author: Per Curiam. Justice Scalia,

text:
    SMITH v. TEXAS
    No. 04-5323.
    Decided November 15, 2004
   Per Curiam.

Petitioner LaRoyce Lathair Smith was convicted of capital murder and sentenced to death by a jury in Dallas County, Texas. Before the jury reached its sentence, the trial judge issued a supplemental “nullification instruction.” Ex parte Smith, 132 S. W. 3d 407, 409 (Tex. Crim. App. 2004). That instruction directed the jury to give effect to mitigation evidence, but allowed the jury to do so only by negating what would otherwise be affirmative responses to two special issues relating to deliberateness and future dangerousness. In Penry v. Johnson, 532 U. S. 782 (2001) (Penry II), we held a similar “nullification instruction” constitutionally inadequate because it did not allow the jury to give “ ‘full consideration and full effect to mitigating circumstances’” in choosing the defendant’s appropriate sentence. Id., at 797 (quoting Johnson v. Texas, 509 U. S. 350, 381 (1993) (O’Connor, J., dissenting)). Despite our holding in Penry II, the Texas Court of Criminal Appeals rejected petitioner’s request for postconviction relief. The court reasoned that the instruction either was irrelevant because petitioner did not proffer “constitutionally significant” mitigation evidence, or was sufficiently distinguishable from the instruction in Penry II to survive constitutional scrutiny. 132 S. W. 3d, at 413, n. 21. We grant the petition for certiorari and petitioner’s motion for leave to proceed in forma pauperis, and reverse.

I

In 1991, petitioner was convicted of brutally murdering one of his former co-workers at a Taco Bell in Dallas County. The victim and one of her co-workers were closing down the restaurant when petitioner and several friends asked to be let in to use the telephone. The two employees recognized petitioner and let him in. Petitioner then told his former co-workers to leave because he wanted to rob the restaurant. When they did not leave, petitioner killed one co-worker by pistol-whipping her and shooting her in the back. Petitioner also threatened, but did not harm, his other former coworker before exiting with his friends. The jury found petitioner guilty of capital murder beyond a reasonable doubt.

At the punishment phase, the jury was instructed on two special issues: first, whether the killing was deliberate; and second, whether the defendant posed a continuing danger to others. Approximately two years prior to the trial, we had held that presenting only these two special issues, without additional instructions regarding the jury’s duty to consider mitigation evidence, violated the Eighth Amendment. Penry v. Lynaugh, 492 U. S. 302, 328 (1989) (Penry I). Shortly after petitioner’s trial, the Texas Legislature amended its capital sentencing scheme to require juries to take “into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant” in deciding whether there are sufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence. Penry II, supra, at 803 (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(2)(e)(1) (Vernon Supp. 2001)). Petitioner, however, did not receive the benefit of the new statutory instruction at his trial. Instead, just as in Penry II, petitioner was sentenced pursuant to a supplemental instruction provided to the jury by the trial judge. That instruction read:

“ ‘You are instructed that you shall consider any evidence which, in your opinion, is mitigating. Mitigating evidence is evidence that reduces the Defendant’s personal or moral culpability or blameworthiness, and may include, but is not limited to, any aspect of the Defendant’s character, record, background, or circumstances of the offense for which you have found him guilty. Our law does not specify what may or may not be considered as mitigating evidence. Neither does our law provide a formula for determining how much weight, if any, a mitigating circumstance deserves. You may hear evidence which, in your judgment, has no relationship to any of the Special Issues, but if you find such evidence is mitigating under these instructions, you shall consider it in the following instructions of the Court. You, and each of you, are the sole judges of what evidence, if any, is mitigating and how much weight, if any, the mitigating circumstances, if any, including those which have no relationship to any of the Special Issues, deserves.
“‘In answering the Special Issues submitted to you herein, if you believe that the State has proved beyond a reasonable doubt that the answers to the Special Issues are “Yes,” and you also believe from the mitigating evidence, if any, that the Defendant should not be sentenced to death, then you shall answer at least one of the Special Issues “No” in order to give effect to your belief that the death penalty should not be imposed due to the mitigating evidence presented to you. In this regard, you are further instructed that the State of Texas must prove beyond a reasonable doubt that the death sentence should be imposed despite the mitigating evidence, if any, admitted before you.
“‘You are instructed that you may deliberate as a body about mitigating circumstances, but you are not required to reach a unanimous verdict as to their existence or weight. When you vote about the Special Issues, each of you must decide for yourself whether mitigating circumstances exist and, if so, how much weight they deserve.’” 132 S. W. 3d, at 409.

Employing the framework of special issues modified by the supplemental nullification instruction, the jury considered a variety of mitigation evidence. Petitioner presented evidence that (1) he had been diagnosed with potentially organic learning disabilities and speech handicaps at an early age; (2) he had a verbal IQ score of 75 and a full IQ of 78 and, as a result, had been in special education classes throughout most of his time in school; (3) despite his low IQ and learning disabilities, his behavior at school was often exemplary; (4) his father was a drug addict who was involved with gang violence and other criminal activities, and regularly stole money from family members to support a drug addiction; and (5) he was only 19 when he committed the crime.

In response, the prosecution submitted evidence demonstrating that petitioner acted deliberately and cruelly. The prosecution emphasized that petitioner knew his victim, yet stabbed her repeatedly in numerous places on her body. With respect to petitioner’s future dangerousness, the prosecution stressed that petitioner had previously been convicted of misdemeanor assault and proffered evidence suggesting that he had violated several drug laws.

During closing arguments at the punishment phase, the prosecution reminded the jury of its duty to answer truthfully the two special issues of deliberateness and future dangerousness.

“Now, when we talked to you on voir dire, we talked to you about — and we spent a lot of time talking to you to determine whether or not you could follow the law. You told us two very important things when we talked to you. First of all, you told us that in the appropriate ease that you could give the death penalty. Secondly, you said, ‘Mr. Nancarrow, Ms. McDaniel, if you prove to me that the answers to those special issues should be yes, then I can answer them yes.’ If you wavered, if you hesitated one minute on that, then I guarantee you, you weren’t going to be on this jury. We believed you then, and we believe you now.” Pet. for Cert. 6.

The jury verdict form tracked the final reminders the prosecution gave the jury. The form made no mention of nullification. Nor did it say anything about mitigation evidence. Instead, the verdict form asked whether petitioner committed the act deliberately and whether there was a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The jury was allowed to give “Yes” or “No” answers only. The jury answered both questions “Yes” and sentenced petitioner to death. App. 4 to Pet. for Cert.

On direct appeal, petitioner argued that our holding in Penry I rendered his jury instructions unconstitutional because the special issues did not allow the jury to give effect to his mitigation evidence. The Texas Court of Criminal Appeals affirmed petitioner’s sentence, reasoning that the nullification instruction provided an adequate vehicle through which the jury could consider petitioner’s evidence. We denied certiorari on May 15, 1995. Smith v. Texas, 514 U.S. 1112.

Petitioner filed an original writ of habeas corpus in the trial court in 1998. That suit was dismissed as untimely, but the Texas Legislature amended its criminal code in such a way as to allow petitioner to file a timely writ. Petitioner did so, claiming that his jury was instructed in violation of the Eighth Amendment. Before the Texas Court of Criminal Appeals, petitioner argued that the jury instructions in his case ran afoul of our holding in Penry II. The court denied petitioner’s application on the merits. 132 S. W. 3d 407 (2004).

II

The Texas Court of Criminal Appeals issued its opinion just prior to our decision in Tennard v. Dretke, 542 U. S. 274 (2004). In Tennard, we reversed the Fifth Circuit’s refusal to grant a certificate of appealability to a defendant who was sentenced under the Texas capital sentencing scheme prior to the legislative revisions which took place in the aftermath of Penry I. Tennard, relying upon Penry I, argued that Texas’ two special issues — deliberateness and future dangerousness — did not allow the jury to give effect to his mitigation evidence and that the trial court’s failure to issue a supplemental mitigation instruction that would allow the jury to give full effect to his evidence rendered his death sentence unconstitutional. ' The state court and the Fifth Circuit both held that the lack of an adequate mitigation instruction was irrelevant. The courts both determined that Tennard had failed to satisfy the Fifth Circuit’s threshold standard for “ ‘constitutionally relevant’ mitigating evidence, that is, evidence of a ‘uniquely severe permanent handicap with which the defendant was burdened through no fault of his own,’ and evidence that ‘the criminal act was attributable to this severe permanent condition.’ ” 542 U. S., at 281 (some internal quotation marks omitted).

Our rejection of that threshold test was central to our decision to reverse in Tennard. We held that “[t]he Fifth Circuit’s test has no foundation in the decisions of this Court. Neither Penry I nor its progeny screened mitigating evidence for ‘constitutional relevance’ before considering whether the jury instructions comported with the Eighth Amendment.” Id., at 284. Rather, we held that the jury must be given an effective vehicle with which to weigh mitigating evidence so long as the defendant has met a “low threshold for relevance,” which is satisfied by ““‘evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.”’” Id., at 284-285 (quoting McKoy v. North Carolina, 494 U. S. 433, 440 (1990)).

