source: Caselaw Access Project

author: Mr. Justice Stevens Mr. Justice Marshall,

license: Public Domain

text:
    UNITED AIR LINES, INC. v. EVANS
    No. 76-333.
    Argued March 29, 1977
    Decided May 31, 1977

      Stuart Bernstein argued the cause for petitioner. On the briefs were Arnold T. Aikens, Kenneth A. Knutson, and Earl G. Dolan.

      Alan M. Levin argued the cause for respondent pro hac vice. With him on the brief was Isaiah S. Dorman.

      Briefs of amici curiae urging reversal were filed by Gordon Dean Booth, Jr., for Delta Air Lines, Inc., et al.; and by Peyton H. Moss, Douglas S.

        McDowell, and Robert E. Williams for the Equal Employment Advisory Council et al.

        Jack Greenberg, James M. Nabrit III, Patrick 0. Patterson, and Barry Goldstein filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance.

   Mr. Justice Stevens

delivered the opinion of the Court.

Respondent was employed by United Air Lines as a flight attendant from November 1966 to February 1968. She was rehired in February 1972. Assuming, as she alleges, that her separation from employment in 1968 violated Title VII of the Civil Rights Act of 1964, the question now presented is whether the employer is committing a second violation of Title VII by refusing to credit her with seniority for any period prior to February 1972.

Respondent filed charges with the Equal Employment Opportunity Commission in February 1973, alleging that United discriminated and continues to discriminate against her because she is a female. After receiving a letter granting her the right to sue, she commenced this action in the United States District Court for the Northern District of Illinois. Because the District Court dismissed her complaint, the facts which she has alleged are taken as true. They may be simply stated.

During respondent’s initial period of employment, United maintained a policy of refusing to allow its female flight attendants to be married. When she married in 1968, she was therefore forced to resign. Although it was subsequently decided that such a resignation violated Title VII, Sprogis v. United Air Lines, 444 F. 2d 1194 (CA7 1971), cert. denied, 404 U. S. 991, respondent was not a party to that case and did not initiate any proceedings of her own in 1968 by filing a charge with the EEOC within 90 days of her separation. A claim based on that discriminatory act is therefore barred.

In November 1968, United entered into a new collective-bargaining agreement which ended the pre-existing “no marriage” rule and provided for the reinstatement of certain flight attendants who had been terminated pursuant to that rule. Respondent was not covered by that agreement. On several occasions she unsuccessfully sought reinstatement; on February 16, 1972, she was hired as a new employee. Although her personnel file carried the same number as it did in 1968, for seniority purposes she has been treated as though she had no prior service with United. She has not alleged that any other rehired employees were given credit for prior service with United, or that United’s administration of the seniority system has violated the collective-bargaining agreement covering her employment.

Informal requests to credit her with pre-1972 seniority-having been denied, respondent commenced this action. The District Court dismissed the complaint, holding that the failure to file a charge within 90 days of her separation in 1968 caused respondent’s claim to be time barred, and foreclosed any relief under Title VII.

A divided panel of the Court of Appeals initially affirmed; then, after our decision in Franks v. Bowman Transportation Co., 424 U. S. 747, the panel granted respondent’s petition for rehearing and unanimously reversed. 534 F. 2d 1247 (CA7 1976). We granted certiorari, 429 U. S. 917, and now hold that the complaint was properly dismissed.

Respondent recognizes that it is now too late to obtain relief based on an unlawful employment practice which occurred in •1968. She contends, however, that United is guilty of a present, continuing violation of Title VII and therefore that her claim is timely. She advances two reasons for holding that United’s seniority system illegally discriminates against her: First, she is treated less favorably than males who were hired after her termination in 1968 and prior to her re-employment in 1972; second, the seniority system gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination. Neither argument persuades us that United is presently violating the statute.

It is true that some male employees with less total service than respondent have more seniority than she. But this disparity is not a consequence of their sex, or of her sex. For females hired between 1968 and 1972 also acquired the same preference over respondent as males hired during that period. Moreover, both male and female employees who had service prior to February 1968, who resigned or were terminated for a nondiscriminatory reason (or for an unchallenged discriminatory reason), and who were later re-employed, also were treated as new employees receiving no seniority credit for their prior service. Nothing alleged in the complaint indicates that United’s seniority system treats existing female employees differently from existing male employees, or that the failure to credit prior service differentiates in any way between prior service by males and prior service by females. Respondent has failed to allege that United’s seniority system differentiates between similarly situated males and females on the basis of sex.

Respondent is correct in pointing out that the seniority system gives present effect to a past act of discrimination. But United was entitled to treat that past act as lawful after respondent failed to file a charge of discrimination within the 90 days then allowed by § 706 (d). A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.

Respondent emphasizes the fact that she has alleged a continuing violation. United’s seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists. She has not alleged that the system discriminates against former female employees or that it treats former employees who were discharged for a discriminatory reason any differently from former employees who resigned or were discharged for a nondiscriminatory reason. In short, the system is neutral in its operation.

Our decision in Franks v. Bowman Transportation Co., supra, does not control this case. In Franks we held that retroactive seniority was an appropriate remedy to be awarded under § 706 (g) of Title VII, 42 U. S. C. § 2000e-5 (g) (1970 ed., Supp. V), after an illegal discriminatory act or practice had been proved, 424 U. S., at 762-768. When that case reached this Court, the issues relating to the timeliness of the charge and the violation of Title VII had already been decided; we dealt only with a question of remedy. In contrast, in the case now before us we do not reach any remedy issue because respondent did not file a timely charge based on her 1968 separation and she has not alleged facts establishing a violation since she was rehired in 1972.

The difference between a remedy issue and a violation issue is highlighted by the analysis of § 703 (h) of Title VII in Franks. As we held in that case, by its terms that section does not bar the award of retroactive seniority after a violation has been proved. Rather, § 703 (h) “delineates which employment practices are illegal and thereby prohibited and which are not,” 424 U. S., at 758.

That section expressly provides that it shall not be an unlawful employment practice to apply different terms of employment pursuant to a bona fide seniority system, provided that any disparity is not the result of intentional discrimination. Since respondent does not attack the bona fides of United’s seniority system, and since she makes no charge that the system is intentionally designed to discriminate because of race, color, religion, sex, or national origin, § 703 (h) provides an additional ground for rejecting her claim.

The Court of Appeals read § 703 (h) as intended to bar an attack on a seniority system based on the consequences of discriminatory acts which occurred prior to the effective date of Title VII in 1965, but having no application to such attacks based on acts occurring after 1965. This reading of § 703 (h) is too narrow. The statute does not foreclose attacks on the current operation of seniority systems which are subject to challenge as discriminatory. But such a challenge to a neutral system may not be predicated on the mere fact that a past event which has no present legal significance has affected the calculation of seniority credit, even if the past event might at one time have justified a valid claim against the employer. A contrary view would substitute a claim for seniority credit for almost every claim which is barred by limitations. Such a result would contravene the mandate of § 703 (h).

The judgment of the Court of Appeals is reversed.

It is so ordered.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins, dissenting.

But for her sex, respondent Carolyn Evans presently would enjoy all of the seniority rights that she seeks through this litigation. Petitioner United Air Lines has denied her those rights pursuant to a policy that perpetuates past discrimination by awarding the choicest jobs to those possessing a credential married women were unlawfully prevented from acquiring: continuous tenure with United. While the complaint respondent filed in the District Court was perhaps inartfully drawn, it adequately draws into question this policy of United’s.

For the reasons stated in the Court’s opinion and in my separate opinion in Teamsters v. United States, ante, at 378,1 think it indisputable that, absent § 703 (h), the seniority system at issue here would constitute an “unlawful employment practice” under Title VII, 42 U. S. C. § 2000e-2 (a)(2) (1970 ed., Supp. V). And for the reasons developed at length in my separate opinion in Teamsters, ante, at 381-394,1 believe § 703 (h) does not immunize seniority systems that perpetuate post-Act discrimination.

The only remaining question is whether Ms. Evans’ complaint is barred by the applicable statute of limitations, 42 U. S. C. § 2000e-5 (e) (1970 ed., Supp. V). Her cause of action accrued, if at all, at the time her seniority was recomputed after she was rehired. Although she apparently failed to file a charge with the EEOC within 180 days after her seniority was determined, Title VII recognizes that certain violations, once commenced, are continuing in nature. In these instances, discriminatees can file charges at any time up to 180 days after the violation ceases. (They can, however, receive backpay only for the two years preceding the filing of charges with the Equal Employment Opportunity Commission. 42 U. S. C. § 2000e-5 (g) (1970 ed., Supp. V).) In the instant case, the violation — treating respondent as a new employee even though she was wrongfully forced to resign — is continuing to this day. Respondent’s charge therefore was not time barred, and the Court of Appeals judgment reinstating her complaint should be affirmed.

       78 Stat. 253. Title VII, as amended, is codified in 42 U. S. C. § 2000e et seq. (1970 ed. and Supp. V).

       At that time United required that all flight attendants be female, except on flights between the mainland and Hawaii and on overseas military charter flights. See Sprogis v. United Air Lines, 444 F. 2d 1194, 1203 (CA7 1971) (Stevens, J., dissenting), cert. denied, 404 U. S. 991.

