source: Caselaw Access Project

author: Justice Rehnquist Justice Brennan,

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text:
    CITY OF RENTON et al. v. PLAYTIME THEATRES, INC., et al.
    No. 84-1360.
    Argued November 12, 1985
    Decided February 25, 1986

      Rehnquist, J., delivered the opinion of the Court, in which BURGER, C. J., and White, Powell, Stevens, and O’ConnoR, JJ., joined. Blackmun, J., concurred in the result. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 55.

      E. Barrett Prettyman, Jr., argued the cause for appellants. With him on the briefs were David W. Burgett, Lawrence J. Warren, Daniel Kellogg, Mark E. Barber, and Zanetta L. Fontes.

      Jack R. Bums argued the cause for appellees. With him on the briefs was Robert E. Smith.

      Briefs of amici curiae urging reversal were filed for Jackson County, Missouri, by Russell D. Jacobson; for the Freedom Council Foundation by Wendell R. Bird and Robert K. Skolrood; for the National Institute of Municipal Law Officers by George Agnost, Roy D. Bates, Benjamin L. Brown, J. Lamar Shelley, John W. Witt, Roger F. Cutler, Robert J. Alfton, James K. Baker, Barbara Mather, James D. Montgomery,' Clifford D. Pierce, Jr., William H. Taube, William I. Thornton, Jr., and Charles S. Rhyne; and for the National League of Cities et al. by Benna

        Ruth Solomon, Joyce Holmes Benjamin, Beate Bloch, and Lawrence R. Velvel.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by David Utevsky, Jack D. Novik, and Burt Neubome; and for the American Booksellers Association, Inc., et al. by Michael A. Bamberger.

        Eric M. Rubin and Walter E. Diercks filed a brief for the Outdoor Advertising Association of America, Inc., et al. as amici curiae.

   Justice Rehnquist

delivered the opinion of the Court.

This case involves a constitutional challenge to a zoning ordinance, enacted by appellant city of Renton, Washington, that prohibits adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Appellees, Playtime Theatres, Inc., and Sea-First Properties, Inc., filed an action in the United States District Court for the Western District of Washington seeking a declaratory judgment that the Renton ordinance violated the First and Fourteenth Amendments and a permanent injunction against its enforcement. The District Court ruled in favor of Renton and denied the permanent injunction, but the Court of Appeals for the Ninth Circuit reversed and remanded for reconsideration. 748 F. 2d 527 (1984). We noted probable jurisdiction, 471 U. S. 1013 (1985), and now reverse the judgment of the Ninth Circuit.

In May 1980, the Mayor of Renton, a city of approximately 32,000 people located just south of Seattle, suggested to the Renton City Council that it consider the advisability of enacting zoning legislation dealing with adult entertainment uses. No such uses existed in the city at that time. Upon the Mayor’s suggestion, the City Council referred the matter to the city’s Planning and Development Committee. The Committee held public hearings, reviewed the experiences of Seattle and other cities, and received a report from the City Attorney’s Office advising as to developments in other cities. The City Council, meanwhile, adopted Resolution No. 2368, which imposed a moratorium on the licensing of “any business . . . which . . . has as its primary purpose the selling, renting or showing of sexually explicit materials.” App. 43. The resolution contained a clause explaining that such businesses “would have a severe impact upon surrounding businesses and residences.” Id., at 42.

In April 1981, acting on the basis of the Planning and Development Committee’s recommendation, the City Council enacted Ordinance No. 3526. The ordinance prohibited any “adult motion picture theater” from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, or park, and within one mile of any school. App. to Juris. Statement 79a. The term “adult motion picture theater” was defined as “[a]n enclosed building used for presenting motion picture films, video cassettes, cable television, or any other such visual media, distinguished or characterized] by an emphasis on matter depicting, describing or relating to ‘specified sexual activities’ or ‘specified anatomical areas’. . . for observation by patrons therein.” Id., at 78a.

In early 1982, respondents acquired two existing theaters in downtown Renton, with the intention of using them to exhibit feature-length adult films. The theaters were located within the area proscribed by Ordinance No. 3526. At about the same time, respondents filed the previously mentioned lawsuit challenging the ordinance on First and Fourteenth Amendment grounds, and seeking declaratory and injunctive relief. While the federal action was pending, the City Council amended the ordinance in several respects, adding a statement of reasons for its enactment and reducing the minimum distance from any school to 1,000 feet.

In November 1982, the Federal Magistrate to whom respondents’ action had been referred recommended the entry of a preliminary injunction against enforcement of the Renton ordinance and the denial of Renton’s motions to dismiss and for summary judgment. The District Court adopted the Magistrate’s recommendations and entered the preliminary injunction, and respondents began showing adult films at their two theaters in Renton. Shortly thereafter, the parties agreed to submit the case for a final decision on whether a permanent injunction should issue on the basis of the record as already developed.

The District Court then vacated the preliminary injunction, denied respondents’ requested permanent injunction, and entered summary judgment in favor of Renton. The court found that the Renton ordinance did not substantially restrict First Amendment interests, that Renton was not required to show specific adverse impact on Renton from the operation of adult theaters but could rely on the experiences of other cities, that the purposes of the ordinance were unrelated to the suppression of speech, and that the restrictions on speech imposed by the ordinance were no greater than necessary to further the governmental interests involved. Relying on Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), and United States v. O’Brien, 391 U. S. 367 (1968), the court held that the Renton ordinance did not violate the First Amendment.

The Court of Appeals for the Ninth Circuit reversed. The Court of Appeals first concluded, contrary to the finding of the District Court, that the Renton ordinance constituted a substantial restriction on First Amendment interests. Then, using the standards set forth in United States v. O’Brien, supra, the Court of Appeals held that Renton had improperly relied on the experiences of other cities in lieu of evidence about the effects of adult theaters on Renton, that Renton had thus failed to establish adequately the existence of a substantial governmental interest in support of its ordinance, and that in any event Renton’s asserted interests had not been shown to be unrelated to the suppression of expression. The Court of Appeals remanded the case to the District Court for reconsideration of Renton’s asserted interests.

In our view, the resolution of this case is largely dictated by our decision in Young v. American Mini Theatres, Inc., supra. There, although five Members of the Court did not agree on a single rationale for the decision, we held that the city of Detroit’s zoning ordinance, which prohibited locating an adult theater within 1,000 feet of any two other “regulated uses” or within 500 feet of any residential zone, did not violate the First and Fourteenth Amendments. Id., at 72-73 (plurality opinion of Stevens, J., joined by Burger, C. J., and White and Rehnquist, JJ.); id., at 84 (Powell, J., concurring). The Renton ordinance, like the one in American Mini Theatres, does not ban adult theaters altogether, but merely provides that such theaters may not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. The ordinance is therefore properly analyzed as a form of time, place, and manner regulation. Id., at 63, and n. 18; id., at 78-79 (Powell, J., concurring).

Describing the ordinance as a time, place, and manner regulation is, of course, only the first step in our inquiry. This Court has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment. See Carey v. Brown, 447 U. S. 455, 462-463, and n. 7 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95, 98-99 (1972). On the other hand, so-called “content-neutral” time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. See Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984); City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 807 (1984); Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 647-648 (1981).

At first glance, the Renton ordinance, like the ordinance in American Mini Theatres, does not appear to fit neatly into either the “content-based” or the “content-neutral” category. To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, as the District Court concluded, the Renton ordinance is aimed not at the content of the films shown at “adult motion picture theatres,” but rather at the secondary effects of such theaters on the surrounding community. The District Court found that the City Council’s “predominate concerns” were with the secondary effects of adult theaters, and not with the content of adult films themselves. App. to Juris. Statement 31a (emphasis added). But the Court of Appeals, relying on its decision in Tovar v. Billmeyer, 721 F. 2d 1260, 1266 (CA9 1983), held that this was not enough to sustain the ordinance. According to the Court of Appeals, if “a motivating factor” in enacting the ordinance was to restrict respondents’ exercise of First Amendment rights the ordinance would be invalid, apparently no matter how small a part this motivating factor may have played in the City Council’s decision. 748 F. 2d, at 537 (emphasis in original). This view of the law was rejected in United States v. O’Brien, 391 U. S., at 382-386, the very case that the Court of Appeals said it was applying:

“It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit, legislative motive. . . .
. . What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.” Id., at 383-384.

The District Court’s finding as to “predominate” intent, left undisturbed by the Court of Appeals, is more than adequate to establish that the city’s pursuit of its zoning interests here was unrelated to the suppression of free expression. The ordinance by its terms is designed to prevent crime, protect the city’s retail trade, maintain property values, and generally “protec[t] and preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life,” not to suppress the expression of unpopular views. See App. to Juris. Statement 90a. As Justice Powell observed in American Mini Theatres, “[i]f [the city] had been concerned with restricting the message purveyed by adult theaters, it would have tried to close them or restrict their number rather than circumscribe their choice as to location.” 427 U. S., at 82, n. 4.

In short, the Renton ordinance is completely consistent with our definition of “content-neutral” speech regulations as those that “are justified without reference to the content of the regulated speech.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) (emphasis added); Community for Creative Non-Violence, supra, at 293; International Society for Krishna Consciousness, supra, at 648. The ordinance does not contravene the fundamental principle that underlies our concern about “content-based” speech regulations: that “government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” Mosley, supra, at 95-96.