The Texas Court of Criminal Appeals relied on precisely the same “screening test” we held constitutionally inadequate in Tennard. 132 S. W. 3d, at 413 (holding that mitigation evidence requires a special instruction only when that evidence passes the threshold test of “whether the defendant’s criminal act was ‘due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own’ ” (quoting Robertson v. Cockrell, 325 F. 3d 243, 251 (CA5 2003) (en banc))). Employing this test, the court concluded that petitioner’s low IQ and placement in special-education classes were irrelevant because they did not demonstrate that he suffered from a “severe disability.” 132 S. W. 3d, at 414. But, as we explained in Tennard, “[evidence of significantly impaired intellectual functioning is obviously evidence that ‘might serve as a basis for a sentence less than death.’” 542 U. S., at 288 (quoting Skipper v. South Carolina, 476 U. S. 1, 5 (1986); some internal quotation marks omitted). There is no question that a jury might well have considered petitioner’s IQ scores and history of participation in special-education classes as a reason to impose a sentence more lenient than death. Indeed, we have held that a defendant’s IQ score of 79, a score slightly higher than petitioner’s, constitutes relevant mitigation evidence. See Wiggins v. Smith, 539 U. S. 510, 535 (2003); cf. Tennard, supra, at 288.

The state court also held that petitioner had offered “no evidence of any link or nexus between his troubled childhood or his limited mental abilities and this capital murder.” 132 S. W. 3d, at 414. We rejected the Fifth Circuit’s “nexus” requirement in Tennard, supra, at 287 (noting that none of our prior opinions “suggested that a mentally retarded individual must establish a nexus between her mental capacity and her crime before the Eighth Amendment prohibition on executing her is triggered” and holding that the jury must be allowed the opportunity to consider Penry evidence even if the defendant cannot establish “a nexus to the crime”).

That petitioner’s evidence was relevant for mitigation purposes is plain under our precedents, even those predating Tennard. See, e. g., Penry I, 492 U. S., at 319-322; Payne v. Tennessee, 501 U. S. 808, 822 (1991); Boyde v. California, 494 U. S. 370, 377-378 (1990); Eddings v. Oklahoma, 455 U. S. 104, 114 (1982). The state court, however, erroneously relied on a test we never countenanced and now have unequivocally rejected. We therefore hold that the state court “assessed [petitioner’s legal] claim under an improper legal standard.” Tennard, supra, at 287. Because petitioner’s proffered evidence was relevant, the Eighth Amendment required the trial court to empower the jury with a vehicle capable of giving effect to that evidence. Whether the “nullification instruction” satisfied that charge is the question to which we now turn.

Ill

The Texas Court of Criminal Appeals held that even if petitioner did proffer relevant mitigation evidence, the supplemental “nullification instruction” provided to the jury adequately allowed the jury to give effect to that evidence. The court found it significant that the supplemental instruction in this case “told the jury that it ‘shall’ consider all mitigating evidence, even evidence unrelated to the special issues, [and] it also told the jury how to answer the special issues to give effect to that mitigation evidence.” 132 S. W. 3d, at 416. The court also concluded that the nullification instruction made it clear to the jury that a “No” answer was required if it “believed that the death penalty was not warranted because of the mitigating circumstances.” Ibid.

In Penry II, we held that “the key under Penry I is that the jury be able to ‘consider and give effect to [a defendant’s mitigation] evidence in imposing sentence.’ ” 532 U. S., at 797 (quoting Penry I, supra, at 319); see 532 U. S., at 797 (“ ‘[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances’ ” (quoting Johnson v. Texas, 509 U. S., at 381 (O’Connor, J., dissenting); emphasis in Johnson)). We explained at length why the supplemental instruction employed by the Texas courts did not provide the jury with an adequate vehicle for expressing a “reasoned moral response” to all of the evidence relevant to the defendant’s culpability. 532 U. S., at 796. Although there are some distinctions between the Penry II supplemental instruction and the instruction petitioner’s jury received, those distinctions are constitutionally insignificant.

Penry II identified a broad and intractable problem — a problem that the state court ignored here — inherent in any requirement that the jury nullify special issues contained within a verdict form.

“We generally presume that jurors follow their instructions. Here, however, it would have been both logically and ethically impossible for a juror to follow both sets of instructions. Because Penry’s mitigating evidence did not fit within the scope of the special issues, answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental instruction. And answering the special issues in the mode prescribed by the supplemental instruction necessarily meant ignoring the verdict form instructions. Indeed, jurors who wanted to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a ‘“true verdict.’”
“The mechanism created by the supplemental instruction thus inserted ‘an element of capriciousness’ into the sentencing decision, ‘making the jurors’ power to avoid the death penalty dependent on their willingness’ to elevate the supplemental instruction over the verdict form instructions. There is, at the very least, ‘a reasonable likelihood that the jury . . . applied the challenged instruction in a way that prevented] the consideration’ of Penry’s mental retardation and childhood abuse. The supplemental instruction therefore provided an inadequate vehicle for the jury to make a reasoned moral response to Penry’s mitigating evidence.” Id., at 799-800 (citations omitted).

It is certainly true that the mandatory aspect of the nullification instruction made petitioner’s instruction distinct from Penry’s. Indeed, the “shall” command in the nullification instruction resolved the ambiguity inherent in the Penry II instruction, which we held was either a nullification instruction or an instruction that “ ‘shackled and confined’ ” Penry’s mitigating evidence within the scope of the imper-missibly narrow special issues. Id., at 798. That being said, the clearer instruction given to petitioner’s jury did not resolve the ethical problem described supra, at 46 and this page. To the contrary, the mandatory language in the charge could possibly have intensified the dilemma faced by ethical jurors. ' Just as in Penry II, petitioner’s jury was required by law to answer a verdict form that made no mention whatsoever of mitigation evidence. And just as in Penry II, the burden of proof on the State was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with the mitigation evidence petitioner presented. Even if we were to assume that the jurors could easily and effectively have comprehended an orally delivered instruction directing them to disregard, in certain limited circumstances, a mandatory written instruction given at a later occasion, that would not change the fact that the “jury was essentially instructed to return a false answer to a special issue in order to avoid a death sentence.” Penry II, 532 U. S., at 801.

There is no principled distinction, for Eighth Amendment purposes, between the instruction given to petitioner’s jury and the instruction in Penry II. Petitioner’s evidence was relevant mitigation evidence for the jury under Tennard and ' Penry I. We therefore hold that the nullification instruction was constitutionally inadequate under Penry II. The judgment of the Texas Court of Criminal Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Scalia,

with whom Justice Thomas joins,

dissenting.

I would affirm the judgment of the Texas Court of Criminal Appeals. See Walton v. Arizona, 497 U. S. 639, 673 (1990) (Scalia, J., concurring in part and concurring in judgment).

       The text of the special issues given to the jury was as follows: “(1) Was the conduct of the defendant that caused the death of the deceased committed deliberately, and with the reasonable expectation that the death of the deceased or another would result? (2) Is there a probability that the defendant would commit' criminal acts of violence that would constitute a continuing threat to society?” Pet. for Cert. 5.

       The supplemental instruction in Penry II stated: “ ‘You are instructed that when you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant’s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant’s personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues.’ ” 532 U. S., at 789-790 (emphasis added).

       Four judges would have found petitioner’s claim procedurally defaulted. See 132 S. W. 3d, at 417 (Hervey, J., concurring); id., at 428 (Holcomb, J., concurring). The majority of the court, however, declined to adopt this holding and reached petitioner’s claims on the merits.

       The concurring opinions below straightforwardly recognized this problem. See 132 S. W. 3d 407, 427 (Tex. Crim. App. 2004) (Hervey, J., concurring) (concluding that the “ ‘nullification’ instruction would, as a matter of federal constitutional law, suffer from the same defect as the one in Penry II had applicant presented any mitigating evidence that was beyond ‘the effective reach of the sentencer’ ” and conceding that the instruction given to petitioner may have been inadequate “as a matter of federal constitutional law”); id,., at 428 (Holcomb, J., concurring) (“The nullification instruction provided to Smith’s jury contained the same defects the Supreme Court identified in Penry II. Therefore, the jury was unconstitutionally precluded from considering and giving effect to Smith’s mitigating evidence”).

