source: Caselaw Access Project

author: Mr. Justice Stewart Mb. Justice Powell,

license: Public Domain

text:
    BLACKLEDGE, WARDEN, et al. v. ALLISON
    No. 75-1693.
    Argued February 22, 1977
    Decided May 2, 1977

      Richard N. League, Assistant Attorney General of North Carolina, argued the cause for petitioners. With him on the briefs was Rufus L. Edmisten, Attorney General.

      C. Frank Goldsmith, Jr., by appointment of the Court, 429 U. S. 957, argued the cause and filed a brief for respondent.
   Mr. Justice Stewart

delivered the opinion of the Court.

The respondent, Gary Darrell Allison, an inmate of a North Carolina penitentiary, petitioned a Federal District Court for a writ of habeas corpus. The court dismissed his petition without a hearing, and the Court of Appeals reversed, ruling that in the circumstances of this case summary dismissal was improper. We granted certiorari to review the judgment of .the Court of Appeals.

I

Allison was indicted by a North Carolina grand jury for breaking and entering, attempted safe robbery, and possession of burglary tools. At his arraignment, where he was represented by court-appointed counsel, he initially pleaded not guilty. But after learning that his codefendant planned to plead guilty, he entered a guilty plea to a single count of attempted safe robbery, for which the minimum prison sentence was 10 years and the maximum was life. N. C. Gen. Stat. § 14-89.1 (1969).

In accord with the procedure for taking guilty pleas then in effect in North Carolina, the judge in open court read from a printed form 13 questions, generally concerning the defendant’s understanding of the charge, its consequences, and the voluntariness of his plea. Allison answered “yes” or “no” to each question, and the court clerk transcribed those responses on a copy of the form, which Allison signed. So far as the record shows, there was no questioning beyond this routine; no inquiry was made of either defense counsel or prosecutor. Two questions from the form are of particular relevance to the issues before us: Question No. 8 — “Do you understand that upon your plea of guilty you could be imprisoned for as much as minimum [sic] of 10 years to life?” to which Allison answered “Yes”; and Question No. 11 — “Has the Solicitor, or your lawyer, or any policeman, law officer or anyone else made any promises or threat to you to influence you to plead guilty in this case?” to which Allison answered “No.”

The trial judge then accepted the plea by signing his name at the bottom of the form under a text entitled “Adjudication,” which recited the three charges for which Allison had been indicted, that he had been fully advised of his rights, was in fact guilty, and pleaded guilty to attempted safe robbery “freely, understanding^ and voluntarily,” with full awareness of the consequences, and “without undue . . . compulsion . . . duress, [or] promise of leniency.” Three days later, at a sentencing hearing, of which there is no record whatsoever, Allison was sentenced to 17-21 years in prison.

After unsuccessfully exhausting a state collateral remedy, Allison filed a pro se petition in a Federal District Court seeking a writ of habeas corpus. The petition alleged:

“[H]is guilty plea was induced by an unkept promise, and therefore was not the free and willing choice of the petitioner, and should be set aside by this Court. An unkept bargain which has induced a guilty plea is grounds for relief. Santobello v. New York, 404 U. S. 257, 267 (1971).” Pet. for Cert. 14.

The petition went on to explain and support this allegation as follows:

“The petitioner was led to believe and did believe, by Mr. Pickard [Allison’s attorney], that he Mr. N. Glenn Pickard had talked the case over with the Solicitor and the Judge, and that if the petitioner would plea[d] guilty, that he would only get a 10 year sentence of penal servitude. This conversation, where the petitioner was assured that if he plea[ded] guilty, he would only get ten years was witnessed by another party other than the petitioner and counsel.
“The petitioner believing that he was only going to get a ten year active sentence, allowed himself to be pled guilty to the charge of attempted safe robbery, and was shocked by the Court with a 17-21 year sentence.
“Thé petitioner was promised by his Attorney, who had consulted presumably with the Judge and Solicitor, that he was only going to get a ten year sentence, and therefore because of this unkept bargain, he is entitled to relief in this Court.
“The petitioner is aware of the fact that he was questioned by the trial Judge prior to sentencing, but as he thought he was only going to get ten years, and had been instructed to answer the questions, so that the Court would accept the guilty plea, this fact does not preclude him from raising this matter especially since he was not given the promised sentence by the Court.
“. . . The fact that the Judge, said that he could get more, did not affect, the belief of the petitioner, that he was only going to get a ten year sentence.”

The petitioner here, Warden Blackledge, filed a motion to dismiss and attached to it the “transcript” of the plea hearing, consisting of nothing more than the printed form filled in by the clerk and signed by Allison and the state-court judge. The motion contended that the form conclusively showed that Allison had chosen to plead guilty knowingly, voluntarily, and with full awareness of the consequences. The Federal District Court agreed that the printed form “conclusively shows that [Allison] was carefully examined by the Court before the plea was accepted. Therefore, it must stand.” Pet. for Cert. 18. Construing Allison’s petition as alleging merely that his lawyer’s prediction of the severity of the sentence turned out to be inaccurate, the District Court found no basis for relief and, accordingly, dismissed the petition.

One week later Allison filed a petition for rehearing. He contended that his statements during the guilty-plea proceeding in the state court were “evidentiary, but NOT conclusory” (App. 17); that if true the allegations in his petition entitled him to relief; and that he deserved a chance to establish their truth. Apparently impressed by these arguments and recognizing that Allison was alleging more than a mere “prediction” by his lawyer, the District Court referred the rehearing petition to a United States Magistrate, who directed Allison to submit evidence in support of his allegations. After an inconclusive exchange of correspondence, the Magistrate concluded that despite “ample opportunity” Allison had failed to comply with the directive, and recommended that the petition for rehearing be denied. The District Court accepted the Magistrate’s recommendation and denied the petition. A motion for reconsideration was also denied.

The Court of Appeals for the Fourth Circuit reversed. It held that Allison’s allegation of a broken promise, as amplified by the explanation that his lawyer instructed him to deny the existence of any promises, was not foreclosed by his responses to the form questions at the state guilty-plea proceeding. The appellate court reasoned that when a pro se, indigent prisoner makes allegations that, if proved, would entitle him to habeas corpus relief, he should not be required to prove his allegations in advance of an evidentiary hearing, at least in the absence of counter affidavits conclusively proving their falsity. The case was therefore remanded for an evidentiary hearing. 533 F. 2d 894.

The petitioner warden sought review in this Court, 28 U. S. C. § 1254 (1), and we granted certiorari, 429 U. S. 814, to consider the significant federal question presented.

II

Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned. The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings.

These advantages can be' secured, however, only if dispositions by guilty plea are accorded a great measure of finality. To allow indiscriminate hearings in federal postconviction proceedings, whether for federal prisoners under 28 U. S. C. §2255 or state prisoners under 28 U. S. C. §§2241-2254, would eliminate the chief virtues of the plea system — speed, economy, and finality. And there is reason for concern about that prospect. More often than not a prisoner has everything to gain and nothing to lose from filing a collateral attack upon his guilty plea. If he succeeds in vacating the judgment of conviction, retrial may be difficult. If he convinces a court that his plea was induced by an advantageous plea agreement that was violated, he may obtain the benefit of its terms. A collateral attack may also be inspired by “a mere desire to be freed temporarily from the confines of the prison.” Price v. Johnston, 334 U. S. 266, 284-285; accord, Machibroda v. United States, 368 U. S. 487, 497 (Clark, J., dissenting).

Yet arrayed against the interest in finality is the very purpose of the writ of habeas corpus — to safeguard a person’s freedom from detention in violation of constitutional guarantees. Harris v. Nelson, 394 U. S. 286, 290-291. “The writ of habeas corpus has played a great role in the history of human freedom. It has been the judicial method of lifting undue restraints upon personal liberty.” Price v. Johnston, supra, at 269. And a prisoner in custody after pleading guilty, no less than one tried and convicted by a jury, is entitled to avail himself of the writ in challenging the constitutionality of his custody.