It was with this understanding in mind that, in American Mini Theatres, a majority of this Court decided that, at least with respect to businesses that purvey sexually explicit materials, zoning ordinances designed to combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to “content-neutral” time, place, and manner regulations. Justice Stevens, writing for the plurality, concluded that the city of Detroit was entitled to draw a distinction between adult theaters and other kinds of theaters “without violating the government’s paramount obligation of neutrality in its regulation of protected communication,” 427 U. S., at 70, noting that “[i]t is th[e] secondary effect which these zoning ordinances attempt to avoid, not the dissemination of ‘offensive’ speech,” id., at 71, n. 34. Justice Powell, in concurrence, elaborated:

“[The] dissent misconceives the issue in this case by insisting that it involves an impermissible time, place, and manner restriction based on the content of expression. It involves nothing of the kind. We have here merely a decision by the city to treat certain movie theaters differently because they have markedly different effects upon their surroundings. . . . Moreover, even if this were a case involving a special governmental response to the content of one type of movie, it is possible that the result would be supported by a line of cases recognizing that the government can tailor its reaction to different types of speech according to the degree to which its special and overriding interests are implicated. See, e. g., Tinker v. Des Moines School Dist., 393 U. S. 503, 509-511 (1969); Procunier v. Martinez, 416 U. S. 396, 413-414 (1974); Greer v. Spock, 424 U. S. 828, 842-844 (1976) (Powell, J., concurring); cf. CSC v. Letter Carriers, 413 U. S. 548 (1973).” Id., at 82, n. 6.

The appropriate inquiry in this case, then, is whether the Renton ordinance is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication. See Community for Creative Non-Violence, 468 U. S., at 293; International Society for Krishna Consciousness, 452 U. S., at 649, 654. It is clear that the ordinance meets such a standard. As a majority of this Court recognized in American Mini Theatres, a city’s “interest in attempting to preserve the quality of urban life is one that must be accorded high respect.” 427 U. S., at 71 (plurality opinion); see id., at 80 (Powell, J., concurring) (“Nor is there doubt that the interests furthered by this ordinance are both important and substantial”). Exactly the same vital governmental interests are at stake here.

The Court of Appeals ruled, however, that because the Renton ordinance was enacted without the benefit of studies specifically relating to “the particular problems or needs of Renton,” the city’s justifications for the ordinance were “con-clusory and speculative.” 748 F. 2d, at 537. We think the Court of Appeals imposed on the city an unnecessarily rigid burden of proof. The record in this case reveals that Renton relied heavily on the experience of, and studies produced by, the city of Seattle. In Seattle, as in Renton, the adult theater zoning ordinance was aimed at preventing the secondary effects caused by the presence of even one such theater in a given neighborhood. See Northend Cinema, Inc. v. Seattle, 90 Wash. 2d 709, 585 P. 2d 1153 (1978). The opinion of the Supreme Court of Washington in Northend Cinema, which was before the Renton City Council when it enacted the ordinance in question here, described Seattle’s experience as follows:

“The amendments to the City’s zoning code which are at issue here are the culmination of a long period of study and discussion of the problems of adult movie theaters in residential areas of the City. . . . [T]he City’s Department of Community Development made a study of the need for zoning controls of adult theaters .... The study analyzed the City’s zoning scheme, comprehensive plan, and land uses around existing adult motion picture theaters. . . .” Id., at 711, 585 P. 2d, at 1155.
“[T]he [trial] court heard extensive testimony regarding the history and purpose of these ordinances. It heard expert testimony on the adverse effects of the presence of adult motion picture theaters on neighborhood children and community improvement efforts. The court’s detailed findings, which include a finding that the location of adult theaters has a harmful effect on the area and contribute to neighborhood blight, are supported by substantial evidence in the record.” Id., at 713, 585 P. 2d, at 1156.
“The record is replete with testimony regarding the effects of adult movie theater locations on residential neighborhoods.” Id., at 719, 585 P. 2d, at 1159.

We hold that Renton was entitled to rely on the experiences of Seattle and other cities, and in particular on the “detailed findings” summarized in the Washington Supreme Court’s Northend Cinema opinion, in enacting its adult theater zoning ordinance. The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. That was the case here. Nor is our holding affected by the fact that Seattle ultimately chose a different method of adult theater zoning than that chosen by Renton, since Seattle’s choice of a different remedy to combat the secondary effects of adult theaters does not call into question either Seattle’s identification of those secondary effects or the relevance of Seattle’s experience to Renton.

We also find no constitutional defect in the method chosen by Renton to further its substantial interests. Cities may regulate adult theaters by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton. “It is not our function to appraise the wisdom of [the city’s] decision to require adult theaters to be separated rather than concentrated in the same areas. . . . [T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” American Mini Theatres, 427 U. S., at 71 (plurality opinion). Moreover, the Renton ordinance is “narrowly tailored” to affect only that category of theaters shown to produce the unwanted secondary effects, thus avoiding the flaw that proved fatal to the regulations in Schad v. Mount Ephraim, 452 U. S. 61 (1981), and Erznoznik, v. City of Jacksonville, 422 U. S. 205 (1975).

Respondents contend that the Renton ordinance is “under-inclusive,” in that it fails to regulate other kinds of adult businesses that are likely to produce secondary effects similar to those produced by adult theaters. On this record the contention must fail. There is no evidence that, at the time the Renton ordinance was enacted, any other adult business was located in, or was contemplating moving into, Renton. In fact, Resolution No. 2368, enacted in October 1980, states that “the City of Renton does not, at the present time, have any business whose primary purpose is the sale, rental, or showing of sexually explicit materials.” App. 42. That Renton chose first to address the potential problems created by one particular kind of adult business in no way suggests that the city has “singled out” adult theaters for discriminatory treatment. We simply have no basis on this record for assuming that Renton will not, in the future, amend its ordinance to include other kinds of adult businesses that have been shown to produce the same kinds of secondary effects as adult theaters. See Williamson v. Lee Optical Co., 348 U. S. 483, 488-489 (1955).

Finally, turning to the question whether the Renton ordinance allows for reasonable alternative avenues of communication, we note that the ordinance leaves some 520 acres, or more than five percent of the entire land area of Renton, open to use as adult theater sites. The District Court found, and the Court of Appeals did not dispute the finding, that the 520 acres of land consists of “[a]mple, accessible real estate,” including “acreage in all stages of development from raw land to developed, industrial, warehouse, office, and shopping space that is criss-crossed by freeways, highways, and roads.” App. to Juris. Statement 28a.

Respondents argue, however, that some of the land in question is already occupied by existing businesses, that “practically none” of the undeveloped land is currently for sale or lease, and that in general there are no “commercially viable” adult theater sites within the 520 acres left open by the Renton ordinance. Brief for Appellees 34-37. The Court of Appeals accepted these arguments, concluded that the 520 acres was not truly “available” land, and therefore held that the Renton ordinance “would result in a substantial restriction” on speech. 748 F. 2d, at 534.

We disagree with both the reasoning and the conclusion of the Court of Appeals. That respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation. And although we have cautioned against the enactment of zoning regulations that have “the effect of suppressing, or greatly restricting access to, lawful speech,” American Mini Theatres, 427 U. S., at 71, n. 35 (plurality opinion), we have never suggested that the First Amendment compels the Government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices. See id., at 78 (Powell, J., concurring) (“The inquiry for First Amendment purposes is not concerned with economic impact”). In our view, the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city, and the ordinance before us easily meets this requirement.

In sum, we find that the Renton ordinance represents a valid governmental response to the “admittedly serious problems” created by adult theaters. See id., at 71 (plurality opinion). Renton has not used “the power to zone as a pretext for suppressing expression,” id., at 84 (Powell, J., concurring), but rather has sought to make some areas available for adult theaters and their patrons, while at the same time preserving the quality of life in the community at large by preventing those theaters from locating in other areas. This, after all, is the essence of zoning. Here, as in American Mini Theatres, the city has enacted a zoning ordinance that meets these goals while also satisfying the dictates of the First Amendment. The judgment of the Court of Appeals is therefore

Reversed.

Justice Blackmun concurs in the result.

Justice Brennan,

with whom Justice Marshall joins, dissenting.

Renton’s zoning ordinance selectively imposes limitations on the location of á movie theater based exclusively on the content of the films shown there. The constitutionality of the ordinance is therefore not correctly analyzed under standards applied to content-neutral time, place, and manner restrictions. But even assuming that the ordinance may fairly be characterized as content neutral, it is plainly unconstitutional under the standards established by the decisions of this Court. Although the Court’s analysis is limited to cases involving “businesses that purvey sexually explicit materials,” ante, at 49, and n. 2, and thus does not affect our holdings in cases involving state regulation of other kinds of speech, I dissent.

I

“[A] constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech.” Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S. 530, 536 (1980). The Court asserts that the ordinance is “aimed not at the content of the films shown at ‘adult motion picture theatres,’ but rather at the secondary effects of such theaters on the surrounding community,” ante, at 47 (emphasis in original), and thus is simply a time, place, and manner regulation. This analysis is misguided.

