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United States v. X-Citement Video, Inc./Opinion of the Court

delivered the opinion of the Court.

The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transportation, [p66] shipping, receipt, distribution, or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U.S.C. § 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement.

Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii.

These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating 18 U.S.C. §§ 2252(a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U.S.C. § 371. Evidence at trial suggested that Gottesman had full awareness of Lords' underage performances. United States v. Gottesman, No. CR 88-295KN, Findings of Fact ¶ 7 (CD Cal., Sept. 20, 1989), App. to Pet. for Cert. 39a ("Defendants knew that Traci Lords was underage when she made the films defendant's [sic] transported or shipped in interstate commerce"). The District Court convicted respondents of all three counts. On appeal, Gottesman argued, inter alia, that the Act was facially unconstitutional because it lacked a necessary scienterrequirement [p67] and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United States v. Thomas, 893 F.2d 1066 (CA9), cert. denied, 498 U.S. 826 (1990). In that case, the Ninth Circuit had held § 2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction.

On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found § 2252 facially unconstitutional. The court first held that 18 U.S.C. § 2256 met constitutional standards in setting the age of majority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. 982 F.2d 1285, 1288–1289 (CA9 1992). It then discussed § 2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the materials. 982 F.2d, at 1290, citing Smith v. California, 361 U.S. 147 (1959); New York v. Ferber, 458 U.S. 747 (1982); and Hamling v. United States, 418 U.S. 87 (1974). The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was produced. 982 F.2d, at 1291. Because the court found the statute did not require such a showing, it reversed respondents' convictions. We granted certiorari, 510 U.S. 1163 (1994), and now reverse.

Title 18 U.S.C. § 2252 (1988 ed. and Supp. V) provides, in relevant part: [p68]

"(a) Any person who—

"(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—

"(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

"(B) such visual depiction is of such conduct;

"(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if—

"(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

"(B) such visual depiction is of such conduct;

"shall be punished as provided in subsection (b) of this section."

The critical determination which we must make is whether the term "knowingly" in subsections (1) and (2) modifies the phrase "the use of a minor" in subsections (1)(A) and (2)(A). The most natural grammatical reading, adopted by the Ninth Circuit, suggests that the term "knowingly" modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces. Under this construction, the word "knowingly" would not modify the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. But we do not think this is the end of the matter, both because of anomalies which [p69] result from this construction, and because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.

If the term "knowingly" applies only to the relevant verbs in § 2252—transporting, shipping, receiving, distributing, and reproducing—we would have to conclude that Congress wished to distinguish between someone who knowingly transported a particular package of film whose contents were unknown to him, and someone who unknowingly transported that package. It would seem odd, to say the least, that Congress distinguished between someone who inadvertently dropped an item into the mail without realizing it, and someone who consciously placed the same item in the mail, but was nonetheless unconcerned about whether the person had any knowledge of the prohibited contents of the package.

Some applications of respondents' position would produce results that were not merely odd, but positively absurd. If we were to conclude that "knowingly" only modifies the relevant verbs in § 2252, we would sweep within the ambit of the statute actors who had no idea that they were even dealing with sexually explicit material. For instance, a retail druggist who returns an uninspected roll of developed film to a customer "knowingly distributes" a visual depiction and would be criminally liable if it were later discovered that the visual depiction contained images of children engaged in sexually explicit conduct. Or, a new resident of an apartment might receive mail for the prior resident and store the mail unopened. If the prior tenant had requested delivery of materials covered by § 2252, his residential successor could be prosecuted for "knowing receipt" of such materials. Similarly, a Federal Express courier who delivers a box in which the shipper has declared the contents to be "film" "knowingly transports" such film. We do not assume that Congress, in passing laws, intended such results. Public Citizen [p70] v. Department of Justice, 491 U.S. 440, 453–455 (1989); United States v. Turkette, 452 U.S. 576, 580 (1981).

Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them. The landmark opinion in Morissette v. United States, 342 U.S. 246 (1952), discussed the common-law history of mens rea as applied to the elements of the federal embezzlement statute. That statute read: "Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States [s]hall be fined." 18 U.S.C. § 641, cited in Morissette, 342 U.S., at 248, n. 2. Perhaps even more obviously than in the statute presently before us, the word "knowingly" in its isolated position suggested that it only attached to the verb "converts," and required only that the defendant intentionally assume dominion over the property. But the Court used the background presumption of evil intent to conclude that the term "knowingly" also required that the defendant have knowledge of the facts that made the taking a conversion—i.e., that the property belonged to the United States. Id., at 271. See also United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978) ("[F]ar more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement").

Liparota v. United States, 471 U.S. 419 (1985), posed a challenge to a federal statute prohibiting certain actions with respect to food stamps. The statute's use of "knowingly" could be read only to modify "uses, transfers, acquires, alters, or possesses" or it could be read also to modify "in any manner not authorized by [the statute]." Noting that neither interpretation posed constitutional problems, id., at 424, n. 6, the Court held the scienter requirement applied to [p71] both elements by invoking the background principle set forth in Morissette. In addition, the Court was concerned with the broader reading which would "criminalize a broad range of apparently innocent conduct." 471 U.S., at 426. Imposing criminal liability on an unwitting food stamp recipient who purchased groceries at a store that inflated its prices to such purchasers struck the Court as beyond the intended reach of the statute.

The same analysis drove the recent conclusion in Staples v. United States, 511 U.S. 600 (1994), that to be criminally liable a defendant must know that his weapon possessed automatic firing capability so as to make it a machinegun as defined by the National Firearms Act. Congress had not expressly imposed any mens rea requirement in the provision criminalizing the possession of a firearm in the absence of proper registration. 26 U.S.C. § 5861(d). The Court first rejected the argument that the statute described a public welfare offense, traditionally excepted from the background principle favoring scienter. Morissette, supra, at 255. The Court then expressed concern with a statutory reading that would criminalize behavior that a defendant believed fell within "a long tradition of widespread lawful gun ownership by private individuals." Staples, 511 U.S., at 610. The Court also emphasized the harsh penalties attaching to violations of the statute as a "significant consideration in determining whether the statute should be construed as dispensing with mens rea." Id., at 616.

Applying these principles, we think the Ninth Circuit's plain language reading of § 2252 is not so plain. First, § 2252 is not a public welfare offense. Persons do not harbor settled expectations that the contents of magazines and film are generally subject to stringent public regulation. In fact, First Amendment constraints presuppose the opposite view. Rather, the statute is more akin to the common-law offenses against the "state, the person, property, or public morals," Morissette, supra, at 255, that presume a scienter requirement [p72] in the absence of express contrary intent. Second, ' concern with harsh penalties looms equally large respecting § 2252: Violations are punishable by up to 10 years in prison as well as substantial fines and forfeiture. 18 U.S.C. §§ 2252(b), 2253, 2254. See also Morissette, supra, at 260.

Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct. Staples held that the features of a gun as technically described by the firearm registration Act was such an element. Its holding rested upon "the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items." Staples, supra, at 619. Age of minority in § 2252 indisputably possesses the same status as an elemental fact because nonobscene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. Alexander v. United States, 509 U.S. 544, 549–550 (1993); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989); FW/PBS, Inc. v. Dallas, 493 U.S. 215, 224 (1990); Smith v. California, 361 U.S., at 152. In the light of these [p73] decisions, one would reasonably expect to be free from regulation when trafficking in sexually explicit, though not obscene, materials involving adults. Therefore, the age of the performers is the crucial element separating legal innocence from wrongful conduct.

The legislative history of the statute evolved over a period of years, and perhaps for that reason speaks somewhat indistinctly to the question whether "knowingly" in the statute modifies the elements of subsections (1)(A) and (2)(A)—that the visual depiction involves the use of a minor engaging in sexually explicit conduct—or merely the verbs "transport or ship" in subsection (1) and "receive or distribute [or] reproduce" in subsection (2). In 1959, we held in Smith v. California, supra, that a California statute that dispensed with any mens rea requirement as to the contents of an obscene book would violate the First Amendment. Id., at 154. When Congress began dealing with child pornography in 1977, the content of the legislative debates suggest that it was aware of this decision. See, e.g., 123 Cong. Rec. 30935 (1977) ("It is intended that they have knowledge of the type of material proscribed by this bill. The legislative history should be clear on that so  as to remove any chance it will lead into constitutional problems"). Even if that were not the case, we do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court. Yates v. United States, 354 U.S. 298, 319 (1957) ("In [construing the statute] we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked"). When first passed, § 2252 punishedone [p74] who "knowingly transports or ships in interstate or foreign commerce or mails, for the purpose of sale or distribution for sale, any obscene visual or print medium" if it involved the use of a minor engaged in sexually explicit conduct. Pub. L. 95-225, 92 Stat. 7 (emphasis added). Assuming awareness of Smith, at a minimum, "knowingly" was intended to modify "obscene" in the 1978 version.

