author: Justice O’Connor Justice Stevens,

text:
    SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION AT WALPOLE v. HILL et al.
    No. 84-438.
    Argued March 25, 1985
    Decided June 17, 1985

      O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined, and in Parts I, II, and III of which Brennan, Marshall, and Stevens, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Brennan and Marshall, JJ., joined, -post, p. 457.

      Barbara A. H. Smith, Assistant Attorney General of Massachusetts, argued the cause for petitioner. With her on the briefs were Francis X. Bellotti, Attorney General, and Martin E. Levin, Assistant Attorney General.

      Jamie Ann Sabino, by appointment of the Court, 469 U. S. 1084, argued the cause for respondents. With her on the brief was Richard B. Klibaner.

       Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Wallace, and Kathleen A. Felton; and for the State of California et al. by John K. Van de Kamp, Attorney General of California, Steve White, Chief Assistant Attorney General, Arnold Overoye, Assistant Attorney General, William George Prahl and Susan J. Orton, Deputy Attorneys General, Charles A. Graddick, Attorney General of Alabama, Robert K. Corbin, Attorney General of Arizona, Anthony B. Ching, Solicitor General, Joseph L. Lieberman, Attorney General of Connecticut, Cornelius Tuohy, Assistant Attorney General, Michael A. Lilly, Attorney General of Hawaii, Neil Hartigan, Attorney General of Illinois, Jill Wine-Banks, Solicitor General, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, David Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, Frank J. Kelley, Attorney General of Michigan, Lewis J. Caruso, Solicitor General, Hubert H. Humphrey III, Attorney General of Minnesota, Edwin Lloyd Pittman, Attorney General of Mississippi, Robert L. Gibbs, Assistant Attorney General, John Ashcroft, Attorney General of Missouri, John M. Morris, Mike Greely, Attorney General of Montana, Paul Douglas, Attorney General of Nebraska, Rufus L. Edmisten, Attorney General of North Carolina, Anthony J. Celebrezze, Jr., Attorney General of Ohio, T. Travis Medlock, Attorney General of South Carolina, Mark V. Meierhenry, Attorney General of South Dakota, John Easton, Jr., Attorney General of Vermont, Gerald L. Baliles, Attorney General of Virginia, and A. G. McGlintoek, Attorney General of Wyoming.

   Justice O’Connor

delivered the opinion of the Court.

Massachusetts inmates who comply with prison rules can accumulate good time credits that reduce the term of imprisonment. Mass. Gen. Laws Ann., ch. 127, § 129 (West 1974). Such credits may be lost “if a prisoner violates any rule of his place of confinement.” Ibid. The question presented is whether revocation of an inmate’s good time credits violates the Due Process Clause of the Fourteenth Amendment if the decision of the prison disciplinary board is not supported by evidence in the record. We conclude that where good time credits constitute a protected liberty interest, a decision to revoke such credits must be supported by some evidence. Because the record in this case contains sufficient evidence to support the decision of the disciplinary board, we reverse.

I — I

Respondents Gerald Hill and Joseph Crawford are inmates at a state prison in Walpole, Mass. In May 1982, they each received prison disciplinary reports charging them with assaulting another inmate. At separate hearings for each inmate, a prison disciplinary board heard testimony from a prison guard, Sergeant Maguire, and received his written disciplinary report. According to the testimony and report, Maguire heard an inmate twice say loudly, “What’s going on?” The voice came from a walkway that Maguire could partially observe through a window. Maguire immediately opened the door to the walkway and found an inmate named Stephens bleeding from the mouth and suffering from a swollen eye. Dirt was strewn about the walkway, and Maguire viewed this to be further evidence of a scuffle. He saw three inmates, including respondents, jogging away together down the walkway. There were no other inmates in the area, which was enclosed by a chain link fence. Maguire concluded that one or more of the three inmates had assaulted Stephens and that they had acted as a group. Ma-guire also testified at Hill’s hearing that a prison “medic” had told him that Stephens had been beaten. Hill and Crawford each declared their innocence before the disciplinary board, and Stephens gave written statements that the other inmates had not caused his injuries.

After hearing the evidence in each case, the disciplinary board found respondents guilty of violating prison regulations based on their involvement in the assault. App. 19, 27. The board recommended that Hill and Romano each lose 100 days of good time and be confined in isolation for 15 days. Respondents unsuccessfully appealed the board’s action to the superintendent of the prison. Id., at 23, 30. They then filed a complaint in the Superior Court, State of Massachusetts, alleging that the decisions of the board violated their constitutional rights because “there was no evidence to confirm that the incident took place nor was there any evidence to state that if the incident did take place the [respondents] were involved.” Id., at 10. After reviewing the record, the Superior Court concluded that “the Board’s finding of guilty rested, in each case, on no evidence constitutionally adequate to support that finding.” App. to Pet. for Cert. 8b. The Superior Court granted summary judgment for respondents and ordered that the findings of the disciplinary board be voided and the lost good time restored.

The Massachusetts Supreme Judicial Court affirmed. 392 Mass. 198, 466 N. E. 2d 818 (1984). Inmates who observe prison rules, the state court noted, have a statutory right to good time credits and the loss of such credits affects a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. Id., at 201, 466 N. E. 2d, at 821. The Supreme Judicial Court then observed that an entitlement to “judicial review of the sufficiency of the evidence to warrant the board’s findings” logically follows from Wolff v. McDonnell, 418 U. S. 539 (1974). 392 Mass., at 201, 466 N. E. 2d, at 821. Without deciding whether the appropriate standard of review is “some evidence” or the stricter test of “substantial evidence,” id., at 203, n. 5, 466 N. E. 2d, at 822, n. 5, the Supreme Judicial Court agreed with the trial judge that the record failed to present even “some evidence which, if believed, would rationally permit the board’s findings.” Id., at 203, 466 N. E. 2d, at 822 (footnote omitted).

The Massachusetts Attorney General filed a petition for a writ of certiorari urging this Court to decide whether prison inmates have a due process right to judicial review of prison disciplinary proceedings or, alternatively, whether the standard of review applied by the state court was more stringent than is required by the Due Process Clause. Pet. for Cert, i, 20-21. We granted the petition, 469 U. S. 1016 (1984), and we now reverse.

II

Petitioner first argues that the state court erred by holding that there is a constitutional right to judicial review of the sufficiency of evidence where good time credits are revoked in a prison disciplinary proceeding. Ortwein v. Schwab, 410 U. S. 656 (1973) (per curiam), petitioner contends, found no denial of due process where a filing fee prevented claimants from obtaining judicial review of an administrative decision reducing welfare payments. Petitioner urges that a similar conclusion should apply here: respondents were afforded all the process due when they received a hearing before the disciplinary board. Cf. id., at 659-660 (pretermination eviden-tiary hearing met requirements of due process despite lack of judicial review). Respondents answer by noting decisions of this Court which suggest that due process might require some form of judicial review of administrative decisions that threaten constitutionally protected liberty or property interests. See, e. g., St. Joseph Stockyards Co. v. United States, 298 U. S. 38, 51-52 (1936); Ng Fung Ho v. White, 259 U. S. 276, 284-285 (1922).

The extent to which legislatures may commit to an administrative body the unreviewable authority to make determinations implicating fundamental rights is a difficult question of constitutional law. See, e. g., Califano v. Sanders, 430 U. S. 99, 109 (1977); 5 K. Davis, Administrative Law Treatise § 28:3 (2d ed. 1984); Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362,1375-1378,1388-1391 (1953). The per curiam opinion in Ortwein did not purport to resolve this question definitively; nor are we disposed to construe that case as implicitly holding that due process would never require some form of judicial review of determinations made in prison disciplinary proceedings. Cf. Crowell v. Benson, 285 U. S. 22, 87 (1932) (Brandéis, J., dissenting) (“under certain circumstances, the constitutional requirement of due process is a requirement of judicial process”). Whether the Constitution requires judicial review is only at issue if such review is otherwise barred, and we will not address the constitutional question unless it is necessary to the resolution of the case before the Court. See Johnson v. Robison, 415 U. S. 361, 366-367 (1974).