The fact that adult movie theaters may cause harmful “secondary” land-use effects may arguably give Renton a compelling reason to regulate such establishments; it does not mean, however, that such regulations are content neutral. Because the ordinance imposes special restrictions on certain kinds of speech on the basis of content, I cannot simply accept, as the Court does, Renton’s claim that the ordinance was not designed to suppress the content of adult movies. “[W]hen regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited ‘merely because public officials disapprove the speaker’s views.’” Consolidated Edison Co., supra, at 536 (quoting Niemotko v. Maryland, 340 U. S. 268, 282 (1951) (Frankfurter, J., concurring in result)). “[B]efore deferring to [Renton’s] judgment, [we] must be convinced that the city is seriously and comprehensively addressing” secondary land-use effects associated with adult movie theaters. Metromedia, Inc. v. San Diego, 453 U. S. 490, 531 (1981) (Brennan, J., concurring in judgment). In this case, both the language of the ordinance and its dubious legislative history belie the Court’s conclusion that “the city’s pursuit of its zoning interests here was unrelated to the suppression of free expression.” Ante, at 48.

A

The ordinance discriminates on its face against certain forms of speech based on content. Movie theaters specializing in “adult motion pictures” may not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Other motion picture theaters, and other forms of “adult entertainment,” such as bars, massage parlors, and adult bookstores, are not subject to the same restrictions. This selective treatment strongly suggests that Renton was interested not in controlling the “secondary effects” associated with adult businesses, but in discriminating against adult theaters based on the content of the films they exhibit. The Court ignores this discriminatory treatment, declaring that Renton is free “to address the potential problems created by one particular kind of adult business,” ante, at 52-53, and to amend the ordinance in the future to include other adult enterprises. Ante, at 53 (citing Williamson v. Lee Optical Co., 348 U. S. 483, 488-489 (1955)). However, because of the First Amendment interests at stake here, this one-step-at-a-time analysis is wholly inappropriate.

“This Court frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it. See e. g., Williamson v. Lee Optical Co., 348 U. S. 483, 488-489 (1955). This presumption of statutory validity, however, has less force when a classification turns on the subject matter of expression. ‘[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.” Erznoznik v. City of Jacksonville, 422 U. S. 205, 215 (1975).

In this case, the city has not justified treating adult movie theaters differently from other adult entertainment businesses. The ordinance’s under inclusiveness is cogent evidence that it was aimed at the content of the films shown in adult movie theaters.

B

Shortly after this lawsuit commenced, the Renton City Council amended the ordinance, adding a provision explaining that its intention in adopting the ordinance had been “to promote the City of Renton’s great interest in protecting and preserving the quality of its neighborhoods, commercial districts, and the quality of urban life through effective land use planning.” App. to Juris. Statement 81a. The amended ordinance also lists certain conclusory “findings” concerning adult entertainment land uses that the Council purportedly relied upon in adopting the ordinance. Id., at 81a-86a. The city points to these provisions as evidence that the ordinance was designed to control the secondary effects associated with adult movie theaters, rather than to suppress the content of the films they exhibit. However, the “legislative history” of the ordinance strongly suggests otherwise.

Prior to the amendment, there was no indication that the ordinance was designed to address any “secondary effects” a single adult theater might create. In addition to the suspiciously coincidental timing of the amendment, many of the City Council’s “findings” do not relate to legitimate land-use concerns. As the Court of Appeals observed, “[b]oth the magistrate and the district court recognized that many of the stated reasons for the ordinance were no more than expressions of dislike for the subject matter.” 748 F. 2d 527, 537 (CA9 1984). That some residents may be offended by the content of the films shown at adult movie theaters cannot form the basis for state regulation of speech. See Terminiello v. Chicago, 337 U. S. 1 (1949).

Some of the “findings” added by the City Council do relate to supposed “secondary effects” associated with adult movie theaters. However, the Court cannot, as it does, merely accept these post hoc statements at face value. “[T]he presumption of validity that traditionally attends a local government’s exercise of its zoning powers carries little, if any, weight where the zoning regulation trenches on rights of expression protected under the First Amendment.” Schad v. Mount Ephraim, 452 U. S. 61, 77 (1981) (Blackmun, J., concurring). As the Court of Appeals concluded, “[t]he record presented by Renton to support its asserted interest in enacting the zoning ordinance is very thin.” 748 F. 2d, at 536.

The amended ordinance states that its “findings” summarize testimony received by the City Council at certain public hearings. While none of this testimony was ever recorded or preserved, a city official reported that residents had objected to having adult movie theaters located in their community. However, the official was unable to recount any testimony as to how adult movie theaters would specifically affect the schools, churches, parks, or residences “protected” by the ordinance. See App. 190-192. The City Council conducted no studies, and heard no expert testimony, on how the protected uses would be affected by the presence of an adult movie theater, and never considered whether residents’ concerns could be met by “restrictions that are less intrusive on protected forms of expression.” Schad, supra, at 74. As a result, any “findings” regarding “secondary effects” caused by adult movie theaters, or the need to adopt specific locational requirements to combat such effects, were not “findings!’ at all, but purely speculative conclusions. Such “findings” were not such as are required to justify the burdens the ordinance imposed upon constitutionally protected expression.

The Court holds that Renton was entitled to rely on the experiences of cities like Detroit and Seattle, which had enacted special zoning regulations for adult entertainment businesses after studying the adverse effects caused by such establishments. However, even assuming that Renton was concerned with the same problems as Seattle and Detroit, it never actually reviewed any of the studies conducted by those cities. Renton had no basis for determining if any of the “findings” made by these cities were relevant to Renton’s problems or needs. Moreover, since Renton ultimately adopted zoning regulations different from either Detroit or Seattle, these “studies” provide no basis for assessing the effectiveness of the particular restrictions adopted under the ordinance. Renton cannot merely rely on the general experiences of Seattle or Detroit, for it must “justify its ordinance in the context of Renton’s problems — not Seattle’s or Detroit’s problems.” 748 F. 2d, at 536 (emphasis in original).

In sum, the circumstances here strongly suggest that the ordinance was designed to suppress expression, even that constitutionally protected, and thus was not to be analyzed as a content-neutral time, place, and manner restriction. The Court allows Renton to conceal its illicit motives, however, by reliance on the fact that other communities adopted similar restrictions. The Court’s approach largely immunizes such measures from judicial scrutiny, since a municipality can readily find other municipal ordinances to rely upon, thus always retrospectively justifying special zoning regulations for adult theaters. Rather than speculate about Renton’s motives for adopting such measures, our cases require the conclusion that the ordinance, like any other content-based restriction on speech, is constitutional “only if the [city] can show that [it] is a precisely drawn means of serving a compelling [governmental] interest.” Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S., at 540; see also Carey v. Brown, 447 U. S. 455, 461-462 (1980); Police Department of Chicago v. Mosley, 408 U. S. 92, 99 (1972). Only this strict approach can insure that cities will not use their zoning powers as a pretext for suppressing constitutionally protected expression.

Applying this standard to the facts of this case, the ordinance is patently unconstitutional. Renton has not shown that locating adult movie theaters in proximity to its churches, schools, parks, and residences will necessarily result in undesirable “secondary effects,” or that these problems could not be effectively addressed by less intrusive restrictions.

I — I HH

Even assuming that the ordinance should be treated like a content-neutral time, place, and manner restriction, I would still find it unconstitutional. “[Restrictions of this kind are valid provided . . . that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984); Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 648 (1981). In applying this standard, the Court “fails to subject the alleged interests of the [city] to the degree of scrutiny required to ensure that expressive activity protected by the First Amendment remains free of unnecessary limitations.” Community for Creative Non-Violence, 468 U. S., at 301 (Marshall, J., dissenting). The Court “evidently [and wrongly] assumes that the balance struck by [Renton] officials is deserving of deference so long as it does not appear to be tainted by content discrimination.” Id., at 315. Under a proper application of the relevant standards, the ordinance is clearly unconstitutional.

A

The Court finds that the ordinance was designed to further Renton’s substantial interest in “preserving] the quality of urban life.” Ante, at 50. As explained above, the record here is simply insufficient to support this assertion. The city made no showing as to how uses “protected” by the ordinance would be affected by the presence of an adult movie theater. Thus, the Renton ordinance is clearly distinguishable from the Detroit zoning ordinance upheld in Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976). The Detroit ordinance, which was designed to disperse adult theaters throughout the city, was supported by the testimony of urban planners and real estate experts regarding the adverse effects of locating several such businesses in the same neighborhood. Id., at 55; see also Northend Cinema, Inc. v. Seattle, 90 Wash. 2d 709, 711, 585 P. 2d 1153, 1154-1155 (1978), cert. denied sub nom. Apple Theatre, Inc. v. Seattle, 441 U. S. 946 (1979) (Seattle zoning ordinance was the “culmination of a long period of study and discussion”). Here, the Renton Council was aware only that some residents had complained about adult movie theaters, and that other localities had adopted special zoning restrictions for such establishments. These are not “facts” sufficient to justify the burdens the ordinance imposed upon constitutionally protected expression.

