with whom Justice Brennan, Justice Marshall, and Justice Scalia join, dissenting.
Our long course of decisions concerning artificial entities and the Fifth Amendment served us well. It illuminated two of the critical foundations for the constitutional guarantee against self-incrimination: first, that it is an explicit right of a natural person, protecting the realm of human thought and expression; second, that it is confined to governmental compulsion.
It is regrettable that the very line of cases which at last matured to teach these principles is now invoked to curtail them, for the Court rules that a natural person forfeits the privilege in a criminal investigation directed against him and that the Government may use compulsion to elicit testimonial assertions from a person who faces the threat of criminal proceedings. A case that might have served as the paradigmatic expression of the purposes served by the Fifth Amendment instead is used to obscure them.
The Court today denies an individual his Fifth Amendment privilege against self-incrimination in order to vindicate the rule that a collective entity which employs him has no such privilege itself. To reach this ironic conclusion, the majority must blur an analytic clarity in Fifth Amendment doctrine that has taken almost a century to emerge. After holding that corporate employment strips the individual of his privilege, the Court then attempts to restore some measure of protection by its judicial creation of a new zone of immunity *120in some vaguely defined circumstances. This exercise admits what the Court denied in the first place, namely, that compelled compliance with the subpoena implicates the Fifth Amendment self-incrimination privilege.
The majority’s apparent reasoning is that collective entities have no privilege and so their employees must have none either. The Court holds that a corporate agent must incriminate himself even when he is named in the subpoena and is a target of the investigation, and even when it is conceded that compliance requires compelled, personal, testimonial, incriminating assertions. I disagree with that conclusion; find no precedent for it; maintain that if there is a likelihood of personal self-incrimination the narrow use immunity permitted by statute can be granted without frustrating the investigation of collective entities; and submit that basic Fifth Amendment principles should not be avoided and manipulated, which is the necessary effect of this decision.
I
There is some common ground in this case. All accept the longstanding rule that labor unions, corporations, partnerships, and other collective entities have no Fifth Amendment self-incrimination privilege; that a natural person cannot assert such a privilege on their behalf; and that the contents of business records prepared without compulsion can be used to incriminate even a natural person without implicating Fifth Amendment concerns. Further, all appear to concede or at least submit the case to us on the assumption that the act of producing the subpoenaed documents will effect personal incrimination of Randy Braswell, the individual to whom the subpoena is directed.
The petitioner’s assertion of the Fifth Amendment privilege against the forced production of documents is based not on any contention that their contents will incriminate him but instead upon the unchallenged premise that the act of production will do so. When the case is presented on this assump*121tion, there exists no historical or logical relation between the so-called collective entity rule and the individual’s claim of privilege. A brief review of the foundational elements of the Self-Incrimination Clause and of our cases respecting collective entities is a necessary starting point.
A
In Boyd v. United States, 116 U. S. 616 (1886), we held that the compelled disclosure of the contents of “private papers” (which in Boyd was a business invoice), id., at 622, was prohibited not only by the Fifth Amendment but by the Fourth Amendment as well. The decision in Boyd generated nearly a century of doctrinal ambiguity as we explored its rationale and sought to define its protection for the contents of business records under the Fifth Amendment.
That effort was not always successful. As we recently recognized, Boyd’s reasoning is in many respects inconsistent with our present understanding of the Fourth and Fifth Amendments, and “[sjeveral of Boyd’s express or implicit declarations have not stood the test of time.” Fisher v. United States, 425 U. S. 391, 407 (1976). Its essential premise was rejected four years ago, when we held that the contents of business records produced by subpoena are not privileged under the Fifth Amendment, absent some showing that the documents were prepared under compulsion. United States v. Doe, 465 U. S. 605, 610-611, n. 8 (1984) (Doe I). Our holding followed from a straightforward reading of the Fifth Amendment privilege. We held that unless the Government has somehow compelled the preparation of a business document, nothing in the Fifth Amendment prohibits the use of the writing in a criminal investigation or prosecution. Id., at 610-612.
A subpoena does not, however, seek to compel creation of a document; it compels its production. We recognized this distinction in Fisher, holding that the act of producing documents itself may communicate information separate from the *122documents’ contents and that such communication, in some circumstances, is compelled testimony. An individual who produces documents may be asserting that they satisfy the general description in the subpoena, or that they were in his possession or under his control. Those assertions can convey information about that individual’s knowledge and state of mind as effectively as spoken statements, and the Fifth Amendment protects individuals from having such assertions compelled by their own acts.
