author:
Justice Souter Justice Scalia,
      Justice Stevens,

text:
    NIXON, ATTORNEY GENERAL OF MISSOURI v. MISSOURI MUNICIPAL LEAGUE et al.
    No. 02-1238.
    Argued January 12, 2004
    Decided March 24, 2004

      Ronald Molteni, Assistant Attorney General of Missouri, argued the cause for petitioner in No. 02-1238. With him on the briefs were Jeremiah W. (Jay) Nixon, Attorney General, pro se, and James R. Layton, State Solicitor. James A. Feldman argued the cause for the federal petitioners in No. 02-1386. With him on the briefs were Solicitor General Olson, Assistant Attorney General Pate, Deputy Solicitor General Hungar, Catherine G. O’Sullivan, Andrea Dimmer, John A. Rogovin, and Richard K. Welch. Michael K. Kellogg, Geoffrey M. Klineberg, and Sean A. Lev filed briefs for Southwestern Bell Telephone, L. P., petitioner in No. 02-1405.

      David A. Strauss argued the cause for Missouri Municipal League et al., respondents in all cases. With him on the brief were James Bailer and Richard B. Geltman.

       Together with No. 02-1386, Federal Communications Commission et al. v. Missouri Municipal League et al., and No. 02-1405, Southwestern Bell Telephone, L. P, fka Southwestern Bell Telephone Co. v. Missouri Municipal League et al., also on certiorari to the same court.

       A brief of amici curiae urging reversal was filed for the United States Telecom Association et al. by Andrew G. McBride, Helgi C. Walker, Michael E. Glover, Edward H. Shakin, Michael T. McMenamin, Carrick B. Inabnett, Marc Gary, and Dorian S. Denburg.

      Briefs of amici curiae urging affirmance were filed for Congressman Rick Boucher, for the town of Abingdon, Virginia, et al., and for Educause by Steven R. Minor; for the City of Abilene, Texas, et al. by Steven A. Porter; for the Consumer Federation of America by James N. Horwood and Scott H. Strauss; for the High Tech Broadband Coalition et al. by Deborah Brand Baum; for Knology, Inc., by David O. Stewart and Thomas B. Smith; for Lincoln Electric System by Scott Gregory Knudson, Douglas L. Curry, and William F. Austin; and for the United Telecom Council by Jill M. Lyon and Brett Kilbourne.

      Briefs of amici curiae were filed for the International Municipal Lawyers Association et al. by Henry W. Underhill, Jr.; and for Sprint Corp. by David P. Murray and John G. Short.

   Justice Souter

delivered the opinion of the Court.

Section 101(a) of the Telecommunications Act of 1996, 110 Stat. 70, 47 U. S. C. § 253, authorizes preemption of state and local laws and regulations expressly or effectively “prohibiting the ability of any entity” to provide telecommunications services. The question is whether the class of entities in-eludes the State’s own subdivisions, so as to affect the power of States and localities to restrict their own (or their political inferiors’) delivery of such services. We hold it does not.

I

In 1997, the General Assembly of Missouri enacted the statute codified as §392.410(7) of the State’s Revised Statutes:

“No political subdivision of this state shall provide or offer for sale, either to the public or to a telecommunications provider, a telecommunications service or telecommunications facility used to provide a telecommunications service for which a certificate of service authority is required pursuant to this section.”

On July 8, 1998, the municipal respondents, including municipalities, municipal organizations, and municipally owned utilities, petitioned the Federal Communications Commission (FCC or Commission) for an order declaring the state statute unlawful and preempted under 47 U. S. C. § 253:

“No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” § 253(a).
“If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.” § 253(d).

After notice and comment, the FCC refused to declare the Missouri statute preempted, In re Missouri Municipal League, 16 FCC Rcd. 1157 (2001), relying on its own earlier order resolving a challenge to a comparable Texas law, In re Public Utility Comm’n of Texas, 13 FCC Rcd. 3460 (1997), as well as the affirming opinion of the United States Court of Appeals for the District of Columbia Circuit, Abilene v. FCC, 164 F. 3d 49 (1999). The agency concluded that “the term ‘any entity’ in section 253(a) . . . was not intended to include political subdivisions of the state, but rather appears to prohibit restrictions on market entry that apply to independent entities subject to state regulation.” 16 FCC Rcd., at 1162. Like the District of Columbia Circuit in Abilene, the FCC also adverted to the principle of Gregory v. Ashcroft, 501 U. S. 452 (1991), that Congress needs to be clear before it constrains traditional state authority to order its government. 16 FCC Rcd., at 1169. But at the same time the Commission rejected preemption, it also denounced the policy behind the Missouri statute, id., at 1162-1163, and the Commission’s order carried two appended statements (one by Chairman William E. Kennard and Commissioner Gloria Tristani, id., at 1172, and one by Commissioner Susan Ness, id., at 1173) to the effect that barring municipalities from providing telecommunications substantially disserved the policy behind the Telecommunications Act.

The municipal respondents appealed to the Eighth Circuit, where a panel unanimously reversed the agency disposition, 299 F. 3d 949 (2002), with the explanation that the plain-vanilla “entity,” especially when modified by “any,” manifested sufficiently clear congressional attention to governmental entities to get past Gregory. 299 F. 3d, at 953-955. The decision put the Eighth Circuit at odds with the District of Columbia Circuit’s Abilene opinion, and we granted certiorari to resolve the conflict. 539 U. S. 941 (2003). We now reverse.

II

At the outset, it is well to put aside two considerations that appear in this litigation but fall short of supporting the municipal respondents’ hopes for prevailing on their generous conception of preemption under § 253. The first is public policy, on which the respondents have at the least a respectable position, that fencing governmental entities out of the telecommunications business flouts the public interest. There are, of course, arguments on the other side, against government participation: in a business substantially regulated at the state level, regulation can turn into a public provider’s weapon against private competitors, see, e. g., Brief for Petitioner Southwestern Bell Telephone, L. P., in No. 02-1405 et al., pp. 17-18; and (if things turn out bad) government utilities that fail leave the taxpayers with the bills: Still, the Chairman of the FCC and Commissioner Tristani minced no words in saying that participation of municipally owned entities in the telecommunications business would “further the goal of the 1996 Act to bring the benefits of competition to all Americans, particularly those who live in small or rural communities in which municipally-owned utilities have great competitive potential.” 16 FCC Red., at 1172. Commissioner Ness said much the same, and a number of amicus briefs in this litigation argue the competitive advantages of letting municipalities furnish telecommunications services, drawing on the role of government operators in extending the electric power lines early in the last century. Brief for City of Abilene, Texas, et al. as Amici Curiae 14-18; Brief for Consumer Federation of America as Amicus Curiae 7. As we will try to explain, however, infra, at 133-138, it does not follow that preempting state or local barriers to governmental entry into the market would be an effective way to draw municipalities into the business, and in any event the issue here does not turn on the merits of municipal telecommunications services.

The second consideration that fails to answer the question posed in this litigation is the portion of the text that has received great emphasis. The Eighth Circuit trained its analysis on the words “any entity,” left undefined by the statute, with much weight being placed on the modifier “any.” But concentration on the writing on the page does not produce a persuasive answer here. While an “entity” can be either public or private, compare, e. g., 42 U. S. C. § 9604(k)(l) (2000 ed., Supp. I) (defining “eligible entity” as a state or local government body or its agent) with 26 U. S. C. §269B(c)(l) (defining “entity” as “any corporation, partnership, trust, association, estate, or other form of carrying on a business or activity”), there is no convention of omitting the modifiers “public and private” when both are meant to be covered. See, e. g., 42 U. S. C. § 2000d-7(a)(2) (exposing States to remedies in antidiscrimination suits comparable to those available “against any public or private entity other than a State”). Nor is coverage of public entities reliably signaled by speaking of “any” entity; “any” can and does mean different things depending upon the setting. Compare, e. g., United States v. Gonzales, 520 U. S. 1, 5 (1997) (suggesting an expansive meaning of the term “‘any other term of imprisonment’” to include state as well as federal sentences), with Raygor v. Regents of Univ. of Minn., 534 U. S. 533, 542-546 (2002) (implying a narrow interpretation of the phrase “ ‘any claim asserted’ ” so as to exclude certain claims dismissed on Eleventh Amendment grounds). To get at Congress’s understanding, what is needed is a broader frame of reference, and in this litigation it helps if we ask how Congress could have envisioned the preemption clause actually working if the FCC applied it at the municipal respondents’ urging. See, e. g., New Jersey Realty Title Ins. Co. v. Division of Tax Appeals of N. J., 338 U. S. 665, 673 (1950) (enquiring into “the practical operation and effect” of a state tax on federal bonds). We think that the strange and indeterminate results of using federal preemption to free public entities from state or local limitations is the key to understanding that Congress used “any entity” with a limited reference to any private entity when it cast the preemption net.