       There is another similarity between this ease and Penry II. In Penry II, we found it significant that the prosecutor admonished the jury to “ ‘follow your oath, the evidence and the law’” prior to the deliberations in which the jury was required to fill out the verdict form. 532 U. S., at 802. We held that this statement sent the jury “mixed signals” and “only reminded the jurors that they had to answer the special issues dishonestly in order to give effect to Penry’s mitigating evidence.” Ibid. The prosecutor here similarly reminded the jury that each and every one of them had promised to “follow the law” and return a “Yes” answer to the special issues so long as the State met its burden of proof. Pet. for Cert. 6. Thus, the nullification instruction presented the same ethical dilemma here and, what is more, it seems that despite the inclusion of the mandatory “shall” language, the nullification instruction may have been more confusing for the jury to implement in practice than the state court assumed.


source: Caselaw Access Project

author:
      Justice Ginsburg
      Justice Stevens, Justice Kennedy, Justice Thomas,
      Justice Scalia,

license: Public Domain

text:
    KOONS BUICK PONTIAC GMC, INC. v. NIGH
    No. 03-377.
    Argued October 5, 2004
    Decided November 30, 2004

      Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Breyer, J., joined, post, p. 65. Kennedy, J., filed a concurring opinion, in which Rehnquist, C. J., joined, post, p. 66. Thomas, J., filed an opinion concurring in the judgment, post, p. 67. Scalia, J., filed a dissenting opinion, post, p. 70.

      Donald B. Ayer argued the cause for petitioner. With him on the briefs were William K. Shirey II and Arthur M. Schwartzstein.

      A. Hugo Blankingship III argued the cause for respondent. With him on the brief were Allison M. Zieve and Brian Wolf man.

       Briefs of amici curiae urging reversal were filed for the American Bankers Association et al. by Roy T. Englert, Jr., Alan E. Untereiner, and Max Huffman; for the Michigan Bankers Association by John J. Bursch; for the National Automobile Dealers Association by Paul R. Norman; and for the Virginia Automobile Dealers Association et al. by Michael G. Charapp, Brad D. Weiss, and Allen Jones, Jr.

      Briefs of amici curiae urging affirmance were filed for the Commercial Law League of America by Manuel H. Newburger and Barbara M. Barron; and for the National Association of Consumer Advocates et al. by Richard J Rubin and Joanne S. Faulkner.

   Justice Ginsburg

delivered the opinion of the Court.

The meaning of a subparagraph in a section of the Truth in Lending Act (TILA or Act), 15 U. S. C. § 1601 et seq., is at issue in this case. As originally enacted in 1968, the provision in question bracketed statutory damages for violations of TILA prescriptions governing consumer loans: $100 was made the minimum recovery and $1,000, the maximum award. In 1995, Congress added a new clause increasing recovery for TILA violations relating to closed-end loans “secured by real property or a dwelling.” § 1640(a)(2)(A)(iii). In lieu of the $100/$1,000 minimum and maximum recoveries, Congress substituted $200/$2,000 as the floor and ceiling.

Less-than-meticulous drafting of the 1995 amendment created an ambiguity. A divided panel of the United States Court of Appeals for the Fourth Circuit held that the 1995 amendment not only raised the statutory damages recoverable for TILA violations involving real-property-secured loans, it also removed the $1,000 cap on recoveries involving loans secured by personal property. We reverse that determination and hold that the 1995 amendment left unaltered the $100/$1,000 limits prescribed from the start for TILA violations involving personal-property loans. The purpose of the 1995 amendment is not in doubt: Congress meant to raise the minimum and maximum recoveries for closed-end loans secured by real property. There is scant indication that Congress simultaneously sought to remove the $1,000 cap on loans secured by personal property.

I

Congress enacted TILA in 1968, as part of the Consumer Credit Protection Act, Pub. L. 90-321, 82 Stat. 146, as amended, 15 U. S. C. § 1601 et seq., to “assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit,” § 102, codified in 15 U. S. C. § 1601(a). The Act requires a creditor to disclose information relating to such things as finance charges, annual percentage rates of interest, and borrowers’ rights, see §§ 1631-1632, 1635, 1637-1639, and it prescribes civil liability for any creditor who fails to do so, see § 1640. As originally enacted in 1968, the Act provided for statutory damages of twice the finance charge in connection with the transaction, except that recovery could not be less than $100 or greater than $1,000. The original civil-liability provision stated:

“(a) [A]ny creditor who fails in connection with any consumer credit transaction to disclose to any person any information required under this chapter to be disclosed to that person is liable to that person in an amount... of
“(1) twice the amount of the finance charge in connection with the transaction, except that liability under this paragraph shall not be less than $100 nor greater than $1,000 _” Pub. L. 90-321, § 130, 82 Stat. 157.

In 1974, Congress amended TILA’s civil-liability provision, 15 U. S. C. § 1640(a), to allow for the recovery of actual damages in addition to statutory damages and to provide separate statutory damages for class actions. Pub. L. 93-495, § 408(a), 88 Stat. 1518. Congress reworded the original statutory damages provision to limit it to individual actions, moved the provision from § 1640(a)(1) to § 1640(a)(2)(A), and retained the $100/$1,000 brackets on recovery. In order to account for the restructuring of the statute, Congress changed the phrase “under this paragraph” to “under this subparagraph.” The amended statute provided for damages in individual actions as follows:

“(a) [A]ny creditor who fails to comply with any requirement imposed under this chapter . . . is liable to such person in an amount equal to the sum of—
“(1) any actual damage sustained by such person as a result of the failure;
“(2)(A) in the case of an individual action twice the amount of any finance charge in connection with the transaction, except that the liability under this subpara-graph shall not be less than $100 nor greater than $1,000 ...§ 408(a), 88 Stat. 1518.

A further TILA amendment in 1976 applied truth-in-lending protections to consumer leases. Consumer Leasing Act of 1976, 90 Stat. 257. Congress inserted, a clause into § 1640(a)(2)(A) setting statutory damages for individual actions relating to consumer leases at 25% of the total amount of monthly payments under the lease. Again, Congress retained the $100/$1,000 brackets on statutory damages. The amended § 1640(a)(2)(A) provided for statutory damages equal to

“(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, or (ii) in the case of an individual action relating to a consumer lease ... 25 per centum of the total amount of monthly payments under the lease, except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000 . . . .” Pub. L. 94-240, §4(2), 90 Stat. 260, codified in 15 U.S.C. § 1640(a) (1976 ed.).

Following the insertion of the consumer lease provision, courts consistently held that the $100/$1,000 limitation remained applicable to all consumer financing transactions, whether lease or loan. See, e. g., Purtle v. Eldridge Auto Sales, Inc., 91 F. 3d 797, 800 (CA6 1996); Cowen v. Bank United of Tex., FSB, 70 F. 3d 937, 941 (CA7 1995); Mars v. Spartanburg Chrysler Plymouth, Inc., 713 F. 2d 65, 67 (CA4 1983); Dryden v. Lou Budke’s Arrow Finance Co., 661 F. 2d 1186, 1191, n. 7 (CA8 1981) (per curiam); Williams v. Public Finance Corp., 598 F. 2d 349, 358, 359, n. 17 (CA5 1979).

In 1995, Congress amended TILA’s statutory damages provision once more. The 1995 amendment, which gave rise to the dispute in this case, added a new clause (iii) at the end of § 1640(a)(2)(A), setting a $200 floor and $2,000 ceiling for statutory damages in an individual action relating to a closed-end credit transaction “secured by real property .or a dwelling.” Truth in Lending Act Amendments of 1995, Pub. L. 104-29, §6, 109 Stat. 274. These closed-end real estate loans, formerly encompassed by clause (i), had earlier been held subject to the $100/$1,000 limitation. See, e. g., Mayfield v. Vanguard Sav. & Loan Assn., 710 F. Supp. 143, 146 (ED Pa. 1989) (ordering “the maximum statutory award of $1,000” for each TILA violation concerning a secured real estate loan). Section 1640(a), as amended in 1995, thus provides for statutory damages equal to

“(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, (ii) in the case of an individual action relating to a consumer lease ... 25 per centum of the total amount of monthly payments under the lease, except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000, or (iii) in the case of an individual action relating to a credit transaction not under an open end credit plan that is secured by real property or a dwelling, not less than $200 or greater than $2,000 ....”

Shortly after the passage of the 1995 TILA amendments, the Office of the Comptroller of the Currency issued an official policy announcement describing the changes. With respect to changes in TILA’s civil-liability provisions, the announcement stated only that “[p]unitive damages have been increased for transactions secured by real property or a dwelling from a maximum of $1,000 to a maximum of $2,000 (closed-end credit only).” Administrator of National Banks, Truth in Lending Act Amendments of 1995, OCC Bulletin 96-1, p. 2 (Jan. 5, 1996).

