American Constitutional Law (University Textbook Series) [2 ed.] 0882776010, 9780882776019

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AMERICAN CONSTITUTIONAL SECOND

LAW

EDITION

LAURENCE

H. TRIBE

Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard University

Mineola, New York The Foundation Press, Inc. 1988

COPYRIGHT

©

1978 THE

FOUNDATION

COPYRIGHT

©

1988 By THE

PRESS,

FOUNDATION

INC.

PRESS,

INC.

All rights reserved Printed in the United States of America

Library of Congress Cataloging in Publication Data Tribe, Laurence H. American constitutional law / Laurence H. Tribe. — 2nd ed. p. cm. — (University textbook series) Includes bibliographical references and index.

ISBN 0-88277-601-0 1. United States — Constitutional law. I. Title. II. Series. KF4550.T785 1988 342.73 -

del 9

[347.302]

87-27798 CIP

PREFACE

TO

THE

SECOND

EDITION

It is a great pleasure for me to be publishing this second edition at the time of the Constitution’s Bicentennial— and on the fiftieth anniversa¬ ry of the constitutional revolution of 1937. If I shared the sense of some on the left that constitutional discourse in the United States is but an apology for the status quo — a facade calculated to deflect any real critique of prevailing patterns of power— I would have long since set this enterprise aside. And if I shared the belief of others on the right that the sorts of constitutional arguments I advance are but a cover for whatever liberal political views I might hold, I would likewise have found other uses for my energy: a scholarly treatise— one providing ammuni¬ tion to all combatants in the constitutional controversies of the day— is hardly the most effective way to fight political or legal views I would like to see rejected. My commitment to constitutional analysis is, in truth, neither particularly instrumental nor reflective of any specific philosophy beyond this: the Constitution is an endlessly intriguing object of study, and represents the best effort of its kind in the history of the world. Hence this edition. Although completely updating the book (covering developments through August, 1987), I have left the basic organization of the work unchanged. Still, much of what has occurred in the intervening years has called for substantive revisions throughout. In the decade or so that has passed since the first edition was published, there have been a great many relevant developments for me to take into account — including hundreds of Supreme Court decisions and scores of pertinent articles and books, many of these opinions or other writings commenting upon or quoting the original edition, sometimes approvingly and sometimes not. I have been affected as well by a shift in my own experience. Having taught constitutional law for another decade and, perhaps more crucially, having argued around a dozen cases in the Supreme Court between the first edition and this, I have both broadened my perspective and sharp¬ ened my sense of the bridges that need to be built linking theory, teaching, and practice, gaining in the process a deeper appreciation of the very great difference between reading the Constitution we have and writing the Constitution some of us might wish to have. Rather than focusing directly on the character of that difference in this edition, I leave such broader speculations to my other writings and structure this new edition, as I did its predecessor, in terms of doctrinal and historical models designed to shed some light on what courts have done with constitutional language and structure, to explore the themes and tensions within and among lines of decisions sometimes decades long, and to suggest possible lines of development yet to come. in • • •

PREFACE

TO THE SECOND

EDITION

If the result is generally informative and even eye-opening from time to time, I have a great many people to thank. In addition to those listed in the preface to the first edition, which is reproduced after this preface even though its rather grand tone is now a source of some embarrassment to me-— and in addition to my wife Carolyn, my son Mark, and my daughter Kerry— there is a group of dedicated and tireless students and former students whose names appear, with much more gratitude than a marginal acknowledgement can display, in an apprecia¬ tive footnote.1 Then there are my secretaries Leslie Sterling and Pamela Massey, who helped in all the usual secretarial ways 2 but, even more important, kept me from either going crazy or taking myself too serious¬ lyThere are two colleagues — both of them, distinguished former stu¬ dents of mine— whose encouragement and criticism also helped more than I can say: Professors Kathleen Sullivan and Susan Estrich. Kath¬ leen is among the most remarkable members of the Harvard Law School faculty; as a teacher of constitutional law here, she has taught me at least as much as I ever taught her. And Susan, apart from being an enormously powerful lawyer, teacher, and writer, somehow got me over my deathly fear of the word processor— no mean feat, and one utterly indispensable to moving this project to completion. Finally, there is my truly extraordinary associate and collaborator, Brian Koukoutchos, J.D. 1983, who returned to Cambridge after a year’s clerkship with a federal district judge and who worked closely with me, both in the library and at the keyboard, to help me produce a work that 1. In addition to students too numerous to name who taught me as I tried to teach them, and many who assisted me on various research matters from time to time, the students who helped most notably with this edition — some of them on research projects they might long since have thought I had forgotten — include, from the Harvard Law School class of 1977, Carl Bryant Rogers; from the class of 1978, Steven Smith; from the class of 1982, Thomas Rollins; from the class of 1983, James G. Pope; from the class of 1984, Joan I. Greco, David A. Hoff¬ man, William A. Hunter, and David A. Sklansky; from the class of 1985, Chai R. Feldblum; from the class of 1986, John Q. Barrett, Brian S. Bix, Kenneth J. Chesebro, Dan Gordon, Elena Kagan, and Jeffrey R. Toobin; from the class of 1987, Michael Abney, Stephen G. Bates, John Burchett, Clifford A. Cantor, Scott D. Deatherage, Robert D. Denious, Paul A. Engelmayer, Kenneth J. Hansen, Valerie Johnson, Michael D. Landry, Bennett W. Lasko, Nina T. Pillard, Michael D. Ricciuti, Michael L. Selmi, and Rona Wittels; from the class of 1988, Jonathan S. Massey and Peter J. Rubin. Also very helpful was Kristina

Bielenberg, a 1986 graduate of Vermont Law School, who spent many hours proof¬ reading and suggesting corrections. To all of these talented individuals go my sincere thanks. And I want to single out for special appreciation, for work especially well done, and for help above and beyond the call of duty, a few of those named above: John Barrett (for work on Chapters 4 and 15), Stephen Bates (for especially extensive work on Chapter 14), Brian Bix (for work on Chapters 6 and 15), Kenneth Chesebro (for especially extensive work on Chapter 3), Paul Engelmayer (for work on Chapters 3 and 9), Kenneth Hansen (for work on Chapters 10 and 17), Elena Kagan (for work on Chapter 13), Jonathan Massey (for especially extensive work on Chapter 12), Nina Pillard (for work on Chapters 15 and 16), and Jeffrey Toobin (for work on Chapter 5 and especially extensive work on Chapter 12). 2. The combination of meticulousness, unflappability, and sheer intelligence such help has required in the case of this edition is almost beyond imagining. IV

PREFACE

TO THE SECOND

EDITION

almost certainly could not have been completed without him— and that would, even if completed, have been completed much less well.3 Brian’s combination of a searching mind and a sterling pen have made my long association with him among the few real pleasures of an effort that has entailed more struggle than joy. If there is anyone to whom I really want to dedicate this edition, though, it is my parents. My mother continues to love and encourage me, even if only from afar. My father has helped from an even greater distance. He died two years after the first edition was published, just before my first Supreme Court argument — in the Richmond Newspa¬ pers case4 — and just as I began to give thought to beginning this edition. He was a wonderful man, and I know how good this book would have made him feel. Laurence

H. Tribe

Cambridge, Mass. September, 1987 3. That is especially true of Chapters 4, 6, 15, and 16.

bias, I mention my role in Supreme Court cases that I argued.

4. See § 12-20, infra. Throughout this edition, so as to alert readers to possible *

V

PREFACE

TO THE

FIRST EDITION

This treatise ventures a unified analysis of constitutional law.* I have been tempted to state a more modest purpose, hoping to be measured by a more generous standard than this claim sets for the work, but that just wouldn’t wash. The book has been too long in the making, its scope too obviously embracing, for me to offer it as merely a collection of tentative, disconnected observations on constitutional topics (though parts of it are tentative) or as only a student guide (though it certainly is designed to guide students). I believe that another extended outline, a largely non-critical summa¬ ry of leading cases and black-letter rules, would not serve the real needs even of beginning students, let alone of scholars, practitioners, and officials sworn to uphold the Constitution. My conclusion, after a number of years of teaching and talking about constitutional law with all these groups, is that their needs are more shared than divergent, and that only a systematic treatment, rooted in but not confined to the cases, sensitive to but not centered on social and political theory, can offer a clear perspective on how the doctrines and themes of our constitutional law have been shaped, what they mean, how they interconnect, and where they are moving. I also think only such a treatment can provide a coherent foundation for an active, continuing, and openly avowed effort to construct a more just constitutional order. To achieve coherence without sacrificing nuance, I have relied heavi¬ ly upon Supreme Court decisions and less upon the decisions of other courts and non-judicial tribunals. Yet I do not regard the rulings of the Supreme Court as synonymous with constitutional truth. As Justice Robert Jackson once observed of the Court, “We are not final because we are infallible, but we are infallible only because we are final.” And the Courts that held slaves to be non-persons, separate to be equal, and pregnancy to be non sex-related can hardly be deemed either final or infallible. Such passing finality as judicial pronouncements possess is an essential compromise between constitutional order and chaos: the Consti¬ tution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and govern¬ mental practices. This process cannot be the special province of any single entity. Thus my central topic is the Constitution itself, not the Supreme Court as an institution. While addressing relevant issues of institutional capacities and roles, I do not stop at discussing the Court as the right or wrong forum to review a particular issue and render judgment; the more crucial question for me is whether the judgment * Criminal procedure, however, is con- rather than as a unified and complete sidered only in conjunction with other topics whole. • •

Vll

PREFACE

TO THE FIRST EDITION

itself was right or wrong as an element in the living development of constitutional justice.

While conceding the courts a less exclusive role as constitutional oracles, this book cedes them a greater authority — and duty — to advance that justice overtly. Judicial neutrality inescapably involves taking sides. The judgment of the Court, though it may be to elude an issue, in effect settles the substance of the case. Judicial authority to determine when to defer to others in constitutional matters is a procedural form of substantive power; judicial restraint is but another form of judicial activism. In advocating a more candidly creative role than conventional scholarship has accorded the courts, I see myself as a proponent more of self-awareness than of an altered balance of governmental power. Most of the worry about how far judges may go, however genuine it may be and however fashionable it is again becoming, strikes me as rote unreali¬ ty, profoundly misconceived in light of the inevitable social and cultural constraints on judicial intention and impact. Those constraints are perennially strong; they explain why the Supreme Court’s decisions, even those universally rejected in a later era, may be controversial when they are rendered but never seem unthinkable at that time. The inescapable boundaries of societal context and consciousness argue not that judges should restrain themselves still further, but that they must raise distinctive voices of principle. Though I express occasional reser¬ vations about judicial initiative in specific settings, I reject the assump¬ tions characteristic of Justices like Felix Frankfurter and scholars like Alexander Bickel: the highest mission of the Supreme Court, in my view, is not to conserve judicial credibility, but in the Constitution’s own phrase, “to form a more perfect Union” between right and rights within that charter’s necessarily evolutionary design. It should be plain by now that I do not shrink from offering forthright opinions in this book. For me, the morality of responsible scholarship points not at all to the classic formula of supposedly valuefree detachment and allegedly unbiased description. Instead such moral¬ ity points to an avowal of the substantive beliefs and commitments that necessarily inform any account of constitutional arguments and conclu¬ sions. I am convinced that attempts to treat constitutional doctrine neutrally elide important questions and obscure available answers. Therefore the reader will find this book taking explicit positions on the most troublesome problems in constitutional law. To understand the structure of those problems, as it is set forth here, and to understand the principles that bear on the solutions, one need not share my views — either about the proper role of judges or about the correct resolution of substantive constitutional controversies. Because such views are openly presented, and because I believe that contrary views are fairly consid¬ ered, the decision to forego an illusory neutrality can enhance the value of the book to all readers, who whether they agree, dissent, or wonder at any given point will know more of the values that may have influenced a • • •

Vlll

PREFACE

TO THE FIRST EDITION

particular judgment, which at bottom can never stand solely on a neutral base. Having said I would be open about my own views, I should state at the outset that I perceive in recent decisions of the Supreme Court a distressing retreat from an appropriate defense of liberty and equality. Given its remarkable activism in constraining the President vis-a-vis Congress and the courts and in limiting Congress vis-a-vis the States, the current Supreme Court cannot be understood as pursuing a modest institutional role. In truth no less activist than its predecessors, the Burger Court has been animated by a specific substantive vision of the proper relationship between individuals and government — a vision I regard as bordering on the authoritarian, unduly beholden to the status quo, and insufficiently sensitive to human rights and needs. I believe that the course of the Burger Court, at least in its first years, will eventually be marked not as the end of an era of exaggerated activism on behalf of individuals and minorities, but as a sad period of often opposite activism, cloaked in the worn-out if well-meant disguise of judicial restraint. Because I understand and respect other assessments, I do not take the correctness of my own view for granted, but rather undertake the case for it. Indeed, my reactions to the Burger Court are not uniformly negative. I reject the thesis that the Court is engaged merely in the dismantling of Warren Court doctrines, and I see much to commend in the current Court’s resurrection of economic rights through such provisions as the contract clause and in its efforts to enhance state and local autonomy and responsibility. Admittedly, though, I am more a critic than an admirer of the Burger Court— and in the end, differences of opinion on matters of this sort must turn on different axioms about issues too irreducible to be explored at length in a work on constitutional law. Still I prefer postulates honestly expressed to analyses whose underlying assumptions are obscured by the jargon of neutral principles and the language of “objective” legal description. Equally fundamental is my belief that the conventional ways even of stating the choices between

greater freedom

or equality, on the one

hand, and greater governmental power, on the other hand — and particu¬ larly the conventional emphasis on “balancing interests” as the states¬ manlike method of making such choices — are remarkably unilluminating as well as misleadingly ahistorical. I think that the evolution of constitu¬ tional doctrine can be far better understood in terms of a division of the subject into distinct models of constitutional argument that I believe have shaped, and continue to shape, that fundamental body of law. I introduce seven such models in Chapter 1; they are the central organiz¬ ing idea of the entire work. By showing how constitutional analysis has been structured over time, I hope not only to clarify otherwise confusing aspects of technical constitutional doctrine but also to expose otherwise concealed doctrinal connections and to reveal possibilities of freedom, equality, and fraternity latent in doctrinal alternatives. In short, I hope IX

PREFACE

TO THE FIRST EDITION

to provide not just a summary of constitutional rulings, but a system of thought about constitutional law. This should serve simultaneously to explicate the traditional approaches and to introduce ideas that go beyond them.

If the pages that follow begin to offer an alternative to the habit of reading the final words of constitutional wisdom solely in the entrails of specific Supreme Court opinions, I will be deeply gratified. But even if this book succeeds only in making more transparent the ideas and tensions that have directed our constitutional development, my invest¬ ment of years will have been rewarded. Acknowledgments

No one not in an author’s position can appreciate the full truth of the traditional disclaimer: it would be impossible to acknowledge ade¬ quately all those who have helped. Many Harvard colleagues — including Paul Bator, Derrick Bell, Abe Chayes, John Ely, Morton Horwitz, Milton Katz, Duncan Kennedy, Frank Michelman, and Richard Parker — have played roles for which I am deeply grateful. There were many research assistants and associates at Harvard and elsewhere whose energy and talent eased my burdens as the work progressed: Joseph Angland, Wynne Carvill, Michael Dell, Ruth Epstein, Ira Karasick, Arvid Roach, Dinah Seiver — and also Greg Ballard, Paul Berman, Richard Briffault, Paul Brown, Steven Calkins, Irwin Chemerinsky, Wayne Cypen, Chris Edley, Leslie Espinoza, Susan Estrich, Charles Garvin, Lisa Goldberg, Jeff Gordon, Allen Kenyon, John Koeltl, Michael Lampert, Joseph Love¬ land, Elliot Mincberg, Barbara O’Connor, David Oppenheimer, Jeffrey Pash, Dallas Perkins, Whit Peters, Bryant Rogers, Tom Rollins, Faith Shapiro, Steven Sirianni, Michael Sussman, Marc Temin, David Wade, and Tom Welch. I wish also to thank those in the Harvard Law School administration whose generous help made so large an undertaking possible; Dean Albert Sacks, Vice Dean William Bruce, and Elizabeth Stout were especially forthcoming with assistance. My former secre¬ tary, Linda Heinsohn, was a great help with the book’s earliest drafts. My administrative assistant and secretary, Cathy Durovich, deserves special mention for the extraordinary way in which she combined a wonderful tolerance and intelligence with thoroughness, competence, and plain hard work. I must single out four people in particular whose aid proved truly indispensable. One helped with so many chapters, and at so many stages of this undertaking, that his role was plainly more that of colleague than that of assistant: Patrick Gudridge, without whom this enterprise would have faltered often, contributed more than any routine acknowledgment could possibly suggest; his power and insight truly transformed the ambition and depth of the entire work. Likewise, David Drueding, Lisa Goldberg, and John Sexton, as my research associates during the final phases of the project, gave extensive and invaluable x

PREFACE

TO THE FIRST EDITION

assistance as both intellectual collaborators and untiring aides; they deserve special thanks for their extraordinarily perceptive contributions, as well as for their generously helping the entire effort along in some of its most discouraging moments. Finally, I add an expression of special gratitude to the several people whose forbearance and encouragement persuaded me to persist in those gloomy periods when I genuinely doubted that I had the will. Chief among those to whom I owe such very special thanks are my parents, my wife Carolyn, and my friend Sargent Shriver. It was a conversation with him one winter morning that convinced me not to abandon this project. It is to him, as well as to my parents, my wife, and my children Mark and Kerry, that I dedicate this book. Laurence Cambridge, Mass. November, 1977

xi

Tribe

SUMMARY

OF CONTENTS

Preface to the Second Edition .

..

Preface to the First Edition .

Page

iii vii

The Constitution of the United States of America .

xxxi

Table of Cases .

xlix

Chapter 1. Approaches to Constitutional Analysis .

1

Chapter 2. Model I— The Model of Separated and Divided Pow¬ ers .

18

Chapter 3. Federal Judicial Power .

23

Chapter 4. Federal Executive Power .

209

Chapter 5. Federal Legislative Power: Congressional Authority and the Implications of State Sovereignty . 297 Chapter 6. Federalism-Based Limits on State and Local Power: Regulation and Taxation of Commerce, Federal Su¬ premacy, and Problems of Interstate Discrimination 401 Chapter 7. Direct Protection of Individuals and Groups: Models Beyond the Separation and Division of Power . 546 Chapter 8. Model II — The Model of Implied Limitations on Gov¬ ernment: The Rise and Fall of Contractual Liberty 560 Chapter 9. Model III — The Model of Settled Expectations: Un¬ compensated Takings and Contract Impairments.... 587 Chapter 10. Model IV — The Model of Governmental Regularity: Ex Post Facto Laws, Bills of Attainder, and Procedu¬ ral Due Process . . .. 629 Chapter 11. Model V — The Model of Preferred Rights: Liberty Beyond Contract . 769 Chapter 12. Rights of Communication

and Expression .

785

Chapter 13. Rights of Political Participation .

1062

Chapter 14. Rights of Religious Autonomy .

1154

Chapter 15. Rights of Privacy and Personhood .

1302

Chapter 16. Model VI — The Model of Equal Protection . 1436 Chapter 17. Model VII — Toward a Model of Structural Justice? ..1673 Chapter 18. The Problem of State Action . 1688

Appendix — The Justices of the Supreme Court . Table of Authorities .

1721 1723

Index .

1755

*

xm

&;• ■

I •• ,:if .

' enp^lpf^P I

*

TABLE

OF CONTENTS

Page

Preface to the Second Edition .

..

iii

Preface to the First Edition .

vii

The Constitution of the United States of America . Table of Cases . CHAPTER

xxxi

__ .

1. APPROACHES TO ANALYSIS

xlix

CONSTITUTIONAL

Section

1-1 1-2 1-3 1-4 1-5 1-6 1-7 1-8 1-9

Overview: Seven Models of Constitutional Law . The Basic Pattern: Model I and the Roots of Models III and IV . The Civil War’s Impact: The Rise of Model II . The Depression: Collapse of Model II . The Post-Depression Models: III through VII . The Tension Between Containing Government and Har¬ nessing Its Capacities . The Antimajoritarian Difficulty . .. The Worry About Judicial Legitimacy: Guarding the Guardians . . The Limited Relevance of Institutional Questions .

CHAPTER

2. MODEL I— THE MODEL OF AND DIVIDED POWERS

Constitutional Law’s Interplay of Structure and Substance The Persistence of Model I: Independence and Interdepen¬ dence .

2-3

The Link Between Separation-of-Power Considerations and Controversies Over Federal-State Division .

3-2

3. FEDERAL

JUDICIAL

3-3

3-4

ality: Defining Marbury ’s Assumption . Judicial Review and the Problem of "Other Minds”: The Legitimacy of Differing Interpretations of the Constitu¬ tion .

3-6

5 7 7 8 10 12 15

18 18 20

POWER

Overview — Marbury v. Madison: Judicial Review as Axi¬ om . Judicial Review and Debate Over the Normative Breadth and Retroactive Reach of a Judgment of Unconstitution¬

3-5

2

SEPARATED

2-1 2-2

CHAPTER

1

23

26

32

Judicial Review in an Institutional Setting: The Paradox of Congressional Control of Federal Court Jurisdiction 42 The Antimajoritarian Difficulty Reexamined . 61 xv

TABLE OF CONTENTS Section Page 3-7 Overview — Limits on the Exercise of Federal Judicial Pow¬ er: The Requirement of a ''Case” or "Controversy” as Defined by the Doctrines of Justiciability . 3-8 3-9 3-10 3-11 3-12

Nonconstitutional Aspects of Justiciability Doctrine . The Ban on Advisory Opinions and the Problems of De¬ claratory or Partially Circumven table Judgments . . Ripeness . . Mootness . . Collusive Suits .

67 69 73 77 82 93

3-13 3-14 3-15

The Political Question Doctrine . 96 Standing: A Summary . 107 Injury in Fact as the Constitutional Core of the Standing Requirement: Its Application in Federal and State Courts . Ill

3-16 3-17

Injury in Fact: Defining Judicially Cognizable Harms ... 114 Injury in Fact: Citizen and Taxpayer Standing, and the

3-18

Policy Against Assertion of "Generalized Grievances” 124 Causation and Redressability: Tracing the Connection Be¬ tween the Litigant and the Litigation . .. . 129

3-19

The Policy Against Third-Party Standing and the Related Zone-of-Interests Test Favoring a Nexus Between the Party Seeking Standing and the Right Asserted . . 134

3-20

Standing of Organizations, States, and Legislators: The Question of Capacity .

3-21 3-22 3-23

Triangulating Standing: A Schematic Summary . Overview: Constitutional Limits on Federal Judicial Pow¬ er to Review or Control State Action... . . Limits on the Power of Federal Courts to Make Law . ..

145 154 155

Common 156

3-24

The Policy Against Federal Court Review of State Court

3-25

Decisions Resting on "Adequate and Independent State Grounds” . 162 Limits on the Power of Federal Courts to Entertain Suits Against States: The Eleventh Amendment and Its Sup¬ posed Exemplification of Sovereign Immunity . . . 173

3-26

3-27

Removing the Eleventh Amendment Shield: The Conun¬ drum of Constructive Waiver, and an Alternative Theo¬ ry of Eleventh Amendment Abrogation .

178

The Limits of the Eleventh Amendment: of Ex parte Young .

189

The Significance

3-28

Judicial Federalism: The Twin Policies of Preserving the Integrity of State Law and Respecting the Institutional Autonomy of State Judicial Systems . 195

3-29

Preserving the Integrity of State Law: Exhaustion of State Administrative Remedies and Pullman Abstention . 198

3-30

Preserving State Institutional Autonomy: Doctrine . xvi

The Younger

201

TABLE CHAPTER

OF CONTENTS

4. FEDERAL

EXECUTIVE

POWER

Section

Page

4-1

The Puzzle of the Presidency: Its Uneasy Truce With Constitutionalism _ . .. 209

4-2

The Constitutional and Extra-Constitutional Character of Presidential Power: An Overview of Its Interactions With Legislative Authority and an Introduction to Is¬ sues of Delegation . 210

4-3

The Legislative Veto: A Case Study In The Separation of Powers . . . 213

4-4

The Limits of Executive Authority in Foreign Affairs: The "Domestication” of International Policy . . . 219 Treaties and Executive Agreements . 225 The Impact of Federal Foreign Affairs Supremacy on State Action . 230

4-5 4-6 4-7

The President as Commander

in Chief: Constitutional

4-8 4-9 4-10 4-11

Control of the "Dogs of War” . The "Silent” Limits of "Inherent” Executive Authority.. The President as Chief Executive: Powers of Appointment The President as Chief Executive: Powers of Removal .. The President as Chief Executive: Powers of Prosecution and Pardon . . .

230 239 244 246 255

4-12

The President as Chief Executive: The Power to Spend or Not to Spend . 256

4-13

A Further Study in Negation: Analyzing, "Pocket”ing, and "Itemizing the Presidential Veto . The "Privileges and Immunities” of Executive Leadership: Limiting Criminal and Civil Liability .

262

4-15

The "Privileges and Immunities” of Executive Leadership: Secrets of State and Presidential Privacy .

275

4-16

Remedies for Presidential Abuse of Privilege: Congress’ Power to Say No .

285

4-14

Misdemeanors .

268

289

CHAPTER 5. FEDERAL LEGISLATIVE POWER: CONGRESSIONAL AUTHORITY AND THE IMPLICATIONS OF STATE SOVEREIGNTY 5-2

The Doctrine of Enumerated

5-3

The Doctrine of Implied Powers: All Laws Which Shall Be

5-4

"Necessary and Proper” . The Power to Regulate Interstate Commerce:

5-5

Powers .

298 300 Decline and

Rebirth of the "Substantial Economic Effect” Principle 305 Contemporary Commerce Clause Analysis: The "Cumula¬ tive Effect” Principle . 310 XVII

TABLE OF CONTENTS Section 5-6

5-7

Pag©

Contemporary Commerce Clause Analysis: The Power to Prohibit Interstate Commerce Under the "Protective” Principle . 311 Internal Limits on the Power of Congress to Regulate Interstate Commerce: The Politics of Federalism . 313

5-8

Judicial Review as Shaping the Politics of the Commerce Clause . _. - 316

5-9

The Tax Power .

5-10 5-11 5-12

The Spending Power . 321 Other Domestic Powers Granted Congress by Article I, § 8 324 Congressional Power to Enforce the Civil War Amend¬ ments: Overview . . 330

5-13

Congressional Power to Enforce the Thirteenth Amend¬ ment .

5-14

Congressional Power to Enforce the Fourteenth and Fif¬ teenth Amendments . 334

5-15

Congressional Power and the State Action Limit on Four¬ teenth and Fifteenth Amendment Guarantees . 350

5-16

Congressional Powers in Foreign Affairs: War, Immigra¬ tion, and Citizenship . .

318

331

353

5-17

Congressional Action and the Separation of Powers: The Problem of Delegation . 362

5-18

Congressional Action and the Separation of Powers: The Speech or Debate Clause . 370

5-19

Congressional Investigations and the Separation of Pow¬ ers: Legislative Autonomy and Judicial Review . 375

5-20

State Sovereignty as a Limit on Congressional Power: Overview .

5-21

State Sovereignty and the Jurisprudence of Rights: Using Individual Rights to Define State Roles . 385

5-22

From National League of Cities to Garcia: The Unsteady Course of the New States’ Rights . 386 The "Republican Form of Government” Clause as a Possi¬ ble Touchstone for Future States’ Rights Jurisprudence 397

5-23

ciple .

378

399

CHAPTER 6. FEDERALISM-BASED LIMITS ON STATE AND LOCAL POWER: REGULATION AND TAXATION OF COM¬ MERCE, FEDERAL SUPREMACY, AND PROBLEMS OF INTERSTATE DISCRIMINATION 6-2

Judicial Review of State Regulation of Interstate Com¬ merce: Historical Origins and Fundamental Considera¬ tions . 403

6-3 6-4

Early Interpretations of the Commerce Clause . The Cooley Doctrine: Bridge to the Modern Cases . xviii

404 406

TABLE

OF CONTENTS

Section

6-5

6-6 6-7 6-8 6-9

Page

Judicial Review of State Regulation of Interstate Com¬ merce: Contemporary Doctrine and the Theme of Politi¬ cal Representation . .. Restrictions on Access to Local Markets by Out-of-State Sellers and Suppliers . Restrictions on Access to Local Transportation Facilities by Out-of-State Users . Restrictions on Access by Out-of-State Buyers to Scarce Local Resources or Commodities: Price, Production, and Use Controls . Restrictions Which Put Pressure on Out-of-State Business¬ es to Relocate Within the Regulating State .

408 413 417 422 426

6-10 6-11 6-12

State "Ownership” of Natural Resources . 427 State Participation in the Market . 430 State Regulations Which Discourage Multi-State Business Structures . 434

6-13

A Doctrinal Underview: Economic vs. Other Concerns, Local Needs, and Less Restrictive Alternatives . The Case for Doctrinal Disarray: State Treatment of Outof-State Corporations . _. State Taxation of Interstate Commerce: Structuring the Constitutional Analysis . No Taxation Without Representation: The Basic Require¬ ments of Nexus and Fair Apportionment . Forbidden Discriminatory Taxes . . State Taxes Which Cumulatively Burden Interstate Com¬ merce .

6-14 6-15 6-16 6-17 6-18

436 439 441 445 453 459

6-19

Localizing the Subject Matter of a Tax as a Solution to the Problem of Cumulative Burdens . 460

6-20

Apportioning the Measure of a Tax as a Solution to the Problem of Cumulative Burdens . 465

6-21 6-22 6-23 6-24

State Regulation of Foreign Commerce . .. State Taxation of Foreign Commerce . Tax Immunity Under the Import-Export Clause . The Effect of the Twenty-First Amendment on the Opera¬ tion of the Commerce Clause.— .

6-25

The Effect of Federal Legislation on State Action: Pre¬ emption . Actual Conflict Between Federal and State Law . Federal Occupation of the Field . The Effect of the Presence of Relevant Federal Regulatory Agencies or of Federal Licensing on Preemption Deci¬ sions .

6-26 6-27 6-28

Clause

468 469 471 475 479 481 497 501

6-29

Use of Preemption Analysis Outside the Commerce Context .

6-30

The Special Role of Federal Supremacy in Direct Intergov¬ ernmental Confrontation: Immunizing Federal Institu¬ tions, Agents, and Contractors . 511 xix

508

TABLE OF CONTENTS Section 6-31 The Scope of Federal Tax Immunity . 6-32 Formalism, Realism, and the Role of Congress in Intergov¬ ernmental Immunity Cases . .. 6-33 Congressional Authorization and Ratification and Their Limits . . . .... — — . . . . . 6-34

Page 514 518 521

The Privileges and Immunities of State Citizenship: The Classic Doctrine..... . 528 ern Interpretation . .

532

CHAPTER 7. DIRECT PROTECTION OF INDIVIDUALS AND GROUPS: MODELS BEYOND THE SEPARATION AND DIVISION OF POWER

Pre-Civil War Era....... . 546 7-2 Fourteenth Amendment Privileges or Immunities: Histor¬ ical Background and Early Interpretation . 548 63Pr 5 ivileg es and Imofmuthe 7-3 The Inversion Glimpse at a nitiSlaughterhouse es of State CitiLogic: ze ns hip: The Mod¬ Boomerang........ . .. 553 ties: Phantom

or Phoenix? .

555

CHAPTER 8. MODEL II— THE MODEL OF IMPLIED LIMITATIONS ON GOVERNMENT: THE RISE AND FALL OF CONTRACTUAL LIBERTY Limitations .

. .

.

The Lochner Era: Model II Triumphant . . 7- 8-2 8-3The1 Model Scrutiny of Means-Ends Relationships . LimiteIPs d Nature o DirLegislative ect Federal Ends . 8-4 Model IPs Scrutinyf of . Protection 8-5 The Decline of Lochner: Internal Erosion .in the 8-6 The Decline of Lochner: External Assault . . .

560 567 568 570 574 578

CHAPTER 9. MODEL III— THE MODEL OF SETTLED EXPECTATIONS: UNCOMPENSATED TAKINGS AND CONTRACT IMPAIRMENTS

-

9-2 The 9-3

9-4 9-5 9-6

9-7 9-8

Ev

The Shift from Direct to Indirect Enforcement of the Ban on Takings for a Private Purpose . Pen4 umb al Career Tests The rTraditional Compensable Takings: Physical of Natifor onaofl Value, Takeover, Destruction Innocent Use . Privilegand es or Im muni¬ Regulatory Takings . .. .. Physical Invasions. . The Compensation Requirement as an Attempt to Limit Arbitrary Sacrifice of the Few to the Many . The Problematic Nature of Property..... . Early Applications of the Contract Impairment Clause xx

588 592 595 599 605

607 613

TABLE

OF CONTENTS

Section

Page

9-9

Invoking the Contract Clause to Protect Private Agree¬ ments . 615

9-10

Invoking the Contract Clause to Protect Public Commit¬ ments .

618

9-11

The Resurrection of the Contract Clause .

619

CHAPTER 10. MODEL IV— THE MODEL OF GOVERNMEN¬ TAL REGULARITY: EX POST FACTO LAWS, BILLS OF ATTAINDER, AND PROCEDURAL DUE PROCESS 10-1

The Values and Dimensions

10-2

The Ban on Ex Post Facto Laws: The Safeguard of Pros¬ pectivity . .. 632

10-3

Modern Ex Post Facto Doctrine: Problems of Prevention, Increased Punishment, and Altered Procedure .

637

The Ban of Bills of Attainder: Generality as a Supplemen¬ tary Safeguard . ..

641

10-5

Limiting Bill of Attainder Doctrine to Punitive Measures

650

10-6

Applying Bill of Attainder Doctrine to Non-legislative Ac¬ tion: Separation of Powers Considerations. . 656

10-7

Procedural Due Process: Intrinsic and Instrumental As¬ pects. . 663

10-8

The Development of Procedural Due Process Prior to 1970: Common-Law Interests and Unconstitutional Conditions 678

10-9

Extending Procedural Due Process Beyond the CommonLaw Core of Personal Interests .

10-10

The Narrowing of Protected Interests: Formalizing the Entitlement Concept . 694

10-11

Narrowing Turns to Erosion: Uses of the Entitlement Concept to Cut Back the Core .

10-4

of Governmental

Regularity 629

685

701

10-12

What Process Is Due: Identifying the Source of the Protec¬ tion to Be Accorded . — 706

10-13

What Process Is Due: Methods Protections .

10-14

Current Doctrine: The Relevance of Timing and the Need for More than Post-Deprivation Process .

of Specifying Required

714 718

10-15

Current Doctrine: Issues of Formality, Content, and Stan¬ dards of Proof . -. 732

10-16 10-17

Current Doctrine: Issues of Neutrality . Current Doctrine: Issues of Waiver .

10-18

Meaningful Access to Judicial Protection as a Separate Strand of Due Process Doctrine . 753

10-19

The Future of Procedural Due Process . xxi

744 749

760

TABLE

OF CONTENTS

CHAPTER 11. MODEL V— THE MODEL OF PREFERRED RIGHTS: LIBERTY BEYOND CONTRACT Section Page 11-1 The Basic Problem of Post-1937 Constitutional Law. . 769 11-2 Selective Incorporation of Bill of Rights Safeguards as a Partial Answer . ._ . 772 11-3 11-4

Beyond Incorporation: The Ninth Amendment and the "Rational Continuum5’ . _ . 774 True and False Starts in the Search for Substantive Rights 777 and Imposing a Penalty......... .

CHAPTER

12. RIGHTS OF COMMUNICATION EXPRESSION

781 AND

12-2

The Two Ways in Which Government Might "Abridge” Speech— And the Two Corresponding "Tracks” of First Amendment Analysis.. . 789

12-3

Separating Content-Based Abridgments From Those Inde¬ pendent of Expressive Content: Getting Onto Track One 794

12-4 Distinguishing Government’s Addition of Its Own Voice 11From Government’s Silencing of Others . . . 804 The 5 Elusive Distinc ion Between Motivated 12-5 Facially Neutral tAbridgments Content Cen¬ Withholdinby g a Subsidy sorship . . . 814 12-6

A Closer Look at the Relevance of Motive: The O’Brien Case . . . . . . . .. 821

12-7

The Persistent But Oversimplified Distinction Between Speech and Conduct . . . .. .. ..

12-8

The Structure of Track-One Analysis: Evaluating ContentBased Abridgments Under Chaplinsky’s Two-Level The¬ ory . . Clear and Present Danger: Advocacy of Lawless Action SClear yste1 Danger: "Fighting Words,” Vulgarities, mandof Present Free orExpOtherwise and Hostile ression......Special Audiences . ....... . . . of Justice Clear and Present Danger: The Administration . 785 and Alleged Conflicts Between Free Press and Fair Trial Defamation: From Personal Assault to Seditious Libel .. Defamation of Persons Other Than Public Officials . The Conflict Between Free Speech and Personal Control Over Information . . . . . . . .

12-9 2The 12-10 12-11 12-12 12-13 12-14

825

832 841 849 856 861 873 887

12-15

The Assimilation of Commercial Speech Into the First Amendment . . . . . 890

12-16 12-17

The Continuing Suppression of Obscenity . . 904 New Approaches to the Problem of Sexually Explicit Mate¬ rial: Pornography and Feminism . . . 920 XXII

TABLE OF CONTENTS Section Page 12-18 The New Theory of Content-Based Abridgments on Track One: From Mandatory Content Neutrality to Permissi¬ ble Content Discrimination . 928 12-19

Accommodating Rights to Know, Rights Not to Know, Open Minds, and Closed Communities .

944

12-20

The First Amendment Right to Know: Proceedings Pre¬ sumptively Open to the Public . 955

12-21

The First Amendment Right to Know: Preventing or Penalizing Dissemination of Information "Leaked” From Proceedings or Sources Not "Open to the Public” . 965 The First Amendment Right to Know: Protecting Confi¬ dentiality in News Gathering . 971

12-22 12-23

Government Abridgments of Speech Independent of Ex¬ pressive Content: Track-Two Analysis and Less Restric¬ tive Alternatives . 977

12-24

Public and Semi-Public Forums: From Streets and Parks to Special-Purpose Public Places and Institutions .

986

12-25 12-26

Private Forums: From Shopping Centers to the Media.. 998 The First Amendment Freedom of Association . 1010

12-27

Overbreadth: Facial Invalidation as the Response to De¬ terrent Effect . 1022

12-28

Requiring Substantial Overbreadth: The Diminishing Con¬ cern With Deterrence . 1024

12-29

The Limited Possibility of Judicial Reconstruction as an Alternative to Facial Invalidation: Trading Overbreadth for Vagueness Where First Amendment Privileges Can¬ not Be Categorically Defined . 1030

12-30

Further Limits on the Use of Saving Constructions: Feder¬ alism and Separation-of-Powers Considerations . 1032

12-31

Relations Between Vagueness and Overbreadth — The Void for Vagueness Doctrine . 1033

12-32 12-33

Third Party Standing in First Amendment Litigation: Dif¬ ferences Between Vagueness and Overbreadth . 1035 Facial Invalidation and Substantive Values in First

12-34

Amendment Jurisprudence: Less Restrictive Alterna¬ tives or Hidden Balancing? . 1037 Constitutional Limits on the Use of Prior Restraints: Two

12-35

Meanings of "Prior” . Pre-Publication Restraints: Their Procedural cance .

1039 Signifi¬

1042

12-36 12-37

Constitutionally Permissible Prior Restraints . 1045 First Amendment Due Process: Judicial Privacy in the Resolution of First Amendment Claims . 1054

12-38 12-39

The Problem of Overbroad Delegation . Procedural Overbreadth . xxiii

1055 1058

TABLE CHAPTER

13. RIGHTS

OF CONTENTS OF

POLITICAL

PARTICIPATIONPage

Section

13-1

Political Participation: Rights Poised Between Procedural Due Process and the Freedoms of Expression and Associ¬ ation . — . 1062

13-2 13-3 13-4 13-5

Apportionment . 1063 The Quantitative Dimension: One Person, One Vote . 1063 The Scope of the Guarantee . .. -. 1066 One Person, One Vote: The Requisite Approximation of Equality. . . . 1068

13-6

One Person, One Vote: Deviations Justified by a Legiti¬ mate State Goal.. . .1071

13-7

The Qualitative Dimension: Fair and Effective Represen¬ tation . .. .. 1074

13-8 13-9 13-10 13-11

Vote Dilution and Racial Groups . Vote Dilution and Political Groups . . . Restrictions on the Franchise . . .

13-12

Residency, Durational Residency Requirements, and Vot¬ ing . .1088

13-13

Implications of Voter Residency Requirements for Exclu¬ sionary Zoning..... . .. 1091 Voting by Military Personnel or Others Initially Moving to a Community for a Limited Purpose . 1091 Poll Taxes and Literacy Tests . .. 1092 Disenfranchising Persons Convicted of Crime or Awaiting Trial . .. 1094

13-14 13-15 13-16

1076 1080 ...1084

Restricting the Franchise to "Primarily Interested” Per¬ sons.. ..... . 1086

13-17

The Power to Recognize Distinctive Voter Interests in Direct Referendum Elections... . .. .1095

13-18

Regulation of Candidates, Campaigns, Elections .

13-19 13-20 13-21 13-22 13-23 13-24 13-25 13-26 13-27 13-28 13-29 13-30 13-31

Conventions, and 1097

Candidate Eligibility Requirements . .. 1098 Party Organization and Political Support . .....1101 Candidate Filing Fees. . . .1111 Party Autonomy versus Governmental Regulation . 1112 State Action Problems in Political Party Activity . ....1118 Party Affiliation Requirements . 1121 Equal Representation in the Party Nominating Process 1126 Regulation of Campaign Speech.... . .1129 Campaign Finance: General Considerations . 1132 Contribution Limits . 1136 Expenditure Limitations . Subsidies to Candidates . Disclosure Provisions .

xxiv

1141 1148 ....1151

TABLE CHAPTER

OF CONTENTS

14. RIGHTS

OF

RELIGIOUS

AUTONOMY

Page

Section

14-1

The Relation of Religious Autonomy tional Concerns . ..

14-2 14-3

Constitutional Text and History: The Religion Clauses ..1155

14-4 14-5

to Other Constitu¬

1154

Framers’ Intent, Pre-Adoption History, and Post-Adoption History as Aids to Understanding . 1158 Attempts to Reconcile the Two Clauses: Forbidden, Per¬ missible, and Required Accommodation . 1166 A Case Study of Forbidden, Permissible, and Required Accommodation: Religious Exercises and Public Schools . . .. 1169

14-6 14-7 14-8

Defining "'Religion” in the First Amendment _ _ 1179 Neutrality . .. .. . . 1188 The Free Exercise Principle as Dominant in Cases of Conflict . .. . . . . . . 1201

14-9 14-10 14-11 14-12

The Requirement of Secular Purpose . 1204 The Requirement of Secular Effect . 1214 The Requirement of No Excessive Entanglement . 1226 The Requirement That Free Exercise Claimants Show Sincerity and Religious Burden . . 1242 The Requirement That the State Show That Only Uniform Enforcement Can Achieve an Unusually Important End . . .. . ..1251

14-13

14-14

The Entanglement

Concept Disentangled:

Distinguishing

the Mandated Separation of Religious and Governmen¬ tal Power From the Forbidden Separation of Religion and Politics . .. ....1275

14-15 14-16

Official Acknowledgment Values . .

15-2

of Religious 1284

Tensions Between Religious Autonomy and Religious Com¬ munity . .. .. 1297

CHAPTER 15-1

and Endorsement

15. RIGHTS OF PRIVACY PERSONHOOD

AND

Attempts to Classify the Kinds of Interests That Count as Privacy . . . 1302 The Significance and Substance of Rights of Personhood . 1304

15-3 15-4

Sources of Protected Rights of Personhood . ....1308 Points of Intersection Between Personhood and Law . 1312

15-5

Governmental Shaping of the Mind: Mandatory tion and Liberty of Conscience .

15-6 15-7

Incanta¬ 1314

Governmental Shaping of the Mind: Compulsory Educa¬ tion and Freedom of Inquiry . 1318 Governmental Shaping of the Mind: Screening the Sources of Consciousness. . 1321 xxv

TABLE OF CONTENTS Section 15-8 Governmental Shaping of the Mind: Coercive Condition¬ ing . 15-9 Governmental Intrusion on the Body: From Physical Inva¬ sion to Gross Neglect . 15-10 Governmental Control Over the Body: Decisions About Birth and Babies . .. 15-11 15-12 15-13 15-14 15-15 15-16

Governmental Control Over the Body: Decisions About Death and Dying . Governmental Interference With Choice of Life Plan, Pat¬ tern, or Style: Risk-Taking . Life Plan or Style: Vocation . . Life Plan or Style: Travel . -. Life Plan or Style: Appearance and Apparel . Controlling a Life’s Informational Traces: Reputation and Records .

1326 1329 1337 1362 1371 1373 1378 1384 1389

15-17

The Dual Character of Associational Rights .

15-18

Bounding the Community’s Power Over Persons: Harms Existing Only in the Mind of the Beholder.... . 1409

15-19

Bounding the Community’s Power Over Persons: Conduct Occurring Within Protected Sanctuaries . 1412

15-20

Bounding the Community’s Power Over Persons: Choices Implicit in Special Personal Relationships — Families and Other Intimate Communities . .. 1414 Orientation . CHAPTER

16-2 16-3 16-4

16. MODEL VI— THE MODEL EQUAL PROTECTION

1400

1421 OF

The Basic Requirement of Minimum Rationality . 1439 The Conceivable Basis Test and Covertly Heightened Scru¬ tiny . 1443 The Pros and Cons of Approximation: Underinclusiveness and Overinclusiveness. . 1446

16-5 16-6 16-7 16-8

Rationality and Restraint: Beyond Pluralism . .. Equal Protection Strict Scrutiny . Inequalities Bearing on Fundamental Rights . The Fundamental Right to Interstate Travel .

16-9

Intersection of Model V "Preferred Rights” and Model VI "Equality of Rights” . 1458 The Fundamental Right to Equal Voting Opportuni¬ ty . 1460 The Fundamental Right to Equal Litigation Opportunity ..1461 Rights Deemed Fundamental Because of Feared Invidious Discrimination . 1463

16-10 16-11 16-12 16-13

5

^*age

1451 1451 1454 1455

Suspect Classifications and Forms of Invidious Govern¬ ment Action . 1465

The FutuFacially Invidious Discrimination: Racial and Ancestral 16-14 re2 of Priv1 Minorities acyandandthe Special Case of Indian Tribes . 1466 Personho xxviod: Sex and Sexual

TABLE

Page

OF CONTENTS

Section

16-15 16-16 16-17 16-18 16-19

'"Separate But Equal” Discrimination . . . . . 1474 "Neutral” Governmental Reflection of Private Preju¬ 1480 . . . . .. . . dice . The Application of Equal Protection Principles to a State's Entire Legal and Governmental Apparatus . 1482 The Developing Law of School Desegregation Remedies 1488 Inadequate tion .

Remedies:

The

Case

of School

Desegrega¬

1493

16-20

The Problem of Discriminatory Purpose: When Reserva¬ tions About Remedies Masquerading as Questions About the Existence of Constitutional Violations . 1502

16-21

Making Sense of the Equal Protection Clause: A Right Not to Be Subjugated . .. .. 1514 Affirmative Action: Governmental Attention to Race in

16-22

Redressing

Past

Injury,

Combatting

Persistent

Prejudice, or Pursuing Goals of Diversity and Integra¬ tion . . . . . . . . . . . 1521

16-23 16-24 16-25 16-26

Discrimination Against Aliens: Broadening the Concept of Suspect Classification.. . 1544 Discrimination. Against Illegitimates . . . . 1 553 Gender Discrimination: The Early Acceptance of Prejudiced Laws . .1558 Gender Discrimination: The Emerging Condemnation of Explicit Sex-Role Stereotyping Under Standard of Review .

16-27 16-28 16-29 16-30 16-31 16-32

16-33

an Intermediate

1561

"Benign” Gender Discrimination . . 1565 The Tangled Web of Gender Discrimination: Using One Discriminatory Practice to Justify Another . 1571 Equal Protection and "Real” Case of Pregnancy . Gender Discrimination ment. . . .

and

Gender the Equal

Differences: The Rights Amend¬

1577 1585

Age-Based and Disability-Based Discrimination: New Ho¬ rizons for Semi-Suspect Classifications . . . . 1588 Cataloguing the Techniques of Intermediate Review: As¬ sessing Importance, Demanding Close Fit, Altering Per¬ spective, Requiring Current Articulation, Limiting Af¬ terthought, and Permitting Rebuttal . 1601 Identifying the Circumstances That Trigger Intermediate Review . 1610

16-34

Intermediate Remedies: The Irrebuttable Presumption Doctrine . 1618

16-35

Equal or Minimal Law .

16-36

The Early Emergence of Poverty as a Potentially Suspect Criterion for Legislative Discrimination . . . 1626

16-37

Equal Justice for Rich and Poor Alike: The Basic Prem¬ 1627 ises .

Protection: Poverty in Constitutional . 1625

xxvii

TABLE

OF CONTENTS

Page

Section

16-38

Criminal Justice: Equal Access to State Court Review of Criminal Convictions . . 1629

16-39 16-40

Criminal Justice: Equalizing the 'Trice” of Liberty . 1633 Criminal Justice: Investigatory and Prosecutory Re¬ form . 1634 Criminal Justice: Recoupment Schemes . .1636

16-41 16-42

Criminal Justice: Substantive Requirements of Specifi¬ city . 1636 Civil Justice: A Judicial Hearing at a Meaningful Time . . . 1637

16-43 16-44

Civil Justice: Equal Access to Divorce Proceedings Under the Due Process Clause . .. 1639

16-45 16-46

Equal Access to Courts Through Concerted Action . 1640 Equal Participation in the Political Process: Demise of the Poll Tax . 1641

16-47

Demise of Property Ownership as a Means of Voter Quali¬ fication . . 1642

16-48 16-49

Equal Access to the Ballot for Political Candidates . 1642 Welfare Rights: The Guarantee of Distribution With an Even Hand and the Implicit Recognition of Affirmative Duties to the Poor . 1643

16-50

Welfare Distribution With an Even Hand — Criteria of Eligibility.. . 1645 Decline of Judicial Intervention on Behalf of the Poor: The Triumph of the State Fisc and the Sterilization of Griffin, Douglas and Boddie . 1647 Decline But Not Demise of Judicial Intervention on Behalf of the Poor: Minimal Protection of the Laws . 1653 Fuentes v. Shevin Revisited . . . 1660 Brotherhood of Railway Trainmen Restrained . 1660 Bullock v. Carter Restricted . 1661

16-51

16-52 16-53 16-54 16-55 16-56

Pre-termination Hearings: The Requirement of a Showing of Desperation . 1662 Rights Among the Poor: A Minimally Even Hand Suf¬ fices . 1662

16-57 16-58

A Right to What Money Can Buy: Understanding Valtierra, Rodriguez, and Salyer . 1665 Reconciling Room at the Top With Protection at the Bot¬ tom . 1671

16-59

CHAPTER

17. MODEL VII— TOWARD A MODEL STRUCTURAL JUSTICE?

OF

17-1 17-2

The Relevance of Structure to Substance . 1673 Two Ways in Which Structure May Be Relevant: Rules and Principles . 1677

17-3

Two Levels at Which Structural Analysis Plays a Role: Due Process of Lawmaking and Due Process of Lawapplying . 1682 xxviii

TABLE CHAPTER

18. THE

OF CONTENTS

PROBLEM

OF

STATE

ACTION

Section

Page

18-1 18-2

The Lessons of "Anti-doctrine” . .. 1688 The Dialectic of Purpose and the Inevitable Indeterminacy

18-3

of Contemporary State Action "Doctrine” . 1691 The State Action Requirement in a Pluralist Jurispru¬ dence of Rights . 1698

18-4 18-5 18-6

18-7

State Action and "Color of Law” . The "Public Function” Cases . Common Law as a Subject of State Action Theory: The Role of Constitutional Rights in Fixing the Relevant Level of Analysis . The Positive State as a Subject of State Action Theory: The Role of Governmental Carrots and Sticks in Fixing the Relevant Level of Analysis .

Appendix — The Justices of the Supreme Table of Authorities Index .

Court .

.

..

1703 1705

1711

1715 1721 1723

.

.. *

XXIX

1755

:

m

THE CONSTITUTION OF THE UNITED OF AMERICA

STATES

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Article

I

Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section 2. [1] The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. [2] No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. [3] Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Mary¬ land six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. [4] When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. [5] The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Section 3. [1] The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. xxxi

UNITED

STATES

CONSTITUTION

[2] Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make tempora¬ ry Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. [3] No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. [4] The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. [5] The Senate shall chuse their other Officers, and also a Presi¬ dent pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. [6] The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. [7] Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law. Section 4. [1] The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. [2] The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section 5. [1] Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attend¬ ance of absent Members, in such Manner, and under such Penalties as each House may provide. [2] Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concur¬ rence of two thirds, expel a Member. xxxii

UNITED

STATES

CONSTITUTION

[3] Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. [4] Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section 6. [1] The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. [2] No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. Section 7. [1] All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. [2] Every Bill which shall have passed the House of Representa¬ tives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approves he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return in which Case it shall not be a Law.

[3] Every Order, Resolution, or Vote, to Which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of

xxxm

UNITED

STATES

CONSTITUTION

the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. Section 8. [1] The Congress shall have Power To lay and Taxes, Duties, Imposts and Excises, to pay the Debts and provide common Defence and general Welfare of the United States; Duties, Imposts and Excises shall be uniform throughout the States; [2] To borrow Money

collect for the but all United

on the credit of the United States;

[3] To regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes;

the

[4] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; [5] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; [6] To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; [7] To Establish Post Offices and Post Roads; [8] To promote the Progress of Science and useful Arts, by secur¬ ing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; [9] To constitute Tribunals inferior to the supreme Court; [10] To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; [11] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; [12] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; [13] To provide and maintain a Navy; [14] To make Rules for the Government and naval Forces;

and Regulation of the land

[15] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [16] To provide for organizing, arming, and disciplining, the Mili¬ tia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; [17] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; — And xxxiv

UNITED

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CONSTITUTION

[18] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Section 9. [1] The Migration or Importation of Such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. [2] The Privilege of the Writ of Habeas Corpus shall not be sus¬ pended, unless when in Cases of Rebellion or Invasion the public Safety may require it. [3] No Bill of Attainder or ex post facto Law shall be passed. [4] No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. [5] No Tax or Duty shall be laid on Articles exported from any State. [6] No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State be obliged to enter, clear, or pay Duties in another. [7] No Money shall be drawn from the Treasury, but in Conse¬ quence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. [8] No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section 10. [1] No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. [2] No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolute¬ ly necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. [3] No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign xxxv

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CONSTITUTION

Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. Article

II

Section 1. [1] The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: [2] Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. [3] The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greater Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. [4] The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. [5] United eligible to that Years,

No person except a natural born Citizen, or a Citizen of the States, at the time of the Adoption of this Constitution, shall be to the Office of President; neither shall any Person be eligible Office who shall not have attained to the Age of thirty five and been fourteen Years a Resident within the United States.