In 1984, Congress amended the statute to its current form, broadening its application to those sexually explicit materials that, while not obscene as defined by Miller v. California, 413 U.S. 15 (1973), could be restricted without violating the First Amendment as explained by New York v. Ferber, 458 U.S. 747 (1982). When Congress eliminated the adjective "obscene," all of the elements defining the character and content of the materials at issue were relegated to subsections (1)(A) and (2)(A). In this effort to expand the child pornography statute to its full constitutional limits, Congress nowhere expressed an intent to eliminate the mens rea requirement that had previously attached to the character and content of the material through the word obscene.

The Committee Reports and legislative debate speak more opaquely as to the desire of Congress for a scienter requirement with respect to the age of minority. An early form of the proposed legislation, S. 1011, was rejected principally because it failed to distinguish between obscene and non-obscene materials. S. Rep. No. 95-438, p. 12 (1977). In evaluating the proposal, the Justice Department offered its thoughts:

"[T]he word 'knowingly' in the second line of section 2251 is unnecessary and should be stricken Unless 'knowingly' is deleted here, the bill might be subject to an interpretation requiring the Government to prove [p75] the defendant's knowledge of everything that follows 'knowingly', including the age of the child. We assume that it is not the intention of the drafters to require the Government to prove that the defendant knew the child was under age sixteen but merely to prove that the child was, in fact, less than age sixteen

"On the other hand, the use of the word 'knowingly' in subsection 2252(a)(1) is appropriate to make it clear that the bill does not apply to common carriers or other innocent transporters who have no knowledge of the nature or character of the material they are transporting. To clarify the situation, the legislative history might reflect that the defendant's knowledge of the age of the child is not an element of the offense but that the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved." Id., at 28–29.

Respondents point to this language as an unambiguous revelation that Congress omitted a scienter requirement. But the bill eventually reported by the Senate Judiciary Committee adopted some, but not all, of the Department's suggestions; most notably, it restricted the prohibition in § 2251 to obscene materials. Id., at 2. The Committee did not make any clarification with respect to scienter as to the age of minority. In fact, the version reported by the Committee eliminated § 2252 altogether. Ibid. At that juncture, Senator Roth introduced an amendment which would be another precursor of § 2252. In one paragraph, the amendment forbade any person to "knowingly transport [or] ship [any] visual medium depicting a minor engaged in sexually explicit conduct." 123 Cong. Rec. 33047 (1977). In an exchange during debate, Senator Percy inquired:

"Would this not mean that the distributor or seller must have either, first, actual knowledge that the materials do contain child pornographic depictions or, second, circumstances [p76] must be such that he should have had such actual knowledge, and that mere inadvertence or negligence would not alone be enough to render his actions unlawful?" Id., at 33050.

Senator Roth replied:

"That is absolutely correct. This amendment, limited as it is by the phrase 'knowingly,' insures that only those sellers and distributors who are consciously and deliberately engaged in the marketing of child pornography are subject to prosecution " Ibid.

The parallel House bill did not contain a comparable provision to § 2252 of the Senate bill, and limited § 2251 prosecutions to obscene materials. The Conference Committee adopted the substance of the Roth amendment in large part, but followed the House version by restricting the proscribed depictions to obscene ones. The new bill did restructure the § 2252 provision somewhat, setting off the age of minority requirement in a separate subclause. S. Conf. Rep. No. 95-601, p. 2 (1977). Most importantly, the new bill retained the adverb "knowingly" in § 2252 while simultaneously deleting the word "knowingly" from § 2251(a). The Conference Committee explained the deletion in § 2251(a) as reflecting an "intent that it is not a necessary element of a prosecution that the defendant knew the actual age of the child." Id., at 5. Respondents point to the appearance of "knowingly" in [p77] § 2251(c) and argue that § 2252 ought to be read like § 2251. But this argument depends on the conclusion that § 2252(c) does not include a knowing requirement, a premise that respondents fail to support. Respondents offer in support of their premise only the legislative history discussing an intent to exclude a scienter requirement from § 2251(a). Because §§ 2251(a) and 2251(c) were passed at different times and contain different wording, the intent to exclude scienter from § 2251(a) does not imply an intent to exclude scienter from § 2251(c).

The legislative history can be summarized by saying that it persuasively indicates that Congress intended that the term "knowingly" apply to the requirement that the depiction be of sexually explicit conduct; it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement extend also to the age of the performers. But, turning once again to the statute itself, if the term "knowingly" applies to the sexually explicit conduct depicted, it is emancipated from merely modifying the verbs in subsections (1) and (2). And as a matter of grammar it is [p78] difficult to conclude that the word "knowingly" modifies one of the elements in subsections (1)(A) and (2)(A), but not the other.

A final canon of statutory construction supports the reading that the term "knowingly" applies to both elements. Cases such as Ferber, 458 U.S., at 765 ("As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant"); Smith v. California, 361 U.S. 147 (1959); Hamling v. United States, 418 U.S. 87 (1974); and Osborne v. Ohio, 495 U.S. 103, 115 (1990), suggest that a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts. It is therefore incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. ''Florida Gulf Coast Building & Constr. Trades Council'', 485 U.S. 568, 575 (1988).

For all of the foregoing reasons, we conclude that the term "knowingly" in § 2252 extends both to the sexually explicit nature of the material and to the age of the performers.

As an alternative grounds for upholding the reversal of their convictions, respondents reiterate their constitutional challenge to 18 U.S.C. § 2256. These claims were not encompassed in the question on which this Court granted certiorari, but a prevailing party, without cross-petitioning, is "entitled under our precedents to urge any grounds which would lend support to the judgment below." ''Dayton Bd. of Ed. v. Brinkman'', 433 U.S. 406, 419 (1977). Respondents argue that § 2256 is unconstitutionally vague and overbroad because it makes the age of majority 18, rather than 16 as did the New York statute upheld in New York v. Ferber, supra, and because Congress replaced the term "lewd" with the term "lascivious" in defining illegal exhibition of the genitals of children. We regard these claims as insubstantial, [p79] and reject them for the reasons stated by the Court of Appeals in its opinion in this case.

Respondents also argued below that their indictment was fatally defective because it did not contain a scienter requirement on the age of minority. The Court of Appeals did not reach this issue because of its determination that § 2252 was unconstitutional on its face, and we decline to decide it here.

The judgment of the Court of Appeals is

Reversed.


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United States v. X-Citement Video, Inc./Concurrence Stevens

, concurring.

In my opinion, the normal, commonsense reading of a subsection of a criminal statute introduced by the word "knowingly" is to treat that adverb as modifying each of the elements of the offense identified in the remainder of the subsection. Title 18 U.S.C. § 2252(a)(1) (1988 ed. and Supp. V) reads as follows:

"(a) Any person who—

"(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—

"(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

"(B) such visual depiction is of such conduct." (Emphasis added.)

Surely reading this provision to require proof of scienter for each fact that must be proved is far more reasonable than adding such a requirement to a statutory offense that contains no scienter requirement whatsoever. Cf. Staples v. United States, 511 U.S. 600, 624 (1994) (, J., dissenting). Indeed, as the Court demonstrates, ante, at 69–70, to give the statute its most grammatically correct reading, and merely require knowledge that a "visual depiction" has been [p80] shipped in interstate commerce, would be ridiculous. Accordingly, I join the Court's opinion without qualification.

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United States v. X-Citement Video, Inc./Dissent Scalia

, with whom joins, dissenting.

Today's opinion is without antecedent. None of the decisions cited as authority support interpreting an explicit statutory scienter requirement in a manner that its language simply will not bear. Staples v. United States, 511 U.S. 600 (1994), discussed ante, at 71, and United States v. United States Gypsum Co., 438 U.S. 422 (1978), discussed ante, at 70, applied the background common-law rule of scienter to a statute that said nothing about the matter. Morissette v. United States, 342 U.S. 246 (1952), discussed ante, at 70, applied that same background rule to a statute that did contain the word "knowingly," in order to conclude that "knowingly converts" requires knowledge not merely of the fact of one's assertion of dominion over property, but also knowledge of the fact that that assertion is a conversion, i.e., is wrongful. Liparota v. United States, 471 U.S. 419 (1985), discussed ante, at 70, again involved a statute that did contain the word knowingly, used in such a fashion that it could reasonably and grammatically be thought to apply (1) only to the phrase uses, transfers, acquires, alters, or possesses (which would cause a defendant to be liable without wrongful intent), or (2) also to the later phrase in any manner not authorized by [the statute]. Once again applying the background rule of scienter, the latter reasonable and permissible reading was preferred.

There is no way in which any of these cases, or all of them in combination, can be read to stand for the sweeping proposition [p81] that "the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct," ante, at 72, even when the plain text of the statute says otherwise. All those earlier cases employ the presumption as a rule of interpretation which applies when Congress has not addressed the question of criminal intent (Staples and Gypsum), or when the import of what it has said on that subject is ambiguous (Morissette and Liparota). Today's opinion converts the rule of interpretation into a rule of law, contradicting the plain import of what Congress has specifically prescribed regarding criminal intent.