Assuming, arguendo, that a decision revoking good time credits would violate due process if it were not supported by some modicum of evidence, we need not decide today whether the Constitution also requires judicial review of a challenge to a decision on such grounds. The Supreme Judicial Court correctly observed, 392 Mass., at 201, 466 N. E. 2d, at 821, that this Court has not previously held that the Due Process Clause creates a right to judicial review of prison disciplinary proceedings. Although the opinion of the state court does speak in terms of a constitutional entitlement, careful examination of that opinion persuades us that judicial review was available to respondents pursuant to Mass. Gen. Laws Ann., ch. 249, §4 (West Supp. 1984), which provides in pertinent part:

“A civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought in the supreme judicial or superior court.”

Petitioner notes that there is no statutory provision for judicial review of decisions by a prison disciplinary board. Nonetheless, the Supreme Judicial Court has observed that “ ‘[i]n the absence of a statutory method of judicial review, certiorari is an appropriate mode for correcting errors of law arising out of an administrative action.”’ Taunton Eastern Little League v. Taunton, 389 Mass. 719, 720, n. 1, 452 N. E. 2d 211, 212, n. 1 (1983), quoting Reading v. Attorney General, 362 Mass. 266, 269, 285 N. E. 2d 429, 431 (1972). In the present case, the Supreme Judicial Court expressly stated that respondents, who framed their complaints as petitions for a “‘writ of habeas corpus ad testificandum,”’ should have brought civil actions pursuant to § 4. 392 Mass., at 199, n. 2, 466 N. E. 2d, at 819, n. 2. The state court supported this conclusion by citing its previous decision in Boston Edison Co. v. Board of Selectmen of Concord, 355 Mass. 79, 242 N. E. 2d 868 (1968), and the decision of the Appeals Court of Massachusetts in Cepulonis v. Commissioner of Correction, 15 Mass. App. 292, 445 N. E. 2d 178 (1983).

Boston Edison relied on §4 to review a challenge to the sufficiency of the evidence to support decisions by town selectmen denying rights-of-way for power lines. At the time Boston Edison was decided, § 4 allowed a party to petition the Supreme Judicial Court for a writ of certiorari on a claim “that the evidence which formed the basis of the action complained of or the basis of any specified finding or conclusion was as a matter of law insufficient to warrant such action, finding or conclusion.” Mass. Gen. Laws Ann., ch. 249, §4 (West 1959). Petitioner correctly informed this Court that the quoted phrase and the writ of certiorari were abolished by 1973 amendments to §4, 1973 Mass. Acts, ch. 1114, § 289. Tr. of Oral Arg. 25, 50-51. Somewhat inexplicably, petitioner failed to add that the 1973 amendments substituted “ ‘a civil action in the nature of certiorari’ ” for the previously available writ, and did not narrow the relief formerly obtainable under the statute. See, e. g., Boston Edison Co. v. Boston Redevelopment Authority, 374 Mass. 37, 47-49, 371 N. E. 2d 728, 737-738 (1977).

The second decision cited by the Supreme Judicial Court, Cepulonis, construed an inmate’s challenge to a finding of a prison disciplinary board “as seeking review in the nature of certiorari” under §4. 15 Mass. App., at 292, 445 N. E. 2d, at 178. Cepulonis did not address a due process claim; instead, the inmate contended that the disciplinary board’s finding was not supported by “reliable evidence” as required by regulations of the Massachusetts Department of Corrections. Id., at 293, 445 N. E. 2d, at 179. Thus, Boston Edison and Cepulonis relied on § 4 to provide an avenue for judicial review where an adjudicatory decision by a nonjudicial body was challenged as not supported by sufficient evidence. In those cases, the aggrieved parties argued that the evidence was insufficient to meet standards imposed by state law. See also 1001 Plays, Inc. v. Mayor of Boston, 387 Mass. 879, 444 N. E. 2d 931 (1983) (§4 challenge to sufficiency of evidence to support denial of license for video game arcade); McSweeney v. Town Manager of Lexington, 379 Mass. 794, 401 N. E. 2d 113 (1980) (noting that appropriate standard varies according to nature of action sought to be reviewed).

Nothing in the opinion of the Supreme Judicial Court in this case suggests that §4 would be unavailable where a party alleges that evidence is insufficient under a standard imposed by the Federal Constitution. Cf. 392 Mass., at 202-203, 466 N. E. 2d, at 821-822 (failure to provide for review under state Administrative Procedure Act does not indicate legislative intent to preclude judicial review of sufficiency of evidence for disciplinary board decisions). Indeed, previous decisions by the Supreme Judicial Court indicate that §4 provides a means of review in state court where an administrative decision is challenged on federal constitutional grounds. See, e.g., Taunton Eastern Little League v. Taunton, supra, at 720-722, 452 N. E. 2d, at 212-213 (Establishment Clause challenge to rescission, of beano license). We therefore interpret the opinion of the state court as holding that §4 provides a mechanism for judicial review of respondents’ claims. Given the rule of judicial restraint requiring us to avoid unnecessary resolution of constitutional issues, see, e. g., Ashwander v. TWA, 297 U. S. 288, 346-347 (1936) (Brandéis, J., concurring), we decline to decide in this case whether due process would require judicial review.

r — H HH h-4

The issue we address is whether findings of a prison disciplinary board that result in the loss of good time credits must be supported by a certain amount of evidence in order to satisfy due process. Petitioner argues that the Supreme Judicial Court applied too strict a standard in reviewing the decision of the disciplinary board and that such decisions should be upheld unless they are arbitrary and capricious. Brief for Petitioner 5, 19-21; Pet. for Cert. i, 20-21. In Wolff v. McDonnell, 418 U. S. 539 (1974), the Court held that due process requires procedural protections before a prison inmate can be deprived of a protected liberty interest in good time credits. Petitioner does not challenge the holding below that Massachusetts law creates a liberty interest in good time credits. See also Nelson v. Commissioner of Correction, 390 Mass. 379, 456 N. E. 2d 1100 (1983) (statutory good time credits constitute a liberty interest protected by due process). Accordingly, we proceed on the assumption that the protections of the Fourteenth Amendment apply to the loss of the good time credits involved here, and direct our inquiry to the nature of the constitutionally required procedures.

Where a prison disciplinary hearing may result in the loss of good time credits, Wolff held that the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. 418 U. S., at 563-567. Although Wolff did not require either judicial review or a specified quantum of evidence to support the factfinder’s decision, the Court did note that “the provision for a written record helps to assure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental human rights may have been abridged, will act fairly.” Id., at 565. We now hold that revocation of good time does not comport with “the minimum requirements of procedural due process,” id., at 558, unless the findings of the prison disciplinary board are supported by some evidence in the record.

The requirements of due process are flexible and depend on a balancing of the interests affected by the relevant government action. E. g., Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961). Where a prisoner has a liberty interest in good time credits, the loss of such credits threatens his prospective freedom from confinement by extending the length of imprisonment. Thus the inmate has a strong interest in assuring that the loss of good time credits is not imposed arbitrarily. 418 U. S., at 561. This interest, however, must be accommodated in the distinctive setting of a prison, where disciplinary proceedings “take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so.” Ibid. Consequently, in identifying the safeguards required by due process, the Court has recognized the legitimate institutional needs of assuring the safety of inmates and prisoners, avoiding burdensome administrative requirements that might be susceptible to manipulation, and preserving the disciplinary process as a means of rehabilitation. See, e. g., Ponte v. Real, 471 U. S. 491 (1985); Baxter v. Palmigiano, 425 U. S. 308, 321-322 (1976); Wolff v. McDonnell, supra, at 562-563.

Requiring a modicum of evidence to support a decision to revoke good time credits will help to prevent arbitrary deprivations without threatening institutional interests or imposing undue administrative burdens. In a variety of contexts, the Court has recognized that a governmental decision resulting in the loss of an important liberty interest violates due process if the decision is not supported by any evidence. See, e. g., Douglas v. Buder, 412 U. S. 430, 432 (1973) (per curiam) (revocation of probation); Schware v. Board of Bar Examiners, 353 U. S. 232, 239 (1957) (denial of admission to bar); United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106 (1927) (deportation). Because the written statement mandated by Wolff requires a disciplinary board to explain the evidence relied upon, recognizing that due process requires some evidentiary basis for a decision to revoke good time credits will not impose significant new burdens on proceedings within the prison. Nor does it imply that a disciplinary board’s factual findings or decisions with respect to appropriate punishment are subject to second-guessing upon review.

