recipients to bolster the Court's reading.

The other cases cited by the Court all involved persons in circumstances quite distinguishable from that of employees of federal grant recipients or their subgrantees. **1185 United States v. Hollingshead, 672 F.2d 751 (CA9 1982), involved an employee of a “fiscal arm” of the Federal Government “carrying out tasks delegated by a government agency.” Id., at 754. United States v. Kirby, 587 F.2d 876 (CA7 1978), involved persons acting under federal licenses as grain inspectors for the Federal Government. United States v. Gallegos, 510 F.Supp. 1112 (D NM 1981), involved an individual who “had been *506 assigned to work in an office of the Farmers Home Administration ... to assist in administering an FHA program.” Id., at 1113. Harlow v. United States, 301 F.2d 361 (CA5), cert. denied, 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56 (1962), involved an employee of a federal instrumentality operating on United States military bases. United States v. Griffin, 401 F.Supp. 1222 (SD Ind.1975), affirmance order, 541 F.2d 284 (CA7 1976), involved a person under direct contract with the Federal Government to solicit and receive bids for federal rehabilitation contracts and to prepare and inspect property that is under the control of the Federal Government and is eligible for such rehabilitation. In all of these cases the person bribed had a more or less direct agency relationship with the Federal Government. None of the cases dealt with a federal grant program and the accompanying uncertainty about whether the bribed person's activities were being carried out solely on the grantee's behalf, though with financial support from the Federal Government, or were being carried out on behalf of the Federal Government.

In sum, neither the statutory language, legislative history, nor case law provides any persuasive evidence that Congress intended the federal bribery statute to apply to persons in petitioners' position. The Court's conclusion requires some affirmative reason to believe that Congress thought that employees of federal grant recipients or their subgrantees are acting for or on behalf of the Federal Government, even when the grant recipient is a state or local government. No such reason, and certainly no reason strong enough to escape the pull of the rule of lenity, has been advanced.

II

Not only is there an absence of support for the Court's conclusion, but there are several reasons to reject it. Federal grant programs to state and local governments as well as to private organizations have been in existence since the nineteenth century. See 1 R. Cappalli, Federal Grants and Cooperative *507 Agreements §§ 1.19-1.22 (1982); Elazar, Federal State Collaboration in the Nineteenth Century United States, 79 Pol.Sci.Q. 248 (1964). By the middle of this century, grant programs to state governments in particular were a major component of the federal budget. When Congress enacted § 201 in 1962, it was spending more than $7 billion a year, or approximately 7 percent of the federal budget, on grants to state and local governments. See United States Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970, Bicentennial Edition, Part 2, 1123, 1125 (1975). That amount increased to more than $40 billion by 1975 and today stands at approximately $90 billion, more than 10% of the federal budget. See Executive Office of the President, Office of Management and Budget, Special Analyses, Budget of the United States Government, Fiscal Year 1984, H-16 (1983).

Against this background, the long congressional and judicial silence on the application of the federal bribery statute to persons like petitioners takes on added significance. Despite the magnitude of federal grant programs in general and of federal programs making grants to state and local government in particular, there is no indication that Congress has ever considered whether employees of grant recipients are “public officials” within the meaning of the federal bribery statute, even though Congress studied and revised the statute in both 1948 and 1962. Moreover, there appears to be no reported case involving a prosecution against such employees under § 201 or its predecessors until the early **1186 1970s. The Second Circuit's 1975 case, United States v. Del Toro, 513 F.2d 656, decided at a time when federal grants to state and local government totalled more than $40 billion, is apparently the first case to have presented the problem. Given that bribery of persons responsible for administering federal grant funds is exceedingly unlikely to be a recent phenomenon, cf. United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (bid-rigging by contractors with local governments administering federal funds); *508 United States v. Laudani, 320 U.S. 543, 64 S.Ct. 315, 88 L.Ed. 300 (1944) (kickbacks to subcontractor of Port of New York Authority on project receiving federal grant money), the most plausible inference is that neither Congress nor federal prosecutors believed that the federal bribery statute extended to employees of federal grant recipients or their subgrantees, at least when the grantee is a state or local government.

That inference is supported by the fact that federal grant programs generally, and grant-in-aid programs to state and local government in particular, are categorically different, and are treated by law as categorically different, from other types of federal activity. Such programs have been treated as forming a distinctive category of governmental activity by statute, see Federal Grant and Cooperative Agreement Act of 1977, 92 Stat. 3, 41 U.S.C. §§ 501-509, and by regulation, see 1 R. Cappalli, supra, at §§ 5.01-5.56. The main defining characteristic of the category is the principle of grantee autonomy: although grants impose conditions on the use of grant funds, grantees are left considerable discretion to design and execute the federally assisted programs without federal intrusion. See 41 U.S.C. § 504 (definition of “grant” requires that “no substantial involvement is anticipated between the executive agency, acting for the Federal Government, and the State or local government or other recipient during performance of the contemplated activity”); 1 R. Cappalli, supra, at § 1.07. That principle means that the grantee's activities are typically not attributable to the United States, see United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976) (not attributable for purposes of tort liability), and suggests that those activities are not undertaken on behalf of the Federal Government, cf. Restatement (Second) of Agency § 14 and comment a (1957) (principal has right to control conduct of agent, and an “agent is subject to a duty not to act contrary to the principal's directions, although the principal has agreed not to give such directions”*509 ). Indeed, in different though related contexts this Court has recognized that “[g]rants of federal funds generally do not ... serve to convert the acts of the recipient from private acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision.” Forsham v. Harris, 445 U.S. 169, 180, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980); see also id., at 180, n. 11, 100 S.Ct., at 984 n. 11 (“Before characterizing an entity as ‘federal’ for some purpose, this Court has required a threshold showing of substantial federal supervision of the private activities, and not just the exercise of regulatory authority necessary to assure compliance with the goals of the federal grant”); United States v. Orleans, supra, 425 U.S., at 815, 96 S.Ct., at 1976.

