source: Caselaw Access Project

author: Justice Scalia Justice White,

license: Public Domain

text:
    CRUZ v. NEW YORK
    No. 85-5939.
    Argued December 1, 1986
    Decided April 21, 1987

      Scalia, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and Stevens, JJ., joined. White, J., filed a dissenting opinion, in which Rehnquist, C. J., and Powell and O’Connor, JJ., joined, post, p. 194.

      Robert S. Dean argued the cause for petitioner. With him on the briefs was Philip L. Weinstein.

      Peter D. Coddington argued the cause for respondent. With him on the brief was Mario Merola.

      Robert H. Klonoff argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Bryson.

   Justice Scalia

delivered the opinion of the Court.

In Bruton v. United States, 391 U. S. 123 (1968), we held that a defendant is deprived of his rights under the Confrontation Clause when his codefendant’s incriminating confession is introduced at their joint trial, even if the jury is instructed to consider that confession only against the co-defendant. In Parker v. Randolph, 442 U. S. 62 (1979), we considered, but were unable authoritatively to resolve, the question whether Bruton applies where the defendant’s own confession, corroborating that of his codefendant, is introduced against him. We resolve that question today.

HH

Jerry Cruz was murdered on March 15, 1982. That is not the murder for which petitioner was tried and convicted, but the investigation of the one led to the solving of the other. On the day following Jerry Cruz’s murder, and on several later occasions, the police talked to Jerry’s brother Norberto about the killing. On April 27, Norberto for the first time informed the police of a November 29, 1981, visit by petitioner Eulogio Cruz and his brother Benjamin to the apartment Norberto shared with Jerry. (Eulogio and Benjamin Cruz were longtime friends of Norberto and Jerry Cruz, but the two sets of brothers were not related.) Norberto said that at the time of the visit Eulogio was nervous and was wearing a bloodstained bandage around his arm. According to Norberto, Eulogio confided that he and Benjamin had gone to a Bronx gas station the night before, intending to rob it; that Eulogio and the attendant had struggled; and that, after the attendant had grabbed a gun from behind a counter and shot Eulogio in the arm, Benjamin had killed him. Norberto claimed that Benjamin gave a similar account of the incident.

On May 3, 1982, the police questioned Benjamin about the murder of Jerry Cruz. He strongly denied any connection with that homicide and became frustrated when the police seemed unwilling to believe him. Suddenly, to prove that he would tell the truth about killing someone if he were guilty, Benjamin spontaneously confessed to the murder of the gas station attendant. Later that evening, he gave a detailed videotaped confession to an Assistant District Attorney, in which he admitted that he, Eulogio, Jerry Cruz, and a fourth man had robbed the gas station, and that he had killed the attendant after the attendant shot Eulogio. Benjamin and Eulogio were indicted for felony murder of the station attendant.

The brothers were tried jointly, over Eulogio’s objection. Likewise over Eulogio’s objection, the trial judge allowed the prosecutor to introduce Benjamin’s videotaped confession, warning the jury that the confession was not to be used against Eulogio. The government also called Norberto, who testified about his November 29 conversation with'Eulogio and Benjamin. Finally, the government introduced police testimony, forensic evidence, and photographs of the scene of the murder, all of which corroborated Benjamin’s videotaped confession and the statements recounted by Norberto. At the trial’s end, however, Norberto’s testimony stood as the only evidence admissible against Eulogio that directly linked him to the crime. Eulogio’s attorney tried to persuade the jury that Norberto had suspected Eulogio and Benjamin of killing his brother Jerry and had fabricated his testimony to gain revenge. Unconvinced, the jury convicted both defendants.

The New York Court of Appeals affirmed Eulogio’s conviction, 66 N. Y. 2d 61, 485 N. E. 2d 221 (1985), adopting the reasoning of the plurality opinion in Parker that Bruton did not require the codefendant’s confession to be excluded because Eulogio had himself confessed and his confession “interlocked” with Benjamin’s. We granted certiorari. 476 U. S. 1168 (1986).

II

The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” We have held that that guarantee, extended against the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. See Pointer v. Texas, 380 U. S. 400, 404 (1965). Where two or more defendants are tried jointly, therefore, the pretrial confession of one of them that implicates the others is not admissible against the others unless the confessing defendant waives his Fifth Amendment rights so as to permit cross-examination.

Ordinarily, a witness is considered to be a witness “against” a defendant for purposes of the Confrontation Clause only if his testimony is part of the body of evidence that the jury may consider in assessing his guilt. Therefore, a witness whose testimony is introduced in a joint trial with the limiting instruction that it be used only to assess the guilt of one of the defendants will not be considered to be a witness “against” the other defendants. In Bruton, however, we held that this principle will not be applied to validate, under the Confrontation Clause, introduction of a nontestifying codefendant’s confession implicating the defendant, with instructions that the jury should disregard the confession insofar as its consideration of the defendant’s guilt is concerned. We said:

“[TJhere are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incrimi-nations devastating to the defendant but their credibility is inevitably suspect . . . .” 391 U. S., at 135-136 (citations omitted).

We had occasion to revisit this issue in Parker, which resembled Bruton in all major respects save one: Each of the jointly tried defendants had himself confessed, his own confession was introduced against him, and his confession recited essentially the same facts as those of his nontestifying codefendants. The plurality of four Justices found no Sixth Amendment violation. It understood Bruton to hold that the Confrontation Clause is violated only when introduction of a codefendant’s confession is “devastating” to the defendant’s case. When the defendant has himself confessed, the plurality reasoned, “[his] case has already been devastated,” 442 U. S., at 75, n. 7, so that the codefendant’s confession “will seldom, if ever, be of the ‘devastating’ character referred to in Bruton,” and impeaching that confession on cross-examination “would likely yield small advantage,” id., at 73. Thus, the plurality would have held Bruton inapplicable to cases involving interlocking confessions. The four remaining Justices participating in the case disagreed, subscribing to the view expressed by Justice Blackmun that introduction of the defendant’s own interlocking confession might, in some cases, render the violation of the Confrontation Clause harmless, but could not cause introduction of the nontestifying codefendant’s confession not to constitute a violation. Id., at 77-80 (Blackmun, J., concurring in part and concurring in judgment). (Justice Blackmun alone went on to find that the interlocking confession did make the error harmless in the ease before the Court, thereby producing a majority for affirmance of the convictions. Id., at 80-81.) We face again today the issue on which the Court was evenly divided in Parker.

We adopt the approach espoused by Justice Blackmun. While “devastating” practical effect was one of the factors that Bruton considered in assessing whether the Confrontation Clause might sometimes require departure from the general rule that jury instructions suffice to exclude improper testimony, 391 U. S., at 136, it did not suggest that the existence of such an effect should be assessed on a case-by-case basis. Rather, that factor was one of the justifications for excepting from the general rule the entire category of co-defendant confessions that implicate the defendant in the crime. It is impossible to imagine why there should be excluded from that category, as generally not “devastating,” codefendant confessions that “interlock” with the defendant’s own confession. “[T]he infinite variability of inculpatory statements (whether made by defendants or codefendants), and of their likely effect on juries, makes [the assumption that an interlocking confession will preclude devastation] untenable.” Parker, 442 U. S., at 84 (Stevens, J., dissenting). In this case, for example, the precise content and even the existence of petitioner’s own confession were open to question, since they depended upon acceptance of Norberto’s testimony, whereas the incriminating confession of codefen-dant Benjamin was on videotape.

In fact, it seems to us that “interlocking” bears a positively inverse relationship to devastation. A codefendant’s confession will be relatively harmless if the incriminating story it tells is different from that which the defendant himself is alleged to have told, but enormously damaging if it confirms, in all essential respects, the defendant’s alleged confession. It might be otherwise if the defendant were standing by his confession, in which case it could be said that the codefen-dant’s confession does no more than support the defendant’s very own case. But in the real world of criminal litigation, the defendant is seeking to avoid his confession — on the ground that it was not accurately reported, or that it was not really true when made. In the present case, for example, petitioner sought to establish that Norberto had a motive for falsely reporting a confession that never in fact occurred. In such circumstances a codefendant’s confession that corroborates the defendant’s confession significantly harms the defendant’s case, whereas one that is positively incompatible gives credence to the defendant’s assertion that his own alleged confession was nonexistent or false. Quite obviously, what the “interlocking” nature of the codefendant’s confession pertains to is not its harmfulness but rather its reliability: If it confirms essentially the same facts as the defendant’s own confession it is more likely to be true. Its reliability, however, may be relevant to whether the confession should (despite the lack of opportunity for cross-examination) be admitted as evidence against the defendant, see Lee v. Illinois, 476 U. S. 530 (1986), but cannot conceivably be relevant to whether, assuming it cannot be admitted, the jury is likely to obey the instruction to disregard it, or the jury’s failure to obey is likely to be inconsequential. The law cannot command respect if such an inexplicable exception to a supposed constitutional imperative is adopted. Having decided Bru-ton, we must face the honest consequences of what it holds.

The dissent makes no effort to respond to these points, urging instead a rejection of our “remorseless logic” in favor of “common sense and judgment.” See post, at 197. But those qualities, even in their most remorseless form, are not separable. It seems to us illogical, and therefore contrary to common sense and good judgment, to believe that codefen-dant confessions are less likely to be taken into account by the jury the more they are corroborated by the defendant’s own admissions; or that they are less likely to be harmful when they confirm the validity of the defendant’s alleged confession. Far from carrying Bruton “to the outer limits of its logic,” ibid., our holding here does no more than reaffirm its central proposition. This case is indistinguishable from Bruton with respect to those factors the Court has deemed relevant in this area: the likelihood that the instruction will be disregarded, Bruton, 391 U. S., at 135; the probability that such disregard will have a devastating effect, id., at 136; and the determinability of these facts in advance of trial, Richardson v. Marsh, post, at 208.