Ill

A

In familiar instances of regulatory preemption under the Supremacy Clause, a federal measure preempting state regulation in some precinct of economic conduct carried on by a private person or corporation simply leaves the private party free to do anything it chooses consistent with the prevailing federal law. If federal law, say, preempts state regulation of cigarette advertising, a cigarette seller is left free from advertising restrictions imposed by a State, which is left without the power to control on that matter. See, e. g., Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, 540-553 (2001). On the subject covered, state law just drops out.

But no such simple result would follow from federal preemption meant to unshackle local governments from entrepreneurial limitations. The trouble is that a local government’s capacity to enter an economic market turns not only on the effect of straightforward economic regulation below the national level (including outright bans), but on the authority and potential will of governments at the state or local level to support entry into the market. Preemption of the state advertising restriction freed a seller who otherwise had the legal authority to advertise and the money to do it if that made economic sense. But preempting a ban on government utilities would not accomplish much if the government could not point to some law authorizing it to run a utility in the first place. And preemption would make no difference to anyone if the state regulator were left with control over funding needed for any utility operation and declined to pay for it. In other words, when a government regulates itself (or the subdivision through which it acts) there is no clear distinction between the regulator and the entity regulated. Legal limits on what may be done by the government itself (including its subdivisions) will often be indistinguishable from choices that express what the government wishes to do with the authority and resources it can command. That is why preempting state or local governmental self-regulation (or regulation of political inferiors) would work so differently from preempting regulation of private players that we think it highly unlikely that Congress intended to set off on such uncertain adventures. A few hypotheticals may bring the point home.

B

Hypotheticals have to rest on some understanding of what §253 means when it describes subjects of its preemption as laws or regulations that prohibit, expressly or in effect, “the ability of any entity” to provide telecommunications. The reference to “ability” complicates things. In customary usage, we speak simply of prohibiting a natural or legal person from doing something. To speak in terms of prohibiting their ability to provide a service may mean something different: it may mean denying the entity a capacity or authority to act in the first place. But this is not clear, and it is possible that a law prohibiting the ability to provide telecommunications means a law that limits or cuts back on some preexisting authority (under a different law) to go into the telecommunications business.

If the scope of law subject to preemption under § 253 has the former, broader, meaning, consider how preemption would apply to a state statute authorizing municipalities to operate specified utilities, to provide water and electricity but nothing else. The enumeration would certainly have the effect of prohibiting a municipally owned and operated electric utility from entering the telecommunications business (as Congress clearly meant private electric companies to be able to do, see S. Rep. No. 103-367, p. 55 (1994)), and its implicit prohibition would thus be open to FCC preemption. But what if the FCC did preempt the restriction? The municipality would be free of the statute, but freedom is not authority, and in the absence of some further, authorizing legislation the municipality would still be powerless to enter the telecommunications business. There is, after all, no argument that the Telecommunications Act of 1996 is itself a source of federal authority granting municipalities local power that state law does not.

Now assume that § 253 has the narrower construction (preempting only laws that restrict authority derived from a different legal source). Consider a State with plenary authority itself, under its constitution, to operate any variety of utility. Assume that its statutes authorized a state-run utility to deliver electric and water services, but drew the line at telecommunications. The restrictive element of that limited authorization would run afoul of § 253 as respondents would construe it. But if, owing to preemption, the state operating utility authority were suddenly free to provide telecommunications and its administrators were raring to enter this new field, where would the necessary capital come from? Surely there is no contention that the Telecommunications Act of 1996 by its own force entails a state agency’s entitlement to unappropriated funds from the state treasury, or to the exercise of state bonding authority.

Or take the application of § 253 preemption to municipalities empowered by state law to furnish services generally, but forbidden by a special statute to exercise that power for the purpose of providing telecommunications services. If the special statute were preempted, a municipality in that State would have a real option to enter the telecommunications business if its own legislative arm so chose and funded the venture. But in a State next door where municipalities lacked such general authority, a local authority would not be able to, and the result would be a national crazy quilt. We will presumably get a crazy quilt, of coruse, as a consequence of state and local political choices arrived at in the absence of any preemption under §253, but the crazy quilt of this hypothetical would result not from free political choices but from the fortuitous interaction of a federal preemption law with the forms of municipal authorization law.

Finally, consider the result if a State that previously authorized municipalities to operate a number of utilities including telecommunications changed its law by narrowing the range of authorization. Assume that a State once authorized municipalities to furnish water, electric, and communications services, but sometime after the passage of §253 narrowed the authorization so as to leave municipalities authorized to enter only the water business. The repealing statute would have a prohibitory effect on the prior ability to deliver telecommunications service and would be subject to preemption. But that would mean that a State that once chose to provide broad municipal authority could not reverse course. A State next door, however, starting with a legal system devoid of any authorization for municipal utility operation, would at the least be free to change its own course by authorizing its municipalities to venture forth. The result, in other words, would be the federal creation of a one-way ratchet. A State or municipality could give the power, but it could not take it away later. Private counterparts could come and go from the market at will, for after any federal preemption they would have a free choice to compete or not to compete in telecommunications; governmental providers could never leave (or, at least, could not leave by a forthright choice to change policy), for the law expressing the government’s decision to get out would be preempted.

The municipal respondents’ answer to the one-way ratchet, and indeed to a host of the incongruities that would follow from preempting governmental restriction on the exercise of its own power, is to rely on § 253(b), which insulates certain state actions taken “on a competitively neutral basis.” Respondents contend, that a State or municipality would be able to make a competitively neutral change of mind to leave the telecommunications market after deciding earlier to enter it or authorize entry. Tr. of Oral Arg. 32-33.

But we think this is not much of an answer. The FCC has understood § 253(b) neutrality to require a statute or regulation affecting all types of utilities in like fashion, as a law removing only governmental entities from telecommunications could not be. See, e.g., In re Federal-State Joint Board on Universal Service, 15 FCC Red. 15168, 15175-15178, ¶¶ 19-24 (2000) (declaratory ruling). An even more fundamental weakness in respondents’ answer is shown in briefs filed by amici City of Abilene and Consumer Federation of America. We have no reason to doubt them when they explain how highly unlikely it is that a state decision to withdraw would be “neutral” in any sense of the word. There is every reason to expect just the contrary, that legislative choices in this arena would reflect the intent behind the intense lobbying directed to those choices, manifestly intended to impede, not enhance, competition. See, e.g., Chen, Legal Process and Political Economy of Telecommunications Reform, 97 Colum. L. Rev. 835, 866-868 (1997). After all, the notion that the legislative process addressing governmental utility authority is susceptible to capture by competition-averse private utilities is fully consistent with (and one reason for) the FCC’s position that statutes like Missouri’s disserve the policy objects of the Telecommunications Act of 1996. Given the unlikely application of § 253(b) to state or local choices driven by policy, not business failure, the fair conclusion is that § 253(a), if read respondents’ way, would allow governments to move solely toward authorizing telecommunications operation, with no alternative to reverse course deliberately later on.

In sum, §253 would not work like a normal preemptive statute if it applied to a governmental unit. It would often accomplish nothing, it would treat States differently depending on the formal structures of their laws authorizing municipalities to function, and it would hold out no promise of a national consistency. We think it farfetched that Congress meant § 253 to start down such a road in the absence of any clearer signal than the phrase “ability of any entity.” See, e. g., United States v. American Trucking Assns., Inc., 310 U. S. 534, 543 (1940) (Court will not construe a statute in a manner that leads to absurd or futile results).