In Machibroda v. United States, supra, the defendant had pleaded guilty in federal court to bank robbery charges and been sentenced to 40 years in prison. He later filed a § 2255 motion alleging that his plea had been induced by an Assistant United States Attorney’s promises that his sentence would not exceed 20 years, that the prosecutor had admonished him not to tell his lawyer about the agreement, and that the trial judge had wholly failed to inquire whether the guilty plea was made voluntarily before accepting it. This Court noted that the allegations, if proved, would entitle the defendant to relief, and that they raised an issue of fact that could not be resolved simply on the basis of an affidavit from the prosecutor denying the allegations. Because those allegations “related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light,” 368 U. S., at 494-495, and were not so “vague [or] conclusory,” id., at 495, as to permit summary disposition, the Court ruled that the defendant was entitled to the opportunity to substantiate them at an evidentiary hearing.

The later case of Fontaine v. United States, 411 U. S. 213, followed the same approach. The defendant there, having waived counsel, had also pleaded guilty to federal bank robbery charges. Before accepting the plea, the District Judge addressed the defendant personally, and the defendant stated in substance “that his plea was given voluntarily and knowingly, that he understood the nature of the charge and the consequences of the plea, and that he was in fact guilty.” Id., at 213-214. The defendant later filed a § 2255 motion to vacate his sentence on the ground that his plea had been coerced “by a combination of fear, coercive police tactics, and illness, including mental illness.” 411 U. S., at 214. The motion included supporting factual allegations, as well as hospital records documenting some of the contentions.

Although noting that in collaterally attacking a plea of guilty a prisoner “may not ordinarily repudiate” statements made to the sentencing judge when the plea was entered, the Court observed that no procedural device for the taking of guilty pleas is so perfect in design and exercise as to warrant a per se rule rendering it “uniformly invulnerable to subsequent challenge.” Id., at 215. Because the record of the plea hearing did not, in view of the allegations made, “ ‘conclusively show that the prisoner [was] entitled to no relief/ ” 28 U. S. C. § 2255, the Court ruled that the prisoner should be given an evidentiary hearing.

These cases do not in the least reduce the force of the original plea hearing. For the representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible. Machibroda, supra, at 495-496 (§ 2255); Price v. Johnston, supra, at 286-287 (§ 2243).

What Machibroda and Fontaine indisputably teach, however, is that the barrier of the plea or sentencing proceeding record, although imposing, is not invariably insurmountable. In administering the writ of habeas corpus and its § 2255 counterpart, the federal courts cannot fairly adopt a per se rule excluding all possibility that a defendant’s representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment.

Ill

The allegations in this case were not in themselves so “vague [or] conclusory,” Machibroda, 368 U. S., at 495, as to warrant dismissal for that reason alone. Allison alleged as a ground for relief that his plea was induced by an unkept promise. But he did not stop there. He proceeded to elaborate upon this claim with specific factual allegations. The petition indicated exactly what the terms of the promise were; when, where, and by whom the promise had been made; and the identity of one witness to its communication. The critical question is whether these allegations, when viewed against the record of the plea hearing, were so “palpably incredible,” ibid., so “patently frivolous or false,” Herman v. Claudy, 350 U. S. 116, 119, as to warrant summary dismissal. In the light of the nature of the record of the proceeding at which the guilty plea was accepted, and of the ambiguous status of the process of plea bargaining at the time the guilty plea was made, we conclude that Allison’s petition should not have been summarily dismissed.

Only recently has plea bargaining become a visible practice accepted as a legitimate component in the administration of criminal justice. For decades it was a sub rosa process shrouded in secrecy and deliberately concealed by participating defendants, defense lawyers, prosecutors, and even judges. Indeed, it was not until our decision in Santobello v. New York, 404 U. S. 257, that lingering doubts about the legitimacy of the practice were finally dispelled.

Allison was arraigned a mere 37 days after the Santobello decision was announced, under a North Carolina procedure that had not been modified in light of Santobello or earlier decisions of this Court recognizing the process of plea bargaining. That procedure itself reflected the atmosphere of secrecy which then characterized plea bargaining generally. No transcript of the proceeding was made, The only record was a standard printed form. There is no way of knowing whether the trial judge in any way deviated from or supplemented the text of the form. The record is silent as to what statements Allison, his lawyer, or the prosecutor might have made regarding promised sentencing concessions. And there is no record at all of the sentencing hearing three days later, at which one of the participants might well have made a statement shedding light upon the veracity of the allegations Allison later advanced.

The litany of form questions followed by the trial judge at arraignment nowhere indicated to Allison (or indeed to the lawyers involved) that plea bargaining was a legitimate practice that could be freely disclosed in open court. Neither lawyer was asked to disclose any agreement that had been reached, or sentencing recommendation that had been promised. The process thus did nothing to dispel a defendant’s belief that any bargain struck must remain concealed — ■ a belief here allegedly reinforced by the admonition of Allison’s lawyer himself that disclosure could jeopardize the agreement. Rather than challenging respondent’s counsel’s contention at oral argument in this Court that “at that time in North Carolina plea bargains were never disclosed in response to such a question on such a form,” Tr. of Oral Arg. 25, counsel for the petitioners conceded at oral argument that “[t]hat form was a minimum inquiry.” Id., at 49.

Although “[ljogically the general inquiry should elicit information about plea bargaining, ... it seldom has in the past.” Advisory Committee Notes to 1974 Amendment of Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 1304 (1970 ed., Supp. V). Particularly if, as Allison alleged, he was advised by counsel to conceal any plea bargain, his denial that any promises had been made might have been a courtroom ritual more sham than real. We thus cannot conclude that the allegations in Allison’s habeas corpus petition, when measured against the “record” of the arraignment, were so “patently false or frivolous” as to warrant summary dismissal.

North Carolina has recently undertaken major revisions of its plea-bargaining procedures, in part to prevent the very kind of problem now before us. Plea bargaining is expressly legitimated. N. C. Gen. Stat. § 15A-1021, and Official Commentary (1975). The judge is directed to advise the defendant that courts have approved plea bargaining and he may thus admit to any promises without fear of jeopardizing an advantageous agreement or prejudicing himself in the judge’s eyes. See Brief for Respondent, App. D. Specific inquiry about whether a plea bargain has been struck is then made not only of the defendant, but also of his counsel and the prosecutor. N. C. Gen. Stat. §§ 15A-1023 (a), (c) (1975). Finally, the entire proceeding is to be transcribed verbatim. § 15A-1026, as amended (Int. Supp. 1976).

Had these commendable procedures been followed in the present case, Allison’s petition would have been cast in a very different light. The careful explication of the legitimacy of plea bargaining, the questioning of both lawyers, and the verbatim record of their answers at the guilty-plea proceedings would almost surely have shown whether any bargain did exist and, if so, insured that it was not ignored. But the salutary reforms recently implemented by North Carolina highlight even more sharply the deficiencies in the record before the District Court in the present case.

This is not to say that every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing. As in civil cases generally, there exists a procedure whose purpose is to test whether facially adequate allegations have sufficient basis in fact to warrant plenary presentation of evidence. That procedure is, of course, the motion for summary judgment. Upon remand the warden will be free to make such a motion, supporting it with whatever proof he wishes to attach. If he chooses to do so, Allison will then be required either to produce some contrary proof indicating that there is a genuine issue of fact to be resolved by the District Court or to explain his inability to provide such proof. Fed. Rules Civ. Proc. 56 (e), (f).

Moreover, as is now expressly provided in the Rules Governing Habeas Corpus Cases, the district judge (or a magistrate to whom the case may be referred) may employ a variety of measures in an effort to avoid the need for an evidentiary hearing. Under Rule 6, a party may request and the judge may direct that discovery take place, and “there may be instances in which discovery would be appropriate [before an evidentiary hearing, and would show such a hearing] to be unnecessary . . . Advisory Committee note to Rule 6, Rules Governing Habeas Corpus Cases, 28 U. S. C., p. 268 (1976 ed.). Under Rule 7; the judge can direct expansion of the record to include any appropriate materials that “enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing.”

