author: Mr. Justice Brennan Mr. Justice Fortas,

text:
    KIRKPATRICK, SECRETARY OF STATE OF MISSOURI, et al. v. PREISLER et al.
    No. 30.
    Argued January 13,
    Decided April 7, 1969

      Thomas J. Downey, First Assistant Attorney General of Missouri, argued the cause for appellants in No. 30. With him on the briefs were Norman H. Anderson, Attorney General, pro se, and Louren B. Wood, Assistant Attorney General. David Collins argued the cause and filed a brief for appellants in No. 31.

      Irving Achtenberg argued the cause for appellees in both cases. With him on the brief was Paul W. Preisler, pro se.

      Together with No. 31, Heinkel et al. v. Preisler et al., also on appeal from the same court.

   Mr. Justice Brennan

delivered the opinion of the Court.

In Wesberry v. Sanders, 376 U. S. 1 (1964), we held that “[w]hile it may not be possible [for the States] to draw congressional districts with mathematical precision,” id., at 18, Art. I, § 2, of the Constitution requires that “as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” Id., at 7-8. We are required in these cases to elucidate the “as nearly as practicable” standard.

The Missouri congressional redistricting statute challenged in these cases resulted from that State’s second attempt at congressional redistricting since Wesberry was decided. In 1965, a three-judge District Court for the Western District of Missouri declared that the Missouri congressional districting Act then in effect was unconstitutional under Wesberry but withheld any judicial relief “until the Legislature of the State of Missouri has once more had an opportunity to deal with the problem . . . .” Preisler v. Secretary of State of Missouri, 238 F. Supp. 187, 191. Thereafter, the General Assembly of Missouri enacted a redistricting statute, but this statute too was declared unconstitutional. The District Court, however, retained jurisdiction to review any further plan that might be enacted. Preisler v. Secretary of State of Missouri, 257 F. Supp. 953 (1966), aff’d, sub nom. Kirkpatrick v. Preisler, 385 U. S. 450 (1967). In 1967, the General Assembly enacted the statute under attack here, Mo. Rev. Stat., c. 128 (Cum. Supp. 1967), and the Attorney General of Missouri moved in the District Court for a declaration sustaining the Act and an order dismissing the case.

Based on the best population data available to the legislature in 1967, the 1960 United States census figures, absolute population equality among Missouri’s 10 congressional districts would mean a population of 431,981 in each district. The districts created by the 1967 Act, however, varied from this ideal within a range of 12,260 below it to 13,542 above it. The difference between the least and most populous districts was thus 25,802. In percentage terms, the most populous district was 3.13% above the mathematical ideal, and the least populous was 2.84% below.

The District Court found that the General Assembly had not in fact relied on the census figures but instead had based its plan on less accurate data. In addition, the District Court found that the General Assembly had rejected a redistricting plan submitted to it which provided for districts with smaller population variances among them. Finally, the District Court found that the simple device of switching some counties from one district to another would have produced a plan with markedly reduced variances among districts. Based on these findings, the District Court, one judge dissenting, held that the 1967 Act did not meet the constitutional standard of equal representation for equal numbers of people “as nearly as practicable,” and that the State had failed to make any acceptable justification for the variances. 279 F. Supp. 952 (1967). We noted probable jurisdiction but stayed the District Court’s judgment pending appeal and expressly authorized the State “to conduct 1968 congressional elections under and pursuant to [the] 1967 . . . Act . . . 390 U. S. 939 (1968). We affirm.

Missouri’s primary argument is that the population variances among the districts created by the 1967 Act are so small that they should be considered de minimis and for that reason to satisfy the “as nearly as practicable” limitation and not to require independent justification. Alternatively, Missouri argues that justification for the variances was established in the evidence: it is contended that the General Assembly provided for variances out of legitimate regard for such factors as the representation of distinct interest groups, the integrity of county fines, the compactness of districts, the population trends within the State, the high proportion of military personnel, college students, and other nonvoters in some districts, and the political realities of “legislative interplay.”

I.

We reject Missouri’s argument that there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the “as nearly as practicable” standard. The whole thrust of the “as nearly as practicable” approach is inconsistent with adoption of fixed numerical standards which excuse population variances without regard to the circumstances of each particular case. The extent to which equality may practicably be achieved may differ from State to State and from district to district. Since “equal representation for equal numbers of people [is] the fundamental goal for the House of Representatives,” Wesberry v. Sanders, supra, at 18, the “as nearly as practicable” standard requires that the State make a good-faith effort to achieve precise mathematical equality. See Reynolds v. Sims, 377 U. S. 533, 577 (1964). Unless population variances among congressional districts are shown to have resulted despite such effort, the State must justify each variance, no matter how small.

There are other reasons for rejecting the de minimis approach. We can see no nonarbitrary way to pick a cutoff point at which population variances suddenly become de minimis. Moreover, to consider a certain range of variances de minimis would encourage legislators to strive for that range rather than for equality as nearly as practicable. The District Court found, for example, that at least one leading Missouri legislator deemed it proper to attempt to achieve a 2% level of variance rather than to seek population equality.

Equal representation for equal numbers of people is a principle designed to prevent debasement of voting power and diminution of access to elected representatives. Toleration of even small deviations detracts from these purposes. Therefore, the command of Art. I, § 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.

Clearly, the population variances among the Missouri congressional districts were not unavoidable. Indeed, it is not seriously contended that the Missouri Legislature came as close to equality as it might have come. The District Court found that, to the contrary, in the two reapportionment efforts of the Missouri Legislature since Wesberry “the leadership of both political parties in the Senate and the House were given nothing better to work with than a makeshift bill produced by what has been candidly recognized to be no more than ... an expedient political compromise.” 279 F. Supp., at 966. Legislative proponents of the 1967 Act frankly conceded at the District Court hearing that resort to the simple device of transferring entire political subdivisions of known population between contiguous districts would have produced districts much closer to numerical equality. The District Court found, moreover, that the Missouri Legislature relied on inaccurate data in constructing the districts, and that it rejected without consideration a plan which would have markedly reduced population variances among the districts. Finally, it is simply inconceivable that population disparities of the magnitude found in the Missouri plan were unavoidable. The New York apportionment plan of regions divided into districts of almost absolute population equality described in Wells v. Rockefeller, post, at 545-546, provides striking evidence that a state legislature which tries can achieve almost complete numerical equality among all the State’s districts. In sum, “it seems quite obvious that the State could have come much closer to providing districts of equal population than it did.” Swann v. Adams, 385 U. S. 440, 445 (1967).

We therefore turn to the question whether the record establishes any legally acceptable justification for the population variances. It was the burden of the State “to present . . . acceptable reasons for the variations among the populations of the various . . . districts . . . .” Swann v. Adams, supra, at 443-444.

II.

We agree with the District Court that Missouri has not satisfactorily justified the population variances among the districts.

Missouri contends that variances were necessary to avoid fragmenting areas with distinct economic and social interests and thereby diluting the effective representation of those interests in Congress. But to accept population variances, large or small, in order to create districts with specific interest orientations is antithetical to the basic premise of the constitutional command to provide equal representation for equal numbers of people. “[N] either history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes.” Reynolds v. Sims, supra, at 579-580. See also Davis v. Mann, 377 U. S. 678, 692 (1964).

We also reject Missouri’s argument that “[t]he reasonableness of the population differences in the congressional districts under review must ... be viewed in the context of legislative interplay. The legislative leaders all testified that the act in question was in their opinion a reasonable legislative compromise. ... It must be remembered . . . that practical political problems are inherent in the enactment of congressional reapportionment legislation.” We agree with the District Court that “the rule is one of ‘practicability’ rather than political ‘practicality.’ ” 279 F. Supp., at 989. Problems created by partisan politics cannot justify an apportionment which does not otherwise pass constitutional muster.