We hold that, where a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant, see Lee v. Illinois, supra, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him. Of course, the defendant’s confession may be considered at trial in assessing whether his codefendant’s statements are supported by sufficient “indicia of reliability” to be directly admissible against him (assuming the “unavailability” of the codefendant) despite the lack of opportunity for cross-examination, see Lee, supra, at 543-544; Bruton, supra, at 128, n. 3, and may be considered on appeal in assessing whether any Confrontation Clause violation was harmless, see Harrington v. California, 395 U. S. 250 (1969).

Because the Court of Appeals analyzed petitioner’s Confrontation Clause claim under an approach we have now rejected, we reverse and remand for further proceedings not inconsistent with this opinion.

So ordered.

Justice White,

with whom The Chief Justice, Justice Powell, and Justice O’Connor join, dissenting.

Bruton v. United States, 391 U. S. 123 (1968), involved a joint trial and the admission of a codefendant’s confession with instructions to the jury not to consider it against the defendant. Concededly, if the jury had followed its instructions there would have been no error, constitutional or otherwise. But the Court held that in “some contexts” — and the Bruton case fell in that category — the chance was “so great” that the jury would not follow its instructions to consider the codefendant’s confession only against him, and the failure to follow such instructions would be so “devastating” to the defendant’s case, that it would be constitutional error to admit the confession even against the codefendant. Id., at 135-136. The introduction of the codefendant’s confession “posed a substantial threat to petitioner’s right to confront the witnesses against him,” a threat the Court said it could not ignore. Id., at 137.

In Bruton, the defendant himself had not confessed. Here, it is otherwise: defendant Cruz had confessed and his confession was properly before the jury. Yet the Court’s holding is that the codefendant’s confession was inadmissible even if it completely “interlocked” with that of Cruz himself, that is, was substantially the same as and consistent with Cruz’s confession with respect to all elements of the crime and did not threaten to incriminate Cruz any more than his own confession.

This makes little sense to me. “[T]he defendant’s own confession is probably the most probative and damaging evidence. that can be admitted against him. Though itself an out-of-court statement, it is admitted as reliable evidence because it is an admission of guilt by the defendant and constitutes direct evidence of the facts to which it relates. Even the testimony of an eyewitness may be less reliable than the defendant’s own confession. An observer may not correctly perceive, understand, or remember the acts of another, but the admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct.” Id., at 139-140 (White, J., dissenting). Confessions of defendants have profound impact on juries, so much that we held in Jackson v. Denno, 378 U. S. 368 (1964), that there is justifiable doubt that juries will disregard them even if told to do so. But a codefen-dant’s out-of-court statements implicating the defendant are not only hearsay but also have traditionally been viewed with special suspicion. Bruton, supra, at 136; Holmgren v. United States, 217 U. S. 509, 523-524 (1910); Crawford v. United States, 212 U. S. 183, 204 (1909). And the jury may be so informed. Bruton held that where the defendant has not himself confessed, there is too great a chance that the jury would rely on the codefendant’s confession. But here, Cruz had admitted the crime and this fact was before the jury. I disagree with the Court’s proposition that in every interlocking confession case, the jury, with the defendant’s confession properly before it, would be tempted to disobey its instructions and fail to understand that presumptively unreliable evidence must not be used against the defendant. Nor is it remotely possible that in every case the admission of an interlocking confession by a codefendant will have the devastating effect referred to in Bruton,

The Court finds it “impossible to imagine” why the defendant’s interlocking confession could ever make the Bruton rule inapplicable; any such conclusion would be “illogical.” Ante, at 191,193. But many Court of Appeals Judges — as many as embrace the Court’s harmless-error rule — are not so unimaginative; they see nothing illogical, in interlocking confession cases, in adhering to the traditional presumption that juries follow their instructions. Of course, the decision here is not a matter of imagination or logic, but one of common sense and judgment in interpreting the Constitution. Bruton disallowed the codefendant’s confession into evidence, even with an instruction to disregard it as evidence against Bruton, because it posed a “substantial threat” to his Confrontation Clause rights. It does not defy logic to find that in other circumstances, such as where the defendant’s own confession interlocks with his codefendant’s, the threat is not of such magnitude. Even where remorseless logic may seem to justify the extension of what otherwise might be a sound constitutional rule, common sense should prevail. Otherwise, especially in applying prophylactic rules, we may trivialize the principles of prior cases by applying them to situations that in general do not really pose the dangers that the rules were intended to obviate.

The Court states that “[W]e must face the honest consequences” of the Bruton decision. Ante, at 193. But Richardson v. Marsh, post, p. 200, decided today, recognizes that Bruton cannot be followed to the outer limits of its logic without serious disruption of the State’s ability to conduct joint trials. In Richardson, the Court of Appeals held inadmissible a codefendant’s confession even though it had been redacted to eliminate any references to the defendant, the fear being that the jury, if it disobeyed its instructions, could have drawn unfavorable inferences from the challenged confession when considered together with other evidence. Marsh v. Richardson, 781 F. 2d 1201 (CA6 1986). We reversed the Court of Appeals despite this possibility, thus rejecting the Bruton claim, post, at 211, as we should do in this case.

That the error the Court finds may be harmless and the conviction saved will not comfort prosecutors and judges. I doubt that the former will seek joint trials in interlocking confession cases, and if that occurs, the judge is not likely to commit error by admitting the codefendant’s confession. Of course, defendants may be tried separately and Bruton problems avoided. But joint trials “conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial,” Bruton, 391 U. S., at 134, to say nothing of the possibility of inconsistent verdicts and the effect of severance on already overburdened state and federal court systems. See also Richardson v. Marsh, post, at 209-210.

I thus adhere to the views expressed by the plurality in Parker v. Randolph, 442 U. S. 62 (1979). There was no constitutional error here that Bruton sought to avoid, and no occasion to inquire into harmless error. In announcing its prophylactic rule, Bruton did not address the situation where the defendant himself had confessed, and I would not extend its holding to cases where the jury has heard the defendant’s own confession.

Lee v. Illinois, 476 U. S. 530 (1986), and Ohio v. Roberts, 448 U. S. 56 (1980), suggest that a codefendant’s interlocking confession will often be admissible against the defendant, in which event there would not be the Confrontation Clause issue Bruton identified. Here, the codefendant’s confession carries numerous indicia of reliability; and I gather that the Court’s disposition does not deny the state courts, on remand, the opportunity to deal with the admissibility of that confession against Cruz.

       The crime with which Bruton and his eodefendant Evans were charged was the robbery of postal funds from a jewelry store that operated a contract branch for the United States Post Office Department. Evans v. United, States, 375 F. 2d 355, 357 (CA8 1967). Evans was readily identified by the store’s owner and another employee, who knew him as a frequent visitor to the store, but the owner could not identify Bruton as Evan’s accomplice. Ibid. The employee did identify Bruton at trial, but admitted that she had failed to identify him at a first lineup of three persons, and had identified him only at a second lineup, at a time when she suspected that he had been part of the previous lineup. App. in Bruton v. United States, O. T. 1967, No. 705, pp. 70-73.

       The Court is of the view that “ ‘interlocking’ bears a positively inverse relationship to devastation.” Ante, at 192. In so reasoning, the Court gives no weight whatsoever to the devastating effect that the defendant’s own confession is likely to have upon his case. The majority’s excuse for ignoring this consideration apparently is that the damaging effect of the defendant’s confession may vary somewhat from case to ease. Ibid. But the Bruton rule is prophylactic in nature, and, in view of the fact that it imposes significant burdens on the prosecution, see Richardson v. Marsh, ;post, at 209-210, the rule should be confined to those cases where the jury’s ignoring of limiting instructions is most likely to change the verdict, which is to say, those cases where there is the greatest risk that jury misconduct will lead to the conviction of an innocent defendant. It is self-evident that, as a class, cases where the defendant has not confessed fit that description far better than cases where the defendant has confessed.

       As I read the cases, the Second, Seventh, and Eleventh Circuits follow the course the Court rejects. United States ex rel. Catanzaro v. Man-

        cusi, 404 F. 2d 296, 300 (CA2 1968); United States v. Paternina-Vergara, 749 F. 2d 993, 998-999 (CA2 1984); United States v. Spinks, 470 F. 2d 64 (CA7 1972); United States v. Kroesser, 731 F. 2d 1509 (CA11 1984). The Fourth and Fifth Circuits lean in that direction, United States v. Smith, 792 F. 2d 441, 443 (CA4 1986); Mack v. Maggio, 538 F. 2d 1129 (CA5 1976); United States v. Miller, 666 F. 2d 991, 997-999 (CA5 1982); and the Tenth Circuit’s view is that any difference between the two views is only a legal nicety, Metropolis v. Turner, 437 F. 2d 207 (1971). The Third, Sixth, Eighth, and Ninth Circuits take the harmless-error route. United States v. DiGilio, 538 F. 2d 972 (CA3 1976); Hodges v. Rose, 570 F. 2d 643, 647 (CA6 1978); United States v. Parker, 622 F. 2d 298 (CA8 1980); United States v. Espericueta-Reyes, 631 F. 2d 616, 624, n. 11 (CA9 1980). The Court of Appeals Judges who have addressed the issue are approximately equally divided as to whether to apply Bruton in interlocking confession cases.