In short, it may turn out upon remand that a full evidentiary hearing is not required. But Allison is “entitled to careful consideration and plenary processing of [his claim,] including full opportunity for presentation of the relevant facts.” Harris v. Nelson, 394 U. S., at 298. See Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv. L. Rev. 321, 337-338 (1973). Upon that understanding, the judgment of the Court of Appeals is affirmed.

It is so ordered.

The Chief Justice concurs in the judgment.

Mb. Justice Rehnquist took no part in the consideration or decision of this case.

Mb. Justice Powell,

concurring.

I join the opinion of the Court, and write briefly only to emphasize the importance of finality to a system of justice. Our traditional concern for “persons whom society has grievously wronged and for whom belated liberation is little enough compensation,” Fay v. Noia, 372 U. S. 391, 441 (1963), has resulted in a uniquely elaborate system of appeals and collateral review, even in cases in which the issue presented has little or nothing to do with innocence of the accused. The substantial societal interest in both innocence and finality of judgments is subordinated in many instances to formalisms.

The case before us today is not necessarily an example of abuse of the system. It is an example, however, of how finality can be frustrated by failure to adhere to proper procedures at the trial court level. I do not prejudge the ultimate result in this case by saying that respondent’s guilty plea may well have been made knowingly and voluntarily. The case is here, five years after respondent’s conviction, and following review by the North Carolina courts, the United States District Court, and the Court of Appeals for the Fourth Circuit, primarily because the record before us leaves room for some doubt as to the reliability of the procedure followed with respect to the guilty plea. All that we have in the record, as a basis for testing the possible merit of respondent’s petition, are answers to a printed form certified by the trial judge. We do not know whether anything was said by the judge, the prosecutor, or counsel for respondent, other than the questions read from the form and the monosyllabic answers by respondent. There was no transcript of the proceedings.

As the Court’s opinion indicates, there is every reason to believe that if a procedure similar to that prescribed by the new North Carolina statute is followed, a contention such as that made by respondent will justify an evidentiary hearing “only in the most extraordinary circumstances.” Ante, at 80 n. 19. If all participants in the process at the plea stage are mindful of the importance of adhering carefully to prescribed procedures and of preserving a full record thereof, the causes of justice and finality both will be served.

       The only record of the proceeding consists, therefore, of the executed form, which reads, in its entirety (Pet. for Cert. 10-13), as follows:
      “State of North Carolina
      “County of Alamance
      “State of North Carolina vs. “Gary Darrell Allison
      “File #71CrS 15073
      “Film #..........
      “In the General Court of Justice “Superior Court Division
      “TRANSCRIPT OF PLEA
      “The Defendant, being first duly sworn, makes the following answers to the questions asked by the Presiding Judge:
      “1. Are you able to hear and understand my statements and questions? Answer: Yes
      “2. Are you now under the influence of any alcohol, drugs, narcotics, medicines, or other pills? Answer: No
      “3. Do you understand that you are charged with the felony of Attempted Safe Cracking? Answer: Yes
      “4. Has the charge been explained to you, and are you ready for trial ? Answer [: ] Yes
      “5. Do you understand that you have the right to plead not guilty and to be tried by a Jury? Answer: Yes “6. How do you plead to the charge of Attempted Safe Cracking— Guilty, not Guilty, or nolo contendere? Answer: Guilty
      “7. (a) Are you in fact guilty? (Omit if plea is nolo contendere) Answer: Yes
      (b) (If applicable) Have you had explained to you and do you understand the meaning of a plea of nolo contendere ? Answer:----
      “8. Do you understand that upon your plea of guilty you could be imprisoned for as much as minimum of 10 years to life? Answer: Yes
      “9. Have you had time to subpoena witnesses wanted by you? Answer: Yes
      “10. Have you had time to talle and confer with and have you conferred with your lawyer about this case, and are you satisfied with his services? Answer: Yes
      “11. Has the Solicitor, or your lawyer, or any policeman, law officer or anyone else made any promises or threat to you to influence you to plead guilty in this case? Answer: No
      “12. Do you now freely, understanding^ and voluntarily authorize and instruct your lawyer to enter on your behalf a plea of guilty? Answer: Yes
      “13. Do you have any questions or any statement’to make about what I have just said to you? Answer: No
      “I have read or heard read all of the above questions and answers and understand them, and the answers shown are the ones I gave in open Court, and they are true and correct.
      “Gary Darrell Allison “Defendant
      “Sworn to and subscribed before me this 24th day of January, 1972.
      “AOC-L Form 158 “Catherine Sykes, Ass't.
      “Rev. 10/69 “Clerk Superior Court
      “ADJUDICATION
      “The undersigned Presiding Judge hereby finds and adjudges:
      “I. That the defendant, Gary Darrell Allison, was sworn in open Court and the questions were asked him as set forth in the Transcript of Plea by the undersigned Judge, and the answers given thereto by said defendant are as set forth therein.
      "II. That this defendant, was represented by attorney, M. Glenn Pickard, who was (court appointed); and the defendant through his attorney, in open Court, plead [sic] (guilty) to Attempted Safe Cracking as charged in the (warrant) (bill of indictment), of Breaking & Entering, Safe Burglary & Possession of Burglary Tools and in open Court, under oath further informs the Court that:
      “1. He is and has been fully advised of his rights and the charges against him;
      "2. He is and has been fully advised of the maximum punishment for said offense(s) charged, and for the offense(s) to which he pleads guilty;
      “3. He is guilty of the offense(s) to which he pleads guilty;
      “4. He authorizes his attorney to enter a plea of guilty to said charge (s) ;
      “5. He has had ample time to confer with his attorney, and to subpoena witnesses desired by him;
      “6. He is ready for trial;

        “7. He is satisfied with the counsel and services of his attorney;
      “And after further examination by the Court, the Court ascertains, determines and adjudges, that the plea of guilty, by the defendant is freely, understandingly and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency. It is, therefore, ORDERED that his plea of guilty be entered in the record, and that the Transcript of Plea and Adjudication be filed and recorded.
      “This 24th day of January, 1972.
      “Marvin Blount Jr. “Judge Presiding”

       See generally Santobello v. New York, 404 U. S. 257, 260-261; Brady v. United States, 397 U. S. 742, 751-752; ABA Project on Standards for Criminal Justice, Pleas of Guilty 1-3 (Approved Draft 1968) (hereinafter ABA Standards); ALI Model Code of Pre-Arraignment Procedure § 350.3, Commentary (1975) (hereinafter ALI Code).

        Fontaine and Machibroda were by no means the first cases in which this Court held that postconviction collateral relief might be available to a person convicted after having pleaded guilty. See, e. g., Herman v. Claudy, 350 U. S. 116; Waley v. Johnston, 316 U. S. 101; Walker v. Johnston, 312 U. S. 275.

       The standards of §§ 2243 and 2255 differ somewhat in phrasing. Compare § 2243 (A state prisoner seeking a writ of habeas corpus is to be granted an evidentiary hearing “unless it appears from the application that the applicant ... is not entitled thereto”) with § 2255 (A federal prisoner moving for relief is to be granted a hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief”). However, the remedy under § 2255 was designed to be “exactly commensurate” with the federal habeas corpus remedy, Swain v. Pressley, 430 U. S. 372, 381; Hill v. United States, 368 U. S. 424, 427; United States v. Hayman, 342 U. S. 205, 219, and has been construed in accordance with that design, e. g., Sanders v. United States, 373 U. S. 1, 6-14. See also Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1173, and n. 126 (1970).
      Unlike federal habeas corpus proceedings, a motion under § 2255 is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner. In some cases, the judge’s recollection of the events at issue may enable him summarily to dismiss a § 2255 motion, even though he could not similarly dispose of a habeas corpus petition challenging a state conviction but presenting identical allegations. Cf. Machibroda, 368 U. S., at 495 (“Nor were the circumstances alleged of a kind that the District Judge could completely resolve by drawing upon his own personal knowledge or recollection”). To this extent, the standard may be administered in a somewhat different fashion.