In United States v. Thomas, 893 F.2d 1066, 1070 (CA9), cert. denied, 498 U.S. 826 (1990), the Ninth Circuit interpreted 18 U.S.C. § 2252 to require knowledge of neither the fact that the visual depiction portrays sexually explicit conduct, nor the fact that a participant in that conduct was a minor. The panel in the present case accepted that interpretation. See 982 F.2d 1285, 1289 (CA9 1992). To say, as the Court does, that this interpretation is "the most grammatical reading," ante, at 70, or "[t]he most natural grammatical reading," ante, at 68, is understatement to the point of distortion—rather like saying that the ordinarily preferred total for two plus two is four. The Ninth Circuit's interpretation is in fact and quite obviously the only grammatical reading. If one were to rack his brains for a way to express the thought that the knowledge requirement in subsection (a)(1) applied only to the transportation or shipment of visual depiction in interstate or foreign commerce, and not to the fact that that depiction was produced by use of a minor engaging in sexually explicit conduct, and was a depiction of that conduct, it would be impossible to construct a sentence structure that more clearly conveys that thought, and that thought alone. The word "knowingly" is contained, not merely in a distant phrase, but in an entirely separate clause from the one into which today's opinion inserts it. The [p82] equivalent, in expressing a simpler thought, would be the following: "Anyone who knowingly double-parks will be subject to a $200 fine if that conduct occurs during the 4:30-to-6:30 rush hour." It could not be clearer that the scienter requirement applies only to the double-parking, and not to the time of day. So also here, it could not be clearer that it applies only to the transportation or shipment of visual depiction in interstate or foreign commerce. There is no doubt. There is no ambiguity. There is no possible "less natural" but nonetheless permissible reading.

I have been willing, in the case of civil statutes, to acknowledge a doctrine of "scrivener's error" that permits a court to give an unusual (though not unheard-of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result. See Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989) (, J., concurring). Even if I were willing to stretch that doctrine so as to give the problematic text a meaning it cannot possibly bear; and even if I were willing to extend the doctrine to criminal cases in which its application would produce conviction rather than acquittal; it would still have no proper bearing here. For the sine qua non of any "scrivener's error" doctrine, it seems to me, is that the meaning genuinely intended but inadequately expressed must be absolutely clear; otherwise we might be rewriting the statute rather than correcting a technical mistake. That condition is not met here.

The Court acknowledges that "it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement [of scienter] extend to the age of the performers." Ante, at 77. That is surely so. In fact, it seems to me that the dominant (if not entirely uncontradicted) view expressed in the legislative history is that set forth in the statement of the Carter Administration Justice Department which introduced the original bill: "[T]he defendant's knowledge of the age of the child is not an element [p83] of the offense but the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved." S. Rep. No. 95-438, p. 29 (1977). As applied to the final bill, this would mean that the scienter requirement applies to the element of the crime that the depiction be of "sexually explicit conduct," but not to the element that the depiction "involv[e] the use of a minor engaging" in such conduct. See 18 U.S.C. §§ 2252(a)(1)(A) and (a)(2)(A). This is the interpretation that was argued by the United States before the Ninth Circuit. See 982 F.2d, at 1289.

The Court rejects this construction of the statute for two reasons: First, because "as a matter of grammar it is difficult to conclude that the word 'knowingly' modifies one of the elements in subsections (1)(A) and (2)(A), but not the other." Ante, at 77–78. But as I have described, "as a matter of grammar" it is also difficult (nay, impossible) to conclude that the word "knowingly" modifies both of those elements. It is really quite extraordinary for the Court, fresh from having, as it says, ibid., "emancipated" the adverb from the grammatical restriction that renders it inapplicable to the entire conditional clause, suddenly to insist that the demands of syntax must prevail over legislative intent—thus producing an end result that accords neither with syntax nor with supposed intent. If what the statute says must be ignored, one would think we might settle at least for what the statute was meant to say; but alas, we are told, what the statute says prevents this.

The Court's second reason is even worse: "[A] statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts." Ante, at 78. In my view (as in the apparent view of the Government before the Court of Appeals) that is not true. The Court derives its "serious constitutional doubts" from the fact that "sexually explicit materials involving persons over the age of 17 are protected by the First Amendment," [p84] ante, at 72. We have made it entirely clear, however, that the First Amendment protection accorded to such materials is not as extensive as that accorded to other speech. "[T]here is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance " Young v. American Mini Theatres, Inc., 427 U.S. 50, 61 (1976). See also id., at 70–71 ("[E]ven though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it 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 ") (opinion of, J., joined by Burger, C.J., and White and , JJ.). Cf. FCC v. Pacifica Foundation, 438 U.S. 726, 743 (1978) (While some broadcasts of patently offensive references to excretory and sexual organs and activities may be protected, "they surely lie at the periphery of First Amendment concern"). Let us be clear about what sort of pictures are at issue here. They are not the sort that will likely be found in a catalog of the National Gallery or the Metropolitan Museum of Art. [S]exually explicit conduct, as defined in the statute, does not include mere nudity, but only conduct that consists of "sexual intercourse between persons of the same or opposite sex," "bestiality," "masturbation," "sadistic or masochistic abuse," and "lascivious exhibition of the genitals or pubic area." See 18 U.S.C. § 2256(2). What is involved, in other words, is not the clinical, the artistic, nor even the risqué, but hard-core pornography. Indeed, I think it entirely clear that all of what is involved constitutes not merely pornography but fully proscribable obscenity, except to the extent it is joined with some other material (or perhaps some manner of presentation) that has artistic or other social value. See Miller v. California, 413 U.S. 15, 24 (1973). (Such a requirement cannot be imposed, of [p85] course, upon fully protected speech: one can shout "Down with the Republic!," "Hooray for Mozart!," or even "Twenty-Three Skidoo!," whether or not that expression is joined with something else of social value.) And whereas what is on one side of the balance in the present case is this material of minimal First Amendment concern, the Court has described what is on the other side—"prevention of sexual exploitation and abuse of children"—as "a government objective of surpassing importance." New York v. Ferber, 458 U.S. 747, 757 (1982).

I am not concerned that holding the purveyors and receivers of this material absolutely liable for supporting the exploitation of minors will deter any activity the United States Constitution was designed to protect. But I am concerned that the Court's suggestion of the unconstitutionality of such absolute liability will cause Congress to leave the world's children inadequately protected against the depredations of the pornography trade. As we recognized in Ferber, supra, at 766, n. 19, the producers of these materials are not always readily found, and are often located abroad; and knowledge of the performers' age by the dealers who specialize in child pornography, and by the purchasers who sustain that market, is obviously hard to prove. The First Amendment will lose none of its value to a free society if those who knowingly place themselves in the stream of pornographic commerce are obliged to make sure that they are not subsidizing child abuse. It is no more unconstitutional to make persons who knowingly deal in hard-core pornography criminally liable for the underage character of their entertainers than it is to make men who engage in consensual fornication criminally liable (in statutory rape) for the underage character of their partners.

I would dispose of the present case, as the Ninth Circuit did, by reading the statute as it is written: to provide criminal penalties for the knowing transportation or shipment of a visual depiction in interstate or foreign commerce, and for [p86] the knowing receipt or distribution of a visual depiction so transported or shipped, if that depiction was (whether the defendant knew it or not) a portrayal of a minor engaging in sexually explicit conduct. I would find the statute, as so interpreted, to be unconstitutional since, by imposing criminal liability upon those not knowingly dealing in pornography, it establishes a severe deterrent, not narrowly tailored to its purposes, upon fully protected First Amendment activities. See Smith v. California, 361 U.S. 147, 153–154 (1959). This conclusion of unconstitutionality is of course no ground for going back to reinterpret the statute, making it say something that it does not say, but that is constitutional. Not every construction, but only every reasonable construction must be resorted to, in order to save a statute from unconstitutionality. Edward J. DeBartolo Corp. v. ''Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988) (quoting Hooper v. California'', 155 U.S. 648, 657 (1895)) (emphasis added). Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute " or judicially rewriting it. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 515 (1964)). Otherwise, there would be no such thing as an unconstitutional statute. As I have earlier discussed, in the present case no reasonable alternative construction exists, neither any that can be coaxed from the text nor any that can be substituted for the text on "scrivener's error" grounds. I therefore agree with the Ninth Circuit that respondents' conviction cannot stand.