[6] In case of the removal of the President from Office, or of his Death, Resignation or Inability to discharge the Powers and Duties of xxxvi

UNITED

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the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, tion or Inability, both of the President and Vice President, what Officer shall then act as President, and such Officer accordingly, until the Disability be removed, or a President elected. [7] The President shall, at stated Times, receive Compensation, which shall neither be encreased nor the Period for which he shall have been elected, receive within that Period any other Emolument States, or any of them.

Resigna¬ declaring shall act shall be

for his Services, a diminished during and he shall not from the United

[8] Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitu¬ tion of the United States.” Section 2. [1] The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. [2] He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Minis¬ ters and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise pro¬ vided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

[3] The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consid¬ eration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. xxxvn

UNITED

STATES

CONSTITUTION

Section 4. The 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 Misde¬ meanors. Article

III

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. Section 2. [1] The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authori¬ ty; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Contro¬ versies between two or more States; — between a State and Citizens of another State; — between Citizens of different States; — between Citizens of the same State claiming Lands under the Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. [2] In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before men¬ tioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [3] The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section 3. [1] Treason against the United States, shall consist only in levying War against them, or, in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. [2] The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained. Article

IV

Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. xxxviii

UNITED

STATES

CONSTITUTION

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Section 2. [1] The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. [2] A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. [3] No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. Section 3. [1] New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. [2] The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Proper¬ ty belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Article

V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. xxxix

UNITED

STATES

CONSTITUTION

Article VI

[1] All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. [2] This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [3] The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. Article VII The Ratification of the Conventions of nine States shall be suffi¬ cient for the Establishment of this Constitution between the States so ratifying the Same. ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTI¬ TUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION.

Amendment

I [1791]

Congress shall make no law respecting an establishment of reli¬ gion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Amendment

II [1791]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Amendment

III [1791]

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. xl

UNITED

STATES

CONSTITUTION

Amendment

IV [1791]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment

V [1791]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or proper¬ ty, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment

VI [1791]

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Amendment

In exceed no fact United

VII [1791]

Suits at common law, where the value in controversy shall twenty dollars, the right of trial by jury shall be preserved, and tried by jury, shall be otherwise re-examined in any Court of the States, than according to the rules of the common law. Amendment

VIII [1791]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment

IX [1791]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment

X [1791]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respective¬ ly, or to the people. xli

UNITED

STATES

CONSTITUTION

Amendment

XI [1798]

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Amendment

XII [1804]

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as VicePresident, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — The Presi¬ dent of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for Presi¬ dent, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Repre¬ sentatives shall not choose a President whenever the right of choice shall devolve upon them before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. — The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. Amendment

XIII [1865]

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. xlii

UNITED

STATES

CONSTITUTION

Section 2. Congress shall have power to enforce this article by appropriate legislation. Amendment

XIV

[1868]

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole num¬ ber of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitu¬ tion of the United States, shall have engaged in insurrection or rebel¬ lion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropri¬ ate legislation, the provisions of this article.

xliii

UNITED

STATES

Amendment

CONSTITUTION

XV [1870]

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. Amendment

XVI [1913]

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the sever¬ al States, and without regard to any census or enumeration. Amendment

XVII [1913]

[1] The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. [2] When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided , That the legislature of any State may empower the executive thereof to make temporary appoint¬ ments until the people fill the vacancies by election as the legislature may direct. [3] This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Amendment

XVIII [1919]

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several States shall have concur¬ rent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. xliv

UNITED

STATES

Amendment

CONSTITUTION XIX

[1920]

[1] The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. [2] Congress shall have power to enforce this article by appropriate legislation. Amendment

XX

[1933]

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If the President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice Presi¬ dent shall have qualified. Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have de¬ volved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission. Amendment

XXI

[1933]

Section 1. The eighteenth article of amendment tion of the United States is hereby repealed.

to the Constitu¬

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein xlv

UNITED

STATES

CONSTITUTION

of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Amendment

XXII [1951]

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of Presi¬ dent or acting as President during the remainder of such term. Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Amendment

XXIII [1961]

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment

XXIV

[1964]

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. Section 2. The Congress shall have power to enforce this article by appropriate legislation. xlvi

UNITED

STATES

CONSTITUTION

Amendment

XXV

[1967]

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office. Amendment

XXVI

[1971]

Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. Section 2. The Congress shall have power to enforce this article by appropriate legislation. *

xlvii

TABLE

OF CASES

References are to Pages

Abate v. Mundt, 403 U.S. 182 (1971), 1073 Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), 77, 78 Abel v. United States, 362 U.S. 217 (1960), 359 Aberdeen & Rockfish R. Co. v. Students

Aetna Life Ins. Co. v. Lavoie, 475 (1986), 673, 745, 885 Aetna Life Ins. Co. of Hartford, Haworth, 300 U.S. 227 (1937), Affiliated Capital Corp. v. City of

Challenging Regulatory Agency Proce¬ dures (S.C.R.A.P.), 422 U.S. 289 (1975), 118 Ableman v. Booth, 62 U.S. 506 (1858), 381 Abney v. United States, 431 U.S. 651 (1977), 755 Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), 787, 796, 804, 806, 807, 1014, 1315, 1317

Africa v. Com. Pa., 662 495 F.2d“ 1025 (1981), 735 F.2d 1555of (1984), 1182 Afroyim v. Rusk, 387 U.S. 253 (1967), 356, 357 Aftanase v. Economy Baler Co., 343 F.2d 187 (1965), 40 Agins v. City of Tiburon, 447 U.S. 255 (1980), 597 A.G. Spalding & Bros. v. Edwards, 262 U.S. 66 (1923), 473 Aguiar, People v., 257 Cal.App.2d 597, 65 Cal.Rptr. 171 (1968), 1325 Aguilar v. Felton, 473 U.S. 402 (1985), 119, 1175, 1225, 1226, 1227, 1230, 1278, 1281 Ake v. Oklahoma, 470 U.S. 68 (1985), 716, 756, 1635 Akron, City of v. Akron Center for Repro¬ ductive Health, Inc., 462 U.S. 416 (1983), 1341, 1343, 1347, 1357, 1655, 1656 Alabama Public Service Com’n v. Southern Ry. Co., 341 U.S. 341 (1951), 197 Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945), 73 Alabama, State of v. King & Boozer, 314 U.S. 1 (1941), 514, 516, 517, 518 Alabama, State of v. State of Arizona, 291 U.S. 286 (1934), 74 A.L.A. Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935), 307, 308, 368, 369 Alaska v. Arctic Maid, 366 U.S. 199 (1961), 457 Alaska Airlines, Inc. v. Brock, 107 S.Ct. 1476 (1987), 215, 217 Alaska Pacific Fisheries Co. v. United States, 248 U.S. 78 (1918), 1472 Albertini, United States v., 472 U.S. 675 (1985), 482, 996 Albertson, State v., 93 Idaho 640, 470 P.2d 300 (1970), 1372 Albertson v. Subversive Activities Control Bd., 382 U.S. 70 (1965), 1021 Alderman v. United States, 394 U.S. 165 (1969), 276 Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 (1981), 500 Alexander v. Choate, 469 U.S. 287 (1985), 1595

A Book Named 'John Cleland’s Memoirs of a Woman of Pleasure’ v. Attorney Gener¬ al of Com. of Mass., 383 U.S. 413 (1966), 908, 909 Abrams v. United States, 250 U.S. 616 (1919), 786, 842, 843 A

Citizen’s Complaint Against Pacifica Foundation WBAI (FM), In re, 56 F.C.C.2d 94 (1975), 936 Adair v. United States, 208 U.S. 161 (1908), 307, 572, 573 Adams v. Richardson, 356 F.Supp. 92 (1973), 1491 Adams v. Southern California First Nat. Bank, 492 F.2d 324 (1973), 1712 Adams v. State, 260 Ind. 663, 299 N.E.2d 834 (1973), 1331 Adams v. Tanner, 244 U.S. 590 (1917), 569, 574 Adamson v. People of State of California, 332 U.S. 46 (1947), 670, 678, 772, 774 Adderley v. State of Fla., 385 U.S. 39 (1966), 826, 997 Addington v. Texas, 441 U.S. 418 (1979), 688, 740, 741, 752, 1329 Addyston Pipe & Steel Co. v. United States, 175 U.S. Ill (1899), 308 Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), 1703, 1705, 1711 Adkins v. Children’s Hospital of District of Columbia, 261 U.S. 525 (1923), 569, 570, 573, 574, 1560 Adler v. Board of Education of City of New York, 342 U.S. 485 (1952), 81 Aero Mayflower Transit Co. v. Board of Railroad Com’rs, 332 U.S. 495 (1947), 445 Aetna Ins. Co. v. Kennedy, 301 U.S. 389 (1937), 749 Tribe-Amer. Const. Law 2nd Ed. UTB — 2

xlix

U.S. 813 Conn. v. 74, 82 Houston,

TABLE

OF CASES

Alexander v. Louisiana, 405 U.S. 625 (1972), 1484 Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976), 102 Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592 (1982), 147, 148, 149 Allan v. State, 91 Nev. 650, 541 P.2d 656 (1975), 1432 Allee v. Medrano, 416 U.S. 802 (1974), 89, 207

American Civil Liberties Union of Illinois v. City of St. Charles, 794 F.2d 265 (1986), 1295, 1296 American Communications Ass’n v. Douds, 339 U.S. 382 (1950), 645, 648, 654, 1015, 1155 American Federation of State, County, and Mun. Employees, AFL-CIO (AFSCME) v. State of Wash., 770 F.2d 1401 (1985), 1576 American I.N.S. Co. v. 356 Bales of Cotton, 26 U.S. 511 (1828), 51, 52, 55, 157

Allegheny County, United States v., 322 U.S. 174 (1944), 517 Allen v. McCurry, 101 S.Ct. 411 (1980), 202 Allen v. Morton, 495 F.2d 65, 161 U.S.App.D.C. 239 (1973), 1288 Allen, United States v., 760 F.2d 447 (1985), 1186, 1187 Allen v. Wright, 468 U.S. 737 (1984), 34, 68, 108, 109, 111, 114, 124, 129, 130, 131, 135, 142 Allenberg Cotton Co., Inc. v. Pittman, 419 U.S. 20 (1974), 440

American Motorcycle Ass’n v. Davids, 11 Mich.App. 351, 158 N.W.2d 72 (1968), 1371 American Oil Co. v. Neill, 380 U.S. 451 (1965), 446 American Party of Texas v. White, 415 U.S. 767 (1974), 85, 1106, 1107, 1110, 1111 American Power & Light Co. v. Securities & Exch. Com’n, 390 U.S. 90 (1946), 364 Americans United for Separation of Church and State, Inc. v. United States Dept, of Health, Ed. and Welfare, 619 F.2d 252 (1980), 127 American Surety Co. v. Baldwin, 287 U.S. 156 (1932), 738 American Tel. & Tel. Co. v. F.C.C., 539 F.2d 767, 176 U.S.App.D.C. 288 (1976), 288 American Tel. & Tel. Co., United States v., 567 F.2d 121, 185 U.S.App.D.C. 254 (1977), 286 American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490 (1981), 368, 1681 American Trucking Associations, Inc. v. Scheiner, 107 S.Ct. 2829 (1987), 445, 457 Ameron, Inc. v. United States Army Corps of Engineers, 809 F.2d 979 (1986), 251 Ames v. State of Kansas, 111 U.S. 449 (1884), 43 Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), 975 Amoco Production Co. v. Village of Gambell, Alaska, 107 S.Ct. 1396 (1987), 1474 Anastaplo, In re, 366 U.S. 82 (1961), 1020 Anders v. State of Cal., 386 U.S. 738 (1967), 1631, 1632, 1637, 1647 Anderson v. Celebrezze, 460 U.S. 780 (1983), 85, 1097, 1103, 1108, 1109, 1125 Anderson v. City of Boston, 376 Mass. 178, 380 N.E.2d 628 (1978), 795 Anderson v. Dunn, 19 U.S. 204 (1821), 376 Anderson v. Laird, 437 F.2d 912 (1971), 1385 Anderson v. Laird, 316 F.Supp. 1081 (1970), 1155

Allen-Bradley Local No. 1111 United Elec. Radio and Machine Workers of America v. Wisconsin Employment Relations, 315 U.S. 740 (1942), 497, 504 Allgeyer v. State of Louisiana, 165 U.S. 578 (1897), 554, 567, 1309 Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959), 454, 1443 Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978), 620, 622, 623, 624, 626 Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985), 491 Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470 (1973), 590 Aloha Airlines, Inc. v. Director of Taxation of Hawaii, 464 U.S. 7 (1983), 482 Amalgamated Ass’n of St., Elec. Ry. and Motor Coach Emp. of America v. Lockridge, 403 U.S. 274 (1971), 498, 502, 504 Amalgamated Food Emp. Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), 999, 1000, 1705, 1709, 1710 Ambach v. Norwick, 441 U.S. 68 (1979), 1549, 1614 American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323 (1985), 861, 921, 923, 1028, 1058 American Booksellers Ass’n, Inc. v. Hudnut, 598 F.Supp. 1316 (1984), 922, 923 American Can Co. v. Oregon Liquor Con¬ trol Commission, 15 Or.App. 618, 517 P.2d 691 (1973), 415 American Civil Liberties Union v. City of Birmingham, 791 F.2d 1561 (1986), 1291 American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (1983), 1285

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), 271, 867, 878, 879, 1588 Anderson v. Martin, 375 U.S. 399 (1964), 1481 Anderson v. Sills, 56 N.J. 210, 265 A.2d 678 (1970), 1389

1

TABLE

OF CASES Aronow v. United States, 432 F.2d 242 (1970), 1296 Aronson v. Quick Point Pencil Co., 440 U.S. 257 (1979), 509 Arsenault v. Com. of Mass., 393 U.S. 5 (1968), 30 Arver v. United States, 245 U.S. 366 (1918), 549

Anderson, State ex rel. v. Brand, 303 U.S. 95 (1938), 164, 619 Andrus v. Allard, 444 U.S. 51 (1979), 593, 597, 599 Anglo-Chilean N. Sales Corp. v. State of Alabama, 288 U.S. 218 (1933), 474 Ansonia Bd. of Educ. v. Philbrook, 107 S.Ct. 367 (1986), 1194 Antelope, United States v., 430 U.S. 641, (1977), 1470, 1472 Antelope, United States v., 523 F.2d 400 (1975), 1472 Antoine v. Washington, 420 U.S. 194 (1975), 1473, 1474 Apodaca v. Oregon, 406 U.S. 404 (1972), 773

Asarco Inc. v. Idaho State Tax Com’n, 458 U.S. 307 (1982), 453, 467 Ashcroft v. Mattis, 431 U.S. 171 (1977), 80 Ashland Oil, Inc. v. F.T.C., 409 F.Supp. 297 (1976), 276 Ashley v. City of Macon, Ga., 505 F.2d 868 (1975), 1385 Ashton v. Cameron County Water Im¬ provement Dist. No. 1, 298 U.S. 513 (1936), 307, 381, 382, 386 Ash wander v. Tennessee Valley Authority, 297 U.S. 288 (1936), 71, 329, 1030 Askew v. American Waterways Operators Inc., 411 U.S. 325 (1973), 304, 497, 499 Associated Press v. United States, 326 U.S. 1 (1945), 998 Association of Data Processing Service Or¬ ganizations, Inc. v. Camp, 397 U.S. 150 (1970), 115, 142 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985), 175, 180, 181, 182, 183, 186, 187, 188, 324 Atchison, T. & S.F. Ry. Co. v. Railroad Commission, 283 U.S. 380 (1931), 408 Atkins v. Parker, 472 U.S. 115 (1985), 687, 711

Appeal of (see name of party) Application of (see name of party) Aptheker v. Secretary of State, 378 U.S. 500 (1964), 769, 775, 963, 1017, 1023, 1031, 1378, 1380, 1383, 1621 Arcara v. Cloud Books, Inc., 106 S.Ct. 3172 (1986), 593, 821, 828, 978, 989, 1040, 1051, 1052, 1185, 1250 Arcara, People ex rel. v. Cloud Books, Inc., 510 N.Y.S.2d 844, 503 N.E.2d 492 (1986), 829, 979, 1052 Arcara, People ex rel. v. Cloud Books, Inc., 491 N.Y.S.2d 307, 480 N.E.2d 1089 (1985), 1051 Argersinger v. Hamlin, 407 U.S. 25 (1972), 59, 739, 1634 Arizona Governing Committee for Tax De¬ ferred Annuity and Deferred Compensa¬ tion Plans v. Norris, 463 U.S. 1073 (1983), 1579, 1580 Arizona, State of v. State of California, 373 U.S. 546 (1963), 631 Arizona, State of v. State of California, 283 U.S. 423 (1931), 74, 513, 817 Arkansas Electric Co-op. Corp. v. Arkansas Public Service Commission, 461 U.S. 375 (1983), 410, 498, 499, 505 Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571 (1981), 487

Atkins v. Schmutz Mfg. Co., 435 F.2d 527 (1970), 113 Atlas Roofing Company, Inc., v. Occupa¬ tional Safety and Health Review Com¬ mission, 430 U.S. 442 (1977), 53, 55, 1588 Atlee v. Laird, 347 F.Supp. 689 (1972), 231 Atlee v. Richardson, 411 U.S. 911 (1973), 231 Attorney General v. Pearson, 3 Mer. 353, 36 Eng.Rep. 135 (1817), 1233

Arkansas Writers’ Project, Inc. v. Ragland, 107 S.Ct. 1722 (1987), 782, 800, 963, 998 Arlin, State v., 39 H.H. 179 (1859), 629 Arlington Heights, Village of v. Metropoli¬ tan Housing Development Corp., 429 U.S. 252 (1977), 113, 116, 118, 132, 145, 644, 815, 818, 822, 1091, 1496, 1504, 1509, 1512, 1628, 1666, 1670, 1671 Armco Inc. v. Hardesty, 467 U.S. 638 (1984), 454, 459 Armstrong v. Manzo, 380 U.S. 545 (1965), 729, 733 Armstrong v. United States, 360 U.S. 40 (1960), 591 Arnett v. Kennedy, 416 U.S. 134 (1974), 357, 602, 696, 698, 707, 709, 711, 712, 724, 729, 745, 746, 903, 969, 1023, 1025, 1031 Arnold v. Carpenter, 459 F.2d 939 (1972), 1385, 1388

Attorney General of New York v. SotoLopez, 476 U.S. 898 (1986), 1442, 1458 Attorney General of State of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905), 99 Attorney General, United States ex rel. v. Delaware & Hudson Co., 213 U.S. 366 (1909), 1030 Austin v. New Hampshire, 420 U.S. 656 (1975), 534, 536, 544 Austin Independent School District v. United States, 429 U.S. 990 (1976), 1497 Avent v. State of N.C., 373 U.S. 375 (1963), 1702 Avenue Book Store v. City of Tallmadge, Ohio, 459 U.S. 997 (1982), 1050 Avery v. Midland County, Tex., 390 U.S. 474 (1968), 1067

li

TABLE

OF CASES B. Altman & Co. v. United States, 224 U.S. 583 (1912), 228 Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398 (1964), 102, 159 Bank of Augusta v. Earle, 38 U.S. 519 (1839), 403, 439 Bank of United States v. Deveaux, 9 U.S. 61 (1809), 157 Bannister v. Paradis, 316 F.Supp. 185 (1970), 1388 Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), 81, 922, 1039, 1041, 1042, 1053, 1056, 1058, 1059 Banzhaf v. F.C.C., 405 F.2d 1082, 132 U.S.App.D.C. 14 (1968), 895 Barber v. Superior Court of State of Cal. for Los Angeles County, 147 Cal.App.3d 1006, 195 Cal.Rptr. 484 (1983), 1364 Barbier v. Connolly, 113 U.S. 27 (1884), 6, 566 Barenblatt v. United States, 360 U.S. 109 (1959), 376, 377, 1020 Barker v. Wingo, 407 U.S. 514 (1972), 730 Barlow v. Collins, 397 U.S. 159 (1970), 116 Barnes v. Kline, 759 F.2d 21, 245 U.S.App.D.C. 1 (1984), 111, 114, 150, 151, 152, 153, 264 Barney v. City of New York, 193 U.S. 430 (1904), 731 Barr v. City of Columbia, 378 U.S. 146 (1964), 1702 Barr v. Matteo, 360 U.S. 564 (1959), 269 Barron v. Burnside, 121 U.S. 186 (1887), 439 Barrows v. Jackson, 346 U.S. 249 (1953), 132, 136, 137, 138, 139, 1023, 1689, 1715 Barry, In re Guardianship of, 445 So.2d 365 (1984), 1369 Barry v. Barchi, 443 U.S. 55 (1979), 673, 687, 720, 729

Ayen v. McLucas, 401 F.Supp. 1001 (1975), 1388 Ayers, Ex parte, 123 U.S. 443 (1887), 177, 178, 190

Babbitt v. Planned Parenthood of Central and Northern Arizona, 107 S.Ct. 391 (1986), 781, 784 Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289 (1979), 75, 77, 79, 81, 119 Baby M., Matter of, 217 N.J.Super. 313, 525 A.2d 1128 (1987), 1360, 1361 Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984), 116, 477 Bachellar v. Maryland, 397 U.S. 564 (1970), 853 Bacon v. People of State of Illinois, 227 U.S. 504 (1913), 461, 462 Badoni v. Higginson, 638 F.2d 172 (1980), 1186 Baggett v. Bullitt, 377 U.S. 360 (1964), 1034 Bailey v. Alabama, 219 U.S. 219 (1911), 332, 1688 Bailey v. Richardson, 182 F.2d 46, 86 U.S.App.D.C. 248 (1950), 681 Bain Peanut Co. of Texas v. Pinson, 282 U.S. 499 (1931), 1450 Baird v. State Bar of Ariz., 401 U.S. 1 (1971), 1021 Bakelite Corporation, Ex parte, 279 U.S. 438 (1929), 52, 55 Baker v. Carr, 369 U.S. 186 (1962), 33, 96, 98, 100, 101, 102, 104, 105, 106, 108, 111, 119, 124, 379, 818, 1063, 1076, 1083, 1141 Baker v. Fales, 16 Mass. 488 (1820), 1241 Baker v. General Motors Corp., 106 S.Ct. 3129 (1986), 502, 504 Baker v. Owen, 423 U.S. 907 (1975), 1416 Baker v. Wade, 769 F.2d 289 (1985), 1431 Baker v. Wade, 553 F.Supp. 1121 (1982), 1427 Bakery and Pastry Drivers and Helpers Local 802 of Intern. Broth, of Teamsters v. Wohl, 315 U.S. 769 (1942), 826 Balaban v. Rubin, 250 N.Y.S.2d 281, 199 N.E.2d 375 (1964), 1524 Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 (1978), 429, 434, 534, 535, 536, 537, 538, 539, 541, 544, 1382 Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935), 404, 414, 417, 426, 430, 437, 442, 458, 528, 1627 Baldwin v. Hale, 68 U.S. 223 (1863), 679 Baldwin v. Redwood City, 540 F.2d 1360 (1976), 1134 Ball v. James, 451 U.S. 355 (1981), 1068, 1088, 1461, 1668, 1669 Ballard, United States v., 322 U.S. 78 (1944), 1181, 1199, 1232, 1235, 1244, 1245, 1246, 1269, 1276, 1298 Ballin, United States v., 144 U.S. 1 (1892), 266, 267

Barry v. United States ex rel. Cunning¬ ham, 279 U.S. 597 (1929), 376 Barsky v. Board of Regents of University, 347 U.S. 442 (1954), 683, 1376, 1378 Bartels v. State of Iowa, 262 U.S. 404 (1923), 1319 Bartling v. Superior Court (Glendale Ad¬ ventist Medical Center), 163 Cal.App.3d 186, 209 Cal.Rptr. 220 (1984), 1363 Bass, United States v., 404 U.S. 336 (1971), 187, 316 Batchelder, United States v., 442 U.S. 114 (1979), 816 Bates v. City of Little Rock, 361 U.S. 516 (1960), 1019 Bates v. State Bar of Arizona, 433 U.S. 350 (1977), 493, 893, 894, 1023, 1047 Batson v. Kentucky, 476 U.S. 79 (1986), 31, 1484 Battaglia v. General Motors Corporation, 169 F.2d 254 (1948), 46 Batten v. United States, 306 F,2d 580 (1962), 592 Batterton v. Francis, 432 U.S. 416 (1977), 1646, 1664

lii

TABLE Bazemore v. Friday, 106 S.Ct. 3000 (1986), 1509 Beal v. Doe, 432 U.S. 438 (1977), 1345 Bearden v. Georgia, 461 U.S. 660 (1983), 1633 Beauharnais v. People of State of Ill., 343 U.S. 250 (1952), 861, 921, 926, 929 Beazell v. State of Ohio, 269 U.S. 167 (1925), 638 Beck v. Communications Workers of America (C.W.A.), 776 F.2d 1187 (1985), 806 Becker v. Schwartz, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978), 1369 Beer v. United States, 425 U.S. 130 (1976), 337 Beilan v. Board of Education, School Dist. of Phila., 357 U.S. 399 (1958), 1021 Bekins, United States v., 304 U.S. 27 (1938), 323, 324 Bell v. Burson, 402 U.S. 535 (1971), 685, 686, 687, 719, 720, 1611, 1621, 1623 Bell v. State of Md., 378 U.S. 226 (1964), 946, 1516, 1694, 1695, 1702, 1712 Bell, United States v., 371 F.Supp. 220 (1973), 629 Belle Terre, Village of v. Boraas, 416 U.S. 1 (1974), 133, 134, 387, 1091, 1381, 1402, 1403, 1404, 1411, 1414, 1419, 1420, 1451, 1670 Bellotti v. Baird, 443 U.S. 622 (1979), 1344, 1416, 1590, 1591 Bellotti v. Connolly, 460 U.S. 1057 (1983), 1118 Belmont, United States v., 301 U.S. 324 (1937), 229, 230 Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986), 152, 1177, 1178 benMiriam v. Office of Personnel Manage¬ ment, 647 F.Supp. 84 (1986), 1295 Benton v. Maryland, 395 U.S. 784 (1969), 773 Berea College v. Com. of Kentucky, 211 U.S. 45 (1908), 1695 Berkshire Cablevision of Rhode Island, Inc. v. Burke, 571 F.Supp, 976 (1983), 1006 Berman v. Allan, 80 N.J. 421, 404 A,2d 8 (1979), 1369 Berman v. Parker, 348 U.S. 26 (1954), 590 Bernal v. Fainter, 467 U.S. 216, 104 S.Ct. 2312 (1984), 1550, 1613, 1614 Berry, In re, 68 Cal.2d 137, 65 Cal.Rptr. 273, 436 P.2d 273 (1968), 1043 Best & Co. v. Maxwell, 311 U.S. 454 (1940), 455, 456 Bethel School Dist. No. 403 v. Fraser, 106 S.Ct. 3159 (1986), 803, 852, 941 Betts v. Brady, 316 U.S. 455 (1942), 1635, 1652 Bianchi v. Morales, 262 U.S. 170 (1923), 738 Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959), 418, 435, 436, 437 Biddle v. Perovich, 274 U.S. 480 (1927), 256

OF CASES Bigelow v. Virginia, 421 U.S. 809 (1975), 892, 932, 1030, 1380 Bi-Metallic Inv. Co. v. State Board of Equalization, 239 U.S. 441 (1915), 663, 685, 712, 755, 766, 941, 1683 Bindrim v. Mitchell, 92 Cal.App.3d 61, 155 Cal.Rptr. 29 (1979), 886 Bishop v. Wood, 426 U.S. 341 (1976), 677, 695, 697, 698, 699, 700, 701, 703, 709, 760 Bishop v. Wood, 377 F.Supp. 501 (1973), 696 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), 161, 273, 274 Black v. Rizzo, 360 F.Supp. 648 (1973), 1388 Blackford v. United States, 247 F.2d 745 (1957), 1331 Black & White Taxi & T. Co. v. Brown & Yellow Taxi & T. Co., 48 S.Ct. 404 (1928), 158 Blake v. McClung, 172 U.S. 239 (1898), 531 Blanchette v. Connecticut General Ins. Corporations, 419 U.S. 102 (1974), 77, 80, 325 Blanton, United States v., 534 F.Supp. 295 (1982), 976 Blefare v. United States, 362 F.2d 870 (1966), 1331 Block v. Meese, 793 F.2d 1303, 253 U.S.App.D.C. 317 (1986), 811, 812 Blount v. Rizzi, 400 U.S. 410 (1971), 327, 1060 Blum v. Yaretsky, 457 U.S. 991 (1982), 119, 1698, 1716, 1717 Board of Airport Com’rs of City of Los Angeles v. Jews for Jesus, Inc., 107 S.Ct. 2568 (1987), 981, 1022, 1056 Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78 (1978), 700 Board of Directors of Rotary Intern, v. Ro¬ tary Club of Duarte, 107 S.Ct. 1940 (1987), 1012, 1401, 1408, 1420, 1421, 1425 Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236 (1968), 1219, 1220, 1222, 1225, 1479 Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853 (1982), 431, 810, 813, 1320 Board of Educ. of Hendrick Hudson Cen¬ tral School Dist. Bd. of Ed., Westchester County v. Rowley, 458 U.S. 176 (1982), Board of Governors v. Agnew, 329 U.S. 441 (1947), 643, 659 Board of License Com’rs of Town of Tiverton v. Pastore, 469 U.S. 238, 105 S.Ct. 685 (1985), 84 ' Board 1596 of Pardons v. Allen, 107 S.Ct. 2415 (1987), 689 Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), 610, 678, 679, 686, 689, 690, 691, 692, 702, 704, 715, 815, 1396 Board of Trade of City of Chicago v. Olsen, 262 U.S. 1 (1923), 320

TABLE

OF CASES

Board of Trustees of U. of Ill. v. United States, 289 U.S. 48 (1933), 468 Bob Jones University v. Simon, 416 U.S. 725 (1974), 722 Bob Jones University v. United States, 461 U.S. 574 (1983), 74, 1167, 1248, 1260, 1261, 1262, 1264, 1271, 1273, 1416, 1479, 1492 Bob Jones University v. United States, 639 F.2d 147 (1980), 1273 Bob-Lo Excursion Co. v. People of State of Michigan, 333 U.S. 28 (1948), 435, 469 Boddie v. Connecticut, 401 U.S. 371 (1971), 665, 667, 719, 720, 753, 754, 756, 1415, 1437, 1462, 1463, 1635, 1639, 1648, 1650, 1652, 1656, 1657 Bode v. Barrett, 344 U.S. 583 (1953), 522 Bode v. National Democratic Party, 452 F.2d 1302, 146 U.S.App.D.C. 373 (1971), 1119, 1128, 1129 Bolden v. City of Mobile, Ala., 423 F.Supp. 384 (1976), 1506 Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), 894, 896, 897 Bolling v. Sharpe, 347 U.S. 497 (1954), 350, 559, 1437, 1475, 1517, 1546 Bollman, Ex parte, 8 U.S. 75 (1807), 43 Bond v. Floyd, 385 U.S. 110 (1966), 150, 848 Bonner v. Coughlin, 517 F.2d 1311 (1975), 728

1425, 1426, 1427, 1428, 1429, 1430, 1431, 1435, 1616 Bowles v. Willingham, 321 U.S. 503 (1944), 46, 354, 721 Bowsher v. Synar, 106 S.Ct. 3181 (1986), 32, 82, 150, 151, 152, 216, 245, 246, 250, 251, 252, 253, 261, 373 Boyce Motor Lines v. United States, 342 U.S. 337 (1952), 1034 Boyd v. United States, 116 U.S. 616 (1886), 1426 Boyle v. Landry, 401 U.S. 77 (1971), 204 Braden v. United States, 365 U.S. 431 (1961), 1020 Bradfield v. Roberts, 175 U.S. 291 (1899), 1224 Bradley v. Milliken, 484 F.2d 215 (1973), 1494 Bradley v. Milliken, 345 F.Supp. 914 (1972), 1511 Bradley v. Public Utilities Commission, 200 U.S. 92 (1933), 418 Bradley v. School Bd., City of Richmond, Virginia, 382 U.S. 103 (1965), 1490 Bradley v. School Bd. of City of Richmond, 416 U.S. 696 (1974), 198 Bradwell v. State of Illinois, 83 U.S. 130 (1872), 555, 573, 1559, 1585 Brady v. United States, 397 U.S. 742 (1970), 749 Brand, State ex rel. Anderson v., 303 U.S. 95 (1938), 164, 619 Brandenburg v. Ohio, 395 U.S. 444 (1969), 794, 808, 848, 861, 923, 925, 1024, 1101 Braniff Airways v. Nebraska State Board of Equalization and Assessment, 347 U.S. 590, 74 S.Ct. 757 (1954), 467 Branti v. Finkel, 445 U.S. 507 (1980), 1014, 1018, 1129 Branzburg v. Hayes, 408 U.S. 665 (1972), 790, 830, 868, 878, 945, 955, 958, 960, 971, 972, 974, 976, 1026, 1043, 1311 Braunfeld v. Brown, 366 U.S. 599 (1961), 1157, 1195, 1248, 1254, 1255, 1256, 1262, 1263, 1264, 1270 Breard v. City of Alexandria, La., 341 U.S. 622 (1951) 415, 450, 829, 909, 949, 981, 985 Breedlove v. Suttles, 302 U.S. 277 (1937), 1092 Breithaupt v. Abram, 352 U.S. 432 (1957), 1334 Brennan v. City of Titusville, 153 U.S. 289 (1894), 456 Brenneman v. Madigan, 343 F.Supp. 128 (1972), 955 Brewer v. Hoxie School Dist. No. 46 of Lawrence County, Ark., 238 F.2d 91 (1956), 352 Brewer v. Williams, 430 U.S. 387 (1977), 1635 Brewster, United States v., 408 U.S. 501 (1972), 370, 371, 372, 373, 374 Bridges v. State of California, 314 U.S. 252 (1941), 856, 857, 967, 1042

Bonner-Lyons v. School Committee of City of Boston, 480 F.2d 442 (1973), 813 Boos v. Barry, 107 S.Ct. 1282 (1987), 790, 798 Booth v. People of State of Illinois, 184 U.S. 425 (1902), 1696 Borras v. State, 229 So.2d 244 (1969), 1325 Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984), 872 Bostic v. McClendon, 650 F.Supp. 245 (1986), 1332 Boston Stock Exchange v. State Tax Com¬ mission, 429 U.S. 318 (1977), 454, 458 Bouie v. City of Columbia, 378 U.S. 347 (1964), 629, 632, 1702 Bounds v. Smith, 430 U.S. 817 (1977), 715, 740, 753, 1336, 1633, 1635 Boutilier v. Immigration and Naturaliza¬ tion Service, 387 U.S. 118 (1967), 358 Bouvia v. Superior Court (Glenchur), 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986), 1363 Bowen v. American Hosp. Ass’n, 476 U.S. 610 (1986), 1600 Bowen v. Gilliard, 107 S.Ct. 3008 (1987), 591, 627 Bowen v. Owens, 476 U.S. 340 (1986), 1443, 1446, 1448, 1557, 1606, 1681 Bowen v. Roy, 476 U.S. 693 (1986), 1168, 1172, 1183, 1193, 1243, 1249, 1250, 1259, 1260, 1262, 1263, 1272 Bowers v. DeVito, 686 F.2d 616 (1982), 1688 Bowers v. Hardwick, 106 S.Ct. 2841 (1986), 75, 771, 1314, 1348, 1421, 1422, 1423,

liv

TABLE

OF CASES Brown v. State of Maryland, 25 U.S. 419 (1827), 406, 472, 474 Brown v. Thomson, 462 U.S. 835 (1983), 1071, 1072 Brown, United States v., 381 U.S. 437 (1965), 642, 643, 644, 645, 648, 651, 653, 654, 655, 656, 659, 660, 661, 662, 1015, 1018, 1038, 1621, 1676, 1678 Brown v. Walker, 161 U.S. 591 (1896), 256, 649 Brown v. Western Railway of Alabama, 338 U.S. 294 (1949), 113

Briggs v. North Muskegon Police Dept., 563 F.Supp. 585 (1983), 1433 Brimmer v. Redman, 138 U.S. 78 (1891), 474 Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673 (1930), 168, 683 Britt v. North Carolina, 404 U.S. 226 (1971), 1630, 1632 Britt v. Superior Court of Santa Clara County, 58 Cal.2d 469, 24 Cal.Rptr, 849, 374 P.2d 817 (1962), 1425 Broadrick v. Oklahoma, 413 U.S. 601 (1973), 1018, 1025, 1136 Brock v. Roadway Exp., Inc., 107 S.Ct. 1740 (1987), 732 Brocket! v. Spokane Arcades, Inc., 472 U.S. 491 (1985), 913, 1023, 1027, 1028, 1029, 1031, 1032, 1050 Bromley v. McCaughn, 280 U.S. 124 (1929), 318 Bronson v. Kinzie, 42 U.S. 311 (1843), 615 Brooks v. United States, 267 U.S. 432 (1925), 312 Brooks v. Wainwright, 428 F.2d 652 (1970), 1388

Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573 (1986), 409, 436 Browning v. City of Waycross, 233 U.S. 16 (1914), 462 Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165 (1983), 962 Bruno & Stillman, Inc. v. Globe Newspaper Co., 224 Ct.Cl. 583, 633 F.2d 583 (1980), 972 Bryan v. Itasca County, Minnesota, 426 U.S. 373 (1976), 1472 Bryant v. Yellen, 447 U.S. 352 (1980), 116 Buchanan v. Warley, 245 U.S. 60 (1917), 132, 1482, 1695, 1696, 1697 Buck v. Bell, 274 U.S. 200 (1927), 1339 Buck v. Kuykendall, 267 U.S. 307 (1925), 417 Buck v. People of State of California, 343 U.S. 99 (1952), 505

Brooks’ Estate, In re, 32 I11.2d 361, 205 N.E.2d 435 (1965), 1268 Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 497 N.E.2d 626 (1986), 1363, 1365, 1366, 1598 Brotherhood of Locomotive Firemen and Enginemen v. Chicago, R.I. & P.R. Co., 393 U.S. 129 (1968), 415, 420, 437 Brotherhood of R.R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1 (1964), 758, 1011, 1016, 1297, 1640, 1661 Brown, In re, 478 So.2d 1033 (1985), 1367 Brown v. Board of Education of Topeka, Kansas, 349 U.S. 294 (1955), 1351, 1475, 1488, 1489, 1490, 1492, 1493, 1499, 1510 Brown v. Board of Education of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954), 821, 1165, 1291, 1379, 1389, 1475, 1476, 1477, 1478, 1480, 1481, 1488, 1489, 1498, 1501, 1510, 1517, 1525, 1588, 1616, 1688 Brown v. Com., 214 Va. 755, 204 S.E.2d 429 (1974), 975 Brown v. Glines, 444 U.S. 348 (1980), 967, 1573 Brown v. Hartlage, 456 U.S. 45 (1982), 1130, 1131 Brown v. Houston, 114 U.S. 622 (1885), 461, 462, 472 Brown v. Louisiana, 447 U.S. 323 (1980), 30, 33, 34, 35 Brown v. North Carolina, 107 S.Ct. 423 (1986), 1482, 1521 Brown v. Oklahoma, 408 U.S. 914 (1972), 835, 850 Brown v. Socialist Workers ’74 Campaign Committee (Ohio), 459 U.S. 87 (1982), 980, 1019, 1152, 1584 Brown v. State of Louisiana, 383 U.S. 131 (1966), 827

Buckley v. American Federation of Televi¬ sion and Radio Artists, 496 F.2d 305 (1974), 805 Buckley v. Valeo, 424 U.S. 1 (1976), 19, 32, 80, 82, 244, 245, 373, 658, 783, 790, 796, 807, 809, 827, 834, 836, 892, 928, 933, 946, 980, 1010, 1012, 1013, 1019, 1133, 1134, 1136, 1138, 1139, 1140, 1141, 1142, 1143, 1145, 1148, 1149, 1151, 1152, 1437, 1452, 1613, 1670, 1671 Buckley v. Valeo, 519 F.2d 821, 171 U.S.App.D.C. 172 (1975), 1133, 1135 Buck Stove & Range Co. v. Vickers, 226 U.S. 205 (1912), 439 Bugajewitz v. Adams, 228 U.S. 585 (1913), 358, 359 Bullard, State v., 267 N.C. 599, 148 S.E.2d 565 (1966), 1269, 1324, 1325 Bullock v. Carter, 405 U.S. 134 (1972), 1099, 1100, 1111, 1642, 1655, 1661, 1662 Bunting v. Oregon, 243 U.S. 426 (1917), 569, 574 Burbank, City of v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973), 485 Burdeau v. McDowell, 256 U.S. 465 (1921), 1702 Burdick v. United States, 236 U.S. 79 (1915), 256 Burford v. Sun Oil Co., 319 U.S. 315 (1943),

lv

197 Burgess v. Salmon, 97 U.S. 381 (1878), 635, 636, 637

TABLE

OF CASES Califano 1529, Califano 1564 Califano 737

Burgin v. Henderson, 536 F.2d 501 (1976), 1385 Burke v. Barnes, 107 S.Ct. 734 (1987), 83, 91, 111, 114, 150, 151, 152, 153 Burleson, United States ex rel. Milwaukee Social Democratic Pub. Co. v., 255 U.S. 407 (1921), 327 Burlingame v. Milone, 310 N.Y.S.2d 407 (1970), 1385 Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962), 744 Burns v. Fortson, 410 U.S. 683 (1973), 1091, 1452 Burns v. Richardson, 384 U.S. 73 (1966), 1128 Burns v. Wilson, 346 U.S. 137 (1953), 53, 55, 58 Burr, United States v., 25 Fed.Cas. 30 (1806), 278, 279 Burroughs v. United States, 290 U.S. 534 (1934), 1085, 1151 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), 1689, 1690, 1701, 1715, 1720 Busch, People ex rel. v. Projection Room Theater, 130 Cal.Rptr. 328, 550 P.2d 600 (1976), 1051 Bush v. Lucas, 462 U.S. 367 (1983), 161, 162, 274 Butler v. State of Michigan, 352 U.S. 380 (1957), 908, 910, 937, 953 Butler v. Thompson, 341 U.S. 937 (1951), 1092 Butler, United States v., 297 U.S. 1 (1936), 116, 307, 320, 321, 322, 575, 609 Butler Bros. v. McColgan, 315 U.S. 501 (1942), 451 Butz v. Economou, 438 U.S. 478 (1978), 269, 270, 271, 272

v. Webster, 430 U.S. 313 (1977), 1567, 1608 v. Westcott, 442 U.S. 682 (1979), v. Yamasaki, 442 U.S. 682 (1979),

California v. Cabazon Band of Mission Indi¬ ans, 107 S.Ct. 1083 (1987), 1470, 1471, 1472, 1473 41 California v. Carney, 471 U.S. 386 (1985), California v. Ciraolo, 476 U.S. 207 (1986), 1426 California v. Krivda, 409 U.S. 33 (1972), 164 California v. LaRue, 409 U.S. 109 (1972), 478, 691, 918, 1413 California Bankers Ass’n v. Shultz, 416 U.S. 24 (1974), 1393, 1399 California Coastal Com’n v. Granite Rock Co., 107 S.Ct. 1419 (1987), 501, 506, 508 California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90 (1981), 913, 914 California Federal Sav. and Loan Ass’n v. Guerra, 107 S.Ct. 683 (1987), 482, 483, 491, 511, 1581, 1584 California Med. Ass’n v. Federal Elec. Com’n, 453 U.S. 182 (1981), 1138, 1139, 1140, 1144 California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97 (1980), 478, 493 California, State of, United States v., 332 U.S. 19 (1947), 262, 532 California, State of, United States v., 297 U.S. 175 (1936), 382 Cammarano v. United States, 358 U.S. 498 (1959), 784, 891, 931 Cammer v. United States, 350 U.S. 399 (1956), 970 Campbell v. Hussey, 368 U.S. 297 (1961), 501 Canadian Northern R. Co. v. Eggen, 252 U.S. 553 (1920), 531 Candelaria, United States v., 271 U.S. 432 (1926), 1470 Cannon v. City of New Orleans, 87 U.S. 577 (1874), 470 Cannon v. University of Chicago, 441 U.S. 677 (1979), 161 Canton R. Co. v. Rogan, 340 U.S. 511 (1951), 451, 474 Cantor v. Detroit Edison Co., 428 U.S. 579 (1976), 493 Cantrell v. Anderson, 390 S.W.2d 176 (1965), 1234 Cantrell v. Forest City Pub. Co., 419 U.S. 245 (1974), 889 Cantwell v. Connecticut, 310 U.S. 296 (1940), 772, 855, 978, 1028, 1040, 1056, 1156, 1183, 1234, 1252, 1253, 1254, 1256, 1677 Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (1971), 891

Caban v. Mohammed, 441 U.S. 380 (1979), 1554, 1564, 1565, 1570, 1603, 1604 Cabell v. Chavez-Salido, 454 U.S. 432 (1982), 1549, 1550, 1614 Cafeteria Employees Union Local 302 v. Angelos, 320 U.S. 293 (1943), 865 Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886 (1961), 679, 692, 706, 714, 765 Cahn v. Long Island Vietnam Moratorium Committee, 418 U.S. 906 (1974), 800 Calder v. Bull, 3 U.S. 386 (1798), 24, 529, 561, 564, 572, 588, 632, 633, 634, 637 Calder v. Jones, 465 U.S. 783 (1984), 871 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), 722 Califano v. Aznavorian, 439 U.S. 170 (1978), 1379 Califano v. Boles, 443 U.S. 282 (1979), 1446, 1557 Califano v. Goldfarb, 430 U.S. 199 (1977), 822, 833, 1306, 1349, 1559, 1566, 1567, 1585, 1607, 1681, 1686 Califano v. Jobst, 434 U.S. 47 (1977), 1446

lvi

TABLE

OF CASES

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984), 478, 500, 502 Capital Cities Media, Inc. v. Toole, 463 U.S. 1303 (1983), 859, 1053 Carafas v. LaVallee, 391 U.S. 234 (1968), 92 Carey v. Brown, 447 U.S. 455 (1980), 800, 802, 830, 940, 942, 993, 1459 Carey v. Piphus, 435 U.S. 247 (1978), 671, 672, 674, 731, 1527 Carey v. Population Services, Intern., 431 U.S. 678 (1977), 138, 779, 897, 1338, 1339, 1423, 1425, 1575, 1590, 1608 Carfer v. Caldwell, 200 U.S. 293 (1906), 662 Carlesi v. People of State of New York, 233 U.S. 51 (1914), 256 Carlson v. Green, 446 U.S. 14 (1980), 162, 274 Carlson v. Landon, 342 U.S. 524 (1952), 358, 359 Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (1966), 276 Carolene Products Co., United States v., 304 U.S. 144 (1938), 129, 582, 607, 644, 772, 778, 780, 845, 1320, 1452, 1465, 1515, 1523, 1544, 1588, 1614, 1686 Carpenter v. Com. of Pennsylvania, 58 U.S. 456 (1854), 634 Carrington v. Rash, 380 U.S. 89 (1965), 1089, 1090, 1091, 1621 Carroll v. President and Com’rs of Princess Anne, 393 U.S. 175 (1968), 85, 91, 1040, 1042, 1050, 1060 Carson v. Roane-Anderson Co., 342 U.S. 232 (1952), 511, 521 Carson Petroleum Co. v. Vial, 279 U.S. 95 (1929), 462 Carter v. Carter Coal Co., 298 U.S. 238 (1936), 80, 307, 308, 368, 369, 386, 1678 Carter v. Com. of Virginia, 321 U S. 131 (1944), 475, 476 Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970), 1484 Cary v. Board of Ed. of Adams-Arapahoe School Dist. 28 J, Aurora, Colo., 598 F.2d 535 (1979), 812 Case v. Bowles, 327 U.S. 92 (1946), 382 Case of Haybum, 2 U.S. 409 (1792), 23, 32, 73 Caskey Baking Co. v. Commonwealth of Virginia, 313 U.S. 117 (1941), 457 Casson, United States v., 434 F.2d 415, 140 U.S.App.D.C. 141 (1970), 629 Castaneda v. Partida, 430 U.S. 482 (1977), 1484, 1523, 1545 Castle v. Hayes Freight Lines, 348 U.S. 61 (1954), 498, 506 Caulk, In re, 125 N.H. 226, 480 A.2d 93 (1984), 1367 Causby, United States v., 328 U.S. 256 (1946), 592, 610 Cavitt, In re, 182 Neb. 712, 157 N.W.2d 171 (1968), 1340 CBS, Inc. v. F.C.C., 453 U.S. 367 (1981), 784, 1005, 1006 CBS Inc. v. Young, 522 F.2d 234 (1975), 860

lvii

Central Eureka Mining Company, United States v., 357 U.S. 155 (1958), 596 Central Greyhound Lines v. Mealey, 334 U.S. 653 (1948), 451, 468 Central Hardware Co. v. N.L.R.B., 407 U.S. 539 (1972), 999 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), 790, 796, 809, 900, 901, 902, 904, 933, 947, 1057 Central R. Co. of Pa. v. Com. of Pa., 370 U.S. 607 (1962), 468 Central Union Trust Co. of New York v. Garvan, 254 U.S. 554 (1921), 721 Cervantes v. Time, Inc., 464 F.2d 986 (1972), 972 Chagra, United States v., 701 F.2d 354 (1983), 964 Chalk, United States v., 441 F.2d 1277 (1971), 1382 Chambers v. Marsh, 675 F.2d 228 (1982), 1289 Champion v. Ames, 188 U.S. 321 (1903), 312 Champlain Realty Co. v. City of Brattleboro, 260 U.S. 366 (1922), 461, 462 Chandler v. Florida, 449 U.S. 560 (1981), 963 Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), 837, 838, 839, 840, 849, 856, 861, 870, 890, 907, 914, 928, 929 Chapman, In re, 166 U.S. 661 (1897), 267, 376 Chapman v. Meier, 420 U.S. 1 (1975), 1072, 1078 Chapman v. Scott, 10 F.2d 156 (1925), 256 Chappell v. Wallace, 462 U.S. 296 (1983), 162, 274 Chappelle v. Greater Baton Rouge Airport District, 431 U.S. 159 (1977), 1100 Charleston & W.C.R. Co. v. Varnville Fur¬ niture Co., 237 U.S. 597 (1915), 491 Chas. C. Steward Mach. Co. v. Davis, 301 U.S. 548 (1937), 322 Chase v. Robson, 435 F.2d 1059 (1970), 970 Chase Securities Corporation v. Donaldson, 325 U.S. 304 (1945), 756, 1310 Chas. Wolff Packing Co. v. Court of Indus¬ trial Relations of State of Kansas, 262 U.S. 522 (1923), 573 Chateau X, Inc. v. State ex rel. Andrews, 302 N.C. 321, 275 S.E.2d 443 (1981), 1050 Cheaney v. Indiana, 410 U.S. 991 (1973), 139 Cherokee Nation v. State of Georgia, 30 U.S. 1 (1831), 614, 1468 Cherokee Nation of Oklahoma, United States v., 107 S.Ct. 1487 (1987), 1467 Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), 29 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), 502, 1578 Chicago and N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (1981), 487

TABLE

OF CASES

Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226 (1897), 589, 772, 773 Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (1975), 860, 970, 1043 Chicago Junction Case, 264 U.S. 258 (1924), 191 Chicago & N.W.R. Co. v. Whitton’s Adm’r, 80 U.S. 270 (1871), 189 Chicago, R.I. & P.R. Co. v. Arkansas, 219 U.S. 453 (1911), 408 Chicago & Southern Air Lines v. Water¬ man S.S. Corp., 333 U.S. 103 (1948), 102, 275, 276, 968 Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292 (1986), 806, 1014, 1059 Child Labor Tax Case, 259 U.S. 20 (1922), 320, 381, 575, 823 Chimento v. Stark, 353 F.Supp. 1211 (1973), 1101 Chinese Exclusion Case, The, 130 U.S. 581 (1889), 358 Chisholm v. State of Georgia, 2 U.S. 419 (1793), 65, 174, 176, 183, 185 Choate, United States v., 576 F.2d 165 (1978), 1391 Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), 1467 Christian Echoes Nat. Ministry, Inc. v. United States, 470 F.2d 849 (1972), 1282 Church of the Chosen People (North Amer¬ ican Panarchate) v. United States, 548 F.Supp. 1247 (1982), 1182 Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937), 322 Cipollone v. Liggett Group, Inc., 789 F.2d 181 (1986), 490 Cipriano v. City of Houma, 395 U.S. 701 (1969), 1087, 1088, 1642 C.I.R. v. Shapiro, 424 U.S. 614 (1976), 84 Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179 (1950), 408, 423, 437 Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, Cal., 454 U.S. 290 (1981), 796, 836, 946, 980, 1011, 1012, 1013, 1014, 1015, 1139, 1140 City and County of (see name of city) City Council of City of West Haven v. Hall, 180 Conn. 243, 429 A.2d 481 (1980), 975 City of (see name of city) Civil Rights Cases, In re, 109 U.S. 3 (1883), 6, 330, 331, 351, 1693, 1695, 1696, 1698 Clark v. Barnard, 108 U.S. 436 (1883), 175 Clark v. Community for Creative Non-Vio¬ lence, 468 U.S. 288 (1984), 798, 804, 828, 831, 832, 835, 941, 979, 990 Clark v. Gabriel, 393 U.S. 256 (1968), 46 Clark v. Poor, 274 U.S. 554 (1927), 445 Clarke v. Securities Industry Ass’n, 107 S.Ct. 750 (1987), 142, 143, 144 Clarke, United States v., 445 U.S. 253 (1980), 598 Clason v. State of Indiana, 306 U.S. 439 (1939), 428