       As Justice Blackmun commented in dissent in Lee:

      “In Bruton v. United States, 391 U. S. 123 (1968), the inadmissibility of the codefendant’s out-of-court statements against the defendant was not contested .... The Bruton rule thus necessarily applies only to sitúa-tions in which the out-of-eourt statements are constitutionally inadmissible against the defendant.” 476 U. S., at 552, n. 5.


author: Justice Scalia Justice Stevens,

text:
    RICHARDSON, WARDEN v. MARSH
    No. 85-1433.
    Argued January 14, 1987
    Decided April 21, 1987

      Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Powell, and O’Connor, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 211.

      Timothy A. Baughman argued the cause for petitioner. With him on the briefs was John D. O’Hair.

      Lawrence S. Robbins argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Bryson.

      R. Steven Whalen, by appointment of the Court, 478 U. S. 1003, argued the cause and filed a brief for respondent.
   Justice Scalia

delivered the opinion of the Court.

In Bruton v. United States, 391 U. S. 123 (1968), we held that a defendant is deprived of his rights under the Confrontation Clause when his nontestifying codefendant’s confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. Today we consider whether Bruton requires the same result when the co-defendant’s confession is redacted to omit any reference to the defendant, but the defendant is nonetheless linked to the confession by evidence properly admitted against him at trial.

I

Respondent Clarissa Marsh, Benjamin Williams, and Kareem Martin were charged with assaulting Cynthia Knighton and murdering her 4-year-old son, Koran, and her aunt, Ollie Scott. Respondent and Williams were tried jointly, over her objection. (Martin was a fugitive at the time of trial.) At the trial, Knighton testified as follows: On the evening of October 29, 1978, she and her son were at Scott’s home when respondent and her boyfriend Martin visited. After a brief conversation in the living room, respondent announced that she had come to “pick up something” from Scott and rose from the couch. Martin then pulled out a gun, pointed it at Scott and the Knightons, and said that “someone had gotten killed and [Scott] knew something about it.” Respondent immediately walked to the front door and peered out the peephole. The doorbell rang, respondent opened the door, and Williams walked in, carrying a gun. As Williams passed respondent, he asked, “Where’s the money?” Martin forced Scott upstairs, and Williams went into the kitchen, leaving respondent alone with the Knightons. Knighton and her son attempted to flee, but respondent grabbed Knighton and held her until Williams returned. Williams ordered the Knightons to lie on the floor and then went upstairs to assist Martin. Respondent, again left alone with the Knightons, stood by the front door and occasionally peered out the peephole. A few minutes later, Martin, Williams, and Scott came down the stairs, and Martin handed a paper grocery bag to respondent. Martin and Williams then forced Scott and the Knightons into the basement, where Martin shot them. Only Cynthia Knighton survived.

In addition to Knighton’s testimony, the State introduced (over respondent’s objection) a confession given by Williams to the police shortly after his arrest. The confession was redacted to omit all reference to respondent — indeed, to omit all indication that anyone other than Martin and Williams participated in the crime. The confession largely corroborated Knighton’s account of the activities of persons other than respondent in the house. In addition, the confession described a conversation Williams had with Martin as they drove to the Scott home, during which, according to Williams, Martin said that he would have to kill the victims after the robbery. At the time the confession was admitted, the jury was admonished not to use it in any way against respondent. Williams did not testify.

After the State rested, respondent took the stand. She testified that on October 29, 1978, she had lost money that Martin intended to use to buy drugs. Martin was upset, and suggested to respondent that she borrow money from Scott, with whom she had worked in the past. Martin and respondent picked up Williams and drove to Scott’s house. During the drive, respondent, who was sitting in the backseat, “knew that [Martin and Williams] were talking” but could not hear the conversation because “the radio was on and the speaker was right in [her] ear.” Martin and respondent were admitted into the home, and respondent had a short conversation with Scott, during which she asked for a loan. Martin then pulled a gun, and respondent walked to the door to see where the car was. When she saw Williams, she opened the door for him. Respondent testified that during the robbery she did not feel free to leave and was too scared to flee. She said that she did not know why she prevented the Knightons from escaping. She admitted taking the bag from Martin, but said that after Martin and Williams took the victims into the basement, she left the house without the bag. Respondent insisted that she had possessed no prior knowledge that Martin and Williams were armed, had heard no conversation about anyone’s being harmed, and had not intended to rob or kill anyone.

During his closing argument, the prosecutor admonished the jury not to use Williams’ confession against respondent. Later in his argument, however, he linked respondent to the portion of Williams’ confession describing his conversation with Martin in the car. (Respondent’s attorney did not object to this.) After closing arguments, the judge again instructed the jury that Williams’ confession was not to be considered against respondent. The jury convicted respondent of two counts of felony murder in the perpetration of an armed robbery and one count of assault with intent to commit murder. The Michigan Court of Appeals affirmed in an unpublished opinion, People v. Marsh, No. 46128 (Dec. 17, 1980), and the Michigan Supreme Court denied leave to appeal, 412 Mich. 927 (1982).

Respondent then filed a petition for a writ of habeas corpus pursuant to 28 U. S. C. § 2254. She alleged that her conviction was not supported by sufficient evidence and that introduction of Williams’ confession at the joint trial had violated her rights under the Confrontation Clause. The District Court denied the petition. Civ. Action No. 88-CV-2665-DT (ED Mich., Oct. 11, 1984). The United States Court of Appeals for the Sixth Circuit reversed. 781 F. 2d 1201 (1986). The Court of Appeals held that in determining whether Bruton bars the admission of a nontestifying codefendant’s confession, a court must assess the confession’s “inculpatory value” by examining not only the face of the confession, but also all of the evidence introduced at trial. 781 F. 2d, at 1212. Here, Williams’ account of the conversation in the car was the only direct evidence that respondent knew before entering Scott’s house that the victims would be robbed and killed. Respondent’s own testimony placed her in that car. In light of the “paucity” of other evidence of malice and the prosecutor’s linkage of respondent and the statement in the car during closing argument, admission of Williams’ confession “was powerfully incriminating to [respondent] with respect to the critical element of intent.” Id., at 1213. Thus, the Court of Appeals concluded, the Confrontation Clause was violated. We granted certiorari, 476 U. S. 1168 (1986), because the Sixth Circuit’s decision conflicts with those of other Courts of Appeals which have declined to adopt the “evidentiary linkage” or “contextual implication” approach to Bruton questions, see, e. g., United States v. Belle, 593 F. 2d 487 (CA3 1979) (en banc).

II

The Confrontation Clause of the Sixth Amendment, extended against the States by the Fourteenth Amendment, guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” The right of confrontation includes the right to cross-examine witnesses. See Pointer v. Texas, 380 U. S. 400, 404, 406-407 (1965). Therefore, where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand.

Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness “against” a defendant if the jury is instructed to consider that testimony only against a codefendant. This accords with the almost invariable assumption of the law that jurors follow their instructions, Francis v. Franklin, 471 U. S. 307, 325, n. 9 (1985), which we have applied in many varying contexts. For example, in Harris v. New York, 401 U. S. 222 (1971), we held that statements elicited from a defendant in violation of Miranda v. Arizona, 384 U. S. 436 (1966), can be introduced to impeach that defendant’s credibility, even though they are inadmissible as evidence of his guilt, so long as the jury is instructed accordingly. Similarly, in Spencer v. Texas, 385 U. S. 554 (1967), we held that evidence of the defendant’s prior criminal convictions could be introduced for the purpose of sentence enhancement, so long as the jury was instructed it could not be used for purposes of determining guilt. Accord, Marshall v. Lonberger, 459 U. S. 422, 438-439, n. 6 (1983). See also Tennessee v. Street, 471 U. S. 409, 414-416 (1985) (instruction to consider accomplice’s incriminating confession only for purpose of assessing truthfulness of defendant’s claim that his own confession was coerced); Watkins v. Sowders, 449 U. S. 341, 347 (1981) (instruction not to consider erroneously admitted eyewitness identification evidence); Walder v. United States, 347 U. S. 62 (1954) (instruction to consider unlawfully seized physical evidence only in assessing defendant’s credibility). In Bruton, however, we recognized a narrow exception to this principle: We held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. We said:

“[Tjhere are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. . . .” 391 U. S., at 135-136 (citations omitted).

There is an important distinction between this case and Bruton, which causes it to fall outside the narrow exception we have created. In Bruton, the codefendant’s confession “expressly implicat[ed]” the defendant as his accomplice. Id., at 124, n. 1. Thus, at the time that confession was introduced there was not the slightest doubt that it would prove “powerfully incriminating.” Id., at 135. By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant’s own testimony).

Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that “the defendant helped me commit the crime” is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. Moreover, with regard to such an-explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant’s guilt; whereas with regard to inferential incrimination the judge’s instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget. In short, while it may not always be simple for the members of a jury to obey the instruction that they disregard an incriminating inference, there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton’s exception to the general rule.

