Yet in most of these jurisdictions, people are free to possess guns in the same situations where stun guns or irritant sprays are illegal. So people who have deadly devices are fine. But those who have a nonlethal weapon—perhaps because they have religious, ethical, or emotional compunctions about killing, or because they worry about killing someone by mistake, or because they worry about a family member misusing the gun—are criminals.

Other jurisdictions ban some people (such as felons and minors) from possessing not just stun guns and irritant sprays but also firearms. Others bar all people from possessing all three kinds of weapons in all public places, in public universities, in public housing, or on public transportation systems. People there are entirely stripped of the ability to defend themselves with any of the devices that are most effective for self-defense.

I think such regulatory schemes are generally bad policy. And I think they are unconstitutional, perhaps under the Second Amendment—if it’s held to apply to state and local governments—and in any event under those state constitutions that secure a right to bear arms or a separate right to self-defense.

 
I.
Laws that Restrict Nonlethal Weapons When Guns Are Allowed

Stun guns and irritant sprays might sometimes be abused in situations where firearms wouldn’t be (though each such abuse would likely be much less harmful). Robbers might be likelier to stun or spray victims than shoot them, precisely because this won’t expose the robber to a murder charge. People looking for nondeadly revenge, or trying to pull a prank, might stun or spray their victims even if they wouldn’t have tried to kill them.

But bans focused on nonlethal weapons are likely to be unproductive or counterproductive. First, nonlethal weapon bans, especially city- and state-level ones, are likely to have only modest effects on stun gun or irritant spray crime, precisely because much such crime would be perpetrated by serious criminals. Someone who is not stymied by the laws against robbery or rape is unlikely to be much influenced by laws against carrying stun guns or sprays.

It’s possible that total possession and sales bans might make nonlethal weapons harder to get.  But many criminals would have no trouble visiting a neighboring city or even neighboring state to buy the weapon. And if the nonlethal weapons prove to be useful enough for criminals, a lively black market would likely develop.

Second, a crime committed with a stun gun or irritant spray will often otherwise have been committed with a gun or a knife. Thus, banning nonlethal weapons might decrease painful stunnings or pepper spray attacks, but might increase knife and gun crimes that cause death, serious injury, and psychological trauma. And even if the stun gun crime or irritant spray crime would otherwise have been committed using only manual force, that too could have led to serious pain, lasting injury, or even death.

Third, banning nonlethal weapons is likely to decrease self-defense by law-abiding citizens much more than it would decrease attacks by criminals. A woman who wants a nonlethal weapon for self-defense is much more likely to be deterred by the threat of legal punishment for illegally buying, possessing, or carrying the weapon than a criminal would be. And if she can’t get the nonlethal weapon that works best for her, she might be less able to protect herself against robbery, rape, abuse, or even murder.

Why then do some jurisdictions treat nonlethal weapons—especially stun guns—worse than firearms? Not, I think, because allowing stun guns is indeed more dangerous than allowing only firearms. Rather, it’s because firearms bans draw public hostility in ways that stun gun bans do not.

There is no well-organized National Stun Gun Association with millions of members who fight proposed stun gun bans. There is no stun gun culture in which people remember their fathers’ taking them to the woods to Taser a deer. There is no stun gun hunting, shooting, or collecting that makes people want to protect stun gun possession even when they feel little need to have stun guns for self-defense.

Relatedly, because irritant sprays and stun guns are still fairly uncommon compared to guns, laws that partly deregulate guns are sometimes enacted with little thought given to other weapons. And the state stun gun bans date back to before Taser International started widely marketing guns to the public. When the bans were enacted, stun guns might well have seemed like exotic weapons that were rarely used for self-defense by law-abiding citizens. But today stun guns are practically viable self-defense weapons, owned by nearly 200,000 people. The self-defense interests of prospective stun gun owners and of prospective irritant spray owners ought not be ignored.

Much of this, of course, is speculation. There are no available data about how often stun guns or irritant sprays are used either criminally or defensively. But for the reasons I mentioned above, I think such speculation strongly points towards the choice selected by forty-three states (minus a few cities) as to stun guns and by all states (minus some restrictions in a few states) as to sprays: allowing stun gun and irritant spray possession, and criminalizing only misuse.

This is especially so given the value of self-defense, a value that is constitutionally recognized. (Irritant sprays and stun guns are largely banned in other English-speaking Western countries, but this seems to be part of those countries’ generally more restrictive view of self-defense rights.) If there is uncertainty, we should resolve this uncertainty in favor of letting law-abiding people use nonlethal tools to defend themselves and their families.

 
II.
Laws that Restrict Both Nonlethal Weapons and Handguns

In several states, even law-abiding adults generally can’t get licenses to carry concealed handguns, and can’t possess or carry stun guns. In some other states, eighteen-to-twenty-year-olds are restricted this way. In some jurisdictions, both handguns and irritant sprays are likewise unavailable to all people in public places, or to some people anywhere. And many universities, as well as some public housing systems and some public transportation systems, ban handgun, stun gun, and irritant spray possession on the premises, even when the premises are residences (such as university dorm rooms). Law-abiding citizens in those states or places are thus entirely barred from defending themselves in public using the most effective defensive weapons.

Legislatures that impose such broad weapons bans can at least say they are worried about the criminal uses of weapons generally, not just about the relatively rare situations where a stun gun or irritant spray would be misused but a handgun would not be. And indeed nonlethal weapons can be used both for crime and for self-defense.

But this is likewise true for the criminal law justification of self-defense: Allowing lethal self-defense lets some deliberate murderers get away with their crimes by falsely claiming self-defense. The killer is alive, and able to claim he was reacting to a threat from the victim. The victim is dead, and can’t rebut the killer’s claim. The killer doesn’t have to prove the victim had a weapon, since it is enough for him to claim that the victim said something threatening and reached for his pocket. And the prosecution has to disprove the killer’s claims beyond a reasonable doubt.

Sometimes the jury will see through the killer’s false claims of self-defense, and conclude the claims are false beyond a reasonable doubt. But sometimes it won’t, and the killer will be acquitted. And sometimes a killer will be emboldened to kill by the possibility that he might get away on a self-defense theory. The self-defense defense, like a weapon, is crime-enabling as well as defense-enabling—and yet it still allowed, and rightly so.

Irritant sprays are likewise crime-enabling as well as defense-enabling; yet they are now legal nearly everywhere in the United States, with the narrow exceptions noted above. The same is true of the skills taught in fighting classes, whether the classes focus on street fighting (such as Krav Maga), Asian martial arts, or boxing. Yet these classes are not only lawful, but generally seen as socially valuable, even when they focus chiefly on self-defense and not just on physical fitness.

Likewise, stun guns and irritant sprays should generally be legal to possess and to carry, because of the protection they offer to law-abiding citizens and despite the modest extra risk of crime they pose. The few jurisdictions that ban such weapons should largely repeal the bans, even for older minors and nonviolent felons. (Young children and violent felons seem especially likely to misuse the weapons, so bans on their possessing such weapons do make sense.) The many jurisdictions that don’t have such bans shouldn’t enact them.

 
III.
The Right to Keep and Bear Arms in Self-Defense

The arguments above aren’t just policy arguments. They are also constitutional arguments. To begin with, even setting aside the debate about whether the Second Amendment applies to state and local governments, the right to keep and bear arms in self-defense is secured by at least forty state constitutions, including those of many states that restrict nonlethal weapons.

And stun guns and irritant sprays should be treated as “arms” for constitutional purposes. District of Columbia v. Heller rightly rejected the view “that only those arms in existence in the 18th century are protected by the Second Amendment.” Instead, Heller held, “Just as the First Amendment protects modern forms of communications [such as the Internet], and the Fourth Amendment applies to modern forms of search [such as heat detection devices], the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”¹

Heller does limit “arms” to weapons that are “of the kind in common use.”² Many state constitutional cases have used similar definitions. But this definition arose in cases involving weapons that were seen as unusually dangerous, not unusually safe. In particular, Heller reasons that the “limitation [to weapons in common use] is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”³ This suggests that uncommon weapons that are less dangerous than the common and protected weapons should indeed be outside the limitation, and should thus be constitutionally protected.

 
IV.
State Constitutional Rights to “Defend[] Life”

Twenty-one state constitutions, including several in states that ban stun guns or contain cities that ban stun guns, expressly secure a right to “defend[] life.” To quote one such provision, “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”⁴ And the “defending life” and “protecting property” provisions have been read as securing a judicially enforceable right.

Nonlethal weapon bans substantially burden people’s right to “defend[] life and liberty,” because they take away a device without which defending life and liberty becomes much harder. And as with other constitutional rights, such a substantial burden should be treated as presumptively unconstitutional.

Consider, for instance, contraceptive bans, which deny people devices for preventing contraception but leave people free to use device-less techniques such as the rhythm method. Despite the availability of the rhythm method, the bans remain substantial burdens on people’s right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”⁵ The right to control one’s reproduction is implicated not just by overt prohibitions on begetting or not begetting a child, such as the mandatory sterilization at issue in Skinner v. Oklahoma. It is also implicated by bans on devices that are especially useful for avoiding pregnancy, since such bans substantially burden the exercise of the right to control reproduction. The same logic should apply to bans on those devices that are especially effective at defending life.

Likewise, the freedom of speech includes the freedom to use physical devices, such as telephones, the Internet, loudspeakers, and the like in order to speak, because they too are important devices for making speech effective. And, similarly, the right to defend property—a close cousin of the right to defend life—has been read by courts to include the right to use devices to kill wild animals that have been destroying one’s property. No one suggests that the right to defend property lets one defend one’s crops against moose, but only with one’s bare hands, just as no one suggests that the right to control one’s reproduction protects only device-free contraceptive techniques and not condoms. The right to defend life should likewise presumptively include the right to use those devices needed to make self-defense especially effective.

Of course, these rights are not unlimited in scope. For instance, though courts have held that the right to speak often includes the right to use loudspeakers, it might not include the right to use loudspeakers that are used at night or are too loud, and are thus excessively distracting. Similarly, one can argue that the right to defend life does not include the right to possess deadly weapons, precisely because those weapons pose special dangers of death well beyond the dangers inherently posed by the recognition of self-defense as a defense to a charge of homicide. A court may conclude that such a dangerous right must be expressly secured through a right-to-bear-arms provision, rather than being implicitly found in a provision protecting the defense of life.

But when it comes to nonlethal weapons, the extra danger of crime posed by their possession is not particularly great, and the burden on the right to defend life posed by bans on nonlethal weapons is great indeed. So the general principle outlined above should apply: the right to defend life should include the right to possess the nonlethal weapons needed for effective self-defense, much as other rights include the right to possess and use devices needed to effectively exercise those rights.

 
Conclusion

There are powerful arguments for limiting deadly defensive tools, especially firearms, given the grave harms that gun misuse routinely causes. I don’t generally endorse such arguments, partly because I think gun bans will do little to stop the misuse but much to stop lawful defensive use. But I see the force of those arguments.

Yet the crime control arguments for gun bans do not apply with any­where near the same force to stun guns and to irritant sprays. And the self-defense arguments against gun bans do apply to such nondeadly weapons. On balance, people’s right to defend themselves nonlethally with stun guns ought to be protected—both as a matter of sound policy and as a matter of our nation’s and states’ constitutions.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Eugene Volokh is the Gary T. Schwartz Professor of Law at UCLA School of Law.

This Legal Workshop Editorial is based on the following Article: Eugene Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 STAN. L. REV. 199 (2009).

This posting—and the Note from which it is derived—focuses on litigation by the Christian Legal Society (CLS), in which the CLS adopts rights rhetoric. In the cases I examine, CLS seeks exemptions for its student groups from the nondiscrimination policies of various public universities. The litigation arises from the fact that CLS chapters prohibit any student who engages in homosexual conduct or believes that homosexual conduct is not sinful from being an officer or voting member. As a result of this policy, CLS chapters have come into conflict with school administrations that forbid their student groups from discriminating on the basis of sexual orientation and which argue that CLS violates those nondiscrimination policies.

CLS argues that if its membership selection process violates universities’ nondiscrimination policies, it has a constitutional right to an exemption from such policies to the extent that they require nondiscrimination based on sexual orientation. Of the four cases considered in this posting, two of them—the suits against Arizona State University and The Ohio State University—settled before a court decision was rendered. CLS litigated a third case in the Seventh Circuit, successfully obtaining a preliminary injunction against Southern Illinois University School of Law (SIU Law). The parties subsequently settled, with SIU Law acquiescing to CLS’s membership and officer requirements. The fourth case, in which CLS sued Hastings College of the Law, went to the Ninth Circuit, where CLS ultimately was unsuccessful. The United States Supreme Court granted cert in this fourth case, Christian Legal Society v. Martinez, on December 7, 2009.

Because it adopts rights rhetoric in its litigation strategy, rhetoric commonly adopted by the gay rights movement, CLS creates a clash between its religious rights and homosexual students’ rights—a rights clash that inevitably leads to a zero-sum game. The legal system is hard-pressed to resolve the religion-homosexuality rights clash given this zero-sum game.

Despite these pitfalls, it remains important for rights clashes to be resolved institutionally, but this requires a change in our perspective on how legal institutions can properly handle such rights clashes. Instead of expecting an ideal solution to a rights clash in each act of a legal institution—such as a judicial decision or a legislative enactment—we should view each act as an imperfect moment in a political-judicial dialogue winding its way toward a principled resolution. I evaluate this perspective by examining two case studies of institutional dialogue in attempts to resolve the religion-homosexuality rights clash.  Although this perspective does not address all of the complications that rights clashes introduce, it does help temper expectations of what can be achieved from our current legal system while still maintaining hope for a proper result in the long term.

 
I.
The Use of Rights Rhetoric in the Christian Legal Society’s Litigation Strategy

Rights arguments, which involve universalizing the interests of an identity group, seem binding and dispositive in American legal disputes because arguments that “appeal to shared and uncontested understandings of the Constitution” and that are framed in “the language of a common tradition” are most effective in constitutional cases.¹

In arguing for exemptions from universities’ nondiscrimination policies, CLS adopts the rhetoric of rights, which encompasses related arguments based in identity and discrimination. It characterizes the lawsuits as civil rights cases and has argued that the belief that homosexuality is a sin is so integral to CLS’s identity that the ability to exclude active homosexuals and those who believe homosexuality is not a sin is key to its very existence. CLS argues that the universities discriminate against it as an identity group.