Classic, United States v., 313 U.S. 299 (1941), 353, 1084, 1120 Clearfield Trust Co. v. United States, 318 U.S. 363, 318 U.S. 744 (1943), 159 Cleburne Living Center, Inc. v. City of Cleburne, Texas, 726 F.2d 191 (1984), 1615, 1619 Cleburne, Tex., City of v. Cleburne Living Center, 473 U.S. 432 (1985), 993, 1438, 1444, 1445, 1450, 1594, 1595, 1597, 1602, 1603, 1612, 1613, 1614, 1615, 1616, 1617, 1618, 1684 Clements v. Fashing, 457 U.S. 957 (1982), 81, 119, 121, 1098, 1099, 1100 Cleveland v. United States, 329 U.S. 14 (1946), 1415, 1433 Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632 (1974), 833, 1415, 1570, 1577, 1578, 1580, 1584, 1603, 1605, 1606, 1609, 1617, 1622, 1623, 1624, 1625, 1663, 1675 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), 617, 677, 694, 698, 708, 709, 710, 711, 713, 715, 718, 729, 760, 903 Cleveland, City of v. United States, 323 U.S. 329 (1945), 512 Clonce v. Richardson, 379 F.Supp. 338 (1974), 1328 Cloud Books, Inc., People ex rel. Arcara v., 510 N.Y.S.2d 844, 503 N.E.2d 492 (1986), 829, 979, 1052 Cloud Books, Inc., People ex rel. Arcara v., 491 N.Y.S.2d 307, 480 N.E.2d 1089 (1985), 1051 Clyatt v. United States, 197 U.S. 207 (1905), 332 Coates v. City of Cincinnati, 402 U.S. 611 (1971), 1025, 1036, 1409 Codd v. Velger, 429 U.S. 624 (1977), 693, 703, 1398 Coe v. Town of Errol, 116 U.S. 517 (1886), 461 Coffin v. Coffin, 4 Mass. 1 (1808), 371 Coffin Bros. & Co. v. Bennett, 277 U.S. 29 (1928), 722, 723 Cohen v. Beneficial Industrial Loan Corpo¬ ration, 337 U.S. 541 (1949), 113 Cohen v. California, 403 U.S. 15 (1971), 787, 794, 799, 827, 835, 839, 840, 851, 861, 916, 927, 929, 948, 949, 953, 1154, 1315, 1409, 1411 Cohen v. Chesterfield County School Bd., 474 F.2d 395 (1973), 1577 Cohens v. Com. of Virginia, 19 U.S. 264 (1821), 69, 71, 175, 176 Coker v. Georgia, 433 U.S. 584 (1977), 1309 Colautti v. Franklin, 439 U.S. 379 (1979), 1342, 1357 Cole v. Arkansas, 333 U.S. 196 (1948), 911 Colegrove v. Green, 328 U.S. 549 (1946), 100, 1063 Coleman v. Alabama, 399 U.S. 1 (1970), 1634 Coleman v. Miller, 307 U.S. 433 (1939), 65, 101, 106, 113, 151

lviii

TABLE

OF CASES

Colgate v. Harvey, 296 U.S. 404 (1935), 548, 556, 557 Collector v. Day, 78 U.S. 113 (1870), 382 Collin v. Smith, 578 F.2d 1197 (1978), 838, 854, 861, 921, 923, 926 Collin v. Smith, 447 F.Supp. 676 (1978), 856, 1046 Collins v. Yosemite Park & Curry Co., 304 U.S. 518 (1938), 476 Colombrito v. Kelly, 764 F.2d 122 (1985), 1184, 1301 Colonial Pipeline Co. v. Traigle, 421 U.S. 100 (1975), 440, 445 Colorado v. Connelly, 107 S.Ct. 515 (1986), 1702 Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., 372 U.S. 714 (1963), 435, 491 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976), 196, 197 Colten v. Com. of Ky., 407 U.S. 104 (1972), 1033 Columbia Broadcasting System, Inc. v. Democratic Nat. Committee, 412 U.S. 94 (1973), 994, 1004, 1005, 1719 Columbia Broadcasting System, Inc., Unit¬ ed States v., 497 F.2d 102 (1974), 964 Columbus Bd. of Ed. v. Penick, 443 U.S. 449 (1979), 1498, 1499, 1501, 1505 Columbus, City of v. Leonard, 443 U.S. 905 (1979), 199 Com. v. _ (see opposing party) Committee for Public Ed. and Religious Liberty v. Nyquist, 413 U.S. 756 (1973) 1160, 1188, 1215, 1222, 1224, 1225, 1230, 1278, 1281, 1282 Committee for Public Ed. and Religious Liberty v. Regan, 444 U.S. 646 (1980), 1167, 1219, 1220, 1225, 1226, 1227 Commodity Futures Trading Com’n v. Schor, 106 S.Ct. 3245 (1986), 57 Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981), 442, 444, 457, 487, 540 Commonwealth of (see name of Com¬ monwealth) Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974), 70, 848, 1101 Communist Party of United States v. Sub. Act. Cont. Bd., 367 U.S. 1 (1961), 78, 79, 649, 1020 Community Communications Co., Inc. v. City of Boulder, Colo., 455 U.S. 40 (1982), 395, 396, 397, 494 Community for Creative Non-Violence v. Watt, 703 F.2d 586, 227 U.S.App.D.C. 19 (1983), 828 Community for Creative Non-Violence v. Watt, 670 F.2d 1213, 216 U.S.App.D.C. 394 (1982), 828, 990

Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), 440, 441, 442, 443, 444, 457, 463, 473, 1253 Concentrated Phosphate Export Ass’n, United States v., 393 U.S. 199 (1968), 89, 90 Confiscation Cases, In re, 74 U.S. 454 (1868), 255 Connally v. General Const. Co., 269 U.S. 385 (1926), 574, 1033 Connecticut v. Barrett, 107 S.Ct. 828 (1987), 41 Connecticut v. Johnson, 460 U.S. 73 (1983), 166 Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981), 686, 688, 697 Connell v. Higginbotham, 403 U.S. 207 (1971), 689 Conner v. Elliott, 59 U.S. 591 (1855), 530 Connick v. Myers, 461 U.S. 138 (1983), 431, 815, 866, 930 Connolly v. Pension Ben. Guar. Corp., 475 U.S. 211 (1986), 590, 618 Connor v. Finch, 431 U.S. 407 (1977), 1072 Connor v. Johnson, 402 U.S. 690 (1971), 1078 Conroy, Matter of, 98 N.J. 321, 486 A.2d 1209 (1985), 1363 Conservatorship of Torres, Matter of, 357 N.W.2d 332 (1984), 1365 Consolidated Edison Co. of New York, Inc. v. Public Service Commission of New York, 447 U.S. 530 (1980), 795, 797, 800, 814, 833, 834, 898, 899, 900, 933, 988, 992, 1006 Consolidated Edison Co. of New York, Inc. v. Public Service Com’n, 497 N.Y.S.2d 337, 488 N.E.2d 83 (1985), 898 Consolidated Rock Products Co. v. City of Los Angeles, 57 Cal.2d 515, 20 Cal.Rptr. 638, 370 P.2d 342 (1962), 593 Constantine, United States v., 296 U.S. 287 (1935), 320, 814, 820 Construction Industry Ass’n of Sonoma County v. City of Petaluma, 375 F.Supp. 574 (1974), 1381 Consumers Union of United States, Inc. v. Kissinger, 506 F.2d 136, 165 U.S.App.D.C. 75 (1974), 241 Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159 (1983), 466, 470, 471 Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648 (1935), 324 Continental Illinois Securities Litigation, Matter of, 732 F.2d 1302 (1984), 962 Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690 (1962), 492 Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977), 838 Contributors to Pennsylvania Hospital v. City of Philadelphia, 245 U.S. 20 (1917), 618

Community Television of Utah, Inc. v. Wil¬ kinson, 611 F.Supp. 1099 (1985), 936 Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 (1964), 509

lix

TABLE

OF CASES

Cooley v. Board of Wardens of Port of Philadelphia, to Use of Soc. for Relief of Distressed Pilots, Their Widows and Children, 53 U.S. 299 (1851), 401, 406, 407, 408, 410, 417, 418, 419, 438, 468, 470, 487, 499, 524 Coolidge v. New Hampshire, 403 U.S. 443 (1971), 684, 1375 Coolidge, United States v., 14 U.S. 415 (1816), 157 Coons v. American Honda Motor Co., Inc., 94 N.J. 307, 463 A.2d 921 (1983), 440 Cooper v. Aaron, 358 U.S. 1 (1958), 33, 34, 35, 36, 40, 41, 1489 Cooper v. Eugene School Dist. No. 4J, 301 Or. 358, 723 P.2d 298 (1986), 1178 Cooper v. Rockford Newspapers, Inc., 50 Ill.App.3d 250, 8 Ill.Dec. 508, 365 N.E.2d 746 (1977), 1043 Coppage v. Kansas, 236 U.S. 1 (1915), 572, 573, 1478 Coppedge v. United States, 369 U.S. 438 (1962), 1631

Coyle v. Smith, 221 U.S. 559 (1911), 299, 380, 384, 385, 388, 397 Craig v. Boren, 429 U.S. 190 (1976), 138, 476, 478, 1472, 1473, 1560, 1563, 1569, 1570, 1601, 1602, 1603, 1609, 1610, 1614, 1618, 1621 Craig v. Harney, 331 U.S. 367 (1947), 856, 857 Craigdallie v. Aikman, 2 Bligh 529, 4 Eng.Rep. 435 (1820), 1233 Crandall v. State of Nevada, 73 U.S. 35 (1867), 463, 528, 556 Crane v. People of State of New York, 239 U.S. 195 (1915), 1547 Crawford v. Board of Educ. of City of Los Angeles, 458 U.S. 527 (1982), 815, 1453, 1486, 1487, 1488 Crawford v. Cushman, 531 F.2d 1114 (1976), 1622, 1625 Crawford, People v., 328 N.Y.S.2d 747 (1972), 1269 Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972), 1331 Crew Levick Co. v. Com. of Pennsylvania, 245 U.S. 292 (1917), 474 Criden, United States v., 633 F.2d 346 (1980), 972 Crockett v. Reagan, 720 F.2d 1355, 232 U.S.App.D.C. 128 (1983), 105 Crook, United States ex rel. Standing Bear v., 25 F.Cas 695 (1879), 1472 Crouse Irving Memorial Hosp., Inc. v. Paddock, 485 N.Y.S.2d 443 (1985), 1363 Crowder, United States v., 543 F.2d 312, 177 U.S.App.D.C. 165 (1976), 1331, 1332 Crowell v. Benson, 285 U.S. 22 (1932), 53, 54, 55, 56, 58, 1030 Crozier v. Fried Krupp Aktiengesellschaft, 224 U.S. 290 (1912), 685 Cruikshank, United States v., 92 U.S. 542 (1875), 299, 353, 552, 1693, 1694 Crutcher v. Com. of Kentucky, 141 U.S. 47 (1891), 439, 556 CTS Corp. v. Dynamics Corp. of America, 107 S.Ct. 1637 (1987), 485, 543 Cudahy Packing Co. v. State of Minnesota, 246 U.S. 450 (1918), 464 Cullen v. Grove Press, Inc., 276 F.Supp. 727 (1967), 889, 1051 Cummings v. State of Missouri, 71 U.S. 277 (1866), 634, 635, 642, 647, 652, 1017, 1675 Curtis v. Bennett, 256 Iowa 1164, 131 N.W.2d 1 (1964), 696 Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967), 873, 880, 886, 974 Curtiss-Wright Export Corporation, United States v., 299 U.S. 304 (1936), 211, 212, 219, 232, 276, 305, 368 Cuyler v. Adams, 449 U.S. 433 (1981), 522, 523, 524 Cuyler v. Sullivan, 446 U.S. 335 (1980), 1702

Corbett v. D’Alessandro, 487 So.2d 368 (1986), 1365 Corfield v. Coryell, 6 Fed.Cas. 546 (No. 3230) (C.C.E.D.Pa.) (1823), 529, 530, 531, 534, 535, 537, 550, 1310 Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985), 803, 810, 816, 820, 829, 833, 987, 989, 993, 996, 997 Corona, City of v. Corona Daily Indepen¬ dent, 115 Cal.App.2d 382, 252 P.2d 56 (1953), 1040 Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 107 S.Ct. 2862 (1987), 1168, 1194, 1196, 1197, 1198, 1199, 1212, 1215, 1221, 1225, 1230, 1278, 1298, 1720 Corrigan v. Buckley, 271 U.S. 323 (1926), 332, 1695, 1696, 1697 Corson v. State of Maryland, 120 U.S. 502 (1887), 456 Cort v. Ash, 422 U.S. 66 (1975), 160 Cory v. White, 457 U.S. 85 (1982), 193 Cosgrove v. Cloud Books, Inc., 83 A.D.2d 789, 443 N.Y.S.2d 450 (1981), 1050 Costello v. United States, 350 U.S. 359 (1956), 295 Cotner v. Henry, 394 F.2d 873 (1968), 1432 County of (see name of county) Cousins v. Wigoda, 419 U.S. 477 (1975), 1013, 1016, 1113, 1114, 1118 Cox v. New Hampshire, 312 U.S. 569 (1941), 791, 986, 1043, 1046 Cox v. State of La., 379 U.S. 559 (1965), 801, 826, 910, 1025 Cox v. State of La., 379 U.S. 536 (1965), 834, 854, 986, 1056 Cox, United States v., 342 F.2d 167 (1965), 255 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), 198, 864, 875, 881, 889, 963, 965, 1397

DaCosta v. Laird, 471 F.2d 1146 (1973), 232 Da Costa v. Laird, 405 U.S. 979 (1972), 231

lx

TABLE

OF CASES De Jonge v. State of Oregon, 299 (1937), 772, 773, 845, 923 Delacey, Com. v., 271 Mass. 327. 455 (1930), 907 Delaware & Hudson Co., United rel. Attorney General v., 213 (1909), 1030 Delaware v. Van Arsdall, 475 (1986), 41

Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282 (1921), 44, 439 Dallas County, Alabama v. Reese, 421 U.S. 477 (1975), 1066 Dallas Oil & Gas, Inc. v. Mouer, 533 S.W.2d 70 (1976), 975 Dames & Moore v. Regan, 453 U.S. 654 (1981), 241, 242, 526, 607, 612, 613 Dandridge v. Williams, 397 U.S. 471 (1970), 712, 738, 1450, 1456, 1460, 1503, 1601, 1646, 1663 Daniel v. Waters, 515 F.2d 485 (1975), 1206 Daniels v. Williams, 106 S.Ct. 677 (1986), 274 Daniels v. Williams, 474 U.S. 327 (1986), 664, 669, 670, 673, 726, 728 Darby, United States v., 312 U.S. 100, 312 U.S. 657 (1941), 302, 312, 313, 320, 382, 581 Davidson v. Cannon, 474 U.S. 344 (1986), 664, 669, 670, 726, 728 Davidson v. City of New Orleans, 96 U.S. 97 (1877), 564, 565 Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972), 1394 Davis v. Bandemer, 106 S.Ct. 2797 (1986), 104, 119, 398, 818, 1081, 1083, 1084, 1461 Davis v. Beason, 133 U.S. 333 (1890), 1094, 1179 Davis v. Com. of Massachusetts, 167 U.S. 43 (1897), 986, 997 Davis, Helvering v., 301 U.S. 619, 301 U.S. 672 (1937), 322, 323, 583, 1446 Davis v. Mann, 377 U.S. 678 (1964), 1065, 1069, 1072 Davis v. Passman, 442 U.S. 228 (1979), 161, 162, 274, 371 Davis v. Scher, 356 Mich. 291, 97 N.W.2d 137 (1959), 1234 Davis v. Scherer, 468 U.S. 183 (1984), 271 Davis v. Schnell, 81 F.Supp. 872 (1949), 1093 Davis v. Washington, 512 F.2d 956, 168 U.S.App.D.C. 42 (1975), 1503 Davis v. Wechsler, 263 U.S. 22 (1923), 167 Day-Brite Lighting v. State of Missouri, 342 U.S. 421 (1952), 406, 582, 985, 1200 Dayton Bd. of Ed. v. Brinkman, 443 U.S. 526 (1979), 1498, 1501, 1505 Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977), 1497, 1498 Dean Milk Co. v. City of Madison, Wis., 340 U.S. 349 (1951), 426, 438 DeBacker v. Brainard, 396 U.S. 28 (1969), 70 Debs, In re, 158 U.S. 564 (1895), 243 Debs v. United States, 249 U.S. 211 (1919), 354, 842, 843 DeFunis v. Odegaard, 416 U.S. 312 (1974), 83, 85, 89, 90, 93, 114, 1528 De Geofroy v. Riggs, 133 U.S. 258 (1890), 228 Degregory v. Attorney General of State of N.H., 383 U.S. 825 (1966), 1020

U.S. 353 171 N.E. States ex U.S. 366 U.S. 673

Delaware River Joint Toll Bridge Com’n Pennsylvania-New Jersey v. Colburn, 310 U.S. 419 (1940), 524 Delaware State Board of Education v. Ev¬ ans, 446 U.S. 923 (1980), 1501 Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977), 1473, 1681, 1682 Delio on Behalf of Delio v. Westchester County Medical Center, 510 N.Y.S.2d 415 (1986), 1366 Dellinger, United States v., 472 F.2d 340 (1972), 1382 Dellums v. Powell, 561 F.2d 242, 182 U.S.App.D.C. 244 (1977), 283 Democratic Party of United States v. Wis¬ consin ex rel. LaFollette, 450 U.S. 107 (1981), 85, 1014, 1016, 1113, 1114, 1115, 1117, 1118, 1122, 1128 Den ex dem Murray v. Hoboken Land & Improvement Co., 59 U.S. 272 (1855), 51, 52, 53, 55, 562, 664, 678, 722 Dennis v. Sparks, 449 U.S. 24 (1980), 731 Dennis v. United States, 341 U.S. 494 (1951), 844, 845, 846, 847 Dent v. State of West Virginia, 129 U.S. 114 (1889), 647, 682 Department of Banking, State of Nebraska v. Pink, 317 U.S. 264 (1942), 198 Department of Employment v. United States, 385 U.S. 355 (1966), 513 Department of Game of Wash. v. Puyallup Tribe, 414 U.S. 44 (1973), 1474 Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341 (1964), 475, 476 Department of Revenue of State of Wash, v. Association of Washington Stevedor¬ ing Companies, 435 U.S. 734 (1978), 442, 463, 470, 474 Deposit Guaranty Nat. Bank, Jackson, Miss. v. Roper, 445 U.S. 326 (1980), 87 Detroit, City of v. Murray Corporation of America, 355 U.S. 489 (1958), 515, 517 Detroit, City of, United States v., 355 U.S. 466 (1958), 189, 515, 517, 518 Deutch v. United States, 367 U.S. 456 (1961), 378 De Veau v. Braisted, 363 U.S. 144 (1960), 637, 644, 651, 654, 655 DeWeese v. Town of Palm Beach, 616 F.Supp. 971 (1985), 1412 Dewitt, United States v., 76 U.S. 41 (1869), 307, 381, 564 D.H. Overmyer Co., Inc. of Ohio v. Frick Co., 405 U.S. 174 (1972), 693, 749, 750

lxi

TABLE

OF CASES

Diamond v. Chakrabarty, 447 U.S. 303 (1980), 1321 Diamond v. Charles, 476 U.S. 54 (1986), 112, 124, 147 Dickinson, United States v., 465 F.2d 496 (1972), 1045 Dillon y. Gloss, 256 U.S. 368 (1921), 65 Dion, United States v., 476 U.S. 734 (1986), 1474

Douglas v. People of State of California, 372 U.S. 353 (1963), 1462, 1630, 1639, 1647, 1653, 1654 Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977), 428, 506 Dove v. United States, 423 U.S. 325 (1976),

Di Santo v. Commonwealth of Penn¬ sylvania, 273 U.S. 34 (1927), 459 District Court of Eighth Judicial Dist. In and For Cascade County, State ex rel. Offerdahl v., 156 Mont. 432, 481 P.2d 338 (1971), 1269 District of Columbia v. Carter, 409 U.S. 418 (1973), 351 District of Columbia v. Clawans, 300 U.S. 617 (1937), 755 District of Coumbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), 202, 731 Dixon v. Love, 431 U.S. 105 (1977), 719, 1611 Dobbert v. Florida, 432 U.S. 282 (1977), 639, 640 Dobbins v. City of Los Angeles, 195 U.S. 223 (1904), 594 Dobbins v. Commissioners of Erie County, 41 U.S. 435 (1842), 516 Dobkin v. District of Columbia, 194 A.2d 657 (1963), 1246 Doe v. Bolton, 410 U.S. 179 (1973), 75, 81, 533, 539, 544, 545, 1309, 1340, 1341, 1382 Doe v. Kelley, 106 Mich.App. 169, 307 N.W.2d 438 (1981), 1360 Doe v. McMillan, 412 U.S. 306 (1973), 370, 372, 374, 375, 1395 Doe v. Selective Service System, 557 F.Supp. 937 (1983), 649, 653 Dombrowski v. Eastland, 387 U.S. 82 (1967), 370, 374 Dombrowski v. Pfister, 380 U.S. 479 (1965), 204, 863, 1023 Dominus Rex v. Curl, 2 Strange 788 (1727), 905

Dowell v. City of Tulsa, 273 P.2d 859 (1954), 1331 Dowell by Dowell v. Board of Educ. of Oklahoma City Public Schools, Indepen¬ dent Dist. No. 89, 795 F.2d 1516 (1986), 1501 Downes v. Bidwell, 182 U.S. 244 (1901), 361 Downham v. Alexandria Council, 77 U.S. 173 (1869), 530 Doyle v. Koelbl, 434 F.2d 1014 (1970), 1385 Draper v. State of Washington, 372 U.S. 487 (1963), 1630, 1631, 1632

Donaldson v. Read Magazine, 333 U.S. 178 (1948), 1046 Donaldson v. Sack, 265 So. 2d 499 (1972), 639 Donnelly v. Lynch, 525 F.Supp. 1150 (1981), 1281 Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), 202 Doremus v. Board of Education of Borough of Hawthorne, 342 U.S. 429 (1952), 112, 113, 116 Doremus, United States v., 249 U.S. 86 (1919), 319, 575 Dothard v. Rawlinson, 433 U.S. 321 (1977), 1564, 1574, 1587 Doubleday & Company, Inc. v. People of the State of New York., 335 U.S. 848 (1948), 907 Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377 (1929), 184, 531

lxii

92 United States v., 357 U.S. 17 (1958), Dow, 597

Dr. Bonham’s Case, 8 Co. 114a (1610), 745 Dred Scott v. Sandford, 60 U.S. 393 (1856), 28, 65, 356, 530, 549, 1516, 1585 Dreyer v. People of State of Illinois, 187 U.S. 71 (1902), 662 Drueding 1089

v. Devlin, 380 U.S. 125 (1965),

Duckworth v. State of Arkansas, 314 U.S. 390 (1941), 418, 476 Duhne v. State of New Jersey, 251 U.S. 311 (1920), 176, 185 Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978), 72, 77, 78, 81, 82, 118, 121, 131, 144, 610, 611 Dunbar-Stanley Studios, Inc. v. Alabama, 393 U.S. 537 (1969), 457 Dun & Bradstreet, Inc. v. Greenmoss Build¬ ers, Inc., 472 U.S. 749 (1985), 873, 876, 877, 878, 879, 882, 885, 886, 1009 Duncan v. Kahanamoku, 327 U.S. 304 (1946), 60, 238 Duncan v. Louisiana, 391 U.S. 145 (1968), 772, 773 Duncan v. Missouri, 152 U.S. 377 (1894), 638 Dunn v. Blumstein, 405 U.S. 330 (1972), 86, 539, 1089, 1091, 1382, 1455 Duren v. Missouri, 439 U.S. 357 (1979), 1561 Durham v. United States, 401 U.S. 481 (1971), 92 Dusch v. Davis, 387 U.S. 112 (1967), 1066, 1067 Dyer v. Blair, 390 F.Supp. 1291 (1975), 152 Dynes v. Hoover, 61 U.S. 65 (1857), 55, 58 Eastern Air Transport v. South Carolina Tax Commission, 285 U.S. 147 (1932), 447 Eastern Rail, Pres. Conf. v. Noerr Motor Frgt., Inc., 365 U.S. 127 (1961), 1022 Eastlake, City of v. Forest City Enterprises, Inc., 426 U.S. 668 (1976), 369, 647, 658, 659, 1096, 1678

TABLE

OF CASES

Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975), 288, 370, 372, 374, 375, 376, 377, 1395 East New York Sav. Bank v. Hahn, 326 U.S. 230 (1945), 619 Eaton v. City of Tulsa, 415 U.S. 697 (1974), 851, 856 E.C. Knight Co., United States v., 156 U.S. 1 (1895), 308 Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211 (1971), 1394 Edelman v. Boeing Air Transport, 289 U.S. 249 (1933), 463 Edelman v. Jordan, 415 U.S. 651 (1974), 44, 177, 179, 180, 181, 182, 183, 186, 188, 192, 193, 194, 195, 323, 387 Edgar v. MITE Corp., 457 U.S. 624 (1982), 409, 422, 436, 443, 485, 543, 544 Edwards v. Aguillard, 107 S.Ct. 2573 (1987), 812, 817, 823, 1163, 1169, 1196, 1208, 1209, 1210, 1213 Edwards v. Arizona, 451 U.S. 477 (1981), 31, 1636 Edwards v. National Audubon Soc., Inc., 556 F.2d 113 (1977), 871 Edwards v. People of State of California, 314 U.S. 160 (1941), 422, 425, 548, 558, 754, 1379, 1383, 1455, 1458, 1626, 1627, 1628, 1636, 1642, 1646, 1667, 1671 Edwards v. South Carolina, 372 U.S. 229 (1963), 827, 854, 986 Edwards v. United States, 286 U.S. 482 (1932), 263, 265 Edye v. Robertson, 112 U.S. 580 (1884), 226, 325 E.E.O.C. v. Wyoming, 460 U.S. 226 (1983), 343, 392, 393, 1594 E.F. Drew & Co. v. Federal Trade Commis¬ sion, 235 F.2d 735 (1956), 1046 Eggert v. City of Seattle, 81 Wash.2d 840, 505 P.2d 801 (1973), 1380 Eichner, S.M. v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517 (1980), 1365 Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, United States v., 461 U.S. 555 (1983), 729, 730, 752 Eisenstadt v. Baird, 405 U.S. 438 (1972), 137, 138, 139, 1339, 1341, 1423, 1608, 1681 Eisner v. Macomber, 252 U.S. 189 (1920), 319 El Dorado County, People ex rel. Younger v., 96 Cal.Rptr. 553, 487 P.2d 1193 (1971), 1460 Electric Bond & Share Co. v. Securities and Exchange Com’n, 303 U.S. 419 (1938), 326 Elfbrandt v. Russell, 384 U.S. 11 (1966), 1015 Eli Lilly and Company v. Sav-On-Drugs, Inc., 366 U.S. 276 (1961), 438, 440 Ellis v. Brotherhood of Ry., Airline and S.S. Clerks, Freight Handlers, Exp. and

Station Employees, 466 U.S. 435 (1984), 84, 805, 806, 1059 Ellis v. Dyson, 421 U.S. 426 (1975), 75 El Paso, City of v. Simmons, 379 U.S. 497 (1965), 616, 619 Elrod v. Burns, 427 U.S. 347 (1976), 1014, 1018, 1129, 1387, 1389 Ely v. Klahr, 403 U.S. 108 (1971), 1069 Emert v. Missouri, 156 U.S. 296 (1895), 456 Employees of Dept, of Public Health and Welfare, Missouri v. Department of Pub¬ lic Health and Welfare, Missouri, 411 U.S. 279 (1973), 176, 179, 180, 181, 182, 183, 185, 186, 188, 316, 323 Emporium Capwell Co. v. Western Addi¬ tion Community Organization, 420 U.S. 50 (1975) 992 Empresa Siderurgica v. County of Merced, 337 U.S. 154 (1949), 473 Emspak v. United States, 349 U.S. 190 (1955), 377 Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400 (1983), 623, 624 Engel v. Vitale, 370 U.S. 421 (1962), 1157, 1158, 1159, 1160, 1167, 1170, 1173, 1178, 1206, 1216, 1226, 1276, 1286, 1287, 1288 England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411 (1964), 201 Engle v. Isaac, 456 U.S. 107 (1982), 173 Enmons, United States v., 410 U.S. 396 (1973), 187, 316 Environmental Protection Agency v. Cali¬ fornia ex rel. State Water Resources Control Bd., 426 U.S.. 200 (1976), 512 Environmental Protection Agency v. Mary¬ land, 431 U.S. 99 (1977), 77 Environmental Protection Agency v. Mink, 410 U.S. 73 (1973), 279 Epperson v. Arkansas, 393 U.S. 97 (1968), 72, 75, 303, 817, 1169, 1206, 1207, 1208, 1209, 1210, 1213, 1234, 1388 Erb v. Iowa State Bd. of Public Instruction, 216 N.W.2d 339 (1974), 1433 Erb v. Morasch, 177 U.S. 584 (1900), 408 Erie R. Co. v. People of State of New York, 233 U.S. 671 (1914), 497 Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), 158, 159, 380, 579 Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), 909, 937, 948, 950, 952, 1409 Escobedo v. State of Ill., 378 U.S. 478 (1964), 1635 Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984), 1470 Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86 (1973), 1545 Esso Standard Oil Co. v. Evans, 345 U.S. 495 (1953), 517

Estate of (see name of party)

Estelle v. Gamble, 429 U.S. 97 (1976), 1335, 1336 Estep v. United States, 327 U.S. 114 (1946), 46

lxiii

TABLE

OF CASES

Estes v. Metropolitan Branches of Dallas NAACP, 444 U.S. 437 (1980), 1486, 1501 Eubank v. City of Richmond, 226 U.S. 137 (1912), 132, 369, 494, 658, 1096, 1678 Euclid, Ohio, Village of v. Ambler Realty Co., 272 U.S. 365 (1926), 133, 134, 593, 594, 948 Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265 (1921), 462 Evans v. Abney, 396 U.S. 435 (1970), 1715 Evans v. Cornman, 398 U.S. 419 (1970), 1089 Evans v. Newton, 382 U.S. 296 (1966), 1705, 1706 Evans, United States v., 213 U.S. 297, 803 (1909), 73 Evansville- Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U.S. 707 (1972), 445, 463 Evco v. Jones, 409 U.S. 91 (1972), 465 Evers v. Dwyer, 358 U.S. 202 (1958), 94 Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947), 116, 118, 134, 772, 1156, 1157, 1158, 1159, 1166, 1171, 1176, 1186, 1195, 1215, 1218, 1222, 1234, 1274, 1283 Evitts v. Lucey, 469 U.S. 387 (1985), 92, 1631 Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950), 680 682, 716, 721 Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572 (1976), 200, 1548 Ex parte (see name of party) Exxon Corp. v. Eagerton, 462 U.S. 176 (1983), 624, 1445 Exxon Corp. v. F.T.C., 589 F.2d 582, 191 U.S.App.D.C. 59 (1978), 276 Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978), 412, 416, 417, 488, 622 Exxon Corp. v. Wisconsin Dept, of Reve¬ nue, 447 U.S. 207 (1980), 466 Fahey v. Mallonee, 332 U.S. 245 (1947), 722 Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100 (1981), 197, 204 Falbo v. United States, 320 U.S. 549 (1944), 46 Farber, Matter of, 78 N.J. 259, 394 A.2d 330 (1978), 975 Fare v. Michael C., 442 U.S. 707 (1979), 40 Farmer v. United Brotherhood of Carpenters and Joiners of America, Lo¬ cal 25, 430 U.S. 290 (1977), 504 Farmers Educational & Coop. Union of America, North Dakota Div. v. WDAY, Inc., 360 U.S. 525 (1959), 502 Farnsworth v. Procter & Gamble Co., 758 F.2d 1545 (1985), 1395 Farrell, Matter of, 108 N.J. 335, 529 A.2d 404 (1987), 1364 F.C.C. v. Florida Power Corp., 107 S.Ct. 1107 (1987), 604, 1008

Ixiv

F.C.C. v. League of Women Voters of Cali¬ fornia, 468 U.S. 364 (1984), 648, 681, 781, 784, 903, 980, 1006 F.C.C. v. Midwest Video Corp., 440 U.S. 689 (1979), 1006 F.C.C. v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978), 1009 F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978), 836, 851, 910, 930, 935, 938, 939, 942, 948, 950, 1006 Federal Communications Com’n v. Sanders Bros. R.S., 309 U.S. 470, 309 U.S. 642 (1940), 141 Federal Compress & Warehouse Co. v. Mc¬ Lean, 291 U.S. 17 (1934), 461 Federal Election Com’n v. Massachusetts Citizens for Life, Inc., 107 S.Ct. 616 (1986), 984, 1147, 1619 Federal Election Com’n v. National Con¬ servative Political Action Committee, 470 U.S. 480 (1985), 783, 901, 928, 1016, 1135, 1143, 1145 Federal Election Com’n v. National Right to Work Committee, 459 U.S. 197 (1982), 984, 1016, 1146 Federal Energy Administration v. Algon¬ quin SNG, Inc., 426 U.S. 548 (1976), 221, 362 Federal Energy Regulatory Commission v. Mississippi, 456 U.S. 742 (1982), 113, 391, 392, 393, 397, 398, 1487 Federal Power Com’n v. Hope Natural Gas Co., 320 U.S. 591 (1944), 566, 593 Federal Trade Commission v. Standard Ed¬ ucation Soc., 302 U.S. 112 (1937), 1046 Fehlhaber v. State of N.C., 675 F.2d 1365 (1982), 1046, 1050 Feiner v. People of State of New York, 340 U.S. 315 (1951), 48, 854, 855 Fellows v. Blacksmith, 60 U.S. 366 (1856), 1467 Fellowship of Humanity v. Alameda Coun¬ ty, 153 Cal.App.2d 673, 315 P.2d 394 (1957), 1183 Felt & Tarrant Mfg. Co. v. Gallagher, 306 U.S. 62 (1939), 447 Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 237 U.S.App.D.C. 164 (1984), 490 Ferguson v. Skrupa, 372 U.S. 726 (1963), 582, 902, 1375, 1697 Ferrell v. Dallas Independent School Dis¬ trict, 393 U.S. 856 (1968), 1386 Ferri v. Ackerman, 444 U.S. 193 (1979), 755, 1702 Fetler v. Houghton Mifflin Co., 364 F.2d 650 (1966), 886 Fiallo v. Bell, 430 U.S. 787 (1977), 355, 358, 360 Ficklen v. Taxing Dist. of Shelby County, 145 U.S. 1 (1892), 464 Fidelity Federal Sav. and Loan Ass’n v. de la Cuesta, 458 U.S. 141 (1982), 481, 500 Finzer v. Barry, 798 F.2d 1450, 255 U.S.App.D.C. 19 (1986), 790, 798, 952, 994

TABLE

OF CASES

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984), 1534 First Agr. Nat. Bank of Berkshire County v. State Tax Commission, 392 U.S. 339 (1968), 515 First English Evangelical Lutheran Church of Glendale v. Los Angeles Coun¬ ty, Cal., 107 S.Ct. 2378 (1987), 596, 598 First Iowa Hydro-Elec. Coop. v. Federal

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963), 369, 413, 481, 495, 496, 497, 506, 626, 1679 Foley v. Connelie, 435 U.S. 291 (1978), 1548, 1549, 1550, 1614 Follett v. Town of McCormick, S.C., 321 U.S. 573 (1944), 978, 1040 Fong Yue Ting v. United States, 149 U.S. 698 (1893), 359 Foody v. Manchester Memorial Hosp., 40 Conn.Supp. 127, 482 A.2d 713 (1984), 1365

Power Com’n, 328 U.S. 152 (1946), 506 First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978), 795, 796, 803, 809, 834, 836, 876, 895, 904, 933, 945, 959, 971, 1140, 1145, 1147, 1203 First Nat. Bank of Guthrie Center v. An¬ derson, 269 U.S. 341 (1926), 512 First Nat. City Bank v. Banco Nacional De Cuba, 406 U.S. 759 (1972), 102 Fisher v. City of Berkeley, Cal., 475 U.S. 260 (1986), 489, 494, 1130 Fisher v. District Court of Sixteenth Judi¬ cial Dist. of Montana, In and For Rose¬ bud County, 424 U.S. 382 (1976), 1469, 1470, 1471 Fisher v. United States, 425 U.S. 391 (1976), 320, 375, 1399 Fisher, United States v., 6 U.S. 358 (1805), 302 Fiske v. State of Kansas, 274 U.S. 380 (1927), 772, 834, 845 Fitts v. McGhee, 172 U.S. 516 (1899), 176, 190

Forstner v. City and County of San Fran¬ cisco, 243 Cal.App.2d 625, 52 Cal.Rptr. 621 (1966), 1385 Forsyth v. City of Hammond, 166 U.S. 506 (1897), 99 Fort Halifax Packing Co., Inc. v. Coyne, 107 S.Ct. 2211 (1987), 491, 500 Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525 (1885), 228, 330 Foster v. Neilson, 27 U.S. 253 (1829), 225, 226 Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928), 427, 428, 437, 454 Founding Church of Scientology of Wash¬ ington, D.C. v. United States, 409 F.2d 1146, 133 U.S.App.D.C. 229 (1969), 1182, 1235, 1246 Fowler v. State of Rhode Island, 345 U.S. 67 (1953), 1235 Fox, United States v., 95 U.S. 670 (1877), 324, 381 Fox Film Corporation v. Muller, 296 U.S. 207 (1935), 163

Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716 (1975), 1362 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), 180, 183, 186, 188 Five Gambling Devices Labeled in Part Mills and Bearing Serial Nos. 593-221, United States v., 346 U.S. 441 (1953), 187, 316 Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978), 1660, 1665, 1689, 1690, 1698, 1707, 1712 Flast v. Cohen, 392 U.S. 83 (1968), 67, 107, 108, 116, 118, 120, 125, 127, 128, 129, 143, 321, 323, 807, 1160, 1283 Flaxer v. United States, 358 U.S. 147 (1958), 377 Fleming v. Page, 50 U.S. 603 (1850), 231 Flemming v. Nestor, 363 U.S. 603 (1960), 303, 590, 627, 637, 652, 654, 817 Fletcher v. Peck, 10 U.S. 87 (1810), 547, 562, 564, 587, 613, 633, 634, 635, 636, 642, 662, 814 Flint v. Stone Tracy Co., 220 U.S. 107 (1911), 319, 575 Florida v. Casal, 462 U.S. 637 (1983), 166 Florida v. Meyers, 466 U.S. 380 (1984), 41 Florida Dept, of Health and Rehabilitative

Frady, United States v., 456 U.S. 152 (1982), 173 Framingham Clinic, Inc. v. Board of Selectmen of Southborough, 373 Mass. 279, 367 N.E.2d 606 (1977), 1613 Frank v. Mangum, 237 U.S. 309 (1915), 632 Frankfort Distilleries, United States v., 324 U.S. 293 (1945), 475 Franks v. Bowman Transp. Co., Inc., 424 U.S. 747 (1976), 86, 87 Frazier v. Heebe, 107 S.Ct. 2607 (1987), 540 Free v. Bland, 369 U.S. 663 (1962), 481 Freed, United States v., 401 U.S. 601 (1971), 320 Freedman v. State of Md., 380 U.S. 51 (1965), 327, 1010, 1032, 1039, 1055, 1059 Freeman v. Flake, 405 U.S. 1032 (1972), 1388 Freeman v. Flake, 320 F.Supp. 531 (1970), 1386 Freeman v. Hewit, 329 U.S. 249 (1946), 445, 446, 459, 463 Fresno, County of, United States v., 429 U.S. 452 (1977), 517 Friede, Com. v., 271 Mass. 318, 171 N.E. 472 (1930), 906, 907

Services v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981), 182 Florida Dept, of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982), 193 Florida East Coast Ry. Co., United States v., 410 U.S. 224 (1973), 737

Friedman v. Board of County Com’rs of Bernalillo County, 781 F.2d 777 (1985), 1187, 1288

lxv

TABLE

OF CASES

Friedman v. Froehlke, 470 F.2d 1351 (1972), 1385 Friedman v. Rogers, 440 U.S. 1 (1979), 901, 933, 947, 1026 Fries, People v., 42 I11.2d 446, 250 N.E.2d 149 (1969), 1371, 1372 Frohwerk v. United States, 249 U.S. 204 (1919), 354, 842, 843 Frontiero v. Richardson, 411 U.S. 677 (1973), 1354, 1545, 1562, 1571, 1585, 1615 Frost v. Railroad Commission of State of California, 271 U.S. 583 (1926), 48, 681 Fruehauf, United States v., 365 U.S. 146 (1961), 73 Fry v. United States, 421 U.S. 542 (1975), 188, 379, 382, 387 Fuentes v. Shevin, 407 U.S. 67 (1972), 610, 616, 667, 680, 686, 693, 694, 705, 710, 717, 723, 724, 749, 754, 761, 1336, 1637, 1638, 1644, 1660, 1712 Fuller v. Oregon, 417 U.S. 40 (1974), 1636 Fullilove v. Klutznick, 448 U.S. 448 (1980), 344, 345, 350, 1522, 1533, 1534, 1537, 1538, 1569, 1679 Furman v. Georgia, 408 U.S. 238 (1972), 639, 640, 1625, 1678, 1684, 1685, 1686 F. W. Woolworth Co. v. Taxation and Reve¬ nue Dept, of State of N. M., 458 U.S. 354 (1982), 453, 467

Garnett, Ex parte, 141 U.S. 1 (1891), 157, 304 Garrison v. State of La., 379 U.S. 64 (1964), 863, 864, 866, 870, 1714 Garrity v. State of N. J., 385 U.S. 493 (1967), 1021, 1389 Gaskin v. State, 490 S.W.2d 521 (1973), 1269 Gaskin, United States v., 320 U.S. 527 (1944), 332 Ga., State of v. Pennsylvania R. Co., 324 U.S. 439 (1945), 148 Gault, Application of, 387 U.S. 1 (1967), 1590 Gayety Theatres, Inc. v. City of Miami, 719 F.2d 1550 (1983), 1051 Gayle v. Browder, 352 U.S. 903 (1956), 1476 Gaylord v. Tacoma School Dist. No. 10, 88 Wash.2d 286, 559 P.2d 1340 (1977), 1435 Geduldig v. Aiello, 417 U.S. 484 (1974), 1578, 1579, 1580, 1582, 1583, 1584, 1622 Geer v. Connecticut, 161 U.S. 519 (1896), 428, 531 Geisler v. Petrocelli, 616 F.2d 636 (1980),

886 Gelpcke (1863), General (1976),

General Motors Corp. v. District of Colum¬ bia, 380 U.S. 553 (1965), 466 General Motors Corp. v. Washington, 377 U.S. 436 (1964), 454, 459, 464, 465

Gaffney v. Cummings, 412 U.S. 735 (1973), 1070, 1071, 1081 Gagnon v. Scarpelli, 411 U.S. 778 (1973), 688, 739, 1635, 1651 Gagnon, United States v., 470 U.S. 522 (1985), 751 Galda v. Rutgers, 772 F.2d 1060 (1985), 806 Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., 366 U.S. 617 (1961), 1157 Galvan v. Press, 347 U.S. 522 (1954), 358, 359, 636 Galveston, H. & S. A. R. Co. v. State of Texas, 210 U.S. 217 (1908), 445 Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979), 85, 957, 959, 961, 962 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), 20, 181, 186, 188, 310, 314, 378, 388, 393, 394, 430, 480, 1684, 1706 Garcia v. Texas State Board of Medical Examiners, 421 U.S. 995 (1975), 1012, 1661 Gardner v. Broderick, 392 U.S. 273 (1968), 1021, 1022 Gardner v. California, 393 U.S. 367 (1969), 755, 1632 Garland, Ex parte, 71 U.S. 333 (1866), 256, 634, 642, 647, 1017, 1675 Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716 (1951), 646 Garner v. Louisiana, 368 U.S. 157 (1961), 854 Garner v. Teamsters, Chauffeurs and Help¬ ers Local Union No. 776 (A.F.L.), 346 U.S. 485 (1953), 503

v. City of Dubuque, 68 U.S. 175 563 Elec. Co. v. Gilbert, 429 U.S. 125 1578, 1579, 1580, 1583, 1622

General Iowa, George City 682

Trading Co. v. State Tax Com’n of 322 U.S. 335 (1944), 449 v. Conneaut Bd. of Ed., Conneaut School Dist., 472 F.2d 132 (1972),

George, United States v., 239 F.Supp. 752 (1965), 1268 Georgia Public Service Commission, Unit¬ ed States v., 371 U.S. 285 (1963), 513 Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299 (1952), 178, 618 Georgia, State of v. Tennessee Copper Co., 206 U.S. 230 (1907), 148, 149 Gerhardt, Helvering v., 304 (1938), 380, 382, 512 Gerlach Livestock Co., United 339 U.S. 725 (1950), 322 Germaine,

United

U.S.

405

States v.,

States v., 99 U.S. 508

(1878), 246 Gerstein v. Pugh, 420 U.S. 103 (1975), 87 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), 558, 786, 793, 838, 864, 865, 870, 871, 873, 874, 875, 876, 877, 878, 879, 880, 881, 882, 883, 884, 886, 887, 894, 927, 930, 931, 1002, 1131, 1396, 1588 Gibbons v. Ogden, 22 U.S. 1 (1824), 306, 307, 404, 406, 479, 491, 506, 512 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949), 826 Gibson v. Berryhill, 411 U.S. 564 (1973), 203, 204, 494, 706, 745, 1375

lxvi

TABLE

OF CASES

Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963), 1020 Gibson v. Mississippi, 162 U.S. 565 (1896), 638 Gideon v. Wainwright, 372 U.S. 335 (1963), 684, 739, 773, 1634, 1649, 1652 Gillespie v. State of Oklahoma, 257 U.S. 501 (1922), 516 Gillette v. United States, 401 U.S. 437 (1971), 1192, 1206, 1266, 1272 Gilligan v. Morgan, 413 U.S. 1 (1973), 105, 1690 Gillock, United States v., 445 U.S. 360 (1980), 370 Gilman v. City of Philadelphia, 70 U.S. 713 (1865), 407, 410 Gilmore v. City of Montgomery, Ala., 417 U.S. 556 (1974), 1479, 1492 Ginsberg v. New York, 390 U.S. 629 (1968), 92, 910, 912, 937, 941, 1299 Ginzburg v. United States, 383 U.S. 463 (1966), 911 Giragi v. Moore, 301 U.S. 670 (1937), 1040 Girard College Tursteeship, In re, 391 Pa. 434, 138 A.2d 844 (1958), 1715 Girard Trust Co. v. C.I.R., 122 F.2d 108 (1941), 1282 Girsh, Appeal of, 437 Pa. 237, 263 A.2d 395 (1970), 1381 Gish v. Board of Ed. of Borough of Paramus, Bergen County, 145 N.J.Super. 96, 366 A.2d 1337 (1976), 1435 Gitlow v. People of State of New York, 268 U.S. 652 (1925), 844, 845, 846, 852 Givhan v. Western Line Consol. School Dist., 439 U.S. 410 (1979), 815 Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979), 108, 110, 112, 114, 117, 119, 141 Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), 1349 Glen v. Hongisto, 438 F.Supp. 10 (1977), 1043 Glidden Co. v. Zdanok, 370 U.S. 530 (1962), 52, 95, 279 Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596 (1982), 85, 921, 960, 961, 962 Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73 (1968), 1416, 1554 Gober v. City of Birmingham, 373 U.S. 374 (1963), 1702 Godcharles v. Wigeman, 6 A. 354 (1886), 566 Godfrey v. Georgia, 446 U.S. 420 (1980), 1685 Goesaert v. Cleary, 335 U.S. 464 (1948), 1560, 1565 Gojack v. United States, 384 U.S. 702 (1966), 377 Gold v. Dicarlo, 380 U.S. 520 (1965), 574 Goldberg v. Kelly, 397 U.S. 254 (1970), 180, 653, 666, 685, 686, 687, 690, 701, 707, 718, 719, 738, 739, 740, 744, 745, 747,

754, 761, 969, 1336, 1629, 1643, 1644, 1662 Goldblatt v. Town of Hempstead, N. Y., 369 U.S. 590 (1962), 593, 596 Goldblum v. National Broadcasting Corp., 584 F.2d 904 (1978), 1043 Golden v. Zwickler, 394 U.S. 103 (1969), 80 Golden Eagle v. Johnson, 493 F.2d 1179 (1974), 1269 Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986), 502 Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), 493 Goldman v. Weinberger, 475 U.S. 503 (1986), 967, 1192, 1194, 1242, 1260, 1263, 1264, 1265, 1294, 1573 Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117 (1926), 683 Goldstein v. California, 412 U.S. 546 (1973), 407, 509 Goldwater v. Carter, 444 U.S. 996 (1979), 81, 91, 101, 105, 152, 225, 230 Goldwater v. Carter, 617 F.2d 697, 199 U.S.App.D.C. 115 (1979), 151 Gomez v. Perez, 409 U.S. 535 (1973), 1554, 1557 Gomillion v. Lightfoot, 364 U.S. 339 (1960), 303, 335, 817, 1076, 1077 Gomperts v. Chase, 404 U.S. 1237 (1971), 1479 Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1 (1929), 1240 Gooding v. Wilson, 405 U.S. 518 (1972), 849, 850, 861, 929, 1024, 1025, 1035 Goodwin, United States v., 457 U.S. 368 (1982), 816 Goosby v. Osser, 409 U.S. 512 (1973), 1095 Gordon, Commonwealth v., 66 Pa.D&C 101 (1949), 908 Gordon v. Lance, 403 U.S. 1 (1971), 1096, 1461, 1485 Gordon v. United States, 117 U.S. 697 (1886), 94 Gosa v. Mayden, 413 U.S. 665 (1973), 30 Goss v. Board of Ed. of City of Knoxville, Tenn., 373 U.S. 683 (1963), 1490 Goss v. Lopez, 419 U.S. 565 (1975), 686, 700, 702, 708, 715, 716, 717, 722, 737, 765, 1396, 1590 Gotthilf v. Sills, 375 U.S. 79 (1963), 198 Grace v. Burger, 665 F.2d 1193, 214 U.S.App.D.C. 375 (1981), 995 Grace, United States v., 461 U.S. 171 (1983), 829, 994 Grady, In re, 61 Cal.2d 887, 39 Cal.Rptr. 912, 394 P.2d 728 (1964), 1245, 1324 Graham v. Richardson, 403 U.S. 365 (1971), 180, 686, 1545, 1547, 1548, 1614 Graham v. West Virginia, 224 U.S. 616 (1912), 637 Grannis v. Ordean, 234 U.S. 385 (1914), 664 Gratiot, United States v., 39 U.S. 526 (1840), 329 Gravel v. United States, 408 U.S. 606 (1972), 370, 371, 372

lxvii

TABLE

OF CASES

Graves v. Barnes, 405 U.S. 1201 (1972), 44 Graves v. People of State of New York, 306 U.S. 466 (1939), 34, 382, 516, 1164 Gray v. Sanders, 372 U.S. 368 (1963), 1063, 1065, 1066, 1120, 1126 Grayned v. City of Rockford, 408 U.S. 104 (1972), 791, 830, 910, 979, 986, 992, 994, 1033

Great Am. Federal Sav. & Loan Ass’n v. Novotny, 442 U.S. 366 (1979), 352 Great Atlantic & Pac. Tea Co., Inc. v. Cot* treli, 424 U.S. 366 (1976), 414, 427, 430 Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944), 177 Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932), 30 Green, In re, 448 Pa. 338, 292 A.2d 387 (1972), 1268 Green v. Biddle, 21 U.S. 1 (1821), 523, 614 Green v. County School Bd. of New Kent County, Va., 391 U.S. 430 (1968), 1490, 1496, 1500, 1501 Green v, Frazier, 253 U.S. 233 (1920), 575 Green v. Mansour, 474 U.S. 64 (1985), 180, 191, 194 Green v. Waterford Bd. of Ed., 473 F.2d 629 (1973), 1605 Greenbelt Co-Op. Pub. Ass’n v. Bresler, 398 U.S. 6 (1970), 865, 870 Greene v. Lindsey, 456 U.S. 444 (1982), 734 Greene v. McElroy, 360 U.S. 474 (1959), 365, 366, 683, 736, 1017 Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979), 674, 676, 689, 697, 716, 733, 765 Greer v. Spock, 424 U.S. 828 (1976), 800, 801, 934, 967, 982, 989, 1000, 1265 Gregg v. Georgia, 428 U.S. 153 (1976), 1686 Gregory v. City of Chicago, 394 U.S. Ill (1969), 854, 949 Gregory v. Town of Pittsfield, 470 U.S. 1018 (1985), 1644 Gregory v. Town of Pittsfield, 479 A.2d 1304 (1984), 690 Griffin v. Breckenridge, 403 U.S. 88 (1971), 334, 353, 380, 1397 Griffin v. County School Bd. of Prince Ed¬ ward County, 377 U.S, 218 (1964), 815, 1479, 1481, 1490 Griffin v. People of the State of Illinois, 351 U.S. 12 (1956), 755, 1461, 1627, 1629, 1630, 1637, 1639, 1641, 1643, 1647, 1650, 1653, 1654, 1661 Griffin v. State of Cal., 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, 32 O.G.2d 437 (1965), 1457 Griffin v. State of Md., 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964), 1702 Griffith v. Kentucky, 107 S.Ct. 708 (1987), 31 Griffiths, Application of, 413 U.S. 717 (1973), 1548, 1549 Griggs v. Allegheny County, Pa., 369 U.S. 84 (1962), 592

Griggs v. Duke Power Co., 401 U.S. 424 (1971), 1584 Grisham v. Hagan, 361 U.S. 278 (1960), 60 Griswold v. State of Conn., 381 U.S. 479 (1965), 138, 769, 774, 775, 777, 963, 1010, 1307, 1309, 1320, 1338, 1339, 1340, 1341, 1347, 1348, 1415, 1422, 1423, 1429, 1605 Grosjean v. American Press Co., 297 U.S. 233 (1936), 773, 817, 998, 1004, 1040 Grossman, Ex parte, 267 U.S. 87 (1925), 256 Grosso v. United States, 390 U.S. 62 (1968), 319 Grove v. Mead School Dist. No. 354, 753 F.2d 1528 (1985), 1176, 1184, 1186, 1275 Grovey v. Townsend, 295 U.S. 45 (1935), 335, 1119 Gryger v. Burke, 334 U.S. 728 (1948), 637 Guardianship of (see name of party) Guest, United States v., 383 U.S. 745 (1966), 351, 352, 353, 963, 1379 Guinn v. United States, 238 U.S. 347 (1915), 335, 1093 Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), 970 Gulf Oil Corp. v. Copp Paving Co., Inc., 419 U.S. 186 (1974), 317 Gulliver’s Periodicals, Ltd. v. Chas. Levy Circulating Co., Inc., 455 F.Supp. 1197 (1978), 972 Gurley v. Rhoden, 421 U.S. 200 (1975), 515 Guy v. City of Baltimore, 100 U.S. 434 (1879), 454 Guy W. Capps, Inc., United States v., 204 F.2d 855 (1953), 229 Gwin, White &, Prince, Inc. v. Henneford, 305 U.S. 434 (1939), 459, 464 Hadacheck v. Sebastian, (1915), 593, 594

239

U.S. 394

Hadley v. Junior College Dist. of Metropoli¬ tan Kansas City, Mo., 397 U.S. 50 (1970), 1067, 1068, 1127 Hague v. Committee for Industrial Organi¬ zation, 307 U.S. 496 (1939), 557, 558, 772, 853, 978, 986 Haig v. Agee, 453 U.S. 280 (1981), 242, 243, 721, 967, 1051, 1378, 1379, 1383, 1384 Haitian Refugee Center v. Gracey, 809 F.2d 794, 257 U.S.App.D.C. 367 (1987), 109, 144 Haldeman, United States v., 559 F.2d 31, 181 U.S.App.D.C. 254 (1976), 858 Hale v. Bimco Trading, Inc., 306 U.S. 375 (1939), 454, 474 Halkin, In re, 598 F.2d 176, 194 U.S.App.D.C. 257 (1979), 970, 1043 Hall v. Beals, 396 U.S. 45 (1969), 83, 86 Hall v. Bradshaw, 630 F.2d 1018 (1980), 1285, 1296 Hall v. De Cuir, 95 U.S. 485 (1877), 435 Hall, United States v., 26 Fed.Cas. 79 (1871), 1694 Halliburton Oil Well Cementing Reily, 373 U.S. 64 (1963), 458

Ixviii

Co. v.