C

Justice Stevens contends that in our use of the hypothetical examples to illustrate the implausibility of the municipal respondents’ reading of §253, we read the statute in a way that produces anomalous results unnecessarily, whereas a simpler interpretation carrying fewer unhappy consequences is available. The dissent emphasizes the word “ability” in the phrase “prohibit or has the effect of prohibiting the ability of any entity” to furnish telecommunications. With its focus on this word, the dissent concludes that “§ 253 prohibits States from withdrawing municipalities’ preexisting authority to enter the telecommunications business, but does not command that States affirmatively grant either that authority or the means with which to carry it out.” Post, at 145. Thus, if a State leaves an earlier grant of authority on the books while limiting it with a legislative ban on telecommunications, the new statute would be preempted, and presumably preemption would also defeat a State’s attempted withdrawal of municipalities’ authority by repealing the preexisting authorization itself.

But on the very next page, Justice Stevens allows (in the course of disagreeing about the one-way ratchet) that “[a] State may withdraw comprehensive authorization in favor of enumerating specific municipal powers . . . .” Post, at 146. It turns out, in other words, that withdrawals of preexisting authority are not (or not inevitably, at any rate) subject to preemption. The dissent goes on to clarify that it means to distinguish between withdrawals of authority that are competitively neutral in the sense of being couched in general terms (and therefore not properly the subject of preemption), and those in which the repealing law expressly targets telecommunications (and therefore properly preempted). “[T]he one thing a State may not do,” the dissent explains, “is enact a statute or regulation specifically aimed at preventing municipalities or other entities from providing telecommunications services.” Ibid. But the practical implication of that interpretation is to read out of § 253 the words “or ha[s] the effect of prohibiting,” by which Congress signaled its willingness to preempt laws that produce the unwanted effect, even if they do not advertise their prohibitory agenda on their faces. Even if §253 permitted such a formalistic distinction between implicit and explicit repeals of authority, the result would be incoherence of policy; whether the issue is viewed through the lens of preventing anticom-petitive action or the lens of state autonomy from federal interference, there is no justification for preempting only those laws that self-consciously interfere with the delivery of telecommunications services. In short, instead of supplying a more straightforward interpretation of §253, the dissent ends up reading it in a way that disregards its plain language and entails a policy consequence that Congress could not possibly have intended.

IV

The municipal respondents’ position holds sufficient promise of futility and uncertainty to keep us from accepting it, but a complementary principle would bring us to the same conclusion even on the assumption that preemption could operate straightforwardly to provide local choice, as in some instances it might. Preemption would, for example, leave a municipality with a genuine choice to enter the telecommunications business when state law provided general authority and a newly unfettered municipality wished to fund the effort. But the liberating preemption would come only by interposing federal authority between a State and its municipal subdivisions, which our precedents teach, “are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion.” Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 607-608 (1991) (internal quotation marks, citations, and alterations omitted); Columbus v. Ours Garage & Wrecker Service, Inc., 536 U. S. 424, 433 (2002). Hence the need to invoke our working assumption that federal legislation threatening to trench on the States’ arrangements for conducting their own governments should be treated with great skepticism, and read in a way that preserves a State’s chosen disposition of its own power, in the absence of the plain statement Gregory requires. What we have said already is enough to show that § 253(a) is hardly forthright enough to pass Gregory: “ability of any entity” is not limited to one reading, and neither statutory structure nor legislative history points unequivocally to a commitment by Congress to treat governmental telecommunications providers on par with private firms. The want of any “unmistakably clear” statement to that effect, 501 U. S., at 460, would be fatal to respondents’ reading.

The judgment of the Court of Appeals for the Eighth Circuit is, accordingly, reversed.

It is so ordered.

Justice Scalia,

with whom Justice Thomas joins,

concurring in the judgment.

I agree with much of the Court’s analysis in Parts II and III of its opinion, which demonstrates that reading “any entity” in 47 U. S. C. § 253(a) to include political subdivisions of States would have several unhappy consequences. I do not think, however, that the avoidance of unhappy consequences is adequate basis for interpreting a text. Cf. ante, at 140 (“The municipal respondents’ position holds sufficient promise of futility and uncertainty to keep us from accepting it”). I would instead reverse the Court of Appeals on the ground discussed in Part IV of the Court’s opinion: Section 253(a) simply does not provide the clear statement which would be required by Gregory v. Ashcroft, 501 U. S. 452 (1991), for a statute to limit the power of States to restrict the delivery of telecommunications services by their political subdivisions.

I would not address the additional question whether the statute affects the “power of . . . localities to restrict then-own (or their political inferiors’) delivery” of telecommunications services, ante, at 129 (emphasis added), an issue considered and apparently answered negatively by the Court. That question is neither presented by this litigation nor contained within the question on which we granted certiorari.

Justice Stevens,

dissenting.

In the Telecommunications Act of 1996 (1996 Act), Congress created “a new telecommunications regime designed to foster competition in local telephone markets.” Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, 638 (2002). Reasonable minds have differed as to whether municipalities’ participation in telecommunications markets serves or disserves the statute’s procompetitive goals. On the one hand, some have argued that municipally owned utilities enjoy unfair competitive advantages that will deter entry by private firms and impair the normal development of healthy, competitive markets. On the other hand, members of the Federal Communications Commission (FCC), the regulatory agency charged with implementation of the 1996 Act, have taken the view that municipal entry “would further the goal of the 1996 Act to bring the benefits of competition to all Americans, particularly those who live in small or rural communities in which municipally-owned utilities have great competitive potential.” The answer to the question presented in these cases does not, of course, turn on which side has the better view in this policy debate. It turns on whether Congress itself intended to take sides when it passed the 1996 Act.

In §253 of the Communications Act of 1934, as added by § 101 of the 1996 Act, Congress provided that “[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service,” unless the State or local law is “competitively neutral” and “necessary to . . . protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.” 47 U. S. C. §§ 253(a), (b). It is common ground among the parties that Congress intended to include utilities in the category of “entities” protected by § 253. See, e. g., Reply Brief for Federal Petitioners in No. 02-1238 et ah, p. 16 (“Congress clearly did intend to preempt state laws that closed the telecommunications market, including those that closed the market to electric or other utilities”). The legislative history of §253 confirms the point: Congress clearly meant for § 253 to pre-empt “explicit prohibitions on entry by a utility into telecommunications.” S. Rep. No. 104-230, p. 127 (1996).

But while petitioners acknowledge the unmistakable clarity of Congress’ intent to protect utilities’ ability to enter local telephone markets, they contend that Congress’ intent to protect the subset of utilities that are owned and operated by municipalities is somehow less than clear. The assertion that Congress could have used the term “any entity” to include utilities generally, but not municipally owned utilities, must rest on one of two assumptions: Either Congress was unaware that such utilities exist, or it deliberately ignored their existence when drafting §253. Both propositions are manifestly implausible, given the sheer number of public utilities in the United States. Indeed, elsewhere in the 1996 Act, Congress narrowed the definition of the word “utility,” as used in the Pole Attachments Act, 47 U. S. C. § 224, to exclude utilities “owned by . . . any State,” including its political subdivisions — a clear indication that Congress was aware that many utilities are in fact owned by States and their political subdivisions. §§ 224(a)(1), (a)(3). Moreover, the question of municipal participation in local telephone markets was clearly brought to Congress’ attention. In hearings on a predecessor bill, Congress heard from a representative of the American Public Power Association who described public utilities’ unique potential to promote competition, particularly in small cities, towns, and rural communities underserved by private companies. Hearings on S. 1822 before the Senate Committee on Commerce, Science, and Transportation, 103d Cong., 2d Sess., 351-360 (1994) (statement of William J. Ray, General Manager, Glasgow Electric Plant Board). In short, there is every reason to suppose that Congress meant precisely what it said: No State or local law shall prohibit or have the effect of prohibiting the ability of any entity, public or private, from entering the telecommunications market.

The question that remains is whether reading the statute to give effect to Congress’ intent necessarily will produce the absurd results that the Court suggests. Ante, at 134-138. “As in all cases[,] our task is to interpret the words of [the statute] in light of the purposes Congress sought- to serve.” Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 608 (1979). Before nullifying Congress’ evident purpose in an effort to avoid hypothetical absurd results, I would first decide whether the statute can reasonably be read so as to avoid such absurdities, without casting aside congressional intent.