Of course, rights rhetoric commonly has formed the basis of the litigation strategy of the gay rights movement, CLS’s indirect adversary in this litigation. Indeed, in their briefs defending the application of the universities’ nondiscrimination policies to CLS, groups like Hastings Outlaw and the American Civil Liberties Union invoke similar discrimination and identity rhetoric. As a result, the language of rights is on both sides of this litigation.

 
II.
Rights Clash and the Zero-Sum Game

When rights clash—that is, when both sides of a dispute adopt rights rhetoric—reasonable people may disagree over how that clash should be resolved. There is significant disagreement among scholars regarding the proper outcome to the religion-homosexuality rights clash. The inevitable win-loss experienced by the two sides of the clash can be understood as a zero-sum game: the beliefs of the two sides are at such odds that their interests in the outcome are irreconcilable. The question comes down to whether gay rights should receive the full protection of nondiscrimination policies or whether religion should be singled out and granted exemptions—the two extremes of the zero-sum game.

Some scholars argue that religion should not receive special treatment; rather, gay rights, like other civil rights, outweigh religious objections. One iteration of this argument is that a “baseline of nondiscrimination” is necessary to “[e]nsur[e] that LGBT people can live honestly and safely in all aspects of their social lives” and “that members of the public who have a morally neutral characteristic are able to live without fear or vulnerability of discrimination based on that characteristic.”² Beyond this normative argument, another contention is that the government should not treat gay rights differently from civil rights based on race. Civil rights based on race generally prevail over religious rights, while the relationship between religious rights and rights based on sexual orientation (and gender) is less settled.

Other scholars argue that the weighing of the interests comes out on the other side: given the existence of a rights clash, there is good reason to favor religion and grant it exemptions from laws of general applicability. Professor Andrew Koppelman has argued that if the law must pick sides, religion is a fair and proper side to choose because it is a “distinctive human good.”³ Another argument is that giving religion special constitutional treatment is in keeping with the goals of the First Amendment: the Religion Clauses are intended to minimize government’s disturbance of private observance of religion, and religious exemptions from generally applicable laws are acceptable special treatment of religion because they help to advance this constitutional goal.⁴

 
III.
Implications: The (In)Ability of the Legal System To Resolve the CLS Rights Clash In a Principled Way

Given that reasonable people may disagree over how a rights clash should be resolved, does that mean that when both parties to a dispute invoke rights language, the outcome becomes indeterminate—contrary to the commonly-held belief that rights rhetoric is determinate? Can rights clashes be resolved in a principled way in the courts or legislatures? Must we look to extra-institutional approaches for a principled result? Here, I evaluate these options.

 
A.     The Courts: Unpredictable Umpires or Redeemable Referees?

Critical Legal Studies scholars have argued that rights rhetoric leads to indeterminacy in the courts. By “indeterminacy” these scholars mean lacking a single, objective, predictable answer to a legal problem. In other words, rights arguments, like policy and normative arguments, are susceptible to strategy and value judgments.

They contend that indeterminacy is especially salient when there is a rights clash because it inevitably leads to balancing of the conflicting interests. And once a court begins balancing competing claims of rights, “it is implausible that it is the rights themselves, rather than the ‘subjective’ or ‘political’ commitments of the judges, that are deciding the outcome.”⁵

Thus to the extent that we value courts’ ability to resolve the religion-homosexuality rights clash in a principled and unbiased way—a desire that is uniquely felt when the two parties going head-to-head are both minority groups—the question remains whether there is a better option for resolving the CLS disputes.

 
B.     The Legislatures: Enlightened Statesmen?

Some scholars contend that legislatures are the better branch in which to resolve problems like the religion-homosexuality rights clash. Central to this argument is the notion that “politics is the arena of compromise,” a characteristic that would theoretically solve the problem of having to pick a winner in the zero-sum game.⁶

The problem that remains is that the zero-sum game is inevitable where the government is involved. Changing political views on the subject would lead to the greatest indeterminacy of all. The Founders, of course, were particularly concerned by the strength of representative legislatures and their potential for tyrannical majorities. Thus, there is reason to doubt whether legislatures alone can resolve rights clashes in a principled way.

 
C.     Extra-Institutional Approaches

1.   Private Dispute Resolution: Room for Compromise or Compromised Results?

Recognizing some of the problems of judicial and legislative resolutions of rights clashes, some scholars have suggested that the best way to avoid the zero-sum game is to resolve disputes privately. Because the experience may be less polarizing, the parties have a greater chance of encouraging normative growth and coming to an understanding of their competing interests.

Private negotiations and settlements may, theoretically, avoid the zero-sum game. However, this solution is not a cure-all because it leaves systemic problems with legal institutions in place. Settlements are inextricably linked to litigation because threats of litigation must be sincere in order to motivate settlement negotiations; thus, there is a potential that any given rights clash will go to court. But because settlements do not make law that is binding on courts or parties other than those parties privy to them, they do not help advance principled results in legal institutions for future litigation (or for legislative decisionmaking). Thus settlements are not as effective as legislation and judicial decisions in promoting progress in constitutional understanding—as evidenced by the coexistence of a circuit split with two settled cases in the CLS litigation.

A related problem with negotiation was previously mentioned in the context of legislation and bears repeating: even when the government does not “get involved” in a rights clash, it is taking a side. Governmental inaction simply creates a default position.

2.   Ballot Initiatives: Trust the Result to the Will of the People?

Ballot initiatives are particularly problematic for resolving rights clashes. Perhaps of most concern, ballot initiatives lack the greatest advantage of private dispute resolution: compromise. And even as they depart in this respect from the legislative process, which does offer some level of compromise, ballot initiatives share a flaw with representative lawmaking: tyranny of the majority. When both parties in rights clashes claim to be minority groups, this drawback causes one to wonder if there is not a better solution.

 
IV.
A Different Perspective: Case Studies in Political-Judicial Dialogue

The flawed nature of each judicial decision and each piece of legislation that attempts to resolve this rights clash necessitates a new perspective on what one can expect from such decisions and legislative enactments. One can view each flawed case and piece of legislation as a part of an ongoing political-judicial dialogue that is working toward a principled and acceptable resolution. Through institutional interaction, the law evolves to take into account the rights of religious groups as well as homosexual citizens.

In Canada and Vermont, the debates over gay marriage were framed by religion-homosexuality rights clashes. Religious scholars and groups opposed the legalization of same-sex marriage, fearing that it impinged on their religious rights. The legal systems in both jurisdictions have engaged in institutional dialogues to resolve this clash.

In Canada, the institutional dialogue was set off by a Supreme Court case that invalidated a law limiting spousal support rights to heterosexual relationships. A firestorm of legislative response followed, in which federal and provincial legislatures revised laws to extend protections enjoyed by opposite-sex couples to same-sex couples. Several years later, two Canadian appeals courts held that same-sex couples were entitled to marry. The Canadian government decided not to appeal either case, but rather to draft legislation that would recognize their holdings—a prime example of political-judicial dialogue. In an advisory opinion requested by Parliament, the Supreme Court of Canada held that this legalization of same-sex marriage was permissible and that under the Canadian Charter of Rights and Freedoms religious groups would be protected from performing marriages that violated their religious beliefs.

Vermont, like Canada, has adopted a same-sex marriage law that explicitly recognizes the rights of religious groups, and the road to its enactment was paved by institutional dialogue. In Baker v. Vermont, the Supreme Court of Vermont held that same-sex couples had a constitutional right to “the same benefits and protections afforded by Vermont law to married opposite-sex couples.”⁷ The Baker court set up a political-judicial dialogue by declining to determine how that right should be recognized. Vermont’s legislature responded with “civil union” legislation. This legislation was met with varying responses at the polls. In 2009, the legislature enacted, over the governor’s veto, legislation that recognizes gay couples’ right to marry and protects religious organizations from being “required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if the request . . . is related to the solemnization of a marriage or celebration of a marriage.”⁸

Whether the Canadian and Vermont dialogues have achieved an ideal resolution of the religion-homosexuality rights clash, however, is unclear. The debates continue, with some arguing that the religious exemptions are insufficient. Though the dialogues may be ongoing, they have provided the compromise of private dispute resolution while advancing—rather than ignoring—legislatures’ and courts’ resolutions of the religion-homosexuality rights clash.

 
Conclusion

Although institutional dialogue certainly has its own pitfalls, it might be the best means by which Americans can expect a proper resolution to rights clashes for several reasons. It allows for compromise, the benefit of private dispute resolution. Yet it avoids the problem of private resolution, which is that the results rely on legal institutions without resolving their challenges. That problem is eliminated because political-judicial dialogue is rooted in legal institutions; it checks and balances their individual weaknesses. Thus it preserves the possibility of a principled result, at least in the long-term.

Acknowledgments:

Copyright © 2010 Georgetown Law Journal.

Laura K. Klein is a 2010 J.D. Candidate at Georgetown University Law School.

This Legal Workshop Editorial is based on the following Student Note: Laura K. Klein, Rights Clash: How Conflicts Between Gay Rights and Religious Freedoms Challenge the Legal System, 98 GEO. L.J. (forthcoming 2010).

As the Supreme Court summarized the theory in International Brotherhood of Teamsters v. United States, disparate impact discrimination is the use of “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.”² First announced by the Supreme Court in Griggs v. Duke Power Co., the theory required a plaintiff to establish a prima facie case of disparate impact discrimination by showing that the challenged employment practice, although facially neutral in its treatment of different groups, in fact fell more harshly on one group, say African Americans or women, than another group, say whites or males.  Once that prima facie case was established, the defendant had the burden of persuading the court that a “business necessity” or “job relation” justified the challenged practice. When the challenged practice was a test with a disparate impact, the employer carried this burden by establishing its validity under technical testing standards developed originally by industrial psychologists and later articulated in federal agency guidelines.

Although disparate impact had evolved in a variety of ways after Griggs, it suffered its first near-death experience in 1989 with the Supreme Court’s decision in Wards Cove Packing Co. v. Atonio. Wards Cove diluted the employer’s rebuttal case in two ways.  First, the Court redefined the concept of business necessity by taking out “necessity” and replacing it with the notion of reasonable employer justification. Second, Wards Cove stated that only a burden of production, not persuasion, passed to the defendant once the plaintiff established a prima facie case of disparate impact.³

Wards Cove was greeted with a firestorm of protest, culminating in the Civil Rights Act of 1991, which revived and, for the first time, explicitly codified the disparate impact theory in Title VII. Finding that Wards Cove had “weakened the scope and effectiveness of Federal civil rights protections,” Congress amended § 703 of Title VII by adding a new subsection (subsection (k)) declaring disparate impact discrimination an “unlawful employment practice.”  This codification shifted the burden of persuasion of justification back to the employer and, in a circuitous way, revived the Griggs standard of business necessity.

During the debates, Republican opposition to the resurrection of disparate impact was premised on the claim that the theory required “quotas.” This opposition failed to derail the 1991 Act, but the quota question lingered below the surface.  Although disparate impact does not require racial quotas in the usual sense of the word, there clearly was a tension between disparate impact and disparate treatment.  As the Teamsters Court said:

“Disparate treatment” such as is alleged in the present case is the most easily understood type of discrimination.  The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.  Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.⁴

The question, lurking since Griggs was handed down, was whether efforts to avoid disparate impact liability by choosing employment practices with a lesser racial impact resulted in disparate treatment liability.  In other words, does an employer who rejects an employment practice that disparately impacts blacks (thus jumping out of the disparate impact pan) necessarily intentionally discriminate against whites (thus landing in the disparate treatment fire)?

Decided on the last day of the Court Term in 2009, Ricci v. DeStefano⁵ finally confronted this question.  The majority’s answer: a qualified yes—efforts to avoid disparate impact are sometimes actionable as disparate treatment.  Ricci reflected the familiar 5–4 split; Justice Kennedy wrote the majority opinion, in which Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined.  Justice Scalia, although joining in the Court’s opinion, also concurred separately, as did Justice Alito, with whom Justices Scalia and Thomas joined.  Justice Ginsburg wrote the dissent, which Justices Stevens, Breyer, and Souter joined.

At issue in Ricci was a civil service test for promotions in the New Haven, Conn., fire department.  The results showed a disparate impact against minorities in that African American firefighters passed the test at a lower rate than white firefighters.  Because of this impact, the city invalidated the test.  White firefighters, who were consequently denied the opportunity for promotion, sued under both Title VII and the Equal Protection Clause, claiming that the decision was racially motivated.  The Court, without reaching the constitutional question held that invalidating a test because of its impact on minorities was necessarily disparate treatment of whites under Title VII.

The majority did, however, carve out an exception to liability under the Act where “the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.” To have such a strong basis, it is not enough that the employer show its actions have a disparate impact; rather, the employer must also have a strong basis to believe that it does not have a business necessity/job relation defense.  As the Court put it:

The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.  That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt.

The application of this newly-announced test was illustrated by the Court’s disposition of the case before it.  Although the district court, affirmed by the Second Circuit, had granted summary judgment for the employer, the Ricci majority gave summary judgment for the plaintiffs.  It found that there was not even a genuine issue of material fact whether the City had the requisite strong basis in evidence—it clearly did not.  Although there had been numerous hearings and submissions prior to the City’s cancellation of the test, there was relatively little analysis of the possible deficiencies of the test in terms of technical test validation requirements, which would have shown the absence of any business necessity.  The majority concluded that “there is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City.”

This holding suggests a kind of hierarchy of discrimination theories—that is, that disparate treatment is the core prohibition of Title VII, with disparate impact playing a lesser role.  In fact, the Court read the statute in this fashion, finding that disparate treatment was the thrust of Title VII as originally enacted, with disparate impact added only by the Civil Rights Act of 1991. The majority viewed a decision to avoid the disparate impact of a test on African Americans as necessarily constituting a decision to disadvantage the white beneficiaries of the test for racial reasons.  For the Court, Ricci was a classic case of disparate treatment, and, given that theory’s primacy, it held that such practices had to be stringently limited.  Nevertheless, the Court attempted to reconcile Title VII’s articulation of the two theories of liability by carving out a place for disparate impact: what would otherwise be actionable disparate treatment is permissible when the employer has a strong basis in evidence that the action was required by the disparate impact theory.

