source: Caselaw Access Project

author: Mr. Justice Douglas

license: Public Domain

text:
    AIR POLLUTION VARIANCE BOARD OF COLORADO v. WESTERN ALFALFA CORP.
    No. 73-690.
    Argued April 25, 1974
    Decided May 20, 1974
    Douglas, J., delivered the opinion for a:unanimous Court.

      William Tucker, Assistant Attorney General of Colorado,, argued the cause for petitioner. With him- on the brief were John P. Moore, Attorney General, John E: Bush, Deputy Attoméy General, and John Brown, Special.. Assistant Attorney General.

      Donald D, Cawelti argued the cause for respondent. With him on the brief was George D. Blackwood,'Jr.

      Edmund W. Kitch argued the cause for the United .States as amicus curiae urging reversal. Qn the- brief were. Solicitor General Bork, Assistant Attorney General Johnson, Harriet S. Shapiro, and Edmund B. Clark

      Briefs of a7ff,ici curiae urging reversal were filed by William J. Brown, Attorney General, and Richard P. Fahey and John Eufinger, Assistant Attorneys General, for the the State of Ohio; and by the Attorneys General and other officials for'34 States as follows: Evette J.- Younger, Attorney General of California, Robert H. O'Brien, Assistant Attorney General, and Nicholas C. Yost, C. Foster Knight, and Daniel J. Taaffe, Deputy Attorneys General; Gary K. Nelson, Attorney General of Arizona; Jim Guy Tucker, Attorney General of Arkansas; Robert K. Killian, Attorney General of Connecticut; Arthur K. Bolton, Attorney General of Georgia; George Pai, Attorney- General of Hawaii; W. Anthony Park, Attorney General of Idaho; William' J. Scott, Attorney General of Illinois; Richard C. Turner, Attorney General of Iowa, and Clifford Peterson, Assistant . Attoijiey General; Vem Miller, Attorney General'of Kansas; Ed W. Hancock, Attorney General of Kentucky; William J. Guste, Jr., ■Attorney General of Louisiana; Jon A. Lund, Attorney General of Maine; Francis B. Burch, Attorney General of Maryland, and Martin A. Ferris III, Special-Assistant Attorney General; Robert H. Quinn, Attorney General of Massachusetts.'; Frank J. Kelley, Attorney General of Michigan; Warren R. Spannaus, Attorney General of Minnesota;- Clarence A. H. Meyer, Attorney General of Nebraska; Robert List, Attorney General of Nevada; Warren B. Rudman, Attorney General of New Hampshire, and Donald W. Stever, Assistant Attorney General; William F. Hyland, Attorney General of New Jersey; David L. Norvell, Attorney General of New Mexico; Louis J. Lefkowitz, Attorney General of New York;- Robert Morgan, Attorney General of North Carolina; AUen I.-Olson, Attorney General of North Dakota; Larry Derryberry, Attorney General of Oklahoma.; Lee Johnson,. Attorney Genefal of Oregon; Richard J. Israel, .Attorney General of Rhode Island; Daniel R. McLeod, Attorney General of South Carolina; Ker'mit A. Sande, Attorney. General of South Dakota, David M. .Pack, Attorney General of Tennessee; John L. Hill,. Attorney General.of Texas; Chauncey H. Browning, Jr., Attorney General of West Virginia; Robert W. Warren, Attorney General of Wisconsin, and Th&ódove L. Priebe-, Assistant Attorney General. ‘

   Mr. Justice Douglas

delivered the opinion of the Court.

An inspector of a division of the. Colorado Department of Health entered the outdoor premises of respondent without its knowledge or consent. It was daylight and the inspector entered the yard to make a Ringelmann test of plumes of smoke being emitted from' respondent’s chimneys. Since that time Colorado has. adopted a requirement for a seareh warrant for. violations of air quality standards. At the time of the instant inspection the state law required nó warrant and none was sought. Indeed, the. inspector entered no part of respondent’s plant to make the inspection.

A federal Act under the administration of the 'Environmental Protection Agency (EPA) sets certain air quality . standards, 81 Stat. 485, 42 U. S. C. § 1857 et seg. The States have the primary responsibility to assure the maintenance of air. quality standards, 42 U. S. C. § 1857c-2 (a). Yet if the EPA has approved'or promulgated “an applicable implementation” plan, a State may not adopt Or enforce a “less stringent” one, 42 U. S. C. §4857d-1. - There is no conflict between a federal standard and state. action, the sole question presented being whether Colorado has violated federal constitutional procedures in making the inspection in the manner described..

Respondent requested a hearing before Colorado’s Air Pollution Variance Board. The Board held a hearing and found that respondent’s, emissions were in violation of the state Act. While the test challenged here was made on June 4, 1969, the Board after noting that Colorado’s Health Department had been in conference with respondent “in regard to its air pollution violations since September, 1967,” after approving the readings made by the field inspector on the day in question, and after holding that tests submitted in rebuttal by respondent were not acceptable, denied a variance and entered a ceasé-and-desist order. Respondent sought review in the District Court for Weld County which set aside the Board’s decision. The Colorado Court of Appeals affirmed, 610 P. 2d 907; and the Supreme Court denied certiorari.

The petition for certiorari which we granted, 414 U. S. 1166, raised three questions, presenting in differing postures questions under the Fourth Amendment, made applicable to the . States by the Fourteenth. Mapp v. Ohio, 367 U. S. 643.

The main, thrust of the opinion of the Court of Appeals is directed at the Fourth Amendment problem. It held that, under Camara v. Municipal Court, 387 U. S. 523, and See v. City of Seattle, 387 U. S. 541, the act of conducting the tests on the premises of respondent without either a warrant or .the cóñsent’of anyone from respondent constituted an unreasonable search within the meaning of the Fourth Amendment. We adhere to Camara and See btit we think they are not applicable here. The field inspector' did not enter the plant or offices.- - He was not inspecting stacks, boilers; scrubbers, flues, grates, or furnaces; nor was his inspection related to respondent’s files or papers. He had sighted what anyone in the city who was near the plant could see in the sky — plumes of smoke. The Court in Hester v. United States, 265 U. S. 57, 59, speaking through Mr. Justice Holmes, refused to extend the Fourth Amendment to sights seen in “the . open fields.” The field inspector was on respondent’s property but we are not advised that he was on premises from which the public was excluded. Under the Noise Control Act of 1972, 86 Stat. 1234, 42 U. S. C. § 4901 et.seq. (1970 ed., Supp. II), an inspector may enter a railroad right-of-way to determine whether noise standards are being violated. The .invasion of privacy in either that case or the present one, if it can be said to exist, is abstract and theoretical. The EPA regm lation for conducting an opacity test requires the inspector to stand at a distance equivalent to approximately two stack heights away but not more than & quarter of a mile from the base of the stack with the sun to his back from a vantage point perpendicular to the plume; and he must take at least 25 readings, recording the data at 15-to 30-second intervals. Depending upon the layout of the-plant, the inspector may operate within or without the premises but in either case he is well within the “open fields” exception to-the Fourth Amendment'approved.in Hester.

The Court of Appeals went on to say that since respondent was not aware that the inspector had been on the premises until the cease-and-desist notice, the hearing it received “lacked the fundamental elements of due process of law-, since.the secret nature of the investigation foreclosed Western from putting on any rebuttal .evidence.”

Whether the Court referred to Colorado “due process” or ■ Fourteenth Amendmept “due process” is not clear. If it is the former, the question is a matter of state law beyond our purview. Since we are unsure of the grounds of that ruling we intimate no opinion on that issue. But on our remand we leave open that.and any other, questions that may be lurking' in the case.

Reversed and remanded.

       This test is prescribed by Colo. Rev. Stat. Ann. § 66-29-5 (Supp. 1967). It requires a'trained inspector to stand _iií a position where he' has an unobstructed view of the smoke plume, observe the smoke, and .rate it according to the opacity scale of the Ringelmann chart..- The person using the- chart matches the color and density of the sinoke • plume with • the numbered example on the chart. The Ringelmann test is generally sanctioned for use in measuring air pollution. See cases collected in Portland v. Fry Roofing Co., 3 Ore. App. 352, 355-358, 472 P. 2d 826, 827-829.

       Colo. Rev. Stat. Ann. § 66-29-8 (2) (d) (Supp. 1969).

       The Air Pollution Variance Board, after the Division of Administration; Colorado Department of Health, had issued a cease- .and-desist order; received a request from respondent for a hearing which was granted and held September 11,1969.

       EPA studies indicate that tests of stacks are expensive and may . require 300 man-hours of skilled work. 39 Fed. Reg. 9309. And see Schulze; The Economics of Environmental Quality Measurement, 23 J. Air Poll Control Assn. 671. (1973); 40 CFR § 60.85, Method 9.

       510 P. 2d, at 909.

       In the District Court’s opinion it is said that one challenge to the hearing before the Variance Board "was “whether or not due • process of law ánd equal protection of -the law contrary to the 14th Amendment of the Constitution of the United States and Section 25, Article 2 of the Constitution of the State of Colorado was denied” by the Board. App. 136.