The Court begins its analysis by asking us to imagine how § 253 might apply to “a state statute authorizing municipalities to operate specified utilities, to provide water and electricity but nothing else,” or to a State’s failure to provide the necessary capital to a state-run utility “raring” to enter the telecommunications market. Ante, at 135. Certainly one might plausibly interpret §253, as the Court does, to forbid States’ refusals to provide broader authorization or to provide necessary capital as impermissible prohibitions on entry. And as the Court observes, such an interpretation would undeniably produce absurd results; it would leave covered entities in a kind of legal limbo, armed with a federal-law freedom to enter the market but lacking the state-law power to do so. But we need not — and in my opinion, should not — interpret § 253 in this fashion. We should instead read the statute’s reference to state and local laws that “prohibit or have the effect of prohibiting the ability of any entity,” § 253(a), to enter the telecommunications business to embody an implicit understanding that the only “entities” covered by § 253 are entities otherwise able to enter the business — i. e., entities both authorized to provide telecommunications services and capable of providing such services without the State’s direct assistance. In other words, §253 prohibits States from withdrawing municipalities’ pre-existing authority to enter the telecommunications business, but does not command that States affirmatively grant either that authority or the means with which to carry it out.

Of course, the Court asserts that still other absurd results would follow from application of §253 pre-emption to state laws that withdraw a municipality’s pre-existing authority to enter the telecommunications business. But these results are, on closer examination, perhaps not so absurd after all. The Court first contends that reading §253 in this manner will produce a “national crazy quilt” of public telecommunications authority, where the possibility of municipal participation in the telecommunications market turns on the scope of the authority each State has already granted to its subdivisions. Ante, at 136. But as the- Court acknowledges, permitting States such as Missouri to prohibit municipalities from providing telecommunications services hardly will help the cause of national consistency. Ibid. That the “crazy quilt” the Court describes is the product of political choices made by Congress rather than state legislatures, see ibid., renders it no more absurd than the “crazy quilt” that will result from leaving the matter of municipal entry entirely to individual States’ discretion.

The Court also contends that applying §253 pre-emption to bar withdrawal of authority to enter the telecommunications market will result in “the federal creation of a one-way ratchet”: “A State or municipality could give the power, but it could not take it away later.” Ante, at 137. But nothing in § 253 prohibits States from scaling back municipalities’ authority in a general way. A State may withdraw comprehensive authorization in favor of enumerating specific municipal powers, or even abolish municipalities altogether. Such general withdrawals of authority may very well “have the effect of prohibiting” municipalities’ ability to enter the telecommunications market, see ante, at 139, just as enforcement of corporate governance and tax laws might “have the effect of prohibiting” other entities’ ability to enter. § 253(a). But § 253 clearly does not pre-empt every state law that “has the effect” of restraining entry. It pre-empts only those that constitute nonneutral restraints on entry. § 253(b). A general redefinition of municipal authority no more constitutes a prohibited nonneutral restraint on entry than enforcement of other laws of general applicability that, practically speaking, may make it more difficult for certain entities to enter the telecommunications business.

As I read the statute, the one thing a State may not do is enact a statute or regulation specifically aimed at preventing municipalities or other entities from providing telecommunications services. This prohibition would certainly apply to a law like Missouri’s, which “advertised] [its] prohibitory agenda on [its] fac[e].” Ante, at 139. But it would also apply to a law that accomplished a similar result by other means — for example, a law that permitted only private telecommunications carriers to receive federal universal service support or access to unbundled network elements. As the Court notes, there is little reason to think that legislation that targets municipalities’ ability to provide telecommunications services is “ ‘neutral’ in any sense of the word,” or that it is designed to do anything other than impede competition, rather than enhance it. Ante, at 138. To the extent that reading § 253 to forbid such protectionist legislation creates a “one-way ratchet,” it is one perfectly consistent with the goal of promoting competition in the telecommunications market, while otherwise preserving States’ ability to define the scope of authority held by their political subdivisions.

The Court’s concern about hypothetical absurd results is particularly inappropriate because the pre-emptive effect of § 253 is not automatic, but requires the FCC’s intervention. § 253(d). Rather than assume that the FCC will apply the statute improperly, and rather than stretch our imaginations to identify possible problems in cases not before the Court, we should confront the problem presented by the cases at hand and endorse the most reasonable interpretation of the statute that both fulfills Congress’ purpose and avoids unnecessary infringement on state prerogatives. I would accordingly affirm the judgment of the Court of Appeals.

       The provision is subject to some exceptions not pertinent here, and as originally enacted the law was set to expire in 2002. The assembly later pushed the expiration date ahead to 2007. Mo. Rev. Stat. §392.410(7) (Supp. 2003).

       The line between “political subdivision” and “independent entity” the FCC located by reference to state law. By its terms, the FCC order declined to preempt the statute as it applied to municipally owned utilities not chartered as independent corporations, on the theory that under controlling Missouri law, they were subdivisions of the State. 16 FCC Rcd., at 1158. The Commission implied an opposite view, however, regarding the status, under § 253, of municipal utilities that had been separately chartered. Ibid. The question whether §253 preempts state and municipal regulation of these types of entities is not before us, and we express no view as to its proper resolution.

       The hypothetical city, in other words, is “general law” rather than “home rule.” See City of Lockhart v. United States, 460 U. S. 125, 127 (1983) (In contrast to a general law city, a home rule city has state constitutional authority to do whatever is not specifically prohibited by state legislation).

       The Court granted certiorari solely to consider whether municipalities are subsumed under the rubric “any entity,” and our holding reaches only that question. There is, nevertheless, a logical affinity between the question presented and the hypothetical situation in which a State were to decide, directly or effectively, against its own delivery of telecommunications services.

       See, e. g., Note, Municipal Entry into the Broadband Cable Market: Recognizing the Inequities Inherent in Allowing Publicly Owned Cable Systems to Compete Directly against Private Providers, 95 Nw. U. L. Rev. 1099 (2001).

        In re Missouri Municipal League, 16 FCC Rcd. 1157, 1172 (2001). Three Commissioners wrote separately to underscore this point. Ibid. (statement of Chairman Kennard and Commissioner Tristani) (describing municipally owned utilities as a “promising class of local telecommunications competitors”); id., at 1173 (statement of Commissioner Ness) (noting that “municipal utilities can serve as key players in the effort to bring competition to communities across the country, especially those in rural areas”).

       For example, as of 2001, there were more than 2,000 publicly owned electric utilities in the United States, compared to just over 230 investor-owned utilities. Am. Public Power Assn., 2003.Annual Directory & Statistical Report 13.

       This testimony prompted the Senate manager of the bill to remark: “I think the rural electric associations, the municipalities, and the investor-owned utilities, are all positioned to make a real contribution in this telecommunications area, and I do think it is important that we make sure we have got the right language to accomplish what we wish accomplished here.” Hearings, at 379 (statement of Sen. Lott).

       The operative distinction for §253 purposes is thus not between implicit and explicit repeals of authority. See ante, at 139-140. It is, rather, the distinction between laws that generally redefine the scope of municipal authority and laws that specifically target municipal authority to enter the telecommunications business, whether by direct prohibition or indirect barriers to entry.

       The goal of striking a balance between promoting competition and preserving States’ general regulatory authority surely supplies a sufficient justification for “preempting only those laws that self-consciously interfere with the delivery of telecommunications services,” rather than all generally applicable laws that might have the practical effect of restraining entry. Ante, at 140. But even if, as the Court asserts, there were “no justification” for drawing the line at laws that “self-consciously” interfere with entities’ ability to provide telecommunications services, ibid., that surely would not be a valid reason for refusing to allow the FCC to preempt those that do create such an interference. We generally do not refuse to give effect to a statute simply because it “might have gone farther than it did.” Roschen v. Ward, 279 U. S. 337, 339 (1929).


source: Caselaw Access Project

author: Chief Justice Rehnquist Justice Breyer,

license: Public Domain

text:
    UNITED STATES v. FLORES-MONTANO
    No. 02-1794.
    Argued February 25, 2004
    Decided March 30, 2004

      Lisa S. Blatt argued the cause for the United States. With her on the briefs were Solicitor General Olson, Assistant Attorney General Wray, Deputy Solicitor General Dreeben, Daniel S. Goodman, and Alfonso Robles.

      Steven F. Hubachek, by appointment of the Court, 540 U. S. 1043, argued the cause for respondent. With him on the brief were Vincent J. Brunkow and John C. Lemon.