The majority bulwarked its argument by looking to §2000e-2(l), a provision added to Title VII by the 1991 Civil Rights Act, which bars adjusting test scores by race. Reading that clause expansively, the Court wrote:

If an employer cannot rescore a test based on the candidates’ race [], then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision.

Given this analysis, one might wonder why §2000e-2(l) did not play a larger role in the opinion.  After all, that section seems to dictate the Court’s opinion that cancellation of the test is prima facie unlawful. The answer might be that §2000e-2(l) is, on its face, limited to tests, and the majority seems to have been seeking a broader rule applicable to all disparate impact scenarios.  In any event, to better understand the significance of Ricci, both for the future of the disparate impact theory and more broadly for Title VII, several issues must be explored.

I.
The Intent Element of Disparate Treatment

At first glance, the majority appears to declare that acting to avoid the disparate impact of a proposed employment practice is necessarily disparate treatment and therefore illegal unless within the “strong basis in evidence” safe harbor.  Although there is some basis for this reading, it is, ultimately, far too broad.  The broad reading can be drawn from a passage in which the majority states:

Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense.  All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates.  As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.

The Court went on to reject the district court’s ruling that an intent to avoid disparate impact liability meant that the City did not have the requisite intent for disparate treatment liability.  “Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race.”

There is considerable tension between this meaning of “because of” and the Court’s previous approach to the intent question.  In Personnel Administrator v. Feeney (admittedly decided in the Equal Protection context, where intent to act on a prohibited trait is required for heightened scrutiny), the Court held that “’Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences.  It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”⁶ It seems strange to view the city of New Haven as canceling the test because it wanted to disadvantage the white firefighters, although New Haven certainly knew that that would be the result.  A better reading of the facts (or at least a plausible one) is that New Haven acted to avoid disparate impact liability despite the “adverse effects upon an identifiable group” of whites.

If the lower courts apply this broad approach to intent in all disparate treatment cases, Ricci will expand Title VII to reach actions taken with knowledge of racial consequences, a view that must apply in both traditional and reverse discrimination cases.

But such a broad view of intent is contradicted by another passage in the opinion, one that seems to reject equating a racial motivation with intent.  Although the Court struck down the city’s cancellation of the test, it apparently allowed employers to take other actions on the basis of race:

Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. . . . Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race. And when, during the test-design stage, an employer invites comments to ensure the test is fair, that process can provide a common ground for open discussions toward that end.

In the context in which it was written, this passage seems to mean that the employer could have adopted its testing (or other practices) to minimize the disparate impact, even though it could not invalidate a test, once it was given, for that reason.  For example, some of the alternatives that the Court rejected—such as the use of “assessment centers”—might well be appropriate when required at the “front end” in designing a selection process, rather than imposed on the “back end” by invalidating a test after it was administered.

What justifies an approach that seems to reject a straightforward causation analysis where racial consideration influences an employer’s decision-making?  There are three potential answers to this question.  First, perhaps the Court was reintroducing the Feeney distinction—namely, that intent to avoid disparate impact on minorities is not, per se, intent to disadvantage whites.  Second, the passage might simply suggest that Title VII’s creation of disparate impact liability, which requires parties to consider racial consequences and reduce adverse effects on racial minorities, is a broader exception to the statute’s ban on intentional discrimination than the Ricci majority seemed to say elsewhere.  Allowing potential racial effects to enter the calculus at the outset allows more play for disparate impact.  Third, the Court may have recognized that timing affects the expectations of white employees.  The majority in Ricci repeatedly referred to the white firefighters’ expectations of, and reliance on, the use of the test as a promotion method, neither of which would exist if the employer’s disparate impact calculations occurred early in the process.  It is not so clear how this “timeline approach” factors into the traditional disparate treatment analysis, but Ricci’s “strong basis in evidence” requirement may apply only to the end-stages of any selection process.  If so, employers would still be free to take potential racial impact into account in the early stages.

II.
Business Necessity/Job Relation/Alternative Employment Practice

There was no question in Ricci that the invalidated test had a disparate impact on African Americans and Latinos.  The Court noted that “[o]n the captain exam, the pass rate for white candidates was 64 percent but was 37.5 percent for both black and Hispanic candidates.” Given the structure of the selection process, no African Americans would have been considered for promotion. Had the test been certified and a disparate impact case brought by black firefighters, the prima facie case would have been established, shifting the burden of proving business necessity and job relation to New Haven.

The Court acknowledged that the evidence of impact warranted a “hard look” by the city before certifying the results.  But for the majority that meant trying to ascertain whether going forward would be likely to result in disparate impact liability, which, in turn, meant that there was no business necessity, job relation, or alternative employment practices that would achieve the city’s performance goals with less racial impact.

The majority’s analytical structure requires importing the apparatus of disparate impact wholesale into the disparate treatment question.  Where the challenged practice is a test, this would require employers to apply the standards for test validation that the Equal Employment Opportunity Commission and the courts have developed. The majority in Ricci spent considerable time detailing how New Haven’s consultant had designed the test, which included detailed job analysis and test construction. Although the Court recognized that questions had been raised as to the test’s validity during hearings held to determine whether the test should be certified, it did not believe that the information developed provided a strong basis in evidence to doubt the test’s validity.  In other words, if the test had been certified and then black firefighters sued the city for disparate impact, the Court believed that those firefighters would have lost. Although testing has been the major success story of the disparate impact theory, disparate impact reaches all employment practices.  Thus, a real question in the wake of Ricci is what it means to have a strong basis in evidence for the absence of business necessity/job relation when something other than a test is in issue.  For example, one of the Supreme Court’s non-testing disparate impact cases, Dothard v. Rawlinson,⁷ involved an employer’s requirement that job applicants satisfy height and weight minima. Were potential male correctional officers to bring a Ricci-style suit today, claiming disparate treatment from the elimination of such requirements, it would seem relatively easy for the employer to show that it had no factual basis to support the job-relation of its former rule.

Further, at the early stages of an employer’s consideration of any selection or promotion process, it is hard to understand how the Ricci framework applies.  Imagine, for example, that a city is deciding whether to use a traditional test or an assessment center to promote firefighters.  This hypothetical city is aware that traditional tests tend to have a greater disparate impact than assessment centers, and, for that reason, it opts for the assessment center approach.  Since no test has been developed, much less administered, there cannot be a strong (or any) basis in evidence to think that the test that might have been used would have been invalid.  Thus, the whole Ricci framework is likely inapplicable to this situation.

An additional question arises with regard to possible alternative selection processes.  The Ricci Court explicitly recognized that, under Title VII’s express terms, even a valid test cannot be used “if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt.” Although the alternative business practice doctrine has not yet had much traction in disparate impact cases, the Ricci majority spent considerable time exploring whether there was a genuine issue of material fact of the existence of such an alternative.

The majority rejected three possibilities—a different mix of oral and written tests; changing the “rule of three” as to who was interviewed on the basis of test results; and using an assessment center.  As for the ratio of oral to written scores in computing an overall score, there was no evidence that a different ratio would be “an equally valid way to determine whether candidates possess the proper mix of job knowledge and situational skills to earn promotions.”  The Court also thought it “could well have violated Title VII’s prohibition of altering test scores on the basis of race.” Second, the rule of three could not be interpreted to allow “banding” of scores (rounding all scores to the nearest whole number) because § 2000e-(l) prohibited such action: “Had the City reviewed the exam results and then adopted banding to make the minority test scores appear higher, it would have violated Title VII’s prohibition of adjusting test results on the basis of race.” Finally, using assessment centers instead of the test could not be justified on the record before the Court since there were, at most, “a few stray (and contradictory)” remarks regarding this alternative.

Although the Court’s analysis explains why a professionally designed test, once administered, may be hard to challenge, it also suggests that “the strong basis in evidence” justification for an employer’s acting to avoid potential practices with a disparate impact may not have as sweeping applicability as Ricci might first suggest.  Most of the Court’s reasoning is simply inapplicable to the initial decision to pursue a particular selection process.  And, if we take literally the language that “Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race,” Ricci does not mandate a strong basis in evidence for every employer action designed to avoid a disparate impact. Rather, it applies only to actions taken at the back-end of a selection process when employer or applicant expectations have crystallized and reliance on the process has begun.

III.
Strong Basis in Evidence

The core of the Court’s holding was the requirement of “a strong basis in evidence” for disparate impact liability in order to justify disparate treatment under Title VII.  For the Court, this standard required something less than proof by the employer that it would have been held liable had it gone forward with the test.  The majority viewed its rule as striking a balance between unacceptable alternatives. Thus, the Court looked to the 1991 codification of disparate impact as implying that, sometimes at least, avoiding disparate impact justifies disparate treatment. But even requiring an actual disparate impact violation “is overly simplistic and too restrictive of Title VII’s purpose,” since it would discourage voluntary compliance.  In contrast, “an employer’s good-faith belief that its actions are necessary to comply with Title VII’s disparate-impact provision” did not accord enough weight to the statute’s prohibition of disparate treatment discrimination. As the Court noted:

A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination.  That would amount to a de facto quota system, in which a focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.  Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer’s preferred racial balance.

The Court thought “a more appropriate balance” could be struck by looking to its Equal Protection Clause cases, which allowed that “certain state actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a ‘strong basis in evidence’ that the remedial actions were necessary.”

The dissent would have applied a looser standard.  For Justice Ginsburg and the other dissenters, “an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.”  The dissent was not explicit about the meaning of its good-cause standard, which seems to require more than subjective good faith but not as much as the majority’s “strong basis in evidence” test.  However, Justice Ginsburg was critical of the majority’s balancing: “It is hard to see how [the majority’s] requirements differ from demanding that an employer establish ‘a provable, actual violation’ against itself.”

A.     The Intersection of the Two Theories

The majority in Ricci not only announced its new rule, but also applied it: rather than remanding the case to the district court for application of the strong basis in evidence test, the majority entered summary judgment against New Haven.  In short, the city had avoided potential disparate impact liability only by incurring liability under the disparate treatment theory.  But the rest of the opinion makes clear this case was not a lose-lose situation, because the city could have avoided liability under both disparate treatment and disparate impact had it had a strong basis in evidence that certifying the test would have led to disparate impact liability.

The majority ended its opinion by noting that “[o]ur holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions.” To this point, the Court may have been correct.  But a final sentence confused things.  Since the presumed remedy for the violation the Court found was certifying the test, the possibility of a suit by the black firefighters on disparate impact grounds remained.  In a strange passage, the Court addressed this possibility:

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

However, the Court had previously held that canceling the test because of its disparate impact on minorities was necessarily disparate treatment of whites, even though such liability could be avoided under the strong basis in evidence rule.  Thus, there is no doubt about the risk of such liability.  The whole point of the opinion is that such risk is insufficient to justify rejecting the disparate impact theory.

The final passage, then, makes sense only when read in the context of the rest of the opinion: there is no disparate impact liability when the predicates are not present.  But if there is an unjustified disparate impact, an employer seeking to comply with the law presumably must refuse to certify the test, despite the resulting disparate treatment of whites.  This interpretation complies with the mandate of disparate impact while fitting within the “strong basis in evidence” safe harbor for disparate treatment.

Notice, however, that the Court’s opinion creates a gap: there is no liability under either theory if the employer cancels a test on the basis of a strong basis in evidence of unjustified disparate impact.  But if the employer implements the test, even though it has a strong basis in evidence for believing it will violate the disparate impact provision, the employer does not necessarily violate the law.  The employer may avoid liability because there is no disparate treatment and there has to be an actual violation of disparate impact before the employer is held liable under that theory—a strong basis is not enough.

B.     Precluding the African American Firefighters from Suing

A final problem arises in the hypothetical disparate impact suit the Court mentions.  Indeed, it’s not so hypothetical—such a suit has now been filed. Summary judgment to the white firefighters in Ricci itself does not, as a matter of either logic or law, mean that the disparate impact is necessarily justified or that there were not suitable alternative employment practices.  From a logical perspective, the fact that an employer failed to adduce sufficient evidence to meet the strong basis in evidence standard of Ricci does not mean that the evidence does not exist.  In Ricci itself, the city of New Haven made some efforts to ascertain if there were problems with the test or its alternatives, and, according to the Court, failed to elicit such a basis.  However, the city’s efforts might not have been very effective, and, regardless of the situation in New Haven, a disparate impact defendant cannot be allowed to avoid liability under that theory by merely failing to explore the alternatives and then claiming that to act in any other way would result in disparate treatment.

Further, from a civil procedure perspective, the normal rule is that the black firefighters may not be bound by a judgment in a case in which they are not parties.  So held Martin v. Wilks,⁸ another firefighter case in which white firefighters challenged promotions awarded to African Americans under a consent decree in a suit in which the white plaintiffs were not parties.  The Supreme Court held that the whites could not be bound by the prior litigation.  Martin thus suggests that Ricci is wrong to the extent it may be said to prejudge a disparate impact claim by African American firefighters against New Haven.

However, in what might be the final irony of this saga, the 1991 Civil Rights Act that codified disparate impact also modified Martin v. Wilks.  In an effort to help minority and female plaintiffs retain the gains they made in employment discrimination suits, Congress provided that a prior decree in a civil rights suit can bind nonparties if they either (1) had notice and the opportunity to intervene or (2) were adequately represented in the earlier suit. Assuming that this statute comports with due process, it seems likely that at least one prong will be met, which would allow the white firefighters to retain the gains they made in Ricci.