I could understand (though I would not approve of) a disposition which, in order to uphold this statute, departed from its text as little as possible in order to sustain its constitutionality—i.e., a disposition applying the scienter requirement to the pornographic nature of the materials, but not to the age of the performers. I can neither understand nor [p87] approve of the disposition urged by the United States before this Court and adopted today, which not only rewrites the statute, but (1) rewrites it more radically than its constitutional survival demands, and (2) raises baseless constitutional doubts that will impede congressional enactment of a law providing greater protection for the child-victims of the pornography industry. The Court today saves a single conviction by putting in place a relatively toothless child-pornography law that Congress did not enact, and by rendering congressional strengthening of that new law more difficult. I respectfully dissent.


text:
Heck v. Humphrey

While petitioner Heck's direct appeal from an Indiana conviction was pending, he filed this suit under 42 U.S.C. § 1983, seeking damages—but not injunctive relief or release from custody—on the claim that respondents, acting under color of state law, had engaged in unlawful acts that had led to his arrest and conviction. After the Federal District Court dismissed this action without prejudice, the Indiana Supreme Court upheld Heck's conviction and sentence, and his two petitions for federal habeas relief were rejected. The Court of Appeals then affirmed the dismissal of the § 1983 complaint and approved the District Court's reasoning: If the plaintiff in a federal civil rights action is challenging the legality of his conviction, so that his victory would require his release even if he had not sought that relief, the suit must be classified as a habeas corpus action and dismissed if the plaintiff has failed to exhaust his state remedies.

Held: In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Preiser v. Rodriguez, 411 U.S. 475, 494, and Wolff v. McDonnell, 418 U.S. 539, 554, distinguished. The foregoing conclusion follows upon recognition that the common law of torts provides the appropriate starting point for the § 1983 inquiry, see Carey v. Piphus, 435 U.S. 247, 257–258; that the tort of malicious prosecution, which provides the closest analogy to claims of the type considered here, requires the allegation and proof of termination of the prior criminal proceeding in favor of the accused, see, e.g., Carpenter v. Nutter, 59 P. 301; and that this Court has long been concerned that judgments be final and consistent and has been disinclined to expand opportunities for collateral attack on criminal convictions, see, e.g., Parke v. Raley, 506 U.S. 20, 29–30. Although the issue in cases such as this is not, therefore, the exhaustion of state remedies, [p478] the dismissal of Heck's § 1983 action was correct because both courts below found that his damages claims challenged the legality of his conviction. Pp. 480–490.

997 F.2d 355, affirmed.

, J., delivered the opinion of the Court, in which, C.J., and , and , JJ., joined. , J., filed a concurring opinion, post, p. 490. , J., filed an opinion concurring in the judgment, in which, and , JJ., joined, post, p. 491.

Charles Rothfeld argued the cause and filed briefs for petitioner.

Matthew R. Gutwein argued the cause for respondents. With him on the brief were Pamela Carter, Attorney General of Indiana, and Arend J. Abel and Dana Childress-Jones, Deputy Attorneys General.

title: Heck v. Humphrey


text: Talk:Heck v. Humphrey

title: Talk:Heck v. Humphrey


text: Category:United States Supreme Court decisions in Volume 512


text:
User talk:Nokil83a

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Page:The Last Judgement and Second Coming of the Lord Illustrated.djvu/270

 Of course we are aware that these will be regarded as extraordinary statements; we concede that they are so; but who can prove that they are not true? That those two uncommon events should have occurred without raising some preternatural commotion in the world, will no doubt be felt by many as contrary to the prejudices which error has created upon those subjects. When, however, it is remembered that the Lord has told us He will come with all the quietude of a thief entering a house, and that in such an hour as ye think not the Son of man cometh, it will be seen that there is some reason to pause before rejecting the view we have now suggested, and about which we shall produce additional evidence in another chapter. Men have been so long taught to expect that those occurrences would be associated with the raising of dead bodies from their graves, the rolling away of the heavens, and setting fire to the earth, that they almost instinctively turn away from any other exposition. But if it is remembered, as we have endeavoured to show, that those are mistaken views of the subjects, that the second coming of the Lord is not to be a personal advent to the natural world, and that the last judgment is a phenomenon of which the spirits of men are to be the subjects, and the world of spirits the scene, the whole matter will put on a more serious aspect, and commend itself to the careful consideration of those who, with a wise heart, are anxious to know what is the true meaning of the Scriptures upon those very sublime and important subjects.


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 260 THE LAST JUDGMENT. AND

recognised by those who are contemporaries with its execution.—The reason for this.—The twofold effects of a judgment, affliction and mercy.—Calamities enumerated, and authorities cited.—A blow struck at public disorders in society The abatement of evils in the natural world an indication that their spiritual causes have been arrested.—Improvements in general society which have occurred.— The source of those improvements.—Conclusion.

As the corruptions of the Church would necessarily hinder it from performing those spiritual uses in the world for which it was established; and as the Lord has told us that such corruptions would bring it to an end, when a last judgment would be executed,—it now becomes important to the argument we are pursuing, that we should inquire into the nature of that judgment.

In the preceding chapter it was stated that the conditions of the professing Church, especially about a century ago, were such as to answer all the prophetical descriptions which pointed to its close; and, therefore, it was concluded that a last judgment had been executed. Those who have been taught to expect that the scene of that extraordinary event was to be the natural world, will, most likely, view this conclusion with hesitancy and doubt. But as that expectation was not founded on any correct interpretation of the Scriptures, and as it requires for its fulfilment the existence of phenomena which we have seen the Scriptures do not predict, it may be classed in that catalogue of errors by which the Church has been destroyed. The surprise, therefore, which may be felt at our statement, might properly be attached to that expectation. Nature has not to undergo those disruptions at the accomplishment of the last judgment which the Church has commonly supposed. "The earth abideth for ever;" it is no part of the Divine providence to bring about a cessation of the human race; nor is the resurrection of dead material bodies ever the sub-


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NORTON CABAL INTERVIEW thought of myself as a cosmic clown and I set out to prove, by demonstration, that a deity can be anything at all.

In other words, people invent gods and not the other way around. Later I decided that I was doing some kind of conceptual art.

In the 50's my culture taught me that I was created by and for a deity, a specific male deity, and that all other deities are FALSE. Yet my growing experience showed me that any deity is true in some sense and false in some other sense, So I set out to do what my society told me is impossible -- make a real religion from a patently absurd deity.

In the 50's a female deity was blasphemy. In the 70's a humorous deity is still considered impossible, ridiculous and blasphemous. As far as I'm concerned, I have proven my point. Eris is a real deity and even though I don’t promote Erisianism as a serious religion…

Occupant: I do!

Dexter: You speak for yourself.

Ignotius: Here, here.

Hill: …I do point out that it makes just as mach sense from its own perspective as all the others do from each of their own perspectives.

Occupant: I think paganism is a valid spiritual path. I encourage Erisianism because it makes fun of itself. I think this is healthy.

Ignotius: If you can live rewardingly with Goddess Eris you can live with any deity, including none or all.

Dexter: I don't much go for the worship business but I agree with Occupant about the spirit of the thing. We live in a time of turmoil, the whole planet is in a state of change. If we, as a species, cower from the confusion then we die with the dying. This is revolution.

Ignotius: I am an athiest myself. There is no Greg Hill.

[ laughter ]

Gypsie [to Hill]: What do you think of Illuminatus ?

Hill: Oh, I love it. I was finishing Principia when Shea and Wilson were working on Illuminatus. It took 79/11/26


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 ject of the Divine teaching. Hence the whole ground upon which "the orthodox" have built their doctrine of the last judgment vanishes away. It is the spirits of men that are to be the subject of that judgment, and the world of spirits is to be the scene of it: the time of its execution is when the spirits there accumulated are of such a character as to hinder the influences of heaven from descending into the Church on earth, and when, consequently, the Church must cease to perform the uses for which it was originally established. When clouds interpose and prevent the sunshine from descending, the earth is brought into shadow and obscurity; and if those clouds were never to be dispersed, the result would certainly be unfavourable to its fruitfulness, and injurious to mankind. But of this we shall speak again.

In previous chapters it has been shown that the Lord has frequently come to His Church, in some peculiar way, and that all such comings have been attended with judgment and mercy; the judgment consisting in the removal of those hindrances to human regeneration, which errors in the religious teachings of men had created; and the mercy consisting in the restoration of Divine truth for the acceptance of the people. The judgment has always been indicated by the occurrence of some calamities amongst mankind; the mercy has always been shown by the appearance of reformations in society. The flood was the accomplishment of a judgment upon the most ancient Church, but that disaster was followed by a revival of spiritual life among mankind, and the consequent establishment of another dispensation; that new dispensation, however, in the process of time, sunk into a condition of depravity, and not only was a judgment executed upon it, but mercy was displayed in providing a successor. In the establishment of


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 the Jewish economy, a Church of another character was founded, but that also in the course of ages was perverted; men rendered the word of God of none effect, by their traditions, and then the Lord came into the world to execute a judgment upon it, after which the mercy of Christianity was vouchsafed. Jesus, however, foresaw that even Christianity would descend from the eminence on which He planted it; He, therefore, predicted that a judgment would overtake it, and that a new Church would subsequently arise: the former to be rendered evident by the existence of some unhappy circumstances in the world; the latter to be made plain by the display of some superior intelligences among mankind. Thus the Scriptures inform us that Divine judgments have always attended the end of the Churches, and that Divine mercies have always succeeded those judgments. Of these facts, so far as they related to the ancient dispensations, we have already spoken; and now we will endeavour to exhibit the rationale of that judgment which is predicted in reference to Christianity, and which we believe to have been accomplished. The general principle which will guide us in this endeavour will be the same as that which has regulated our interpretation of all the cases which have been considered.