The principle of grantee autonomy is basic to all grant programs, but its significance is greatest in two circumstances especially relevant to this case. First, grantee autonomy is strongest in “block grant” programs, such as the Housing and Community Development Block Grant program at issue here. In such programs, federal control over the spending of the distributed funds is minimized, and the grant recipient cannot plausibly be said to be acting for anyone but itself. The Federal Government increasingly uses block grants for its grants-in-aid to state and local governments. See 1 R. Cappalli, supra, at §§ 1.33-1.51 (describing characteristics of block grants and noting major shift toward block grants in 1981); United **1187 States Advisory Commission on Intergovernmental Relations, Block Grants: A Comparative Analysis (1977).

Second, the principle of grantee autonomy applies with special force when federal grant recipients are state or local governments. Principles of federalism inherent in our constitutional system have long played a significant role in the congressional creation of federal grant-in-aid programs. See Shapek, Managing Federalism: Evolution and Development of the Grant-in-Aid System (1981). Such principles must shape the construction of the statutory language at *510 issue in this case. They demand a strong presumption that state and local governments are carrying out their own policies and are acting on their own behalf, not on behalf of the United States, even when their programs are being funded by the United States. A proper respect for the sovereignty of States requires that federal programs not be interpreted to deputize States or their political subdivisions to act on behalf of the United States unless such deputy status is expressly accepted or, where lawful, expressly imposed. It would be inconsistent with the general relationship between the Federal and State Governments to conclude, absent such express actions, that a State is acting in effect as an agent of the United States.

Congress apparently entertained a similar thought when it amended the Grain Standards Act in 1976 to apply § 201 to federally licensed grain inspectors employed by a state agency to exercise federally delegated authority to conduct official inspections of grain. Pub.L. No. 94-582, § 10, 90 Stat. 2877, 7 U.S.C. § 84(d). If the inspectors had not been state employees, it would have been perfectly apparent-on the authority of United States v. Levine, 129 F.2d 745 (CA2 1942), for example-that they were acting on behalf of the United States. See United States v. Kirby, 587 F.2d 876, 879-880 (CA7 1978). Congress believed that the federal bribery statute had not previously applied when it enacted the 1976 amendment. See H.R.Rep. No. 94-966, p. 5 (1976); S.Rep. No. 94-747, pp. 9, 17 (1976); S.Conf.Rep. No. 94-1389, p. 47 (1976), U.S.Code Cong. & Admin.News 1976, p. 6522. The inference seems inescapable that Congress thought it extraordinary, and worth explicit statutory direction, for state employees not actually on detail to the Federal Government to be considered to be acting on behalf of the United States.

Thus, federal grants, especially when the grant recipient is a state or local government, create a distinctive type of relationship between the Federal Government and employees of the grant recipient or its subgrantees. Congress has recognized*511 as much. For the Court to apply the bribery statute to petitioners is to extend the statute to a class of individuals that Congress thinks of as different from that of any others it has intended § 201 to cover and whose relation to the Federal Government raises problems of autonomy and federalism never addressed by Congress in the context of the federal bribery statute. Consequently, with respect to employees of grant recipients or their subgrantees, at least when the grant recipient is a state or local government (as it is in this case), I do not think that the rule of lenity can be overcome.

Finally, I think it especially inappropriate to construe an ambiguous criminal statute unfavorably to the defendant when the construction that is adopted leaves the statute as unclear in its coverage as the bare statutory language. The rule of lenity rests on the notion that people are entitled to know in advance whether an act they contemplate taking violates a particular criminal statute, even if the act is obviously condemnable and even if it violates other criminal statutes.FN* *512 The “public trust” standard adopted by the Court provides no **1188 more guidance to employees of a grant recipient or its subgrantee than does the statutory language, “acting for or on behalf of the United States.” There are hundreds of federal grant programs. See Executive Office of the President, Office of Management and Budget, 1983 Catalog of Federal Domestic Assistance. Yet it is impossible to tell from the Court's analysis just what sorts of federal regulation make a grant recipient subject to the bribery statute. A criminal statute, after if not before it is judicially construed, should have a discernible meaning. I do not think the Court offers one.

FN* Most if not all States criminally proscribe bribery and acceptance of bribes, though the statutes vary in their definitions of the required relationship of the person bribed to the government. See 12 Am.Jur.2d, Bribery §§ 1-3, 12-14 (1964 & Supp.1983). For example, the Illinois bribery statute provides that a person receiving money or property commits bribery if he

“receives, retains or agrees to accept any property or personal advantage which he is not authorized by law to accept knowing that such property or personal advantage was promised or tendered with intent to cause him to influence the performance of any act related to the employment or function of any public officer, public employee or juror ... or ... [h]e solicits any property or personal advantage which he is not authorized by law to accept pursuant to an understanding that he shall influence the performance of any act related to the employment or function of any public officer, public employee or juror.” Ill.Rev.Stat., ch. 38, § 33-1 (1977).

It is, of course, a question outside this Court's jurisdiction whether any given state bribery law covers persons, like petitioners, who are employed by an organization that has contracted with a local government to administer funds received by the local government under a federal grant.