       Section 706 (d), 78 Stat. 260, 42 U. S. C. § 2000&-5 (d), then provided in part:
      “A charge under subsection (a) shall be filed within ninety days after the alleged unlawful employment practice occurred . . .

      The 1972 amendments to Title VII added a new subsection (a) to § 706. Consequently, subsection (d) was redesignated as subsection (e). At the same time it was amended to enlarge the limitations period to 180 days. See 86 Stat. 105,42 U. S. C. § 2000e-5 (e) (1970 ed., Supp. V).

       Timely filing is a prerequisite to the maintenance of a Title VII action. Alexander v. Gardner-Denver Co., 415 U. S. 36, 47. See Electrical Workers v. Robbins & Myers, Inc., 429 U. S. 229, 239-240.

       Respondent is carried on two seniority rolls. Her “company” or “system” seniority dates from the day she was rehired, February 16, 1972. Her “stewardess” or “pay” seniority dates from the day she completed her flight attendant training, March 16, 1972. One or both types of seniority determine a flight attendant’s wages; the duration and timing of vacations; rights to retention in the event of layoffs and rights to re-employment thereafter; and rights to preferential selection of flight assignments. App. 5-6, 10.

       Under the provisions of the collective-bargaining agreement between United and the Air Line Stewardesses and Flight Stewards as represented by the Air Line Pilots Association International for the period 1972-1974, seniority is irrevocably lost or broken after the separation from employment of a flight attendant “who resigns or whose services with the Company are permanently severed for just came.’’ Brief for Respondent 6.

         The relief requested in respondent’s complaint included an award of seniority to the starting date of her initial employment with United, and backpay “lost as a result of the discriminatory employment practices of [United].” App. 8. In her brief in this Court, respondent states that she seeks backpay only since her date of rehiring, February 16, 1972, which would consist of the increment in pay and benefits attributable to her lower seniority since that time. Brief for Respondent 4.

       The District Court recited that the motion was filed pursuant to Fed. Rule Civ. Proc. 12 (b) (1) and dismissed the complaint on the ground that it had no jurisdiction of a time-barred claim. The District Court also held, however, that the complaint did not allege any continuing violation. For that reason, the complaint was ripe for dismissal under Rule 12 (b)(6). The District Court stated:
      “Plaintiff asserts that by defendant’s denial of her seniority back to the starting date of her original employment in 1966, United is currently perpetuating the effect of past discrimination.
      “Plaintiff, however, has not been suffering from any 'continuing’ violation. She is seeking to have this court merely reinstate her November, 1966 seniority date which was lost solely by reason of her February, 1968 resignation. The fact that that resignation was the result of an unlawful employment practice is irrelevant for purposes of these proceedings because plaintiff lost her opportunity to redress that grievance when she failed to file a charge within ninety days of February, 1968. United’s subsequent employment of plaintiff in 1972 cannot operate to resuscitate such a time-barred claim.” App. 18.

       Respondent cannot rely for jurisdiction on the single act of failing to assign her seniority credit for her prior service at the time she was rehired, for she filed her discrimination charge with the Equal Employment Opportunity Commission on February 21, 1973, more than one year after she was rehired on February 16, 1972. The applicable time limit in February 1972, was 90 days; effective March 24, 1972, this time was extended to 180 days, see n. 3, supra.

       This case does not involve any claim by respondent that United’s seniority system deterred her from asserting any right granted by Title VII. It does not present the question raised in the so-called departmental seniority cases. See, e. g., Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (ED Va. 1968).

         The Court of Appeals had disposed of the timeliness issues in Franks, 495 F. 2d 398, 405 (CA5 1974).

       This finding of the District Court was unchallenged in the Court of Appeals, id., at 402, 403, and was assumed in this Court, 424 U. S., at 750.
      In any event we noted in Franks: “The underlying legal wrong affecting [the class] is not the alleged operation of a racially discriminatory seniority system but of a racially discriminatory hiring system.” Id., at 758.

       At the time she was rehired in 1972, respondent had no greater right to a job than any other applicant for employment with United. Since she was in fact treated like any other applicant when she was rehired, the employer did not violate Title VII in 1972. And if the employer did not violate Title VII in 1972 by refusing to credit respondent with back seniority, its continued adherence to that policy cannot be illegal.

       Section 703 (h), 78 Stat. 257, 42 U. S. C. §2000e-2 (h), provides:
      “Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin ....’’

       534 F. 2d, at 1251.

       Although the District Court dismissed respondent’s complaint for lack of jurisdiction pursuant to Fed. Rule Civ. Proc. 12 (b)(1), the basis for its ruling was that the complaint was time barred. Thus, the dismissal closely resembles a dismissal for failure to state a claim upon which relief can be granted, and the only issue before us is whether “it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Conley v. Gibson, 355 U. S. 41, 45-46 (1957).

       It is, of course, true that to establish her entitlement to relief, respondent will have to prove that she was unlawfully forced to resign more than 180 days prior to filing her charge with the EEOC. But if that is sufficient to defeat her claim, then discriminatees will never be able to challenge “practices, procedures, or tests . . . [which] operate to 'freeze’ the status quo of prior discriminatory employment practices,” Griggs v. Duke Power Co., 401 U. S. 424, 430 (1971), even though Griggs holds that such practices are impermissible, and the legislative history of the Equal Employment Opportunity Act of 1972, 86 Stat. 103, indicates that Congress agrees, see Teamsters v. United States, ante, at 391-393 (Marshall, J., concurring in part and dissenting in part). The consequence of Ms. Evans’ failure to file charges after she was discharged is that she has lost her right to backpay, not her right to challenge present wrongs.


author: Mr. Justice Marshall Mr. Justice Stewart,

text:
    SCARBOROUGH v. UNITED STATES
    No. 75-1344.
    Argued March 2, 1977
    Decided June 6, 1977

      Philip J. Hirschkop argued the cause and filed a brief for petitioner.

      Richard A. Allen argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, and Sidney M. Glaser.

   Mr. Justice Marshall

delivered the opinion of the Court.

Petitioner was convicted of possessing a firearm in violation of Title YII of the Omnibus Crime Control and Safe Streets Act of 1968 (Omnibus Crime Control Act), 18 U. S. C. App. §§ 1201-1203. The statute provides, in pertinent part:

“Any person, who—
“(1) has been convicted by a court of the United States or of a State or any political subdivision, thereof of a felony . . .
“and who receives, possesses, or transports in commerce or affecting commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” 18 U. S. C. App. § 1202 (a) ,

The issue in this case is whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce.

I

In 1972 petitioner pleaded guilty in the Circuit Court of Fairfax County, Va., to the felony of possession of narcotics with intent to distribute. A year later, in August 1973, law enforcement officials, in the execution of a search warrant for narcotics, seized four firearms from petitioner’s bedroom. Petitioner was subsequently charged with both receipt and possession of the four firearms in violation of 18 U. S. C. App. § 1202(a)(1).

In a jury trial in the Eastern District of Virginia, the Government offered evidence to show that all of the seized weapons had traveled in interstate commerce. All the dates established for such interstate travel were prior to the date petitioner became a convicted felon. The Government made no attempt to prove that the petitioner acquired these weapons after his conviction. Holding such proof necessary for a receipt conviction, the judge, at the close of the Government’s case, granted petitioner’s motion for a judgment of acquittal on that part of the indictment charging receipt.

Petitioner’s defense to the possession charge was twofold. As a matter of fact, he contended that by the time of his conviction he no longer possessed the firearms. His claim was that, to avoid violating this statute, he had transferred these guns to his wife prior to pleading guilty to the narcotics felony. Secondly, he argued that, as a matter of law, proof that the guns had at some time traveled in interstate commerce did not provide an adequate nexus between the possession and commerce. In furtherance of this defense, petitioner requested that the jury be instructed as follows:

“In order for the defendant to be found guilty of the crime with which he is charged, it is incumbent upon the Government to demonstrate a nexus between the 'possession’ of the firearms and interstate commerce. For example, a person 'possesses’ in commerce or affecting commerce if at the time of the offense the firearms were moving interstate or on an interstate facility, or if the 'possession’ affected commerce. It is not enough that the Government merely show that the firearms at some time had travelled in interstate commerce. . . .” App. 12-13.

The judge rejected this instruction. Instead he informed the jury:

• “The government may meet its burden of proving a connection between commerce and the possession of a firearm by a convicted felon if it is demonstrated that the firearm possessed by a convicted felon had previously travelled in interstate commerce.
“It is not necessary that the government prove that the defendant purchased the gun in some state other than that where he was found with it or that he carried it aeross the state line, nor must the government prove who did purchase the gun.” Id., at 14.

Petitioner was found guilty and he appealed. The Court of Appeals for the Fourth Circuit affirmed. 539 F. 2d 331. It held that the interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm petitioner possessed had previously traveled in interstate commerce. In view of the split among the Circuits on this issue, we granted certiorari. 429 U. S. 815 (1976). We affirm.

