author: Mr. Justice White Mr. Justice Brennan,

text:
    LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, et al. v. TURLEY et al.
    No. 72-331.
    Argued October 10, 1973
    Decided November 19, 1973

      White, J., delivered the opinion of the Court, in which BurgeR, C. J., and Stewart, BlackmuN, Powell, and Rehnquist, JJ., joined, and in which Brennan, J., joined by a separate qualifying opinion, in which Douglas and Marshall, JJ., joined, post, p. 85.

      Brenda Soloff, Assistant Attorney General of New York, argued the cause for appellants. With her on the brief for appellants Lefkowitz et al. were Louis J. Lefko-witz, Attorney General, pro se, and Samuel A. Hirshowitz, First Assistant Attorney General. A separate brief was filed for appellant Tutuska.

      Richard O. Robinson argued the cause and filed a brief for appellees.
   Mr. Justice White

delivered the opinion of the Court.

New York General Municipal Law §§ 103-a and 103-b and New York Public Authorities Law §§ 2601 and 2602 require public contracts to provide that if a contractor refuses to waive immunity or to answer questions when called to testify concerning his contracts with the State or any of its subdivisions, his existing contracts may be canceled and he shall be disqualified from further transactions with the State for five years. In addition to specifying these contract terms, the statutes require disqualification from contracting with public authorities upon failure of any person to waive immunity or to answer questions with respect to his transactions with the State or its subdivisions. The issue in this case is whether these sections are consistent with the Fourteenth Amendment insofar as it makes applicable to the States the Fifth Amendment privilege against compelled self-incrimination.

I

Appellees are two architects licensed by the State of New York. They were summoned to testify before a grand jury investigating various charges of conspiracy, bribery, and larceny. They were asked, but refused, to sign waivers of immunity, the effect of which would have been to waive their right not to be compelled in a criminal case to be a witness against themselves. They were then excused and the District Attorney, as directed by law, notified various contracting authorities of appellees’ conduct and called attention to the applicable disqualification statutes. Appellees thereupon brought this action alleging that their existing contracts and future contracting privileges were threatened and asserted that the pertinent statutory provisions were violative of the constitutional privilege against compelled self-incrimination. A three-judge District Court was convened and declared the four statutory provision's at issue unconstitutional under the Fourteenth and Fifth Amendments, 342 F. Supp. 544 (WDNY 1972). We noted probable jurisdiction, 410 U. S. 924 (1973). The State appealed pursuant to 28 U. S. C. § 1253. We affirm the judgment of the District Court.

) — i

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself.” The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. McCarthy v. Arndstein, 266 U. S. 34, 40 (1924), squarely held that

“[t]he privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant.”

In this respect, McCarthy v. Arndstein reflected the settled view in this Court. The object of the Amendment “was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime.” Counselman v. Hitchcock, 142 U. S. 647, 562 (1892). See also Bram v. United States, 168 U. S. 632, 542-543 (1897); Brown v. Walker, 161 U. S. 591 (1896); Boyd v. United States, 116 U. S. 616, 634, 637-638 (1886); United States v. Saline Bank, 1 Pet. 100 (1828). This is the rule that is now applicable to the States. Malloy v. Hogan, 378 U. S. 1 (1964). “It must be considered irrelevant that the petitioner was a witness in a statutory inquiry and not a defendant in a criminal prosecution, for it has long been settled that the privilege protects witnesses in similar federal inquiries.” Id., at 11. In any of these contexts, therefore, a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. Kastigar v. United States, 406 U. S. 441 (1972). Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution. Bram v. United States, supra; Boyd v. United States, supra.

Against this background, there is no room for urging that the Fifth Amendment privilege is inapplicable simply because the issue arises, as it does here, in the context of official inquiries into the job performance of a public contractor. Surely, the ordinary rule is that the privilege is available to witnesses called before grand juries as these appellee architects were. Hale v. Henkel, 201 U. S. 43, 66 (1906).

It is- true that the State has a strong, legitimate interest in maintaining the integrity of its civil service and of its transactions with independent contractors furnishing a wide range of goods and services; and New York would have it that this interest is sufficiently strong to override the privilege. The suggestion is that the State should be able to interrogate employees and contractors about their job performance without regard to the Fifth Amendment, to discharge those who refuse to answer or to waive the privilege by waiving the immunity to which they would otherwise be entitled, and to use any incriminating answers obtained in subsequent criminal prosecutions. But claims of overriding interests are not unusual in Fifth Amendment litigation and they have not fared well.

In McCarthy v. Arndstein, supra, the United States insisted that because of the strong public interest in marshaling and distributing assets of bankrupts, the Fifth Amendment should not protect a bankrupt during the official examinations mandated by the Bankruptcy Act. That position did not prevail. The bankrupt’s testimony could be had, but only if he were afforded sufficient immunity to supplant the privilege. And long before McCarthy v. Arndstein, the Court recognized that without the compelled testimony of knowledgeable and perhaps implicated witnesses, the enforcement of the transportation laws “would become impossible,” but nevertheless proceeded on a basis that witnesses must be granted adequate immunity if their evidence was to be compelled. Brown v. Walker, 161 U. S., at 610. Similarly, the enforcement of the antitrust laws against private corporations was at stake in Hale v. Henkel, supra, but immunity was essential to command the testimony of individual witnesses. Also, it would be difficult to overestimate the importance of the interest of the States in the enforcement of their ordinary criminal laws; but the price for incriminating answers from third-party witnesses is sufficient immunity to satisfy the imperatives of the Fifth Amendment privilege against compelled self-incrimination. Finally, in almost the very context here involved, this Court has only recently held that employees of the State do not forfeit their constitutional privilege and that they may be compelled to respond to questions about the performance of their duties but only if their answers cannot be used against them in subsequent criminal prosecutions. Garrity v. New Jersey, 385 U. S. 493 (1967); Gardner v. Broderick, 392 U. S. 273 (1968); Sanitation Men v. Sanitation Comm’r, 392 U. S. 280 (1968).

Ill

In Garrity v. New Jersey, certain police officers were summoned to an inquiry being conducted by the Attorney General concerning the fixing of traffic tickets. They were asked questions following warnings that if they did not answer they would be removed from office and that anything they said might be used against them in any criminal proceeding. No immunity of any kind was offered or available under state law. The questions were answered and the answers later used over their objections, in their prosecutions for conspiracy. The Court held that “the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” 385 U. S., at 500. The Court also held that in the context of threats of removal from office the act of responding to interrogation was not voluntary and was not an effective waiver of the privilege against self-incrimination, the Court conceding, however, that there might be other situations “where one who is anxious to make a clean breast of the whole affair volunteers the information.” Id., at 499.

The issue in Gardner v. Broderick, supra, was whether the State might discharge a police officer who, after he was summoned before a grand jury to testify about the performance of his official duties and was advised of his right against compulsory self-incrimination, then refused to waive that right as requested by the State. Conceding that appellant could be discharged for refusing to answer questions about the performance of his official duties, if not required to waive immunity, the Court held that the officer could not be terminated, as he was, for refusing to waive his constitutional privilege. Although under Garrity any waiver executed may have been invalid and any answers elicited inadmissible in evidence, the State did not purport to recognize as much and instead attempted to coerce a waiver on the penalty of loss of employment. The “testimony was demanded before the grand jury in part so that it might be used to prosecute him, and not solely for the purpose of securing an accounting of his performance of his public trust.” 392 U. S., at 279. Hence, the State’s statutory provision requiring his dismissal for his refusal to waive immunity could not stand.