We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced . . . .” United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S., at 106. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U. S. 131, 133-134 (1924); Willis v. Ciccone, 506 F. 2d 1011, 1018 (CA8 1974). We decline to adopt a more stringent evidentiary standard as a constitutional requirement. Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. See Wolff, 418 U. S., at 562-563, 567-569. The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not comparable to a criminal conviction, id., at 556, and neither the amount of evidence necessary to support such a conviction, see Jackson v. Virginia, 443 U. S. 307 (1979), nor any other standard greater than some evidence applies in this context.

IV

Turning to the facts of this case, we conclude that the evidence before the disciplinary board was sufficient to meet the requirements imposed by the Due Process Clause. The disciplinary board received evidence in the form of testimony from the prison guard and copies of his written report. That evidence indicated that the guard heard some commotion and, upon investigating, discovered an inmate who evidently had just been assaulted. The guard saw three other inmates fleeing together down an enclosed walkway. No other inmates were in the area. The Supreme Judicial Court found that this evidence was constitutionally insufficient because it did not support an inference that more than one person had struck the victim or that either of the respondents was the assailant or otherwise participated in the assault. 392 Mass., at 203-204, 466 N. E. 2d, at 822. This conclusion, however, misperceives the nature of the evidence required by the Due Process Clause.

The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board. Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing. Although the evidence in this case might be characterized as meager, and there was no direct evidence identifying any one of three inmates as the assailant, the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary. Respondents relied only upon the Federal Constitution, and did not claim that the disciplinary board’s findings failed to meet evidentiary standards imposed by state law. See id., at 199, n. 2, 466 N. E. 2d, at 819, n. 2; Brief for Respondents 17. Because the determination of the disciplinary board was not so lacking in evidentiary support as to violate due process, the judgment of the Supreme Judicial Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice Brennan and Justice Marshall join,

concurring in part and dissenting in part.

The Attorney General of Massachusetts is a member of a favored class of litigants. As the highest legal officer of a sovereign State, his professional comments on the law of Massachusetts are accorded special respect. Partly for that reason, and partly because this Court in recent years has been inclined to lend a sympathetic ear to claims that state courts have accorded too much protection to the rights of prison inmates and criminal defendants, State Attorneys General have been disproportionately successful in persuading this Court to grant their petitions for certiorari and to reverse state-court judgments of minimal national significance.

Such favored treatment should give rise to a special duty to be meticulously forthright and accurate in advising the Court about relevant matters of state law affecting the specific questions that a State Attorney General asks this Court to review. A lawyer’s greatest asset — his or her professional reputation — should not be squandered in order to achieve a favorable result in an individual case. I restate these simple truths because of my concern that the petitioner in this case and, indeed, the Court itself, may have attached greater importance to the correction of error in an isolated case than to the maintenance of standards that should govern procedures in this Court in all cases.

The Massachusetts Attorney General’s petition for certio-rari asked this Court to decide these two questions:

“I. Whether prison inmates have a substantive due process right to judicial review of prison disciplinary board findings?
“II. Whether, under the due process clause, the findings of a prison disciplinary board should be reviewed under a standard more stringent than review for action which is arbitrary, capricious, or an abuse of discretion?” Pet. for Cert. i.

Having granted certiorari and having had these two questions fully briefed and argued, the Court now correctly concludes that neither need be answered. It was obvious on the face of the Attorney General’s petition for certiorari that the second question would not have merited review in this Court. That question — whether the Due Process Clause requires that a disciplinary board’s findings of fact be reviewed under a more stringent standard than abuse of discretion — is not presented because the Massachusetts court did not apply a more stringent standard. The first question, however, may have merited our attention if there had been no state procedure for reviewing prison disciplinary board findings.

The first question in the Attorney General’s certiorari petition was supported by the following argument: “A prison inmate has no general due process right to judicial review of disciplinary board findings for sufficiency of the evidence, and the creation of such a right is not consistent with those principles enunciated by this Court in the context of prison administration.” Pet. for Cert. 14. Thus, although the right to judicial review was at the heart of the Attorney General’s request that we grant certiorari, “somewhat inexplicably,” ante, at 452, he did not mention that Massachusetts’ law, wholly apart from the Federal Constitution, provides judicial review for the correction of errors “in proceedings which. .. are not otherwise re viewable by motion or appeal.” Mass. Gen. Laws Ann., ch. 249, §4 (West Supp. 1984). Of course, we need not “decide in this case whether due process would require judicial review,” ante, at 453, if state law provides judicial review, and the Court today correctly acknowledges this settled rule of judicial restraint. See ante, at 450-453. The Court’s proper disposition of the primary question presented, however, does not adequately explain how this case arrived on our argument docket.

The Attorney General’s petition for certiorari did not mention the existence of state procedures allowing judicial review. In his argument brief, the Attorney General did cite the state statute in a somewhat opaque footnote. See Brief for Petitioner 6, n. 2. That footnote, however, merely confirms the presumption that he was aware of his own State’s procedure. Moreover, the Attorney General omitted any reference to the fact that less than one month before this case was argued before the Supreme Judicial Court of Massachusetts, that court rejected, in the context of a challenge to prison disciplinary hearings, the Attorney General’s defense that “the only judicial review available to the plaintiffs is an action in the nature of certiorari pursuant to G. L. c. 249, §4.” Nelson v. Commissioner of Correction, 390 Mass. 379, 381-382, 387-388, n. 12, 456 N. E. 2d 1100, 1102, 1106, n. 12 (1983) (emphasis added).

“When the prison Superintendent petitioned for certiorari, he had a heavy burden of explaining why this Court should intervene in what amounts to a controversy between the Supreme Judicial Court of Massachusetts and that State’s prison officials.” Ponte v. Real, 471 U. S. 491, 502 (1985) (Stevens, J., concurring). Even the casual student of this Court is aware that “[t]his Court’s review ... is discretionary and depends on numerous factors other than the perceived correctness of the judgment we are asked to review,” Ross v. Moffitt, 417 U. S. 600, 616-617 (1974), and that we “do not grant a certiorari to review evidence and discuss specific facts.” United States v. Johnston, 268 U. S. 220, 227 (1925). It is not unreasonable to expect a State’s highest legal officer to know the State’s law and to bring to this Court’s attention the rules of state law that might affect the sound exercise of our discretion to grant certiorari, or that might demonstrate that we granted the writ improvidently.

The Court now recognizes that the Massachusetts Attorney General “somewhat inexplicably” failed to provide the Court with critical information about Massachusetts law, but that recognition does not affect its disposition of the case. In view of the fact that petitioner has not prevailed on either question that is presented by his certiorari petition, one might have expected the judgment of the Supreme Judicial Court of Massachusetts to be affirmed. The Court has frequently admonished litigants that they may not obtain a reversal on a ground not urged in the petition for certiorari. Instead of following the practice dictated by our prior cases, however, the Court undertakes its own de novo review of the record and concludes that the evidence was not constitutionally insufficient. I continue to believe that such a task is not appropriate for this Court even if a diligent search will disclose error in the record. Cf. United States v. Hasting, 461 U. S. 499, 512 (1983) (Stevens, J., concurring in judgment). I consider it particularly unwise to volunteer an advisory opinion on the sufficiency of the evidence when, on remand, the state court remains free to reinstate its judgment if it concludes that the evidence does not satisfy the standards required by state law. Once again, however, the Court places a higher value on the rendition of a volunteered advisory opinion than on the virtues of judicial restraint.

Accordingly, while I join Parts I, II and III of the Court’s opinion, I respectfully dissent from Part IV and its judgment.

       See Marino v. Ragen, 332 U. S. 561, 562 (1947) (per curiam).