II

Our first encounter with Title VII of the Omnibus Crime Control Act came in United States v. Bass, 404 U. S. 336 (1971). There we had to decide whether the statutory phrase “in commerce or affecting commerce” in § 1202 (a) applied to “possesses” and “receives” as well as to “transports.” We noted that the statute was not a model of clarity. On the one hand, we found “significant support” in the legislative history for the contention that the statute “reaches the mere possession of guns without any showing of an interstate commerce nexus” in individual cases. 404 U. S., at 345-346. On the other hand, we could not ignore Congress’ inserting the phrase “in commerce or affecting commerce” in the statute. Id., at 345. The phrase clearly modified “transport” and we could find no sensible explanation for requiring a nexus only for transport. Id., at 340. Faced with this ambiguity, the Court adopted the narrower reading that the phrase modified all three offenses. We found this result dictated by two principles of statutory interpretation: First, that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,” Rewis v. United States, 401 U. S. 808, 812 (1971), and second, that “unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance,” Bass, supra, at 349. Since “[a]bsent proof of some interstate commerce nexus in each case § 1202 (a) dramatically intrudes upon traditional state criminal jurisdiction,” 404 U. S., at 350, we were-unwilling to conclude, without a “clearer statement of intention,” ibid., that Congress meant to dispense entirely with a nexus requirement in individual cases.

It was unnecessary in Bass for ,us to decide what would constitute an adequate nexus with commerce as the Government had made no attempt to show any nexus at all. While we did suggest some possibilities, the present case presents the first opportunity to focus on the question with the benefit of full briefing and argument.

The Government’s position is that to establish a nexus with interstate commérce it need prove only that the firearm possessed by the convicted felon traveled at some time in interstate commerce. The petitioner contends, however, that the nexus must be “contemporaneous” with the possession, that the statute proscribes “only crimes with a present connection to commerce.” Brief for Petitioner 9. He suggests that at the time of the offense the possessor must be engaging in commerce or must be carrying the gun at an interstate facility. Tr. of Oral Arg. 11. At oral argument he suggested an alternative theory — that one can be convicted for possession without any proof of a present connection with commerce so long as the firearm was acquired after conviction. Id., at 15.

In our effort to resolve the dispute, we turn first to the text of the statute. Petitioner contends that the meaning can be readily determined from the face of the statute, at least when it is contrasted with Title IV of the Omnibus Crime Control Act, another title dealing with gun control. He points to one section of Title IV, 18 U. S. C. § 922 (h), arguing, in reliance on our decision in Barrett v. United States, 423 U. S. 212 (1976), that this section shows how Congress can, if it chooses, specify an offense based on firearms that have previously traveled in commerce. In § 922 (h), Congress employed the present perfect tense, as it prohibited a convicted felon from receiving a firearm “which has been shipped or transported in interstate or foreign commerce.” This choice of tense led us to conclude in Barrett that Congress clearly “denot[ed] an act that has been completed.” 423 U. S., at 216. Thus, petitioner argues, since Congress knows how to specify completed transactions, its failure to use that language in the present statute must mean that it wanted to reach only ongoing transactions.

The essential difficulty with this argument is that it is not very meaningful to compare Title VII with Title IV. See Bass, 404 U. S., at 344. Title VII was a last-minute amendment to the Omnibus Crime Control Act enacted hastily with little discussion and no hearings. The statute, as we noted in Bass, is not the product of model legislative deliberation or draftsmanship. Id., at 339, 344. Title IV, on the other hand, is a carefully constructed package of gun control legislation. It is obvious that the tenses used throughout Title IV were chosen with care. For example, in addition to the prohibition in § 922 (h) on receipt by convicted felons, Congress also made it illegal in § 922 (g) for such person to “ship or transport any firearm or ammunition in interstate or foreign commerce.” In § 922 (j), Congress made it unlawful for “any person to receive, conceal, store, barter, sell or dispose of any stolen firearm . . . , which is moving as, which is part of, or which constitutes, interstate or foreign commerce.” And § 922 (k) makes it illegal for “any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had [its] serial number removed, obliterated or altered.” In view of such fine nuances in the tenses employed in the statute, the Court could easily conclude in Barrett that “Congress knew the significance and meaning of the language it employed.” 423 U. S., at 217. The language it chose was “without ambiguity.” Id., at 216. “Had Congress intended to confine § 922 (h) to direct interstate receipts, it would have so provided, just as it did in other sections of [Title IV].” Id., at 217.

In the present case, by contrast, Congress’ choice of language was ambiguous at best. While it is true that Congress did not choose the precise language used in § 922 (h) to indicate that a present nexus with commerce is not required, neither did it use the language of § 922 (j) to indicate that the gun must have a contemporaneous connection with commerce at the time of the offense. Thus, while petitioner is correct in noting that Congress has the skills to be precise, the fact that it did not employ those skills here helps us not at all.

While Congress’ choice of tenses is not very revealing, its findings and its inclusion of the phrase “affecting commerce” are somewhat more helpful. In the findings at the beginning of Title VII, Congress expressly declared that “the receipt, possession, or transportation of a firearm by felons . . . constitutes ... a burden on commerce or threat affecting the free flow of commerce,” 18 U. S. C. App. § 1201 (1). It then implemented those findings by prohibiting possessions “in commerce and affecting commerce.” As we have previously observed, Congress is aware of the “distinction between legislation limited to activities fin commerce’ and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce.” United States v. American Bldg. Maintenance Industries, 422 U. S. 271, 280 (1975); see also NLRB v. Reliance Fuel Corp., 371 U. S. 224, 226 (1963). Indeed, that awareness was explicitly demonstrated here. In arguing that Congress could, consistent with the Constitution, “outlaw the mere possession of weapons,” Senator Long, in introducing Title VII, pointed to the fact that “many of the items and transactions reached by the broad swath of the Civil Rights Act of 1964 were reached by virtue of the power of Congress to regulate matters affecting commerce, not just to regulate interstate commerce itself.” 114 Cong. Rec. 13868 (1968). He advised a similar reliance on the power to regulate matters affecting commerce and urged that “Congress simply [find] that the possession of these weapons by the wrong kind of people is either a burden on commerce or a threat that affects the free flow of commerce.” Id., at 13869. While in Bass we noted that we could not be sure that Congress meant to do away entirely with a nexus requirement, it does seem apparent that in implementing these findings by prohibiting both possessions in commerce and those affecting commerce, Congress must have meant more than to outlaw simply those possessions that occur in commerce or in interstate facilities. And we see no basis for contending that a weapon acquired after a conviction affects commerce differently from one acquired before and retained.

The legislative history in its entirety, while brief, further supports the view that Congress sought to rule broadly — to keep guns out of the hands of those who have demonstrated that “they may not be trusted to possess a firearm without becoming a threat to society.” Id., at 14773. There is simply no indication of any concern with either the movement of the gun or the possessor or with the time of acquisition.

In introducing the amendment, Senator Long stated:

“I have prepared an amendment which I will offer at an appropriate time, simply setting forth the fact that anybody who has been convicted of a felony ... is not permitted to possess a firearm ....
“It might be well to analyze, for a moment, the logic involved. When a man has been convicted of a felony, unless — as this bill sets forth — he has been expressly pardoned by the President and the pardon states that the person is to be permitted to possess firearms in the future, that man would have no right to possess firearms. He would be punished criminally if he is found in possession of them.
“It seems to me that this simply strikes at the possession of firearms by the wrong kind of people. It avoids the problem of imposing on an honest hardware store owner the burden of keeping a lot of records and trying to keep up with the ultimate disposition of weapons sold. It places the burden and the punishment on the kind of people who have no business possessing firearms in the event they come into possession of them.” Id., at 13868-13869.

The purpose of the amendment was to complement Title IV. Id., at 14774; see also id., at 16286. Senator Long noted:

“Of all the gun bills that have been suggested, debated, discussed and considered, none except this Title VII attempts to bar possession of a firearm from persons whose prior behaviors have established their violent tendencies. . . .
“. . . Under Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of [sic] the right to possess a firearm in the future ....
“Despite all that has been said about the need for controlling firearms in this Country, no other amendment heretofore offered would get at the Oswalds or the Gaits. They are the types of people at which Title VII is aimed.” Id., at 14773-14774.

He proposed this amendment to remedy what he thought was an erroneous conception of the drafters of Title IV that there was “a constitutional doubt that the Federal Government could outlaw the mere possession of weapons.” Id., at 13868.

The intent to outlaw possession without regard to movement and to apply it to a case such as petitioner’s could not have been more clearly revealed than in a colloquy between Senators Long and McClellan:

“Mr. McClellan. I have not had an opportunity to study the amendment. . . . The thought that occurred to me, as the Senator explained it, is that if a man had been in the penitentiary, had been a felon, and had been pardoned, without any condition in his pardon to which the able Senator referred, granting him the right to bear arms, could that man own a shotgun for the purpose of hunting?
“Mr. Long of Louisiana. No, he could not. He could own it, but he could not possess it.
“Mr. McClellan. I beg the Senator’s pardon?
“Mr. Long of Louisiana. This amendment does not seek to do anything about who owns a firearm. He could not carry it around; he could not have it.
“Mr. McClellan. Could he have it in his home?
“Mr. Long of Louisiana. No, he could not.” Id., at 14774 (emphasis added).

It was after this colloquy that Senator McClellan suggested that the amendment be taken to conference for “further thought.” Ibid. While that appeared to be its destination, the House, after Senate passage of the bill, defeated a motion to go to conference and adopted the entire Senate bill, including Title VII, without alteration. Id., at 16077-16078, 16299-16300. Title VII thus became law without modification.