Even more significantly, evidence requiring linkage differs from evidence incriminating on its face in the practical effects which application of the Bruton exception would produce. If limited to facially incriminating confessions, Bruton can be complied with by redaction — a possibility suggested in that opinion itself. Id., at 134, n. 10. If extended to confessions incriminating by connection, not only is that not possible, but it is not even possible to predict the admissibility of a confession in advance of trial. The “contextual implication” doctrine articulated by the Court of Appeals would presumably require the trial judge to assess at the end of each trial whether, in light of all of the evidence, a nontestifying codefendant’s confession has been so “powerfully incriminating” that a new, separate trial is required for the defendant. This obviously lends itself to manipulation by the defense— and even without manipulation will result in numerous mistrials and appeals. It might be suggested that those consequences could be reduced by conducting a pretrial hearing at which prosecution and defense would reveal the evidence they plan to introduce, enabling the court to assess compliance with Bruton ex ante rather than ex post. If this approach is even feasible under the Federal Rules (which is doubtful — see, e. g., Fed. Rule Crim. Proc. 14), it would be time consuming and obviously far from foolproof.

One might say, of course, that a certain way of assuring compliance would be to try defendants separately whenever an incriminating statement of one of them is sought to be used. That is not as facile or as just a remedy as might seem. Joint trials play a vital role in the criminal justice system, accounting for almost one-third of federal criminal trials in the past five years. Memorandum from David L. Cook, Administrative Office of the United States Courts, to Supreme Court Library (Feb. 20, 1987) (available in Clerk of Court’s case file). Many joint trials — for example, those involving large conspiracies to import and distribute illegal drugs — involve a dozen or more codefendants. Confessions by one or more of the defendants are commonplace — and indeed the probability of confession increases with the number of participants, since each has reduced assurance that he will be protected by his own silence. It would impair both the efficiency and the fairness of the criminal justice system to require, in all these cases of joint crimes where incriminating statements exist, that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution’s case beforehand. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability— advantages which sometimes operate to the defendant’s benefit. Even apart from these tactical considerations, joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts. The other way of assuring compliance with an expansive Bruton rule would be to forgo use of codefendant confessions. That price also is too high, since confessions “are more than merely ‘desirable’; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” Moran v. Burbine, 475 U. S. 412, 426 (1986) (citation omitted).

The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process. On the precise facts of Bruton, involving a facially incriminating confession, we found that accommodation inadequate. As our discussion above shows, the calculus changes when confessions that do not name the defendant are at issue. While we continue to apply Bruton where we have found that its rationale validly applies, see Cruz v. New York, ante, p. 186, we decline to extend it further. We hold that the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.

In the present case, however, the prosecutor sought to undo the effect of the limiting instruction by urging the jury to use Williams’ confession in evaluating respondent’s case. See supra, at 205, and n. 2. On remand, the court should consider whether, in light of respondent’s failure to object to the prosecutor’s comments, the error can serve as the basis for granting a writ of habeas corpus. See Wainwright v. Sykes, 433 U. S. 72 (1977).

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

So ordered.

Justice Stevens,

with whom Justice Brennan and Justice Marshall join, dissenting.

The rationale of our decision in Bruton v. United States, 391 U. S. 123, 135-136 (1968), applies without exception to all inadmissible confessions that are “powerfully incriminating.” Today, however, the Court draws a distinction of constitutional magnitude between those confessions that directly identify the defendant and those that rely for their inculpa-tory effect on the factual and legal relationships of their contents to other evidence before the jury. Even if the jury’s indirect inference of the defendant’s guilt based on an inadmissible confession is much more devastating to the defendant’s case than its inference from a direct reference in the co-defendant’s confession, the Court requires the exclusion of only the latter statement. This illogical result demeans the values protected by the Confrontation Clause. Moreover, neither reason nor experience supports the Court’s argument that a consistent application of the rationale of the Bruton case would impose unacceptable burdens on the administration of justice.

I

It is a “basic premise” of the Confrontation Clause that certain kinds of hearsay “are at once so damaging, so suspect, and yet so difficult to discount, that jurors cannot be trusted to give such evidence the minimal weight it logically deserves, whatever instructions the trial judge might give.” This constitutionally mandated skepticism undergirds the Bruton holding and is equally applicable to this case. The Court framed the issue in Bruton as “whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a codefendant’s confession inculpating the defendant had to be disregarded in determining his guilt or innocence.” 391 U. S., at 123-124. We answered that question in the affirmative, noting that the Sixth Amendment is violated “where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” Id., at 135-136.

Today the Court nevertheless draws a line between co-defendant confessions that expressly name the defendant and those that do not. The Court relies on the presumption that in the latter category “it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.” Ante, at 208. I agree; but I do not read Bruton to require the exclusion of all codefendant confessions that do not mention the defendant. Some such confessions may not have any significant impact on the defendant’s case. But others will. If we presume, as we must, that jurors give their full and vigorous attention to every witness and each item of evidence, the very acts of listening and seeing will sometimes lead them down “the path of inference.” Indeed, the Court tacitly acknowledges this point; while the Court speculates that the judge’s instruction may dissuade the jury from making inferences at all, it also concedes the probability of their occurrence, arguing that there is no overwhelming probability that jurors will be unable to “disregard an incriminating inference.” Ibid. Bruton has always required trial judges to answer the question whether a particular confession is or is not “powerfully incriminating” on a case-by-case basis; they should follow the same analysis whether or not the defendant is actually named by his or her codefendant.

Instructing the jury that it was to consider Benjamin Williams’ confession only against him, and not against Clarissa Marsh, failed to guarantee the level of certainty required by the Confrontation Clause. The uncertainty arose because the prosecution’s case made it clear at the time Williams’ statement was introduced that the statement would prove “powerfully incriminating” of the respondent as well as of Williams himself. There can be absolutely no doubt that spreading Williams’ carefully edited confession before the jury intolerably interfered with the jury’s solemn duty to treat the statement as nothing more than meaningless sounds in its consideration of Marsh’s guilt or innocence.

At the time that Williams’ confession was introduced, the evidence already had established that respondent and two men committed an armed robbery in the course of which the two men killed two persons and shot a third. Ante, at 202. There was a sharp dispute, however, on the question whether respondent herself intended to commit a robbery in which murder was a foreseeable result, or knew that the two men planned to do so. The quantum of evidence admissible against respondent was just sufficient to establish this intent and hence to support her conviction. As the Court of Appeals explained:

“[T]he issue is whether the evidence was sufficient to show that Marsh aided and abetted the assault with the specific intent to murder Knighton or with the knowledge that Martin had this specific intent.... Marsh’s case presents a much closer question on this issue than does Williams’. There was no testimony indicating she harbored an intent to murder Knighton, nor was there any showing that she heard Martin’s statements regarding the need to ‘hurt’ or ‘take out’ the victims. There was, in addition, no testimony placing her in the basement, the scene of the shootings. The evidence does indicate, viewed in the light most favorable to the prosecution, that she was aware that Williams and Martin were armed, that she served as a guard or ‘lookout’ at the door, that she prevented an attempted escape by Knighton, and that she was given the paper bag thought to contain the proceeds of a robbery. The evidence also indicates that Marsh knew Scott, supporting the inference that it was Marsh who allowed Martin to gain entrance. While it is a close question, we believe the evidence presented at the time of the motion was sufficient to survive a motion for directed verdict.” 781 F. 2d 1201, 1204 (CA6 1986) (emphasis omitted).

In the edited statement that the jury was instructed not to consider against Marsh, Williams described the conversation he had with Kareem Martin while they were in a car driving to their victims’ residence. In that conversation, Martin stated that “he would have to take them out after the robbery.” See ante, at 203, n. 1. The State’s principal witness had testified that Martin and Marsh arrived at the victims’ house together. The jury was therefore certain to infer from the confession that respondent had been in the car and had overheard the statement by Martin. Viewed in the total context of the trial evidence, this confession was of critical importance because it was the only evidence directly linking respondent with the specific intent, expressed before the robbery, to kill the victims afterwards. If Williams had taken the witness stand and testified, respondent’s lawyer could have cross-examined him to challenge his credibility and to establish or suggest that the car radio was playing so loudly that Marsh could not have overheard the conversation between the two men from the backseat. An acknowledgment of the possibility of such facts by Williams would have done much more to eliminate the certainty beyond a reasonable doubt that Marsh knew about the murder plan than could possibly have been achieved by the later testimony of respondent herself. Moreover, the price respondent had to pay in order to attempt to rebut the obvious inference that she had overheard Martin was to remind the jury once again of what he had said and to give the prosecutor a further opportunity to point to this most damaging evidence on the close question of her specific intent. See ante, at 205, n. 2.

The facts in this case are, admittedly, different from those in Bruton because Williams’ statement did not directly mention respondent. Thus, instead of being “incriminating on its face,” ante, at 208, it became so only when considered in connection with the other evidence presented to the jury. The difference between the facts of Bruton and the facts of this case does not eliminate their common, substantial, and constitutionally unacceptable risk that the jury, when resolving a critical issue against respondent, may have relied on impermissible evidence.

II

The facts that joint trials conserve prosecutorial resources, diminish inconvenience to witnesses, and avoid delays in the administration of criminal justice have been well known for a long time. See United States v. Lane, 474 U. S. 438, 449 (1986) (quoting Bruton, 391 U. S., at 134). It is equally well known that joint trials create special risks of prejudice to one of the defendants, and that such risks often make it necessary to grant severances. See Bruton, 391 U. S., at 131; Fed. Rule Crim. Proc. 14 (Relief from Prejudicial Joinder). The Government argues that the costs of requiring the prosecution to choose between severance and not offering the co-defendant’s confession at a joint trial outweigh the benefits to the defendant. Brief for United States as Amicus Curiae 22. On the scales of justice, however, considerations of fairness normally outweigh administrative concerns.