         Daniel J. Popeo and Richard A Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal.

        John Wesley Hall, Jr., David M. Siegel, and Lisa B. Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Customs officials seized 37 kilograms — a little more than 81 pounds — of marijuana from respondent Manuel Flores-Montano’s gas tank at the international border. The Court of Appeals for the Ninth Circuit, relying on an earlier decision by a divided panel of that court, United States v. Molina-Tarazon, 279 F. 3d 709 (2002), held that the Fourth Amendment forbade the fuel tank search absent reasonable suspicion. No. 02-50306, 2003 WL 22410705 (Mar. 14,2003). We hold that the search in question did not require reasonable suspicion.

Respondent, driving a 1987 Ford Taurus station wagon, attempted to enter the United States at the Otay Mesa Port of Entry in southern California. A customs inspector conducted an inspection of the station wagon, and requested respondent to leave the vehicle. The vehicle was then taken to a secondary inspection station.

At the secondary station, a second customs inspector inspected the gas tank by tapping it, and noted that the tank sounded solid. Subsequently, the inspector requested a mechanic under contract with Customs to come to the border station to remove the tank. Within 20 to 30 minutes, the mechanic arrived. He raised the car on a hydraulic lift, loosened the straps and unscrewed the bolts holding the gas tank to the undercarriage of the vehicle, and then disconnected some hoses and electrical connections. After the gas tank was removed, the inspector hammered off bondo (a putty-like hardening substance that is used to seal openings) from the top of the gas tank. The inspector opened an access plate underneath the bondo and found 37 kilograms of marijuana bricks. The process took 15 to 25 minutes.

A grand jury for the Southern District of California indicted respondent on one count of unlawfully importing marijuana, in violation of 21 U. S. C. § 952, and one count of possession of marijuana with intent to distribute, in violation of § 841(a)(1). Relying on Molina-Tarazon, respondent filed a motion to suppress the marijuana recovered from the gas tank. In Molina-Tarazon, a divided panel of the Court of Appeals held, inter alia, that removal of a gas tank requires reasonable suspicion in order to be consistent with the Fourth Amendment. 279 F. 3d, at 717.

The Government advised the District Court that it was not relying on reasonable suspicion as a basis for denying respondent’s suppression motion, but that it believed Molina-Tarazon was wrongly decided. The District Court, relying on Molina-Tarazon, held that reasonable suspicion was required to justify the search and, accordingly, granted respondent’s motion to suppress. The Court of Appeals, citing Molina-Tarazon, summarily affirmed the District Court’s judgment. No. 02-50306, 2003 WL 22410705 (CA9, Mar. 14, 2003). We granted certiorari, 540 U. S. 945 (2003), and now reverse.

In Molina-Tarazon, the Court of Appeals decided a case presenting similar facts to the one at bar. It asked “whether [the removal and dismantling of the defendant’s fuel tank] is a ‘routine’ border search for which no suspicion whatsoever is required.” 279 F. 3d, at 711. The Court of Appeals stated that “[i]n order to conduct a search that goes beyond the routine, an inspector must have reasonable suspicion,” and the “critical factor” in determining whether a search is “routine” is the “degree of intrusiveness.” Id., at 712-713.

The Court of Appeals seized on language from our opinion in United States v. Montoya de Hernandez, 473 U. S. 531 (1985), in which we used the word “routine” as a descriptive term in discussing border searches. Id., at 538 (“Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant”); id., at 541, n. 4 (“Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches”). The Court of Appeals took the term “routine,” fashioned a new balancing test, and extended it to searches of vehicles. But the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person — dignity and privacy interests of the person being searched — simply do not carry over to vehicles. Complex balancing tests to determine what is a “routine” search of a vehicle, as opposed to a more “intrusive” search of a person, have no place in border searches of vehicles.

The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U. S. 606, 616 (1977). Congress, since the beginning of our Government, “has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.” Montoya de Hernandez, supra, at 537 (citing Ramsey, supra, at 616-617 (citing Act of July 31, 1789, ch. 5, 1 Stat. 29)). The modern statute that authorized the search in this case, 46 Stat. 747, 19 U. S. C. § 1581(a), derived from a statute passed by the First Congress, the Act of Aug. 4, 1790, ch. 35, §31, 1 Stat. 164, see United States v. Villamonte-Marquez, 462 U. S. 579, 584 (1983), and reflects the “impressive historical pedigree” of the Government’s power and interest, id., at 585. It is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity.

That interest in protecting the borders is illustrated in this case by the evidence that smugglers frequently attempt to penetrate our borders with contraband secreted in their automobiles’ fuel tank. Over the past 5lA fiscal years, there have been 18,788 vehicle drug seizures at the southern California ports of entry. App. to Pet. for Cert. 12a. Of those 18,788, gas tank drug seizures have accounted for 4,619 of the vehicle drug seizures, or approximately 25%. Ibid. In addition, instances of persons smuggled in and around gas tank compartments are discovered at the ports of entry of San Ysidro and Otay Mesa at a rate averaging 1 approximately every 10 days. Id., at 16a.

Respondent asserts two main arguments with respect to his Fourth Amendment interests. First, he urges that he has a privacy interest in his fuel tank, and that the suspicion-less disassembly of his tank is an invasion of his privacy. But on many occasions, we have noted that the expectation of privacy is less at the border than it is in the interior. Montoya de Hernandez, supra, at 538. We have long recognized that automobiles seeking entry into this country may be searched. See Carroll v. United States, 267 U. S. 132, 154 (1925) (“Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in”). It is difficult to imagine how the search of a gas tank, which should be solely a repository for fuel, could be more of an invasion of privacy than the search of the automobile’s passenger compartment.

Second, respondent argues that the Fourth Amendment “protects property as well as privacy,” Soldal v. Cook County, 506 U. S. 56, 62 (1992), and that the disassembly and reassembly of his gas tank is a significant deprivation of his property interest because it may damage the vehicle. He does not, and on the record cannot, truly contend that the procedure of removal, disassembly, and reassembly of the fuel tank in this case or any other has resulted in serious damage to, or destruction of, the property. According to the Government, for example, in fiscal year 2003, 348 gas tank searches conducted along the southern border were negative (1 e., no contraband was found), the gas tanks were reassembled, and the vehicles continued their entry into the United States without incident. Brief for United States 31.

Respondent cites not a single accident involving the vehicle or motorist in the many thousands of gas tank disassem-blies that have occurred at the border. A gas tank search involves a brief procedure that can be reversed without damaging the safety or operation of the vehicle. If damage to a vehicle were to. occur, the motorist might be entitled to recovery. See, e. g., 31 U. S. C. § 3723; 19 U. S. C. § 1630. While the interference with a motorist’s possessory interest is not insignificant when the Government removes, disassembles, and reassembles his gas tank, it nevertheless is justified by the Government’s paramount interest in protecting the border.

For the reasons stated, we conclude that the Government’s authority to conduct suspieionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle’s fuel tank. While it may be true that some searches of property are so destructive as to require a different result, this was not one of them. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Breyer,

concurring.

I join the Court’s opinion in full. I also note that Customs keeps track of the border searches its agents conduct, including the reasons for the searches. Tr. of Oral Arg. 53-54. This administrative process should help minimize concerns that gas tank searches might be undertaken in an abusive manner.

       Section 1581(a) provides:
      “Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.”

       Respondent's reliance on cases involving exploratory drilling searches is misplaced. See United States v. Rivas, 157 F. 3d 364 (CA5 1998) (drilling into body of trailer required reasonable suspicion); United States v. Robles, 45 F. 3d 1 (CA1 1995) (drilling into machine part required reasonable suspicion); United States v. Carreon, 872 F. 2d 1436 (CA10 1989) (drilling into camper required reasonable suspicion). We have no reason at this time to pass on the reasonableness of drilling, but simply note the obvious factual difference that this case involves the procedure of removal, disassembly, and reassembly of a fuel tank, rather than potentially destructive drilling. We again leave open the question “whether, and under what circumstances, a border search might be deemed ‘unreasonable’ because of the particularly offensive manner in which it is carried out.” United States v. Ramsey, 431 U. S. 606, 618, n. 13 (1977).