TABLE

OF CASES Harrington v. Schlesinger, 528 F.2d 455 (1975), 154 Harris v. McRae, 448 U.S. 297 (1980), 38, 147, 782, 1275, 1345, 1346, 1347, 1353, 1354, 1360, 1439, 1459, 1575, 1613, 1655, 1659 Harris v. New York, 401 U.S. 222 (1971),

Halliday v. United States, 394 U.S. 831 (1969), 31 Hallie, Town of v. City of Eau Claire, 471 U.S. 34 (1985), 494, 1680 Hallmark Clinic v. North Carolina Dept, of Human Resources, 380 F.Supp. 1153 (1974), 177 Halperin v. Kissinger, 606 F.2d 1192, 196 U.S.App.D.C. 285 (1979), 272 Halperin v. Kissinger, 401 F.Supp. 272 (1975), 283 Ham v. South Carolina, 409 U.S. 524 (1973), 1385, 1386 Hamilton v. Alabama, 368 U.S. 52 (1961), 1634 Hamilton v. Kentucky Distilleries & Ware¬ house Co., 251 U.S. 146 (1919), 354 Hamlin, Matter of Guardianship of, 102 Wash. 2d 810, 689 P.2d 1372 (1984), 1369 Hamling v. United States, 418 U.S. 87 (1974), 909, 912, 913, 937 Hamm v. Virginia State Bd. of Elections, 230 F.Supp. 156 (1964), 1481 Hammer v. Dagenhart, 247 U.S. 251 (1918), 302, 307, 311, 312, 320, 381 Hammond Packing Co. v. State of Arkan¬ sas, 212 U.S. 322 (1909), 750 Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), 360, 363, 692, 1376, 1377, 1545, 1546, 1593, 1602, 1603, 1606, 1607, 1608, 1611, 1613, 1622, 1677, 1678, 1680, 1681, 1682, 1684 Hancock v. Train, 426 U.S. 167 (1976), 512 Hankerson v. North Carolina, 432 U.S. 233 (1977), 30 Hanna v. Plumer, 380 U.S. 460 (1965), 50 Hannah v. Larche, 363 U.S. 420 (1960), 336, 683, 691, 714, 732 Hannegan v. Esquire, 327 U.S. 146 (1946), 327 Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465 (1877), 415, 425 Hanover Nat Bank of City of New York v. Moyses, 186 U.S. 181 (1902), 326 Hans v. State of Louisiana, 134 U.S. 1 (1890), 176, 185 Hardin v. Kentucky Utilities Co., 390 U.S. 1 (1968), 115 Hardwick v. Board of School Trustees of Fruitridge School Dist., Sacramento County, 54 Cal.App. 696, 205 P. 49 (1921), 1156 Harisiades v. Shaughnessy, 342 U.S. 580 (1952), 359, 636 Harlib v. Lynn, 511 F.2d 51 (1975), 1683 Harlow v. Fitzgerald, 457 U.S. 800 (1982), 270, 271, 276 Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966), 315, 1086, 1092, 1094, 1437, 1461, 1625, 1641, 1643, 1655, 1661 Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), 839, 888 Harrington v. Bush, 553 F.2d 190, 180 U.S.App.D.C. 45 (1977), 150, 154

40, 1635 Harris, United States v., 106 U.S. 629 (1883), 330, 351, 1693 Harris v. United States, 404 U.S. 1232 (1971), 684 Harris County Com’rs Court v. Moore, 420 U.S. 77 (1975), 200, 201 Haskell v. Kansas Natural Gas Co., 224 U.S. 217 (1912), 440 Hatch v. Goerke, 502 F.2d 1189 (1974), 1386 Hauenstein v. Lynham, 100 U.S. 483 (1879), 226 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), 84, 117, 119, 141, 145, 146 Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251 (1972), 148, 149, 176 Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), 80, 196, 200, 203, 208, 590, 1536 Hawke v. Smith, 253 U.S. 221 (1920), 65 Hawker v. People of State of New York, 170 U.S. 189 (1898), 637, 644, 651, 655 Hawks, State ex rel. v. Lazaro, 157 W.Va. 417, 202 S.E.2d 109 (1974), 1410 Haynes v. United States, 390 U.S. 85 (1968), 320, 1021 Hays v. Pacific Mail S.S. Co., 58 U.S. 596 (1854), 467 Head v. New Mexico Bd. of Examiners in Optometry, 374 U.S. 424 (1963), 415, 504 Healy v. James, 408 U.S. 169 (1972), 1016, 1018, 1155, 1297, 1402 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), 128, 309, 312 Heckler v. Day, 467 U.S. 104 (1984), 1662 Heckler v. Mathews, 465 U.S. 728 (1984), 123 Heff, In re, 197 U.S. 488 (1905), 307 Heffron v. International Soc. for Krishna Consciousness, 452 U.S. 640 (1981), 804, 829, 835, 941, 980, 988, 995, 1185 Hegeman Farms Corporation v. Baldwin, 293 U.S. 163 (1934), 414 Heim v. McCall, 239 U.S. 175 (1915), 431, 1547 Heiner v. Donnan, 285 U.S. 312 (1932), 1623 Heller v. New York, 413 U.S. 483 (1973), 1060 Helson v. Commonwealth of Kentucky, 279 U.S. 245 (1929), 403, 442, 463 Helstoski, United States v., 442 U.S. 477 (1979), 373 Helvering v. _ (see opposing party) Henderson v. Mayor of City of New York, 92 U.S. 259 (1875), 406

lxix

TABLE

OF CASES

Henderson v. United States, 390 F.2d 805 (1967), 1331 Hendrick v. Maryland, 235 U.S. 610 (1915), 418, 445 Henneford v. Silas Mason Co., 300 U.S. 577 (1937), 414, 447, 457, 458 Hennen, In re, 38 U.S. 230 (1839), 247 Henry v. Collins, 380 U.S. 356 (1965), 864 Henry, State v., 302 Or. 510, 732 P.2d 9 (1987), 914 Henry v. State of Miss., 379 U.S. 443 (1965), 163, 170, 172 Henry, United States v., 447 U.S. 264 (1980), 1270 Henry v. Williams, 299 F.Supp. 36 (1969), 171 Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 (1935), 531 Herb v. Pitcairn, 324 U.S. 117 (1945), 164 Herbert v. Lando, 441 U.S. 153 (1979), 867, 869, 878, 971, 973, 974, 976 Herman & MacLean v. Huddleston, 459 U.S. 375 (1983), 161 Hernandez v. Finley, 471 F.Supp. 516 (1978), 205 Hernandez v. School Dist. No. One, Den¬ ver, Colo., 315 F.Supp. 289 (1970), 1388 Hernandez v. State of Texas, 347 U.S. 475 (1954), 1483, 1545 Herndon v. Chicago, R. I. & P. R. Co., 218 U.S. 135 (1910), 439 Herndon v. Lowry, 301 U.S. 242 (1937), 789, 1055 Herndon v. State of Georgia, 295 U.S. 441 (1935), 169 Herring v. State, 119 Ga. 709, 46 S.E. 876, 882 (1904), 1429 Hess v. Indiana, 414 U.S. 105 (1973), 848, 851, 855 Hess v. Pawloski, 274 U.S. 352 (1927), 531 Heublein, Inc. v. South Carolina Tax Com¬ mission, 409 U.S. 275 (1972), 452, 453 Hewitt v. Helms, 459 U.S. 460 (1983), 673, 682, 686, 689, 695, 696, 698, 699, 721, 722, 737, 760 HFH, Ltd. v. Superior Court of Los Angeles County, 125 Cal.Rptr. 365, 542 P.2d 237 (1975), 607 Hicklin v. Orbeck, 437 U.S. 518 (1978), 433, 437, 535, 536, 537, 540, 541, 542, 1377, 1382

Hillsborough County, Fla. v. Automated Medical Laboratories, Inc., 471 U.S. 707 (1985), 481, 486, 488, 498, 499, 501 Hinderlider v. La Plata River & Cherry Creek D. Co., 304 U.S. 92 (1938), 524 Hines v. Davidowitz, 312 U.S. 52 (1941), 481, 500, 1471 Hipolite Egg Co. v. United States, 220 U.S. 45 (1911), 312 Hishon v. King & Spalding, 467 U.S. 69 (1984), 1402, 1407 Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979), 484, 485, 499 H. L. v. Matheson, 450 U.S. 398 (1981), 1344, 1575 Hobbie v. Unemployment Appeals Com’n of Florida, 107 S.Ct. 1046 (1987), 1167, 1181, 1191, 1193, 1195, 1198, 1199, 1243, 1249, 1250, 1259, 1260, 1262, 1263, 1264, 1274, 1276 Hobson v. Hansen, 269 F.Supp. 401 (1967), 1626 Hobson v. Hansen, 265 F.Supp. 902 (1967), 245 Hodel v. Indiana, 452 U.S. 314 (1981), 313 Hodel v. Irving, 107 S.Ct. 2076 (1987), 144, 595, 1473, 1474 Hodel v. Virginia Surface Min. and Reclam. Ass’n, 452 U.S. 264 (1981), 310, 313, 389, 390, 391, 392 Hodge v. Ginsberg, 303 S.E.2d 245 (1983), 1612 Hodges v. United States, 203 U.S. 1 (1906), 330, 332 Hodgson v. State of Minn., 648 F.Supp. 756 (1986), 1344 Hoffa v. United States, 385 U.S. 293 (1966), 1270 Hoffman Estates, Village of v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), 896, 897, 1033 Hoke v. United States, 227 U.S. 308 (1913), 312 Holden v. Hardy, 169 U.S. 366 (1898), 569, 572, 574 Holden v. Joy, 84 U.S. 211 (1872), 226, 305 Hollenbaugh v. Carnegie Free Library, 578 F.2d 1374 (1978), 1433, 1435 Hollon v. Pierce, 257 Cal.App.2d 468, 64 Cal.Rptr. 808 (1967), 1018, 1184, 1267 Holloway v. Walker, 784 F.2d 1287 (1986), 731 Holmes v. City of Atlanta, 350 U.S. 879

Hicklin, Regina v., L.R. 3 Q.R. 360 (1868), 906, 907, 911 Hicks v. Miranda, 422 U.S. 332 (1975), 44, 204 Hier, Matter of, 18 Mass.App. 200, 464 N.E.2d 959 (1984), 1365 Hill v. Estelle, 537 F.2d 214 (1976), 1385 Hill v. State, 38 Ala.App. 404, 88 So.2d 880 (1956), 1268 Hill v. Wallace, 259 U.S. 44 (1922), 320 Hills v. Gautreaux, 425 U.S. 284 (1976), 1496, 1497, 1504

(1955), 1476 Holmes v. United States, 391 U.S. 936 (1968), 231 Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978), 1089, 1461 Holtzman v. Schlesinger, 414 U.S. 1316

(1973), 231 Holtzman v. Schlesinger, 414 U.S. 1304 (1973), 231 Holy Spirit Ass’n for Unification of World Christianity v. Tax Commission of City

lxx

TABLE

OF CASES

of New York, 450 N.Y.S.2d 292, 435 N.E.2d 662 (1982), 1182, 1232, 1282 Home Box Office, Inc. v. F.C.C., 567 F.2d 9, 185 U.S.App.D.C, 142 (1977), 1005

Hughes Bros. Timber Co. v. State of Minne¬ sota, 272 U.S. 469 (1926), 462 Huguez v. United States, 406 F.2d 366 (1968), 1331 Humphrey v. Cady, 405 U.S. 504 (1972), 688

Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934), 581, 615, 616, 617, 619 Home Ins. Co. of New York v. Morse, 87 U.S. 445 (1874), 439 Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278 (1913), 177, 191, 199, 206, 730, 1397, 1703 Honig v. Students of California School for the Blind, 471 U.S. 148 (1985), 84 Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985), 1441, 1444, 1445, 1457, 1602 Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945), 472 Hopkins Federal Savings & Loan Ass’n v. Cleary, 296 U.S. 315 (1935), 381 Hopt v. People of Territory of Utah, 110 U.S. 574 (1884), 638 Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 (1964), 476 Houchins v. KQED, Inc., 438 U.S. 1 (1978), 955, 956, 959 House of Representatives of U.S., United States v., 556 F.Supp. 150 (1983), 287, 288 Houston, Tex., City of v. Hill, 107 S.Ct. 2502 (1987), 640, 837, 850, 1029, 1056 Howard v. Illinois Cent. R. Co., 207 U.S. 463 (1908), 307 Hoyt v. Florida, 368 U.S. 57 (1961), 1561 H. P. Hood & Sons v. Du Mond, 336 U.S. 525 (1949), 403, 404, 421, 424 Huber v. Thorn, 189 Kan. 631, 371 P.2d 143 (1962), 1234 Hudgens v. N. L. R. B., 424 U.S. 507 (1976), 600, 995, 1000, 1001, 1710 Hudnut v. American Booksellers Associa¬ tion, Inc., 106 S.Ct. 1172 (1986), 921, 924 Hudson v. Chicago Teachers Union Local No. 1, 743 F.2d 1187 (1984), 806 Hudson v. Palmer, 468 U.S. 517 (1984), 704, 726, 727, 728, 729, 731, 732, 753, 760, 1332 Hudson, United States v., 11 U.S. 32 (1812), 157, 862, 1675, 1676, 1677 Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908), 428, 531 Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), 203 Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976), 430, 431, 432, 433, 434, 469 Hughes v. Oklahoma, 441 U.S. 322 (1979), 415, 428, 429 Hughes v. Rizzo, 282 F.Supp. 881 (1968), 1394 Hughes v. Rowe, 449 U.S. 5 (1980), 692, 695, 734 Hughes v. State of Wash., 389 U.S. 290 (1967), 589

Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935), 216, 248, 249, 250, 253, 254 Hunt v. McNair, 413 U.S. 734 (1973), 1218, 1225 Hunt v. United States, 278 U.S. 96 (1928), 329 Hunt v. Washington State Apple Advertis¬ ing Commission, 432 U.S. 333 (1977), 145, 146, 412, 414 Hunter v. Erickson, 393 U.S. 385 (1969), 48, 133, 134, 647, 1453, 1485, 1486, 1487, 1532, 1533, 1666, 1700 Hunter v. Underwood, 471 U.S. 222 (1985), 335, 644, 821, 1504, 1509, 1510, 1511 Hurd v. Hodge, 334 U.S. 24 (1948), 332 Huron Portland Cement Co. v. City of De¬ troit, Mich., 362 U.S. 440 (1960), 436, 486, 499, 507 Hurtado v. People of State of California, 110 U.S. 516 (1884), 566, 630, 664, 678, 1440 Hurwitt v. City of Oakland, 247 F.Supp. 995 (1965), 853 Hutcheson v. United States, 369 U.S. 599 (1962), 377 Hutchinson v. Proxmire, 443 U.S. Ill (1979), 372, 866, 867, 879, 881 Hutto v. Finney, 437 U.S. 678 (1978), 183, 188, 189, 192, 324 Hvoslef, United States v., 237 U.S. 1 (1915), 318 Hylton v. United States, 3 U.S. 171 (1796), 23, 93 Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610 (1976), 944, 1035

Idaho, State of v. Freeman, 529 F.Supp. 1107 (1981), 1586 Illinois v. Allen, 397 U.S. 337 (1970), 750 Illinois Cent. R. Co. v. Minnesota, 309 U.S. 157 (1940), 465 Illinois Cent. R. Co., United States v., 291 U.S. 457 (1934), 685 Illinois Migrant Council v. Campbell Soup Co., 519 F.2d 391 (1975), 999 Illinois Natural Gas Co. v. Central Illinois Pub. Service Co., 314 U.S. 498 (1942), 506 Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979), 1099, 1107 Imbler v. Pachtman, 424 U.S. 409 (1976), 270 Independent Warehouses v. Scheele, 331 U.S. 70 (1947), 462 Indianapolis Brewing Co., Inc. v. Liquor Control Commission, 305 U.S. 391 (1939), 477

lxxi

TABLE

OF CASES

Indian Motorcycle Co. v. United States, 283 U.S. 570 (1931), 382 Industrial Union Dept., AFL-CIO v. Amer¬ ican Petroleum Institute, 448 U.S. 607 (1980), 367, 1681 Ingraham v. Wright, 430 U.S. 651 (1977), 38, 659, 673, 704, 715, 716, 717, 718, 724, 725, 728, 731, 732, 753, 754, 760, 1333, 1388, 1398, 1416, 1424, 1704 In Interest of R. v. M., 530 S.W.2d 921 (1975), 1557 In re (see name of party) I.N.S. v. Cardoza-Fonseca, 107 S.Ct. 1207 (1987), 218 I.N.S. v. Chadha, 462 U.S. 919 (1983), 19, 32, 74, 214, 216, 217, 218, 235, 236, 245, 251, 260, 266, 480, 653, 658 I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1984), 636 Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982), 750 International Ass’n of Machinists v. Street, 367 U.S. 740 (1961), 806 International Ass’n of Machinists and Aerospace Workers v. Federal Election Commission, 678 F.2d 1092, 220 U.S.App.D.C. 45 (1982), 806 International Brotherhood v. Vogt, Inc., 354 U.S. 284 (1957), 796, 826, 978 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers Unions v. Denver Milk Producers, Inc., 334 U.S. 809 (1948), 70 International Broth, of Teamsters v. Unit¬ ed States, 431 U.S. 324 (1977), 1542 International Harv. Co. v. Department of Treasury of State of Indiana, 322 U.S. 340 (1944), 447, 465 International Longshoremen’s and Ware¬ houseman’s Union, Local 37 v. Boyd, 347 U.S. 222 (1954), 79 International Longshoremen’s Ass’n, AFLCIO v. Allied Intern., Inc., 456 U.S. 212 (1982), 797, 830 International Longshoremen’s Ass’n, AFLCIO v. Davis, 476 U.S. 380 (1986), 503 International News Service v. Associated Press, 248 U.S. 215 (1918), 600, 888 International Shoe Co. v. State of Washing¬ ton, Office of Unemployment Compensa¬ tion and Placement, 326 U.S. 310 (1945), 452, 683 International Text-Book Co. v. Pigg, 217 U.S. 91 (1910), 439 International Union of Electrical, Radio and Machine Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229 (1976), 756 International Union, United Auto., Aero¬ space and Agr. Implement Workers of America v. Brock, 477 U.S. 274 (1986), 146, 147 Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968), 905, 1059

lowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239 (1931), 1703 Iowa Mut. Ins. Co. v. LaPlante, 107 S.Ct. 971 (1987), 1468, 1469, 1470, 1471 Iron Arrow Honor Society v. Heckler, 464 Irvin Dowd, 366 90, U.S.91717* (1961), 858, 859 (1983), U.S.v. 67 Irvine v. People, 347 U.S. 128 (1954), 777

Jackson, Ex parte, 96 U.S. 727 (1877), 326, 327 Jackson v. Bishop, 404 F.2d 571 (1968), 728 Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), 1689, 1690, 1698, 1705, 1706, 1717, 1718 Jackson v. Statler Foundation, 496 F.2d 623 (1973), 1720 Jackson, United States v., 390 U.S. 570 (1968), 48, 137, 184 Jacobellis v. State of Ohio, 378 U.S. 184 (1964), 910 Jacobs, Matter of, 98 N.Y. 98 (1885), 566 Jacobs v. Runes, 541 F.2d 222 (1976), 1387 Jacobson v. Com. of Massachusetts, 197 U.S. 11 (1905), 568, 1266, 1268, 1331 Jacques v. Hilton, 569 F.Supp. 730 (1983), 1182 Jaffree v. Board of School Com’rs of Mobile County, 554 F.Supp. 1104 (1983), 1162 Jago v. Van Curen, 454 U.S. 14 (1981), 694, 696, 697, 760 Jalil v. Campbell, 590 F.2d 1120, 192 U.S.App.D.C. 4 (1978), 1680 James v. Bowman, 190 U.S. 127 (1903), 330, 351 James v. Dravo Contracting Co., 302 U.S. 134 (1937), 328, 516, 517 James v. Kentucky, 466 U.S. 341 (1984), 168 James v. Strange, 407 U.S. 128 (1972), 1636 James v. United States, 459 U.S. 1044 (1982), 756 James v. Valtierra, 402 U.S. 137 (1971), 133, 134, 647, 1091, 1485, 1628, 1666, 1669, 1670, 1671 James Stewart & Co. v. Sadrakula, 309 U.S. 94 (1940), 329, 513 Jamison v. State of Texas, 318 U.S. 413 (1943), 986 Japan Line, Ltd. v. Los Angeles County, 441 U.S. 434 (1979), 470, 471 Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924), 570 J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307 (1938), 447, 465 Jefferson v. Hackney, 406 U.S. 535 (1972), 1451, 1502, 1503, 1512, 1663, 1664 Jefferson County Bd. of Ed., United States v., 372 F.2d 836 (1966), 1490 Jefferson County Pharmaceutical Ass’n, Inc. v. Abbott Laboratories, 460 U.S. 150 (1983), 431 Jeffries v. Turkey Run Consol. School Dist., 492 F.2d 1 (1974), 1385

lxxii

TABLE

OF CASES

Jehovah’s Witnesses in State of Washing¬ ton v. King County Hospital Unit No. 1, 390 U.S. 598 (1968), 1267, 1363 Jenison, In re, 375 U.S. 14 (1963), 1249 Jenkins v. Georgia, 418 U.S. 153 (1974), 910, 912 Jenkins v. McKeithen, 395 U.S. 411 (1969), 120, 691, 702, 1396 Jenness v. Fortson, 403 U.S. 431 (1971), 1102, 1105, 1106, 1110, 1355, 1439, 1576, 1584 J. I. Case Co. v. N.L.R.B., 321 U.S. 332 (1944), 992 Jimenez v. Weinberger, 417 U.S. 628 (1974), 1621 Jobes, Matter of, 108 N.J. 394, 529 A.2d 434 (1987), 1364 Johannessen v. United States, 225 U.S. 227 (1912), 635 John, United States v., 437 U.S. 634 (1978), 1467, 1470, 1473 Johnson v. Joint School Dist. No. 60, Bing¬ ham County, 95 Idaho 317, 508 P.2d 547 (1973), 1388 Johnson v. Louisiana, 406 U.S. 356 (1972), 773 Johnson v. Maryland, 254 U.S. 51 (1920), 513 Johnson v. McIntosh, 21 U.S. 543 (1823), 614 Johnson v. Railway Exp. Agency, Inc., 421 U.S. 454 (1975), 333, 1533 Johnson v. Robison, 415 U.S. 361 (1974), 1257, 1274 Johnson v. State of New Jersey, 384 U.S. 719 (1966), 30, 31 Johnson v. State of Virginia, 373 U.S. 61 (1963), 1476 Johnson v. Transportation Agency, Santa Clara County, Cal., 107 S.Ct. 1442 (1987), 1538, 1542, 1543, 1544, 1569 Johnson, United States v., 107 S.Ct. 2063 (1987), 968 Johnson, United States v., 383 U.S. 169 (1966), 370, 371, 372 Johnson, United States v., 319 U.S. 302 (1943), 93 Johnson v. Zerbst, 304 U.S. 458 (1938), 1634 Johnson Oil Refining Co. v. State of Okla¬ homa, 290 U.S. 158 (1933), 467 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951), 72, 138, 660, 664, 666, 673, 678, 679, 691, 692, 706, 714, 765, 1396 Joint Tribal Council of Passamaquoddy Tribe v. Morton, 388 F.Supp. 649 (1975), 614, 1470 Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), 331, 332, 333, 334, 1508, 1533, 1688 Jones v. Barnes, 463 U.S. 745 (1983), 755, 1632 Jones v. Helms, 452 U.S. 412 (1981), 1384, 1457

Jones v. Rath Packing Company, 430 U.S. 519 (1977), 485, 500 Jones v. United States, 463 U.S. 354 (1983), 688, 742, 752, 1327 Jones University, Bob v. United States, 461 U.S. 574 (1983), 74 Jones v. Wilkinson, 800 F.2d 989 (1986), 936, 1059 Jones v. Wolf, 443 U.S. 595 (1979), 1181, 1190, 1238, 1239, 1241, 1276, 1298 Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422 (1947), 459, 463 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), 892, 916, 1010, 1039 Joseph S. Finch & Co. v. McKittrick, 305 U.S. 395 (1939), 476 J-R Distributors, Inc. v, Eikenberry, 725 F.2d 482 (1984), 1027 Juidice v. Vail, 430 U.S. 327 (1977), 203

Kagama, United States v., 118 U.S. 375 (1886), 305 Kahn v. Shevin, 416 U.S. 351 (1974), 1529, 1566, 1568, 1615 Kahriger, United States v., 345 U.S. 22 (1953), 319, 823 Kaimowitz v. Department of Mental Health, Civ. No. 73-19434-AW, 42 U.S.L.W. 2063 (1973), 1329 Kaiser Aetna v. United States, 444 U.S. 164 (1979), 595, 600, 601, 603 Kamerling v. O’Hagan, 512 F.2d 443 (1975), 1385 Kanapaux v. Ellisor, 419 U.S. 891 (1974), 539, 1101, 1382 Kane v. New Jersey, 242 U.S. 160 (1916), 531 Kansas, State of v. State of Colorado, 206 U.S. 46 (1907), 298 Kantner, State v., 53 Hawaii 327, 53 Ha¬ waii 371, 493 P.2d 306 (1972), 1325 Kaoru Yamataya v. Fisher (United States Reports Title: The Japanese Immigrant Case), 189 U.S. 86 (1903), 359 Kaplan v. California, 413 U.S. 115 (1973), 910 Karcher v. Daggett, 462 U.S. 725 (1983), 1070, 1074 Karlan v. City of Cincinnati, 416 U.S. 924 (1974), 850 Karr v. Schmidt, 460 F.2d 609 (1972), 1385, 1387, 1388 Kassel v. Consolidated Freightways Corp. of Delaware, 450 U.S. 662 (1981), 411, 419, 421, 425, 436, 437, 443 Katcoff v. Marsh, 755 F.2d 223 (1985), 1265, 1286 Katz v. Superior Court of City and County of San Francisco, 73 Cal.App.3d 952, 141 Cal.Rptr. 234 (1977), 1236, 1299, 1301 Katz v. United States, 389 U.S. 347 (1967), 830, 964, 977, 1390, 1392 Katzenbach v. McClung, 379 U.S. 294 (1904), 128, 310, 311, 312, 331

lxxiii

TABLE

OF CASES

Katzenbach v. Morgan, 384 U.S. 641 (1966), 36, 37, 39, 41, 185, 339, 341, 342, 343, 344, 345, 346, 348, 349, 351, 352, 525, 1094, 1513, 1514 Kauten, United States v., 133 F.2d 703 (1943), 1182 Kedroff v. St. Nicholas Cathedral of Rus¬ sian Orthodox Church, 344 U.S. 94 (1952), 1014, 1234, 1235, 1236, 1240 Keefe v. Geanakos, 418 F.2d 359 (1969), 813 Keegan v. United States, 325 U.S. 478 (1945), 841 Keene v. Meese, 619 F.Supp. 1111 (1985), 811 Keller v. United States, 213 U.S. 138 (1909), 307, 381 Kelley v. Johnson, 425 U.S. 238 (1976), 1386, 1387 Kelley v. Rhoads, 188 U.S. 1 (1903), 461, 462 Kelly v. Robinson, 107 S.Ct. 353 (1986), 265 Kemp, State v., 73 S.D. 458, 44 N.W.2d 214 (1950), 539 Kendall v. United States ex rel. Stokes, 37 U.S. 524 (1838), 19, 258 Kennedy v. Bureau of Narcotics and Dan¬ gerous Drugs, 459 F.2d 415 (1972), 1269 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), 303 Kennedy v. Sampson, 511 F.2d 430, 167 U.S.App.D.C. 192 (1974), 153, 264 Kennerley, United States v., 209 F. 119 (1913), 907 Kent v. Dulles, 357 U.S. 116 (1958), 242, 243, 366, 1378, 1380, 1384, 1618, 1681 Kentucky, Com. of v. Dennison, 65 U.S. 66 (1861), 43, 192 Kentucky, Commonwealth of v. State of Indiana, 281 U.S. 163 (1930), 93 Ker v. California, 374 U.S. 23 (1963), 773 Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110 (1954), 518, 519, 520 Kerr-McGee Corp. v. Navajo Tribe of Indi¬ ans, 471 U.S. 195 (1985), 1470 Kesler v. Department of Public Safety, Fi¬ nancial Responsibility Division, State of Utah, 369 U.S. 153 (1962), 508 Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), 509 Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189 (1973), 815, 1439, 1492, 1493, 1497, 1498, 1499 Keyishian v. Board of Regents of Universi¬ ty of State of N. Y., 385 U.S. 589 (1967), 81, 681, 789, 813 Keystone Bituminous Coal Ass’n v. DeBenedictis, 107 S.Ct. 1232 (1987), 576, 589, 591, 595, 624 Kidwell, State ex rel. v. United States Mar¬ keting, Inc., 102 Idaho 451, 631 P.2d 622 (1981), 1050 Kilbourn v. Thompson, 103 U.S. 168 (1880), 19, 246, 370, 374, 376, 377 Kimm v. Rosenberg, 363 U.S. 405 (1960), 359

King, In re, 90 Cal.Rptr. 15, 474 P.2d 983 (1970), 1380 King v. New Rochelle Municipal Housing Authority, 442 F.2d 646 (1971), 1380 King v. Saddleback Jr. College Dist., 445 F.2d 932 (1971), 1384 King v. Saddleback Junior College Dist., 425 F.2d 426 (1970), 1385 Kingsley Books v. Brown, 354 U.S. 436 (1957), 1010, 1060 Kingsley Intern. Pictures Corp. v. Regents of N.Y.U., 360 U.S. 684 (1959), 848, 915, 916, 925 Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960), 60 Kirby v. Illinois, 406 U.S. 682 (1972), 1635 Kirchberg v. Feenstra, 450 U.S. 455 (1981), 1564, 1571 Kirkpatrick v. Preisler, 394 U.S. 526 (1969), 1070, 1071, 1073, 1074 Kit-Mar Builders, Inc., Appeal of, 439 Pa. 466, 268 A.2d 765 (1970), 1381 Kiyoshi Hirabayashi v. United States, 320 U.S. 81 (1943), 354, 1452, 1466 Klein, In re, 42 U.S. 277 (1843), 324 Klein, United States v., 80 U.S. 128 (1871), 50, 256 Kleindienst v. Mandel, 408 U.S. 753 (1972), 355, 358, 360, 835, 982, 1384 Kleppe v. New Mexico, 426 U.S. 529 (1976), 328, 329 Klopfer v. State of N. C., 386 U.S. 213 (1967), 773 Knecht v. Gillman, 488 F.2d 1136, 71 O.G.2d 101 (1973), 1328 Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920), 304 Knote v. United States, 95 U.S. 149 (1877), 256 Knowlton v. Moore, 178 U.S. 41 (1900), 318, 575 Kohl v. United States, 91 U.S. 367 (1875), 326, 328, 588 Kohrig, People v., 113 I11.2d 384, 101 Ill.Dec. 650, 498 N.E.2d 1158 (1986), 1372 Kois v. Wisconsin, 408 U.S. 229 (1972), 910, 953 Kolender v. Lawson, 461 U.S. 352 (1983), 639, 1033, 1034, 1035, 1036, 1056, 1382, 1383, 1636, 1678, 1684 Konigsberg v. State Bar of California, 366 U.S. 36 (1961), 791 Korematsu v. United States, 323 U.S. 214 (1944), 354, 1452, 1466, 1468, 1483, 1524, 1573 Kosydar v. National Cash Register Co., 417 U.S. 62 (1974), 440, 461, 473 Kotch v. Board of River Port Pilot Com’rs, 330 U.S. 552 (1947), 1373, 1405, 1443 Kovacs v. Cooper, 336 U.S. 77 (1949), 770, 777, 790, 827, 909, 949, 979, 983, 1010, 1134 KPNX Broadcasting Co. v. Arizona Superi¬ or Court, 459 U.S. 1302 (1982), 964, 970, 1046, 1050

Ixxiv

TABLE

OF CASES

Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969), 1068, 1072, 1086, 1087, 1088, 1090, 1461, 1642 Kras, United States v., 409 U.S. 434 (1973), 756, 1462, 1463, 1644, 1648, 1649 Kremens v. Bartley, 431 U.S. 119 (1977), 72, 82, 93 Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (1960), 1234 Kring v. State of Missouri, 107 U.S. 221 (1883), 632, 637 Krizka, People v., 92 Ill.App.3d 288, 48 Ill. Dec. 141, 416 N.E.2d 36 (1980), 1343 Krzewinski v. Kugler, 338 F.Supp. 492 (1972), 1380 Kuch, United States v., 288 F.Supp. 439 (1968), 1246, 1269 Kugler v. Helfant, 421 U.S. 117 (1975), 204 Kuhlmeier v. Hazelwood School Dist., 795 F.2d 1368 (1986), 810 Kunz v. People of State of New York, 340 U.S. 290 (1951), 978, 1040 Kusper v. Pontikes, 414 U.S. 51 (1973), 1122, 1123 Kwong Hai Chew v. Golding, 344 U.S. 590 (1953), 358 La Abra Silver Min. Co. v. United States, 175 U.S. 423 (1899), 94, 95, 265 Labine v. Vincent, 401 U.S. 532 (1971), 1554, 1555 Lafayette, La., City of v. Louisiana Power & Light Co., 435 U.S. 389 (1978), 494 Lafleur v. Cleveland Bd. of Ed., 465 F.2d 1184, 62 0.0.2d 8 (1972), 1577 Laird v. Tatum, 408 U.S. 1 (1972), 79, 122, 830, 878, 1026, 1035, 1058, 1270, 1399 Lake Carriers’ Ass’n v. MacMullan, U.S. 498 (1972), 75

406

Lake Country Estates, Inc. v. Tahoe Re¬ gional Planning Agency, 440 U.S. 391 (1979), 176 Lalli v. Laili, 439 U.S. 259 (1978), 1528, 1555, 1556, 1557 Lambert v. People of the State of Califor¬ nia, 355 U.S. 225 (1957), 1033 Lamont v. Postmaster General of United States, 381 U.S. 301 (1965), 327, 795, 805, 811, 945, 959, 982, 1323 Landmark Communications, Inc. v. Virgin¬ ia, 435 U.S. 829 (1978), 849, 956, 960, 963, 966, 967 Lane v. Brown, 372 U.S. 477 (1963), 755, 1630, 1632 Lane v. Candura, 6 Mass.App. 377, 376 N.E.2d 1232 (1978), 1363 Lane v. Williams, 455 U.S. 624 (1982), 84, 85, 92 Lane v. Wilson, 307 U.S. 268 (1939), 335, 1093 Lane County v. State of Oregon, 74 U.S. 71 (1868), 387 Langone v. Secretary of Com., 388 Mass. 185, 446 N.E.2d 43 (1983), 1115

Lansdale v. Tyler Jr. College, 318 F.Supp. 529 (1970), 1385 Lanzetta v. State of New Jersey, 306 U.S. 451 (1939), 629, 684, 1033 Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), 369, 478, 903, 1164, 1170, 1187, 1197, 1224, 1228, 1229, 1230, 1276, 1278, 1287, 1678, 1720 Larson v. Domestic & Foreign Commerce Corporation, 337 U.S. 682 (1949), 194 Larson v. Valente, 456 U.S. 228 (1982), 76, 91, 130, 803, 988, 1158, 1160, 1182, 1190, 1191, 1192, 1193, 1198, 1205, 1213, 1214, 1227, 1262, 1276, 1619 Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18 (1981), 676, 711, 739, 751, 757, 1644, 1648, 1651, 1652 Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959), 341, 1092, 1093 Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890), 1179 La Tourette v. McMaster, 248 U.S. 465 (1919), 531 Laurel Hill Cemetery v. City and County of San Francisco, 216 U.S. 358 (1910), 594 Lawrence v. State Tax Commission of State of Mississippi, 286 U.S. 276 (1932), 167 Law Students Civil Rights Research Coun¬ cil, Inc. v. Wadmond, 401 U.S. 154 (1971), 1020 Lazaro, State ex rel. Hawks v., 157 W.Va. 417, 202 S.E.2d 109 (1974), 1410 Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 426 N.E.2d 809, 22 0.0.3d 49 (1980), 1366 Leary v. United States, 395 U.S. 6 (1969), 684, 1021 Leary v. United States, 383 F.2d 851 (1967), 1269, 1324 Lee v. State of New Jersey, 207 U.S. 67 (1907), 428 Lee, United States v., 106 U.S. 196 (1882), 177 Lee, United States v., 455 U.S. 252 (1982), 1189, 1194, 1250, 1260, 1261, 1264, 1268, 1270, 1272, 1273 Lee v. Washington, 390 U.S. 333 (1968), 1476 Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 (1968), 1060 Leeke v. Timmerman, 454 U.S. 83 (1981), 124 Lefkowitz v. Cunningham, 431 U.S. 801 (1977), 1021 Lefkowitz v. Turley, 414 U.S. 70 (1973), 1021, 1022

Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), 801, 812, 910, 940, 941, 949, 987, 989, 994, 1409 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973), 1451

lxxv

TABLE

OF CASES

Lehr v. Robertson, 463 U.S. 248 (1983), 733, 1554, 1565 Leis, Com. v., 355 Mass. 189, 243 N.E.2d 898 (1969), 1325 Leis v. Flynt, 439 U.S. 438 (1979), 697, 703, 706, 759 Leisy v. Hardin, 135 U.S. 100 (1890), 524 Leland v. State of Oregon, 343 U.S. 790 (1952), 742 Leloup v. Port of Mobile, 127 U.S. 640 (1888), 439 Lemke v. Farmers’ Grain Co. of Embden, N.D., 258 U.S. 50 (1922), 423, 424 Lemon v. Kurtzman, 403 U.S. 602 (1971), 817, 822, 1186, 1187, 1191, 1192, 1193, 1197, 1199, 1205, 1206, 1214, 1219, 1220, 1227, 1228, 1230, 1277, 1278, 1279, 1280, 1281, 1282, 1289, 1290 Leon, United States v., 468 U.S. 897 (1984), 30 Lerner v. Casey, 357 U.S. 468 (1958), 1021 Leslie Miller, Inc. v. State of Arkansas, 352 U.S. 187 (1956), 513 Levitt v. Committee for Public Ed. and Religious Liberty, 413 U.S. 472 (1973), 1219, 1227 Levitt, Ex parte, 302 U.S. 633 (1937), 125 Levy v. Louisiana, 391 U.S. 68 (1968), 1416, 1553, 1554 Lewellyn v. State, 489 P.2d 511 (1971), 1268 Lewis v. BT Inv. Managers, Inc., 447 U.S. 27 (1980), 416, 527 Lewis v. City of New Orleans, 415 U.S. 130 (1974), 849, 929 Lewis v. City of New Orleans, 408 U.S. 913 (1972), 849, 850 Lewis v. Hyland, 554 F.2d 93 (1977), 1387 Lewis v. United States, 445 U.S. 55 (1980), 299 L.H.R., In re, 253 Ga. 439 (1984), 1366 Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 241 U.S.App.D.C. 246 (1984), 867 Lichter v. United States, 334 U.S. 742 (1948), 354, 362, 366, 613 Lifschutz, In re, 85 Cal.Rptr. 829, 467 P.2d 557 (1970), 1389 Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984), 472 Limehouse, United States v., 285 U.S. 424 (1932), 907 Lincoln County v. Luning, 133 U.S. 529 (1890), 176, 387 Lincoln Federal Labor Un. v. Northwest¬ ern I. & M. Co., 335 U.S. 525 (1949), 581 Linda R.S. v. Richard D., 410 U.S. 614 (1973), 112, 117, 123, 124, 130 Lindsey v. Normet, 405 U.S. 56 (1972), 680, 712, 738, 755, 1460, 1612 Lindsey v. State of Washington, 301 U.S. 397 (1937), 637, 638 Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911), 1446 Liner v. Jafco, Inc., 375 U.S. 301 (1964), 82, 114

Linkletter v. Walker, 381 U.S. 618 (1965), 30 Linmark Associates, Inc. v. Willingboro Tp., 431 U.S. 85 (1977), 834, 893, 912, 919, 933, 993 Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53 (1966), 504, 867 Lippitt v. Cipollone, 404 U.S. 1032 (1972), 1125 Little, In re, 404 U.S. 553 (1972), 856 Little v. Streater, 452 U.S. 1 (1981), 756, 1635, 1639, 1650, 1651, 1716 Little, United States v., 321 F.Supp. 388 (1971), 1393 Livington v. Van Ingen, 9 Johns. 507 (1812), 401 Lloyd Corp., Limited v. Tanner, 407 U.S. 551 (1972), 600, 982, 995, 999, 1000, 1709, 1710 Loan Ass’n v. City of Topeka, 87 U.S. 655 (1874), 6, 322, 380, 563, 564, 565 Local Number 93, Intern. Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 106 S.Ct. 3063 (1986), 1541, 1544 Local 174, Teamsters, Chauffeurs, Ware¬ housemen and Helpers of America v. Lu¬ cas Flour Co., 369 U.S. 95 (1962), 158 Local 28 of Sheet Metal Workers’ Intern. Ass’n v. E.E.O.C., 106 S.Ct. 3019 (1986), 1452, 1466, 1521, 1522, 1532, 1538, 1539, 1540 Local 20, Teamsters, Chauffeurs and Help¬ ers Union v. Morton, 377 U.S. 252 (1964), 502, 509 Local 2677, Am. Federation of Government Emp. v. Phillips, 358 F.Supp. 60 (1973), 259 Lochner v. People of State of New York, 198 U.S. 45 (1905), 6, 567, 568, 569, 570, 572, 573, 574, 575, 576, 577, 578, 579, 581, 582, 583, 584, 585, 586, 587, 604, 608, 619, 624, 769, 771, 779, 845, 892, 901, 1304, 1305, 1309, 1318, 1335, 1336, 1341, 1360, 1373, 1374, 1377, 1436, 1445, 1669, 1674 Locke, United States v., 471 U.S. 84 (1985), 1443 Lockerty v. Phillips, 319 U.S. 182 (1943), 46 Lockport, New York, Town of v. Citizens for Community Action at the Local Lev¬ el, Inc., 430 U.S. 259 (1977), 1095, 1668 Lodge 76, Intern. Ass’n of Machinists and Aerospace Workers, AFL-CIO v. Wiscon¬ sin Employment Relations Commission, 427 U.S. 132 (1976), 502 Logan v. United States, 144 U.S. 263 (1892), 353, 552 Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), 591, 627, 673, 709, 711, 727, 754, 756, 969 Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), 914, 1055

Ixxvi

TABLE

OF CASES

Lombard v. State of Louisiana, 373 U.S. 267 (1963), 1701, 1702 Long v. District Court of Iowa, In and For Lee County, Fort Madison, Iowa, 385 U.S. 192 (1966), 755 Lopez v. Heckler, 725 F.2d 1489 (1984), 29 Lord v. Goodall S.S. Co., 102 U.S. 541 (1880), 305, 468 Lord v. Veazie, 49 U.S. 251 (1850), 93 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), 592, 602, 603, 604, 1008, 1009 Los Angeles, City of v. Lyons, 461 U.S. 95 (1983), 72, 80, 89, 110, 112, 120, 121, 208, 1333 Los Angeles, City of v. Preferred Communi¬ cations, Inc., 476 U.S. 488 (1986), 1005 Los Angeles County v. Davis, 440 U.S. 625 (1979), 89, 90 Los Angeles, Dept, of Water and Power, City of v. Manhart, 435 U.S. 702 (1978), 1579, 1580 Louisiana v. National Ass’n for Adv. of Col. People, 366 U.S. 293 (1961), 1019 Louisiana v. United States, 380 U.S. 145 (1965), 336, 1093 Louisiana Affiliate of Nat. Organization for Reform of Marijuana Laws (Norm!) v. Guste, 380 F.Supp. 404 (1974), 1325 Louisiana Power came to be seen as the crucial question in deciding whether state action was compatible with the commerce clause. Therefore, in the years follow¬ ing Cooley , Supreme Court decisions have focused increasingly on the precise method and context of challenged regulation, attempting in this way to ascertain the extent to which state action impedes interstate commerce, and the justifications with which it does so. Such analysis was at first conducted (some would now say "masked”) by classifying the impact of state regulation on interstate commerce as either "direct” or "indirect.” State regulations affecting interstate commerce were permitted by the Supreme Court in the pre-1938 period if the regulato¬ ry impact was felt by interstate commerce "only indirectly, incidental¬ ly, and remotely.” 10 Conversely, state regulations affecting interstate commerce were struck down by the Court if the regulatory impact upon interstate commerce

was deemed

so substantial as to be a "direct”

burden.11 § 6-5. Judicial Review of State Regulation of Interstate Com¬ merce: Contemporary Doctrine and the Theme of Politi¬ cal Representation Since the mid-1980s, the Supreme Court has sought to clarify the process by which it determines whether state regulation is prohibited by the commerce clause. The distinction between "direct” and "indi¬ rect” burdens has been rejected as overly conclusory and misleadingly precise. In its place, the Court has substituted the following, more openly indeterminate, principle: State regulation affecting interstate commerce will be upheld if (a) the regulation is rationally related to a legitimate state end, and (b) the regulatory burden imposed on inter¬ state commerce, and any discrimination against it, are outweighed by the state interest in enforcing the regulation.1 wishes — might be established to act in the judiciary’s stead. See Choper, "The Scope of National Power Vis-a-vis the States: The Dispensability of Judicial Review,” 86 Yale L.J. 1552, 1585, 1587 n. 194 (1977). 10. Smith v. Alabama, 124 U.S. 465, 482 (1888) (upholding a state law requiring that all locomotive engineers within the state be licensed by a state board of exam¬ iners). Accord, Erb v. Morasch, 177 U.S. 584 (1900) (municipality may restrict train speed within city limits); Chicago, R.I. & Pac. Ry. Co. v. Arkansas, 219 U.S. 453 (1911) (state may require three brakemen on freight trains of over 25 cars); Atchison T. & S.F. Ry. Co. v. Railroad Comm., 283

he

ad

li

gh

of sp ec i ts

fi

mi ed

ca

pa

ni

mu

m

11. See, e.g., Seaboard Air Line Ry. v. Blackwell, 244 U.S. 310 (1917) (striking down state law requiring railroad trains to check their speed before coming to any public crossing; under the requirement, an interstate train would have been obliged to come almost to a complete stop as many as 124 times within 123 miles, increasing the time required to get from Atlanta to South Carolina by more than six hours). Cf. Southern Railway Co. v. King, 217 U.S. 524 (1910) (burden on interstate commerce not unduly heavy where fewer crossings were involved).

ci

1. See, e.g., Southern Pacific Co. v. Ari¬ zona, 325 U.S. 761, 770-71 (1945); Cities

ty

).

§ 6-5

LIMITS

ON STATE

AND

LOCAL

POWER

409

§ 6-5 The first part of the test would be inadequate by itself because of the recognition implicit in the commerce clause that state and local lawmakers are especially susceptible to pressures which may lead them to make decisions harmful to the commercial interests of those who are not constituents of their political subdivisions. That recognition re¬ flects not a cynical view of the failings of statesmanship at a sub-federal level, but only an understanding that the proper structural role of state lawmakers is to protect and promote the interests of their own constitu¬ ents. That role is one that they will inevitably try to fulfill even at the expense of citizens of other states. In this context, the rhetoric of judicial deference to the democrati¬ cally fashioned judgments of legislatures is often inapposite. The checks on which we rely to curb the abuse of legislative power — election and recall — are simply unavailable to those who have no effective voice or vote in the jurisdiction which harms them. This problem is most acute when a state enacts commercial laws that regulate extraterritori¬ al trade, so that unrepresented outsiders are affected even if they do not cross the state’s borders.2 Whatever may be the general merit of a system of judicial review which sanctions intervention by the counterdemocratic courts only when the normal processes of democracy have broken down,3 that model is of little use if mechanically applied in the context of interstate commerce, where problems often arise precisely because the individual states’ democratic processes have worked well . Because regulation unduly burdening or discriminating against interstate commerce or out-of-state enterprise has been thought to result from the inherently limited constituency to which each state or local legislature is accountable, the Supreme Court has viewed with suspicion any state action which imposes special or distinct burdens on Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 186-87 (1950). The origin of the Court’s balancing test approach to the dormant commerce clause is usually attrib¬ uted to Dowling, "Interstate Commerce and State Power”, 27 Virg.L.Rev. 1 (1940). For a general attack on the balancing ap¬ proach see Maltz, "How Much Regulation is Too Much — An Examination of Com¬ merce Clause Jurisprudence”, 50 Geo. Wash.L.Rev. 47 (1981) (no basis in constitu¬ tion for valuing some state interests more than others, a process of evaluation re¬ quired for applying the balancing test); Re¬ gan, "The Supreme Court and State Pro¬ tectionism: Making Sense of the Dormant Commerce (1986).

Clause”, 84 Mich.L.Rev.

1091

2. In Brown-Forman Distillers v. New York Liquor Authority, 106 S.Ct. 2080 (1986), the Court struck down a New York Law requiring liquor producers, when set¬ ting prices for in-state wholesalers, to af¬ firm that no lower price would be charged in other states during the same month. Since distillers had to have permission from New York before they could lower

their prices in other states below their New York prices, the law effectively gave the New York Liquor Authority power to control prices beyond the state’s borders. Id. at 2086. In Edgar v. MITE Corp., 457 U.S. 624 (1982), the Court invalidated an Illinois statute that imposed various re¬ quirements beyond those of federal law on tender offerors attempting to take over cor¬ porations that, although national or mul¬ tinational in nature, were either chartered in Illinois or had some capital in the state. The Court accepted Illinois’ interest in pro¬ tecting its citizens from the ravages of takeover battles, but, in denouncing the law’s "sweeping extraterritorial effect,” id. at 642, the majority held that a "state has no legitimate interest in protecting non¬ resident shareholders,” id. at 644. See § 6-33, infra. See also Southern Pacific Co. v. Arizona, 325 U.S. 761, 775 (1945) (striking down law where the "practical effect of such regulation is to control [con¬ duct] beyond the boundaries of the state).

3. See generally J. Ely, Democracy Distrust (1980).

and

410

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

out-of-state interests unrepresented in the state’s political process.4 For example, in Public Utilities Commission of Rhode Island v. Att¬ leboro Steam & Electric Co.,5 the Supreme Court struck down a Rhode Island regulatory agency’s attempt to raise the price at which a Rhode Island company sold electricity to a Massachusetts company supplying a Massachusetts town. The Court reasoned that, if Rhode Island were allowed to protect its own citizens’ economic interests by ordering an increase in the price paid for electricity by Massachusetts citizens, then Massachusetts could likewise protect its citizens’ economic interests by ordering the Rhode Island electric company to decrease the price. The Court concluded that this conflict could be avoided only by holding that neither state could control the price charged.6 To be sure, even regulations significantly burdening interstate commerce have been tolerated when the interests adversely affected have been adequately represented in the regulating state’s own political process. For example, in South Carolina State Highway Dept v. Barnwell Bros.,7 the Court upheld a state regulation which barred from state highways all trucks wider than 90 inches or heavier than 10 tons. At that time, all but ten to fifteen percent of the trucks used in interstate transportation exceeded these limits. Nonetheless, in weigh¬ ing the state interest in safe highways against the burden on interstate commerce, the Court was able to tip the scales in favor of the state by stressing the fact that the South Carolina action did not discriminate against interstate commerce: "The fact that [the regulations] affect alike shippers in interstate and intrastate commerce in large numbers within as well as without the state is a safeguard against their abuse.” 8 Conversely, where a restrictive regulation affects only those from other states, the interests of presumably well-represented in-state busi¬ nesses have been effectively divorced from their out-of-state counter¬ parts. In such circumstances, the Court has properly declined to indulge the presumption

that "a State’s own

political processes will

5. 273 U.S. 83 (1927). n. 2 (19 76 761 U. S. 5 745 , 68 rec ) has oft Co (" C.J (St nizon tha .)to thTehe ext urt . . . theen bu og rd ¬ t e e, e out en fal nt on int reg of sdta ls t e sid u be y to be raelslts itlaitsi unl the stea on ik te, evi reast of theoly pol the ope iti terda se rat wiitn intcal wh ex no i o rm en ere htis n ert al Se stalss So n are eadff the stlay ut te St Dep e v. Boa Hi ect Car h a r g e t t o n Cowoel Bro lina303 U.Se 177 hw1ad8y”4). n. 2 .(19 l s , 3 . 538); U. le(y12 Wa of Po v. .B,o S r ar rd . t v. Phi Geins, 2d99 315 (18 How l phi .) 70 ,U.S (3 Wal51); 713 ma7n31 (18 lade Cf. l¬ , a, l.) . 6 Coa 6M)i. Wh v. Be Mc i r G ni i disl Co. ol3d09 U.S 33, 3w6 inn. 2 (19 te ng n d, ric . 40) cus kin sed fea tha , un Th § 6-1 f r e r t 5 r e a. bepreun wil int ed co, mm l ere sedul e nthay a s p b bu r s t c r y ts ci ¬s ate ti ovi r nci an els on daolc im dene p d al alo t e is whater the cgou mu orta the sa rinpaol necs me ch nt l iti e; e cla ofcatlhe "su rn roo of one br an ssi t spe chin e a p doc cat c r nalfi¬ q t ote 16, uailnf sision See Cthri y¬ cti apne ra. . ” te o n r zon

a,

32

6. The opinion was couched in terms of the now discredited direct-indirect dichoto¬ my: "Being the imposition of a direct bur¬ den upon interstate commerce ... it must necessarily fall, regardless of its pur¬ pose.” Id. at 89. And in Arkansas Elec¬ tric Cooperative Corp. v. Arkansas Public Service Commission, 461 U.S. 375 (1983), the Court retired Attleboro Steam’s exces¬ sively formal distinction between retail sales of electricity, which the states could regulate, and wholesale interstate trans¬ mission of electricity, which they could not. See 461 U.S. at 390-93. Employing a bal¬ ancing test, the Court in Arkansas Electric upheld state jurisdiction over wholesale rates charged by a rural power cooperative. 7. 303 U.S. 177 (1938). 8. 303 U.S. at 187. See also id. at 184 n. 2. Cf. Southern Pacific Co. v. Arizona, 325 U.S. 761, 783 (1945).