The companion case, Sanitation Men v. Sanitation Comm’r, supra, was to the same effect. Here again, public employees were officially interrogated and advised that refusal to answer and sign waivers of immunity would lead to dismissal. Here again, the Court held that the State presented the employees with “a choice between surrendering their constitutional rights or their jobs,” 392 U. S., at 284, although clearly they would “subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights.” Id., at 285.

These cases, and their predecessors, ultimately rest on a reconciliation of the well-recognized policies behind the privilege of self-incrimination, Murphy v. Waterfront Comm’n, 378 U. S. 52, 55 (1964), and the need of the State, as well as the Federal Government, to obtain information “to assure the effective functioning of government,” id., at 93 (White, J., concurring). Immunity is required if there is to be “rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify.” Kastigar v. United States, 406 U. S., at 446. It is in this sense that immunity statutes have “become part of our constitutional fabric.” Ullmann v. United States, 350 U. S. 422, 438 (1956).

We agree with the District Court that Garrity, Gardner, and Sanitation Men control the issue now before us. The State sought to interrogate appellees about their transactions with the State and to require them to furnish possibly incriminating testimony by demanding that they waive their immunity and by disqualifying them as public contractors when they refused. It seems to us that the State intended to accomplish what Garrity specifically prohibited — to compel testimony that had not been immunized. The waiver sought by the State, under threat of loss of contracts, would have been no less compelled than a direct request for the testimony without resort to the waiver device. A waiver secured under threat of substantial economic sanction cannot be termed voluntary. As already noted, Oarrity specifically rejected the claim of an effective waiver when the policemen in that case, in the face of possible discharge, proceeded to answer the questions put to them. 385 U. S., at 498. The same holding is implicit in both Gardner and Sanitation Men.

The State nevertheless asserts that whatever may be true of state employees, a different rule is applicable to public contractors such as architects. Because independent contractors may not depend entirely on transactions with the State for their livelihood, it is suggested that disqualification from contracting with official agencies for a period of five years is neither compulsion within the meaning of the Fifth Amendment nor a forbidden penalty for refusing to answer questions put to them about their job performance. But we agree with the District Court that “the plaintiffs’ disqualification from public contracting for five years as a penalty for asserting a constitutional privilege is violative of their Fifth Amendment rights.” 342 F. Supp., at 549. We fail to see a difference of constitutional magnitude between the threat of job loss to an employee of the State, and a threat of loss of contracts to a contractor.

If the argument is that the cost to a contractor is small in comparison to the cost to an employee of losing his job, the premise must be that it is harder for a state employee to find employment in the private sector, than it is for an architect. An architect lives off his contracting fees as surely as a state employee lives off his salary, and fees and salaries may be equally hard to come by in the private sector after sanctions have been taken by the State. In some sense the plight of the architect may be worse, for under the New York statutes it may be that any firm that employs him thereafter will also be subject to contract cancellation and disqualification. A significant infringement of constitutional rights cannot be justified by the speculative ability of those affected to cover the damage.

IV

We should make clear, however, what we have said before. Although due regard for the Fifth Amendment forbids the State to compel incriminating answers from its employees and contractors that may be used against them in criminal proceedings, the Constitution permits that very testimony to be compelled if neither it nor its fruits are available for such use. Kastigar v. United States, supra. Furthermore, the accommodation between the interest of the State and the Fifth Amendment requires that the State have means at its disposal to secure testimony if immunity is supplied and testimony is still refused. This is recognized by the power of the courts to. compel testimony, after a grant of immunity, by use of civil contempt and coerced imprisonment. Shillitani v. United States, 384 U. S. 364 (1966). Also, given adequate immunity, the State may plainly insist that employees either answer questions under oath about the performance of their job or suffer the loss of employment. By like token, the State may insist that the architects involved in this case either respond to relevant inquiries about the performance of their contracts or suffer cancellation of current relationships and disqualification from contracting with public agencies for an appropriate time in the future. But the State may not insist that appellees waive their Fifth Amendment privilege against self-incrimination and consent to the use of the fruits of the interrogation in any later proceedings brought against them. Rather, the State must recognize what our cases hold: that answers elicited upon the threat of the loss of employment are compelled and inadmissible in evidence. Hence, if answers are to be required in such circumstances States must offer to the witness whatever immunity is required to supplant the privilege and may not insist that the employee or contractor waive such immunity.

~ , Affirmed.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join.

I join the Court’s opinion in all respects but one. It is my view that immunity which permits testimony to be compelled “if neither it nor its fruits are available for . . . use” in criminal proceedings does not satisfy the privilege against self-incrimination. “I believe that the Fifth Amendment’s privilege against self-incrimination requires that any jurisdiction that compels a man to incriminate himself grant him absolute immunity under its laws from prosecution for any transaction revealed in that testimony.” Piccirillo v. New York, 400 U. S. 548, 562 (1971) (Brennan, J., dissenting.)

       N. Y. Gen. Munic. Law §§ 103-a and 103-b (Supp. 1973-1974) provide:
      Section 103-a. Ground for cancellation of contract by municipal corporations and fire districts:

        “A clause shall be inserted in all specifications or contracts made or awarded by a municipal corporation or any public department, agency or official thereof on or after the first day of July, nineteen hundred fifty-nine or by a fire district or any agency or official thereof on or after the first day of September, nineteen hundred sixty, for work or services performed or to be performed, or goods sold or to be sold, to provide that upon the refusal of a person, when called before a grand jury, head of a state department, temporary state commission or other state agency, . . . head of a city department, or other city agency, which is empowered to compel the attendance of witnesses and examine them under oath, to testify in an investigation concerning any transaction or contract had with the state, any political subdivision thereof, a public authority or with any public department, agency or official of the state or of any political subdivision thereof or of a public authority, to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant question concerning such transaction or contract,
      “(a) such person, and any firm, partnership or corporation of which he is a member, partner, director or officer shall be disqualified from thereafter selling to or submitting bids to or receiving awards from or entering into any contracts with any municipal corporation, or firé district, or any public department, agency or official thereof, for goods, work or services, for a period of five years after such refusal, and to provide also that
      “(b) any and all contracts made with any municipal corporation or any public department, agency or official thereof on or after the first day of July, nineteen hundred fifty-nine or with any fire district or any agency or official thereof on or after the first day of September, nineteen hundred sixty, by such person, and by any firm, partnership, or corporation of which he is a member, partner, director or officer may be cancelled or terminated by the municipal corporation or fire district without incurring any penalty or damages on account of such cancellation or termination, but any monies owing by the municipal corporation or fire district for goods delivered or work done prior to the cancellation or termination shall be paid.
      “The provisions of this section as in force and effect prior to the first day of September, nineteen hundred sixty, shall apply to specifications or contracts made or awarded by a municipal corporation on or after .the first day of July, nineteen hundred fifty-nine, but prior to the first day of September, nineteen hundred sixty.”
      Section 103-b. Disqualification to contract with municipal corporations and fire districts:
      “Any person, who, when called before a grand jury, head of a state department, temporary state commission or other state agency, . . . head of a city department or other city agency, which is empowered to compel the attendance of witnesses and examine them under oath, to testify in an investigation concerning any transaction or contract had with the state, any political subdivision thereof, a public authority, or with a public department, agency or official of the state or of any political subdivision thereof or of a public authority, refuses to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant question concerning such transaction or contract, and any firm, partnership or corporation of which he is a member, partner, director or officer shall be disqualified from thereafter selling to or submitting bids to or receiving awards from or entering into any contracts with any municipal corporation or fire district, or with any public department, agency or official thereof, for goods, work or services, for a period of five years after such refusal or until a disqualification shall be removed pursuant to the provisions of section one hundred three-c of this article.
      “It shall be the duty of the officer conducting the investigation before the grand jury, the head of a state department, the chairman of the temporary state commission or other state agency,... . the head of a city department or other city agency before which the refusal occurs to send notice of such refusal, together with the names of any firm, partnership, or corporation of which the person so refusing is known to be a member, partner, officer or director, to the commissioner of transportation of the state of New York and the appropriate departments, agencies and officials of the state, political subdivisions thereof or public authorities with whom the person so refusing and any firm, partnership or corporation of which he is a member, partner, director or officer, is known to have a contract. However, when such refusal occurs before a body other than a grand jury, notice of refusal shall not be sent for a period of ten days after such refusal occurs. Prior to the expiration of this ten day period, any person, firm, partnership or corporation which has become liable to the cancellation or termination of a contract or disqualification to contract on account of such refusal may commence a special proceeding at a special term of the supreme court, held within the judicial district in which the refusal occurred, for an order determining whether the questions in response to which the refusal occurred were relevant and material to the inquiry. Upon the commencement of such proceeding, the sending of such notice of refusal to answer shall be subject to order of the court in which the proceeding was brought in a manner and on such terms as the court may deem just. If a proceeding is not brought within ten days, notice of refusal shall thereupon be sent as provided herein.”
      N. Y. Pub. Auth. Law §§2601 and 2602 (Supp. 1973-1974) provide:
      Section 2601. Ground for cancellation of contract by public authority:
      “A clause shall be inserted in all specifications or contracts hereafter made or awarded by any public authority or by any official of any public authority created by the state or any political subdivision, for work or services performed or to be performed or goods sold or to be sold, to provide that upon the refusal by a person, when called before a grand jury, head of a state department, temporary state commission or other state agency,... head of a city department, or other city agency, which is empowered to compel the attendance of witnesses and examine them under oath, to testify in an investigation concerning any transaction or contract had with the state, any political subdivision thereof, a public authority or with any. public department, agency or official of the state or of any political subdivision thereof or of a public authority, to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant question concerning such transaction or contract,
      “(a) such person, and any firm, partnership or corporation of which he is a member, partner, director or officer shall be disqualified from thereafter selling to or submitting bids to or receiving awards from or entering into any contracts with any public authority or official thereof, for goods, work or services, for a period of five years after such refusal, and to provide also that
      “(b) any and all contracts made with any public authority or official thereof, since the effective date of this law, by such person and by any firm, partnership or corporation of which he is a member, partner, director or officer may be cancelled or terminated by the public authority without incurring any penalty or damages on account of such cancellation or termination, but any monies owing by the public authority for goods delivered or work done prior to the cancellation or termination shall be paid.”
      Section 2602. Disqualification to contract with public authority:
      “Any person, who, when called before a grand jury, head of a state department, temporary state commission or other state agency, . . . head of a city department, or other city agency, which is empowered to compel the attendance of witnesses and examine them under oath, to testify in an investigation concerning any transaction or contract had with the state, any political subdivision thereof, a public authority or with a public department, agency or official of the state or of any political subdivision thereof or of a public authority, refuses to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant questions concerning such transaction or contract, and any firm, partnership or corporation, of which he is a member, partner, director, or officer shall be disqualified from thereafter selling to or submitting bids to or receiving awards from or entering into any contracts with any public authority or any official of any public authority created by the state or any political subdivision, for goods, work or services, for a period of five years after such refusal or until a disqualification shall be removed pursuant to the provisions of section twenty-six hundred three of this title.
      “It shall be the duty of the officer conducting the investigation before the grand jury, the head of a state department, the chairman of the temporary state commission or other state agency,... the head of a city department or other city agency before which the refusal occurs to send notice of such refusal, together with the names of any firm, partnership or corporation of which the person so refusing is known to be a member, partner, officer or director, to the commissioner of transportation of the state of New York, or the commissioner of general services as the case may be, and the appropriate departments, agencies and officials of the state, political subdivisions thereof or public authorities with whom the persons [sic] so refusing and any firm, partnership or corporation of which he is a member, partner, director or officer, is known to have a contract. However, when such refusal occurs before a body other than a grand jury, notice of refusal shall not be sent for a period of ten days after such refusal occurs. Prior to the expiration of this ten day period, any person, firm, partnership or corporation which has become liable to the. cancellation or termination of a contract or disqualification to contract on account of such refusal may commence a special proceeding at a special term of the supreme court, held within the judicial district in which the refusal occurred, for an order determining whether the questions in response to which the refusal occurred were relevant and material to the inquiry. Upon the commencement of such proceeding, the sending of such notice of refusal to answer shall be subject to order of the court in which the proceeding was brought in a manner and on such terms as the court may deem just. If a proceeding is not brought within ten days, notice of refusal shall thereupon be sent as provided herein.”

       In Orloff v. Willoughby, 345 U. S. 83 (1953), a doctor inducted into the Army was denied a commission as an officer after refusing to divulge whether he was a Communist, as required by a loyalty certificate prescribed for commissioned officers. Instead he asserted his “Federal constitutional privilege” when called upon to answer the question. In holding that the Government was justified in refusing the commission because of the failure to answer, the Court had no occasion to consider whether Orloff would have been exposed to criminal prosecution if he had stated that he was a member of the Communist Party. The case differs significantly from the one before us since the State here asks the architects to affirmatively expose themselves to criminal prosecution by waiving their privilege against self-in crimination, or from Garrity, where the threat of criminal prosecution was apparent both from the nature of the proceeding, and the absence of applicable state immunity statutes.

        Kimm v. Rosenberg, 363 U. S. 405 (1960), is also inapposite. The Court there held that an alien whose deportation had been ordered was ineligible for a discretionary order permitting his voluntary departure, because he had failed to establish that he was not affiliated with the Communist Party. .Petitioner’s imminent departure from the country, whether it was voluntary or compelled, obviously made the threat of criminal prosecution on the basis of his answer remote.

       As Garrity succinctly put it: “The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent.” 385 U. S. 493, 497 (1967).

       The contract disqualifications apply not only to the person who refuses to waive immunity but also to “any firm, partnership or corporation of which he is a member, partner, director or officer . . . .”


source: Caselaw Access Project

author: Mr. Justice Marshall Mr. Justice Douglas,

license: Public Domain

text:
    ESPINOZA et vir v. FARAH MANUFACTURING CO., INC.
    No. 72-671.
    Argued October 10-11, 1973
    Decided November 19, 1973
    Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNAN, Stewart, White, BlackmuN, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 96.

      George Cooper argued the cause for petitioners. With him on the briefs was Ruben Montemayor.

      Kenneth R. Carr argued the cause for respondent. With him on the brief were Jack T. Chapman and William Duncan

      Briefs of amici curiae urging reversal were filed by Joseph T. Eddins, Jr., and Beatrice Rosenberg for the Equal Employment Opportunity Commission; by Mario G. Obledo and Sanford Jay Rosen for the Mexican American Legal Defense and Educational Fund; and by Kenneth Hecht for the Employment Law Center.

   Mr. Justice Marshall

delivered the opinion of the Court.