IV.
Another Congressional Fix?

Congress rode to the rescue of the disparate impact theory when Wards Cove undercut it in 1989. The stars would seem even more favorable for such a rescue from the effects of Ricci. In 1991, there were Democratic majorities in both houses but a Republican president; today, there is also a Democratic President who has embraced civil rights.  But the path might not be so easy.  In what might have been intended as a warning to Congress not to override the Ricci majority’s interpretation of Title VII, Justice Scalia’s Ricci concurrence stressed that the majority’s “resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?” This question is beyond the scope of the current discussion, but it is interesting to note that both Justice Scalia’s concurrence and Justice Ginsburg’s dissent cited Professor Richard Primus’s article on the issue. Professor Primus basically argues that a mechanical application of equal protection jurisprudence could invalidate the disparate impact theory (presumably the point of Justice Scalia’s citation⁹), but that a more purposive analysis would permit it.  Justice Ginsburg quoted Primus as saying that “[t]he very radicalism of holding disparate impact doctrine unconstitutional . . . suggests that only a very uncompromising court would issue such a decision.”

Conclusion

In terms of advice to employers, it would seem that, at least theoretically, Ricci made things more complicated.  Disparate treatment of minorities remains forbidden.  Disparate treatment of white males remains forbidden—except to avoid disparate impact against minorities.  Disparate impact (that is, unjustified disparate impact) against minorities remains forbidden.  The leeway employers had to avoid potential disparate impact suits has been narrowed considerably, but employers still need to assess the impact, the justifications, and the alternatives of various potential courses of action before proceeding. Finally, even where the possibility of disparate impact liability is influencing a course of action, the employer may well remain free to take racial impact into account in choosing among various alternatives (free of disparate impact liability), as long as it does so early enough to avoid disrupting settled expectations.

Acknowledgments:

Copyright © 2010 Northwestern University Law Review.

Professor Charles A. Sullivan is Professor of Law at Seton Hall University Law School.

This Legal Workshop Editorial is based on the following Article: Charles A. Sullivan, Ricci v. Destefano: End of the Line or Just Another Turn on the Disparate Impact Road?, 104 NW. U. L. REV. 201 (2009).

I.
The Concept of Mixed Speech

Examples of mixed speech abound.  They include speech by private individuals subsidized by the government, including doctors receiving Title X subsidies, lawyers funded by the Legal Services Corporation, or artists awarded National Endowment for the Arts grants.  Mixed speech also includes speech by private entities on government property such as private advertisements on public transportation systems.  Speech by government employees is another example of speech with both a private and a governmental component.

A final example is the one alluded to above:  specialty license plates.  It is not difficult to see why both the government and the private car owner can be seen as a speaker of the message on specialty license plates.  On the one hand, the state authorizes, manufactures, and owns the license plate.  On the other hand, private individuals select, pay extra for, and display them on their private property (i.e., their cars).  Given the mixed nature of the speech on specialty license plates, it is not surprising that there is a circuit split about whether they represent private speech or government speech.  Finding that specialty license plates were private speech, the Fourth Circuit Court of Appeals held that Virginia could not refuse to issue Sons of Confederate Veterans plates with confederate flags:  Since Virginia issued scores of other plates with images, refusing to issue this one would be viewpoint discrimination.¹ In contrast, the Sixth Circuit concluded that specialty license plates were government speech and therefore Tennessee could issue a pro-life plate without issuing a pro-choice one.²

II.
Problems with Characterizing Mixed Speech as Private Speech or Government Speech

The problem with categorizing mixed speech such as specialty license plates as private speech or government speech is that, either way, half the competing interests are overlooked.

A.     Problems with Classifying Mixed Speech as Private Speech

Classifying mixed speech as private speech ignores the government’s interest in dissociating itself from certain kinds of speech.  As private speech, license plates are protected by the Free Speech Clause’s prohibition against viewpoint discrimination, so that once a state has allowed a subject, it must allow all viewpoints on that subject.  As a result, if a state allows specialty plates for fraternal organizations like the Rotary Club with their wagon wheel symbol, then it must allow them for the Sons of Confederate Veterans with their confederate flag and the Aryan Nation with their eagle and swastika symbol.  Likewise, if the state issues “Just Say No to Drugs” plates, then it would have to allow “Just Say Yes to Jesus” plates.  Otherwise it will be seen as discriminating against religious perspectives on healthy living or child rearing and the Supreme Court would consider that unconstitutional viewpoint discrimination.

But although the courts may treat specialty license plates as pure private speech, they are not. On the contrary, there is an irreducible government component. Consequently, the government will be linked to the message on the plate.  In other words, a license plate with both “Virginia” and a swastika embossed on it will be seen as, and is in fact, a government-sanctioned racist message.  Similarly, a license plate with “Virginia” on top and “Just Say Yes to Jesus” below may well amount to government endorsement of religion in violation of the Establishment Clause.  The bottom line is that private individuals are not the only speakers of the messages on specialty license plates.  The government is speaking as well.  To treat them as private speech will lead to government racist messages and government religious messages.

B.     Problems with Classifying Mixed Speech as Government Speech

Classifying mixed speech as government speech, however, is not a solution because it overlooks the free speech interests of private speakers and audiences.  Free speech protections against viewpoint discrimination do not apply to government speech.  While this allows the government to make Rotary Club plates without having to issue Aryan Nation ones, it also means the state can provide pro-life plates without allowing pro-choice ones, or vice versa.

Granted, if the government is speaking, it should be allowed to control the content of its own speech and take positions on controversial issues like abortion.  After all, people vote for parties and candidates based on their political positions.  However, there is an implicit bargain:  The reason that the government is allowed to advance one viewpoint over others is that it is ultimately accountable to the electorate.  If the people dislike the current government’s position, they can vote it out of office.

But in order to hold government accountable for its advocacy, citizens have to understand that the government is speaking and advocating a position.  And that is where mixed speech is problematic:  When both the government and private individuals are speaking, the resulting mixed speech is not readily identifiable as government advocacy.  In other words, when people see pro-life but not pro-choice specialty license plates on the road, they may reasonably but mistakenly conclude that the absence of pro-choice plates is due to the lack of support for the pro-choice position, rather than the government’s pro-life advocacy.  The risk of people mistaking government advocacy for popular opinion is especially high with specialty license plate programs that have dozens if not hundreds of plates from which to choose.  Adding to the confusion is the fact that many plates—like “I Love Bowling” or “Foxhunting Enthusiast” or “Parrothead”—seem completely unrelated to any government policy.

In addition to allowing the government to suppress a point of view without being accountable for its advocacy, treating specialty license plates as government speech distorts the marketplace of ideas.  While barring a viewpoint on a license plate does not banish the idea entirely, it does distort the perceived popularity of it, which, as studies have shown, can affect its persuasiveness.  In short, it allows the government to manipulate the marketplace of ideas in favor of its own position.

An example of treating mixed speech as government speech with particularly serious repercussions can be seen in Rust v. Sullivan, where the Supreme Court upheld the “gag rule” forbidding federally funded doctors from counseling patients about abortion.³ Even assuming a patient was aware that abortion was a legal option, confusion about whether the information conveyed by the doctor represented government policy or her doctor’s professional advice might lead a patient to reasonably believe that her doctor did not think abortion was a medically viable option for her.  In sum, treating mixed speech as government speech can be equally problematic.

III.
The Solution: Classification as “Mixed Speech”

What is the solution?  Instead of treating mixed speech as private speech or government speech, I propose that we acknowledge that it is mixed speech, with both private and government interests present, and subject any government restrictions on viewpoint to a vigorous intermediate scrutiny.  This approach would allow for more nuanced and more transparent decisions.

Let me make this claim concrete with an example.  Take two proposed specialty license plates:  “Say Yes to Jesus” and “Say Yes to Choice.”  Under current free speech jurisprudence, these plates must be classified as either private speech or government speech.  If they represent government speech, then the state can refuse to issue the “Say Yes to Choice” plate even if it issues a pro-life plate, and thereby distort the marketplace of ideas and advocate a viewpoint without accountability.  If the license plates represent private speech, then the state must allow both plates, in which case the “Say Yes to Jesus” plate may run afoul of the Establishment Clause.  In reality, these two plates embody different competing interests and ought not necessarily come out the same way.  Applying intermediate scrutiny shifts the focus from putting all specialty license plates into the same box to examining the competing interests at play in each individual specialty license plate. Rather than having an all or nothing result, intermediate scrutiny supports limiting one plate but not the other.

A.     The “Say Yes to Jesus” Plate

The intermediate scrutiny test generally consists of three questions:

1. Does the government have a substantial interest in restricting the viewpoint?
2. Does the government have alternate means of accomplishing the same goals?
3. Does the speaker have alternate means of reaching the same audience?

Government refusal to issue a “Say Yes to Jesus” specialty plate will likely survive a strong intermediate scrutiny.  The government does have a substantial interest—avoiding an Establishment Clause violation by linking the state to an explicitly sectarian religious message.  The state cannot avoid attribution of this message by alternate means such as adding a disclaimer because license plates are just too small to accommodate such disclaimers.  Finally, the religious speaker does have alternate means of reaching the same audience: Even if the marketplace is defined narrowly as speech on one’s car, bumper stickers are available.

B.     The “Say Yes to Choice” Plate

The result differs for government refusal to issue a “Say Yes to Choice” specialty plate.   Even assuming that advocating a pro-life position is a substantial government interest, the state has plenty of alternate means of achieving that same goal.  For example, it can run a pro-life advertising campaign or refuse to fund abortions.  And though the pro-choice speaker, like the religious speaker, has alternate means of reaching the same audience, the restriction is much more suspect as it is motivated by government hostility toward a particular point of view, rather than the government’s good faith desire to comply with the Constitution.

IV.
Responses to Possible Criticisms

Finally, while intermediate scrutiny has been criticized for inviting ad hoc balancing and possible judicial bias, the current private-speech-or-government-speech approach is no better at curtailing judicial discretion.  A categorical approach only limits judicial discretion if it is obvious which category applies.  That is not the case with mixed speech, which has elements of both.  In other words, balancing of interests is unavoidable in mixed speech cases.  Right now, it takes place sub rosa at the categorization stage.   Given that some kind of balancing is bound to happen, it is better that the courts be open about it, which is much more likely to happen if courts apply intermediate scrutiny.   In sum, in order to reach more nuanced and transparent results, we need to recognize a new category of speech—mixed speech.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Caroline Mala Corbin is Associate Professor of Law at University of Miami School of Law.

This Legal Workshop Editorial is based on the following Article: Caroline Mala Corbin, Mixed Speech: When Speech is Both Private and Governmental, 83 N.Y.U. L. REV. 605 (2008).

A more narrowly tailored way to protect property rights in the context of takings for private economic development focuses on the word “use” rather than the word “public” in the Fifth Amendment.³ Instead of requiring that takings be proposed for a purpose more “public” than private economic development, I would require that land taken for private economic development actually be used for the claimed public purpose.

My proposal would address two troubling aspects of current takings law.  First, current law allows for the taking of private land without assurance that a public benefit will ever be realized, such as with a taking justified by a development plan.  When the Court approves such a taking based on the public benefit promised by the plan, the owner has no remedy even if the proponent of the plan abandons the project and the public purpose is never realized.   This possibility has become reality in the aftermath of the takings at issue in Kelo.  Not only has no development occurred on the taken land, but Pfizer Inc. announced on November 9, 2009, that it will close the New London research facility that the development planned for the taken land was internded to complement.⁴ There is no prospect of public benefit being achieved on the taken land, and the former property owners have no claims.

Second, current law creates incentives that encourage inefficient takings, by which I mean takings where the political and legal costs are greater than the public benefit achieved.  These occur, at least in part, because the Court’s failure to require actual public use of taken land allows for takings based on exaggerated public benefits.  The following stylized analysis illustrates how the interaction between a government and a private developer seeking a taking leads to condemnations based on misinformation.

I.
The Problem of Inefficient Takings: A Simple Model

The process of taking land starts with a proponent, who I assume is a private developer.  After failing to convince a landowner to sell a parcel, the proponent proposes to a government that the land in question be taken via eminent domain.  The government responds by asking what public benefit will justify the use of this power.  The developer is unsure of the public benefit of the project, but she knows she needs the land to proceed and that current law will not force her to provide whatever public benefit she promises.  Additionally, the developer does not know how much benefit the government wants for the taking, and she wants to avoid underbidding.  The developer thus has every incentive to exaggerate her estimate of public benefit.

But why would the government accept these exaggerated claims of public benefit?  First, the government may actually believe the claims made by a private proponent, accepting them based on wishful thinking.  Officials, presumably feeling they have little to lose, may be willing to embrace exaggerated claims in hopes of fostering optimism and change.

Second, government officials may not be pursuing the public interest single-mindedly.  Instead, they may take their self-interest as well as the public interest into account when considering a proposed condemnation.  Government officials reviewing a request for a taking might be willing to embrace an implausible public benefit estimate for a number of self-interested reasons.  For example, officials concerned about their prospects for reelection might encourage development regardless of its likelihood of success so that voters will see them as taking action to address widely publicized problems such as urban blight.  After all, voters will not know the plausibility of the projects in the short term.  Another self-interested reason that government officials might accept inflated public benefit claims would be to garner political support from powerful interest groups, which could provide campaign financing and loyal constituents.

II.
The Solution: An Actual Use Requirement

My proposal solves this inefficient takings problem by focusing on changing the behavior of private actors while also making condemnees whole.  By forcing private developers to substantially deliver on their promises of public benefit or pay damages severe enough to deter, an actual use requirement would make real the imaginary currency of public benefit.  A developer would carefully consider all elements of a proposal that claims to yield a certain public benefit because she would be committed to substantially completing that proposal.  Completing an element of the plan that was supposed to provide a benefit—a hotel that would employ 100, for example—would be extremely expensive if the market could not support the element (for example, if demand for hotel rooms proved inadequate).  Thus, the developer would no longer have an incentive to exaggerate.

With an actual use requirement, the proponent would approach the government with an accurate estimate of the public benefit.  The public-minded government then could compare the condemnation cost with the public benefit using accurate information and make a good-faith takings decision.  The respective roles played by the legislative and judicial branches would not change, but each party would be better able to fulfill its current role because it would have more complete information.  A political branch remains empowered to make the political decision of how to expend public resources by taking land.  This is important not just because the Supreme Court demands it,⁵ but because the legislature, with its closer ties to the community in question and greater access to expert planners, is better positioned to evaluate a proposed development than the courts.