This is well-settled law, or so I had assumed. In Doe I, for example, when we reviewed a claim of Fifth Amendment privilege asserted by a sole proprietor in response to a Government subpoena for his business records, our opinion announced two principal holdings. First, we unequivocally rejected the notion, derived from Boyd, that any protection attached to their contents. 465 U. S., at 612. Second, in reliance on the findings of the District Court that production-would be testimonial and self-incriminating, we upheld the claim that the act of producing these documents was privileged. Id., at 613-614. Our second holding did not depend on who owned the papers, how they were created, or what they said; instead, we rested on the fact that “the act of producing the documents would involve testimonial self-incrimination.” Id., at 613. That principle ought to be sufficient to resolve the case before us.
The majority does not challenge the assumption that compliance with the subpoena here would require acts of testimonial self-incrimination from Braswell; indeed, the Government itself made this assumption in submitting its argument. Tr. of Oral Arg. 26, 36. The question presented, therefore, is whether an individual may be compelled, simply by virtue of his status as a corporate custodian, to perform a testimonial act which will incriminate him personally. The majority relies entirely on the collective entity rule in holding that such compulsion is constitutional.
*123B
The collective entity rule provides no support for the majority’s holding. The rule, as the majority chooses to call it, actually comprises three distinct propositions, none of which is relevant to the claim in this case. First, since Hale v. Henkel, 201 U. S. 43 (1906), it has been understood that a corporation has no Fifth Amendment privilege and cannot resist compelled production of its documents on grounds that it will be incriminated by their release. Second, our subsequent opinions show the collective entity principle is not confined to corporations, and we apply it as well to labor unions, United States v. White, 322 U. S. 694 (1944), and partnerships, Bellis v. United States, 417 U. S. 85 (1974). Finally, in Wilson v. United States, 221 U. S. 361 (1911), we extended the rule beyond the collective entity itself and rejected an assertion of privilege by a corporate custodian who had claimed that the disclosure of the contents of subpoenaed corporate documents would incriminate him. Id., at 363. In none of the collective entity cases cited by the majority, and in none that I have found, were we presented with a claim that the custodian would be incriminated by the act of production, in contrast to the contents of the documents.
The distinction is central. Our holding in Wilson was premised squarely on the fact that the custodian’s claim rested on the potential for incrimination in the documents’ contents, and we reasoned that the State’s visitatorial powers over corporations included the authority to inspect corporate books. We compared the issue to that presented by cases involving public papers, explaining that “where, by virtue of their character and the rules of law applicable to them, the books and papers are held subject to examination by the demanding authority, the custodian has no privilege to refuse production although their contents tend to criminate him.” Id., at 382. Our decision in Wilson and in later collective entity cases reflected, I believe, the Court’s understandable unease with drawing too close a connection between an indi*124vidual and an artificial entity. On a more practical level, the Court was also unwilling to draw too close a connection between the custodian and the contents of business documents over which he had temporary control but which belonged to his employer, often were prepared by others, and in all events were prepared voluntarily. This last factor became the focus of our analysis in Fisher, where we made clear that the applicability of the Fifth Amendment privilege depends on compulsion. Fisher put to rest the notion that a privilege may be claimed with respect to the contents of business records that were voluntarily prepared.
The act of producing documents stands on an altogether different footing. While a custodian has no necessary relation to the contents of documents within his control, the act of production is inescapably his own. Production is the precise act compelled by the subpoena, and obedience, in some cases, will require the custodian’s own testimonial assertions. That was the basis of our recognition of the privilege in Doe I. The entity possessing the documents in Doe I was, as the majority points out, a sole proprietorship, not a corporation, partnership, or labor union. But the potential for self-incrimination inheres in the act demanded of the individual, and as a consequence the nature of the entity is irrelevant to determining whether there is ground for the privilege.
A holding that the privilege against self-incrimination applies in the context of this case is required by the precedents, and not, as the Government and the majority suggest, inconsistent with them. The collective entity rule established in Hale v. Henkel, and extended in White and Beilis, remains valid. It also continues to be the rule, as we held in Wilson, that custodians of a collective entity are not permitted to claim a personal privilege with respect to the contents of entity records, although that rule now derives not from the unprotected status of collective entities but from the more rational principle, established by Fisher and Doe I and now *125recognized, that no one may claim a privilege with respect to the contents of business records not created by compulsion.