       Respondent also argued that he has some sort of Fourth Amendment right not to be subject to delay at the international border and that the need for the use of specialized labor, as well as the hour actual delay here and the potential for even greater delay for reassembly are an invasion of that right. Respondent points to no cases indicating the Fourth Amendment shields entrants from inconvenience or delay at the international border.
      The procedure in this case took about an hour (including the wait for the mechanic). At oral argument, the Government advised us that, depending on the type of car, a search involving the disassembly and reassembly of a gas tank may take one to two hours. Tr. of Oral Arg. 10. We think it clear that delays of one to two hours at international borders are to be expected.


author: Justice Kennedy

text:
    NATIONAL ARCHIVES AND RECORDS ADMINISTRATION v. FAVISH et al.
    No. 02-954.
    Argued December 3, 2003
    Decided March 30, 2004

      Patricia A. Millett argued the cause for petitioner. With her on the briefs were Solicitor General Olson, Assistant Attorney General Keisler, Deputy Solicitor General Kneed-ler, Leonard Schaitman, and Robert M. Loeb. James Hamilton argued the cause for Anthony et al., respondents under this Court’s Rule 12.6 in support of petitioner. With him on the briefs was Robert V. Zener.

      Respondent Allan J. Favish argued the cause and filed a brief pro se.

       Briefs of amici curiae urging affirmance were filed for the Reporters Committee for Freedom of the Press et al. by Dearme E. Maynard, Elaine J. Goldenberg, Lucy A. Dalglish, Richard M. Schmidt, Jr., Bruce W. Sanford, David B. Smallman, and Alice Neff Lucan; and for the Silha Center for the Study of Media Ethics and Law by Jane E. Kirtley.

        Karen B. Tripp filed a brief for the Association of American Physicians & Surgeons, Inc., et al. as amici curiae.

   Justice Kennedy

delivered the opinion of the Court.

This case requires us to interpret the Freedom of Information Act (FOIA), 5 U. S. C. § 552. FOIA does not apply if the requested data fall within one or more exemptions. Exemption 7(C) excuses from disclosure “records or information compiled for law enforcement purposes” if their production “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” § 552(b)(7)(C).

In Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749 (1989), we considered the scope of Exemption 7(C) and held that release of the document at issue would be a prohibited invasion of the personal privacy of the person to whom the document referred. The principal document involved was the criminal record, or rap sheet, of the person who himself objected to the disclosure. Here, the information pertains to an official investigation into the circumstances surrounding an apparent suicide. The initial question is whether the exemption extends to the decedent’s family when the family objects to the release of photographs showing the condition of the body at the scene of death. If we find the decedent’s family does have a personal privacy interest recognized by the statute, we must then consider whether that privacy claim is outweighed by the public interest in disclosure.

I

Vincent Foster, Jr., deputy counsel to President Clinton, was found dead in Fort Marcy Park, located just outside Washington, D. C. The United States Park Police conducted the initial investigation and took color photographs of the death scene, including 10 pictures of Foster’s body. The investigation concluded that Foster committed suicide by shooting himself with a revolver. Subsequent investigations by the Federal Bureau of Investigation, committees of the Senate and the House of Representatives, and independent counsels Robert Fiske and Kenneth Starr reached the same conclusion. Despite the unanimous finding of these five investigations, a citizen interested in the matter, Allan Favish, remained skeptical. Favish is now a respondent in this proceeding. In an earlier proceeding, Favish was the associate counsel for Accuracy in Media (AIM), which applied under FOIA for Foster’s death-scene photographs. After the National Park Service, which then maintained custody of the pictures, resisted disclosure, Favish filed suit on behalf of AIM in the District Court for the District of Columbia to compel production. The District Court granted summary judgment against AIM. The Court of Appeals for the District of Columbia unanimously affirmed. Accuracy in Media, Inc. v. National Park Serv., 194 F. 3d 120 (1999).

Still convinced that the Government’s investigations were “ ‘grossly incomplete and untrustworthy,’ ” App. to Pet. for Cert. 57a, Favish filed the present FOIA request in his own name, seeking, among other things, 11 pictures, 1 showing Foster’s eyeglasses and 10 depicting various parts of Foster’s body. Like the National Park Service, the Office of Independent Counsel (OIC) refused the request under Exemption 7(C).

Again, Favish sued to compel production, this time in the United States District Court for the Central District of California. As a preliminary matter, the District Court held that the decision of the Court of Appeals for the District of Columbia did not have collateral estoppel effect on Favish’s California lawsuit brought in his personal capacity. . On the merits, the court granted partial summary judgment to OIC. With the exception of the picture showing Foster’s eyeglasses, the court upheld OIC’s claim of exemption. Relying on the so-called Vaughn index provided by the Government — a narrative description of the withheld photos, see Vaughn v. Rosen, 484 F. 2d 820 (CADC 1973) — the court held, first, that Foster’s surviving family members enjoy personal privacy interests that could be infringed by disclosure of the photographs. App. to Pet. for Cert. 56a. It then found, with respect to the asserted public interest, that “[Favish] has not sufficiently explained how disclosure of these photographs will advance his investigation into Foster’s death.” Id., at 59a. Any purported public interest in disclosure, moreover, “is lessened because of the exhaustive investigation that has already occurred regarding Foster’s death.” Id., at 58a. Balancing the competing interests, the court concluded that “the privacy interests of the Foster family members outweigh the public interest in disclosure.” Id., at 59a.

On the first appeal to the Court of Appeals for the Ninth Circuit, the majority reversed and remanded, over Judge Pregerson’s dissent. 217 F. 3d 1168 (2000). In the majority’s view, although evidence or knowledge of misfeasance by the investigative agency may “enhancfe] the urgency of the [FOIA] request,” “[n]othing in the statutory command conditions [disclosure] on the requesting party showing that he has knowledge of misfeasance by the agency.” Id., at 1172-1173. Furthermore, because “Favish, in fact, tenders evidence and argument which, if believed, would justify his doubts,” the FOIA request “is in complete conformity with the statutory purpose that the public know what its government is up to.” Ibid. This was so, the Court of Appeals held, even in the face of five previous investigations into Foster’s death: “Nothing in the statutory command shields an agency from disclosing its records because other agencies have engaged in similar investigations. . . . [I]t is a feature of famous cases that they generate controversy, suspicion, and the desire to second guess the authorities.” Id., at 1173. As the majority read the statute, there is “a right to look, a right to speculate and argue again, a right of public scrutiny.” Ibid.

The Court of Appeals, however, agreed with the District Court that the exemption recognizes the Foster family members’ right to personal privacy. Although the pictures contain no information about Foster’s relatives, the statute’s protection “extends to the memory of the deceased held by those tied closely to the deceased by blood or love.” Ibid. Nevertheless, the majority held that the District Court erred in balancing the relevant interests based only on the Vaughn index. While “the [DJistrict [CJourt has discretion to decide a FOIA case on the basis of affidavits, and affidavits are in some cases sufficient,” “the agency affidavits are insufficiently detailed.” 217 F. 3d, at 1174. It remanded the case to the District Court to examine the photos in camera and, “consistent with [the Court of Appeals’] opinion,” “balance the effect of their release on the privacy of the Foster family against the public benefit to be obtained by their release.” Ibid.

On remand, the District Court ordered release of the following five photographs:

“• The photograph identified as ‘3 — VF’s [Vincent Foster’s] body looking down from top of berm’ must be released, as the photograph is not so explicit as to overcome the public interest.
“• The photograph entitled ‘5 — VF’s body — focusing on Rt. side of shoulder/arm’ is again of such a nature as to be discoverable in that it is not focused in such a manner as to unnecessarily impact the privacy interests of the family.
“• The photograph entitled 1 — Right hand showing gun & thumb in guard’ is discoverable as it may be probative of the public’s right to know.
“• The photograph entitled ‘4 — VF’s body focusing on right side and arm’ is discoverable.
“• The photograph entitled ‘5 — VF’s body — focus on top of head thru heavy foliage’ is discoverable.” App. to Pet. for Cert. 45a.

On the second appeal to the same panel, the majority, again over Judge Pregerson’s dissent, affirmed in part. 37 Fed. Appx. 863 (2002). Without providing any explanation, it upheld the release of all the pictures, “except that photo 3 — VF’s body looking down from top of berm is to be withheld.” Id., at 864.

