author:
Per Curiam.
      Mr. Justice- Rehnquist,

text:
    COOL v. UNITED STATES
    No. 72-72.
    Decided December 4, 1972
   Per Curiam.

The petition for a writ of certiorari is granted.

In this case, the court below held in effect that in a criminal trial, the jury may be instructed to ignore defense testimony unless it believes beyond a reasonable doubt that the testimony is true. That holding is fundamentally inconsistent with our prior decisions in In re Winship, 397 U. S. 358 (1970), and Washington v. Texas, 388 U. S. 14 (1967), and must therefore be reversed.

After a jury trial, petitioner was found guilty of possessing and concealing, with intent to defraud, counterfeit obligations of the United States. The evidence showed that on June 2, 1970, petitioner, her husband, and one Robert E. Voyles were traveling together by car between St. Louis, Missouri, and Brazil, Indiana. Upon reaching Brazil, Voyles left petitioner and her husband and passed two counterfeit bills at a local store. He was then arrested shortly after he entered the car in which petitioner and her husband were waiting.

After his arrest, Voyles was placed in the police car and taken to the station house. Petitioner and her husband were told to follow in their own car. A Mr. Baumunk testified that he saw petitioner throw a paper sack out of the car window as petitioner was following the police car. The bag was subsequently found to contain counterfeit bills. Police also found three counterfeit bills crumpled up under the right seat of petitioner's car.

Although petitioner testified in her own defense, she relied primarily on the testimony of Voyles. Voyles freely admitted his own guilt, but steadfastly insisted that neither petitioner nor her husband had anything to do with the crime. He testified that petitioner had merely agreed to give him a ride and knew nothing about the counterfeit bills that he carried with him. When the car stopped in Brazil, Voyles allegedly removed some of the counterfeit bills from his satchel which he kept in petitioner's trunk, and concealed the rest of the bills in a sack which he placed under the front bumper by the headlight. The defense argued that it was this sack that Baumunk saw fall to the ground as petitioner drove to the police station. Voyles also stated that after he had rejoined petitioner, he saw police approaching the car and threw the remaining bills on his person onto the car floor, again without the knowledge of petitioner. Petitioner thus asserts that she was not in knowing possession of the bills on the car floor.

With the case in this posture, the Government's position clearly depended upon its ability to discredit Voyles, since his testimony was completely exculpatory. Over strenuous defense objection, the trial judge gave the jury a lengthy “accomplice instruction” to be used in evaluating Voyles’ testimony. After first defining the word “accomplice” and warning that an accomplice’s testimony is “open to suspicion,” the judge made the following statement: “However, I charge you that the testimony of an accomplice is competent evidence and it is for you to pass upon the credibility thereof. If the testimony carries conviction and you are convinced it is true beyond a reasonable doubt, the jury should give it the same effect as you would to a witness not in any respect implicated in the alleged crime and you are not only justified, but it is your duty, not to throw this testimony out because it comes from a tainted source.” (Emphasis added.)

The clear implication of this instruction was that the jury should disregard Voyles’ testimony unless it was “convinced it is true beyond a reasonable doubt.” Such an instruction places an improper burden on the defense and allows the jury to convict despite its failure to find guilt beyond a reasonable doubt.

Accomplice instructions have long been in use and have been repeatedly approved. See, e. g., Holmgren v. United States, 217 U. S. 509, 523-524 (1910). In most instances, they represent no more than a commonsense recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity. See, e. g., Crawford v. United States, 212 U. S. 183, 204 (1909). But in most of the recorded cases, the instruction has been used when the accomplice turned State’s evidence and testified against the defendant. See generally McMillen v. United States, 386 F. 2d 29 (CA1 1967), and cases cited therein. No constitutional problem is posed when the judge instructs a jury to receive the prosecution’s accomplice testimony “with care and caution.” See, e. g., United States v. George, 319 F. 2d 77, 80 (CA6 1963). Cf. United States v. Nolte, 440 F. 2d 1124 (CA5 1971).

But there is an essential difference between instructing a jury on the care with which it should scrutinize certain evidence in determining how much weight to accord it and instructing a jury, as the judge did here, that as a predicate to the consideration of certain evidence, it must find it true beyond a reasonable doubt.

In Washington v. Texas, supra, we held that a criminal defendant has a Sixth Amendment right to present to the jury exculpatory testimony of an accomplice. The instruction given below impermissibly obstructs the exercise of that right by totally excluding relevant evidence unless the jury makes a preliminary determination that it is extremely reliable.

Moreover, the instruction also has the effect of substantially reducing the Government’s burden of proof. We held in In re Winship, supra, that the Constitution requires proof of guilt beyond a reasonable doubt. It is possible that Voy les’ testimony would have created a reasonable doubt in the minds of the jury, but that it was not considered because the testimony itself was not believable beyond a reasonable doubt. By creating an artificial barrier to the consideration of relevant defense testimony putatively credible by a preponderance of the evidence, the trial judge reduced the level of proof necessary for the Government to carry its burden. Indeed, where, as here, the defendant’s case rests almost entirely on accomplice testimony, the effect of the judge’s instructions is to require the defendant to establish his innocence beyond a reasonable doubt.

Because such a requirement is plainly inconsistent with the constitutionally rooted presumption of innocence, the conviction must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice- Rehnquist,

with whom The Chief Justice and Mr. Justice Blackmun concur,

dissenting.

I believe that the Court’s fine-spun parsing of the trial judge’s charge to the jury turns the appellate review of this case into the sort of “quest for error” which was said in Bihn v. United States, 328 U. S. 633, 638 (1946), to be forbidden by Rule 52 (a) of the Federal Rules of Criminal Procedure, and by 28 U. S. C. § 2111.

The testimony of the witness Voyles, called by petitioner as a witness in her behalf, presented the trial judge with something of a dilemma in determining how he should charge the jury. Much of Voyles’ testimony tended to exculpate petitioner, but there were significant aspects of it that did not. He substantiated the fact that the petitioner and her husband had traveled with him from St. Louis to Brazil, Indiana. He corroborated prosecution evidence that both petitioner and her husband gave the same false last name of Gibbs when booked at the police station in Brazil. He also suggested a closeness to petitioner’s husband which was scarcely helpful to their defense when he testified that “I was a little sore at Mike [petitioner’s husband], because I thought Mike should help me [get out on bond].”

The trial judge made clear in his colloquy with counsel, while dealing with their objections to the charge, that he was concerned about the ambivalence of Voyles’ testimony and felt it necessary to give the charge relating to accomplices. Petitioner’s counsel in objecting to that portion of the charge did so on a quite different ground from that now sustained by the Court; the ground of objection stated to the trial court was apparently that the mention of the term “accomplice” to the jury suggested that petitioner and her husband were in fact guilty. Such a ground of objection was wholly without merit, since, as the Court of Appeals pointed out in its opinion in this case, the instruction left it entirely to the jury to determine whether or not the facts existed that would make Voyles an accomplice.

The trial court gave 36 separate instructions to the jury, which covered some 52 pages of the transcript in this case. The instruction in question covers two pages, and the Court reverses the conviction on the basis of one sentence in that one instruction. The trial judge repeatedly emphasized to the jury that the Government was obligated to prove guilt beyond a reasonable doubt. Typical is the following statement, which is repeated throughout the instructions in at least half a dozen places:

“The entire burden of proof is upon the Government from the beginning to'the end of the trial and this burden of proof never shifts from the Government to the defendants, and the defendants are not bound to prove their innocence, offer any excuse, or explain anything . . . .”

The record before us does not indicate that either counsel so much as mentioned the accomplice instruction in his argument to the jury. Nonetheless, the Court concludes that because the instruction contained a “negative pregnant” that could be taken to mean that the jurors should reject Voyles’ testimony if they had a reasonable doubt as to its veracity, the conviction is to be reversed.

I had thought the day long past when even appellate courts of the first instance, such as the Court of Appeals in this case, parsed instructions and engaged in nice semantic distinctions in the absence of any showing that would satisfy an ordinary lawyer or layman that substantial rights of one of the parties had been prejudiced by the supposed error. If the nuance of the instruction upon which reversal is now based did not suggest itself to petitioner’s trial counsel, it seems doubtful that it suggested itself to the jury either:

“A party must make every reasonable effort to secure from the trial court correct rulings or such at least as are satisfactory to him before he will be permitted to ask any review by the appellate tribunal; and to that end he must be distinct and specific in his objections and exceptions. . . . '. . . [JJustice itself and fairness to the court which makes the rulings complained of, require that the attention of that court shall be specifically called to the precise point to which exception is taken, that it may have an opportunity to reconsider the matter and remove the ground of exception.’ ” Allis v. United States, 155 U. S. 117, 122 (1894), quoting Harvey v. Tyler, 2 Wall. 328, 339 (1865).

