Balkinization  

Wednesday, October 16, 2019

Making a Virtue Out of Neglect: How Laissez-Faire Constitutionalism Exacerbates Big Tech’s Absentee Ownership Problem

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Frank Pasquale and Danielle Keats Citron

In an arresting and powerful passage in The Cult of the Constitution, Mary Anne Franks argues that “the self-serving and irrational appropriation of constitutional principles to justify lies, harassment, discrimination, and outright violence endangers society as a whole and threatens to destroy democracy.” Indeed, a public sphere where words lose their meaning, disinformation spreads like wildfire, cyber mobs silence the vulnerable with online assaults, and hatemongers incite violence against unpopular persons or groups, is on a fast track towards both democratic decline and eroding social consensus on basic beliefs and obligations. Disinformation trafficked by state actors and adopted by guileless targets has not only frayed social cohesion, but has also caused the spread of dread diseases. Individuals beset upon by cyber mobs retreat from online social networks, undermining the aspiration of diverse voices engaged in public debate. The El Paso shooter turned hateful beliefs of fellow 8chan posters into deadly reality, killing parents, grandparents, and kids doing back to school shopping at Walmart.

After every major scandal involving public-health-endangering snake oil and other forms of disinformation, cyber mob attacks, and incitements to violence, big tech firms apologize. They promise to do better. Sometimes, they make a show of hiring more content moderators. Sometimes, they ban the worst sources of misinformation and harassment, as in the case of the banning of Alex Jones from YouTube and Facebook after years of his harassing victims of school shootings. However, every step toward safety and responsibility on platforms is in danger of reversal thanks to a brew of concern fatigue, negligence, and at bottom potential profit from eyeballs and ears drawn to arresting, graphic content.

We have seen this wash, retreat, and repeat cycle with Google and anti-Semitism. While the search giant labeled and offered counter speech to some troubling Nazi and white supremacist content in 2004, it backslid later, until it was called out by Guardian journalist Carole Cadwalladr and prominent academic Safiya Noble in 2016. By 2018, details emerged about YouTube’s algorithmic rabbit hole that was AI-optimized to lure unsuspecting viewers into alt-right content, and worse. Will Sommer and Kathleen Belew have chronicled the spread of radicalizing content on social media via closed groups and quasi-public posts. As long as tech companies optimize our automated public spheres for profit, we expect the same pattern: flurries of concern spurred by media shaming, followed by a long backsliding back into irresponsibility.

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Tuesday, October 15, 2019

The View from the Cult

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Jeff Kosseff

I was a rookie journalist, reporting about a nonprofit that abused a federal program intended to help people with disabilities.  I was on the phone with a New York lawyer for the media conglomerate that owned my newspaper. The lawyer, who likely billed more in one hour than I earned in a week, rattled off a list of threats from the subject of the reporting.  I only understood some of what he said.  I still recall the phrases “Texas Penal Code” and “defamation per se.”

I was terrified.  The nonprofit that was the subject of my reporting did not want us to publish the stories, which were based partly on information that I received from confidential sources.  After reviewing the story, the lawyer gave us the green light to publish, and assured us that there would be no grounds for a defamation lawsuit or criminal prosecution.  “The First Amendment is a great thing,” he assured me.  Sure enough, we published the investigative series, and the only ones who went to prison were the nonprofit’s executives.  The government reformed a program that created jobs for people with disabilities.  The First Amendment prevailed.  I went to law school.

Not surprisingly, I approached The Cult of the Constitution with cautious skepticism.  The book forces us to critically evaluate the impacts of the First Amendment.  Such a task is particularly uneasy for free speech enthusiasts.  As a lawyer, I have represented news organizations in newsgathering disputes.  As a professor, I wrote a book in which I offer a qualified defense of Section 230 of the Communications Decency Act, which immunizes platforms for many claims arising from user content.  And without the New York Times v. Sullivan, New York Times v. United States, and other expansive First Amendment jurisprudence, I could have suffered financial ruin or imprisonment simply for doing my job as a journalist. Indeed, in many other countries, I likely would have faced those consequences for the stories that I wrote.  First Amendment protections were not a theoretical debate for me; they were my professional survival tools.

Still, Mary Anne Franks, more than any other contemporary scholar, caused me to evaluate my normative view of free speech protections. It would be intellectually dishonest to ignore or minimize the very real harms that Franks highlights in her discussion of the First Amendment and Section 230.  Franks correctly observes that the near-absolutist view to online speech has “given tremendous power and voice to a regressive and censorious attitude toward women.”  Those of us who worship the First Amendment must directly and clearly address that it protects not only crusading journalists, but also hateful 8chan trolls.

First Amendment absolutists often worry about the chilling effect that government regulations will have on free speech.  Franks forces those of us who believe in robust civil liberties to confront other chilling effects that we may not typically address in our scholarship.  Franks demonstrates that the robust interpretation of the First Amendment too often provides a megaphone to people who abuse their privilege, chilling the speech of women, racial minorities, and others who do not have the same access to speech.
 
Case in point: the continued confusion over the First Amendment’s relationship with hate speech.  The headline across most of the Aug. 6, 2019 business section of the New York Times was bold and confident: “Why Hate Speech on the Internet Is a Never-Ending Problem.” Below the headline was an excerpt from Section 230, followed by: “Because this law shields it.”  Section 230 does not “shield” platforms from liability for “hate speech” because, as the Times noted in a correction, the First Amendment prevents liability for “hate speech.” The New York Times was not the first to make this mistake.  In response to a debate about conservative pundit Ann Coulter, former Vermont Governor Howard Dean tweeted in 2017 “[h]ate speech is not protected by the first amendment,” and was quickly corrected.  Although most first-year law students could tell you that the First Amendment protects a wide swath of objectionable speech, that hard fact is too often forgotten or whitewashed.

Franks challenges her readers to question their long-standing assumptions about free speech.  Supported by meticulous research, she argues that more than two centuries of jurisprudence have interpreted the Bill of Rights in a manner that favors the privileged.  As Franks notes, the First Amendment protects speech from regulation due to the fact that it is “merely unpleasant, unpopular, or crude expression” (though she notes that the contemporary conception of hate speech also can include speech that is not protected by the First Amendment, such as incitement and true threats).

We must confront the very real harms that Franks highlights, and question how this affects our First Amendment analysis.  Yet it would be equally disingenuous to entirely disregard the substantial benefits of our substantial constitutional and statutory free speech protections.  In today’s political environment, it has become even more important for people to have the ability to freely express their criticisms of the government and other powerful institutions, and for journalists to be able to do their jobs, unfettered by regulation, prosecution, or litigation.

Addressing Franks’s legitimate equal protection-based concerns while maintaining the equally legitimate benefits of free speech requires a careful case-by-case weighing of the benefits and costs of the free speech protections, and perhaps a rethinking not of whether to protect free speech, but how to do so.  This reexamination requires trade-offs and a balancing of compelling interests.  A nuanced and balanced approach to the First Amendment is in line with Franks’s admonition against absolutist interpretations.