In the first place, the fact must be remembered, that all persons when they die pass from the natural world into the world of spirits: that there is such a world, no Christian can sensibly deny. Men take with them everything that belongs to them as living, thinking beings:—all that is responsible and all that is immortal belonging to their nature. In short, every one rises immediately after death into the world of spirits, with that "spiritual body" which is proper to his existence. That there is such a body the Apostle expressly affirms.


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 But all who die are not fitted to pass immediately and directly to their eternal habitations: if they were, there would be no necessity for a judgment. There are, however, other reasons for their detention in the world of spirits. Heaven is a kingdom of the greatest purity: hell is a condition of the utmost depravity: nothing that is defiled can enter into the one, nothing that is virtuous can descend into the other. The virtues of none here are so separated from self as to attain the full standard of that excellence which fits the soul for heaven; nor are the vices of any one here so unchecked as to sink them at once into all the atrocities of hell. If, however, any do attain to either of these respective conditions during their lifetime in the world, they will, of course, at once become the subject of the judgment, and pass on to that destiny for which they are so thoroughly prepared. Such cases, however, are rare; they are not, they never have been, the general experience of our fallen race. All are, to some extent, a mixture of good and evil; in some, the good preponderates, in some the evil: the separation of these, and the attainment of a fulness of state by that which is predominant in every individual is the work of judgment. But every one, during his lifetime in the world, forms to himself a character which leans either to the world of woe or to the kingdom of bliss. The good which may adhere to those who are mainly evil, which is only an external good, will hinder them from sinking all at once into the miseries of the lost; and the evil which may cling to those who are mainly good, which is only an external evil, will prevent them from rising at once into all the beatitudes of the saved. These are the circumstances to which the Lord referred when He said, "Nothing is secret, that shall not be made manifest; neither anything hid, that shall not be


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 known and come abroad: for whosoever hath, to him shall be given; and whosoever hath not, from him shall be taken even that which he seemeth to have." From these considerations we learn what it is that detains spirits in the world of spirits; and, consequently, how it is that they accumulate in that region of the departed. The whole of the phenomena of which we have been treating, naturally arise out of what are known to be the characteristics of mankind, and it is as such that the Lord deals with them in the case of every individual. He does not suddenly strip away the vices which may adhere to the good; nor does He hastily take away the virtues which may remain with the wicked. Though the final destiny of all is fixed by that which is predominant in them, the Lord regards and treats them as responsible creatures following the bent of their inclinations. This bent, having fixed upon them a condition in which good or evil has obtained the ascendancy, will continue with them in the world of spirits, until everything contrary to the ruling love be entirely removed; and then those who have lived wickedly will of themselves descend into hell, and those who have lived wisely will be elevated into heaven by the Lord. This is distinctly taught by these words, "They that have done good" shall come forth "unto the resurrection of life, and they that have done evil unto the resurrection of damnation." The case of those who are inwardly and outwardly good is represented by Lazarus, who, on death, was soon after conducted by the angels into Abraham's bosom: and the case of those who are inwardly and outwardly evil is represented by Dives, who, on death, soon after lifted up his eyes in hell, being in torments. Judgment, under those circumstances, is readily effected, because the


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Page:John Banks Wilson - Maneuver and Firepower (1998).djvu/280

258 AGAO-I 322 Training Div (15 Aug 50) G–1–M, 6th Armd Div file, Ltr, TAG to CG, Sixth Army, 10 Nov 50, sub; Activation of the 7th Armored Division, AGAO-I 322 (11 Oct 50) G–1–M, 7th Armd Div file, Ltr, TAG to CGs, Third, Fourth, and Sixth Armies, 16 Oct 50, sub: Change in Status of Certain Units, AGAO-I 322 (29 Aug 50), 4th Inf Div file, and Divisional Historical Data Cards, all DAMH-HSO.

$14$ Schnabel, Policy and Direction, pp. 298–300; Truman, Papers of the President, 1950, pp. 746–47, "Induction and Release of Army National Guard Units," pp. 39–41: Ltr, TAG to CGs, Third and Fourth Armies, 26 Apr 51, sub: Reorganization of Certain General Reserve Units, AGAO-I 322 Gen Res (2 Apr 51) G–1–M, AG Reference files, Ltr, TAG to CGs, Third and Fourth Armies, 1 Mar 51, sub: Activation of the 1st Armored Division, AGAO-I 322 (24 Feb 51) G–1–M, 1st Armd Div file, DAMH-HSO.

$15$ Stillwaugh, "Personnel Policies," ch. 1, pp. 51–60; "Induction and Release of Army National Guard Units," pp. 48–58.

$16$ Stillwaugh, "Personnel Policies," ch. 3, p. 1; Ltr, TAG to CG, Second Army, 21 Feb 51, sub: Activation of the 5th Infantry Division (Training), AGAO-I 322 (2 Feb 51) G–1–M, 5th Inf Div file, and Historical Data Card 5th Inf Div, DAMH-HSO; Robert W, Coakley, Karl E, Cocke, Daniel P. Griffin, "Demobilization Following the Korean War," OCMH Study 29, pp. 71–73, Ms, DAMH-HSR.

$17$ Hermes, Truce Tent and Fighting Front, pp. 202–04, Prior to the redeployment of 24th Infantry Division to Korea in summer of 1953, elements of the 1st Cavalry Division and 24th Infantry Division had served there as security forces on a rotation basis since October 1952.

$18$ DA Bull 15, 1952; Annual Report of the Chief of the National Guard Bureau, 1953, pp. 2–3, 1954, p. 15: see notes based on NG-AROTO (National Guard Bureau-Organization and Training Branch) 325.4 letters, 1952–54, author's files; "Illinois Declines Allotment to Reorganize 44th Division," Army Times, 9 Jan 54; "Protests Rip Illinois Guard; Generals Urge Boyle's Removal," Army Times, 16 Jan 54; Ltr, NGB to AG, Illinois, 17 Feb 54, sub; Withdrawal of Federal Recognition, National Guard Units, NG-AROTO 325.4–Ill. 44th Inf Div file, DAMH-HSO.

$19$ Truman, Papers of the President, 1950, p. 626; Dean Acheson, Present at the Creation; My Years in the State Department (New York: W. W, Norton and Co., 1969), pp. 437–40; Historical Data Cards for the 4th, 28th, and 43d Inf Divs and the 2d Armd Div, DAMH-HSO.

$20$ TOE 7, Infantry Division, 15 May 1952; TOE 17, Armored Division, 29 Dee 1952; TOE 57, Airborne Division, 1 Jan 1952; Lloyd Norman, "The New Look Strategy," Combat Forces Journal 4 (Feb 1954); 15–20.

$21$
TOE 7–11, Infantry Regiment, 15 May 1952; "Tools for the Fighting Man: Small Arms," Armed Forces Talk (18 Jan 1952) pp. 1–15; Walter H. Ramsey, "The Big Bazooka: Russian Tanks Were No Match for Our 3.5-Inch Weapon," Ordnance 35 (May–Jun 1951): 638–40.

$22$
TOE 7, Infantry Division, 15 May 1952; TOE 17, Armored Division, 29 Dec 1952; TOE 57, Airborne Division, 1 Jan 1952; James C. Smith, "Centralized Operations," Army Aviation Digest 1 (Mar 1955): 19–25; Joseph Bonanno, "The Helicopter in Combat," Ordnance 37 (Mar–Apr 1954): 868–72; Donald F. Harrison, "A History of Army Aviation," ch. V, pp, 11–20, 25–27, Ms, DAMH-HSR.

$23$
TOE 17, Armored Division, 29 Dec 1952; Stubbs and Connor, Armor-Cavalry, pp. 77–78; "The T43 Heavy Tank," Armor 63 (May–Jun 1954): 32–33; "Army's New M48 Medium Tank Ready for Distribution to Armor Troops," Armor 61 (May–Jun 1952): 30–31.

$24$
Ltr, TAG to CinC, U.S, Army, Europe, 6 Feb 53, sub; Change in Status of Certain Units, AGAO-I (M) (28 Jan 53) G–1, and Ltr, TAG to CG, U.S. Army Forces, Far East (Main), 9 Feb 53, sub: Change in Status of Certain Units, AGAO-I (M) 322 (4 Feb 53) G–1, both AG Reference files, DAMH-HSO; OCAFF, "Summary of Major Events and Problems, FY 1953," ch. 9, pp. 1–18.

$25$
DA Bull 23, 1948; Morris J. MacGregor, Integration of the Armed Forces, pp, 428–59 passim.