Nor, as pointed out above, did this particular instruction of the trial court stand alone; it was incorporated into a series of instructions that had as their predominant theme that the burden of proof was upon the Government at every stage to prove guilt beyond a reasonable doubt. The trial court’s instructions are to be taken as a whole, and even if an isolated passage might be error if standing by itself, that alone is not a sufficient ground for reversal. Boyd v. United States, 271 U. S. 104, 107 (1926).

The Court’s reversal on the ground that one of the instructions contained a “negative pregnant” smacks more of the scholastic jurisprudence whose shortcomings led to the enactment of 28 U. S. C. § 2111 than it does of the commonsense approach to appellate review that that section mandates.

       At the time of his testimony, Voyles had already pleaded guilty to a charge of complicity in the possession and concealment of counterfeit notes.

       The dissent suggests that the defendant objected to the accomplice instruction solely on the ground that use of the word “accomplice” suggested that the defendant was guilty. Although the defense objection was not a model of clarity, it seems apparent that it was grounded more broadly on the trial judge’s decision to give the standard accomplice instruction despite the fact that the accomplice was a defense witness. The defense attorney stated: ‘T take exception to Instruction No. 16, as it’s misleading. 7 don’t think it belongs in this cause. There was no accomplice testified [sic] for the Government, and this could mislead them as to' the person who was accused of this crime and has already pled guilty, as making an accomplice of him, when actually he is not an accomplice, because they are not involved in the crime.” (Emphasis added.) Certainly, the trial judge understood this objection to be directed to his decision to give the standard cautionary instruction even though the alleged accomplice was called by the defendant. In colloquy with the defense attorney, the judge stated: “The next, ‘accomplice,’ the evidence of both the Government and the defendants may be considered by the jury in determining the guilt or innocence, no matter who produces the witness. . . . Now there’s a lot of inferences can be drawn from one item of evidence or another, and that’s for the jury to decide. So long as there is some evidence, the instruction must be given. It hits both ways on that point.” (Emphasis added.) Nor did the Court of Appeals indicate any doubt that defendant’s objection was sufficient to preserve the point on appeal.

       True, the instruction was couched in positive terms. It told the jury to consider the evidence if it believed it true beyond a reasonable doubt. But the statement contained a negative pregnant as well. There is an unacceptable risk that jurors might have thought they were to reject the evidence — “throw [it] out,” in the words of the trial judge — if they had a reasonable doubt as to its veracity.

       In the next paragraph of his instruction, the judge stated: “I further instruct you that testimony of an accomplice may alone and uncorroborated support your verdict of guilty of the charges in the Indictment if believed by you to prove beyond a reasonable doubt the essential elements of the charges in the Indictment against the defendants.” In light of the fact that the only accomplice testimony in the case was exculpatory, this instruction was confusing to say the least. But even if it is assumed that Voyles’ testimony was to some extent inculpatory, the instruction was still fundamentally unfair in that it told the jury that it could convict solely on the basis of accomplice testimony without telling it that it could acquit on this basis. Even had there been no other error, the conviction would have to be reversed on the basis of this instruction alone.

       “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Fed. Rule Crim. Proe. 52 (a).

       “On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors- or defects which do not affect the substantial rights of the parties.” 28 U. S. C. § 2111.

       The petitioner and her husband were tried and convicted together on the counterfeiting charges. Both appealed their convictions to the Seventh Circuit, which affirmed both. Petitioner’s husband has not sought certiorari to have his conviction reviewed.


source: Caselaw Access Project

author: MR. Justice Rehnquist Mr. Justice Stewart, Mr. Justice Douglas, Mr. Justice Brennan, Mr. Justice Marshall,

license: Public Domain

text:
    CALIFORNIA et al. v. LaRUE et al.
    No. 71-36.
    Argued October 10, 1972
    Decided December 5, 1972
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Powell, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 119. Douglas, J., post, p. 120, Brennan, J., post, p. 123, and Marshall, J., post, p. 123, filed dissenting opinions.

      L. Stephen Porter, Deputy Attorney General of California,

      Harrison W. Hertzberg and Kenneth Scholtz argued the cause for appellees.
   MR. Justice Rehnquist

delivered the opinion of the Court.

Appellant Kirby is the director of the Department of Alcoholic Beverage Control, an administrative agency vested by the California Constitution with primary authority for the licensing of the sale of alcoholic beverages in that State, and with the authority to suspend or revoke any such license if it determines that its continuation would be contrary to public welfare or morals. Art. XX, § 22, California Constitution. Appellees include holders of various liquor licenses issued by appellant, and dancers at premises operated by such licensees. In 1970 the Department promulgated rules regulating the type of entertainment that might be presented in bars and nightclubs that it licensed. Appellees then brought this action in the United States District Court for the Central District of California under the provisions of 28 U. S. C. §§ 1331, 1343, 2201, 2202, and 42 U. S. C. § 1983. A three-judge court was convened in accordance with 28 U. S. C. §§2281 and 2284, and the majority of that court held that substantial portions of the regulations conflicted with the First and Fourteenth Amendments to the United States Constitution.

Concerned with the progression in a few years’ time from “topless” dancers to “bottomless” dancers and other forms of “live entertainment” in bars and nightclubs that it licensed, the Department heard a number of witnesses on this subject at public hearings held prior to the promulgation of the rules. The majority opinion of the District Court described the testimony in these words:

“Law enforcement agencies, counsel and owners of licensed premises and investigators for the Department testified. The story that unfolded was a sordid one, primarily relating to sexual conduct between dancers and customers. . . 326 F. Supp. 348, 352.

References to the transcript of the hearings submitted by the Department to the District Court indicated that in licensed establishments where “topless” and “bottomless” dancers, nude entertainers, and films displaying sexual acts were shown, numerous incidents of legitimate concern to the Department had occurred. Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer, or on the bar in order that she might pick it up herself. Numerous other forms of contact between the mouths of male customers and the vaginal areas of female performers were reported to have occurred.

Prostitution occurred in and around such licensed premises, and involved some of the female dancers. Indecent exposure to young girls, attempted rape, rape itself, and assaults on police officers took place on or immediately adjacent to such premises.

At the conclusion of the evidence, the Department promulgated the regulations here challenged, imposing standards as to the type of entertainment that could be presented in bars and nightclubs that it licensed. Those portions of the regulations found to be unconstitutional by the majority of the District Court prohibited the following kinds of conduct on licensed premises:

(a) The performance of acts, or simulated acts, of “sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law”;
(b) The actual or simulated “touching, caressing or fondling on the breast, buttocks, anus or genitals”;
(c) The actual or simulated ^'displaying of the pubic hair, anus, vulva or genitals”;
(d) The permitting by a licensee of “any person to remain in or upon the licensed premises who exposes to public view any portion of his or her genitals or anus”; and, by a companion section,
(e) The displaying of films or pictures depicting acts a live performance of which was prohibited by the regulations quoted above. Rules 143.3 and 143.4.

Shortly before the effective date of the Department's regulations, appellees unsuccessfully sought discretionary review of them in both the State Court of Appeal and the Supreme Court of California. The Department then joined with appellees in requesting the three-judge District Court to decide the merits of appellees’ claims that the regulations were invalid under the Federal Constitution.

The District Court majority upheld the appellees’ claim that the regulations in question unconstitutionally abridged the freedom of expression guaranteed to them by the First and Fourteenth Amendments to the United States Constitution. It reasoned that the state regulations had to be justified either as a prohibition of obscenity in accordance with the Both line of decisions in this Court (Roth v. United States, 354 U. S. 476 (1957)), or else as a regulation of “conduct” having a communicative element in it under the standards laid down by this Court in United States v. O’Brien, 391 U. S. 367 (1968). Concluding that the regulations would bar some entertainment that could not be called obscene under the Roth line of cases, and that the governmental interest being furthered by the regulations did not meet the tests laid down in O’Brien, the court enjoined the enforcement of the regulations. 326 F. Supp. 348. We noted probable jurisdiction. 404 U. S. 999.

The state regulations here challenged come to us, not in the context of censoring a dramatic performance in a theater, but rather in a context of licensing bars and nightclubs to sell liquor by the drink. In Seagram & Sons v. Hostetter, 384 U. S. 35, 41 (1966), this Court said:

"Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment, the second section of which provides that: 'The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.’ ”

While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals. In Hostetter v. Idlewild Liquor Corp., 377 U. S. 324, 330 (1964), the Court reaffirmed that by reason of the Twenty-first Amendment “a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.” Still earlier, the Court stated in State Board v. Young’s Market Co., 299 U. S. 59, 64 (1936):

“A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth.”

These decisions did not go so far as to hold or say that the Twenty-first Amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations. In Wisconsin v. Constantineau, 400 U. S. 433 (1971), the fundamental notice and hearing requirement of the Due Process Clause of the Fourteenth Amendment was held applicable to Wisconsin’s statute providing for the public posting of names of persons who had engaged in excessive drinking. But the case for upholding state regulation in the area covered by the Twenty-first Amendment is undoubtedly strengthened by that enactment:

“Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case.” Hostetter v. Idlewild Liquor Corp., supra, at 332.