LIMITS

ON STATE

AND

LOCAL

POWER

411

§ 6-5 serve as a check against unduly burdensome regulations.” 9 Thus, in Kassel v. Consolidated Freightways Corp.,10 and Raymond Motor Trans¬ portation, Inc. v. Rice,11 the Court invalidated state safety regulations banning 65-foot double tractor-trailers from their highways, because exemptions enacted with the restrictions reduced their impact on domestic truckers. Since this approach to judicial review rests on the premises that unaccountable power is to be carefully scrutinized and that legislators are accountable only to those who have the power to vote them out of office, it is inevitable that this approach counsels frequent and probing judicial intervention under the commerce clause. It is, after all, in the nature of state lawmaking bodies to commit the sort of transgression forbidden by that clause: economic localism cannot be characterized as a symptom of breakdown in a local democratic process. Because this defect is routine rather than exceptional, this model of review serves not as a brake on judicial scrutiny of state laws, but as a directive to the courts to review and invalidate a wide range of quite ordinary legislative measures. It is perhaps because

of the speed with which

the traditional

democracy-reenforcing model of judicial review descends from judicial deference to judicial activism in the sphere of interstate commerce that the Court has on occasion committed itself to a vigorous search for some in-state economic surrogate for the interests of disenfranchised outsiders. In Minnesota v. Clover Leaf Creamery Co.,12 the Court refused to permit a Minnesota state court to strike down a Minnesota statute that banned the sale of milk products in plastic, non-returnable containers. The statute was a boon to the state’s powerful pulp-wood industry, whose containers would fill the void left by the excluded plastic containers, all of which were made from resins produced outside of Minnesota. Although the Minnesota Supreme Court had invalidated the statute under the commerce clause,13 the United States Supreme Court reversed on the ground that the burden imposed by the statute on the interstate movement of goods was '"relatively minor” 14 and because the ban on plastic containers served the substantial state interests in conserving resources and reducing solid waste.15 Minneso¬ ta’s highest court had found that the asserted state interests were negligible and not even promoted by the ban, but the Supreme Court deferred to the judgment of the Minnesota legislature because the interests of out-of-state plastic container manufacturers were adequate¬ ly represented by the few Minnesota firms that were in any way adversely affected by the ban. These overlapping interests provided a "powerful safeguard against legislative abuse.” 16 Thus, the presence of 9. Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 676-76 (1981) (plurali¬ ty opinion). 10. 450 U.S. 662 (1981), discussed in § 6-7, infra. 11. 434 U.S. 429 (1978), discussed in § 6-7, infra. 12. 449 U.S. 456 (1981).

13. The state court also held that the law failed to meet even the requirement of minimum rationality under the federal equal protection clause. This holding was likewise overruled by the Supreme Court. 14. 449 U.S. at 472. 15. Id. at 473. 16. Id. at 473 n. 17.

412

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

an in-state surrogate who may assert the claims of burdened out-ofstate interests serves to lower the level of commerce clause scru¬ tiny. The concept of surrogate representation should be deployed with restraint, since its logic cannot easily be contained. Beyond the com¬ mercial interests that may be offended by statutes and regulations limiting the availability of goods and services provided by out-of-state concerns, the Court could as easily rely on the political voice of in-state consumers to challenge such regulations before they are enacted. Be¬ cause such economic restrictions limit competition and tend to drive up prices or to reduce availability of goods and services,17 a consumer check on abusive state legislation ought to be triggered almost automat¬ ically by commerce clause violations. Indeed, the decision in Exxon Corp. v. Governor of Maryland,18 upholding a state law barring produc¬ ers or refiners of petroleum products from owning or operating retail gasoline service stations within the state, may rest in part on an implicit notion of surrogate representation by consumers. Justice Stevens’ majority opinion stressed that the commerce clause "protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulation.” 19 The Court found no impermissible ad¬ vantage bestowed on in-state interests because the Maryland statute left in-state and out-of-state independent gasoline dealers on the same competitive footing.20 The only possible remaining discrimination would have been against out-of-state goods, but the Maryland statute did not demonstrably alter the flow of interstate oil, only the identity of those who could sell it as gasoline at retail.21 Justice Blackmun argued in dissent that the Court’s opinion glossed over the fact that the statute disadvantaged producers and refiners of oil, all of whom were out-of-state, while benefiting indepen¬ dent dealers in gasoline, a group overwhelmingly composed of local businesses.22 No doubt aware of this relative disadvantage, the Court might have concluded that the protection provided by in-state groups whose interests overlapped with those out-of-state producers constituted a sufficient safeguard. One consequence of the Court’s decision to root commerce clause concern in the market itself, rather than in the rights of particular commercial enterprises,23 is the possibility that in-state consumers may be a surrogate for non-resident commercial interests. Undue burdens on interstate trade, after all, may provoke the political ire of resident consumers who depend on the market’s efficient opera¬ tion to keep the flow of goods smooth and the level of prices down. 3 U. 43 Co Ad Ap S. o 33, 2 lmam’ fo (s (v1er 35ple ut t -io two n, shrbid ap st 1-5 ap 977t)isgir ate nftat 2 i p pl o d o wi p insgt les st e in ecr ng wemra a at at t r t s h eke e es of o av rde sy gr gi -o n a d a s rcio f ’ il a de te lo uc co pr s dian -m¬ a ca es ns ni m in bili prl mnagd pe oduc esan u me fo ti t od d rk t r r ty thuct Do s mat Co ’' et Tu ive e Re io m¬ s rm U. 19 me hne Cl n) 125 th a nt ; , Wi 79 in 13 rc t, aus ki sc 8- e e ng ,” 39 .L . .R ev .

18. 437 U.S. 117 (1978), discussed fur¬ ther in § 6-6, infra. 19. Id. at 127-28. 20. Id. at 126. 21. Id. at 126 n. 16. ing). 22. Id. at 137-38 (Blackmun, J., dissent¬ 23. 437 U.S. at 127-28.

LIMITS § 6-6

Hence commerce

ON STATE

AND

LOCAL

413

POWER

clause scrutiny need not be automatically triggered by

rules that disadvantage out-of-state firms.24 Of course, a political check in the form of consumer pressure is theoretically present in every case to prevent discrimination against the interstate market. For this very reason, the Court is unlikely to embrace consumers as an indirect surrogate for out-of-state commercial interests. Frequent reliance on this sort of indirect representation would come close to turning traditional commerce clause analysis on its head: for if a state can demonstrate that the challenged enactment in fact results in a reduction in the interstate flow of goods and services, an increase in prices, or a reduction in the information available to consumers — precisely the effects that the commerce clause has understood to counteract — then the statute will be insulated judicial scrutiny because significant local consumer interests will been injured by the statute and these interests will then be relied

been from have upon,

as surrogates for out-of-state interests, to check state legislators who would enact such laws. Nor could litigants escape this logic by arguing that only particular out-of-state businesses had been injured while there was no real impact on the market. For if the commerce clause truly protects only the interstate market, as the Exxon Court held, then proof that there are no in-state surrogates (consumers or others) for interstate interests comes very close to being proof that there has been no violation at all. It should be noted that state regulations are rarely struck down for the explicit reason that they are the product of unrepresentative political processes. Rather, this political defect should be seen as underlying the forms of economic discrimination which the Supreme Court has treated as invalidating certain state actions with respect to interstate commerce.25 § 6-6. Restrictions on Access to Local Markets Sellers and Suppliers

by Out-of-State

The validity of state regulations limiting the extent to which out-ofstate sellers and suppliers have access to state markets has depended heavily upon the reasons for which the regulations were imposed. State efforts to protect local economic interests through measures limiting access to local markets by out-of-state sellers or suppliers have 24. Even the dissent in Exxon v. Mary¬ land endorsed a version of the surrogaterepresentation approach, suggesting that

Lime & Avocado

the Court’s decision might be correct if production or refining of oil took place in Maryland, because the industry would

frame criteria adequate to the task of as¬ sessing political unrepresentativeness di¬ rectly, it is by no means clear that the use

then have had a "fair opportunity to influ¬ ence their local legislators and thereby to prevent the enactment of economically dis¬ ruptive legislation.” 437 U.S. at 151 (Blackmun, J., dissenting).

of surrogate criteria like "discrimination” is a wholly satisfactory alternative. For

25. A similar political defect may

also

underlie the Supreme Court’s refusal, in some instances, to give national preemp¬ tive effect to federal regulations adopted by essentially local processes. See Florida

Growers, Inc. v. Paul, 373

U.S. 132 (1963), discussed in § 6-25, infra. Although it is no easy task for judges to

an insightful critique of "non-discrimina¬ tion” as an independently crucial touch¬ stone of commerce clause analysis, see Brown, in § 6-2, supra, note 1, at 225-28. Discrimination is necessarily a central is¬ sue, however, in privileges and immunities litigation under article IV. See §§ 6-34 to 6-35, infra.

414

LIMITS

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POWER

Ch. 6

repeatedly been struck down as inconsistent with the principles under¬ lying the commerce clause. The leading case is Baldwin v. G.A.F. Seelig, Inc.1 There, New York had sought to protect its dairy farmers by fixing the minimum price at which their milk could be sold in local markets; 2 in order to keep this fixed price from being undercut by outof-state suppliers in the competition generated by New York’s raising of the in-state price level, New York barred the resale within its borders of any milk purchased at prices below the New York minimum.3 In a seminal opinion by Justice Cardozo, the Supreme Court unanimously struck down the New York regulations insofar as they applied to milk purchased outside the state: "If New York, in order to promote the economic welfare of her farmers, may guard them against competition with the cheaper prices of Vermont, the door has been opened to rivalries and reprisals that were meant to be averted by subjecting

.

commerce between the states to the power of the nation. The Constitu¬ tion was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” 4 The Supreme Court has reacted more favorably, however, to nondiscriminatory regulations protecting local residents from the deceptive or socially intrusive trade practices of local and out-of-state sellers alike. For example, in California u. Thompson ,5 the Court upheld a state measure which sought to limit fraud in the local sale of intrastate 1. 294 U.S. 511 (1935) (striking down § 6-6

New York State’s refusal of a milk-selling license to a dealer who had procured his milk in Vermont at a price below the floor set by New York for in-state purchases). 2. The intrastate aspects of New York’s regulatory scheme had been upheld in Nebbia v. New York, 291 U.S. 502 (1934) and Hegeman Farms Corp. v. Baldwin, 293 U.S. 163 (1934). 3. It has been suggested that the regu¬ lation might have been upheld if it had merely required payment to the state of the difference between the minimum price and the price actually paid the suppliers for their milk, whether produced within or without the state. See Note, "Commerce Clause Decisions: 1936-1942,” 42 Colum.L. Rev. 1333, 1336 n. 31 (1942); cf. Henneford v. Silas Mason Co., 300 U.S. 577, 585-86 (1937), discussed in § 6-17, infra. 4. Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 522-23 (1935). See also id. at 527; Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S. 361 (1964) (Florida may not regulate the business of local milk dis¬ tributors in a way that deprives out-ofstate milk suppliers of a share in the local market by compelling local distributors to accept their total supply from designated local suppliers); Minnesota v. Barber, 136 U.S. 313 (1890) (invalidating state law

which effectively decreed that only meat processed in Minnesota could be sold there). But cf. Henneford v. Silas Mason Co., 300 U.S. 577 (1937), discussed in § 617, infra. The theme of Baldwin v. Seelig is close to that of article IV’s privileges and immunities clause. See §§ 6-34 to 6-35, infra. See also Great Atl. & Pac. Tea Co., Inc. v. Cottrell, 424 U.S. 366, 375 (1976) (holding that Mississippi cannot condition the right to sell milk produced or processed in another state on that state’s reciprocal acceptance of milk produced or processed in Mississippi; contention that the reci¬ procity provision serves Mississippi’s health interest "borders on the frivolous”). The Court has also held that a state cannot prevent out-of-state sellers from marking the containers in which they ship their products into the state with designations indicating the state of origin and that state’s classification of the products in question; an open economy entails a right to appeal to positive consumer attitudes toward the state of a product’s origin and to take advantage of that state’s superior classification scheme. Hunt v. Washing¬ ton State Apple Advertising Commission, 432 U.S. 333 (1977) (crates of Washington State apples cannot be prevented by North Carolina from bearing Washington State grade).

.S

313U

LIMITS ON STATE AND

LOCAL

POWER

415

§ 6-6

and interstate automobile tours by requiring that all ticket agents be licensed by the state. Similarly, in Breard v. Alexandria ,6 the Supreme Court approved a municipal privacy ordinance which banned uncon¬ sented door-to-door solicitation by both out-of-state and local salesmen.7 Health and environmental regulations which incidentally limit access to local markets by out-of-state sellers have likewise been upheld with some regularity. For example, in Mintz v. Baldwin ,8 the Court upheld a New York law requiring all cattle imported into the state for dairy or breeding purposes to be certified as coming from herds free of Bang’s disease. The Court’s arguably unfortunate willingness to sus¬ tain that law notwithstanding its possibly unwarranted discrimination against suppliers of out-of-state cattle9 serves to underscore the high judicial tolerance for measures that appear reasonably calculated to advance local interests distinct from the economic. Especially when such measures do not discriminate on their face between in-state and out-of-state enterprises, not even a heavy burden on out-of-state enter¬ prises is likely to result in their invalidation when the interests they serve "are . . . not divisible by the same units of measurement as [the] economic loss to [outside] industry,” 10 so that the process of weighing burdens against benefits seems inescapably political. In such cases, the tendency is to leave to state legislatures the task of striking the balance, subject only to the power of Congress to override their choices.11 Even when a challenged rule discriminates against interstate com¬ merce on its face, the Court remains solicitous of legitimate — that is, non-protectionist — local concerns. In Maine v. Taylor ,12 the Court upheld a law prohibiting the importation of live baitfish after requiring Maine to show that its statute served a legitimate local purpose that could not be served as well by nondiscriminatory means.13 The Court 6. 341 U.S. 622 (1951). 7. Cf. Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424 (1963) ("The statute [regulating the sale of eyeglasses] thus falls within the most tradi¬ tional concept of . . . the police power ... A state law may not be struck down on the mere showing that its administra¬ tion affects interstate commerce in some way”). 8. 289 U.S. 346 (1933). 9. It should be noted that in Mintz, the Supreme Court failed to inquire into whether the state regulation was discrimi¬ natory — that is, whether New York im¬ posed similar restrictions on local settlers. If, as appears, no similar restriction was locally imposed, New York should have been required to show that the condition feared was peculiar to out-of-state herds. Contrast the decision in Hannibal & St. Joseph R. v. Husen, 95 U.S. 465 (1877) (invalidating Missouri statute prohibiting bringing certain cattle into the state for designated three-fourths of year; such in¬ terference with interstate commerce not

shown to be "absolutely necessary” to pro¬ tect health). 10. American Can Co. v. Oregon Liquor Control Comm’n, 15 Or.App. 618, 517 P.2d 691, 697 (1973) (upholding against com¬ merce clause attack the Oregon Bottle Bill, which required all soft drinks and beer sold in Oregon to be packaged in returna¬ ble containers). Accord, Brotherhood of Locomotive Firemen and Enginemen v. Chicago, R.I. & P.R. Co., 393 U.S. 129 (1968) (state full-crew laws upheld where balancing safety against adverse economic impact deemed a "legislative judgment”). 11. See also § 6-7, infra. 12. 106 S.Ct. 2440 (1986). 13. Id. at 2449-2450. See Hughes v. Oklahoma, 441 U.S. 322, 336 (1979), dis¬ cussed in § 6-10, infra. A number of com¬ mentators have argued that this standard, as applied, was so strict that it could never be met. See, e.g.,as Sedler, "The Negative Commerce Clause a Restriction on State Regulation and Taxation: An Analysis in Terms of Constitutional Structure,” 31 Wayne L.Rev. 885, 897 (1985). Taylor be-

416

LIMITS ON STATE AND

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POWER

Ch. 6

accepted the district court’s findings that (1) Maine’s fisheries are unique and fragile; (2) parasites and non-native sea animals in baitfish shipments would import disease and upset the aquatic ecology of these fisheries; and (3) there exists no satisfactory way to inspect baitfish shipments to screen out such problems.14 Taylor demonstrates that even overt discrimination against nonresidents or nonresident interests may be upheld under the commerce clause, as under the privileges and immunities clause of article IV, if it can be shown that the out-of-state interests "constitute a particular source of the evil at which the statute is aimed.” 15 Even if a statute’s direct aims clearly include revamping an inter¬ state market, the Court may yet be inclined to uphold the challenged law if it is facially neutral and is not structured so as to impose a manifestly discriminatory or transparently excessive burden on inter¬ state commerce. Thus, in Exxon Corporation v. Governor of Mary¬ land^ 16 the Court upheld a statute that required vertically-integrated oil companies, whether in-state or out-of-state, to divest themselves of their retail operations. Although the statute’s burden fell overwhelmingly on out-of-state firms,17 the Court was untroubled by this differential impact. Justice Stevens’ opinion for the majority asserted that the commerce clause "protects the interstate market, not particular inter¬ state firms, from prohibitive or burdensome regulation.” 18 This aspect of the Exxon holding was expressly distinguished in Lewis v. BT Investment Managers, Inc .,19 where the Court unanimously struck down a Florida law that prohibited out-of-state banking institu¬ tions from controlling in-state investment advisory firms. The facial neutrality of the Maryland statute upheld in Exxon , which operated to the detriment of all vertically-integrated oil companies, was markedly absent from Florida’s law, which discriminated among affected business entities according to the extent of their contacts with the local econo¬ my.20 The law ran afoul of the commerce clause because it protected domestic financial conglomerates from competition by their out-of-state counterparts. In Exxon , by contrast, in-state firms were given no advantage over competing out-of-state concerns, and since there was no evidence that the regulation had adversely affected the flow of inter¬ state goods and service as such, the statute was within the limits imposed by the dormant

commerce

lies this view, although it is an exceptional case: the state succeeded in making a diffi¬ cult factual showing that few litigants will be able to match.

clause.21 state companies. Of the remaining 3,581 stations unaffected by the law, all but 34 were run by local retail dealers. 437 U.S. at 137-38 (Blackmun, J., concurring in part and dissenting in part).

14. 106 S.Ct. at 2450, 2452-53. 15. Toomer v. Witsell, 334 U.S. 385, 398 (1948). See Taylor, 106 S.Ct. at 2453 n. 19; United Building & Trades Union v. Cam¬ den, 465 U.S. 208, 222 (1984). See §§ 6-34 and 6-35, infra.

18. 437 U.S. at 127-28. 19. 447 U.S. 27 (1980), discussed further in § 6-33, infra. 20. Id. at 41-43.

16. 437 U.S. 117 (1978). 17. Of the 199 service stations affected by the law, all but two were run by out-of¬

21. Id. at 125-26. See also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981), discussed in § 6-5, supra.

LIMITS

ON STATE

AND

LOCAL

417

POWER

§ 6-7 Behind theme: the pally from free trade.

the Court’s analysis in Exxon stands an important doctrinal negative implications of the commerce clause derive princi¬ a political theory of union, not from an economic theory of The function of the clause is to ensure national solidarity,

not economic efficiency.22 Although the Court’s commerce clause opin¬ ions have often employed the language of economics, the decisions have not interpreted the Constitution as establishing the inviolability of the free market. More particularly, the constitutional vice of economic protectionism is not implicated by a regulation which makes impossible the economies of scale that a fully open market permits. As Justice Stevens stressed for the Exxon Court, the commerce clause does not protect "the particular structures or methods market.” 23

of operation in a retail

§ 6-7. Restrictions on Access to Local Transportation Facilities by Out-of-State Users While a state may not restrict access to its transportation facilities in order to regulate economic competition,1 it has long been accepted as a general proposition that a state may regulate the use of its railroad tracks and highways in the interest of public safety.2 The Court originally responded to the potential for conflict between the dictates of the dormant commerce clause and state pursuit of public safety by establishing a unitary approach to transportation regulations in Cooley v. Board of Wardens ,3 where the Court reviewed a Pennsylvania law requiring vessels in the port of Philadephia to employ local harbor pilots. The Court upheld the regulation and announced a general principle of allowing states great leeway in such matters, while saying that it would not allow state restrictions on the freedom of interstate movement where the subjects of the regulation were "in their nature national, or admit of only one uniform system” because these subjects "may justly be said to be of such a nature as to require exclusive regulation by Congress.” 4 Federal judicial tolerance for state autonomy has particularly been the rule when a federal court has been asked not to review a general 22. See, e.g., Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 522-23 (1935).

rowly drawn measures prohibiting the feared abuses. Id. at 141-45.

23. 437 U.S. at 127. Nonetheless, the Court may be faulted for neglecting to re¬ spond more explicitly to Justice Blackmun’s cogent argument that the statute constituted an unconstitutional discrimina¬ tion against out-of-state oil companies while protecting a group of retailers over¬ whelmingly composed of local business¬ men. Id. at 140-141 (Blackmun, J., dis¬ senting). Justice Blackmun’s conclusion was bolstered by the state’s failure to show that its legitimate goals — preserving retail competition and preventing unfair trade practices such as predatory pricing — were actually threatened by the participation of vertically integrated oil companies in Ma¬ ryland’s retail gasoline market, or that those interests could not be served by nar¬

1. See Buck

v. Kuykendall,

267 U.S.

307 (1925) (Washington’s refusal to license a common carrier to operate between Seat¬ tle, Washington, and Portland, Oregon on § 6-7 the ground that the route was already "ad¬ equately served” was held impermissible, given Oregon’s prior certification of the carrier to operate that route as evidence of its view that the route was

not yet served

to capacity). 2. See, e.g., Smith v. Alabama, 465 (1888).

124 U.S.

3. 53 U.S. (12 How.) 299 (1851), dis¬ cussed in § 6-4, supra. 4. Id. at 319.

418

LIMITS ON STATE AND

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Ch. 6

safety rule but to reverse a specific and apparently reasonable adjudica¬ tion of transportation privileges. For example, in Bradley v. Public Utilities Commission of Ohio ,5 the Supreme Court upheld Ohio's refusal to license an interstate common carrier over a particular route because of the traffic congestion on that route, noting that the carrier received a full hearing on the issue and failed to choose another available route. And such tolerance has predictably prevailed when states have sought to condition use of their highways by interstate travelers upon compli¬ ance with regulations reasonably calculated to facilitate enforcement of independently valid criminal laws. In Duckworth v. Arkansas ,6 the Court rejected a commerce clause challenge to a state requirement that interstate transporters of alcohol obtain a permit before traveling through the state: the object of the rule was to give local officials advance notice so that they could take steps to prevent unlawful diversion of liquor into the state.7 In applying the Cooley test, the Court settled for a time upon a bifurcated approach in which the degree of permitted state regulation of transportation effectively depended on whether goods crossed state lines by highway or rail. In South Carolina State Highway Department v . Barnwell Brothers ,8 the Court upheld a South Carolina statute that,

.

unlike regulations in nearly every other state, barred from the state’s highways trucks greater than 90 inches in width or ten tons in loaded weight. The Court left to the state the task of deciding the need for such safety measures, arguing that "the judicial function, under the commerce clause as well as the fourteenth amendment, stops with the inquiry . . . whether the means of regulation chosen are reasonably adapted to the end sought.” 9 Under this minimal level of scrutiny, myriad road safety regulations have received the Court’s imprimatur.10 However, in Southern Pacific Co. v. Arizona ,n Justice Stone, who had authored the unanimous Barnwell opinion, wrote a decision for the Court striking down a statute outlawing trains more than 14 passenger cars or 70 freight cars in length from operating within Arizona. Between 93 and 95% of the rail traffic affected by the regulation was interstate; such train limit laws were enforced only in Arizona and Oklahoma. Trains crossing the border either had to be broken up into shorter segments and reformed upon leaving the state, or had to conform to the limit from the beginning to the end of their journeys. 5. 289 U.S. 92 (1933). 6. 314 U.S. 390 (1941). 7. For a discussion of the effect of the twenty-first amendment on the commerce clause, see § 6-24, infra. 8. 303 U.S. 177 (1938). 9. Id. at 190. 10. See, e.g., Hendrick v. Maryland, 235 U.S. 610 (1915) (non-residents may be com¬ pelled to obtain driver’s licences); Morris v. Duby, 274 U.S. 135 (1927) (speed and size of trucks may be regulated). See generally McCormick, "The Regulation of Motor Transportation,” 22 Calif. L.Rev. 24 (1933);

Powell, "Current Conflicts Between the Commerce Clause and State Police Power,” 12 Minn. L.Rev. 321, 470, 607 (1928). Not all highway safety regulations have been sanctioned, especially in more recent de¬ cades. In Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 529 (1959), the Court struck down an Illinois mudguard law, ob¬ serving: "This is one those cases — few in number — where local safety measures that are nondiscriminatory place an unconstitu¬ tional burden on interstate commerce.” See § 6-12, infra.

61(1 .S7. 325U 94

LIMITS

ON STATE

AND

LOCAL

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POWER

§ 6-7

Either alternative entailed enormous costs, and there was evidence that the incremental increase in safety garnered through shorter trains was completely offset by the incremental hazards of operating a larger number of trains.12 The same Justice who had opined in Barnwell that "courts do not sit as legislatures,” 13 now declared that the " 'convenient apologetics of the police power’ ” do not relieve the Court of the responsibility of weighing the safety evidence for itself.14 Because the states could not provide uniform regulation of railroad transportation, allowing diverse state regulation of this mode of transportation would subject interstate carriers to a "crazy-quilt of state laws.” 15 The same analysis was apparently not thought to apply with equal force to interstate truck traffic in the late 1930s, before the ambitious federal highway building program forever changed the American land¬ scape. The Southern Pacific Court distinguished Barnwell on the ground that the state had constructed the highways (whereas railroads were privately built) and was therefore entitled to control the condi¬ tions under which they may be used in order to promote safety.16 Several developments suggest that the Barnwell exception to the Cooley doctrine has narrowed considerably. First, the intervening decades have witnessed an explosion in interstate truck traffic and the relative decline of the role of the iron horse; it is no longer safe to assume, if it ever was, that traffic on state highways is predominantly local. Second, the collapse of the traditional "right/privilege” distinc¬ tion has undercut the foundation of the notion that a state has the right, free of independent

constitutional norms

such as the commerce

clause, to condition the use of those "gratuities” such as highways it chooses to provide.17 Third, the Court’s recent transportation suggest that the screws of judicial review are tightening on highway safety laws, to the point that Justice Rehnquist has

that cases state been

heard to lament that "the only state truck-length limit 'that is valid is one which this Court has not been able to get its hands on.’ ” 18 Thus, in Raymond Motor Transportation, Inc . v. Rice ,19 while recit¬ ing that the states are primarily responsible for the construction and maintenance of highways and that highway conditions vary from state to state,20 and while paying lip service to the superiority of legislatures over courts in making policy judgments and weighing evidence,21 the Court had no difficulty striking down a Wisconsin law banning from state highways

trucks longer than 55 feet. The Court largely dis¬

counted the state’s safety claims because Wisconsin made no effort to rebut a massive array of evidence showing that the regulation made no real contribution to highway safety. Nor did the state contradict the 12. 325 U.S. at 775-76. 13. 303 U.S. at 190.

18. Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 687 (1981) (Rehnquist, J., dissenting).

14. 325 U.S. at 780. 19. 434 U.S. 429 (1978). 15. Morgan v. Virginia, 328 U.S. 373, 388 (1946) (Frankfurter, J., concurring). 16. 325 U.S. at 783. 17. See § 10-8, infra.

20. Id. at 444 n.18. ring). 21. Id. at 449 (Blackmun,

J., concur¬

420

LIMITS ON STATE

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Ch. 6

trucking company’s showing that the regulation imposed a substantial burden of delay and expense on the interstate movement of goods. Perhaps most significant, the Court noted the numerous adminis¬ trative exceptions the state had made to permit the use of oversized vehicles by in-state manufacturers and important Wisconsin indus¬ tries.22 But it is not the resulting discriminatory impact on non¬ residents that distinguishes Raymond from the Court’s previous trans¬ portation cases, so much as the Court’s willingness to look for and recognize the implication of such an impact. For example, in Brother¬ hood of Locomotive Firemen & Enginemen v. Chicago, R.I. & P.R. Co.,23 the Court upheld an Arkansas law requiring trains traveling more than a specified distance within the state to be operated by a designated minimum crew, despite the Court’s awareness that the particular distance threshhold chosen by the state legislature had the effect of exempting all of Arkansas’ intrastate railroads from the regulation. All but one of the Justices 24 found that narrowing the law’s application to interstate train traffic was rationally related to the legitimate state goal of averting an adverse economic impact on local railroads! 25 In contrast, Justice Powell argued for the Raymond Court that exemptions of this type weaken the presumption in favor of safety regulations by undermining the political pressure that local interests may bring to bear on state lawmakers who frame burdensome regulations.26 While all the Justices were persuaded that the Wisconsin statute in Raymond violated the commerce clause, the Court divided over the right approach to review of safety regulations. Wisconsin pointed out that the Court had previously refused to balance safety considerations against burdens on interstate commerce,27 relying on language in Barn¬ well suggesting that highway safety measures were subject to a "ration¬ al relation” test rather than a balancing test.28 Justice Powell’s opin¬ ion for the Court 29 rejected that contention, stating that "the inquiry necessarily involves a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on interstate commerce.” 30 Justice Blackmun’s concurring opinion 31 also rejected Wisconsin’s contention, but only insofar as the cases show the court weighing "slight or problematical” safety interests against the national interest in uninhibited commerce: "[I]f safety justifications are not illusory, the Court will not second-guess legislative judgment about their importance in comparison with related burdens on interstate commerce.” 32 Raymond should be read as a warning to state legislatures and to lower courts that they cannot refuse to balance the local and national 22. 434 U.S. at 447; id. at 450-51 (Blackmun, J., concurring). 23. 393 U.S. 129 (1968). 24. Justice Douglas dissented on the separate ground that Congress had pre¬ empted the field. Id. at 144. 25. Id. at 142. 26. Id. at 444 n.18, 446. 27. 434 U.S. at 442-43.

28. For a discussion of rationality tests, see Chapter 16, infra. 29. This opinion was joined by every Justice except Justice Stevens, who took no part in the consideration of the case. 30. 434 U.S. at 441. 31. Joined by Chief Justice Burger and Justices Brennan and Rehnquist. 32. 434 U.S. at 449.

LIMITS

§ 6-7 interests promoted

ON STATE

AND

LOCAL

421

POWER

and impaired by a state law.

Contrary to some

suggestions, courts sometimes must attempt to "weigh” non-comparables.33 The point is not that such concerns as local health and safety on the one hand and increased cost to outside industry on the other be reduced to some common unit of measurement, but that the state’s accommodation between such concerns must be critically as¬ sessed. The presumption of validity for traffic regulations and other judicial rules of thumb cannot be applied mechanically. As the Court unanimously observed in Raymond , "experience teaches that no single conceptual approach identifies all of the factors that may bear on a particular case.” 34 In every case, the judiciary is called upon to make a "delicate adjustment of the conflicting state and federal claims.” 35 One of the quirks of the Raymond litigation — that the state made no visible effort to defend the effectiveness of its regulation — might have cast doubt on the force of the Court’s insistence that state interests be weighed against the constitutional concern with unimpeded commerce. After all, how hard could it be to compare the apples of safety with the oranges of commerce when the state all but admits by default that its apples are full of worms? But the decision in Kassel v. Consolidated Freightways Corp ,36 makes

clear that courts must weigh

the state’s asserted interests in safety even where they are substantiat¬ ed by more than the hollow claims made for them in Raymond. Kassel invalidated under the commerce

clause an Iowa law ban¬

ning the use of 65-foot double tractor trailers on its highways. A plurality of the Court37 found that the rule substantially burdened interstate commerce because loads carried by 65-foot doubles had to be routed around Iowa or reloaded onto smaller trucks for shipment through the state. The truck company adduced substantial evidence that the bigger trucks were at least as safe as the smaller ones, and that any reduction in accidents achieved by decreased truck footage would be offset by the heightened accident opportunities created by increased truck mileage, as more small truck-miles were logged to carry the same loads previously managed by the 65-foot doubles. And, once again, the Justices noted a maze of exemptions which allowed many Iowans the benefits of the larger trucks. Justices Brennan

and Marshall concurred in the opinion, choosing

to analyze the state’s motives for the adoption of the rule rather than to debate the relative safety merits of large and small trucks. The legislative history of the rule, the Iowa Governor’s veto message, and the state’s defense of the rule in the lower courts revealed that the state’s real motive was to reduce interstate traffic on its roads. The concurring Justices found this motive to be " protectionist in nature” and therefore impermissible.38 33. See § 6-6, supra.

36. 450 U.S. 662 (1981).

34. 434 U.S. at 441.

37. Justice Powell

35. H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 553 (1949) (Black, J., dissent¬ ing).

wrote

for himself

and for Justices White, Blackmun vens. 38. 450 U.S. at 685.

and Ste-

422

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

The doctrinal divide that separates the plurality from the concur¬ rence in Kassel may be far narrower than it seems, and a closer examination of that divide may shed light on the bond between the commerce clause and the privileges and immunities clause of article IV. The motivation analysis undertaken by Justice Brennan concludes, contrary to the factual inquiry of the plurality, that the Iowa statute would in fact produce the safety advantages claimed for it by the state. Although more accidents might well occur after the law’s implementa¬ tion, either because more truck miles would be traveled by smaller trucks or because the allegedly more dangerous double-trucks would have to travel as far or farther in order to bypass Iowa, the important point for Iowa legislators was that this increase in truck traffic and accidents would take place outside Iowa. The plurality’s emphasis on the mere statistical incidence of trucking accidents was therefore mis¬ placed, because Iowa’s concern was with the place, not the frequency, of highway deaths. Those who would die because of Iowa’s rule might be citizens of Illinois, Wisconsin or Missouri, but they and their kin would never vote in Iowa elections even if they managed to survive the stampede of giant killer trucks. Kassel thus stands for the rule that under the commerce

clause a

state may not reduce the risks posed to its own citizens by the stream of commerce

by diverting that stream out-of-state, thereby increasing the

hazards to non-residents, any more than a state may "isolate itself from the [problems of poverty] common to all states by restraining the transportation of [indigent] persons . . . across its borders.” 39 The privileges and immunities clause of article IV likewise requires that the states show the same regard for the citizens of other states that they would

for their own

when

a state’s rules affect outsiders.40 Kassel

shows how commonly, in an interdependent economy, a state’s rules may burden out-of-staters even when they remain out-of-state — and how cavalierly non-residents’ lives may be jeopardized when they do not have the power to vote against those who would thrust risks upon them.

§ 6-8. Restrictions on Access by Out-of-State Buyers to Scarce Local Resources or Commodities: Price, Production, and Use Controls American agricultural production routinely tends to outrun de¬ mand, depressing food prices below the level which American farmers think necessary for their profitable survival. Agricultural interests have persistently pressured both the state and federal governments to take some action to alleviate the conditions brought about by this endemic oversupply. State governments have generally responded in two ways: (a) by fixing prices at levels above those that could be obtained in the open market; and (b) by regulating agricultural produc39. Edwards v. California, 314 U.S. 160, 173-74 (1941) (striking down a Depressionera law making it a misdemeanor knowingly to bring a non-resident indigent into the state), discussed in § 16-34, infra.

40. But see Edgar v. MITE Corp., 457 U.S. 624 (1982) (denying that states have any legitimate interest in protecting nonresident shareholders), discussed in § 6-12, infra.

LIMITS

ON STATE

AND

LOCAL

POWER

423

§ 6-8

tion and allocation in ways that control the supply made available for sale in the market. Both forms of regulation have also been used to conserve scarce local resources and are vulnerable to commerce clause challenge to the degree that they adversely affect out-of-state buyers. States may control the price which local sellers charge out-of-state buyers only to the extent that such regulation of the interstate market is an incidental consequence of regulation of the local market. For example, in Milk Control Board v. Eisenberg Farm Products ,l the Supreme Court held that Pennsylvania could fix the price charged by local dealers selling to a Pennsylvania-based processing company that subsequently shipped the milk it purchased to New York. The Court noted: (a) that the regulated transaction took place entirely within Pennsylvania; (b) that the state could not effectively control the price paid for milk eventually consumed in Pennsylvania if it were not

.

permitted incidentally to fix the price of milk purchased

in Penn¬

sylvania but later shipped out-of-state; and (c) that "[only] a small fraction of the milk produced ... in Pennsylvania is shipped out of the Commonwealth.” 2 In earlier cases, this last factor had been absent. Thus, for example, in Lemke v. Farmers Grain Co.,3 a North Dakota attempt to fix the price paid by interstate dealers for local grain was found by the Supreme Court to be unconstitutional, given the absence of any significant local market

for the regulated commodity.4

In Cities Service Gas Co. v. Peerless Oil and Gas Co.,5 the substan¬ tial state interest in natural gas conservation substituted for the incidental character of the interstate agricultural price regulations affirmed in Eisenberg, as the Supreme Court approved an Oklahoma program attempting to reduce economic waste by fixing the price paid by a pipeline monopoly for natural gas produced by local suppliers, even though the gas was destined almost exclusively for out-of-state users.6 The decision in Cities Service seems dubious in light of the major concern of the commerce clause with avoiding any state’s ex¬ ploitation of its geographical or resource position "to the disadvantage and displeasure of [its] less strategically situated neighbors.” 7 Like price controls that incidentally but significantly affect con¬ sumers of a state’s exports, even production controls which substantial¬ ly affect interstate commerce are not unconstitutional per se under the commerce clause. In Parker v. Brown,3 for example, the Supreme Court upheld a complex California plan for regulating the supply of 5. 340 U.S. 179 (1950). 1. 306 U.S. 346 (1939). § 6-8

2. Id. at 353. Justice Roberts, writing

6. "That a legitimate local interest is at stake in this case is clear. A state is

for the Court, invoked language reminis¬ cent of Cooley. ’'But in matters requiring diversity of treatment according to the spe¬ cial requirements of local conditions, the States remain free to act within their re¬ spective jurisdictions until Congress sees fit to act.” Id. at 351.

justifiably concerned with preventing rapid and uneconomic disruption of one of its

3. 258 U.S. 50 (1922). 4. See also Shafer v. Farmers Co., 268 U.S. 189 (1925).

Grain

chief natural resources.” 340 U.S. at 187. This case is discussed from another doctri¬ nal perspective in § 6-13, infra. 7. Brown, in § 6-1, supra, note 1, at 228. See also id. at 233 n. 72.

.S3.

317U

424

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

raisins made available on the market even though 95% of the raisins sold in California eventually found their way into interstate commerce. The Court noted the substantial state interest in production control and found no contrary federal interest, given the way in which the state program filled a gap in the larger federal statutory scheme of agricul¬ tural production regulation.9 Production controls are forbidden, however, if they discriminate against or expressly exclude interstate commerce. Thus, in H. P. Hood & Sons, Inc. v. Du Mond ,10 the Supreme Court held that New York could not maintain a constant supply of milk for its local markets by preventing a milk processor serving Massachusetts markets from estab¬ lishing an additional receiving plant in New York.11 Similarly, in rationing scarce natural resources previously made unconditionally available to out-of-state users, a state may not allocate the available supply in a way that favors local users at the expense of out-of-state consumers.12 For example, in Philadelphia v. New Jersey, 13 the Court struck down a New Jersey law barring the importation of solid or liquid waste destined for disposal in the state’s rapidly-filling sanitary landfills. New Jersey sought to extend the life of its existing landfill sites and to minimize the need for new ones that would force the loss of scarce open lands by stemming

the flow of out-of-state

waste.14 The Court accepted the state’s environmental and health goals, but reminded New Jersey that "the evil of protectionism can reside in legislative means as well as legislative ends.” 15 The Court assumed that New Jersey could accomplish its goals by slowing the flow of all waste into the scarce landfills, even though interstate commerce

would

incidentally be affected.16 But the state

9. The Court also seized upon the fact that the regulations involved purportedly took their effect before interstate com¬ merce commenced. 317 U.S. at 361. The observation, however, seems functionally irrelevant: the fact that the regulations take their toll before interstate shipment hardly divests the transaction of its inter¬ state character or the regulations of their out-of-state impact; the spectre of commer¬ cial rivalry that actuated the Framers is certainly not dispelled by this particular chronology. Further aspects of this case are discussed in § 6-26, infra. 10. 336 U.S. 525 (1949).

ke v. Farmers (1922); Currin (1939).

11. The Court proceeded formulaically— submitting that states could not bur¬ den interstate commerce — and obscured the balancing process that was actually taking place. In a similar case, United States v. Rock Royal Cooperative, Inc., 307 U.S, 533 (1939), the Court rejected the ar¬ gument that the regulatory scheme did not implicate the commerce clause because the sales in question were consummated before interstate commerce began. It held that, where commodities are bought for out-of-

14. The law also, of course, had the effect of reducing the price residents would have to pay for waste disposal by eliminat¬ ing out-of-state competition for limited space and by delaying the day when New

state use, the sale is "part of interstate commerce." Id. at 568-69. See also Lem-

Grain Co., 258 U.S. 50 v. Wallace, 306 U.S. 1

12. See Pennsylvania v. West Virginia, 262 U.S. 553 (1923) (holding unconstitu¬ tional a West Virginia statute requiring West Virginia natural gas producers to give first preference to their local custom¬ ers). Presumably, Congress could prohibit interstate shipments of a product until lo¬ cal demands were satisfied, or authorize the states to do the same. See H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 542 (1949) (dictum). 13. 437 U.S. 617 (1978).

Jersey’s cities would have to transport their refuse to more distant and more ex¬ pensive locations. 15. 437 U.S. at 626. 16. See, e.g., Minnesota v. Clover Leaf Creamery, 449 U.S. 456 (1981) (upholding power of state to ban sale of milk in nonbiodegradable, non-refillable plastic con-

LIMITS ON STATE

AND

LOCAL

§ 6-8 could not accomplish its objectives, however

425

POWER worthy, by means

which

discriminated against "'articles of commerce coming from outside the state unless there is some reason, apart from their origin, to treat them differently.” 17 There was neither argument nor evidence that out-ofstate garbage was more noxious than the domestic variety, and thus New Jersey's law was treated as typical protectionist legislation, subject to "a virtually per se rule of invalidity.” 18 To the extent that some early livestock quarantine cases might be understood as inconsistent with the Court's v. New Jersey ,19 the critical distinction lies in policy of exclusion imposed on the excluded The cattle quarantine cases at most put the

reasoning in Philadelphia the sort of burden that the states and their citizens. home state to the task of

disposing of some diseased cows or contaminated meat.20 In our ad¬ vanced industrial society, the burden that a waste exclusion law im¬ poses is obviously of a different magnitude: even if New Jersey could think of no better solution to the mounting waste disposal problem, neither could its neighbors count on finding more suitable disposal sites. The states may no more solve their waste problems by rerouting the market’s allocation of that waste than they may solve their high¬ way safety problems by routing the market’s private participants, and all their attendant hazards, through neighboring states.21 Philadelphia v. New Jersey thus lays the foundation for a unified approach to state and local attempts to fence out national problems.

When

the inscrip¬

tion on the base of the Statue of Liberty invites the world’s "wretched refuse” to these shores, it extends an invitation to join a union of states that are not free to halt the flow of supposed undesirables— whether human 22 or inanimate— at their respective borders. For the commerce clause can have no tolerance for politically expedient decisions "by one State to isolate itself in the stream of interstate commerce from a tainers, regardless of where the containers and milk originated). 17. 437 U.S. at 627. The Court rejected the argument that the dormant commerce clause did not apply because garbage is not a legitimate subject of commerce, appar¬ ently satisfied that anything someone pays to move across state lines comes within the stream of interstate commerce. See 437 U.S. at 622; see also Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982) (sub¬ mitting to commerce clause scrutiny inter¬ state transfers of ground water, even where, under state law, only a usufructua¬ ry right was recognized in ground water, which could not be reduced to possession). Of course, in Philadelphia v. New Jersey, the commerce in question was not trade in sewage or trash itself, but a service (waste disposal) or a resource (empty landfill space) of a different color. 18. 437 U.S. at 624; see id. at 627. If New Jersey itself entered the gargage-disposal market — e.g., by investing substan¬ tial public resources in developing facilities to dispose of wastes (nuclear or conventionTribe-Amer.Const.Law

2nd Ed. UTB— 12

al) — -it could invoke the "market partici¬ pant” exception to justify preferring in¬ state wastes. See § 6-11, infra. 19. See 437 U.S. at 629-33 (Rehnquist, J., dissenting). 20. See, e.g., Reid v. Colorado, 187 U.S. 137 (1902) (upholding law requiring inspec¬ tion of livestock coming from other states with purpose of excluding diseased ani¬ mals, on record in which nothing indicated that affected cattlemen could not reasona¬ bly comply). Blatantly protectionist or otherwise unreasonable statutes were rou¬ tinely struck down. See, e.g., Hannibal & St. J. Railroad Co. v. Husen, 95 U.S. (5 Otto) 465 (1877) (statute prohibiting impor¬ tation of cattle into Missouri during eight months of year, whether particular cattle were diseased or not, held not to be a legitimate quarantine law). 21. See Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981), discussed in § 6-7, supra. 22. See Edwards 160 (1941).

v. California, 314 U.S.

426

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

problem shared by all.” 23 To put a gloss on Justice Cardozo’s memora¬ ble summation, "the peoples of the several states must sink or swim together,” 24 even in their collective garbage.25

§ 6-9. Restrictions Which Put Pressure on Out-of-State Business¬ es to Relocate Within the Regulating State The Supreme Court "has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere.” 1 The seminal case is Pike v. Bruce Church , Inc.,2 where the Court held that Arizona could not compel a company growing cantaloupes there to pack the fruit locally, instead of shipping it to California for crating. Canta¬ loupe crates are labeled with the name of the state in which the fruit is packed, but not with the name of the state in which the fruit was grown. Because Bruce Church fruit was of exceptionally high quality, Arizona had an interest in taking credit for its production. The Court, however, held that this interest was insufficient to justify forcing Bruce Church to move its crating facilities 31 miles, at a cost to the company of some $200,000. "Even where the state is pursuing a clearly legiti¬ mate local interest, this particular burden on commerce has been declared to be virtually per se illegal.” 3 Such forms:

"local grab” regulations have generally taken one of two

(a) regulations which

induce business relocations by prohibiting

imports of out-of-state products unless certain processes have occurred locally; or (b) regulations which induce business relocations by prohibiting exports of local resources unless certain processes have occurred locally. As to import controls, state or municipal interest not be substantial enough relocations by prohibiting

the Supreme Court has held that even the in insuring the health of local residents may to justify regulations which force business imports which have not been subjected to

local processing. For example, in Dean Milk Co. v. City of Madison,4 the Court struck down a municipal ordinance forbidding the local sale of milk that had not been pasteurized and bottled at an approved plant within five miles of the center of the city; "reasonable and adequate 23. 437 U.S. at 629.

24. Baldwin

v. G.A.F. Seelig, Inc., 294

U.S. 511, 523 (1935). 25. Individual states nonetheless retain the freedom to base their internal econom¬ ic decisions — such as the decision about how heavily to rely on, say, nuclear power plants within their borders to meet their energy needs — upon their assessments of whether the nation as a whole will discov¬ er adequate means of disposing of the re¬ sulting refuse (e.g., long-term radioactive

waste) in time to prevent plant shutdowns. See Pacific Gas & Electric Co. v. California

State Energy

Resources

Conservation

&

Development Comm’n, 461 U.S. 190 (1983), discussed in § 6-26, infra.

1. Pike v. Bruce Church, Inc., 397 U.S. 137, 145 (1970). 2. 397 U.S. 137 (1970). § 6-9 3. Id. at 145. 4. 340 U.S. 349 (1951).

§ 6-10

LIMITS

ON STATE

AND

LOCAL

POWER

427

alternatives” could have been found by the city to serve the interest in health.5 Neither the state interest in conserving local resources, nor the related state interest in preserving or enhancing the reputation of local products or their processors, justifies state requirements that items must be processed locally before they may be exported. For example, in Foster-Fountain Packing Co. v. Haydel ,6 the Supreme Court held that Louisiana could not forbid the exportation of locally-caught shrimp from which the heads and shells had not been removed. The Court found that the state’s minimal interest in conserving shrimp heads and shells for local use as chicken feed7 was clearly outweighed by the adverse impact of the regulation upon interstate commerce. Ninetyfive percent of Louisiana shrimp were processed in Mississippi. If the regulation had been upheld, all shrimp canneries located there would have been forced to move to Louisiana. Similarly, in Toomer v. Witsell ,8 the Court held that South Carolina could not require that shrimp caught off its coast be unloaded, packed, and stamped at a South Carolina port prior to being taken out-of-state.9 And in South-Central Timber Development , Inc. v. Wunnicke,10 the Court struck down Alas¬ ka’s attempt to contractually require that timber felled on state lands be processed within Alaska prior to export.11 § 6-10.

State "Ownership”

of Natural

Resources

Foster-Fountain Packing Co. v. Haydel 1 and Toomer v. Witsell 2 did not purport to disturb the rule laid down by several earlier cases that a 5. See also Minnesota v. Barber, 136 U.S. 313 (1890) (state may not prohibit the local sale of meat derived from animals that had not been inspected by local offi¬ cials within twenty-four hours of the time of slaughter). In Dean Milk, the Court explained that the regulation, which "plainly discriminates against interstate commerce,” was impermissible given that it was "not essential for the protection of local health.” 340 U.S. at 355-56. If the Court believed the regulation truly essen¬ tial to the city’s well-being, it would no doubt have sustained the action, its dis¬ crimination against out-of-staters notwith¬ standing. The "less restrictive alterna¬ tive” aspect of this case is discussed in § 613, infra. See also Great Atl. & Pac. Tea Co., Inc. v. Cottrell, 424 U.S. 366, 376-78 (1976) (even if insisting on reciprocal ac¬ ceptance by Louisiana of Mississippi milk as condition of Mississippi’s acceptance of Louisiana milk could serve to assure Mis¬ sissippi that Louisiana’s health standards are substantially equivalent to its own, Mississippi must pursue less burdensome alternatives such as applying its own in¬ spection standards to Louisiana milk).

a nuisance.” Id. at 9. The Court rendered transparent the claim that the statute was designed to conserve a local resource: "the purpose [of the statute] is not to retain the shrimp for the use of the people of Louisi¬ ana; it is to favor the canning of the meat and the manufacture of bran in Louisiana . . .” Id. at 13. 8. 334 U.S. 385 (1948). 9. The

Court

expressed concern

"the necessary tendency of the statute is to impose an artificial rigidity on the econom¬ ic pattern of the industry.” Id. at 403-04. Other aspects of this case are discussed in §§ 6-34 to 6-35, infra. 10. 467 U.S. 82 (1984). 11. A parallel federal policy requiring timber taken from federal lands in Alaska to be processed in-state was held insuffi¬ cient to authorize Alaska’s contract policy, since it did not amount to express congres¬ sional approval. 467 U.S. at 88-90 (White, J., joined by Brennan, Blackmun and Ste¬ vens, JJ.); id. at 101 (Powell, J., joined by Burger, C.J., concurring in part and con¬ curring in the judgment).

6. 278 U.S. 1 (1928). 1. 278 U.S. 1 (1928). 7. "They have no market value, cannot be sold or given away, and often constitute

that

2. 334 U.S. 385 (1948). § 6-10

428

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

state may confine the consumption of natural resources like fish, game and streams — resources which have not yet been reduced to private possession and ownership — to consumption occurring wholly within the state’s borders.3 For example, in Geer v. Connecticut ,4 the Supreme Court held that a state may forbid the killing of woodcock, ruffled grouse, and quail for purposes of interstate shipment, and may forbid such interstate shipment itself.5 The Court had long held to the fiction that the state in which wild game was found could forbid the harvest of those animals for export because the state "owned” the wild animals within its borders, and although the commerce clause forbade the states to interfere with the stream of commerce channeled and traveled by the nation’s citizens, nothing in the Constitution required the states to put their own possessions up for sale. The Geer rule thus pressed upon the Court an artificial ownership distinction, in which lurked all the byzantine niceties of property law,6 and saddled the Court with the uncomfortable sense that the more a state’s game laws burdened commerce, the more likely they were to survive commerce clause scrutiny, since total embargoes tional limitations were not.7

were permitted in cases where

condi¬

In Hughes v. Oklahoma ,8 the Court explicitly abandoned Geer and invalidated an Oklahoma law barring the export of minnows taken from Oklahoma waters.9 Even in cases involving state control over natural resources, the balancing test developed in Pike v. Bruce Church, Inc.10 applies, "thus bringing the] analytical framework into conformity with practical realities.” 11 The Court noted, however, that "the legiti¬ mate state concerns for conservation and protection of wild animals underlying the 19th century legal fiction of state ownership” are still among the factors that can be weighed in the balance.12 Thus the idea of state as trustee for its citizens in ownership of natural resources is 3. However, Foster-Fountain and Toomer v. Witsell do stand for the proposition that, if a state allows any out-of-state use of particular local resources, then it cannot allocate or control the use of those re¬ sources in a way that needlessly discrimi¬ nates against dealers, buyers, or ultimate consumers solely because of their out-ofstate status. These cases are considered from the perspective of the privileges and immunities clause of article IV in §§ 6-34 to 6-35, infra. 4. 161 U.S. 519 (1896).

6. "A state does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of 'owning’ wild fish, birds or animals. . . . The 'ownership’ language was no more than a 19th century legal fiction. . . .” Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977).

5. See also Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908) (New Jersey may prohibit the transport of water from the Passaic River to New York City); Clason v. Indiana, 306 U.S. 439 (1939) (In¬ diana may prohibit the transportation of dead horses to Illinois); Lee v. New Jersey, 207 U.S. 67 (1907) (New Jersey may regu¬ late the oyster industry carried on under tidal waters within that state); but cf. West v. Kansas Natural Gas Co., 221 U.S. 229 (1911) (natural gas distinguished since,

9. For an argument that the regulation in Hughes should have been upheld as congressionally authorized, see Hellerstein, "Hughes v. Oklahoma: The Court, the Commerce Clause, and State Control of

"when reduced to possession, [it] is a com¬ modity”).

7. See Hughes v. Oklahoma, 322, 335-36 (1979).

441 U.S.

8. 441 U.S. 322 (1979).

Natural Resources,” 1979 S.Ct.Rev. 51, 5455 & n. 20. 10. 397 U.S. 137, 142 (1970), discussed in § 6-9, supra. 11. Hughes 335.

v. Oklahoma,

12. 441 U.S. at 336.

441 U.S. at

LIMITS

ON STATE

AND

LOCAL

POWER

429

§ 6-10

now mediated by the idea prevalent in the rest of the Court’s recent commerce clause jurisprudence: a state may not put the burden of achieving in-state environmental

goals exclusively on citizens of other

states.13 If public ownership with respect to wildlife is a dead letter under contemporary commerce clause analysis,14 the extent to which a state may claim ownership of its inanimate natural resources is also in doubt. In response to the alarming decline of the Ogallala Aquifer, Nebraska

enacted legislation requiring that the withdrawal

of ground-

water for interstate transfer be "reasonable,” conducive to "conserva¬ tion,” and "not otherwise detrimental to the public welfare,” and further imposed a flat ban on exports to states that did not permit their groundwater to be withdrawn for use in Nebraska.15 In Sporhase v. Nebraska ex rel. Douglas,16 the Supreme Court upheld the reasonable¬ ness requirements but struck down the reciprocity rule.17 The Court conceded that Nebraska’s claim to public ownership of its groundwater was significant,18 and concluded that, because the state’s conservation program contributed to the continuing availability of groundwater, "the natural resource has some indicia of a good publicly produced and owned in which a state may favor its own citizens in times of a shortage.” 19 Yet despite the Court’s consistent holding in its original jurisdiction cases that a state has a "quasi-sovereign” interest in the subterranean flow of water within its borders,20 and despite the fact that Nebraska law recognized only a usufructuary right in groundwater and did not allow its "possession” even by Nebraska citizens,21 the majority in Sporhase relied on Hughes v. Oklahoma in dubbing the state ownership

argument

a "legal fiction.” 22

13. See id. at 338-39. See also Phila¬ delphia v. New Jersey, 437 U.S. 617 (1978), discussed in § 6-8, supra. See Wells & Hellerstein, "The Governmental-Proprieta¬ ry Distinction in Constitutional Law,” 66 Va.L.Rev. 1073 (1980) (discussing the mar¬ ket participant exception, see § 6-11, infra, in the context of the Court’s treatment of the governmental-proprietary distinction in other doctrinal areas); Comment, "A Proposed Model of the Sovereign /Proprie¬ tary Distinction,” 133 U.Pa.L.Rev. 661 (1985) (same). 14. The Court has not completely for¬ saken the "ownership” approach to cases brought under the privileges and immuni¬ ties clause of article IV. A state may still claim a superior — if not an exclusive — right of exploitation of natural resources such as wildlife on behalf of its citizens to the extent that it has contributed to the resource by maintaining the species or its habitat. See Baldwin v. Fish & Game Comm, of Montana, 436 U.S. 371, 386 (1978) (state may charge non-residents more for a hunting license), discussed in § 6-35, infra. 15. Sporhase v. Nebraska ex rel. Doug¬ las, 458 U.S. 941, 944 (1982).