This case involves interpretation of the phrase “national origin” in Tit. VII of the Civil Rights Act of 1964. Petitioner Cecilia Espinoza is a lawfully admitted resident alien who was born in and remains a citizen of Mexico. She resides in San Antonio, Texas, with her husband, Rudolfo Espinoza, a United States citizen. In July 1969, Mrs. Espinoza sought employment as a seamstress at the San Antonio division of respondent Farah Manufacturing Co. Her employment application was rejected on the basis of a longstanding company policy against the employment of aliens. After exhausting their administrative remedies with the Equal Employment Opportunity Commission, petitioners commenced this suit in the District Court alleging that respondent had discriminated against Mrs. Espinoza because of her “national origin” in violation of § 703 of Tit. VII, 78 Stat. 255, 42 U. S. C. § 2000e-2 (a)(1). The District Court granted petitioners’ motion for summary judgment, holding that a refusal to hire because of lack of citizenship constitutes discrimination on the basis of “national origin.” 343 F. Supp. 1205. The Court of Appeals reversed, concluding that the statutory phrase “national origin” did not embrace citizenship. 462 F. 2d 1331. We granted the writ to resolve this question of statutory construction, 411 U. S. 946, and now affirm.

Section 703 makes it “an unlawful employment practice for an employer ... to fail or refuse to hire . . . any individual . . . because of such individual’s race, color, religion, sex, or national origin.” Certainly the plain language of the statute supports the result reached by the Court of Appeals. The term “national origin” on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.

The statute’s legislative history; though quite meager in this respect, fully supports this construction. The only direct definition given the phrase “national origin” is the following remark made on the floor of the House of Representatives by Congressman Roosevelt, Chairman of the House Subcommittee which reported the bill: “It means the country from which you or your forebears came.' ... You may come from Poland, Czechoslovakia, England, France, or any other country.” 110 Cong. Rec. 2549 (1964). We also note that an earlier version of § 703 had referred to discrimination because of “race, color, religion, national origin, or ancestry.” H. R. 7152, 88th Cong., 1st Sess., § 804, Oct. 2, 1963 (Comm, print) (emphasis added). The deletion of the word “ancestry” from the final version was not intended as a material change, see H. R. Rep. No. 914, 88th Cong., 1st Sess., 87 (1963), suggesting that the terms “national origin” and “ancestry” were considered synonymous.

There are other compelling reasons to believe that Congress did not intend the term “national origin” to embrace citizenship requirements. Since 1914, the Federal Government itself, through Civil Service Commission regulations, has engaged in what amounts to discrimination against aliens by denying them the right to enter competitive examination for federal employment. Exec. Order No. 1997, H. R. Doc. No. 1258, 63d Cong., 3d Sess., 118 (1914); see 5 U. S. C. §3301; 5 CFR § 338.101 (1972). But it has never been suggested that the citizenship requirement for federal employment constitutes discrimination because of national origin, even though since 1943, various Executive Orders have expressly prohibited discrimination on the basis of national origin in Federal Government employment. See, e. g., Exec. Order No. 9346, 3 CFR 1280 (Cum. Supp. 1938-1943); Exec. Order No. 11478, 3 CFR 446 (1970).

Moreover, § 701 (b) of Tit. VII, in language closely paralleling § 703, makes it “the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of . . . national origin . . . Civil Rights Act of 1964, Pub. L. 88-352, §701 (b), 78 Stat. 254, re-enacted, Pub. L. 89-554, 80 Stat. 523, 5 U. S. C. § 7151. The legislative history of that section reveals no mention of any intent on Congress’ part to reverse the longstanding practice of requiring federal employees to be United States citizens. To the contrary, there is every indication that no such reversal was intended. Congress itself has on several occasions since 1964 enacted statutes barring aliens from federal employment. The Treasury, Postal Service, and General Government Appropriation Act, 1973, for example, provides that “no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States . . . unless such person (1) is a citizen of the United States ....” Pub. L. 92-351, § 602, 86 Stat. 487. See also Pub. L. 91-144, § 502, 83 Stat. 336 ; Pub. L. 91-439, § 502, 84 Stat. 902.

To interpret the term “national origin” to embrace citizenship requirements would require us to conclude that Congress itself has repeatedly flouted its own declaration of policy. This Court cannot lightly find such a breach of faith. See Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 38 (1895). So far as federal employment is concerned, we think it plain that Congress has assumed that the ban on national-origin discrimination in § 701 (b) did not affect the historical practice of requiring citizenship as a condition of employment. See First National Bank v. Missouri, 263 U. S. 640, 658 (1924). And there is no reason to believe Congress intended the term “national origin” in § 703 to have any broader scope. Cf. King v. Smith, 392 U. S. 309, 330-331 (1968).

Petitioners have suggested that the statutes and regulations discriminating against noncitizens in federal employment are unconstitutional under the Due Process Clause of the Fifth Amendment. We need not address that question here, for the issue presented in this case is not whether Congress has the power to discriminate against aliens in federal employment, but rather, whether Congress intended to prohibit such discrimination in private employment. Suffice it to say that we cannot conclude Congress would at once continue the practice of requiring citizenship as a condition of federal employment and, at the same time, prevent private employers from doing likewise. Interpreting § 703 as petitioners suggest would achieve the rather bizarre result of preventing Farah from insisting on United States citizenship as a condition of employment while the very agency charged with enforcement of Tit. VII would itself be required by Congress to place such a condition on its own personnel.

The District Court drew primary support for its holding from an interpretative guideline issued by the Equal Employment Opportunity Commission which provides:

“Because discrimination on the basis of citizenship has the effect of discriminating on the basis of national origin, a lawfully immigrated alien who is domiciled or residing in this country may not be discriminated against on the basis of his citizenship . . . 29 CFR § 1606.1 (d) (1972).

Like the Court of Appeals, we have no occasion here to question the general validity of this guideline insofar as it can be read as an expression of the Commission's belief that there may be many situations where discrimination on the basis of citizenship would have the effect of discriminating on the basis of national origin. In some instances, for example, a citizenship requirement might be but one part of a wider scheme of unlawful national-origin discrimination. In other cases, an employer might use a citizenship test as a pretext to disguise what is in fact national-origin discrimination. Certainly Tit. VII prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin. “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971).

It is equally clear, however, that these principles lend no support to petitioners in this case. There is no indication in the record that Farah’s policy against employment of aliens had the purpose or effect of discriminating against persons of Mexican national origin. It is conceded that Farah accepts employees of Mexican origin, provided the individual concerned has become an American citizen. Indeed, the District Court found that persons of Mexican ancestry make up more than 96% of the employees at the company’s San Antonio division, and 97% of those doing the work for which Mrs. Espinoza applied. While statistics such as these do not automatically shield an employer from a charge of unlawful discrimination, the plain fact of the matter is that Farah does not discriminate against persons of Mexican national origin with respect to employment in the Job Mrs. Espinoza sought. She was denied employment, not because of the country of her origin, but because she had not yet achieved United States citizenship. In fact, the record shows that the worker hired in place of Mrs. Espinoza was a citizen with a Spanish surname.

The Commission’s guideline may have significance for a wide range of situations, but not for a case such as this where its very premise — that discrimination on the basis of citizenship has the effect of discrimination on the basis of national origin — is not borne out. It is also significant to note that the Commission itself once held a different view as to the meaning of the phrase “national origin.” When first confronted with the dues-' tion, the Commission, through its General Counsel, said:

“ ‘National origin’ refers to the country from which the individual or his forebears came . . . , not to whether or not he is a United States citizen . . . EEOC General Counsel’s Opinion Letter, 1 CCH Employment Prac. Guide ¶ 1220.20 (1967) . The Commission’s more recent interpretation of the statute in the guideline relied on by the District Court is no doubt entitled to great deference, Griggs v. Duke Power Co., supra, at 434; Phillips v. Martin Marietta Corp., 400 U. S. 542, 545 (1971) (Marshall, J., concurring), but that deference must have limits where, as here, application of the guideline would be inconsistent with an obvious congressional intent not to reach the employment practice in question. Courts need not defer to an administrative construction of a statute where there are “compelling indications that it is wrong.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969); see also Zuber v. Allen, 396 U. S. 168, 193 (1969); Volkswagenwerk Aktiengesellschaft v. FMC, 390 U. S. 261, 272 (1968).

