author: Justice Blackmun

text:
    UNITED STATES v. ZOLIN et al.
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
    No. 88-40.
    Argued March 20, 1989
    Decided June 21, 1989

      Alan I. Horowitz argued the cause for the United States. With him on the briefs were Solicitor General Fried, Acting Solicitor General Bryson, Assistant Attorney General Rose, Deputy Solicitor General Wallace, Charles E. Brookhart, and John A. Dudeck, Jr.

      Michael Lee Hertzberg argued the cause for respondents. With him on the brief were Eric M. Lieberman and David Golove

        Edward D. Urquhart, Silvia T. Hassell, and Charles J. Escher filed a brief for Bernard M. Barrett, Jr., M. D., as amicus curiae.

   Justice Blackmun

delivered the opinion of the Court.

This case arises out of the efforts of the Criminal Investigation Division of the Internal Revenue Service (IRS) to investigate the tax returns of L. Ron Hubbard, founder of the Church of Scientology (the Church), for the calendar years 1979 through 1983. We granted certiorari, 488 U. S. 907 (1988), to consider two issues that have divided the Courts of Appeals. The first is whether, when a district court enforces an IRS summons, see 26 U. S. C. §7604, the court may condition its enforcement order by placing restrictions on the disclosure of the summoned information. The Court of Appeals in this case upheld the restrictions. We affirm its judgment on that issue by an equally divided Court.

The second issue concerns the testimonial privilege for attorney-client communications and, more particularly, the generally recognized exception to that privilege for communications in furtherance of future illegal conduct — the so-called “crime-fraud” exception. The specific question presented is whether the applicability of the crime-fraud exception must be established by “independent evidence” (i. e., without reference to the content of the contested communications themselves), or, alternatively, whether the applicability of that exception can be resolved by an in camera inspection of the allegedly privileged material. We reject the “independent evidence” approach and hold that the district court, under circumstances we explore below, and at the behest of the party opposing the claim of privilege, may conduct an in camera review of the materials in question. Because the Court of Appeals considered only “independent evidence,” we vacate its judgment on this issue and remand the case for further proceedings.

I

In the course of its investigation, the IRS sought access to 51 documents that had been filed with the Clerk of the Los Angeles County Superior Court in connection with a case entitled Church of Scientology of California v. Armstrong, No. C420 153. The Armstrong litigation involved, among other things, a charge by the Church that one of its former members, Gerald Armstrong, had obtained by unlawful means documentary materials relating to Church activities, including two tapes. Some of the documents sought by the IRS had been filed under seal.

The IRS, by its Special Agent Steven Petersell, served a summons upon the Clerk on October 24, 1984, pursuant to 26 U. S. C. §7603, demanding that he produce the 51 documents. The tapes were among those listed. App. 33-38. On November 21, IRS agents were permitted to inspect and copy some of the summoned materials, including the tapes.

On November 27, the Church and Mary Sue Hubbard, who had intervened in Armstrong, secured a temporary restraining order from the United States District Court for the Central District of California. The order required the IRS to file with the District Court all materials acquired on November 21 and all reproductions and notes related thereto, pending disposition of the intervenors’ motion for a preliminary injunction to bar IRS use of these materials. Exh. 2 to Petition to Enforce Internal Revenue Summons. By order dated December 10, the District Court returned to the IRS all materials except the tapes and the IRS’ notes reflecting their contents. See App. 30.

On January 18, 1985, the IRS filed in the District Court a petition to enforce its summons. In addition to the tapes, the IRS sought 12 sealed documents the Clerk had refused to produce in response to the IRS summons. The Church and Mary Sue Hubbard intervened to oppose production of the tapes and the sealed documents. Respondents claimed that IRS was not seeking the documents in good faith, and objected on grounds of lack of relevance and attorney-client privilege.

Respondents asserted the privilege as a bar to disclosure of the tapes. The IRS argued, among other things, however, that the tapes fell within the crime-fraud exception to the attorney-client privilege, and urged the District Court to listen to the tapes in the course of making its privilege determination. In addition, the IRS submitted to the court two declarations by Agent Petersell. In the first, Petersell stated his grounds for believing that the tapes were relevant to the investigation. See Declaration in No. CV85-0440-HLH, ¶3 (March 8, 1985). In the second, Petersell offered a description of the tapes’ contents, based on information he received during several interviews. Appended to this declaration — over respondents’ objection — were partial transcripts of the tapes, which the IRS lawfully had obtained from a confidential source. See March 15, 1985, declaration (filed under seal). In subsequent briefing, the IRS reiterated its request that the District Court listen to the tapes in camera before making its privilege ruling.

After oral argument and an evidentiary hearing, the District Court rejected respondents’ claim of bad faith. App. to Pet. for Cert. 27a. The court ordered production of 5 of the 12 documents, id., at 28a, and specified: “The documents delivered hereunder shall not be delivered to any other government agency by the IRS unless criminal tax prosecution is sought or an Order of Court is obtained.” Id., at 29a.

Turning to the tapes, the District Court ruled that respondents had demonstrated that they contain confidential attorney-client communications, that the privilege had not been waived, and that “[t]he ‘fraud-crime’ exception to the attorney-client privilege does not apply. The quoted excerpts tend to show or admit past fraud but there is no clear indication that future fraud or crime is being planned.” Id., at 28a. On this basis, the court held that the Clerk “need not produce its copy of the tapes pursuant to the summons.” Id., at 29a. The District Court denied the IRS’ motion for reconsideration, rejecting the IRS’ renewed request that the court listen to the tapes in toto. “While this was at one time discussed with counsel, thereafter Mr. Petersell’s declaration was submitted, and no one suggested that this was an inadequate basis on which to determine the attorney-client privilege question.” Id., at 25a-26a.

Respondents appealed to the Court of Appeals for the Ninth Circuit, and the IRS cross-appealed on two relevant grounds. First, the IRS claimed that the District Court abused its discretion by placing conditions on the IRS’ future use of the subpoenaed information. The Court of Appeals disagreed, holding: “A district court may, when appropriate, condition enforcement of a summons on the IRS’ agreeing to abide by disclosure restrictions.” 809 F. 2d 1411, 1417 (1987).

Second, the IRS contended that the District Court erred in rejecting the application of the crime-fraud exception to the tapes. In particular, the IRS argued that the District Court incorrectly held that the IRS had abandoned its request for in camera review of the tapes, and that the court should have listened to the tapes before ruling that the crime-fraud exception was inapplicable. Answering Brief for United States as Appellee in No. 85-6065, and Opening Brief for United States as Cross-Appellant in No. 85-6105 (CA9), pp. 48-49 (filed under seal). Respondents contended, in contrast, that the District Court erred in the opposite direction: they argued that it was error for the court to rely on the partial transcripts, because “[i]n this Circuit, a party cannot rely on the communications themselves — whether by listening to the tapes or reviewing excerpts or transcripts of them — to bear its burden to invoke the exception but must bear the burden by independent evidence. This is the clear and unambiguous holding of United States v. Shewfelt, 455 F. 2d 836 (9th Cir.), cert. denied, 406 U. S. 944 (1972).” (Emphasis added.) Answering Brief for Church of Scientology of California and Mary Sue Hubbard as Cross-Appellees in No. 85-6065, and Reply Brief as Appellants in No. 85-6105 (CA9), p. 24 (filed under seal).

The panel of the Court of Appeals agreed with respondents that, under Shewfelt, “the Government’s evidence of crime or fraud must come from sources independent of the attorney-client communications recorded on the tapes,” 809 F. 2d, at 1418, thereby implicitly holding that even if the IRS had properly preserved its demand for in camera review, the District Court would have been without power to grant it. The Court of Appeals then reviewed “the Government’s independent evidence.” Id., at 1418-1419. That review appears to have excluded the partial transcripts, and thus the Court of Appeals implicitly agreed with respondents that it was improper for the District Court to have considered even the partial transcripts. See Brief for United States 7. On the basis of its review of the “independent evidence,” the Court of Appeals affirmed the District Court’s determination that the IRS had failed to establish the applicability of the crime-fraud exception. 809 F. 2d, at 1419.

The full Court of Appeals vacated the panel opinion and ordered en banc review, on the basis of a perceived conflict between Shewfelt and United States v. Friedman, 445 F. 2d 1076 (CA9), cert. denied sub nom. Jacobs v. United States, 404 U. S. 958 (1971). 832 F. 2d 127 (1987). Upon consideration, a majority of the limited en banc court, see Ninth Circuit Rule 35-3, determined that the intracircuit conflict was illusory; it agreed with respondents that Friedman did not address the independent-evidence rule. 842 F. 2d 1135, 1136, amended by 850 F. 2d 610 (1988). The limited en banc court vacated the order for rehearing en banc as improvidently granted and reinstated the panel opinion in relevant part. Ibid.