16. 458 U.S. 941 (1982). 17. The ban on exports to non-recipro¬ cating states was invalidated only as a per se rule; the Court left open the possibility that on some set of facts even this total barrier to interstate commerce might be permissible. Id. at 958. 18. Id. at 956-57. 19. Id. at 957, citing Reeves, Inc., v. Stake, 447 U.S. 429 (1980), discussed in § 6-11, infra. 20. Id. at 962-63 (Rehnquist, J., dissent¬ ing). 21. Justice Rehnquist, consistent with his affinity for legal positivism, argued that Nebraska groundwater did not even rise to the level of an article of commerce: " 'Commerce’ cannot exist in a natural re¬ source that cannot be sold, rented, traded or transferred, but only used." Id. at 963 sis). (Rehnquist, J., dissenting) (original empha¬ 22. Id. at 951. The Court further held that routine congressional approval of in¬ terstate water compacts and a pattern of deference to the states revealed in 37 sepa¬ rate pieces of federal water legislation did not mean that the field had been expressly

430

LIMITS

§ 6-11.

ON STATE

State Participation

AND

LOCAL

Ch. 6

POWER

in the Market

On June 24, 1976, in the year of the nation’s bicentennial, the commerce clause — the Constitution’s primary epoxy of national cohe¬ sion — gave way to the claims of state autonomy. In two decisions announced that day, National League of Cities v. Usery 1 and Hughes v. Alexandria Scrap Corp.f the Supreme Court inaugurated the era of the New Federalism. National League of Cities , at the time the more apparently important of the two cases, held that the tenth amendment embodies a preserve of state sovereignty which can operate as a constitutional trump to circumscribe congressional authority under the commerce

clause. Alexandria

Scrap, little noted at the time, estab¬

lished that "[n]othing in the purposes animating the commerce clause prohibits a state, in the absence of congressional action, from partici¬ pating in the market and exercising the right to favor its own citizens over others.” 3 Although the principles set forth in National League of Cities were never again deployed to limit congressional power over commerce, and the case has in fact been overruled,4 the market partici¬ pant doctrine announced in Alexandria Scrap has enjoyed vigorous expansion. Alexandria

Scrap involved a challenge to a Maryland

statutory

scheme whereby the state purchased crushed automobile hulks from in¬ state scrap processors at a premium price in order to help rid the state of derelict cars. Virginia scrap processors asserted a commerce clause violation because of Maryland’s refusal to buy scrap cars from out-ofstate processors. The Court held that the statute was not subject to commerce clause scrutiny at all inasmuch as Maryland was not inter¬ fering with the natural functioning of an interstate market but was merely participating in the market as a purchaser which chose to give its business exclusively to in-state sellers.5 Since the commerce clause was directed, as an historical matter, only at regulatory and taxing actions taken by states in their sovereign capacity, the Court reasoned that the clause simply does not apply, as a source of negative implication, to state decisions to "distribute govern¬ ment largesse” 6 on a basis that favors state residents.7 Moreover, the abandoned to the states. Id. at 959-60. This seems sound enough. See § 6-33, in¬ fra. But in refusing to accept Nebraska’s ownership argument (and thus its reciproc¬

3. 426 U.S. at 810. 4. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). See § 5-22, supra. 5. It is noteworthy

ity rule) for fear of compromising Congress’ unexercised authority to deal with the na¬ tional problem of groundwater overdraft, the Court seems to have forgotten that if Congress were to find that such overdraft affected interstate commerce — in agricul¬ ture, for example — it could regulate the area regardless of whether that groundwater itself constituted an article of com¬ merce, and that contrary laws such as Ne¬

the state’s bounty program neither in¬ creased costs to out-of-state firms, cf. Bald¬ win v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935), nor forced them to leave the mar¬ ket, cf. Great Atlantic & Pacific Tea Co., Inc. v. Cottrell, 424 U.S. 366 (1976). See the helpful discussion in Note, 90 Harv.L. Rev. 58, 61-62 (1976).

braska’s would then be pre-empted. See 458 U.S. at 961-62 (Rehnquist, J., dissent¬ ing).

6. Reeves, Inc. v. Stake, 447 U.S. 429, 441 (1980).

1. 426 U.S. 833 (1976). 6-11 §

2. 426 U.S. 794 (1976).

in this regard that

7. It has never been suggested that the commerce clause is inapplicable as a source of affirmative congressional author¬ ity to regulate state decisions of this sort.

§ 6-11

LIMITS ON STATE

AND

LOCAL

POWER

431

commerce affected by Maryland’s policy was commerce itself created by that statutory scheme — commerce that would not exist if the state had not entered the market.8 Any suspicions that Alexandria

Scrap was an aberration, perhaps

attributable to judicial indulgence for Maryland’s environmental con¬ cerns, were dispelled by Reeves, Inc. v. Stake? where the Court con¬ firmed its holding that the distinction between '"States as market participants and States as regulators makes good sense and good law.” 10 A narrow majority of the Court 11 upheld a policy of preferen¬ tial sales to state residents during periods of shortage by a cement plant owned and operated by South Dakota. Noting that " 'the commerce clause was directed, as an historical matter, only at regulatory and taxing actions taken by states in their sovereign capacity,’ ” 12 the Court relied on the absence of any "indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market.” 13 The state’s role as " 'guardian and trustee for its peo¬ ple’ ” 14 was also stressed: a state "may fairly claim some measure of a sovereign interest in retaining freedom to decide how, with whom, and for whose benefit to deal.” 15 It is only fair to accord state proprietary activities the long-recognized right of private traders to exercise their independent judgment in such matters, the Court reasoned, since stateowned businesses would be "burdened with the same restrictions im¬ posed on private market

participants.” 16 Finally, applying the com-

On the contrary, the Court has been more willing to extend Congress’ regulations of commerce to state proprietary activity than to state regulatory activity. See, e.g., United Transp. Union v. Long Island R.R. Co., 455 U.S. 678 (1982) (upholding regula¬ tion of state-run railroad over tenth amendment challenge); Jefferson County Pharmaceutical Assoc., Inc. v. Abbott Labs., 460 U.S. 150 (1983) (no antitrust immunity when the state acts as a market participant). In Wisconsin Dept, of Indus¬ try v. Gould, Inc., 106 S.Ct. 1057 (1986), Wisconsin had barred repeated violators of the National Labor Relations Act (NLRA) from doing business with the State. The Court, in a unanimous decision, refused to apply the market participant exception to insulate Wisconsin’s actions from NLRA preemption. The Court described Wiscon¬ sin’s debarment as being "tantamount to regulation.” Id. at 1063. The Court also emphasized the limited scope of the excep¬ tion: "[It] reflects the particular concerns underlying the commerce clause, not any general notion regarding the necessary ex¬ tent of state power where Congress has acted.” Id. The notion that the government should be subject to different legal standards

should be more lenient when the govern¬ ment is not acting in sovereign capacity); Connick v. Myers, 461 U.S. 138 (1983) (first amendment does not protect government employee from being fired for speech relat¬ ed to mere employee grievances, rather than to matters of public concern); cf. Polk County v. Dodson, 454 U.S. 312 (1981) (al¬ legedly inadequate legal representation by state-paid public defender does not consti¬ tute state action). 8. Alexandria Scrap, 426 U.S. at 809 n. 18; id. at 815-16 (Stevens, J., concurring). 9. 447 U.S. 429 (1980). 10. 447 U.S. at 436. The Court express¬ ly refused to distinguish the earlier case on environmental grounds, labeling such a reading of Alexandria Scrap an "oversim¬ plification.” Id. at 442 n. 16. 11. The decision was 5-4, with Justices Powell, Brennan, White and Stevens dis¬ senting. 12. 447 U.S. at 437 (quoting from the first edition of this treatise). 13. 447 U.S. at 437. 14. 447 U.S. at 438, quoting Heim McCall, 239 U.S. 175, 191 (1915).

v.

15. 447 U.S. at 438 n. 10.

when it is operating in other than its sov¬ ereign capacity has arisen within a num¬ ber of constitutional settings. See, e.g., Board of Education v. Pico, 457 U.S. 853,

16. 447 U.S. at 438-39. And, as subse¬ quent decisions have revealed, the Court has a very narrow view of non-proprietary,

908-09 (1982) (Rehnquist J., dissenting) (ar¬ guing that first amendment scrutiny

"traditional governmental functions.” See, e.g., United Transportation Union v.

432

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

merce clause to such phenomena as South Dakota’s innovative solution to the state’s chronic cement shortage would diminish the value of the states as social and economic laboratories.17 The Court’s reasoning in these cases is in some respects problemat¬ ic.18 The historical argument about the purpose of the commerce clause proves less than it claims, for although the framers may have been primarily concerned with preventing states from interfering with private interstate trade, there is no evidence that they even considered the problem of state proprietary activity. And there are obvious tensions between the image of the state as just another economic actor, responding to the same pressures as private enterprises, and the image of the state intervening in the market, propelled by the power to tax, in order to promote the interests of its citizens. These are in fact inconsistent alternative defenses.19 This tension has not been resolved by subsequent cases. Indeed, the line between market participation and market regulation, which was less than pellucid even in Alexandria Scrap,20 has been further obscured. In White v. Massachusetts Council of Construction Employ¬ ers , Inc. ("MCCE”),21 the Court rejected a commerce clause challenge to an order by the Mayor of Boston requiring all construction projects funded in whole or in part by funds administered by the city to be performed by a work force composed of at least 50% bona fide Boston residents.22 The Court deemed it irrelevant whether the city directly hired workers and constructed buildings itself or instead chose to impose a resident quota on the private contractors with whom it dealt: "Every¬ one affected by the order is, in a substantial if informal sense, 'working for the city.’ ” 23 Although the majority agreed with the dissent that "there are some limits on a state or local government’s ability to Long Island Railroad, 455 U.S. 678 (1982), discussed in § 5-22, supra. 17. 447 U.S. at 441. The Court quoted Justice Brandeis’ famous dissenting dictum in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932). In an echo of the lan¬ guage used by the ephemeral majority opinion in National League of Cities v. Usery, 426 U.S. 833, 852 (1976), the Reeves Court also noted that application of the commerce clause would hamper the state’s "ability to structure relations exclusively with its own citizens.” 447 U.S. at 441. 18. Many commentators have criticized the entire market participant exception. See, e.g., Note, "The Market Participant Test in Dormant Commerce Clause Analy¬ sis — Protecting Protectionism?”, 1985 Duke L.J. 697; Varat, "State 'Citizenship’ and Interstate Equality,” 48 U.Chi.L.Rev. 487, 503-08 (1981); Note, "The Commerce Clause and Federalism: Implications for State Control of Natural Resources,” 50 Geo.Wash.L.Rev. 601 (1982). 19. See L. Tribe, Constitutional Choices 144-46 (1985).

20. Maryland’s bounty for in-state scrap hulks was, as Justice Brennan noted in dissent, 426 U.S. at 824, 828-29, an integral part of the state’s regulatory effort to affect the trade in hulks so as to rid the state’s roadsides of abandoned 21. 460 U.S. 204 (1983). was counsel for Mayor White of Boston in this case before Court.

automobiles. The author and the City the Supreme

22. Justice Rehnquist wrote the opinion of the Court, joined by Chief Justice Bur¬ ger and Justices Brennan, Marshall, Pow¬ ell, Stevens and O’Connor. The Court had no occasion to consider the order’s validity under the privileges and immunities clause of article IV. 460 U.S. at 214 n. 12; id. at 215-16 n. 1 (Blackmun, J., dissenting in 23. Id. at 211 n. 7. The Court stated part). that, so long as Boston was a participant in rather than a regulator of the construction market, it mattered not whether the localhire rule had any adverse impact on out¬ siders. 460 U.S. at 209-10. Yet the Court took the trouble to point out, as it had in

LIMITS

§ 6-11 impose

ON STATE

AND

LOCAL

restrictions that reach beyond

433

POWER

the immediate

parties with

whom the government transacts business,” it declined to specify those limits, saying only that the commerce clause "does not require the city to stop at the boundary of formal privity of contract.” 24 Thus, whether state action is deemed market participation or market regulation may well depend on which facts are emphasized and how particular transac¬ tions or trading choices are characterized: Mayor White’s executive order could be seen as a proprietary choice by the city that it would deal only with contractors willing to reserve 50% of their jobs for locals; or it might be recast as a regulatory device designed to shape the construction market so as to promote local employment. A plurality25 of the Court attempted in South-Central Timber Development, Inc. v. Wunnicke 26 to distinguish participation from regu¬ lation — and thereby to cabin the market participant exception — by limiting the definition of the relevant market. The plurality concluded that Alaska’s policy of requiring that timber taken from state forests be processed in-state prior to export did not fall within the exception.27 "The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market. Unless the 'market’ is relatively narrowly defined, the [market-participant exception] has the potential of swallowing up the rule.” 28 This approach, with its intolerance of "downstream restrictions” on the market,29 is consistent with that taken by the Court in White itself, where the majority distinguished the "Alaska hire” statute struck down under article IV’s privileges and immunities clause in Hicklin v. Orbeck.30 In contrast to Boston’s relatively modest demand that its own building projects employ at least as many local as non-local workers, Alaska had attempted to require that state residents be given prefer¬ ence in all work even remotely connected with Alaskan oil and gas leases — a far more sweeping effort to dictate the employment practices of virtually all the businesses benefitting from the economic ripple effect of commercial exploitation of the state’s natural mineral wealth. Moreover, White, Reeves , and Alexandria Scrap all involved govern¬ ment expenditures of public revenues to create commerce which gener¬ ated benefits that those governments wished to keep within their communities.31

The state legislation struck down in Wunnicke

Reeves, 447 U.S. at 444 n. 17, that there was no basis in the record for concluding that non-residents would be significantly disadvantaged. 460 U.S. at 209-10 n. 6. 24. 460 U.S. at 211 n. 7; id. at 222 (Blackmun, J., dissenting). 25. Justices White, Brennan, Blackmun and Stevens. 26. 467 U.S. 82 (1984). 27. The Court’s reluctance to extend the market participant exception in Wun¬ nicke is also consistent with the Court’s long-standing aversion to regulations that put pressure on out-of-state businesses to relocate within the state by prohibiting

did not

exports of local products unless certain processes have occurred locally. See § 69, supra. 28. 467 U.S. at 97-98.

Justice Rehn-

quist argued in dissent that the plurality’s mechanism for distinguishing market regu¬ lation from participation depends on judg¬ ments more intuitive and conclusory than objective and reasoned, id. at 102. 29. 467 U.S. at 99. 30. 437 U.S. 518 (1978), discussed in § 6-35, infra. 31. In White, Boston also applied its local-hire requirement to federal building funds administered by the city — a restric-

434

LIMITS

expend community

ON STATE

AND

LOCAL

Ch. 6

POWER

tax revenues to create new commerce;

rather, like

Alaska’s previously invalidated local-hire statute, the law sought to exploit existing commerce in natural resources that happened to be situated on state lands. As early as Reeves v. Stake, the Court drew a line between government actions limiting access to "the end product of a complex process whereby a costly physical plant and human labor act on raw materials,” and efforts to control access to the raw materials themselves.32 That distinction, in turn, resonates with the Court’s unwillingness to treat a state’s undeveloped natural resources as gov¬ ernment "property” that the state may control as it wishes.33 The Court’s interest in defining some limits to the market partici¬ pant exception is well placed. For a doctrine that purports to be merely a limited exemption from the commerce clause — while roping in such diverse state endeavors as industrial production for the private market and contractual conditions on public works projects, and while twining together such varied commodities as cement, abandoned cars, and construction jobs — is a doctrine with the potential to knot up the remainder of the commerce clause, or to come unravelled altogether. Yet from another perspective, Alexandria Scrap and its progeny can be seen as ushering in a new day for federalism, one that allows state and local governments the freedom to experiment with different packages of benefits for their citizens without fear that they will have to share the contents with everyone else. Central heating is a marvel¬ ous thing, but it makes little sense in a house without walls. The market participant exception to the commerce clause, as an aspect of the new federalism, encourages states and cities to improve the lives of their citizens by allowing the benefits they generate to be contained within their borders. § 6-12.

State Regulations ness Structures

Which

Discourage

Multi-State

Busi¬

Just as activities which appear to be entirely local when viewed in isolation can become so nationally significant in the aggregate that they may be regulated by Congress under the commerce clause,1 so too regulations that individually seem only local in impact can collectively burden multi-state enterprises to such a degree that all will be barred by the negative implications of the commerce clause. Even if nondiscriminatory and nonprotective when perceived in isolation, regulatory measures applied by several states to the same multi-state business may in the aggregate so operate against interstate commerce that, when viewed in combination, they exert a potent localizing bias by making commercial activities which are confined to a single state far less difficult and more profitable than more national enterprises. State tion unanimously upheld by the Court on federal statutory grounds. 32. 447 U.S. at 444.

natural resources developed and main¬ tained by the state. See Baldwin v. Fish & Game Commn. of Montana, 436 U.S. 371 (1978), discussed in § 6-35, infra.

33. See § 6-10, supra. Under the privi¬ leges and immunities clause of article IV, the Court still recognizes that a state and its residents may have a superior claim to

1. See Wickard

v. Filburn, 317 U.S. Ill

(1942), discussed in § 5-5, supra. § 6-12

§ 6-12

LIMITS ON STATE

AND

LOCAL

POWER

435

regulations may discourage national enterprises in this way either by being contradictory or by imposing weighty cumulative burdens upon multi-state business concerns. The localizing bias inherent in regulations capable of multiple application is most apparent when a multi-state enterprise is required to comply with contradictory state regulations — a circumstance that could never befall the purely local operator. Although the Supreme Court has at times invalidated a state regulation simply because of the possibility that it might conflict with another state’s regulation, in more recent cases the Court has required a demonstration of actual conflict. Cases involving the application to multi-state businesses of state laws requiring racial integration or state laws requiring racial segrega¬ tion provide the most prominent illustrations of Supreme Court deci¬ sions striking down state regulatory measures that potentially conflict with the actions of other states. In Hall v. De Cuir ,2 the Court held that a Louisiana law prohibiting racial segregation could not be applied to steamboat operations on the Mississippi River because of the burden that could be imposed upon the steamboat operators if other states along the river enacted laws requiring segregation. A Virginia law requiring racial segregation was struck down for similar reasons in Morgan v. Virginia .3 However, commerce

clause barriers to the enforcement

against

multi-state businesses of laws prohibiting racial discrimination were removed by the Supreme Court with its decision in Colorado AntiDiscrimination Commission v. Continental Airlines, Inc.4 The Court there held that a multi-state airline could not justify its failure to comply with a state anti-discrimination law on the ground that a contradictory requirement might be imposed by another state in which the airline operated; because decisions subsequent to Hall and Morgan had made clear that any federal or state law requiring racial discrimi¬ nation would be unconstitutional,5 no conflict could in fact arise. In recent cases the Supreme Court has refused to invalidate other¬ wise nondiscriminatory and nonexclusionary local regulations absent a showing of actual conflict among the rules of different states; in cases of actual conflict, however, the Court has been extremely severe in its scrutiny of state action. For example, in Bibb v. Navajo Freight Lines, Inc.,6 the Supreme Court decided that an interstate trucker certified by the ICC could not constitutionally be required to comply with an Illinois regulation which required trucks operating in that state to be equipped with contour rear-fender mudguards. This particular kind of mudguard was not unequivocally safer than other kinds that were permitted in at least 45 other states; and in one state, Arkansas, such contour mudguards were 2. 95 U.S. 485 (1878). 3. 328 U.S. 373 (1946). 4. 372 U.S. 714 (1963). See also Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28 (1948) (upholding application of Michigan

anti-discrimination law to boat line that operated in international waters). 5. See § 16-15, infra. 6. 359 U.S. 520 (1959).

436

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

illegal.7 Contrasting Bibb with Huron Portland Cement Co. v. City of Detroit 8 casts the differing doctrinal import of actual and potential conflict in high relief. In Huron , the Supreme Court rejected a com¬ merce clause challenge to the enforcement of a municipal pollution ordinance against ships operating in interstate commerce; the chal¬ lenge failed because those questioning the validity of the law were unable to cite "any . . . competing or conflicting local regulations” to back up their claim that the ordinance unduly burdened multi-state businesses.9 In some cases, the Supreme Court has suggested that the aggregate cost of complying with multiple regulations, a burden uniquely placed on interstate businesses, must be taken into account in determining the validity of individual state regulations — even if the difference among the various states’ rules is not so dramatic as to render them contradic¬ tory, and indeed even if the rules are all identical. For example, in Southern Pacific Co. v. Arizona,10 Chief Justice Stone not only stressed the burden placed on multi-state railroad operators by the need to adjust to the differing train length limits imposed by different states, but also contended that the alternative available to the railroads — national compliance with the rule of the most restrictive state — was equally improper under the commerce clause because requiring such compliance would in effect extend the authority of that one state beyond its borders.11 § 6-13.

A Doctrinal Underview: Economic vs. Other Concerns, Local Needs, and Less Restrictive Alternatives

In addition to isolating, as has been done above, the factors which the Supreme Court takes into account when it balances the importance of a state regulatory interest against the adverse effect of the regula¬ tion on interstate commerce, it is possible to note a number of more general elements often present in decisions dealing with the constitu¬ tional validity of state regulations affecting interstate commerce: the 7. 'This is one of those cases — few in number — where local safety measures that are non-discriminatory place an unconsti¬ tutional burden on interstate commerce.” 359 U.S. at 529. But see Kassel v. Consoli¬ dated Freightways Corp., 450 U.S. 662 (1981); Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429 (1978), discussed in § 6-7, supra. 8. 362 U.S. 440 (1960). 9. Id. at 442-43. 10. 325 U.S. 761 (1945). 11. In Brown-Forman Distillers v. New York Liquor Authority, 106 S.Ct. 2080 (1986), the Court struck down a New York Law requiring liquor producers, when set¬ ting prices for in-state wholesalers, to af¬ firm that no lower price would be charged in other states during the same month. Since distillers had to have permission from New York before they could lower

their prices in other states below their New York prices, the law effectively gave the New York Liquor Authority power to control prices beyond the state’s borders. The twenty-first amendment aspects of the case are discussed in § 6-24, infra. In Edgar v. MITE Corp., 457 U.S. 624 (1982), the Court similarly invalidated an Illinois statute that imposed various re¬ quirements beyond those of federal law on tender offerors attempting to take over cor¬ porations that, although national or mul¬ tinational in nature, were either chartered in Illinois or had some capital in the state. The Court accepted Illinois’ interest in pro¬ tecting its citizens from the ravages of takeover battles, but, in denouncing the law’s extraterritorial effect, the majority held — strangely — that a "state has no legit¬ imate interest in protecting non-resident shareholders.” Id. at 2642. See § 6-35, infra. But see § 6-7, supra.

§ 6-13

LIMITS

ON STATE

AND

LOCAL

POWER

437

recurring distinction between economic and social regulation, the stress on local concerns, and the focus on the availability of less restrictive alternatives. Although the distinction between "police regulation’’ and "regula¬ tion of interstate commerce” has long since been rejected as too wooden to be of much help in the actual decision of particular cases, it survives as a generally accurate retrospective determinant of the relative weights imputed by the Supreme Court to the interests asserted to justify state regulations. State regulations seemingly aimed at further¬ ing public health or safety, or at restraining fraudulent or otherwise unfair trade practices, are less likely to be perceived as "undue burdens on interstate commerce” than are state regulations evidently seeking to maximize the profits of local businesses. Indeed, where the Supreme Court has held that the national interest in the free flow of commerce supercedes a state interest in public safety, it has generally seemed that the challenged statute contributed only marginally if at all to the public safety.1 In contrast, economically based state regulations have almost invariably been struck down.2 In applying this dichotomy, one would have to say that regulations seemingly focused on preserving local employment as such rather than on maintaining local profits have sometimes received treatment almost as favorable as regulations con¬ cerned with health or other non-financial aspects of well-being.3 In addition, decisions continue to be influenced by whether a particular regulatory subject matter can be classified as "local” or "national.” Even though this distinction is no longer regarded as usefully separating permitted state action from that which is forbidden, it is plain that those state regulations provoked by purely local aspects of interstate commerce are accorded a deference not granted to state actions stimulated by problems of more obviously national dimension. For example, in Milk Control Board v. Eisenberg Farm Products, 4 the Supreme Court upheld nondiscriminatory state regulations aimed at improving the economic status of depression-struck farmers (obvi¬ ously a national as well as state concern) but only after noting that just 10% of the milk regulated was destined for interstate commerce. However,

in Cities Service Gas Co. v. Peerless Oil and Gas Co.,5 the

1. See, e.g., Kassel § 6-13 v. Consolidated Freightways Corp., 450 U.S. 662 (1981); Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429 (1978); Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959), discussed in §§ 6-7, 6-12, supra. 2. See, e.g., Baldwin v. Seelig, 294 U.S. 511 (1935); Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928).

3. See, e.g., White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983) (upholding against com¬ merce clause challenge a city policy that 50% of workforce on municipally con¬ trolled construction projects must be city residents); Brotherhood of Locomotive

Firemen v. Chicago, R.I. & P.R. Co., 393 U.S. 129 (1968) (trains travelling more than a given distance in state must have a designated minimum crew). See § 6-7, su¬ pra. Cf. United Building & Construction v. Mayor of Camden, 465 U.S. 208, (1984) (holding city’s local-hire policy to be sub¬ ject to article IV privileges and immunities clause); Hicklin v. Orbeck, 437 U.S. 518 (1978) (unanimously invalidating under ar¬ ticle IV Alaska’s imposition on oil and gas industry of a sweeping local-hire law). 4. 306 U.S. 346 (1939), discussed in § 68, supra. 5. 340 U.S. 179 (1950), discussed in § 68, supra.

438

LIMITS

ON STATE

AND

Court approved an almost identical interest in the conservation of a local similar national concern at that time) that almost all of the natural gas there for out-of-state markets.

LOCAL

POWER

Ch. 6

regulation sparked by a state resource (a resource not yet of without hesitating over the fact regulated was ultimately bound

More explicit in their emphasis on the importance of the "local” quality of the state regulation at issue are those cases in which the Supreme Court has found a state safety interest so compelling that it has explicitly required only that the regulation be rationally related to the state’s interest. In these cases, it is clear that there is an implicit balancing of the state’s interest against the sometimes substantial burden on interstate commerce; but the balancing is conducted under the guise of "classifying” the state interest as "local” rather than being conducted more openly.6 In other cases, the Cooley legacy manifests itself in the determined search by the Supreme Court for some local incident to which it might attach a plainly not-very-burdensome state regulation of interstate commerce. For example, in Eli Lilly & Co. v. Sav-On-Drugs, Inc .,7 the Court emphasized the local business activities carried out by Eli Lilly in holding that New Jersey could properly require this multistate drug company to obtain a certificate prior to doing local business there, and that Eli Lilly — having failed to obtain such a certificate — could be barred from suing for breach of contract in New Jersey courts.8 Finally, the significance attached by the Supreme Court to a state’s or municipality’s interest in its challenged regulation has been affected not only by the weight the Court gives to the ends the state seeks to further but also, on occasion, by the necessity of the means which the state has used to achieve its ends. Thus, in Dean Milk Co. v. City of Madison ,9 the Supreme Court struck down local regulations restricting the importation of milk because the local health interests there assert¬ ed could have been adequately served if the city had dispatched its inspectors to the out-of-state pasterurization plants to make their quality checks, or if the city had relied on available federal inspection services for the needed protecting a major local State, Madison plainly This it cannot do, even

data: "in . . . erecting an economic barrier industry against competition from without the discriminates against interstate commerce. in the exercise of its unquestioned power to

protect the health and safety of its people, if reasonable nondiscriminatory alternatives , adequate to conserve legitimate local interests , are available.” 10 7. 366 U.S. 276 (1961). pr Bl 3. Ju no su me o st ac te pr n, lo by ath st vo icin k,in rai ¬ c t e if lel¬ an robnyg th altr e ere roked sa ss ad fe e ad d s fo fu it em t co loty ov ll io p ca r er nc na lo l t, e l, ym te re '’ rn th ap st r re en th last on e to uapt tw pl e tait ic ie ce g hioo t augla , to tohen an ra of ei:n d ln il dal te aiti esnh d ro rs n orn of iplo” st up ad ex tath a s cr Se al cal So il¬ f t e i at s ro ho so e ad ld rom e ts e’asfe , euplte u th i.oDe v. Ba Hi ty St Ca s n pt at ro r g nw ( . U. hw 17 3e0 Br li In el os na c., S. ay 7 1938 3 ., l ).

8. See also the discussion of this case in § 6-14, infra. 9. 340 U.S. 349 (1951), discussed in § 69, supra. 10. Id. at 354. Cf. Maine v. Taylor, 106 S.Ct. 2440 (1986) (finding inspection of pos¬ sibly contaminated baitfish shipments to be an inadequate substitute for outright ban on imports), discussed in § 6-6, supra. Compare

the use of "less restrictive alter-

439 § 6-14

LIMITS

ON

STATE

AND

LOCAL

§ 6-14. The Case for Doctrinal Disarray: of-State Corporations

POWER

State Treatment

of Out-

The Supreme Court’s approach to commerce clause issues, despite such structuring devices as the emphasis on less restrictive or discrimi¬ natory alternatives, often appears to turn more on ad hoc reactions to particular cases than on any consistent application of coherent princi¬ ples. That such disarray may at times be worth preserving is suggested by an examination of one particularly troublesome area — state treat¬ ment of out-of-state corporations. Chief Justice Taney’s 1839 opinion for the Supreme Court in Bank of Augusta v. Earle 1 established that a corporation organized in one state seeking to do business in another may be required by the latter to qualify under its laws as a "foreign corporation” before doing business there. Such qualification or licensing, required of domestic and foreign corporations alike,2 typically involves the payment of a fee and the filing of certain information, and triggers submission to the state’s taxing jurisdiction as well as to in-state service of process. Qualifica¬ tion requirements are sometimes enforced by denying access to state judicial and other facilities to corporations not "qualified” as required by state law.3 But (1) a license or qualification to do business in the state may not constitutionally be required of a corporation that seeks to enter a state solely to engage in exclusively interstate commerce there; 4 and (2) an independently "unconstitutional condition” — such as a waiver of the right to sue in federal court — may not be extracted even as a condition of permitting a foreign corporation to engage in intra¬ state business within the licensing state.5 In applying the first of these two exceptions to the Bank of Augusta doctrine, the Supreme Court has strained to uphold seemingly unburdensome regulatory or taxing schemes both by (a) permitting states to demand of exclusively interstate enterprises that they obtain and pay for a license to engage in the "local” activity of doing business "in corporate form” (as opposed to the "interstate” activity of doing businative” analysis in privileges and immuni¬ ties cases, § 6-35, infra, and in first amendment cases, § 12-23, infra.

1. 38 U.S. (13 Pet.) § 6-14519 (1839). 2. Cf. Southern Ry. Co. v. Greene, 216 U.S. 400 (1910) (Alabama law which im¬ posed on foreign corporations already ad¬ mitted to do business a tax beyond that levied on domestic corporations denied the foreign corporations equal protection of the laws).

(1 Cr v. Ke 14 U. 47 , S. 88 1 ut nt 56 8)5;7 (1 ch Se al ucIn Te Bo, Co 89v1. Peir e 21 soU. kyte,9r1 (1 Bu xt. g S 9 7 o St k Co )v.. Vgi, 22. Un.at 102)0 (1 cks 91 . S.io ;5 ck ov 6 2) naB eMr Da e C v ; . o i o l s . l nd hn ,l i 2 kU 2 ( v Fur nC S G5r7 e.-SW.Co 8226 19U2. 18g f. (1haf (i . arman t 92 er 1S). 9 n a al., s 8 5) of puval ers, of pe in r.e t k ’ gu s rc id whrva fo er inate at l h h r a s t as in ea i ti ipm er e g t ve st on en at t) e . ¬ i¬ . se rnCh 910) the ” s Bu v. (1 on toti v. 5 di 13 on nc s ce on do rr rn.S. tra Ba He U a, 18 al ;2 fr on 4) ); in ti 87 87 , (1 18 o. tu C ( ,ti -8s 5 . 1o0n 44 186Ry nc "u § P. .)S. e s. llU. & on se Wa si em ci . d de 0 21 .I (2 1 R mo , ne ri y , , S. de go e ct rl U. si ca Th do ea

3. See, e.g., Union Brokerage Co. v. Jen¬ sen, 322 U.S. 202 (1944); Le Paul v. Virginia, 75 U.S. (8 Wall.) 168, 181lo (1869); Comment, up v. ons — State "Foreign Corporati Mo Boundaries bi for National Business,” 59 Yale le L.J. 737, 12 Failure 742-46 (1950); Note, "Sanctions ,for 7 U ions to Comply With Corporate Qualificat .S .6 40 ,6 45

Statutes: An Evaluation,” 63 Colum.L.Rev. 117, 122-26 (1963).

440

LIMITS ON STATE AND

LOCAL

POWER

Ch. 6

ness at all),6 and also by (b) allowing states to demand licenses for the privilege of engaging in business in the state where the foreign corpora¬ tion maintains local facilities for separable intrastate transactions.7 But merely purchasing commodities locally and storing them in local warehouses for sorting, classification, or other processing pending ulti¬ mate delivery to out-of-state destinations has been held not to consti¬ tute the sort of "separable intrastate transaction” that would permit a state to insist on licensing the purchasing corporation to do business locally and denying use of its courts for failure to obtain a license,8 even if the locally stored commodities might be subject to state taxation while there,9 and even if at least some state regulations might constitu¬ tionally be enforced against those commodities.10 The plainly manipulable and at times anachronisticaliy metaphysi¬ cal character of these doctrines and the dubious consistency of their complex exceptions suggest that the Supreme Court has preserved them with an eye to their discretionary application in order to prevent what appear to be instances of intolerable local or state interference with interstate markets. It seems likely, for example, that the result in Allenberg Cotton 11 was strongly influenced by the fact that the state in

that case seemed to be interfering with the operation of the national futures market in cotton by preventing interstate purchasers who had

failed to qualify as "foreign corporations” under local law from effec¬ tively protecting themselves against unexpected price increases.12 There is much to be said, of course, for overthrowing formalities altogether and looking wholly to economic impact in this area just as 6. See Colonial Pipeline Co. v. Traigle, 421 U.S. 100 (1975). But see § 6-15, infra. 7. See Eli Lilly & Co. v. Sav-On-Drugs, Inc., 366 U.S. 276, 279-81 (1961) (drugs sold intrastate through local office with 18 sala¬ ried employees, as well as interstate), dis¬ cussed in § 6-13, supra. See also Union Brokerage Co. v. Jensen, 322 U.S. 202, 210 (1944). 8. See Allenberg Cotton Co., Inc. v. Pitt¬ man, 419 U.S. 20 (1974) (purchaser main¬ tained no office in the state, neither owned nor operated a warehouse there, and had no employees soliciting business there or otherwise operating there on a regular ba¬ sis; state attempted to prevent purchaser from suing in its courts for breach of a contract to grow and deliver cotton). See also Coons v. American Honda Motor Co., Inc., 94 N.J. 307, 309, 463 A.2d 921, 922 (1983) (New Jersey law that tolls statute of limitations for actions against out-of-state corporations until those corporations ap¬ point representative in state for service of process violates commerce clause), on re¬ hearing 96 N.J. 419, 476 A.2d 763 (1984), cert, denied 469 U.S. 1123 (1985). Cf. Has¬ kell v. Kansas Natural Gas Co., 224 U.S. 217 (1912) (state cannot deny foreign corpo¬ ration the right to lay pipe lines across highways for purposes of transporting nat¬ ural gas in interstate commerce).

9. See Kosydar v. National Cash Regis¬ ter Co., 417 U.S. 62 (1974), relied on by Justice Rehnquist to support his view that the cotton stored in Mississippi in the Al¬ lenberg case could indeed be taxed there, 419 U.S. at 40 n. 6 (dissenting opinion), cf. id. at 33-34 (majority opinion by Justice Douglas, leaving tax question open). Cf. Complete Auto Transit Inc. v. Brady, 430 U.S. 274 (1977), discussed in § 6-15, infra. 10. See Parker v. Brown, 317 U.S. 341, 361 (1943), discussed in § 6-8, supra, and § 6-24, infra. But see Shafer v. Farmers’ Grain Co., 268 U.S. 189 (1925), in note 4, supra. 11. See note 8, supra. 12. See 419 U.S. at 25-26. In dissent, Justice Rehnquist acknowledged this dras¬ tic result but insisted that ''the burden imposed on interstate commerce by such [qualification] statutes is to be judged with reference to the measures required to com¬ ply with such legislation, and not to the sanctions imposed for violation of it.” 419 U.S. at 42 (dissenting opinion). Perhaps the majority’s unspoken concern was with the administrative burden of qualifying in numerous states. Cf. National Bellas Hess v. Department of Revenue, 386 U.S. 753 (1967), discussed in § 6-18, infra.

LIMITS

§ 6-15

ON STATE

AND

LOCAL

the Court has begun to do with respect to that solution it seems unlikely that the would be greatly advanced by attempting governing these cases. Indeed, if it is true

POWER

441

state taxation,13 but short of cause of economic realism to bring order to the rules that the occasions peculiarly

warranting a judicial rather than congressional "negative against state legislation” under the commerce clause demand "an appraisal more carefully particularized than legislation could afford,” 14 then the chief virtue of the "hit-and-miss method of deciding single . . . controver¬ sies” 15 in this field, as compared with the legislative creation of integrated national rules, may be precisely its sensitivity to factual nuance, a sensitivity far more compatible with doctrinal disarray than proponents of functional coherence and consistent principle might always wish to concede. § 6-15.

State Taxation of Interstate Commerce: Constitutional Analysis

Structuring

the

Like its authority to limit state regulation of interstate commerce, the Supreme Court’s power to review state taxation of interstate commerce springs from the negative implications of the commerce clause. The Court’s state taxation doctrines are thus always subject to congressional revision. In addition, to a greater degree than in the regulation cases, judicial willingness to consider the impact of state taxes upon interstate commerce has been controlled by the burden of proof: "The general rule ... is that a taxpayer claiming immunity from a tax has the burden of establishing his exemption.” 1 Although decisions concerning the constitutional validity of state taxes affecting interstate commerce can be assessed in terms of an interest-balancing process similar to that employed in the judicial evaluation of state regulation, the Supreme Court has not usually organized its analysis in terms of such balancing. This is partly a consequence of the fact that the state’s ultimate interest is the same in all tax cases — namely, raising revenue. The Court’s distinctive ap¬ proach in state tax cases also results from an overlap between the tests used to determine the significance of the state’s link with the taxpayer and those employed to measure the extent to which the tax burdens interstate commerce. Judicial inspection of state taxation therefore focuses almost exclusively upon the adverse consequences of a tax for interstate commerce. In analyzing such adverse consequences, courts have begun to abandon their previous formalistic approach in favor of a more realistic functional calculus. In Complete Auto Transit Inc. v. Brady,2 the Supreme Court overruled a series of cases which had held that any state tax on "the privilege of doing business” imposed on a multi-state 13. See § 6-15, infra. 14. Brown

222.

in § 6-1, supra, note 1, at

15. McCarroll v. Dixie Greyhound Lines, Inc. 309 U.S. 176, 188-89 (1940) (Black, J., joined by Frankfurter and Doug¬ las, JJ., dissenting).

1. Norton Co. v. Department of Reve¬ nue of Illinois, 340 U.S. 534, 537 (1951) § 6-15 (emphasis added) ("showing a fair differ¬ ence of opinion” is not sufficient to meet the burden required of the taxpayer). 2. 430 U.S. 274 (1977).

442

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

business was per se unconstitutional. Rather than focusing on the language or labelling of a statute, the Court proclaimed, commerce clause analysis should concentrate on the real effects of a tax upon interstate commerce.3 Thus, a state tax does not offend the commerce clause if it (1) is applied to an activity with a substantial nexus with the taxing state, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to services provided by the state. The Court’s efforts to adhere to this more realistic commerce clause jurisprudence have been both welcome and, by and large, successful.4 Yet on occasion the new realism seems to have been tempered by an extra dose of judicial sympathy for state taxing power. In Common¬ wealth Edison Company v. Montana ,5 the Court permitted Montana, which has more than half of the nation’s low-sulfur coal reserves,6 to exploit its strategic position by imposing a 30% severance tax on coal. There was no doubt that the Montana

tax satisfied the first two

prongs of the Complete Auto Transit test: the only possible nexus of the physical severance of the coal was in Montana, and there were no apportionment or multiple taxation problems, since the severance could occur and be taxed only in that state.7 The out-of-state utility compa¬ nies challenging the tax argued that it discriminated against interstate commerce because 90% of Montana coal is shipped to other states, whose citizens consequently bear the bulk of the severance tax burden.8 Yet the tax was computed at the same 30% rate regardless of the coal’s ultimate destination, and it would be ironic indeed to invalidate the tax demned

340 U.S 602 (19 hol tha suc a tax 51) . t h din , cou not be imp wags exp ove r¬ res ose rul ld sly ed. d, The formal doctrine which the Court overruled had been defended on the ground that it prevented imposition of a tax "on the privilege of engaging in interstate com¬ merce.” See, e.g., Nelson v. Kentucky, 279 U.S. 245 (1929). The rule usually meant, however, that the language of a tax statute rather than its effect was determinative; by changing an improper label, a state could often avoid invalidation. Compare Railway Express Agency, Inc. v. Virginia (I), 347 U.S. 359 (1954) (invalidating appli¬ cation of tax levied for "the privilege of doing business in this state” with Railway Express Agency, Inc. v. Virginia (II), 358 U.S. 434 (1959) (upholding tax with same economic effect where denominated as

"franchise tax”). Especially after Com¬ plete Auto Transit, it would be possible and in many respects illuminating to com¬ bine consideration of state taxation and state regulation by focusing entirely on the way in which a particular state or local vic action is thought likely to disrupt an open ev .O national market. Thus, restrictions of ac¬ ’C on cess to local consumers, for example, would no r,provide a unifying theme for discussing both regulatory barriers like those con¬

in Baldwin

v. Seelig, 294 U.S. 511

(1935), see § 6-6, supra, and tax barriers like those struck down in Robbins v. Shel¬ by County Taxing District, 120 U.S. 489 (1887), see § 6-17, infra. But the Supreme Court’s historically more formalistic ap¬ proach to tax problems has led to the evolution of a distinct body of doctrines and principles that still merit examination in their own terms. Thus, although over¬ arching themes of the sort noted above will be indicated at the appropriate points, this chapter treats taxation issues separately from issues of regulatory power. 4. See, e.g., Mobil Oil Corp. v. Commis¬ sioner of Taxes, 445 U.S. 425, 443 (1980); Moorman Mfg. Co. v. Bair, 437 U.S. 267, 276-81 (1978); Washington Revenue Dept, v. Association of Wash. Stevedoring Cos., 435 U.S. 734 (1978). 5. 453 U.S. 609 (1981). 6. Id. at 638 (Blackmun,

J., dissenting).

7. 453 U.S. at 617. 8. The plaintiffs also argued that the tax was preempted by federal energy policy because it discouraged the use of low-sulfur coal, but the Court found that Congress had intended to permit the use of such severance taxes. 453 U.S. at 635-36.

LIMITS ON STATE

§ 6-15

AND

LOCAL

POWER

443

solely because most of the coal on which it was levied was transported across the very state borders which are ordinarily considered "essential¬ ly irrelevant” to commerce clause analysis.9 Unlike Louisiana’s firstuse tax on natural gas piped through the state from the federallycontrolled outer continental shelf ("OCS”), which "unquestionably dis¬ criminate^] against interstate commerce in favor of local interests as the necessary result of [an intricate scheme of] tax credits and [exemp¬ tions],” 10 Montana’s severance tax fell at an equal rate on native son and non-resident alike. The Court read the fourth and final prong of the Transit test, the requirement that the tax be fairly beneficial services provided by the state, as requiring measure of the tax be reasonably related to the extent

Complete Auto related to the only that the of contact with

the taxing state.11 Thus the fair relation test became little more than a gloss on the nexus requirement. Since coal companies had to enter Montana in order to excavate Montana coal from Montana soil, it cannot be doubted that both the subject of the tax and those who pay it had significant contacts with the state that levied it. The requirements of nexus and fair apportionment for state taxes on interstate commerce are rooted in the need to check the parochial pressures to which state governments, because of their limited political

.

constituencies, are subject.12 If the Court’s supposed new realism is taken to heart, Montana’s tax arguably presents just such a case of taxation without representation: 90% of the tax, after all, falls on citizens of other states, thereby enabling Montana to export most of the burden of its state budget.13 Yet because no argument could be made that Montana could not impose any severance tax on coal mined within its territory — since interstate commerce must bear its share of the state tax burden — the plaintiffs were reduced to asking the Supreme Court to declare the rate of the tax excessive. The Court saw no need for a factual inquiry into the relationship between the revenues generated by the tax and the value of the benefits and services conferred on the coal companies — as measured by the costs incurred by Montana on account of the taxed activity — because the severance tax was not a user fee but a general revenue tax. The rate of such taxation, the Court declared, is essentially a legisla¬ tive, not a judicial matter.14 9. Id. at 618-19. See West v. Kansas Natural Gas Co., 221 U.S. 229, 255 (1911) ("in matters of foreign and interstate com¬ merce, there are no state lines"); McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330 (1944) ("very purpose of the commerce clause was to create an area of free trade among

the several states”).

10. Maryland

v. Louisiana, 451 U.S.

725, 756 (1981).

11. 453 U.S. at 626. 12. See § 6-16, infra. 13. The Court’s nonchalant acceptance imposition of its fiscal needs

27.

26a.t6 U.S 453

of Montana’s

on out-of-staters is at odds with the aver¬ sion, expressed in Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 685 (1981), to state efforts to alleviate burdens on their citizens by transfering them outof-state. But it is consistent with the Court’s dictum in Edgar v. MITE Corp., 457 U.S. 624 (1982), that, far from having an obligation to consider the impact on those in other states, a state can have "no legitimate interest in protecting non-resi¬ dents.” See § 6-12, supra.

444

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

The Court’s refusal to look beneath the surface of Montana’s severance tax simply because the legislature had denominated it a general revenue measure rather than a use tax seems more consistent with the rubric-ridden formalism of the past than with the new realism supposedly ushered in by Complete Auto Transit. The first-use tax on federal OCS natural gas, struck down the very same year in Maryland v. Louisiana ,15 seems to have succumbed

because it was not a general

revenue tax but a measure analogous to Louisiana’s severance tax on local gas production. The Court there conceded that Louisiana "has an interest in protecting its natural resources” and could therefore impose a severance tax on the privilege of taking gas from its land, but struck down the parallel first-use tax because "Louisiana has no sovereign interest in being compensated for the severance of resources from the federally owned OCS land.” 16 Yet most of the severance tax collected by Montana was levied on coal taken from fields likewise owned by the federal government.17

So long as state lawmakers

have the foresight to

affix the label "general revenue” to their tax measures, it seems that it is not for a federal court to tell them how much their natural resources are worth, whether the tax be 30% or 1000%. 18 Commonwealth Edison gives fresh insight into what Chief Justice Marshall meant in McCulloch v. Maryland when he wrote that "the power to tax is the power to destroy.” 19 The Chief Justice reasoned that since it would be so hard for the courts, having once given a green light to taxation, to begin turning it amber and then red when tax rates became excessive, the only way to protect the federal government from potentially destructive state taxation, short of requiring Congress to consider each case, was to promulgate a rule against any state tax on a federal instrumentality without prior congressional consent.20 We may safely allow the states to take a nibble only if we are ultimately willing to let them gobble up the whole thing. In the state vs. state context where no per se rule prohibits taxes on interstate commerce, the Supreme Court has now essentially accepted the converse of that insight: if a tax is of the kind the states may impose, there is no occasion for federal judges to worry about how steep the tax rate is— even if the tax enables a state to use its propitious natural resource position to exploit the citizens and businesses of sister states. The Court thus seems content to leave questions of actual tax rates to the state legislatures — and to Congress, since Congress retains ulti¬ mate power to rein in excesses by self-aggrandizing states.21 Until Congress chooses to do so, however, the citizens of the Union have no right to inexpensive access to Montana’s 15. 451 U.S. 725 (1981).

21. Indeed, Justice White was troubled by the Montana tax but concurred in the

16. Id. at 725 (emphasis added). 17. Commonwealth Edison, 453 U.S. at 637 (White, J., concurring). 18. See 453 U.S. at 645 (Blackmun, dissenting).

J.,

19. 17 U.S. (4 Wheat.) 316, 431 (1819). 20. See § 6-30, infra.

mineral wealth.22 The Consti-

Court’s decision on the ground that Con¬ gress had so far seen fit to let the matter rest. 453 U.S. at 637-38. 22. See Commonwealth Edison, 453 U.S. at 619.

§ 6-16

LIMITS

ON STATE

AND

LOCAL

POWER

445

tution may demand that the fifty states sink or swim together, but it does not deny Montana the right to sell life-jackets at a premium. It thus appears that the Court’s historically formalistic approach to state taxes on interstate commerce is likely to continue to make itself felt. Indeed, the "new realism” may often appear to be a one-way ratchet that the Court employs only when formalism would erode state taxing power. The following sections will therefore address the inter¬ section of the commerce clause with state taxing power in the elaborate doctrinal framework that the Court has constructed. § 6-16.

No Taxation Without quirements of Nexus

Representation: The Basic and Fair Apportionment

Re¬

A state’s generalized need for revenue, while a rationale for taxing, is not by itself an argument for the imposition of any particular tax.1 This revenue interest must therefore be further specified in order to link taxation with the specific activity taxed. Of course, a tax might be explained in terms of its regulatory impact, as license taxes sometimes are. Taxes thus justified raise the same issues as do state regulations and are therefore judged by the standards articulated above.2 The more common argument, however, is that the tax is a bill presented to interstate commerce for services rendered by the taxing state. The Supreme Court has recognized that the states have a legitimate interest in compensatory taxation of interstate commerce: "It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business. 'Even interstate business must pay its way. ”’ 3 It does not follow from the "compensatory taxation” argument, however, that taxes collected from interstate commerce are valid only to the extent that the resulting revenues are ultimately used in a way that can be related to local activities of the multistate enterprise taxed.4 local government 1. See Freeman §v.G-Hewitt, 329 U.S. 249, 16 253 (1946) ("revenue serves as well no mat¬ ter what its source”). Compare the discus¬ sion of poll taxes and court access fees in Chapter 16, infra. 2. See §§ 6-5 to 6-12, supra. The Court has at times employed the label "regulatory” in a conclusory way to ex¬ plain its invalidation of a state tax rather than simply to initiate analysis. Taxes have at times been branded regulatory or compensatory depending upon how directly they bore upon interstate commerce. See, e.g., Galveston, H. & S.A.R. Co. v. Texas, 210 U.S. 217 (1908).

3. Western Live Stock v. Bureau of Rev¬ enue, 303 U.S. 250, 254 (1938) (emphasis added). See also Freeman v. Hewit, 329 U.S. 249, 253 (1946) ("State taxation falling . . . can only be on interstate commerce Se e, . make such com¬ justified as designed eto merce bear a fair shareg.,Aof the cost of the er oM ay fl ow erT ra ns i

whose protection it en¬

joys”); Hendrick v. Maryland, 235 U.S. 610 (1915); Evansville- Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707 (1972); Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 108, 114 (1975).

33 Co of Ra v. Bo 2 il ar mm ro (1 on fe ta (f is 50 49d U. a ix si e re xes tehd o roS. us5, he 2-0 va d947e)v e ld 6 li a e ve n ta th fr d d ar n no oug esrp nu h s e es t e f xe s es t , c r ea om i o or s ta er elf rm i t v a c ivc. Po 27teal U. Se al eCl ro a us so es or e 4 d ly S. ad rk e) ar v. ,Bi Mo k (1 55 e5d5 . 9 4 ng 7 r 2a9m U. of Re 27) fo Ne f Me Co , in8 anAe S. (1 v. ; r Th w ho xic 40 mm’ 41 , ro 7 9 ld o, do us ta hei th 36 fl Ma , r. 2 i ng e at ). at xe yf gh wa s ex co th no l vi wa cla ¬ t ow ol e s m y u m ine Am pr eratov se Tr e rc er 1 u In err v. Sc Asess e ic07 S.C cki282 c. ul he sn ly ains st t.va ng 9in bu th ed ea in ca (1 . ill 98 li rl e e se t 7) r i e cld th r t,h co "i , re at aufl e m a t s ncoog re dots ta me o vo he seat t ni qu es t i rc es d ti ir e on e

446

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

To assess the significance of a state’s compensatory interest in the application of its tax to a particular taxpayer, one must determine the degree to which the taxpayer’s activities in interstate commerce benefit from state government services. And, as a rough but constitutionally adequate measure of benefits conferred, one must look to the ways in which the taxed activities can be "'connected” with the taxing state. The degree of "connection,” "contact,” or "nexus” between the taxing state and the interstate commerce taxed is also the fundamental measure of whether or not a state tax violates the commerce and due process clauses. Therefore, to the extent that a state can point to a substantial connection with a particular aspect of interstate commerce, it can also demonstrate that its program merce and due process clauses.

is consistent with the com¬

The Supreme Court has held that the commerce clause prevents a state from taxing aspects of interstate commerce plainly unconnected with activities taking place within the taxing state, rooting this restric¬ tion in the need to check the perverse pressures to which state govern¬ ments, because of their narrow accountability, would otherwise be subject: "Lying back of these decisions is the recognized danger that, to the extent that the burden falls on economic interests without the state, it is not likely to be alleviated by those political restraints which are normally exerted on legislation where it affects adversely interests within the state.” 5 The commerce clause "requires "some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax’,” 6 in free flow of trade requirement often tively burdensome

part as a prophylactic device designed to protect "the between the States.” 7 Because failure to meet the manifests itself in visibly discriminatory or cumula¬ taxation, it is not always necessary for the Supreme

Court explicitly to reach the "minimum contacts” question even though it is this jurisdictional requirement which lies at the heart of most commerce clause tax litigation.