In some areas, courts have attempted to address First Amendment disputes with a balanced approach.  I’m currently at work on a book about the history of one such topic: anonymous speech.  As Franks notes, the ease of online anonymity for harassers “makes it difficult if not impossible for their victims to engage in self-help or legal remedies.”  Franks points to anonymizing technology that enables Internet users to mask their IP addresses and other identifying information. The First Amendment also helps to protect many Internet users’ identities.  If, for instance, a defamation victim sues an anonymous Internet user, the plaintiff must subpoena identifying information from online service providers.
 
Such subpoenas raise First Amendment concerns because the United States has a history of anonymous and pseudonymous speech, dating back to the publication of the Federalist Papers by Publius. The Supreme Court has recognized the value of anonymity.  In 1958, the Court invalidated Alabama’s attempts to force the NAACP to disclose its membership lists.  Two years later, the Court struck down a Los Angeles ordinance that required handbills to include the names of their authors and distributors; in the case before the Supreme Court, the handbills urged boycotts of employers who discriminate by race. “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind,” Justice Black wrote. “Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”

The NAACP and a wide range of protesters and dissident voices have benefitted from the U.S. tradition of anonymous speech.  So, too, have so many of the harassers and trolls whom Franks highlights in her book.  As courts have been asked to compel the disclosure of the identities of online posters, they have struggled with the need to preserve the longstanding tradition of anonymous speech while leaving open the courthouse door for those who have suffered serious harms. To do so, courts have developed balancing tests rooted in the First Amendment.  The tests vary by court, but largely require judges to balance the strength of the plaintiff’s claim against the defendant’s free speech rights.

Such thoughtful, fact-specific approaches to speech disputes should weigh the real harms that Franks highlights in her book, particularly as related to people who historically have lacked power or voice.    They also should balance the consequences of chilling speech, such as a corrupt company silencing critics with defamation threats, or reporters facing jail time.

To my fellow free speech cultists -- the civil liberties groups, the journalists, the media lawyers, the technology companies: I urge you to read Franks’s book, and consider with an open mind how it fits with your conception of the First Amendment.  Be honest with yourself. Be creative.  Consider nuanced solutions that preserve our extraordinary free speech rights while minimizing harms to others and allowing everyone to have a voice.  Rather than dismissing Franks’s arguments as a call to restrict speech, consider how we can work together to open avenues to speech for all Americans, and not just the privileged.

Jeff Kosseff is an assistant professor of cybersecurity law at the United States Naval Academy.  You can reach him by e-mail at jkosseff at gmail.com. The views expressed in this post are only his, and do not represent the Naval Academy, Department of Navy, or Department of Defense.

Monday, October 14, 2019

A Tale of Two Cities: Mary Anne Franks’s The Cult of the Constitution

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Leslie Kendrick

Mary Anne Franks’s The Cult of the Constitution opens on August 11-12, 2017, in Charlottesville, Virginia, where I live with my family. Franks’s project is to expose the harms caused by our society’s dual commitments to the First and Second Amendments, and little illustrates those harms so well as the two days when hundreds of white supremacists from at least 39 states converged on Charlottesville, where various of them surrounded and threw lit torches at student counterprotesters, fired a gun into a crowd, beat a beloved local elementary school aide in a parking garage, injured dozens of people, and murdered Heather Heyer.

Guns and speech are not the main story of August 11-12, 2017. That story begins and ends with white supremacy, and focus on other elements must not detract from that. Nevertheless, guns and free speech played important roles. Guns were everywhere on August 12, and their relationship to First Amendment activity was everywhere in commentary after the fact. The white supremacist violence recalled that of the Ku Klux Klan of a century ago, now overlaid with 21st century paramilitary weaponry. Groups carrying assault rifles and wearing militia gear were virtually indistinguishable from the National Guard. In the immediate aftermath, Gov. Terry McAuliffe said the white supremacists “had better equipment than our State Police had.”

Meanwhile, free speech jurisprudence that has been fairly stable for a half century cannot by itself explain why hundreds of Americans in 2017 would march under Confederate and Nazi symbols chanting white supremacist slogans. Yet our free speech practices facilitated this. Most materially, in the days before the event, the City of Charlottesville attempted to shift the rally out of the crowded downtown area to a larger park, but the move was blocked by a federal judge after the rally organizer brought suit with representation from the Virginia ACLU. (After the mass violence of August 12, that representation decision became a matter of national reckoning and ultimately policy change by the ACLU: by August 18, the executive director had announced that the ACLU would no longer represent speakers seeking to demonstrate with loaded weapons.) Our free speech law is not the only cause of what happened in Charlottesville, but it is one.

Speaking of the role of guns and speech in August 11-12, Franks concludes, “Charlottesville is who we are.” She goes on to observe, however, that it is “not all we are.” To illustrate this, she turns to what is, to me, another Charlottesville story. She turns to Khizr Khan, the Muslim-American lawyer and Gold Star father—and Charlottesville resident—who spoke at the 2016 Democratic convention. Mr. Khan and his wife Ghazala lost their son, Captain Humayun Khan, a 27-year old University of Virginia graduate who dreamed of becoming a military lawyer, when he was killed by an IED during Operation Iraqi Freedom. At the convention, addressing the man who would eventually become president, Mr. Khan said, “Let me ask you: Have you even read the U.S. Constitution? I will gladly lend you my copy. In this document, look for the words ‘liberty’ and ‘equal protection of law.’” For Franks, Khan’s stance and his words represent our societal commitment to equality.

Franks argues that our commitments to guns and free speech are in grave tension with our commitment to equality. Through three chapters that make up the heart of the book, Franks argues that that robust implementation of the First and Second Amendment causes harm—and not evenly distributed harm, but harm that falls disproportionately on the marginalized. In the context of guns, harms fall on women and nonwhite men who are victims of gun violence while not being treated as beneficiaries of Second Amendment protections. (Franks at 89). In the context of speech, “the primary targets of silencing speech—harassment, threats, genocidal rhetoric, hate speech, revenge porn—are women, nonwhite men, and sexual minorities.” (Franks at 116). Franks focuses particularly on advocacy groups such as the NRA and the ACLU and argues that such groups advocate for First and Second Amendment rights in more robust terms than either right actually warrants. The result is an implementation of liberty that undermines equality.

Franks advocates an “honest constitutional accounting” and a constitutional culture that focuses on “those who have suffered the most severe constitutional deprivations” (203). How does this look? “It looks like the rejection of selective fidelity to constitutional rights. It looks like denying attention to those who claim to honor the right to bear arms but look the other way when black men are shot dead for exercising them. It looks like demanding that those who defend the right of free speech respond to the silencing of women” (203-4).