$26$
MacGregor, Integration of the Armed Forces, pp. 442–45; Bernard C. Nalty and Morris J.


text:
Heck v. Humphrey/Opinion of the Court

delivered the opinion of the Court.

This case presents the question whether a state prisoner may challenge the constitutionality of his conviction in a suit for damages under 42 U.S.C. § 1983.

I
Petitioner Roy Heck was convicted in Indiana state court of voluntary manslaughter for the killing of Rickie Heck, his wife, and is serving a 15-year sentence in an Indiana prison. While the appeal from his conviction was pending, petitioner, [p479] proceeding pro se, filed this suit in Federal District Court under 42 U.S.C. § 1983, naming as defendants respondents James Humphrey and Robert Ewbank, Dearborn County prosecutors, and Michael Krinoph, an investigator with the Indiana State Police. The complaint alleged that respondents, acting under color of state law, had engaged in an "unlawful, unreasonable, and arbitrary investigation" leading to petitioner's arrest; "knowingly destroyed" evidence "which was exculpatory in nature and could have proved [petitioner's] innocence"; and caused "an illegal and unlawful voice identification procedure" to be used at petitioner's trial. App. 5–6. The complaint sought, among other things, compensatory and punitive monetary damages. It did not ask for injunctive relief, and petitioner has not sought release from custody in this action.

The District Court dismissed the action without prejudice, because the issues it raised "directly implicate the legality of [petitioner's] confinement," id., at 13. While petitioner's appeal to the Seventh Circuit was pending, the Indiana Supreme Court upheld his conviction and sentence on direct appeal, Heck v. State, 552 N.E.2d 446, 449 (Ind. 1990); his first petition for a writ of habeas corpus in Federal District Court was dismissed because it contained unexhausted claims; and his second federal habeas petition was denied, and the denial affirmed by the Seventh Circuit.

When the Seventh Circuit reached petitioner's appeal from dismissal of his § 1983 complaint, it affirmed the judgment and approved the reasoning of the District Court: "If, regardless of the relief sought, the plaintiff [in a federal civil [p480] rights action] is challenging the legality of his conviction, so that if he won his case the state would be obliged to release him even if he hadn't sought that relief, the suit is classified as an application for habeas corpus and the plaintiff must exhaust his state remedies, on pain of dismissal if he fails to do so." 997 F.2d 355, 357 (1993). Heck filed a petition for certiorari, which we granted. 510 U.S. 1068 (1994).

II
This case lies at the intersection of the two most fertile sources of federal-court prisoner litigation—the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983, and the federal habeas corpus statute, 28 U.S.C. § 2254. Both of these provide access to a federal forum for claims of unconstitutional treatment at the hands of state officials, but they differ in their scope and operation. In general, exhaustion of state remedies "is not a prerequisite to an action under § 1983," Patsy v. Board of Regents of Fla., 457 U.S. 496, 501 (1982) (emphasis added), even an action by a state prisoner, id., at 509. The federal habeas corpus statute, by [p481] contrast, requires that state prisoners first seek redress in a state forum. See Rose v. Lundy, 455 U.S. 509 (1982).

Preiser v. Rodriguez, 411 U.S. 475 (1973), considered the potential overlap between these two provisions, and held that habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983. Id., at 488–490. We emphasize that Preiser did not create an exception to the "no exhaustion" rule of § 1983; it merely held that certain claims by state prisoners are not cognizable under that provision, and must be brought in habeas corpus proceedings, which do contain an exhaustion requirement.

This case is clearly not covered by the holding of Preiser, for petitioner seeks not immediate or speedier release, but monetary damages, as to which he could not "have sought and obtained fully effective relief through federal habeas corpus proceedings." Id., at 488. See also id., at 494; Allen v. McCurry, 449 U.S. 90, 104 (1980). In dictum, however, Preiser asserted that since a state prisoner seeking only damages "is attacking something other than the fact or length of confinement, and  is seeking something other than immediate or more speedy release[,]  a damages action by a state prisoner could be brought under [§ 1983] in federal court without any requirement of prior exhaustion of state remedies." 411 U.S., at 494. That statement may not be true, however, when establishing the basis for the damages claim necessarily demonstrates the invalidity of the [p482] conviction. In that situation, the claimant can be said to be "attacking the fact or  length of  confinement," bringing the suit within the other dictum of Preiser: "Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983." Id., at 490. In the last analysis, we think the dicta of Preiser to be an unreliable, if not an unintelligible, guide: that opinion had no cause to address, and did not carefully consider, the damages question before us today.

Before addressing that question, we respond to petitioner's contention that it has already been answered, in Wolff v. McDonnell, 418 U.S. 539 (1974). See Reply Brief for Petitioner 1. First of all, if Wolff had answered the question we would not have expressly reserved it 10 years later, as we did in Tower v. Glover, 467 U.S. 914 (1984). See id., at 923. And secondly, a careful reading of Wolff itself does not support the contention. Like Preiser, Wolff involved a challenge to the procedures used by state prison officials to deprive prisoners of good-time credits. The § 1983 complaint sought restoration of good-time credits as well as "damages for the deprivation of civil rights resulting from the use of the allegedly unconstitutional procedures." Wolff, supra, at 553. The Court said, after holding the claim for good-time credits to be foreclosed by Preiser, that the damages claim was nonetheless "properly before the District Court and required determination of the validity of the procedures employed for imposing sanctions, including loss of good time," 418 U.S., at 554. Petitioner contends that this language authorized the plaintiffs in Wolff to recover damages measured by the actual loss of good time. We think not. In light of the earlier language characterizing the claim as one of "damages for the deprivation of civil rights," rather than damages for the deprivation of good-time credits, we think this passage recognized a § 1983 claim for using the [p483] wrong procedures, not for reaching the wrong result (i.e., denying good-time credits). Nor is there any indication in the opinion, or any reason to believe, that using the wrong procedures necessarily vitiated the denial of good-time credits. Thus, the claim at issue in Wolff did not call into question the lawfulness of the plaintiff's continuing confinement. See Fulford v. Klein, 529 F.2d 377, 381 (1976), adhered to, 550 F.2d 342 (CA5 1977) (en banc); Schwartz, The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DePaul L. Rev. 85, 120–121, 145–146 (1988).

Thus, the question posed by § 1983 damages claims that do call into question the lawfulness of conviction or confinement remains open. To answer that question correctly, we see no need to abandon, as the Seventh Circuit and those courts in agreement with it have done, our teaching that § 1983 contains no exhaustion requirement beyond what Congress has provided. Patsy, 457 U.S., at 501, 509. The issue with respect to monetary damages challenging conviction is not, it seems to us, exhaustion; but rather, the same as the issue was with respect to injunctive relief challenging conviction in Preiser: whether the claim is cognizable under § 1983 at all. We conclude that it is not.

"We have repeatedly noted that 42 U.S.C. § 1983 creates a species of tort liability." Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305 (1986) (internal quotation marks omitted). "[O]ver the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well." Carey v. Piphus, 435 U.S. 247, 257–258 (1978). Thus, to determine whether there is any bar to the present suit, we look first to the common law of torts. Cf. Stachura, supra, at 306.

[p484] The common-law cause of action for malicious prosecution provides the closest analogy to claims of the type considered here because, unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process. "If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 888 (5th ed. 1984). But a successful malicious prosecution plaintiff may recover, in addition to general damages, "compensation for any arrest or imprisonment, including damages for discomfort or injury to his health, or loss of time and deprivation of the society." Id., at 887–888 (footnotes omitted). See also Roberts v. Thomas, 135 Ky. 63, 121 S.W. 961 (1909).

One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused. Prosser and Keeton, supra, at 874; Carpenter v. Nutter, 127 Cal. 61, 59 P. 301 (1899). This requirement "avoids parallel litigation over the issues of probable cause and guilt and it precludes the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction." 8 S. Speiser, C. Krause, & A. Gans, American Law of Torts § 28:5, p. 24 (1991). Furthermore, "to permit a convicted criminal defendant to proceed with a malicious prosecution claim would permit a collateral attack on the conviction through the vehicle of a civil suit." Ibid. This Court has long expressed [p485] similar concerns for finality and consistency and has generally declined to expand opportunities for collateral attack, see Parke v. Raley, 506 U.S. 20, 29–30 (1992); Teague v. Lane, 489 U.S. 288, 308 (1989); [p486] Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Voorhees v. Jackson, 10 Pet. 449, 472–473 (1836). We think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution.

We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove [p487] that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

[p488] Respondents had urged us to adopt a rule that was in one respect broader than this: Exhaustion of state remedies should be required, they contended, not just when success in the § 1983 damages suit would necessarily show a conviction or sentence to be unlawful, but whenever "judgment in a § 1983 action would resolve a necessary element to a likely challenge to a conviction, even if the § 1983 court [need] not determine that the conviction is invalid." Brief for Respondents 26, n. 10. Such a broad sweep was needed, respondents contended, lest a judgment in a prisoner's favor in a federal-court § 1983 damages action claiming, for example, a Fourth Amendment violation, be given preclusive effect as to that subissue in a subsequent state-court postconviction proceeding. Preclusion might result, they asserted, if the State exercised sufficient control over the officials' defense in the § 1983 action. See Montana v. United States, 440 U.S. 147, 154 (1979). While we have no occasion to rule on the matter at this time, it is at least plain that preclusion will not necessarily be an automatic, or even a permissible, effect.