Similarly, we do not find legally acceptable the argument that variances are justified if they necessarily result from a State’s attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries. The State’s interest in constructing congressional districts in this manner, it is suggested, is to minimize the opportunities for partisan gerrymandering. But an argument that deviations from equality are justified in order to inhibit legislators from engaging in partisan gerrymandering is no more than a variant of the argument, already rejected, that considerations of practical politics can justify population disparities.

Missouri further contends that certain population variances resulted from the legislature’s taking account of the fact that the percentage of eligible voters among the total population differed significantly from district to district — some districts contained disproportionately large numbers of military personnel stationed at bases maintained by the Armed Forces and students in attendance at universities or colleges. There may be a question whether distribution of congressional seats except according to total population can ever be permissible under Art. I, § 2. But assuming without deciding that apportionment may be based on eligible voter population rather than total population, the Missouri plan is still unacceptable. Missouri made no attempt to ascertain the number of eligible voters in each district and to apportion accordingly. At best it made haphazard adjustments to a scheme based on total population: overpopulation in the Eighth District was explained away by the presence in that district of a military base and a university; no attempt was made to account for the presence of universities in other districts or the disproportionate numbers of newly arrived and short-term residents in the City of St. Louis. Even as to the Eighth District, there is no indication that the excess population allocated to that district corresponds to the alleged extraordinary additional numbers of noneligible voters there.

Missouri also argues that population disparities between some of its congressional districts result from the legislature’s attempt to take into account projected population shifts. We recognize that a congressional district-ing plan will usually be in effect for at least 10 years and five congressional elections. Situations may arise where substantial population shifts over such a period can be anticipated. Where these shifts can be predicted with a high degree of accuracy, States that are redistricting may properly consider them. By this we mean to open no avenue for subterfuge. Findings as to population trends must be thoroughly documented and applied throughout the State in a systematic, not an ad hoc, manner. Missouri’s attempted justification of the substantial underpopulation in the Fourth and Sixth Districts falls far short of this standard. The District Court found “no evidence . . . that the . . . General Assembly adopted any policy of population projection in devising Districts 4 and 6, or any other district, in enacting the 1967 Act.” 279 F. Supp., at 983.

Finally, Missouri claims that some of the deviations from equality were a consequence of the legislature’s attempt to ensure that each congressional district would be geographically compact. However, in Reynolds v. Sims, supra, at 580, we said, “Modern developments and improvements in transportation and communications make rather hollow, in the mid-1960’s, most claims that deviations from population-based representation can validly be based solely on geographical considerations. Arguments for allowing such deviations in order to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large that the availability of access of citizens to their representatives is impaired are today, for the most part, unconvincing.” In any event, Missouri’s claim of compactness is based solely upon the unaesthetic appearance of the map of congressional boundaries that would result from an attempt to effect some of the changes in district lines which, according to the lower court, would achieve greater equality. A State’s preference for pleasingly shaped districts can hardly justify population variances.

Affirmed.

[For dissenting opinion of Mr. Justice Harlan, see post, p. 549.]

[For dissenting opinion of Mr. Justice White, see post, p. 553.]

Mr. Justice Fortas,

concurring.

I concur in the judgment of the Court in these cases, but I cannot subscribe to the standard of near-perfection which the Court announces as obligatory upon state legislatures facing the difficult problem of reapportionment for congressional elections.

In Wesberry v. Sanders, 376 U. S. 1 (1964), this Court recognized that “it may not be possible to draw congressional districts with mathematical precision,” and it held that the Constitution requires that they be drawn so that, “as nearly as is practicable,” each representative should cast a vote on behalf of the same number of people.

The Court now not only interprets “as nearly as practicable” to mean that the State is required to “make a good-faith effort to achieve precise mathematical equality,” but it also requires that any remaining population disparities “no matter how small,” be justified. It then proceeds to reject, seriatim, every type of justification that has been — possibly, every one that could be — advanced.

I agree that the state legislatures should be required to make “a good-faith effort to achieve” a result that allocates the population or the residents of the State in roughly equal numbers to each district, based upon some orderly and objective method. In my view, the State could properly arrive at figures for current population by taking the latest census returns and making modifications to allow for population movements since the last census (which the Court seems to find acceptable). It could also, in my opinion, discount the census figures to take account of the presence of significant transient or nonresident population in particular areas (an adjustment as to which the Court indicates doubt). If the State should proceed on some appropriate population basis such as I have suggested, producing approximately equal districts, trial courts, in my judgment, would be justified in declining to disapprove the result merely because of small disparities, in the absence of evidence of gerrymandering- — the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes.

In considering whether the State has “approximated” an equal division and allocation of the population, I sympathize with the majority’s view that a de minimis rule of allowable disparities tends to demean in theory and in practice the constitutional objective because it suggests that it is not necessary even to aim at equality. On the other hand, to reject de minimis as a statement of the limits on the rule of equality should not lead us to toss aside the wise recognition of the inscrutability of fact and the imperfection of man which is implicit in the Wesberry standard: “as nearly as practicable.” This phrase does not refer merely to arithmetical possibilities. Arithmetically, it is possible to achieve division of a State into districts of precisely equal size, as measured by the decennial census or any other population base. To carry out this theoretical possibility, however, a legislature might have to ignore the boundaries of common sense, running the congressional district fine down the middle of the corridor of an apartment house or even dividing the residents of a single-family house between two districts. The majority opinion does not suggest so extreme a practical application of its teaching, and I mention it only because the example may dramatize the fallacy of inflexible insistence upon mathematical exactness, with no tolerance for reality.

Whatever might be the merits of insistence on absolute equality if it could be attained, the majority’s pursuit of precision is a search for a will-o’-the-wisp. The fact is that any solution to the apportionment and districting problem is at best an approximation because it is based upon figures which are always to some degree obsolete. No purpose is served by an insistence on precision which is unattainable because of the inherent imprecisions in the population data on which districting must be based. The base to which Missouri’s legislature should have adhered precisely, according to the majority, is the 1960 decennial census. The legislature’s plan here under review was enacted in 1967. Assuming perfect precision for the 1960 census when taken, by 1967, because of the movement of population within the State as well as in-and-out migration, substantial disparities had arisen between the real distribution of population in the State and that reflected in the 1960 census base here so zealously protected by the Court.

Nothing that I have said should be taken as indicating that I do not believe that the Wesberry standard requires a high degree of correspondence between the demonstrated population or residence figures and the district divisions. Nor would I fix, at least at this relatively early stage of the reapportionment effort, a percentage figure for permissible variation.

In the present cases, however, I agree that the judgment of the District Court should be affirmed. The history of this reapportionment and of the legislature’s failure to comply with the plain and patient directions of the three-judge District Court and the failure of the legislature to use either accurate 1960 census figures or other systematically obtained figures for all the districts— these factors strongly support the District Court’s refusal to accept the Missouri plan. It is true that on the average, there was only a 1.6% variation from what the majority quaintly calls the “ideal” (meaning the 1960 census figures) and in only three of the 10 districts was there a variation of 2% or more, and it is also true that there is no finding of gerrymandering. But regardless of the possibility that variances within this range might in some situations be considered tolerable within Wes-berry’s standard, I agree that we should sustain the District Court’s rejection of the plan in light of the history of the cases and the record of the plan’s preparation.

       The redistricting effected by the 1967 Act, based on a population of 4,319,813 according to the 1960 census, is as follows:

        % Variation

        District No. Population. From, Ideal.