In the Bruton case the United States argued that the normal “benefits of joint proceedings should not have to be sacrificed by requiring separate trials in order to use the confession against the declarant.” See 391 U. S., at 134. The Court endorsed the answer to this argument that Judge Lehman of the New York Court of Appeals had previously made in his dissenting opinion in People v. Fisher, 249 N. Y. 419, (432, 164 N. E. 336, 341 (1928):

“We still adhere to the rule that an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them .... We destroy the age-old rule which in the past has been regarded as a fundamental principle of our jurisprudence by a legalistic formula, required of the judge, that the jury may not consider any admissions against any party who did not join in them. We secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high.”

The concern about the cost of joint trials, even if valid, does not prevail over the interests of justice. Moreover, the Court’s effort to revive this concern in a state criminal case rests on the use of irrelevant statistics. The Court makes the startling discovery that joint trials account for “almost one-third of federal criminal trials in the past five years.” Ante, at 209. In the interest of greater precision, the Court might have stated that there were 10,904 federal criminal trials involving more than one defendant during that 5-year period. The Court might have added that the data base from which that figure was obtained does not contain any information at all to show the number of times that confessions were offered in evidence in those 10,904 federal cases. The relevance of this data is also difficult to discern because all of the cases in this Court that involved joint trials conducted after Bruton was decided, in which compliance with the rule of that case was at issue, appear to have originated in a state court. Federal prosecutors seem to have had little difficulty, in conducting the literally thousands of joint trials to which the Court points, in maintaining “both the efficiency and the fairness of the criminal justice system” that the Court speculates will occur if Bruton’s reasoning is applied to this case. See ante, at 210. Presumably the options of granting immunity, making plea bargains, or simply waiting until after a confessing defendant has been tried separately before trying to use his admissions against an accomplice have enabled the Federal Government to enforce the criminal law without sacrificing the basic premise of the Confrontation Clause.

The Court also expresses concern that trial judges will be unable to determine whether a codefendant’s confession that does not directly mention the defendant and is inadmissible against him will create a substantial risk of unfair prejudice. In most such cases the trial judge can comply with the dictates of Bruton by postponing his or her decision on the admissibility of the confession until the prosecution rests, at which time its potentially inculpatory effect can be evaluated in the light of the government’s entire case. The Court expresses concern that such a rule would enable “manipulation by the defense,” see ante, at 209, by which the Court presumably means the defense might tailor its evidence to make sure that a confession which does not directly mention the defendant is deemed powerfully incriminating when viewed in light of the prosecution’s entire case. As a practical matter, I cannot believe that there are many defense lawyers who would deliberately pursue this high-risk strategy of “manipulating” their evidence in order to enhance the prejudicial impact of a codefendant’s confession. Moreover, a great many experienced and competent trial judges throughout the Nation are fully capable of managing cases and supervising counsel in order to avoid the problems that seem insurmountable to appellate judges who are sometimes distracted by illogical distinctions and irrelevant statistics.

I respectfully dissent.

       The redacted confession in its entirety read:
      “On Sunday evening, October the 29th, 1978, at about 6:30 p.m., I was over to my girl friend’s house at 237 Moss, Highland Park, when I received a phone call from a friend of mine named Kareem Martin. He said he had been looking for me and James Coleman, who I call Tom. He asked me if I wanted to go on a robbery with him. I said okay. Then he said he’d be by and pick me up. About 16 or 20 minutes later Kareem came by in his black Monte Carlo car. I got in the ear and Kareem told me he was going to stick up this crib, told me the place was a numbers house. Kareem said there would be over $5,000 or $10,000 in the place. Kareem said he would have to take them out after the robbery. Kareem had a big silver gun. He gave me a long barrelled [sic] .22 revolver. We then drove over to this house and parked the car across the big street near the house. The plan was that I would wait in the car in front of the house and then I would move the car down across the big street because he didn’t want anybody to see the car. Okay, Kareem went up to the house and went inside. A couple of minutes later I moved the car and went up to the house. As I entered, Kareem and this older lady were in the dining room, a little boy and another younger woman were sitting on the couch in the front room. I pulled my pistol and told the younger woman and the little boy to lay on the floor. Kareem took the older lady upstairs. He had a pistol, also. I stayed downstairs with the two people on the floor. After Kareem took the lady upstairs I went upstairs and the lady was laying on the bed in the room to the left as you get up the stairs. The lady had already given us two bags full of money before we ever got upstairs. Kareem had thought she had more money and that’s why we had went upstairs. Me and Kareem started searching the rooms but I didn’t find any money. I came downstairs and then Kareem came down with the lady. I said, ‘Let’s go, let’s go.’ Kareem said no. Kareem then took the two ladies and little boy down the basement and that’s when I left to go to the car. I went to the car and got in the back seat. A couple of minutes later Kareem came to the car and said he thinks the girl was still living because she was still moving and he didn’t have any more bullets. He asked me how come I didn’t go down the basement and I said I wasn’t doing no shit like that. He then dropped me back off at my girl’s house in Highland Park and I was supposed to get together with him today, get my share of the robbery after he had counted the money. That’s all.” App. in No. 84-1777 (CA6), pp. 88-90.

       The prosecutor said:
      “It’s important in light of [respondent’s] testimony when she says Kareem drives over to Benjamin Williams’ home and picks him up to go over. What’s the thing that she says? Well, I’m sitting in the back seat of the car.’ ‘Did you hear any conversation that was going on in the front seat between Kareem and Mr. Williams?’ ‘No, couldn’t hear any conversation. The radio was too loud.’ I asked [sic] you whether that is reasonable. Why did she say that? Why did she say she couldn’t hear any conversation? She said, T know they were having conversation but I couldn’t hear it because of the radio.’ Because if she admits that she heard the conversation and she admits to the plan, she’s guilty of at least armed robbery. So she can’t tell you that.” Id., at 164.

       The dissent is mistaken in believing we “assum[e] that [Williams’] confession did not incriminate respondent.” Post, at 215, n. 3. To the contrary, the very premise of our discussion is that respondent would have been harmed by Williams’ confession if the jury had disobeyed its instructions. Our disagreement pertains not to whether the confession incriminated respondent, but to whether the trial court could properly assume that the jury did not use it against her.

       The dissent notes that “all of the cases in this Court that involved joint trials conducted after Bruton was decided, in which compliance with the rule of that case was at issue, appear to have originated in a state court.” Post, at 219. It concludes from this that “[fjederal prosecutors seem to have had little difficulty” in implementing Bruton as the dissent believes it must be implemented. Ibid. Since the cases in question number only a handful, the fact that they happened to be state cases may signify nothing more than that there are many times more state prosecutions than federal. There is assuredly no basis to believe that federal prosecutors have been applying the dissent’s interpretation of Bruton. Indeed the contrary proposition — as well as the harmfulness of that interpretation to federal law enforcement efforts — is suggested by the fact that the Solicitor General has appeared here as amicus to urge reversal for substantially the reasons we have given. See Brief for United States as Amicus Curiae.

       We express no opinion on the admissibility of a confession in which the defendant’s name has been replaced with a symbol or neutral pronoun.

        Bruton v. United States, 391 U. S. 123, 138 (1968) (Stewart, J., concurring) (emphasis in original). Judge Learned Hand and Justice Frankfurter also would recognize that the admission of Williams’ confession, even with limiting instructions, placed too great a strain upon the jury’s ability to exclude this evidence from its consideration of respondent’s innocence or guilt. As we noted in Bruton:

      “Judge Hand addressed the subject several times. The limiting instruction, he said, is a ‘recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else,’ Nash v. United States, 64 F. 2d 1006, 1007; ‘Nobody can indeed fail to doubt whether the caution is effective, or whether usually the practical result is not to let in hearsay,’ United States v. Gottfried, 165 F. 2d 360, 367; ‘it is indeed very hard to believe that a jury will, or for that matter can, in practice observe the admonition,’ Delli Paoli v. United States, 229 F. 2d 319, 321. Judge Hand referred to the instruction as a ‘placebo,’ medically defined as ‘a medicinal lie.’ ” 391 U. S., at 132, n. 8.

        In a similar vein, Justice Frankfurter observed:
      ‘The Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of-law, they should not consider but which they cannot put out of their minds.” Delli Paoli v. United States, 352 U. S. 232, 248 (1957) (dissenting opinion).

       Indeed, I have no doubt that there are some codefendant confessions that expressly mention the defendant but nevertheless need not be excluded under Bruton because they are not prejudicial.

       The Court assumes that the confession did not incriminate respondent at the time the confession was introduced. I disagree. Cynthia Knighton had already testified that respondent and Kareem Martin had arrived at the victims’ residence together, and that respondent admitted Williams to the house a few minutes later. In his statement Williams said:
      ‘We then drove over to this house and parked the car across the big street near the house. The plan was that I would wait in the car in front of the house and then I would move the car down across the big street because he didn’t want anybody to see the car. Okay, Kareem went up to the house and went inside. A couple of minutes later I moved the car and went up to the house.” Ante, at 203, n. 1.
      It is unrealistic to believe that the jury would assume that respondent did not accompany the two men in the car but had just magically appeared at the front door of the apartment at the same time that Martin did.