Franks provides vital attention to the disparate impact of our First and Second Amendment commitments on marginalized groups. As I’ve said in another context, free speech is not free, and we do not split the check evenly. The costs of our commitments should not be minimized or sanitized, and Franks does necessary work in exposing them.

I am curious for more details on Franks’s constitutional accounting. There are various ongoing conversations about the relationship between the First Amendment and equality, and more from Franks would enrich this picture. Franks brings to her endeavor a powerful combination of clear-eyed realism and unflagging advocacy for something better. These skills, I would argue, contributed to the drafting of the first model criminal statute on revenge porn and its adoption by multiple states. Given her extensive experience with legal reform, what particular changes would she advocate and prioritize? And how much should be driven by pragmatics and concerns about governmental abuse? Concerns about the likely tendencies of democratic majorities are a large part of why we have the speech jurisprudence we do, including, for instance, Justice Thurgood Marshall arguing that government neutrality toward ideas is an outgrowth of the Equal Protection Clause. These questions do not admit of easy answers, but any answer of Franks would be incisive and thought provoking.

I am also curious about Franks’s view of Fred Schauer’s argument in Uncoupling Free Speech that we are wrong to conclude that “because a price must be paid for free speech, it must be the victims of harmful speech who are to pay it” (Schauer, Uncoupling Free Speech, 92 Columbia L. Rev. 1321, 1322 (1992).) Schauer urged more consideration of the uneven distribution of the harms of free speech, and he proposed a thought experiment. What if, instead of telling defamation victims they are out of luck, we compensated them from a victims’ fund, collected from the public? The media would not bear a cost that might chill protected speech, and the victims would receive compensation for their injury. Schauer raised the possibility of the same approach for other speech-related harms, including those caused by hate speech and pornography. I am interested in what Franks would say.

My questions here have mostly been about what steps Franks recommends in response to the problems she sees. The fact remains, however, that simply by discussing the costs of our constitutional commitments, she is furthering vital conversation.

Because know it or not, like Mr. Khan and me, we are all living in Charlottesville.


Leslie Kedrick is Vice-Dean and David H. Ibbeken '71 Research Professor of Law at the University of Virginia. You can reach her by e-mail at kendrick at law.virginia.edu


Sunday, October 13, 2019

An Anti-fundamentalist Believer in the Church of the American Constitution

JB

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

In her new book, The Cult of the Constitution, Mary Anne Franks argues that the Constitution is a document of white male supremacy. More precisely, she argues that "the Constitution has indeed functioned to protect white male supremacy since the day it was written." (p. 6) Hence, "those who adhere to the ideology of white male supremacy may tolerate the expansion of rights to women and nonwhite men, but only to the extent that these rights do not conflict with or undermine the rights of white men." (id.)

Franks argues that the language of the Constitution (and the Declaration) that seems to have nothing to do with white male supremacy--or which even seems to contradict it--cannot be taken at face value: "The Constitution may have begun with the words “We the People,’ but it was a document that both reflected and perpetuated white male supremacy" (pp. 8-9). Although it has been modified and amended, it continues to perform this task: "these changes were very late in coming, and they have at most modified white male supremacy, not dislodged it "(p. 9). Thus, "[w]hile some of the beneficiaries of this constitutional cartel have, at momentous points in history, used their power to confer constitutional recognition on women and minorities, the creation, interpretation, and application of constitutional rights have all primarily served the interests of the Americans who most closely resemble the original founding fathers. The core of constitutional power and privilege in this country has never shifted dramatically—that is to say, democratically—away from white men" (p. 10).

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Saturday, October 12, 2019

First Amendment Fundamentalism and Doctrinal Disarray

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Claudia Haupt

In her provocative new book, The Cult of the Constitution, Mary Anne Franks skillfully weaves together liberal and conservative strands of constitutional fundamentalism, focusing in particular on the First and Second Amendments. To preserve their own power and privilege, “constitutional fundamentalists focus on individual rights of speech and bearing arms while disregarding the equal protection guarantees of the Fourteenth Amendment.” (p. xii) In the process, Franks diagnoses: “As Second Amendment Fundamentalists have done with the right to bear arms, First Amendment fundamentalists have transformed the right to free speech into a superright with no sensitivity to context or to corresponding responsibilities.” (p. 116)

This diagnosis has concrete doctrinal implications. In an example Franks mentions in passing, the story of Second Amendment fundamentalism plays out in a case involving the First Amendment: “Not only does the fundamentalist interpretation of the right to bear arms increasingly undermine the right to free speech—Second Amendment fundamentalists have attempted to prevent physicians from asking patients questions relating to firearms,” (p. 44) and “Second Amendment fundamentalism has served as a justification for varied attempts to literally stifle speech” including “preventing physicians from asking about guns in the home.”  (p. 102) I want to spend a little more time on this case, Wollschlaeger v. Florida (popularly also known as Docs v. Glocks), to highlight the doctrinal implications of what Franks calls the fundamentalist approach to the First Amendment. Professional speech usefully illustrates aspects of this phenomenon, particularly the reflexive incorporation of several doctrinal features into all areas of speech, regardless of context and without much deliberation as to its theoretical soundness.

Florida’s Firearms Owners’ Protection Act (FOPA) was enacted in 2011 ostensibly to address anecdotal evidence of patients (or minor patients’ parents) taking offense at physicians’ customary questions about gun ownership. In fact, the relevant professional groups, including the American Medical Association, recommend inquiring about gun ownership as a matter of course. Nonetheless, the opinion recounts as one of six instances motivating the Florida legislature to enact FOPA that an NRA representative not only reported a physician’s refusal to treat a child if the parent didn’t answer the gun question but also “testified at a subcommittee hearing that ‘[q]uestioning parents about gun ownership to satisfy a political agenda . . . needs to stop.’” But the Eleventh Circuit struck down FOPA because it impermissibly imposed speaker-focused and content-based restrictions by limiting doctors’ speech about gun ownership.
It might appear that in this decision, the First Amendment prevented a fundamentalist interpretation of the Second Amendment. But a closer look reveals that the court’s First Amendment interpretation is itself based on what Franks may identify as a fundamentalist understanding.

The court struck down the Florida law because it violated the First Amendment’s command of content neutrality. Since the Supreme Court’s decision in Reed v. Town of Gilbert, an aggressively expansive understanding of content neutrality, in turn, has become one of the pillars of the modern deregulatory interpretation of the First Amendment. I’ve called this purported extension of content neutrality to all areas of speech “the content-neutrality trap.” But in the context of professional speech, content neutrality makes little sense. Indeed, the value of professional speech to the client or patient lies precisely in its content. Moreover, a professional’s speech within the professional-client or doctor-patient relationship for the purpose of giving professional advice is constrained by the imposition of malpractice liability for bad advice and by fiduciary duties. Approaching professional speech from the premise of content neutrality, however, misses these aspects. In other words, extending the requirement of content neutrality to professional speech bears the hallmarks of First Amendment fundamentalism Franks identifies: “no sensitivity to context or to corresponding responsibilities.” Thus, reaching the correct result on shaky reasoning, Docs v. Glocks offers a vivid illustration of acontextual and reflexive contemporary First Amendment jurisprudence.