Finally, petitioners seek to draw support from the fact that Tit. YII protects all individuals from unlawful discrimination, whether or not they are citizens of the United States. We agree that aliens are protected from discrimination under the Act. That result may be derived not only from the use of the term “any individual” in § 703, but also as a negative inference from' the exemption in § 702, which provides that Tit. VII “shall not apply to an employer with respect to the employment of aliens outside any State . . . 42 U. S. C. § 2000e-l. Title VII was clearly intended to apply with respect to the employment of aliens inside any State.

The question posed in the present case, however, is not whether aliens are protected from illegal discrimination under the Act, but what kinds of discrimination the Act makes illegal. Certainly it would be unlawful for an employer to discriminate against aliens because of race, color, religion,, sex, or national origin — for example, by hiring aliens of Anglo-Saxon background but refusing to hire those of Mexican or Spanish ancestry. Aliens are protected from illegal discrimination under the Act, but nothing in the Act makes it illegal to discriminate on the basis of citizenship or alienage.

We agree with the Court of Appeals that neither the language of the Act, nor its history, nor the specific facts of this case indicate that respondent has engaged in unlawful discrimination because of national origin.

Affirmed.

Mr. Justice Douglas,

dissenting.

It is odd that the Court which holds that a State may not bar an alien from the practice of law or deny employment to aliens can read a federal statute that prohibits discrimination in employment on account of “national origin” so as to permit discrimination against aliens.

Alienage results from one condition only: being born outside the United States. Those born within the country are citizens from birth. It could not be more clear that Far ah’s policy of excluding aliens is de facto a policy of preferring those who were born in this country. Therefore the construction placed upon the “national origin” provision is inconsistent with the construction this Court has placed upon the same Act’s protections for persons denied employment on account of race or sex.

In connection with racial discrimination we have said that the Act prohibits “practices, procedures, or tests neutral on their face, and even neutral in terms of intent,” if they create “artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis, of racial or other impermissible classification.” Griggs v. Duke Power Co., 401 U. S. 424, 43-431 (1971) (emphasis added). There we found that the employer could not use test or diploma requirements which on their face were racially neutral, when in fact those requirements had a de facto discriminatory result and the employer was unable to justify them as related to job performance. The tests involved in Griggs did not eliminate all blacks seeking employment, just as the citizenship requirement here does not eliminate all applicants of foreign origin. Respondent here explicitly conceded that the citizenship requirement is imposed without regard to the alien’s qualifications for the job.

These petitioners against whom discrimination is charged are Chicanos. But whether brown, yellow, black, or white, the thrust of the Act is clear: alienage is no barrier to employment here. Griggs, as I understood it until today, extends its protective principles to all, not to blacks alone. Our cases on sex discrimination under the Act yield the same result as Griggs. See Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971).

The construction placed upon the statute in the majority opinion is an extraordinary departure from prior cases, and it is opposed by the Equal Employment Opportunity Commission, the agency provided by law with the responsibility of enforcing the Act’s protections. The Commission takes the only permissible position: that discrimination on the basis of alien-age always has the effect of discrimination on the basis of national origin. Refusing to hire an individual because he is an alien “is discrimination- based on birth outside the United States and is thus discrimination based on national origin in violation of Title VII.” Brief for Commission as Amicus Curiae 5. The Commission's interpretation of the statute is entitled to great weight.

There is no legislative history to cast doubt on this construction. Indeed, any other construction flies in the face of the underlying congressional policy of removing “artificial, arbitrary, and unnecessary barriers to employment.” McDonnell Douglas Corp. v. Green, 411 U. S. 792, 806 (1973).

Mrs. Espinoza is a permanent resident alien, married to an American citizen, and her children will be native-born American citizens. But that first generation has the greatest adjustments to make to their new country. Their unfamiliarity with America makes them the most vulnerable to exploitation and discriminatory treatment. They, of course, have the same obligation as American citizens to pay taxes, and they are subject to the draft on the same basis. But they have never received equal treatment in the job market. Writing of the immigrants of the late 1800’s, Oscar Handlin has said:

“For want of alternative, the immigrants took the lowest places in the ranks of industry. They suffered in consequence from the poor pay and miserable working conditions characteristic of the sweatshops and the homework in the garment trades and in cigar making. But they were undoubtedly better off than the Irish and Germans of the 1840’s for whom there had been no place at all.” The Newcomers 24 (1959).

The majority decides today that in passing sweeping legislation guaranteeing equal job opportunities, the Congress intended to help only the immigrant’s children, excluding those “for whom there [is] no place at all.” I cannot impute that niggardly an intent to Congress.

       Section 706 (e), 42 U. S. C. §2000e-5 (e).

       See, e. g., Minnesota State Act Against Discrimination, Minn. Stat. § 363.01, subd. 6 (1971), defining “national origin” as “the place of birth of an individual or of any of his lineal ancestors.”
      Several States have statutes making it illegal to discriminate on the basis of national origin, and many of these statutes have apparently been interpreted by the appropriate state enforcement agency as not barring citizenship requirements. For example, the New York Human Rights Law provides that it is an unlawful discriminatory practice to refuse to hire any individual because of his or her origin and additionally provides that it shall be unlawful for an employer to make any pre-employment inquiry “which expresses directly or indirectly, any limitation, specification or discrimination as to . . . national origin . . . .” N. Y. Exec. Law §296 (1972). The New York State Commission Against Discrimination has ruled that an employer may lawfully ask a job applicant whether he or she is a citizen of the United States. See 3 CCH Employment Prac. Guide ¶ 26,051, p. 8899.
      While these interpretations of state statutes do not control our construction of federal law, we think them indicative of a general understanding that the term “national origin” does not embrace a requirement of United States citizenship.

       Petitioners argue that it is unreasonable to attribute any great significance to these provisions in determining congressional intent because the barrier to employment of noncitizens has been tucked away in appropriations bills rather than expressed in a more affirmative fashion. We disagree. Indeed, the fact that Congress has occasionally enacted exceptions to the general barrier indicates to us that Congress was well aware of what it was doing. See, e. g., Pub. L. 92-204, §703, 85 Stat. 726 (Dept. of Defense); Pub. L. 91-382, 84 Stat. 823 (Library of Congress).

       We left this question undecided in Sugarman v. Dougall, 413 U. S. 634, 646 n. 12 (1973). See Jalil v. Hampton, 148 U. S. App. D. C. 415, 460 F. 2d 923, cert. denied, 409 U. S. 887 (1972); Mow Sun Wong v. Hampton, 333 F. Supp. 527 (ND Cal. 1971).

       There is no suggestion, for example, that the company refused to hire aliens of Mexican or Spanish-speaking background while hiring those of other national origins. Respondent’s president informed the EEOC’s Regional Director investigating the charge that once in its history the company had made a single exception to its policy against hiring aliens, but the nationality of the individual concerned is not revealed in the record. While the company asks job applicants whether they are United States citizens, it makes no inquiry as to their national origin.