The question before us is not the existence of the collective entity rule, but whether it contains any principle which overrides the personal Fifth Amendment privilege of someone compelled to give incriminating testimony. Our precedents establish a firm basis for assertion of the privilege. Randy Braswell, like the respondent in Doe I, is being asked to draw upon his personal knowledge to identify and to deliver documents which are responsive to the Government’s subpoena. Once the Government concedes there are testimonial consequences implicit in the act of production, it cannot escape the conclusion that compliance with the subpoena is indisputably Braswell’s own act. To suggest otherwise “is to confuse metaphor with reality.” Pacific Gas & Electric Co. v. Public Utilities Comm’n of California, 475 U. S. 1, 33 (1986) (Rehnquist, J., dissenting).
C
The testimonial act demanded of petitioner in this case must be analyzed under the same principles applicable to other forms of compelled testimony. In Curcio v. United States, 354 U. S. 118 (1957), we reviewed a judgment holding a union custodian in criminal contempt for failing to give oral testimony regarding the location and possession of books and records he had been ordered to produce. White had already established that a labor union was as much a collective entity for Fifth Amendment purposes as a corporation, and the Government argued in Curdo that the custodian could not claim a personal privilege because he was performing only a “representative duty” on behalf of the collective entity to which he belonged. Brief for United States in Curcio v. United States, O. T. 1956, No. 260, p. 17. We rejected that argument and reversed the judgment below. We stated:
“[F]orcing the custodian to testify orally as to the whereabouts of nonproduced records requires him to disclose *126the contents of his own mind. He might be compelled to convict himself out of his own mouth. That is contrary to the spirit and letter of the Fifth Amendment.” Curcio, supra, at 128.
We confront the same Fifth Amendment claim here. The majority is able to distinguish Curcio only by giving much apparent weight to the words “out of his own mouth,” reading Curcio to stand for the proposition that the Constitution treats oral testimony differently than it does other forms of assertion. There is no basis in the text or history of the Fifth Amendment for such a distinction. The Self-Incrimination Clause speaks of compelled “testimony,” and has always been understood to apply to testimony in all its forms. Doe v. United States, post, at 209-210, n. 8 (Doe II). Physical acts will constitute testimony if they probe the state of mind, memory, perception, or cognition of the witness. The Court should not retreat from the plain implications of this rule and hold that such testimony may be compelled, even when self-incriminating, simply because it is not spoken.
The distinction established by Curcio, supra, is not, of course, between oral and other forms of testimony; rather it is between a subpoena which compels a person to “disclose the contents of his own mind,” through words or actions, and one which does not. Id., at 128. A custodian who is incriminated simply by the contents of the documents he has physically transmitted has not been compelled to disclose his memory or perception or cognition. A custodian who is incriminated by the personal knowledge he communicates in locating and selecting the document demanded in a Government subpoena has been compelled to testify in the most elemental, constitutional sense.
D
Recognition of the privilege here would also avoid adoption of the majority’s metaphysical progression, which, I respectfully submit, is flawed. Beginning from ordinary prin*127ciples of agency, the majority proceeds to the conclusion that when a corporate employee, or an employee of a labor union or partnership, complies with a subpoena for production of documents, his act is necessarily and solely the act of the entity. That premise, of course, is at odds with the principle under which oral testimony in Curdo properly was deemed privileged.
Since the custodian in Curdo had been asked to provide testimony on the union’s behalf and not his own, the Government argued, as it again argues here, that the attempted compulsion was constitutionally permissible because Curdo was performing only a representative duty. We held, however, that testimony of that sort may not be divorced from the person who speaks it. The questions the Government wished to ask would have required Curcio to disclose his own knowledge, and as a matter of law his responses could not be alienated from him and attributed to the labor union. In similar fashion, the act demanded , of Braswell requires a personal disclosure of individual knowledge, a fact which cannot be dismissed by labeling him a mere agent.
The heart of the matter, as everyone knows, is that the Government does not see Braswell as a’mere agent at all; and the majority’s theory is difficult to square with what will often be the Government’s actual practice. The subpoena in this case was not directed to Worldwide Machinery Sales, Inc., or Worldwide Purchasing, Inc. It was directed to “Randy Braswell, Presidente,] Worldwide Machinery Sales, Inc.[,] Worldwide Purchasing, Inc.” and informed him that “[y]ou are hereby commanded” to provide the specified documents. App. 6. The Government explained at oral argument that it often chooses to designate an individual recipient, rather than the corporation generally, when it serves a subpoena because “[we] want the right to make that individual comply with the subpoena.” Tr. of Oral Arg. 43. This is not the language of agency. By issuing a subpoena which *128the Government insists is “directed to petitioner personally,” Brief for United States 6 (filed Aug. 14, 1987), it has forfeited any claim that it is simply making a demand on a corporation that, in turn, will have to find a physical agent to perform its duty. What the Government seeks instead is the right to choose any corporate agent as a target of its subpoena and compel that individual to disclose certain information by his own actions.