It seems apparent from the foregoing that the purpose of Title VII was to proscribe mere possession but that there was some concern about the constitutionality of such a statute. It was that observed ambivalence that made us unwilling in Bass to find the clear intent necessary to conclude that Congress meant to dispense with a nexus requirement entirely. However, we see no indication that Congress intended to require any more than the minimal nexus that the firearm have been, at some time, in interstate commerce. In particular, we find no support for petitioner’s theories.

Initially, we note our difficulty in fully comprehending petitioner’s conception of a nexus with commerce. In his view, if an individual purchases a gun before his conviction, the fact that the gun once traveled in commerce does not provide an adequate nexus. It is necessary, in addition, that the person also carry it in an interstate facility. If, however, one purchases the same gun from the same dealer one day after the conviction as opposed to one day before, somehow the nexus magically appears, regardless of whether the purchaser carries the gun in any particular place. Such an interpretation strains credulity. We find no evidence in either the language or the legislative history for such a construction.

More significantly, these theories create serious loopholes in the congressional plan to “make it unlawful for a firearm . . . to be in the possession of a convicted felon.” 114 Cong. Rec. 14773 (1968). A person who obtained a firearm prior to his conviction can retain it forever so long as he is not caught with it in an interstate facility. Indeed, petitioner’s interpretation allows an individual to go out in the period between his arrest and conviction and purchase and stockpile weapons with impunity. In addition, petitioner’s theories would significantly impede enforcement efforts. Those who do acquire guns after their conviction obviously do so surreptitiously and, as petitioner concedes, Tr. of Oral Arg. 19, it is very difficult as a practical matter to prove that such possession began after the possessor’s felony conviction.

Petitioner responds that the Government’s reading of the statute fails to give effect to all three terms of the statute— receive, possess, transport. He argues that someone guilty of receipt or transport will necessarily be guilty of possession and that, therefore, there was no need to include the other two offenses in the statute. While this contention is not frivolous, the fact is that petitioner’s theory is similarly vulnerable. By his proposed definitions, there are essentially only two crimes — receipt and transport. The possessor who acquires the weapon after his conviction is guilty of receipt and the one who is carrying the gun in commerce or at an interstate facility presumably is guilty of transporting. Thus, the definitions offered by both sides fail to give real substance to all three terms. The difference, however, is that the Government’s definition captures the essence of Congress’ intent, striking at the possession of weapons by people “who have no business possessing [them].” 114 Cong. Rec. 13869 (1968). Petitioner’s version, on the other hand, fails completely to fulfill the congressional purpose. It virtually eliminates the one offense on which Congress focused in enacting the law.

Finally, petitioner seeks to invoke the two principles of statutory construction relied on in Bass — lenity in construing criminal statutes and caution where the federal-state balance is implicated. Petitioner, however, overlooks the fact that we did not turn to these guides in Bass until we had concluded that “[a]fter 'seizing every thing from which aid can be derived,’... we are left with an ambiguous statute.” 404 U. S., at 347. The principles are applicable only when we are uncertain about the statute’s meaning and are not to be used “in complete disregard of the purpose of the legislature.” United States v. Bramblett, 348 U. S. 503, 510 (1955). Here, the intent of Congress is clear. We do not face the conflicting pull between the text and the history that confronted us in Bass. In this case, the history is unambiguous and the text consistent with it. Congress sought to reach possessions broadly, with little concern for when the nexus with commerce occurred. Indeed, it was a close question in Bass whether § 1202 (a) even required proof of any nexus at all in individual cases. The only reason we concluded it did was because it was not" “plainly and unmistakably” clear that it did not. 404 U. S., at 348. But there is no question that Congress intended no more than a minimal nexus requirement.

Since the District Court and the Court of Appeals employed the proper standard, we affirm the conviction of petitioner.

It is so ordered.

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

Mr. Justice Stewart,

dissenting.

So far as the record reflects, the petitioner in this case acquired the four weapons in question before he was convicted of a felony in August 1972. Until that time, his possession of the guns was entirely legal under federal law. Under the Court’s construction of 18 U. S. C. App. § 1202 (a)(1), however, the petitioner was automatically guilty of a serious federal criminal offense at the moment he was convicted in the state felony case. This result is in my view inconsistent with the time-honored rule of lenity in construing federal criminal statutes. See, e. g., Rewis v. United States, 401 U. S. 808, 812; Ladner v. United States, 358 U. S. 169, 177-178; Bell v. United States, 349 U. S. 81, 83; United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221-222. I would hold that § 1202 (a)(1) does not come into play unless and until a person first comes into possession of a firearm after he is convicted of a felony.

The language of § 1202 (a)(1) does not compel the construction that the Court adopts. The statute covers “[a]ny person who . . . has been convicted ... of a felony . . . and who receives, possesses, or transports . . . any firearm . . . .” Plainly the acts of receiving and transporting are prohibited only if they occur after the defendant’s conviction. The language does not indicate, however, whether the illegal possession must also first begin after conviction, or whether a prior possession becomes illegal at the moment the possessor is adjudged guilty of a felony. ■ And, as the Court observes, ante, at 576-577, any reading of the statute makes one or another part of it redundant. If § 1202 (a) makes criminal any postconviction possession of a gun by a convicted felon, then there will almost never be a situation where the Government would need to rely on the prohibition against receipt of the gun, for in most cases receipt would result in possession, and the latter is generally easier to prove. On the other hand, if the prohibition against possession refers to a possession that begins only after a felony conviction, the Government presumably could proceed on a receipt charge in such cases, without relying on the possession offense (or vice versa).

The legislative history does not provide much help. There are statements suggesting that Congress meant to proscribe any possession of a firearm by a convicted felon. Other statements, however, intimate that the statute’s purpose was to prevent a convicted felon from coming into possession of a weapon after his conviction. For instance, Senator Long, the drafter and sponsor of § 1202, stated that the statute “places the burden and the punishment on the kind of people who have no business possessing firearms in the event they come into possession of them.” 114 Cong. Rec. 13869 (1968). Later he added that § 1202 (a) “would deny every assassin, murderer, thief and burglar . . . the right to possess a firearm in the future . . . .” 114 Cong. Rec. 14773.

In short, I disagree with the Court that the scope of § 1202 (a) is so crystal clear that there is no room for the operation of the rule of lenity. In my view, we are under no mandate to construe this statute so that a person in lawful possession of a firearm, and presumed to be innocent of a felony until proved guilty, must upon his conviction of a felony also be automatically and instantly guilty of a wholly different serious criminal offense. The statute could equally be read to apply only when a person first comes into possession of a firearm after his felony conviction. That being so, I would choose the latter alternative, for “it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.” United States v. Universal C. I. T. Credit Corp., supra, at 222.

Since the petitioner in this case came into possession of the firearms before he was convicted of any felony, I would hold that he did not violate § 1202 (a)(1). Accordingly, I respectfully dissent from the opinion and judgment of the Court.

       Section 1202 (a) reads in full:
      “(a) Any person who—
      “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
      “(2) has been discharged from the Armed Forces under dishonorable conditions, or
      “(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or
      “(4) having been a citizen of the United States has renounced his citizenship, or
      “(5) being an alien is illegally or unlawfully in the United States, “who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”

       The Government’s evidence showed that the Colt revolver was shipped from Connecticut to North Carolina in 1969 and entered Virginia by unknown means, App. 6-7; that the Universal Enforcer came from Florida to Virginia in 1969 and was purchased by petitioner in 1970, id., at 7-8; that the M-l carbine rifle was sent to Maryland from Illinois in 1966, coming to Virginia by unknown means, id., at 8-9; and that the St. Etienne Ordinance revolver was manufactured in France in the 19th century and was somehow later brought into Virginia, id., at 9-10.

       The Government showed that petitioner bought the Enforcer in 1970. The only evidence regarding acquisition of the other weapons came from petitioner. He claimed he purchased the Colt revolver in 1970, Tr. 88, and the M-l rifle in 1968, id., at 108. The French revolver, he claimed, was left in his house shortly before the state conviction but he was not sure by whom. Id., at 88,105.

       Agreeing with the Fourth Circuit that proof of previous interstate movement of the firearm provides a sufficient commerce nexus for the possession offense are the Sixth Circuit, United States v. Jones, 533 F. 2d 1387 (1976), and the Tenth Circuit, United States v. Bumphus, 508 F. 2d 1405 (1975) (dictum). Three other Circuits have indicated that .such proof is adequate for a receipt offense but that the possession offense requires that the possession have a contemporaneous nexus with commerce. United States v. Ressler, 536 F. 2d 208 (CA7 1976); United States v. Bell, 524 F. 2d 202 (CA2 1975); United States v. Steeves, 525 F. 2d 33 (CA8 1975) (dictum). The Ninth Circuit apparently has an intra-Circuit conflict. Compare United States v. Malone, 538 F. 2d 250 (1976), and United States v. Cassity, 509 F. 2d 682 (1974), with United States v. Burns, 529 F. 2d 114 (1975).

       The grant of the petition was limited to the question “[w]hether the Court erred in holding that a conviction under 18 U. S. C. App. § 1202 (a) for possession of a firearm in commerce or affecting commerce by a convicted felon is sustainable merely upon a showing that the possessed firearm has previously at any time however remote travelled in interstate commerce.” Petitioner’s Fourth Amendment claim was excluded.

       As one commentator described our dilemma: “[T]he legislative history looked one way and the logic and structure of the statute another, while the language was not clear.” Stern, The Commerce Clause Revisited— The Federalization of Intrastate Crime, 15 Ariz. L. Rev. 271, 281 (1973).