       It is suggested that a refusal to hire an alien always disadvantages that person because of the country of his birth. A person born in the United States, the argument goes, automatically obtains citizenship at birth, while those born elsewhere can acquire citizenship only through a long and sometimes difficult process. See 8 U. S. C. §§ 1423 (1), 1423 (2), 1427 (a), and 1430. The answer to this argument is that it is not the employer who places the burdens of naturalization on those bom outside the country, but Congress itself, through laws enacted pursuant to its constitutional power “[t]o establish an uniform Rule of Naturalization.” U. S. Const., Art. 1, § 8, cl. 4.
      Petitioners' reliance on Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971), is misplaced for similar reasons. In Phillips we held it unlawful under § 703 to have “one hiring policy for women and another for men . . . .” Id., at 544. Farah, however, does not have a different policy for the foreign born than for those born in the United States. It requires of all that they be citizens of the United States.

       The Opinion Letter was addressed to the question whether it was lawful to discriminate against nonresident aliens in favor of citizens and resident aliens, and expressly reserved any decision “regarding discrimination in favor of United States citizens and against resident aliens.” Nevertheless, the definition of “national origin” set forth in the Letter is inconsistent with that suggested by petitioners here.

       Petitioners argue that respondent’s policy of discriminating against aliens is prohibited by.42 U. S. C. § 1981, which provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . This issue was neither raised before the courts below nor presented in the petition for a writ of certiorari. Accordingly we express no views thereon.

       “Title VII of the Civil Rights Act of 1964 protects all individuals, both citizens and noncitizens, domiciled or residing in the United States, against discrimination on the basis of race, color, religion, sex, or national origin.” 29 CFR § 1606.1 (c) (1972).

         In re Griffiths, 413 U. S. 717 (1973).

         Sugarman v. Dougall, 413 U. S. 634 (1973).

       The only legislative history the majority points to is Congressman Roosevelt’s definition of “national origin”: “It means the country from which you or your forebears came. . . . You may come from Poland, Czechoslovakia, England, France, or any other country.” Ante, at 89. But that only makes clear what petitioners here argue — that Mrs. Espinoza cannot be discriminated against because she comes from a foreign country. The majority’s mention of the deletion of the word “ancestry,” ibid., is certainly irrelevant. Obviously “national origin” comprehends “ancestry,” but as Congressman Roosevelt pointed out it means more — not only where one’s forebears were born, but where one himself was born.


author: Per Curiam. Mr. Justice Douglas,

text:
    PASCHALL et al. v. CHRISTIE-STEWART, INC., et al.
    No. 72-922.
    Argued October 16, 1973
    Decided November 19, 1973

      William J. Legg argued the cause and filed briefs for appellants.

      Joe S. Ralston III argued the cause and filed a brief for appellees.
   Per Curiam.

In this case we noted probable jurisdiction, 411 U. S. 915 (1973), in order to consider whether the published notice provisions of the then-applicable Oklahoma tax-sale statutes, Okla. Stat., Tit. 68, §§ 382 and 432b (1951), comported with due process of law guaranteed by the Fourteenth Amendment. See Mullane v. Central Han over Bank & Trust Co., 339 U. S. 306 (1950). This was the only issue addressed by the appellate courts of Oklahoma and by the parties in the Jurisdictional Statement and the papers responsive thereto filed with this Court.

After oral argument and upon our review of the record, it now appears that there might have been an independent and, possibly, an unchallenged ground for the judgment of the state trial court, viz., the running of the Oklahoma period of limitation for adverse claims. If that should prove to be the case, any decision by this Court would be advisory and beyond our jurisdiction. Murdock v. City of Memphis, 20 Wall. 590, 636 (1875).

The judgment of the Supreme Court of Oklahoma is therefore vacated and the case is remanded to that court to consider whether the appellants preserved the right to challenge the 'trial court’s determination that the State’s statute of limitations is a bar to their mineral rights claim, and, if so, whether, under state law, the statute of limitations independently bars appellants’ claim, irrespective of the constitutional adequacy of the tax-sale notice provisions of §§ 382 and 432b. Cf. Walker v. Hoffman, 405 P. 2d 57 (Okla. 1965).

It is so ordered.

Mr. Justice Douglas,

with whom Mr. Justice Stewart concurs,

dissenting.

Appellants claim title to the mineral interests here in controversy through deeds recording the severed interests on the books of the Seminole County Clerk in 1926 and 1930. In 1952 the owner of the separate surface interest failed to pay ad valorem taxes and the county satisfied its tax claim by selling the entire fee to the appellees after “notice” through newspaper publication. The tax-sale statutes did not require that notice be given to the mineral owners by way of personal service, mailing, or posting, and no such notice was attempted. In an action to quiet title appellants contended that, as record owners of the mineral rights, they were never given constitutionally sufficient notice of the tax delinquency proceedings and as to them.the proceedings were invalid. See Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950).

The trial court, finding the tax-sale proceedings valid and finding appellants’ attack on the tax-sale deed barred by the statute of limitations, quieted title in appellees. The Oklahoma Court of Appeals reversed that judgment but was itself reversed by the Oklahoma Supreme Court, each court addressing itself expressly only to the constitutional claim. The Court today remands the case to determine whether appellants adequately preserved the right to challenge the adverse trial court ruling on the statute of limitations issue and whether this may serve as an independent bar to the assertion of their claim.

It should first be noted that proper preservation of this issue in the state courts is a hurdle facing not the appellants but the appellees. The Oklahoma Court of Appeals quieted title in appellants and thus must necessarily have found, not only that the tax sale was constitutionally infirm, but also that the appellants’ claim was not time barred. The Oklahoma Supreme Court reversed that judgment and affirmed the judgment of the trial court after finding that “[t]he question for decision is whether the Oklahoma statutory procedure . . . complies with . . . due process of law.” 502 P. 2d 1265, 1266 (1972) (emphasis added). Whether appellees adequately raised the statute of limitations ground in objecting to the Court of Appeals judgment, we do not know. What we do know is that the Oklahoma Supreme Court quieted title in appellees by rejecting appellants’ constitutional claim. Either because the issue was not properly before the court or because decision on it was not necessary, the statute of limitations issue was not reached.

What faces this Court is thus a decision quieting title in appellees by rejecting appellants’ federal constitutional claim. As the majority notes, this was the only issue addressed by the parties in the Jurisdictional Statement and the responsive papers filed with this Court. When a constitutional adjudication is not the only basis on which a state court judgment rests, a review of that adjudication by this Court would be advisory since the judgment would rest on its independent grounds regardless of the outcome of our review. But the only issue before us in this case is a constitutional one since the only basis for the reversal below is the rejection of appellants’ constitutional claim. When a decision rests only on a constitutional determination, a review of that determination is dispositive of the correctness of the decision and is thus not advisory. I would therefore face the constitutional claim at this point.

       The ad valorem taxes in question were for the year 1952. The original tax sale took place in November 1953 and the resale in May 1956. Okla. Stat., Tit. 68, §§ 383 and 432 (1951). The statutes cited (§§ 382, 383, 432, and 432b) were repealed by Okla. Sess. Laws 1965, c. 501, § 3, and replaced by corresponding provisions of the State’s present Ad Valorem Tax Code, namely, Okla. Stat. Ann., Tit. 68, §§24312, 24313, 24329, and 24331 (1966).

       See 502 P. 2d 1265 (1972). The earlier opinion of the Oklahoma Court of Appeals, Division 2, is not reported; it is reproduced in the Jurisdictional Statement, App. A, p. vii.