       See California v. Krivda, 409 U. S. 33; Department of Mental Hygiene v. Kirchner, 380 U. S. 194; Minnesota v. National Tea Co., 309 U. S. 551,


text:
    April 1, 1974
    No. 72-1704.
    Pruitt et al. v. South Gwinnett Venture et al.
   C. A. 5th Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Coiirt.


text:
    No. 73-1188.
    Wohlgemuth, Secretary, Department of Public Welfare of Pennsylvania, et al. v. Williams et al.
   Appeal from D. C. W. D. Pa. Motion of appellees for leave to proceed in forma pauperis granted. Judgment affirmed.


text:
    No. 73-985.
    Wood v . Atkinson.
   Appeal from Sup.,

Ct. Ga. dismissed for want of substantial federal question.


text:
    No. 73-1218.
    Pfeifer et al. v. Board of Education of Upper Sandusky Exempted Village School District.
   Appeal from Ct. App. Ohio, Wyandot County, dismissed for want of substantial federal question.


text:
    No. 73-1252.
    National Union of Hospital & Nursing Home Employees, AFL-CIO, RWDSU, Local 1199-W. Va., et al. v. Bluefield Sanitarium, Inc.
   Appeal from Sup. Ct. Va. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as á petition for writ of certiorari, certiorari denied.


text:
    No. 73-5943.
    Caruthers v. California.
   Appeal from Ct. App. Cal., 1st App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken ás a petition for writ of certiorari,- certiorari denied.


text:
    No. 73-6022.
    Diggs v. Ross et al.
   Appeal from Ct. App. D. C. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken.as a petition for writ of certiorari, certiorari denied.


text:
    No. A-875 (73-6430)
    Bekeny v. United States.
   Application for stay of execution and enforcement of judgment of the United States Court of Appeals-for the Second Circuit, presented to Mr. Justice White, and by him referred to the Court, denied.


text:
    No. A-881.
    Sapere v. United States.
   Application for- stay of execution and enforcement of judgment of the United States Court of Appeals for the Second Circuit, presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    No. A-882.
    Doe (Dyman) et al. v. United States.
   Application for stay of execution and enforcement of judgment of the United States Court of Appeals for the Second Circuit, presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    No. D-20.
    In re Disbarment of Levin.
   It haying been reported to -the Court that Robert Bernard Levin, of New York City, New York, has been disbarred from the practice of- láw in all of the courts of the State of New York, and this Court by order of November. 19, 1973 [414 U. S. 1037], having suspended the said Robert Bernard Levin from the practice of law in this Court and directed that a rule issue requiring him to show-cause why he sho’uld hot be disbarred;

And it appearing that the said rule was duly issued and served upon the respondent, and that the time within which to file a return has expired;

It is ordered that the said Robert Bernard Levin be, and he is hereby, disbarred from the practice of law in this Court* and that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court.


text:
    No. 36, Orig.
    Texas v. Louisiana.
   Motion of the United States for leave to amend complaint granted. [For earlier orders herein, see, e. g., 414 U. S. 1107.]


text:
    No. 72-1554.
    Super Tire Engineering Co. et al. v. McCorkle et al.
   C. A. 3d Cir. [Certiorari granted, 414 U. S. 817.] Motion of petitioners foi leave to file supplemental brief after argument granted.


text:
    No. 73-375.
    Otte, Trustee in Bankruptcy v. United States et al.
   C. A. 2d Cir. [Certiorari granted, 414 U. S. 1156.] Motion of respondent city of New York for divided argument granted.


text:
    No. 73-582.
    City of Pittsburgh v. Alco Parking Corp. et al.
   Sup. Ct. Pa. [Certiorari granted, 414 U. S. 1127.] Motion of Council for Private Enterprise et al. for leave to file a brief as amici curiae granted.


text:
    No. 73-696.
    No. 73-830.
    Emporium Capwell Co. v. Western Addition Community Organization et al.; and National Labor Relations Board v. Western Addition Community Organization et al.
   C. A. D. C. Cir. [Certiorari granted, 415 U. S. 912.] Motion of Department Store Employees Union for leave to file a brief as amicus curiae granted.


text:
    No. 73-6363.
    Walden et al. v. United States.
   Motion for leave to file petition for writ of habeas corpus and other relief denied.


text:
    No. 73-6214.
    White v. United States.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 72-5866.
    Beebe v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-826.
    King v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-927.
    White v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-936.
    Hon Keung Kung v. District Director, Immigration and Naturalization Service.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-958.
    Universal Underwriters Insurance Co. v. Griffin.
   Sup. Ct. La. Certiorari denied.


text:
    No. 73-965.
    Moran Shipping Co. et al. v. Blanco.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-1026.
    Illinois v. Nunn.
   Sup. Ct. Ill. Certiorari denied,


text:
    No. 73-1035.
    Pitcher et vir v. Iberia Parish School Board.
   Ct. App. La., 3d Cir. Certiorari denied.


text:
    No. 73-1100.
    Burden v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-1101.
    Sheet Metal Workers’ International Assn., Local No. 17, AFL-CIO v. National Labor Relations Board et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-1112.
    Acuna et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 73-1124.
    Norman v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-1127.
    Victory v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 73-1142.
    Bank of Commerce of Laredo v. City National Bank of Laredo et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-1172.
    American Family Life Assurance Company of Columbus v. Blue Cross of Florida, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-1178.
    Pobliner v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 73-1208.
    Oldendorff v. Parker et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-1211.
    Carter et al. v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 73-1213.
    Grace et al. v. Ludwig et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-1219.
    Buxton v. Aero Mayflower Transit Co., Inc.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-1223.
    Brizard v. New Jersey.
   Super. Ct. N. J. Certiorari denied.


text:
    No. 73-1226.
    Sinclair v. Boughton, aka Sinclair.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-1228.
    Hansen v. Ahlgrimm et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-1235.
    American Investors Assurance Co. et al. v. First National Bank of Albuquerque et al
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-1236.
    Mills v. Superior Court of Alameda County et al.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 73-1268.
    Skaar et ux. v. Wisconsin Department of Revenue.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 73-1269.
    Lombardi v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 73-1278.
    Tang v. Appellate Division of New York Supreme Court, First Department, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-1328.
    LaVallee, Correctional Superintendent v. Mosher.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5681.
    Doran v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-5728.
    Ehrenberg v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5832.
    Thompson v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 73-5867.
    Mason et al. v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 73-5884.
    Owens v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 73-5941.
    Henry v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-5955.
    Stewart v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-6007.
    Carrion v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-6024.
    Valdez v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-6025.
    Gorham v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 73-6026.
    Alexander v. Weinberger, Secretary of Health, Education, and Welfare.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-6063.
    Gallington et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-6067.
    Hawk v. City of Detroit et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-6069.
    Spiers v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-6102.
    Hornbeck v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-6110.
    Goodell v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-6132.
    Ramos et al. v. California.
   App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari denied.


text:
    No. 73-6134.
    Edwards v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-6142.
    Radue v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6164.
    Francis v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6177.
    McCoy v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 73-6205.
    Heimforth v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-6216.
    Nelson v. Henderson, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6219.
    Coleman v. Kentucky.
   Ct. App. Ky. Certiorari denied.


text:
    No. 73-6231.
    Smilgus v. Kent, Judge.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-6236.
    Yeager v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6244.
    Freeman v. Blackledge, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-6245.
    Daye v. Cooper et al.
   C. A. 4th CirCertiorari denied.


text:
    No. 73-6248.
    Wallace v. Hoffman et al.
   C. A. 8th ' Cir. Certiorari denied.


text:
    No. 73-6253.
    Harrish v. City of Parma.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 72-637.
    Kennecott Copper Corp. v. Federal Trade Commission.
   C. A. 10th Cir. Certiorari denied. Mr. Justice Stewart would grant certiorari.

Mr. Justice Douglas took no part in the consideration or decision of this petition.


text:
    No. 73-627.
    Mayes v. Texas.
   County Ct. at Law No. 4, Harris County. Certiorari, denied. Mr. Justice Douglas would grant certiorari.


text:
    No. 73-922.
    Brown et al. v. United States.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-1255.
    International Union, United Mine Workers of America, et al. v. Solar Fuel Co. et al.
   C. A. 3d Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-6011.
    McCalvin et al. v. Illinois.
   Sup. Ct. Ill. Certiorari denied.

Mr, Justice Douglas would grant certiorari.


author: Mr. Justice Marshall,

text:
    No. 73-996.
    Erckman v. United States.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Marshall,

with whom Mu. Justice Brennan joins,

dissenting.

Petitioner was convicted after a jury trial of three counts of willfully filing false income ‘tax returns in violation of § 7206 (1) of the Internal Revenue Code, 26 U. S. G. § 7206 (1). Ari important prosecution witness at trial was Internal Revenue Special Agent Eugene Konrad, who had interviewed petitioner about his tax returns before the prosecution was instituted and whose testimony played a major role in establishing the willfulness of petitioner’s acts. To facilitate his cross-examination of Konrad, petitioner moved under the Jencks Act, 18 U. S. C. § 3500, for production of Konrad’s report to the Chief of the Intelligence Division of the Infernal Revenue Service in Chicago concerning the interview. Following the in camera examination mandated by § 3500 (c),' the District Court refused to order production of the report on the ground that “there is no. material ... in the special agent’s report . . . that is. reasonably necessary for the defendant’s use in making adequate trial preparation.”

The Court’ of Appeals correctly held that “this' was an ^improper test” to apply to determine whether a statement must be produced under § 3500. The court, following its recent decision, in United States v. Cleveland, 477 F. 2d 310, 315-316 (CA7 1973), found that the agent’s report was a “statement” within the meaning of the Jencks Act, § 3500 (e), see also Clancy v. United States, 365 U. S. 312 (1961), and that it therefore must be produced if it “relates to the subject matter as to which the’witness has testified.” § 3500 (b). Since the Court of Appeals found that “some of, it clearly relates to the subjéct matter of his testimony,” it held that Konrad’s^ report should have been'produced for the petitioner’s use in cross-examination.

But the Court of Appeals then went on to conclude, on the basis of its own examination of the report and without permitting petitioner’s counsel to see it, that “the report would have been of no assistance to defendant” and that “there was no inconsistency between Konrad’s report and his testimony at trial.”- - It therefore held the failure to produce the report to be harmless error.. As to this point, Judge Fairchild disagreed, saying that he would “give defense counsel an opportunity to see the material erroneously withheld and to attempt to persuade the court that the error was not harmless before the court decides that it was.”