In 1997, the Seventh Circuit, in Strange v. Monogram Credit Card Bank of Ga., 129 F. 3d 943, held that the meaning of clauses (i) and (ii) remained untouched by the addition of clause (iii). The Seventh Circuit observed that prior to the addition of clause (iii) in 1995, “[c]ourts uniformly interpreted the final clause, which established the $100 minimum and the $1,000 maximum, as applying to both (A)(i) and (A)(ii).” Id., at 947. The 1995 amendment, the Seventh Circuit reasoned, “was designed simply to establish a more generous minimum and maximum for certain secured transactions, without changing the general rule on minimum and maximum damage awards for the other two parts of § 1640(a)(2)(A).” Ibid. As Strange illustrates, TILA violations may involve finance charges that, when doubled, are less than $100. There, double-the-finance-charge liability was $54.27, entitling the plaintiff to the $100 minimum. Id., at 945, 947.

II

On February 4, 2000, respondent Bradley Nigh attempted to purchase a used 1997 Chevrolet Blazer truck from petitioner Koons Buick Pontiac GMC. Nigh traded in his old vehicle and signed a buyer’s order and a retail installment sales contract reflecting financing to be provided by Koons Buick. 319 F. 3d 119, 121-122 (CA4 2003). Koons Buick could not find a lender to purchase an assignment of the payments owed under the sales contract and consequently restructured the deal to require a larger downpayment. Id,., at 122. On February 25, after Koons Buick falsely told Nigh that his trade-in vehicle had been sold, Nigh signed a new retail installment sales contract. Ibid. Once again, however, Koons Buick was unable to find a willing lender. Ibid. Nigh ultimately signed, under protest, a third retail installment sales contract. Ibid.

Nigh later discovered one reason why Koons Buick had been unable to find an assignee for the installment payments due under the second contract: That contract contained an improperly documented charge of $965 for a Silencer car alarm Nigh never requested, agreed to accept, or received. Ibid. Nigh made no payments on the Blazer and returned the truck to Koons Buick. Id., at 123.

On October 3, 2000, Nigh filed suit against Koons Buick alleging, among other things, a violation of TILA. Nigh sought uncapped recovery of twice the finance charge, an amount equal to $24,192.80. Koons Buick urged a $1,000 limitation on statutory damages under § 1640(a)(2)(A)(i). The District Court held that damages were not capped at $1,000, and the jury awarded Nigh $24,192.80 (twice the amount of the finance charge). Id., at 121; App. in No. 01-2201 etc. (CA4), pp. 653-655, 670, 756-757, 764.

A divided panel of the Fourth Circuit affirmed. 319 F. 3d, at 126-129. The Court of Appeals acknowledged that it had previously interpreted the $1,000 cap to apply to clauses (i) and (ii). Id., at 126; see Mars v. Spartanburg Chrysler Plymouth, Inc., 713 F. 2d, at 67. But the majority held that “by striking the ‘or’ preceding (ii), and inserting (iii) after the ‘under this subparagraph’ phrase,” Congress had “rendered Mars’interpretation defunct.” 319 F. 3d, at 126. According to the majority: “The inclusion of the new maximum and minimum in (iii) shows that the clause previously interpreted to apply to all of (A), can no longer apply to (A), but must now apply solely to (ii), so as not to render meaningless the maximum and minimum articulated in (iii).” Id., at 127. The Court of Appeals therefore allowed Nigh to recover the full uncapped amount of $24,192.80 under clause (i).

Judge Gregory dissented. The new clause (iii), he stated, operates as a specific “carve-out” for real estate transactions from the general rule establishing the $100/$1,000 liability limitation. Id., at 130, 132. Both parties acknowledged, and it was Fourth Circuit law under Mars, 713 F. 2d 65, that, before 1995, the $100/$1,000 brackets applied to the entire subparagraph. 319 F. 3d, at 130. Judge Gregory found “no evidence that Congress intended to override the Fourth Circuit’s long-standing application of the $1,000 cap to both (2)(A)(i) and (2)(A)(ii).” Id., at 131. If the $1,000 cap applied only to clause (ii), the dissent reasoned, the phrase “under this subparagraph” in clause (ii) would be “superfluous,” because “the meaning of (ii) would be unchanged by its deletion.” Id., at 132. Moreover, Judge Gregory added, limiting the $1,000 cap to recoveries for consumer leases under clause (ii) would create an inconsistency within the statute: The damages cap in clause (ii) would include the “under this subparagraph” modifier, but the cap in clause (iii) would not. Ibid.

We granted certiorari, 540 U. S. 1148 (2004), to resolve the division between the Fourth Circuit and the Seventh Circuit on the question whether the $100 floor and $1,000 ceiling apply to. recoveries under § 1640(a)(2)(A)(i). We now reverse the judgment of the Court of Appeals for the Fourth Circuit.

Ill

Statutory construction is a “holistic endeavor.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988); accord United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 455 (1993); Smith v. United States, 508 U. S. 223, 233 (1993). “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex., 484 U. S., at 371 (citations omitted); see also McCarthy v. Bronson, 500 U. S. 136, 139 (1991) (statutory language must be read in its proper context and not viewed in isolation). In this case, both the conventional meaning of “subparagraph” and standard interpretive guides point to the same conclusion: The $1,000 cap applies to recoveries under clause (i).

Congress ordinarily adheres to a hierarchical scheme in subdividing statutory sections. See L. Filson, The Legislative Drafter’s Desk Reference 222 (1992) (hereinafter Desk Reference). This hierarchy is set forth in drafting manuals prepared by the legislative counsel’s offices in the House and the Senate. The House manual provides:

“To the maximum extent practicable, a section should be broken into—
“(A) subsections (starting with (a));
“(B) paragraphs (starting with (1));
“(C) subparagraphs (starting with (A));
“(D) clauses (starting with (i)) . . . .” House Legislative Counsel’s Manual on Drafting Style, HLC No. 104-1, p. 24 (1995).

The Senate manual similarly provides:

“A section is subdivided and indented as follows:
“(a) Subsection.—
“(1) Paragraph.—
“(A) Subparagraph.—
“(i) Clause. — ” Senate Office of the Legislative Counsel, Legislative Drafting Manual 10 (1997).

Congress followed this hierarchical scheme in drafting TILA. The word “subparagraph” is generally used to refer to a subdivision preceded by a capital letter, and the word “clause” is generally used to refer to a subdivision preceded by a lower case Roman numeral. Congress applied this hierarchy in § 1640(a)(2)(B), which covers statutory damages in TILA class actions and states: “[T]he total recovery under ■this subparagraph . . . shall not be more than the lesser of $500,000 or 1 per centum of the net worth of the creditor . . . .” (Emphasis added.) In 1995, Congress plainly meant “to establish a more generous minimum and maximum” for closed-end mortgages. Strange, 129 F. 3d, at 947. On that point, there is no disagreement. Had Congress simultaneously meant to repeal the longstanding $100/ $1,000 limitation on § 1640(a)(2)(A)(i), thereby confining the $100/$1,000 limitation solely to clause (ii), Congress likely would have flagged that substantial change. At the very least, a Congress so minded might have stated in clause (ii): “liability under this clause.”

The statutory history resolves any ambiguity whether the $100/$1,000 brackets apply to recoveries under clause (i). Before 1995, clauses (i) and (ii) set statutory damages for the entire realm of TILA-regulated consumer credit transactions. Closed-end mortgages were encompassed by clause (i). See, e. g., Mayfield v. Vanguard Sav. & Loan Assn., 710 F. Supp., at 146. As a result of the addition of clause (iii), closed-end mortgages are subject to a higher floor and ceiling. But clause (iii) contains no other measure of damages. The specification of statutory damages in clause (i) of twice the finance charge continues to apply to loans secured by real property as it does to loans secured by personal property. Clause (iii) removes closed-end mortgages from clause (i)’s governance only to the extent that clause (iii) prescribes $200/$2,000 brackets in lieu of $100/$1,000.

There is scant indication that Congress meant to alter the meaning of clause (i) when it added clause (iii). Cf. Church of Scientology of Cal. v. IRS, 484 U. S. 9, 17-18 (1987) (“All in all, we think this is a case where common sense suggests, by analogy to Sir Arthur Conan Doyle’s ‘dog that didn’t bark,’ that an amendment having the effect petitioner ascribes to it would have been differently described by its sponsor, and not nearly as readily accepted by the floor manager of the bill.”). By adding clause (iii), Congress sought to provide increased recovery when a TILA violation occurs in the context of a loan secured by real property. See, e. g., H. R. Rep. No. 104-193, p. 99 (1995) (“[T]his amendment increases the statutory damages available in closed end credit transactions secured by real property or a dwelling . . . .”). But cf. post, at 75 (SCALIA, J., dissenting) (hypothesizing that far from focusing on raising damages recoverable for closed-end mortgage transactions, Congress may have “focus[ed] more intently on limiting damages” for that category of loans). “[T]here is no canon against using common sense in construing laws as saying what they obviously mean.” Roschen v. Ward, 279 U. S. 337, 339 (1929) (Holmes, J.). It would be passing strange to read the statute to cap recovery in connection with a closed-end, real-property-seeured loan at an amount substantially lower than the recovery available when a violation occurs in the context of a personal-property-secured loan or an open-end, real-property-secured loan. The text does not dictate this result; the statutory history suggests otherwise; and there is scant indication Congress meant to change the well-established meaning of clause (i).