A common element in the regulations struck down by the District Court appears to be the Department’s conclusion that the sale of liquor by the drink and lewd or naked dancing and entertainment should not take place in bars and cocktail lounges for which it has licensing responsibility. Based on the evidence from the hearings that it cited to the District Court, and mindful of the principle that in legislative rulemaking the agency may reason from the particular to the general, Assigned Car Cases, 274 U. S. 564, 583 (1927), we do not think it can be said that the Department’s conclusion in this respect was an irrational one.

Appellees insist that the same results could have been accomplished by requiring that patrons already well on the way to intoxication be excluded from the licensed premises. But wide latitude as to choice of means to accomplish a permissible end must be accorded to the state agency that is itself the repository of the State’s power under the Twenty-first Amendment. Seagram & Sons v. Hostetter, supra, at 48. Nothing in the record before us or in common experience compels the conclusion that either self-discipline on the part of the customer or self-regulation on the part of the bartender could have been relied upon by the Department to secure compliance with such an alternative plan of regulation. The Department’s choice of a prophylactic solution instead of one that would have required its own personnel to judge individual instances of inebriation cannot, therefore, be deemed an unreasonable one under the holdings of our prior cases. Williamson v. Lee Optical Co., 348 U. S. 483, 487-488 (1955).

We do not disagree with the District Court’s determination that these regulations on their face would proscribe some forms of visual presentation that would not be found obscene under Roth and subsequent decisions of this Court. See, e. g., Sunshine Book Co. v. Summerfield, 355 U. S. 372 (1958), rev’g per curiam, 101 U. S. App. D. C. 358, 249 F. 2d 114 (1957). But we do not believe that the state regulatory authority in this case was limited to either dealing with the problem it confronted within the limits of our decisions as to obscenity, or in accordance with the limits prescribed for dealing with some forms of communicative conduct in O’Brien, supra.

Our prior cases have held that both motion pictures and theatrical productions are within the protection of the First and Fourteenth Amendments. In Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952), it was held that motion pictures are “included within the free speech and free press guaranty of the First and Fourteenth Amendments,” though not “necessarily subject to the precise rules governing any other particular method of expression.” Id., at 502-503. In Schacht v. United States, 398 U. S. 58, 63 (1970), the Court said with respect to theatrical productions:

“An actor, like everyone else in our country, enjoys a constitutional right to freedom of speech, including the right openly to criticize the Government during a dramatic performance.”

But as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases. States may sometimes proscribe expression that is directed to the accomplishment of an end that the State has declared to be illegal when such expression consists, in part, of “conduct” or “action,” Hughes v. Superior Court, 339 U. S. 460 (1950); Giboney v. Empire Storage Co., 336 U. S. 490 (1949). In O’Brien, supra, the Court suggested that the extent to which “conduct” was protected by the First Amendment depended on the presence of a “communicative element,” and stated:

“We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech’ whenever the person engaging in the conduct intends thereby to express an idea.” 391 U. S., at 376.

The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in ^the form of movies or live entertainment, “performances” ■ that partake more of gross sexuality than of com- • munication. While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink.

Viewed in this light, we conceive the State’s authority in this area to be somewhat broader than did the District Court. This is not to say that all such conduct and performance are without the protection of the First and Fourteenth Amendments. But we would poorly serve both the interests for which the State may validly seek vindication and the interests protected by the First and Fourteenth Amendments were we to insist that the sort of bacchanalian revelries that the Department sought to prevent by these liquor regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater.

The Department’s conclusion, embodied in these regulations, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.

The contrary holding of the District Court is therefore

Reversed.

Mr. Justice Stewart,

concurring.

A State has broad power under the Twenty-first Amendment to specify the times, places, and circumstances where liquor may be dispensed within its borders. Seagram & Sons v. Hostetter, 384 U. S. 35; Hostetter v. Idlewild Liquor Corp., 377 U. S. 324, 330; Dept. of Revenue v. James Beam Co., 377 U. S. 341, 344, 346; California v. Washington, 358 U. S. 64; Ziffrin, Inc. v. Reeves, 308 U. S. 132; Mahoney v. Joseph Triner Corp., 304 U. S. 401; State Board v. Young’s Market Co., 299 U. S. 59. I should suppose, therefore, that nobody would question the power of California to prevent the sale of liquor by the drink in places where food is not served, or where dancing is permitted, or where gasoline is sold. But here California has provided that liquor by the drink shall not be sold in places where certain grossly sexual exhibitions are performed; and that action by the State, say the appellees, violates the First and Fourteenth Amendments. I cannot agree.

Every State is prohibited by these same Amendments from invading the freedom of the press and from impinging upon the free exercise of religion. But does this mean that a State cannot provide that liquor shall not be sold in bookstores, or within 200 feet of a church? I think not. For the State would not thereby be interfering with the First Amendment activities of the church or the First Amendment business of the bookstore. It would simply be controlling the distribution of liquor, as it has every right to do under the Twenty-first Amendment. On the same premise, I cannot see how the liquor regulations now before us can be held, on their face, to violate the First and Fourteenth Amendments.

It is upon this constitutional understanding that I join the opinion and judgment of the Court.

Mr. Justice Douglas,

dissenting.

This is an action for a declaratory judgment, challenging Rules and Regulations of the Department of Alcoholic Beverage Control of California. It is a challenge of the constitutionality of the rules on their face; no application of the rules has in fact been made to ap-pellees by the institution of either civil or criminal proceedings. While the case meets the requirements of "case or controversy” within the meaning of Art. Ill of the Constitution and therefore complies with Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, the case does not mark the precise impact of these rules against licensees who sell alcoholic beverages in California. The opinion of the Court can, therefore, only deal with the rules in the abstract.

The line which the Court draws between “expression” and “conduct” is generally accurate; and it also accurately describes in general the reach of the police power of a State when “expression” and “conduct” are closely brigaded. But we still do not know how broadly or how narrowly these rules will be applied.

It is conceivable that a licensee might produce in a garden served by him a play — Shakespearean perhaps or one in a more modern setting — in which, for example, “fondling” in the sense of the rules appears. I cannot imagine that any such performance could constitutionally be punished or restrained, even though the police power of a State is now buttressed by the Twenty-first Amendment. For, as stated by the Court, that Amendment did not supersede all other constitutional provisions “in the area of liquor regulations.” Certainly a play which passes muster under the First Amendment is not made illegal because it is performed in a beer garden.

Chief Justice Hughes stated the controlling principle in Electric Bond & Share Co. v. SEC, 303 U. S. 419, 443:

“Defendants are not entitled to invoke the Federal Declaratory Judgment Act in order to obtain an advisory decree upon a hypothetical state of facts. ... By the cross bill, defendants seek a judgment that each and every provision of the Act is unconstitutional. It presents a variety of hypothetical controversies which may never become real. We are invited to enter into a speculative inquiry for the purpose of condemning statutory provisions the effect of which in concrete situations, not yet developed, cannot now be definitely perceived. We must decline that invitation. . . .”

The same thought was expressed by Chief Justice Stone in Federation of Labor v. McAdory, 325 U. S. 450, 470-471. Some provisions of an Alabama law regulating labor relations were challenged as too vague and uncertain to meet constitutional requirements. The Chief Justice noted that state courts often construe state statutes so that in their. application they are not open to constitutional objections. Id., at 471. He said that for us to decide the constitutional question “by anticipating such an authoritative construction” would be either “to decide the question unnecessarily or rest our decision on the unstable foundation of our own construction of the state statute which the state court would not be bound to follow.” Ibid. He added:

“In any event the parties are free to litigate in the state courts the validity of the statute when actually applied to' any definite state of facts, with the right of appellate review in this Court. In the exercise of this Court’s discretionary power to grant or withhold the declaratory judgment remedy it is of controlling significance that it is in the public interest to avoid the needless determination of constitutional questions and the needless obstruction to the domestic policy of the states by forestalling state action in construing and applying its own statutes.” Ibid.

Those precedents suggest to me that it would have been more provident for the District Court to have de-dined to give a federal constitutional ruling, until and unless the generalized provisions of the rules were given particularized meaning.

Mr. Justice Brennan,

dissenting.

I dissent. The California regulation at issue here clearly applies to some speech protected by the First Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment, and also, no doubt, to some speech and conduct which are unprotected under our prior decisions. See Memoirs v. Massachusetts, 383 U. S. 413 (1966); Roth v. United States, 354 U. S. 476 (1957). The State points out, however, that the regulation does not prohibit speech directly, but speaks only to the conditions under which a license to sell liquor by the drink can be granted and retained. But, as Mr. Justice Marshall carefully demonstrates in Part II of his dissenting opinion, by requiring the owner of a nightclub to forgo the exercise of certain rights guaranteed by the First Amendment, the State has imposed an unconstitutional condition on the grant of a license. See Perry v. Sindermann, 408 U. S. 593 (1972); Sherbert v. Verner, 374 U. S. 398 (1963); Speiser v. Randall, 357 U. S. 513 (1958). Nothing in the language or history of the Twenty-first Amendment authorizes the .States to use their liquor licensing power as a means for the deliberate inhibition of protected, even if distasteful, forms of expression. For that reason, I would affirm the judgment of the District Court.

