BRENNAN, J., dissenting 424 U.S. within the broad term "liberty" and clearly require that the government afford procedural protections before infringing that name and reputation by branding a person as a criminal. The Court is reduced to discrediting the clear thrust of Constantineau and Jenkins by excluding the interest in reputation from all constitutional protection "if there is any other possible interpretation" by which to deny their force as precedent according constitutional protection for the interest in reputation.1o Ante, at 708. The Court's approach-oblivious both to Mr. Chief Justice Marshall's admonition that "we must never forget, that it is a constitution we are expounding," M'Culloch v. Maryland, 4 Wheat. 316, 407 (1819), and to the teaching of cases such as Roth and Meyer, which were attentive to the necessary breadth of constitutional "liberty" and "property" interests, see nn. 10, 15, supra-is to water down our prior precedents by reinter is no suggestion whatever that the respondent's 'good name, reputation, honor, or integrity' is at stake." Id., at 573. See also Arnett v. Kennedy, 416 U. S., at 157 (opinion of REHNQUist, J.) ("[L]iberty is not offended by dismissal from employment itself, but instead by dismissal based upon an unsupported charge which could wrongfully injure the reputation of an employee.... [T]he purpose of the hearing in such a case is to provide the person ‘an opportunity to clear his name' . . ."). The fact that a stigma is imposed by the government in terminating the employment of a government employee may make the existence of state action unquestionable, but it surely does not detract from the fact that the operative "liberty" concept relates to the official stigmatization of the individual, whether imposed by the government in its status as an employer or otherwise. 16 Similar insensitivity is exhibited by the Court when it declares that respondent "has pointed to no specific constitutional guarantee safeguarding the interest he asserts has been invaded." Ante, at 700. The gravamen of respondent's complaint is that he has been stigmatized as a criminal without any of the constitutional protections designed to prevent an erroneous determination of criminal culpability. 693 BRENNAN, J., dissenting preting them as confined to injury to reputation that affects an individual's employment prospects or, as "a right or status previously recognized by state law [that the State] distinctly altered or extinguished." Ante, at 711. See also, e. g., ante, at 701, 704-706, 709-710, 710-712. The obvious answer is that such references in those cases (when there even were such references) concerned the particular fact situations presented, and in nowise implied any limitation upon the application of the principles announced, E. g., ante, at 709-710, quoting Board of Regents v. Roth, 408 U. S., at 573. See n. 15, supra. Discussions of impact upon future employment opportunities were nothing more than recognition of the logical and natural consequences flowing from the stigma condemned. E. g., ante, at 705-706, quoting Cafeteria Workers v. McElroy, 367 U. S., at 898.17 17 The import of these cases and the obvious impact of official stigmatization as a criminal were not lost on the Court of Appeals in this case: "This label ['active shoplifter'] carries with it the badge of disgrace of a criminal conviction. Moreover, it is a direct statement by law enforcement officials that the persons included in the flyer are presently pursuing an active course of criminal conduct. All of this was done without the slightest regard for due process. There was no notice nor opportunity to be heard prior to the distribution of the flyer, and appellant and others have never been accorded the opportunity to refute the charges in a criminal proceeding. It goes without saying that the Police Chiefs cannot determine the guilt or innocence of an accused in an administrative proceeding. Such a determination can be made only in a court of law. "The harm is all the more apparent because the branding has been done by law enforcement officials with the full power, prestige and authority of their positions. There can be little doubt that a person's standing and associations in the community have been damaged seriously when law enforcement officials brand him an active shoplifter, accuse him of a continuing course of criminal conduct, group him with criminals and distribute his name and photograph to the merchants and businessmen of the community. Such acts are a direct and devastating attack on the good name, reputa BRENNAN, J., dissenting 424 U.S. Moreover, the analysis has a hollow ring in light of the Court's acceptance of the truth of the allegation that the "active shoplifter" label would "seriously impair [respondent's] future employment opportunities." Ante, at 697. This is clear recognition that an official "badge of infamy" affects