II

This Court is evenly divided with respect to the issue of the power of a district court to place restrictions upon the dissemination by the IRS of information obtained through a § 7604 subpoena-enforcement action. We therefore affirm the judgment of the Court of Appeals insofar as it upheld the District Court’s conditional-enforcement order.

Ill

Questions of privilege that arise in the course of the adjudication of federal rights are “governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Fed. Rule Evid. 501. We have recognized the attorney-client privilege under federal law, as “the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U. S. 383, 389 (1981). Although the underlying rationale for the privilege has changed over time, see 8 J. Wigmore, Evidence §2290 (McNaughton rev. 1961), courts long have viewed its central concern as one “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn, 449 U. S., at 389. That purpose, of course, requires that clients be free to “make full disclosure to their attorneys” of past wrongdoings, Fisher v. United States, 425 U. S. 391, 403 (1976), in order that the client may obtain “the aid of persons having knowledge of the law and skilled in its practice,” Hunt v. Blackburn, 128 U. S. 464, 470 (1888).

The attorney-client privilege is not without its costs. Cf. Trammel v. United States, 445 U. S. 40, 50 (1980). “[Sjince the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose.” Fisher, 425 U. S., at 403. The attorney-client privilege must necessarily protect the confidences of wrongdoers, but the reason for that protection—the centrality of open client and attorney communication to the proper functioning of our adversary system of justice—“ceas[esj to operate at a certain point, namely, where the desired advice refers not to prior ivrongdoing, but to future 'wrongdoing.” 8 Wigmore, §2298, p. 573 (emphasis in original); see also Clark v. United States, 289 U. S. 1, 15 (1933). It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the “seal of secrecy,” ibid., between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud” or crime. O’Rourke v. Darbishire, [1920] A. C. 581, 604 (P. C.).

The District Court and the Court of Appeals found that the tapes at issue in this case recorded attorney-client communications and that the privilege had not been waived when the tapes were inadvertently given to Armstrong. 809 F. 2d, at 1417 (noting that Armstrong had acquired the tapes from L. Ron Hubbard’s personal secretary, who was under the mistaken impression that the tapes were blank). These findings are not at issue here. Thus, the remaining obstacle to respondents’ successful assertion of the privilege is the Government’s contention that the recorded attorney-client communications were made in furtherance of a future crime or fraud.

A variety of questions may arise when a party raises the crime-fraud exception. The parties to this case have not been in complete agreement as to which of these questions are presented here. In an effort to clarify the matter, we observe, first, that we need not decide the quantum of proof necessary ultimately to establish the applicability of the crime-fraud exception. Cf. Clark, 289 U. S., at 15, quoting O’Rourke; S. Stone & R. Liebman, Testimonial Privileges §1.65, p. 107 (1983). Rather, we are concerned here with the type of evidence that may be used to make that ultimate showing. Within that general area of inquiry, the initial question in this case is whether a district court, at the request of the party opposing the privilege, may review the allegedly privileged communications in camera to determine whether the crime-fraud exception applies. If such in camera review is permitted, the second question we must consider is whether some threshold evidentiary showing is needed before the district court may undertake the requested review. Finally, if a threshold showing is required, we must consider the type of evidence the opposing party may use to meet it: i. e., in this case, whether the partial transcripts the IRS possessed may be used for that purpose.

A

We consider first the question whether a district court may ever honor the request of the party opposing the privilege to conduct an in camera review of allegedly privileged communications to determine whether those communications fall within the crime-fraud exception. We conclude that no express provision of the Federal Rules of Evidence bars such use of in camera review, and that it would be unwise to prohibit it in all instances as a matter of federal common law.

(1)

At first blush, two provisions of the Federal Rules of Evidence would appear to be relevant. Rule 104(a) provides: “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court .... In making its determination it is not bound by the rules of evidence except those with respect to privileges. ” (Emphasis added.) Rule 1101(c) provides: “The rule with respect to privileges applies at all stages of all actions, cases, and proceedings.” Taken together, these Rules might be read to establish that in a summons-enforcement proceeding, attorney-client communications cannot be considered by the district court in making its crime-fraud ruling: to do otherwise, under this view, would be to make the crime-fraud determination without due regard to the existence of the privilege.

Even those scholars who support this reading of Rule 104(a) acknowledge that it leads to an absurd result.

“Because the judge must honor claims of privilege made during his preliminary fact determinations, many exceptions to the rules of privilege will become ‘dead letters,’ since the preliminary facts that give rise to these exceptions can never be proved. For example, an exception to the attorney-client privilege provides that there is no privilege if the communication was made to enable anyone to commit a crime or fraud. There is virtually no way in which the exception can ever be proved, save by compelling disclosure of the contents of the communication; Rule 104(a) provides that this cannot be done.” 21 C. Wright & K. Graham, Federal Practice & Procedure: Evidence §5055, p. 276 (1977) (footnote omitted).

We find this Draconian interpretation of Rule 104(a) inconsistent with the Rule’s plain language. The Rule does not provide by its terms that all materials as to which a “clai[m] of privilege” is made must be excluded from consideration. In that critical respect, the language of Rule 104(a) is markedly different from the comparable California evidence rule, which provides that “the presiding officer may not require disclosure of information claimed, to be privileged under this division in order to rule on the claim of privilege.” Cal. Evid. Code Ann. § 915(a) (West Supp. 1989) (emphasis added). There is no reason to read Rule 104(a) as if its text were identical to that of the California rule.

Nor does it make sense to us to assume, as respondents have throughout this litigation, that once the attorney-client nature of the contested communications is established, those communications must be treated as presumptively privileged for evidentiary purposes until the privilege is “defeated” or “stripped away” by proof that the communications took place in the course of planning future crime or fraud. See Brief for Respondents 15 (asserting that respondents had “established their entitlement to the privilege,” and that the communications had been “determined to be privileged,” before the crime-fraud question was resolved). Although some language in Clark might be read as supporting this view, see 289 U. S., at 15, respondents acknowledged at oral argument that no prior holding of this Court requires the imposition of a strict progression of proof in crime-fraud cases. See Tr. of Oral Arg. 33-35.

We see no basis for holding that the tapes in this case must be deemed privileged under Rule 104(a) while the question of crime or fraud remains open. Indeed, respondents concede that “if the proponent of the privilege is able to sustain its burden only by submitting the communications to the court” for in camera review, Brief for Respondents 14-15 (emphasis in original), the court is not required to avert its eyes (or close its ears) once it concludes that the communication would be privileged, if the court found the crime-fraud exception inapplicable. Rather, respondents acknowledge that the court may “then consider the same communications to determine if the opponent of the privilege has established that the crime-fraud exception applies.” Id., at 15. Were the tapes truly deemed privileged under Rule 104(a) at the moment the trial court concludes they contain potentially privileged attorney-client communications, district courts would be required to draw precisely the counterintuitive distinction that respondents wisely reject. We thus shall not adopt a reading of Rule 104(a) that would treat the contested communications as “privileged” for purposes of the Rule, and we shall not interpret Rule 104(a) as categorically prohibiting the party opposing the privilege on crime-fraud grounds from relying on the results of an in camera review of the communications.

(2)

Having determined that Rule 104(a) does not prohibit the in camera review sought by the IRS, we must address the question as a matter of the federal common law of privileges. See Rule 501. We conclude that a complete prohibition against opponents’ use of m camera review to establish the applicability of the crime-fraud exception is inconsistent with the policies underlying the privilege.

We begin our analysis by recognizing that disclosure of allegedly privileged materials to the district court for purposes of determining the merits of a claim of privilege does not have the legal effect of terminating the privilege. Indeed, this Court has approved the practice of requiring parties who seek to avoid disclosure of documents to make the documents available for in camera inspection, see Kerr v. United States District Court for Northern District of Cal., 426 U. S. 394, 404-405 (1976), and the practice is well established in the federal courts. See, e. g., In re Antitrust Grand Jury, 805 F. 2d 155, 168 (CA6 1986); In re Vargas, 723 F. 2d 1461, 1467 (CA10 1983); United States v. Lawless, 709 F. 2d 485, 486, 488 (CA7 1983); In re Grand Jury Witness, 695 F. 2d 359, 362 (CA9 1982). Respondents do not dispute this point: they acknowledge that they would have been free to request in camera review to establish the fact that the tapes involved attorney-client communications, had they been unable to muster independent evidence to serve that purpose. Brief for Respondents 14-15.