[p489] In another respect, however, our holding sweeps more broadly than the approach respondents had urged. We do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action. Even a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus. That makes it unnecessary for us to address the statute-of-limitations issue wrestled with by the Court of Appeals, which concluded that a federal doctrine of equitable tolling would apply to the § 1983 cause of action while state challenges to the conviction or sentence were being exhausted. (The court distinguished our cases holding that state, not federal, tolling provisions apply in § 1983 actions, see Board of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478 (1980); Hardin v. Straub, 490 U.S. 536 (1989), on the ground that petitioner's claim was "in part one for habeas corpus." 997 F.2d, at 358.) Under our analysis the statute of limitations poses no difficulty while the state challenges are being pursued, since the § 1983 claim has not yet arisen. Just as a cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff's favor, 1 C. Corman, Limitation of Actions § 7.4.1, p. 532 (1991); Carnes v. Atkins Bros. Co., 123 La. 26, 31, 48 So. 572, 574 (1909), so also a § 1983 cause of action for damages [p490] attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.

Applying these principles to the present action, in which both courts below found that the damages claims challenged the legality of the conviction, we find that the dismissal of the action was correct. The judgment of the Court of Appeals for the Seventh Circuit is

Affirmed.

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Mersenne's work, from which he takes a picture (Plate ix., Fig. 4) of a transverse flute or fife, which he calls "Fistula Militaris," and mentions that it was used by the Swiss Guards of the Pope.

The exact date at which the transverse flute was first used in England is not known; but certainly the fife was in use in the time of Henry VIII. Transverse flutes are depicted in an engraving to Spenser's Shepherd's Calendar, dated 1579; in Ghieraert's picture of the Marriage Feast of Sir Henry Unton, painted about 1596, and now in the National Portrait Galleryin both cases the player is left-handedand in a contemporary picture of Sir Philip Sidney's funeral (now in the Heralds' College); and such instruments are mentioned in an inventory of Hengrave Hall, Sussex, in 1602. The earliest English description of the transverse flute I have met with is in


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 One three centuries removed From the scenes his fathers loved, Spicy grove, cinnamon tree, What is Africa to me? —Countée Cullen

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 Bacon's Sylva Sylvarum: having described the method of blowing the recorder, he says, "Some kinds of instruments are blown at a small hole in the side, as is seen in flutes and fifes, which will not give sound by a blast at the end, as recorders do." This was written certainly before the end of 1626, as Bacon died in that year, and the book was published posthumously in the following year.

Hitherto all flutes were made of wood (generally boxwood), with a round mouth-holethe oval mouth-hole did not appear till about 1724with six finger-holes only, without any keys, and pitched in the major diatonic scale. The application of additional holes stopped by keys dates from about 1660-70, when Lulli first introduced the flute into the orchestra. About that date some now unknown inventor, probably of French origin, introduced the D♯ key, which is found on the Chevalier flute (c. 1670), and is shown in a picture dated 1690. Virdung, Agricola, Mersenne, Prætorius, and Bartholinus (1677) all give representations of a bass flute-à-bec with a key enclosed in a perforated casing for a low note (see Fig. 11); but this device does not appear to have been applied to transverse flutes of the period. The invention of this D♯ key was the first really important step in the improvement of the flute. The innovation was at once adopted by Philbert (who


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 is often credited with its invention), by Michel de La Barre, by Hotteterre, by Buffardin, and by Blavetthe earliest great players of whom we have any record. From the picture of a flute of the period (see p. 31, Fig. 1) given in Hotteterre's Principes de la Flûte traversière, published in 1707, it is evident that the key was supported by means of a raised wooden ring left round the tube. A groove cut in this ring admitted the key, which moved on an axle, and was kept closed by a spring under the finger-end of the key. This system of key mechanism was also used for other keys subsequently introduced, and is still met with in a modified form in cheap flutes, which have the pin-axle supported between two knobs of wood, the remainder of the ring being cut away. The author of this bookthe first complete book of instructions for the flute now known—was called Hotteterre-le-Romain, because he spent part of his early life in Rome. He came of a numerous French family of wind instrument makers and players, many of whom were members of the band of Louis XIV. He has been hitherto confused with an earlier member of the family named Louis, who was Royal flute-player at Court in 1664; but M. Ernest Thoinan, in his book Les Hotteterre et les Chedeville (Paris; Sagot, 1894), has satisfactorily proved that his Christian name was Jacques, that his father's name was Martin, and that he was born in Paris. From the same authority we learn that in 1708 he played his compositions for the flute before the King, who granted him a Document of Privilege, and that he lived in


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the last letter in Irene Redfield’s little pile of morning mail. After her other ordinary and clearly directed letters the long envelope of thin Italian paper with its almost illegible scrawl seemed out of place and alien. And there was, too, something mysterious and slightly furtive about it. A thin sly thing which bore no return address to betray the sender. Not that she hadn't immediately known who its sender was. Some two years ago she had one very like it in outward appearance. Furtive, but yet in some peculiar, determined way a little flaunting. Purple ink. Foreign paper of extraordinary size.

It had been, Irene noted, postmarked in New York the day before. Her brows came together in a tiny frown. The frown, however, was more from perplexity than from annoyance; though there was in her thoughts an element of both. She was wholly unable to

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 such an attitude towards danger as she was sure the letter’s contents would reveal; and she disliked the idea of opening and reading it.

This, she reflected, was of a piece with all that she knew of Clare Kendry. Stepping always on the edge of danger. Always aware, but not drawing back or turning aside. Certainly not because of any alarms or feeling of outrage on the part of others.

And for a swift moment Irene Redfield seemed to see a pale small girl sitting on a ragged blue sofa, sewing pieces of bright red cloth together, while her drunken father, a tall, powerfully built man, raged threateningly up and down the shabby room, bellowing curses and making spasmodic lunges at her which were not the less frightening because they were, for the most part, ineffectual. Sometimes he did manage to reach her. But only the fact that the child had edged herself and her poor sewing over to the farthermost corner of the sofa suggested that she was in any way perturbed by this menace to herself and her work.

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 Rue Christine in 1707. He died in 1760-61. The Principes contains his portrait by Bernard Picart; the face is far from common, and is characteristic in expression. It will be noticed that the flute in the portrait has figures over each finger. "Le Romain" is Facsimile of a page of one of Hotteterre's flute solos with bass. In the original the lines are broken and very uneven, and it is difficult to tell what the notes really are. said to have been the first to play the transverse flute in the opera at Paris, c. 1697. Several of his contemporaries bear testimony to his powers as a performer, and one, writing in 1702, says he "taught the instrument to lament in so affecting a manner in mournful


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are to improve the intonation of some of the upper notes, and to render certain notes easier to produce, but it certainly weakens the tone of the lowest notes.

The size of the finger-holes was also reduced about the same time, and shortly afterwards the number of joints was increased; a boxwood one-keyed flute made for Quantz before 1724 by F. Boie, a well-known maker, consisted of four separate pieces. These early flutes generally had severalsometimes as many as sixinterchangeable middle sections of various lengths, which were used for the purpose of altering the pitch. This device was still used in 1791, and is mentioned in Florio and Tacet's Instruction Book. Pratten tried it in 1867. Sometimes also the foot-joint was made in two pieces, sliding into each other, which could be pulled out or pushed in, so as to lengthen or shorten the joint about half an inch according as a longer or shorter middle section was employed. This was called a "Register," and by its means the pitch could be altered an entire tone. Quantz before 1752 made an additional long pin-and-socket joint in the head-piece, so that it could be lengthened or shortened at will. This tuning-slide was originally made of wood, and it was found that when drawn out there was a considerable cavity left in the inside of the tube, rendering the bore wider at that point; this affected the tone. To remedy


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 this defect Quantz had a number of rings of wood of various widths to slip into this cavity and fill it up. These rings are still occasionally used in old flutes, but they are unsatisfactory and troublesome. The adoption of a thin metal slide, leaving a very trifling cavity, has practically remedied this defect. Böhm objected to a metal slide on the ground that the close combination of metal with wood caused unequal and disturbed vibration, and produced a disagreeable harshness of tone. On his flute of 1832 he therefore used wooden rings. Theoretically, in order to alter the pitch correctly throughout the entire instrument, the position of each hole should be varied, which is, of course, impossible. By means of the slide the pitch can be varied about the eighth of a tone without putting the flute appreciably out of tune. In most modern flutes the tuning slide is formed by a projection at the top of the second joint.