III.
The Remedy for Inefficient Takings

A fairly simple remedy would serve to deter inefficient takings.  When the public purpose that originally justified a taking is not substantially realized, the land must be returned to the condemnee, if practicable, in exchange for the compensation originally paid for the taking, and the condemnee must get damages to compensate her for the inconvenience of being forced from her property, as well as mental and emotional damages.

Unfortunately, the first part of this remedy—the return of condemned land in exchange for the original just compensation—will often be impracticable.  If the condemnee does not discover the development is falling short of its proclaimed purpose until the site of her former home has become a putting green, she cannot simply seek an injunction ordering the return of her home:  To issue an injunction would be disproportionate or wasteful.  Meanwhile, the condemnee may have moved to another city and no longer desire to return to her home years after being removed from it.  To account for this reality, condemnees would also have the option to keep the just compensation and only sue for the additional damages.

The damages component of this remedy is derived from remedies in tort where the cause of action arises under the Constitution.  Constitutional torts generally are awarded like common law torts, with damages designed to compensate for the injury resulting from the violation of a constitutional right.  Here, damages would total the amount necessary to compensate the condemnee for being forced from her property for a period of years, and they would in many cases include a significant emotional distress element.  Awards would vary case by case.  For example, a large emotional distress award might be appropriate in the case of someone like Wilhelmina Dery, the 91-year-old New London resident forced from the home of her birth by the Kelo taking.  However, a lesser award with no emotional damage component would be appropriate if a vacant lot had been taken.  This flexibility would partially compensate condemnees for subjective value, something not achieved by any current remedies.

IV.
The Trigger for the Actual Use Remedy

The development plan used to justify a taking would determine whether the actual use remedy is triggered.  The development plan already plays a key role in takings law:  When the Supreme Court approves an economic development taking, it does not rule that a certain public benefit justifies taking private land but rather that a development plan promising some benefit does.  To ensure the benefit promised by the plan is realized, an actual use requirement recognizes a condemnee’s continuing interest in her property until the public benefit laid out in the approved development plan is substantially achieved.  If the plan justifies the taking, then it should be the substantial achievement of the benefit promised by the plan within the time frame of the plan that extinguishes a condemnee’s right in the property.  Essentially, an actual use requirement treats a taking for economic development by a private party as contingent upon completion of the justifying development.

Requiring developers to follow through substantially on the justifying development plan is important for several reasons.  First, it provides an affirmative guarantee that a public benefit will be achieved from the taking.  Current statutory and contractual guarantees generally only prevent developers from straying from the plan justifying a taking; they do not require them to actually fulfill the plan.

Second, the plan sets the physical and temporal standards that must be met to prevent a taking from being unconstitutional.  Once the plan is fulfilled in good faith, the Fifth Amendment’s demands are met.  The plan’s success would be measured by the completion of its physical goals, such as building a 350-room hotel within a certain time frame.  The completion of the development plan, in most cases, should serve as an adequate proxy for the public benefits the plan will create.  A rational developer would be unlikely to expend the resources to build a facility with capacity it did not believe it could utilize.

Developers also would be free to sell the property they received by a taking.  However, the sale would be subject to the development plan that justified the taking; the constitutional right of condemnees would run with the land and plan, allowing condemnees to press their claim against the new developer.

Finally, the plan would control the timing of the constitutional right.  Development plans set out time frames for the achievement of the public benefit they promise.  The substantial achievement of this public purpose within the promised time frame would extinguish condemnees’ constitutional interest in the land, in effect ending the contingency of the transfer.  However, it bears emphasizing that actual use calls for substantial and not complete compliance with the development plan.  This is essential to provide courts and developers with the wiggle room to prevent wastefulness when complete compliance becomes impractical for unforeseen reasons despite the good faith efforts of the developer.  Whether a project is substantially complete would be a case-by-case inquiry.

V.
Responses to Possible Objections

The temporal element of my proposal could inspire objection.  A critic could argue that extending the possibility of suit until a public purpose is achieved would lead to uncertainty for governments and developers, waste for society, and headaches for the courts.  Developers and governments seeking only fair profit and the public good could end up having to pay damages if a well-intentioned project fails for reasons beyond their control.  Meanwhile, courts might have to confront the same parties multiple times as condemnees presented new challenges.

Regarding uncertainty, there is no question an actual use requirement would add to the risk faced by proponents and governments.  This risk is not unfair, however, because these parties would be aware of it before taking the land.  Among the many factors a developer would want to consider when proposing a taking would be whether the project would be worthwhile even when discounted by the remote possibility of a catastrophic event.  The proponent would only seek takings with benefits so large that they justify the risk.

In the event that a developer did seek and win approval for a taking, one could argue that forcing the developer to finish a project in the face of more socially advantageous alternatives would be wasteful.  However, an actual use requirement would permit solutions commonly used by businesses to deal with this situation, such as efficient breach.  A developer might very well opt out of her development plan if other opportunities were lucrative enough.  Of course, given the expense of the actual use remedy, breach would be efficient less often than under a standard contract.  But developers engaging in takings under an actual use regime would be well aware of the damages they face and thus would weigh this risk when considering whether to take on a project.

Moreover, an actual use requirement is not intended to provide a business environment on par with one that does not require the government’s coercive power to take land.  Rather, it is intended to protect constitutional property rights by giving developers the incentive to provide governments with accurate information on which to base their takings decisions.

Acknowledgments:

Copyright © 2009 New York University Law Review.

William A. Curran received his J.D. from New York University School of Law in 2009.

This Legal Workshop Editorial is based on Mr. Curran’s Student Note: William A. Curran, Preventing Real Takings for Imaginary Purposes: A Post-Kelo Public Use Proposal, 84 N.Y.U. L. REV. 1656 (2009).

This Editorial addresses the recent problems created by youth Internet speech that makes its way into school communities, such as Wisniewski’s buddy icon.  As the Internet does not easily conform to notions of place or physicality and is increasingly integrated into students’ lives, regulation of the Internet provides a growing opportunity for schools to monitor and control student conduct in what were previously private or familial realms.  It is well-established constitutional doctrine that student speech receives a lower level of First Amendment protection than general adult speech; yet, because of the Internet’s characteristics, lower courts have struggled to find a coherent doctrine to determine when the less protective student-speech standard applies to Internet speech and when young people receive full First Amendment protection online.

I argue that the approach increasingly favored by courts, which looks to the effect of the speech on the school community, too greatly expands school power into youths’ private lives.  Instead, I propose what I term the “relational approach.”  This approach is derived from Supreme Court precedent and scholarly debate about the role of the school vis-à-vis the student and the appropriate nature of this relationship in democratic society.  The relational approach holds that the less protective student-speech test should apply only when a youth acts in the role of a student.

 
I.
Supreme Court Doctrine

Lower courts determining how much protection to afford youth speech have received little guidance from the Supreme Court, whose four decisions on the matter constitute a somewhat disjointed jurisprudence.  In the Court’s first modern student speech case, Tinker v. Des Moines Independent Community School District,³ the Court issued its famous school speech test:  that to be prohibited, speech must “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” and that such a finding must be based on “the special characteristics of the school environment.”⁴ Exactly what these characteristics would permit was unclear.

In subsequent cases, the Court only marginally clarified the limits of students’ speech rights.  In Bethel School District No. 403 v. Fraser,⁵ Hazelwood School District v. Kuhlmeier,⁶ and most recently in Morse v. Frederick,⁷ the Court upheld the prohibition on sexual innuendo in student government speeches, the censorship of school newspapers, and the prohibition of language that could be interpreted as encouraging drug use (the famous “BONG HiTS 4 JESUS” sign) respectively.  But these cases lack a clear jurisprudence for the lower courts and are more a series of fact specific examples.

 
II.
Lower Courts’ Attempts To Address Off-Campus and Online Youth Speech

Given the paucity of Supreme Court jurisprudence in this area, lower courts have struggled to articulate limits to school authority over student speech.  Lower courts have largely taken two approaches:  (1) the “geographical approach,” which focuses on the physical location of the speech; and (2) the “substantial disruption approach,” which focuses on whether the student’s speech “materially disrupts class work or involves substantial disorder or invasion of the rights of others.”⁸

Courts have occasionally attempted to apply the geographical approach to the Internet.  For instance the Pennsylvania Supreme Court found that the fact that students and administrators viewed a website in school was sufficient to designate the speech “on-campus” and thus subject to the lower student-speech standard.⁹

But such analogies to physical location seem forced, and many courts have recognized the limitations of a hard-line geographical approach.  They instead have simply applied the substantial disruption test.  The concern with this approach is that expanding school authority to include anything that could create a substantial disruption in school gives the school license to monitor and discipline all aspects of a student’s life.

The curtailment of student rights through the use of the substantial disruption test is perhaps most evident in the case mentioned above, Wisniewski v. Board of Education of Weedsport Central School District.¹⁰ Wisniewski never sent the icon to a school official, nor did he ever view it or send it while physically on school grounds.¹¹ However, the court found that this disconnect from school property was immaterial.

A subsequent Second Circuit ruling, Doninger ex rel. Doninger v. Niehoff,¹² seems to acknowledge the potential expansiveness of the approach in Wisniewski.  In Doninger, the court upheld a school’s prohibition of a student running for school government after she had used her personal blog to lambast the school administration over a disagreement regarding the scheduling of a school event, calling the administration “douchebags.”¹³ The Second Circuit acknowledged the issue of off-campus speech and stated, “We are acutely attentive in this context to the need to draw a clear line between student activity that affects matter of legitimate concern to the school community, and activity that does not.”¹⁴ But though the Second Circuit made overtures to limit the school’s reach, the court still found that since “it was reasonably foreseeable that other . . . students would view the blog and that school administrators would become aware of it,” the school was free to apply the less protective substantial disruption standard.¹⁵

The problem with this approach is that students in their everyday lives, even outside of school, usually direct their speech to other students, and all Internet speech has the potential to reach other students and school administrators.

 
III.
A New Methodological Framework: The Relational Approach

The relational approach I propose recognizes that the social role of schools lies at the heart of the student-speech First Amendment inquiry.  The relational approach clarifies the distinction between the two questions at issue in the student-speech problem:  First, when does the student-speech standard apply?  Second, if the student-speech standard does apply, what is the substance of that standard?  The relational approach responds to the first question by looking to whether the youth was speaking in the role of a student.  If the youth was speaking as a student, the relational approach uses the “substantial disruption test” to answer the second question.  If, however, the youth was speaking outside his role as student and was speaking instead as a general citizen, then the full First Amendment protections apply.¹⁶

This approach accounts for the Internet’s lack of spatial determinancy.  By not trying arbitrarily to place Internet speech within a geographic category—on campus or off campus—the relational approach avoids emphasizing a distinction that youths themselves might not make.  In order to understand fully the value of the relational approach, I offer two brief examples to demonstrate how the relational approach would avoid producing conflicting outcomes between “real” world speech and online speech.

 
A.     Online Message Boards

One common scenario is the online message board (the comment section of this website would be included).  The relational approach would look to the nature of the message board as a whole and not to the individual comment.  Using the relational approach, the result in Doninger¹⁷ makes perfect sense.  The relational approach focuses on the general context of the forum itself, ignoring the rather arbitrary questions (and probably fortuitous answers) of whether the webpage was accessed on school grounds or whether it would foreseeably be accessed by school administrators.  The question might thus be framed this way:  Does the board operate as an alternative to a schoolyard or classroom interaction, or as an alternative to general social interaction?  The former suggests that the youths are interacting as students, while the latter suggests interaction simply as citizens.

 
B.     Email, Instant Messages, and Text Messages

Secondly, the treatment of instant messages, emails, and perhaps even text messages poses another challenge.  Like a profile on a social networking website, a youth’s instant messages, text messages, and emails to another youth are very likely to be seen under the relational approach as merely interpersonal communication between individuals rather than students.

As demonstrated by the Wisniewski¹⁸ case, any online conversation may be printed out and brought to class, creating the potential for substantial disruption.  To ignore the context and roles of the speakers and simply focus on the effects or facial subject matter of the speech is to collapse all personal conversations into conversations under school authority.  In the case of Wisnieswki, the student was clearly acting in his role as a member of the general public and was not acting in the role of student.  Of course, when the speech is intended to substitute for conversations that would have otherwise taken place within the academic setting and simply represents an attempt to avoid the teacher’s gaze, the student understands himself to be speaking within the school setting as a student and should be recognized as doing so by the courts.

 
IV.
Relational Approach Is Superior to Current Approaches

A key concern of any test is whether it is practicable for courts.  The relational test is accessible to courts and school administrators for two reasons.  First, while the relational test may not always provide a bright line answer, neither do the existing approaches (as the confusion of the lower courts amply demonstrates).  Furthermore, the relational approach is more accessible to teachers and school administrators than current doctrine.  Teachers are not lawyers, and obtuse legal tests may be difficult for them to execute.  The relational approach is not obtuse or case law-dependent; rather, it asks teachers and administrators to look at the nature of their own relationships to students vis-à-vis the speech at issue.  The relational test, by relying on an area of expertise of school officials, will be easier to implement than existing doctrine.

 
Conclusion

The current approaches of lower courts are unable to handle the complexities and the nuances of Internet speech while providing reasonable boundaries to school power.  The relational approach provides a theoretically coherent framework with which to address Internet speech.  By accepting the relational approach, lower courts will be forced to address the complicated constitutional values at issue head-on and, more importantly, will begin to form a coherent school-speech jurisprudence for the Internet age.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Benjamin F. Heidlage is a Law Clerk for Judge Patrick E. Higginbotham on the Fifth Circuit Court of Appeals. J.D., 2009, New York University School of Law. Special thanks to Professor Geoffrey Stone, Jeremy Weinberg, Drew Johnson-Skinner, Nelly Ward, Corinne Nippert, Melissa Krenzel Lang, Rebecca Talbott, and the New York University Law Review.

This Legal Workshop Editorial is based on the following Student Note: Benjamin F. Heidlage, Note, A Relational Approach to Schools’ Regulation of Youth Online Speech, 84 N.Y.U. L. REV. 572 (2009).