       See n. 11, infra.

       The provisions of Title IV of the Omnibus Crime Control Act were re-enacted later that year without relevant change in the Gun Control Act of 1968, 82 Stat. 1213. For convenience, those provisions are referred to here collectively as Title IV.

       Senator Long introduced it on the floor of the Senate on May 17, 1968. About a week later he explained his amendment again; there was brief debate; a vote was called; and the amendment was agreed to without having been referred to any committee. Accordingly, there were no legislative hearings and no committee reports. The amendment received only passing mention in the House discussion of the bill and never received committee consideration there either.

       Title 18 U. S. C. App. § 1201 reads in its entirety:
      “Congressional findings and declaration.
      “The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons, veterans who are discharged under dishonorable conditions, mental incompetents, aliens who are illegally in the country, and former citizens who have renounced their citizenship, constitutes—
      “(1) a burden on commerce or threat affecting the free flow of commerce,
      “(2) a threat to the safety of the President of the United States and Vice President of the United States,
      “(3) an impediment or a threat to the exercise of free speech and the free exercise of a religion guaranteed by the first amendment to the Constitution of the United States, and
      “(4) a threat to the continued and effective operation of the Government of the United States and of the government of each State guaranteed by article IV of the Constitution.”

       In Bass, the Court suggested that there might be a distinction between receipt and possession and that possession might require a stricter nexus with commerce. While such a requirement would make sense, see United States v. Bell, 524 F. 2d, at 209, further consideration has persuaded us that that was not the choice Congress made. Congress was not particularly concerned with the impact on commerce except as a means to insure the constitutionality of Title VII. State gun control laws were found “inadequate to bar possession of firearms from those most likely to use them for unlawful purposes” and Congress sought to buttress the States’ efforts. 114 Cong. Rec. 14774 (1968). All indications are that Congress meant to reach possessions broadly.

       The argument sounds more like an effort to define possession, but the only issue before us is the nexus requirement. Petitioner has raised no objections to the trial court’s definition of possession. Even as a proposed definition of possession, however, there is no support for it in the history or text. While Senator Long used the word “acquire” a few times in discussing the amendment, it is clear his concern was with the dangers of certain people having guns, not with when they obtained them. Furthermore, his use of the term “acquire” is better explained as a synonym for “receive” than for “possess.” See United States v. Kelly, 519 F. 2d 251, 253 n. 3 (CA8 1975).

       We note, however, that it is also arguable that one could receive and perhaps transport a weapon without necessarily exercising dominion and control over it.

       Petitioner suggests that a possessor’s simply waiting in an interstate facility is not transporting. Even if that is true, we find it inconceivable, in view of the legislative history, that Congress intended the possession offense to have so limited a scope.

       Under this construction, for example, a bookkeeper who owns a hunting rifle and who later commits embezzlement will, immediately upon his embezzlement conviction, also be guilty of violating § 1202 (a). At oral argument the Government agreed that such a person should have a reasonable time to relinquish possession without being automatically in violation of the statute, and suggested that prosecutorial discretion would take care of the problem. Proper construction of a criminal statute, however, cannot depend upon the good will of those who must enforce it.

       Contrary to the Court’s suggestion, this reading would not allow a person “to go out in the period between his arrest and conviction and purchase and stockpile weapons with impunity.” Ante, at 576. Title 18 U. S. C. § 922 (h) makes it unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to receive any firearm or ammunition that has been shipped or transported in interstate or foreign commerce.


author: Me. Justice Marshall

text:
    ALABAMA POWER CO. v. DAVIS
    No. 76-451.
    Argued April 25-26, 1977
    Decided June 6, 1977

      H. Hampton Boles argued the cause for petitioner. With him on the brief were John Bingham and Marshall Timberlake.

      Allan A. Ryan, Jr., argued the cause for respondent. With him on the brief were Solicitor General McCree, Assistant

      Attorney General Babcock, Robert E. Kopp, and William H. Berger.

      Briefs of amici curiae urging reversal were filed by Hugh M. Finneran for PPG Industries, Inc.; and by Carl E. Sanders, Michael C. Murphy, and John L. Taylor, Jr., for Lockheed-Georgia Co., a division of Lockheed Aircraft Corp.

   Me. Justice Marshall

delivered the opinion of the Court.

Respondent Davis became a permanent employee of petitioner Alabama Power Co. on August 16, 1936, and continued to work until March 18, 1943, when he left to enter the military. After serving in the military for 30 months, he resumed his position with Alabama Power, where he worked until he retired on June 1, 1971. Davis received credit under the company pension plan for his service from August 16, 1937, until the date of his retirement, with the exception of the time he spent in the military and some time spent on strike. Davis claimed that § 9 of the Military Selective Service Act of 1967, 50 U. S. C. App. § 459 (b), requires Alabama Power to give him credit toward his pension for his period of military service. With the assistance of the United States Attorney, he sued to vindicate that asserted right. The District Court, 383 F. Supp. 880 (ND Ala. 1974), and the Court of Appeals for the Fifth Circuit, 542 F. 2d 650 (1976), agreed with Davis. Because of the importance of the issue and a conflict among the Circuits, we granted certiorari, 429 U. S. 1037. We affirm.

I

The Military Selective Service Act provides the mechanism for manning the Armed Forces of the United States. Section 9 of the Act evidences Congress’ desire to minimize the disruption in individuals’ lives resulting from the national need for military personnel. It seeks to accomplish this goal by guaranteeing veterans that the jobs they had before they entered the military will be available to them upon their return to civilian life. Specifically, § 9 requires that any qualified person who leaves a permanent position with any employer to enter the military, satisfactorily completes his military service, and applies for re-employment within 90 days of his discharge from the military,

“be restored by such employer or his successor in interest to such position or to a position of like seniority, status, and pay . . . unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.” 50 U. S. C. App. § 459 (b) (B) (i).

Moreover, any person so restored to a position

“shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.” 50 U. S. C. App. § 459 (c) (1).

In our first confrontation with the predecessor of § 9, we held that the statutory protection against discharge within a year of re-employment did not protect a veteran from being laid off while nonveterans with greater seniority retained their jobs. Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275 (1946). In reaching this conclusion, we announced two principles that have governed all subsequent interpretations of the re-employment rights of veterans. First, we stated that under the Act:

“[The veteran] does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Id., at 284-285.

Congress incorporated this doctrine in succeeding re-enactments of the re-employment provision. See 50 IT. S. C. App. § 459 (c) (2) . The second guiding principle we identified was:

“This legislation is to be liberally construed for the benefit of those who left private fife to serve their country in its hour of great need. . . . And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act.” 328 TJ. S., at 285.

Our next cases were also concerned with the extent of the protection afforded rights that were clearly within the Act’s scope. Trailmobile Co. v. Whirls, 331 U. S. 40 (1947); Aeronautical Lodge v. Campbell, 337 U. S. 521 (1949); Oakley v. Louisville & N. R. Co., 338 U. S. 278 (1949). More recently, however, our efforts have been directed at determining whether a particular right claimed by a veteran is an aspect of the “seniority” which the Act protects. We have been unable to rely on either the language or the legislative history of the Act when making these determinations, for neither contains a definition of “seniority.”

We first faced this problem in McKinney v. Missouri-K.-T. R. Co., 357 U. S. 265 (1958). McKinney had been re-employed at a higher level than he had attained when he left for military service, with seniority in his new position dating from his return to work. When his job was abolished, he claimed that his seniority at the higher level should have dated from the time he would have been eligible to reach that level had he not served in the military. This Court rejected his claim because of the contingent nature of his expectation of being promoted from the job he previously held. That promotion, the Court found, depended “not simply on seniority or some othér form of automatic progression, but on the exercise of discretion on the part of the employer.” Id., at 272. Since the promotion would not have come automatically had McKinney continued to ride the seniority escalator, the Court concluded that neither the promotion nor a seniority date calculated as of the time he might have been promoted were incidents of the “seniority” protected by the Act.

Six years later, the Court again considered whether a veteran was entitled to a seniority date calculated as if he had obtained a higher level position while in the military. Tilton v. Missouri Pac. R. Co., 376 U. S. 169 (1964). Tilton had been promoted before he left the railroad to enter the military, but he had not worked enough days to complete the probationary period necessary to obtain permanent status and begin accumulating seniority in the higher level job. When he returned to the railroad, he successfully completed the remainder of the probationary period. The company set his seniority date as of the time he actually finished the probationary period; he claimed that the date should have been fixed as of the time he would have satisfied the probationary work requirement had it not been for his military service.

This Court agreed. Unlike the situation in McKinney, we found that the only management discretion involved was the decision to allow Tilton to assume probationary status in the higher level position, and that discretion had been exercised before he entered the military. Tilton’s satisfactory completion of the probationary period after he was reinstated by the railroad was sufficient indication that he would have completed that period earlier if his tenure had not been interrupted by his service to his country. The mere possibility that his ride on the escalator might have been interrupted by some other circumstance could not be allowed to deny him the status he almost certainly would have obtained:

“In every veteran seniority case the possibility exists that work of the particular type might not have been available; that the veteran would not have worked satisfactorily during the period of his absence; that he might not have elected to accept the higher position; or that sickness might have prevented him from continuing his employment. In light of the purpose and history of this statute, however, we cannot assume that Congress intended possibilities of this sort to defeat the veteran’s seniority rights.” 376 IT. S., at 180-181.