Once it is clear that in camera review does not destroy the privileged nature of the contested communications, the question of the propriety of that review turns on whether the policies underlying the privilege and its exceptions are better fostered by permitting such review or by prohibiting it. In our view, the costs of imposing an absolute bar to consideration of the communications in camera for purpose of establishing the crime-fraud exception are intolerably high.

“No matter how light the burden of proof which confronts the party claiming the exception, there are many blatant abuses of privilege which cannot be substantiated by extrinsic evidence. This is particularly true . . . of. . . situations in which an alleged illegal proposal is made in the context of a relationship which has an apparent legitimate end.” Note, The Future Crime or Tort Exception to Communications Privileges, 77 Harv. L. Rev. 730, 737 (1964). A per se rule that the communications in question may never be considered creates, we feel, too great an impediment to the proper functioning of the adversary process. See generally 2 D. Louisell & C. Mueller, Federal Evidence § 213, pp. 828-829 (1985); 2 J. Weinstein & M. Berger, Weinstein’s Evidence ¶503(d)(l)[01], p. 503-71 (1988). This view is consistent with current trends in the law. Compare National Conference of Commissioners on Uniform State Laws, Uniform Rules of Evidence, Rule 26(2)(a) (1953 ed.) (“Such privileges shall not extend ... to a communication if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the legal service was sought or obtained in order to enable or aid the client to commit or plan to commit a crime or a tort” (emphasis added)), reprinted in 1 J. Bailey & O. Trelles, The Federal Rules of Evidence: Legislative Histories and Related Documents (1980), with Uniform Rule of Evidence 502 (adopted 1974), 13A U. L. A. 256 (1986) (omitting explicit independent evidence requirement).

B

We turn to the question whether in camera review at the behest of the party asserting the crime-fraud exception is always permissible, or, in contrast, whether the party seeking in camera review must make some threshold showing that such review is appropriate. In addressing this question, we attend to the detrimental effect, if any, of in camera review on the policies underlying the privilege and on the orderly administration of justice in our courts. We conclude that some such showing must be made.

Our endorsement of the practice of testing proponents’ privilege claims through in camera review of the allegedly privileged documents has not been without reservation. This Court noted in United States v. Reynolds, 345 U. S. 1 (1953), a case which presented a delicate question concerning the disclosure of military secrets, that “examination of the evidence, even by the judge alone, in chambers” might in some cases “jeopardize the security which the privilege is meant to protect.” Id., at 10. Analogizing to claims of Fifth Amendment privilege, it observed more generally: “Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses.” Id., at 8.

The Court in Reynolds recognized that some compromise must be reached. See also United States v. Weisman, 111 F. 2d 260, 261-262 (CA2 1940). In Reynolds, it declined to “go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case.” 345 U. S., at 10 (emphasis added). We think that much the same result is in order here.

A blanket rule allowing in camera review as a tool for determining the applicability of the crime-fraud exception, as Reynolds suggests, would place the policy of protecting open and legitimate disclosure between attorneys and clients at undue risk. There is also reason to be concerned about the possible due process implications of routine use of in camera proceedings. See, e. g., In re John Doe Corp., 675 F. 2d 482, 489-490 (CA2 1982); In re Special September 1978 Grand Jury, 640 F. 2d 49, 56-58 (CA7 1980). Finally, we cannot ignore the burdens in camera review places upon the district courts, which may well be required to evaluate large evi-dentiary records without open adversarial guidance by the parties.

There is no reason to permit opponents of the privilege to engage in groundless fishing expeditions, with the district courts as their unwitting (and perhaps unwilling) agents. Courts of Appeals have suggested that- in camera review is available to evaluate claims of crime or fraud only “when justified,” In re John Doe Corp., 675 F. 2d, at 490, or “[i]n appropriate cases,” In re Sealed Case, 219 U. S. App. D. C. 195, 217, 676 F. 2d 793, 815 (1982) (opinion of Wright, J.). Indeed, the Government conceded at oral argument (albeit reluctantly) that a district court would be mistaken if it reviewed documents in camera solely because “the government beg[ged it]” to do so, “with no reason to suspect crime or fraud.” Tr. of Oral Arg. 26; see also id., at 60. We agree.

In fashioning a standard for determining when in camera review is appropriate, we begin with the observation that “in camera inspection ... is a smaller intrusion upon the confidentiality of the attorney-client relationship than is public disclosure.” Fried, Too High a Price for Truth: The Exception to the Attorney-Client Privilege for Contemplated Crimes and Frauds, 64 N. C. L. Rev. 443, 467 (1986). We therefore conclude that a lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege. Ibid. The threshold we set, in other words, need not be a stringent one.

We think that the following standard strikes the correct balance. Before engaging in in camera review to determine the applicability of the crime-fraud exception, “the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person,” Caldwell v. District Court, 644 P. 2d 26, 33 (Colo. 1982), that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.

Once that showing is made, the decision whether to engage in in camera review rests in the sound discretion of the district court. The court should make that decision in light of the facts and circumstances of the particular case, including, among other things, the volume of materials the district court has been asked to review, the relative importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply. The district court is also free to defer its in camera review if it concludes that additional evidence in support of the crime-fraud exception may be available that is not allegedly privileged, and that production of the additional evidence will not unduly disrupt or delay the proceedings.

c

The question remains as to what kind of evidence a district court may consider in determining whether it has the discretion to undertake an in camera review of an allegedly privileged communication at the behest of the party opposing the privilege. Here, the issue is whether the partial transcripts may be used by the IRS in support of its request for in camera review of the tapes.

The answer to that question, in the first instance, must be found in Rule 104(a), which establishes that materials that have been determined to be privileged may not be considered in making the preliminary determination of the existence of a privilege. Neither the District Court nor the Court of Appeals made factual findings as to the privileged nature of the partial transcripts, so we cannot determine on this record whether Rule 104(a) would bar their consideration.

Assuming for the moment, however, that no rule of privilege bars the IRS’ use of the partial transcripts, we fail to see what purpose would be served by excluding the transcripts from the District Court’s consideration. There can be little doubt that partial transcripts, or other evidence directly but incompletely reflecting the content of the contested communications, generally will be strong evidence of the subject matter of the communications themselves. Permitting district courts to consider this type of evidence would aid them substantially in rapidly and reliably determining whether in camera review is appropriate.

Respondents suggest only one serious countervailing consideration. In their view, a rule that would allow an opponent of the privilege to rely on such material would encourage litigants to elicit confidential information from disaffected employees or others who have access to the information. Tr. of Oral Arg. 40-41. We think that deterring the aggressive pursuit of relevant information from third-party sources is not sufficiently central to the policies of the attorney-client privilege to require us to adopt the exclusionary rule urged by respondents. We conclude that the party opposing the privilege may use any nonprivileged evidence in support of its request for in camera review, even if its evidence is not “independent” of the contested communications as the Court of Appeals uses that term.

D

In sum, we conclude that a rigid independent evidence requirement does not comport with “reason and experience,” Fed. Rule Evid. 501, and we decline to adopt it as part of the developing federal common law of evidentiary privileges. We hold that in camera review may be used to determine whether allegedly privileged attorney-client communications fall within the crime-fraud exception. We further hold, however, that before a district court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception’s applicability. Finally, we hold that the threshold showing to obtain in camera review may be met by using any relevant evidence, lawfully obtained, that has not been adjudicated to be privileged.

Because the Court of Appeals employed a rigid independent-evidence requirement which categorically excluded the partial transcripts and the tapes themselves from consideration, we vacate its judgment on this issue and remand the case for further proceedings consistent with this opinion. On remand, the Court of Appeals should consider whether the District Court’s refusal to listen to the tapes in toto was justified by the manner in which the IRS presented and preserved its request for in camera review. In the event the Court of Appeals holds that the IRS’ demand for review was properly preserved, the Court of Appeals should then determine, or remand the case to the District Court to determine in the first instance, whether the IRS has presented a sufficient evidentiary basis for in camera review, and whether, if so, it is appropriate for the District Court, in its discretion, to grant such review.

It is so ordered.

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

       Compare United States v. Author Services, Inc., 804 F. 2d 1520, 1525-1526 (CA9 1986), opinion amended, 811 F. 2d 1264 (1987), with United States v. Barrett, 837 F. 2d 1341 (CA5 1988) (en bane), cert, pending, No. 87-1705.