On the surface, professional speech is merely in doctrinal disarray. The federal appellate courts are divided on the First Amendment implications of speech that occurs within the professional-client relationship, and the Supreme Court’s recent decision in NIFLA v. Becerra offers only limited guidance. Yet, as I’ve explained elsewhere, “[m]uch of professional speech doctrine in the courts has . . . developed around conversion therapy laws and legislation concerning reproductive rights. Because these issues remain contested, the development of professional speech doctrine in the courts has been uneven and still lacks a coherent theoretical basis.” So take a step back from Docs v. Glocks and the picture that emerges supports the finding that those who have been affected by First Amendment fundamentalism in this area are “those whose rights have been excluded, ignored, and subordinated.” (p. 204)

Claudia E. Haupt is an Associate Professor of Law and Political Science at Northeastern University. You can reach her by e-mail at c.haupt at northeastern.edu


Friday, October 11, 2019

A Discussion at Harvard Law School on Democracy and Dysfunction

JB




On Thursday, October 3d, the Harvard Law School Law Library hosted an event Sandy Levinson's and my new book, Democracy and Dysfunction (University of Chicago Press, 2019). The commentators included Jennifer Hochschild and Steven Levitsky of the Harvard Government department. It was a great discussion of why the United States is in a period of political dysfunction and where our politics is headed.

Symposium on Andrew Coan, Rationing the Constitution: Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Andrew Coan's new book, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019).


1. Jack Balkin, Introduction to Balkinization Symposium on Andrew Coan, Rationing the Constitution.

2. David Marcus, Comments on Rationing the Constitution.

3. Aaron-Andrew P. Bruhl, Rationing the Constitution: Beyond and Below.

4. Maggie Blackhawk, Andrew Coan and Legal Process.

5. Aziz Huq, Judicial Norms and Judicial Capacity.

6. Frederick Schauer, Methodological Quibbles and Their Non-Quibbly Implications.

7. Adrian Vermeule, Judicial Capacities: Some Second-Order Problems.

8. Victoria Nourse, Normative Constitutional Scholarship meets Judicial Capacity.

9. Mariah Zeisberg, Testing the Judicial Capacity Model.

10. Andrew Coan, Response to Comments on Rationing the Constitution.





The Second Amendment of Things (and Grievances)

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Joseph Blocher

The second chapter of Mary Anne Franks’ exceptional new book, Cult of the Constitution, shows how constitutional fundamentalism distorts debates about gun rights and regulation. In doing so, it offers novel contributions to the increasingly vibrant scholarly literature on the Second Amendment. I’ll focus on two; one conceptual and the other doctrinal. The first is Franks’ focus on the physical instrument (the gun) that is central to the right; the second is what her argument suggests about the future of Second Amendment doctrine.

The chapter is titled “The Cult of the Gun,” rather than “The Cult of the Second Amendment,” and the difference between those framings is subtle but potentially significant. The Second Amendment—perhaps more than any other constitutional right—is centered on an instrument, rather than an activity or status. The Amendment’s verbs (“keep” and “bear”) do real work, but it is the “arm” that gives them literal and figurative force. Subtract it, and the right makes no sense. Of course, other constitutional rights might also protect particular means of their own effectuation: the “press” being an obvious example, at least on some accounts. But even if the difference is a matter of degree rather than kind, the Second Amendment has a notable focus on a particular class of things.

Understanding the Second Amendment as a thing-centered right can have important implications for law and theory—witness the generative debates about property as the “law of things.” In particular, it raises interesting questions about the relationship between the constitutionally specified means (arms) and the underlying end that Heller identifies (self-defense). That relationship is not as straightforward as one might suppose. The right to keep and bear arms is often conflated with a right to self-defense, but the two are distinct—the individual right to self-defense preceded Heller, after all, and doesn’t depend on the Second Amendment. What the Second Amendment adds, per Heller, is a right to have a particular instrument on hand, should the need for such actions—or, on some accounts, other actions like revolution—ever arise. It constitutionally generates a means to an already constitutionally protected end. And the linkage between right and interest is not necessarily as tight as it is in some other contexts: Most self-defense actions do not involve guns, and the vast majority of guns are never used for self-defense. That disconnect is not unique—many speech acts don’t plausibly further free speech values of truth or democracy, for example—but is often elided.

The centrality of the instrument, rather than an action or status (as is the case for many other rights), helps explain the frustrating symmetries of the gun debate, because so many arguments based on instrumental characteristics can be self-negating. As Justice Breyer put it in his Heller dissent, “the very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous.” Likewise, opponents of assault weapon bans often argue that such bans are pointless because they only forbid cosmetic features like barrel shrouds and telescoping stocks. But that very argument also undermines the Second Amendment case against such bans, unless there is some kind of constitutionally relevant interest in cosmetic features. All sides find themselves feeding ammunition to the others.

This feature of the gun debate is not merely a matter of conceptualism (what does the right mean?), but also a basic point about the gun debate—it’s about guns. And, to return to Franks’ chapter title, that’s why it is important not to lose sight of the “Arms” in the Amendment. As Dan Baum described in Gun Guys: A Road Trip, “It wasn’t so much the Constitution or its authors that gun guys loved; it was guns.” Or, as Australian comedian Jim Jeffries put it, a bit more colorfully: “There is one argument, and one argument alone for having a gun, and this is the argument: ‘F___ off, I like guns.’ …. And there’s nothing wrong with saying, ‘I like something, don’t take it away from me.’”

What does this mean, concretely, for law? While Franks’ primary focus is on the constitution outside the courts, and especially outside the Supreme Court, her account does have important implications for constitutional doctrine. In particular, the Second Amendment provides an unusually useful illustration of how what she calls “victim-claiming” can translate more or less directly into legal rules. This matters not only for the statutory changes that Franks discusses—expansion of stand your ground laws, for example—but for Second Amendment doctrine. 

The dominant refrain in gun rights advocacy these days is that the right to keep and bear arms is being treated as a “second-class right.” That assertion regularly appears in op-eds, briefs, and scholarship, and has found sympathetic ears in the judiciary. Justice Thomas in particular has repeatedly asserted it in written opinions, as well as in his first questions at oral argument in nearly a decade. Perhaps most memorably, he recently suggested that the Court was treating the right to keep and bear arms as a “constitutional orphan.”

The second-class right argument is, in many ways, a prime instance of what Franks describes as victim-claiming—“a reversal technique that puts the powerful in the space of the vulnerable ….” As she illustrates throughout the chapter, it is an article of faith for some gun owners that they are a persecuted outgroup akin to a racial or religious minority. Connecting that sense of powerlessness to the second class rights argument, some have alleged that lower courts are engaged in “massive resistance” against the right articulated in Heller, a phrasing apparently meant to invoke Southern resistance to integration after Brown.