      One 439,746 + 1.80
      Two 436,448 + 1.03
      Three 436,099 + 0.95
      Four 419,721 - 2.84
      Five 431,178 - 0.19
      Six 422,238 - 2.26
      Seven 436,769 + 1.11
      Eight 445,523 + 3.13
      Nine 428,223 - 0.87
      Ten 423,868 - 1.88
      Ideal population per district. 431,981
      Average variation from ideal. 1.6%
      Ratio of largest to smallest district. 1.06 to 1
      Number of districts within 1.88% of ideal. 7
      Population difference between largest and smallest districts.. 25,802

       Contrary to appellants’ assertion, we have not sustained the constitutionality of any congressional districting plan with population variances of the magnitude found in the Missouri plan. In Connor v. Johnson, 386 U. S. 483 (1967), the only issue presented to this Court was whether the districting plan involved racial gerrymandering. Alton v. Tawes, 384 U. S. 315 (1966), and Kirk v. Gong, 389 U. S. 574 (1968), involved situations where the lower courts themselves had reapportioned the districts on an emergency basis, and our affirmances were based on agreement with the use of the plans in that circumstance, and not on any view that the plans in question achieved equality as nearly as practicable.

       Brief for Appellants 37-38.

       It is dubious in any event that the temptation to gerrymander would be much inhibited, since the legislature would still be free to choose which of several subdivisions, all with their own political complexion, to include in a particular congressional district. Besides, opportunities for gerrymandering are greatest when there is freedom to construct unequally populated districts. “[T]he artistry of the political cartographer is put to its highest test when he must work with constituencies of equal population. At such times, his skills can be compared to those of a surgeon, for both work under fixed and arduous rules. However, if the mapmaker is free to allocate varying populations to different districts, then the butcher's cleaver replaces the scalpel; and the results reflect sharply the difference in the method of operation.” A. Hacker, Congressional Districting 59 (1964 rev. ed.).

       I would find it constitutionally entirely acceptable for a State to base its apportionment on numbers of residents, rather than total population, in each district at the time the districts are established. This would permit adjustments to take account, for example, of distortions resulting from large numbers of nonresidents at military installations or colleges in an area.

       In Avery v. Midland County, 390 U. S. 474, 495 (1968), I argued in a dissenting opinion that consideration of disparate local interests might be appropriate with respect to defining certain types of local government units exercising limited governmental powers. I noted there, however, that the same factors could not justify departing from the one man, one vote theory in state legislatures— or, I might now add, congressional districts — because of the general and basic nature of the function performed.

       The basic enumeration error in the census — that is the variation which would be observed between successive enumerations of the same area — is very low. Second surveys of selected areas, conducted by specially trained enumerators, produced counts varying by only about 1% for the whole population from the counts of the regular enumerators. For particular groups in the population, the variance was significantly larger. See U. S. Bureau of the Census, Evaluation and Research Program of the U. S. Censuses of Population and Housing, 1960, “Accuracy of Data on Population Characteristics as Measured by Re-interviews,” Ser. ER-60, No. 4 (1964), Table 24, p. 22.
      Far more significant than variations between successive enumerations are errors — virtually all undercountings — which are produced by the inherent limitations of the enumerating system. A Census Bureau estimate indicates that the 1960 census counted only 96.9% of the whole population, 3.1% of the people not being found and counted by the enumerators. Undercounting was not evenly distributed over the whole population. Instead, members of certain groups, notably young adult Negroes, were far more likely to be missed by the enumerators. For nonwhites in all age groups the census was estimated to understate the actual population by 9.5%. For young adult Negro males, undercounting reached nearly 20% for some five-year age groups. See generally, Siegel, Completeness of Coverage of the Nonwhite Population in the 1960 Census and Current Estimates, and Some Implications, Report, Conference on Social Statistics and the City (Washington, D. C., June 22-23, 1967) 13 (Heer ed., 1968). Because the heavily undercounted groups are not evenly distributed over the country, the differential rates of undercounting produce divergences between the actual relative populations of particular areas and those indicated by the census.

       The Census Bureau has estimated that of Missouri’s 114 counties, 50 lost population between 1960 and 1966, while 64 gained. The independent city of St. Louis lost 57,900, or 7.7%; St. Louis County gained 146,000 or 20.8%. Outside St. Louis City and County, the absolute change ranged from a 22,100 increase in St. Charles County to a 7,100 decrease in Dunklin County. The percentage change ranged from a 41.7% increase in St. Charles County to a 21.4% decrease in Holt County. Estimates of the Population of Counties: July 1, 1966 (Report No. 3), Current Population Reports, Population Estimates, Ser. P-25, No. 407 (Bureau of the Census, October 10, 1968) 11-13.

       Cf. Reynolds v. Sims, 377 U. S. 533, 578 (1964):
      “For the present, we deem it expedient not to attempt to spell out any precise constitutional tests. What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the ease. Developing a body of doctrine on a case-by-case basis appears to us to provide the most satisfactory means of arriving at detailed constitutional requirements in the area of state legislative apportionment.”


source: Caselaw Access Project

author:
Mr. Justice Brennan Mr. Justice Fortas, Mr. Justice Harlan,
      Mr. Justice White,

license: Public Domain

text:
    WELLS v. ROCKEFELLER, GOVERNOR OF NEW YORK, et al.
    No. 238.
    Argued January 13, 1969.
    Decided April 7, 1969.

      Robert B. McKay argued the cause and filed a brief for appellant.

      George D. Zuckerman, Assistant Attorney General of New York, argued the cause for appellees. With him on the brief were Louis J. Lefkowitz, Attorney General, pro se, and Samuel A. Hirshowitz, First Assistant Attorney General.
   Mr. Justice Brennan

delivered the opinion of the Court.

This case was argued with Kirkpatrick v. Preisler, ante, р. 526, which affirmed the judgment of a three-judge District Court declaring invalid Missouri’s 1967 congressional districting statute. Before us here is a judgment of a three-judge District Court for the Southern District of New York which sustained the validity of New York’s 1968 congressional districting statute, N. Y. Laws 1968, с. 8. 281 F. Supp. 821 (1968). In 1967 that court had struck down an earlier districting statute apportioning New York’s 41 congressional seats and had retained jurisdiction of the case pending action by the New York Legislature to redress the plan’s deficiencies. The court recognized that a thorough revision of district lines might not be possible in time for the upcoming 1968 congressional election but concluded nevertheless that “[t]here are enough changes which can be superimposed on the present districts to cure the most flagrant inequalities.” 273 F. Supp. 984, 992, aff’d, 389 U. S. 421 (1967).

On February 28, 1968, a month and a half after the New York Legislature reconvened, the districting statute presently under attack was enacted. After a hearing, the three-judge court, on March 20, 1968, sustained the statute, stating that the districting plan afforded New York voters “an opportunity to vote in the 1968 and 1970 elections on a basis of population equality within reasonably comparable districts.” 281 F. Supp., at 826. We noted probable jurisdiction. 393 U. S. 819 (1968). We reverse insofar as the judgment of the District Court sustains the plan for use in the 1970 congressional election.

Appellant levels two constitutional attacks against the statute: (1) that the statute violates the equal-population principle of Wesberry v. Sanders, 376 U. S. 1 (1964), and (2) that the statute represents a systematic and intentional partisan gerrymander violating Art. I, § 2, of the Constitution and the Fourteenth Amendment. We do not reach, and intimate no view upon the merits of, the attack upon the statute as a constitutionally impermissible gerrymander. We hold that reversal of the District Court’s judgment is compelled by our decision today in Kirkpatrick v. Preisler, supra, which elucidates the command of Wesberry that congressional districting meet the standard of equal representation for equal numbers of people as nearly as is practicable.

The District Court correctly held in its 1967 opinion that “there is a burden on the proponent of any dis-tricting plan to justify deviations from equality.” 273 F. Supp., at 987. The District Court took no testimony on the question of justification at the hearing held to consider the 1968 statute. Recognizing that the statute, which was enacted with virtually no debate on its merits in either house of the New York Legislature, was the work of a Joint Legislative Committee, the court’s 1968 opinion refers to the Report of the Joint Committee as the source of the justifications relied upon as sufficient to sustain the population disparities created by the plan. 281 F. Supp., at 823-824. We have been referred to the same source.