Mr. Justice Marshall,

dissenting.

In my opinion, the District Court’s judgment should be affirmed. The record in this case is not a pretty one, and it is possible that the State could constitutionally punish some of the activities described therein under a narrowly drawn scheme. But appellees challenge these regulations on their face, rather than as applied to a specific course of conduct. Cf. Gooding v. Wilson, 405 U. S. 518 (1972). When so viewed, I think it clear that the regulations are overbroad and therefore unconstitutional. See, e. g., Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). Although the State’s broad power to regulate the distribution of liquor and to enforce health and safety regulations is not to be doubted, that power may not be exercised in a manner that broadly stifles First Amendment freedoms. Cf. Shelton v. Tucker, 364 U. S. 479, 488 (1960). Rather, as this Court has made clear, “[precision of regulation must be the touchstone” when First Amendment rights 'are implicated. NAACP v. Button, 371 U. S. 415, 438 (1963). Because I am convinced that these regulations lack the precision which our prior cases require, I must respectfully dissent.

I

It should be clear at the outset that California’s regulatory scheme does not conform to the standards which we have previously enunciated for the control of obscenity. Before this Court’s decision in Roth v. United States, 354 U. S. 476 (1957), some American courts followed the rule of Regina v. Hicklin, L. R. 3 Q. B. 360 (1868), to the effect that the obscenity vel non of a piece of work could be judged by examining isolated aspects of it. See, e. g., United States v. Kennerley, 209 F. 119 (1913); Commonwealth v. Buckley, 200 Mass. 346, 86 N. E. 910 (1909). But in Roth we held that “[t]he Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press.” 354 U. S., at 489. Instead, we held that the material must be “taken as a whole,” ibid., and, when so viewed, must appeal to a prurient interest in sex, patently offend community standards relating to the depiction of sexual matters, and be utterly without redeeming social value. See Memoirs v. Massachusetts, 383 U. S. 413, 418 (1966).

Obviously, the California rules do not conform to these standards. They do not require the material to be judged as a whole and do not speak to the necessity of proving prurient interest, offensiveness to community standards, or lack of redeeming social value. Instead of the contextual test approved in Roth and Memoirs, these regulations create a system of per se rules to be applied regardless of context: Certain acts simply may not be depicted and certain parts of the body may under no circumstances be revealed. The regulations thus treat on the same level a serious movie such as “Ulysses” and a crudely made “stag film.” They ban not only obviously pornographic photographs, but also great sculpture from antiquity.

Both held 15 years ago that the suppression of serious communication was too high a price to pay in order to vindicate the State’s interest in controlling obscenity, and I see no reason to modify that judgment today. Indeed, even the appellants do not seriously contend that these regulations can be justified under the Roth-Memoirs test. Instead, appellants argue that California’s regulations do not concern the control of pornography at all. These rules, they (argue, deal with conduct rather than with speech and as such are not subject to the strict limitations of the First Amendment.

To support this proposition, appellants rely primarily on United States v. O’Brien, 391 U. S. 367 (1968), which upheld the constitutionality of legislation punishing the destruction or mutilation of Selective Service certificates. O’Brien rejected the notion that “an apparently limitless variety of conduct can be labeled 'speech’ whenever the person engaging in the conduct intends thereby to express an idea,” and held that Government regulation of speech-related conduct is permissible “if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id., at 376, 377.

While I do not quarrel with these principles as stated in the abstract, their application in this case stretches them beyond the breaking point. In O’Brien, the Court began its discussion by noting that the statute in question “plainly does not abridge free speech on its face.” Indeed, even O’Brien himself conceded that facially the statute dealt “with conduct having no connection with speech.” Id., at 375. Here, the situation is quite different. A long line of our cases makes clear that motion pictures, unlike draft-card burning, are a form of expression entitled to prima facie First Amendment protection. “It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.” Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 501 (1952) (footnote omitted). See also Interstate Circuit, Inc. v. City of Dallas, 390 U. S. 676 (1968); Jacobellis v. Ohio, 378 U. S. 184 (1964); Pinkus v. Pitchess, 429 F. 2d 416 (CA9 1970), aff'd by equally divided court sub nom. California v. Pinkus, 400 U. S. 922 (1970). Similarly, live performances and dance have, in recent years, been afforded broad prima facie First Amendment protection. See, e. g., Schacht v. United States, 398 U. S. 58 (1970); P. B. I. C., Inc. v. Byrne, 313 F. Supp. 757 (Mass. 1970), vacated to consider mootness, 401 U. S. 987 (1971); In re Giannini, 69 Cal. 2d 563, 446 P. 2d 535 (1968), cert. denied sub nom. California v. Giannini, 395 U. S. 910 (1969).

If, as these many cases hold, movies, plays, and the dance enjoy constitutional protection, it follows, ineluctably I think, that their component parts are protected as well. It is senseless to say that a play is “speech” within the meaning of the First Amendment, but that the individual gestures of the actors are “conduct” which the State may prohibit. The State may no more allow movies while punishing the "acts” of which they are composed than it may allow newspapers while punishing the “conduct” of setting type.

Of course, I do not mean to suggest that anything which occurs upon a stage is automatically immune from state regulation. No one seriously contends, for example, that an actual murder may be legally committed so long as it is called for in the script, or that an actor may inject real heroin into his veins while evading the drug laws that apply to everyone else. But once it is recognized that movies and plays enjoy prima facie First Amendment protection, the standard for reviewing state regulation of their component parts shifts dramatically. For while “[m]ere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, [they are] insufficient to justify such as diminishes the exercise of rights so vital” as freedom of speech. Schneider v. State, 308 U. S. 147, 161 (1939). Rather, in order to restrict speech, the State must show that the speech is “used in such circumstances and [is] of such a nature as to create a clear and present danger that [it] will bring about the substantive evils that [the State] has a right to prevent.” Schenck v. United States, 249 U. S. 47, 52 (1919). Cf. Brandenburg v. Ohio, 395 U. S. 444 (1969); Dennis v. United States, 341 U. S. 494 (1951).

When the California regulations are measured against this stringent standard, they prove woefully inadequate. Appellants defend the rules as necessary to prevent sex crimes, drug abuse, prostitution, and a wide variety of other evils. These are precisely the same interests that have been asserted time and again before this Court as justification for laws banning frank discussion of sex and that we have consistently rejected. In fact, the empirical link between sex-related entertainment and the criminal activity popularly associated with it has never been proved and, indeed, has now been largely discredited. See, e. g., Report of the Commission on Obscenity and Pornography 27 (1970); Cairns, Paul, & Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn. L. Rev. 1009 (1962). Yet even if one were to concede that such a link existed, it would hardly justify a broad-scale attack on First Amendment freedoms. The only way to stop murders and drug abuse is to punish them directly. But the State’s interest in controlling material dealing with sex is secondary in nature. It can control rape and prostitution by punishing those acts, rather than by punishing the speech that is one step removed from the feared harm. Moreover, because First Amendment rights are at stake, the State must adopt this “less restrictive alternative” unless it can make a compelling demonstration that the protected activity and criminal conduct are so closely linked that only through regulation of one can the other be stopped. Cf. United States v. Robel, 389 U. S. 258, 268 (1967). As we said in Stanley v. Georgia, 394 U. S. 557, 566-567 (1969), “if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that ‘[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law . . . Whitney v. California, 274 U. S. 357, 378 (1927) (Brandéis, J., concurring). . . . Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.”

II

It should thus be evident that, under the standards previously developed by this Court, the California regulations are overbroad: They would seem to suppress not only obscenity outside the scope of the First Amendment, but also speech that is clearly protected. But California contends that these regulations do not involve suppression at all. The State claims that its rules are not regulations of obscenity, but are rather merely regulations of the sale and consumption of liquor. Appellants point out that California does not punish establishments which provide the proscribed entertainment, but only requires that they not serve alcoholic beverages on their premises. Appellants vigorously argue that such regulation falls within the State’s general police power as augmented, when alcoholic beverages are involved, by the Twenty-first Amendment.

I must confess that I find this argument difficult to grasp. To some extent, it seems premised on the notion that the Twenty-first Amendment authorizes the States to regulate liquor in a fashion which would otherwise be constitutionally impermissible. But the Amendment by its terms speaks only to state control of the importation of alcohol, and its legislative history makes clear that it was intended only to permit “dry” States to control the flow of liquor across their boundaries despite potential Commerce Clause objections. See generally Seagram & Sons v. Hostetter, 384 U. S. 35 (1966); Hostetter v. Idlewild Liquor Corp., 377 U. S. 324 (1964). There is not a word in that history which indicates that Congress meant to tamper in any way with First Amendment rights. I submit that the framers of the Amendment would be astonished to discover that they had inadvertently enacted a pro tanto repealer of the rest of the Constitution. Only last Term, we held that the State's conceded power to license the distribution of intoxicating beverages did not justify use of that power in a manner that conflicted with the Equal Protection Clause. See Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 178-179 (1972). Cf. Wisconsin v. Constantineau, 400 U. S. 433 (1971); Hornsby v. Allen, 326 F. 2d 605 (CA5 1964). I am at a loss to understand why the Twenty-first Amendment should be thought to override the First Amendment but not the Fourteenth.