       See, e. g., United States v. McCarthy, 433 F. 2d 591, 593 (CA1); United States v. LaVallee, 319 F. 2d 308, 314 (CA2); Trotter v. United States, 359 F. 2d 419 (CA2); United States v. Valenciano, 495 F. 2d 585 (CA3); Edwards v. Garrison, 529 F. 2d 1374, 1377 (CA4); Bryan v.
        United States, 492 F. 2d 775, 778 (CA5); Mayes v. Pickett, 537 F. 2d 1080, 1082-1083 (CA9); Jones v. United States, 384 F. 2d 916, 917 (CA9); United States v. Simpson, 141 U. S. App. D. C. 8, 11, 436 F. 2d 162, 165. In citing these cases we do not necessarily approve the result in any of them.

       An analogy is to be found in the law of contracts. The parol evidence rule has as its very purpose the exclusion of evidence designed to repudiate provisions in a written integration of contractual terms. Yet even a written contractual provision declaring that the contract contains the complete agreement of the parties, and that no antecedent or extrinsic representations exist, does not conclusively bar subsequent proof that such additional agreements exist and should be given force. The provision denying the existence of such agreements, of course, carries great weight, but it can be set aside by a court on the grounds of fraud, mistake, duress, “or on some ground that is sufficient for setting aside other contracts.” 3 A. Corbin, Contracts § 578, p. 403 (2d ed. 1960); see id., at 405-407, and nn. 41, 43.

       See Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases ('"[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to a 'real possibility of constitutional error’ ”), 28 U. S. C. App., p. 266 (1976 ed.).

       Allison’s petition stated that his lawyer, “who had consulted presumably with the Judge and Solicitor,” had promised that the maximum sentence to be imposed was 10 years. This allegation, in light of the other circumstances of this case, raised the serious constitutional question whether his guilty plea was knowingly and voluntarily made. See Santobello v. New York, 404 U. S. 257; Brady v. United States, 397 U. S. 742, 755.

       See, e. g., Advisory Committee Notes to 1974 Amendment of Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 1304 (1970 ed., Supp. V); ABA Standards, Commentary 60-64; ALI Code, § 350.5, Note and Commentary; President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 9, 12-13, 111, 115 (1967) (hereinafter Task Force Report).

       The Santobello opinion declared that plea bargaining was “an essential component” of the criminal process which, “[pjroperly administered, . . . is to be encouraged.” 404 U. S., at 260.

         See McMann v. Richardson, 397 U. S. 759; Brady v. United States, supra.

       According to the petitioner’s brief, the form of inquiry employed at Allison’s arraignment dates from 1967.

       See, e. g., United States v. McCarthy, 433 F. 2d, at 593; Walters v. Harris, 460 F. 2d 988, 993 (CA4); United States v. Williams, 407 F. 2d 940, 947-949, and n. 13 (CA4); Bryan v. United States, 492 F. 2d, at 780-781; Moody v. United States, 497 F. 2d 359, 362-363, and n. 2 (CA7); United States v. Tweedy, 419 F. 2d 192, 193 (CA9); Jones v. United States, 423 F. 2d 252 (CA9); White v. Gaffney, 435 F. 2d 1241 (CA10); ABA Standards, Commentary 60-64; Task Force Report 9, 12-13, 111, 115; A. Trebach, The Rationing of Justice 159-160 (1964).

       See Advisory Committee Notes to 1974 Amendment of Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 1304 (1970 ed., Supp. V); ABA Standards, Commentary 61-62; Task Force Report 111.

       There is another ground to support the view that the allegations were not wholly incredible. Allison was indicted on three separate charges. All three were listed in the printed arraignment form, but he pleaded guilty to only one of them; the other two may well have been dismissed pursuant to an agreement. And this is not a case in which there is a record of the sentencing proceedings, see, e. g., United States v. Tweedy, supra; Lynott v. United States, 360 F. 2d 586 (CA3), or where delay by the prisoner in seeking postconviction relief, see, e. g., Raines v. United States, 423 F. 2d 526, 528 (CA4); United States v. Tweedy, supra, at 195; see also Machibroda v. United States, 368 U. S., at 498-499 (Clark, J., dissenting), undercuts the credibility of his allegations.

       For the reasons stated in the text, the “finding” recorded on the printed form that Allison’s plea was entered “understandingly and voluntarily, . . . without promise of leniency,” see n. 1, supra, was not binding under 28 U. S. C. § 2254 (d) on the District Court. See, e. g., Edwards v. Garrison, 529 F. 2d, at 1377-1378, n. 3. See also Machibroda v. United States, supra, at 494-495 (“The factual allegations [at issue] related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light”); Friendly, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U. Chi. L. Rev. 142, 152 (1970).

       In 1973, the North Carolina Legislature enacted a comprehensive set of procedures governing disposition by guilty plea and plea arrangement, modeled after the ALI Model Code of Pre-Arraignment Procedure, Art. 350 (Tent. Draft No. 5, 1972). One of the stated purposes of the reform was to allow "defendants to tell the truth in plea proceedings. They should not be expected to go before judges after plea negotiations and lie by saying no promises or agreements were made.” Official Commentary to Art. 58, N. C. Gen. Stat. §§ 15A-1021 to 15A-1027 (1975). Appendices to the respondent’s brief indicate that the form used by trial judges in conducting plea hearings has twice been amended since the passage of this legislation.

       These reforms are quite similar to those undertaken in the 1974 Amendment of Fed. Rule Crim. Proc. 11, as well as to the recommendations of the ABA Standards and the ALI Code.

       A principal purpose of the North Carolina statutory reforms was to permit quick disposition of baseless collateral attacks. Official Commentary, supra, n. 17 (“If the procedures of plea negotiation are on the record and accurately reflect the things (legitimately) done, the basis for later challenge is effectively minimized”). Indeed, a petitioner challenging a plea given pursuant to procedures like those now mandated in North Carolina will necessarily be asserting that not only his own transcribed responses, but those given by two lawyers, were untruthful. Especially as it becomes routine for prosecutors and defense lawyers to acknowledge that plea bargains have been made, such a contention will entitle a petitioner to an evidentiary hearing only in the most extraordinary circumstances.

       This is not to suggest that a plea of guilty entered pursuant to procedures like those in effect at Allison’s arraignment is necessarily vulnerable to collateral attack. It is simply to say that procedures like those now in effect in North Carolina serve (1) to prevent the occurrence of constitutional errors in the arraignment process, and (2) to discourage the filing of baseless petitions for habeas corpus and facilitate speedy but fair disposition of those that are filed.

       Indeed, it would seem easier for the State than for an indigent, untutored prisoner to obtain affidavits from the principals, particularly given the potential availability of discovery, see n. 23, infra.

       Title 28 U. S. C. §§ 636 (b) (2), (3) authorize magistrates to assist “a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions,” and preliminarily to review “applications for posttrial relief made by individuals convicted of criminal offenses . . . .” Rule 10 of the newly promulgated Rules Governing Habeas Corpus Cases similarly authorizes performance by a magistrate of virtually all the duties of a district judge, except for the exercise of ultimate decisionmaking authority. See Advisory Committee Note to Rule 10, 28 U. S. C., p. 274 (1976 ed.); Wingo v. Wedding, 418 U. S. 461, 473-474.

       Rule 6 of the Rules Governing Habeas Corpus, entitled “Discovery,” provides:
      “(a) Leave of court required. A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise. If necessary for effective utilization of discovery procedures, counsel shall be appointed by the judge for a petitioner who qualifies for the appointment of counsel under 18 17. S. C. § 3006A (g).
      “(b) Requests for discovery. Requests for discovery shall be accompanied by a statement of the questions, interrogatories, or requests for admission and a list of the documents, if any, sought to be produced.
      “(c) Expenses. If the respondent is granted leave to take the deposition of the petitioner or any other person the judge may as a condition of taking it direct that the respondent pay the expenses of travel and subsistence and fees of counsel for the petitioner to attend the taking of the deposition.”