We granted OIC’s petition for a writ of certiorari to resolve a conflict in the Courts of Appeals over the proper interpretation of Exemption 7(C). 538 U. S. 1012 (2003). The only documents at issue in this case are the four photographs the Court of Appeals ordered released in its 2002 unpublished opinion. We reverse.

The OIC terminated its operations on March 23, 2004, see 28 U. S. C. § 596(b)(2), and transferred all records — including the photographs that are the subject of Favish’s FOIA request — to the National Archives and Records Administration, see §594(k)(l). The National Archives and Records Administration has been substituted as petitioner in the caption of this case. As all the actions relevant to our disposition of the case took place before March 23,2004, we continue to refer to petitioner as OIC in this opinion.

II

It is common ground among the parties that the death-scene photographs in OIC’s possession are records or information “compiled for law enforcement purposes” as that phrase is used in Exemption 7(C). App. 87. This leads to the question whether disclosure of the four photographs “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

Favish contends the family has no personal privacy interest covered by Exemption 7(C). His argument rests on the proposition that the information is only about the decedent, not his family. FOIA’s right to personal privacy, in his view, means only “the right to control information about oneself.” Brief for Respondent Favish 4. He quotes from our decision in Reporters Committee, where, in holding that a person has a privacy interest sufficient to prevent disclosure of his own rap sheet, we said “the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person.” 489 U. S., at 763. This means, Favish says, that the individual who is the subject of the information is the only one with a privacy interest.

We disagree. The right to personal privacy is not confined, as Favish argues, to the “right to control information about oneself.”. Brief for Respondent Favish 4. Favish misreads the quoted sentence in Reporters Committee and adopts too narrow an interpretation of the case’s holding. To say that the concept of personal privacy must “encompass” the individual’s control of information about himself does not mean it cannot encompass other personal privacy interests as well. Reporters Committee had no occasion to consider whether individuals whose personal data are not contained in the requested materials also have a recognized privacy interest under Exemption 7(C).

Reporters Committee explained, however, that the concept of personal privacy under Exemption 7(C) is not some limited or “cramped notion” of that idea. 489 U. S., at 763. Records or information are not to be released under FOIA if disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U. S. C. § 552(b)(7). This provision is in marked contrast to the language in Exemption 6, pertaining to “personnel and medical files,” where withholding is required only if disclosure “would constitute a clearly unwarranted invasion of personal privacy.” § 552(b)(6). The adverb “clearly,” found in Exemption 6, is not used in Exemption 7(C). In addition, “whereas Exemption 6 refers to disclosures that ‘would constitute’ an invasion of privacy, Exemption 7(C) encompasses any disclosure that ‘could reasonably be expected to constitute’ such an invasion.” Reporters Committee, 489 U. S., at 756. Exemption 7(C)’s comparative breadth is no mere accident in drafting. We know Congress gave, special consideration to the language in Exemption 7(C) because it was the result of specific amendments to an existing statute. See id., at 756, n. 9, 777, n. 22.

Law enforcement documents obtained by Government investigators often contain information about persons interviewed as witnesses or initial suspects but whose link to the official inquiry may be the result of mere happenstance. There is special reason, therefore, to give protection to this intimate personal data, to which the public does not have a general right of access in the ordinary course. Id., at 773. In this class of cases where the subject of the documents “is a private citizen,” “the privacy interest ... is at its apex.” Id., at 780.

Certain amici in support of Favish rely on the modifier “personal” before the word “privacy” to bolster their view that the family has no privacy interest in the pictures of the decedent. This, too, misapprehends the family’s position and the scope of protection the exemption provides. The family does not invoke Exemption 7(C) on behalf of Vincent Foster in its capacity as his next friend for fear that the pictures may reveal private information about Foster to the detriment of his own posthumous reputation or some other interest personal to him. If that were the case, a different set of considerations would control. Foster’s relatives instead invoke their own right and interest to personal privacy. They seek to be shielded by the exemption to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility, not for the sake of the deceased.

In a sworn declaration filed with the District Court, Foster’s sister, Sheila Foster Anthony, stated that the family had been harassed by, and deluged with requests from, “[pjolitical and commercial opportunists” who sought to profit from Foster’s suicide. App. 94. In particular, she was “horrified and devastated by [a] photograph [already] leaked to the press.” Ibid. “[E]very time I see it,” Sheila Foster Anthony wrote, “I have nightmares and heart-pounding insomnia as I visualize how he must have spent his last few minutes and seconds of his life.” Ibid. She opposed the disclosure of the disputed pictures because “I fear that the release of [additional] photographs certainly would set off another round of intense scrutiny by the media. Undoubtedly, the photographs would be placed on the Internet for world consumption. Once again my family would be the focus of conceivably unsavory and distasteful media coverage.” Id., at 95. “[Releasing any photographs,” Sheila Foster Anthony continued, “would constitute a painful unwarranted invasion of my privacy, my mother’s privacy, my sister’s privacy, and the privacy of Lisa Foster Moody (Vince’s widow), her three children, and other members of the Foster family.” Id., at 93.

As we shall explain below, we think it proper to conclude from Congress’ use of the term “personal privacy” that it intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and in our cultural traditions. This does not mean that the family is in the same position as the individual who is the subject of the disclosure. We have little difficulty, however, in finding in our case law and traditions the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased family member’s remains for public purposes.

Burial rites or their counterparts have been respected in almost all civilizations from time immemorial. See generally 26 Encyclopaedia Britannica 851 (15th ed. 1985) (noting that “[t]he ritual burial of the dead” has been practiced “from the very dawn of human culture and ... in most parts of the world”); 5 Encyclopedia of Religion 450 (1987) (“[F]uneral rites .. . are the conscious cultural forms of one of our most ancient, universal, and unconscious impulses”). They are a sign of the respect a society shows for the deceased and for the surviving family members. The power of Sophocles’ story in Antigone maintains its hold to this day because of the universal acceptance of the heroine’s right to insist on respect for the body of her brother. See Antigone of Sophocles, 8 Harvard Classics: Nine Greek Dramas 255 (C. Eliot ed. 1909). The outrage at seeing the bodies of American soldiers mutilated and dragged through the streets is but a modern instance of the same understanding of the interests decent people have for those whom they have lost. Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.

In addition this well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased has long been recognized at common law. Indeed, this right to privacy has much deeper roots in the common law than the rap sheets held to be protected from disclosure in Reporters Committee. An early decision by the New York Court of Appeals is typical:

“It is the right of privacy of the living which it is sought to enforce here. That right may in some cases be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living, and not that of the dead, which is recognized. A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased.” Schuyler v. Curtis, 147 N. Y. 434, 447, 42 N. E. 22, 25 (1895).

See also Reid v. Pierce County, 136 Wash. 2d 195, 212, 961 P. 2d 333, 342 (1998) (“[T]he immediate relatives of a decedent have a protectable privacy interest in the autopsy records of the decedent”); McCambridge v. Little Rock, 298 Ark. 219, 231-232, 766 S. W. 2d 909, 915 (1989) (recognizing the privacy interest of the murder victim’s mother in crime seene photographs); Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S. E. 194 (1930) (per curiam) (recognizing parents’ right of privacy in photographs of their deceased child’s body); Restatement (Second) of Torts § 652D, p. 387 (1977) (recognizing that publication of a photograph of a deceased infant — a hypothetical “child with two heads” — over the objection of the mother would result in an “invasion]” of the mother’s “privacy”).

We can assume Congress legislated against this background of law, scholarship, and history when it enacted FOIA and when it amended Exemption 7(C) to extend its terms. Those enactments were also against the background of the Attorney General’s consistent interpretation of the exemption to protect “members of the family of the person to whom the information pertains,” U. S. Dept. of Justice, Attorney General’s Memorandum on the Public Information Section of the Administrative Procedure Act 36 (June 1967), and to require consideration of the privacy of “relatives or descendants” and the “possible adverse effects [from disclosure] upon [the individual] or his family,” U. S. Dept. of Justice Memorandum on the 1974 Amendments to the Freedom of Information Act 9-10 (Feb. 1975), reprinted in House Committee on Government Operations and Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974 (Pub. L. 93-502), Source Book, App. 5, pp. 519-520, 94th Cong., 1st Sess. (Joint Comm. Print 1975).