. In my view, Judge Fairchild was clearly correct. I believe that the procedure employed by the Court of Appeals improperly deniéd petitioner the opportunity to examine the agent’s report and to argue to tlie court that the error wás not harmless. This result is compelled by the rationale of our Jencks^.decision and the statute which followed it. In Jencks, this Court held that relevant and material statements of Government witnesses must be turned over to the defense regardless of the trial judge’s view as to their' usefulness in cross-examination. ¡ This Court expressly disapproved of the practice of submitting such statements to the trial judge for an in camera examination because “only the defense is adequately equipped to determine the[ir] effective use for purpose of discrediting the Government’s witness and thereby furthering the accused’s defense.” Jencks v. United States, 353 U. S. 657, 668-669 (1957). The Jencks Act expressly reaffirmed this aspect of our decision, see S. Rep. No. 569, 85th Cong., 1st Sess., 3 (1957); Campbell v. United States, 365 U. S. 85, 92 (1961), and on its face gives the defendant the right to examine any relevant statements of Government witnesses to make his own determination of their usefulness. The Act makés clear that it is not ordinarily part of the business of the federal judiciary to determine whether the defense could effectively utilize a producible statement.

The Act thus recognizes that it is impossible for a judge to be fully aware of all the possibilities for impeachment inhering in a prior statement of a Government witness. Of course, it may not be difficult to lay thé witness’ testimony and his prior statement side by side to compare them for any obvious inconsistencies. This is apparently what the‘Court of Appeals did here, in view of its conclusions that there was “no inconsistency between Konrad’s report and his testimony at trial.”. But, ás we have said before, this hardly exhausts the utility of the statement for. purposes of cross-examination:

“ Tlát contradiction between the witness’ testimony and the version of the events given in his report is not the only test of inconsistency. The omission' from+he reports of facts related at the trial, or a contrast in emphasis upon- the same, facts, even a different order of treatment, are also relevant to the cross-examining process.’ ” Clancy v. United States, supra, at 316, quoting Jencks v. United States, supra, at 667.

A judge — especially an appellate judge whose only contact with a case is through an examination of a cold record — simply does not have the familiarity with the intimate details of a case necessary to make an adequate determination of the full impeachment value of a witness’ prior statement.

“An apparently innocent phrase. a chance remark, a reference to "what appears to Efe a neutral person -or event . . . may have special significance to one who knows the more intimate facts of an accused’s life. And yet that information may be wholly colorless and devoid of meaning,to one less .well aéquainted with,all relevant circumstances.” Alderman v. United States, 394 U. S. 165, 182 (1969).

Thus, we have held in a closely related context that:

“[It is not] realistic to assume that the trial court’s judgment as to the utility of the material for impeachment or other legitimate purposes, however conscientiously made, would exhaust the possibilities. In our adversary system, it is enough for judges do judge. The .determination of what may be useful to the defense can properly and effectively be made only 'by an advocate.” Dennis v. United States, 384 U. S. 855, 874-875 (1966).

Of course, whenever an appellate court considers whether a Jencks Act error is harmless, it must of necessity move into the usually forbidden territory of speculation about the utility to the defense of the witness’ prior statement. But in view of these considerations, wé have held that the harmless-error doctrine should be employed with restraint in Jencks Act cases. Rosenberg v. United States, 360 U. S. 367 (1959). We warned in Rosenberg that “[a]n appellate court, should not confidently guess what defendant’s attorney might have-found useful for impeachment purposes in withheld documents to which the defense is entitled.” Id., at 371. And we rejected the Government’s harmless-error argument in Clancy v. United States, supra, at 316, saying: “Since the production of at least some of the statements withheld w.as a right of the defense, it is not for us to speculate whether they could have beep utilized effectively.”

These same considerations require that the petitioner have the opportunity to examine the agent’s report arid to attempt to demonstrate to the court that the error was not harmless. Affording the petitioner such an opportunity will minimize to the extent possible' the dangers of permitting judicial speculation as to the utility of a statement to the defense. “Adversary proceedings will not magically eliminate all error, but they will substantially reduce its incidence by guarding against the possibility that the . . . judge, through lack of time or unfamiliarity with the information contained in and suggested by the materials, will be unable to provide the scrutiny . . . demand [ed].” Alderman v. United States, supra, at 184.

Our judicial system is designed to function in the context of. adversary proceedings. We are therefore reluctant to authorize éx parte, in camera determinations unless they are truly necessary to protect important governmental interests. Indeed, in Dennis.and Aider-man the Court, in order to avoid in camera determinations akin to those approved by the Court of Appeals here, ordered disclosure of the testimony and conversations involved despite substantial countervailing interests — in Dennis, the interest in grand jury secrecy, and in Alderman, the interest in national security. In sharp contrast, there is no justification here for not disclosing the agent’s statement to the defense, and thus no necessity for the in camera determination engaged in by the Court of Appeals.. The court had already determined that the Jencks Act gave petitioner the right to examine the agent’s report in the first place;.at that point, no substantial governmental interest in refusing disclosure of the report remained. Yet disclosure of the report is essential to permit the defense to make an informed presentation of the usfes to which he might have put the report. And without consideration of such a presentation by counsel, the Court of Appeals could not make a truly informed decision on the harmless-error question.

X would grant the petition for certiorari, vacate the judgment of the Court of Appeals, and remand this case for further proceedings consistent with this opinion.

       The Solicitor General, in his Memorandum in Opposition,- p. 2 n. 1, 'claims that petitioner .has raised the contention that he should have been permitted to see the Jencks Act materials to enable him to argue that the error was not harmless “for the first timé” in this Court, and argues that “petitioner’s failure to make that claim below, precludes its assertion here.” While the principle is of course sound, the’Solicitor Général has misapprehended the record in this case. True, petitioner did not raise this argument in his brief before' the Court of Appeals, obviously because at that time he had no reason to do so; petitioner was then arguing that the trial judge hád erred in failing to order the agent’s report disclosed to him, and had no reason to anticipate that the Court of Appeals would accept this argument but hold the error to be harmless, particularly, since the Government never contended that the error was harmless. But petitioner did raise this argument at the first opportunity/in his petition- for rehearing in the Court of Appeals. At. p. 3 petitioner argued:
      “In the alternative, it is respectfully requested that the defend-ant be granted a rehearing .after ‘defense counsel is given an opporr. tunity to see the material erroneously withheld’ and then be-permitted' ‘to attempt to persuade the court that the emu was not harmless.’ (Order, Page.8).”
      The next two pages of the petition for rehearing were devoted to argument in support of this contention. Clearly, petitioner has adequately preserved the point for qur review.

       In Rosenberg, we held that the failure to turn over the statement of a Government witness to the defense was harmless error only because “the very same information was possessed by defendant’s counsel as would have been, available .were error not committed.” 360 U. S., at 371. The Court of Appeals in this case acknowledged that Rosenberg did not dispose of this Case because of the presence of othér relevant information in the agent’s report which the petitioner did not already have available.

       In Palermo v. United States, 360 U. S. 343 (1959), we upheld use of an in camera procedure for determining whether a witness’ statement is required to be produced under the Jencks Act .because such a procedure was necessary to protect one of the Act’s major purposes. As Mr. Justice Frankfurter put it:
      “The Act’s major concern is with limiting and regulating defense access to government papers, and it is designed to deny such access to those statements which c’o not satisfy the requirements of [subsection] (e), or do not relate to the subject matter of the witness’-testimony. It would indeed defeat this design to hold that the defense may see statements- in order to argue whether it should be allowed to see them.” Id., at 354.

        Palermo’s approval of an in camera procedure with respect to the issue involved- in that case is surely not determinative here. The issue involved in Palermo, whether the statement met the Act’s definition of a producible statement, is one that is much more within the traditional competence of the judiciary than is speculation about the utility of a statement- to the defense. More important, the witness’ statement in this case concededly does come within the definition of those that Congress has ordered to be produced to the defense, and thus there is no substantial governmental interest requiring protection through in camera proceedings.


text:
    No. 73-1093.
    California v. Paschall.
   Ct. App. Cal., 2d App. Dist. Motion of respondént for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 73-1227.
    LaVallee, Correctional Superintendent v. Williams.
   C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 73-1166.
    No. 73-1249.
    Hutton et al. v. Johns Hopkins University; and Johns Hopkins University v. Hutton et al.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice Stewart took no part in the consideration or decision of these petitions.


text:
    No. 73-1246.
    Virginia Electric & Power Co. v. Haden, Tax Commissioner.
   Sup. Ct. App. W. Va. Certiorari denied.

Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 73-6252.
    Jimenez v. United States.
   C. A. 5th Cir. Petition for certiorari denied as untimely fiied. 28 U. S. C. 2101 (c).


text:
    No. 73-5688.
    No. 73-5846.
    No. 73-5983.
    Hart v. Coiner, Warden, Dulles v. Dulles, Whatley v. Anderson, Warden, et al,
   415 U. S. 938;

415 U. S. 926; and

415 U. S. 929. Petitions for rehearing denied.


text:
    April 2, 1974
    No. 72-619.
    Farah Manufacturing Co., Inc. v. El Paso Joint Board, Amalgamated Clothing Workers of America, et al.
   C. A. 5th Cir. Petition for writ of certiorari dismissed ünder Rule 60 of the Rules of this Court.


text:
    No. 73-6357.
    Allen v. United States.
   C. A. 4th Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    April 4, 1974
    No. 73-909.
    Smaldone et al. v. United States.
   C. A. 10th Cir. Petition for. writ of certiorari as to petitioner Michael J. Valley dismissed under Rule 60 of the Rules of this Court:


text:
    April 5, 1974
    No. 73-1337.
    Cotler v. United States.
   C. A. 2d Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    No. 73-6082.
    Olvera v. United States.
   C. A. 5th Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court,


text:
    April 12, 1974
    No. 73-1415.
    Phillips Petroleum Co. v. Studiengesellschaft Kohle m. b. H.
   C. A. 5th Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    April 15, 1974
    No. 70-120.
    Mailliard et al. v. Gonzalez et al.
   Appeal from D. C. N. D. Cal. Motion of appellees for leave to proceed in forma pauperis granted. Judgment vacated and case remanded for reconsideration of the injunction in light of Steffel v. Thompson, 415 U. S. 452 (1974), and Zwickler v. Koota, 389 U. S. 241 (1967). Mr. Justice Douglas would affirm the judgment.


text:
    No. 71-1511.
    Norvell, Attorney General of New Mexico v. Apodaca.
   Appeal from Sup. Ct. N. M. Judgment vacated and case- remanded for further consideration in light of Lubin v. Panish, 415 U. S. 709 (1974).


text:
    No. 72-193.
    Fowler et al. v. Culbertson.
   Appeal from D. C. S. C. Judgment vacated and case remanded for further consideration in light of Lubin v. Panish, 415 U. S. 709 (1974).


text:
    No. 72-455.
    No. 72-5187.
    Bush v. Sebesta et al.; and Fair v. Taylor et al.
   Appeals from D. C. M. D. Fla. - Motion of appellant in No. 72-5187 for leave to proceed in forma pauperis granted. Judgment vacated and cases remanded for further consideration in light of Lubin v. Panish, 415 U. S. 709 (1974); Storer v. Brown, 415 U. S. 724 (1974); and American Party of Texas v. White, 415 U. S. 767 (1974).


text:
    No. 72-1734.
    No. 73-37.
    Samkowski, Acting Director, Marion County Department of Public Welfare v. Carter et al.; and Stanton, Director, Indiana Department of Public Welfare, et al. v. Carter et al.
   Appeals from D. C. S. D. Ind. Motion of appellees for leave to proceed in forma pauperis granted. Judgment vacated and cases remanded for further consideration in light of Edelman. v. Jordan, 415 U. S. 651 (1974). Mr. Justice Douglas would affirm the judgment for the reasons set forth in his dissent in Edelman v. Jordan, 415 U. S. 651, 678 (1974). Mr. Justice Brennan would affirm the judgment.


author: Mr. Justice Blackmun,

text:
    No. 73-544.
    Lucas et al. v. Arkansas.
   Appeal from Sup. Ct. Ark. Judgment, vacated and case remanded for further consideration in light of Lewis v. City of New Orleans, 415 U. S. 130 (1974). [For dissenting opinion of Mr. Justice Douglas, see infra, p. 924.]

Mr. Justice Blackmun,

with whom The Chief Justice and Mr. Justice Rehnquist join,

dissenting.

A North Little Rock policeman On routine patrol drpve his car at midnight through a parking lot adjacent to "a motel and restaurant. He heard loud language and thought a fight was in progress. He rolled the window down and heard one of the appellants say, “Well, there goes the big, bad mother fucking-cops.” He ignored this and slowly drove on.. The language grew louder. He pulled over behind a large parking sign. An appellant said, “Look at the chicken shit mother fucker hide over there behind that sign.” He drove back. An appellant then said, “Now the sorry son-ofra-bitch is going to come back over here.” Appellants'were arrested and convicted of.breaching the peace, in violation of Arkansas law. The Supreme Court of Arkansas affirmed the convictions. 254 Ark. 584, 494 S. W. 2d 705 (1973). The Court today vacatés the state court; judgment and remands for further consideration in light of Lewis v. City of New Orleans, 415 U. S. 130 (1974). I dissent.

The Arkansas. Court has already clearly construed § 41-1412 to apply only to “fighting words,” as defined in Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942), in Gooding v. Wilson, 405 U. S. 518, 523-525 (1972), and in Lewis, supra, at 132. That court, in Holmes v. State, 135 Ark. 187, 204 S. W. 846 (1918), held that the statute was narrow in its scope. “It is not sufficient that the language used gives offense to the person to whom or about whom it is addressed, but it must be that which in its ordinary acceptation is calculated to give offense and to arouse to anger.” 135 Ark., at 189, 204 S. W., at 847. In its opinion in this case, the Arkansas Court reaffirmed its prior interpretation: of the statute:

“As we construe § 41-1412 it is narrowed to ‘fighting words’ addressed to, toward, or about another person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or. addressed, or to cause a breach of the peace or an assault. We can conceive of no stronger ‘fighting words’ than those employed by the appellants in this case, and there is substantial evidence they were calculated to arouse to anger the officer to whom they were spoken or addressed. As a matter of fact the appellant, Fred Lucas, admits that if the mildest of the epithets employed by him, were directed to or about him, it would arouse him to anger.” 254 Ark., at 589-590, 494 S. W. 2d, at 708.

I am at a loss to understand what this Court further requires in a narrowing interpretation under its version of the Chaplinsky standard espoused in Gooding. Apparently, not only must every statute regulating speech in the. 50 States parrot the wording the Court desires, but a state court, must play the role of a ventriloquist’s dummy mouthing ceremonial phrases in order to obtain the seal of this Court’s approval. There can be no question whatsoever that the Arkansas Court, in this case and in its earlier opinion in Holmes, narrowed the statute within the confines of the Court’s Gooding doctrine, and there is therefore nothing more for that court to do; Í. disagree with this roughshod treatment of the opinions of the Supremé Court of the State of Arkansas. I would affirm,, and not vacate, the court’s judgment.

       Ark. Stat. Ann. §41-1412 (1964) provides
      “If any person shall "make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in' his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, [he} shall be deemed guilty of a breach of the peace . . .

       The standard of responsibility is not'left open as the Court said it was in Gooding and in Ashton, v. Kentucky, 384 U. S. 195 (1966). The statute punishes language which in its ordinary acceptation is calculated to cause a breach of the peace. The statute on its face' does not permit or require an inquiry into the respective boilipg points of the particular individuals or groups involved in each.casé,. but restricts the factfinder to language that would, in its common or ordinary acceptation, be.calculated to cause a breach of-the peace.
      In Chaplinsky, the Court accepted a limiting construction .which held that the statute was “not to bé defined in terms of what a particular addressee thinks. _. . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.” 315 U. S., at 573. In its Holmes case, the Arkansas Supreme Court pronounced exactly the same standard: “It is not sufficient that the language used gives offense "to the person to whom or about whom it .is addressed, but it .must be that which in its ordinary acceptation is calculated to give offense and to arouse to anger.” 135 Ark., at 189, 204 S. W., at 847.

       My Brother. Douglas asserts that the principle enunciated in Gooding and Lewis is not “new.” It hardly needs stating, however, that the speech at issue in Cantwell v. Connecticut, 310 U. S. 296 (1940), and in Terminiello v. Chicago, 337 U. S. 1 (1949), and the manner and place of delivery, are not at all similar to the speech at issue in Chaplinsky, Gooding, and Lewis. - •

        Cantwell was a case where the State sought to punish Jehovah’s Witnesses, who claimed to be ordained ministers, for a message which attacked the Catholic religion. This the State could not do. But we expressly noted that the case involved “no assaultf'ér threatening of bo.dily harm, no truculent, bearing, no intentionál discourtesy, no personal abuse.” 310 U. S., at 310. In Terminiello the petitioner was arrested for an address made under the auspices df the Christian Veterans of- America. Our concern there was the protection of ideas,, manifestly a part of. an informed and free public discourse, and essential to the preservation of responsive government and peaceful, orderly change. We expressly did . not . reach the question “whether the content.of petitioner’s speech was composed of derisive, fighting words which carried it outside the scope .of the constitutionaCguarantees.” 337 U. S., at 3.
      Before we. rush headlong into scrapping legislative enactments that on théir face, or as applied, appear. to interfere with some form of speech, we should pause long enough to inquire into “the nature of the speech in question, the possible effect the statute or ordinance has upon such .speech, the importance of the speech in relation to the exposition of.ideas., [and] the purported or asserted community interest in preventing that speech.” Lewis v. City of New Orleans, 415 U. S. 130, 136-137 (1974) (dissenting opinion).


text:
    No. 73-893.
    Communist Party et al. v. Austin, Secretary of State of Michigan, et al.
   Appeal from D. C. E. D. Mich. Judgment vacated and case remanded for further consideration in light of American Party of Texas v. White, 415 U. S. 767 (1974).


text:
    No. 73-1184.
    No. 73-1259.
    Schwegmann Brothers Giant Super Markets v. Louisiana Milk Commission; and Louisiana Milk Commission v. Schwegmann Brothers Glant Super Markets.
   Affirmed on appeal from D. C. M. D. La.


text:
    No. 73-5954.
    Doe et al. v. Flowers, Commissioner, Department of Welfare.
   Appeal from D. C. N. D. W. Ya. Motion Of appellants. for leave to proceed in forma pauperis granted. Judgment affirmed.

Mr. Justice Douglas would reverse the judgment for the reasons set forth in his dissent in Edelman v. Jordan, 415 U. S. 651, 678 (1974); Mr. Justice Brennan dissents and would reverse the judgment for the reasons set forth in his dissent in Edelman v. Jordan, 415 U. S. 651, 687 (1974).


text:
    No. 73-955.
    Ceja v. State Police Merit Board of Illinois et al.
   Appeal from App. Ct. Ill., 1st Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 73-1292.
    Zanes-Ewalt Warehouse, Inc. v. Calvert, Comptroller of Public Accounts, et al.
   Appeal from Sup. Ct. Tex. dismissed for want of sub-

stantial federal question.


text:
    No. 73-1302.
    Community Consolidated School District No. 210, LaSalle County, et al. v. Mini, Superintendent of Schools of LaSalle County, et al.
   Appeal from Sup. Ct. 111. dismissed for want of substantial federal question.


text:
    No. 73-1297.
    Everson Evangelical Church of North America et al. v. Western Pennsylvania Conference of United Methodist Church.
   Appeal from Sup. Ct. Pa. dismissed for want of substantial federal question.