* * *

For the reasons stated, the judgment of the Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice Breyer joins,

concurring.

If an unambiguous text describing a plausible policy decision were a sufficient basis for determining the meaning of a statute, we would have to affirm the judgment of the Court of Appeals. The ordinary reader would think that 15 U. S. C. § 1640(a)(2)(A) is a paragraph including three sub-paragraphs identified as (i), (ii), and (iii). There is nothing implausible about a scheme that uses a formula to measure the maximum recovery under (i) without designating a ceiling or floor. Thus we cannot escape this unambiguous statutory command by proclaiming that it would produce an absurd result.

We can, however, escape by using common sense. The history of the provision makes it perfectly clear that Congress did not intend its 1995 amendment adding (iii) to repeal the pre-existing interpretation of (i) as being limited by the ceiling contained in (ii). Thus, the Court unquestionably decides this case correctly. It has demonstrated that a busy Congress is fully capable of enacting a scrivener’s error into law.

In recent years the Court has suggested that we should only look at legislative history for the purpose of resolving textual ambiguities or to avoid absurdities. It would be wiser to acknowledge that it is always áppropriate to consider all available evidence of Congress’ true intent when interpreting its work product. Common sense is often more reliable than rote repetition of canons of statutory construction. It is unfortunate that wooden reliance on those canons has led to unjust results from time to time. Fortunately, today the Court has provided us with a lucid opinion that reflects the sound application of common sense.

Justice Kennedy,

with whom The Chief Justice joins,

concurring.

In the case before us, there is a respectable argument that the statutory text, 15 U. S. C. § 1640(a)(2)(A)(ii), provides unambiguous instruction in resolving the issue: The word “sub-paragraph” directs that the $1,000 cap applies to recoveries under both clause (A)(i) and clause (A)(ii), as both fall under subparagraph (A). Were we to adopt that analysis, our holdings in cases such as Lamie v. United States Trustee, 540 U. S. 526, 533-535 (2004), Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992), and United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241-242 (1989), would be applicable, absent a showing that the result made little or no sense.

The Court properly chooses not to rest its holding solely on the words of the statute. That is because of a counterargument that “subparagraph” cannot be read straightforwardly to apply to all of subparagraph (A) in light of the different recovery cap of $2,000 for recoveries under clause (A)(iii). I agree with the Court’s decision to proceed on the premise that the text is not altogether clear. That means that examination of other interpretive resources, including predecessor statutes, is necessary for a full and complete understanding of the congressional intent. This approach is fully consistent with cases in which, because the statutory provision at issue had only one plausible textual reading, we did not rely on such sources. In the instant case, the Court consults extratextual sources and, in my view, looking to these materials confirms the usual interpretation of the word “subparagraph.”

With these observations, I join the Court’s opinion.

Justice Thomas,

concurring in the judgment.

I agree with the Court that the judgment of the Court of Appeals should be reversed. I write separately, however, because I believe that it is unnecessary to rely on inferences from silence in the legislative history or the perceived anomalous results posed by an alternative interpretation to answer the question presented in this case. See ante, at 63, and n. 10. Instead, in my view, the text of 15 U. S. C. § 1640(a)(2)(A) prior to Congress’ 1995 amendment to it, the consistent interpretation that the Courts of Appeals had given to the statutory language prior to the amendment, and the text of the amendment itself make clear that Congress tacked on a provision addressing a very specific set of transactions otherwise covered by the Truth in Lending Act (TILA) but not materially altering the provisions at issue here.

If the text in this case were clear, resort to anything else would be unwarranted. See Lamie v. United States Trustee, 540 U. S. 526, 532-533 (2004). But I agree with the Court that § 1640(a)(2)(A) is ambiguous, ante, at 53, rather than unambiguous as Justice Stevens contends, ante, at 65 (concurring opinion), because on its face it is susceptible of several plausible interpretations. Congress, as the Court points out, used “ ‘subparagraph’ ” consistently in TILA, albeit not with perfect consistency, to refer to a third-level division introduced by a capital letter. See ante, at 60-62, and n. 4. This consistent usage points toward the view that “subparagraph” here refers to the whole of subdivision (A). But other textual evidence is in tension with that reading. As the Court of Appeals correctly pointed out and Justice Scalia notes, post, at 72 (dissenting opinion), if “subpara-graph” refers to the whole of subdivision (A), the limit of $100-$1,000 for liability set forth in clause (ii) is in direct conflict with the $200-$2,000 limit on liability found in clause (iii). 319 F. 3d 119, 126-127 (CA4 2003). Still other textual clues point away from the Court of Appeals’ reading. It is possible, for example, to read the $100-$1,000 limit in clause (ii) to be an exception that applies only to the liability set forth in clauses (i) and (ii), since it comes after clauses (i) and (ii) but before clause (iii). These conflicting textual indicators show that, whatever the practices suggested in the manuals relied upon by the Court, ante, at 60-61, and n. 4, § 1640(a)(2)(A) is not a model of the best practices in legislative drafting.

The statutory history of § 1640(a)(2)(A) resolves this ambiguity. Prior to the 1995 amendment, the meaning of subdivisions (A)(i) and (ii) was clear. As the Court recounts, after the 1976 amendment and prior to 1995, § 1640(a) provided for statutory damages equal to

“(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, or (ii) in the case of an individual action relating to a consumer lease ... 25 per centum of the total amount of monthly payments under the lease, except that the liability under this subparagraph shall not be. less than $100 nor greater than $1,000.” 15 U. S. C. § 1640(a) (1976 ed.).

See ante, at 55. There is no doubt that under this version of the statute the phrase “under this subparagraph” extended the liability limits to subdivision (A)(i) as well as subdivision (A)(ii). As noted above, “subparagraph” is generally used in TILA to refer to a section’s third-level subdivision introduced by a capital letter. By virtue of the phrase “under this subparagraph,” the liability extended to the whole of subdivision (A). The placement of this clause at the end of subdivision (A) further indicated that it was meant to refer to the whole of subdivision (A). The clarity of the meaning is borne out by the Courts of Appeals’ consistent application of the limit to both clauses (i) and (ii) as they stood before the 1995 amendment. Purtle v. Eldridge Auto Sales, Inc., 91 F. 3d 797, 800 (CA6 1996); Cowen v. Bank United of Tex., FSB, 70 F. 3d 937, 941 (CA7 1995); Mars v. Spartanburg Chrysler Plymouth, Inc., 713 F. 2d 65, 67, and n. 6 (CA4 1983); Dryden v. Lou Budke’s Arrow Finance Co., 661 F. 2d 1186, 1191, n. 7 (CA8 1981) (per curiam); Williams v. Public Finance Corp., 598 F. 2d 349, 359, and n. 17 (CA5 1979).

Congress’ 1995 amendment did not materially alter the text of § 1640(a)(2)(A)(i) or (ii). It removed “or” between clauses (i) and (ii) and placed it between clause (ii) and the new clause (iii). Pub. L. 104-29, §6, 109 Stat. 274. Apart from this change, it neither deleted any language from clause (i) or clause (ii) nor added any language to these clauses. The only substantive change that amendment wrought was the creation of clause (iii), which established a higher $2,000 cap on damages for a very specific set of credit transactions — closed-end credit transactions secured by real property or a dwelling — that had previously been covered by § 1640(a)(2)(A)(i) and subject to the lower $1,000 cap. Ibid. By so structuring the amendment, Congress evinced its intent to address only the creation of a different limit for a specific set of transactions.

In light of this history, as well as the text’s clear meaning prior to the 1995 amendment and the lower courts’ consistent application of the limit in clause (ii) to clause (i) prior to the 1995 amendment, the limit in clause (ii) remains best read as applying also to clause (i).

Justice Scalia,

dissenting.

The Court views this case as a dispute about the meaning of “subparagraph” in 15 U. S. C. § 1640(a)(2)(A). I think it involves more than that. For while I agree with the construction of that word adopted by the Court, see ante, at 60-62, by Justice Kennedy, see ante, at 66-67 (concurring opinion), and by Justice Thomas, see ante, at 67-68 (opinion concurring in judgment), I disagree with the conclusion that the Court believes follows. The ultimate question here is not the meaning of “subparagraph,” but the scope of the exception which contains that term. When is “liability under this subparagraph” limited by the $100/$1,000 brackets? In answering that question, I would give dispositive weight to the structure of § 1640(a)(2)(A), which indicates that the exception is part of clause (ii) and thus does not apply to clause (i).