In McKinney and Tilton, the Court decided whether the veterans’ promotions were incidents of the “seniority” protected by the Act, but in both cases, the benefit claimed by the veterans — earlier seniority dates — was clearly “seniority.” Our most recent cases have involved claims to benefits that could not be so easily classified. These cases have required us to consider not only the relative certainty of the benefit’s accrual but also the nature of the benefit itself.

We first encountered this added complexity in Accardi v. Pennsylvania R. Co., 383 U. S. 225 (1966), a case involving a claim to severance pay. The petitioners in Accardi were tugboat firemen who had left their jobs for military service and had later been restored with appropriate seniority credit. When technological change led to the elimination of the position of tugboat fireman, the railroad agreed to provide severance pay, with the amount of the payment dependent on the employee’s length of “compensated service.” Since Accardi and his colleagues had not received compensation from the company during their military service, the railroad did not give them credit for that time when calculating their severance payments.

This Court ruled in favor of the firemen. It was clear that had the petitioners remained on their jobs, they would have received severance pay credit for the years they spent in the military. Therefore, the reasonable-certainty criterion established in McKinney and Tilton was satisfied. The company argued, however, that the payment was not based on, and so was not an incident of, seniority, but rather was based on total actual service to the railroad. While questioning the company’s argument because of the “bizarre results possible under the definition of ‘compensated service,’ ” 383 U. S., at 230, we rejected it because the “real nature” of the payments was compensation for the lost rights and expectations that accrued as the employees’ longevity on the job increased. Ibid. That nature could not be disguised by use of a “compensated service” formula to calculate the amount of the payments. Accordingly, we concluded that

“the amount of these allowances is just as much a perquisite of seniority as the more traditional benefits such as work preference and order of lay-off and recall.” Ibid.

Failing to credit the veterans with their military service time when calculating their payments therefore violated the Act’s requirement that they be reinstated without loss of seniority.

Most recently, in Foster v. Dravo Corp., 420 U. S. 92 (1975), we dealt with another claim for payment because of time spent in military service. Foster had worked for his private employer for seven weeks in 1967, spent 18 months in the military, and returned to work for the last 13 weeks of 1968. He claimed that he was entitled to vacation pay for both years, although the collective-bargaining agreement granted full vacation benefits only for 25 weeks of work in a calendar year.

Again focusing on the nature of the benefit at issue, we rejected Foster’s claim. Vacation benefits, we held, are “intended as a form of short-term compensation for work performed,” id,., at 100, not as a reward for longevity with an employer. In reaching this conclusion, we noted the work requirement imposed by the collective-bargaining contract, the proportionate increase in vacation benefits that resulted from overtime work, and the availability of pro rata benefits if an employee was laid off before he had worked the required number of weeks. These facts, however, were sufficient only to “lend substantial support,” ibid., to the employer’s argument that the vacation benefits were a form of pay for work done. The nature of the benefits — “the common conception of a vacation as a reward for and respite from a lengthy period of labor,” id., at 101 — was decisive.

Thus, our cases have identified two axes of analysis for determining whether a benefit is a right of seniority secured to a veteran by § 9. If the benefit would have accrued, with reasonable certainty, had the veteran been continuously employed by the private employer, and if it is in the nature of a reward for length of service, it is a “perquisite of seniority.” If, on the other hand, the veteran’s right to the benefit at the time he entered the military was subject to a significant contingency, or if the benefit is in the nature of short-term compensation for services rendered, it is not an aspect of seniority within the coverage of § 9. We evaluate respondent Davis’ right to pension credit for his years in the military in light of these principles.

II

Alabama Power established its pension, plan on July 1, 1944, during the time Davis was in the military. The plan, which is funded entirely by the company, covers all “full-time regular employee [s]” who have completed one year of continuous service with the company and are at least 25 years old. App. 58-59. Under the labor agreements and practices of the company, a full-time regular employee is one who, with limited exceptions, works a 40-hour week. A covered employee has no vested right to any benefit from the plan until he has completed 20 years of service, which for this purpose includes time spent in the military, or has completed 15 years of service and attained the age of 50. Id., at 90-91. Normal retirement age under the plan is 65, but an employee with 20 years of “accredited service” can elect to retire any time after he has reached the age of 55. App. to Pet. for Cert. 43a-44a. Davis chose the early retirement option.

The concept of “accredited service” is a major determinant of the amount of benefits paid and is the source of the present controversy. The plan defines “accredited service” as the period of “future service” together with the period of “past service.” Id., at 34a-35a. These terms, in turn, are defined as an employee’s period of service after the initiation of the pension plan and his inclusion within it (future service) and his period of service prior to that date (past service). Id., at 35a. Future service is credited to an employee “for service rendered to the Company” as a full-time, regular employee and for periods of authorized leave of absence with pay. Employees on leave of absence without regular pay, and persons serving in the military, are not credited with future service during their absence from the company. Id., at 40a. Retirement benefits are calculated by the use of formulas in which years of accredited service are multiplied by an earnings factor. Had Davis received accredited service for the time he spent in the military, his monthly pension payment would have been $216.06 rather than the $198.95 to which the company said he was entitled.

It is clear that the reasonable-certainty requirement of McKinney and Tilton is satisfied in .this case. Respondent’s work history both before and after his military tour of duty demonstrates that if he had not entered the military, he would almost certainly have accumulated accredited service for the period between March 18, 1943, and October 8, 1945. Unpredictable occurrences might have intervened, but “we cannot assume that Congress intended possibilities of this sort to defeat the veteran’s seniority rights.” Tilton v. Missouri Pac. R. Co., 376 U. S., at 181.

Alabama Power contends, however, that pension payments should be viewed as compensation for service rendered, like the vacation payments in Foster, rather than as a perquisite of seniority like the severance payments in Accardi. The company argues that the definition of accredited service in terms of full-time service to the company is a bona fide, substantial work requirement which, under Foster, “is strong evidence that the benefit in question was intended as a form of compensation.” 420 U. S., at 99. Since § 9 does not grant veterans the right to compensation for work they have not performed, Alabama Power concludes that Davis is not entitled to his claimed pension increase.

As we noted in our discussion of Foster, that case turned on the nature of vacation benefits, not on the particular formula by which those benefits were calculated. Even the most traditional kinds of seniority privileges could be as easily tied to a work requirement as to the more usual criterion of time as an employee. Yet, as we held in Fishgold, “no practice of employers . . . can cut down the service adjustment benefits which Congress has secured the veteran under the Act.” 328 U. S., at 285. We must look beyond the overly simplistic analysis suggested by Alabama Power to the nature of the payments.

It is obvious that pension payments have some resemblance to compensation for work performed. Funding a pension program is a current cost of employing potential pension recipients, as are wages. The size of pension benefits is a subject of collective bargaining, and future benefits may be traded off against current compensation. The same observations, however, can be made about any benefit and therefore are of little assistance in determining whether a particular benefit recompenses labor or rewards longevity with an employer.

Other aspects of pension plans like the one established by petitioner suggest that the “true nature” of the pension payment is a reward for length of service. The most significant factor pointing to this conclusion is the lengthy period required for pension rights to vest in the employee. It is difficult to maintain that a pension increment is deferred compensation for a year of actual service when it is only the passage of years in the same company’s employ, and not the service rendered, that entitles the employee to that increment. Moreover, because of the vesting requirement and the use of payment formulas that depend on earnings at the time of retirement, both the cost to the employer and the payment to the employee for each year of service depend directly on the length of time the employee continues to work for that employer. Periodic adjustments of the benefit formulas to account for unanticipated increases in living costs, see App. 74-84, emphasize the dissociation of payment levels from the work that Alabama Power claims the payments compensate.

The function of pension plans in the employment system also supports respondent’s claim. A pension plan assures employees that by devoting a large portion of their working years to a single employer, they will achieve some financial security in their years of retirement. By rewarding lengthy service, a plan may reduce employee turnover and training costs and help an employer secure the benefits of a stable work force. See D. McGill, Fundamentals of Private Pensions 21-23 (3d ed. 1975). In addition, by providing economic security in retirement, pension plans encourage longtime employees whose working efficiency may be on the decline to retire and make way for younger workers. Id., at 21-22; S. Slichter, J. Healey, & E. Livernash, The Impact of Collective Bargaining on Management 374 (1960). The relationship between pension payments and passage of time as an employee is central to both of these functions.

We conclude, therefore, that pension payments are predominantly rewards for continuous employment with the same employer. Protecting veterans from the loss of such rewards when the break in their employment resulted from their response to the country’s military needs is the purpose of § 9. That purpose is fulfilled in this case by requiring Alabama Power to pay Davis the pension to which he would have been entitled by virtue of his lengthy service if he had not been called to the colors. Accordingly, the judgment below is affirmed.

It is so ordered.

       Employees do not become eligible to participate in the plan until they have worked for one year. See infra, at 590.

       Section 459 (b) has been recodified, without substantial change, as 38 U. S. C. § 2021 (1970 ed., Supp. V).

       See 50 U. S. C. App. § 459 (d), now codified at 38 U. S. C. § 2022 (1970 ed., Supp. V).