The majority gives the corporate agent fiction a weight it simply cannot bear. In a peculiar attempt, to mitigate the force of its own holding, it impinges upon its own analysis by concluding that, while the Government may compel a named individual to produce records, in any later proceeding against the person it cannot divulge that he performed the act. But if that is so, it is because the Fifth Amendment protects the person without regard to his status as a corporate employee; and once this be admitted, the necessary support for the majority’s case has collapsed.
Perhaps the Court makes this concession out of some vague sense of fairness, but the source of its authority to do so remains unexplained. It cannot rest on the Fifth Amendment, for the privilege against self-incrimination does not permit balancing the convenience of the Government against the rights of a witness, and the majority has in any case determined that the Fifth Amendment is inapplicable. If Bras-well by his actions reveals information about his state of mind that is relevant to a jury in a criminal proceeding, there are no grounds of which I am aware for declaring the information inadmissible, unless it be the Fifth Amendment.
In Doe I we declined expressly to do what the Court does today. Noting that there might well be testimonial assertions attendant upon the production of documents, we rejected the argument that compelled production necessarily carried with it a grant of constructive immunity. We held that immunity may be granted only by appropriate statutory proceedings. The Government must make a formal request *129for statutory use immunity under 18 U. S. C. §§6002, 6003 if it seeks access to records in exchange for its agreement not to use testimonial acts against the individual. 465 U. S., at 614-617. Rather than beginning the practice of establishing new judicially created evidentiary rules, conferring upon individuals some partial use immunity to avoid results the Court finds constitutionally intolerable, I submit our precedents require the Government to use the only mechanism yet sanctioned for compelling testimony that is privileged: a request for immunity as provided by statute.
II
The majority s abiding concern is that if a corporate officer who is the target of a subpoena is allowed to assert the privilege, it will impede the Government’s power to investigate corporations, unions, and partnerships, to uncover and prosecute white-collar crimes, and otherwise to enforce its visita-torial powers. There are at least two answers to this. The first, and most fundamental, is that the text of the Fifth Amendment does not authorize exceptions premised on such rationales. Second, even if it were proper to invent such exceptions, the dangers prophesied by the majority are overstated.
Recognition of the right to assert a privilege does not mean it will exist in many cases. In many instances, the production of documents may implicate no testimonial assertions at all. In Fisher, for example, we held that the specific acts required by the subpoena before us “would not itself involve testimonial self-incrimination” because, in that case, “the existence and location of the papers [were] a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers.” 425 U. S., at 411. Whether a particular act is testimonial and self-incriminating is largely a factual issue to be decided in each case. Doe II, post, p. 201. In the case before us, the Government has made its submission *130on the assumption that the subpoena would result in incriminating testimony. The existence of a privilege in future cases, however, is not an automatic result.
Further, to the extent testimonial assertions are being compelled, use immunity can be granted without impeding the investigation. Where the privilege is applicable, immunity will be needed for only one individual, and solely with respect to evidence derived from the act of production itself. The Government would not be denied access to the records it seeks, it would be free to use the contents of the records against everyone, and it would be free to use any testimonial act implicit in production against all but the custodian it selects. In appropriate cases the Government will be able to establish authenticity, possession, and control by means other than compelling assertions about them from a suspect.
In one sense the case before us may not be a particularly sympathetic one. Braswell was the sole stockholder of the corporation and ran it himself. Perhaps that is why the Court suggests he waived his Fifth Amendment self-incrimination rights by using the corporate form. One does not always, however, have the choice of his or her employer, much less the choice of the business enterprise through which the employer conducts its business. Though the Court here hints at a waiver, nothing in Fifth Amendment jurisprudence indicates that the acceptance of employment should be deemed a waiver of a specific protection that is as basic a part of our constitutional heritage as is the privilege against self-incrimination.
The law is not captive to its own fictions. Yet, in the matter before us the Court employs the fiction that personal incrimination of the employee is neither sought by the Government nor cognizable by the law. That is a regrettable holding, for the conclusion is factually unsound, unnecessary for legitimate regulation, and a violation of the Self-Incrimination Clause of the Fifth Amendment of the Constitution. For these reasons, I dissent.