After establishing the fact that “subparagraph” refers to a third-level subdivision within a section, denominated by a capital letter (here subparagraph (A)), see ante, at 60-62, the Court’s analysis proceeds in five steps. First, the Court presumes that this fact determines the scope of the exception. See ante, at 62. It does not. In context, the reference to “liability under this subparagraph” is indeterminate. Since it is not a freestanding limitation, but an exception to the liability imposed by clause (ii), it is quite possible to read it as saying that, in the consumer-lease cases covered by clause (ii), “the liability under this subparagraph” would be subject to the $100/$1,000 brackets. Using “subparagraph” in that way would hardly be nonsensical, since the only liability under subparagraph (A) that applies to consumer-lease cases is the amount of damages specified by clause (ii). In other words, if the exception is part of clause (ii), then “liability under this subparagraph” is actually synonymous with “liability under this clause,” cf. ibid., in the sense that either phrase would have the same effect were it to appear in clause (ii). As a result, the term “subparagraph” cannot end our inquiry.

The structure of subparagraph (A) provides the best indication of whether the exception is part of clause (ii). In simplified form, the subparagraph reads: “(i) . . . , (ii) ... , or (iii)_” Clauses (i), (ii), and (iii) are separated by commas, and an “or” appears before clause (iii). It is reasonable to conclude that the exception — which appears between “(ii)” and the comma that precedes “or (iii)” — is part of clause (ii). In fact, the Court admits in passing that the exception appears “in clause (ii).” Ibid, (emphasis added); see also ante, at 65 (Stevens, J., concurring) (referring to “the ceiling contained in (ii)” (emphasis added)). Yet the Court’s holding necessarily assumes that the exception somehow stands outside of clause (ii) — someplace where its reference to “subpar-agraph” can have a different effect than “clause” would. The Court effectively requires the exception to be either part of clauses (i) and (ii) simultaneously, or a part of subpar-agraph (A) that is not within any of the individual clauses. The legislative drafting manuals cited by the Court, see ante, at 60-61, and n. 4, reveal how unnatural such an unanchored subdivision would be. See L. Filson, The Legislative Drafter’s Desk Reference 223 (1992) (“If a section or other statutory unit contains subdivisions of any kind, it should never contain subdivisions of any other kind unless they are parts of one of those subdivisions” (emphasis added)); House Legislative Counsel’s Manual on Drafting Style, HLC No. 104-1, p. 24 (1995) (“If there is a subdivision of the text of a unit, there should not be a different kind of subdivision of that unit unless the latter is part of the 1st subdivision” (emphasis added)); Senate Office of the Legislative Counsel, Legislative Drafting Manual 10-11 (1997) (explaining how to avoid “using a cut-in followed by flush language,” that is, inserting a clause that is supposed to apply to (a)(1) and (a)(2) after (2) rather than between (a) and (a)(1)).

In its second step, the Court notes that, before 1995, the exception was generally read as applying to both clauses (i) and (ii). See ante, at 62. But the prior meaning is insufficient to reveal the meaning of the current version. As Justice Thomas points out, the placement of the exception “at the end of subdivision (A)” used to “indicate] that it was meant to refer to the whole of subdivision (A).” Ante, at 69. That inference, however, is no longer available, since Congress eliminated the “or” between clauses (i) and (ii) and added clause (iii). If the “or” were still there, it might just be possible to conceive of clauses (i) and (ii) as a sublist to which the exception attached as a whole. But one simply does not find a purportedly universal exception at the end of the second item in a three-item list.

The Court’s third step addresses clause (iii), which is not directly implicated by the facts of this case. The Court concludes that the underlying measure of damages in clause (i) (twice the finance charge) “continues to apply” to actions governed by the newly created clause (iii). Ante, at 62. That conclusion does not follow from merely reading the exception in clause (ii) to apply to clause (i), but it is necessary because, by reading “subparagraph” in the exception to have the effect of extending the exception to all of subparagraph (A), the Court has caused that exception to conflict with the higher limit in clause (iii). To remedy this, the Court proceeds (see ante, at 62-63, n. 9) to do further violence to § 1640(a)(2)(A), simply reading out its division into clauses (i), (ii), and (iii) entirely. It is not sound statutory construction to create a conflict by ignoring one feature of a statute and then to solve the problem by ignoring yet another. My construction of the exception in clause (ii) avoids the conflict altogether.

In its fourth step, the Court returns to the application of the $100/$1,000 brackets to clause (i). The Court finds “scant indication that Congress meant to alter the meaning of clause (i)” in 1995 and compares this to “ 'Sir Arthur Conan Doyle’s “dog that didn’t bark.’”” Ante, at 63 (quoting Church of Scientology of Cal. v. IRS, 484 U. S. 9, 17-18 (1987)). I hardly think it “scant indication” of intent to alter that Congress amended the text of the statute by moving the exception from the end of the list to the middle, making it impossible, without doing violence to the text, to read the exception as applying to the entire list. Needless to say, I also disagree with the Court’s reliance on things that the sponsors and floor managers of the 1995 amendment failed to say. I have often criticized the Court’s use of legislative history because it lends itself to a kind of ventriloquism. The Congressional Record or committeé reports are used to make words appear to come from Congress’s mouth which were spoken or written by others (individual Members of Congress, congressional aides, or even enterprising lobbyists). The Canon of Canine Silence that the Court invokes today introduces a reverse — and at least equally dangerous — phenomenon, under which courts may refuse to believe Congress’s own words unless they can see the lips of others moving in unison. See Morales v. Trans World Airlines, Inc., 504 U. S. 374, 385, n. 2 (1992) (“[Legislative history need not confirm the details of changes in the law effected by statutory language before we will interpret that language according to its natural meaning”).

In its fifth and final step, the Court asserts that it would be “anomalous” for liability to be “uncapped by the [$1,000] limit” when real property secures an open-end loan but capped by the $2,000 limit when it secures a closed-end loan, and that it would be “passing strange” for damages to be “substantially lower” under clause (iii) than under clause (i). Ante, at 63, and n. 10. The lack of a $1,000 limit does not, of course, make liability under clause (i) limitless. In all cases under clause (i), the damages are twice the finance charge, and the 1-year statute of limitations, 15 U. S. C. § 1640(e), naturally limits the amount of damages that can be sought.

More importantly, Congress would have expected the amounts financed (and thus the finance charges) under clause (i) to be generally much lower than those under clause (iii). In eases (like this one) where loans are not secured by real property, the amount financed can be no greater than $25,000. § 1603(3). Where loans are secured by real property, clause (iii) includes both first mortgages and second mortgages (or home equity loans), which are far more common and significantly larger than the open-end home equity lines of credit (HELOCs) that are still covered by clause (i). In 1994, 64% of home-owning households had first or second mortgages, but only 7% had HELOCs with outstanding balances. Survey Research Center, Univ. of Michigan, National Survey of Home Equity Loans 25 (Oct. 1998) (Table 1) (hereinafter National Survey). The mean first mortgage balance was $66,884; the mean second mortgage balance was $16,199; and the mean HELOC outstanding balance was $18,459. Ibid. Assuming a 10% interest rate (which would have been higher than a typical HELOC in 1994, see G. Can-ner & C. Luckett, Home Equity Lending: Evidence from Recent Surveys, 80 Fed. Res. Bull. 571, 582 (1994)), a year of finance charges on the mean HELOC would still have been less than $2,000 — which, when doubled, would still be less than two times the maximum damages under clause (iii), a disproportion no greater than what Congress has explicitly prescribed between clauses (ii) and (iii). In addition, very large outstanding balances on HELOCs are comparatively rare. In 2001, roughly 94% of them were less than the median outstanding mortgage principal of $69,227. See U. S. Census Bureau, American Housing Survey for the United States: 2001, pp. 150, 152 (Oct. 2002) (Table 3-15) (hereinafter American Housing Survey). Approximately 2% of HELOC balances were $100,000 or more (compared with approximately 32% of mortgages). See ibid. Because closed-end loans, are many times more common, and typically much larger, than open-end ones, the finance charges would generally be much higher under clause (iii) than under clause (i), providing a reason for Congress to focus more intently on limiting damages in clause (iii). As for the difference between clause (i) and the $1,000 cap in clause (ii): Consumer leases (principally car leases) are obviously a distinctive category and a special damages cap (which differs from clause (iii) as well as from clause (i)) no more demands an explanation than does the fact that damages for those leases are tied to monthly payments rather than to finance charges. As Justice Stevens acknowledges, applying the $1,000 cap to clause (ii) but not clause (i) is a “plausible policy decision.” Ante, at 65. The Court should not fight the current structure of the statute merely to vindicate the suspicion that Congress actually made — but neglected to explain clearly— a different policy decision.

As the Court noted earlier this year: “If Congress enacted into law something different from what it intended, then it should amend the statute to conform it to its intent. It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think is the preferred result.” Lamie v. United States Trustee, 540 U. S. 526, 542 (2004) (internal quotation marks and alteration omitted). I would apply the exception only to the clause with which it is associated and affirm the judgment of the Court of Appeals.