I respectfully dissent.

Supreme Court of Utah.

STATE of Utah, Plaintiff and Respondent,

v.

Jeffrey McIntyre ROBERTS, Defendant and Appellant.

No. 19398.

Aug. 8, 1985.

Defendant was convicted in the Fourth District Court, Utah County, J. Robert Bullock, J., of theft by deception, and he appealed. The Supreme Court, Hall, C.J., held that (1) evidence, including defendant's false representation that he would invest victim's money in gold and would clear title to land used to secure the transaction, was sufficient to convict him, and (2) defendant was not entitled to requested instructions regarding pecuniary loss as necessary element of theft by deception.

Affirmed.

Howe, J., filed concurring opinion in which Durham, J., concurred.

David L. Wilkinson, Atty. Gen., Dave B. Thompson, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice.

Defendant appeals a conviction of theft by deception, a second degree felony. U.C.A., 1953, § 76-6-405(1). Defendant contends that the evidence introduced at trial was insufficient to establish the crime of theft by deception. We affirm.

In 1978, the State's primary witness, David Rail, sold a life insurance policy to Miriam Marlowe's husband. The Marlowes and Rail subsequently became good friends. In July 1981, Marlowe's husband died in a swimming accident. In March of 1982, Rail informed Marlowe that her husband's life insurance policy was still in force and that she was entitled to the proceeds as the named beneficiary. Under the provisions of the policy, Marlowe was entitled to approximately $50,000. Rail told Marlowe, then a resident of California, that she would receive the entire $50,000 from *236 the policy. However, only $38,000 would be paid initially because California law required one-fourth of the proceeds to be retained pending final settlement of the estate.

During the time Rail was processing the claim, he mentioned the $50,000 in insurance proceeds to John Walton, a friend who had an office in the same building. Defendant learned of the claim while present during a discussion of the matter between Rail and Walton. Several days later, defendant approached Rail and asked Rail if he would be interested in convincing Marlowe to invest the insurance proceeds. Defendant told Rail that he had a friend who worked for the State Department and had access to gold in Brazil. The gold could be purchased in Brazil for $100 an ounce and sold in the United States for approximately $300 an ounce. Rail discussed the wisdom of the investment with an attorney, who advised him not to invest the money unless some form of security was obtained.

After the insurance claim was processed, Rail flew to California and personally delivered the check for $38,000 to Marlowe. At the same time, Rail related to Marlowe defendant's story about the South American gold connection. Rail explained that if Marlowe invested some of her insurance proceeds, she would double her money within 90 to 120 days. Rail and defendant would divide any remainder as payment for their services. Marlowe agreed to invest $25,000 if she could get some security for her money.

Defendant offered a building lot located in Sherwood Hills in Provo as security. Defendant represented to Rail that he owned the lot free and clear. However, a title search performed at Rail's request revealed that the property was not free and clear as defendant had represented. There were two encumbrances: a $6,200 tax lien on the property and a default on a trust deed in the amount of $16,000. When Rail confronted defendant with this information, defendant assured Rail that the title would be cleared by the following Tuesday. Based upon this assurance, Rail agreed to invest Marlowe's money.

Rail contacted a title company and asked that documents be drafted for a transaction involving land used as security for a cash investment. On April 15, 1982, Rail and defendant met at the title company. However, defendant refused to sign the trust deed prepared by the title company insisting that the title company prepare a warranty deed instead. He told Rail that a warranty deed was better security than a trust deed. Although the use of a warranty deed under these circumstances was somewhat unusual, the deal was closed utilizing the warranty deed.

On the same day as the closing, defendant informed Rail that there had been a change of plan concerning delivery of Marlowe's money. Originally, both Rail and defendant were to fly to Brazil and give the money to the State Department official there. However, defendant now said that the State Department official's wife, who lived in Salt Lake City, was going to fly to Brazil to visit her husband. Defendant suggested that he would give the money to the wife for delivery and thus save the expense of flying to Brazil. Based upon these representations, Rail gave defendant a check made payable to JARCO FN1 in the amount of $24,861 ($25,000 less the cost of the title search).

FN1. Defendant explained that JARCO was the name of the corporation set up by the people in Brazil to handle income from their gold transactions.

In July of 1982, Rail discovered that the property defendant had conveyed as security was in default and subject to a sheriff's sale. In an effort to preserve his client's equity interest in the security, Rail personally borrowed $16,000 and purchased the property for the amount of the default on the trust deed.FN2 After repeated efforts to recover Marlowe's money from defendant had failed, Rail contacted the Utah County Attorney's Office.

FN2. Various estimates and appraisals of the true value of the property range from $38,000 to $50,000.

*237 The County Attorney's investigation revealed that on April 16, 1982, defendant had opened an account at the Midvale Branch of Tracy-Collins Bank in the name of Jeffrey McIntyre Roberts, d/b/a JARCO, and deposited Marlowe's money in this account. On April 17, defendant withdrew $12,500 cash from the account. Testimony at trial was conflicting as to what defendant used the money for. However, it was undisputed that no attempt was made to invest the money in Brazilian gold.

By the date of trial, none of Marlowe's money had been returned to her. She held title to the “security” property subject to the debt of $16,000 incurred by Rail to secure the title and $6,200 in tax liens.

Defendant's theory throughout trial was that the transaction between him and Marlowe was a sale of property, as evidenced by the warranty deed, where each party received value. At the end of the State's case, defendant moved for a directed verdict of not guilty based on insufficiency of the evidence. Defendant contended that the State had failed to prove that Marlowe had suffered any pecuniary loss. The trial court denied the motion.