The "minimum contacts” rule can be aptly illustrated by judicial treatment of sales and use taxes. A state sales tax is most often measured by a percentage of the gross receipts collected from sales made within the taxing state. The fact that a product has travelled or will travel in interstate commerce does not preclude a tax being levied at the time of its sale.8 A state use tax is usually measured taxes when they are the only practicable means of collecting revenue from users and the use of a more finely gradated user fee schedule would pose genuine administra¬ tive burdens.” Id. at 2847. 5. McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 45-46 n. 2 (1940). See also Robbins v. Shelby Taxing District, 120 U.S. 489, 499 (1887), discussed in § 617, infra. Compare § 6-5, supra. 6. National Bellas Hess, Inc. v. Depart¬ ment of Revenue of the State of Illinois, 386 U.S. 753, 756 (1967), quoting Miller Bros. Co. v. Maryland, 347 U.S. 340, 44-45

(1954). See also American 380 U.S. 451, 458 (1965). 7. Freeman (1946).

by a

Oil Co. v. Neill,

v. Hewitt, 329 U.S. 249, 252

8. See Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869) (Alabama may impose nondiscriminatory tax on sales in the origi¬ nal package of merchandise brought into the state from another state). But see Robbins v. Shelby County Taxing District, 120 U.S. 489, 497 (1887) (dictum). To pro¬ scribe such taxation would severely disad¬ vantage local merchants. See Lockhart, 'The Sales Tax in Interstate Commerce,”

§ 6-16

LIMITS

ON STATE

AND

LOCAL

POWER

447

percentage of the gross receipts from sales made outside of the taxing state, but is imposed on the consumption or use of the purchased goods within the taxing state.9 A use tax is not repugnant to the Constitution merely because it is imposed on goods imported from other states.10 Use taxes are often levied in tandem with sales taxes in order to prevent buyers from abandoning the purchase of locally available goods which have been made more expensive than similar out-of-state goods by the institution of a local sales tax.11 So long as the taxes are otherwise nondiscriminatory, therefore, the constitutionality of sales and use taxes depends on the outcome of a jurisdictional analysis.12 Commerce clause questions have been raised in two kinds of cases: (a) where the burden of collecting and subse¬ quently remitting a state sales tax falls on local sellers who have made sales to out-of-state customers; and (b) where the burden of collecting and subsequently remitting state sales or use taxes falls on out-of-state sellers who have made sales to local customers. A state may

require a local seller to collect and remit a tax on

receipts from sales made to out-of-state customers only if the sale itself can be sufficiently connected with the taxing state. Delivery within the taxing state can establish such a nexus. For example, in International Harvester Co. v. Department of Treasury , the Supreme Court indicated that an Indiana manufacturer could be required to pay an Indiana tax on sales of Indiana goods to an out-of-state buyer who came to Indiana, took delivery there, and subsequently transported the goods to another state: "The consummation of the transaction was an event within the borders of Indiana which gave it authority to levy the tax on gross receipts from the sales.” 13 52 Harv.L.Rev. 617, 624 (1939). See East¬ ern Air Transport, Inc. v. South Carolina Commission, 285 U.S. 147 (1932) (sales tax valid as applied to the sale of gasoline to an interstate air line).

9. Sales and use taxes are ultimately paid by buyers whenever sellers are able to pass on the burden of such taxes by charg¬ ing higher prices. But sellers may none¬ theless find themselves unable to escape the obligation to serve as tax collectors, an obligation the taxing state typically seeks to impose with respect to sales and use taxes alike inasmuch as direct collection by the state from a widely dispersed group of buyers and/or users would constitute an administrative nightmare.

10. See Henneford v. Silas Mason Co., 300 U.S. 577 (1937), discussed in § 6-17, infra. The Court reasoned that a use tax was much like a property tax which, ac¬ cording to well settled commerce clause doctrine, could be applied to any property that had come to rest within the state. Id. at 582. See also Felt & T. Mfg. Co. v. Gallagher, 306 U.S. 62 (1939); Monamotor Oil Co. v. Johnson, 292 U.S. 86 (1934). Nor is a use tax unconstitutional as applied to particular property merely because sales

or use taxes were paid on that property in other jurisdictions. See Southern Pacific Co. v. Gallagher, 306 U.S. 167 (1939). See generally Powell, "Sales and Use Taxes: Collection from Absentee Vendors,” 57 Harv.L.Rev. 1086 (1944). 11. The relationship between sales and use taxes is also discussed from the per¬ spective of limits on state discrimination in § 6-17, infra. 12. See J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 311 (1938) (Indiana may not require a local corporation to pay a tax on gross receipts from the interstate sale of goods manufactured in Indiana but deliv¬ ered out-of-state, because no attempt was made to link the tax with any local inci¬ dent of the multistate activity taxed). 13. 322 U.S. 340, 348 (1944). See also State Tax Comm, of Utah v. Pacific States Cast Iron Pipe Co., 372 U.S. 605 (1963) (per curiam). The tax involved in International Harvester was a gross receipts tax levied directly upon the in-state seller, not a sales or use tax levied upon the out-of-state buy¬ er which the seller was simply obligated to collect. In the present context, this dis¬ tinction may be more semantic than real;

448

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

Where delivery is effected outside the taxing state, a sufficient nexus is less likely to be found. In American Oil Co. v. Neill , for example, Idaho was not permitted to tax a sale made by a multi-state petroleum dealer licensed to do business in Idaho because the sale in question had been negotiated in Washington and the oil had been delivered by the seller to the buyer’s receiving plant in Utah prior to the buyer’s eventual transportation of the oil into Idaho. The Court argued: "There is no reason to suppose . . . that Utah Oil’s activities in Idaho contributed in any way to the procurement or performance of the contract.” Similarly, remit a tax on sale itself can again, delivery

14 a state may require an out-of-state seller to collect and receipts from sales made to local customers only if the be sufficiently connected with the taxing state. Once within the taxing state can help justify the imposition of

a tax. Thus, in McGoldrick v. Berwind-White Coal Mining Co.,15 the Supreme Court held constitutional the collection of a New York City sales tax from a Pennsylvania coal dealer who maintained a sales office in New York City, who had there negotiated a contract for the sale of coal to a New York City customer, and who had then delivered the coal from Pennsylvania to the customer in New York City. The Court found a sufficient local connection in the " transf er of possession to the purchaser within the state, which is the taxable event regardless of the time and place of passing title.” 16 Berwind-White was given a narrow reading by the Supreme Court in McLeod u. J. E. Dilworth Co.17 There, Arkansas was held unable to tax sales made by Tennessee corporations soliciting business in Arkan¬ sas through the use of traveling salesmen, direct mail advertising, and telephone inquiries, because (a) orders were not accepted until approved by the Tennessee headquarters, and (b) the goods were shipped from Tennessee to Arkansas customers by common carrier, with title passing to the customers upon delivery of the goods to the carrier in Tennessee and before arrival in Arkansas.

In distinguishing Berwind-White,

Justice Frankfurter’s opinion for the Court emphasized all of the New York activities of the Pennsylvania coal dealer taxed by New York in the latter case, while noting that all the critical elements of the sales Arkansas sought to tax in Dilworth took place in Tennessee. In particular, the two cases were found to differ with regard to the point at which the seller ceased to take responsibility for the goods sold: "In Berwind-White the Pennsylvania seller completed his sales in New the Court recognized the economic equiva¬ lence of the two taxes posited and observed that a mere difference in label should not warrant a difference in the applicable legal standard. 322 U.S. at 346. See also Lock¬ hart, "Gross Receipt Taxes on Interstate Transportation and Communication.” 57 Harv.L.Rev. 40, 87 (1944); Powell, "New Light on Gross Receipts Taxes,” 53 Harv.L. Rev. 909, 911 (1940). 14 380 U S. 451, 458-59 (1965). This case was decided under the due process clause, but the standards are equivalent.

15. 309 U.S. 33 (1940).

16. Id. at 49 (emphasis added). See also McGoldrick v. Felt & Tarrant Mfg. Co., 309 U.S. 70, 77 (1940). The Berwind-White Court saw no grounds for distinguishing the sales tax from the property tax which, it was well established, could be applied to goods when their interstate journey termi¬ nated. 309 U.S. at 52, 55. 17. 322 U.S. 327 (1944).

.

449 § 6-16

LIMITS

ON STATE

York; in this case the Tennessee

AND

LOCAL

POWER

seller was through selling in Tennes-

see. 19 In the sales tax cases, commerce clause jurisdictional analysis has thus required that a taxing state show sufficient contacts with an outof-state seller or buyer to justify a conclusion that significant aspects of the taxed sale occurred within its boundaries; and the standards applied have been framed so as to limit to a single state the jurisdic¬ tions capable of making such a showing. In the use tax cases, the emphasis is again on the local activities of an out-of-state seller, not because a sale must be shown to be local, but because the out-of-state seller must be shown to have established sufficient sale-connected contacts with the taxing state to make it reasonable for the taxing state to require the out-of-state seller to collect its use tax.19 In more recent use tax cases, the existence of some

relationship

between the out-of-state sale and the seller’s local activities has been apparent. The critical question has instead been whether the local contacts were sufficiently "substantial” to warrant the imposition of a collection duty. Central to this inquiry has been the distinction, thought significant by the Supreme Court, between local, face-to-face solicitation of sales by salesmen, and local solicitation of sales by direct mail, telephone, or other interstate advertising media. An out-of-state seller has sufficient contact with a taxing state to justify the imposition of a use tax collection duty if the seller employs salesmen (or uses independent contractors) in order systematically to exploit the local market — even if sales are not final unless approved at an out-of-state office, deliveries are made to out-of-state warehouses, and payment is made directly to the out-of-state headquarters.20 How¬ ever, a systematic program of direct mail advertising is not sufficient to 18. Id. at 330.

The

Court concluded:

'Tor Arkansas to impose a tax on such transactions would be to project its powers beyond its boundaries and to tax an inter¬ state transaction.” Id. It should be noted that while transfer of possession had been declared more significant than the passage of title in Berwind- White, Dilworth equat¬ ed the two events, perhaps because they occurred at the same time and place and because other contacts with the taxing state were lacking. The effect of the

Department 534 (1951).

of Revenue

of Illinois, 340 U.S.

20 (1 (F ma r Ge 9S6 lo a y c equi ba 7 t a usorg ta 0 r o o c g iden ll re e i x r)i se fr d its Flpt cauts beect Sc aoro ri om ca st id pt us om a e em on a co er ba ”o1 0 si pl mm s s, co wh oy jo or 's i s n duol e c lo s sa bb ¬in ca io olleis er ctes d, ont c l s a m i n ie e Fl n le Tihnu Sc, Co ur tant’xipr e ou ri deori g rs,co i ns t pt oness the s ns em da i o g t fa edth”). th it"us we nifno em ly c t a e re taiIl a 2 Court’s equation is to render unclear the ees t of Stc Se ailcan Gpeloy e d t o 1 . s so t ne ¬ o n ri C 1T. relative import of the two events when al Tr Ceo pt o. v. Samtlealn r¬ f a x a m ” y o t they do not coincide; probably, the key th Stding of . Io 32e U. 33 mis(1 (al e S. at wa 5 si94 2 event should be the passage of economic l a c du to be im o4) by¬ e o , o S l n w t p ee le risk from seller to buyer. in y o Sc Io g wh "c[tio pr on wh sed th ri us wa ta erwa ltah n wa op se to Io ic as ea 19. See, e.g., Nelson v. Sears,ptoRoebuck ied] x es e s er nt wa h ,In t y r o o s b t sal c. re¬ & Co., 312 U.S. 359 (1941) (Iowa may f rd ol es y ra v es¬ i u e m s i I f t v M . c l ntrs ow it ro he el in en t en quire Sears to collect the Iowa use tax from Ca o ir in ne t a m e r d its Iowa mail order customers becauseso h In Ge Tr g sot th n, e e aod b n a 36c d ma noer pl f in us a 2oUm qu Sears operates retail stores in Iowa: al¬ a i a nwt or .pSp.ar art th tla ce st g, ine th iati though those stores are not directly in¬ s e noyp e at e x hnie e;wi s pe by saing er rsso volved with the interstate mail order busi¬ n d ” l t rs le ty ) ic th onbo ta st sm wa s hhein . oift th ness, it is not unreasonable to assume that a ld e alrd e x a er to su tio su tihng ta teen Si there is some connection, however indirect, ff mi s e pp n x. loau or between the mail order transactions and co ici ma re sa rtl t l t in mp en a e ye ilr s t t a w t s h b t o ,ctoslit ni he tat ai av eq ee Sears’ local presence). Cf. Norton Co. v. n hi es ui n e ine n re g d

450

LIMITS

ON STATE

AND

LOCAL

justify a use tax collection requirement

Ch. 6

POWER

if that is the only contact

between the out-of-state seller and the taxing state.21 Similarly, spo¬ radic direct mail advertising, occasional local deliveries, and systematic advertising on out-of-state radio stations and in out-of-state newspapers known to reach local residents, have been held insufficient to justify imposition of a use tax collection requirement.22 The distinction between employment of local salesmen and other, less physical, forms of local soliciting has not invariably been deemed crucial by the Court in other circumstances.23 Underlying the resort to this distinction in the tax-collection context has been a manifest con¬ cern with the administrative burden that a use tax collection require¬ ment imposes on some out-of-state sellers. In National Bellas Hess u. Department of Revenue of the State of Illinois j24 the Court recognized the administrative difficulties that mail order houses would face in keeping track of the different use tax requirements

of the different

states in which they did business.25 And in Miller Brothers v. Mary¬ land 26 the Court was plainly concerned with the difficulty that the department store involved in that case would face if it tried to identify those of its customers who were from Maryland. Whether or not the employment of local salesmen facilitates such record-keeping, it is clear that the administrative burden of use tax collection in particular cases can be substantial enough to require more than minimal contacts between

the out-of-state seller and the taxing state.

lect use taxes. See, e.g., Nelson v. Mont¬ gomery Ward & Co., 312 U.S. 373 (1941); Nelson v. Sears, Roebuck & Co., 312 U.S. 359 (1941); National Geographic Society v. Calif. Bd. of Equalization, 430 U.S. 551 (1977) (irrelevant that taxpayer’s in-state advertising offices have no relation to tax¬ payer’s in-state mail order sales). of Ill of th St of Re pa at e i¬ rt ve e bus or (ma noi me 38 U.S 75 nu (19 d n 6 3 e ness, int wh . (1) ord 67) we ilsol er by i¬a r i ici s ers e c ted wh ad ofh di pr r v ec t e to oivceh y a se ogra ca r t- wi teia nt m ta r m s ai ce irn lpo m s a 5, l g g a e n u pp n an il(¬2) lad in000, to an opueleves, leum gs 00 r e d m ge n 0 rby ma ebnetr,or by co ma we del mf¬ il oar re J de S mo ive car or ust bsy te n rie ri e w i r a c thee Co rt has ne ved he the Co s er).”. l v ur t u . r im m.a a tS:t th t he du er of usde at at t p y e up y a sel pa ose an tax col o d y ler lec mew in cu n onti co wh i n lyon nn st tth os e om or th ca is by ctco th e St er e rr at e io mm sSe i e n Ion t i ma St Un e n h r e ars nde at it il , dif sehd, cases the C.o Ro ed u a e f e r r a sit at bu su t fro polne whe ere the ed ck ch y uat m re nti o¬ut po out reito loc ha sel in d anil ler al let t s, . . . ianrg no co ot 'th th ti a h n o t e c for wh e re se ben r fro er Iow t ce i ef m ns a ch iv i tsto e ” Id. at a pr tihng po h Bel Iet sh wer be noxact tha icNea. 7a5s te ou t’ i 8. ¬ t d l o the sa naam doe d not re las He q ss m s ui e l oun hta for a use rteax as the Co of "n s ur ex us fo sa ap¬ ag t sal ta re ” r l xe qu en es es s; ir ts ed

pear to constitute sufficient nexus for use taxes, though not for sales taxes. The rea¬ sons for the difference remain unex¬ plained. 22. See Miller Bros. Co. v. Maryland, 347 U.S. 340 (1954), holding that there was too weak a nexus between the taxing state and the seller despite the fact that the company regularly dispatched its trucks to the taxing state to deliver orders. The Court emphasized that this was the only physical link between the seller and the taxing state. Id. at 345. 23. See, e.g., Breard v. Alexandria, 341 U.S. 622 (1951) (upholding a local ordi¬ nance banning door-to-door selling without the prior consent of potential customers in part because other "usual methods of solic¬ itation — radio, periodicals, mail, local agen¬ cies — are open”). 24. 386 U.S. 753 (1967), discussed in note 21, supra. 25. Justice Fortas, dissenting, thought the majority had seriously underestimated the potentialities of modern computers as record-keeping devices for this purpose. 386 U.S. at 766. 26. 347 U.S. 340, 343 (1954), discussed in note 22, supra. See generally Dane, "A Solution to the Problem of State Taxation of Interstate Commerce.” 507, 524 (1967).

12 Vill.L.Rev.

§ 6-16

LIMITS

ON STATE

AND

The sales and use tax cases make

LOCAL

POWER

451

clear that the inversely related

requirements that interstate commerce "pay its way” and that states not seek to extend their tax powers beyond their respective borders can be summarized in the principle that a state may require multi-state businesses to pay only those taxes which can be rationally related to local activities substantial enough to warrant compensation to the state. The manner in which the elements of this principle determine the extent of constitutionally permitted taxation is especially apparent in those decisions which focus on tax apportionment as a means of localizing the tax burden, and on the fourteenth amendment due process clause as a supplementary source of standards for ascertaining the degree of local connection which must be demonstrated to justify taxation. In particular, a tax on an aspect of commerce otherwise wholly interstate in character may be linked with local business activities through the use of an apportionment formula. For example, in North¬ western States Portland Cement Co. v. Minnesota ,27 the Court held that Minnesota could collect its fairly apportioned net income tax from an Iowa cement manufacturer who employed salesmen to solicit business in Minnesota but otherwise dealt with Minnesota customers only through the Iowa headquarters. In order to determine what proportion of the Iowa corporation’s net income could be attributed to its Minneso¬ ta activities, the Minnesota tax used a formula incorporating three ratios: "The first is [the ratio] of the taxpayer’s sales assignable to Minnesota during the year to its total sales during that period every¬ where; the second, [the ratio] of the taxpayer’s total tangible property in Minnesota for the year to its total tangible property used in the business that year wherever situated. The third is [the ratio of] the taxpayer’s total payroll in Minnesota for the year to its total payroll for its entire business in the like period.” 28 The Court found the critical question the same one as that raised in Central Greyhound Lines, Inc. v. Mealey: "whether what the State is exacting is a constitutionally fair demand by the State for that aspect of the interstate commerce to which the State bears a special relation.” 29 The Court concluded that "[the] apportioned tax is designed to meet this very requirement”.30 Not all tax apportionment

schemes, however, can survive judicial

scrutiny; if it is not "to 'project the taxing power of the state plainly beyond its borders’,” any tax apportionment formula that is used "must bear a rational relationship, both on its face and in its application, to 27. 358 U.S. 450 (1959). See also § 617, infra. 28. Id. at 453-54.

29. 334 U.S. 653, 661 (1948). The Port¬

land Cement Court quoted this language with approval. See 358 U.S. at 462.

30. Id. See also Butler Brothers v. McColgan, 315 U.S. 501 (1942) (sustaining net income tax apportioned on the basis of property, payroll, and sales ratios); Canton Ry. Co. v. Rogan, 340 U.S. 511 (1951) (up¬

holding an apportioned gross receipts tax as applied to a railroad engaged exclusive¬ ly in handling interstate commerce at an in-state port). For a critique of the Court’s approach to these cases, see Brown in § 61, supra, note 1, at 228-33, arguing that taxes like those sustained in Canton Ry. Co. v. Rogan were in reality transportation tariffs falling primarily on outsiders. It is unclear whether the Court’s approach will survive the new realism of Complete Auto Transit, discussed in § 6-15, supra.

452

LIMITS ON STATE AND

LOCAL

POWER

Ch. 6

. . . values connected with the taxing State.” 31 But the taxpayer has the burden of proving an apportionment formula irrational. Even in cases where the state tax is rationally related to local business activities through the use of a reasonable apportionment formula, however, one must address the threshold question whether the local activities are sufficiently substantial to warrant any tax under the fourteenth amendment due process clause.32 Although the due process standard of review is similar to that of the commerce clause in this regard,33 reformulation of the rule in terms of the due process require¬ ment of ''situs” helps to highlight the jurisdictional nature of the question.34 Perhaps because of its family resemblance to the weaker "rational relationship” standard used in due process scrutiny of the constitution¬ ality of all legislative action,35 employment of the due process "situs” test has occasionally led courts to approve state taxes which might have been struck down if viewed from the perspective of the policies underly¬ ing the commerce clause. Northwestern States Portland Cement Co. v. Minnesota 36 is perhaps the most prominent recent example of this tendency. In that 1959 case, the Court found that an apportioned net income tax could be collected from an out-of-state corporation whose only local activity, solicitation of business through the use of salesmen, was held to be a connection sufficient to satisfy the due process situs requirement. Within seven months

of this decision, Congress enacted a statute 37

specifying that "mere solicitation” in a state does not constitute a local connection substantial enough by itself to justify a state "net income tax on the income derived within such State by any person from interstate commerce. . . .” As the Supreme Court has subsequently recognized, Congress acted because " Northwestern States Portland Ce¬ ment did not adequately specify what local activities were enough to create a 'sufficient nexus’ for the exercise of the State’s power to tax.” 38 31. Norfolk & Western Ry. Co. v. Mis¬ souri State Tax Commission, 390 U.S. 317, 325 (1968) (striking down the application of a Missouri property tax to an interstate railroad because the apportionment formu¬

cess requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the

la’s reliance on railroad track mileage was demonstrated by the railroad to have inac¬ curately inflated the tax base by a factor of 260-300%). See also Union Tank Line Co. v. Wright, 249 U.S. 275 (1919).

suit does not offend 'traditional notions of

32. See, e.g., Northwestern States Port¬ land Cement Co. v. Minnesota, 358 U.S. 450, 464 (1959) ("Nor will the argument that the exactions contravene the Due Pro¬ cess Clause bear scrutiny. . . . These activities form a sufficient nexus between such a tax and transactions within a state for which the tax is an exaction”). 33. See National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 756 (1967). 34. Cf. International Shoe Co. v. Wash¬ ington, 326 U.S. 310, 316 (1945) ("due pro¬

See substantial play and fair Shaffer also v. Heitner, 433 justice’ U.S. 186”). (1977), extending the International Shoe standard to cases of in rem jurisdiction and quasi-in rem jurisdiction. fra.35. See, e.g., § 5-3, supra; § 16-2, in¬ 36. 358 U.S. 450 (1959), discussed in § 6-17, infra. 37. 73 Stat. 555, 15 U.S.C. §§ 381-384. 38. Heublein, Inc. v. South Carolina Tax Commission, 409 U.S. 275, 280 (1972). Although the Court has generally shown greater concern subsequent to the passage of this statute for the character and degree of the local activities claimed by states to

§ 6-17

LIMITS

ON STATE

AND

LOCAL

453

POWER

Recent cases confirm that the due process clause can be a signifi¬ cant restraint on a state's power to tax wealth created beyond its borders. In Asarco Inc. v. Idaho State Tax Commission 39 and F. W. Woolworth v. Taxation & Revenue Department ,40 the Court invalidated efforts to tax dividend income derived by resident corporations from out-of-state subsidiaries that had no other contact with the taxing state. The Court found that the subsidiaries were operated as discrete enter¬ prises, rather than as part of a unitary business; the parent companies did not actively control the subsidiaries, but engaged only in the occasional oversight that any corporation gives to an investment.41 Even if a corporation has the potential to control subsidiaries, there is no basis for taxation of dividend income unless there is functional integration, centralization of management,

or achievement

of other

economies of scale.42 The Court expressly rejected the infinitely ex¬ pandable theory that dividend income should be taxable as part of a "unitary business” if the intangible property is merely acquired or managed for purposes relating to the taxpayer’s business.43 "[Bjeyond the presence of a sufficient connection in a due process or 'jurisdictional’ sense, whether or not a 'local incident’ related to or affecting commerce may be made the subject of state taxation depends upon other considerations of constitutional policy having reference to the substantial effects ... of the particular tax in suppressing or burdening unduly the commerce.” 44 In defining the negative implica¬ tions of the commerce clause for state taxation, the Supreme Court has emphasized two related but distinct consequences of state taxes either of which renders a particular tax unconstitutional: (a) discrimination against out-of-state commerce

in favor of local competitors; and (b)

cumulative burdening of interstate commerce tion of similar taxes. § 6-17.

Forbidden

Discriminatory

by several states’ collec¬

Taxes

The Supreme Court has traditionally recognized that a large part of the rationale for granting Congress control over interstate commerce "was to insure . . . against discriminating State legislation.” 1 There¬ fore, the Court has consistently struck down those state taxes which it concludes unjustifiably benefit local commerce justify taxation of multistate businesses, the statute itself has been quite narrowly construed. Compare Scripto, Inc. v. Carson, 362 U.S. 207 (1960), with National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753 (1967), discussed in notes 20-21, supra, see Heublein, Inc. v. South Carolina Tax Com¬ mission, 409 U.S. 275 (1972) (as part of its program of alcoholic beverage control, a state may require a multi-state distributor to deliver its liquor products to a local employee who then distributes the liquor to local retailers — even though this re¬ quirement prevents the distributor from taking advantage of 15 U.S.C. § 381, and thus makes possible state net income taxa¬

at the expense of out-of-

tion). The Court did not rely on the twen¬ ty-first amendment, discussed in § 6-24, infra. 39. 458 U.S. 307 (1982). 40. 458 U.S. 354 (1982). 41. Asarco, 458 U.S. Woolworth, 458 U.S. at 369. 42. Woolworth,

at

322-24;

458 U.S. at 364-67.

43. Asarco, 458 U.S. at 326. 44. Nippert v. Richmond, 327 U.S. 416, 423-24 (1946) (emphasis added). 1. Welton v. Missouri, 91 U.S. (1 Otto) 275, 280 (1875). § 6-17

454

LIMITS ON STATE

state commerce.

AND

LOCAL

POWER

Ch. 6

In contrast, state taxes which favor out-of-state com¬

merce at the expense of local commerce are not similarly suspect.2 A state tax which burdens interstate enterprises more than it burdens exclusively local business operations is not always deemed unconstitutionally discriminatory. However, the taxing state must adequately justify the differential — by specifically demonstrating, for example, (a) that the state conferred benefits on the interstate enter¬ prises which it did not grant local businesses; or (b) that the state incurred additional administrative costs in taxing businesses located outside the state; or (c) that the local activities of interstate enterprises created regulatory problems capable of solution by the increased taxa¬ tion which were not raised by the otherwise similar actions of local businesses. The Supreme

Court has found invalid as plainly discriminatory

those state taxes which, without sufficient justification, explicitly ex¬ empt local activities from the obligations imposed on comparable inter¬ state enterprises. For example, in Hale v. Bimco Trading , Inc., the Court held unconstitutional a Florida statute which imposed an inspec¬ tion fee 60 times the actual cost of inspection upon cement imported into the state for sale or use, because that statute exempted locally produced cement from all inspection and inspection fee requirements: "[It] would not be easy to imagine a statute more clearly designed than the present to circumvent what the Commerce Clause forbids.” 3 Re¬ cently the Court has applied the ban against explicitly discriminatory tax legislation to schemes which discriminate among interstate transac¬ tions in order to benefit in-state commerce. In Boston Stock Exchange v. State Tax Comm’n ,4 the Court invalidated a New York statute which imposed a greater tax burden on interstate stock transactions having significant in-state elements but consummated outside of the state than on those in which the sale itself took place within the state, holding that the state could not thus encourage business operations to be performed within its borders.5 And in Westinghouse Electric Corpora2. See, e.g., Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528 (1959) (consistent with the fourteenth amendment equal pro¬ tection clause, a state may explicitly ex¬ empt nonresidents storing property in local warehouses from the property tax liability incurred by residents, since the discrimina¬ tory application of the tax can be rational¬ ly related to the legitimate state goal of attracting out-of-state warehouse business). But cf. Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928), discussed in § 610, supra. Compare the discussion of "be¬ nign discrimination” in §§ 16-22, 16-27, infra. 3. 306 U.S. 375, 380-81 (1939). See also Tyler Pipe Industries, Inc. v. Washington Dept, of Revenue, 107 S.Ct. 2810 (1987) (invalidating business and occupation tax falling on local manufacturers who sell to out-of-state customers but exempting local manufacturers who sell to local customers; this overrules General Motors Corp. v.

Washington, 377 U.S. 436 (1964)); Armco, Inc. v. Hardesty, 467 U.S. 638 (1984) (inval¬ idating gross receipts tax falling on busi¬ nesses selling tangible property wholesale but exempting local manufacturers who were subject to a higher manufacturing tax; tax cannot be justified as compensato¬ ry since manufacturing and wholesaling are not substantially equivalent). Accord, Welton v. Missouri, 91 U.S. 275 (1876) (de¬ claring unconstitutional a license fee im¬ posed for the privilege of peddling but ex¬ empting peddlers of instate goods); Morrill v. Wisconsin, 154 U.S. 626 (1877); Guy v. Baltimore, 100 U.S. 434 (1880); Tiernan v. Rinker, 102 U.S. 123 (1880); Webber v. Virginia, 103 U.S. 344 (1881); cf. Voight v. Wright, 141 U.S. 62 (1891). 4. 429 U.S. 318 (1977). 5. The Court analyzed New York’s dis¬ criminatory taxing scheme as it would have assessed regulatory legislation requir-

§ 6-17

LIMITS

ON STATE

AND

LOCAL

POWER

455

tion v. Tully ,6 the Court unanimously condemned a New York law that gave franchise tax credits to domestic international sales corporations in proportion to the percentage of their shipping activities conducted from within the state. The fact that it was a franchise tax credit rather than an added transaction tax did not make the scheme constitu¬ tional.7 The Supreme Court has also found unconstitutionally discriminato¬ ry those state taxes nondiscriminatory on their face which, without sufficient justification, impose economic burdens on interstate enter¬ prises which are not in fact imposed on local competitors. Judicial concern with the discriminatory consequences of ostensibly neutral taxing statutes has been most apparent in cases dealing with the constitutionality of fixed-fee license taxes collected from all local and out-of-state practitioners of the art of "drumming,” i.e., the solicitation of orders for goods which are to be delivered to the customer at some future time, such as door-to-door solicitation of magazine subscriptions. The seminal case is Robbins v. Shelby County Taxing District .8 There, the Supreme Court struck down, as applied to drummers solicit¬ ing sales on behalf of out-of-state firms, a Tennessee statute which required all drummers operating in the city of Memphis to pay a fixed

.

license fee for the privilege of doing business there. Most of the Court’s opinion was devoted to demonstrating that, in this context, soliciting orders was a local activity inextricably linked with wholly interstate commerce.9 However, at the close of his majority opinion, Justice Bradley also argued that the tax discriminated against out-of-state merchants and manufacturers: "They can only sell their goods in Memphis by the employment of drummers and by means of samples; whilst the merchants and manufacturers of Memphis, having regular licensed houses of business there, have no occasion for such agents, and, if they had, they are not subject to any tax therefor. They are taxed for their licensed houses, it is true; but so, it is presumable, are the merchants and manufacturers of other states in the places where they reside; and the tax on drummers operates greatly to their disadvantage in comparison with the merchants and manufacturers of Memphis.” 10 Robbins was expressly reaffirmed in Nippert v. City of Richmond.11 There, the Supreme Court found that the potential discriminatory and indeed exclusionary effects of a municipal license tax imposed on all soliciting, which took the form of both a fixed fee and a percentage of gross receipts, rendered the tax unconstitutional: "Provincial interests ing interstate business operations to be performed within the regulating state in cases such as Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). See § 6-9, supra. 6. 466 U.S. 388 (1984). 7. Id. at 404-05. 8. 120 U.S. 489 (1887). 9. That this factor may soon be deemed irrelevant is suggested by the "new real¬ ism” in tax cases. See § 6-15, supra. 10. 120 U.S. at 498. See also Best & Company, Inc. v. Maxwell, 311 U.S. 454

(1940) (striking down, as applied to a non¬ resident merchant, a North Carolina stat¬ ute levying a fixed fee of $250 on all retail merchants displaying samples in hotel rooms for the purpose of securing retail orders; the relevant competitors were thought to be North Carolina retail mer¬ chants permanently doing business in the state who paid only a one dollar privilegeof-doing-business tax); Memphis Steam Laundry Cleaner, Inc. v. Stone, 342 U.S. 389 (1952).

U.S 327

456

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

and local political power are at their maximum weight in bringing about acceptance of this type of legislation. With the forces behind it, this is the very kind of barrier the commerce clause was put in the fundamental law to guard against.” 12 The logic of Robbins and Nippert not only extends to drumming

but

embraces as well any activity which is essential for an out-of-state enterprise but not essential for a local business. Thus, in West Point Wholesale Grocery Co. v. City of Opelika ,13 the Court read the "'drum¬ mer” cases as prohibiting the collection of an annual fixed fee license tax of $250, imposed on the delivery into Opelika of wholesale groceries from warehouses located outside the municipality, from a Georgia firm soliciting and delivering wholesale orders in the Alabama city, when the city exacted no comparable

flat-sum tax from local merchants.14

Different reasoning surfaces in decisions concerning state taxes on "peddlers,” sales personnel who travel "from place to place within the State selling goods that are carried about with the seller for the purpose”. 15 Such taxes are constitutional under the commerce clause "where no discrimination against interstate commerce appears either upon the face of the tax laws or in their practical operation.” 16 In practice, "peddler” taxes are usually upheld unless they are facially discriminatory. The differing treatment given "peddler” and "drum¬ mer” taxes is best explained by the interaction of two factors: (a) the Court has found peddling to be a local activity distinct from any interstate movement which preceded it, and a nondiscriminatory li¬ cense tax on peddlers is therefore "a valid exercise of the power of the State over persons and business within it borders;” 17 and (b) while drummers have been assumed to compete with local retail merchants operating from fixed locations,18 the Court has concluded 19 that ped¬ dlers ordinarily compete with other peddlers, so that a tax structure 12. Id. at 434. The Court reasoned that the burden of the municipal tax involved in Nippert was heavier upon small out-ofstate solicitors than upon local sellers be¬ cause the former solicit intermittently throughout the state and could thus be subjected to several such levies — a kind of intrastate multiple burden. Id. at 429-31. Cf. § 6-18, infra. See also Real Silk Ho¬ siery Mills v. Portland, 268 U.S. 325 (1925); Corson v. Maryland, 120 U.S. 502 (1887). Cf. McLeod v. J. E. Dilworth Co., 322 U.S. 327 (1944), discussed in § 6-16, supra. But see Brennan v. Titusville, 153 U.S. 289 (1894) (implying that the police power might justify such a tax in the proper circumstances). 13. 354 U.S. 390 (1957). 14. See also Memphis Steam Laundry Cleaner, Inc. v. Stone, 342 U.S. 389 (1952) (if a Mississippi tax upon "the privilege of soliciting interstate business for a laundry not licensed in that State” is read so as to tax solicitation, then the tax is void under the "drummer”

cases because it burdens a

local activity inextricably linked with wholly interstate commerce). One might well question the plausibility of the Court’s assumptions about competitive structure, see note 10, supra, as applied to solicita¬ tions for services rather than for sales. 15. Wagner 101 (1919).

v. Covington, 251 U.S. 95,

16. See Memphis Steam Laundry Cleaner, Inc. v. Stone, 342 U.S. 389 (1952) (even if a Mississippi tax on the privilege of soliciting business for a laundry not li¬ censed in that State is read to tax the local activity of picking up and delivering laun¬ dry, the tax is not supported by the peddler decisions because local laundries pay a low¬ er tax). The alternate holding is discussed in note 14, supra. 17. Emert v. Missouri, 156 U.S. 296, 322 (1895). See also Wagner v. Covington, 251 U.S. 95, 103 (1919). 18. See, e.g., Best & Co., Inc. v. Max¬ well, 311 U.S. 454 (1940), in note 10, supra. 19. With little or no evidence.

§ 6-17

LIMITS

ON STATE

not discriminating among

AND

LOCAL

POWER

peddlers may be assumed

457

not to discriminate

at all.20 Critical to the distinction between the "drummer” and "peddler” cases are the different factual conclusions the Supreme Court has drawn in those two series of decisions concerning the identity of the local competition facing the out-of-state sellers. Because institutional factors have been thought to limit the extent to which the Court can make such factual analyses,21 the connection between judicial decisions and judicial perception of economic facts is in many cases less explicit. In general, claims of discriminatory taxation are judged primarily on the basis of the facial characteristics of the taxing statutes; the only economic conclusions reached are those which plainly derive from the structure of the industry taxed.22 But Complete Auto Transit may presage increased judicial willingness to examine specific factual cir¬ cumstances.23 The Supreme Court’s treatment of discrimination claims in cases involving state use taxes is indicative of the kind of judicial analysis that has most commonly been undertaken when economic facts are not self-evident. It should be noted that, unlike the previous discussion of use taxes,24 where the claim of unconstitutionality was brought by outof-state sellers required to collect the tax, the discussion that follows focuses on claims made by in-state consumers required to pay the tax. In Henneford v. Silas Mason Co., Inc.25 the Supreme Court upheld a state use tax which applied only to goods purchased outside the taxing 20. See, e.g., Caskey Baking Co., Inc. v. Virginia, 313 U.S. 117, 119-20 (1941) (Vir¬ ginia may collect its West Virginia baker to-door in Virginia, exempts local bakers

"peddling” tax from a who sells bread dooreven though the tax supplying fixed retail

outlets, because "peddlers resident in Vir¬ ginia who buy their goods within the State, or buy or procure them from extrastate sources, are alike subject to the Act”). But cf. Dunbar-Stanley Studios, Inc. v. Ala¬ bama, 393 U.S. 537, 542 (1969), (holding constitutional a state tax on traveling pho¬ tographers because the tax applied to both out-of-state and local traveling photogra¬ phers, and because "[i]n none of the cities . . . would the transient tax imposed . . . have exceeded that which a fixedlocation photographer would have had to pay to operate in the city”). See generally Hartman, "Sales Taxation of Interstate Commerce,” 9 Vand.L.Rev. 138, 142-43 (1956). It seems likely that much of the difference in treatment accorded drum¬ mers and peddlers stems from the histori¬ cal accident that the drummer cases first arose in the sympathetic context of crimi¬ nal prosecutions whereas the peddler cases first arose in the setting of suits seeking refund of license fees.

21. See Northwestern

States Portland

Cement Co. v. Minnesota, 358 U.S. 450, 476 (1959) (Frankfurter, J., dissenting).

22. Cf. Alaska v. Arctic Maid, 366 U.S. 199 (1961) (4% license fax collected from out-of-state freezer ships operating in the salmon banks off the Alaska coast held to be nondiscriminatory even though local land-based freezer plants paid only a 1% tax: the freezer ships supplied out-of-state canneries, and therefore did not compete with local freezers who serviced the freshfrozen retail market, but with local canner¬ ies, which were taxed at a 6% rate).

23. Then again, it may not. Compare Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), with Commonwealth Edis¬ on Company v. Montana, 453 U.S. 609 (1981), discussed in § 6-15, supra. But see American Trucking Assn., Inc. v. Scheiner, 107 S.Ct. 2829 (1987), where the Court looked beyond Pennsylvania’s "registration fees” and "axle taxes” to conclude that the entire statutory tax regime amounted to a flat highway use tax that charged all trucks the same, even though the "privi¬ lege” of using Pennsylvania’s highways was far more valuable to in-state trucking firms than to out-of-state firms. Charging the same fee therefore discriminated in practical economic terms against out-of-sta¬ ters, although not on the face of the rele¬ vant statute. 24. See § 6-16, supra.

25. 300 U.S. 577 (1937).

.

458

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

state and subsequently imported for in-state use. Justice Cardozo’s opinion for the Court looked to the taxing statute as a whole and found that the use tax imposed a burden exactly equivalent to that imposed on locally theme that the account burdens as gates. The

purchased goods by the state sales tax: "Equality is the runs through all the sections of the statute . When is made up, the stranger from afar is subject to no greater a consequence of ownership than the dweller within the one pays upon one activity or incident, and the other upon

another, but the sum is the same when the reckoning is closed.” 26 The decision in Henneford is commonly contrasted with Justice Cardozo’s earlier ruling in Baldwin v. G.A.F. Seelig, Inc.27 In both cases, the state acted to affect the prices at which local residents could purchase out-of-state goods (in Baldwin by price regulation; in Henne¬ ford by use taxes collected for the state by the seller), in order to eliminate the competitively disadvantageous situation in which local business had been placed by another action of the same state (in Baldwin , setting a price floor; in Henneford , imposing a sales tax collection duty). However, in Baldwin the state action affecting out-ofstate commerce was struck down, while in Henneford it was upheld. The cases are usually distinguished on the grounds (a) that in Baldwin all price differentials were eliminated whereas in Henneford only that price differential attributable to other state action was neutralized,28 and (b) that the state revenue interest advanced in Henneford was more "local” and hence more acceptable than the more "national” state interest in economic regulation asserted in Baldwin 29 However, the difference in the decisions can also be ascribed in part to the Supreme Court’s unwillingness in Henneford to look beyond the statutory frame¬ work of the tax and beyond the shibboleth of "equality” so as to confront directly the economic consequences of the state’s action.30 26. Id. at 583-84. The fact of equiva¬ lence between sales and use taxes stems from the basic purpose of a compensating use tax. In Henneford, the state tax not only exempted local purchases that were subject to the local sales tax but also grant¬ ed a similar credit for imported goods sub¬ jected to another state’s sales tax. The Court refused to decide whether this sec¬ ond exemption was required. 300 U.S. at 587. Although the Court subsequently ap¬ proved on other grounds a state use tax which did not allow the out-of-state sales tax credit, in Southern Pacific Se Co. v. Gal¬ e lagher, 306 U.S. 167 (1939), it ghas en not yet ruled on the claim that a stateerause tax ll yT. which fails to take into account out-of-state R. sales taxation discriminates impermissibly Po we against interstate commerce. ll 27. 294 U.S. 511 (1935), discussed in § 6-6, supra. 28. See Henneford v. Silas Mason Inc., 300 U.S. at 585-86. 29. See § 6-6, supra.

Co.,

ie

a Va in Co In s nd te ri ns r e t t i pr 19ie (1 Brtu in § 6- ¬ 1, 9 et 0 owtI i i n su at no 1, s at 2536) c o n s t l o e , na bt 4;- di whpra io teth fo l et ar 36 st e rm et , n” w ca he su as Ba al a.n incHe eewil se r ch d l n nl t d n su s th ne rwein of Cioon ef Au e r a w t m o Tr vive su no lism23 Th pleCord hao s an t p tu e . et re sit ex ra re in He e rt h su e ce , pl nn lt nt a e i ho ly as bane on th "e tr for e sced ea i d,t of wevin iqnual tmn he odm erte v ,rs Wa sc me Se Bo olv St entEx ta e st 4 ed U oc 3 ¬ chshi v. teSt hemTa rceCo on29 .S k 18 n a ” e x an g mm , . t . e t g 33 e o (1 It sh th a ., be no n a t o 9 1 t ed t ul us -3t2a wh 77) is co o f l or he oc nl d x e l ic . al h of golect co pu y ou ts od ed rc ns id ha th utma st is usn ies¬ at se e pxti c o e n n d i cr in th ab st of "a ogn e de se it ,j" imi if no co nc ut qu sal uVsa na atsoes ta tgia istoim on eq mp e ion lo el ca le x fri¬ r po u a i l ca Hya se vaWe me Ce lylly Co dv. go O i ti ll d l lell n me . od nt( ta nt ( Re s. 37on” iUb.u 64 71 dis 19 ry th , il Sr.t 3 -7 ¬ e 6 y, 3 cr in th on ca wa2 "e ) by i se so s xp th epasnt as an s"a dr f ta la af e cat c i t c e t¬ n y ut e id or d” en y t in g” ).

au

LIMITS ON STATE

AND

LOCAL

POWER

459

§ 6-18

§ 6-18.

State Taxes merce

Which

Cumulatively

Burden

Interstate Com¬

Taxes which do not exclude or discriminate against interstate commerce when viewed in isolation are nonetheless prohibited by the commerce clause if they place on multistate business "burdens of such a nature as to be capable ... of being imposed ... or added to . . . with equal right by every state which the commerce touches, ... so that without the protection of the commerce clause it would bear cumulative burdens not imposed on local commerce.” 1 Not all multi¬ ple taxation, however, contravenes the Constitution: interstate enter¬ prises which are required to pay taxes in more than one state are not thereby subjected to constitutionally prohibited cumulative burdens so long as every tax collected "is one that is essentially local and is not repeated in each taxing unit.” 2 At one time the Court maintained that the mere theoretical possi¬ bility of multiple taxation was insufficient to establish a commerce clause violation — a taxpayer was required to prove that particular interstate transactions were actually cumulatively burdened.3 That requirement has since been categorically rejected because it displaced the focus of judicial inquiry from the challenged state tax measure to the unchallenged tax laws of other states: " 'The immunities implicit in the Commerce Clause and the potential taxing power of a State can hardly be made to depend, in the world of practical affairs, on the shifting incidence of the varying tax laws of the various States at a particular moment.’ ” 4 The distinction between allowable taxes imposed by different states on different aspects of interstate commerce § &-18

en 30 U. 25 25 (1 Gw 93 0, in S. ue 3 5 Wh , an Pri Inc v. He 8); 30,5 d nn it . n c e e U.S 434 (1 Sto for e,Jus fw 93 . tic ne, orridti 9 ,ncgo th Co in ).We Sto e Liv nti e ur st c e k t e n¬ , r ue "T mu of st n ate taxes lt d: he me by the ipglro rec fr int om as er¬ s e i s i c u sta r tr woat spepts the des a e u i llan re tr th tiote of d inntsa co ldon d ne uc¬ e mm n ercsti wit wa ertr bar to taonnt wh s cead i teser rie c e h s t r th obsj of th atco cl to re¬ e e e mm au e c s mo U. at e2r5 Ju St t 30 st e S o 3 c6be. i en ve. th m.u r asne a c u ur e l e lt vi ” e des fu sio tes th ipl wo the nup at e ul nc ne t p ti d la d d dir on me ov ntic a c e e l my rlyhe ha han so lo voctop hoto p ci in n d is fe di 27 U. osed3¬4 See Di v.ticPe g ro re 3 Sa nn us ct A S. . , 44 (19 nto(St J.,sydli ly lt vsase 2 one ho f n n no exp7) r u a a b , el u o iati s a p s t o lic t ied is gch r n , ng) r dec m b ithle ul an ur . het dec oSrei be istiroa toy so tiplear e . a n g., ec, se nc,e me e li Ca of d the Sta Fr er Ta s. 82 U.S (15 x, se ei . t cu 28 e (1 ght Th 23 Wa mu 87 e 2, 0 ll bu .) th wa mo2). vit in olpat i e s s r a be den 19ory an 19 t an l ha not niibovene s 38 46 esn d d tw re een up ex i m r e n or li t o e ta cent mu cas ed wh n oft ensitre xat lt ic en velat es, ip h ion y le

of

Rev

and forbidden taxes im-

as a matter of discrimination against inter¬ state commerce, rather than as a cumula¬ tive burden thereon. See, e.g., Tyler Pipe Industries, Inc. v. Washington Dept, of Revenue, 107 S.Ct. 2810, 2815 (1987). Nev¬ ertheless, it should be recognized as the substantive foundation of some of the more technical doctrinal formulations of the modern decisions. 2. Joseph v. Carter & Weekes Stevedor¬ ing Co., 330 U.S. 422, 429 (1947). 3. See, e.g., General Motors Corp. v. Washington, 377 U.S. 436, 449 (1964); Standard Pressed Steel Co. v. Washington Dept, of Revenue, 419 U.S. 560, 563 (1975). 4. Armco, Inc. v. Hardesty, 467 U.S. 638, 645 n.8 (1984) (quoting Freeman v. Hewit, 329 U.S. 249, 256 (1946)). See also Tyler Pipe Industries, Inc. v. Washington Dept, of Revenue, 107 S.Ct. 2810, 2817 (1987) ("The facial unconstitutionality of Washington’s gross receipts tax cannot be alleviated by examining the effect of legis¬ lation enacted by its sister States.”); Moor¬ man Manufacturing Co. v. Blair, 437 U.S. 267, 276-78 (1978).

460

LIMITS

ON STATE

AND

posed by different states on the same

LOCAL

POWER

Ch. 6

aspect of interstate commerce

makes evident the link between cumulative burdens and the jurisdic¬ tional analysis discussed above. Cumulative burdens are possible only when states do not link the taxes they impose on interstate commerce with sufficiently local, and therefore unique, aspects of that commerce. It is thus not surprising that the Supreme Court has employed for the solution of the problem of cumulative burdens analytical devices which it also uses to resolve jurisdictional questions. The jurisdictional requirement that states tax only local aspects of interstate commerce has as a corollary the proposition that taxes which can be related to no sufficiently local activities of multi-state business¬ es, and are therefore realistically capable of multiple application, can be constitutionally imposed by no states, but only by Congress. To the extent that commerce clause jurisdictional requirements nationalize taxation of interstate commerce, they therefore prevent cumulative burdens. For example, in National Bellas Hess, Inc. v. Department of Reve¬ nue,5 the Supreme Court rejected on commerce clause jurisdictional grounds an Illinois requirement that a Missouri-based corporation collect and remit to Illinois a use tax upon Illinois users who engaged in purely mail order transactions with the company. The Court observed that "if Illinois can impose such burdens, so can every other State, and so, indeed, can . . . every other political subdivision throughout the Nation with power to impose sales and of the Commerce Clause was to ensure such unjustifiable local entanglements. a domain where Congress alone has

use taxes”. a national Under the the power

"The very purpose economy free from Constitution, this is of regulation and

control”.6 Congress can, of course, cede this power back to the states.7 For the most part, however, the judicial approach to the problem of cumulative burdens has not been to nationalize the subject matter of a tax as in National Bellas Hess. Instead, analysis has focused primarily on two potential solutions: localizing the subject matter of a tax, and apportioning the measure of a tax.

§ 6-19. Localizing the Subject Matter of a Tax as a Solution to the Problem

State taxes which

of Cumulative

meet

Burdens

the jurisdictional requirements

of the

commerce clause because related to sufficiently local activities of multi¬ state business are by that very fact uniquely defined, and thus not capable of multiple application. For example, in Western Live Stock v. Bureau of Revenue , the Supreme Court upheld the collection of an 5. 386 U.S. 753 (1967), discussed in § 616, supra. 6. Id. at 759-60. If delivery in the mail-order transactions occurred in Illi¬ nois, then Missouri would be as powerless to tax the sales as Illinois was to require collection and remission of the tax on use. 7. See, e.g., Western & Southern Life Insurance Co. v. State Bd. of Equalization,

451 U.S. 648 (1981) (Congress so completely abdicated authority to the states in passing the McCarran Act that California may now impose discriminatory, retaliatory taxes on out-of-state insurance companies in order to induce their home states to tax Califor¬ nia insurers at rates equal to those Califor¬ nia itself imposes). See § 6-33, infra.

LIMITS

§ 6-19

ON STATE

AND

LOCAL

POWER

461

unapportioned gross receipts tax, laid on the privilege of selling maga¬ zine advertising, from a magazine having an interstate circulation: "The tax is not one which in form or substance can be repeated by other states. . . . [R]eceipts from subscriptions are not included in the measure of the tax. It is not measured by the extent of the circulation of the magazine interstate. All the events upon which the tax is conditioned — the preparation, printing and publication of the advertising matter, and the receipt of the sums paid for it— occur in New Mexico and not elsewhere.” 1 An illustration of the distinction between permissible and imper¬ missible taxes in this context is provided by judicial treatment of property in transit. The Supreme Court has concluded that taxes imposed on goods while in transit through the taxing state are in effect potentially repeatable taxes on interstate commerce itself and thus barred by the commerce clause.2 But nondiscriminatory taxes imposed on goods prior to their movement into interstate transit, or subsequent to the completion of such transit, are taxes incapable of multiple application and are thus sufficiently local to survive jurisdictional scrutiny.3 This distinction is expressed in the decision of particular cases through rules defining what does and does not constitute inter¬ state transportation. The mere

fact that goods will someday

commerce does not immunize cease to be part of the general such, to its jurisdiction, and have been shipped, or entered

be shipped in interstate

them from state taxation; "goods do not mass of property in the State, subject, as to taxation in the usual way, until they with a common carrier for transportation

to another State, or have started upon such transportation in a continu¬ ous route or journey.” 4 The Supreme Court thus upheld the constitu¬ tionality of a license tax imposed upon a compress operator whose cotton was eventually to be traded in interstate commerce,5 reasoning that the "privilege taxed is exercised before interstate commerce be¬ gins.”

6

§ 6-19

1. 303 U.S. 250, 260 (1938). 2. See Champlain Realty Co. v. Town of Brattleboro, 260 U.S. 366 (1922); Kelley v. Rhoads, 188 U.S. 1 (1903). 3. See Brown v. Houston, 114 U.S. 622, 632-33 (1885) (coal from Pittsburgh had "come to rest” in New Orleans and could thus be taxed under the state’s general ad valorem property tax; the Court added in dictum that a tax triggered by the very fact of entry into the state would be void).