The Report recites that the Committee “gave priority to the population totals in the several districts” as they appeared in the 1960 decennial census and that “very limited” consideration was given to population shifts within the State since 1960. The Report recites further that “[o]ther considerations were the geographical conformation of the area to be districted, the maintenance of county integrity, the facility by which the various Boards of Elections can ‘tool up’ for the forthcoming [1968] primary election, equality of population within the region, and equality of population throughout the state.” Interim Report of the Joint Legislative Committee on Reapportionment of N. Y. State Legislature (1968).

The heart of the scheme, however, lay in the decision to treat seven sections of the State as homogeneous regions and to divide each region into congressional districts of virtually identical population. Thirty-one of New York’s 41 congressional districts were constructed on that principle. The remaining 10 districts were composed of groupings of whole counties. A chart showing the population of each district under the 1968 statute appears in the Appendix to this opinion. The seven regions are: (a) Suffolk and Nassau Counties on Long Island with five districts having an average population of 393,391 and a maximum deviation from that average of 208; (b) Queens County with four districts having an average population of 434,672 and a maximum deviation from that average of 120; (c) Kings County plus a district made up of part of Kings and part of Queens, and a district made up of Richmond County and part of Kings, with seven districts having an average population of 417,171 and a maximum deviation from that average of 307; (d) New York and Bronx Counties with eight districts having an average population of 390,415 and a maximum deviation from that average of 496; (e) Westchester and Putnam Counties with two districts having an average population of 420,307 and a maximum deviation from that average of 161; (f) Wayne plus part of Monroe and the remainder of Monroe plus four other counties with two districts having an average population of 410,688 and a maximum deviation from that average of 256; and (g) Erie and Niagara Counties with three districts having an average population of 435,652 and a maximum deviation from that average of 228. The 10 remaining “North country” districts were composed of groupings of whole counties.

It is clear that our decision in Kirkpatrick v. Preisler, supra, compels the conclusion that this scheme is unconstitutional. We there held, at 531, that “the command of Art. I, § 2, that States create congressional districts which provide equal representation for equal numbers of people permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.” The general command, of course, is to equalize population in all the districts of the State and is not satisfied by equalizing population only within defined sub-states. New York could not and does not claim that the legislature made a good-faith effort to achieve precise mathematical equality among its 41 congressional districts. Rather, New York tries to justify its scheme of constructing equal districts only within each of seven sub-states as a means to keep regions with distinct interests intact. But we made clear in Kirkpatrick that “to accept population variances, large or small, in order to create districts with specific interest orientations is antithetical to the basic premise of the constitutional command to provide equal representation for equal numbers of people.” To accept a scheme such as New York's would permit groups of districts with defined interest orientations to be overrepresented at the expense of districts with different interest orientations. Equality of population among districts in a sub-state is not a justification for inequality among all the districts in the State.

Nor are the variations in the “North country” districts justified by the fact that these districts are constructed of entire counties. Kirkpatrick v. Preisler, supra.

We appreciate that the decision of the District Court did not rest entirely on an appraisal of the merits of the New York plan. As noted earlier, when the three-judge District Court in 1967 held the then-existing districting plan unconstitutional, it recognized that the imminence of the 1968 election made redistricting an unrealistic possibility and therefore said only that “[tjhere are enough changes which can be superimposed on the present districts to cure the most flagrant inequalities.” 273 F. Supp., at 992. On February 26, 1968, the New York Legislature enacted the plan before us. On March 20, 1968, the District Court approved the plan for both the 1968 and 1970 congressional elections. Since the 1968 primary election was only three months away on March 20, we cannot say that there was error in permitting the 1968 election to proceed under the plan despite its constitutional infirmities. See Kilgarlin v. Hill, 386 U. S. 120, 121 (1967); Martin v. Bush, 376 U. S. 222, 223 (1964); Kirkpatrick v. Preisler, 390 U. S. 939 (1968). But ample time remains to promulgate a plan meeting constitutional standards before the election machinery must be set in motion for the 1970 election. We therefore reverse the judgment of the District Court insofar as it approved the plan for use in the 1970 election and remand the case for the entry of a new judgment consistent with this opinion.

It is so ordered.

APPENDIX TO OPINION OF THE COURT.

Population of New York’s Congressional Districts Under 1968 Plan.

C.D. Dev. % Description.
1 393,585 - 3.845 Part of Suffolk.
2 393,465 — 3.874 Part of Suffolk, Part of Nassau.
3 393,434 - 3.882 Part of Nassau.
4 393,183 — 3.943 Part of Nassau.
5 393,288 — 3.918 Part of Nassau.
6 434,615 + 6.178 Part of Queens.
7 434,750 + 6.212 Part of Queens.
8 434.552 + 6.163 Part of Queens.
9 434,770 + 6.217 Part of Queens.
10 417.122 + 1.905 Part of Queens, Part of Kings.
11 417,090 + 1.897 Part of Kings.
12 417,298 + 1.948 Part of Kings.
13 417,040 + 1.885 Part of Kings.
14 417,080 + 1.895 Part of Kings.
15 417,090 + 1.898 Part of Kings.
16 417,478 + 1.992 Richmond, Part of Kings.
17 390,742 — 4.540 Part of New York.
18 390,861 — 4.511 Part of New York.
19 390,023 — 4.715 Part of New York.
20 390,363 - 4.632 Part of New York.
21 390.552 — 4.586 Part of New York, Part of Bronx.
22 390,492 — 4.601 Part of Bronx.
23 390,228 — 4.665 Part of Bronx.
24 390,057 — 4.707 Part of Bronx.
25 420,146 + 2.644 Putnam, Part of Westchester.
26 420,467 + 2.722 Part of Westchester.
27 409,349 Rockland, Orange, Sullivan, Delaware.
28 396.122 — 3.225 Dutchess, Ulster, Columbia, Greene, Schoharie.
29 425,822 + 4.031 Albany, Schenectady.
30 415,030 + 1.394 Rensselaer, Saratoga, Washington, Warren, Fulton, Hamilton, Essex.
31 Clinton, St. Lawrence, Jefferson, Lewis, Franklin, Oswego. 425,905 + 4.051
32 385,406 — 5.843 Oneida, Madison, Herkimer.
33 415,333 + 1.468 Chemung, Broome, Tioga, Tompkins.
34 423,028 + 3.348 Onondaga.
35 386,148 — 5.662 Ontario, Yates, Seneca, Cayuga, Cortland, Chenango, Otsego, M’gomery.
410,943 + 0.396 Part of Monroe, Wayne. CO CO
410,432 + 0.271 Part of Monroe, Orleans, Genesee, Wyoming, Livingston. CO
Chautauqua, Cattaraugus, Allegany, Steuben, Schuyler. 382,277 - 6.608 00 OO
435,393 + 6.369 Part of Erie.
435,684 + 6.440 Part of Erie, Niagara.
435,880 + 6.488 Part of Erie.
State Mean. 409,324
Largest District (41st C. D.). 435,880
Smallest District (38th C. D.). 382,277
Citizen Population Variance (largest district population divided by the smallest district population). 1.139 to 1
Maximum Deviation above State Mean. 6.488%
Maximum Deviation below State Mean. 6.608%

Mr. Justice Fortas,

concurring.

I concur in the judgment of the Court and in its opinion except to the extent that the opinion relies upon the Court’s opinion in the Missouri redistricting cases, Kirkpatrick v. Preisler, ante, p. 526, which I have not joined for the reasons stated in my concurring opinion in those cases.