       See, e. g., Florida v. Rodriguez, 469 U. S. 1 (1984) (per curiam); California v. Beheler, 463 U. S. 1121 (1983) (per curiam); Illinois v. Batchelder, 463 U. S. 1112 (1983) (per curiam); California v. Ramos, 463 U. S. 992 (1983); Illinois v. Andreas, 463 U. S. 765 (1983).

       The Massachusetts court expressly declined to apply a standard different than “some evidence” in this case. Additionally, I note that virtually all Courts of Appeals that have ruled on the issue have concluded that some evidence must support a decision to revoke good-time credits. See, e. g., Adams v. Gunnell, 729 F. 2d 362, 370 (CA5 1984); Inglese v. Warden, U. S. Penitentiary, 687 F. 2d 362, 363 (CA11 1982); Willis v. Ciccone, 506 F. 2d 1011, 1018, 1019, n. 11 (CA8 1974); cf. Rusher v. Arnold, 550 F. 2d 896, 899 (CA3 1977). One Circuit did adopt a “substantial evidence” standard a few years ago. Aikens v. Lash, 514 F. 2d 55, 60-61 (CA7 1975) (“The term ‘substantial evidence’ need not be something prison officials should be overly concerned about”), vacated and remanded, 425 U. S. 947, modified, 547 F. 2d 372 (1976). However, recent decisions of that court indicate that it may have modified the standard and that the modified version is applied much like the “some evidence” standard. See Brown-Bey v. United States, 720 F. 2d 467, 469 (CA7 1983); Dawson v. Smith, 719 F. 2d 896, 900 (CA7 1983); Jackson v. Carlson, 707 F. 2d 943, 949 (CA7), cert. denied sub nom. Yeager v. Wilkinson, 464 U. S. 861 (1983). In any event, this minor dispute hardly qualifies as a one of national importance. Cf. Ponte v. Real, 471 U. S. 491, 523, n. 21 (1985) (Marshall, J., dissenting) (“Reserving the argument docket for cases of truly national import would go far toward alleviating any workload problems allegedly facing the Court”).

         Ponte v. Real, 471 U. S., at 501-502 (STEVENS, J., concurring) (“The merits of an isolated case have only an oblique relevance to the question whether a grant of certiorari is consistent with the sound administration of this Court’s discretionary docket”).

       Cf. Board of License Comm’rs of Tiverton v. Pastore, 469 U. S. 238 (1985) (per curiam). See this Court’s Rule 34.1(g) (a brief on the merits shall contain “a concise statement of the case containing all that is material to the consideration of the question presented”); Rule 35.5 (supplemental brief may be filed to point out “late authorities, newly enacted legislation, or other intervening matters”).

       J. I. Case Co. v. Borak, 377 U. S. 426, 428-429 (1964); Carpenters v. NLRB, 357 U. S. 93, 96 (1958); Irvine v. California, 347 U. S. 128, 129-130 (1954).

       Thus, the Court not only excuses the Attorney General’s error but actually rewards him by acting as “the High Magistrate,” California v. Carney, 471 U. S. 386, 396 (1985) (Stevens, J., dissenting), and by reversing “fact-bound errors of minimal significance.” Ibid.

       Cf. Massachusetts v. Upton, 466 U. S. 727 (1984), on remand, Commonwealth v. Upton, 394 Mass. 368, 370-373, 476 N. E. 2d 548, 550-551 (1985); California v. Ramos, 463 U. S. 992 (1983), on remand, People v. Ramos, 37 Cal. 3d 136, 150-159, 689 P. 2d 430, 437-444 (1984), cert. denied, 471 U. S. 1119 (1985); South Dakota v. Neville, 459 U. S. 553 (1983), on remand, State v. Neville, 346 N. W. 2d 425, 427-429 (SD 1984); Washington v. Chrisman, 455 U. S. 1 (1982), on remand, State v. Chrisman, 100 Wash. 814, 817-822, 676 P. 2d 419, 422-424 (1984) (en banc).


source: Caselaw Access Project

author:
Justice O’Connor
      Justice Brennan,

license: Public Domain

text:
    MARYLAND v. MACON
    No. 84-778.
    Argued April 17, 1985
    Decided June 17, 1985

      O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 472.

      Deborah K. Chasanow argued the cause for petitioner. With her on the briefs were Stephen H. Sachs, Attorney General of Maryland, and Anne E. Singleton, Assistant Attorney General.

      Burton W. Sandler argued the cause for respondent. With him on the brief was Joseph L. Gibson.

         Solicitor General Lee, Assistant Attorney General Trott, and Deputy Solicitor General Frey filed a brief for the United States as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Booksellers Association, Inc., et al. by Michael A. Bamberger and Shirley Adelson Siegel; and for the American Civil Liberties Union by Burt Neubome.

   Justice O’Connor

delivered the opinion of the Court.

This case requires us to decide whether allegedly obscene magazines purchased by undercover officers shortly before the warrantless arrest of a salesclerk must be excluded from evidence at the clerk’s subsequent trial for distribution of obscene materials. Following a jury trial in the Circuit Court of Prince George’s County, Maryland, respondent was convicted of distribution of obscene materials in violation of Md. Ann. Code, Art. 27, § 418 (1982). The Maryland Court of Special Appeals reversed the conviction and ordered the charges dismissed on the ground that the magazines were improperly admitted in evidence. 57 Md. App. 705, 471 A. 2d 1090 (1984). The Maryland Court of Appeals denied cer-tiorari. 300 Md. 795, 481 A. 2d 240 (1984). We granted cer-tiorari, 469 U. S. 1156 (1985), to resolve a conflict among the state courts on the question whether a purchase of allegedly obscene matter by an undercover police officer constitutes a seizure under the Fourth Amendment. Finding that it does not, we reverse.

I

On May 6, 1981, three Prince George’s County police detectives went to the Silver News, Inc., an adult bookstore in Hyattsville, Maryland, as part of a police investigation of adult bookstores in the area. One of the detectives, who was not in uniform, entered the store, browsed for several minutes, and purchased two magazines from a clerk, Baxter Macon, with a marked $50 bill. The detective left the store and showed the two magazines to his fellow officers who were waiting nearby. Together they concluded that the magazines were obscene under the criteria previously used by them in warrant applications. The detectives returned to the store, arrested respondent Macon, who was the only attendant in the store, and retrieved from the cash register the $50 bill that had been used to make the purchase. The officers neglected to return the change received at the time of the purchase. Respondent escorted the remaining customers out and closed the bookstore before leaving with the detectives.

Prior to trial, Macon moved to suppress the magazines purchased by the officers and the $50 bill used to make the purchase. App. 21. The trial judge denied the motion on the grounds that the purchase was not a seizure within the meaning of the Fourth Amendment and that the warrantless arrest was lawful. Id., at 52. The magazines, but not the $50 bill, were subsequently introduced in evidence at trial. The jury found respondent guilty of distributing obscene materials. Respondent appealed, contending that a prior judicial determination of probable cause to believe the matter distributed was obscene was required to sustain a seizure and an arrest on charges related to obscenity. Absent such a determination, respondent argued, the allegedly obscene materials must be suppressed and the charges must be dismissed. Respondent did not challenge the jury’s finding that the magazines were obscene.

The Maryland Court of Special Appeals agreed that a warrant is required both to seize allegedly obscene materials and to arrest the distributor in order to provide a procedural safeguard for the First Amendment freedom of expression. 57 Md. App., at 710, 471 A. 2d, at 1092. In cases involving First Amendment rights, the court reasoned, Fourth Amendment safeguards, including suppression of material acquired in connection with a warrantless arrest, must be applied more stringently. Ibid. The court determined that the purchase of the magazines was a “constructive” seizure and that the proper remedy was to exclude the magazines from evidence at the subsequent trial. Id., at 716, 471 A. 2d, at 1096. Alternatively, the court held that the warrant-less arrest of respondent on obscenity charges required the exclusion of the publications from evidence. Id., at 719, 471 A. 2d, at 1097. The court accordingly reversed the conviction and ordered that the charges be dismissed because without the magazines the evidence was insufficient to sustain a conviction. Ibid.