At the close of the evidence, defendant requested the court to give instructions on pecuniary loss. The trial judge refused to give any of those instructions. Counsel for defendant took exception to the court's refusal.

The jury found defendant guilty of theft by deception.

Defendant's first point on appeal is that the evidence introduced by the State at trial was insufficient to establish the crime of theft by deception. Defendant contends that the State did not prove beyond a reasonable doubt that the alleged victim had lost something of pecuniary value, relying on State v. Johnson, Utah, 663 P.2d 48 (1983).

[1] [pic]This Court has consistently held that when sufficiency of the evidence is questioned on appeal, the Court will review the evidence and the reasonable inferences therefrom in the light most favorable to the jury verdict.FN3 A jury verdict will be reversed only when the evidence is “sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted.” FN4

FN3. State v. Griffin, Utah, 685 P.2d 546, 547 (1984); State v. Petree, Utah, 659 P.2d 443, 444 (1983); State v. Kerekes, Utah, 622 P.2d 1161, 1168 (1980).

FN4. Petree, supra note 3, at 444.

U.C.A., 1953, § 76-6-405 states:

(1) A person commits theft if he obtains or exercises control over property of another by deception and with a purpose to deprive him thereof.

(2) Theft by deception does not occur, however, when there is only falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed. “Puffing” means an exaggerated commendation of wares or worth in communications addressed to the public or to a class or group.

[2] [pic]Thus, in order to prove that a defendant has committed theft by deception, the State must prove beyond a reasonable doubt that the defendant has (1) obtained FN5 or exercised control over FN6 the property FN7 of another; (2) by deception FN8 and; (3) with a purpose to deprive FN9 that person of the property.FN10

FN5. As defined by U.C.A., 1953, § 76-6-401(2).

FN6. As defined by U.C.A., 1953, § 76-6-401(4).

FN7. As defined by U.C.A., 1953, § 76-6-401(1): “Property means anything of value....”

FN8. As defined by U.C.A., 1953, § 76-6-401(5).

FN9. As defined by U.C.A., 1953, § 76-6-401(3).

FN10. See, e.g., State v. Sorensen, Utah, 617 P.2d 333, 335 (1980).

[3] [pic]In this case the State sought to establish theft by deception based on the type of deception defined in U.C.A., 1953, § 76-6-401(5)(e):

*238 “Deception” occurs when a person intentionally:

....

(e) Promises performance that is likely to affect the judgment of another in the transaction, which performance the actor does not intend to perform or knows will not be performed; provided, however, that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.

Under that definition the evidence was sufficient to support defendant's conviction.

Defendant clearly obtained control over Marlowe's money with the purpose to deprive her of it.FN11 Defendant also obtained the money by deception as defined in section 401(5)(e). Defendant represented that he would invest the money in gold and would clear title to the land used to secure the transaction. The jury could have reasonably inferred from the evidence that defendant did not intend to perform and knew that he would not perform as promised. Furthermore, the evidence clearly supports the conclusion that defendant's representations that he would invest in gold and offer as security for the invested money unencumbered land affected Marlowe's judgment concerning her investment, and were in fact fundamental to the transaction. Therefore, under the terms of the relevant statutes defendant's conduct constituted theft by deception.

FN11. See State v. Lakey, Utah, 659 P.2d 1061, 1063 (1983) ( “ ‘Purpose to deprive’ includes a conscious object to ‘withhold property permanently’ or to dispose of it ‘under circumstances that make it unlikely that the owner will recover it.’ ”).

Defendant, however, contends that section 405(2) and Johnson established another element of the crime of theft by deception: pecuniary loss on the part of the victim. In Johnson, this Court said: “[A]n essential element of the criminal offense of theft by deception [is that the victim] failed to get what it bargained for or that it sustained a pecuniary loss.” (Emphasis added.) FN12 In reaching that result, the Court also relied on section 405(2).FN13

FN12. 663 P.2d at 51.

FN13. 663 P.2d at 50.

Section 405(2) is modeled after section 223.3 of the Model Penal Code. That section states: “The term ‘deceive’ does not, however, include falsity as to matters having no pecuniary significance....” The pertinent part of section 405(2) is identical.FN14 In the commentaries, the American Law Institute explains the reasoning behind the “no pecuniary significance” language:

FN14. A number of other states have also adopted identical language. See, e.g., Ala.Code § 13A-8-1(1) (1975); Alaska Stat. § 11.46.180(c) (1962); Ark.Stat.Ann. § 41-2201(3) (1947); Ga.Code Ann. § 16-8-3 (1982); Hawaii Rev.Stat. § 708-800(4) (1976); Ky.Rev.Stat. § 514.040(2) (1985); Mo.Rev.Stat. § 570.010(7) (Supp.1984); Neb.Rev.Stat. § 28-512 (1943); N.H.Rev.Stat.Ann. § 637:4(III) (1974); N.J.Rev.Stat. § 2C:20-4 (1982); N.D.Cent.Code § 12.1-23-10(1) (1976); Ore.Rev.Stat. § 164.085(2) (1983); 18 Pa.Cons.Stat.Ann. § 3922(b) (1983); S.D.Codified Laws § 22-30A-3 (1979).