Mr. Justice Blackmun took no part in the consideration or decision of this case.


text:
    No. 72-1379.
    Kelly v. Ohio.
   Ct. App. Ohio, Portage County., Certiorari granted, judgment vacated, and case remanded for further consideration in light of Lewis v. City of New Orleans, 415 U. S. 130 (1974). [For dissenting opinion of Mr. Justice Douglas, see infra, this page.]


text:
    No. 72-1738.
    Rosen v. California.
   App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Lewis v. City of New Orleans, 415 U. S. 130 (1974). [For dissenting opinion of Mr. Justice Douglas,, see infra, this page.]


author: Mr. Justice Douglas,

text:
    No. 73-537.
    Karlan v. City of Cincinnati.
   Sup. Ct. Ohio. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Lewis v. City of New Orleans, 415 U. S. 130 (1974).

Mr. Justice Douglas,

dissenting.

These cases all involve convictions under ordinances and statutes which punish the mere utterance of words variously described as “abusive,” “vulgar,” “insulting, “profane,” “indecent,” “boisterous,” and the like. The provisions are challenged as being unconstitutionally vague and overbroad. The “void for vagueness” doctrine is, of course, a due process concept implementing principles of- fair warning and nondiscriminatory enforcement. Vague laws may trap those who desire to be law abiding by not providing fair notice of what is prohibited. Papachristou v. City of Jacksonville, 405 U. S. 156, 162 (1972); United States v. Harriss, 347 U. S. 612, 617 (1954). They also provide opportunity .for arbitrary and discriminatory enforcement since those who apply the laws have no clear and explicit'standards to guide them. Coates v. City of Cincinnati, 402 U. S. 611, 614 (1971); Shuttlesworth v. Birmingham, 382 U. S. 87, 90-91 (1966). Further, when a vague statute “ ‘abut[s] upon sensitive areas of First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of- the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.’ ” Grayned v. City of Rockford, 408 U. S. 104, 109 (1972), quoting Baggett v. Bullitt, 377 U. S. 360, 372 (1964), and Speiser v. Randall, 357 U. S. 513, 526 (1958).

Overbreadth, on the other hand,. “offends the constitutional principle that ‘a governmental purposé to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily- broadly and thereby invade the area of protected freedoms;’ ” Zwickler v. Koota, 389 U. S. 241, 250 (1967), quoting NAACP v. Alabama, 377 U. S. 288, 307 (1964). A vague statute may be overbroad if its uncertain boundaries leave open the possibility of punishment for. protected conduct and thus lead citizens to ayoid such protected activity in order to steer clear of the uncertain proscriptions. Grayned v. City of Rockford, supra, at 109; Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). A statute is also overbroad, however, if, even though it is clear and precise, it prohibits constitutionally protected conduct. Aptheker v. Secretary of State, 378 U. S. 500, 508-509 (1964); Shelton v. Tucker, 364 U. S. 479, 488 (1960).

The statutes before us punish the mere utterance of words. They thus attempt to regulate the delicate ¿rea of speech and they are all overbroad since “as authoritatively construed [they are] susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments.” Gooding v. Wilson, 405 U. S. 518, 520 (1972). We have consistently held that “[i]t matters not that the words [the speaker] used might have been constitutionally prohibited under á narrowly and precisely drawn statute.” Ibid. In the area of free speech, the value of protected expression is deemed to justify “attacks on overly broad statutes with no requirement that. the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the.requisite narrow specificity.” Dombrowski v. Pfister, supra, at 486. The specific conduct involved is thus not relevant. “It is the ordinance on its face that sets the standard of conduct and warns against transgression. The details of the offense could no more serve to validate this ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech.” Coates v. City of Cincinnati, supra, at 616.

The landmark case in the area is Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), which involved the conviction of a Jehovah’s Witness for violation of a statute prohibiting “offensive or derisive” speech. There the State Supreme Court had narrowed the- statute by construing, it as applicable only to what were referred to as “fighting'words” — words which “by their very utterance .inflict injury .or tend to incite an immediate breach of the peace.” Id., at 572. We held-that the statute, as thus-“narrowly drawn and limited,” id., at 573, was constitutional.

We explained the rationale of Chaplinsky’s fighting-words limitation in Terminiello v. Chicago, 337 U. S. 1 (1949), which involved a "conviction under a Chicago disorderly conduct ordinance. The case grew out of a disturbance following a public address by Terminiello under the auspices of the Christian Veterans of America. In reversing the conviction, we explained;

“The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.
“Accordingly a function of free speech under our system of government is to invite dispute .... Speech is often provocative and challenging. . . . That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire ... is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Id., at 4.

The constitutional necessity of limiting this type of statute to words which “ ‘by their very utterance inflict injury or tend to incite an immediate breach of the peace’ ” was expressly reaffirmed in Gooding v. Wilson, supra, at 522, where we held facially unconstitutional a Georgia statute which proscribed “opprobrious” or “abusive” language and which had been held by state courts to apply to utterances which were “not ‘fighting’ words as Chaplinsky defines them.” Id., at 525.

This principle was again enunciated in Lewis v. City of New Orleans, 415 U. S. 130 (1974), and four cases are today remanded for reconsideration in light of Lewis. If the principle announced in Lewis were new, I would agree with this disposition. Only state courts can construe these statutes since “we lack jurisdiction authoritatively to construe state legislation.” United States v. Thirtyseven Photographs. 402 U. S. 363, 369 (1971). Before we strike down a statute-as facially unconstitutional, the state courts should have the opportunity to construe the statute, if possible, as within our constitutional pronouncements. Under our constitutional scheme, federal courts were not designed as the only protectors of federal rights. Article VI, cl. 2, expressly directs that the “Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and’the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Thus “[s]tate courts are bound equally with the federal .courts” to protect federal rights. Public Service Comm’n v. Wycoff Co., 344 U. S. 237, 247 (1952). The decisions of this Court are to guide state courts iñ the exercise of this duty.

But experience has shown that such guidance is often unheeded. The duty of the States in this area has long been clear. After Chaplinsky, federal intervention in Terminiello should have been unnecessary. After Chaplinsky and Terminiello, Gooding should have been unnecessary. Yet after them all, the State Supreme Court in Lewis, on reconsideration in light of Gooding, again failed to narrow the ordinance and affirmed a conviction which we found necessary to reverse. The principle in Lewis was not new; it was not new in Gooding, or in Terminiello, or even in Chaplinsky. State courts, however, have consistently shown either inability or unwillingness to apply its teaching. I thus see nothing to be gained by state court reconsideration in light of Lewis. I would reverse these judgments out of hand.

APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING

Karlan v. City of Cincinnati, No. 73-537, involves a violation of Cincinnati Municipal Code § 901-D4, which provides:

“No person shall wilfully conduct himself or herself in a noisy, boisterous, rude, insulting or other disorderly manner, with the intent to abuse or annoy any person or the citizens of the city or any portion thereof . . . .”

The ordinance was held by the- court below, 35 Ohio St. 2d 34, 298 N. E. 2d 573 (1973), to withstand facial constitutional attack on the authority of Cincinnati v. Hoffman, 31 Ohio St. 2d 163, 168, 285 N. E. 2d 714, 718-719 (1972), which,' rather than limit the ordinance in Chaplinsky terms, gave it blanket approval: “As reasonably construed; the ordinance néithe'r prohibits'the lawful exercise of any constitutional right nor escapes the understanding of any person of •‘common intelligence’ who desires to obey it.” The ordinance thus remains unconstitutionally overbroad since it prohibits words which are merely “rude” and has not been limited to words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

Ducas v. Arkansas, No. 73-544, involves a violation of Ark. Stat. Ann. § 41-1412. (1964), which provides:

“If any person shall make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or assault, [he] shall be deemed guilty of a breach of the peace . . .

In purporting to limit the statute, the court below held:

“As we construe § 41-1412 it is narrowed to ‘fighting words’ addressed to, toward, or about another person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed or to cause a breach of the peace or an assault.” 254 Ark. 584, 589, 494 S. W. 2d 705, 708 (1973). (Emphasis added.)

This construction leaves the statute overbroad since it permits punishment for words which, though not likely to cause a breach of the peace, are “calculated” to do so. In striking down a similar construction in Gooding v. Wilson, we said: “‘[T]o make an offense of conduct which is “calculated to create disturbances of the peace” leáves wide open the standard of responsibility.’ ” 405 U. S. 518, 527, quoting Ashton v. Kentucky, 384 U. S. 195, 200 (1966). The construction here does not even require that the words be calculated to cause a breach of the peace; it is enough that they are calculated to arouse anger in the addressee.

Kelly v. Ohio, No. 72-1379, involves a violation of Codified Ordinances of the City of Kent § 509.02 (A) which provides:

“[N]o person shall willfully conduct himself in a noisy, boisterous or other disorderly manner by either words or acts which disturb the good order and quiet of the Municipality.”

While finding that petitioner’s language constituted “fighting, words,” the court below did not construe the ordinance as limited to súch words. The court below merely held that petitioners words could constitutionally be proscribed:

“Defendant, maintaining freedom' of speech is constitutionally protected, declares the ordinance is unconstitutional because it punishes both protected and unprotected conduct (i. e., by words or. acts). We do 'not . find the ordinance’ overbroad as to the words used herein, nor constitutionally protected premised on the evidence before the Court, hence neither the words nor acts herein are found to be constitutionally protected.” Ohio Ct. App., No. 466 (July 31, 1972).