By holding that the purchase constituted a seizure within the meaning of the Fourth Amendment, the Maryland Court of Special Appeals rejected the position taken by the majority of state courts that have considered the issue. In evaluating the undercover purchase of allegedly obscene materials, most state courts have treated as self-evident the proposition that a purchase by an undercover officer is not a seizure, regardless of whether the funds used to make the purchase are later retrieved as evidence. See, e. g., Baird v. State, 12 Ark. App. 71, 671 S. W. 2d 191 (1984) (en banc); Wood v. State, 144 Ga. App. 236, 240 S. E. 2d 743 (1977), cert. denied, 439 U. S. 899 (1978); People v. Ridens, 51 Ill. 2d 410, 282 N. E. 2d 691 (1972), vacated and remanded on other grounds, 413 U. S. 912 (1973); State v. Welke, 298 Minn. 402, 216 N. W. 2d 641 (1974); State v. Perry, 567 S. W. 2d 380 (Mo. App. 1978); State v. Dornblaser, 26 Ohio Misc. 29, 267 N. E. 2d 434 (1971); Cherokee News & Arcade, Inc. v. State, 533 P. 2d 624 (Okla. Crim. App. 1974). But see State v. Furuyama, 64 Haw. 109, 637 P. 2d 1095 (1981) (reaching the contrary conclusion).

For the reasons set forth below, we conclude that the officer’s entry into the bookstore and later examination of materials offered for sale there did not constitute a search and that the purchase of two magazines did not effect a seizure. We do not decide whether a warrant is required to arrest a suspect on obscenity-related charges, because the magazines at issue were not the product of the warrantless arrest. Because we hold that the magazines were properly admitted in evidence at trial, we also do not address respondent’s contention that the Double Jeopardy Clause bars retrial.

II

The central issue presented is whether the magazines purchased by the undercover detectives before respondent’s arrest must be suppressed. If the publications were obtained by means of an unreasonable search or seizure, or were the fruits of an unlawful arrest, the Fourth Amendment requires their exclusion from evidence. If, however, the evidence is not traceable to any Fourth Amendment violation, exclusion is unwarranted. See United States v. Crews, 445 U. S. 463, 472 (1980).

A

The First Amendment imposes special constraints on searches for and seizures of presumptively protected material, Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 326, n. 5 (1979), and requires that the Fourth Amendment be applied with “scrupulous exactitude” in such circumstances. Stanford v. Texas, 379 U. S. 476, 485 (1965). Consequently, the Court has imposed particularized rules applicable to searches for and seizures of allegedly obscene films, books, arid papers. See, e. g., Roaden v. Kentucky, 413 U. S. 496, 497 (1973) (“seizure of allegedly obscene material, contemporaneous with and as an incident to an arrest for the public exhibition of such material . . . may [not] be accomplished without a warrant”); Marcus v. Search Warrant, 367 U. S. 717 (1961) (warrant to seize allegedly obscene magazines must be particularized and may not issue merely on officer’s conclusory assertion). Although we have not previously had an occasion to analyze the question whether a purchase of obscene material is properly classified as a seizure, some prior cases have involved seizures that followed bona fide undercover purchases. See, e. g., Lo-Ji Sales, Inc. v. New York, supra; Marcus v. Search Warrant, supra. In those cases, the Court did not address the exclusion of the purchased materials, but only of the materials obtained through mass seizures conducted pursuant to unconstitutional open-ended warrants. Absent some action taken by government agents that can properly be classified as a “search” or a “seizure,” the Fourth Amendment rules designed to safeguard First Amendment freedoms do not apply. Cf. Lo-Ji Sales, Inc. v. New York, supra, at 326, n. 5; Roaden v. Kentucky, supra, at 505 (sheriff seized a film from a commercial theater currently screening it).

A search occurs when “an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U. S. 109, 113 (1984). Here, respondent did not have any reasonable expectation of privacy in areas of the store where the public was invited to enter and to transact business. Cf. United States v. Knotts, 460 U. S. 276, 281-282 (1983). The mere expectation that the possibly illegal nature of a product will not come to the attention of the authorities, whether because a customer will not complain or because undercover officers will not transact business with the store, is not one that society is prepared to recognize as reasonable. Cf. United States v. Jacobsen, supra, at 122-123, n. 22. The officer’s action in entering the bookstore and examining the wares that were intentionally exposed to all who frequent the place of business did not infringe a legitimate, expectation of privacy and hence did not constitute a search within the meaning of the Fourth Amendment. See Katz v. United States, 389 U. S. 347, 351 (1967) (“What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection”).

Nor was the subsequent purchase a seizure within the meaning of the Fourth Amendment. A seizure occurs when “there is some meaningful interference with an individual’s possessory interests” in the property seized. United States v. Jacobsen, supra, at 113. Here, respondent voluntarily transferred any possessory interest he may have had in the magazines to the purchaser upon the receipt of the funds. Cf. Lewis v. United States, 385 U. S. 206, 210 (1966). Thereafter, whatever possessory interest the seller had was in the funds, not the magazines. At the time of the sale the officer did not “interfere” with any interest of the seller; he took only that which was intended as a necessary part of the exchange. See id., at 211.

The use of undercover officers is essential to the enforcement of vice laws. Id,., at 210, n. 6. An undercover officer does not violate the Fourth Amendment merely by accepting an offer to do business that is freely made to the public. “A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant.” Id., at 211; cf. Lo-Ji Sales, Inc. v. New York, supra, at 329. Nor does the First Amendment suggest a different conclusion in this case. Although a police officer may not engage in a “wholesale searc[h] and seizur[e]” in these circumstances, Lo-Ji Sales, Inc. v. New York, supra, at 329, nothing in our cases renders invalid under the Fourth Amendment or the First Amendment the purchase as here by the police of a few of a large number of magazines and other materials offered for sale. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizures of First Amendment materials, does not come into play in such cases, and the purchase is analogous to purchases of other unlawful substances previously found not to violate the Fourth Amendment. See Lewis v. United States, supra, at 210 (purchase of narcotics).

Notwithstanding that the magazines were obtained by a purchase, respondent argues that the bona fide nature of the purchase evaporated when the officers later seized the marked $50 bill and failed to return the change. Brief for Respondent 10. When the officer subjectively intends to retrieve the money while retaining the magazines, respondent maintains, the purchase is tantamount to a warrantless seizure. Id., at 11. This argument cannot withstand scrutiny. Whether a Fourth Amendment violation has occurred “turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,” Scott v. United States, 436 U. S. 128, 136 (1978), and not on the officer’s actual state of mind at the time the chai-lenged action was taken. Id., at 138 and 139, n. 13. Objectively viewed, the transaction was a sale in the ordinary course of business. The sale is not retrospectively transformed into a warrantless seizure by virtue of the officer’s subjective intent to retrieve the purchase money to use as evidence. Assuming, arguendo, that the retrieval of the money incident to the arrest was wrongful,'the proper remedy is restitution or suppression of the $50 bill as evidence of the purchase, not exclusion from evidence of the previously purchased magazines.

B

The question remains whether respondent’s warrantless arrest after the purchase of the magazines requires their exclusion at trial. Again, assuming, arguendo, that the war-rantless arrest was an unreasonable seizure in violation of the Fourth Amendment — a question we do not decide — it yielded nothing of evidentiary value that was not already in the lawful possession of the police. “The exclusionary rule enjoins the Government from benefiting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality. ” United States v. Crews, 445 U. S., at 475 (opinion of Brennan, J., joined by Stewart, and Stevens, JJ.). Here, the magazines were in police possession before the arrest, and the $50 bill, the only fruit of the arrest, was not introduced in evidence. We leave to another day the question whether the Fourth Amendment prohibits a warrantless arrest for the state law misdemeanor of distribution of obscene materials.

Because the undercover agents did not obtain possession of the allegedly obscene magazines by means of an unreasonable search or seizure and the magazines were not the fruit of an arrest, lawful or otherwise, the magazines were properly admitted in evidence at respondent’s trial for distribution of obscene materials. The judgment of the Maryland Court of Special Appeals is reversed.