The first excluded category is falsification as to matters having no pecuniary significance, e.g., where a salesman misrepresents his political, religious, or social affiliations. Such misrepresentations may succeed in securing the buyer's patronage and in that sense it could be said that whatever is paid for the purchase is money obtained by deception. But the injury done to the buyer is not a property deprivation of the sort that should be condemned and punished as theft, since the deceived person secures exactly what he bargained for in the way of property.FN15

FN15. Model Penal Code, § 223.3 commentary at 194-95 (Official Draft and Revised Comments 1980). See also, e.g., Linne v. State, Alaska App., 674 P.2d 1345, 1351-52 (1983).

[4] [pic]Thus, this subsection does not support the contention that pecuniary loss must be an element of the crime of theft by *239 deception and was obviously not intended to do so by its drafters.

The Court in Johnson also relied on State v. Morris,FN16 and other cases interpreting the predecessor statute to section 405.FN17 In light of the specific elements set forth in section 405(1) by the legislature, those earlier cases and the elements set forth therein do not and cannot control.

FN16. 85 Utah 210, 38 P.2d 1097 (1934).

FN17. U.C.A., 1953, § 77-31-17 (theft by false pretenses).

There is no question that evidence of pecuniary loss could be used to prove the elements of the crime of theft by deception. However, pecuniary loss is not an essential element in itself. As the Arizona Supreme Court said in State v. Mills:FN18

FN18. 96 Ariz. 377, 396 P.2d 5 (1964).

The gist of the offense ... is concerned with what the defrauder obtains. Once the victim has parted with his property in reliance on a false representation, it is immaterial whether whatever he got in return is equal in exchange value to that with which he parted. Judge Learned Hand put it as follows:

“A man is none the less cheated out of his property, when he is induced to part with it by fraud, because he gets a quid pro quo of equal value. It may be impossible to measure his loss by the gross scales available to a court, but he has suffered a wrong; he has lost his chance to bargain with the facts before him. That is the evil against which the statute is directed.” FN19

FN19. Id. at 381, 396 P.2d at 8 (quoting United States v. Rowe, 56 F.2d 747, 749 (2d Cir.1932) ).

Thus, to the extent that State v. Johnson and State v. WaltonFN20 intimated that pecuniary loss was a necessary element of the crime of theft by deception, they are overruled.FN21

FN20. Utah, 646 P.2d 689 (1982).

FN21. We note that the outcomes in both cases would not be changed by the Court's action today. In Johnson, the defendant's convictions were reversed because the alleged victim got what it bargained for. In Walton, the State proved all of the elements of the crime of theft by deception, including that the victims suffered a monetary loss. However, the defendant's conviction was reversed and the case remanded for a new trial on the ground that the jury was improperly instructed on the use of presumptions, contrary to Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

[5] [pic][6] [pic]Defendant's second point on appeal is that the trial court's failure to give defendant's proposed instructions on pecuniary loss constituted reversible error. The general rule is that an accurate instruction upon the basic elements of an offense is essential.FN22 Failure to so instruct constitutes reversible error.FN23 In light of our holding above that pecuniary loss does not constitute an essential element of the crime of theft by deception, the trial court's refusal to give the requested instructions was not error.

FN22. State v. Laine, Utah, 618 P.2d 33, 35 (1980).

FN23. Id.

The judgment of the trial court is therefore affirmed.

STEWART and ZIMMERMAN, JJ., concur.

HOWE, Justice (concurring):

I concur in affirming the defendant's conviction. I cannot wholly subscribe, however, to the majority's statement that prior cases of this Court have required evidence of pecuniary loss and therefore must be overruled.

In State v. Howd, 55 Utah 527, 188 P. 628 (1920), this Court stated that in order to convict a defendant of the crime of obtaining money or property by false pretenses (Compiled Laws of Utah § 8344 (1917) ), the following elements must concur: (1) there must be an intent to cheat or defraud; (2) an actual fraud must be committed; (3) there must be a fraudulent representation or a false pretense for the purpose of perpetrating the fraud in obtaining the property of another; and (4) the fraudulent representation or false pretense must *240 be the cause which induced the owner to part with his property. These elements were reaffirmed later in State v. Fisher, 79 Utah 115, 8 P.2d 589 (1932). It is to be noted that no requirement was made that the victim sustain a pecuniary loss. In State v. Casperson, 71 Utah 68, 262 P. 294 (1927), this Court emphasized that a pretense false in fact and an actual fraud resulting in prejudice are the bases of the crime. We there said:

The actual fraud and prejudice required, however, is determined according to the situation of the victim immediately after he parts with his property. If he gets what was pretended and what he bargained for, there is no fraud or prejudice. But if he then stands without the right or thing it was pretended he would then have, he has been defrauded and prejudiced by reason of the false pretense, and the offense is complete, notwithstanding thereafter he may regain his property, or the person obtaining it or another compensates him, or he thereafter obtains full redress in some manner not contemplated when he parted with his property.

(Emphasis added.) In the later case of State v. Morris, 85 Utah 210, 38 P.2d 1097 (1934), the above language was quoted with approval, after which this Court required that the claimed victim must also have sustained a pecuniary or property loss by reason of the transaction relied upon. In that case, because the claimed victim had security sufficient to cover any loss that might occur, the defendant's conviction was reversed and a new trial ordered. We there observed that in a civil action based on fraud a plaintiff would have to prove injury or damages. For even stronger reasons, we said, this requirement should obtain in a criminal action based on fraud. However, except in State v. Morris, supra, pecuniary loss has not been required to be shown in any case. Instead, the focus has been on whether the victim received what was pretended and what he bargained for. “A failure to receive what was bargained for being an essential element of the crime of obtaining money or property by false pretenses, such facts must be alleged, otherwise the information fails to charge a public offense.” State v. Fisher, supra, at 79 Utah 120, 8 P.2d 589.