       Rule 7 of the Rules Governing Habeas Corpus Cases, entitled “Expansion of Record,” provides:
      “(a) Direction for Expansion. If the petition is not dismissed 'summarily the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition.
      “(b) Materials to be added. The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as a part of the record.
      “(c) Submission to opposing party. In any case in which an expanded record is directed, copies of the letters, documents, exhibits, and affidavits proposed to be included shall be submitted to the party against whom they are to be offered, and he shall be afforded an opportunity to admit or deny their correctness.”

       There may be cases in which expansion of the record will provide “evidence against a petitioner’s extra-record contentions ... so overwhelming as to justify a conclusion that an [allegation of a dishonored plea agreement] does not raise a substantial issue of fact.” Moorhead v. United States, 456 F. 2d 992, 996 (CA3). But before dismissing facially adequate allegations short of an evidentiary hearing, ordinarily a district judge should seek as a minimum to obtain affidavits from all persons likely to have firsthand knowledge of the existence of any plea agreement. See Walters v. Harris, 460 F. 2d, at 992. “ ‘When the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive, but that is not to say they may not be helpful.’ ” Advisory Committee Note to Rule 7, Rules Governing Habeas Corpus Cases, 28 U. S. C., p. 269 (1976 ed.), quoting Raines v. United States, 423 F. 2d 526, 530 (CA4).

       The correspondence between the Magistrate and Allison pertaining to Allison’s petition for rehearing, see supra, at 70, did not provide such an opportunity. The Magistrate directed Allison to obtain a notarized statement from his codefendant, who allegedly had heard Allison’s attorney make the promise as to sentence. Allison was confined in prison and without legal assistance. The codefendant was confined in a different prison. In these circumstances, the Magistrate imposed upon Allison a novel and formless burden of supplying proof, without the benefit of compulsory process and without any intimation that dismissal would follow if that burden were not met. It can thus hardly be said that Allison was granted a “full opportunity for presentation of the relevant facts” or that his petition received “careful consideration and plenary processing.”

      The importance of finality to the criminal defendant and to society was well put by Mr. Justice Harlan:
      “Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether ái conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community.” Sanders v. United States, 373 U. S. 1, 24-25 (1963) (dissenting opinion).
      See also Schneckloth v. Bustamonte, 412 U. S. 218, 256-266 (1973) (Powell, J., concurring).


author: Mr. Justice Marshall

text:
    LINMARK ASSOCIATES, INC., et al. v. TOWNSHIP OF WILLINGBORO et al.
    No. 76-357.
    Argued March 2, 1977
    Decided May 2, 1977

      John P. Hauch, Jr., argued the cause for petitioners. With him on the brief was Thomas L. Earp.

      Myron H. Gottlieb argued the cause and filed a brief for respondents.

        Joel M. Gora filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by Jack Greenberg, Charles Stephen Ralston, and Melvyn R. Leventhal for the N. A. A. C. P. Legal Defense & Educational Fund, Inc.; by Paul R. Donaldson and Donald K. Barclay for the cities of Shaker Heights and Cleveland Heights, Ohio; by Burton R. Shifman for the city of Oak Park, Mich.; and by Housing Advocates, Inc.

   Mr. Justice Marshall

delivered the opinion of the Court.

This case presents the question whether the First Amendment permits a municipality to prohibit the posting of “For Sale” or “Sold” signs when the municipality acts to stem what it perceives as the flight of white homeowners from a racially integrated community.

Petitioner Linmark Associates, a New Jersey corporation, owned a piece of realty in the township of Willingboro, N. J. Petitioner decided to sell its property, and on March 26, 1974, listed it with petitioner Mellman, a real estate agent. To attract interest in the property, petitioners desired to place a “For Sale” sign on the lawn. Willingboro, however, narrowly limits the types of signs that can be erected on land in the township. Although prior to March 1974 “For Sale” and “Sold” signs were permitted subject to certain restrictions not at issue here, on March 18, 1974, the Township Council enacted Ordinance 5-1974, repealing the statutory authorization for such signs on all but model homes. Petitioners brought this action against both the township and the building inspector charged with enforcing the ban on “For Sale” signs, seeking declaratory and injunctive relief. The District Court granted a declaration of unconstitutionality, but a divided Court of Appeals reversed, 535 F. 2d 786 (CA3 1976). We granted certiorari, 429 U. S. 938 (1976), and reverse the judgment of the Court of Appeals.

I

The township of Willingboro is a residential community located in southern New Jersey near Fort Dix, McGuire Air Force Base, and offices of several national corporations. The township was developed as a middle-income community by Levitt & Sons, beginning in the late 1950’s. It is served by over 80 real estate agents.

During the 1960’s Willingboro underwent rapid growth. The white population increased by almost 350%, and the nonwhite population rose from 60 to over 5,000, or from .005 % of the population to 11.7%. As of the 1970 census, almost 44,000 people resided in Willingboro. In the 1970’s, however, the population growth slowed; from 1970 to 1973, the latest year for which figures were available at the time of trial, Willingboro’s population rose by only 3%. More significantly, the white population actually declined by almost 2,000 in this interval, a drop of over 5%, while the non white population grew by more than 3,000, an increase of approximately 60%. By 1973, nonwhites constituted 18.2% of the township’s population.

At the trial in this case respondents presented testimony from two real estate agents, two members of the Township Council, and three members of the Human Relations Commission, all of whom agreed that a major cause in the decline in the white population was “panic selling” — that is, selling by whites who feared that the township was becoming all black, and that property values would decline. One real estate agent estimated that the reason 80% of the sellers gave for their decision to sell was that “the whole town was for sale, and they didn’t want to be caught in any bind.” App. in No. 75-1448 (CA3), pp. 219a-220a. Respondents’ witnesses also testified that in their view “For Sale” and “Sold” signs were a major catalyst of these fears.

William Kearns, the Mayor of Willingboro during the year preceding enactment of the ordinance and a member of the Council when the ordinance was enacted, testified concerning the events leading up to its passage. Id., at 183a-186a. According to Kearns, beginning at least in 1973 the community became concerned about the changing population. At a town meeting in February 1973, called to discuss “Willingboro, to sell or not to sell,” a member of the community suggested that real estate signs be banned. The suggestion received the overwhelming support of those attending the meeting. Kearns brought the proposal to the Township Council, which requested the Township Solicitor to study it. The Council also contacted National Neighbors, a nationwide organization promoting integrated housing, and obtained the names of other communities that had prohibited “For Sale” signs. After obtaining a favorable report from Shaker Heights, Ohio, on its ordinance, and after receiving an endorsement of the proposed ban from the Willingboro Human Relations Commission, the Council began drafting legislation.

Rather than following its usual procedure of conducting a public hearing only after the proposed law had received preliminary Council approval, the Council scheduled two public meetings on Ordinance 5-1974. The first took place in February 1974, before the initial Council vote, and the second in March 1974, after the vote. At the conclusion of the second hearing, the ordinance was approved unanimously.

The transcripts of the Council hearings were introduced into evidence at trial. They reveal that at the hearings the Council received important information bearing on the need for and likely impact of the ordinance. With respect to the justification for the ordinance, the Council was told (a) that a study of Willingboro home sales in 1973 revealed that the turnover rate was roughly 11%, App. in No. 75-1448 (CA3), p. 89a; (b) that in February 1974 — a typical month — 230 “For Sale” signs were posted among the 11,000 houses in the community, id., at 94a, 37a; and (c) that the Willingboro Tax Assessor had reported that “by and large the increased value of Willingboro properties was way ahead of . . . comparable communities.” Id., at 106a. With respect to the projected effect of the ordinance, several real estate agents reported that 30%-35% of their purchaser-clients came to them because they had seen one of the agent’s “For Sale” or “Sold” signs, id., at 33a, 47a, 49a, 57a, and one agent estimated, based on his experience in a neighboring community that had already banned signs, that selling realty without signs takes twice as long as selling with signs, id., at 42a.