It is so ordered.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

The Court granted certoriari to consider the holding of the Court of Special Appeals of Maryland that the First and Fourth Amendments require evidentiary suppression of certain magazines obtained in the course of an investigation culminating in the warrantless arrest of respondent on obscenity charges. The statute under which the prosecution was brought is, in my view, unconstitutionally overbroad and therefore facially invalid in its entirety. See my dissent in Paris Adult Theatre I v. Slaton, 413 U. S. 49, 73 (1973). For this reason, I would affirm the judgment of the Court of Special Appeals invalidating respondent’s conviction. Even if I thought otherwise with respect to the constitutionality of the Maryland obscenity statute, however, I would not join today’s opinion because I disagree with the Court’s analysis of whether respondent’s warrantless arrest should lead to a reversal of his conviction in this case.

“The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new.” Marcus v. Search Warrant, 367 U. S. 717, 724 (1961). “The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Id., at 729. See also Stanford v. Texas, 379 U. S. 476, 481-485 (1965). Thus in enforcing the Fourth Amendment’s command, courts must exercise a “scrupulous exactitude” to ensure that official use of the power to search and seize poses no threat to the liberty of expression. Id., at 485. In the words of The Chief Justice, “[t]he setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment. . . requirements because we examine what is ‘unreasonable’ in light of the values of freedom of expression.” Roaden v. Kentucky, 413 U. S. 496, 504 (1973).

An official seizure of presumptively protected books, magazines, or films‘is not “reasonable” within the meaning of the Fourth Amendment unless a neutral and detached magistrate has issued a warrant particularly describing the things to be seized, Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 (1979); Stanford v. Texas, supra, and the probable-cause determination supporting the warrant is based on a proceeding in which the magistrate has the opportunity to “focus searchingly on the question of obscenity,” Marcus v. Search Warrant, supra, at 732; see also Roaden v. Kentucky, supra; Heller v. New York, 413 U. S. 483 (1973); Lee Art Theatre v. Virginia, 392 U. S. 636 (1968). These strict requirements reflect a judgment that the inherently difficult decision respecting whether particular material is obscene can under no circumstances properly be left to investigating authorities “engaged in the often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U. S. 10, 14 (1948). The difficulty of applying the arcane standards governing obscenity determinations exacerbates the risk of overzealous use of the power to search and seize. Marcus v. Search Warrant, supra, at 732. And the consequence of such a seizure is a restraint on the distribution of presumptively protected materials. “[WJithout the authority of a constitutionally sufficient warrant, [seizure] is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.” Roaden v. Kentucky, supra, at 504.

Because official seizure of allegedly obscene books, magazines, and films requires a prior judicial determination of probable obscenity, it follows that seizure of a person for allegedly distributing such materials must meet the same requirements. A warrantless arrest involves the same difficulties and poses the same risks as does a warrantless seizure of books, magazines, or films. An officer in the field faces the same daunting task of applying the standards of Miller v. California, 413 U. S. 15 (1973), in determining whether books or magazines offered for sale support a finding of probable cause sufficient to justify the obscenity arrest. And the situation poses the same risk that the officer’s zeal to enforce the law will lead to erroneous judgments with respect to the obscenity of material that is constitutionally protected. Permitting this investigative practice threatens to restrain the liberty of expression in the same way that seizure of presumptively protected material does.

The disruptive potential of an effectively unbounded power to arrest should be apparent. In this case, for example, the arrest caused respondent to usher out patrons and padlock the entrance to the bookstore. As in Roaden the official conduct “brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition.” 413 U. S., at 504. Several cases from the lower courts make plain that the systematic use of an unbridled power to arrest alone provides a potent means for harassing those who sell books and magazines that do not conform to the majority’s dictates of taste. See, e. g., Penthouse International, Ltd. v. McAuliffe, 610 F. 2d 1353 (CA5 1980); State v. Furayama, 64 Haw. 109, 637 P. 2d 1095 (1981). Indeed, requiring a warrant for seizures of presumptively protected materials would be pointless if the authorities could achieve an equally effective restraint on distribution by the simple expedient of a warrantless seizure of the seller of such materials.

In Roaden v. Kentucky, supra, this Court required suppression at trial of a film seized incident to a warrantless arrest of a theater owner on obscenity charges. Although the Court today suggests that the infirmity at issue in Roaden was the officer’s failure to obtain a warrant prior to seizing the film, ante, at 468, Roaden never specified whether the seizure of the person or the seizure of the film was invalid for lack of a warrant. What concerned the Court was the absence of any prior judicial determination of probable cause to believe the film was obscene: “Nothing prior to seizure afforded a magistrate an opportunity to ‘focus searchingly on the question of obscenity.’” 413 U. S., at 506. Whether that determination would have formed the basis of an arrest warrant or a warrant authorizing seizure of the film is perhaps immaterial. Roaden does make clear, however, that officials may seize neither persons nor books, magazines, and films without some prior judicial determination of probable cause. That is precisely what happened in the present case, and the warrantless arrest is therefore clearly illegal. The Court today works mischief by unnecessarily throwing this principle into doubt.

The Court compounds the mischief by leaving respondent without an effective remedy for his illegal arrest. The Maryland Court of Special Appeals suppressed the two purchased magazines in part to ensure an effective remedy for the arrest. Holding that the magazines were legally purchased prior to the arrest and therefore can in no sense be considered tainted “fruits” of that arrest, this Court will neither suppress the magazines nor invalidate respondent’s conviction. The Court is of course following precedents, applicable to the run of cases, holding that the illegality of an arrest in itself will not suffice to prevent the introduction of evidence lawfully obtained prior to the arrest, United States v. Crews, 445 U. S. 463, 472-473 (1980), or to invalidate a conviction, id., at 474; see also Frisbie v. Collins, 342 U. S. 519 (1952).

When First Amendment values are at stake mechanical application of these precedents is inappropriate. No logical imperative requires the rule of Frisbie v. Collins. Even under the methodology to which this Court has recently wedded itself in United States v. Leon, 468 U. S. 897, 906-908 (1984) — a methodology about which I have grave doubts, see id., at 930 (Brennan, J., dissenting); New Jersey v. T. L. O., 469 U. S. 325, 357-358 (1985) (Brennan, J., dissenting) — the question of the proper remedy for government illegality is a matter of judgment, a balance of the State’s interest in law enforcement and the citizen’s interest in protection from unreasonable official overreaching. See also United States v. Crews, suupra, at 474, n. 20. In most cases the incremental deterrent of invalidating a conviction as a result of an illegal arrest might not justify the added “interference with the public interest in having the guilty brought to book.” United States v. Blue, 384 U. S. 251, 255 (1966). In cases like the present one, however, an additional and countervailing public interest in ensuring the broad exercise of First Amendment freedoms must enter the calculus. For the consequences of illegal use of the power of arrest fall not only upon the specific victims of abuse of that power but also upon all those who, for fear of being subjected to official harassment, steer far wider of the forbidden zone than they otherwise would. Such a result would infringe not only the rights of those who would otherwise engage in such expression but also the rights of those who would otherwise receive such expression. The deterrent to protected expression that such a regime would work demands an effective remedy in the form of invalidation of obscenity convictions based on arrests unsupported by any prior judicial determination of probable cause. Such a rule finds its source in the commands of both the First and Fourth Amendments. See ibid. Cf. Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963). Opting for the contrary course, the Court today sanctions an end run around constitutional requirements carefully crafted to guard our liberty of expression.

I-H HH

The Court’s endorsement of the government’s abuse of the arrest power as a means to enforce norms of taste in written and visual forms of expression is disquieting in its own right because the consequence inevitably will be suppression of protected nonobscene expression. When one recognizes that the same official use of the power to search and seize sanctioned today in its application against the sexual nonconformist can be instantly turned against the political nonconformist, see Stanford v. Texas, 379 U. S. 476 (1965), this decision takes on a particularly ominous cast. These “stealthy encroachments” upon our liberties sanctioned in the State’s present effort to combat vice may become potent weapons in a future effort to shackle political dissenters and stifle their voices. In deciding cases such as this one, the Court would do well to remember that “[uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” Brinegar v. United States, 338 U. S. 160, 180 (1949) (Jackson, J., dissenting).

I dissent.

       Md. Ann. Code, Art. 27, §418 (1982).