       Compare Jackson v. Beech Aircraft Corp., 517 F. 2d 1322 (CA10 1975) and Litwicki v. Pittsburgh Plate Glass Industries, Inc., 505 F. 2d 189 (CA3 1974) (denying pension credit), with Smith v. Industrial Employers & Distributors Assn., 546 F. 2d 314 (CA9 1976) (granting past service credit and denying future service credit).

       The grant of certiorari was limited to the first question presented, excluding the issue of the applicability of the Alabama statute of limitations.

       The Selective Training and Service Act of 1940, e. 720, § 8 (b), 54 Stat. 890.

       “It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.”
      This provision is now codified at 38 U. S. C. § 2021 (b) (2) (1970 ed., Supp. V).

       “[Section] 9 (c) does not guarantee the returning serviceman a perfect reproduction of the civilian employment that might have been his if he had not been called to the colors. Much there is that might have flowed from experience, effort, or chance to which he cannot lay claim under the statute. Section 9 (c) does not assure him that the past with all its possibilities of betterment will be recalled. Its very important but limited purpose is to assure that those changes and advancements in status that would necessarily have occurred simply by virtue of continued employment will not be denied the veteran because of his absence in the military service.” 357 U. S., at 271-272.

       It was possible for an employee to receive credit for a full year of “compensated service” by working only seven well-timed days during the year. The company defined a month of “compensated service” as any month during which the employee worked one or more days, and a year of “compensated service” was defined as 12 such months, or a major portion thereof.

       The Court also held that whatever the full scope of the statutory language governing “other benefits” contained in §459 (c), see supra, at 583-584, that language was intended to add to the protections afforded the veteran’s seniority rights, not to lessen those protections. 383 U..S., at 231-232. The Court’s conclusion that the severance payments were perquisites of seniority therefore made unnecessary consideration of the “other benefits” provision.

       Under the collective-bargaining agreement in Foster, the length of an employee’s vacation increased with his length of continuous employment with the firm. The company conceded that the employee’s time in military service had to be counted in determining the length of his vacation. 420 U. S., at 101 n. 9.

       The established exceptions include annual vacations, paid holidays, 10 days of annual sick leave, which may be accumulated up to a maximum of 30 days, and up to three days’ leave in ease of a death in the employee’s immediate family. In addition, longtime employees may be allowed up to nine months of extended sick leave.

       The Employee Retirement Income Security Act of 1974, § 203, 88 Stat. 854, 29 U. S. C. § 1053 (1970 ed., Supp. V), establishes vesting requirements more favorable to employees than those described in the text. This law, which generally requires vesting within 10 to 15 years, did not affect respondent and, insofar as is relevant to the question presented in this case, does not alter the nature of pension plans.

       A limited exception to this rule, see App. 61-62, was not applicable to Davis.

       Davis’ pension payment is calculated under § V4 (b) (ii) of the plan. That section provides:
      “The minimum Retirement Income payable after January 1, 1966 to an employee included in the Plan retiring from the service of the Company after January 1, 1966 at his Early Retirement Date (before adjustment for Provisional Payee designation, if any) shall be an amount equal to 1% of his monthly earnings on his Early Retirement Date multiplied by his years of Accredited Service, reduced by [specified amounts].” App. 70.
      “Normal retirement income” under the plan is calculated by reference to specified percentages of an employee’s earnings, exclusive of overtime, during his years with the company. Id., at 65-68, 73. The amount to which an employee would be entitled under the “normal retirement income” formula has, however, been periodically adjusted upward by formulas which, like the formula applicable to Davis, call for multiplication of a percentage of recent earnings by the number of years of accredited service. See id., at 7A-84.

        Inland Steel Co. v. NLRB, 170 F. 2d 247 (CA7 1948), cert. denied on this issue, 336 U. S. 960 (1949), aff’d on other grounds, Steelworkers v. NLRB, 339 U. S. 382 (1950). The company contends that Inland Steel holds that pensions are “wages” and that they must therefore be classified as “other benefits,” see n. 10, supra, under the Military Selective Service Act. Inland Steel concluded, however, only that pensions are a mandatory subject of collective bargaining under the National Labor Relations Act (NLRA) because they are either wages “or other conditions of employment.” 170 F. 2d, at 249-255. Even if pensions are “wages” for the purposes of the NLRA, that classification would not control their treatment under the very different statute at issue in this case. Cf. United States v. Embassy Restaurant, 359 U. S. 29, 33 (1959) (payments to union welfare fund may be “wages” under NLRA but not under Bankruptcy Act).

       Cf. S. Slichter, J. Healy, & E. Livemash, The Impact of Collective Bargaining on Management 373 (1960) (pension plans encouraged during World War II by difficulty of obtaining general wage increases).

       Petitioner’s plan is a “defined benefit” plan, under which the benefits to be received by employees are fixed and the employer’s contribution is adjusted to whatever level is necessary to provide those benefits. The other basic type of pension is a “defined contribution” plan, under which the employer’s contribution is fixed and the employee receives whatever level of benefits the amount contributed on his behalf will provide. See 29 U. S. C. §§ 1002 (34), (35) (1970 ed., Supp. V); Note, Fiduciary Standards and the Prudent Man Rule Under the Employee Retirement Income Security Act of 1974, 88 Harv. L. Rev. 960, 961-963 (1975). We intimate no views on whether defined contribution plans are to be treated differently from defined benefit plans under the Military Selective Service Act.


author: Mr. Justice Rehnquist Me. Justice Brennan, Mr. Justice Stewart, Mr. Justice Stevens,

text:
    SPLAWN v. CALIFORNIA
    No. 76-143.
    Argued March 23, 1977
    Decided June 6, 1977

      Arthur Wells, Jr., argued the cause and filed a brief for petitioner.

      William D. Stein, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, and Alvin J. Knudson, Deputy Attorney General.

        Charles H. Keating, Jr., and James J. Clancy filed a brief for Citizens for Decency Through Law, Inc., as amicus curiae urging affirmance.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

Petitioner Splawn was convicted in 1971 of the sale of two reels of obscene film, a misdemeanor violation of California Penal Code §311.2 (West 1970). After the conviction was affirmed on appeal by the California First District Court of Appeal and the State Supreme Court denied review, this Court granted certiorari, vacated the judgment, and remanded for consideration in light of our decision in Miller v. California, 413 U. S. 15 (1973), which had set forth the standards by which the constitutionality of § 311.2 was to be determined. After the State Supreme Court ruled that the statute satisfied the requirements articulated in Miller, see Bloom v. Municipal Court, 16 Cal. 3d 71, 545 P. 2d 229 (1976), the Court of Appeal again affirmed the conviction and the California Supreme Court denied petitioner’s motion for a hearing.

We again granted certiorari, 429 U. S. 997 (1976), to consider petitioner’s assorted contentions that his conviction must be reversed because portions of the instructions given to the jury during his trial render his conviction violative of the First and Fourteenth Amendments. He claims that the instruction allowed the jury to convict him even though it might otherwise have found the material in question to have been protected under the Miller standards. He also contends that the same portions of the instructions render his conviction invalid by reason of the constitutional prohibition against ex post facto laws and the requirement of fair warning in the construction of a criminal statute enunciated in Bouie v. City of Columbia, 378 U. S. 347 (1964). We consider these contentions in light of the fact that petitioner has abandoned any claim that the material for the selling of which he was convicted could not be found to be obscene consistently with the First and Fourteenth Amendments, and any claim that the California statute under which he was convicted does not satisfy the requirements articulated in Miller, supra.

As it was understood by the California Court of Appeal, petitioner’s challenge is leveled against the following portion of the instructions:

“In determining the question of whether the allegedly obscene matter is utterly without redeeming social importance, you may consider the circumstances of sale and distribution, and particularly whether such circumstances indicate that the matter was being commercially exploited by the defendants for the sake of its prurient appeal. Such evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter is utterly without redeeming social importance. The weight, if any, such evidence is entitled [to] is a matter for you, the Jury, to determine.
“Circumstances of production and dissemination are relevant to determining whether social importance claimed for material was in the circumstances pretense or reality. If you conclude that the purveyor’s sole emphasis is in the sexually provocative aspect of the publication, that fact can justify the conclusion that the matter is utterly without redeeming social importance.” App. 38-39.

There is no doubt that as a matter of First Amendment obscenity law, evidence of pandering to prurient interests in the creation, promotion, or dissemination of material is relevant in determining whether the material is obscene. Hamling v. United States, 418 U. S. 87, 130 (1974); Ginzburg v. United States, 383 U. S. 463, 470 (1966). This is so partly because, as the Court has pointed out before, the fact that the accused made such an appeal has a bearing on the ultimate constitutional tests for obscenity:

“The deliberate representation of petitioners’ publications as erotically arousing, -for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality — whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes.” Ibid.

Petitioner’s interpretation of the challenged portions of the instructions in his case is that they permitted the jury to consider motives of commercial exploitation on the part of persons in the chain of distribution of the material other than himself. We upheld a similar instruction in Hamling, supra, however, wherein the jury was told that it could consider “whether the materials had been pandered, by looking to their '[m]anner of distribution, circumstances of production, sale, . . . advertising . . . [, and] editorial intent . . . .’ This instruction was given with respect to both the Illustrated Report and the brochure which advertised it, both of which were at issue in the trial.” 418 U. S., at 130.