tangible interests of the defamed individual and not merely an abstract interest in how people view him; for the "badge of infamy" has serious consequences in its impact on no less than the opportunities open to him to enjoy life, liberty, and the pursuit of happiness. It is inexplicable how the Court can say that a person's status is "altered" when the State suspends him from school, revokes his driver's license, fires him from a job, or denies him the right to purchase a drink of alcohol, but is in no way "altered" when it officially pins upon him the brand of a criminal, particularly since the Court recognizes how deleterious will be the consequences that inevitably flow from its official act. See, e. g., ante, at 708-709, 711-712. Our precedents clearly mandate that a person's interest in his good name and reputation is cognizable as a "liberty" interest within the meaning of the Due Process Clause, and the Court has simply failed to distinguish those precedents in any rational manner in holding that no invasion of a "liberty" interest was effected in the official stigmatizing of respondent as a criminal without any "process" whatsoever. I have always thought that one of this Court's most important roles is to provide a formidable bulwark against governmental violation of the constitutional safe tion, honor and integrity of the person involved. The fact of an arrest without more may impair or cloud a person's reputation. Michelson v. United States, 335 U. S. 469, 482... (1948). Such acts on the part of law enforcement officials may result in direct economic loss and restricted opportunities for schooling, employment and professional licenses. Menard v. Mitchell, 139 U. S. App. D. C. 113, 430 F. 2d 486, 490 (1970)." 505 F. 2d 1180, 1183 (1974). 693 BRENNAN, J., dissenting guards securing in our free society the legitimate expectations of every person to innate human dignity and sense of worth. It is a regrettable abdication of that role and a saddening denigration of our majestic Bill of Rights when the Court tolerates arbitrary and capricious official conduct branding an individual as a criminal without compliance with constitutional procedures designed to ensure the fair and impartial ascertainment of criminal culpability. Today's decision must surely be a shortlived aberration.18 18 In light of my conviction that the State may not condemn an individual as a criminal without following the mandates of the trial process, I need not address the question whether there is an independent right of privacy which would yield the same result. Indeed, privacy notions appear to be inextricably interwoven with the considerations which require that a State not single an individual out for punishment outside the judicial process. Essentially, the core concept would be that a State cannot broadcast even such factual events as the occurrence of an arrest that does not culminate in a conviction when there are no legitimate law enforcement justifications for doing so, since the State is chargeable with the knowledge that many employers will treat an arrest the same as a conviction and deny the individual employment or other opportunities on the basis of a fact that has no probative value with respect to actual criminal culpability. See, e. g., Michelson v. United States, 335 U. S. 469, 482 (1948); Schware v. Board of Bar Examiners, 353 U. S., at 241. A host of state and federal courts, relying on both privacy notions and the presumption of innocence, have begun to develop a line of cases holding that there are substantive limits on the power of the government to disseminate unresolved arrest records outside the law enforcement system, see, e. g., Utz v. Cullinane, 172 U. S. App. D. C. 67, 520 F. 2d 467 (1975); Tarlton v. Saxbe, 165 U. S. App. D. C. 293, 507 F. 2d 1116 (1974); United States v. Dooley, 364 F. Supp. 75 (ED Pa. 1973); Menard v. Mitchell, 328 F. Supp. 718, 725-726 (DC 1971), rev'd on other grounds, 162 U. S. App. D. C. 284, 498 F. 2d 1017 (1974); United States v. Kalish, 271 F. Supp. 968 (PR 1967); Davidson v. Dill, 180 Colo. 123, 503 P. 2d 157 (1972); Eddy v. Moore, 5 Wash. App. 334, 487 P. 2d 211 (1971). I fear that after BRENNAN, J., dissenting 424 U.S. today's decision, these nascent doctrines will never have the opportunity for full growth and analysis. Since the Court of Appeals did not address respondent's privacy claims, and since there has not been substantial briefing or oral argument on that point, the Court's pronouncements are certainly unnecessary. Of course, States that are more sensitive than is this Court to the privacy and other interests of individuals erroneously caught up in the criminal justice system are certainly free to adopt or adhere to higher standards under state law. See, e. g., Michigan v. Mosley, 423 U. S. 96, 111, 120-121 (1975) (BRENNAN, J., dissenting). MR. JUSTICE WHITE does not concur in this footnote. |