To be sure, state regulation of liquor is important, and it is deeply embedded in our history. See, e. g., Colonnade Catering Corp. v. United States, 397 U. S. 72; 77 (1970). But First Amendment values are important as well. Indeed, in the past they have been thought so important as to provide an independent restraint on every power of Government. “Freedom of press, freedom of speech, freedom of religion are in a preferred position.” Murdock v. Pennsylvania, 319 U. S. 105, 115 (1943). Thus, when the Government attempted to justify a limitation on freedom of association by reference to the war power, we categorically rejected the attempt. “[The] concept of ‘national defense’” we held, “cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term ‘national defense’ is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties — the freedom of association — which makes the defense of the Nation worthwhile.” United States v. Robel, 389 U. S., at 264. Cf. New York Times Co. v. United States, 403 U. S. 713, 716-717 (1971) (Black, J., concurring); Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 426 (1934). If the First Amendment limits the means by which our Government can ensure its very survival, then surely it must limit the State's power to control the sale of alcoholic beverages as well.

Of course, this analysis is relevant only to the extent that California has in fact encroached upon First Amendment rights. Appellants argue that no such encroachment has occurred, since appellees are free to continue providing any entertainment they choose without fear of criminal penalty. Appellants suggest that this case is somehow different because all that is at stake is the “privilege” of serving liquor by the drink.

It should be clear, however, that the absence of criminal sanctions is insufficient to immunize state regulation from constitutional attack. On the contrary, “this is only the beginning, not the end, of our inquiry.” Sherbert v. Verner, 374 U. S. 398, 403-404 (1963). For “[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.” Id., at 404. As we pointed out only last Term, “[f]or at least a quarter-century, this Court has made clear that even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.” Perry v. Sindermann, 408 U. S. 593, 597 (1972).

Thus, unconstitutional conditions on welfare benefits, unemployment compensation, tax exemptions, public employment, bar admissions, and mailing privileges have all been invalidated by this Court. In none of these cases were criminal penalties involved. In all of them, citizens were left free to exercise their constitutional rights so long as they were willing to give up a “gratuity” that the State had no obligation to provide. Yet in all of them, we found that the discriminatory provision of a privilege placed too great a burden on constitutional freedoms. I therefore have some difficulty in understanding why California nightclub proprietors should be singled out and informed that they alone must sacrifice their constitutional rights before gaining the “privilege” to serve liquor.

Of course, it is true that the State may in proper circumstances enact a broad regulatory scheme that incidentally restricts First Amendment rights. For example, if California prohibited the sale of alcohol altogether, I do not mean to suggest that the proprietors of theaters and bookstores would be constitutionally entitled to a special dispensation. But in that event, the classification would not be speech related and, hence, could not be rationally perceived as penalizing speech. Classifications that discriminate against the exercise of constitutional rights per se stand on an altogether different footing. They must be supported by a "compelling” governmental purpose and must be carefully examined to insure that the purpose is unrelated to mere hostility to the right being asserted. See, e. g., Shapiro v. Thompson, 394 U. S. 618, 634 (1969).

Moreover, not only is this classification speech related; it also discriminates between otherwise indistinguishable parties on the basis of the content of their speech. Thus, California nightclub owners may present live shows and movies dealing with a wide variety of topics while maintaining their licenses. But if they choose to deal with sex, they are treated quite differently. Classifications based on the content of speech have long been disfavored and must be viewed with the gravest suspicion. See, e. g., Cox v. Louisiana, 379 U. S. 536, 556-558 (1965). Whether this test is thought to derive from equal protection analysis, see Police Department of Chicago v. Mosley, 408 U. S. 92 (1972); Niemotko v. Maryland, 340 U. S. 268 (1951), or directly from the substantive constitutional provision involved, see Cox v. Louisiana, supra; Schneider v. State, 308 U. S. 147 (1939), the result is the same: any law that has "no other purpose . . . than to chill the assertion of constitutional rights by penalizing those who choose to exercise them . . . [is] patently unconstitutional.” United States v. Jackson, 390 U. S. 570, 581 (1968).

As argued above, the constitutionally permissible purposes asserted to justify these regulations are too remote to satisfy the Government’s burden when First Amendment rights are at stake. See supra, at 131-133. It may be that the Government has an interest in suppressing lewd or “indecent” speech even when it occurs in private among consenting adults. Cf. United States v. Thirty-seven Photographs, 402 U. S. 363, 376 (1971). But cf. Stanley v. Georgia, 394 U. S. 567 (1969). That interest, however, must be balanced against the overriding interest of our citizens in freedom of thought and expression. Our prior decisions on obscenity set such a balance and hold that the Government may suppress expression treating with sex only if it meets the three-pronged Roth-Memoirs test. We have said that “[t]he door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.” Roth v. United States, 354 U. S., at 488. Because I can see no reason why we should depart from that standard in this case, I must respectfully dissent.

       Appellees in their brief here suggest that the regulations may exceed the authority conferred upon the Department as a matter of state law. As the District Court recognized, however, such a claim is not cognizable in the suit brought by these appellees under 42 ü. S. C. § 1983.

       In addition to the regulations held unconstitutional by the court below, appellees originally challenged Rule 143.2 prohibiting topless waitresses, Rule 143.3 (2) requiring certain entertainers to perforin on a stage at a distance away from customers, and Rule 143.5 prohibiting any entertainment that violated local ordinances. At oral argument in that court they withdrew their objections to these rules, conceding “that topless waitresses are not within the protection of the First Amendment; that local ordinances must be independently challenged depending upon their content; and that the requirement that certain entertainers must dance on a stage is not invalid.” 326 F. Supp. 348, 350-351.

       Mr. Justice Douglas in his dissenting opinion suggests that the District Court should have declined to adjudicate the merits of appellees’ contention until the appellants had given the “generalized provisions of the rules . . . particularized meaning.” Since parties may not confer jurisdiction either upon this Court or the District Court by stipulation, the request of both parties in this case that the court below adjudicate the merits of the constitutional claim does not foreclose our inquiry into the existence of an "actual controversy” within the meaning of 28 U. S. C. § 2201 and Art. Ill, § 2, cl. 1, of the Constitution.
      By pretrial stipulation, the appellees admitted they offered performances and depictions on their licensed premises that were proscribed by the challenged rules. Appellants stipulated they would take disciplinary action against the licenses of licensees violating such rules. In similar circumstances, this Court held that where a state commission had “plainly indicated” an intent to enforce an act that would affect the rights of the United States, there was a “present and concrete” controversy within the meaning of 28 U. S. C. § 2201 and of Art. III. California Comm’n v. United States, 355 U. S. 534, 539 (1958). The District Court therefore had jurisdiction of this action.
      Whether this Court should develop a nonjurisdictional limitation on actions for declaratory judgments to invalidate statutes on their face is an issue not properly before us. Cf. Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341 (1936) (Brandéis, J., concurring). Certainly a number of our cases have permitted attacks on First Amendment grounds similar to those advanced by the appellees, see, e. g., Zwickler v. Koota, 389 U. S. 241 (1967); Keyishian v. Board of Regents, 385 U. S. 589 (1967); Baggett v. Bullitt, 377 U. S. 360 (1964), and we are not inclined to reconsider the procedural holdings of those cases in the absence of a request by a party to do so.

       Similarly, States may validly limit the maimer in which the First Amendment freedoms are exercised, by forbidding sound trucks in residential neighborhoods, Kovacs v. Cooper, 336 U. S. 77 (1949), and may enforce a nondiscriminatory requirement that those who would parade on a public thoroughfare first obtain a permit. Cox v. New Hampshire, 312 U. S. 569 (1941). Other state limitations on the “time, manner and place” of the exercise of First Amendment rights have been sustained. See, e. g., Cameron v. Johnson, 390 U. S. 611 (1968), and Cox v. Louisiana, 379 U. S. 559 (1965).

       Because of the posture of this case, we have necessarily dealt with the regulations on their face, and have found them to be valid. The admonition contained in the Court’s opinion in Seagram & Sons v. Hostetter, 384 U. S. 35, 52 (1966), is equally in point here: “Although it is possible that specific future applications of [the statute] may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise. We deal here only with the statute on its face. And we hold that, so considered, the legislation is constitutionally valid.”