Both Hamling and Ginzburg were prosecutions under federal obscenity statutes in federal courts, where our authority to review jury instructions is a good deal broader than is our power to upset state-court convictions by reason of instructions given during the course of a trial. See Cupp v. Naughten, 414 U. S. 141 (1973); Henderson v. Kibbe, ante, p. 145. We can exercise the latter authority only if the instruction renders the subsequent conviction violative of the United States Constitution. Questions of what categories of evidence may be admissible and probative are otherwise for the courts of the States to decide. We think Hamling, supra, and Ginzburg, supra, rather clearly show that the instruction in question abridges no rights of petitioner under the First Amendment as made applicable to the States by the Fourteenth Amendment.

But petitioner contends that even though this be so, the particular portions of the instructions of which he complains were given pursuant to a statute enacted after the conduct for which he was prosecuted. In his view, therefore, his conviction both violates the constitutional prohibition against ex post facto laws, see Calder v. Bull, 3 Dall. 386, 390 (1798), and failed to give him constitutionally fair warning of the prohibited conduct with which he was charged. Bouie v. Columbia, supra. We find these contentions to be without merit, and we reject them.

The section of the California Penal Code defining the substantive misdemeanor with which petitioner was convicted, § 311.2, was in full force and effect at all times relevant to petitioner’s conduct. California Penal Code § 311 (a) (West 1970), which authorized the above-quoted instructions, was enacted after part of the conduct for which he was convicted but prior to his trial. That section, however, does not create any new substantive offense, but merely declares what type of evidence may be received and considered in deciding whether the matter in question was “utterly without redeeming social importance.”

Petitioner’s ex post facto argument is based on his reading of an earlier decision of the Supreme Court of California, People v. Noroff, 67 Cal. 2d 791, 433 P. 2d 479 (1967). His view is that under that case evidence such as was admitted here would not have been admissible at his trial on the substantive offense but for the enactment of §311 (a)(2). He claims that such a change in procedural rules governing his trial amounts to the enactment of an ex post facto law in violation of Art. I, § 9, cl. 3. The California Court of Appeal’s opinion in this case rejected that contention, and since it is a contention which must in the last analysis turn on a proper reading of the California decisions, such a determination by the California Court of Appeal is entitled to great weight in evaluating petitioner’s constitutional contentions.

The Court of Appeal, commenting on Noroff, said with respect to the California Supreme Court’s decision in that case:

“The court did not, however, disapprove of any use of evidence of pandering for its probative value on the issue of whether the material was obscene. It merely rejected the concept of pandering of nonobscene material as a separate crime under the existing laws of California.” App. to Pet. for Cert. ix.

We accept this conclusion of the California Court of Appeal, and therefore find it unnecessary to determine whether if § 311 (a) (2) had permitted the introduction of evidence which would have been previously excluded under California law, petitioner would have had a tenable claim under the Ex Post Facto Clause of the United States Constitution.

Bouie v. City of Columbia, supra, holds that the elements of a statutory offense may not be so changed by judicial interpretation as to deny to accused defendants fair warning of the crime prohibited. No such change in the interpretation of the elements of the substantive offense prohibited by California law took place here, and petitioner may therefore derive no benefit from Bouie.

We thus find no merit in petitioner’s claims based on First and Fourteenth Amendment protection of nonobscene matter, the constitutional prohibition against ex post facto laws, or Bouie v. City of Columbia. We have considered petitioner’s other claims, which appear to be variations on the same theme, and likewise reject them. The judgment of the California Court of Appeal is

Affirmed.

Me. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall join, dissenting.

The California courts, in response to our remand for reconsideration in light of Miller v. California, 413 U. S. 15 (1973), reaffirmed petitioner’s 1971 conviction of selling obscene films in violation of California Penal Code § 311.2 (West 1970). I would reverse the conviction. I adhere to my view expressed in Miller that this statute is “unconstitutionally overbroad, and therefore invalid on its face.” 413 U. S., at 47 (Brennan, J., dissenting). See also Pendleton v. California, 423 U. S. 1068 (1976) (Brennan, J., dissenting from dismissal of appeal); Sandquist v. California, 423 U. S. 900, 901 (1975) (Brennan, J., dissenting from denial of certiorari); Tobalina v. California, 419 U. S. 926 (1974) (Brennan, J., dissenting from denial of certiorari); Kaplan v. California, 419 U. S. 915 (1974) (Brennan, J., dissenting from denial of certiorari); Blank v. California, 419 U. S. 913 (1974) (Brennan, J., dissenting from denial of certiorari).

Mr. Justice Stewart,

with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.

In my view the statute under which the petitioner was convicted is constitutionally invalid on its face. Accordingly, I have joined Mr. Justice Brennan’s dissent.

But even if, as the Court believes, the statute itself is not invalid, Mr. Justice Stevens has surely demonstrated that this petitioner was unconstitutionally convicted under it. On that basis, I also join the dissenting opinion of Mr. Justice Stevens.

Mr. Justice Stevens,

with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join, dissenting.

Under the trial court’s instructions, the jury may have determined that the films sold by the petitioner had some social significance and therefore were not in themselves obscene, but nevertheless found him guilty because they were advertised and sold as “sexually provocative.” A conviction pursuant to such an instruction should not be allowed to stand.

Truthful statements which are neither misleading nor offensive are protected by the First Amendment even though made for a commercial purpose. Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U. S. 748. Nothing said on petitioner’s behalf in connection with the marketing of these films was false, misleading, or even arguably offensive either to the person who bought them or to an average member of the community. The statements did make it clear that the films were “sexually provocative,” but that is hardly a confession that they were obscene. And, if they were not otherwise obscene, I cannot understand how these films lost their protected status by being truthfully described.

Even if the social importance of the films themselves is dubious, there is a definite social interest in permitting them to be accurately described. Only an accurate description can enable a potential viewer to decide whether or not he wants to see them. Signs which identify the “adult” character of a motion picture theater or of a bookstore convey the message that sexually provocative entertainment is to be found within ; under the jury instructions which the Court today finds acceptable, these signs may deprive otherwise nonobscene matter of its constitutional protection. Such signs, however, also provide a warning to those who find erotic materials offensive that they should shop elsewhere for other kinds of books, magazines, or entertainment. Under any sensible regulatory scheme, truthful description of subject matter that is pleasing to some and offensive to others ought to be encouraged, not punished.

I would not send Mr. Splawn to jail for telling the truth about his shabby business.

       The relevant instruction is quoted by the Court, ante, at 597-598. I would emphasize this sentence: “If you conclude that the purveyor’s sole emphasis is in the sexually provocative aspect of the publication, that fact can justify the conclusion that the matter is utterly without redeeming social importance.”

        Ginzburg v. United States, 383 U. S. 463, does not foreclose this analysis because it was decided before the Court extended First Amendment coverage to commercial speech. Ginzburg cannot survive Virginia Pharmacy. Ginzburg is based on the premise that advertising the character of the material may “catch the salaciously disposed,” 383 U. S., at 472, and “stimulat[e] the reader to accept them as prurient,” id., at 470. But Mr. Justice Blackmun’s opinion for the Court in Virginia Pharmacy makes it clear:
      “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. ... 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. See also Linmark Associates, Inc. v. Willingboro, ante, p. 85. Indeed, the ease for First Amendment protection in advertising is stronger in this case than in Linmark or Virginia Pharmacy. For to ban advertising of a book or film is to suppress the book or film itself.
      Mr. Justice Brennan does not join this footnote. Because he agrees that the California Legislature’s retroactive adoption of Ginzburg violates the Ex Post Facto Clause, n. 4, infra, we need not in his view decide the question whether Ginzburg survives Virginia Pharmacy.

       It is ironic that in upholding obscenity laws this Court has stressed the State’s “legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.” Miller v. California, 413 U. S. 15, 18-19 (footnote omitted).

       I must also record my dissent from the Court’s disposition of petitioner’s ex post facto argument.
      In People v. Noroff, 58 Cal. Rptr. 172 (1967), the California Court of Appeal reversed a trial judge who had determined the obscenity issue before trial solely on the basis of the materials themselves. Relying on Ginzburg, the Court of Appeal held that the prosecution should have been allowed to present evidence of pandering; “although the ultimate constitutional fact in issue remains a question of law to be decided by the court, it will be a rare case . . . when a trial court may properly undertake to determine this issue prior to trial by a mere examination of the material itself unaided by expert testimony or evidence relating to the conduct of defendant in connection with the material.” 58 Cal. Rptr., at 177.
      The California Supreme Court reversed, and rejected the argument “that the trial court should have permitted the prosecution to go to the jury with evidence bearing upon the defendant’s ‘pandering’ of the magazine in question.” 67 Cal. 2d 791, 793, 433 P. 2d 479, 480 (1967). The court also expressly rejected an argument that an earlier California case had adopted “a 'pandering’ concept similar to that elaborated in Ginzburg in the context of the federal obscenity statute.” Id., at 793 n. 4, 433 P. 2d, at 480 n. 4.
      After petitioner’s offense, the California Legislature retroactively adopted Ginzburg by statute. In my view, petitioner had the right to rely on the Noroff decision, and to believe that he was entitled to truthfully advertise otherwise nonobscene material. The Ex Post Facto Clause ''reflect[s] the strong belief of the Framers of the Constitution that men should not have to act at their peril, fearing always that the State might change its mind and alter the legal consequences of their past acts so as to take away their lives, their liberty or their property.” El Paso v. Simmons, 379 U. S. 497, 522 (Black, J., dissenting).