       Compare United States v. Shewfelt, 455 F. 2d 836 (CA9), cert, denied, 406 U. S. 944 (1972), with In re Berkley & Co., 629 F. 2d 548 (CA8 1980).

         Respondents suggest that this case is now moot, because L. Ron Hubbard died January 24,1986, thus foreclosing any further criminal investigation of him, and because the IRS civil audit of Mr. Hubbard for the relevant tax years was terminated as a “‘closed case.’” Brief in Opposition 8-10. The IRS disagrees, largely because the civil tax audit has not been terminated, and its result could affect the liability of Mr. Hubbard’s estate. We are satisfied that a live controversy remains.

       The current Clerk of the Superior Court, Frank S. Zolin, is a named respondent in this case, but did not participate in briefing or argument before the Court of Appeals or before this Court. We use the term “respondents” to refer to Mary Sue Hubbard and the Church, the only active respondents in this Court.

       The IRS denied that the transcripts were made using tapes obtained from the Superior Court or from any other illicit source. Agent Petersell declared: “The partial transcripts were not prepared by the United States from the tapes in the custody of the Superior Court for Los Angeles County, California, nor from copies of the tape now in the custody of the Clerk of this Court. The transcripts were obtained from a confidential source by another Special Agent prior to the issuance of this summons. The source was not a party to Church of Scientology v. Armstrong, No. 410153, nor an attorney for any party in that proceeding.” See Declaration of Agent Petersell in No. CV85-0440-HLH (Tx) (March 21, 1985). As the District Court made no finding of illegality, we assume for present purposes that the transcripts were legally obtained.

       See also Hazard, An Historical Perspective on the Attorney-Client Privilege, 66 Calif. L. Rev. 1061 (1978); Developments in the Law—Privileged Communications, 98 Harv. L. Rev. 1450, 1455-1458 (1985).

       We note, however, that this Court’s use in Clark v. United States, 289 U. S. 1, 14 (1933), of the phrase “prima facie case” to describe the showing needed to defeat the privilege has caused some confusion. See Gardner, The Crime or Fraud Exception to the Attorney-Client Privilege, 47 A. B. A. J. 708, 710-711 (1961); Note, 51 Brooklyn L. Rev. 913, 918-919 (1985) (“The prima facie standard is commonly used by courts in civil litigation to shift the burden of proof from one party to the other. In the context of the fraud exception, however, the standard is used to dispel the privilege altogether ivithout affording the client an opportunity to rebut the prima facie showing” (emphasis in original)). See also In re Grand Jury Subpoena Duces Tecum Dated September 15, 1983, 731 F. 2d 1032, 1039 (CA2 1984). In using the phrase in Clark, the Court was aware of scholarly controversy concerning the role of the judge in the decision of such preliminary questions of fact. See 289 U. S.,at 14, n. The quantum of proof needed to establish admissibility was then, and remains, subject to question. See, e. g., Maguire & Epstein, Preliminary Questions of Fact in Determining the Admissibility of Evidence, 40 Harv. L. Rev. 392, 400 (criticizing courts insofar as they “have allowed themselves to be led into holding that only a superficial, one-sided showing is allowable on any admissibility controversy”), 414-424 (exploring alternative rules) (1927); 21 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5052, p. 248 (1977) (suggesting, with respect to the process of proving preliminary questions of fact, that “[pjerhaps it is a task, like riding a bicycle, that is easier to do if you do not think too much about what you are doing”). In light of the narrow question presented here for review, this case is not the proper occasion to visit these questions.

       In addition, the facts of this case also suggest the question whether the partial transcripts the IRS possessed may be used by it in meeting its ultimate burden. It is by no means clear that the Government has presented that question for this Court’s review. The Government noted in its petition for certiorari that the Court of Appeals had not considered the partial transcripts in making its determination that the IRS had failed to establish the applicability of the crime-fraud exception. See Pet. for Cert. 7-8. The question presented for review, however, relates solely to in camera review, as does the relevant discussion in the petition. See id., at 20-23.
      The question whether the partial transcripts may be used in meeting the IRS’ ultimate burden of demonstrating the applicability of the crime-fraud exception is fairly included within the question presented, however, and we therefore address it. See this Court's Rule 21.1(a). The answer to the question would follow inexorably from our discussion in any event.

       There is some ambiguity as to whether the Court of Appeals squarely barred all use of in camera review for these purposes, although that is the fairest reading of the court’s opinion. Respondents at times appear to advocate that position, see Brief in Opposition 19-21, but at times suggest otherwise, see Brief for Respondents 13; see also Reply Brief for United States 15. The ambiguity in respondents’ position is perhaps due to the fact that they accept the premise that in camera review is permitted under Circuit precedent in different circumstances from those at issue in this case — i. e., where the proponent of the privilege seeks in camera review to demonstrate the applicability of the privilege in the first instance, see Brief for Respondents 14, or when the proponent requests in camera review to ensure that an order requiring production of some materials held not to be privileged does not inadvertently yield privileged information, see id., at 20-21.

       A good example of the effect of the California rule is provided by the record in this case. While the disputed matters were being briefed in Federal District Court, the State Superior Court held a hearing on a motion by Government attorneys seeking access to materials in the Armstrong case for ongoing litigation in Washington, D. C. The transcript of the hearing was made part of the record before the District Court in this case. Regarding the tapes, the Government argued to the Superior Court that the attorney-client conversations on the tapes reflect the planning or commission of a crime or fraud. Tr. of Hearing of February 11, 1985, in No. C420 153 (Super. Ct. Cal), p. 52. That claim was supported by several declarations and other extrinsic evidence. The Government noted, however, that “the tape recordings themselves would ... be the best evidence of exactly what was going on.” Id., at 53. The intervenors stressed that, as a matter of California law, “you can’t show the tapes are not privileged by the contents.” Id., at 58; see also id., at 68. The Superior Court acknowledged the premise that “you can’t look at the conversation itself to make [the crime-fraud] determination,” id., at 74, and concluded that the extrinsic evidence was not sufficient to make out a prima facie case that the crime-fraud exception applies, id., at 75-76.

       There are no findings as to whether respondents themselves would be privileged to resist a demand that they produce the partial transcripts. Nor has there been any legal and factual exploration of whether respondents may claim privilege as a bar to the IRS’ use of the copy of the transcripts it lawfully obtained from a third party. See, e. g., Developments in the Law — Privileged Communications, 98 Harv. L. Rev., at 1648, 1660-1661 (discussing controversy concerning the legal effect of an inadvertent disclosure which does not constitute a waiver of the privilege, and citing cases); 8 Wigmore § 2326.

       In addition, we conclude that evidence that is not “independent” of the contents of allegedly privileged communications —like the partial transcripts in this case — may be used not only in the pursuit of in camera review, but also may provide the evidentiary basis for the ultimate showing that the crime-fraud exception applies. We see little to distinguish these two uses: in both circumstances, if the evidence has not itself been determined to be privileged, its exclusion does not serve the policies which underlie the attorney-client privilege. See generally Note, The Future Crime or Tort Exception to Communications Privileges, 77 Harv. L. Rev. 730, 737 (1964).

       The Court of Appeals also will have the opportunity to review the partial transcripts, and to determine whether, even without in camera review of the tapes, the IRS presented sufficient evidence to establish that the tapes are within the crime-fraud exception.


source: Caselaw Access Project

author: Justice O’Connor Justice Scalia, Justice Brennan,

license: Public Domain

text:
    MASSACHUSETTS v. OAKES
    CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS
    No. 87-1651.
    Argued January 17, 1989
    Decided June 21, 1989

      James M. Shannon, Attorney General of Massachusetts, argued the cause for petitioner. With him on the briefs were Phyllis N. Segal and A. John Pappalardo, Deputy Attorneys General, and Madelyn F. Wessel, Judy G. Zeprun, and H, Reed Witherby, Assistant Attorneys General.

      Richard J. Vita argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging reversal were filed for the State of Indiana by Linley E. Pearson, Attorney General, and William E. Daily, Deputy Attorney General; for the District Attorney for the Middle District of the Commonwealth of Massachusetts by John J. Conte, pro se, and Daniel F. Toomey; for Citizens for Decency Through Law, Inc., by Bruce A. Taylor; for Covenant House et al. by Gregoi~y A. Loken; and for the Massachusetts Society for Prevention of Cruelty to Children et al. by Elizabeth K. Spahn.

      Briefs of amici curiae urging affirmance were filed for the American Sunbathing Association, Inc., by Robert T. Page; and for the Law and Humanities Institute by Edward de Grazia.