It is easy enough to dismiss such comparisons, since it is hard to say with a straight face that gun owners are relevantly similar to the petitioners in Brown with regard to political and social power, or that their interests are not represented in the US political process. Most Americans support the individual right to keep and bear arms recognized in Heller, after all. And although the Democratic primary has featured prominent discussion of gun regulation proposals, most candidates (including those who support regulation) still swear fealty to the “individual” right to keep and bear arms—just as then-candidates John McCain and Barack Obama did in the days after Heller was handed down. The NRA was one of President Trump’s most significant financial supporters, and has by all accounts enjoyed significant White House access. As I and many others have argued elsewhere, these are not the hallmarks of a political process failure demanding an active role for judicial review.

One measure of this political power is that, despite (or perhaps because of) the victim-claiming, even modest, enormously popular reforms like expanded background checks remain unenacted. In fact, existing laws actually protect guns in ways that extend “the right to keep and bear arms” far beyond the right articulated in Heller. Franks explores some of these laws, including the Protection of Lawful Commerce in Arms Act (currently subject of a major post-Sandy Hook lawsuit). In a forthcoming piece, my colleague Jake Charles calls them part of the “Right to Keep and Bear Arms Outside the Second Amendment.”

Of course, as both Franks and Charles carefully note, there is not necessarily a bright line around “the Second Amendment”—all of these developments, in one way or another, make claims on the constitution. But even if one focuses on on court-articulated rules and holdings in Second Amendment cases, it is not hard to see the possible doctrinal impact of the second-class/victim-claiming argument. Until now, the Second Amendment doctrine that has developed in more than 1,000 post-Heller challenges (which Eric Ruben and I describe in this piece, to which Sandy responded here) generally forbids outlier laws like prohibitions on handguns or public carrying, but permits the kinds of reasonable, mainstream regulation that are the focus of most gun violence prevention advocates. That could soon change. And if it does, it seems likely that the forces Franks describes will be the driving factor.
 
As Franks’ book was going to press, the Supreme Court granted cert in New York State Rifle & Pistol Association v. City of New York (NYSRPA), which will be the first Second Amendment dispute argued before the Court in almost a decade. The stakes of the case have almost nothing to do with the particular New York regulation at issue (which even petitioners describe as unique, and which has been since been altered in ways that seem to moot the case), and everything to do with the methodology that courts use to evaluate Second Amendment claims. If the Court agrees with the NYSRPA petitioners and amici that lower courts and legislators are “drain[ing] Heller . . . of meaning” by systematically disregarding the right to keep and bear arms, the Justices might be inclined to upend the doctrine developed in the lower courts by, for example, applying strict scrutiny across the board.

But the second-class right argument also suffers from some of the same kinds of internal tensions and contradictions as the handgun and assault weapons arguments discussed above. A natural implication of the second-class argument—invoking a kind of equality norm, albeit not the one in which Franks finds the seeds of constitutional redemption—is that all rights are on a par. And indeed one main theme of the petitioners’ argument has been that applying less-than-strict scrutiny to Second Amendment claims would be akin to establishing an impermissible “hierarchy” of fundamental rights. (The suggestion that all fundamental rights get strict scrutiny is false, of course, but that’s an issue for another day.) And yet many gun rights advocates demand not identical or equal treatment, but favored treatment for the right to keep and bear arms. After all, the NRA’s official journal is called “America’s First Freedom.” As Franks notes, Wayne LaPierre himself has said that “some rights are more important to the whole than others” and that the Second Amendment is “the one right that all the others lean on the most.” Maybe Baum and Jeffries were right—it’s just about guns.

As a matter of law, strict scrutiny is not the only option. The most prominent doctrinal alternative to strict scrutiny—one that then-Judge Brett Kavanaugh advocated in a prominent Second Amendment dissent—would evaluate the constitutionality of gun regulations by reference to “text, history, and tradition.” The implications of such a change could be profound, as it would mark a potentially radical departure from the two-part test that has been uniformly adopted by the federal courts of appeal. (Full disclosure: Along with Eric Ruben and Darrell Miller, I filed an amicus brief in support of neither side making this argument at length.) In terms of case outcomes, a properly applied historical test should lead to many of the same results, since gun regulation is a well-established (albeit often underappreciated) fact—Duke’s Repository of Historical Gun Laws includes more than 1,500 pre-1934 laws, and even that number is not comprehensive.

Text, history, and tradition alone are unlikely to provide clear answers to questions like whether a modern AR-15 is a “descendant” of a colonial-era musket. Where those sources run out, Kavanaugh suggested, judges will instead have to reason by analogy, which seems sensible. But although he did not say as much, it seems clear that that’s where all the work is going to happen—the test of text, history, and tradition will in practice become a “test of judicial analogies” or “test of judicial intuition.” Judges will have to decide for themselves whether certain modern guns or gun laws are relevantly similar to laws from 150 or 200 years ago. Is a modern grenade launcher “like” a musket, because you can lift it, or is it like a cannon, because it’s so powerful? How is an AR-15 “like” a musket? Do you compare barrel lengths? Muzzle velocity? Relative deadliness compared to other weapons?

Those may sound like historical questions, but it is hard to avoid the suspicion that the answers will depend on inarticulable intuitions and beliefs—a kind of faith.

 Joseph Blocher is Professor of Law at Duke Law School. You can reach him by e-mail at blocher at law.duke.edu


Justifying a Refusal to Vacate Office

Gerard N. Magliocca

The White House Counsel's letter to the House of Representatives explaining the President's refusal to cooperate with the impeachment inquiry is being torn to shreds by lawyers from both parties. I want to make one observation about the letter. If an impeachment proceeding in the House can be unconstitutional as the President claims, then why can't he say the same about the Senate trial?

The Constitution gives the House of Representatives the sole power of impeachment. Nevertheless,  the President says that what the House is doing violates due process. This is nonsense, but let's accept the premise for a moment. The Constitution gives the Senate the sole power to try all impeachments. When the Senate trial begins, though, the President is bound to whine that he is being treated unfairly or that the Chief Justice is treating him unfairly. When, then, should he accept a guilty verdict from this "kangaroo court?" He can just say that the trial was unconstitutional and that he should remain in office. Maybe one object of the White House Counsel's letter is to establish a predicate for that action.

Thursday, October 10, 2019

Mary Anne Franks as Constitutional Truth-Teller

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Anupam Chander

The Cult of the Constitution exhorts us to see the Constitution, warts and all--to recognize that overzealous interpretation of one important value can diminish other values we hold dear. First Amendment zealotry, for example, often leaves women, minorities, and other vulnerable people at the mercy of the loudest, most profane, and most threatening voices. In sharp and powerful prose, Mary Anne Franks shows us that the costs of such zealous interpretations—whether it be of the First or Second Amendment—are often borne disproportionately by women and other marginalized groups.