       The finance charge is determined, with certain exceptions, by “the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit.” 15 U. S. C. § 1605(a).

       The dissent adopts a similar structural argument to justify its conclusion that the $100/$1,000 brackets apply only to recoveries under clause (ii). See post, at 70-71.

       Judge Gregory noted that the phrase “under this subparagraph,” as it appears in § 1640(a)(2)(B), covering statutory damages in class, actions, “indisputably applies to all of subparagraph (B).” 319 F. 3d 119, 132 (CA4 2003). “[T]he most logical interpretation of the statute,” he concluded, “is to read the phrase ‘under this subparagraph’ as applying generally to an entire subparagraph, either (A) or (B), and to read (2)(A)(iii) as creating a specific carve-out from that general rule for real-estate transactions.” Ibid.

       These congressional drafting manuals, both postdating the 1995 TILA amendment, are consistent with earlier guides. See, e. g., Desk Reference 222 (“Federal statutes ... are always broken down successively into . . . subparagraphs (starting with subparagraph (A)), [and] clauses (starting with clause (i))-”); D. Hirsch, Drafting Federal Law § 3.8, p. 27 (2d ed. 1989) (“Paragraphs are divided into tabulated lettered subparagraphs (‘(A)’, ‘(B)’, etc.) .... Subparagraphs are divided into clauses bearing small roman numerals (‘(i)’, ‘(ii)’, ‘(iii)’, ‘(iv)’) . . . .”); R. Dickerson, The Fundamentals of Legal Drafting §8.25, p. 197 (2d ed. 1986) (“For divisions of a paragraph (called ‘subparagraphs’), use ‘(A),’ ‘(B),’ ‘(C),’ etc_When an additional designated breakdown is necessary, use ‘(i),’ ‘(ii),’ ‘(iii),’ etc.”); J. Peacock, Notes on Legislative Drafting 12 (1961) (paragraphs divided into “sub-paragraphs designated (A), (B), (C),” and subparagraphs further divided into “clauses (i), (ii), (iii)”).

         E. g., 15 U. S. C. § 1602(aa)(2)(A) (“under this subparagraph”); § 1602(aa)(2)(B) (“under subparagraph (A)”); § 1605(f)(2)(A) (“except as provided in subparagraph (B)”); § 1615(c)(1)(B) (“pursuant to subpara-graph (A)”); § 1637(c)(4)(D) (“in subparagraphs (A) and (B)”). But see § 1637a(a)(6)(C) (“subparagraph” appears not to refer to a capital-letter subdivision).

         E. g., §1637(a)(6)(B)(ii) (“described in clause (i)”); § 1637a(a)(8)(B) (“described in clauses (i) and (ii) of subparagraph (A)”); § 1640(i)(1)(B)(ii) (“described in clause (i)”).

       The five separate writings this Court has produced demonstrate that § 1640(a)(2)(A) is hardly a model of the careful drafter’s art.

       In consumer credit transactions in which a security interest is taken in the borrower’s principal dwelling, the borrower also has a right to rescission under certain circumstances. § 1635.

       The dissent’s reading, we note, hinges on an assumed alteration in Congress’ design, assertedly effected by the bare addition of “(iii)” and the transposition of “or.” See post, at 71-72, and n. 1. If Congress had not added “(iii)” when it raised the cap on recovery for closed-end mortgages, the meaning of the amended text would be beyond debate. The limitations provision would read: “except that the liability under this subpara-graph shall not be less than $100 nor greater than $1,000, or in the case of an individual action relating to a credit transaction not under an open end credit plan that is secured by real property or a dwelling, not less than $200 or greater than $2,000.”

       This reading would lead to the anomalous result of double-the-finance-charge liability, uncapped by the fixed dollar limit, under clause (i) for an open-end loan secured by real property, while liability would be capped by clause (iii) at $2,000 for a closed-end loan secured by the same real property. TILA does not in general apply to credit transactions in which the total amount financed exceeds $25,000, but this limit does not apply to loans “secured by real property or a dwelling.” 15 U. S. C. § 1603. Double-the-finance-charge liability under clause (i) for a TILA, violation in connection with an open-end, real-property-secured loan (e. g., a home equity line of credit), could far exceed the $2,000 liability cap under clause (iii) for a TILA violation in connection with a standard closed-end home mortgage.
      The dissent states that fixed mortgages are more prevalent than home equity lines of credit and that the mean home equity line of credit balance is considerably smaller than the mean first mortgage balance. Post, at 74-75. But even under the dissent’s reading, a borrower stands to collect greater statutory damages if a TILA violation occurs in connection with a home equity line of credit than if it occurs in connection with a home mortgage acquisition loan. According to figures compiled by the Consumer Bankers Association and the Federal Reserve Board, in 2004 the average new home equity line of credit was $77,526, see Consumer Bankers Assn., CBA news release, Home Equity Lines Adjust on Prime Rate Change, Nov. 10, 2004, available at http://www.cbanet.org/news/press% 20releases/home_equity/prime_rate_adjust.htm (as visited Nov. 15, 2004, and available in Clerk of Court’s case file), and about a third of extended credit lines are mostly or fully in use, see G. Canner, T. Durkin, & C. Luckett, Recent Developments in Home Equity Lending, 84 Fed. Res. Bull. 241, 247 (Apr. 1998) (30% of home equity lines of credit 75%-100% in use in 1997). Assuming, as the dissent does, a 10% annual interest rate, the annual finance charge could easily surpass $7,000, and double-the-finance-charge liability would substantially exceed the $2,000 cap prescribed for home mortgage loans. Additionally, the dissent’s observation does not address the anomaly, illustrated by the facts of this case, of providing full double-the-finance-charge liability for recoveries under clause (i), while capping recoveries under clause (iii). Nigh was awarded over $24,000 in damages for a violation involving a car loan. Had similar misconduct occurred in connection with a home mortgage, he would have received no more than $2,000 in statutory damages.

       See Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 611, n. 4 (1991) (“[Cjommon sense suggests that inquiry benefits from reviewing additional information rather than from ignoring it”); United States v. American Trucking Assns., Inc., 310 U. S. 534, 543-544 (1940) (“When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination’” (footnote omitted)); United States v. Fisher, 2 Cranch 358, 386 (1805) (Marshall, C. J.) (“Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived”). We execute our duty as judges most faithfully when we arrive at an interpretation only after “seeking] guidance from every reliable source.” A. Barak, Judicial Discretion 62 (Y. Kaufmann transl. 1989).

       See Stevens, The Shakespeare Canon of Statutory Construction, 140 U. Pa. L. Rev. 1373, 1383 (1992).

       See, e. g., Barnhart v. Sigmon Coal Co., 534 U. S. 438 (2002); United States v. James, 478 U. S. 597 (1986); United States v. Locke, 471 U. S. 84 (1985).

       In footnote 9, the Court asserts that its new reading merely requires one to pretend that “Congress had not added ‘(in)’ when it raised the cap on recovery.” That is not so — not, at least, if the Court adheres to the sound drafting principles that supposedly form the basis for its opinion. See supra, at 71. To adhere to those and also to apply both the limitation of clause (ii) and the limitation of clause (iii) to clause (i), one must “pretend” that .Congress not only had not added “(iii)” but also had eliminated “(i)” and “(ii).” Otherwise, those limits which are recited in clause (ii) would apply only to that clause.

       The things that were said about the 1995 amendment are characteristically unhelpful. Rep. McCollum said: “[T]he bill raises the statutory damages for individual actions from $1,000 to $2,000.” 141 Cong. Rec. 26576 (1995); see also id., at 26898 (remarks of Sen. Mack) (same). Two weeks later, he “clarified]” his remarks by specifying that the amendments “apply solely to loans secured by real estate.” Id., at 27703 (statement of Reps. McCollum and Gonzalez). Taken literally, these floor statements could mean that the new $2,000 limit applies either to all “individual actions” under subparagraph (A), or to all “loans secured by real estate” under clauses (i) and (iii). Neither option is consistent with the Court’s conclusion that there is a $1,000 limit under clause (i).

       The medians were, of course, lower than the means: $49,000 for first mortgages, $11,000 for second mortgages, and $15,000 for HELOCs. National Survey 25 (Table 1).

       The 1994 survey did not report on the range of amounts owed on HELOCs. In 2001, however, the Census Bureau’s Housing Survey began reporting detailed data about HELOCs — in figures presumably comparable to the 1994 data recited above, since the median outstanding balance and median interest rate for HELOCs had not dramatically changed. (The 2001 medians were $17,517 and 8%. See American Housing Survey 152, 154 (Table 3-15).)


author: Per Curiam.

text:
    CITY OF SAN DIEGO et al. v. ROE
    No. 03-1669.
    Decided December 6, 2004
   Per Curiam.