      This is not to say that the Twenty-first Amendment empowers a State to act with total irrationality or invidious discrimination in controlling the distribution and dispensation of liquor within its borders. And it most assuredly is not to say that the Twenty-first Amendment necessarily overrides in its allotted area any other relevant provision of the Constitution. See Wisconsin v. Constantineau, 400 U. S. 433; Hostetter v. Idlewild Liquor Corp., 377 U. S. 324, 329-334; Dept. of Revenue v. James Beam Co., 377 U. S. 341.

       Section 2 of the Twenty-first Amendment reads as follows:
      “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

       Even in cases on direct appeal from a state court, when the decision below leaves unresolved questions of state law or procedure which bear on federal constitutional questions, we dismiss the appeal. Rescue Army v. Municipal Court, 331 U. S. 549.

       Rule 143.3 (1) provides in relevant part:
      “No licensee shall permit any person to perform acts of or acts which simulate:
      “(a) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.
      “(b) The touching, caressing or fondling on the breast, buttocks, anus or genitals.
      “(c) The displaying of the pubic hair, anus, vulva or genitals.”
      Rule 143.4 prohibits: “The showing of film, still pictures, electronic reproduction, or other visual reproductions depicting:
      “(1) Acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.
      “(2) Any person being touched, caressed or fondled on the breast, buttocks, anus or genitals.
      “(3) Scenes wherein a person displays the vulva or the.anus or the genitals.
      “(4) Scenes wherein artificial devices or inanimate objects are employed to depict, or drawings are employed to portray, any of the prohibited activities described above.”

       This is not an appropriate case for application of the abstention doctrine. Since these regulations are challenged on their face for overbreadth, no purpose would be served by awaiting a state court construction of them unless the principles announced in Younger v. Harris, 401 U. S. 37 (1971), govern. See Zwickler v. Koota, 389 U. S. 241, 248-250 (1967). Thus far, however, we have limited the applicability of Younger to cases where the plaintiff has an adequate remedy in a pending criminal prosecution. See Younger v. Harris, supra, at 43-44. Cf. Douglas v. City of Jeannette, 319 U. S. 157 (1943). But cf. Berryhill v. Gibson, 331 F. Supp. 122, 124 (MD Ala. 1971), probable jurisdiction noted, 408 U. S. 920 (1972). The California licensing provisions are, of course, civil in nature. Cf. Hearn v. Short, 327 F. Supp. 33 (SD Tex. 1971). Moreover, the Younger doctrine has been held to “have little force in the absence of a pending state proceeding.” Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 509 (1972) (emphasis added). There are at present no proceedings of any kind pending against these appellees. Finally, since the Younger doctrine rests heavily on federal deference to state administration of its own statutes, see Younger v. Harris, supra, at 44-45, it is waivable by the State. Cf. Hostetter v. Idlewild Liquor Corp., 377 U. S. 324, 329 (1964). Appellants have nowhere mentioned the Younger doctrine in their brief before this Court, and when the case was brought to the attention of the attorney for the appellants during oral argument, he expressly eschewed reliance on it. In the court below, appellants specifically asked for a federal decision on the validity of California’s regulations and stated that they did not think the court should abstain. See 326 F. Supp. 348, 351 (CD Cal. 1971).

       I am startled by the majority’s suggestion that the regulations are constitutional on their face even though “specific future applications of [the statute] may engender concrete problems of constitutional dimension.” (Quoting with approval Seagram & Sons v. Hostetter, 384 U. S. 35, 52 (1966). Ante, at 119 n. 5.) Ever since Thornhill v. Alabama, 310 U. S. 88 (1940), it has been thought that statutes which trench upon First Amendment rights are facially void even if the conduct of the party challenging them could be prohibited under a more narrowly drawn scheme. See, e. g., Baggett v. Bullitt, 377 U. S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611, 616 (1971); NAACP v. Button, 371 U. S. 415, 432-433 (1963).
      Nor is it relevant that the State here “sought to prevent [bacchanalian revelries]” rather than performances by “scantily clad ballet troupe [s].” Whatever the State “sought” to do, the fact is that these regulations cover both these activities. And it should be clear that a praiseworthy legislative motive can no more rehabilitate an unconstitutional statute than an illicit motive can invalidate a proper statute.

       Indeed, there are some indications in the legislative history that California adopted these regulations for the specific purpose of evading those standards. Thus, Captain Robert Devin of the Los Angeles Police Department testified that the Department favored adoption of the new regulations for the following reason: “While statutory law has been available to us to regulate what was formerly considered as antisocial behavior, the federal and state judicial system has, through a series of similar decisions, effectively emasculated law enforcement in its effort to contain and to control the growth of pornography and of obscenity and of behavior that is associated with this kind of performance.” See also testimony of Roy E. June, City Attorney of the City of Costa Mesa; testimony of Richard C. Hirsch, Office of Los Angeles County District Attorney. App. 117.

       I do not mean to suggest that this test need be rigidly applied in all situations. Different standards may be applicable when children are involved, see Ginsberg v. New York, 390 U. S. 629 (1968); when a consenting adult possesses putatively obscene material in his own home, see Stanley v. Georgia, 394 U. S. 557 (1969); or when the material by the nature of its presentation cannot be viewed as a whole, see Rabe v. Washington, 405 U. S. 313, 317 n. 2 (1972) (Burger, G. J., concurring). Similarly, I do not mean to foreclose the possibility that even the Roth-Memoirs test will ultimately be found insufficient to protect First Amendment interests when consenting adults view putatively obscene material in private. Cf. Redrup v. New York, 386 U. S. 767 (1967). But cf. United States v. Reidel, 402 U. S. 351 (1971). But I do think that, at very least, Roth-Memoirs sets an absolute limit on the kinds of speech that can be altogether read out of the First Amendment for purposes of consenting adults.

       Cf. Fuller, Changing Society Puts Taste to the Test, The National Observer, June 10, 1972, p. 24: “Context is the essence of esthetic judgment .... There is a world of difference between Playboy and less pretentious girly magazines on the one hand, and on the other, The Nude, a picture selection from the whole history of art, by that fine teacher and interpreter of civilization, Kenneth Clark. People may be just as naked in one or the other, the bodies inherently just as beautiful, but the context of the former is vulgar, of the latter, esthetic.
      “The same words, the same actions, that are cheap and tawdry in one book or play may contribute to the sublimity, comic universality, or tragic power of others. For a viable theory of taste, context is all.”

       Moreover, even if the O’Brien test were here applicable, it is far from clear that it has been satisfied. For example, most of the evils that the State alleges are caused by appellees’ performances are already punishable under California law. See n. 11, infra. Since the less drastic alternative of criminal prosecution is available to punish these violations, it is hard to see how “the incidental restriction on alleged First Amendment freedoms is no greater than is essential” to further the State’s interest.

       The Court pointed out that the statute “does not distinguish-between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views .... A law prohibiting destruction of Selective Service certificates no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers’ licenses, or a tax law prohibiting the destruction of books and records.” 391 U. S., at 375.

       Of course, the State need not meet the clear and present danger test if the material in question is obscene. See Roth v. United States, 354 U. S. 476 (1957). But, as argued above, the difficulty with California’s rules is that they do not conform to the Roth test and therefore regulate material that is not obscene. See supra, at 126-127.

       This case might be different if the State asserted a primary interest in stopping the very acts performed by these dancers and actors. However, I have serious doubts whether the State may constitutionally assert an interest in regulating any sexual act between consenting adults. Cf. Griswold v. Connecticut, 381 U. S. 479 (1965). Moreover, it is unnecessary to reach that question in this case since the State’s regulations are plainly not designed to stop the acts themselves, most of which are in fact legal when done in private. Rather, the State punishes the acts only when done in public as part of a dramatic presentation. Cf. United States v. O’Brien, supra, at 375. It must be, therefore, that the asserted state interest stems from the effect of the acts on the audience rather than from a desire to stop the acts themselves. It should also be emphasized that this case does not present problems of an unwilling audience or of an audience composed of minors.

       Indeed, California already has statutes controlling virtually all of the misconduct said to flow from appellees’ activities. See Calif. Penal Code § 647 (b) (Supp. 1972) (prostitution); Calif. Penal Code §§ 261, 263 (1970) (rape); Calif. Bus. & Prof. Code § 25657 (Supp. 1972) (“B-Girl” activity); Calif. Health & Safety Code §§ 11500, 11501, 11721, 11910, 11912 (1964 and Supp. 1972) (sale and use of narcotics).

       Of course, it is true that Stanley does not govern this case, since Stanley dealt only with the private possession of obscene materials in one’s own home. But in another sense, this ease is stronger than Stanley. In Stanley, we held that the State’s interest in the prevention of sex crimes did not justify laws restricting possession of certain materials, even though they were conceded to be obscene. It follows a fortiori that this interest is insufficient when the materials are not obscene and, indeed, are constitutionally protected.