She boldly observes that the Constitution was written by (and for) white men, a proposition that seems hard to refute given the facts staring us in the face: The Constitution recognized slavery (whether implicitly or explicitly) through the three-fifths clause, and women didn't gain a constitutionally-protected right to vote until 1920. Franks speaks truth to power, and doesn't pull punches. She is willing to pierce the hagiography of the Constitution—a text that is supposed to be the very foundation of our society and nation.

I wish here to embrace her broad concerns, with some cautions about both the descriptive claims and her proposed solutions, focusing on issues of internet governance.

First Amendment zealotry has led internet platforms to be slow to recognize their role in perpetuating white male supremacy. Even if the First Amendment does not bind these “non-state actors,” they have often embraced a highly permissive free speech vision, and have proven reluctant to remove material, hoping that ‘good speech’ would drown out ‘bad speech’ in a marketplace of ideas. Twitter’s early mantra was to be “the free speech wing of the free speech party.” Internet platforms have convinced themselves that they are neutral actors, who should stay out of disputes about the values that make up a better world. Franks refutes the notion that the platforms are neutral; she argues that remaining “neutral” by permitting harassment of women drives women off the platform. Franks is convincing in her argument that technologies are never neutral—and Vivek Krishnamurthy and I have also offered arguments in a similar vein in a new paper, The Myth of Platform Neutrality (proving that great minds think alike!).

Franks observes that internet companies have taken some positive measures, for example, creating a hashing scheme called PhotoDNA to quickly identify and disable child pornography. This has been adopted by a number of major internet platforms. Relatedly, FBI Director, Christopher Wray, has recently cited Facebook’s efforts to report child pornography—literally identifying millions of photos that might contain such horrific behavior. Wray says that “Facebook is saving lives with those tips.” Wray worries that if Facebook decides to implement end-to-end encryption it will be unable to identify child pornography in the future. This is a serious concern. If Facebook decides to continue its current plans, it should examine whether it can still manage to identify child pornography. Siva Vaidhyanathan writes, “Pick your losers. Pick whom you care to protect. The kinds of people you value most will indicate whether you support the spread of strong encryption or not.” Vaidhyanathan continues, “Let’s not pretend this future will be pain-free.”

Franks laments that free speech advocates have typically criticized such interventions. Franks reports that the Electronic Frontier Foundation lodged its concern that “every time a company throws a vile neo-Nazi site off the Net, thousands of less visible decisions are made by companies with little oversight or transparency.” (195) Even if that is true—requiring Facebook to keep up white supremacist material would do little to contain the various decisions Facebook makes about what posts of my more than a thousand Facebook friends to highlight. Facebook will continue making lots of invisible decisions, even if they are required to keep up the Nazi material. I agree with Franks that internet platforms’ efforts to reduce hate are helpful. Free speech advocates are also correct in pointing out that the interventions are not without a price—in the form of speech that is mischaracterized, for example. Automated content moderation systems in particular remain poor at identifying context, as Natasha Duarte, Emma Llanso and Anna Loup have argued, risking speech. (In a related context, they are also poor at assessing fair use of copyrighted works, as Dan Burk has argued.) But, overall, internet companies’ interventions such as the barring of the white supremacist site Daily Stormer represent a positive development.

Active intervention by internet platforms to protect users against harassment and those who would promote white male supremacy—their ability to not be neutral—is made possible by Communications Decency Act (CDA) Section 230. Platforms can take down white male supremacist content without worrying that they will be sued in the United States—because of clear protections offered in Section 230. Franks recognizes this, approving the part of the CDA that immunizes companies from liability for taking down content.

Franks, however, disagrees with the protections against distributor liability that courts have read into the CDA: “it is not necessary or beneficial to immunize Facebook and similar social media platforms from distributor liability for the posts, likes, shares and so-on of third-party content…” (171). Franks argues that distributor liability immunity creates a kind of moral hazard—allowing them to benefit from the circulation of hateful material, without paying the price for that hate.
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Balkinization Symposium on Mary Anne Franks, The Cult of the Constitution

Guest Blogger


Frank Pasquale and Danielle Citron

The Cult of the Constitution (Stanford University Press, 2019) is one of those rare books that works on several levels: as compelling storytelling, as powerful advocacy, and as illuminating expert analysis of both the law and politics of of First and Second Amendment doctrine in the United States. The legal and political dimensions of speech and violence (and, very importantly, speech-as-violence) are subjects she has addressed with passion, creativity, and eloquence for over a decade. The book could not be more timely, as authoritarians around the world are attracting stochastically violent followers easily incited to harassment and murder by unscrupulous leaders, misogynists, racists, and anarchist partisans with a "burn it all down" mentality. The Yom Kippur shooting in a German synagogue, inspired by anti-Semitic and misogynistic indoctrination online, is just the most recent example of the deadly results of the cult-like devotion to a view of guns and speech at all costs. (See Franks’s New York Times op ed on the shooting here.) Every day supplies new examples of the extremes that Franks explores and the profound costs to the most vulnerable among us.

As co-authors of a series of articles on surveillance, power, and technology, and in our independent work on fraught free expression issues, we have each been inspired by Franks's simultaneously bold and wise perspectives on 21st century American constitutionalism. Franks's title reference to "cults" is in significant ways both an homage to and critique of Jack Balkin's conception of "Constitutional Faith." Franks believes in the promise of the US constitution, particularly in its egalitarian passages, to bring Americans closer to a truly inclusive and just polity. But she fears the majestic generalities of the constitution can easily be hijacked to entrench white supremacist vigilantism, all-too-easily cloaked as "only words" or mere "jokes." As Kathleen Belew has compellingly shown, the internet has been key to such movements since its inception, and its influence in this direction metastasizes to this day.

In this virtual symposium, we have convened leading legal scholars to comment on Franks's important book. They include: Joseph Blocher (Duke), Anupam Chander (Georgetown), Danielle Keats Citron (B.U.), Claudia Haupt (Northeastern), Leslie Kendrick (Virginia), Jeff Kosseff (U.S. Naval Academy), Sanford Levinson (Texas), Paul Ohm (Georgetown), Frank Pasquale (Maryland), and Jack Balkin (Yale)

At the conclusion, Mary Anne will respond to the commentators.


Wednesday, October 09, 2019

A few thoughts about the Title VII oral arguments

Marty Lederman

The Supreme Court heard oral argument yesterday morning in three cases concerning whether the provision in Title VII of the Civil Rights Act of 1964 making it unlawful for a covered employer to “discriminate against” an employee “because of such individual’s . . . sex” prohibits such an employer from firing an employee because he’s a gay man or because she's a transgender woman.  Here's the transcript of argument in Nos. 17-1618 and 17-1623, Bostock v. Clayton County and Altitude Express, Inc. v. Zarda (the cases involving discharges of gay men) and here's the transcript of the argument in No. 18-107, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (the case involving the discharge of a transgender woman). 