B

Finally, the ordinance is invalid because it does not provide for reasonable alternative avenues of communication. The District Court found that the ordinance left 520 acres in Ren-ton available for adult theater sites, an area comprising about five percent of the city. However, the Court of Appeals found that because much of this land was already occupied, “[limiting adult theater uses to these areas is a substantial restriction on speech.” 748 F. 2d, at 534. Many “available” sites are also largely unsuited for use by movie theaters. See App. 231, 241. Again, these facts serve to distinguish this case from American Mini Theatres, where there was no indication that the Detroit zoning ordinance seriously limited the locations available for adult businesses. See American Mini Theatres, supra, at 71, n. 35 (plurality opinion) (“The situation would be quite different if the ordinance had the effect of. . . greatly restricting access to . . . lawful speech”); see also Basiardanes v. City of Galveston, 682 F. 2d 1203, 1214 (CA5 1982) (ordinance effectively banned adult theaters by restricting them to “ ‘the most unattractive, inaccessible, and inconvenient areas of a city’”); Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207, 1217 (ND Ga. 1981) (proposed sites for adult entertainment uses were either “unavailable, unusable, or so inaccessible to the public that . . . they amount to no locations”).

Despite the evidence in the record, the Court reasons that the fact “[t]hat respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation.” Ante, at 54. However, respondents are not on equal footing with other prospective purchasers and lessees, but must conduct business under severe restrictions not imposed upon other establishments. The Court also argues that the First Amendment does not compel “the government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices.” Ibid. However, respondents do not ask Renton to guarantee low-price sites for their businesses, but seek only a reasonable opportunity to operate adult theaters in the city. By denying them this opportunity, Renton can effectively ban a form of protected speech from its borders. The ordinance “greatly restrict[s] access to . . . lawful speech,” American Mini Theatres, supra, at 71, n. 35 (plurality opinion), and is plainly unconstitutional.

       This appeal was taken under 28 U. S. C. § 1254(2), which provides this Court with appellate jurisdiction at the behest of a party relying on a state statute or local ordinance held unconstitutional by a court of appeals. As we have previously noted, there is some question whether jurisdiction under § 1254(2) is available to review a nonfinal judgment. See South Carolina Electric & Gas Co. v. Flemming, 351 U. S. 901 (1956); Slaker v. O’Connor, 278 U. S. 188 (1929). But see Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 82-83 (1958).
      The present appeal seeks review of a judgment remanding the case to the District Court. We need not resolve whether this appeal is proper under § 1254(2), however, because in any event we have certiorari jurisdiction under 28 U. S. C. § 2103. As we have previously done in equivalent situations, see El Paso v. Simmons, 379 U. S. 497, 502-503 (1965); Doran v. Salem Inn, Inc., 422 U. S. 922, 927 (1975), we dismiss the appeal and, treating the papers as a petition for certiorari, grant the writ of cer-tiorari. Henceforth, we shall refer to the parties as “petitioners” and “respondents.”

       See American Mini Theatres, 427 U. S., at 70 (plurality opinion) (“[I]t is manifest that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate . . .”).

       The Court of Appeals’ rejection of the District Court’s findings on this issue may have stemmed in part from the belief, expressed elsewhere in the Court of Appeals’ opinion, that, under Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 (1984), appellate courts have a duty to review de novo all mixed findings of law and fact relevant to the application of First Amendment principles. See 748 F. 2d 527, 535 (1984). We need not review the correctness of the Court of Appeals’ interpretation of Bose Corp., since we determine that, under any standard of review, the District Court’s findings should not have been disturbed.

         Respondents argue, as an “alternative basis” for affirming the decision of the Court of Appeals, that the Renton ordinance violates their rights under the Equal Protection Clause of the Fourteenth Amendment. As should be apparent from our preceding discussion, respondents can fare no better under the Equal Protection Clause than under the First Amendment itself. See Young v. American Mini Theatres, Inc., 427 U. S., at 63-73.
      Respondents also argue that the Renton ordinance is unconstitutionally vague. More particularly, respondents challenge the ordinance’s application to buildings “used” for presenting sexually explicit films, where the term “used” describes “a continuing course of conduct of exhibiting [sexually explicit films] in a manner which appeals to a prurient interest. ” App. to Juris. Statement 96a. We reject respondents’ “vagueness” argument for the Same reasons that led us to reject a similar challenge in American Mini Theatres, supra. There, the Detroit ordinance applied to theaters “used to present material distinguished or characterized by an emphasis on [sexually explicit matter].” Id., at 53. We held that “even if there may be some uncertainty about the effect of the ordinances on other litigants, they are unquestionably applicable to these respondents.” Id., at 58-59. We also held that the Detroit ordinance created no “significant deterrent effect” that might justify invocation of the First Amendment “over-breadth” doctrine. Id., at 59-61.

       The Court apparently finds comfort in the fact that the ordinance does not “deny use to those wishing to express less favored or more controversial views.” Ante, at 48-49. However, content-based discrimination is not rendered “any less odious” because it distinguishes “among entire classes of ideas, rather than among points of view within a particular class.” Lehman v. City of Shaker Heights, 418 U. S. 298, 316 (1974) (BRENNAN, J., dissenting); see also Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S. 530, 537 (1980) (“The 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”). Moreover, the Court’s conclusion that the restrictions imposed here were viewpoint neutral is patently flawed. “As a practical matter, the speech suppressed by restrictions such as those involved [here] will almost invariably carry an implicit, if not explicit, message in favor of more relaxed sexual mores. Such restrictions, in other words, have a potent viewpoint-differential impact. ... To treat such restrictions as viewpoint-neutral seems simply to ignore reality.” Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81, 111-112 (1978).

       The Court also explains that “[t]here is no evidence that, at the time the Renton ordinance was enacted, any other adult business was located in, or was contemplating moving into, Renton.” Ante, at 52. However, at the time the ordinance was enacted, there was no evidence that any adult movie theaters were located in, or considering moving to, Renton. Thus, there was no legitimate reason for the city to treat adult movie theaters differently from other adult businesses.

       For example, “finding” number 2 states that
      “[l]ocation of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of legitimacy to, and causes a loss of sensitivity to the adverse effect of pornography upon children, established family relations, respect for marital relationship and for the sanctity of marriage relations of others, and the concept of non-aggressive, consensual sexual relations.” App. to Juris. Statement 86a.
      “Finding” number 6 states that
      “[l]ocation of adult land uses in close proximity to residential uses, churches, parks, and other public facilities, and schools, will cause a degradation of the community standard of morality. Pornographic material has a degrading effect upon the relationship between spouses.” Ibid.

       For exámple, “finding” number 12 states that
      “[l]ocation of adult entertainment land uses in proximity to residential uses, churches, parks and other public facilities, and schools, may lead to increased levels of criminal activities, including prostitution, rape, incest and assaults in the vicinity of such adult entertainment land uses.” Id., at 83a.

       As part of the amendment passed after this lawsuit commenced, the City Council added a statement that it had intended to rely on the Washington Supreme Court’s opinion in Northend Cinema, Inc. v. Seattle, 90 Wash. 2d 709, 585 P. 2d 1153 (1978), cert. denied sub nom. Apple Theatre, Inc. v. Seattle, 441 U. S. 946 (1979), which upheld Seattle’s zoning regulations against constitutional attack. Again, despite the suspicious coincidental timing of the amendment, the Court holds that “Renton was entitled to rely ... on the ‘detailed findings’ summarized in the . . . Northend Cinema opinion.” Ante, at 51. In Northend Cinema, the court noted that “[t]he record is replete with testimony regarding the effects of adult movie theater locations on residential neighborhoods.” 90 Wash. 2d, at 719, 585 P. 2d, at 1159. The opinion however, does not explain the evidence it purports to summarize, and provides no basis for determining whether Seattle’s experience is relevant to Renton’s.

       As the Court of Appeals observed:
      “Although the Renton ordinance purports to copy Detroit’s and Seattle’s, it does not solve the same problem in the same manner. The Detroit ordinance was intended to disperse adult theaters throughout the city so that no one district would deteriorate due to a concentration of such theaters. The Seattle ordinance, by contrast, was intended to concentrate the theaters in one place so that the whole city would not bear the effects of them. The Renton Ordinance is allegedly aimed at protecting certain uses — schools, parks, churches and residential areas — from the perceived unfavorable effects of an adult theater.” 748 F. 2d, at 536 (emphasis in original).

       As one commentator has noted:
      “[A]nyone with any knowledge of human nature should naturally assume that the decision to adopt almost any content-based restriction might have been affected by an antipathy on the part of at least some legislators to the ideas or information being suppressed. The logical assumption, in other words, is not that there is not improper motivation but, rather, because legislators are only human, that there is a substantial risk that an impermissible consideration has in fact colored the deliberative process.” Stone, supra n. 1, at 106.


author:
Justice Rehnquist Chief Justice Burger, Justice O’Connor,
      Justice Marshall,

text:
    UNITED STATES v. MECHANIK et al.
    No. 84-1640.
    Argued December 2, 1985
    Decided February 25, 1986

    Rehnquist, J., delivered the opinion of the Court, in which BURGER, C. J., and White, Powell, and Stevens, JJ., joined. BurgeR, C. J., filed a concurring opinion, post, p. 73. O’Connor, J., filed an opinion concurring in the judgment, in which Brennan and Blackmun, JJ., joined, post, p. 73. Marshall, J., filed a dissenting opinion, post, p. 80.