The transcripts of the Council hearings also reveal that the hearings provided useful barometers of public sentiment toward the proposed ordinance. The Council was told, for example, that surveys in two areas of the township found overwhelming support for the law, id., at 29a, 84a. In addition, at least at the second meeting, the citizens, who were not real estate agents and who spoke, favored the proposed ordinance by a sizable margin. Interestingly, however, at both meetings those defending the ordinance focused primarily on aesthetic considerations and on the effect of signs — and transiency generally — on property values. Few speakers directly referred to the changing racial composition of Willingboro in supporting the proposed law.

Although the ordinance had been in effect for nine months prior to trial, no statistical data were presented concerning its impact. Respondents’ witnesses all agreed, however, that the number of persons selling or considering selling their houses because of racial fears had declined sharply. But several of these witnesses also testified that the number of sales in Willingboro had not declined since the ordinance was enacted. Moreover, respondents’ real-estate-agent witnesses both stated that their business had increased by 25% since the ordinance was enacted, id., at 164a, 226a, and one of these agents reported that the racial composition of his clientele remained unchanged, id., at 160a.

The District Court did not make specific findings of fact. In the course of its opinion, however, the court stated that Willingboro “is to a large extent a transient community, partly due to its proximity to the military facility at Fort Dix and in part due to the numerous transfers of real estate.” The court also stated that there was “no evidence” that whites were leaving Willingboro en masse as “For Sale” signs appeared, but “merely an indication that its residents are concerned that there may be a large influx of minority groups moving in to the town with the resultant effect being a reduction in property values.” The Court of Appeals essentially accepted these “findings,” although it found that Willingboro was experiencing “incipient” panic selling, 535 F. 2d, at 799, and that a “fear psychology [had] developed,” id., at 790.

II

A

The starting point for analysis of petitioners’ First Amendment claim must be the two recent decisions in which this Court has eroded the “commercial speech” exception to the First Amendment. In Bigelow v. Virginia, 421 U. S. 809 (1975), decided less than two years ago, this Court for the first time expressed its dissatisfaction with the then-prevalent approach of resolving a class of First Amendment claims simply by categorizing the speech as “commercial.” Id., at 826. “Regardless of the particular label,” we stated, “a court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation.” Ibid. After conducting such an analysis in Bigelow we concluded that Virginia could not constitutionally punish the publisher of a newspaper for printing an abortion referral agency’s paid advertisement which not only promoted the agency’s services but also contained information about the availability of abortions.

One year later, in Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976), we went further. Conceding that “[s]ome fragment of hope for the continuing validity of a 'commercial speech’ exception arguably might have persisted because of the subject matter of the advertisement in Bigelow,” id., at 760, we held quite simply, that commercial speech is not “wholly outside the protection of the First Amendment,” id., at 761. Although recognizing that “[s]ome forms of commercial speech regulations”- — such as regulation of false or misleading speech — “are surely permissible,” id., at 770, we had little difficulty in finding that Virginia’s ban on the advertising of prescription drug prices by pharmacists was unconstitutional.

Respondents contend, as they must, that the “For Sale” signs banned in Willingboro are constitutionally distinguishable from the abortion and drug advertisements we have previously considered. It is to the distinctions respondents advance that we now turn.

B

If the Willingboro law is to be treated differently from those invalidated in Bigelow and Virginia Pharmacy Bd., it cannot be because the speakers — or listeners — have a lesser First Amendment interest in the subject matter of the speech that is regulated here. Persons desiring to sell their homes are just as interested in communicating that fact as are sellers of other goods and services. Similarly, would-be purchasers of realty are no less interested in receiving information about available property than are purchasers of other commodities in receiving like information about those commodities. And the societal interest in “the free flow of commercial information,” Virginia Pharmacy Bd., supra, at 764, is in no way lessened by the fact that the subject of the commercial information here is realty rather than abortions or drugs.

Respondents nevertheless argue that First Amendment concerns are less directly implicated by Willingboro’s ordinance because it restricts only one method of communication. This distinction is not without significance to First Amendment analysis, since laws regulating the time, place, or manner of speech stand on a different footing from laws prohibiting speech altogether. Cf., e. g., Kovacs v. Cooper, 336 U. S. 77 (1949); Adderley v. Florida, 385 U. S. 39 (1966); Grayned v. City of Rockford, 408 U. S. 104 (1972). Respondents’ effort to defend the ordinance on this ground is unpersuasive, however, for two reasons.

First, serious questions exist as to whether the ordinance “leave [s] open ample alternative channels for communication,” Virginia Pharmacy Bd., supra, at 771. Although in theory sellers remain free to employ a number of different alternatives, in practice realty is not marketed through leaflets, sound trucks, demonstrations, or the like. The options to which sellers realistically are relegated — primarily newspaper advertising and listing with real estate agents — involve more cost and less autonomy than “For Sale” signs; cf. Martin v. City of Struthers, 319 U. S. 141, 146 (1943); Kovacs v. Cooper, supra, at 102-103 (Black, J., dissenting); are less likely to reach persons not deliberately seeking sales information, cf. United States v. O’Brien, 391 U. S. 367, 388-389 (1968) (Harlan, J., concurring); and may be less effective media for communicating the message that is conveyed by a “For Sale” sign in front of the house to be sold, cf. Cohen v. California, 403 U. S. 15, 25-26 (1971). The alternatives, then, are far from satisfactory.

Second, the Willingboro ordinance is not genuinely concerned with the place of the speech — front lawns — or the manner of the speech — signs. The township has not prohibited all lawn signs — or all lawn signs of a particular size or shape — in order to promote aesthetic values or any other value “unrelated to the suppression of free expression,” United States v. O’Brien, supra, at 377. Nor has it acted to restrict a mode of communication that “intrudes on the privacy of the home, . . . makes it impractical for the unwilling viewer or auditor to avoid exposure,” Erznoznik v. City of Jacksonville, 422 U. S. 205, 209 (1975), or otherwise reaches a group the township has a right to protect. And respondents have not demonstrated that the place or manner of the speech produces a detrimental “secondary effect” on society, Young v. American Mini Theatres, 427 U. S. 50, 71 n. 34 (1976). Rather, Willingboro has proscribed particular types of signs based on their content because it fears their “primary” effect — that they will cause those receiving the information to act upon it. That the proscription applies only to one mode of communication, therefore, does not transform this into a “time, place, or manner” case. See, e. g., Erznoznik v. City of Jacksonville, supra; Police Department of Chicago v. Mosley, 408 U. S. 92 (1972); Tinker v. Des Moines School Dist., 393 U. S. 503, 510 (1969). If the ordinance is to be sustained, it must be on the basis of the township’s interest in regulating the content of the communication, and not on any interest in regulating the form.

C

Respondents do seek to distinguish Bigelow and Virginia Pharmacy Bd. by relying on the vital goal this ordinance serves: namely, promoting stable, racially integrated housing. There can be no question about the importance of achieving this goal. This Court has expressly recognized that substantial benefits flow to both whites and blacks from interracial association and that Congress has made a strong national commitment to promote integrated housing. Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972).

That this ordinance was enacted to achieve an important governmental objective, however, does not distinguish the case from Virginia Pharmacy Bd. In that case the State argued that its prohibition on prescription drug price advertising furthered the health and safety of state residents by preventing low cost, low quality pharmacists from driving reputable pharmacists out of business. We expressly recognized the “strong interest” of a State in maintaining “professionalism on the part of licensed pharmacists.” 425 U. S., at 766. But we nevertheless found the Virginia law unconstitutional because we were unpersuaded that the law was necessary to achieve this objective, and were convinced that in any event, the First Amendment disabled the State from achieving its goal by restricting the free flow of truthful information. For the same reasons we conclude that the Willingboro ordinance at issue here is also constitutionally infirm.

The record here demonstrates that respondents failed to establish that this ordinance is needed to assure that Willingboro remains an integrated community. As the District Court concluded, the evidence does not support the Council’s apparent fears that Willingboro was experiencing a substantial incidence of panic selling by white homeowners. A fortiori, the evidence does not establish that “For Sale” signs in front of 2% of Willingboro homes were a major cause of panic selling. And the record does not confirm the township’s assumption that proscribing such signs will reduce public awareness of realty sales and thereby decrease public concern over selling.