Since 1973, when our present section 76-6-405 (theft by deception) was enacted, we have decided State v. Johnson, Utah, 663 P.2d 48 (1983), where we stated that an essential element of the offense of theft by deception was that the victim failed to get what he bargained for or that he sustained a pecuniary loss. In State v. Walton, Utah, 646 P.2d 689 (1982), while we found that the victims suffered a pecuniary loss, we cited State v. Casperson to the effect that to sustain a conviction it was sufficient that neither of the victims received that for which he bargained. We held that it was immaterial that the victims might, by bringing a civil action against the defendant's principal, recover their losses.

My review of the Utah cases brings me to the conclusion that State v. Morris was an aberration in requiring that the victim sustain a pecuniary loss. In the instant case, the victim did not receive what she bargained for (Brazilian gold). Instead, she has the deed to a lot subject to $22,200 in liens, for which she did not bargain. That is sufficient to sustain defendant's conviction.

DURHAM, J., concurs in the concurring opinion of HOWE, J.

Appeals Court of Massachusetts,

Essex.

COMMONWEALTH

v.

Benjamin SERRANO.

No. 08-P-912.

Argued Jan. 15, 2009.

Decided March 27, 2009.

Background: Defendant was convicted following a jury trial in the Superior Court Department, Essex County, Richard E. Welch, III, J., of murder in the second degree. Defendant appealed.

Holdings: The Appeals Court, Brown, J., held that:

(1) evidence was insufficient to warrant an instruction on withdrawal from a joint venture;

(2) “presence,” for purposes of a joint venture, means at or near the general vicinity of the crime at some point during the joint venture;

(3) judge's instruction on meaning of “presence,” in response to jury note during deliberations, did not create a substantial risk of a miscarriage of justice;

(4) evidence was sufficient to support finding that defendant was a joint venturer, regardless of his presence;

(5) evidence of defendant's past incarceration was relevant and admissible; and

(6) any error in admission of evidence of defendant's past incarceration was harmless.

Affirmed.

Leslie W. O'Brien, Boston, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: GREEN, BROWN, & VUONO, JJ.

BROWN, J.

*2 The defendant appeals from his conviction of murder in the second degree. He seeks a new trial on the grounds that (1) the judge improperly refused to give instructions on withdrawal from a joint venture, (2) the judge improperly instructed the jury on an aspect of joint venture not pursued by the Commonwealth at trial, (3) the judge erred in allowing the prosecution to present evidence that the defendant was incarcerated prior to the murder, and (4) the prosecutor wrongfully argued facts not in evidence.

Facts. The jury could have found the following facts. In October of 2003, while the defendant was in jail, his girlfriend at the time broke up with him. In January of 2004, she began dating the victim. During the remainder of the defendant's incarceration, the now ex-girlfriend received many letters from the defendant, pleading with her to resume the relationship. After he got out of prison in February of 2004, the defendant began to harass the ex-girlfriend and her new boyfriend, the victim, on the telephone and by confronting them in person, on multiple occasions. At these encounters, he threatened to kill her, members of her family, and the victim.

At around 9 p.m., April 1, 2004, the fatal confrontation between the victim and defendant**249 occurred. The defendant went to the ex-girlfriend's apartment with a companion, Luis Penn, the codefendant.FN1 When the defendant knocked at the door, he was *3 told that the ex-girlfriend was not there. The defendant then went outside, where he saw the victim's car. The two occupants of the car, neither of whom was the victim, got out and questioned the defendant as to why he was following them. The defendant took out a gun and told the two men to leave, and that “it's not with you.” One of the men told him to put down the gun and use his hands, pulling up his shirt to show the defendant that he was unarmed. Shortly thereafter the victim emerged from the ex-girlfriend's home.

FN1. Penn was found guilty after a separate jury trial of murder in the first degree.

The victim stepped between the defendant and the two men; an argument ensued about the ex-girlfriend. One of the men continued to yell at the defendant to “fight like a man.” The defendant summoned the codefendant over and gave him the gun. After the defendant punched the victim, a fight erupted between the two; all the while the codefendant pointed the gun at the other two men, one of whom left the scene to call the police. The fight moved up the street. The victim broke away from the defendant. A man who was pumping gasoline about a block away saw the codefendant and the victim engage in a face-to-face argument for about thirty seconds, and then he saw the codefendant shoot the victim in the head. He did not see the defendant. The man called 911 on his cellular telephone; he then followed the codefendant to see if he recognized him.

[1] [pic]Withdrawal instruction. The defendant argues that there was insufficient evidence of a joint venture, and that the codefendant was solely responsible for the victim's death. He requested an instruction on withdrawal from a joint venture. In light of the lack of evidence demonstrating that the defendant communicated to the codefendant his intention to withdraw from the enterprise, the judge, apparently concluding that there was an insufficient basis to support the withdrawal theory, declined to give the instruction at the close of the case.

Assuming that the defendant properly preserved all issues relating to the withdrawal instruction,FN2 we think there was insufficient evidence at trial to warrant a withdrawal instruction. We *4 conclude, as did the trial judge, that the events immediately leading to the victim's death happened very quickly, and no “appreciable interval between the alleged termination and the fatal shooting, a detachment from the enterprise before the shooting has become so probable that it cannot reasonably be stayed, and such notice or definite act of detachment that [the] other principal[ ] in the attempted crime [had] opportunity also to abandon it” occurred here. Commonwealth v. Fickett, 403 Mass. 194, 201, 526 N.E.2d 1064 (1988), quoting from Commonwealth v. Green, 302 Mass. 547, 555, 20 N.E.2d 417 (1939).