In 1726 Quantz added a second hole and closed key (Page 31, Fig. 2), which, he claimed, produced the E♭ more correctly than the D♯ key, and thus rendered the common chords of E♭ and B♮ more perfectly in tune. One hole had an aperture larger than the other, and by using one or other the tone and tune of certain defective notes was corrected. This additional key, though adopted by Tromlitz, was of no practical value. It never became general, and was only used in Germany, where it survived for about eighty years. Tromlitz credits Quantz with the invention of a screw-stopper at the head of the


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 flute, by means of which the position of the cork in the head joint could be adjusted. Quantz, however, does not himself lay any claim to this invention, which appeared before 1752, as also did the brass-lining of the head-joint.

The table of fingering given by Quantz ascends to A′′′♮ in alt., whilst that in Diderot's Encyclopœdia (1756) goes up to the D in alt. above this (being, in fact, a note higher than the present Böhm flute), but he adds that the last five semitones cannot be sounded on all flutes. Quantz possessed a flute, made by I. Biglioni, of Rome, which had an additional open key for the low C♯. But he made no claim to its invention, telling us that about 1722 both low C♯ and C♮ open keys were added to flutes, with a lengthened tube. He objected to this innovation (as did also Wendling, his successor), and it was for a time abandoned as detrimental to tone and intonation; both keys were, however, revived by Pietro Grassi Florio about 1770. Florio was first flute in the orchestra of the Italian Opera in London. He used to hang a little curtain to the foot-joint of his flute in order to conceal these keys, which he wished to keep secret. The French player, Devienne, in 1795 objected to Florio's keys as being out of place in the instrument, and having no power, but they are now universally used on all concert flutes.

The next keys to be added were those for F♮, G♯, and B♭. The exact date of this innovation is not known.


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 proficient that he was taken on as assistant to a local surveyor of ability in the neighbourhood. In carrying on his business he was constantly under the necessity of traversing Oxfordshire and the adjoining counties. One of the first things he seriously pondered over was the position of the various soils and strata that came under his notice on the lands which he surveyed or travelled over; more especially the position of the red earth in regard to the lias and superincumbent rocks. The surveys of numerous collieries which he was called upon to make gave him further experience; and already, when only twenty-three years of age, he contemplated making a model of the strata of the earth.

While engaged in levelling for a proposed canal in Gloucestershire, the idea of a general law occurred to him relating to the strata of that district. He conceived that the strata lying above the coal were not laid horizontally, but inclined, and in one direction, towards the east; resembling, on a large scale, "the ordinary appearance of superposed slices of bread and butter." The correctness of this theory he shortly after confirmed by observations of the strata in two parallel valleys, the "red ground," "lias," and "freestone" or" "oolite," being found to come down in an eastern direction, and to sink below the level, yielding place to the next in succession. He was shortly enabled to verify the truth of his views on a larger scale, having been appointed to examine personally into the management of canals in England and Wales. During his journeys, which extended from Bath to Newcastle-on-Tyne, returning by Shropshire and Wales, his keen eyes were never idle for a moment. He


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 One Gerhard Hoffmann is reported to have used the G♯ and B♭ keys in 1722. They first appeared in London shortly after 1770. By their means all the semitones (except C♮) could be played without fork-fingerings. They also greatly improved the tone of several other notes. It is a matter of wonder how the chromatic passages and shakes found in the flute compositions of Quantz and other early composers could have been played without them. The name of the inventor is uncertain. Ribock, Lavoix, and Mahillon ascribe the short F♮ key to the somewhat mythical Kusder in 1762. Some ascribe all three to Tromlitz, and others (with considerable probability) to Joseph Tacet, who certainly was one of the first to employ them. Tacet, who also experimented with large finger-holes, such as Nicholson afterwards tried, was a flute-maker, player and composer of some note. He was a grandfather of Cipriani Potter; and Richard Potter (the well-known London flute-maker) adopted these keys on a flute made in or before 1774, on which Vanhall performed at The Hague, and which he subsequently sold to Ashe, the Irish flautist. This doubtless is the instrument referred to in the Encyclopédie Methodique (1785)"It is pretended that an English musician has constructed a flute with seven keys in order to obtain all the semitones." Potter in 1785 took out the first English patent for improvements in the flute; it included these keys, also a metal tuning-slide, a screw-cork in the head-joint, and conical metal valves on the keys. He, however, makes no claim to


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 have invented any of these improvementsthey were all known previously. Ribock in 1782 mentions these three keys as being in general use in Germany.

The next step was the addition of a short C♮ key, placed across the tube. Ribock claims to have invented it before 1782; others ascribe it to Petersen of Hamburg, or to one Rodolphe, of whom nothing is known. This key was altered some time before 1806 into a long key (inventor unknown) running along the side of the tube and opened by the first finger of the right hand.

Strange to say, these additional keys, which greatly improved the instrumentthough still very defectivewere much objected to, the existing flute being considered perfect, and were as a rule only used for shakes, especially on the continent. They were little used in France when Devienne published his celebrated Methode (1795). Although Hugot and Wunderlich recommend them in their Tutor of 1801 (where, by the way, the low C♮ and C♯ keys are condemned), they were not generally adopted till the beginning of the nineteenth century. As scornfully remarked of his contemporaries, they only "used the fingering of one hundred years ago because it was used by their grandfathers." To Johann George Tromlitz (c. 1730-1805), a Leipsic flautist, is to be ascribed the invention (before 1786) of the long F♮ key, used on all modern eight-keyed flutes. This key is not much used in playing, and was objected to by Nicholson, who would not have it on his flute, and by Tulou, but was advocated by Drouet. Tromlitz's


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 chief merit was that he attempted to make flutes on a rational principle, and that he aimed at perfect intonation throughout the entire compass of the instrument, being a strenuous advocate of an open-keyed system (Page 31, Fig. 3). He added another long key for B♭ (worked by the first finger of the right hand), altered the position of the G♯ hole and key, and made several other changes which may be disregarded as they were not permanently retained. Tromlitz published three important works on the flute in 1786, 1791, and 1800 respectively; in those of 1791 and 1800 he seems rather to disapprove of keys (save in the hands of skilled players), of the tuning slide, and the low C♮ and C♯ keys. In the book of 1800 he advocates a flute with only a D♯ key, but with holes for the thumbs (F♯, B♮), and for the little finger of the left hand (G♯). This is interesting as being the earliest attempt to produce a chromatic flute with open holes; but his system left many "veiled" notes; still it was a step in the right direction. This idea of constructing a chromatic flute with all the holes open and in their true positions was carried still further by Dr. H. W. Pottgiesser between 1803-24. According to Ward, his was "the first truly scientific remodelling of the flute." Pottgiesser's first flute, in two pieces only and with only one key, was wider in bore and shorter than other flutes. In his second flute (with keys) he equalized the size of the finger-holes, suggested rollers for the "touches" of the thumb-keys, and introduced a perforated key for the C♯ hole. The object of this "ring


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 and crescent" key was to alter the size of the C♯ hole, in order to render it better in tune when the B♮ is closed.

I have now traced the history of the development of the old-fashioned eight-keyed flute of our fathers and grandfathers (Page 31, Fig. 4), of which the earliest English description is to be found in Wragg's Flute Preceptor (1806). Various additional keys and levers were added from time to time, none of which came into any general or permanent use. Numerous experiments have been tried in respect to the size of the bore (it has varied very little from the time of Mersenne) and of the holes, which need not be detailed here. Two inventions, however, deserve notice. J. N. Capeller (possibly assisted by Böhm) in 1811 devised a D′′♮ hole and key worked by the first finger of the right hand. This gave the shake from C♯ to D♮, hitherto practically impossible, and is a most useful key, now found on all good flutes. More important still, the Rev. Frederick Nolan, of Stratford, in Essex, an amateur flautist, in 1808


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 rapidly noted the aspect and structure of the country through which he passed with his companions, treasuring up his observations for future use. His geologic vision was so acute, that, though the road along which he passed from York to Newcastle in the post chaise was from five to fifteen miles distant from the hills of chalk and oolite on the east, he was satisfied as to their nature, by their contours and relative position, and their ranges on the surface in relation to the lias and "red ground occasionally seen on the road.

The general results of his observation seem to have been these. He noted that the rocky masses of country in the western parts of England generally inclined to the east and south-east; that the red sandstones and marls above the coal measures passed beneath the lias, clay, and limestone; that these again passed beneath the sands, yellow limestones and clays, forming the table-land of the Cotswold Hills, while these in turn passed beneath the great chalk deposits occupying the eastern parts of England. He further observed, that each layer of clay, sand, and limestone held its own peculiar classes of fossils; and pondering much on these things, he at length came to the then unheard-of conclusion, that each distinct deposit of marine animals, in these several strata, indicated a distinct sea-bottom, and that each layer of clay, sand, chalk, and stone marked a distinct epoch of time in the history of the earth.

This idea took firm possession of his mind, and he could talk and think of nothing else. At canal boards, at sheep-shearings, at county meetings, and at agricultural associations, 'Strata Smith,' as he came to be called, was always running over with


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