The constitutional defect in this ordinance, however, is far more basic. The Township Council here, like the Virginia Assembly in Virginia Pharmacy Bd., acted to prevent its residents from obtaining certain information. That information, which pertains to sales activity in Willingboro, is of vital interest to Willingboro residents, since it may bear on one of the most important decisions they have a right to make: where to live and raise their families. The Council has sought to restrict the free flow of these data because it fears that otherwise homeowners will make decisions inimical to what the Council views as the homeowners’ self-interest and the corporate interest of the township: they will choose to leave town. The Council’s concern, then, was not with any commercial aspect of “For Sale” signs — with offerors communicating offers to offerees — but with the substance of the information communicated to Willingboro citizens. If dissemination of this information can be restricted, then every locality in the country can suppress any facts that reflect poorly on the locality, so long as a plausible claim can be made that disclosure would cause the recipients of the information to act “irrationally.” Virginia Pharmacy Bd. denies government such sweeping powers. As we said there in rejecting Virginia’s claim that the only way it could enable its citizens to find their self-interest was to deny them information that is neither false nor misleading:

“There is ... an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. . . . But the choice among these alternative approaches is not ours to make or the Virginia General Assembly’s. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.” 425 U. S., at 770.

Or as Mr. Justice Brandéis put it: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.” Whitney v. California, 274 U. S. 357, 377 (1927) (concurring opinion).

Since we can find no meaningful distinction between Ordinance 5-1974 and the statute overturned in Virginia Pharmacy Bd., we must conclude that this ordinance violates the First Amendment.

Ill

In invalidating this law, we by no means leave Willingboro defenseless in its effort to promote integrated housing. The township obviously remains free to continue “the process of education” it has already begun. It can give widespread publicity — through “Not for Sale” signs or other methods— to the number of whites remaining in Willingboro. And it surely can endeavor to create inducements to retain individuals who are considering selling their homes.

Beyond this, we reaffirm our statement in Virginia Pharmacy Bd. that the “commonsense differences between speech that does ‘no more than propose a commercial transaction/ Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. [376,] 385 [(1973)], and other varieties . . . suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired.” 425 U. S., at 771-772, n. 24. Laws dealing with false or misleading signs, and laws requiring such signs to “appear in such a form, or include such additional information ... as [is] necessary to prevent [their] being deceptive,” ibid., therefore, would raise very different constitutional questions. We leave those questions for another day, and simply hold that the ordinance under review here, which impairs “the flow of truthful and legitimate commercial information” is constitutionally infirm.

Reversed.

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

       Respondents report that according to a deed on file in Burlington County, N. J,, petitioner Linmark Associates’ property was sold on April 21, 1976, while this case was pending in the Court of Appeals. Brief for Respondents 8 n. 2. This does not moot this case, however, since at least as to petitioner Mellman, the real estate agent, there plainly is an “immediate prospect,” Steffel v. Thompson, 415 U. S. 452, 459-460 (1974), that he will desire to place “For Sale” signs on other property in Willingboro, and thus there remains a controversy “of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941).

       At the beginning of the first hearing, the then Mayor estimated that 1,100 houses are sold each year, a 10% turnover rate. App. in No. 75-1488 (CA3), p. 37a.

       Another real estate agent reported that on January 7, 1974, in the Twin Hills section of Willingboro, 32 signs were posted among the 920 houses. He further stated that during the preceding year, the highest number of signs in Twin Hills at any one time was 62. Id., at 77a-78a.
      At trial, one of respondents’ real-estate-agent witnesses testified that he had surveyed the number of signs in August 1973 and found more than 230; he did not recall, however, how many signs were standing at that time. Id., at 225a.

         At trial, petitioner Mellman corroborated this figure based on his own business. Id., at 135a.

       One of the two “surveys” took the form of an effort by citizens in the Rittenhouse Park section of Willingboro to ban “For Sale” signs. That effort attracted the support of 70% of the homeowners in the section.

       The Court of Appeals did not have the benefit of Virginia Pharmacy Bd. when it issued its decision in this case. To some extent the court anticipated that decision, recognizing that the fact that “a communication is commercial in nature does not ipso facto strip the communication of its First Amendment protections.” 535 F. 2d 786, 795 (CA3 1976). But the court premised its analysis on a sharp dichotomy between commercial and "pure” or noncommercial speech, id., at 794, and concluded that commercial speech ma,y be restricted if its “impact be found detrimental” by a municipality, and if "the limitation on any pure speech element [is] minimal,” id., at 795. After Virginia Pharmacy Bd. it is clear that commercial speech cannot be banned because of an unsubstantiated belief that its impact is “detrimental.”

       Accordingly, we do not decide whether a, ban on signs or a limitation on the number of signs could survive constitutional scrutiny if it were unrelated to the suppression of free expression. See Baldwin v. Redwood City, 540 F. 2d 1360, 1368-1369 (CA9 1976); cf. Markham Advertising Co. v. State, 73 Wash. 2d 405, 439 P. 2d 248 (1968), appeal dismissed, 393 U. S. 316 (1969).

       Cf. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582, 585-586 (DC 1971), summarily aff’d, 405 U. S. 1000 (1972).

       As the District Court itself observed, its finding concerning the lack of panic selling distinguishes this case from Barrick Realty, Inc. v. City of Gary, 491 F. 2d 161 (CA7 1974), in which Gary, Indiana's, prohibition on “For Sale” signs was upheld on a record indicating that such signs were causing “whites to move en masse and blacks to replace them.” Id., at 163-164. We express no view as to whether Barrick Realty can survive Bigelow and Virginia Pharmacy Bd.

       While this assumption is certainly plausible, it is also possible that eliminating signs will cause homeowners to turn to other sources for information, so that their awareness of — and concern over — selling will be unaffected. Indeed, banning signs actually may fuel public anxiety over sales activity by increasing homeowners’ dependence on rumor and surmise. See Laska & Hewitt, Are Laws Against “For Sale” Signs Constitutional? Substantive Due Process Revisited, 4 Real Estate L. J. 153, 160-162 (1975) (reporting on a study finding such an adverse effect from a ban on “For Sale” signs).
      The fact that sales volume remained unchanged in Willingboro in the first nine months after the ordinance was enacted suggests that it did not affect public concern over selling, if that concern was a significant cause of housing turnover.


author: Per Curiam. Mr. Justice Stevens,

text:
    ENVIRONMENTAL PROTECTION AGENCY v. BROWN, GOVERNOR OF CALIFORNIA, et al.
    No. 75-909.
    Argued January 12, 1977
    Decided May 2, 1977

      Deputy Solicitor General Randolph argued the cause for petitioners in Nos. 75-909 and 75-960, for petitioner in No-. 75-1055, and for respondent in No. 75-1050. With him on the briefs were Solicitor General Bork, Assistant Attorney General Taft, Harriet S. Shapiro, Edmund B. Clark, Bruce J. Chasan, Neil T. Proto, John E. Bonine, and Gerald K. Gleason. David G. Hawkins argued the cause and filed briefs for Washington Area Bicyclist Assn., Inc., et al., respondents under this Court's Rule 21 (4), in support of petitioners in Nos. 75-909, 75-960, and 75-1055. Joel S. Moskowitz, Deputy Attorney General of California, and Henry R.' Lord, Deputy Attorney General of Maryland, argued the cause for respondents in Nos. 75-909, 75-960, and 75-1055, and for petitioner in No. 75-1050. With them on the brief were Bruce E. Babbitt, Attorney General of Arizona, and Anthony B. Ching, Assistant Attorney General; Evelle J. Younger, Attorney General of California, and Mark I. Weinberger, Deputy Attorney General; Francis B. Burch, Attorney General of Maryland, and Edward M. Norton, Jr., Assistant Attorney General; Andrew P. Miller, Attorney General of Virginia, Walter A. McFarlane, Deputy Attorney General, and J. Thomas Steger, Assistant Attorney General; John R. Risher, Jr., Corporation Counsel of the District of Columbia, Louis P. Robbins, Principal Assistant Corporation Counsel, and John C. Salyer, Assistant Corporation Counsel.