I.
Categoricalism and Balancing

The two major modes of constitutional construction at work in the majority and dissenting opinions in Heller can be fairly described as categoricalism (embraced by Justice Scalia’s majority opinion)² and balancing (endorsed in Justice Breyer’s dissent).³ The difference between these two modes, which largely tracks the distinction between “rules” and “standards,” has long been of interest to constitutional scholars.  Balancing approaches, like standards, require a judge to weigh the interests of a rights-holder against the interests of a would-be regulator, attach appropriate weights based on the context (such as deference to the legislature or a fear of chilling speech), and determine which side is heavier.  Categoricalism, on the other hand, is rule-like.  It prohibits judges from engaging in this kind of interest-weighing.  Instead, categoricalism asks only whether the case falls inside or outside of certain preexisting, outcome-determinative categories.

Although this difference may appear stark, the relationship between categoricalism and balancing is complicated and subtle.  Some categories are simply “outcome-determinative” balancing tests where the weights on one side are so heavy that the balance always tips in their direction.  Other “calcified” categories are the results of prior balancing tests.  For example, if a court has determined in ninety-nine consecutive cases that the government’s interest in banning a particular activity outweighs an individual’s interest in engaging in that activity, then in the hundredth case, the court may simply decide that the activity is categorically unprotected and that no further balancing is needed.  Finally, there is a kind of “whole cloth” categoricalism—often based on a textualist or originalist interpretivism—under which a court simply creates a new category without any prior balancing in individual cases.  Heller employed this “whole cloth” categoricalism.

II.
The Relevance of First Amendment Categoricalism

Although Heller would eventually throw the distinction between categoricalism and balancing into particularly sharp relief, the tension between them is nothing new.  Fifty years ago, Justice Frankfurter, a great proponent of balancing, and Justice Black, who was famously absolutist, waged a pitched battle over whether categories or balancing would form the basis of free speech doctrine.  By and large, Frankfurter prevailed.  But First Amendment doctrine does contain some elements of categoricalism:  categorical exclusions, such as obscenity and libel; subcategories, such as expressive conduct and commercial speech; and a few absolute rules, such as the flat ban on viewpoint discrimination.  Significantly, the placement, protection, and contours of these categories seem to be justified by their proximity to core First Amendment values such as the protection of political viewpoints.  Thus, obscenity and fighting words are too far removed from that core value to be protected by it; commercial speech is not too far to be protected but is not entitled to the same insulation as political speech; and political viewpoints are given absolute protection because they are at the very core of the Amendment’s purpose.  The principled categoricalism of First Amendment doctrine thus appears to track—at least roughly—the same core values that inform the Amendment’s balancing tests.

The connection between categoricalism and constitutional values in the context of free speech has special relevance for the Second Amendment because, rightly or (often) wrongly, the First and Second Amendments have often been considered close cousins.  This presumed relationship has proven especially attractive for those who support broad “individual” Second Amendment rights, as opposed to “collective” (that is, militia-related) rights.  Now that Heller has given a clear victory to the “individual” rights view, some argue that Second Amendment rights should be protected by the same kind of strict scrutiny that applies in some areas of the First and Fourteenth Amendments.⁴ Thus, free speech doctrine, including its mix of balancing and categorical approaches, will almost certainly play an important role (justifiably or not) in the evolution of Second Amendment doctrine.

III.
Categoricalism and Balancing in Heller

Given this background, it is unsurprising that the Heller litigation drew heavily on First Amendment doctrine, including its mix of categories and balancing.  The D.C. Circuit opinion striking down the District of Columbia’s gun regulations embraced the “individual” right interpretation of the Second Amendment and created a categorical approach to govern that right.⁵ Although this categorical approach went mostly unnoticed in the Heller commentary—which focused almost exclusively on the individual rights issue—it was deeply significant for the future of the Amendment.  Indeed, the appellate court’s apparent categoricalism led the U.S. Solicitor General to file an amicus brief opposing the Circuit Court’s decision, while supporting the Court’s conclusion that the Second Amendment protects an individual right disconnected from militia or military service.⁶

Tracking this division, the Justices disagreed sharply about both the “individual” nature of the Second Amendment right and the standard of review (or lack thereof) for future Second Amendment cases.  The debate between categoricalism and balancing, which had long been central to the evolution of First Amendment doctrine, again took center stage, this time with regard to the Second Amendment.  In Heller, however, the categorizers prevailed over the balancers.  In dissent, Justice Breyer took for granted the “individual” nature of the Second Amendment right, but criticized Scalia’s majority opinion for failing to justify, or even identify, a standard of review to govern it.⁷ To fill the void, Justice Breyer proposed a Frankfurter-style balancing test.  “The ultimate question” under Breyer’s approach would be “whether the statute imposes burdens that, when viewed in light of the statute’s legitimate objectives, are disproportionate.”⁸

The majority was having none of this.  Justice Scalia responded:  “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.”⁹ The majority instead embraced a categorical approach that explicitly and emphatically rejected any balancing of individual and government interests.¹⁰ And yet, much as Justice Black had done fifty years ago, the majority created categorical carve-outs to its categorical rule.  In a passage that comes closer than anything else in Heller to being a roadmap for future gun regulation, the majority clarified that:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.¹¹

In addition to these three carve-outs, the majority also denied Second Amendment coverage to “dangerous and unusual” weapons and weapons with no military purpose.¹² Thus, the majority created at least five carve-out categories:  the mentally ill, felons, sensitive places, dangerous and unusual weapons, and weapons with no military purpose.  Each of these categories could arguably be justified under Justice Breyer’s interest-balancing approach, since for each, the government could likely provide sufficiently weighty reasons for limiting them.  But it is far from clear how they can be justified under the majority’s purported originalist-categoricalist approach.

IV.
Heller’s Categoricalism Fails to Identify Core Second Amendment Values

What is most troubling about the majority’s carve-outs is not their existence or even their content, but the fact that they cannot be justified by reference to any possible core Second Amendment purpose or value.  As noted, the remnants of categoricalism in free speech doctrine seem rooted in general understandings of the core values of the First Amendment.  Thus, the government is strictly barred from directly discriminating against unpopular political viewpoints (the right to dissent being perhaps the core value of the Amendment), whereas non-political obscenity is completely unprotected, since it is too far removed from that core value.  Heller’s categorical rules have no such value-based justification.

There are three major candidates for the core value of the Second Amendment:  (1) protecting state militias from federal interference,¹³ (2) checking federal tyranny through a populace of armed citizens,¹⁴ and (3) enabling private self-defense against criminals and other threats to personal safety.¹⁵

The first of these candidates is the issue at the heart of the debate between the individual and militia-related views of the Amendment.  Although the militia-based right view arguably prevailed in law and scholarship for nearly two centuries, the Heller Court flatly rejected it, and thus it cannot form a proper basis for any future Second Amendment categoricalism.  At various points in its opinion, the majority did, however, endorse both of the two other possible candidates:  the value of checking government tyranny¹⁶ and the value of armed, individual self-defense.¹⁷ But the majority did not choose between these two views of the core value of the Second Amendment, which lead to very different categorical results.  Indeed, it is impossible to justify the majority’s categorical carve-outs under either view of the Amendment’s core values.

If the underlying purpose of the Second Amendment is the prevention of governmental tyranny, either by individually armed citizens or by organized militias, then it makes very little sense to hold—as the majority did—that the Second Amendment does not extend to “sensitive places” like government buildings.  Indeed, arms-bearing in a government building would perhaps be the prototypical method of stopping government tyranny, like praying in a house of worship might be for the Free Exercise Clause.  Nor, under the tyranny-prevention model, would it make sense to exclude from Second Amendment protection “dangerous and unusual” weapons like rocket launchers and grenades.  Indeed, those would be precisely the kinds of “Arms” one would need in order to fight off or deter the U.S. military.  The majority, seemingly aware of this tension, noted that “it may be true that no amount of small arms could be useful against modern-day bombers and tanks.  But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”¹⁸ But of course it is not generalized “modern developments” that have limited citizens’ ability to bear devastatingly powerful arms against their government, but rather laws against owning such weapons.  Those laws, under a categoricalist anti-tyranny view of the Amendment, would be almost self-evidently unconstitutional.

Nor can the majority’s categories be justified under a self-defense reading of the Amendment.  If personal self-defense is the core value of the Second Amendment, then it makes little sense to exclude from coverage, as the majority does, weapons with no military utility.  Indeed, the military utility of a weapon should be completely irrelevant to a right whose purpose is personal self-defense.  Nor does it make sense to categorically bar the mentally ill and felons from invoking a right to armed self-defense, as the majority does.  While these two groups are subject to some legal restrictions, both groups presumably have a right to bodily integrity, have some rights under other Amendments (including the First), and—at least until Heller—had a common law right to self-defense, even armed self-defense.  A balancer might well determine that the government’s legitimate interest in preventing felons and the mentally ill from possessing guns outweighs any right they have to armed self-defense, but this kind of interest-balancing approach is off limits to the originalist-categoricalist.

The self-defense reading seems to be the majority’s preferred approach.  But even holding aside the impossibility of reconciling the self-defense view and the majority’s categorical carve-outs, it is difficult to identify exactly what right of self-defense the majority means to categorically protect.  After all, the common law has long recognized self-defense as a defense to civil and criminal liability.  Does the Second Amendment constitutionalize this common law right?  Or does it constitutionalize a right to armed self-defense, while leaving other forms of self-defense covered by the common law exception?  The majority implies the latter, suggesting the odd conclusion that a person has a constitutional right to shoot an intruder, but not to stab him.

More to the point, what kinds of laws are vulnerable to constitutional challenge under the self-defense reading?  Undoubtedly, Heller’s most widely recognized holding was the Court’s invalidation of the District’s ban on handguns, but the Court also struck down the District’s safe storage requirement, which required guns to be kept “unloaded and dissembled or bound by a trigger lock or similar device.”¹⁹ Undoubtedly, this law effectively burdened an individual’s right to use a gun in self-defense, since a legally stored gun would have to be unlocked and loaded before use.  But instead of focusing on this cost (which the District argued was justified by its benefits, such as limiting unauthorized gun use by children), the majority struck down the trigger lock requirement because it did not contain an explicit self-defense exception.  The District—joined by the Solicitor General on this point²⁰—argued that the law should be read, like any generally applicable law, as containing an implicit common law self-defense exception.  The majority rejected this argument, saying that the trigger lock requirement “ma[de] it impossible for citizens to use [guns] for the core lawful purpose of self-defense and [was] hence unconstitutional.”²¹ Nor was the majority swayed by the existence of various Founding-era laws which, like the trigger lock requirement, effectively burdened the right to armed self-defense (for example, by requiring safe storage of gun powder) and which contained no explicit self-defense exception.  The majority found that these laws either would not deter the use of weapons in self-defense, or would not be enforced against those who did use weapons for such purposes.²² The District of Columbia’s law enforcement officials, however, apparently could not be so trusted.²³

Conclusion

Despite their relatively bright lines, Heller’s categories create more questions than they answer.  Most fundamentally, they raise the question of what the core values of the Second Amendment are.  Because the majority opinion in Heller neither reflects nor enables a clear view of these constitutional values, its categoricalism is deeply problematic.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Joseph Blocher is Assistant Professor of Law at Duke University School of Law.

This Legal Workshop Editorial is based on the following full-length Article:   Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. REV 375 (2009).

The Supreme Court, it turns out, can help answer this question.  But not in the way you might think.

I.
By the Numbers: Knowing Where to Look

For decades, the FCC has maintained a set of ownership regulations that limits the number of media outlets one entity can own.  Newspapers, such as Murdoch’s New York Post, come under the purview of the FCC’s “cross-ownership rule,” restricting common ownership of newspapers and broadcast stations in a market.

Most of federal law on the matter is predicated on an assumption that consolidation will reduce so-called “viewpoint diversity.”  Put another way, viewpoints may converge with common ownership.  Yet economic or communications theory doesn’t squarely provide a conclusion to that premise.  Over the past decade, recognizing the theoretical ambiguity, the courts and the FCC have increasingly required empirical evidence in support of this convergence hypothesis.

The trouble is that the evidence so far has been, well, flimsy.

The concept of viewpoint diversity, as the courts have recognized, is elusive.  And when, in 2002, the FCC commissioned a handful of empirical studies on the connection between ownership and viewpoint diversity, it didn’t find much.  Indeed, this elusiveness led Commissioner Jonathan Adelstein to conclude that the FCC’s work was “like submitting a high-school term paper for a Ph.D. thesis.”³

But the lack of conclusive evidence may be the result of either poor measurement of viewpoints or that ownership and viewpoints aren’t directly related.  Little consensus exists as to which story is right.

Fortunately, rapid advances in statistics are making rigorous assessment of the convergence hypothesis possible.  While “viewpoint” is an elusive concept, it does have observable consequences—in the same way that elusive concepts of “ability” or “intelligence” have observable implications.  The virtue of standardized tests, such as the SAT, is that each test answer can be viewed as a noisy indicator of a student’s underlying intelligence.  Similarly, as political scientists have recognized, we can summarize legislators’ views based on their voting records on common bills.  The crucial step is collecting information about answers (or votes) to common questions, just as SAT test-takers answer the same exam.

Where might we look for answers to common questions about viewpoint diversity, when newspaper editors don’t sit for a test, such as an SAT?  Here’s where the Supreme Court comes in.  Supreme Court justices vote on the merits of roughly one hundred cases each term.  And newspapers regularly editorialize on these decisions.  Connecting newspaper editorials to the opinions of the justices solves the difficult problem of quantifying editorial viewpoints, which the FCC has recognized as a crucial component of viewpoint diversity.

With a large research team at Harvard and Stanford, we collected every editorial position on a Supreme Court decision by the top twenty-five newspapers from 1994-2004 (roughly 1600 editorial positions) and coded these as agreeing with the majority or minority on the court.  Supreme Court cases are ideal for this study as they represent a staggering array of discrete issues.

With some refined statistical adjustments, this evidence allows us to scale newspapers in terms of their comparability on a single dimension.  One can think of it as running from “liberal” to “conservative.”  The scale tells us how each newspaper would have voted as a tenth justice and allows us to assess how viewpoints change with mergers and acquisitions of newspapers.  Essentially, the results reveal what a reasonable reader would infer after reading the editorial pages of twenty-five newspapers and the opinions in some 500 Supreme Court cases over a period of ten years.  It is in this sense that the Supreme Court is helping us learn about newspapers.