       The trial court’s judgment read in part as follows:
      “ (2) The Court Further Finds, Orders, Adjudges and Decrees that from the date of the recording of said resale tax deed, on June 6, 1956 ... said Grantees therein, the Cross-Petitioners, R. W. Garrett and R. H. Vaughn, have been in the open, continuous, visible, notorious, exclusive and hostile possession of said lands and premises, receiving all of the rents, profits and income therefrom, and that said contesting substituted party defendants, are further forever barred and precluded by the statute of limitations, from seeking to assert the invalidity of said resale tax deed, as provided by 12 O. S. 1961, Sec. 93 (3) and (6).” Jurisdictional Statement, App. B, p. xvii.
      Okla. Stat. Ann., Tit. 12, §93 (Supp. 1973-1974), reads:
      § 93. Limitation of real actions. — “Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter:
      “(3) An action for the recovery of real property sold for taxes, within five (5) years after the date of the recording of the tax deed . . . provided, nothing herein shall be construed as reviving any cause of action for recovery of real property heretofore barred nor as divesting any interest acquired by adverse possession prior to the effective date hereof.
      “(6) Numbered paragraphs 1, 2, and 3 shall be fully operative regardless of whether the deed or judgment or the precedent -action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; provided that this paragraph shall not be applied so as to bar causes of action which have heretofore accrued, until the expiration of one (1) year from and after its effective date.”

       Whether the alleged lack of constitutionally valid notice would preclude the running of the statute of limitations for an adverse land claim is a question that has not been presented to this Court or to the Oklahoma courts below. Cf. Shroeder v. City of New York, 371 U. S. 208, 213-214 (1962). We intimate no view on this issue.


author: Per Curiam. Mr. Justice Rehnquist,

text:
    HESS v. INDIANA
    No. 73-5290.
    Decided November 19, 1973
   Per Curiam.

Gregory Hess appeals from his conviction in the Indiana courts for violating the State's disorderly conduct statute. Appellant contends that his conviction should be reversed because the statute is unconstitutionally vague, Connally v. General Construction Co., 269 U. S. 385 (1926), because the statute is overbroad in that it forbids activity that is protected under the First and Fourteenth Amendments, Gooding v. Wilson, 405 U. S. 518 (1972), and because the statute, as applied here, abridged his constitutionally protected freedom of speech, Terminiello v. Chicago, 337 U. S. 1 (1949). These contentions were rejected in the City Court, where Hess was convicted, and in the Superior Court, which reviewed his conviction. The Supreme Court of Indiana, with one dissent, considered and rejected each of Hess’ constitutional contentions, and accordingly affirmed his conviction.

The events leading to Hess’ conviction began with an antiwar demonstration on the campus of Indiana University. In the course of the demonstration, approximately 100 to 150 of the demonstrators moved onto a public street and blocked the passage of vehicles. When the demonstrators did not respond to verbal directions from the sheriff to clear the street, the sheriff and his deputies began walking up the street, and the demonstrators in their path moved to the curbs on either side, joining a large number of spectators who had gathered. Hess was standing off the street as the sheriff passed him. The sheriff heard Hess utter the word “fuck” in what he later described as a loud voice and immediately arrested him on the disorderly conduct charge. It was later stipulated that what appellant had said was “We’ll take the fucking street later,” or “We’ll take the fucking street again.” Two witnesses who were in the immediate vicinity testified, apparently without contradiction, that they heard Hess’ words and witnessed his arrest. They indicated that Hess did not appear to be exhorting the crowd to go back into the street, that he was facing the crowd and not the street when he uttered the statement, that his statement did not appear to be addressed to any particular person or group, and that his tone, although loud, was no louder than that of the other people in the area.

Indiana’s disorderly conduct statute was applied in this case to punish only spoken words. It hardly needs repeating that “[t]he constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within 'narrowly limited classes of speech.’ ” Gooding v. Wilson, supra, at 521-522. The words here did not fall within any of these “limited classes.” In the first place, it is clear that the Indiana court specifically abjured any suggestion that Hess’ words could be punished as obscene under Roth v. United States, 354 U. S. 476 (1957), and its progeny. Indeed, after Cohen v. California, 403 U. S. 15 (1971), such a contention with regard to the language at issue would not be tenable. By the same token, any suggestion that Hess’ speech amounted to “fighting words,” Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), could not withstand scrutiny. Even if under other circumstances this language could be regarded as a personal insult, the evidence is undisputed that Hess’ statement was not directed to any person or group in particular. Although the sheriff testified that he was offended by the language, he also stated that he did not interpret the expression as being directed personally at him, and the evidence is clear that appellant had his back to the sheriff at the time. Thus, under our decisions, the State could not punish this speech as “fighting words.” Cantwell v. Connecticut, 310 U. S. 296, 309 (1940); Cohen v. California, supra, at 20.

In addition, there was no evidence to indicate that Hess’ speech amounted to a public nuisance in that privacy interests were being invaded. “The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, supra, at 21. The prosecution made no such showing in this case.

The Indiana Supreme Court placed primary reliance on the trial court’s finding that Hess’ statement “was intended to incite further lawless action on the part of the crowd in the vicinity of appellant and was likely to produce such action.” — Ind. -, -, 297 N. E. 2d 413, 415 (1973). At best, however, the statement could be taken as counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time. This is not sufficient to permit the State to punish Hess’ speech. Under our decisions, “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U. S. 444, 447 (1969). (Emphasis added.) See also Terminiello v. Chicago, 337 U. S., at 4. Since the uncontroverted evidence showed that Hess’ statement was not directed to any person or group of persons, it cannot be said that he was advocating, in the normal sense, any action. And since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had “a 'tendency to lead to violence.’ ” - Ind., at -, 297 N. E. 2d, at 415.

Accordingly, the motion to proceed in forma pauperis is granted and the judgment of the Supreme Court of Indiana is reversed.

Mr. Justice Rehnquist,

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

dissenting.

The Court’s per curiam opinion rendered today aptly demonstrates the difficulties inherent in substituting a different complex of factual inferences for the inferences reached by the courts below. Since it is not clear to me that the Court has a sufficient basis for its action, I dissent.

It should be noted at the outset that the case was tried de novo in the Superior Court of Indiana upon a stipulated set of facts, and, therefore, the record is perhaps unusually colorless and devoid of life. Nevertheless, certain facts are clearly established. Appellant was arrested during the course of an antiwar demonstration conducted at Indiana University in May 1970. The demonstration was of sufficient size and vigor to require the summoning of police, and both the Sheriff’s Department and the Bloomington Police Department were asked to help university officials and police remove demonstrators blocking doorways to a campus building. At the time the sheriff arrived, “approximately 200-300 persons” were assembled at that particular building. •

The doorways eventually were cleared of demonstrators, but, in the process, two students were placed under arrest. This action did not go unnoticed by the demonstrators. As the stipulation notes, “[i]n apparent response to these arrests, about 100-150 of the persons who had gathered as spectators went into Indiana Avenue in front of Bryan Hall and in front of the patrol car in which the two arrestees had been placed.” Thus, by contrast to the majority’s somewhat antiseptic description of this massing as being “[i]n the course of the demonstration,” the demonstrators’ presence in the street was not part of the normal “course of the demonstration” but could reasonably be construed as an attempt to intimidate and impede the arresting officers. Furthermore, as the stipulation also notes, the demonstrators “did not respond to verbal directions” from the sheriff to clear the street. Thus, the sheriff and his deputies found it necessary to disperse demonstrators by walking up the street directly into their path. Only at that point did the demonstrators move to the curbs.