Many observers have reasonably assumed that the Court's decisions turn on the votes of one or more of the Chief Justice and Justices Gorsuch and Kavanaugh.  My strong impression at the oral argument--confirmed by many others in the Courtroom to whom I spoke--was that all three of those Justices (as well as some others) were very careful not to tip their hands on what they're inclined to do.  Therefore it'd be foolhardy to rely upon the oral argument to make any predictions about how the Court will decide the cases.

So instead of offering any such predictions, in this post I'll simply offer some thoughts on three issues the Justices and defendants' advocates raised, apart from those I discussed in my post here last month.  (On a fourth matter--a question Justice Alito asked about a hypothetical employer who refuses to hire an applicant because he's told the applicant is attracted to persons of the same sex but doesn't know whether the applicant is a man or a woman--see Andy Koppelman's post below.) 

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Justice Alito’s desperation move

Andrew Koppelman


In the Title VII cases just argued in the Supreme Court, the argument that discrimination against gay people is sex discrimination is straightforward.  The Civil Rights Act of 1964 bans discrimination based on sex, and says that discrimination means any treatment of a person in a manner which but for the person’s sex would be different.  LGBT discrimination is an instance of such treatment: an employee who dates women is “homosexual” only if that employee is female.

In yesterday’s oral argument, Justice Alito offered a clever hypothetical that, he thought, might get around this logic. 

Let's imagine that the decisionmaker in a particular case is behind the veil of ignorance and the subordinate who has reviewed the candidates for a position says: I'm going to tell you two things about this candidate. This is the very best candidate for the job, and this candidate is attracted to members of the same sex. And the employer says: Okay, I'm going --I'm not going to hire this person for that reason. Is that discrimination on the basis of sex, where the employer doesn't even know the sex of the individual involved?

He then pressed Stanford Prof. Pamela Karlan, the attorney for the gay claimants, on the hypothetical “case that there would be no liability in the situation where the decisionmaker has no knowledge of sex.”

Karlan responded:  “If there was that case, it might be the rare case in which sexual orientation discrimination is not a subset of sex.”  But she pointed out that no case like that had ever been reported, and that in the cases actually before the Court, the employer did know the employee’s sex and would not have taken the adverse action had the employee’s sex been different.

Since the hypothetical matters so much to Alito, it is worth pointing out that it does not get him where he wants to go.  Karlan is one of our greatest constitutional scholars, but here she conceded too much.  Even in the hypothetical case, the sexual orientation discrimination would be sex discrimination.

To see why, consider another hypothetical case.  I’ll make some small modifications in Alito’s language:

Let's imagine that the decisionmaker in a particular case is behind the veil of ignorance and the subordinate who has reviewed the candidates for a position says: I'm going to tell you two things about this candidate. This is the very best candidate for the job, and this candidate is [married to a person of a different race]. And the employer says: Okay, I'm going --I'm not going to hire this person for that reason. Is that discrimination on the basis of [race], where the employer doesn't even know the [race] of the individual involved?

I take it that no one would suggest that this case does not involve race discrimination.  And that is in fact settled law under Title VII.

The analysis would not change if the employer claimed that it was merely discriminating against “miscegenosexuals,” and that the law’s protection of African-Americans should not be extended to an entirely different category of people.  The only difference between the two responses is that here the neologism is unfamiliar.  The flaw in both responses is the same: in any individual case, a person is discriminated against for being the wrong race or sex.  The fact that the hypothetical employer has set up an automatic-discrimination protocol does not change that.

The parallel-discriminations move also proves way too much.  Suppose an employer decides to demand equally of men and women that they “comport themselves in a manner consistent with the traditional understanding of their gender.”  That of course returns us to the world of Hopkins v. Price Waterhouse, in which some high-paying jobs are denied to women because performing them competently is unfeminine.

Alito’s hypothetical is, in short, a desperation move, looking for some way to avoid the obvious implications of the statute’s plain text.  The fact that he made it is evidence that the sex discrimination argument is mighty strong on the merits.

Which, of course, does not necessarily mean that it will win.


Justice Gorsuch's dilemma

Andrew Koppelman

The big news in Tuesday’s Supreme Court argument, in cases on whether federal law protects LGBT people from job discrimination, is that one of the Court’s most conservative justices seemed genuinely torn. Neil Gorsuch isn’t ideologically disposed to favor LGBT claims, but he is also devoted to following a statute’s text wherever it goes—and here it points toward protection from discrimination. Given the notorious polarization of both the Court and contemporary America, that might be good news—if Gorsuch is really willing to be an honest textualist.

I elaborate in a new piece at The American Prospect, here.

Tuesday, October 08, 2019

Pro Se Impeachment Defense

Gerard N. Magliocca

In Tennessee Johnson, a 1942 Hollywood movie about Andrew Johnson, President Johnson delivers a  dramatic closing argument in his defense during his Senate impeachment trial. This speech, of course, never happened. Johnson's attorneys, including retired Supreme Court Justice Benjamin Curtis, were the ones who argued on the President's behalf.

The Senate rules, however, do contemplate that an impeached official could decide to represent himself, either completely or in part. This raises the possibility that the President could attend the Senate trial and make speeches, question witnesses, etc. Now he probably would not dare do this.  But would anyone be surprised if the President thought he would be his best advocate?

Sunday, October 06, 2019

We Already Know Enough to Conclude that President Trump Should Be Impeached and Removed from Office

Neil Siegel

The impeachment inquiry concerning President Trump’s phone call to the new leader of Ukraine is ongoing, and troubling new facts emerge on an almost daily basis. In this brief post, I explain why the facts and the law are already sufficiently clear to warrant the President’s impeachment and removal from office.

Article II, Section 4, of the United States Constitution provides that “[t]he President, Vice President and all civil officers of the United States, shall be removed from Office on impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” There are reasonable scholarly debates about the meaning of “high Crimes and Misdemeanors,” but two legal propositions are clear.


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Saturday, October 05, 2019

Bostock and religious accommodation

Andrew Koppelman


In Bostock v. Clayton County, which will be argued next week, the Supreme Court will decide whether LGBT employment discrimination is sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.  A prominent amicus brief, by the National Association of Evangelicals and other conservative religious organizations, warns the Court that a decision that such discrimination is banned would unduly burden religious liberty.  The worry is real, but the Court can easily respond to it.

Title VII already permits religious associations, corporations, educational institutions, and societies to discriminate based on religion in a range of ways that other entities may not.  42 U.S.C. §2000e-1(a); 42 U.S.C. §2000e-2(e)(2).  The statute permits religious organizations to hire individuals “of a particular religion,” and it defines religion to include “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. §§ 2000e(j), 2000e-1(a).  Employers may also discriminate based on sex if that discrimination relates to a bona fide occupational qualification that is reasonably necessary to the normal operation of their businesses.  42 U.S.C. §2000e-2(e)(1). 