       It is worth noting that the dissenting opinion in Bruton did not regard the Court’s decision as limited to eodefendant confessions expressly implicating the defendant:
      “I would suppose that it will be necessary to exclude all extrajudicial confessions unless all portions of them which implicate defendants other than the declarant are effectively deleted. Effective deletion will probably require not only omission of all direct and indirect inculpations of codefen-dants but also of any statement that could be employed against those defendants once their identity is otherwise established.” 391 U. S., at 143 (emphasis added) (White, J., dissenting).
      The author of that opinion today adheres to that interpretation of Bruton. See Cruz v. New York, ante, at 195-196 (White, J., dissenting) (“[A] codefendant’s out-of-court statements implicating the defendant are not only hearsay but also have traditionally been viewed with special suspicion. . . . Bruton held that where the defendant has not himself confessed, there is too great a chance that the jury would rely on the codefendant’s confession”).

       See Memorandum from David L. Cook, Administrative Office of the United States Courts, to Supreme Court Library (Feb. 20,1987) (available in Clerk of Court’s case file).

       See Memorandum from David L. Cook, Administrative Office of the United States Courts, to Supreme Court Library (Mar. 25,1987) (available in Clerk of Court’s case file) (establishing that figures cited in Memorandum of February 20, 1987, cited ante, at 209, carry no information whatever about the number of multiple-defendant trials in which a codefen-dant’s confession was offered or admitted).

       The Court expresses an apparently deep-seated fear that an evenhanded application of Bruton would jeopardize the use of joint trials. This proposition rests on the unsupported assumption that the number of powerfully incriminating confessions that do not name the defendant is too large to be evaluated on a case-by-case basis. The Court then proceeds to the ostensible administrative outrages of the separate trials that would be necessary, contending that it would be unwise to compel prosecutors to “bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution’s case beforehand.” Ante, at 210. This speculation also floats unattached to any anchor of reality. Since the likelihood that more than one of the defendants in a joint trial will have confessed is fairly remote, the prospect of “presenting the same evidence again and again” is nothing but a rhetorical flourish. At worst, in the typical case, two trials may be required, one for the confessing defendant and another for the nonconfessing defendant or defendants. And even in that category, presumably most confessing defendants are likely candidates for plea bargaining.

       Except for Williams’ confession, and the prosecutor’s closing argument that will be separately considered on remand, there was a paucity of other evidence connecting respondent with the plan discussed in the car on the way to the victims’ home. The Court of Appeals was thus unquestionably correct in concluding that the violation of the Confrontation Clause in this case was not harmless error.


author: Justice Marshall Justice Stevens, Justice Scalia,

text:
    ARKANSAS WRITERS’ PROJECT, INC. v. RAGLAND, COMMISSIONER OF REVENUE OF ARKANSAS
    No. 85-1370.
    Argued January 20, 1987
    Decided April 22, 1987

      MARSHALL, J., delivered the opinion of the Court, in which Brennan, White, Blackmun, Powell, and O’ConnoR, JJ., joined, and in Parts I, II, III-B, IV, and V of which Stevens, J., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 234. Scalia, J., filed a dissenting opinion; in which Rehnquist, C. J., joined, post, p. 235.

      Anne Owings Wilson argued the cause and filed briefs for appellant.

      John Steven Clark argued the cause for appellee. With him on the brief were R. B. Friedlander and Joseph V. Svoboda.

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Foundation et al. by Jack Novik and Philip E. Kaplan; for the City & Regional Magazine Association by Donald M. Middlebrooks; for the Magazine Publishers Association by David Minton; for the Miami Herald Publishing Co. et al. by Edward Soto, Gerald B. Cope, Jr., W. Terry Maguire, and Parker Thomson; for Time Inc., by E. Barrett Prettyman, Jr., David J. Saylor, and John G. Roberts, Jr.; and for the Times Mirror Co. et al. by Rex S. Heinke, William A. Mese, and Jeffrey S. Klein.

      Briefs of amici curiae urging affirmance were filed for the Territory of American Samoa et al. by the Attorneys General for their respective jurisdictions as follows: Thomas J. Miller of Iowa, Leulumoega S. Lutu of American Samoa, Joseph Lieberman of Connecticut, Jim Smith of Florida, Corinne K. A. Watanabe of Hawaii, Jim Jones of Idaho, William J. Guste, Jr., of Louisiana, Hubert H. Humphrey III of Minnesota, Michael Turpén of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, T. Travis Medlock of South Carolina, Mark V. Meierhenry of South Dakota, Jim Mattox of Texas, David L. Wilkinson of Utah, and Jeffrey L. Amestoy of Vermont; and for the State of Maryland by Stephen H. Sachs, Attorney General, Ralph S. Tyler III, Assistant Attorney General, and Carmen M. Shepard, Special Assistant Attorney General.

   Justice Marshall

delivered the opinion of the Court.

The question presented in this case is whether a state sales tax scheme that taxes general interest magazines, but exempts newspapers and religious, professional, trade, and sports journals, violates the First Amendment’s guarantee of freedom of the press.

J — l

Since 1935, Arkansas has imposed a tax on receipts from sales of tangible personal property. 1935 Ark. Gen. Acts 233, §4, pp. 593, 594, now codified at Ark. Stat. Ann. §84-1903(a) (1980 and Supp. 1985). The rate of tax is currently four percent of gross receipts. § 84-1903 (three percent); Ark. Stat. Ann. §84-1903.1 (Supp. 1985) (additional one percent). Numerous items are exempt from the state sales tax, however. These include “[g]ross receipts or gross proceeds derived from the sale of newspapers,” §84-1904(f) (newspaper exemption), and “religious, professional, trade and sports journals and/or publications printed and published within this State . . . when sold through regular subscriptions.” §84-1904(j) (magazine exemption).

Appellant Arkansas Writers’ Project, Inc., publishes Arkansas Times, a general interest monthly magazine with a circulation of approximately 28,000. The magazine includes articles on a variety of subjects, including religion and sports. It is printed and published in Arkansas, and is sold through mail subscriptions, coin-operated stands, and over-the-counter sales. In 1980, following an audit, appellee Commissioner of Revenue assessed tax on sales of Arkansas Times. Appellant initially contested the assessment, but eventually reached a settlement with the State and agreed to pay the tax beginning in October 1982. However, appellant reserved the right to renew its challenge if there were a change in the tax law or a court ruling drawing into question the validity of Arkansas’ exemption structure. Record 46-47.

Subsequently, in Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575 (1983), this Court held unconstitutional a Minnesota tax on paper and ink used in the production of newspapers. In January 1984, relying on this authority, appellant sought a refund of sales tax paid since October 1982, asserting that the magazine exemption must be construed to include Arkansas Times. It maintained that subjecting Arkansas Times to the sales tax, while sales of newspapers and other magazines were exempt, violated the First and Fourteenth Amendments. The Commissioner denied appellant’s claim for refund. App. to Juris. Statement 12-14.

Having exhausted available administrative remedies, appellant filed a complaint in the Chancery Court for Pulaski County, Arkansas, seeking review of the Commissioner’s decision. The complaint also stated a claim under 42 U. S. C. §§1983 and 1988 for injunctive relief and attorney’s fees. The parties stipulated that Arkansas Times is not a “newspaper” or a “religious, professional, trade or sports journal” and that, during the relevant time period, appellant had paid $15,838.22 in sales tax. The Chancery Court granted appellant summary judgment, construing § 84 — 1904(j) to create two categories of tax-exempt magazines sold through subscriptions, one for religious, professional, trade, and sports journals, and one for publications published and printed within the State of Arkansas. No. 84-1268 (Pulaski Cty. Chancery Ct., Mar. 29, 1985). Because Arkansas Times came within the second category, the court held that the magazine was exempt from sales tax and appellant was entitled to a refund. The court determined that resolution of the dispute on statutory grounds made it unnecessary to address the constitutional issues raised in appellant’s § 1983 claim.

The Arkansas Supreme Court reversed the decision of the Chancery Court. 287 Ark. 155, 697 S. W. 2d 94 (1985). It construed § 84 — 1904(j) as creating a single exemption and held that, in order to qualify for this exemption, a magazine had to be a “religious, professional, trade, or sports periodical.” Id., at 157, 697 S. W. 2d, at 95. Concluding that “neither party has questioned the constitutionality of the exemption,” the State Supreme Court failed to address appellant’s First and Fourteenth Amendment claims. Ibid.

On petition for rehearing, the court issued a supplementary opinion in which it acknowledged that appellant had pursued its constitutional claims and that they “should have been discussed” in the court’s original opinion. Id., at 157, 157A, 157B, 698 S. W. 2d 802, 803 (1985). It rejected appellant’s claims of discriminatory treatment, reasoning that exemptions granted to other publications need not be considered, because:

“[I]t would avail [appellant] nothing if it wins its argument. ... It is immaterial that an exemption in favor of some other taxpayer may be invalid, as discriminatory. If so, it is the exemption that would fall, not the tax against the [Arkansas] Times.” Id., at 157A, 698 S. W. 2d, at 803.

As to appellant’s First Amendment objections, the court noted that this Court has held that “the owners of newspapers are not immune from any of the ‘ordinary forms of taxation’ for support of the government.” Ibid., quoting Grosjean v. American Press Co., 297 U. S. 233, 250 (1936). In contrast to Minneapolis Star, supra, and Grosjean, supra, the Arkansas Supreme Court concluded that the Arkansas sales tax was a permissible “ordinary form of taxation.” Because the court did not find that appellant’s First and Fourteenth Amendment rights had been violated, it did not consider the claim for attorney’s fees under § 1988.