   Justice O’Connor

announced the judgment of the Court and delivered an opinion,

in which The Chief Justice, Justice White, and Justice Kennedy join.

This case involves an overbreadth challenge to a Massachusetts criminal statute generally prohibiting adults from posing or exhibiting nude minors for purposes of visual representation or reproduction in any book, magazine, pamphlet, motion picture, photograph, or picture.

I

The statute at issue m this case, Mass. Gen. Laws § 272:29A (1986), was enacted in 1982. It provides as follows:

“Whoever with knowledge that a person is a child under eighteen years of age, or whoever while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to pose or be exhibited in a state of nudity or to participate or engage in any live performance or in any act that depicts, describes or represents sexual conduct for purpose of visual representation or reproduction in any book, magazine, pamphlet, motion picture film, photograph, or picture shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand dollars nor more than fifty thousand dollars, or by both such a fine and imprisonment.
“It shall be a defense in any prosecution pursuant to this section that such visual representation or reproduction of any posture or exhibition in a state of nudity was produced, processed, published, printed or manufactured for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library.
“As used in this section, the term ‘performance’ shall mean any play, dance or exhibit shown or presented to an audience of one or more persons.”

Another statute, Mass. Gen. Laws §272:31 (1986), defines “nudity” as

“uncovered or less than opaquely covered post-pubertal human genitals, pubic areas, the post-pubertal human female breast below a point immediately above the top of the areola, or the covered male genitals in a discernibly turgid state. For purposes of this definition, a female breast is considered uncovered if the nipple or the nipple or areola only are covered. In the case of pre-pubertal persons nudity shall mean uncovered or less than opaquely covered pre-pubertal human genitals or pubic area.”

In 1984, respondent Douglas Oakes took approximately 10 color photographs of his partially nude and physically mature 14-year-old stepdaughter, L. S., who at the time was attending modeling school. Tr. 22-30. The photographs depict L. S. sitting, lying, and reclining on top of a bar, clad only in a red and white striped bikini panty and a red scarf. The scarf does not cover L. S.’s breasts, which are fully exposed in all the photographs. The dissent below described the photographs as “sexually provocative photographs of the type frequently found in magazines displayed by storekeepers in sealed cellophane wrappers.” 401 Mass. 602, 606, 518 N. E. 2d 836, 838 (1988). See also Brief for Law and Humanities Institute as Amicus Curiae 47 (referring to the photographs as “pin-up” art).

Oakes was indicted and tried for violating § 29A. The jury returned a general verdict of guilty, and Oakes was sentenced to 10 years’ imprisonment. Because the jury was not instructed on the “sexual conduct” portion of §29A, Tr. 101-104, its verdict rested on a finding that Oakes “hire[d], coerce[d], solicit[ed] or entice[d], employ[ed], procure[d], use[d], cause[d], encourage[d], or knowingly permit[ted]” L. S. to “pose or be exhibited in a state of nudity.” The acts proscribed by § 29A are listed disjunctively, so it is impossible to ascertain which of those acts the jury concluded Oakes had committed. The jury was instructed on the exemptions set forth in § 29A, Tr. 104, but its guilty verdict indicates that the exemptions were found to be inapplicable.

A divided Massachusetts Supreme Judicial Court reversed Oakes’ conviction. The majority first held that Oakes’ posing of L. S. was speech for First Amendment purposes because it could not “fairly be isolated” from the “expressive process of taking her picture.” 401 Mass., at 604, 518 N. E. 2d, at 837. Without addressing whether § 29A could be constitutionally applied to Oakes, the majority struck down the statute as substantially overbroad under the First Amendment. The majority concluded that §29A “criminalize[d] conduct that virtually every person would regard as lawful,” and would make “a criminal of a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool.” Id., at 605, 518 N. E. 2d, at 838. The dissent argued that Oakes’ conduct did not constitute speech for First Amendment purposes: “Soliciting, causing, or encouraging, or permitting a minor to pose for photographs is no more speech than is setting a house afire in order to photograph a burning house.” Id., at 610, 518 N. E. 2d, at 841. The dissent also argued that even if the “nudity” portion of § 29A was overbroad, that portion should have been severed from the remainder of the statute. Id., at 611, n. 4, 518 N. E. 2d, at 841, n. 4.

We granted certiorari to review the decision of the Massachusetts Supreme Judicial Court, 486 U. S. 1022 (1988), and now vacate and remand.

II

The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others. Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 574 (1987); Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503-504 (1985). See generally Monaghan, Overbreadth, 1981 S. Ct. Rev. 1. The doctrine is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions. Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 634 (1980). Overbreadth doctrine has wide-ranging effects, for a statute found to be substantially overbroad is subject to facial invalidation. We have therefore referred to overbreadth as “man-ifestl[y] strong medicine” that is employed “sparingly, and only as a last resort.” Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973).

We have addressed overbreadth only where its effect might be salutary. In Bigelow v. Virginia, 421 U. S. 809 (1975), the defendant argued that the criminal statute under which he was convicted was overbroad. After the defendant was convicted, the statute was amended. The amendment eliminated any possibility that the statute’s former version would “be applied again to [the defendant] or [would] chill the rights of others.” Id., at 817-818. Because, “[a]s a practical matter,” the question of the statute’s “overbreadth ha[d] become moot for the future,” we declined to “rest our decision on overbreadth,” choosing instead to consider whether the former version of the statute had been constitutionally applied to the defendant. Id., at 818.

In our view, Bigelow stands for the proposition that overbreadth analysis is inappropriate if the statute being challenged has been amended or repealed. The statute in Bigelow was challenged on both overbreadth and as-applied grounds. There was no need for any comment on the over-breadth challenge, as the defendant’s conviction could have been — and indeed was — reversed on a narrower and alternative ground, i. e., that the statute was unconstitutional as applied. See id., at 829. That overbreadth was discussed and rejected as a mode of analysis is, we think, evidence that application of Bigeloiv does not depend on whether other questions presented will be answered adversely to the defendant. Indeed, the Bigeloiv overbreadth analysis appears to have been based on the argument made by the State that the amendment of the statute being challenged eliminated the “justification for the application of the overbreadth doctrine.” Brief for Appellee in Bigelow v. Virginia, O. T. 1974, No. 73-1309, p. 19, n. 10.

The procedural posture of the overbreadth question in this case is indistinguishable from that in Bigelow. After we granted certiorari, §29A was amended. See 1988 Mass. Acts, ch. 226. The current version of §29A, which is set forth in the margin, adds a “lascivious intent” requirement to the “nudity” portion, but not the “sexual conduct” portion, of the former version of § 29A. In addition, the current version of § 29A contains no exemptions. Because it has been repealed, the former version of § 29A cannot chill protected expression in the future. Thus, as in Bigelow, the over-breadth question in this case has become moot as a practical matter, and we do not address it.

There is nothing constitutionally offensive about declining to reach Oakes’ overbreadth challenge. Overbreadth is a judicially created doctrine designed to prevent the chilling of protected expression. An overbroad statute is not void ab initio, but rather voidable, subject to invalidation notwithstanding the defendant’s unprotected conduct out of solicitude to the First Amendment rights of parties not before the court. Because the special concern that animates the over-breadth doctrine is no longer present after the amendment or repeal of the challenged statute, we need not extend the benefits of the doctrine to a defendant whose conduct is not protected. See Pope v. Illinois, 481 U. S. 497, 501-502 (1987) (“Facial invalidation” of a repealed statute “would not serve the purpose of preventing future prosecutions under a constitutionally defective standard”). Cf. Upper Midwest Booksellers Assn. v. Minneapolis, 602 F. Supp. 1361, 1369 (Minn.) (amendment of ordinance rendered overbreadth challenge moot, but no conviction involved), aff’d, 780 F. 2d 1389 (CA8 1985). We also note that the amendment of a statute pending appeal to eliminate overbreadth is not different, in terms of applying the new law to past conduct, from a state appellate court adopting a limiting construction of a statute to cure overbreadth. We have long held that in such situations the statute, as construed, “may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendants.” Dombrowski v. Pfister, 380 U. S. 479, 491, n. 7 (1965) (citations omitted). See also Broadrick v. Oklahoma, 413 U. S., at 613 (“Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute”).