      Bruce J. Rosen argued the cause for petitioners in Nos. 84-1700 and 84-1704 and respondents in No. 84-1640. With him on the briefs were Michael D. Graves and Stephen J. Rogers.

      Mark I. Levy argued the cause for the United States. With him on the brief were Acting Solicitor General Fried, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Vincent L. Gambale.

       Together with No. 84-1700, Lill v. United States, and No. 84-1704, Mechanik v. United States, also on certiorari to the same court.

   Justice Rehnquist

delivered the opinion of the Court.

Federal Rule of Criminal Procedure 6(d) states that only-specified persons including “the witness under examination” may be present at a grand jury proceeding. In these cases, two Government witnesses testified in tandem before the grand jury, which indicted respondents and cross-petitioners (hereafter defendants) Mechanik and Lili for various drug-related offenses and conspiracy to commit such offenses. The Court of Appeals for the Fourth Circuit held that the simultaneous presence of these two witnesses violated Rule 6(d), and that even though the petit jury subsequently returned a verdict of guilty against defendants, the verdict must be set aside on any count that corresponds to a “tainted” portion of the indictment. We believe that the petit jury’s verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendants with the offenses for which they were convicted. Therefore, the convictions must stand despite the rule violation.

A fairly detailed summary of the District Court proceedings will help to illustrate the nature and extent of our holding. A grand jury returned an indictment charging defendants with drug-related offenses and conspiracy. This indictment was concededly free from any claim of error. The grand jury then returned a superseding indictment in which the conspiracy charge was expanded. In support of this superseding indictment, the United States Attorney presented the testimony of two law enforcement agents who were sworn together and questioned in tandem before the grand jury.

The defendants did not learn about this joint testimony until after trial began. Before trial, they filed an omnibus motion requesting, inter alia, the names of all the people who appeared before the grand jury. The Government responded that there were no unauthorized persons appearing before the grand jury, and the District Court denied the motion. Trial began in February 1980, and concluded in early July of the same year. During the second week of trial, one Jerry Rinehart, an agent of the Drug Enforcement Administration, testified as a Government witness. At the time of his testimony, the Government furnished the defendants with a portion of the transcript of his grand jury testimony as required by the Jencks Act, 18 U. S. C. § 3500. The transcript disclosed that Rinehart and his fellow agent, Randolph James, had testified in tandem before the grand jury.

The defendants moved for dismissal of the indictment on the ground that the simultaneous presence of the two agents had violated Federal Rule of Criminal Procedure 6(d). Chief Judge Knapp, presiding over the trial, concluded that the presence and testimony of the two agents had not violated Rule 6(d), and he denied the motion. In May 1980, however, Chief Judge Knapp was unexpectedly hospitalized, and Judge Copenhaver took over as the trial judge. The defendants then moved for a rehearing of their motion to dismiss the indictment. Judge Copenhaver took the motion under advisement until the conclusion of trial.

In August 1980, after the jury had returned its guilty verdict, Judge Copenhaver ruled upon and denied the defendants’ motion for dismissal of the indictment. 511 F. Supp. 50 (SD W. Va. 1980). He first decided, contrary to Chief Judge Knapp’s earlier ruling, that the joint testimony of Agents Rinehart and James did constitute a violation of Rule 6(d). Id., at 53-58. But he declined to set aside the defendants’ indictment and convictions because, on the basis of a comparison between the two indictments and the evidence on which the indictments rested, the violation of Rule 6(d) had not harmed the defendants. Id., at 58-61. He justified this conclusion with respect to the substantive counts on the ground that they were materially unchanged from the valid initial indictment to the superseding indictment. Id., at 58-59. With respect to the conspiracy count, which had been expanded by the superseding indictment, he justified his conclusion on the ground that the grand jury “had before it ample independent evidence [apart from the joint testimony] to support a probable cause finding of the charges.” Id., at 61. In light of these conclusions, Judge Copenhaver determined that a post-trial dismissal of the indictment would simply confer a windfall benefit on the defendants “who stand convicted after a three-month trial conducted at enormous expense to the United States and the defendants.” Ibid. The judge nevertheless undertook to ensure future compliance with the one-witness rule by directing the Government to keep the court advised concerning compliance with Rule 6(d) in future criminal cases. Ibid.

A divided Court of Appeals reversed the conspiracy convictions, affirmed the others, and dismissed the conspiracy portion of the indictment. 735 F. 2d 136 (1984). It reasoned that the language of Rule 6(d) is so “plain and unequivocal in limiting who may appear before a grand jury,” id., at 139, that its transgression requires automatic reversal of any subsequent conviction regardless of the lack of prejudice. Id., at 139-140. But the court reversed only the conspiracy convictions because it found that the violation of Rule 6(d) tainted only the portion of the superseding indictment that related to them. Id., at 140. A divided en banc decision agreed. 756 F. 2d 994 (1985) (per curiam).

We assume for the sake of argument that the simultaneous presence and testimony of the two Government witnesses before the grand jury violated Rule 6(d), and that the District Court would have been justified in dismissing portions of the indictment on that basis had there been actual prejudice and had the matter been called to its attention before the commencement of the trial. But although the defendants appear to have been reasonably diligent in attempting to discover any error at the grand jury proceeding, they did not acquire the transcript showing that the two agents had appeared jointly in the grand jury proceeding until the second week of trial. Nor is there any suggestion that the Government designedly withheld the information. When the defendants made their motion to dismiss the indictment based on the joint testimony, Chief Judge Knapp denied the motion because of his view that there had been no violation of Rule 6(d). Judge Copenhaver eventually issued a contrary ruling on the resubmitted motion, but not until after the long and costly trial had been brought to its conclusion. Although we do not believe that the defendants can be faulted for any lack of diligence, We nonetheless hold that the supervening jury verdict made reversal of the conviction and dismissal of the indictment inappropriate.

Both the District Court and the Court of Appeals observed that Rule 6(d) was designed, in part, “to ensure that grand jurors, sitting without the direct supervision of a judge, are not subject to undue influence that may come with the presence of an unauthorized person.” 736 F. 2d, at 139. The Rule protects against the danger that a defendant will be required to defend against a charge for which there is no probable cause to believe him guilty. The error involving Rule 6(d) in these cases had the theoretical potential to affect the grand jury’s determination whether to indict these particular defendants for the offenses with which they were charged. But the petit jury’s subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury’s verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.

It might be argued in some literal sense that because the Rule was designed to protect against an erroneous charging decision by the grand jury, the indictment should not be compared to the evidence produced by the Government at trial, but to the evidence produced before the grand jury. But even if this argument were accepted, there is no simple way after the verdict to restore the defendant to the position in which he would have been had the indictment been dismissed before trial. He will already have suffered whatever inconvenience, expense, and opprobrium that a proper indictment may have spared him. In courtroom proceedings as elsewhere, “the moving finger writes; and, having writ, moves on.” Thus reversal of a conviction after a trial free from reversible error cannot restore to the defendant whatever benefit might have accrued to him from a trial on an indictment returned in conformity with Rule 6(d).

We cannot accept the Court of Appeals’ view that a violation of Rule 6(d) requires automatic reversal of a subsequent conviction regardless of the lack of prejudice. Federal Rule of Criminal Procedure 52(a) provides that errors not affecting substantial rights shall be disregarded. We see no reason not to apply this provision to “errors, defects, irregularities, or variances” occurring before a grand jury just as we have applied it to such error occurring in the criminal trial itself. See United States v. Hasting, 461 U. S. 499, 509 (1983); Chapman v. California, 386 U. S. 18, 21-24 (1967); United States v. Lane, 474 U. S. 438 (1986).

The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences. See Morris v. Slappy, 461 U. S. 1, 14 (1983). The “[passage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible.” Engle v. Isaac, 456 U. S. 107, 127-128 (1982). Thus, while reversal “may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution,” id., at 128, and thereby “cost society the right to punish admitted offenders.” Id., at 127. Even if a defendant is convicted in a second trial, the intervening delay may compromise society’s “interest in the prompt administration of justice,” United States v. Hasting, supra, at 509, and impede accomplishment of the objectives of deterrence and rehabilitation. These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial.

We express no opinion as to what remedy may be appropriate for a violation of Rule 6(d) that has affected the grand jury’s charging decision and is brought to the attention of the trial court before the commencement of trial. We hold only that however diligent the defendants may have been in seeking to discover the basis for the claimed violation of Rule 6(d), the petit jury’s verdict rendered harmless any conceivable error in the charging decision that might have flowed from the violation. In such a case, the societal costs of retrial after a jury verdict of guilty are far too substantial to justify setting aside the verdict simply because of an error in the earlier grand jury proceedings. The judgment of the Court of Appeals is therefore reversed to the extent it set aside, the conspiracy convictions and dismissed the indictment, but is otherwise affirmed.

It is so ordered.

Chief Justice Burger,

concurring.

I concur in Justice Rehnquist’s opinion for the Court. I write separately only to state my view that this case is controlled by Justice Black’s opinion for the Court in Costello v. United States, 350 U. S. 359 (1956).