         Boyd v. United States, 116 U. S. 616, 635 (1886).


author: Per Curiam.

text:
    JENSEN, DIRECTOR, DEPARTMENT OF MOTOR VEHICLES OF NEBRASKA, et al. v. QUARING
    No. 83-1944.
    Argued January 7, 1985
    Decided June 17, 1985

      Ruth Anne E. Gaiter, Assistant Attorney General of Nebraska, argued the cause for petitioners. With her on the brief was Paul L. Douglas, Attorney General.

      Thomas C. Lansworth argued the cause for respondent. With him on the brief were Burt Neubome and Charles S. Sims.

         Marc D. Stem and Ronald A. Krnuss filed a brief for the American Jewish Congress et al. as amici curiae urging affirmance.

        Solicitor General Lee, Deputy Solicitor General Getter, and Kathryn A. Oberly filed a brief for the United States as amicus curiae.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

Justice Powell took no part in the decision of this case.


author: Chief Justice Burger Justice Brennan,

text:
    McDONALD v. SMITH
    No. 84-476.
    Argued March 20, 1985
    Decided June 19, 1985

      Burger, C. J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the decision of the case. Brennan, J., filed a concurring opinion, in which Marshall and Blackmun, JJ., joined, post, p. 485.

      Bruce J. Ennis, Jr., argued the cause for petitioner. With him on the brief were Paul R. Friedman and Geoffrey P. Miller.

      William A. Eagles argued the cause for respondent. With him on the brief was B. F. Wood.

         Charles S. Sims filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether the Petition Clause of the First Amendment provides absolute immunity to a defendant charged with expressing libelous and damaging falsehoods in letters to the President of the United States.

I

In July 1981, respondent commenced a libel action against petitioner in state court under the common law of North Carolina. Respondent alleged that while he was being considered for the position of United States Attorney, petitioner wrote two letters to President Reagan. The complaint alleges that these letters “contained false, slanderous, libelous, inflammatory and derogatory statements” concerning respondent. App. 4-5. In particular, the complaint states that the letters falsely accused respondent of “violating the civil rights of various individuals while a Superior Court Judge,” “fraud and conspiracy to commit fraud,” “extortion or blackmail,” and “violations of professional ethics.” Id., at 5-6. Respondent alleged that petitioner knew that these accusations were false, and that petitioner maliciously intended to injure respondent by undermining his prospect of being appointed United States Attorney.

The complaint alleges that petitioner mailed copies of the letters to Presidential Adviser Edwin Meese, Senator Jesse Helms, Representative W. E. Johnston, and three other officials in the Executive and Legislative Branches. It further alleges that petitioner’s letters had their intended effect: respondent was not appointed United States Attorney, his reputation and career as an attorney were injured, and he “suffered humiliation, embarrassment, anxiety and mental anguish.” Id., at 6. Respondent sought compensatory and punitive damages of $1 million.

Petitioner removed the case to the United States District Court on the basis of diversity of citizenship. He then moved for judgment on the pleadings on the ground that the Petition Clause of the First Amendment provides absolute immunity. The District Court agreed with petitioner that his communications fell “within the general protection afforded by the petition clause,” 562 F. Supp. 829, 838-839 (MDNC 1983), but held that the Clause does not grant absolute immunity from liability for libel. The Fourth Circuit, relying on this Court’s decision in White v. Nicholls, 3 How. 266 (1845), affirmed. 737 F. 2d 427 (1984).

We granted certiorari, 469 U. S. 1032 (1984), and we affirm.

II

The First Amendment guarantees “the right of the people . . . to petition the Government for a redress of grievances.” The right to petition is cut from the same cloth as the other guarantees of that Amendment, and is an assurance of a particular freedom of expression. In United States v. Cruikshank, 92 U. S. 542 (1876), the Court declared that this right is implicit in “[t]he very idea of government, republican in form.” Id., at 552. And James Madison made clear in the congressional debate on the proposed amendment that people “may communicate their will” through direct petitions to the legislature and government officials. 1 Annals of Cong. 738 (1789).

The historical roots of the Petition Clause long antedate the Constitution. In 1689, the Bill of Rights exacted of William and Mary stated: “[I]t is the Right of the Subjects to petition the King.” 1 Wm. & Mary, Sess. 2, ch. 2. This idea reappeared in the Colonies when the Stamp Act Congress of 1765 included a right to petition the King and Parliament in its Declaration of Rights and Grievances. See 1 B. Schwartz, The Bill of Rights — A Documentary History 198 (1971). And the Declarations of Rights enacted by many state conventions contained a right to petition for redress of grievances. See, e. g., Pennsylvania Declaration of Rights (1776).

Although the values in the right of petition as an important aspect of self-government are beyond question, it does not follow that the Framers of the First Amendment believed that the Petition Clause provided absolute immunity from damages for libel. Early libel cases in state courts provide no clear evidence of the nature of the right to petition as it existed at the time the First Amendment was adopted; these cases reveal conflicting views of the privilege afforded expressions in petitions to government officials.

The plaintiff in the Vermont case of Harris v. Huntington, 2 Tyler 129 (1802), brought a libel action complaining of the defendant’s petition to the legislature that he not be reappointed as a justice of the peace. The court, based on its understanding of “the right of petitioning the supreme power,” granted the defendant’s request for an “absolute and unqualified immunity from all responsibility.” Id., at 139-140. This absolute position of the Vermont court reflected an early English view, but was not followed by the courts of other States. See, e. g., Commonwealth v. Clapp, 4 Mass. 163, 169 (1808). Indeed, Justice Yeates of the Supreme Court of Pennsylvania stated in Gray v. Pentland, 2 Serg. & R. 23 (1815), that

“an individual, who maliciously, wantonly, and without probable cause, asperses the character of a public officer in a written or printed paper, delivered to those who are invested with the power of removing him from office, is responsible to the party injured in damages, although such paper is masked under the specious cover of investigating the conduct of such officer for the general good. Public policy demands no such sacrifice of the rights of persons in an official capacity, nor will the law endure such a mockery of its justice.” Id., at 25 (emphasis in original).

In White v. Nicholls, supra, this Court dealt with the proper common-law privilege for petitions to the Government. The plaintiff in White brought a libel action based on letters written by Nicholls urging the President of the United States to remove the plaintiff from office as a customs inspector. The Court, after reviewing the common law, concluded that the defendant’s petition was actionable if prompted by “express malice,” which was defined as “falsehood and the absence of probable cause.” Id., at 291. Nothing presented to us suggests that the Court’s decision not to recognize an absolute privilege in 1845 should be altered; we are not prepared to conclude, 140 years later, that the Framers of the First Amendment understood the right to petition to include an unqualified right to express damaging falsehoods in exercise of that right.

Nor do the Court’s decisions interpreting the Petition Clause in contexts other than defamation indicate that the right to petition is absolute. For example, filing a complaint in court is a form of petitioning activity; but “baseless litigation is not immunized by the First Amendment right to petition.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U. S. 731, 743 (1983); accord, California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 513 (1972). Similarly, petitions to the President that contain intentional and reckless falsehoods “do not enjoy constitutional protection,’” Garrison v. Louisiana, 379 U. S. 64, 75 (1964), and may, as in White v. Nicholls, supra, be reached by the law of libel.

To accept petitioner’s claim of absolute immunity would elevate the Petition Clause to special First Amendment status. The Petition Clause, however, was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble. See Mine Workers v. Illinois Bar Assn., 389 U. S. 217, 222 (1967). These First Amendment rights are inseparable, Thomas v. Collins, 323 U. S. 516, 530 (1945), and there is no sound basis for granting greater constitutional protection to statements made in a petition to the President than other First Amendment expressions.

Ill

Under state common law, damages may be recovered only if petitioner is shown to have acted with malice; “malice” has been defined by the Court of Appeals of North Carolina, in terms that court considered consistent with New York Times Co. v. Sullivan, 376 U. S. 254 (1964), as “knowledge at the time that the words are false, or . . . without probable cause or without checking for truth by the means at hand.” Dellinger v. Belk, 34 N. C. App. 488, 490, 238 S. E. 2d 788, 789 (1977). We hold that the Petition Clause does not require the State to expand this privilege into an absolute one. The right to petition is guaranteed; the right to commit libel with impunity is not. The judgment of the Court of Appeals is therefore

Affirmed.