HH HH b — I

Massachusetts has not asked us to consider Oakes’ as-applied challenge to the former version of § 29A in its petition for certiorari, and we took the case to decide the over-breadth question alone. When the sole question on which we granted certiorari has become moot, our usual course, in cases coming to us from state courts when part of the dispute remains alive, is to vacate the judgment below and remand for further proceedings. See DeFunis v. Odegaard, 416 U. S. 312 (1974). We have dismissed state court cases rather than vacate and remand them, but only in situations where no state or federal claim remained once the particular claim before us became moot,, thereby making a remand unnecessary. See Attorney General of New Jersey v. First Family Mortgage Corp., of Florida, 487 U. S. 1213 (1988) (underlying mortgage foreclosure dispute ended because debt was satisfied); Michigan v. Shabaz, 478 U. S. 1017 (1986) (respondent died); Tiverton Board of License Comm’rs v. Pastore, 469 U. S. 238 (1986) (respondent went out of business and no longer had any claim to press); Aikens v. California, 406 U. S. 813 (1972) (petitioner obtained complete relief under state constitution before federal constitutional claim was decided); Ditson v. California, 372 U. S. 933 (1963) (petitioner executed before petition for certiorari was acted upon). Here, a live dispute remains as to whether the former version of § 29A can constitutionally be applied to Oakes. Thus, we vacate the judgment below and remand for further proceedings.

Vacated and remanded.

Justice Scalia,

with whom Justice Blackmun joins, and with whom Justice Brennan, Justice Marshall, and Justice Stevens join as to Part I,

concurring in the judgment in part and dissenting in part.

I

I do not agree with Justice O’Connor’s conclusion that the overbreadth defense is unavailable when the statute alleged to run afoul of that doctrine has been amended to eliminate the basis for the overbreadth challenge. It seems to me strange judicial theory that a conviction initially invalid can be resuscitated by postconviction alteration of the statute under which it was obtained. Indeed, I would even think it strange judicial theory that an act which is lawful when committed (because the statute that proscribes it is overbroad) can become retroactively unlawful if the statute is amended preindictment. Of course the reason we are tempted to create such curiosities is that the overbreadth doctrine allows a defendant to attack a statute because of its effect on conduct other than the conduct for which the defendant is being punished, thus protecting the right to engage in conduct not directly before the court. See Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503 (1985). And the argument is made that it is senseless to apply this doctrine when the protection of other conduct can no longer be achieved, which is the case when the statute has already been amended to eliminate any unconstitutional “chilling” of First Amendment rights. Even as a policy argument, this analysis fails. The over-breadth doctrine serves to protect constitutionally legitimate speech not merely ex post, that is, after the offending statute is enacted, but also ex ante, that is, when the legislature is contemplating what sort of statute to enact. If the promulgation of overbroad laws affecting speech was cost free, as Justice O’Connor’s new doctrine would make it — that is, if no conviction of constitutionally proscribable conduct would be lost, so long as the offending statute was narrowed before the final appeal — then legislatures would have significantly .reduced incentive to stay within constitutional bounds in the first place. When one takes account of those overbroad statutes that are never challenged, and of the time that elapses before the ones that are challenged are amended to come within constitutional bounds, a substantial amount of legitimate speech would be “chilled” as a consequence of the rule Justice O’Connor would adopt.

More fundamentally, however, even if Justice O’Con-nor’s policy analysis were correct, it seems to me that we are only free to pursue policy objectives through the modes of action traditionally followed by the courts and by the law. In my view we have the power to adopt a rule of law which says that the defendant’s acts were lawful because the statute that sought to prohibit them was overbroad and therefore invalid. I do not think we have the power to pursue the policy underlying that rule of law more directly and precisely, saying that we will hold the defendant criminally liable or not, depending upon whether, by the time his last appeal is exhausted, letting him off would serve to eliminate any First Amendment “chill.” Even if one were of the view that some of the uses of the over-breadth doctrine have been excessive, this would not be a legitimate manner in which to rein it in. Justice O’Connor seeks to cloak its extravagant constitutional doctrine in conservative garb borrowed from an entirely different area of the law, saying that “[a]n overbroad statute is not void ab initio, but rather voidable.” Ante, at 584. I have heard of a voidable contract, but never of a voidable law. The notion is bizarre.

II

Since I find that the subsequent amendment of the statute under which Oakes acted and was convicted does not eliminate the defense of overbreadth, I reach the question whether the statute is impermissibly overbroad. I do not believe that it is. Because the Court as a whole does not reach the question, I sketch my views on it only in brief.

In order to be invalidated under our overbreadth doctrine, a statute’s unconstitutional application must be substantial, not just in an absolute sense, but “judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973). We held in New York v. Ferber, 458 U. S. 747, 756-757 (1982), that the State has a “compelling” interest in “safeguarding the physical and psychological well-being of . . . minor[s]” against harm of the sort at issue here. That case upheld against First Amendment attack a law directed against the use of children in pornographic (including nonobscene) materials. (Although the prohibition related to the distribution of pictures rather than the making of them, the former would seem to be even closer to the core of the First Amendment.) Thus, the scope of this statute has already been validated except as to nonporno-graphic depiction of preadolescent genitals, and postadoles-cent genitals and female breasts. On that basis alone, given the known extent of the so-called kiddie-porn industry, Act of May 21, 1984, 98 Stat. 204, and of pornographic magazines that use young female models (to one of which the defendant here apparently intended to send his stepdaughter’s photograph), I would estimate that the legitimate scope vastly exceeds the illegitimate.

But the statute is narrowed further still, since it excludes material “produced, processed, published, printed or manufactured for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library.” The only significant body of material that would remain, I estimate, consists of artistic depictions not “produced, processed, published, printed or manufactured ... for a bona fide school, museum or library,” and (the example posited by the Massachusetts court) family snapshots. As to the former: Even assuming that proscribing artistic depictions of preadolescent genitals and postadolescent breasts is impermissible the body of material that would be covered is, as far as I am aware, insignificant compared with the lawful scope of the statute. That leaves the family photos. The Supreme Judicial Court interpreted the statute to cover “a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool.” 401 Mass. 602, 605, 518 N. E. 2d 836, 838 (1988). Assuming that it is unconstitutional (as opposed to merely foolish) to prohibit such photography, I do not think it so common as to make the statute substantially overbroad. We can deal with such a situation in the unlikely event some prosecutor brings an indictment. Cf. Ferber, supra, at 773-774, quoting Broadrick, supra, at 615-616.

Perhaps I am wrong in my estimation of how frequently the posings prohibited by this law are done for artistic purposes, or for family photographs — or in some other legitimate and constitutionally protected context I have not envisioned. My perception differs, for example, from Justice Brennan’s belief that there is an “abundance of baby and child photographs taken every day” depicting genitals, post, at 598. But it is the burden of the person whose conduct is legitimately proscribable, and who seeks to invalidate the entire law because of its application to someone else, to “demonstrate from the text of [the law] and from actual fact” that substantial overbreadth exists. New York State Club Assn. v. New York City, 487 U. S. 1, 14 (1988) (emphasis added). That has not been done here.

Having found the ground upon which the Supreme Judicial Court of Massachusetts relied to be in error, I would reverse and remand the case to permit that court to dispose of the as-applied challenge.

Justice Brennan,

with whom Justice Marshall and Justice Stevens join,

dissenting.

The proper framework for analyzing respondent’s claims is not in doubt. First, we must determine whether the Massachusetts statute criminalizes expression protected by the First Amendment. If it does, then we must decide whether Massachusetts has a compelling interest in regulating that expression. To the extent that the Commonwealth’s interest does not justify the suppression of all protected conduct prohibited by the statute, we must further ask whether the law’s overbreadth is “not only . . . real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep,” Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973), once we have adopted any available narrowing constructions or severed offensive portions insofar as it lies within our power to do so. If the statute is excessively overbroad, we have no choice but to strike it down on its face, notwithstanding its laudable objectives and its numerous permissible applications; if it is not, then Oakes and others charged under it may argue only that their actions, though forbidden by the statute, may not constitutionally be proscribed.

With the possible exception of the final step in this analysis, the resolution of these questions is straightforward. Photography, painting, and other two-dimensional forms of artistic reproduction described in Mass. Gen. Laws § 272:29A (1986) are plainly expressive activities that ordinarily qualify for First Amendment protection. See, e. g., Miller v. California, 413 U. S. 15 (1973) (works which, taken as a whole, possess serious artistic value are protected). And modeling, both independently and by virtue of its close association with those activities, enjoys like shelter under the First Amendment. , Cf. Schad v. Mount Ephraim, 452 U. S. 61, 66 (1981) (“[N]ude dancing is not without its First Amendment protections from official regulation”). Visual depictions of children engaged in live sexual performances or lewdly exhibiting their genitals cannot, of course, claim protected status, even though those depictions are not obscene. See New York v. Ferber, 458 U. S. 747 (1982). But other nonobscene representations of minors, including some that are pornographic, are shielded by the Constitution’s guarantee of free speech. Id., at 764-765. In particular, “nudity, without more is protected expression.” Id., at 765, n. 18, citing Erznoznik v. City of Jacksonville, 422 U. S. 205, 213 (1975). Because § 29A’s prohibition extends to posing or exhibiting children “in a state of nudity,” rather than merely to their participation in live or simulated sexual conduct, the statute clearly restrains expression within the ambit of the First Amendment.