Justice O’Connor,

with whom Justice Brennan and Justice Blackmun join, concurring in the judgment.

I agree with the Court that the convictions obtained in the trial court against defendants Mechanik and Lili should not have been set aside. I write separately because I believe that the analysis adopted by the Court for determining the effect of a violation of the rules governing the conduct of grand juries effectively renders those rules a dead letter, thereby seriously undermining the grand jury’s traditional function of protecting the innocent from unwarranted public accusation.

The grand jury has two principal functions. First, it bears the weighty responsibility of investigating crime and determining whether there is probable cause to believe that a crime has been committed. United States v. Calandra, 414 U. S. 338, 343 (1974). The second, and no less important, task of the grand jury is to “serv[e] the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or dictated by an intimidating power or by malice and personal ill will.” Wood v. Georgia, 370 U. S. 375, 390 (1962). To further the grand jury’s investigative function, the grand jury traditionally has been given “wide latitude” in its inquiries. Calandra, supra, at 343. See also United States v. Dionisio, 410 U. S. 1, 17-18 (1973). Prosecutors have been accorded similar leeway in presenting their cases to the grand jury, see, e. g., United States v. Adamo, 742 F. 2d 927, 936-938 (CA6 1984), cert. denied, 469 U. S. 1193 (1985), but they are bound by a few, clear rules which were carefully drafted and approved by this Court and by Congress to ensure the integrity of the grand jury’s functions.

Federal Rule of Criminal Procedure 6(d) is one such rule; it is designed to guard the secrecy of the grand jury proceedings, prevent intimidation of jurors, and guarantee that the grand jury is given the opportunity to make an independent examination of the evidence and render its probable cause and charging determinations free of undue prosecutorial influence. See, e. g., United States v. Echols, 542 F. 2d 948, 951 (CA5 1976), cert. denied, 431 U. S. 904 (1977); United States v. Lili, 511 F. Supp. 50, 55-57 (SD W. Va. 1980); 1 C. Wright, Federal Practice & Procedure §105, p. 237, and n. 1 (2d ed. 1982). For example, if the Government, in violation of Rule 6(d), were to have all witnesses remain in the courtroom while the grand jury investigation was going on to ensure that all testified in a consistent manner, it cannot seriously be doubted that this practice would hinder the grand jury in its task of uncovering the truth. Similarly, if the prosecuting attorney were to remain in the jury room during the jury’s deliberations in contravention of the Rule, a very real possibility would arise that the jury’s deliberations or vote would be unduly influenced by the prosecutor’s presence.

The Federal Rules clearly envision that dismissal of the indictment may be an appropriate remedy for such violations of Rule 6(d). See, e. g., Fed. Rule Crim. Proc. 12(b)(2). Indeed, courts have consistently employed the remedy of dismissal of the indictment for deviations from Rule 6(d) which may imperil the grand jury’s independence. See, e. g., Lill, supra, at 58 (collecting federal cases). See also Nadel, Presence of Unauthorized Persons During State Grand Jury Proceedings as Affecting Indictment, 23 A.L.R. 4th 397 (1983) (hereinafter Nadel) (collecting state cases dealing with similar violations of state rules). To be sure, a violation must be clearly established before dismissal may be contemplated. The grand jury proceeding is accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process. See, e. g., United States v. Johnson, 319 U. S. 503, 512-513 (1943). And not every violation of Rule 6(d) will create such a likelihood of prejudice as to warrant the drastic remedy of dismissal. The Federal Rules dictate that dismissal is appropriate only when a violation has impaired the substantial rights of the accused. See Fed. Rule Crim. Proc. 52.

Rule 52(a) provides that its harmless error inquiry extends to “[a]ny error, defect, irregularity or variance.” The Advisory Committee’s notes to Rule 52 state that “[t]his rule is a restatement of existing law,” which specifically provided for a harmless error analysis of objections going to the validity of the indictment in 18 U. S. C. §556 (1946 ed.). See 18 U. S. C. App., p. 657. The language of Rule 6 does not exempt the Rule from a harmless error scrutiny. In fact, the commentary accompanying it states that the Rule “generally continues existing law” and expressly refers to the harmless error rule of 18 U. S. C. §556 (1946 ed.), thereby confirming the rulemakers’ intent that violations of Rule 6(d) would be among those errors subject to harmless error review. See Advisory Committee’s Notes on Fed. Rule Crim. Proc. 6(d), 18 U. S. C. App., p. 568.

A Rule 6(d) violation is one affecting the grand jury proceeding and is not in any sense a trial error. Accordingly, the logical focus of the harmless error inquiry is an examination of the influence of the error on the charging decision. Indeed, in most Rule 6(d) cases, a court conducting a harmless error inquiry will of necessity focus on the effect of the alleged error on the grand jury’s charging decision, rather than the verdict, because the rules governing the disclosure of grand jury materials to defendants and the waiver provision of Rule 12(f) virtually ensure that all claims of violations of Rule 6(d) will be made before or during trial. See, e. g., 18 U. S. C. §3500; Fed. Rules Crim. Proc. 6(e)(3)(C)(i), (ii); Dennis v. United States, 384 U. S. 855, 868-875 (1966); 8 J. Moore, Federal Practice ¶6.05[3] (2d ed. 1985) (discussing defendants’ access to grand jury materials under the above cited authorities). See also Lili, supra, at 58, 61 (most reported Rule 6(d) claims raised and disposed of before trial).

In my view, when, as in these cases, a court decides to reserve the ruling on a timely raised and diligently pursued motion to dismiss based on an alleged violation of Rule 6(d) until after a verdict is returned, the focus of the court’s inquiry should remain on the grand jury’s charging decision. Yet the Court shifts the focus of the harmless error analysis in such circumstances from an examination of the violation’s effect on the indictment to an assessment of the violation’s effect on the trial verdict, without regard to the timing of the defendants’ objection. See ante, at 70-71. The Court then concludes that a conviction automatically renders harmless any violation of Rule 6(d). This holding is not justified by the applicable rules, nor can it be reconciled with precedent.

A number of federal courts have employed a rule directly in conflict with that adopted by the Court: they presume the existence of prejudice from the presence of unauthorized persons in the grand jury room and apply a rule of automatic dismissal of the tainted indictment. See, e. g., United States v. Fulmer, 722 F. 2d 1192, 1195, n. 5 (CA5 1983); Echols, 542 F. 2d, at 951; Latham v. United States, 226 F. 420 (CA5 1915); Lill, 511 F. Supp., at 58 (collecting lower federal cases). See also Nadel §4 (collecting state cases); 2 W. LaFave & J. Israel, Criminal Procedure §15.6 (1984). Other courts have applied a harmless error test to Rule 6(d) violations, but have uniformly evaluated the prejudice to the defendant by looking to the violation’s likely effect on the grand jury’s deliberations, not merely to its significance in fight of the trial verdict. See, e. g., United States v. Condo, 741 F. 2d 238, 239 (CA9 1984) (per curiam), cert. denied, 469 U. S. 1164(1985); United States v. Computer Sciences Corp., 689 F. 2d 1181, 1185-1186 (CA4 1982), cert. denied, 459 U. S. 1105 (1983); United States v. Kahan & Lessin Co., 695 F. 2d 1122, 1124 (CA9 1982) (per curiam); United States v. Rath, 406 F. 2d 757, (CA6), cert. denied, 394 U. S. 920 (1969). I have found no Rule 6(d) cases in which a per se rule based on the ultimate verdict at trial has been applied. Cf. also United States v. Lane, 474 U. S. 438, 447-448 (1986) (disapproving use of per se rules in harmless error analysis).

The Court’s focus on the effect of the verdict, in combination with its per se rule, gives judges and prosecutors a powerful incentive to delay consideration of motions to dismiss based on an alleged defect in the indictment until the jury has spoken. If the jury convicts, the motion is denied; if the jury acquits, the matter is mooted. The Court’s approach thus undermines the authority of Rule 6(d), exposes to the ordeal of trial any defendants who would otherwise have a right to dismissal of the indictment, and undermines adherence to the very measures that this Court proposed and Congress implemented to guarantee that the grand jury is able to perform properly its screening function.

In my view, when a defendant makes a timely objection to the grand jury indictment based on a violation of Rule 6(d), the remedy of dismissal of the indictment is appropriate if it is established that the violation substantially influenced the grand jury’s decision to indict, or if there is grave doubt as to whether it had such effect. See Lane, supra, at 449; Kotteakos v. United States, 328 U. S. 750, 765 (1946). The focus of the prejudice inquiry should be on the effect of the alleged error on the grand jury’s decision to indict even if the court postpones its decision until the conclusion of the trial.

This approach would not impose unwarranted costs on the criminal justice system. The prosecution has it within its power to avoid dismissals by adhering to the simple dictates of Rule 6(d), and to remedy any violation of the Rule by obtaining a superseding indictment so as to avoid the risks of subsequent dismissals. Even where an unremedied violation is proved, the trial judge must still be satisfied that the violation resulted in grand jury intimidation or improper influence on important witnesses’ testimony and thus had a “substantial influence” on the indictment returned, or that there is grave doubt as to whether it had such effect. Kotteakos, supra, at 765. See also Lane, supra, at 449.