We noted probable jurisdiction, 476 U. S. 1113 (1986), and we now reverse.

II

As a threshold matter, the Commissioner argues that appellant does not have standing to challenge the Arkansas sales tax scheme. Extending the reasoning of the court below, he contends that, since appellant has conceded that Arkansas Times is neither a newspaper nor a religious, professional, trade, or sports journal, it has not asserted an injury that can be redressed by a favorable decision of this Court and therefore does not meet the requirements for standing set forth in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 472 (1982).

We do not accept the Commissioner’s notion of standing, for it would effectively insulate underinclusive statutes from constitutional challenge, a proposition we soundly rejected in Orr v. Orr, 440 U. S. 268, 272 (1979). The Commissioner’s position is inconsistent with numerous decisions of this Court in which we have considered claims that others similarly situated were exempt from the operation of a state law adversely affecting the claimant. See, e. g., Armco Inc. v. Hardesty, 467 U. S. 638 (1984); Carey v. Brown, 447 U. S. 455 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972). Contrary to the Commissioner’s assertion, appellant has alleged sufficient a personal stake in the outcome of this litigation. “The holding of the [Arkansas] cour[t] stand[s] as a total bar to appellant’s relief; [its] constitutional attack holds the only promise of escape from the burden that derives from the challenged statut[e].” Orr v. Orr, supra, at 273.

A

Our cases clearly establish that a discriminatory tax on the press burdens rights protected by the First Amendment. See Minneapolis Star, 460 U. S., at 591-692; Grosjean v. American Press Co., supra, at 244-245. In Minneapolis Star, the discrimination took two distinct forms. First, in contrast to generally applicable economic regulations to which the press can legitimately be subject, the Minnesota use tax treated the press differently from other enterprises. 460 U. S., at 581 (the tax “singles] out publications for treatment that is . . . unique in Minnesota tax law”). Second, the tax targeted a small group of newspapers. This was due to the fact that the first $100,000 of paper and ink were exempt from the tax; thus “only a handful of publishers pay any tax at all, and even fewer pay any significant amount of tax.” Id., at 591.

Both types of discrimination can be established even where, as here, there is no evidence of an improper censorial motive. See id., at 579-580, 592 (“Illicit legislative intent is not the sine qua non of a violation of the First Amendment”). This is because selective taxation of the press — either singling out the press as a whole or targeting individual members of the press — poses a particular danger of abuse by the State.

“A power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected. When the State imposes a generally applicable tax, there is little cause for concern. We need not fear that a government will destroy a selected group of taxpayers by burdensome taxation if it must impose the same burden on the rest of its constituency.” Id., at 585.

Addressing only the first type of discrimination, the Commissioner defends the Arkansas sales tax as a generally applicable economic regulation. He acknowledges the numerous statutory exemptions to the sales tax, including those exempting newspapers and religious, trade, professional, and sports magazines. Nonetheless, apparently because the tax is nominally imposed on receipts from sales of all tangible personal property, see §84-1903, he insists that the tax should be upheld.

On the facts of this case, the fundamental question is not whether the tax singles out the press as a whole, but whether it targets a small group within the press. While-we indicated in Minneapolis Star that a genuinely nondiscriminatory tax on the receipts of newspapers would be constitutionally permissible, 460 U. S., at 586, and n. 9, the Arkansas sales tax cannot be characterized as nondiscriminatory, because it is not evenly applied to all magazines. To the contrary, the magazine exemption means that only a few Arkansas magazines pay any sales tax; in that respect, it operates in much the same way as did the $100,000 exemption to the Minnesota use tax. Because the Arkansas sales tax scheme treats some magazines less favorably than others, it suffers from the second type of discrimination identified in Minneapolis Star.

Indeed, this case involves a more disturbing use of selective taxation than Minneapolis Star, because the basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine’s tax status depends entirely on its content. “[AJbove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S., at 95. See also Carey v. Brown, 447 U. S., at 462-463. “Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” Regan v. Time, Inc., 468 U. S. 641, 648-649 (1984).

If articles in Arkansas Times were uniformly devoted to religion or sports, the magazine would be exempt from the sales tax under § 84 — 1904(j). However, because the articles deal with a variety of subjects (sometimes including religion and sports), the Commissioner has determined that the magazine’s sales may be taxed. In order to determine whether a magazine is subject to sales tax, Arkansas’ “enforcement authorities must necessarily examine the content of the message that is conveyed . . . .” FCC v. League of Women Voters of California, 468 U. S. 364, 383 (1984). Such official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment’s guarantee of freedom of the press. See Regan v. Time, Inc., supra, at 648.

Arkansas’ system of selective taxation does not evade the strictures of the First Amendment merely because it does not burden the expression of particular views by specific magazines. We rejected a similar distinction between content and viewpoint restrictions in Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530 (1980). As we stated in that case, “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Id., at 537. See FCC v. League of Women Voters of California, supra, at 383-384; Metromedia, Inc. v. San Diego, 453 U. S. 490, 518-519 (1981) (plurality opinion); Carey v. Brown, supra, at 462, n. 6.

Nor are the requirements of the First Amendment avoided by the fact that Arkansas grants an exemption to other members of the media that might publish discussions of the various subjects contained in Arkansas Times. For example, exempting newspapers from the tax, see §84-1904(f), does not change the fact that the State discriminates in determining the tax status of magazines published in Arkansas. “It hardly answers one person’s objection to a restriction on his speech that another person, outside his control, may speak for him.” Regan v. Taxation With Representation of Washington, 461 U. S. 540, 553 (1983) (Blackmun, J., concurring). See also Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 757, n. 15 (1976) (“We are aware of no general principle that freedom of speech may be abridged when the speaker’s listeners could come by his message by some other means”).

B

Arkansas faces a heavy burden in attempting to defend its content-based approach to taxation of magazines. In order to justify such differential taxation, the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. See Minneapolis Star, 460 U. S., at 591-592.

The Commissioner has advanced several state interests. First, he asserts the State’s general interest in raising revenue. While we have recognized that this interest is an important one, see id., at 586, it does not explain selective imposition of the sales tax on some magazines and not others, based solely on their content. In Minneapolis Star, this interest was invoked in support of differential treatment of the press in relation to other businesses. Ibid. In that context, we noted that an interest in raising revenue,

“[standing alone, . . . cannot justify the special treatment of the press, for an alternative means of achieving the same interest without raising concerns under the First Amendment is clearly available: the State could raise the revenue by taxing businesses generally, avoiding the censorial threat implicit in a tax that singles out the press.” Ibid, (footnote omitted).

The same is true of a tax that differentiates between members of the press.

The Commissioner also suggests that the exemption of religious, professional, trade, and sports journals was intended to encourage “fledgling” publishers, who have only limited audiences and therefore do not have access to the same volume of advertising revenues as general interest magazines such as Arkansas Times. Brief for Appellee 16. Even assuming that an interest in encouraging fledgling publications might be a compelling one, we do not find the exemption in § 84 — 1904(j) of religious, professional, trade, and sports journals narrowly tailored to achieve that end. To the contrary, the exemption is both overinclusive and underinclusive. The types of magazines enumerated in § 84 — 1904(j) are exempt, regardless of whether they are “fledgling”; even the most lucrative and well-established religious, professional, trade, and sports journals do not pay sales tax. By contrast, struggling general interest magazines and struggling specialty magazines on subjects other than those specified in §84-1904(j) are ineligible for favorable tax treatment.

Finally, the Commissioner asserted for the first time at oral argument a need to “foster communication” in the State. Tr. of Oral Arg. 28, 32. While this state interest might support a blanket exemption of the press from the sales tax, it cannot justify selective taxation of certain publishers. The Arkansas tax scheme only fosters communication on religion, sports, and professional and trade matters. It therefore does not serve its alleged purpose in any significant way.

C

Appellant argues that the Arkansas tax scheme violates the First Amendment because it exempts all newspapers from the tax, but only some magazines. Appellant contends that, under applicable state regulations, see nn. 1 and 2, supra, the critical distinction between newspapers and magazines is not format, but rather content: newspapers are distinguished from magazines because they contain reports of current events and articles of general interest. Just as content-based distinctions between magazines are impermissible under prior decisions of this Court, appellant claims that content-based distinctions between different members of the media are also impermissible, absent a compelling justification.

Because we hold today that the State’s selective application of its sales tax to magazines is unconstitutional and therefore invalid, our ruling eliminates the differential treatment of newspapers and magazines. Accordingly, we need not decide whether a distinction between different types of periodicals presents an additional basis for invalidating the sales tax, as applied to the press.

IV

In the Chancery Court, appellant asserted its First and Fourteenth Amendment claims under 42 U. S. C. § 1983, as well as a corresponding entitlement to attorney’s fees under § 1988. Because this Court has found a constitutional violation, appellant urges us to consider its cause of action under § 1983 and order an award of attorney’s fees. However, the state courts have not yet indicated whether they will exercise jurisdiction over this claim and we therefore remand to give them an opportunity to do so.

The parties recognize that federal and state courts have concurrent jurisdiction over actions brought under § 1983, see, e. g., Martinez v. California, 444 U. S. 277, 283, n. 7 (1980), although the Tax Injunction Act, 28 U. S. C. § 1341, ordinarily precludes federal courts from entertaining challenges to the assessment of state taxes. The parties disagree, however, on whether the state court must exercise jurisdiction in such cases. We leave it to the courts on remand to consider the necessity of entertaining this claim.