      Together with Environmental Protection Agency v. Arizona et al., also on certiorari to the same court (see this Court’s Rule 23 (5)); No. 75-960, Environmental Protection Agency v. Maryland, on certiorari to the United States Court of Appeals for the Fourth Circuit; and No. 75-1050, Virginia ex rel. State Air Pollution Control Board v. Costle, Administrator, Environmental Protection Agency, and No. 75-1055, Costle, Administrator, Environmental Protection Agency v. District of Columbia et al., both on certiorari to the United States Court of Appeals for the District of Columbia Circuit.

        W. Bernard Richland and Alexander Gigante, Jr., filed a brief for the city of New York as amicus curiae urging reversal in part in Nos. 75-1050 and 75-1055, and affirmance in Nos. 75-909 and 75-960.

        Ronald A. Zumbrun and John H. Findley filed a brief for the Pacific Legal Foundation as amicus curiae urging affirmance in all cases.

   Per Curiam.

These cases arise under the Clean Air Act, as amended by the Clean Air Amendments of 1970, 84 Stat. 1676, 42 U. S. C. § 1857 et seg., and raise questions concerning the authority of the Administrator of the Environmental Protection Agency to compel various types of implementation and enforcement actions by the States. Four separate decisions in the Courts of Appeals reviewed transportation control plans promulgated by the Administrator for several States which had previously failed to submit adequate plans of their own. Four petitions have been filed seeking review of those decisions which, with limited exceptions, invalidated the Administrator’s transportation control plans which had been adopted in the form of regulations.

Those transportation control plans have a variety of aspects which need not be discussed in great detail to explain our disposition of these cases. In general, they imposed upon the States the obligations (1) to develop an inspection and maintenance program pertaining to the vehicles registered in the affected Air Quality Control Regions, and to submit to the Administrator, by fixed deadlines, both a schedule of compliance and the operative regulations by which the program was to be run; (2) to develop various retrofit programs pertaining to several classes of older vehicles, in order to minimize several different types of emissions; (3) to designate and enforce preferential bus and carpool lanes, on streets sometimes specifically identified in the regulations and sometimes left to be chosen by the State; (4) to develop a program to monitor actual emissions as affected by the foregoing programs; and (5) to adopt certain other programs which varied from State to State.

The critical fact about all of the foregoing obligations was that they were imposed on the States, under 40 CFR § 52.23 (1976), as elements of an applicable implementation plan. A State's failure to carry out any of them would therefore not merely allow the Administrator to step in and carry them out himself under § 113 (a) (2) of the Clean Air Act, but would, in the view of each of the Courts of Appeals, render the State “in violation of any requirement of an applicable implementation plan” and therefore apparently subject to direct enforcement actions against it under the provisions of § 113 (a)(1), 42 U. S. C. § 1857c~8 (a)(1):

“Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of any requirement of an applicable implementation plan, the Administrator shall notify the person in violation of the plan and the State in which the plan applies of such finding. If such violation extends beyond the 30th day after the date of the Administrator's notification, the Administrator may issue an order requiring such person to comply with the requirements of such plan or he may bring a civil action in accordance with subsection (b) of this section.”

Under dual challenges by the States that these regulations were not within the mandate of the Act, and that if they were they were in violation of the Constitution, the United States Courts of Appeals for the Ninth, Fourth, and District of Columbia Circuits struck them down. All of the courts rested on statutory interpretation, but noted also that serious constitutional questions might be raised if the statute were read as the United States argued it should be. Brown v. EPA, 521 F. 2d 827 (CA9 1975); Arizona v. EPA, 521 F. 2d 825 (CA9 1975); District of Columbia v. Train, 172 U. S. App. D. C. 311, 521 F. 2d 971 (1975); Maryland v. EPA, 530 F. 2d 215 (CA4 1975). The only substantial variation in the outcome of these decisions was that the District of Columbia Circuit affirmed regulations requiring the creation of bus lanes, the purchase by the affected jurisdictions of a fixed number of new buses, and the denial of registration to a vehicle whose owner is unable to produce a federal certificate of compliance, should a federal inspection program be instituted.

The Solicitor General’s petitions from all three Courts of Appeals challenged them only insofar as they invalidated the regulations requiring state inspection and maintenance programs. In addition, we granted the petition for certiorari of the Commonwealth of Virginia on its challenge to the regulations which the District of Columbia Circuit had upheld. Prior to argument, the Solicitor General informed the Court that repeal of the bus purchase regulations was imminent, Reply Brief for Federal Parties 25, and that issue was thereby effectively removed from the case. Thus the litigation has undergone a great deal of shrinkage since the decisions below due to the federal parties’ exercise of their prerogative not to seek review of the invalidation of certain regulations.

But the federal parties have not merely renounced an intent to pursue certain specified regulations; they now appear to admit that those remaining in controversy are invalid unless modified in certain respects:

“The Administrator . . . concedes the necessity of removing from the regulations all requirements that the States submit legally adopted regulations; the [Administrator’s] regulations contain no requirement that the State adopt laws.” Brief for Federal Parties 20 n. 14.

The federal parties’ position now appears to be that, while the challenged transportation plans do not require the enactment of state legislation, they do now contain, and must be modified to eliminate, certain requirements that the State promulgate regulations. See Reply Brief for Federal Parties 14 n. 22.

We decline the federal parties’ invitation to pass upon the EPA regulations, when the only ones before us are admitted to be in need of certain essential modifications. Such action on our part would amount to the rendering of an advisory opinion. For this Court to review regulations normally required to be first reviewed in the Court of Appeals, before such review is had, is extraordinary. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 584-585 (1952). For it to review regulations not yet promulgated, the final form of which has only been hinted at, would be wholly novel. See generally Columbia Broadcasting System v. United States, 316 U. S. 407, 417-419 (1942); United States v. Los Angeles & Salt Lake R. Co., 273 U. S. 299, 309-310 (1927).

The judgments of the respective Courts of Appeals are vacated, and the cases are remanded for consideration of mootness and such other proceedings as may be consistent with this opinion.

It is so ordered.

Mr. Justice Stevens,

dissenting.

The action the Court takes today is just as puzzling as the federal parties’ position. Unless and until the Environmental Protection Agency rescinds the regulations in dispute, it is perfectly clear that the litigation is not moot. Moreover, an apparent admission that those regulations are invalid unless modified is not a proper reason for vacating the Court of Appeals judgments which invalidated the regulations.

If the Court is satisfied that the EPA Administrator will modify the regulations regardless of the outcome of the litigation, the writs of certiorari should be dismissed as improvidently granted. On the other hand, if the survival of the regulations is dependent on our disposition of these cases, we should address the merits and resolve the issues which have been fully briefed and argued. By vacating the judgments below, the Court hands the federal parties a partial victory as a reward for an apparent concession that their position is not supported by the statute. I respectfully dissent.-

       Section 113 (a)(2), 42 U. S. C. § 1857c-8 (a)(2), provides:
      “Whenever, on the basis of information available to him, the Administrator finds that violations of an applicable implementation plan are so widespread that such violations appear to result from a failure of the State in which the plan applies to enforce the plan effectively, he shall so notify the State. If the Administrator finds such failure extends beyond the 30th day after such notice, he shall give public notice of such finding. During the period beginning with such public notice and ending when such State satisfies the Administrator that it will enforce such plan (hereafter referred to in this section as ‘period of federally assumed enforcement’), the Administrator may enforce any requirement of such plan with respect to any person—
      “(A) by issuing an order to comply with such requirement, or
      “(B) by bringing a civil action under subsection (b) of this section.”

       Prior to the decision of the Ninth Circuit, a similar set of regulations pertaining to Pennsylvania had been upheld by the Third Circuit. Pennsylvania v. EPA, 500 F. 2d 246 (1974). That decision is not presently before the Court.

       The regulations were officially rescinded on February 8, 1977. 42 Fed. Reg. 7957.