Figure 1: Estimates for Viewpoints for Select Newspapers and Supreme Court Justices. The left panel presents the median viewpoint estimate for each justice of the natural Rehnquist court. On the same scale, the right panel presents the viewpoints of The New York Times, New York Post, Washington Times, and Washington Post over time, based each paper’s editorials.  The solid lines represent our median estimate of editorial viewpoints, and the colored bands visualize the uncertainty of those estimates. The New York Post is estimated starting in 1997 because electronic versions of the paper were unavailable earlier.

Figure 1 presents some sample results for The New York Times, New York Post, Washington Times, and Washington Post.  The results quantify editorial viewpoints (and uncertainty as represented in the bands) meaningfully: The overall probability that the Washington Post is to the right of The New York Times is nearly 1.  The New York Post’s phantom jurisprudence most resembles that of Justice Scalia.  More importantly, our analysis allows us to examine the dynamic evolution of newspapers. The New York Times, for example, has been consistently trending to the left of Justice Stevens.

II.
The Merger Question

So what happens with a newspaper merger?  One important test is the merger of the editorial boards of the Atlanta Journal and the Atlanta Constitution in 2001 to form the Atlanta Journal Constitution.  This merger appears to corroborate the convergence hypothesis: the Journal Constitution’s viewpoint lands squarely between the two prior papers. But they arrive at that middle position in an unusual way.

In 1995, both the Journal and the Constitution supported the five-justice majority in United States v. Lopez, which struck down a federal statute prohibiting guns in school zones.  But shortly thereafter, the papers diverge considerably.  In 1999, for example, the Constitution argued the court “ruled wisely and well” when it found that a school could be liable for discriminatory acts committed by students, while the Constitution charged that the decision “opened yet another floodgate to lawsuits.”  The viewpoints of the editorial board members differed so sharply between the two papers that the merged Journal Constitution faced difficulty forging a consensus position on cases.  Around 2006 the paper became one of the first major U.S. newspapers to disband the practice of unsigned editorials.  The individual columns reflected diverging liberal and conservative viewpoints in line with those followed prior to the merger.  Paradoxically, then, the merger may have unified Atlanta’s readership, with the net effect of exposing more readers to more viewpoints.

Figure 2: Editorial Viewpoints for the Atlanta Journal, Atlanta Constitution, and the combined Atlanta Journal Constitution. This figure illustrates the divergence in viewpoints between the two editorial boards prior to merging. After the merger, the viewpoint of the combined board falls between those of the two former papers. As in Figure 1, the solid lines represent median viewpoints, and the color shading captures the uncertainty in estimates.

Of course, the Atlanta experience may be unique.  Examining all acquisitions occurring between the newspapers in our data, effects were varied and depended on the circumstances of the ownership change: for chain acquisitions (e.g., Hearst’s acquisition of the San Francisco Chronicle), editorial viewpoints remained stable; but after the The New York Times acquired the Boston Globe, the papers switched positions.

III.
So What?

Our analysis suggests three lessons.  First, consolidation does not inexorably cause convergence or divergence in viewpoints.

Second, our analysis points to the promises and perils of empirical assessment in law and regulation.  Using tools developed across applied statistics allows thorny questions of public policy and regulation to be examined with data.  If, for example, consolidation systematically diversified viewpoints, there would be little use in maintaining various ownership regulations.

On the other hand, such inquiry isn’t easy.  Courts and agencies shouldn’t expect too much.  Our approach, for example, does not assess viewpoints expressed in news reporting, nor can we realistically examine the effects of vast changes of federal regulation.  Judges and policymakers don’t necessarily have the luxury of making decisions after the data have been systematically gathered and analyzed.  This difficulty of evaluation suggests a type of precautionary principle: incremental, as opposed to wholesale, modification of federal regulation facilitates policy evaluation.

Last, our study sheds light on and informs what factors the FCC should consider in applying its waiver policy to the likes of Rupert Murdoch.  Whether media consolidation stifles viewpoints may ultimately turn on the minutiae of the acquisition: e.g., the terms of organizational restructuring, guarantees of editorial independence, and employment conditions.

That’s the trouble when you face the data.  It might show you that the devil’s in the details.

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Daniel E. Ho is Assistant Professor of Law & Robert E. Paradise Faculty Fellow for Excellence in Teaching and Research at Stanford Law School.

Kevin M. Quinn is Associate Professor in the Department of Government and Institute for Quantitative Social Science at Harvard University.

This Legal Workshop Editorial is based on the following Article:   Daniel E. Ho & Kevin M. Quinn, Does Media Consolidation Stifle Viewpoints?: How the Supreme Court Can Provide an Answer, 61 STAN. L. REV. 781 (2009).

This Editorial previously appeared in the Stanford Lawyer: Daniel E. Ho & Kevin M. Quinn, Does Media Consolidation Stifle Viewpoints, STAN. LAWYER, Fall 2008, at 38.

In large-scale, high-stakes litigation, jury verdicts are likely both to garner national attention and to shape outcomes for other cases, filed and unfiled.  It is no secret that repeat players in these cases, best positioned to control their exposure to perceived jury bias, maneuver cases toward favorable jury pools.  This tactic in turn subjects the jury to criticism that local decisionmakers impose their will on the rest of the country.  The problem stems from a disconnect between the scope of these controversies and the scope of the pool from which jurors are drawn to decide them.  If the community affected by the litigation is national, then a local decisionmaker may not fairly represent the relevant constituency.  This disconnect compromises the constitutional assurance that the decisionmaker be drawn from a fair cross-section of the community, a community whose borders ought to be drawn with an eye toward the dispute.

The forum-seeking choices made by both plaintiffs and defendants (especially in mass tort cases) are driven by expectations about the identity of the decisionmaker, particularly for the first case to come to trial.  Plaintiffs usually file in state court—and fight to stay there—in order to secure the decisionmaker of their choice: the local jury.  Defendants typically want to avoid state court juries and routinely remove cases to federal court whenever possible.  They seek the federal forum in the hope that a judge will dispose of the case on a pretrial motion; failing dismissal, defendants hope to control the jury pool either by enlarging it to encompass a federal district or by transferring the case to a location where more favorable jurors are likely to be summoned.  Congress is well aware of the mass tort gamesmanship:  It recently passed legislation in an effort to control the phenomenon.¹

When parties litigate a case of national scope, I argue that the proper jury pool is neither local (as in state court, where jury pools are typically defined along county lines) nor regional (as might be true in a federal district):  A national case demands a national jury drawn from a national pool.  Because cases of national scope are now more likely than ever to be concentrated in federal court, the problem of summoning jurors outside the court’s sovereignty is obviated.  But many problems, political as well as logistical, remain.  In the end, we must assess whether the gains to populism and legitimacy are worth any efficiency loss.

This proposal connects the waning legitimacy of the civil jury in large-scale litigation to the disparity between the scope of the local jury pool and the scope of the cases.  I argue that the use of national juries for cases of national scope will improve both the actual and perceived quality of lay decisionmaking and will restore legitimacy to jury verdicts.  Moreover, the democratic values animating the constitutional right to jury trial can best be realized in large-scale litigation by empanelling a national jury.

The first step in evaluating the concept of a national jury is to identify the types of cases that would qualify for national jury treatment.  One issue that need not detain us long is the problem of state versus federal jurisdiction.  Although empanelling a national jury in a state court case might raise sovereignty problems, recent statutory innovations have already moved the vast majority of national cases into federal court.  The Class Action Fairness Act (CAFA) and the Multiparty, Multiforum Jurisdiction Act (MMTJA) replace the traditional federal jurisdictional requirement of complete diversity with one of minimal diversity, making it far easier for plaintiffs to file in federal court or, more commonly, for defendants to remove cases from state courts.² Implicit in both pieces of legislation is the notion that local juries should not be allowed to control the fate of a national business based on the fortuity that a local claimant has brought suit—or, worse, that a plaintiff has forum-shopped to get access to a particular local jury pool.  Indeed, these legislative initiatives are widely recognized as responsive to the defense bar’s common complaint that corporate defendants could not get a fair shake in state court.

Because most litigation of national scope will meet the minimal diversity requirements of CAFA and MMTJA, getting into federal courts will be straightforward.  The next step is to determine which of these cases best lend themselves to national jury treatment.  The federal courts’ experience with complex litigation over the last several decades suggests at least two types of cases that should qualify: nationally aggregated claims and individual cases that serve a “bellwether” function for related litigation.  Indeed, aggregation appears to be a clear trend.  In addition to the long-standing practice in federal court of concentrating all cases pending on a certain topic (Vioxx, say, or Firestone tires) in one particular federal district under multi-district litigation procedures for pretrial handling, Congress has facilitated the aggregation of many more cases that previously would have stayed in state court by federalizing them via CAFA and MMTJA.  Many of these aggregated cases encompass thousands, sometimes even millions, of individual claims.  Cases that serve as bellwethers can occur both within these aggregated juggernauts and outside them:  These are cases that are tried to test the value of claims to inform the settlement negotiations for other similar claims.  Thus, the decisionmakers in these aggregated and bellwether cases are making decisions that can impact potentially millions of people.  Yet we adhere to a system of jury composition that draws jurors from whatever locality in which the trial happens to take place, a vagary that may be driven by party forum-shopping or judges’ expertise, but does not reflect the scope of the task at hand.

The civil jury’s legitimacy is inextricably tied to its relationship with the community from which it is drawn.  The verdicts of local juries in local cases seem legitimate when the jury’s decisionmaking reflects local values.  If the legitimacy crisis in complex cases reflects the disconnect between the national scope of large-scale litigation and the local community from which the jurors hail, the question becomes whether the verdicts of a national jury would carry more legitimacy.  I think so for three interrelated reasons.  First, national juries would not be subject to the criticism that local values should not set national policies.  Judge Posner once famously argued that “a single trial before a single jury” produced by class certification of a national “issues” class would allow that one jury to “hold the fate of an industry in the palm of its hand.”³ He asserted that a better alternative would be to submit the issue to “multiple juries constituting in the aggregate a much larger and more diverse sample of decision-makers.”⁴ A national jury might address Judge Posner’s concerns:  The jury would be larger in number,⁵ commensurate in scope to the dispute, and representative of the community that will feel the effect of the decision.

The second reason that national juries may produce more legitimate verdicts is that parties will lose some of the incentive to forum-shop.  Filing a claim in a particular district will no longer carry the advantage of capturing a particular local jury pool.  After all, the perception of rampant forum manipulation motivated Congress to adopt legislation to shift most class actions and large-scale single-event tort cases to federal courts.  A national jury system would align the decisionmaker with Congress’s nationalization impulse.

Third, national jury verdicts will have greater legitimacy because the quality of decisionmaking is likely to improve when jurors are drawn from a national pool.  Venire members drawn from local pools are more likely to share local biases, and these biases are mutually reinforcing during deliberations.  Indeed, this bias factor is precisely why litigants forum-shop.  The national venire will negate that problem and could maximize diversity in terms of both demographics and interests.  Thus we could gain the superior collective decisionmaking of a group with “diffused impartiality.”⁶

The Seventh Amendment, which preserves the right to jury trial in federal civil cases, has forced us to tolerate some efficiency loss and forum manipulation because its Reexamination Clause is an important check on procedural innovations to streamline complex litigation.  Techniques that pluck out particular issues for aggregate resolution (like issue classes under Rule 23(c)(4)) or for separate treatment (like bi-, tri-, or polyfurcation) risk forbidden “reexamination” if future decisionmakers reconsider decided issues while evaluating remaining issues that overlap.⁷

The reexamination problem reflects tension between competing values in complex litigation:  Consolidated cases may lead to unconstitutional reexamination of overlapping issues, yet trying individual cases presents problems of efficiency loss and forum manipulation.  We must therefore choose between the evil of bifurcation and the evil of inefficient relitigation of the same issue, with the concomitant risk of inconsistent results.  A third option—treating a single litigation as a national unit—vests too much power in one local jury to unleash national consequences.

Is there a fourth option?  Empanelling a national jury would mitigate reexamination problems while preserving the efficiency gains of aggregation.  A national jury would also address the concern that a local citizenry should not decide issues of national importance.  And, most importantly, it would vindicate the animating concern of the Seventh Amendment: citizen participation in civil dispute resolution.

Our willingness to work out the logistical details of the national jury proposal and to absorb its inevitable costs is a function of our commitment to citizen participation in large-scale litigation.  One difficulty, of course, will be assembling a national jury pool representative of a country as large and diverse as the United States.  Even in much smaller jury districts, underrepresentation of minorities on jury venires has sparked an enormous amount of scholarly literature and litigation.⁸ Congress would have to consider how to assemble a nationally representative venire.  A starting point might be to draw candidates for the national jury pool from congressional districts, since those boundaries have already withstood constitutional and statutory scrutiny under election laws.⁹ The census process could also be used to draw districts.

The expansion of jury pools from local to national may also require us to rethink the size of the venire and the petit jury, as well as verdict format and voting mechanisms.  Obtaining some semblance of the required representativeness will no doubt require larger juries than the current six or twelve members.  Indeed, in order for a national jury to function, the discussion may well have to shift to how large a group can effectively deliberate without becoming unwieldy.

The grand jury model may prove useful.  One can imagine a national jury as a cross between the grand jury and the special jury:  Jurors could serve for specified lengths of time, perhaps in particular courts hosting multi-district complex litigation.  The learning curve for such jurors would be high.  Having decided, say, causation issues in one products liability case, the national jury would have an informational advantage in understanding procedure and applicable substantive law for other cases.  And this gain can be realized without sacrificing the democratic makeup of the jury—a quality lost in elitist special juries.

The civil jury, though steeped in history, is not frozen in time.  In an era of increasingly complex litigation, the civil jury must adapt structurally to modern disputes while preserving its rich history and constitutional function.  Empanelling national juries in cases of national scope may well be the only way to preserve meaningful citizen participation in large-scale litigation.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Laura G. Dooley is Professor of Law & Michael and Dianne Swygert Research Fellow at Valparaiso University School of Law.