The stipulation contains only one other declaration of fact: that Sheriff Thrasher arrested the appellant, Gregory Hess, for disorderly conduct. The remainder of the stipulation merely summarizes testimony, particularly the testimony of Sheriff Thrasher, two female witnesses (both students at Indiana University) who were apparently part of the crowd, and Dr. Owen Thomas, a professor of English at the university. The only “established” facts which emerge from these summaries are that “Hess was standing off the street on the eastern curb of Indiana Avenue” and that he said, in the words of the trial court, “We’ll take the fucking street later (or again).” The two female witnesses testified, as the majority correctly observes, that they were not offended by Hess’ statement, that it was said no louder than statements by other demonstrators, “that Hess did not appear to be exhorting the crowd to go back into the street,” that he was facing the crowd, and “that his statement did not appear to be addressed to any particular person or group.” (Emphasis added.)

The majority makes much of this “uncontroverted evidence,” but I am unable to find anywhere in the opinion an explanation of why it must be believed. Surely the sentence “We’ll take the fucking street later (or again)” is susceptible of characterization as an exhortation, particularly when uttered in a loud voice while facing a crowd. The opinions of two defense witnesses cannot be considered proof to the contrary, since the trial court was perfectly free to reject this testimony if it so desired. Perhaps, as these witnesses and the majority opinion seem to suggest, appellant was simply expressing his views to the world at large, but that is surely not the only rational explanation.

The majority also places great emphasis on appellant’s use of the word “later,” even suggesting at one point that the statement “could be taken as counsel for present moderation.” The opinion continues: “[A]t worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time.” From that observation, the majority somehow concludes that the advocacy was not directed towards inciting imminent action. But whatever other theoretical interpretations may be placed upon the remark, there are surely possible constructions of the statement which would encompass more or less immediate and continuing action against the harassed police. They should not be rejected out of hand because of an unexplained preference for other acceptable alternatives.

The simple explanation for the result in this case is that the majority has interpreted the evidence differently from the courts below. In doing so, however, I believe the Court has exceeded the proper scope of our review. Rather than considering the “evidence” in the light most favorable to the appellee and resolving credibility-questions against the appellant, as many of our cases have required, the Court has instead fashioned its own version of events from a paper record, some “uncontroverted evidence,” and a large measure of conjecture. Since this is not the traditional function of any appellate court, and is surely not a wise or proper use of the authority of this Court, I dissent.

       “Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct, and upon conviction, shall be fined in any sum not exceeding five hundred dollars [$500] to which may be added imprisonment for not to exceed one hundred eighty [180] days.” Ind. Code 35-27-2-1 (1971), Ind. Ann. Stat. §10-1510 (Supp. 1972).

       The State contends that Hess failed to preserve his constitutional contentions in the state courts. But the record demonstrates that Hess moved to quash the affidavit for disorderly conduct in the City Court on the constitutional grounds that he is asserting in this Court. The State points out that, on appeal to the Superior Court, appellant received a trial de novo and did not again move to quash the affidavit in that court. But the refusal of the City Court to quash the affidavit was asserted as error by Hess on his appeal to the Superior Court, and his memorandum in support of his appeal pressed the constitutional contentions. Since the Supreme Court of Indiana considered and resolved each of Hess’ constitutional contentions, it is apparent that it regarded Hess’ actions in the state courts as sufficient under state law to preserve his constitutional arguments on appeal.

      See, e. g., Glosser v. United States, 315 U. S. 60, 80 (1942).


author: Per Curiam. Me. Justice Stewart

text:
    CHICAGO MERCANTILE EXCHANGE v. DEAKTOR et al.
    No. 73-241.
    Decided December 3, 1973
   Per Curiam.

The petitioner, Chicago Mercantile Exchange, was sued in two separate actions in the District Court. In one, the Phillips suit, it was alleged that the Exchange had forced sales of futures contracts in March 1970 fresh eggs at artificially depressed market prices and had thereby monopolized and restrained commerce in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2, and had violated § 9 (b) of the Commodity Exchange Act (CEA), as amended, 82 Stat. 33, 7 U. S. C. § 13 (b), by manipulating prices of a commodity for future delivery on a contract market. The Exchange was also accused of violating § 5a of the CEA, 7 U. S. C. § 7a (8), for failure to enforce one of its own rules. In the second suit, the Deaktor case, the Exchange was charged with violating the CEA and its own rules as a designated contract market because it had failed to exercise due care to halt the manipulative conduct of certain of its members who allegedly had cornered the July 1970 market in frozen pork bellies futures contracts.

The Exchange defended both actions on the ground that it was faithfully discharging its statutory duty of self-regulation. It asserted that its challenged acts in the Phillips case were measures taken to prevent speculation in futures contracts and as such were not in violation of the CEA. Rather, they were authorized and required by the statute and hence cannot be considered within the reach of the antitrust laws. Likewise, in the Deaktor suit, the Exchange claimed that it had taken all proper and reasonable steps to perform its statutory responsibility to prevent manipulation.

The Exchange further urged that because the Commodity Exchange Commission had jurisdiction to determine whether the Exchange was violating the CEA or its own rules and to impose sanctions for any such offense, both suits should be stayed to permit the Commission to determine in the first instance whether or not the actions of the Exchange under scrutiny were in discharge of its proper duties under the CEA and its regulations. The District Court refused the stay, and the Court of Appeals affirmed. Deaktor v. L. D. Schreiber & Co., 479 F. 2d 529 (CA7 1973). Both courts were in error.

Ricci v. Chicago Mercantile Exchange, 409 U. S. 289 (1973), held that an antitrust action against the Exchange should have been stayed to afford the Commodity Exchange Commission an opportunity to determine if the challenged conduct of the Exchange was in compliance with the statute and with Exchange rules. Because administrative adjudication of alleged violations of the CEA and the rules lay at the heart of the task assigned the Commission by Congress, we recognized that the court, although retaining final authority to interpret the CEA and its relationship to the antitrust laws, should avail itself of the abilities of the Commission to unravel the intricate and technical facts of the commodity industry and to arrive at some judgnaent as to whether the Exchange had conducted itself in compliance with the law. An adjudication by the Commission that the actions of the Exchange were authorized or required by the CEA would not necessarily dispose of the question of immunity from antitrust liability. We nevertheless thought the considered view of the Commission would be of sufficient aid to the court that the action should not go forward without making reasonable efforts to invoke the jurisdiction of the Commission. Id., at 305-306. As we did in Ricci,

“we simply recognize that Congress has established a specialized agency that would determine either that a . . . rule of the Exchange has been violated or that it has been followed. Either judgment would require determination of facts and the interpretation and application of the Act and Exchange rules. And either determination will be of great help to the antitrust court in arriving at the essential accommodation between the antitrust and the regulatory regime . . . .” Id., at 307.

In our judgment, the Court of Appeals, as in Ricci, should have requested the District Court to stay the proceedings in the Phillips case to afford an opportunity to invoke the jurisdiction of the Commission. For very similar reasons, the Deaktor plaintiffs, who also alleged violations of the CEA and the rules of the Exchange, should be routed in the first instance to the agency whose administrative functions appear to encompass adjudication of the kind of substantive claims made against the Exchange in this case.

The petition for writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion.

So ordered.

Me. Justice Stewart

dissents. He would affirm the judgment substantially upon the reasoning of Judge Castle’s concurring opinion in the Court of Appeals. 479 F. 2d 529, 535.