But, “[i]t matters not that the words [petitioner] used might have, been constitutionally prohibited under a narrowly and precisely drawn statute,” for petitioner may attack an overly broad statute without demonstrating that his own conduct could not be regulated by a more precisely drawn, act. Gooding v. Wilson, 405 U. S., at 520.

Rosen v. California, No. 72-1738, involves Calif. Penal Code § 415, which provides:

“Every person who maliciously and willfully disturbs the peace or .quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct ... or use[s] any viilgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor . . . .”

There has been no limiting construction of the “vulgar” language component of the provision. The jury here was instructed that: “Vulgar means coarse, ill-bred, ill-mannered, rude .... Profane means serving to debase or defile that which is holy or worthy of reverence . . . . Indecent means . . . hardly suitable.” See L. A. Super. Ct. App. Dept., No. CR A 11557 (Jan. 2, 1973). It hardly needs stating that States are not free to penalize speed., merely because it is “coarse,” “ill-bred,” or “hardly suitable.”.

      This opinion applies also to No. 73-544, Lucas v. Arkansas, supra, p. 919; No. 72-1379, Kelly v. Ohio, supra, p. 923; and No. 72-1738, Rosen v. California, supra, this page. ,

       The statutes and respective authoritative constructions' are set forth in the Appendix to this ppinion, infra, p. 929.

       See, e. g., State v. Brown, 68 N. H. 200, 38 A. 731 (1895).

       See Cantwell v. Connecticut, 310 U. S. 296, 311 (1940).

       See, e. g., Cantwell v. Connecticut, supra. Nor were Gooding and Lewis the' only recent- instances of its reaffirmance. See, e. g., Cohen v. California, 403 U. S. 15, 20 (1971); Bachellar v. Maryland, 397 U. S. 564, 567 (1970); Street v. New York, 394 U. S. 576, 592 (1969).


text:
    No. 72-1671.
    McConnell, District Attorney of Waukesha County, Wisconsin v. Unitarian Church West et al.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Steffel v. Thompson, 415 U. S. 452 (1974).

Mr. Justice Douglas dissents from the remand.


text:
    No. 31, Orig.
    Utah v. United States.
   Report of Special Master received and ordered filed. Exceptions, if any, with supporting briefs, may be filed by the parties on o:: before May 15, 1974. Reply briefs, if any, may be filed on or before May 29, 1974. [For earlier orders herein, see, e. g., 406 U. S. 940.]


text:
    No. 73-362.
    No. 73-364.
    Morton, Secretary of the Interior, et al. v. Mancari et al. Amerind v. Mancari et al.
   [Probable jurisdiction noted, 414 U. S. 1142]; and [Probable jurisdiction noted, 415 U. S. 946.] Appeals from D. C. N. M. ‘ Motion of appellants for additional time for oral argument and for divided argument granted and 15 additional minutes allotted for that purpose. Appellees also allotted 15 additional minutes for oral argument. Motion of Mexican American Legal Defense & Educational Fund for leave to file a brief as amicus curiae granted.


text:
    No. 73-437.
    No. 73-457.
    No. 73-464.
    Mobil Oil Corp. v. Federal Power Commission et al.; Public Service Commission of New York. v. Federal Power Commission et al.; and Municipal Distributors Group v. Federal Power Commission et al.
   C. A. 5th Cir. [Certiorari granted, 414 U. S. 1142.] Motion of petitioners for divided argument granted.

Mr. Justice Powell took no part in the consideration or decision of this motion.


text:
    No. 73-477.
    Gerstein v. Pugh et al.
   C. A. 5th Cir. [Certiorari granted, 414 U. S. 1062.] Case restored to calendar for reargument.


text:
    No. 73-596.
    Pearson et al. v. Ecological Science Corp. et al.
   C. A. 5th Cir. Application for stay and injunction presented to 'Mr. Justice Douglas, and by him referred to the Court, denied. Motion of Thomás G. Jenny for leave to intervene denied.


text:
    No. 73-679.
    Wolff, Warden, et al. v. McDonnell.
   C. A. 8th Cir. [Certiorari granted, 414 U. S. 1156.] Motion of respondent to vacate order allowing the Solicitor General to participate in oral argument as amicus curiae denied. Motions of Guadalupe Guajardo, Jr., for leave to proceed in forma pauperis and for leave to file a brief as amicus curiae denied.


text:
    No. 73-831.
    Warden, Lewisburg Penitentiary v. Marrero.
   C. A. 3d Cir. [Certiorari granted, 414 U. S. 1128.] Motion of Harry C. Batchelder, Jr., to permit John J. Witmeyer III to present oral argument pro hac vice on behalf of respondent granted. Consideration of respondent’s suggestion of mootness deferred to hearing of case on the merits.


text:
    No. 73-841.
    Holder, U. S. District Judge v. Banks.
   C. A. 7th Cir. [Certiorari granted, 414 U. S. 1156.] Motion of petitioner to dispense with printing appendix. and to proceed on original record granted. Motion of American Civil Liberties Union et al. for leave to file a brief as amici curiae granted. . Motion of petitioner for divided argument denied.

Me. Justice Powell took no part in the consideration or decision of these motions.


text:
    No. 73-846.
    Wingo, Warden v. Wedding.
   C. A. 6th Cir. [Certiorari granted, 414 U. S. 1157.] Motion of the Attorney General of California, for leave to participate in oral argument as amicus curiae denied.


text:
    No. 73-5661.
    Adams et al. v. Secretary of the Navy et al.
   C. A. 9th Cir. [Certiorari granted, 414 U. S. 1128.] Motion for appointment of counsel granted. It is ordered that William A. Dougheity, Esquire, of Tustin, California, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioners in this case.


text:
    No. 73-5845.
    Jackson v. Metropolitan Edison Co.
   C. A. 3d Cir. [Certiorari granted, 415 U. S. 912.] Motion of Public Service Commission of New York for leave to .file a brief as amicus curiae granted.


text:
    No. 73-5740.
    Barker v. United States District Court for the Southern District of Texas; Sayles v. Gesell, U. S. District Judge; and Gozzetti v. Foley, U. S. District Judge.
    No. 73-6195.
    No. 73-6290.
   Motions for leave, to file petitions for writs of mandamus denied.


text:
    No. 73-689.
    Maness v. Meyers, Judge.
   169th Jud. Dist. Ct. Tex., Bell County. Certiorari granted.


text:
    No. 73-1245.
    United States et al. v. Bisceglia.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 73-1270.
    Kelley v. Southern Pacific Co.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 73-1285.
    Wood et al. v. Strickland et al.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 73-1123.
    United States v. Feola.
   C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 71-1512.
    Brown et al. v. Apodaca et al.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 73-704.
    Tarin v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-716.
    Garner v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-829.
    Tolbert v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-833.
    Doyle v. Commissioner of Patents.
   C. C. P. A. (Pat.) Certiorari denied.


text:
    No. 73-850.
    Ron v. United States; Garner v. United States; and Lee v. United States.
    No. 73-5825.
    No. 73-5891.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-886.
    Browndale International, Ltd. v. Board of Adjustment for Dane County et al.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 73-909.
    Smaldone et al. v. United States; Garceo v. United States; and Valley v. United States.
    No. 73-5735.
    No. 73-5863.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-913.
    Hanly et al. v. Saxbe, Attorney General, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-941.
    Holtzman et al. v. Schlesinger, Secretary of Defense, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-943.
    Citizens Environmental Council et al. v. Brinegar, Secretary of Transportation, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-944.
    Pelzer Realty Co., Inc., et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-975.
    Motorola, Inc. v. McLain, Regional Director, Equal Employment Opportunity Commission.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-984.
    Wichita Indian Tribe of Oklahoma et al. v. United States et al.
   Ct. Cl. Certiorari denied.


text:
    No. 73-994.
    Minton v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-1002.
    Dresser Offshore Services, Inc., et al. v. Richard.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-1011.
    Datronics Engineers, Inc. v. Securities and Exchange Commission.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-1022.
    Carter v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-1031.
    Robinson v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 73-1032.
    Slutsky et al., dba “The Nevele” v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-1044.
    Petrucci v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-1049.
    Ferraro v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-1050.
    Bigheart v. Pappan et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-1061.
    W. T. Grant Co. v. Commissioner of Internal Revenue.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-1074.
    Rogers Manufacturing Co. v. National Labor Relations Board.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-1079.
    Building & Construction Trades Council of Philadelphia and Vicinity v. National Labor Relations Board et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-1092.
    Caldwell, Administratrix, et al. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 73-1117.
    Diapulse Corporation of America v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-1118.
    Fehrs Finance Co. v. Commissioner of Internal Revenue.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-1143.
    Bookbinders Local No. 60, International Brotherhood of Bookbinders, AFL-CIO v. National Labor Relations Board et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-1152.
    Fox River Pattern, Inc. v. National Labor Relations Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-1155.
    Hicks v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-1185.
    Duffy et ux. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-1190.
    Hydrometals, Inc. v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-1200.
    Pennsylvania et al. v. United States et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-1232.
    Cleary v. Chalk et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-1242.
    Bates v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 73-1253.
    Murphy et al., dba Utah Oil Land Co. v. Landsburg, Trustee.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-1262.
    Jenks v. Judd.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-1263.
    Pearson Bros. Co. v. National Labor Relations Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-1264.
    Allen, aka Minder, et vir v. 1901 Wyoming Avenue Cooperative Assn.
   Ct. App. D. C. Certiorari denied.


text:
    No. 73-1272.
    G. I. Distributors, Inc., et al. v. Murphy et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-1276.
    Troxel Manufacturing Co. v. Schwinn Bicycle Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-1282.
    Fountain et al. v. Fountain et al.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 73-1296.
    Shreves v. Shreves.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-1299.
    Pascoe Steel Corp. v. Wieman-Slechta Co.
   C. A. 8th Cir. Certiorari, denied.