Justice Powell took no part in the decision of this case.

Justice Brennan,

with whom Justice Marshall and Justice Blackmun join,

concurring.

New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964), held that a public official may recover damages for a false statement concerning his official conduct only where the statement was “made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” This standard, explicitly directed toward protection of “freedom of speech and of the press,” id., at 264, reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” id., at 270.

The petitioner Robert McDonald contends that when a citizen communicates directly with Government officials about matters of public importance — here the qualifications of a candidate for United States Attorney — the First Amendment’s Petition Clause requires courts in defamation actions to accord an absolute privilege to such communications rather than the qualified privilege defined in New York Times. I fully agree with the Court that the Petition Clause imposes no such absolute privilege.

McDonald correctly notes that the right to petition the Government requires stringent protection. “The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.” United States v. Cruikshank, 92 U. S. 542, 552 (1876). The right to petition is “among the most precious of the liberties guaranteed by the Bill of Rights,” Mine Workers v. Illinois Bar Assn., 389 U. S. 217, 222 (1967), and except in the most extreme circumstances citizens cannot be punished for exercising this right “without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions,” De Jonge v. Oregon, 299 U. S. 353, 364 (1937). As with the freedoms of speech and press, exercise of the right to petition “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” and the occasionally “erroneous statement is inevitable.” New York Times Co. v. Sullivan, supra, at 270-271. The First Amendment requires that we extend substantial “‘breathing space’” to such expression, because a rule imposing liability whenever a statement was accidently or negligently incorrect would intolerably chill “would-be critics of official conduct. . . from voicing their criticism.” 376 U. S., at 272, 279.

We have not interpreted the First Amendment, however, as requiring protection of all statements concerning public officials.

“Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even to topple an administration. . . . That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .’ Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.” Garrison v. Louisiana, 379 U. S. 64, 75 (1964).

McDonald argues that, for two reasons, this qualification of the right vigorously to criticize public officials should not apply to expression falling within the scope of the Petition Clause. First, he contends that petitioning historically was accorded an absolute immunity and that the Framers included the Petition Clause in the First Amendment on this understanding. I agree with the Court that the evidence concerning 17th- and 18th-century British and colonial practice reveals, at most, “conflicting views of the privilege afforded expressions in petitions to government officials,” ante, at 483, and does not persuasively demonstrate the Framers’ intent to accord absolute immunity to petitioning.

Second, McDonald argues that criticism of public officials under the Petition Clause is functionally different from, and therefore entitled to greater protection than, criticism of officials falling within the protection of the First Amendment’s Speech and Press Clauses. Specifically, he contends that “[ujnlike the more general freedoms of speech and press, the right to petition was understood by the Framers of the Constitution and the First Amendment to be a necessary right of a self-governing people,” and that “when the citizen is not speaking to the public at large, but is directly exercising his right to petition, [he] is thus performing a self-governmental function.” Brief for Petitioner 7, 30 (emphasis added). Such a distinction is untenable. The Speech and Press Clauses, every bit as much as the Petition Clause, were included in the First Amendment to ensure the growth and preservation of democratic self-governance. A citizen who criticizes a public official is shielded by the Speech and Press Clauses because “[i]t is as much his duty to criticize as it is the official’s duty to administer.” New York Times Co. v. Sullivan, 376 U. S., at 282 (emphasis added). “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, supra, at 74-75.

The Framers envisioned the rights of speech, press, assembly, and petitioning as interrelated components of the public’s exercise of its sovereign authority. As Representative James Madison observed during the House of Representatives’ consideration of the First Amendment:

“The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government; the people may therefore publicly address their representatives, may privately advise them, or declare their sentiments by petition to the whole body; in all these ways they may communicate their will.” 1 Annals of Cong. 738 (1789) (emphasis added).

The Court previously has emphasized the essential unity of the First Amendment’s guarantees:

“It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. They are cognate rights, . . . and therefore are united in the First Article’s assurance.” Thomas v. Collins, 323 U. S. 516, 530 (1945).

And although we have not previously addressed the precise issue before us today, we have recurrently treated the right to petition similarly to, and frequently as overlapping with, the First Amendment’s other guarantees of free expression. See, e. g., NAACP v. Claiborne Hardware Co., 458 U. S. 886, 909-912, 915 (1982); Mine Workers v. Illinois Bar Assn., 389 U. S., at 221-222; Adderley v. Florida, 385 U. S. 39, 40-42 (1966); Edwards v. South Carolina, 372 U. S. 229, 234-235 (1963); NAACP v. Button, 371 U. S. 415, 429-431 (1963).

There is no persuasive reason for according greater or lesser protection to expression on matters of public importance depending on whether the expression consists of speaking to neighbors across the backyard fence, publishing an editorial in the local newspaper, or sending a letter to the President of the United States. It necessarily follows that expression falling within the scope of the Petition Clause, while fully protected by the actual-malice standard set forth in New York Times Co. v. Sullivan, is not shielded by an absolute privilege. I therefore join the Court’s opinion.

       The first letter, dated December 1, 1980, was written to Ronald Reagan as “President-Elect of the United States.” App. 8. The second letter was dated February 13, 1981, and directed to President Reagan. Id., at 14. Petitioner described himself as a “politically active American” who has owned and operated three child-care centers in North Carolina since 1970. Id., at 8.

       Copies of the December 1, 1980, letter were purportedly sent to Representatives Jack Kemp and Barry Goldwater, Jr. The Director of the Federal Bureau of Investigation, William Webster, allegedly received a copy of the letter dated February 13, 1981.

       Because petitioner raised a “serious and unsettled question” concerning absolute immunity, 737 F. 2d, at 428, the Court of Appeals accepted jurisdiction under the “collateral order” doctrine. See Nixon v. Fitzgerald, 457 U. S. 731, 742-743 (1982). Given the preliminary nature of this petition for certiorari, we do not address petitioner’s request for attorney’s fees should he ultimately prevail.

       See Lake v. King, 1 Wms. Saund. 131, 85 Eng. Rep. 137 (K. B. 1680). In White v. Nicholls, 3 How. 266, 289 (1845), this Court described Lake v. King as a “seemingly anomalous decision.”

       Basie aspects of the right to petition were under attack in England in the 1790’s. In response to an assembly of 150,000 persons petitioning for various reforms, Parliament outlawed public meetings of more than 50 persons held to petition the King, “except in the presence of a magistrate with authority to arrest everybody present.” I. Brant, The Bill of Rights 245 (1965).

       To safeguard the First Amendment’s values, “defeasance of the privilege” set forth in New York Times “is conditioned, not on mere negligence, but on reckless disregard for the truth.” Garrison v. Louisiana, 379 U. S. 64, 79 (1964).

       For purposes of applying an absolute immunity in the Petition Clause context, McDonald suggests that we need consider only those expressions that “touc[h] on” and are “relevant to” the official conduct of public servants, and that are “contained in a private petition to federal officials who [have] authority to take responsive actions.” Brief for Petitioner 7, and n. 7. The Court long ago concluded, however, that the Petition Clause embraces a much broader range of communications addressed to the executive, the legislature, courts, and administrative agencies. See, e. g., Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U. S. 731, 741 (1983); California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972). It also includes such activities as peaceful protest demonstrations. See, e. g., NAACP v. Claiborne Hardware Co., 458 U. S. 886, 909-912 (1982); Edwards v. South Carolina, 372 U. S. 229, 235 (1963). Expression falling within the Petition Clause will thus frequently also be protected by the First Amendment freedoms of speech, press, and assembly. See also Adderley v. Florida, 385 U. S. 39, 49-51 (1966) (Douglas, J., dissenting).

       Thus the advertisement at issue in New York Times, every bit as much as the letter to President Reagan at issue here, “communicated information, expressed opinion, recited grievances, [and] protested claimed abuses” — expression essential ‘“to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means.’” New York Times Co. v. Sullivan, 376 U. S., at 266, 269.