This Legal Workshop Editorial is based on the following Article:   Laura G. Dooley, National Juries for National Cases: Preserving Citizen Participation in Large-Scale Litigation, 83 N.Y.U. L. REV. 410 (2008).

Some scholars see in this agnostic quality a constitutional mandate for governmental secularism; indeed, they may appeal directly to the agnostic quality of the Constitution as a way of avoiding the labyrinthine jurisprudence of the First Amendment’s religion clauses.  But is the appeal well taken?  More generally, what are the implications, if any, of the Constitution’s agnosticism for the relations among government, religion, and citizenship in this country?

I.
Irrelevant Agnosticism?

Perhaps the most obvious answer—surely the simplest, anyway—would assert that the agnosticism of the Constitution has no implications at all for how governments in this country should relate to religion.  Why should silence, on any subject, have any particular implications?  There are many things, after all, that the Constitution says nothing about.  Hunting, for instance.  Or space exploration.  Nothing much is thought to follow from this silence.  No one argues that because the Constitution doesn’t talk about hunting, governments in this country are forbidden to notice or regulate the activity.  Instead, we assume that if a particular government (local, state, or national) would otherwise have the power to regulate hunting, or to prohibit it, or to subsidize it, then that government may use its judgment and exercise its power as it thinks best.  The Constitution’s silence neither compels nor constrains.

The same goes for space exploration—and, arguably, for religion.  The Constitution contains provisions, of course, that are thought to constrain American governments in their dealings with religion—most obviously the First Amendment.  But the Constitution’s overall agnostic quality would in this view simply be irrelevant to the question of what governments can do to, for, with, or about religion.

This is, as I said, the simplest answer to the question of the implications of the Constitution’s agnosticism.  There are, however, at least two reasons to be skeptical of this answer.

First, the Constitution’s original and continuing silence on religion seems to have been a deliberate decision made in purposeful contravention both of the wishes of many Americans (both in the founding period and subsequent to it) and of many of the relevant models—foundational documents like the Declaration of Independence, the Articles of Confederation, and the constitutions of nearly every state (and some foreign countries, such as Canada) that did or do explicitly pay their respects to deity.  So it would seem that the Constitution’s silence on this subject is more portentous than its silence on many others.

Second, it seems at least possible that the Constitution’s silence on religion ought to mean something, in the sense that this purposeful silence might usefully serve to ground or inform some valuable constitutional strategy for dealing with the challenges of community and citizenship in a religiously pluralistic society.  But what might that strategy be?  And how might it be served by the Constitution’s agnosticism?

II.
Mandatory Public Secularism?

In modern times, following the demise of Christendom and the failure of Westphalia’s cuius regio eius religio² principle as a device for dealing with the religious fragmentation that followed the Protestant Reformation, a favorite strategy for dealing with religion has been public secularism.  Practical and theoretical variations on the strategy are legion, of course, but the basic idea is that religion should be protected in but also confined to the private domain, while government should operate in the realm of the secular.  In this way, citizens can continue to profess and practice their various religions without persecution or impediment.  And government, for its part, can perform the worldly work that is proper to it while remaining serenely “neutral” in matters of religion.

“Reasonable” and civically responsible people, it is said, ought to be content with this sort of arrangement.  In reality, as we know, some people aren’t happy with it.  But shouldn’t they be?  All that is being asked is that they believe their creeds and live their religions, and that they refrain from imposing these views on others.  What could be more reasonable?

For proponents of this strategy, the agnosticism of the American Constitution may seem a godsend.  Thus, especially of late, some scholars and advocates have emphasized the Constitution’s agnostic or “godless” quality as a basis for requiring that American governments generally confine themselves to the realm of the “secular.”³ Usually, of course, the requirement of public secularism is derived more specifically from the First Amendment’s Establishment Clause.  But for those who are scrupulous about original or intended meaning, grave difficulties attend this derivation (difficulties which we need not worry about here).  So it would be convenient for proponents of mandatory secular government to find a constitutional source or argument that did not depend on that vexed textual provision.  The Constitution’s general agnosticism presents an inviting possibility—one that advocates of public secularism increasingly seem inclined to use.

But there are also problems with using the Constitution in this way.  Simply as a matter of construction and logic, the argument is problematic:  “The Constitution is agnostic (or secular); therefore, governments operating under the Constitution must be agnostic (or secular).”  The proposition seems a bald non sequitur.  The Constitution basically establishes a structure of government for the United States; it does not spell out any particular substantive ideology or governing philosophy that government(s) either must or must not follow.

Consider:  One can imagine a church whose articles of incorporation and bylaws are written in purely secular legal terms.  It would hardly follow from the fact of a secular constitution that the church itself is prohibited from being religious.  In a similar way, the United States Constitution is basically a set of articles of incorporation or imposed bylaws for American governments.  From the secular character of those provisions no general requirement of public secularity need necessarily follow.

So the “secular government” conclusion seems dubious as a matter of straightforward constitutional construction.  But it is dubious as well as a strategy for dealing with religious pluralism.  Its difficulties were perhaps less apparent a generation or so ago, when most thinkers foresaw a “secular” future in which religious belief and practice were destined to dwindle. At that time, reading a requirement of public secularism into the Constitution might have been viewed as just a way of hurrying the nation along the path it was preordained to follow anyway—an acceleration that constitutional theorists or judges have sometimes thought to be a good thing (sort of like AP classes in high schools, perhaps?).  As it becomes increasingly apparent that secularization (in the sense of a withering away of religion, at least) is not imminent after all, however, the flaws in the secularism strategy become more conspicuous.

The central problem, I think, is that it becomes increasingly obvious that the “private religion/secular government” prescription is not, as its proponents might claim, somehow outside or above the cultural fray—independent of and neutral among the various competing religious or secular orthodoxies or “comprehensive doctrines.”  Rather, the public secularism position is, while perhaps not a full-fledged “comprehensive doctrine,” still a political orthodoxy of its own—one that is consistent with some of the competing orthodoxies and incompatible with others.  Its pretensions to “neutrality” are spurious. As a possible basis for community, it is one candidate among others.  To be sure, it might be the best candidate.  But then again, it might not.

The prescription of public secularism as a basis for political community compels reflection on the problematic relationship between community and belief.   Start with the obvious:  As Toqueville observed, for a “community” to flourish, there need to be common bonds that bring citizens into a union.  These bonds can no doubt be of various sorts—economic, historical, linguistic, and so forth.  They can even be fictional. Insofar as humans are believing creatures, however, a community will necessarily adopt some stance (even if one of detached unconcern) toward the various beliefs people hold dear.

Moreover, in their consequences for community, beliefs have a sort of double-edged character or potential.  If a community associates itself with beliefs that citizens hold, it can elicit their allegiance.  But insofar as it rejects their beliefs, or associates itself with beliefs they reject, it can cause them to become disaffected or alienated.  In a pluralistic society, obviously, this dual potential is particularly challenging because any beliefs the community might affirm in order to gain the loyalty of some citizens are likely to produce alienation in others.

So, what to do?  One strategy, preferred and practiced for centuries, essentially tries to eliminate divisive creedal differences by inducing or coercing citizens to share a common religion.  Due to the failure of that strategy in post-Protestant times, contemporary communities adopt other measures.  In part, they may attempt to unite citizens on bases other than belief—commercial interests, for example.  But in view of the continuing centrality of believing to humans, communities nonetheless have to find some way of making their peace with belief.  How to do that?

In its essence, liberalism (of which modern public secularism is only one version) tries to identify what is taken to be a “second-order” set of political beliefs—in equality or liberty or human rights—around which citizens hopefully can unite, while leaving other first-order beliefs—in specific religious or antireligious doctrines, perhaps—to the private sphere.  While the strategy arguably has achieved considerable success, it also provokes serious conflicts, as we see in the nation today.

The basic difficulty, I think, is not so much that some citizens reject the liberal division of beliefs into first-order/private and second-order/communal categories.  For rhetorical purposes, advocates often accuse their opponents of doing that.  My sense, though, is that nearly all Americans accept the distinction in some form—that hardly anyone wants the government to endorse (or condemn) infant baptism or the Nicean Creed.  We are all (or nearly all) liberals now, in this country anyway, in the core sense.  But Americans differ considerably about how and where to draw the line between what is private and what is properly public.  And many doubt that “secularism” is the proper device for drawing that line.

For example, and more specifically, it seems that some Americans—millions, perhaps—believe that, as George Washington declared, “it is the duty of all nations” (notice that the duty applies to nations, not just to private individuals) “to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor . . . .”⁴ They might even find themselves unable to give their full allegiance to a political community that refused to honor that duty.  Hence the national motto, “In God We Trust,” or the indignation that arises when, for example, a court orders the words “under God” to be stricken from the Pledge of Allegiance.

But other Americans, obviously, object to such expressions.  The disagreement between the two camps pervades and motivates many of the conflicts that we describe as the “culture wars.”  It is a daunting problem—the more so because we ought to be able to see, by now, that “public secularism” is not a neutral arbiter among those conflicts.  It is, rather, a banner for one camp of combatants.

III.
The Strategy of “ConstitutionalAgnosticism”

At this point, we may be able to appreciate the possibility of a different strategy for maintaining pluralistic community—one that we might simply call “constitutional agnosticism.”

This strategy grows out of the crucial fact that not everything that is affirmed by an agent—by a person, or a community—is constitutive.  This distinction, as well as the possibilities it opens up, can perhaps best be appreciated on a personal level.  We understand that a person is not identical to or constituted by his or her opinions—and a good thing, too, because otherwise, if a person held an opinion we found objectionable or obnoxious, we might have to regard the person himself as objectionable or obnoxious.  Instead we are often able to draw a distinction between the man and his beliefs, thinking, for example, “I love and respect John as a person, even though I find his religious and political views absurd.”

No doubt there are beliefs so central to a person that they become at least partially constitutive:  If the Pope were to repudiate Catholicism, or if Daniel Dennett were to become a fundamentalist Christian, we might think that these worthies were just no longer the same persons they used to be.  For the most part, though, we can distinguish between a person and his or her beliefs.  This distinction allows us to treat persons with respect even though we utterly reject their beliefs.

The same possibility is available, I suggest, with respect to communities.  A community can affirm or associate itself with various ideas or beliefs without these becoming fundamentally constitutive of the community.  As a result, it is possible to respect or profess loyalty to a community even while disagreeing with some or many of the beliefs the community, through its government(s), affirms.  Governments can express beliefs in accordance with democratic demands, thereby eliciting or solidifying the allegiance of citizens who hold such beliefs; dissenters, while less than happy with such expressions, can take comfort in the fact that the objectionable expressions are not constitutive of the community.

They can do this, at least, so long as dissenters can look to something beyond such expressions that is constitutive and that does not affirm the objectionable beliefs.  And here the agnostic Constitution serves a crucial function.  The question of what “constitutes” a community is complex, to be sure.  Still, it seems safe to say that the American Constitution is at least part of what “constitutes” the American political community—as supreme law and articles of incorporation but also as venerated symbol.  So long as the Constitution itself remains steadfastly agnostic, it will always be true that whatever expressions various governments at the local, state, or national levels may make, these are not ultimately “constitutive” of the political community.  Hence, a citizen may reject the expressions without rejecting the community itself.

So suppose, for example, that something like the national motto (“In God We Trust”) were adopted at every level of government—by Congress, by every state, and by every city and county in the land.  Citizens who are atheists would—do?—find this situation galling:  There would be no political entity in the country to which they might travel that would not affirm a belief to which they object.  Even in this lamentable (to them) situation, however, they would still be able to look to a more foundational political reality—the Constitution—in which such an objectionable belief is deliberately and conspicuously not affirmed.  And because that document and symbol—that agnostic document and symbol—is accepted as the community’s supreme and constitutive law, they could take consolation in the observation that the political community itself is not constituted by a commitment they reject.

This is not to say, of course, that such citizens will find this situation ideal—far from it.  Nor, for that matter, will the situation be ideal for more aggressively devout citizens who think that the community should not only associate itself with belief in God, but should constitute itself upon that commitment.  Just as atheists or agnostics might prefer a constitution that is not only itself agnostic but that prescribes agnosticism at every level of government, more devout citizens may embrace the view, energetically professed by some at the founding, in favor of including theistic language in the Constitution, as the Articles of Confederation had done.  And so they may support the sort of proposal that has periodically arisen in American history to amend the constitutional text by adding religious affirmations.

To alter the Constitution in either of these ways (or to so interpret it, as modern “no endorsement” jurisprudence episodically does), however, would subvert  the community-maintaining possibilities that the agnostic Constitution affords.

Conclusion

It is important to acknowledge that we have an agnostic Constitution, but equally important to recognize that we have an agnostic Constitution.  It is the Constitution that is agnostic, in other words, not politics or government.  Indeed, it is precisely the Constitution’s agnosticism that permits governments, at different levels and in different ways, to sponsor the sorts of religious expression that American governments have traditionally engaged in and that may well be important in securing what Lincoln called the “attachment” of citizens, while not making such affirmation constitutive of the political community.

In this way, the Constitution makes a valuable contribution to the project of maintaining community in a pluralistic world.  That contribution is not a panacea; it does not resolve the various conflicting views that are always a potential threat to political unity, but rather supports a strategy for negotiating with and among them.  Insofar as it is agnostic, the Constitution does not dictate any particular content to our civic creeds or affirmations.  It permits civic religion of the sort reflected in the national motto and the Pledge but does not command it—just as it permits but does not command public secularism.

Supplying the more specific substantive content of our public orthodoxies thus remains a perpetual project.  No doubt the content of our orthodoxies has varied—and will vary—from place to place and time to time.  This unsettled situation may leave theorists feeling queasy.  But it is precisely this open-endedness, I suggest, that makes the agnostic Constitution such an important contribution to the challenge of maintaining e pluribus unum.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Steven D. Smith is Warren Distinguished Professor of Law at University of San Diego Law Review.

This Legal Workshop Editorial is based on the following Essay:   Steven D. Smith, Our Agnostic Constitution, 83 N.Y.U. L. REV. 120 (2008).