text:
    No. 73-1300.
    Kozemchak et al. v. Ukrainian Orthodox Church of America et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-1301.
    Borden et al. v. Director, Department of Assessments and Taxation of Maryland, et al.
   Ct. App. Md. Certiorari denied.


text:
    No. 73-1306.
    Starnes v. Norfolk & Western Railway Co.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-1312.
    Barr et al. v. Ohio.
   Ct. App. Ohio, Summit County. Certiorari denied.


text:
    No. 73-1331.
    Simmons v. Budds et al.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 73-1384.
    Ardac, Inc. et al. v. Micro-Magnetic Industries, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5660.
    Garcia v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5699.
    Watson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5710.
    Enriquez v. United States; Barrera et al. v. United States; and Pinto, aka Ben Sadoun v. United States.
    No. 73-5853.
    No. 73-5874.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5720.
    Whipple v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5752.
    No. 73-5769.
    Baxter et al. v. United States; and Harris v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5739.
    Mazzarino v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5757.
    Hogan v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5767.
    Tabarez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5770.
    Owen v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5777.
    Glassel v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5779.
    Scott v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5784.
    Green v. United States; Jones v. United States; and Beasley et al. v. United States.
    No. 73-5796.
    No. 73-5803.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-5785.
    Gant v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-5793.
    Wilson, aka Sturgis v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-5836.
    Williams v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5838.
    Bradley et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5865.
    Williams v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5883.
    Pickard v. Nevada.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5894.
    Bryant v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5903.
    Brown et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5911.
    Robinson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5921.
    Castaneda v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5930.
    Jones v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5949.
    Weeks v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5950.
    Taylor v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5952.
    Baty v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5956.
    Neitzel v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5958.
    Olguin v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5968.
    Wagner v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5969.
    Williams v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5974.
    Wingfield v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 73-6006.
    Arbuckle v. Scott, Attorney General of Illinois, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-6034.
    Alvarez v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-6039.
    Hutchinson v. Warden, Maryland Penitentiary.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-6046.
    Etchison v. Nebraska.
   Sup. Ct. Neb. Certiorari denied.


text:
    No. 73-6047.
    Hunter v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 73-6075.
    Booker v. Johnson, Correctional Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-6084.
    Northern v. Procunier, Corrections Director, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-6086.
    Hadsell v. Washington Board of Prison Terms and Paroles.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 73-6095.
    Horton v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-6125.
    Ray v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-6166.
    Dixon v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-6172.
    Loy v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-6187.
    Franklin v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-6188.
    Urbanis v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-6193.
    Tompkins v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-6249.
    Brown v. Swenson, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-6257.
    Smith v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6260.
    Collins v. Dallas County Jail Sheriffs Department et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6262.
    Landry v. California.
   App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari denied.


text:
    No. 73-6265.
    O’Berry v. Jorandby et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6266.
    Lindsey v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 73-6270.
    Hinton v. Vincent, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-6273.
    Sims v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 73-6275.
    Magee v. Geary, Sheriff.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 73-6278.
    Bates v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6283.
    Gratton v. California Adult Authority et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 73-6289.
    Shearer v. Ohio.
   Ct. App. Ohio, Fairfield County. Certiorari denied.


text:
    No. 73-6291.
    Blair v. Ariyoshi, Lieutenant Governor of Hawaii, et al.
   Sup. Ct. Hawaii. Certiorari denied.


text:
    No. 73-6293.
    Easter v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-6295.
    Thomas v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6299.
    Fulghum v. North Carolina.
   Gen. Ct. Justice, Super Ct. Div., Wake County, N. C. Certiorari denied.


text:
    No. 73-6306.
    Kapewa v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 73-6311.
    Hohensee v. Grier.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-6318.
    Lem v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-6327.
    Wallace et vir v. Schulimson, Director, Division of Welfare of Missouri, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-6335.
    Taylor v. Alabama.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 73-6394.
    Falkner et ux. v. Goodhart, Judge.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-721.
    Meyers et al. v. Pennsylvania et al.
   C. A. 3d Cir. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant certiorari.

Mr. Justice Douglas,

dissenting.

The petitioners seek damages from the State of Pennsylvania arising from a bus accident allegedly caused by the improper design, construction, and maintenance of the highway. Seven children were fatally injured when the bus, carrying a group of young people, rotated 180 degrees on wet pavement and went through the guardrail and over the embankment. A study by the National Transportation Safety Board suggested that the accident was caused in part by the “low basic skid resistance of the pavement in-wet weather, and the probable presence of water draining across the pavement in an abnormal manner.” It also suggested that the fatalities and injuries resulted in part from an “ineffective highway guardrail which failed to prevent the bus from rolling down an embankment.” In bringing the action in Federal District Court petitioners contended that the State was liable because it had failed to make the road conform to applicable federal highway regulations which were binding upon Pennsylvania because of its acceptance of federal highway funds. The District Court dismissed the action, 344 F. Supp. 1337, and the Court of Appeals affirmed, 483 F. 2d 294, finding that petitioners had no private right of action for the State’s failure to conform to the federal regulations and that the State was immune from the suit in federal court because of the Eleventh Amendment.

As the District Court noted, the State here was “per forming its traditional state governmental function in designing, constructing, and maintaining highways within its own boundaries.” 344 F. Supp., at 1345. But in recent years States have voluntarily subjected themselves to federal regulations in this area in order to achieve, the benefits of federal funding, and thus to a significant .extent the traditional state autonomy has been displaced by the federal role. Under the Federal Aid-Highway Act, 23 U. S. C. § 101 et seq., the Secretary of Transportation must approve each state project, § 106 (a), and he is to withhold his approval of the plans and specifications if they are not conducive to safety, § 109 (a). Section 1Ó9 (e) requires 'conformance to certain safety regulations for funds to be, allowed, and § 114 (a) provides that state highway construction is subject to the inspection and approval of the Secretary. Section 116 provides that the Secretary may withhold his approval of-further projects if the State has not fulfilled its duty to properly maintain its highways.

The Congress has enlarged the federal role in ensuring highway safety since passage of the Federal Aid-Highway Act. . In 1965 Congress added 23 U. S. C. § 135, 79 Stat. 578, requiring each State to have a federally approved highway safety program “designed to reduce traffic accidents and deaths.” And because of the absence of effective state action, the following year the Congress passed the Highway Safety Act, 23 U. S. C. § 401 et seq., which repealed the former § 135 (see 80 Stat. 734). Section 402 (a) provides that the Secretary promulgate regulations for the state highway safety program. Pursuant to this provision the Secretary has promulgated regulations regarding highway skid resistance and guard-railings. 344 F. Supp., at 1348 n. 14. Congress increased the federal role because state highway safety programs had “generally been missing.” As in the Federal Aid-Highway Program, the Secretary is to withhold federal funds from States which do not comply with the federal regulations. See 23 U. S. C. §§ 116 (c), 402 (b).

The court below recognized that the State may waive its immunity under the Eleventh Amendment when “it leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation.” Parden v. Terminal R. Co., 377 U. S. 184, 196. In Parden, the Court found that Alabama, “when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act.” Id., at 192. But the court below distinguished Parden by finding that there was no indication that Congress intended to condition the receipt of federal funds upon the State’s submission to liability for violation of the accompanying regulations. Yet even respondents here concede that the State is bound by the federal regulations because the State has accepted federal funds. But, respondents argue, the federal regulations are not mandatory because “[t]he State has the option at any time to ignore the Federal Aid Highway Act and its progeny, the only result being the cessation of Federal Aid.”

The' fact is, however, that Pennsylvania has not exercised that optiqn. To the contrary, the state legislature has required the Secretary of Highways to enter “into all necessary contracts and agreements with the proper agencies of the government of the United States, and shall do all other things necessary and proper in order to obtain the benefits afforded under . . . [the Federal Aid Highway programs] or any other act of Congress providing Federal aid for highway purposes.” Pa. Stat. Ann., Tit. 36, § 670-1004.

“Where a State has consented to join a federal-state cooperative project, it is realistic to conclude that the State has agreed to assume its obligations under that legislation.” Edelman v. Jordan, 415 U. S. 651, 685. (Douglas, J., dissenting). Here the State has made that explicit by its own legislation. It has continued to seek and accept all of the federal funding available to it since the adoption of the statutes and regulations which petitioners here contend the State has violated. It would thus appear that the State is subject to whatever remedies are available when it is contended that a State has not conformed to the federal requirements.

The explicit statutory remedy, noted above, is that the Secretary may terminate federal highway aid under the appropriate legislation. The District Court concluded that since this was the only sanction expressly authorized by the statute, “the Highway Safety Act creates no duty on behalf of the states running toward these plaintiffs and creates no private action for breach thereof.” 344 F. Supp., at 1348. The Court of Appeals, affirming, found no private right of action- implied by the Act. The court relied on its - prior decision in Mahler v. United States, 306 F. 2d 713, which found that the purpose of the federal regulations was to protect the federal investment in the roads, not to assure travelers that the roads were safely constructed and maintained. But the Highway Safety Act was enacted subsequent to the Mahler decision and, as noted above, it makes clear the federal concern for highway safety. • It is well established that a federal statute may by implication create a private action for its violation, maintainable by one in the class of persons for whose protection the statute was enacted. J. I. Case Co. v. Borak, 377 U. S. 426. And the fact that the statute provides explicitly for administrative action to accomplish its purpose does not alone negate the inference that a private action has also been created, even though the administrative regulation appears comprehensive. Id., at 432-433; Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 402 n. 4 (Harlan, J., concurring). The question is whether “damages are necessary to effectuate the congressional policy underpinning the substantive provisions of the statute.” Bivens, supra, at 402. The congressional policy involved here was to coerce the States to adopt “coordinated, State action programs of highway safety ... if one life is saved, the' establishment Of coordinated action programs will be a success.”