FN2. The Commonwealth contends otherwise and argues that our review of some aspects of the defendant's argument is limited to a “substantial risk of a miscarriage of justice.” See Commonwealth v. Carlson, 448 Mass. 501, 506, 862 N.E.2d 363 (2007).

Joint venture instructions. During deliberations, the jury sent the judge a note asking: “Does [the defendant] have to be [ ] present at the time of actual ‘murder’?” In response, the judge instructed that

**250 “a joint venturer ... has to be present at or near the scene. But ... you don't have to be right at the location.

“...

[2] [pic]“[T]he Commonwealth does not have to prove that the defendant was actually present at the scene at the time that the gun was shot, as long as the Commonwealth shows that the defendant was present; that is, was at or near the general vicinity of the crime, at-at some point during the joint venture. The joint venturer does not have to be there at the culmination of the crime.”

The defendant contends that in attempting to clarify the “presence” element of joint venture, the judge inadvertently instructed the jury on a separate theory of the crime, thus depriving the defendant of notice and a chance to defend against it. See, e.g., Commonwealth v. Tavares, 61 Mass.App.Ct. 385, 388-389, 810 N.E.2d 1242 (2004), discussing the two types of joint venturer liability. We noted in Commonwealth v. Caramanica, 49 Mass.App.Ct. 376, 380, 729 N.E.2d 656 (2000), that there is some confusion associated with the need for “presence” in joint venture cases. While “presence is not required where a defendant actually ‘aids or abets' in the commission of a crime [,] presence generally is required where a conviction is sought on the basis that a defendant ‘shared’ the principal's criminal intent (i.e., ‘mental state’), and may have *5 merely stood by, but by agreement was ready to assist if necessary” (emphasis in original). Id. at 381, 729 N.E.2d 656. The parties agree that the Commonwealth submitted evidence only of the latter type of joint venture.

[3] [pic]The trial judge has “discretion ... to choose the form of expression best adapted to make the law intelligible to the jurors.” Commonwealth v. Silva, 388 Mass. 495, 507, 447 N.E.2d 646 (1983). When the jurors asked for clarification on the element of presence, the judge first consulted with the attorneys, and the defense counsel raised no objection. Therefore, to reverse we must find that there was a flaw in the instructions and that the flaw caused a substantial risk of miscarriage of justice. See Commonwealth v. Whitman, 430 Mass. 746, 750, 722 N.E.2d 1284 (2000), and cases cited.

[4] [pic][5] [pic]There was no substantial risk of a miscarriage of justice. By describing “presence” to mean “at or near the general vicinity of the crime ... at some point during the joint venture,” the judge correctly stated the law. See Commonwealth v. Kilburn, 426 Mass. 31, 34 n. 5, 686 N.E.2d 961 (1997), quoting from Commonwealth v. Mahoney, 405 Mass. 326, 329, 540 N.E.2d 179 (1989) (“It is well settled ... that individuals may be considered present for joint venture purposes even where they are only ‘in the vicinity of the crime’ ”); Commonwealth v. Tavares, 61 Mass.App.Ct. at 388, 810 N.E.2d 1242 (“A defendant need not be at the scene of a crime throughout its occurrence in order to be found a joint venturer”). The judge's instructions did not change the elements of joint venture from those that the Commonwealth proved at trial, and did not deprive the defendant of the notice required for him to defend against the charges.

[6] [pic]Following the reasoning of Commonwealth v. Lafayette, 40 Mass.App.Ct. 534, 537, 665 N.E.2d 1025 (1996), since the defendant here (1) initiated the animosity between himself and the victim; (2) brought the gun to the altercation; (3) threatened on multiple occasions to kill the victim, even stating, “This is how I want to catch you,” as he pointed the gun at the victim's head; (4) proceeded to beat up the victim after handing the gun to his companion; and (5) did not engage in any **251 other “withdrawal” behavior, his presence at the time of the fatal shot is of no consequence in a determination whether he was a joint venturer. Furthermore, the defendant “acted with knowledge of the [crime] and with the intent to assist in the commission of that crime so as to accomplish *6 its objective,” which was to harm the victim. Commonwealth v. Batista, 53 Mass.App.Ct. 642, 646, 761 N.E.2d 523 (2002). Moreover, as already mentioned, the jury were warranted in finding that the defendant made no communication to the codefendant of his lack of intent to kill or cause grievous bodily harm to the victim. In short, his willingness and availability to help his companion (or in this case, his acquiescing to his companion's shooting of the victim) have been established on the record.

[7] [pic][8] [pic]Reference to prior incarceration. The prosecution may not introduce evidence of the defendant's prior bad acts, including past incarcerations, “for the purposes of showing his bad character or propensity to commit the crime charged.... [It] must be excluded unless it comes within one of the permitted uses, such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (1986), and cases cited. See Mass. G. Evid. § 404(b) (2008-2009). As the judge observed in his limiting instructions, the evidence was relevant to the location and unavailability of the defendant when the breakup with his girlfriend occurred, and the involuntariness of his absence from the area. The evidence provided context rather than motive, particularly because the ex-girlfriend testified that the defendant did not threaten her or the victim until after he got out of jail. FN3 We are not persuaded that the judge abused his discretion in concluding that this evidence could be admitted under a limiting instruction. FN4 The judge cautioned the jury strongly against making any connection between the evidence of the defendant's incarceration and the charge on which he was being tried.