In these cases, the District Court found, after a scrupulous examination of the record, that the violation was harmless, a finding which was not found wanting on appeal. The District Court preliminarily observed:

“It is especially significant to note that the two indictments were returned by the same grand jury. The court’s review of the attendance and voting records of that grand jury reveals that each of these indictments was returned by a unanimous vote. A nucleus of the same seventeen grand jurors voted for each indictment. In addition, one other grand juror voted for the first indictment but did not vote on the second, while two others voted for the second indictment but did not vote on the first.” 511 F. Supp., at 58-59.

Both agents had testified separately before the same grand jury in support of the first, untainted indictment, giving the jury ample opportunity to weigh the credibility of each agent prior to their joint appearance. Moreover, both agents had access to all grand jury materials in the case pursuant to Rule 6(e)(3)(A)(ii), and thus the likelihood that their joint testimony created a potential for collusion not already available is minute.

Turning to an examination of the indictment itself, the District Court found that the substantive counts of which the defendants were convicted were “identical or virtually so” to the counts returned in the superseded indictment and that those counts had “a probable cause basis entirely independent of the testimony presented to the grand jury after the return of the [superseded] first indictment.” Id., at 59. It concluded that as to the substantive counts, “there was neither prejudice nor potential for prejudice.” Ibid. Thus, the only count upon which the defendants could have been prejudiced by the objectionable joint testimony of the Drug Enforcement Administration agents was the conspiracy count.

Although the District Court conducted its post-trial harmless error review in part with an eye to the effect of the error on the verdicts, its findings also make clear that the effect of the joint testimony on the grand jury’s decision to indict on the conspiracy count was negligible. The District Court carefully isolated the alterations and additions to that count which were the subject of the joint testimony. After examining the testimony given by other grand jury witnesses, the trial judge concluded that “the grand jury would, in my view, undoubtedly have returned the very same second indictment even had [the] Agents . . . testified separately.” Id., at 61. Accordingly, I would reverse the judgment of the Court of Appeals insofar as it set aside the defendants’ conspiracy convictions and affirm the Court of Appeals’ judgment regarding the defendants’ cross-petitions.

Justice Marshall,

dissenting.

The Court concedes that federal prosecutors violated Rule 6(d) of the Federal Rules of Criminal Procedure in presenting their case against defendants Mechanik and Lili to the grand jury. The Court holds, however, that because defendants were ultimately convicted of some of the counts against them, “any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.” Ante, at 70. Because I believe that the majority’s rule misconceives the role both of the grand jury and of the harmless-error doctrine, I dissent.

I — !

The Court s decision today renders Rule 6(d) almost unenforceable. As the facts of this litigation demonstrate, Rule 6(d) violations are difficult for defendants to uncover. The grand jury conducts its investigation in secret, aided only by the prosecutors and witnesses. United States v. Calandra, 414 U. S. 338, 343 (1974). Defendants are not entitled to grand jury transcripts before trial; due to the strictly enforced tradition of grand jury secrecy, defendants generally have access to no information whatsoever regarding the conduct of the grand jury proceedings. See M. Frankel & G. Naftalis, The Grand Jury 81-89 (1977). Requests by defendants pursuant to Rule 6(e)(3)(C)(ii) for disclosure of grand jury materials, “upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury,” are rarely granted; a defendant often can make the necessary showing only with the aid of the materials he seeks to discover. See 1 C. Wright, Federal Practice and Procedure § 108, pp. 263-265 (2d ed. 1982). Defendants’ only access to grand jury materials is likely to be through the medium of the Jencks Act, 18 U. S. C. § 3500, which requires the prosecutor, after direct examination of a Government witness, to produce the witness’ prior statements. That disclosure, however, does not take place until after trial has begun, and then only on a piecemeal and incomplete basis.

There is thus little likelihood that a defendant can raise a substantial claim under Rule 6(d) before his trial begins. After the start of trial, overwork and the press of events may prevent the district judge from disposing of a newly raised Rule 6(d) claim. The most attractive course for the district judge will be to defer a ruling until the close of trial, the course ultimately followed in this case. Indeed, the district judge may not have the opportunity to rule until that time. Under today’s decision, however, deferring a meritorious Rule 6(d) claim until the close of trial disposes of it permanently. If the movant is acquitted, then his Rule 6(d) motion is moot; if the movant is convicted, under the majority’s reasoning, then any error was harmless. The Court’s decision thus offers busy district judges a new and unique way to reduce their workload; one need not believe in a judicial conspiracy against the assertion of Rule 6(d) rights to suspect that district judges, faced with Rule 6(d) motions necessarily raised in the middle of trial, will follow the Court’s invitation.

Should a district judge decide a Rule 6(d) motion during trial, the majority’s scheme insulates that ruling from appellate review. Appeal before judgment is unlikely; the Court has never allowed immediate appeal of an order issued after the start of a criminal trial. See Flanagan v. United States, 465 U. S. 259, 269 (1984). And under the decision today, such rulings cannot be appealed after judgment. Enforcement of Rule 6(d) is thus left to the unreviewable largesse of the district court.

II

A

We have no reason to believe that Congress intended Rule 6(d) to have so little practical meaning. The legislative history of Rule 6, indeed, belies that approach. In 1933, Congress was faced with “a conflict of legal decision as to the right, under existing law, to permit stenographers in grand jury rooms without invalidating the subsequent conviction of defendant.” S. Rep. No. 64, 73d Cong., 1st Sess., 1 (1933). It responded by adding a narrow clause to the harmless-error statute, Rev. Stat. § 1025 (later codified as 18 U. S. C. § 556 (1946 ed.)), providing that no indictment should be found insufficient, or conviction be reversed, because of the presence of stenographers in the grand jury room. But Congress nowhere expressed disagreement with the general proposition that the presence of an unauthorized person in the grand jury room invalidates a subsequent conviction. E. g., United States v. Fall, 56 App. D. C. 83, 84, 10 F. 2d 648, 649 (1925); Latham v. United States, 226 F. 420, 424 (CA5 1915).

More recently, Congress amended Rule 6 in 1972 to incorporate by reference the provisions of the Jury Selection and Service Act of 1968; it provided that a defendant may move to dismiss the indictment based on the Government’s failure to comply with that Act in the selection of the grand jury array or of individual grand jurors. Fed. Rule Crim. Proc. 6(b)(2). The advisory notes expressly state that the district judge may rule on such a challenge to the grand jury either before or after the verdict. Advisory Committee Notes on Fed. Rule Crim. Proc. 6, 18 U. S. C. App., p. 568 (1972 amendment). There is no hint that Congress, in providing for a ruling after the verdict, intended that ruling to be a mere intellectual exercise.

B

The majority’s opinion misconceives the role of harmless-error analysis. We have recognized that harmless-error doctrine, denying any remedy in cases of clear prosecutorial misconduct, “can work very unfair and mischievous results.” Chapman v. California, 386 U. S. 18, 22 (1967). Denying defendants relief for clear violations of their procedural rights reduces the law to “‘pretend-rules,’” United States v. Borello, 766 F. 2d 46, 58 (CA2 1985), quoting United States v. Antonelli Fireworks Co., 155 F. 2d 631, 661 (CA2) (Frank, J., dissenting), cert. denied, 329 U. S. 742 (1946); it means that prosecutors are free to engage in prohibited conduct subject only to “purely ceremonial” words of appellate displeasure. 155 F. 2d, at 661.

The Court’s rule that all grand jury misconduct becomes harmless after conviction, however, is especially pernicious. Contrary to the majority’s suggestion that reversal is too costly a remedy for grand jury misconduct, ante, at 72, it is the majority’s refusal to reverse convictions for demonstrated grand jury misconduct that imposes unacceptable costs. There are few limitations on the conduct of the prosecutor before the grand jury. Those limitations are found only in Federal Rule of Criminal Procedure 6, the text of which takes up little more than a page in the official compilation of United States laws. Violations of even those isolated restrictions, in by far the majority of cases, will go undetected by defendants. The only way to allow even minimally effective enforcement of those rules is to reverse the convictions of defendants whose indictments were tainted by Rule 6 violations.

Such an approach would not hamper the enforcement of the criminal law. Violations of Rule 6(d) will be nonexistent if the prosecutor exercises proper control over access to the grand jury chambers. The substantive law is not onerous or ambiguous, and most violations are the product of the prosecutor’s failure to adopt safeguards to ensure compliance. See 2 W. LaFave & J. Israel, Criminal Procedure §15.6, p. 333 (1984). There is no danger of a prosecutor slipping into an inadvertent Rule 6(d) violation comparable to that, say, of making an ill-worded remark in the heat of trial. Courts would not often have cause to reverse convictions because of Rule 6(d) violations.

The majority’s goal of upholding criminal convictions not marred by substantial defect does not justify reducing Congress’ command regarding the proper conduct of grand jury proceedings to a mere form of words, without practical effect. Respect for the rule of law demands that improperly procured indictments be quashed even after conviction, because “only by upsetting convictions so obtained can the ardor of prosecuting officials be kept within legal bounds and justice be secured; for in modern times all prosecution is in the hands of officials.” United States v. Remington, 208 F. 2d 567, 574 (CA2 1953) (L. Hand, J., dissenting).