It is equally evident that the Commonwealth’s asserted interest in preventing the sexual exploitation and abuse of minors is “of surpassing importance.” Ferber, supra, at 757. See also Ginsberg v. New York, 390 U. S. 629, 639-641 (1968). The coercive enlistment, both overt and subtle, of children in the production of pornography is a grave and widespread evil which the States are amply justified in seeking to eradicate. Massachusetts’ interest in ending such conduct undoubtedly suffices to sustain the statute’s ban on encouraging, causing, or permitting persons one has reason to know are under 18 years of age to engage in any live sexual performance or any act that represents sexual conduct, for the purpose of visual representation or reproduction.

The Commonwealth lacks an overriding interest, however, in prohibiting adults from allowing minors to appear naked in photographs, films, and pictures with their genitals or, in the case of adolescent girls, their breasts less than opaquely covered under all circumstances except the production of such works “for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library.” §29A. One situation where the Commonwealth’s interest falls glaringly short was cited by the Massachusetts Supreme Judicial Court: parents might want to photograph their infant children or toddlers in the bath or romping naked on the beach, yet § 29A threatens them with a prison term of between 10 and 20 years or a minimum fine of $10,000 for doing so. And §29A imposes those penalties even though parents have the same First Amendment interest in taking those photographs as they do in keeping a diary or boasting of their children’s antics, and even though their children would not thereby be harmed. Amicus American Sunbathing Association, a nudist organization with 30,000 members in the United States and Canada, further notes that family photographs taken by its members would subject them to possible prosecution, notwithstanding the protected character of their activity and their denial of any intrinsic connection between public nudity and shame. Massachusetts likewise lacks a compelling interest in forbidding nonexploitative films or photographs of topless adolescents — for instance, the poolside shots that are the norm rather than the exception along the Mediterranean seaboard, and that occur with some frequency on this side of the Atlantic as well — or in barring acting or professional modeling by teenagers that does not involve sexually explicit conduct.

In my view, the First Amendment also blocks the prohibition of nude posing by minors in connection with the production of works of art not depicting lewd behavior and not specifically prepared, in accordance with § 29A’s exclusion, for museums or libraries. Many of the world’s great artists — Degas, Renoir, Donatello, to name but a few — have worked from models under 18 years of age, and many acclaimed photographs and films have included nude or partially clad minors. The First Amendment rights of models, actors, artists, photographers, and filmmakers are surely not overborne by the Commonwealth’s interest in protecting minors from the risk of sexual abuse and exploitation, especially in view of the comprehensive set of laws targeted at those evils.

Given that §29A is demonstrably overbroad, the next question is whether it fairly admits of a narrowing construction or whether offending portions of the statute might be severed, leaving its legitimate core prohibition intact. The answer to this question is that a restrictive reading of the statute or its partial invalidation is beyond our power. When we sit to review a decision resting on a state court’s construction of a state statute, that construction is binding on us, regardless of whether in its absence we would have read the statute in the same way or would have pruned it back before passing judgment. Ferber, 458 U. S., at 769, n. 24; Erznoznik, 422 U. S., at 216. “[W]e will not rewrite a state law to conform it to constitutional requirements.” Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397 (1988) (certifying interpretive questions to Virginia Supreme Court before ruling on First Amendment facial attack). In this case, § 29A’s prohibition on causing or allowing a minor to pose naked is unambiguous, and the Massachusetts Supreme Judicial Court expressly held that it forbids the various forms of constitutionally protected conduct just described. 401 Mass. 602, 605, 518 N. E. 2d 836, 838 (1988). In addition, although the phrase “to pose or be exhibited in a state of nudity” might easily have been excised, the court refused to sever and delete it, over the protest of three dissenters. Id., at 611, n. 4, 518 N. E. 2d, at 841, n. 4 (O’Connor, J., dissenting). We have no choice but to accept these authoritative pronouncements in adjudging the validity of §29A.

The test we employ is familiar. Because “conduct and not merely speech is involved, . . . the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U. S., at 615. See also, e. g., Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 574 (1987); Houston v. Hill, 482 U. S. 451, 458 (1987); Ferber, supra, at 769. We will not topple a statute merely because we can conceive of a few impermissible applications. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800, and n. 19 (1984). The possibility of a substantial number of realistic applications in contravention of the First Amendment, however, suffices to overturn a statute on its face. In this regard, it bears emphasizing that “the penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial.” Ferber, 458 U. S., at 773. Although “the fact that a criminal prohibition is involved does not obviate the need for the inquiry or a priori warrant a finding of substantial overbreadth,” ibid., it does appreciably shrink the amount of-overbreadth we will find constitutionally tolerable, particularly when the penalty is severe. See also Houston v. Hill, supra, at 459 (“Criminal statutes must be scrutinized with particular care”).

In this case, there is no gainsaying the gravity of the penalties meted out for violations of §29A. Infractions carry a fine of between $10,000 and $50,000, a prison term of between 10 and 20 years, or both. Respondent was himself sentenced to 10 years’ imprisonment for taking fewer than a dozen snapshots of his stepdaughter, which he apparently showed no one except the complainant. The severity of these sanctions significantly reduces the degree of overbreadth that the Constitution permits.

One can also readily adduce actual examples of protected conduct within §29A’s compass. Parents photograph their children without abusing them sexually in Massachusetts as elsewhere. The arts flourish there. Four nudist clubs affiliated with the American Sunbathing Association alone have been established in the Commonwealth, Brief for American Sunbathing Association as Amicus Curiae 2, and there may well be others.

The only question that might give one pause is whether the statute’s overbreadth is substantial. Unhappily, our precedents provide limited guidance in resolving this issue, because substantiality cannot be defined with exactitude and little overlap exists between the factual situations presented in our previous overbreadth cases and the circumstances confronting us here. But several considerations that have led us to strike down laws by reason of overbreadth tug with equal force in this case, strongly suggesting that § 29A cannot stand as it was written at the time respondent photographed his stepdaughter.

In Houston v. Hill, supra, at 464-466, we asked whether the sweeping nature of an ordinance making it a criminal offense to oppose, abuse, or interrupt a policeman in the performance of his duties was essential to achieve its ends, or whether a more narrowly tailored law could have attained the same objectives without abridging First Amendment freedoms to the same extent. Our finding that the law could have been drafted more tightly without sacrificing the achievement of its legitimate purposes impelled us to pronounce it fatally overbroad. Section 29A suffers from the same flaw. Its blanket prohibition on permitting minors to pose nude or employing nude models, without regard to the adult’s intentions or the sexually explicit nature of the minor’s conduct, nets a considerable amount of protected conduct. The statute can, moreover, easily be truncated. As the plurality describes, ante, at 582-583, and n. 2, Massachusetts itself has recently amended § 29A to lessen its threat to protected conduct by requiring that an adult act with “lascivious intent” to come within the statute’s prohibition. Mass. Gen. Laws §272:29A(a) (Supp. 1988). Alternatively, the Commonwealth could have followed the advice offered by the Justice Department in 1977. In considering legislation designed to combat the sexual exploitation of children in photographs and films, the House of Representatives initially considered banning the interstate dissemination, or the taking of photographs with intent or reason to know that they will be transported in interstate commerce, of children in a state of “ ‘nudity. . . depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction.’ ” See H. R. Rep. No. 95-696, p. 21 (1977) (quoting H. R. 4571, 95th Cong., 1st Sess. (1977)). The Justice Department opposed the inclusion of this provision on the ground that “it would be difficult to determine by what standard the ‘sexual stimulation or gratification’ could be assessed.” H. R. Rep. No. 95-696, at 21 (statement of Deputy Assistant Attorney General Keeney). The Justice Department suggested that “lewd exhibition of the genitals” be used in its place, ibid., and the House heeded that recommendation. Massachusetts could have followed the same course and modified § 29A’s reference to simple nudity, thereby aligning the law with the New York statute we upheld in Ferber. The availability of such simple correctives renders the statute’s overbreadth less acceptable.