FN3. As the defendant properly preserved the error, we review “according to a nonprejudicial error standard.” Commonwealth v. Vinnie, 428 Mass. 161, 163, 698 N.E.2d 896, cert. denied, 525 U.S. 1007, 119 S.Ct. 523, 142 L.Ed.2d 434 (1998).

FN4. Though it is conceivable that the evidence could have been sanitized in some manner to describe the defendant's unavailability without reference to his incarceration, it is likely that any attempt to do so would have created more confusion than illumination.

[9] [pic]Moreover, there was ample evidence of the contentious relations of the defendant, his ex-girlfriend, and the victim in the two months between the defendant's release from prison and the murder, from which the jury could have reasonably inferred that the defendant's motive for the murder arose from his extreme *7 reluctance to end his relationship with the ex-girlfriend. Thus, we may fairly conclude that, if the admission of evidence of incarceration was error, “the error did not influence the jury, or had but very slight effect,” and that “the judgment was not substantially swayed by the error.” Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445, 446 N.E.2d 117 (1983).

Closing argument. In light of the previous discussions regarding the definition of the “presence” element of joint venture, and the use of the defendant's prior incarceration, we believe that “[t]he prosecutor's statements here did not exceed the bounds of fair inference from the evidence, and the jury-admonished by both the judge and counsel to apply their common **252 sense and experience in their deliberations-did not have to engage in impermissible conjecture in order reasonably to draw the commonsense inference suggested by the prosecutor.” Commonwealth v. Correia, 65 Mass.App.Ct. 27, 31-32, 836 N.E.2d 517 (2005), and cases cited.

Judgment affirmed.

Mass.App.Ct.,2009.

Com. v. Serrano

74 Mass.App.Ct. 1, 903 N.E.2d 247

CHAPTER 20

FOR SPERRY V. FLORIDA – SEE THE FIRST CASE IN THIS DOCUMENT UNDER CHAPTER ONE. THE TEXT OF THE CASE IS ALREADY WITHIN THIS DOCUMENT THERE.

United States Court of Appeals,

Second Circuit.

ELSMERE MUSIC, INC., Plaintiff-Appellant,

v.

NATIONAL BROADCASTING COMPANY, Defendant-Appellee.

No. 1180, Docket 80-7145.

Argued May 28, 1980.

Decided June 9, 1980.

Copyright proprietor of advertising jingle “I Love New York” brought suit to redress alleged copyright infringement which occurred when tune “I Love Sodom” was broadcast on television comedy sketch. On cross motions for summary judgment, the United States District Court for the Southern District of New York, Gerard L. Goettel, J., 482 F.Supp. 741, found song parody to be noninfringing fair use of copyright, and copyright proprietor appealed. The Court of Appeals held that parodist's use of tune of “I Love New York” was protected fair use.

Affirmed.

Concept of “conjuring up” an original came into copyright law not as limitation on how much of an original may be used, but as recognition that parody frequently needs to be more than a fleeting evocation of an original in order to make its humorous point; a parody is entitled at least to “conjure up” the original and even more extensive use would still be fair use, provided parody builds upon the original, using original as known element of modern culture and contributing something new for humorous effect or commentary.

*253 Paul Siegert, New York City (Siegert & Miller, Philip R. Kaufman, New York City, on the brief), for plaintiff-appellant.

Pamela G. Ostrager, New York City (Coudert Brothers, Carleton G. Eldridge, Jr., R. David Jacobs, Corydon B. Dunham, Gen. Counsel, Jay E. Gerber, William T. Abbott, N. B. C., New York City, on the brief), for defendant-appellee.

Before FEINBERG, NEWMAN and KEARSE, Circuit Judges.

PER CURIAM:

(1) [pic](2) [pic]This copyright infringement suit concerns a skit, shown on the television program “Saturday Night Live,” poking fun at New York City's public relations campaign and its theme song. In the four-minute skit the town fathers of Sodom discuss a plan to improve their city's image. The satire ends with the singing of “I Love Sodom” to the tune of “I Love New York.” The District Court for the Southern District of New York (Gerard L. Goettel, Judge) rejected appellant's claim of copyright infringement, concluding that the parody was protected fair use. Believing that, in today's world of often unrelieved solemnity, copyright law should be hospitable to the humor of parody, and that the District Court correctly applied the doctrine of fair use, we affirm on Judge Goettel's thorough opinion.[FN1] 482 F.Supp. 741.

FN1. The District Court concluded, among other things, that the parody did not make more extensive use of appellant's song than was necessary to “conjure up” the original. 482 F.Supp. at 747. While we agree with this conclusion, we note that the concept of “conjuring up” an original came into the copyright law not as a limitation on how much of an original may be used, but as a recognition that a parody frequently needs to be more than a fleeting evocation of an original in order to make its humorous point. Columbia Pictures Corp. v. National Broadcasting Co., 137 F.Supp. 348, 354 (S.D.Cal.1955). A parody is entitled at least to “conjure up” the original. Even more extensive use would still be fair use, provided the parody builds upon the original, using the original as a known element of modern culture and contributing something new for humorous effect or commentary.

C.A.N.Y., 1980.

Elsmere Music, Inc. v. National Broadcasting Co.

623 F.2d 252, 207 U.S.P.Q. 277, 1978-81 Copr.L.Dec. P 25,170, 6 Media L. Rep. 1457

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download