The amicus brief is concerned that these exemptions are likely to be narrowly construed:

some lower courts already give cramped interpretations to those protections, denying their application to employees and employment practices that are crucial to a religious organization’s autonomy and mission. In the face of a new SOGI nondiscrimination rule from this Court, the pressure on lower courts to interpret existing religious protections narrowly so as not to undermine this nascent norm will be enormous.

For example, the brief notes that some courts have held that an exception for religious discrimination does not protect discrimination on other grounds, that the religious exemption does not apply if it disproportionately affects a protected class or if religious standards are applied inconsistently (in the court’s opinion) and thus can be deemed pretextual. 

These interpretations, the brief argues, could entirely undermine the religious exemption:

Such conflicts risk fatally undermining the outcome in Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987), where the Court upheld Title VII’s religious exemption against a challenge by an employee who was a member of the faith but was terminated for failing to live up to its standards. Id. at 330 & n.4. If it becomes illegal for a religious organization to require its employees to comply with all the faith’s standards—including those pertaining to sexuality—then much of the rationale and import of Amos, including Justice Brennan’s important concurrence, will fail. See id. at 342 (Brennan, J., concurring) (“Determining that * * * only those committed to [a religious] mission should” conduct a religious organization’s activities is “a means by which a religious community defines itself.”).

The brief proposes that “a proper reading of the exemption allows religious employers to limit hiring to those ‘whose beliefs and conduct are consistent with the employer’s religious precepts.’ Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991).”  The Wuerl decision upheld a Catholic school’s firing of a Protestant employee who had remarried after divorce. 

The problem is a real one.  But the Court has the power to deal with it.  The same textualist method that supports the LGBT sex discrimination claim also supports the churches’ claim to the protection, against federal antidiscrimination law, of “all aspects of religious observance and practice, as well as belief.”

If the Court is worried about this – although, if it really means to base its decision on text and nothing but text, it’s hard to see how the consequences for the religious could be legally relevant – it need only note the religious accommodations in the statute, and cite Wuerl with approval.  That would give a pretty clear signal to the lower federal courts of what it expects.  And if the message isn’t heard, then a few summary reversals should suffice to concentrate the mind.  Litigation is expensive and small churches may lack the means to get to the Supreme Court, but this is an important enough issue to religious law operations such as Becket and Alliance that free legal help is likely to be forthcoming.

The problem is somewhat analogous to the problem that bothered Justice Kennedy, in his majority opinion in Masterpiece Cakeshop v. Colorado, that the decision might imply an excessively broad right to discriminate under the First Amendment.  He arrived at a similar solution.  There might be a constitutional exception to antidiscrimination law for some religious activity, he wrote.  But “if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma in­consistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”  That’s a pretty clear signal to lower courts, blunted now only by the fact that Kennedy is gone and it’s not clear what his replacement thinks.

The Court should not dismiss this opportunity to offer a combination of antidiscrimination protection and religious accommodation.  Whatever it decides, LGBT employment discrimination protection is coming.  A rejection of the discrimination claim is likely to produce widespread outrage, somewhat like the backlash against its 1986 Bowers v. Hardwick decision upholding the criminalization of homosexual sex.  Most Americans think that antigay discrimination is already protected, and they won’t be pleased to learn that it isn’t.  That will be a new impetus for the Equality Act, a sweeping protection against LGBT discrimination that recently passed the House of Representatives.  That is as far as it will get this year, because the Republicans control the Senate and the Presidency.  But political fortunes shift and that won’t always be the case.  It has already attracted Republican votes.  Protection of LGBT people from employment discrimination, which is what Title VII offers, is supported by 92% of Americans.  And the Equality Act contains no religious accommodations at all.

In short, the amicus brief raises a serious and important issue.  But that issue is a reason for the Court to do its job, follow the text, and recognize that LGBT discrimination is sex discrimination and thus is already prohibited under Title VII.


Friday, October 04, 2019

Response to Comments on Rationing the Constitution

Andrew Coan


I am grateful to Jack Balkin for organizing this symposium and to the commenters on Rationing the Constitution for their close, careful, and generous engagement with my book. Their wide-ranging posts raise more valuable and interesting points than I can address here. I will therefore focus on four recurrent topics that strike me as primary: (1) extensions, applications, and friendly amendments to my judicial capacity model of Supreme Court decision-making; (2) the place of judicial capacity in the legal process tradition; (3) the internal logic of the judicial capacity model; and (4) causal inference and the problem of observational equivalence.

To start, it will be helpful to restate the core claims of the book. At least since Henry Hart’s famous 1958 Harvard Law Review Foreword, it has been well established that the Supreme Court can decide only so many cases per year—150-200 at most. It is also familiar wisdom that this limited capacity influences the Court’s decisions and development of constitutional doctrine, albeit in diffuse and indeterminate ways. Building on these foundations, Rationing the Constitution makes two novel claims: First, judicial capacity limits have especially significant bite—and real predictive power—in many of the most important constitutional domains, spanning federalism, separation of powers, and individual rights. Second, these limits are the product not just of limited time and resources but also, crucially, of widely shared judicial norms. Chief among these is the Court’s felt need to review virtually all lower-court decisions that invalidate federal statutes.

These core claims are the premises for my judicial capacity model, which I spend most of the book attempting to substantiate using a multiple case-study research design. In constitutional domains implicating a large volume of federal statutes, this model predicts that the Supreme Court will be strongly constrained to choose between some combination of strong deference to the political process and hard-edged categorical rules. This, in turn, limits the Court’s ability to challenge dominant political forces and undermines its ability to competently resolve constitutional controversies—categorical rules being generally too crude to sensibly define the contours of federalism, separation of powers, equal protection, etc.

Judicial capacity is obviously not the only factor that influences Supreme Court decision-making in these domains. Ideology, strategic calculations, and legal principle all play important roles, too. But the judicial capacity model helps to explain the pattern of post-New Deal Supreme Court decisions in ways that none of these other factors can. Or so Rationing the Constitution contends. On this contention, the book must stand or fall.  

One final terminological clarification: When I use the term judicial capacity, I mean the total volume of cases that the court system—and, in particular, the Supreme Court—is capable of handling. I do not mean the capacity of courts to produce reliably good decisions, which I shall call judicial competence. Nor do I mean the capacity—or inclination—of courts to produce social change against the tide of dominant political forces, which I shall call judicial independence.

Extensions, Applications, and Friendly Amendments

In illuminating and complementary posts, David Marcus and Aaron-Andrew Bruhl draw attention to judicial capacity issues in the lower federal courts that I do not discuss at any length in my book. The focus of Rationing the Constitution is on the relationship between judicial capacity and constitutional doctrine. And constitutional doctrine is made, for the most part, in the Supreme Court. Moreover, through the hierarchical system of precedent, the Court projects its capacity-management decisions through the federal judiciary as a whole. But Marcus and Bruhl helpfully demonstrate the payoffs of bringing lower courts into the story—payoffs that both enrich and reinforce the judicial capacity model. 


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