       The Twenty-first Amendment, in addition to repealing the Eighteenth Amendment, provides: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

       The text of the Amendment is based on the Webb-Kenyon Act, 37 Stat. 699, which antedated prohibition. The Act was entitled “An Act Divesting intoxicating liquors of their interstate character in certain cases,” and was designed to allow “dry” States to regulate the flow of alcohol across their borders. See, e. g., McCormick & Co. v. Brown, 286 U. S. 131, 140-141 (1932); Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311, 324 (1917). The Twenty-first Amendment was intended to embed this principle permanently into the Constitution. As explained by its sponsor on the Senate floor “to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line.
      “[T]he pending proposal will give the States that guarantee. When our Government was organized and the Constitution of the United States adopted, the States surrendered control over and regulation of interstate commerce. This proposal is restoring to the States, in effect, the right to regulate commerce respecting a single commodity — namely, intoxicating liquor.” 76 Cong. Rec. 4141 (remarks of Sen. Blaine).

       See Shapiro v. Thompson, 394 U. S. 618 (1969). But cf. Wyman v. James, 400 U. S. 309 (1971).

       See Sherbert v. Verner, 374 U. S. 398 (1963).

       See Speiser v. Randall, 357 U. S. 513 (1958).

       See, e. g., Pickering v. Board of Education, 391 U. S. 563 (1968); Keyishian v. Board of Regents, 385 U. S. 589 (1967); Baggett v. Bullitt, 377 U. S. 360 (1964).

       See, e. g., Baird v. State Bar of Arizona, 401 U. S. 1 (1971); Konigsberg v. State Bar, 353 U. S. 252 (1957); Schware v. Board of Bar Examiners, 353 U. S. 232 (1957). But cf. Law Students Civil Rights Research Council v. Wadmond, 401 U. S. 154 (1971); Konigsberg v. State Bar, 366 U. S. 36 (1961).

       See, e. g., Blount v. Rizzi, 400 U. S. 410 (1971); Hannegan v. Esquire Inc., 327 U. S. 146, 156 (1946).


author:
Mr. Justice Rehnquist
      Mr. Justice Stewart,

text:
    UNION OIL CO. OF CALIFORNIA v. THE SAN JACINTO et al.
    No. 71-900.
    Argued October 17, 1972
    Decided December 5, 1972
    Rehnquist, J., delivered the opinion of the Court, in which Burgee, C. J., and White, Marshall, Blackmun, and Powell, JJ., joined. Stewart, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 147.

      Kenneth E. Roberts argued the cause and filed briefs for petitioner.

      Erskine B. Wood argued the cause and filed briefs for respondents.
   Mr. Justice Rehnquist

delivered the opinion of the Court.

While proceeding up the Columbia River, the oil tanker S. S. Santa Maria, bareboat chartered by petitioner, was struck by a barge owned by respondent Oliver J. Olson & Co. The barge was being towed by the tugboat San Ja-cinto, owned by respondent Star & Crescent Towboat Co. Both vessels were damaged. Petitioner commenced this admiralty action for damages to the Santa Maria, and respondent cross-libeled for damages to the barge. The District Court found the collision resulted solely from negligence on the part of the crew of the San Jacinto, and dismissed the cross-libel. 304 F. Supp. 519 (Ore. 1969). The Ninth Circuit affirmed the finding that the San Jacinto had been negligent, but determined that the Santa Maria was also negligent in violating the “half-distance” rule, 30 Stat. 99, 33 U. S. C. § 192. That court therefore reversed with directions that the District Court determine the amount of damage sustained by the barge and assess damages under the divided-damages rule. See The Schooner Catherine v. Dickinson, 17 How. 170 (1855). We granted certiorari, 405 U. S. 954 (1972), principally to consider petitioner’s request that we abandon the divided-damages rule. The orderly disposition of the issues presented by the petition for certiorari, however, requires that we address ourselves to the issue of liability before reaching the question of damages. Since in so doing we conclude that the Court of Appeals was wrong in holding the Santa Maria liable at all, we do not reach the issue of damages.

I

On the evening of December 24, 1967, the Santa Maria, loaded with 17,000 tons of petroleum products, was proceeding up the Columbia River toward Portland. The ship was steaming on the Oregon side of the channel, with clear visibility. At the same time, the San Jacinto was proceeding downriver, towing a 275-foot barge, fully loaded with lumber, by a 250-foot towline. Proceeding on the Washington side of the channel, it had encountered foggy weather conditions upriver. As the San Jacinto approached Cooper Point, the Santa Maria, steaming upstream, sighted the tug both visually and by radar. The two vessels were more than a mile apart and on opposite sides of the 500-foot-wide shipping channel. There was heavy fog, described as “tule fog,” around Cooper Point, but the fog was localized on the Washington side of the channel. Although there was haze and drizzle, there was no fog on the Oregon side of the channel; the visibility from the bridge of the Santa Maria upstream was between one and one-half and two miles.

As the San Jacinto entered the fog on the Washington side off Cooper Point, the Santa Maria lost visual contact with the tug and barge. The Santa Maria’s pilot did not track the San Jacinto on radar, believing that the tug would remain on the Washington side of the channel and knowing that there was ample room for a port-to-port passage. At this time, the Santa Maria was proceeding at half-speed making approximately seven knots.

The watch on the San Jacinto had not sighted the Santa Maria when the tug entered the heavy fog off Cooper Point. The tug’s captain testified that, after entering the fog, he cut speed to three or three and one-half knots, and the visibility dead ahead was approximately 50 yards. The San Jacinto’s navigators were “navigating by visual sight of the Washington coast,” and the captain estimated that the tug passed between 50 and 75 yards off Cooper Point. At that point, the crew of the San Jacinto heard one blast of a ship’s horn (later discovered to have been that of the Santa Maria), and responded with the fog signal for a tug with a barge in tow. No visual sighting of a ship was made, however. Shortly thereafter, the captain sighted range lights, which, he testified, he thought were 20 degrees off his starboard bow. To avoid what he anticipated to be a momentary collision, the captain swung the San Jacinto to port — towards the Oregon side of the channel — and executed a U-turn, hoping to run upriver and thus avoid a collision.

The San Jacinto started the U-turn while still in the heavy fog, and the execution of the turn brought the tug on a course directly across that of the Santa Maria. The Santa Maria sighted the San Jacinto emerging from the fog, at right angles to the Santa Maria, at a distance of approximately 900 feet. Full astern was immediately ordered. The San Jacinto, quickly completing the turn, headed safely upriver. Before the Santa Maria could completely stop, however, the barge in tow sideslipped across the channel, crashing into the port bow of the Santa Maria; the force of that blow drove the tanker aground.

The District Court found that the San Jacinto and the barge, and those in charge of navigation, were negligent in eight respects, including navigating at excessive speed, failing to maintain a proper lookout, and “acting hastily and without sufficient cause in pulling the tow across the channel when there was adequate clearance for the tug and barge to pass port to port.” The court found that “the collision was proximately caused by the sole fault and negligence” of the San Jacinto and the barge, and that the acts of negligence allegedly committed by the Santa Maria did not “proximately [contribute] to the collision and resulting damage.” 304 F. Supp., at 521, 522.

The Ninth Circuit partially reversed, holding that the Santa Maria was proceeding at an immoderate speed in traveling at three to seven knots “while approaching the edge of the fog bank.” That court reasoned that the San Jacinto was only 900 feet from the Santa Maria when the tug emerged from the fog bank, and the Santa Maria’s, speed was such that she could not stop within half that distance. The court, relying on The Silver Palm, 94 F. 2d 754 (CA9), cert. denied sub nom. United States v. Silver Line, Ltd., 304 U. S. 576 (1937), deemed it immaterial that the visibility up the Oregon side of the channel — the direction in which the Santa Maria was headed — was almost two miles, because in its view the “relevant distance” for calculating the proper speed under the half-distance rule was the distance between the tanker and the fog bank — to port of the Santa Maria. Finding statutory fault, and ruling that petitioner had failed to prove that that fault could not have possibly contributed to the collision, see The Pennsylvania, 19 Wall. 125 (1874), the Court of Appeals held the Santa Maria liable for half the total damages.

II

The question of the liability of the Santa Maria turns on the application of Art. 16 of the Inland Rules of Navigation, 33 U. S. C. § 192. That Rule provides in pertinent part:

“Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions.” (Emphasis added.)

Although the statutory test for determining the proper speed at which a vessel should proceed in a fog is phrased in general terms, our decisions have attached a well-recognized gloss to that phrase. This gloss on the statutory rule, variously referred to as the half-distance rule or the “rule of sight,” is that, in a fog, “a moderate speed” is that

“rate of speed as would enable [the vessel] to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through the fog.” The Nacoochee, 137 U. S. 330, 339 (1890).

See also The Colorado, 91 U. S. 692, 702 (1876); The Umbria, 166 U. S. 404, 417 (1897). As stated in The Chattahoochee, 173 U. S. 540, 548 (1899), “[t]he principal reason for such reduction of speed is that it will give [both] vessels time to avoid a collision after coming in sight of each other.” If two vessels, upon sighting each other, are proceeding at rates of speed such that each can stop before it reaches the point at which the courses of the two intersect, collision is impossible.