The city of San Diego (City), a petitioner here, terminated a police officer, respondent, for selling videotapes he made and for related activity. The tapes showed respondent engaging in sexually explicit acts. Respondent brought suit alleging, among other things, that the termination violated his First and Fourteenth Amendment rights to freedom of speech. The United States District Court for the Southern District of California granted the City’s motion to dismiss. The Court of Appeals for the Ninth Circuit reversed.

The petition for a writ of certiorari is granted, and the judgment of the Court of Appeals is reversed.

J — i

Respondent John Roe, a San Diego police officer, made a video showing himself stripping off a police uniform and masturbating. He sold the video on the adults-only section of eBay, the popular online auction site. His username was “Code3stud@aol.com,” a wordplay on a high priority police radio call. 356 F. 3d 1108, 1110 (CA9 2004). The uniform apparently was not the specific uniform worn by the San Diego police, but it was clearly identifiable as a police uniform. Roe also sold custom videos, as well as police equipment, including official uniforms of the San Diego Police Department (SDPD), and various other items such as men’s underwear. Roe’s eBay user profile identified him as employed in the field of law enforcement.

Roe’s supervisor, a police sergeant, discovered Roe’s activities when, while on eBay, he came across an official SDPD police uniform for sale offered by an individual with the user-name “Code3stud@aol.com.” He searched for other items Code3stud offered and discovered listings for Roe’s videos depicting the objectionable material. Recognizing Roe’s picture, the sergeant printed images of certain of Roe’s offerings and shared them with others in Roe’s chain of command, including a police captain. The captain notified the SDPD’s internal affairs department, which began an investigation. In response to a request by an undercover officer, Roe produced a custom video. It showed Roe, again in police uniform, issuing a traffic citation but revoking it after undoing the uniform and masturbating.

The investigation revealed that Roe’s conduct violated specific SDPD policies, including conduct unbecoming of an officer, outside employment, and immoral conduct. When confronted, Roe admitted to selling the videos and police paraphernalia. The SDPD ordered Roe to “cease displaying, manufacturing, distributing or selling any sexually explicit materials or engaging in any similar behaviors, via the internet, U. S. Mail, commercial vendors or distributors, or any other medium available to the public.” Id., at 1111 (internal quotation marks omitted). Although Roe removed some of the items he had offered for sale, he did not change his seller’s profile, which described the first two videos he had produced and listed their prices as well as the prices for custom videos. After discovering Roe’s failure to follow its orders, the SDPD — citing Roe for the added violation of disobedience of lawful orders — began termination proceedings. The proceedings resulted in Roe’s dismissal from the police force.

Roe brought suit in the District Court pursuant to Rev. Stat. § 1979, 42 U. S. C. § 1983, alleging that the employment termination violated his First Amendment right to free speech.* In granting the City’s motion to dismiss, the District Court decided that Roe had not demonstrated that selling official police uniforms and producing, marketing, and selling sexually explicit videos for profit qualified as expression relating to a matter of “public concern” under this Court’s decision in Connick v. Myers, 461 U. S. 138 (1983).

In reversing, the Court of Appeals held Roe’s conduct fell within the protected category of citizen commentary on matters of public concern. Central to the Court of Appeals’ conclusion was that Roe’s expression was not an internal workplace grievance, took place while he was off duty and away from his employer’s premises, and was unrelated to his employment. 356 F. 3d, at 1110, 1113-1114.

HH H-1

A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment. See, e. g., Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 605-606 (1967). On the other hand, a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public. The Court has recognized the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment. See Connick, supra; Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968). Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification “far stronger than mere speculation” in regulating it. United States v. Treasury Employees, 513 U. S. 454, 465, 475 (1995) (NTEU). We have little difficulty in concluding that the City was not barred from terminating Roe under either line of eases.

A

In concluding that Roe’s activities qualified as a matter of public concern, the Court of Appeals relied heavily on the Court’s decision in NTEU. 356 F. 3d, at 1117. In NTEU it was established that the speech was unrelated to the employment and had no effect on the mission and purpose of the employer. The question was whether the Federal Government could impose certain monetary limitations on outside earnings from speaking or writing on a class of federal employees. The Court held that, within the particular classification of employment, the Government had shown no justification for the outside salary limitations. The First Amendment right of the employees sufficed to invalidate the restrictions on the outside earnings for such activities. The Court noted that throughout history public employees who undertook to write or to speak in their spare time had made substantial contributions to literature and art, 513 U. S., at 465, and observed that none of the speech at issue “even arguably [had] any adverse impact” on the employer, ibid.

The Court of Appeals’ reliance on NTEU was seriously misplaced. Although Roe’s activities took place outside the workplace and purported to be about subjects not related to his employment, the SDPD demonstrated legitimate and substantial interests of its own that were compromised by his speech. Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker as “in the field of law enforcement,” and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute. 356 F. 3d, at 1111 (internal quotation marks omitted).

The Court of Appeals noted the City conceded Roe’s activities were “unrelated” to his employment. Id., at 1112, n. 4. In the context of the pleadings and arguments, the proper interpretation of the City’s statement is simply to underscore the obvious proposition that Roe’s speech was not a comment on the workings or functioning of the SDPD. It is quite a different question whether the speech was detrimental to the SDPD. On that score the City’s consistent position has been that the speech is contrary to its regulations and harmful to the proper functioning of the police force. The present case falls outside the protection afforded in NTEU. The authorities that instead control, and which are considered below, are this Court’s decisions in Pickering, supra, Connick, 461 U. S. 138, and the decisions which follow them.

B

To reconcile the employee’s right to engage in speech and the government employer’s right to protect its own legitimate interests in performing its mission, the Pickering Court adopted a balancing test. It requires a court evaluating restraints on a public employee’s speech to balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U. S., at 568; see also Connick, supra, at 142.

Underlying the decision in Pickering is the recognition that public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues. See 391 U. S., at 572. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.

Pickering did not hold that any and all statements by a public employee are entitled to balancing. To require Pickering balancing in every case where speech by a public employee is at issue, no matter the content of the speech, could compromise the proper functioning of government offices. See Connick, supra, at 143. This concern prompted the Court in Connick to explain a threshold inquiry (implicit in Pickering itself) that in order to merit Pickering balancing, a public employee’s speech must touch on a matter of “pub-lie concern.” 461 U. S., at 143 (internal quotation marks omitted).

In Connick, an assistant district attorney, unhappy with her supervisor’s decision to transfer her to another division, circulated an intraoffice questionnaire. The document solicited her co-workers’ views on, inter alia, office transfer policy, office morale, the need for grievance committees, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. See id., at 141.

Finding that — with the exception of the final question— the questionnaire touched not on matters of public concern but on internal workplace grievances, the Court held no Pickering balancing was required. 461 U. S., at 141. To conclude otherwise would ignore the “common-sense realization that government offices could not function if every employment decision became a constitutional matter.” Id., at 143. Connick held that a public employee’s speech is entitled to Pickering balancing only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest.” 461 U. S., at 147.

Although the boundaries of the public concern test are not well defined, Connick provides some guidance. It directs courts to examine the “content, form, and context of a given statement, as revealed by the whole record” in assessing whether an employee’s speech addresses a matter of public concern. Id., at 146-147. In addition, it notes that the standard for determining whether expression is of public concern is the same standard used to determine whether a common-law action for invasion of privacy is present. Id., at 143, n. 5. That standard is established by our decisions in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), and Time, Inc. v. Hill, 385 U. S. 374, 387-388 (1967). These cases make clear that public concern is something that is a subject of legitímate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication. The Court has also recognized that certain private remarks, such as negative comments about the President of the United States, touch on matters of public concern and should thus be subject to Pickering balancing. See Rankin v. McPherson, 483 U. S. 378 (1987).

Applying these principles to the instant case, there is no difficulty in concluding that Roe’s expression does not qualify as a matter of public concern under any view of the public concern test. He fails the threshold test and Pickering balancing does not come into play.

Connick is controlling precedent, but to show why this is not a close case it is instructive to note that even under the view expressed by the dissent in Connick from four Members of the Court, the speech here would not come within the definition of a matter of public concern. The dissent in Connick would have held that the entirety of the questionnaire circulated by the employee “discussed subjects that could reasonably be expected to be of interest to persons seeking to develop informed opinions about the manner in which ... an elected official charged with managing a vital governmental agency, discharges his responsibilities.” 461 U. S., at 163 (opinion of Brennan, J.). No similar purpose could be attributed to the employee’s speech in the present case. Roe’s activities did nothing to inform the public about any aspect of the SDPD’s functioning or operation. Nor were Roe’s activities anything like the private remarks at issue in Rankin, where one co-worker commented to another co-worker on an item of political news. Roe’s expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer’s image.

The speech in question was detrimental to the mission and functions of the employer. There is no basis for finding that it was of concern to the community as the Court’s cases have understood that term in the context of restrictions by governmental entities on the speech of their employees.

The judgment of the Court of Appeals is

Reversed.