Together with the stern sanctions § 29A imposes, the ease with which its unconstitutional applications might be eliminated lowers the hurdle respondent must clear in proving substantial overbreadth. By the standards set in our earlier decisions, that proof has in my judgment been made. The abundance of baby and child photographs taken every day without full frontal covering, not to mention the work of artists and filmmakers and nudist family snapshots, allows one to say, as the Court said in Houston v. Hill, 482 U. S., at 466-467 (citation omitted), that “[t]he ordinance’s plain language is admittedly violated scores of times daily, yet only some individuals — those chosen by the police in their unguided discretion — are arrested.”

Indeed, even if I were less confident that the statute was routinely violated by protected conduct — and the test, of course, is the relative frequency of such violations, not what we believe is the likelihood that such violations will in fact be prosecuted — I would reach the same conclusion. In Erznoznik v. City of Jacksonville, 422 U. S. 205 (1975), we struck down for overbreadth a statute making it a public nuisance to show films at a drive-in theater displaying bare buttocks, pubic areas, or female breasts, if the screen was visible from a public area. By way of justification we said: “[The statute] would bar a film containing a picture of a baby’s buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors.” Id., at 213. We saw no reason to inquire into the frequency with which such scenes appeared at drive-in movies in Jacksonville; the fact that they might be shown, and sometimes were shown, was enough. The amount of protected conduct that occurs and quite plainly is covered by § 29A is undoubtedly far greater than the speculative occurrences we found sufficient to establish substantial overbreadth in Erznoznik, where, in addition, the attendant penalties were puny by comparison. Thus, even granted a stingy estimate of the extent of § 29A’s over-breadth, the statute must fall. I would affirm the decision of the Massachusetts Supreme Judicial Court.

       For background on the enactment of § 29A, see Boston Globe, June 14, 1982, p. 17, col. 1; Boston Globe, July 21, 1982, p. 17, col. 2.

       The current version of §29A, codified at Mass. Gen. Laws §272:29A (Supp. 1988), provides:
      “(a) Whoever, either with knowledge that a person is a child under eighteen years or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, and with lascivious intent, hires, coerces, solicits, or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.
      “(b) Whoever, either with knowledge that a person is a child under eighteen years of age or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to participate or engage in any act that depicts, describes, or represents sexual conduct for the purpose of representation or reproduction in any visual material, or to engage in any live performance involving sexual conduct, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.
      “(c) In a prosecution under this section, a minor shall be deemed incapable of consenting to any conduct of the defendant for which said defendant is being prosecuted.
      “(d) For purposes of this section, the determination whether the person in any visual material prohibited hereunder is under eighteen years of age may be made by the personal testimony of such person, by the testimony of a person who produced, processed, published, printed or manufactured such visual material that the child therein was known to him to be under eighteen years of age, or by expert testimony as to the age of the person based upon the person’s physical appearance, by inspection of the visual material, or by any other method authorized by any general or special law or by any applicable rule of evidence.”

        Bigelow v. Virginia, 421 U. S. 809 (1975), is not to the contrary. In that case, which similarly involved both a facial and an as-applied challenge to a statute that had been amended postconviction, the Court said:
      “In view of the statute’s amendment since Bigelow’s conviction in such a way as ‘effectively to repeal’ its prior application, there is no possibility now that the statute’s pre-1972 form will be applied again to appellant or will chill the rights of others. As a practical matter, the issue of its over-breadth has become moot for the future. We therefore decline to rest our decision on overbreadth and we pass on to the further inquiry, of greater moment not only for Bigelow but for others, whether the statute as applied to appellant infringed constitutionally protected speech.” Id., at 817-818.
      Although the dissent in Bigelow characterized this as a statement that “Virginia’s statute cannot properly be invalidated on grounds of over-breadth,” id., at 830 (Rehnquist, J., dissenting), I do not think it says that. Whether the statute is invalid because of overbreadth and whether the issue of overbreadth should be reached are two quite different questions, and it is only the latter that the Court addressed. The Court simply decided that since the question whether the statute was overbroad was no longer of general interest (“ha[d] become moot for the future”), whereas the issues involved in the as-applied challenge were of continuing importance, the Court would more profitably expend its time on the latter. Moreover, as the Court held Bigelow’s conviction unconstitutional on as-applied grounds, it was unnecessary to decide the merits of the overbreadth issue in that ease.

       Justice Brennan evidently believes that the State cannot bar the use of children for nude modeling without reference to “the adult’s intentions or the sexually explicit nature of the minor’s conduct.” Post, at 597. That is not unquestionably true. Most hdults, I expect, would not hire themselves out as nude models, whatever the intention of the photographer or artist, and however unerotic the pose. There is no cause to think children are less sensitive. It is not unreasonable, therefore, for a State to regard parents’ using (or permitting the use) of their children as nude models, or other adults’ use of consenting minors, as a form of child exploitation.

       I agree with Justice Scalia that a State cannot salvage a criminal conviction under a law found to be overbroad, or safeguard its right to prosecute under a law challenged as overbroad, by curing the statute’s adjudicated or alleged infirmity prior to review of that conviction or ruling of statutory invalidation by the highest reviewing court. The deterrent effect of the overbreadth doctrine would be significantly impaired if this avenue were open to the States, for oftentimes the strongest and earliest attacks on overbroad laws are, not surprisingly, brought by criminal defendants. Accordingly, I join Part I of Justice Scalia’s opinion holding that a defendant’s overbreadth challenge cannot be rendered moot by narrowing the statute after the conduct for which he has been indicted occurred — the only proposition to which five Members of the Court have subscribed in this case.

       See, e. g., R. Thomson, Degas, The Nudes 40-53, 119-125 (1988); K. Clark, The Nude 48-49, 154-161 (1956).

       Numerous contemporary examples of nonpornographic photographs, films, and paintings that would invite prosecution under § 29A if produced in Massachusetts but which almost certainly caused no harm to those depicted in them are collected in App. to Brief for Law & Humanities Institute as Amicus Curiae.

       The utility of §29A in preventing sexual abuse and exploitation appears dubious when assessed against the backdrop of other statutes designed to achieve the same end. Massachusetts already has laws prohibiting assault and battery, Mass. Gen. Laws §265:13A (1986); indecent assault and battery of a child under 14, § 265:13B; indecent assault and battery of a child 14 or older, § 265:13H; rape, § 265:22; forcible rape of a child under 16, § 265:22A; rape and abuse of a child under 16, § 265:23; assault with intent to rape, § 265:24; drugging persons to commit unlawful sexual intercourse, §272:3; open and gross lewdness, §272:16; dissemination of matter harmful to minors, § 272:28; dissemination or possession with intent to disseminate visual material of child in state of nudity or engaged in sexual conduct, §272:29B; and unnatural and lascivious acts with a child under 16, § 272:35A. Virtually every prosecution under § 29A has also involved charges under several of these other statutes. See App. to Brief for Petitioner. The marginal deterrent effect of § 29A may therefore be slight, thereby reducing the Commonwealth’s interest as against the First Amendment interests in conflict with § 29A. Of course, the penalties for violating § 29A are high; in fact, however odd the underlying scale of values or predictions of deterrence may appear, the punishment for allowing a child to be photographed nude exceeds that for dissemination of matter harmful to minors, § 272:28, and unnatural and lascivious acts with a child under 16, § 272:35A, and includes a maximum prison term in excess of that for indecent assault and battery of a child under 14, §265:13B (20 years under §29A versus 10 years under §265:13B). It is questionable, however, what marginal difference the unusual stiffness of these penalties makes in forestalling the production of pornography or the sexual abuse of children, which are often punishable under separate statutes. Section 29A’s most significant deterrent effect may well be on constitutionally protected conduct.

       In considering a facial challenge of this kind, we have no reason to decide, of coursé, whether respondent’s own conduct may legitimately be proscribed. Nor is it for us to say what exactly Oakes did when the evidence is sharply conflicting, particularly when we are remanding the case for further consideration of his as-applied challenge. Justice Scalia’s statement that “the defendant here apparently intended to send his stepdaughter’s photograph” to one of the “pornographic magazines that use young female models,” ante, at 588, therefore seems to me inappropriate. The only record support for this assertion of which I am aware is the complainant’s testimony at trial, ambiguous with respect to Oakes’ intentions regarding the photographs at issue here, that “[h]e wanted to make me big for Playboy Magazine.” App. 25a. In any event, nothing this Court says should be taken to constrain the power of the Massachusetts courts to determine facts on remand.

       I venture no views as to the constitutionality of § 29A as amended.