There can be no quarrel with the salutary purpose of this “rule of thumb.” It is premised on the notion that when a ship is traveling under foggy weather conditions in waters in which other ships might be proceeding on intersecting courses, the speed of each ship must be such as to enable her to stop within half the distance separating the ships when they first sight each other. Implicit in the rule, however, is the assumption that vessels can reasonably be expected to be traveling on intersecting courses. If, on the facts of the case, it is totally unrealistic to anticipate the possibility that a vessel will travel on a particular heading that would intersect the course of another ship, the reason for the rule is rather clearly not present.

Those cases in which this Court has upheld a finding of statutory fault because of a violation of the half-distance rule involved ships proceeding in fog on established coastal shipping lanes, The City of New York, 147 U. S. 72 (1893); The Nacoochee, supra; cf. The Colorado, supra (Lake Huron), or ships traveling near or in a harbor, The Umbria, supra; cf. The Ludvig Holberg, 157 U. S. 60 (1895) (no fault). We do not imply that because a vessel is running near fog, as opposed to running in it, the vessel is not required to proceed at “a moderate speed” in relation to the distance to the fog cover. That was, indeed, the circumstance in The Silver Palm, supra, upon which the Ninth Circuit relied. But there a naval cruiser was traveling, with clear visibility ahead but with fog banks on each side, on the busy coastal shipping lane between San Francisco and Los Angeles. On such a course it is reasonable to expect that another ship might steam out of the fog at right angles to, and on a collision course with, the first vessel. The rule of sight was applicable there precisely because of the reasonable possibility that such an event might occur.

The facts of our case were significantly different. The Santa Maria and the San Jacinto were proceeding on opposite sides of a well-defined and relatively narrow channel. The Santa Mrnia had last sighted the tug only a mile ahead, proceeding along the Washington coast. Those in charge of the navigation of the tanker cannot be faulted for not anticipating the tug’s totally unorthodox maneuver in darting across such a channel. The Victory & The Plymothian, 168 U. S. 410 (1897). The visibility in the direction in which the Santa Maria was headed was almost two miles. There is no evidence in the record suggesting that the speed of the tanker would have prevented her from coming to a complete halt within half the distance of sighting a vessel that was either proceeding on a remotely foreseeable intersecting course or else being overtaken by her. The tug emerged from a fog bank only 900 feet from the tanker on a course and for reasons that no seaman could, under the circumstances, have anticipated.

The District Court’s finding that any negligence on the part of the Santa Maria did not “proximately [contribute] to the collision” was but another way of saying that fault based on the half-distance rule must have some relationship to the dangers against which that rule was designed to protect. Here it did not. We believe that the District Court, and not the Court of Appeals, reached the correct result on the issue of liability.

Since in our view respondents alone were at fault, there is no occasion to consider how damages should be apportioned were both vessels at fault.

Reversed.

Mr. Justice Stewart,

with whom Mr. Justice Douglas and Mr. Justice Brennan join,

dissenting.

On a misty Christmas Eve the petitioner’s oil tanker— the Santa Maria — was moving upstream along the Oregon side of the channel of the Columbia River. The vessel was proceeding at half speed with forward visibility of one and a half to two miles. Both visually and by radap, the tanker’s pilot sighted the respondent tug, the San Jacinto, which was moving downstream along the Washington side of the channel more than a mile ahead. The tug, with a heavily laden barge in tow, disappeared from sight into a patch of fog. The inexperienced crew of the tug became disoriented in the fog and mistakenly thought the tanker had veered to the Washington side of the channel. To avoid what he believed would be a collision, the master of the tug executed a sharp leftward U-turn directly into the path of the oncoming tanker. While the tug successfully completed its turn, the barge swung around and smashed into the tanker, damaging her forward left side and driving her aground.

In a complaint and cross-complaint the owners of both vessels sued, each charging the other with sole blame. The District Court found that the collision was entirely the fault of the tug — in navigating at an unreasonable speed in fog, in failing to maintain a proper lookout, in failing to sound fog signals, in failing to ascertain the risk of collision and sound the danger signal, in failing to reduce speed or take any evasive action, in failing to keep the tow in control, and in turning directly into the path of the tanker. 304 F. Supp. 519. Finding that the tanker was also at fault in proceeding at a rate in excess of that which would have allowed her to stop in one-half the visibility before her, the Court of Appeals for the Ninth Circuit modified the judgment of the District Court. 451 F. 2d 1369. Though the tug’s fault was “more flagrant and shocking,” id., at 1374, the tanker was held liable for half the damages, since she was unable to prove that her fault could not possibly have contributed to the collision.

I would reaffirm the continued vitality of the “half-distance” rule and approve its application in this case. I cannot concur in the Court’s decision, which, while apparently approving the “salutary purpose” of the rule, guts its certainty by making its application turn on elusive concepts such as the reasonable possibility of collision, or the particular bearing that a vessel might be expected to take on emerging from a fog bank. In short, the Court today allows a vessel to proceed at an immoderate speed, provided that its crew does not expect a collision. I cannot agree.

The half-distance rule is a rational interpretation of the command of Art. 16 of the Inland Rules that vessels shall proceed at a “moderate speed” in fog with a “careful regard to the existing circumstances and conditions.” 33 U. S. C. § 192. The rule does not simply require a vessel to be able to stop in one-half the distance of her forward visibility, but rather “to maintain only such a rate of speed as would enable her to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through the fog.” The Nacoochee, 137 U. S. 330, 339. As one scholar phrased the rule: “the vessels must be able to stop, not within the distance of visibility, but before they collide.” J. Griffin, The American Law of Collision 295 (1949).

In this case, the crew of the Santa Maria knew that the San Jacinto had disappeared into a fog bank over a mile ahead on the Washington side of the narrow channel. The tanker nevertheless steamed ahead at half-speed as it approached the edge of the fog bank. When the Santa Maria sighted the tug emerging from the fog and cutting directly across her course, no more than 900 feet separated the vessels. The Court of Appeals found a violation of the half-distance rule in that the tanker could not stop within 450 feet. Indeed, since the tug had turned back upstream at the time of the tanker’s collision with the barge, the Santa Maria covered considerably more than half the distance that initially separated the vessels.

I agree with the Court of Appeals that the half-distance rule correctly applies to the facts of this case. Not only was the Santa Maria navigating near a fog bank in a narrow, heavily traveled shipping channel, but she actually knew that a tug was in the fog bank off the port bow; the tug might become disoriented in the fog and emerge on a collision course. And for that reason the Santa Maria should not have been proceeding at a rate in excess of the speed which would have allowed her to stop in half the distance ahead. The tug emerged from the fog and cut directly across the path of the tanker, approximately 900 feet ahead. But surely the half-distance rule does not apply only to head-on collisions. See The Silver Palm, 94 F. 2d 754. Moreover, the tanker here should not be any less at fault because the tug emerged tangentially to her course rather than on a head-on collision course. If the tug had altered her course in the fog and emerged steaming head on into the tanker rather than across her course — which would have been quite possible since the channel was only 500 feet wide at this point — the Santa Maria would still have had to stop within 450 feet. Since the tug was not closing the distance between the vessels, the tanker actually had more distance within which to stop than she would have had if the tug had followed a more orthodox collision course. The half-distance rule cannot mean that a ship can travel in the direction of a fog bank, oblivious to the possibility that another vessel might become lost there and steam out across or into the first vessel’s path.

Concepts such as “reasonable expectancy,” “anticipated possibility,” and “reasonable possibility,” do little service to the half-distance rule. “[T]he genius of the Rules for Prevention of Collision is their certainty.” Hess Shipping Corp. v. S. S. Charles Lykes, 417 F. 2d 346, 351 (Brown, J., dissenting). The half-distance rule is effective precisely because it is a measurable rule of thumb, a nautical speed limit. Speed limits would serve no useful purpose if they applied only when there was a foreseeable probability that an accident might occur.

Since I cannot say that the Court of Appeals for the Ninth Circuit incorrectly concluded that the Santa Maria had violated the half-distance rule, and that she was unable to prove that her fault could not have contributed to the collision, I would reach the question that we granted certiorari in this case to consider — the continued validity of the divided-damages rule. The Court, however, does not address that question, and I therefore refrain from expressing my views upon it.

       See The Pennsylvania, 19 Wall. 125, 136; O/Y Finlayson-Forssa A/B v. Pan Atlantic S. S. Corp., 259 F. 2d 11, 22.

       “The general consensus of opinion in this country is to the effect that a steamer is bound to use only such precautions as will enable her to stop in time to avoid a collision, after the approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law.” The Umbria, 166 U. S. 404, 417.

       The District Court appears to have assumed as much:
      “It is my view that any possible violation of Article 16 of the Inland Rules by the SS Santa Maria, or those in charge of her navigation, were technical in nature and were not a contributing cause of the collision.” 304 F. Supp. 519, 522.