New York does not attempt to defend its plan as a good-faith effort to achieve districts of approximate equality. It argues that it devised a plan based upon the grouping of districts into regions. I agree with the majority that, for purposes of the congressional district-ing here involved, the State may not substantially or grossly disregard population or residence figures in order to recognize regional groupings within the State. See my dissent in Avery v. Midland County, 390 U. S. 474, 495 (1968).

Mr. Justice Harlan,

with whom Mr. Justice Stewart joins,

dissenting.

Whatever room remained under this Court’s prior decisions for the free play of the political process in matters of reapportionment is now all but eliminated by today’s Draconian judgments. Marching to the nonexistent “command of Art. I, § 2” of the Constitution, the Court now transforms a political slogan into a constitutional absolute. Strait indeed is the path of the righteous legislator. Slide rule in hand, he must avoid all thought of county lines, local traditions, politics, history, and economics, so as to achieve the magic formula: one man, one vote.

As my Brothers White and Fortas demonstrate, insistence on mathematical perfection does not make sense even on its own terms. Census figures themselves are inexact; our mobile population rapidly renders them obsolete; large groups of ineligible voters are unevenly distributed throughout the State. Nevertheless, the Court refuses to permit any room for legislative common sense to compensate for Census Bureau inadequacies. If no “scientific” data are available to justify a divergence from census figures, the Court holds that nothing can be done — “we mean to open no avenue for subterfuge.” Kirkpatrick v. Preisler, ante, at 535.

This all-pervasive distrust of the legislative process is completely alien to established notions of judicial review. See Butler v. Pennsylvania, 10 How. 402 (1851); Davis v. Department of Labor, 317 U. S. 249 (1942); Flemming v. Nestor, 363 U. S. 603 (1960). Nor does it have precedent in the prior reapportionment decisions themselves. “Reynolds v. Sims . . . recognized that mathematical exactness is not required in state apportionment plans. De minimis deviations are unavoidable . . . .” Swann v. Adams, 385 U. S. 440, 444 (1967); see also Wesberry v. Sanders, 376 U. S. 1, 18 (1964).

Even more important, the Court’s exclusive concentration upon arithmetic blinds it to the realities of the political process, as the Rockefeller case makes so clear. The fact of the matter is that the rule of absolute equality is perfectly compatible with “gerrymandering” of the worst sort. A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues. The legislature must do more than satisfy one man, one vote; it must create a structure which will in fact as well as theory be responsive to the sentiments of the community. On the record before us, however, there is absolutely no indication that the New York Legislature can satisfy this Court’s demand for absolute equality and yet create a structure which will permit New York’s multitude of political groups to have a fair chance at having their voices heard in Congress.

Even the appellant himself does not suggest that it is possible to create a proper apportionment plan which is at the same time consistent with the demands of perfect mathematical equality. The plan he advances contemplates a maximum deviation of 4.7% from the state average, which represents an improvement of only 1.9 percentage points on the State’s 6.6% deviation. Moreover, under the State’s plan, a majority of the congressional delegation can represent no less than 49.3% of the population. The appellant’s scheme “improves” this figure by 0.5%, increasing the number to 49.8%. See Appellant’s Appendix D. Perfection, however, is still 0.2% away.

Although the appellant’s plan offers such marginal benefits of voting egalitarianism, and although the record contains no suggestion of any other plan which even arguably permits the coherent expression of the popular will, the Court rejects the legislature’s considered proposal simply because it seeks to remain true to traditional county and regional lines. In doing so, the majority ignores the salutary warning to be found in Reynolds v. Sims, 377 U. S. 533, 578-579 (1964): “Indiscriminate dis-tricting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering.” Yet, today the Court condemns the legislature’s approach because it “permit[s] groups of districts with defined interest orientations to be overrepresented at the expense of districts with different interest orientations.” Ante, at 546. Of course, all districting decisions inevitably involve choices between different interest groups. But as Reynolds recognized, legislatures prefer to follow traditional county and regional lines so that the demands of blatant partisanship will be tempered by the constraints of history and tradition. If the Court believes it has struck a blow today for fully responsive representative democracy, it is sorely mistaken. Even more than in the past, district lines are likely to be drawn to maximize the political advantage of the party temporarily dominant in public affairs.

We do not deal here with the hopelessly malapportioned legislature unwilling to set its own house in order. Rather, the question before us is whether the Constitution requires that mathematics be a substitute for common sense in the art of statecraft. As I do not think that the apportionment plans submitted by the States of New York and Missouri can properly be regarded as offensive to the requirement of equality imposed in Wesberry — a case whose constitutional reasoning I still find it impossible to swallow, but by whose dictate I consider myself bound — I dissent.

I would reverse the judgments of the District Court in the Missouri cases and affirm the decision of the District Court in the New York case.

Mr. Justice White,

dissenting.

I have consistently joined the Court’s opinions which establish as one of the ground rules for legislative dis-tricting that single member districts should be substantially equal in population. I would not now dissent if the Court’s present judgments represented a measurable contribution to the ends which I had thought the Court was pursuing in this area, or even if I thought the opinions not very useful but not harmful either. With all due respect, however, I am firmly convinced that the Court’s new rulings are unduly rigid and unwarranted applications of the Equal Protection Clause which will unnecessarily involve the courts in the abrasive task of drawing district lines.

Accepting for constitutional purposes that a State may assign the task of apportioning its legislature or congressional delegation to the legislature itself, I would not quibble with the legislative judgment if variations between districts were acceptably small. And I would be willing to establish a population variation figure which if not exceeded would normally not call for judicial intervention. As a rule of thumb, a variation between the largest and the smallest district of no more than 10% to 15% would satisfy me, absent quite unusual circumstances not present in any of these cases. At the very least, at this trivial level, I would be willing to view state explanations of the variance with a more tolerant eye.

This would be far more reasonable than the Court’s demand for an absolute but illusory equality or for an apportionment plan which approaches this goal so nearly that no other plan can be suggested which would come nearer. As Mr. Justice Fortas demonstrates, the 1960 census figures were far from accurate when they were compiled by professional enumerators and statisticians bent on precision, in 1960. Massive growth and shifts in population since 1960 made the 1960 figures even more inaccurate by 1967. That is why a new census is taken every 10 years. When the Court finds a 3% variation from substantially inexact figures constitutionally impermissible it is losing perspective and sticking at a trifle.

It also seems arbitrary for the majority to discard the suggestion of Reynolds v. Sims, 377 U. S. 533 (1964), that if a legislature seeks an apportionment plan which respects the boundaries of political subdivisions, some variations from absolute equality would be constitutionally permissible. Of course, Reynolds involved state legislative apportionment and took pains to say that there may be more leeway in that context. But the Court invokes Reynolds today and in no way distinguishes federal from state districting.

Reynolds noted that “[indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering.” 377 U. S., at 578-579. The Court nevertheless now rules that regard for these boundaries is no justification for districts which vary no more than 3% from the norm where another plan which may have no regard for district lines reduces the variation to an even smaller figure. I have similar objections to the Court’s rejection of geographical compactness as an acceptable justification for minor variations among congressional districts. This rejection of the virtues of compactness will not be lost on those who would use congressional and legislative districting to bury their political opposition.

In reality, of course, districting is itself a gerrymandering in the sense that it represents a complex blend of political, economic, regional, and historical considerations. In terms of the gerrymander, the situation will not be much different if equality means what it literally says — a zero variation — rather than only “substantial” equality which would countenance some variations among legislative districts. Either standard will prevent a minority of the population or a minority party from consistently controlling the state legislature or a congressional delegation, and both are powerful forces toward equalizing voter influence on legislative performance. In terms of effective representation for all voters there are only minuscule differences between the two standards. But neither rule can alone prevent deliberate partisan gerrymandering if that is considered an evil which the Fourteenth Amendment should attempt to proscribe.