We have observed that the statutory privacy right protected by Exemption 7(C) goes beyond the common law and the Constitution. See Reporters Committee, 489 U. S., at 762, n. 13 (contrasting the scope of the privacy protection under FOIA with the analogous protection under the common law and the Constitution); see also Marzen v. Department of Health and Human Servs., 825 F. 2d 1148, 1152 (CA7 1987) (“[T]he privacy interest protected under FOIA extends beyond the common law”). It would be anomalous to hold in the instant case that the statute provides even less protection than does the common law.

The statutory scheme must be understood, moreover, in light of the consequences that would follow were we to adopt Favish’s position. As a general rule, withholding information under FOIA cannot be predicated on the identity of the requester. See Reporters Committee, supra, at 771. We are advised by the Government that child molesters, rapists, murderers, and other violent criminals often make FOIA requests for autopsies, photographs, and records of their deceased victims. Our holding ensures that the privacy interests of surviving family members would allow the Government to deny these gruesome requests in appropriate cases. We find it inconceivable that Congress could have intended a definition of “personal privacy” so narrow that it would allow convicted felons to obtain these materials without limitations at the expense of surviving family members’ personal privacy.

For these reasons, in agreement with the Courts of Appeals for both the District of Columbia and the Ninth Circuit, see Accuracy in Media v. National Park Serv., 194 F. 3d 120 (CADC 1999); 217 F. 3d 1168 (CA9 2000), we hold that FOIA recognizes surviving family members’ right to personal privacy with respect to their close relative’s death-scene images. Our holding is consistent with the unanimous view of the Courts of Appeals and other lower courts that have addressed the question. See, e. g., New York Times Co. v. National Aeronautics and Space Admin., 782 F. Supp. 628, 631, 632 (CADC 1991) (sustaining a privacy claim under the narrower Exemption 6 with respect to an audiotape of the Space Shuttle Challenger astronauts’ last words, because “[ejxposure to the voice of a beloved family member immediately prior to that family member’s death . . . would cause the Challenger families pain” and inflict “a disruption [to] their peace of mind every time a portion of the tape is played within their hearing”), on remand from 920 F. 2d 1002 (CADC 1990); Katz v. National Archives and Records Admin., 862 F. Supp. 476, 485 (DC 1994) (exempting from FOIA disclosure autopsy X-rays and photographs of President Kennedy on the ground that their release would cause “additional anguish” to the surviving family), aff’d on other grounds, 68 F. 3d 1438 (CADC 1995); Lesar v. Department of Justice, 636 F. 2d 472, 487 (CADC 1980) (recognizing, with respect to the assassination of Dr. Martin Luther .King, Jr., his survivors’ privacy interests in avoiding “annoyance or harassment”). Neither the deceased’s former status as a public official, nor the fact that other pictures had been made public, detracts from the weighty privacy interests involved.

Ill

Our ruling that the personal privacy protected by Exemption 7(C) extends to family members who object to the disclosure of graphic details surrounding their relative’s death does not end the case. Although this privacy interest is within the terms of the exemption, the statute directs nondisclosure only where the information “could reasonably be expected to constitute an unwarranted invasion” of the family’s personal privacy. The term “unwarranted” requires us to balance the family’s privacy interest against the public interest in disclosure. See Reporters Committee, 489 U. S., at 762.

FOIA is often explained as a means for citizens to know “‘what their Government is up to.’” Id., at 773. This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy. The statement confirms that, as a general rule, when documents are within FOIA’s disclosure provisions, citizens should not be required to explain why they seek the information. A person requesting the information needs no preconceived idea of the uses the data might serve. The information belongs to citizens to do with as they choose. Furthermore, as we have noted, the disclosure does not depend on the identity of the requester. As a general rule, if the information is subject to disclosure, it belongs to all.

When disclosure touches upon certain areas defined in the exemptions, however, the statute recognizes limitations that compete with the general interest in disclosure, and that, in appropriate cases, can overcome it. In the case of Exemption 7(C), the statute requires us to protect, in the proper degree, the personal privacy of citizens against the uncontrolled release of information compiled through the power of the State. The statutory direction that the information not be released if the invasion of personal privacy could reasonably be expected to be unwarranted requires the courts to balance the competing interests in privacy and disclosure. To effect this balance and to give practical meaning to the exemption, the usual rule that the citizen need not offer a reason for requesting the information must be inapplicable.

Where the privacy concerns addressed by Exemption 7(C) are present, the exemption requires the person requesting the information to establish a sufficient reason for the disclosure. First, the citizen must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake. Second, the citizen must show the information is likely to advance that interest. Otherwise, the invasion of privacy is unwarranted.

We do not in this single decision attempt to define the reasons that will suffice, or the necessary nexus between the requested information and the asserted public interest that would be advanced by disclosure. On the other hand, there must be some stability with respect to both the specific category of personal privacy interests protected by the statute and the specific category of public interests that could outweigh the privacy claim. Otherwise, courts will be left to balance in an ad hoc manner with little or no real guidance. Id., at 776. In the case of photographic images and other data pertaining to an individual who died under mysterious circumstances, the justification most likely to satisfy Exemption 7(C)’s public interest requirement is that the information is necessary to show the investigative agency or other responsible officials acted negligently or otherwise improperly in the performance of their duties.

The Court of Appeals was correct to rule that the family has a privacy interest protected by the statute and to recognize as significant the asserted public interest in uncovering deficiencies or misfeasance in the Government’s investigations into Foster’s death. It erred, however, in defining the showing Favish must make to substantiate his public interest claim. It stated that “[n]othing in the statutory command conditions [disclosure] on the requesting party showing that he has knowledge of misfeasance by the agency” and that “[n]othing in the statutory command shields an agency from disclosing its records because other agencies have engaged in similar investigations.” 217 F. 3d, at 1172-1173. The court went on to hold that, because Favish has “tendered] evidence and argument which, if believed, would justify his doubts,” the FOIA request “is in complete conformity with the statutory purpose that the public know what its government is up to.” Id., at 1173. This was insufficient. The Court of Appeals required no particular showing that any evidence points with credibility to some actual misfeasance or other impropriety. The court’s holding leaves Exemption 7(C) with little force or content. By requiring courts to engage in a state of suspended disbelief with regard to even the most incredible allegations, the panel transformed Exemption 7(C) into nothing more than a rule of pleading. The invasion of privacy under its rationale would be extensive. It must be remembered that once there is disclosure, the information belongs to the general public. There is no mechanism under FOIA for a protective order allowing only the requester to see whether the information bears out his theory, or for proscribing its general dissemination.

We hold that, where there is a privacy interest protected by Exemption 7(C) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred. In Department of State v. Ray, 502 U. S. 164 (1991), we held there is a presumption of legitimacy accorded to the Government’s official conduct. Id., at 178-179. The presumption perhaps is less a rule of evidence than a general working principle. However the rule is characterized, where the presumption is applicable, clear evidence is usually required to displace it. Cf. United States v. Armstrong, 517 U. S. 456, 464 (1996) (“‘[I]n the absence of clear evidence to the contrary, courts presume that [Government agents] have properly discharged their official duties’”); United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926) (“The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties”). Given FOIA’s prodisclosure purpose, however, the less stringent standard we adopt today is more faithful to the statutory scheme. Only when the FOIA requester has produced evidence sufficient to satisfy this standard will there exist a counterweight on the FOIA scale for the court to balance against the cognizable privacy interests in the requested records. Allegations of government misconduct are “‘easy to allege and hard to disprove,’” Crawford-El v. Britton, 523 U. S. 574, 585 (1998), so courts must insist on a meaningful evidentiary showing. It would be quite extraordinary to say we must ignore the fact that five different inquiries into the Foster matter reached the same conclusion. As we have noted, the balancing exercise in some other case might require us to make a somewhat more precise determination regarding the significance of the public interest and the historical importance of the events in question. We might need to consider the nexus required between the requested documents and the purported public interest served by disclosure. We need not do so here, however. Favish has not produced any evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred to put the balance into play.

The Court of Appeals erred in its interpretation of Exemption 7(C). The District Court’s first order in March 1998— before its decision was set aside by the Court of Appeals and superseded by the District Court’s own order on remand— followed the correct approach. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to grant OIC’s motion for summary judgment with respect to the four photographs in dispute.

It is so ordered.