H-i HH

The opinion concurring in the judgment suggests that the Rule 6(d) violation in this litigation should be viewed as harmless on the theory that the grand jury would have returned the same indictment regardless of the prosecutor’s misconduct. Under that approach, a district court faced with a Rule 6(d) violation should examine the grand jury transcripts in an attempt to divine the effect of the violation on the jury’s charging decision, and allow the indictment or conviction to stand only if it finds that there was no such effect. Such a rule would be contrary to the traditional black-letter law that “[a]ny violation of Rule 6(d) is per se prejudicial to the defendant and will result in dismissal of the indictment,” 8 J. Moore, Federal Practice ¶6.04[7], p. 6-91 (2d ed. 1985). I believe that such an approach would be unworkable and would undermine the limits Congress imposed on the conduct of grand jury investigations.

Many of the reasons given above for rejecting the majority’s view that grand jury impropriety is always harmless once a verdict is reached, apply in this context as well. Given defendants’ difficulty in discovering Rule 6(d) violations, it is all the more important that dismissal of the indictment be certain when violations of the Rule are found. Only such a sanction can come close to providing prosecutors with an incentive to obey the Rule’s commands. See United States v. Pignatiello, 582 F. Supp. 251, 255 (Colo.1984).

Such harmless-error analysis, moreover, overlooks the practical impossibility of determining the effect of a Rule 6(d) violation. The prejudicial impact of the unauthorized presence of persons in the grand jury room will often be impossible to quantify, and may not be apparent from the grand jury transcript. As one court wrote:

“A change in expression, a pressure on the hand or a warning glance would not be shown upon the minutes but might well influence, suppress or alter testimony to the prejudice of the defendant. There may have been prior expressions or conversations between the two witnesses which the one then giving testimony might well hesitate to repudiate or modify in the presence of the other. The District Attorney here contends . . . that defendant suffered no prejudice by the joint presence of the two sisters, but . . . ‘[t]he court cannot know that this suggestion represents the fact.’ We think the practice offers too great a possibility for the exercise of undue influence to be condoned.” State v. Revere, 232 La. 184, 207, 94 So. 2d 25, 34 (1957) (emphasis omitted; citations omitted; internal quotations omitted).

Any case-by-case analysis to determine whether the defendant was actually prejudiced is simply too speculative to afford defendants meaningful protection, and imposes a difficult burden on the courts that outweighs the benefits to be derived. The distinction between the truly harmless error and the more dangerous one is not “such a pronounced one that the Court can cloak the one with the mantle of legality and yet recognize the dangers of the other and prohibit it.” United States v. Carper, 116 F. Supp. 817, 821 (DC 1953).

That approach, finally, is likely to require a detailed inquiry that will frustrate and undermine the secrecy of grand jury inquiry. See United States v. Treadway, 445 F. Supp. 959 (ND Tex. 1978). The district court may have to discuss the testimony of grand jury witnesses who did not appear at trial. The goals of grand jury secrecy, however, counsel that such analysis should not be spread across the public record. See United States v. Sells Engineering, Inc., 463 U. S. 418, 424-425 (1983).

IV

This litigation illustrates the extent to which the Court is willing to reduce the substantive law to “pretend-rules,” Borello, 766 F. 2d, at 58, in order to affirm a criminal conviction. But by denigrating Congress’ commands and eviscerating enforcement of Rule 6(d), the Court creates “a greater danger to a free people than the escape of some criminals from punishment.” United States v. Di Re, 332 U. S. 581, 595 (1948). I believe that the District Court in this case should have reversed defendants’ conspiracy convictions without inquiry into the prejudice done to defendants by the Rule 6(d) violation. I therefore would affirm the judgment of the Court of Appeals.

       In Vasquez v. Hillery, 474 U. S. 254 (1986), the Court set aside a final judgment of conviction because of racial discrimination in the composition of the grand jury that indicted the defendant. It found this result to be compelled by precedent directly applicable to the special problem of racial discrimination. Id., at 260-262. It also reasoned that racial discrimination in the selection of grand jurors is so pernicious, and other remedies so impractical, that the remedy of automatic reversal was necessary as a prophylactic means of deterring grand jury discrimination in the future, id., at 262, and that one could presume that a discriminatorily selected grand jury would treat defendants of excluded races unfairly. Id., at 263-264.
      We think that these considerations have little force outside the context of racial discrimination in the composition of the grand jury. No long line of precedent requires the setting aside of a conviction based on a rule violation in the antecedent grand jury proceedings, and the societal interest in deterring this sort of error does not rise to the level of the interest in deterring racial discrimination. See, e. g., Gerstein v. Pugh, 420 U. S. 103, 119-123 (1975); Coleman v. Alabama, 399 U. S. 1, 10-11 (1970); Chapman v. California, 386 U. S. 18 (1967).

       The Government argues that it was improper to reverse the conspiracy convictions because “[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.” Costello v. United States, 350 U. S. 359, 363 (1956). We need not reach this argument of the Government because of the narrower ground upon which we rest our decision.

       Denial of a Rule 6(d) motion could conceivably be subject to interlocutory appeal under the collateral-order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 641 (1949). Such an order may be both collateral to the main action and, as a result of today’s opinion, wholly unreviewable after final judgment. Cf. United States v. Hollywood Motor Car Co., 458 U. S. 263, 267 (1982) (claim that indictment should be dismissed on grounds of prosecutorial vindictiveness not subject to interlocutory appeal because reviewable after conviction); United States v. Garner, 632 F. 2d 758 (CA9 1980) (claim that indictment should be dismissed on grounds of grand jury irregularities not subject to interlocutory appeal because reviewable after conviction); United States v. Bird, 709 F. 2d 388, 391, and n. 17 (CA5 1983) (collecting cases).

       Our case law, further, is inconsistent with the majority’s broad holding that any error in the grand jury proceedings, no matter how egregious, is rendered harmless beyond a reasonable doubt by a petit jury’s subsequent guilty verdict. Vasquez v. Hillery, 474 U. S. 254 (1986), involving the “grave constitutional trespass” of racial discrimination, id., at 262, belies that holding. The Court’s assessment of the nature of the grand jury process refutes the rationale articulated by the majority today:
      “Nor are we persuaded that discrimination in the grand jury has no effect on the fairness of the criminal trials that result from that grand jury’s actions. The grand jury does not determine only that probable cause exists to believe that a defendant committed a crime, or that it does not. In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapital offense — all on the basis of the same facts. Moreover, ‘[t]he grand jury is not bound to indict in every case where a conviction can be obtained.’ United States v. Ciambrone, 601 F. 2d 616, 629 (CA2 1979) (Friendly, J., dissenting). Thus, even if a grand jury’s determination of probable cause is confirmed in hindsight by a conviction on the indicted offense, that confirmation in no way suggests

        that the discrimination did not impermissibly infect the framing of the indictment and, consequently, the nature or very existence of the proceedings to come.” Vasquez v. Hillery, supra, at 263 (emphasis added).

       See also 2 W. LaFave & J. Israel, Criminal Procedure § 15.6, p. 332 (1984) (“Most federal courts . . . treat unauthorized presence as a per se ground for dismissal, requiring no showing of prejudice”). Cases cited by the Solicitor General as requiring harmless-error analysis are distinguishable. Those cases involved only brief, inadvertent interruptions of the grand jury, during which the grand jury proceedings came to an immediate halt, United States v. Computer Sciences Corp., 689 F. 2d 1181, 1185-1186 (CA4 1982), cert. denied, 459 U. S. 1105 (1983); United States v. Kahan & Lessin Co., 695 F. 2d 1122, 1124 (CA9 1982); United States v. Rath, 406 F. 2d 757 (CA6), cert. denied, 394 U. S. 920 (1969), or a “fleeting” appearance in the grand jury room by a person assisting in the movement of bulky documents, United States v. Condo, 741 F. 2d 238, 239 (CA9 1984), cert. denied, 469 U. S. 1164 (1985). Indeed, the Fourth Circuit panel, whose reasoning was adopted by the en bane court, saw no inconsistency between Computer Sciences, supra, and the per se rule of the instant case. 735 F. 2d 136, 139-140 (1984).

       Justice O’Connor suggests, noting the reference to 18 U. S. C. §556 (1946 ed.) in the Advisory Committee Notes to Rule 6, that the rulemakers intended violations of Rule 6(d) to be subject to the harmless-error rule. Ante, at 75-76. The legislative history of former § 556 does not support that view. The section, as first enacted in 1872, provided that “[n]o indictment . . . shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.” Rev. Stat. § 1025 (emphasis added). There is no indication that this law was meant to disturb the settled law regarding unauthorized persons in the grand jury room, see United States v. Edgerton, 80 F. 374 (Mont. 1897); rather, it seems likely that the statute was directed at technical defects in the wording of the indictment, see, e. g., People v. St. Clair, 56 Cal. 406 (1880) (reversing conviction because word “larceny” in indictment was misspelled); People v. Vice, 21 Cal. 344 (1864) (reversing conviction because indictment, while alleging that defendant took certain property by threats and force, failed to allege that the property did not belong to defendant). See also supra, at 82.