Today’s decisions on the one hand require precise adherence to admittedly inexact census figures, and on the other downgrade a restraint on a far greater potential threat to equality of representation, the gerrymander. Legislatures intent on minimizing the representation of selected political or racial groups are invited to ignore political boundaries and compact districts so long as they adhere to population equality among districts using standards which we know and they know are sometimes quite incorrect. I see little merit in such a confusion of priorities.

Moreover, today’s decisions will lead to an unnecessary intrusion of the judiciary into legislative business. It would be one thing if absolute equality were possible. But, admittedly, it is not. The Court may be groping for a clean-cut, per se rule which will minimize confrontations between courts and legislatures while also satisfying the Fourteenth Amendment. If so, the Court is wide of the mark. Today’s results simply shift the area of dispute a few percentage points down the scale; the courts will now be engaged in quibbling disputes over such questions as whether a plan with a 1% variation is “better” than one with a larger variation, say 1.1% or even 2%. If county and municipal boundaries are to be ignored, a computer can produce countless plans for absolute population equality, one differing very little from another, but each having its own very different political ramifications. Ultimately, the courts may be asked to decide whether some families in an apartment house should vote in one district and some in another, if that would come closer to the standard of apparent equality. Using the spacious language of the Equal Protection Clause to inject the courts into these minor squabbles is an unacceptable pre-emption of the legislative function. Not only will the Court’s new rule necessarily precipitate a new round of congressional and legislative districting, but also I fear that in the long run the courts, rather than the legislatures or nonpartisan commissions, will be making most of the districting decisions in the several States. Since even at best, with compact and equal districts, the final boundary lines unavoidably have significant political repercussions, the courts should not draw district lines themselves unnecessarily. I therefore dissent.

      [This opinion applies also to No. 30, Kirkpatrick v. Preisler, ante, p. 526.]

       See ante, at 546; Kirkpatrick v. Preisler, ante, at 531. I have discussed in my dissenting opinion in Wesberry v. Sanders, 376 U. S. 1, 20 (1964), the extraordinary historical leap involved in reading the straightforward constitutional provision that “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ...” as a command for equal districts.

       While Wesberry cautions that “it may not be possible to draw congressional districts with mathematical precision,” 376 U. S., at 18, it did not attempt to delineate the extent to which the States may properly deviate from the “ideal.”

      [This opinion applies also to No. 30, Kirkpatrick v. Preisler, ante, p. 526.]


author: Mr. Justice Marshall Mr. Justice Black, Mr. Justice Stewart,

text:
    STANLEY v. GEORGIA.
    No. 293.
    Argued January 14-15, 1969.
    Decided April 7, 1969.

      Wesley R. Asinof argued the cause and filed a brief for appellant.

      J. Robert Sparks argued the cause for appellee. With him on the brief was Lewis R. Slaton.

   Mr. Justice Marshall

delivered the opinion of the Court.

An investigation of appellant’s alleged bookmaking activities led to the issuance of a search warrant for appellant’s home. Under authority of this warrant, federal and state agents secured entrance. They found very little evidence of bookmaking activity, but while looking through a desk drawer in an upstairs bedroom, one of the federal agents, accompanied by a state officer, found three reels of eight-millimeter film. Using a projector and screen found in an upstairs living room, they viewed the films. The state officer concluded that they were obscene and seized them. Since a further examination of the bedroom indicated that appellant occupied it, he was charged with possession of obscene matter and placed under arrest. He was later indicted for “knowingly hav[ing] possession of . . . obscene matter” in violation of Georgia law. Appellant was tried before a jury and convicted. The Supreme Court of Georgia affirmed. Stanley v. State, 224 Ga. 259, 161 S. E. 2d 309 (1968). We noted probable jurisdiction of an appeal brought under 28 U. S. C. § 1257 (2). 393 U. S. 819 (1968).

Appellant raises several challenges to the validity of his conviction. We find it necessary to consider only one. Appellant argues here, and argued below, that the Georgia obscenity statute, insofar as it punishes mere private possession of obscene matter, violates the First Amendment, as made applicable to the States by the Fourteenth Amendment. For reasons set forth below, we agree that the mere private possession of obscene matter cannot constitutionally be made a crime.

The court below saw no valid constitutional objection to the Georgia statute, even though it extends further than the typical statute forbidding commercial sales of obscene material. It held that “[i]t is not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was 'with intent to sell, expose or circulate the same.’ ” Stanley v. State, supra, at 261, 161 S. E. 2d, at 311. The State and appellant both agree that the question here before us is whether “a statute imposing criminal sanctions upon the mere [knowing] possession of obscene matter” is constitutional. In this context, Georgia concedes that the present case appears to be one of “first impression ... on this exact point,” but contends that since “obscenity is not within the area of constitutionally protected speech or press,” Roth v. United States, 354 U. S. 476, 485 (1957), the States are free, subject to the limits of other provisions of the Constitution, see, e. g., Ginsberg v. New York, 390 U. S. 629, 637-645 (1968), to deal with it any way deemed necessary, just as they may deal with possession of other things thought to be detrimental to the welfare of their citizens. If the State can protect the body of a citizen, may it not, argues Georgia, protect his mind?

It is true that Roth does declare, seemingly without qualification, that obscenity is not protected by the First Amendment. That statement has been repeated in various forms in subsequent cases. See, e. g., Smith v. California, 361 U. S. 147, 152 (1959); Jacobellis v. Ohio, 378 U. S. 184, 186-187 (1964) (opinion of Brennan, J.) ; Ginsberg v. New York, supra, at 635. However, neither Roth nor any subsequent decision of this Court dealt with the precise problem involved in the present case. Roth was convicted of mailing obscene circulars and advertising, and an obscene book, in violation of a federal obscenity statute. The defendant in a companion case, Alberts v. California, 354 U. S. 476 (1957), was convicted of “lewdly keeping for sale obscene and indecent books, and [of] writing, composing and publishing an obscene advertisement of them . . . .” Id., at 481. None of the statements cited by the Court in Both for the proposition that “this Court has always assumed that obscenity is not protected by the freedoms of speech and press” were made in the context of a statute punishing mere private possession of obscene material; the eases cited deal for the most part with use of the mails to distribute objectionable material or with some form of public distribution or dissemination. Moreover, none of this Court’s decisions subsequent to Roth involved prosecution for private possession of obscene materials. Those cases dealt with the power of the State and Federal Governments to prohibit or regulate certain public actions taken or intended to be taken with respect to obscene matter. Indeed, with one exception, we have been unable to discover any case in which the issue in the present case has been fully considered.

In this context, we do not believe that this case can be decided simply by citing Roth. Roth and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections. Neither Roth nor any other decision of this Court reaches that far. As the Court said in Roth itself, “[c] easeless vigilance is the watchword to prevent . . . erosion [of First Amendment rights] by Congress or by the States. The 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.” 354 U. S., at 488. Roth and the cases following it discerned such an “important interest” in the regulation of commercial distribution of obscene material. That holding cannot foreclose an examination of the constitutional implications of a statute forbidding mere private possession of such material.

It is now well established that the Constitution protects the right to receive information and ideas. “This freedom [of speech and press] . . . necessarily protects the right to receive . . . Martin v. City of Struthers, 319 U. S. 141, 143 (1943); see Griswold v. Connecticut, 381 U. S. 479, 482 (1965); Lamont v. Postmaster General, 381 U. S. 301, 307-308 (1965) (Brennan, J., concurring) ; cf. Pierce v. Society of Sisters, 268 U. S. 510 (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U. S. 507, 510 (1948), is fundamental to our free society. Moreover, in the context of this case — a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own home — that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man.” Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).

See Griswold v. Connecticut, supra; cf. NAACP v. Alabama, 357 U. S. 449, 462 (1958).

These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.