By .voluntarily entering into the federal highway program the State has waived any immunity from suit charging it with failure to perform its obligations under that program. See my dissent in Edelman v. Jordan, supra. Because I believe that the .right of private action under the federal highway program is-an important question, and that the Eleventh Amendment issue was wrongly decided below, I would grant certiorari.

       The District Court accepted these conclusions of the National Transportation Board as correct for the purpose of considering respondents’ motions to dismiss. 344 F. Supp. 1337, 1340 n. 5

       “The Judicial power of the United States shall not be construed to extend .to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

       H. R. Rep. No. 681, 89th Cong., 1st Sess. (1965). Although the highway involved here was initially constructed before passage of the Highway Safety Act, petitioners contended in the District Court that under the legislation the State was required to maintain the highway in accordance with the new standards and that it had failed to meet this obligation. This contention, of course, goes to the merits of petitioners' claim and need not be resolved in determining whether the action was properly dismissed.

       H. R. Rep. No. 681, supra, n. 3, at 8.


text:
    No. 73-931.
    California v. Brown et al.
   Sup. Ct. Cal. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 73-1356.
    Rose, Warden v. Morelock.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 73-963.
    Dravo Corp. et al. v. Illinois et al.
   App. Ct. Ill., 5th Dist. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-1063.
    Hanners v. United States.
   C. A. 10th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5945.
    Johnson, aka Thomas v. United States.
   Ct. App. D. C. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-6144.
    Williams v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-1109.
    Canales et al. v. City of Alviso et al.
   Ct. App. Cal., 1st App. Dist. Motion of Alviso Ad Hoc Committee for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 73-1191.
    Hourihan v. Dakin et al.
   C. A. 1st Cir. Petition for writ of certiorari denied as untimely-filed. 28 U. S. C. § 2101 (c).


text:
    No. 73-1261.
    Albright, Administrator v. R. J. Reynolds Tobacco Co.
   C. A. 3d Cir. Motion to substitute Charles M. Albright in place of Mary Albright, Administratrix of Estate of Charles Albright, as party petitioner granted. Certiorari denied.


text:
    No. 73-1295.
    Oxnard School District Board of Trustees v. Soria et al.
   C. A. 9th Cir. Application for stay presented to Mr. Justice Rehnquist, and by him referred to the Court, denied. Certiorari denied;


text:
    No. 72-1637.
    National Labor Relations Board v. Magnavox Company of Tennessee, Patterson v. Warner et al., Tager v. United States, Kunstsammlungen zu Weimar v. Federal Republic of Germany et al., Tager v. United States, Pacific Transport Co. et al. v. Commissioner of Internal Revenue, Fletcher v. United States, Thrower v. United States, Sharrow v. Abzug et al., Wolf v. Hollowell, Penitentiary Superintendent, Fischler v. ITT Federal Electric Corp. et al.,
    No. 72-5830.
    No. 73-393.
    No. 73-492.
    No. 73-694.
    No. 73-878.
    No. 73-5573.
    No. 73-5621.
    No. 73-5755.
    No. 73-5812.
    No. 73-6036.
   415 U. S. 322;

415 U. S. 303;

414 U. S. 1162;

415 U. S. 931;

415 U. S. 914;

415 U. S. 948;

415 U. S. 922;

415 U. S. 933;

415 U. S. 958;

415 U. S. 946; and

415 U. S. 943. Petitions for rehearing denied.


text:
    No. 73-698.
    Friends of the Earth et al. v. Stamm, Commissioner, Bureau of Reclamation, et al.,
   414 U. S. 1171. Motion of Shonto Chapter of the Navajo Nation et al. for leave to file a brief as amici curiae in support of rehearing granted. Petition for rehearing denied.


text:
    April 16, 1974
    No. 73-596.
    Pearson et al. v. Ecological Science Corp. et al.
   C. A. 5th Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    April 22, 1974
    No. 73-6355.
    Klein v. Mayo et al.
   Affirmed on appeal from D. C. Mass.


text:
    No. 73-6346.
    Toland v. New Jersey.
   Appeal from Super. Ct. N. J. dismissed for want of substantial.federal question.


text:
    No. 73-1217.
    Chicago, Rock Island & Pacific Railroad Co. et al. v. Nueces County Navigation District et al.
   Appeal from D. C. N. D. Tex. Judgment vacated and case remanded with directions to dismiss case as moot.


text:
    No. —.
    Ellis v. Harada et al.
   Motion of petitioner for leave to dispense with printing petition denied.


text:
    No. —.
    Pitt River Tribe v. United States.
   Ct. Cl. Motion of petitioner to waive type-size requirement of Rule 39 of the Rules of this Court denied..


text:
    No. 73-556.
    No. 73-795.
    Florida Power & Light Co. v. International Brotherhood of Electrical Workers, Local 641 et al.; and National Labor Relations Board v. International Brotherhood of Electrical Workers, AFL-CIO, et al.
   C. A. D., C. Cir. [Certiorari granted, 414 U. S. 1156.] Motion of United States Chamber of Commerce for leave to file a brief as amicus curiae denied.


text:
    No. 73-631.
    Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO.
   C. A. 6th Cir. [Certiorari granted, 414 U. S. 1091.]- Motion of respondent for leave to file supplemental brief after argument granted.


text:
    No. 73-690.
    Air Pollution Variance Board of Colorado v. Western Alfalfa Corp.
   Ct. App, Colo. [Certiorari granted, 414 U. S. 1156.] Motion of Attorney-General of California for leave to participate in oral argument as amicus curiae denied.


text:
    No. 73-781.
    Scherk v. Alberto-Culver Co.
   C. A. 7th Cir. [Certiorari granted, 414 U. S. 1156.] Motion of American Arbitration Assn, for leave to participate in oral argument as amicus curiae granted.


text:
    No. 73-1018.
    United States v. Mazurie et al.
   C. A. 10th Cir. [Certiorari granted, 415 U. S. 947.] Motion of Shoshone and Arapahoe Tribes of Wind River Indian Reservation, Wyoming, for leave to file a brief as amici curiae granted.


text:
    No. 73-1281.
    Tonasket et al. v. Thompson et al.
   C. A. 9th Cir. The Solicitor General is invited to file a brief expressing the views of the United States.


text:
    No. 73-711.
    Cryan, Sheriff, et al. v. Hamar Theatres, Inc., et al.
   Appeal from D. C. N. J. Probable jurisdiction noted.


text:
    No. 73-130.
    Ellis et al. v. Dyson et al.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 73-1424.
    Serfass v. United States.
   C. A. 3d Cir. Certiorari granted.


text:
    No. 73-1231.
    No. 73-1234.
    Linden Lumber Division, Summer & Co. v. National Labor Relations Board et al.; and National Labor Relations Board v. Truck Drivers Union Local No. 413 et al.
   C. A. D. C. Cir. Motion of the Chamber of Commerce of the United States for leave to file a brief as amicus curiae and certiorari granted. Cases consolidated and a total of one hour allotted for oral argument;


text:
    No. 73-5677.
    Schick v. Reed, Chairman, United States Board of Parole, et al.
   C.,A. D. C. Cir. Motion for leave to proceed in jorma pauperis and certiorari granted.


text:
    No. 73-977.
    Jobe v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-978.
    Blair, Mayor of Falls Church, Virginia, et al. v. Joseph et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-1029.
    West v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-1057.
    Edin v. United States; and Astalos et al. v. United States.
    No. 73-1058.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-1078.
    Elrod et al. v. Western Conference of Teamsters et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-1096.
    Novelli v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-1115.
    Price, dba Price’s Livestock Marketing Co. v. Brennan, Secretary of Labor.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-1116.
    La Gioia v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-1135.
    Sahley v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-1205.
    McGinnis v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-1206.
    Valenti v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-1212.
    DeAngelis v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-1238.
    International Organization of Masters, Mates & Pilots, International Marine Division, ILA, AFL-CIO, et al. v. National Labor Relations Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-1250.
    Tann et al. v. Humphreys, Administrator.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-1277.
    Randono v. Sheriff of Clark County.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 73-1317.
    Rochford et al. v. Confederation of Police et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-1324.
    Associated General Contractors of Massachusetts, Inc., et al. v. Altshuler et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-1330.
    Glynn v. Donnelly.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-1336.
    Hardy et al. v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 73-1344.
    May, Administratrix v. Goldman et al.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 73-1345.
    Gabaldon et al. v. United Farm Workers Organizing Committee et al.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 73-1350.
    Hillcrest Presbyterian Church of Seattle v. Presbytery of Seattle, Inc., et al.
   Ct. App. Wash. Certiorari denied.


text:
    No. 73-1376.
    Spellers et ux. v. Steuart Motor Co., t/a Triangle Motors.
   Ct. App. D. C. Certiorari denied.


text:
    No. 73-1381.
    Atkinson-Dauksch Agencies, Inc. v. John Hancock Mutual Life Insurance Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-1382.
    Klemmer v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 73-5841.
    Reingold v. Curtin et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5848.
    Rowlette v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-5854.
    Montoya v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5855.
    Williams v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5857.
    Hernandez-Padilla v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5895.
    Hubbard v. Illinois.
   Sup. Ct. 111. Certiorari denied.


text:
    No. 73-5973.
    Farnsworth v. United States.
   C. A. 8th Cir. ' Certiorari denied.


text:
    No. 73-5989.
    Zogby v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5990.
    Wallace v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5991.
    King et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-6008.
    McGann v. United States Board of Parole et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-6012.
    Fletcher v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6020.
    McGann et al. v. United States Board of Parole.
   C. A. 3d Cir. Certiorari denied.