V

We stated in Minneapolis Star that “[a] tax that singles out the press, or that targets individual publications within the press, places a heavy burden on the State to justify its action.” 460 U. S., at 592-593. In this case, Arkansas has failed to meet this heavy burden. It has advanced no compelling justification for selective, content-based taxation of certain magazines, and the tax is therefore invalid under the First Amendment. Accordingly, we reverse the judgment of the Arkansas Supreme Court and remand for proceedings not inconsistent with this opinion.

It is so ordered.

Justice Stevens,

concurring in part and concurring in the judgment.

To the extent that the Court’s opinion relies on the proposition that “‘government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,’ ” see ante, at 229 (quoting Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972)), I am unable to join it. I do, however, agree that the State has the burden of justifying its content-based discrimination and has plainly failed to do so. Accordingly, I join Parts I, II, III-B, IV, and V of the Court’s opinion and concur in its judgment.

Justice Scalia,

with whom The Chief Justice joins, dissenting.

All government displays an enduring tendency to silence, or to facilitate silencing, those voices that it disapproves. In the case of the Judicial Branch of Government, the principal restraint upon that tendency, as upon other judicial error, is the requirement that judges write opinions providing logical reasons for treating one situation differently from another. I dissent from today’s decision because it provides no rational basis for distinguishing the subsidy scheme here under challenge from many others that are common and unquestionably lawful. It thereby introduces into First Amendment law an element of arbitrariness that ultimately erodes rather than fosters the important freedoms at issue.

The Court’s opinion does not dispute, and I think it evident, that the tax exemption in this case has a rational basis sufficient to sustain the tax scheme against ordinary equal protection attack, see, e. g., Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 312 (1976) (per curiam). Though assuredly not “narrowly tailored,” it is reasonably related to the legitimate goals of encouraging small publishers with limited audiences and advertising revenues (a category which in the State’s judgment includes most publishers of religious, professional, trade, and sports magazines) and of avoiding the collection of taxes where administrative cost exceeds tax proceeds. See Brief for Appellee 15-16. The exemption is found invalid, however, because it does not pass the “strict scrutiny” test applicable to discriminatory restriction or prohibition of speech, namely, that it be “necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end.” Ante, at 231; cf. Police Department of Chicago v. Mosley, 408 U. S. 92, 101 (1972) (discriminatory ban on picketing); Carey v. Brown, 447 U. S. 455, 461-462 (1980) (same).

Here, as in the Court’s earlier decision in Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575 (1983), application of the “strict scrutiny” test rests upon the premise that for First Amendment purposes denial of exemption from taxation is equivalent to regulation. That premise is demonstrably erroneous and cannot be consistently applied. Our opinions have long recognized — in First Amendment contexts as elsewhere — the reality that tax exemptions, credits, and deductions are “a form of subsidy that is administered through the tax system,” and the general rule that “a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” Regan v. Taxation With Representation of Washington, 461 U. S. 540, 544, 549 (1983) (upholding denial of tax exemption for organization engaged in lobbying even though veterans’ organizations received exemption regardless of lobbying activities). See also Cammarano v. United States, 358 U. S. 498, 513 (1959) (deduction for lobbying activities); Buckley v. Valeo, 424 U. S. 1, 93-95 (1976) (declining to apply strict scrutiny to campaign finance law that excludes certain candidates); Harris v. McRae, 448 U. S. 297, 324-326 (1980) (declining to apply strict scrutiny to legislative decision not to subsidize abortions even though other medical procedures were subsidized); Maher v. Roe, 432 U. S. 464 (1977) (same).

The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily “infringe” a fundamental right is that — unlike direct restriction or prohibition-such a denial does not, as a general rule, have any significant coercive effect. It may, of course, be manipulated so as to do so, in which case the courts will be available to provide relief. But that is not remotely the case here. It is implausible that the 4% sales tax, generally applicable to all sales in the State with the few enumerated exceptions, was meant to inhibit, or had the effect of inhibiting, this appellant’s publication.

Perhaps a more stringent, prophylactic rule is appropriate, and can consistently be applied, when the subsidy pertains to the expression of a particular viewpoint on a matter of political concern — a tax exemption, for example, that is expressly available only to publications that take a particular point of view on a controversial issue of foreign policy. Political speech has been accorded special protection elsewhere. See, e. g., FCC v. League of Women Voters of California, 468 U. S. 364, 375-376 (1984) (invalidating ban on editorializing by recipients of grants from the Corporation for Public Broadcasting, in part on ground that political speech “is entitled to the most exacting degree of First Amendment protection”); Connick v. Myers, 461 U. S. 138, 143-146 (1983) (discussing history of First Amendment protection for political speech by public employees); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) (upholding FCC’s “fairness doctrine,” which imposes special obligations upon broadcasters with regard to “controversial issues of public importance”). There is no need, however, and it is realistically quite impossible, to extend to all speech the same degree of protection against exclusion from a subsidy that one might think appropriate for opposing shades of political expression.

By seeking to do so, the majority casts doubt upon a wide variety of tax preferences and subsidies that draw distinctions based upon subject matter. The United States Postal Service, for example, grants a special bulk rate to written material disseminated by certain nonprofit organizations — religious, educational, scientific, philanthropic, agricultural, labor, veterans’, and fraternal organizations. See Domestic Mail Manual § 623 (1986). Must this preference be justified by a “compelling governmental need” because a nonprofit organization devoted to some other purpose — dissemination of information about boxing, for example — does not receive the special rate? The Kennedy Center, which is subsidized by the Federal Government in the amount of up to $23 million per year, see 20 U. S. C. §76n(a), is authorized by statute to “present classical and contemporary music, opera, drama, dance, and poetry.” §76j. Is this subsidy subject to strict scrutiny because other kinds of expressive activity, such as learned lectures and political speeches, are excluded? Are government research grant programs or the funding activities of the Corporation for Public Broadcasting, see 47 U. S. C. § 396(g)(2), subject to strict scrutiny because they provide money for the study or exposition of some subjects but not others?

Because there is no principled basis to distinguish the subsidization of speech in these areas — which we would surely uphold — from the subsidization that we strike down here, our decision today places the granting or denial of protection within our own idiosyncratic discretion. In my view, that threatens First Amendment rights infinitely more than the tax exemption at issue. I dissent.

       The newspaper exemption was added in 1941. 1941 Ark. Gen. Acts 386, § 4, p. 1060. Gross Receipts Tax Regulations of 1981, adopted by the Arkansas Commissioner of Revenue define a newspaper as “a publication in sheet form containing reports of current events and articles of general interest to the public, published regularly in short intervals such as daily, weekly, or bi-weekly, and intended for general circulation.” GR-48(A)(1), reproduced at Record 50.

       The magazine exemption was added in 1949. 1949 Ark. Gen. Acts 152, § 2, p. 491. The regulations define a publication as “any pamphlet, magazine, journal, or periodical, other than a newspaper, designed for the information or entertainment of the general public or any segment thereof.” GR-48(A)(5), reproduced at Record 50. The term “regular subscription” is defined as “the purchase by advance payment of a specified number of issues of a publication over a certain period of time, and delivered to the subscriber by mail or otherwise.” GR-48(A)(6), reproduced at Record 50.

       Appellant’s First Amendment claims are obviously intertwined with interests arising under the Equal Protection Clause. See Police Dept. of

        Chicago v. Mosley, 408 U. S. 92, 94-95 (1972). However, since Arkansas’ sales tax system directly implicates freedom of the press, we analyze it primarily in First Amendment terms. See Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585, n. 7 (1983).

       Appellant maintains that Arkansas Times is the only Arkansas publication that pays sales tax. App. 13 (Affidavit of Alan Leveritt). The Commissioner contends that there are two periodicals, in addition to Arkansas Times, that pay tax. Tr. of Oral Arg. 22. Whether there are three Arkansas magazines paying tax or only one, the burden of the tax clearly falls on a limited group of publishers.

       This challenge was made in the courts below, but it was not addressed by either the Chancery Court or the Arkansas Supreme Court. Since the Chancery Court construed the magazine exemption to cover sales of Arkansas Times, it was not necessary to reach the issue. The Arkansas Supreme Court ruled that the sales tax was a generally applicable regulation and did not examine the impact of the magazine exemption or the newspaper exemption. 287 Ark. 155, 157A, 157B, 698 S. W. 2d 802, 803 (1985).

       The Chancery Court construed the magazine exemption to apply to sales of Arkansas Times and therefore did not reach the federal cause of action. The Arkansas Supreme Court reversed the Chancery Court’s construction of the statute and held that there was no First Amendment violation. It found that it was not necessary to consider appellant’s claim for attorney’s fees under § 1988.

       Whether state courts must assume jurisdiction over these cases is not entirely clear. See Note, Section 1983 in State Court: A Remedy for Unconstitutional State Taxation, 95 Yale L. J. 414, 420-421 (1985). See also Spencer v. South Carolina Tax Comm’n, 281 S. C. 492, 316 S. E. 2d 386, aff’d by an equally divided Court, 471 U. S. 82 (1984). Of course, an af-firmance by an equally divided Court is not entitled to precedential weight. See Neil v. Biggers, 409 U. S. 188, 192 (1972).

      See my separate opinions in Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530, 544 (1980); Widmar v. Vincent, 454 U. S. 263, 277 (1981); and Regan v. Time, Inc., 468 U. S. 641, 692 (1984); see also FCC v. League of Women Voters of California, 468 U. S. 364, 408 (1984).