And yet, in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual’s mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person’s thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment. As the Court said in Kingsley International Pictures Corp. v. Regents, 360 U. S. 684, 688-689 (1959), “[t]his argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority.... And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Cf. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952). Nor is it relevant that obscene materials in general, or the particular films before the Court, are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all. See Winters v. New York, supra, at 510. Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.

Perhaps recognizing this, Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion. But more important, if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that “[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law . . . Whitney v. California, 274 U. S. 357, 378 (1927) (Brandeis, J., concurring). See Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 938 (1963). 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.

It is true that in Roth this Court rejected the necessity of proving that exposure to' obscene material would create a clear and present danger of antisocial conduct or would probably induce its recipients to such conduct. 354 U. S., at 486-487. But that case dealt with public distribution of obscene materials and such distribution is subject to different objections. For example, there is always the danger that obscene material might fall into the hands of children, see Ginsberg v. New York, supra, or that it might intrude upon the sensibilities or privacy of the general public. See Redrup v. New York, 386 U. S. 767, 769 (1967). No such dangers are present in this case.

Finally, we are faced with the argument that prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution. That argument is based on alleged difficulties of proving an intent to distribute or in producing evidence of actual distribution. We are not convinced that such difficulties exist, but even if they did we do not think that they would justify infringement of the individual’s right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws. See Smith v. California, 361 U. S. 147 (1959).

We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today’s holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home. Accordingly, the judgment of the court below is reversed and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Black,

concurring.

I agree with the Court that the mere possession of reading matter or movie films, whether labeled obscene or not, cannot be made a crime by a State without violating the First Amendment, made applicable to the States by the Fourteenth. My reasons for this belief have been set out in many of my prior opinions, as for example, Smith v. California, 361 U. S. 147, 155 (concurring opinion), and Ginzburg v. United States, 383 U. S. 463, 476 (dissenting opinion).

Mr. Justice Stewart,

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

concurring in the result.

Before the commencement of the trial in this case, the appellant filed a motion to suppress the films as evidence upon the ground that they had been seized in violation of the Fourth and Fourteenth Amendments. The motion was denied, and the films were admitted in evidence at the trial. In affirming the appellant’s conviction, the Georgia Supreme Court specifically determined that the films had been lawfully seized. The appellant correctly contends that this determination was clearly wrong under established principles of constitutional law. But the Court today disregards this preliminary issue in its hurry to move on to newer constitutional frontiers. I cannot so readily overlook the serious inroads upon Fourth Amendment guarantees countenanced in this case by the Georgia courts.

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The purpose of these clear and precise words was to guarantee to the people of this Nation that they should forever be secure from the general searches and unrestrained seizures that had been a hated hallmark of colonial rule under the notorious writs of. assistance of the British Crown. See Stanford v. Texas, 379 U. S. 476, 481. This most basic of Fourth Amendment guarantees was frustrated in the present case, I think, in a manner made the more pernicious by its very subtlety. For what happened here was that a search that began as perfectly lawful became the occasion for an unwarranted and unconstitutional seizure of the films.

The state and federal officers gained admission to the appellant's house under the authority of a search warrant issued by a United States Commissioner. The warrant described “the place to be searched” with particularity. With like particularity, it described the “things to be seized” — equipment, records, and other material used in or derived from an illegal wagering business. And the warrant was issued only after the Commissioner had been apprised of more than adequate probable cause to issue it.

There can be no doubt, therefore, that the agents were lawfully present in the appellant’s house, lawfully authorized to search for any and all of the items specified in the warrant, and lawfully empowered to seize any such items they might find. It follows, therefore, that the agents were acting within the authority of the warrant when they proceeded to the appellant’s upstairs bedroom and pulled open the drawers of his desk. But when they found in one of those drawers not gambling material but moving picture films, the warrant gave them no authority to seize the films.

The controlling constitutional principle was stated in two sentences by this Court more than 40 years ago:

“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U. S. 192, 196.

This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection. And this is not a case that presents any questions as to the permissible scope of a search made incident to a lawful arrest. For the appellant had not been arrested when the agents found the films. After finding them, the agents spent some 50 minutes exhibiting them by means of the appellant’s projector in another upstairs room. Only then did the agents return downstairs and arrest the appellant.

Even in the much-criticized case of United States v. Rabinowitz, 339 U. S. 56, the Court emphasized that “exploratory searches . . . cannot be undertaken by officers with or without a warrant.” Id., at 62. This record presents a bald violation of that basic constitutional rule. To condone what happened here is to invite a government official to use a seemingly precise and legal warrant only as a ticket to get into a man’s home, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant.

Because the films were seized in violation of the Fourth and Fourteenth Amendments, they were inadmissible in evidence at the appellant’s trial. Mapp v. Ohio, 367 U. S. 643. Accordingly, the judgment of conviction must be reversed.

       “Any person who shall knowingly bring or cause to be brought into this State for sale or exhibition, or who shall knowingly sell or offer to sell, or who shall knowingly lend or give away or offer to lend or give away, or who shall knowingly have possession of, or who shall knowingly exhibit or transmit to another, any obscene matter, or who shall knowingly advertise for sale by any form of notice, printed, written, or verbal, any obscene matter, or who shall knowingly manufacture, draw, duplicate or print any obscene matter with intent to sell, expose or circulate the same, shall, if such person has knowledge or reasonably should know of the obscene nature of such matter, be guilty of a felony, and, upon conviction thereof, shall be punished by confinement in the penitentiary for not less than one year nor more than five years: Provided, however, in the event the jury so recommends, such person may be punished as for a misdemeanor. As used herein, a matter is obscene if, considered as a whole, applying contemporary community standards, its predominant appeal is to prurient interest, L e., a shameful or morbid interest in nudity, sex or excretion.” Ga. Code Ann. § 26-6301 (Supp. 1968).

       Appellant does not argue that the films are not obscene. For the purpose of this opinion, we assume that they are obscene under any of the tests advanced by members of this Court. See Redrup v. New York, 386 U. S. 767 (1967).

       The issue was before the Court in Mapp v. Ohio, 367 U. S. 643 (1961), but that case was decided on other grounds. Mr. Justice Stewart, although disagreeing with the majority opinion in Mapp, would have reversed the judgment in that case on the ground that the Ohio statute proscribing mere possession of obscene material was “not ‘consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.’ ” Id., at 672.

       18 U. S. C. § 1461.

         Ex parte Jackson, 96 U. S. 727, 736-737 (1878) (use of the mails); United States v. Chase, 135 U. S. 255, 261 (1890) (use of the mails); Robertson v. Baldwin, 165 U. S. 275, 281 (1897) (publication) ; Public Clearing House v. Coyne, 194 U. S. 497, 508 (1904) (use of the mails); Hoke v. United States, 227 U. S. 308, 322 (1913) (use of interstate facilities); Near v. Minnesota, 283 U. S. 697, 716 (1931) (publication); Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942) (utterances); Hannegan v. Esquire, Inc., 327 U. S. 146, 158 (1946) (use of the mails); Winters v. New York, 333 U. S. 507, 510 (1948) (possession with intent to sell); Beauharnais v. Illinois, 343 U. S. 250, 266 (1952) (libel).

       Many of the cases involved, prosecutions for sale or distribution of obscene materials or possession with intent to sell or distribute. See Redrup v. New York, 386 U. S. 767 (1967); Mishkin v. New York, 383 U. S. 502 (1966); Ginzburg v. United States, 383 U. S. 463 (1966); Jacobellis v. Ohio, 378 U. S. 184.(1964); Smith v. California, 361 U. S. 147 (1959). Our most recent decision involved a prosecution for sale of obscene material to children. Ginsberg v. New York, 390 U. S. 629 (1968); cf. Interstate Circuit, Inc. v. City of Dallas, 390 U. S. 676 (1968). Other cases involved federal or state statutory procedures for preventing the distribution or mailing of obscene material, or procedures for predistribution approval. See Freedman v. Maryland, 380 U. S. 51 (1965); Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963); Manual Enterprises, Inc. v. Day, 370 U. S. 478 (1962). Still another case dealt with an attempt to seize obscene material “kept for the purpose of being sold, published, exhibited ... or otherwise distributed or circulated . . . .” Marcus v. Search Warrant, 367 U. S. 717, 719 (1961); see also A Quantity of Books v. Kansas, 378 U. S. 205 (1964). Memoirs v. Massachusetts, 383 U. S. 413 (1966), was a proceeding in equity against a book. However, possession of a book determined to be obscene in such a proceeding was made criminal only when “for the purpose of sale, loan or distribution.” Id,., at 422.

       The Supreme Court of Ohio considered the issue in State v. Mapp, 170 Ohio St. 427, 166 N. E. 2d 387 (1960). Four of the seven judges of that court felt that criminal prosecution for mere private possession of obscene materials was prohibited by the Constitution. However, Ohio law required the concurrence of “all but one of the judges” to declare a state law unconstitutional. The view of the “dissenting” judges was expressed by Judge Herbert:
      “I cannot agree that mere private possession of . . . [obscene] literature by an adult should constitute a crime. The right of the individual to read, to believe or disbelieve, and to think without governmental supervision is one of our basic liberties, but to dictate to the mature adult what books he may have in his own private library seems to the writer to be a clear infringement of his constitutional rights as an individual.” 170 Ohio St., at 437, 166 N. E. 2d, at 393.
      Shortly thereafter, the Supreme Court of Ohio interpreted the Ohio statute to require proof of “possession and control for the purpose of circulation or exhibition.” State v. Jacobellis, 173 Ohio St. 22, 27-28, 179 N. E. 2d 777, 781 (1962), rev’d on other grounds, 378 U. S. 184 (1964). The interpretation was designed to avoid the constitutional problem posed by the “dissenters” in Mapp. See State v. Boss, 12 Ohio St. 2d 37, 231 N. E. 2d 299 (1967).
      Other cases dealing with nonpublic distribution of obscene material or with legitimate uses of obscene material have expressed similar reluctance to make such activity criminal, albeit largely on statutory grounds. In United States v. Chase, 135 U. S. 255 (1890), the Court held that federal law did not make criminal the mailing of a private sealed obscene letter on the ground that the law’s purpose was to purge the mails of obscene matter “as far as was consistent with the rights reserved to the people, and with a due regard to the security of private correspondence ...” 135 U. S., at 261. The law was later amended to include letters and was sustained in that form. Andrews v. United States, 162 U. S. 420 (1896). In United States v. 31 Photographs, 156 F. Supp. 350 (D. C. S. D. N. Y. 1957), the court denied an attempt by the Government to confiscate certain materials sought to be imported into the United States by the Institute for Sex Research, Inc., at Indiana University. The court found, applying the Roth formulation, that the materials would not appeal to the “prurient interest” of those seeking to import and utilize the materials. Thus, the statute permitting seizure of “obscene” materials was not applicable. The court found it unnecessary to reach the constitutional questions presented by the claimant, but did note its belief that “the statement ... [in Roth] concerning the rejection of obscenity must be interpreted in the light of the widespread distribution of the material in Roth.” 156 F. Supp., at 360, n. 40. See also Redmond v. United States, 384 U. S. 264 (1966), where this Court granted the Solicitor General’s motion to vacate and remand with instructions to dismiss an information charging a violation of a federal obscenity statute in a case where a husband and wife mailed undeveloped films of each other posing in the nude to an out-of-state firm for developing. But see Ackerman v. United States, 293 F. 2d 449 (C. A. 9th Cir. 1961).

       “Communities believe, and act on the belief, that obscenity is immoral, is wrong for the individual, and has no place in a decent society. They believe, too, that adults as well as children are corruptible in morals and character, and that obscenity is a source of corruption that should be eliminated. Obscenity is not suppressed primarily for the protection of others. Much of it is suppressed for the purity of the community and for the salvation and welfare of the ‘consumer.’ Obscenity, at bottom, is not crime. Obscenity is sin.” Henkin, Morals and the Constitution: The Sin of Obscenity. 63 Col. L. Rev. 391, 395 (1963).

       See, e. g., Cairns, Paul, & Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn. L. Rev. 1009 (1962); see also M. Jahoda, The Impact of Literature: A Psychological Discussion of Some Assumptions in the Censorship Debate (1954), summarized in the concurring opinion of Judge Frank in United States v. Roth, 237 F. 2d 796, 814-816 (C. A. 2d Cir. 1956).

       The Model Penal Code provisions dealing with obscene materials are limited to cases of commercial dissemination. Model Penal Code §251.4 (Prop. Official Draft 1962); see also Model Penal Code § 207.10 and comment 4 (Tent. Draft No. 6, 1957); H. Packer, The Limits of the Criminal Sanction 316-328 (1968); Schwartz, Morals Offenses and the Model Penal Code, 63 Col. L. Rev. 669 (1963).

       What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.
      Nor do we mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials. See, e. g., 18 U. S. C. § 793 (d), which makes criminal the otherwise lawful possession of materials which “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation . . . .” In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.

       “[T]he premises known as 280 Springside Drive, S. E., two story residence with an annex on the main floor constructed of brick and frame, in Atlanta, Fulton County, Georgia, in the Northern District of Georgia . . .

       “[B]ookmaking records, wagering paraphernalia consisting of bet slips, account sheets, recap sheets, collection sheets, adding machines, money used in or derived from the wagering business, records of purchases, records of real estate and bank transactions, the money for which was derived from the wagering business, and any other property used in the wagering business, which are being used and/or have been used in the operation of a bookmaking business or represent the fruits of a bookmaking business being operated in violation of Sections 4411, 4412 and 7203 IRC of 1954.”

       Before the Commissioner were no less than four lengthy and detailed affidavits, setting out the grounds for the affiants’ reasonable belief that the appellant was engaged in an illegal gambling enterprise, and that the paraphernalia of his trade were concealed in his house.

       The fact that almost no gambling material was actually found has no bearing, of course, upon the validity of the search. The constitutionality of a search depends in no measure upon what it brings to light. Byars v. United States, 273 U. S. 28, 29.

       See Warden v. Hayden, 387 U. S. 294.


author: Per Curiam.

text:
    STEPHAN et ux. v. STATE TAX COMMISSIONER OF DELAWARE.
    No. 844.
    Decided April 7, 1969.

      Edward J. Wilson, Deputy Attorney General of Delaware, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    SOSZKA v. MANGANARO et al.
    No. 857.
    Decided April 7, 1969.

      Morris P. Skinner for appellant.

      Stuart M. Cowan for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    ANDERSON v. SOUTH CAROLINA.
    No. 984,
    Misc.
    Decided April 7, 1969.

      Robert L. Chipley, Jr., for appellant.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. The request for other relief is denied.


text:
    DAVIS v. UNITED STATES.
    No. 1146,
    Misc.
    Decided April 7, 1969.

      Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States.
   Per Curiam.

In accordance with the views expressed by the Solicitor General and upon an examination of the papers in this case, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States District Court for the Southern District of California for a further hearing on such evidence as the petitioner may present on the question of his right to appeal.


text:
    ROLLERSON v. UNITED STATES.
    No. 1425,
    Misc.
    Decided April 7, 1969.

      William H. Allen for petitioner.

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Roger A. Pauley for the United States.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States District Court for the District of Columbia for further consideration in light of Kaufman v. United States, ante, p. 217.

Mr. Justice Fortas concurs in the disposition of this case but notes that the Court’s action does not imply any view as to the merits of any of the petitioner’s claims including his assertions as to double jeopardy.

Mr. Justice Black, Mr. Justice Harlan, and Mr. Justice Stewart dissent.