4. Coe v. Errol, 116 U.S. 517, 527-28

(1886) (logs stored on the bank of a river prior to being floated out-of-state may be validly subjected to a local property tax). See also Bacon v. People of Illinois, 227 U.S. 504 (1913). Cf. Kosydar v. National Cash Register Co., 417 U.S. cussed in § 6-23, infra. The sized in Coe that even goods to a depot for out-of-state

62 (1974), dis¬ Court empha¬ being brought shipment are

subject to tax prior to their actual commit¬ ment to the common carrier; prior to such commitment, the owner can still decide not to export the goods. 116 U.S. at 526. By selling the goods within the state he could thus entirely avoid paying his just tax. The Court was also concerned with the economic plight of the Western States, the bulk of whose produce was intended for export. A holding that the mere intent to export goods immunized them from tax would leave those states fiscally crippled. Id. at 527-28. 5. See Federal Compress & Warehouse Co. v. McLean, 291 U.S. 17 (1934). 6. Id. at 22. The Court thus branded the burden on interstate commerce "too indirect and remote to transgress constitu¬ tional limitations.” Although the com¬ press operator’s contract with the common carrier designated the operator as the car¬ rier's agent and the operator’s plant as the

462

LIMITS ON STATE

AND

LOCAL

POWER

Ch. 6

A state in which an interstate shipment temporarily halts, howev¬ er, may not impose a property tax on the shipment if the interruption of interstate transportation is "only to promote . . . safe or convenient transit,” even though "the property ... is under the complete control of the owner” during the interruption.7 In such cases, the property is said to be in "continuity of transit” and hence immune to state tax. But in the absence of a showing that continuity has been interrupted only ancillary to shipment for reasons of safety or convenience, goods may be taxed by the state within whose boundaries they repose. For example, in Minnesota v. Blasius,8 the Supreme Court held that cattle, shipped from out-of-state and sold to a buyer who kept the cattle in a stockyard at his expense pending resale, may be subjected to a local property tax even though eventual resale was to an out-of-state buyer.9 In addition, although a product has been shipped in interstate com¬ merce, it becomes subject to the taxing power of the state to which it has been sent once it mingles with the general mass of property of that state.10 The tax immunity conferred by the commerce clause on goods shipped interstate ends when the goods reach their destination unless further acts by the vendor are necessary after the arrival of the goods in order to make delivery effective.11 A further illustration is provided by state taxes related to local aspects of interstate transportation. A state may tax such local aspects providing they can be sufficiently distinguished from the process of transit itself. For example, in United Air Lines , Inc. v. Mahin ,12 the Court held that the acts of storing and then withdrawing aviation fuel carrier’s depot, the Court rejected this con¬ tractual attempt "to convert a local busi¬ ness into an interstate commerce business protected by the interstate commerce clause.” Id. 7. Champlain Realty Co. v. Brattleboro, 260 U.S. 366, 376 (1922) (logs detained in a river pending the recession of high waters may not be subjected to a local property tax); Carson Petroleum Co. v. Vial, 279 U.S. 95 (1929) (oil held within a state pend¬ ing the accumulation of sufficient oil to load a ship is immune from local property taxation); Kelley v. Rhoads, 188 U.S. 1 (1903) (grazing of sheep is a necessary inci¬ dent of transport); Hughes Brothers Tim¬ ber Co. v. Minnesota, 272 U.S. 469, 476 (1926). See generally Hartman, "Sales Taxation in Interstate Commerce,” 9 Vand. L.Rev. 138, 162 (1956). 8. 290 U.S. 1 (1933). 9. Id. at 10. See also Independent Warehouses, Inc. v. Scheele, 331 U.S. 70, 83 (1947), (license tax on the storage of coal held not a forbidden tax on the privilege of interstate commerce even though the coal is received from out-of-state and almost all of it subsequently shipped out-of-state; the interruption in transit brought about by the storage is "for reasons primarily con¬ cerned with the owner’s business inter¬

est”); Bacon v. Illinois, 227 U.S. 504 (1913) (no commerce clause tax immunity for grain subjected to a local property tax af¬ ter its transportation had been halted to allow for inspection, grinding and sorting); Susquehanna Coal Co. v. South Amboy, 228 U.S. 665 (1913). But cf. Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265, 272 (1921) (West Virginia may not tax all oil stored by a pipeline company for local suppliers even though the pipeline company shipped oil at the suppliers’ direction to either local or out-of-state customers; the local suppli¬ ers’ oil was mixed by the pipeline firm with oil from out-of-state suppliers, and thus "the pipe line company not the pro¬ ducer was the master of the destination of any specific oil”) (emphasis added). 10. See Brown

v. Houston, 114 U.S. 622

(1885). 11. Compare York Mfg. Co. v. Colley, 247 U.S. 21 (1918) (assembly of ice making plant under the supervision of an expert employed by the seller constitutes part of the process of interstate transit protected by the commerce clause), with Browning v. Waycross, 233 U.S. 16, 23 (1914) (munici¬ pality may tax the installation of a light¬ ning rod made by an out-of-state seller). 12. 410 U.S. 623 (1973).

§ 6-19

LIMITS

ON STATE

AND

LOCAL

POWER

463

from storage for loading into aircraft flying interstate routes were sufficiently local aspects of the interstate transportation process to justify use taxation by Illinois.13 Likewise, in Washington Revenue Department v. Stevedoring Association ,14 the Court upheld a tax on stevedoring since such a tax does not relate to the value of the goods themselves and simply compensates the state for local services offered to businesses.15 And in Evansville- Vanderburgh Airport Authority Dis¬ trict v. Delta Airlines , Inc.,16 the Court responded to an argument that fixed-fee service taxes levied on emplaning passengers of interstate airlines using state airport facilities were capable of multiple applica¬ tion and therefore cumulatively burdensome, by emphasizing the juris¬ dictional validity of the taxes in question. A final illustration is that of unapportioned gross receipt taxes: It was said in a case whose formalism no longer represents the law in this

area 17 that a state may not levy interstate commerce.18 However,

tax "oti” the gross receipts from state may use gross receipts from

13. Ever since 1963, Illinois revenue au¬

16. 405 U.S. 707, 722 (1972). The Court

thorities insisted on applying their use tax to all the fuel loaded, rather than limiting it to the fuel actually burned over Illinois. See also Edelman v. Boeing Air Transport Inc., 289 U.S. 249 (1933); Nashville, Chat¬ tanooga & St. Louis B. Co. v. Wallace, 288 U.S. 249 (1933). The Mahin Court argued that "[djouble taxation is minimized be¬ cause the fuel cannot be taxed by States through which it is transported,” 410 U.S. at 630, see Michigan- Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157 (1954), "nor by the State in which it is merely consumed . . .” See Helson v. Kentucky, 279 U.S. 245 (1929) (a state may not impose a use tax on gasoline purchased and loaded in a ferry boat outside the taxing state but con¬ sumed within the taxing state). The Mahin Court also observed that this dis¬ tinction between storing the fuel and con¬ suming it provides the tax revenues to the most appropriate state: "a state in which pre-loading storage facilities are main¬ tained is likely to provide substantial ser¬ vices to those facilities, including police protection and the maintenance of public access roads.” 410 U.S. at 630. Compare Michigan- Wisconsin Pipe Line Co. v. Cal¬ vert, 347 U.S. 157 (1954) (invalidating a severance tax on the transfer of gas from a refinery pipeline to an interstate pipeline).

distinguished Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867), invalidating a statute exacting a fee of one dollar from any pas¬ senger leaving the state by interstate carri¬ er. The tax in Crandall, the Court submit¬ ted, was not compensatory; it was not designed merely to impose upon the inter¬ state traveler his fair share of the cost of government. 405 U.S. at 712. In dissent, Justice Douglas argued that the "fair share” argument was inapposite because the tax burdened the constitutionally guar¬ anteed right to travel. Analogizing the right to travel to first amendment rights, he wrote that, "though a local resident can be made to pay taxes to support the com¬ munity, he cannot be required to pay a fee for making a speech ...” Id. at 726. Justice Douglas’ argument seems miscon¬ ceived. The majority did not suggest that travelling itself was taxable. The tax was justified because the particular medium of travel employed was one that imposed spe¬ cial costs upon the state. The proper first amendment analogy, then, would be the city’s exacting a fee for leasing sound equipment or a meeting hall to a private speaker.

17. See § 6-15, supra. 18. Freeman

v. Hewit, 329 U.S. 249

the test promulgated in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), required the overruling of Puget Sound Stevedoring Company v. State Tax Com¬ mission, 302 U.S. 90 (1937) and Joseph v. Carter & Weekes Stevedoring Company, 330 U.S. 422 (1947), which had held that

(1946). In State Tax on Ry. Gross Receipts, 82 U.S. (15 Wall.) 284 (1873), the Court sustained an unapportioned gross receipts tax on the proceeds of transportation through the state, arguing that the tax, which applied several months after the re¬ ceipts were realized, was imposed on the receipts only after they had co-mingled with the general mass of property of the taxing state. This distinction was clearly

state taxes on stevedoring constituted im¬ permissible taxation of the privilege of con¬ ducting interstate business.

untenable, see Note, "The Multiple Burden Theory in Interstate Commerce Taxation,” 40 Col.L.Rev. 653, 654 n. 4 (1940), and was

14. 435 U.S. 734 (1978). 15. The Court held that application of

464

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

such commerce as the measure of an otherwise constitutionally palat¬ able tax.19 These rules can be capsulized in a formulation that better highlights their interface with the cumulative burden doctrine: a state may collect an otherwise unapportioned tax so long as it is imposed only on those receipts from interstate transactions which can be ascribed to activities taking place wholly within the jurisdiction of the taxing state. By tying the use of a gross receipts tax to the isolation of some local incident, the Court has attempted to avoid taxation of the revenue by more than one state.20 For example, in General Motors Corp. v. Washington , the Supreme Court upheld a state tax on the privilege of doing business within the state, where the tax was measured by the gross receipts on sales of same

goods delivered within the state.21 The Court found that the various General Motors divisions either maintained branch offices or ware¬ houses within the state or otherwise retained " 'district managers, ser¬ vice representatives, and other employees who were residents of the State and who performed substantial services in relation to General Motors’ functions therein, particularly with relation to . . . sales, upon which the tax was measured.” 22 The Court articulated the governing standard: 'The validity of the tax rests upon whether the repudiated in Philadelphia & Southern Steamship Co. v. Pennsylvania, 122 U.S. 326 (1887). The Court has tended to be more solicitous of taxes levied upon net income. See, e.g., United States Glue Co. v. Oak Creek, 247 U.S. 321 (1918); Peck & Co. v. Lowe, 247 U.S. 165 (1918). The difference in treatment accorded these two levies is not difficult to fathom: By defini¬ tion, a gross receipts tax applies to the very fruits of commerce once realized and imposes a burden even if there are no profits; in contrast, a net income tax ap¬ plies only to those receipts, if any, left after the costs of conducting business have been deducted. But either form of tax may be objectionable, even if fairly apportioned to instate activity, as an exploitation by the tolltaker on a strategic trade route, cf. Condliffe, The Commerce of Nations Chs. I-V (1950), and thus the very sort of pro¬ vincialism the commerce clause was meant to end. See Brown, § 6-1, supra, note 1, at 228-32. See also Lockhart, "Gross Re¬ ceipts Taxes on Interstate Transportation and Communication,” 65, 66 (1943).

57 Harv.L.Rev.

40,

ar an p th bi so ¬ is rin f d m u to th ex ci tw th r ar gu et th c e er a e o ce pl e i a gr ta ree te ba d omnes gtr pt eFi d r o o c n x io st to atmie be eipus msas re ns th,e va ss t ce e l y l oans S s ad a utea of iap ta u . o c e re co ts xe x ca ti nd " l grvit re "lo be lde ma , t in ieSu vi t os y.p ce nn” of y ex h e”e r ax o e s i ac o d e Co per pv.ts Mi . Ex rma Un ti St . ty nn pr l i n a Pa Cu 22 te U. g 33tes (1 es Co. v. e ss d 91 3 d S. 5 c o k 45ah (1 24 2)U. Mi in The ta, is 6 ; S. 0 y 91 nn g re 8) es . ot a,

no sound reason for not treating the main¬ tenance of property within the state as the taxable activity and thus subsuming both classes of cases within the same exception. 20. The Court has also been quick to strike down cumulative taxation within a state. Compare Cudahy Packing Co. v. Minnesota, 246 U.S. 450 (1918) (sustaining a gross receipts tax levied in lieu of a property tax), with Meyer v. Wells, Fargo & Co., 223 U.S. 298, 299 (1912) (invalidat¬ ing a gross receipts tax levied in addition to the property tax). If more than one state finds a local "incident”, however, the cumulative taxation problem remains. It is essential, therefore, that each state seek to reach only that portion of the company’s receipts that fairly reflects the value of the activities carried on within its boundaries. See Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434 (1939). 21. 377 U.S. 436 (1964). Accord, Ficklen v. Shelby County Taxing District, 145 U.S. 1 (1892) (tax on gross commissions of solicitors for out-of-state seller upheld, dis¬ tinguishing the "drummer” cases). The reasoning of the General Motors decision with respect to discrimination against in¬ terstate commerce was overruled in Tyler Pipe Industries, Inc. v. Washington Dept, of Revenue, 107 S.Ct. 2810, 2817 (1987), but the Tyler Court had no occasion to ques¬ tion the earlier case’s conclusions with re¬ spect to nexus and fair apportionment. Id. at 2820 n.16. 22. 377 U.S. at 447.

LIMITS ON STATE

AND

LOCAL

POWER

465

§ 6-20

State is exacting a constitutionally fair demand

for that aspect of

interstate commerce to which it bears a special relation.” 23 While a state may collect an unapportioned gross receipts tax from the local sales of an out-of-state corporation, it may not lay a similar tax on receipts from out-of-state sales made by local companies.24 In J. D. Adams Mfg. Co. v. Storen , the Court held unconstitutional Indiana’s attempt to tax the gross receipts of a local corporation’s out-of-state sales of locally manufactured road machinery to out-of-state customers: '"the exaction is of such a character that if lawful it may in substance by laid to the fullest extent by States in which the goods are sold as well as those in which they are manufactured.” 25 § 6-20.

Apportioning the Measure of a Tax Problem of Cumulative Burdens

as a Solution

to the

Consistent with the jurisdictional requirements of the due process and commerce clauses, a state may levy a nondiscriminatory tax on an aspect of a multi-state transaction otherwise wholly immune from taxation because interstate in character (such as gross receipts from an out-of-state sale made by a local corporation), if the method by which the tax is measured apportions the tax burden in conformity with a formula that rationally relates the amount of the tax to the fraction of interstate activity taking place within the taxing state.1 Because they seek to derive uniquely local bases for state taxation from otherwise interstate aspects of taxed transactions, apportionment formulas in theory prevent interstate commerce from being cumulatively burdened by repeated taxation of the same incident.2 However, where states taxing the same aspect of an interstate transaction use different appor¬ tionment formulas, there may arise overlapping tax liabilities and thus cumulative burdens. 23. Id. at 440. See also Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444 (1940); Standard Pressed Steel Co. v. Washington Dept, of Revenue, 419 U.S. 560 (1975) (Washington may levy a tax on the unap¬ portioned gross receipts of an aerospace manufacturing company resulting from the latter’s sales to a Washington customer, Boeing, where the company maintained a full-time agent in Washington to advise the customer on its anticipated needs). 24. See Evco v. Jones, 409 U.S. 91 (1972) (per curiam) (invalidating unappor¬ tioned gross receipts tax levied on out-ofstate sales of locally produced educational materials, where state refused to re-label the tax as a levy on local services and thus deliberately failed to invoke rule allowing such a levy). But see § 6-15, supra. 25. 304 U.S. 307, 311 (1938). Justice Roberts’ opinion was replete with the ver¬ biage of the direct-indirect distinction. The decision turned, in large part, upon his finding the tax to be levied "upon” gross receipts from commerce after an examina¬ tion of the text and title of the act. As the

quoted language makes manifest, Justice Roberts assumed that the state of origin and the state of market must be treated equally: either both could tax or neither could. It is not clear, however, that such parallel treatment is constitutionally man¬ dated. See International Harvester Co. v. Wisconsin Dept, of Taxation, 322 U.S. 340, 361 (1944) (Rutledge, J., concurring) (argu¬ ing that the state of sale, but not the state of origin, should be allowed to tax receipts from an interstate transaction).

1. See e.g., General Motors Corp. v. Washington, 377 U.S. 436, 440 (1964), dis¬ § 6-20 Illinois Cent. R. cussed in § 6-19, supra; Co. v. Minnesota, 309 U.S. 157 (1940). Cf. Meyer v. Wells Fargo & Co., 223 U.S. 298 (1912) (tax not fairly apportioned). Note that apportionment may not be a sufficient cure to the special problem of strategic exploitation. See § 6-19, supra, note 18. 2. See Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450 (1959).

466

LIMITS ON STATE AND

LOCAL

POWER

Ch. 6

For example, in General Motors Corp. u. District of Columbia ,3 the Court construed a District of Columbia net income tax statute to require use of a widely-adopted three factor apportionment formula rather than a single-factor method. The Court argued that its statuto¬ ry interpretation conformed with constitutional policy: 'The use of an apportionment formula based wholly on the sales factor, in the context of general use of the three-factor approach [giving equal weight to the geographical distribution of plant, payroll, and sales], will ordinarily result in multiple taxation of corporate net income; for the States in which the property and payroll of the corporation are located will allocate to themselves 67% of the corporation’s income, whereas the jurisdictions in which the sales are made will allocate 100% of the income to themselves.” 4 The Court further suggested in dictum that apportionment formulas significantly varying from those usually em¬ ployed would be subjected to closer jurisdictional scrutiny than usual. Yet in Moorman Manufacturing Company v. Bair,5 the Court up¬ held Iowa’s single-factor sales formula. The Court reiterated that such a formula is presumptively valid, and the record did not reveal either arbitrary results or duplicative taxation. Absolute uniformity in ap¬ portioning methods may, of course, be required by Congress, but it is not mandated

by the Constitution.6

Related to the problem of how to apportion the income of a multistate company is the question of what income to apportion: is sales or dividend income from the company’s subsidiaries to be included on the theory of a unitary business enterprise? The burden of showing that out-of-state corporate departments or subsidiaries are discrete enterprises rather than parts of a unitary business rests on the compa¬ ny seeking to avoid the tax. In Exxon Corporation v. Wisconsin Department of Revenue,1 a unanimous Court concluded that Exxon had not carried this burden, and therefore upheld Wisconsin’s application of its apportionment formula to Exxon’s total income, even though only one of the company’s three functional departments was located in the state. A company’s internal accounting methods, the Court declared, are not binding on a state’s tax policy.8 The commerce clause can indulge an administrative presumption that affiliated or subsidiary corporations engaged in the same line of business are unitary enter¬ prises.9 The prerequisite to a constitutionally acceptable finding of unitary business need not be a flow of goods; a flow of value, such as improved financing opportunities or technical, personnel, or logistical assistance may suffice.10 "One must look principally at the underlying activity [of the out-of-state business], not at the form of investment [by the in-state 3. 380 U.S. 553 (1965). 4. Id. at 559-60. 5. 437 U.S. 267 (1978). 6. Id. at 280. 7. 447 U.S. 207 (1980). 8. Id. at 221.

9. Container Corporation of America v. Franchise Tax Board, 463 U.S. 159, 178 (1983). 10. See id. at 179-80. Evidence of cen¬ tralized management and functional inte¬ gration may also be sufficient. See Mobil Oil Company v. Commissioner of Taxes, 445 U.S. 425, 438 (1980).

§ 6-20

LIMITS

ON STATE

AND

LOCAL

POWER

467

company], to determine the propriety of apportionability.” 11 The rea¬ sons for allocation to a single situs that often dictate the result in cases of property taxation carry little force in the context of income taxa¬ tion,12 where the Court has been indulgent toward unitary business apportionment in the absence of evidence of actual multiple taxation of foreign source income.13 Although the Court does not usually inquire into the effects of the interaction of different states’ apportioned taxes, the Court has devel¬ oped three rules defining the effect of apportioned taxes on the validity of other states’ unapportioned taxes in a series of cases dealing with state taxes imposed on instrumentalities (interstate carriers and their equipment — trains, airplanes, ships,14 and the like) of interstate com¬ merce. First, any state may levy an adequately apportioned property tax on those interstate instrumentalities with which it has sufficient con¬ tacts. In Braniff Airways, Inc. v. Nebraska State Board of Equalization and Assessment , the Supreme Court sustained a contested tax, observ¬ ing that eighteen stops per day by Braniff s aircraft was sufficiently "regular contact”.15 In Braniff the apportionment method was based on a three-factor formula; but the Supreme Court has also approved single-factor formulas which determined the tax base from a proportion given by a mileage ratio, 16 or from a calculation of the value of the average number of instrumentalities within the taxing state at any time.17 Second, any state in which a corporation is domiciled may tax at full value that corporation’s interstate instrumentalities, but only so long as no showing is made that any of the taxed instrumentalities 11. Mobil Oil, 445 U.S. at 440. 12. Mobil Oil, 445 U.S. at 445; Exxon, 447 U.S. at 229. 13. The due process clause, however, imposes some limits on state power to tax dividend income derived from out-of-state subsidiaries. See Asarco, Inc. v. Idaho State Tax Commission, 458 U.S. 307 (1982), and F. W. Woolworth v. Taxation & Reve¬ nue Department, 458 U.S. 354 (1982), dis¬ cussed in § 6-17, supra. 14. In the area of maritime transporta¬ tion, the Supreme Court had traditionally dealt with the problem of cumulatively burdensome taxation through the applica¬ tion of the "home port” doctrine, which prohibited any state except the state of domicile (the "home port”) from taxing ships involved in interstate or foreign navi¬ gation. See, e.g., Hays v. The Pacific Mail Steamship Co., 58 U.S. (17 How.) 596 (1855). However, the Court has more re¬ cently limited the reach of the "home port” doctrine to ships involved in oceanic navi¬ gation, permitting nondomiciliary states to levy apportioned taxes on ships plying in¬ land waterways, in effect bringing the cases involving vessels on inland water

routes into line with cases involving carri¬ ers by rail and air. See Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169 (1949); Standard Oil Co. v. Peck, 342 U.S. 382 (1952). 15. 347 U.S. 590, 600-01 (1954). 16. See Pullman’s Palace-Car Co. v. Pennsylvania, 141 U.S. 18 (1891) (tax on railroad rolling stock calculated by refer¬ ence to the ratio of the number of miles of railroad track over which Pullman’s cars ran within the taxing state to the total number of miles of track traveled through¬ out the country). But cf. Norfolk & West¬ ern Ry. Co. v. Missouri State Tax Commis¬ sion, 390 U.S. 317, 325 (1968) (mileage ratio er). shown to be arbitrary as applied to taxpay¬

17. See Johnson Oil Refining Co. v. Ok¬ lahoma, 290 U.S. 158 (1933) (dictum) (rail¬ road rolling stock). A state may collect an apportioned ad valorem property tax on the intangible and tangible property of in¬ terstate transporters. See, e.g., Nashville, Chattanooga & St. Louis Ry. v. Browning, 310 U.S. 362 (1940); Treichler v. Wiscon¬ sin, 338 U.S. 251 (1949).

468

LIMITS

ON STATE

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POWER

Ch. 6

have an established tax situs in any other state. Thus, the Supreme Court held in Northwest Airlines v. Minnesota that Minnesota could constitutionally collect a full value property tax on the entire fleet of airplanes operated interstate and internationally by a Minnesota

corpo¬

ration with its principal business headquarters in that state: "It is not shown here that a defined part of the domiciliary corpus has acquired a taxing situs, elsewhere.” 18 Third, if a showing is made that any of the taxed instrumentalities have an established tax situs in any other state, the domiciliary state may validly tax those instrumentalities only on an apportioned basis. ...

For example, in Central Greyhound Lines , Inc. v. Mealey ,19 the Court ruled that New York could not levy an unapportioned gross receipts tax on receipts collected by a New York corporation operating a bus line which had its points of departure and arrival within New York: nearly 43% of the mileage traveled between the points of departure and arrival lay in New Jersey and Pennsylvania, and Pennsylvania collect¬ ed an apportioned gross receipts tax from the bus company for operat¬ ing part of the route within that state.20 § 6-21.

State Regulation

of Foreign

Commerce

Article I, § 8, grants Congress the authority "to regulate Com¬ merce with foreign Nations.” This clause has been construed as all but exclusive: "It is an essential attribute of the power that it is . . . plenary . . . [and that] its exercise may not be limited, qualified or impeded to any extent by state action.” 1 "Foreign commerce” has been defined broadly: it concludes "intercourse, navigation, and not traffic alone.” 2 Thus, congressional authority embraces not only trade with foreign nations, but also the regulation of shipments on the high seas, even where the ports of embarkation and destination are in the same American state. As was the case with federal control of interstate commerce, the Supreme Court, in the face of congressional silence, has allowed only such state action as seems consistent with the nationalizing policies perceived to underlie the congressional power delegated in the com¬ merce clause itself. Thus, in Cooley v. Board of Wardens of the Port of Philadelphia ,3 the Court allowed state regulation even of some aspects of in-port piloting and navigation of ships "in” foreign commerce. In 18. 322 U.S. 292, 295 (1944). See Pow¬ ell, "Northwest Airlines v. Minnesota: State Taxation of Airplanes — Herein Also of Ships and Sealing Wax and Railroad Cars,” 57 Harv.L.Rev. 1097 (1944). 19. 334 U.S. 653 (1948). 20. For an argument that Pennsylvania and New Jersey should not have been al¬ lowed thus to exploit their strategic loca¬ tion and that New York should therefore have been permitted to levy its tax without apportionment, see Brown in § 6-1, supra, note 1, at 231-32. See also Central Rail¬ road Co. v. Pennsylvania, 370 U.S. 607 (1962) (taxpayer must show not merely

that some determinable number of its taxed railroad cars were absent from the taxing state for part of the year, but that another state has actually acquired a tax situs over the cars).

1. Board of Trustees of the University of Illinois v. United States, 289 U.S. 48, 56 (1933). § 6-21 2. Lord v. Steamship Otto) 541, 544 (1881).

Co., 102 U.S. (12

3. 53 U.S. (12 How.) 299 (1851), dis¬ cussed in § 6-4, supra.

LIMITS

ON STATE

AND

LOCAL

469

POWER

§ 6-22

cases involving foreign commerce, however, the judicial interest-balanc¬ ing which lies behind a determination under Cooley is strongly affected by the inherently national character of most regulation of external affairs. If state action touching foreign commerce is to be allowed, it must be shown not to affect national concerns to any significant degree, a far more difficult task than in the case of interstate commerce. For example, in Bob-Lo Excursion Co. v. Michigan ,4 the Court approved the application of a state civil rights law 5 to excursion boat traffic between Detroit and a Canadian island, but only after concluding that the location and population of the island caused the excursion business to be insulated "'from all the commercial or social intercourse or traffic with the people of another country usually characteristic of foreign commerce,” so that "no detraction whatever from [Canada’s] sovereign¬ ty [and hence no interference with United States foreign policy] is implied by saying that the business itself is economically and socially an island of local Detroit business, although so largely carried on in Canadian waters.” 6 A distinction must be drawn between state regulation of foreign commerce, and state participation in foreign commerce. The former activity is tightly proscribed by the negative implications of what might be called the foreign commerce clause. Thus, a state or local govern¬ ment that opposed the regime of apartheid in the Union of South Africa could not, absent congressional authorization, enact a measure denying South African companies the privilege of doing business within its jurisdiction; nor could a state or locality forbid its citizens and resident corporations from investing in or trading with multinational corpora¬ tions which have affiliates or subsidiaries in South Africa.7 But under the Supreme Court’s market participant exception to the commerce clause,8 a state would be free to pass laws forbidding investment of the state’s pension funds in companies that do business with South Africa, or rules requiring that purchases of goods and services by and for the state government be made only from companies that have divested themselves of South African commercial involvement.9 § 6-22.

State Taxation

of Foreign

Commerce

Limits on state authority to tax foreign commerce

are implicit in

the commerce clause’s grant of congressional power to regulate foreign commerce.1 State taxation is also limited explicitly by article I, § 10, 4. 333 U.S. 28 (1948). 5. The Michigan law prohibited racial discrimination; no statute or treaty of ei¬ ther the United States or Canada conflict¬ ed with it.

. at St d ei 0 10 rth pa -A ti 0, An 44 9e9 th . a. No nfr i by

L. , b. 25 Pu 6-ed t mp§ ee 6, pr 198 See be of

8. See, e.g., Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976); Reeves, Inc. v.

6.

7. See Zschernig v. Miller, 389 U.S. 429 (1968) (striking down an Oregon law which barred probate courts from awarding prop¬ erty to citizens of communist countries), discussed in § 4-5, supra.

§ 6-11, supra.

t t 8 no Ac 10

6. 333 U.S. at 36.

Stake, 447 U.S. 429 (1980); White v. Mas¬ sachusetts Council of Construction Employ¬ ers, Inc., 460 U.S. 204 (1983), discussed in

1. Article I, § 8.

§ 6-22

st ch

Su

470

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

which prohibits the states from imposing "any duty of tonnage” with¬ out congressional consent. This proscription embraces any exaction, however measured, "for the privilege of arriving and departing from a port of the United States.” 2 But the clause does not bar state or local exactions, even at a profit, for services actually provided for an embark¬ ing or arriving vessel, including charges for pilotage, towing, stevedor¬ ing, wharfage, or stowing.3 A different analysis obtains under the commerce clause when a state seeks to tax the instrumentalities of foreign commerce. In considering the application of a California ad valorem tax to an inter¬ national shipping company’s cargo containers in Japan Line , Ltd. v. County of Los Angeles , the Court noted that there is no authoritative tribunal to adjudicate international multiple taxation claims, and that foreign states may be prompted by such duplicative taxes to retaliate against American commerce.4 Therefore, two factors beyond those relevant to interstate commerce must be evaluated: (1) the enhanced risk of multiple taxation by foreign sovereigns, and (2) the possible impairment of federal uniformity in this sensitive area so intimately connected with foreign relations.5 The application of the California tax to Japan Line’s containers realized both fears: the containers were in fact taxed in Japan and California’s levy therefore constituted double taxation; and the California tax appeared to undermine the uniform national policy established by the Customs Convention on Containers, which both Japan and the United States had signed.6 The analysis is less clear-cut when the issue is not a tax on services or property associated with foreign trade, but taxation of foreign income.7 Even the Supreme Court’s heightened concern for interna¬ tional commerce can sometimes give way to the Court’s sympathy for state taxing authority. Thus, in Container Corporation of America v. Franchise Tax Board f the commerce clause proved to be no barrier to California’s application of the unitary business principle to tax the income of a domestic corporation’s foreign subsidiaries. Container Corporation’s subsidiaries were each taxed on all their income by the foreign jurisdictions in which they were located, under the internation¬ ally-accepted "arm’s length” formula, which assumes that corporations deal with their foreign affiliates and subsidiaries as independent enti¬ ties. California thus subjected the plaintiff to double taxation by attributing a portion of the subsidiaries’ income to the domestic corpo¬ ration within its jurisdiction. And the Court conceded that "our own Federal Government, to the degree it has spoken, seems to prefer the 2. Cannon v. City of New U.S. (20 Wall.) 577 (1874).

Orleans, 87

3. See, e.g., Washington Revenue De¬ partment v. Stevedoring Association, 435 U.S. 734 (1978); Cooley v. Port Wardens, 53 U.S. (12 How.) 299 (1851). 4. 441 U.S. 434, 453-54 (1979).

7. The correct situs for taxation of in¬ come, as opposed to property, is less than obvious. See. e.g., Container Corporation of America v. Franchise Tax Board, 463 U.S. 159, 187-88 (1983); Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 445 (1980). 8. 463 U.S. 159 (1983).

§ 6-23 taxing method

LIMITS

ON STATE

AND

LOCAL

POWER

adopted by the international community

471 to the taxing

method adopted by California.” 9 Yet the California tax was upheld. The Court dispensed with the multiple taxation problem by observing that adoption of an arm’s length formula would not completely eliminate multiple taxation, since each jurisdiction’s formula would still differ in many details.10 As to the possibility that the tax would prevent the United States from "speaking with one voice” on international trade,11 the majority noted that "the Executive Branch has decided not to file an amicus curiae brief in opposition to the state tax” and, in contrast to Japan Line , there was no international treaty or other specific indication of a federal policy mandating identical treatment of foreign income by the states.12 The Court dismissed the possibility of foreign retaliation as unlikely because California’s tax did not create an automatic assymetry: it was levied on domestic corporations, and the same amount of tax could have been levied under another formula by simply increasing the corporate tax rate.13 Thus, the Court’s modern foreign commerce clause cases suggest that judicial wariness of double taxation will remain an important consideration in those cases where the state could be required simply to refrain from taxing the entity in question, such as the ad valorem property tax invalidated in Japan Line. But with respect to income taxes, so long as there is the potential for double taxation under seemingly legitimate alternatives to the taxing scheme in question, the existence of double taxation under that challenged scheme will not be sufficient to invalidate it, despite "serious divergence” with prevailing international and federal tax practice. Until international accounting practice becomes refined to the point of uniformity in each detail, the logic of Container Corporation will in most cases diminish the bete noire of multiple taxation to the status of something that goes bump in the night. § 6-23. Tax Immunity Under the Import-Export Clause State power to tax foreign commerce is also limited by article I, § 10, which declares that "[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws.” The clause has been construed as an absolute proscription: once an object or activity is shown to fall within its compass, taxes on that object or 9. Id. at 187. 10. Id. at 192. But, as the dissent ar¬ gued, the vice of double taxation inheres in the difference between arm’s length and unitary apportionment, and the unitary system will always favor, as it did in this case, the jurisdiction where wages, proper¬ ty values, and sales prices are higher. For example, under the arm’s length method over 27% of the plaintiffs income was earned in Latin America, but the relatively depressed economic conditions in that re¬ gion (which constituted attractive business

economies) made the corresponding appor¬ tionment under the California method a mere 13%. senting).

Id. at 199-200 (Powell, J., dis¬

11. 463 U.S. at 193. 12. Id. at 195. 13. The Court further noted that, since Container Corporation was an American company, foreign jurisdictions would have less interest in whether its subsidiaries were subject to double taxation. Id. at 195.

472

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

activity are barred without resort to the type of interest-balancing or functional analysis that characterizes commerce clause litigation gener¬ ally.1 The import-export clause does not apply to interstate commerce,2 but does protect all overseas commerce even if not with a sovereign foreign nation.3 Until recently, the duration of the tax immunity

for imports was

determined by the so-called "original package” doctrine. Under this rule, all state taxes, however nondiscriminatory, were void if imposed on foreign imports before the package in which the goods arrived was broken or before actual sale or use, whichever occurred first.4 It is frequently debatable whether an import has remained in its original seemed confusing and contradictory. In Michelin Tire Corp . v. Wages? however, the Supreme Court finally abandoned the formality of the package doctrine and held that a nondiscriminatory ad valorem state property tax could be applied to imported tires stored in a warehouse in their original packages. 7 The import-export clause, the Court rea¬ soned, prohibits only state or local taxes imposed on imports while they are still in transit; otherwise, so long as they are not singled out for special tax burdens because of their foreign origin, imports may be taxed on the same basis as other property.8

With respect to exports, the doctrinal analogue of the "original package” doctrine is the "final journey” rule. Goods sold to foreign ackage,5 6 buyers become exports when they become irrevocably committed for form or andmost exportation in the sense: "It is the entrance of the articles the literal results into the export stream that marksproduced the startbyof the process of exportathe doctrine often 3 6-20, supra. 1. Compare §§ §6-46-2to 2. Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1868). See also Brown v. Hous¬ ton, 114 U.S. 622 (1885); 3 M. Farrand, The Records of the Federal Convention of 1787, at 328 (1911). 3. Hooven

& Allison Co. v. Evatt, 324

U.S. 652 (1945) (trade with the Philippines, then a colonial possession of the U.S., held within the import tax immunity). 4. See, e.g., Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 441-42 (1827); Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945), overruled, Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984). 5. Compare

Low v. Austin, 80 U.S. (13

Wall.) 29 (1871) (imported wine stored in original case on display pending sale re¬ tained tax-exempt import status), with Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534 (1959) (iron ores stored in original package outside steel manufactur¬ ers’ factory to be fed daily into furnaces lost tax-exempt import status). 6. 423 U.S. 276 (1976). 7. In Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984),Mi a unanimous Court ch el in 4,2 3U .S .a t2 83

relied on Michelin to uphold Ohio’s imposi¬ tion of an ad valorem property tax on imported fibers in their original packages. The Court expressly overruled Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945), which, 40 years earlier, had involved the same parties, the same tax, and the same product. Of course, ad valorem property taxes on imports being stored for subse¬ quent export, while not forbidden as im¬ port duties, might be preempted by Con¬ gress. See Xerox Corp. v. Harris, 459 U.S. 145 (1982). Cf. R. J. Reynolds Tobacco Co. v. Durham County, 107 S.Ct. 499 (1986) (no preemption where imported goods are stored for subsequent domestic use). See § 6-26, infra. Pr th Co wi e a si ll mpl mi e ur es la udme to de t wh gooy ar "i¬ ea in ci c ocd en trr afbinli in fo de o ss n a a r t m in ns lim Csf ids at y i co ei e o . . t i teir n mm gn gsac 29 ersttn”. 11 Se er § 6Th Co utepi 19 0 at . e c ur e rotan , t ha loe ag die " h.e t uni ng do o pad sp as ap o bnrt ct. aar m pl cocka a oekrs th r s r i o ag r e ti i.n. mm ge d ed O e fi U etna-t4ean e so e W v 2 . hi hi 97 cia .S 31 r , 44 und (c1 e (tef ad o, l . d 9 i 0 .” 3 mpe e d) 6) hlad . si s

LIMITS ON STATE

AND

LOCAL

473

POWER

§ 6-23 tion. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing

less will suffice/' 9 Such entry into the stream of exports must be marked at least by delivery to a common carrier for shipment.10 In Empresa Siderurgica v. County of Merced ,n the Court made clear that mere intent to export — or even a fully worked out and partially implemented plan of exportation complete with passage of title— -is inadequate to invoke the import-export clause’s protection. There, the Court sustained the application of a personal property tax to that portion of a dismantled cement plant in California that had yet to be delivered to a common carrier, despite the fact that title to the plant had passed to the foreign buyer and the rest of the plant had already been shipped overseas to Colombia pursuant to a contract which called for the shipment

of the entire plant.12 Although

the Supreme

Court

will undoubtedly be invited to abandon this "final journey” rule in light of the Justices’ specific rejection of the original-package doctrine and their more general abandonment of formalism in state taxation cases,13 it was not so long ago that the Court extolled the simplicity and predictability of the final journey formula,14 and it seems defensible to resist doctrinal formalism when it operates to erode state taxing pow¬ er,15 leaving to Congress the more politically sensitive task of overturn¬ ing those mechanical rules that work to expand state taxing authori¬ ty.16The export tax immunity

embraces

not only the goods themselves

but also the proceeds derived from their sale,17 although the import tax immunity does not apply to the first sale of an already imported item and hence does not extend to a tax on the proceeds of such sale.18 But both immunities extend to documents and activities inextricably linked to the processes of importation or exportation. Thus, in Thames & Mersey Marine Ins. Co. v. United States,19 the Supreme Court over¬ turned a stamp tax applied to policies insuring exports.20 9. Empresa Siderurgica v. Merced, 337 U.S. 154, 156-57 (1949).

13. See Complete Auto Transit v. Brady, 430 U.S. 274 (1977), discussed in

10. The same definition of "export” ap¬ plies to the article I, § 9, provision that

§ 6-15, supra. 14. See Kosydar, 417 U.S. at 71.

"No Tax or Duty shall be laid [by Congress] on Articles exported from any State.” See, e.g., Turpin v. Burgess, 117 U.S. 504, 507 (1886); Spalding & Bros. v. Edwards, 262 U.S. 66, 68 (1923).

15. Both the original-package doctrine rejected in Michelin Tire Corp. v. Wages,

11. 337 U.S. 154 (1949). 12. Accord, Kosydar v. National Cash Register Co., 417 U.S. 62 (1974) (sustaining application of state ad valorem personal property tax to machines built to foreign buyer’s specifications and virtually certain of eventual exportation, because there had not yet been a "physical entry into the stream of exportation”). Compare Rich¬ field Oil Corp. v. State Board of Equaliza¬ tion, 329 U.S. 69 (1946) (immunity from non-discriminatory state sales tax trig¬ gered by completed pumping of oil from seller’s dockside tanks into hold of foreign navy ship). Tribe-Amer.Const.Law

2nd Ed. UTB — 13

423 U.S. 276 (1976), and the privilege-tax doctrine rejected in Complete Auto Transit, supra note 13, had that effect. 16. Compare

§ 6-32, infra.

17. Selliger v. Kentucky, 213 U.S. 200 (1909) (property tax levied on warehouse receipts for whiskey exported to Germany held unconstitutional as a tax on exports). 18. Burke v. Wells, 208 U.S. 14 (1908). See also Waring v. Mobile, 75 U.S. (8 Wall.) 110, 122 (1868). 19. 237 U.S. 19 (1915). This was a fed¬ eral tax, but the same rule would apply in a state case. See note 10, supra. 20. But an act requiring the stamping of all packages of tobacco intended for ex-

474

LIMITS ON STATE

AND

LOCAL

POWER

Ch. 6

The import-export clause also works to immunize from both direct and indirect state taxation the privilege of importing or exporting itself. This is so whether the state attempts to tax that privilege by imposing a fixed-fee license tax upon an exporter or importer 21 or seeks instead to levy a tax upon the gross receipts from exportation.22 However, in William E. Peck & Co., Inc. v. Lowe,23 the Supreme Court upheld the validity of the federal net income tax on profits derived from exporting despite the article I, § 9 requirement that "[n]o Tax or Duty shall be laid [by Congress] on Articles exported from any State.” 24 In so holding, the Court distinguished such a tax from a levy on exporting: "The tax paid and use it as removed

is levied after exportation is completed, after all expenses are losses adjusted, and after the recipient of the income is free to he chooses. Thus what is taxed — the net income — is as far from exportation as are articles intended for export before the

exportation begins.” 25 In that regard, the ban on taxes levied on the act of importing or exporting does not extend to prior preparatory actions. Thus, a state may impose a franchise tax on a railroad, not engaged exclusively in foreign commerce, measured by properly appor¬ tioned gross receipts for its services in handling imports and exports at its marine terminal: "For if the handling of the goods at the port were part of the export process, so would hauling them to and from distant points or perhaps mining them or manufacturing them.” 26 Similarily, a state may exact taxes on the capital a company maintains within its boundaries — despite the fact that the capital is used in part to conduct an import or export business.27 However, such a tax has been held impermissible if the company’s only business within the state is import¬ ing or exporting.28 Finally, the import-export clause by its terms does not extend to those state-imposed fees that "may be absolutely necessary for execut¬ ing [the state’s] inspection Laws.” Inspection charges that are unrea¬ sonable violate the clause,29 but because article I, § 10 also declares that "all such Laws shall be subject to the Revision and Controul of the Congress,” it has been held that the reasonableness of facially nondiscriminatory state inspection fees must be left to Congress, and not to port in order to prevent fraud was upheld in Pace v. Burgess, 92 U.S. 372 (1876). 21. Brown v. Maryland, Wheat.) 419, 447 (1827).

25 U.S. (12

22. Crew Levick Co. v. Pennsylvania, 245 U.S. 292 (1917). See also note 17, supra. 23. 247 U.S. 165 (1918).

on stevedoring as legitimate compensation to state for services offered to interstate commerce conducted within the state). 27. See New 658 (1898).

York v. Roberts, 171 U.S.

28. See Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218 (1933). But see Complete Auto Transit v. Brady, supra note 13.

24. See note 10, supra. 25. 247 U.S. at 175. Compare the dif¬ ferential treatment accorded net income taxes and gross receipts taxes in the con¬ text of interstate commerce. See § 6-19, note 18, supra. 26. Canton Railroad Co. v. Rogan, 340 U.S. 511, 515 (1951). See also Washington Revenue Department v. Stevedoring Asso¬ ciation, 435 U.S. 734 (1978) (upholding tax

29. Cf. Brimmer v. Redman, 138 U.S. 78 (1891) (voiding state statute prohibiting sale of meat killed 100 miles or more from place of sale unless inspected in state). Inspection schemes discriminating finan¬ cially or otherwise against out-of-state products have uniformly been held invalid. See, e.g., Voight v. Wright, 141 U.S. 62 (1891); Hale v. Bimco Trading Co., 306 U.S. 375 (1939).

LIMITS

ON STATE

AND

LOCAL

475

POWER

§ 6-24 the courts, for decision.30 This does not mean, however, that the magnitude of what purports to be an inspection fee is of no concern to

the courts. In determining whether an exaction was "in fact” an inspection fee, the Supreme Court has looked to the size of the fee to see "whether . . . the charge was so excessive as to deprive the act of its character as an inspection law . . . ” 31 The impact of such judicial scrutiny, however, has been limited: even if it is shown that the exaction exceeds the real cost of inspection, "the presumption is that in the orderly conduct of the public business of the State the necessary correction will be made to cause the act to conform to the authority possessed which is to impose a fee solely to recompense the State for the expenses properly incurred in enforcing the authorized inspection.” 32 § 6-24.

The Effect of the Twenty-First Amendment tion of the Commerce Clause

on the Opera¬

The balance of constitutional policy and state interest which ordi¬ narily characterizes commerce clause litigation is altered by the twen¬ ty-first amendment in cases dealing with state alcoholic beverage regulation and taxation. That amendment, as part of its repeal of eighteenth amendment prohibition, declares in § 2 that "[t]he transpor¬ tation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Thus, there has been a constitutional adjustment in the allocation of authority between the federal and state governments in matters touching on alcoholic beverage control: "The Twenty-First Amendment has placed liquor in a category different from that of other articles of commerce. Though the precise amount of power it has left in Congress to regulate liquor under the Commerce Clause has not been marked out by decisions, this much is settled: local, not national, regulation of the liquor traffic is now the general Constitutional policy.” 1 30. See Neilson v. Garza, 17 F.Cas. 1302, 1303 (C.C.E.D.Tex.1876) (No. 10,091)

ment of Revenue v. James Co., 377 U.S. 341 (1964).

Beam

Distilling

(Bradley, J., sitting as Circuit Justice) ("If the law is really an inspection law, the duty must stand until congress shall see fit to alter it”). See the discussion of the political question doctrine, § 3-16, supra. 31. Patapsco Guano Co. v. North Caroli¬ na Board of Agriculture, 171 U.S. 345, 351 (1898) (dictum). The Court thus struck down what purported to be inspection fees even in the context of interstate commerce. See, e.g., id.; Phipps v. Cleveland Rfg. Co., 261 U.S. 449 (1923) (petroleum inspection fees invalidated). 32. Red "C” Oil Mfg. Co. v. Board of Agriculture of North Carolina, 222 U.S. 380, 393-94 (1912). The import-export clause also has been held to limit the appli¬ cation of the twenty-first amendment: states cannot tax foreign liquor until it becomes a part of local commerce.

Depart¬

1. Carter v. Virginia, 321 U.S. 131, 138 (1944) (Black, J., concurring). Federal an¬ 4 6-2producers titrust prosecution § of and dis¬ tributors charged with conspiring to fix liquor prices in Colorado was nonetheless held consistent with the twenty-first amendment in United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 297-99 (1945). And nothing in that amendment tempers congressional authority under the spending power to induce the states to comply with a nationwide minimum drink¬ ing age by threatening to withhold federal highway funds. South Dakota v. Dole, 107 S.Ct. 2793 (1987), discussed in § 5-10, su¬ pra. Congress can thus achieve by way of its spending power much of what the twen¬ ty-first amendment may deny it the ability to achieve through its commerce power.

476

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

The twenty-first amendment does not render the commerce clause completely inapplicable to state restrictions on interstate trade in alcoholic beverages. Earlier judicial statements had seemed to suggest that the commerce clause was entirely irrelevant in situations where the amendment is directly in point.2 But in Craig v. Boren,3 the Supreme Court noted that, while the primary effect of the amendment is to create an exception to the normal operation of the commerce clause, it does not " pro tanto repeal the Commerce Clause, but merely requires that each provision 'be considered in the light of the other, and in the context of the issues at stake in any concrete case.’ ” 4 For example, state power over alcoholic beverages in transit through the regulating state is quite limited, since the twenty-first amendment

is

limited by its very terms to importation of liquor into a state "for delivery or use therein.” While a state may regulate such transit to the extent demonstrably essential to prevent any unlawful diversion of liquor into the state, it may not regulate the shipment in a manner more restrictive of interstate commerce than avoidance of in-state diversion requires.5 In United States v. State Tax Comm, of Mississip¬ pi,6 even the strong possibility of in-state diversion at the point of retail sale was held insufficient to justify a Mississippi attempt, in further¬ ance of its plan to monopolize wholesaling of liquors within the state, to prevent United States military bases located in the state from buying cheaper out-of-state liquor. State power over alcoholic beverages in foreign commerce is simi¬ larly limited. A state may regulate the transportation of foreign-bound liquor in order to prevent in-state diversion, but it may not bar such transit entirely.7 Similarly, a state may not tax imported liquor until it becomes a part of domestic commerce.8 On the other hand, considerable power to control importation is reserved to the states by the twenty-first amendment. The amendment sanctions state action which taxes, regulates, or completely bars the importation of liquor for actual use within the state itself, even where 2. Hostetter v. Idlewild Bon Voyage Li¬ quor Corp., 377 U.S. 324, 330 (1964); Finch v. McKittrick, 305 U.S. 395, 398 (1939). 3. 429 U.S. 190 (1976) (invalidating Ok¬ lahoma law discriminating between men and women as to minimum age for purchasing 3.2% beer). See also note 15, infra. 4. Id. at 206, citing Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 332 (1964). 5. Carter v. Virginia, 321 U.S. 131, 135 (1944). The Court in Carter nonetheless upheld the challenged State regulation of liquor transport under the commerce clause. See also Duckworth v. Arkansas, 314 U.S. 390 (1941), discussed in § 6-7, supra. 6. 412 U.S. 363 (1973). See also Collins v. Yosemite Park & Curry Co., 304 U.S. 518 (1938) (state may not prohibit the importa¬

tion of intoxicating liquor into National Park territory over which it has ceded ex¬ clusive jurisdiction to the United States). The Mississippi case was remanded for fur¬ ther proceedings and ultimately led to a holding that the state mark-up fee on outof-state liquor sold to the military bases was an invalid tax on a federal instrumen¬ tality. 421 U.S. 599, (1975), discussed in § 6-31, infra. 7. See Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 (1964) (airport dealer immune from state control with re¬ spect to liquor acquired for resale exclu¬ sively to airline passengers, with delivery deferred until they arrive at foreign desti¬ nations).

8. See Department of Revenue v. James Beam Distillers, 377 U.S. 341, 345-46 (1964).

§ 6-24

LIMITS

ON STATE

AND

LOCAL

POWER

477

such action would be forbidden as to any other commodity.9 It was long unclear whether the amendment empowered states to regulate importation beyond the degree reasonably necessary to control the level of liquor consumption within the state’s boundaries. Some early cases suggested that the state’s power extends well beyond such control, even authorizing political trade wars among the states.10 Indeed, the amend¬ ment has been held to immunize state regulation of liquor exportation from commerce clause attack, although it speaks only of "importa¬ tion.” 11 As now interpreted by the Supreme Court, however, the amendment does not give blanket power to the states even to regulate or tax importation as such, when the interest implicated by the regula¬ tion is something other than controlling liquor consumption as such. In Bacchus

Imports, Ltd. v. Dias,12 the Supreme

Court held that

Hawaii’s twenty percent excise tax on wholesale liquor sales, which exempted certain locally-produced liquors, violated the commerce clause — despite the twenty-first amendment. "State laws that consti¬ tute mere economic protectionism are . . . not entitled to the same deference as laws enacted to combat

the perceived evils of an un¬

restricted traffic in liquor.” 13 Thus, a purpose requirement 9. See State Board

of Equalization v.

Young’s Market Co., 299 U.S. 59, 62 (1936). See generally Note, "State Control of Alco¬ holic Beverages in Interstate Commerce,” 27 N.Y.U.L.Rev. 127 (1952). 10. See Indianapolis Brewing Co. v. Li¬ quor Control Comm., 305 U.S. 391 (1939) (upholding Michigan prohibition of resi¬ dent beer dealers’ selling beer manufac¬ tured in Indiana because Indiana laws dis¬ criminated against Michigan beer). See also Mahoney v. Joseph Triner Corp., 304 U.S. 401 (1938) (upholding statute barring importation of all non-patented liquors with specified alcoholic contents). See gen¬ erally Crabb, "State Power Over Liquor Under the Twenty-First Amendment,” 12 U.Det.L.J. 11, 28 (1948). 11. Ziffrin, Inc. v. Reeves, 308 U.S. 132 (1939) (upholding Kentucky ban on trans¬ portation of liquor by Indiana corporation into Illinois, where Indiana corporation had been denied Kentucky transportation license). 12. 468 U.S. 263 (1984). Justice White wrote for the Court, in an opinion joined by Chief Justice Burger and Justices Mar¬ shall, Blackmun, and Powell. Justice Ste¬ vens dissented, joined by Justices Rehnquist and O’Connor. Justice Brennan took no part. 13. Id. at 276. In his dissent, Justice Stevens refused to constrict the textually explicit scope of the amendment by adding such a purpose requirement: "This is a totally novel approach to the Twenty-first Amendment. The question is not one of 'deference,’ nor one of 'central purposes,’ the question is whether the provision . . . is an exercise of a power expressly con¬

was im-

ferred upon the States by the Constitu¬ tion.” Id. at 287 (footnote omitted). In finding Hawaii’s statute to be an exercise of expressly conferred power, Justice Ste¬ vens first noted that "Hawaii may surely prohibit the importation of all intoxicating liquors.” Id. at 286. Without elaboration, he then concluded that "clear[ly] ... it may do so without prohibiting the local sale of liquors produced within the state,” id. at 286, and that,, if Hawaii could impose so severe a discrimination on liquor originating out-of-state, "it may also en¬ gage in a less extreme form of discrimina¬ tion ... in the form of ... a tax ex¬ emption, for locally produced alcoholic beverages.”

Id. at 286.

The dissenters found the case "clearly coverfed]” by Young’s Market, supra note 9. 468 U.S. at 282. In that 1936 case, Justice Brandeis, writing for a unanimous Court, opined that any rule requiring states to "let imported liquors compete with the domestic on equal terms” would "involve not a construction of the [Twentyfirst] Amendment, but a rewriting of it.” 299 U.S. at 62. Despite this statement’s venerable source, it should now be rejected as a gratuitous extension of the twentyfirst amendment’s reach. The majority in Bacchus dismissed it as needlessly "broad language . . . written shortly after enact¬ ment of the Amendment,” 468 U.S. at 274 (footnote omitted). Particularly since Jus¬ tice Brandeis found it necessary to add that "exaction of a high license fee for [liquor] importation may . . . serve as an aid for policing the liquor traffic,” 299 U.S. at 63, it would make sense today to confine the Young’s Market holding to those cases in which the less favorable treatment ac-

478

LIMITS ON STATE

AND

LOCAL

POWER

Ch. 6

ported into the amendment: state power over liquor is reduced, and may be subordinated to federal commerce power, when the objective of a state regulation does not comport with the central purpose of the twenty-first amendment — namely, controlling liquor consumption.14 Any broader interpretation of the twenty-first amendment would revive the spectre of balkanized commerce which haunted the framers and motivated the commerce clause itself.15 corded imported liquor by a state is shown to be reasonably necessary to policing li¬ quor traffic, the end Brandeis posited. Ac¬ cord, Comment, 13 Hastings Const.L.Q. 361 (1986) (arguing that § 2 of the twenty-first amendment was meant not to grant plena¬ ry power over liquor to the states but to protect the ability of dry states to enforce statewide prohibition). 14. Thus, in California Liquor Dealers v. Midcal Aluminum, Inc., 445 U.S. 97 (1980), a California statute which institut¬ ed a system of resale price maintenance for wine was invalidated under the Sherman Act. The state’s objectives were "to pro¬ mote temperance and orderly market con¬ ditions.” Id. at 113. Although promoting temperance is a core twenty-first amend¬ ment state power, both the state’s highest court and the Supreme Court "found little correlation between resale price mainte¬

signals by cable television operators” was held, in a unanimous opinion, to "engage[ ] only indirectly” the state’s core twentyfirst amendment power. Id. at 715. Such indirect invocation of that power, the Court held, could not prevail when in di¬ rect conflict with important federal policies regarding retransmissions. Id. at 715-16. The preemption holding of Capital Cities Cable is discussed in § 6-28, infra, note 7. 15. The

Court

has similarly resisted

readings of the twenty-first amendment so broad as to override equal protection limits on state power, see Craig v. Boren, 429 U.S. 190, 204-09 (1976), supra note 3; procedu¬ ral due process limits, see Wisconsin v. Constantineau, 400 U.S. 433, 436 (1971); or establishment clause limits, see Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 122 n. 5 (1982). The one glaring exception to the

nance and temperance.” Id. at 114. The remaining state purpose, that of promoting orderly market conditions, was outside the twenty-first amendment core and was sim¬

Court’s reluctance to permit a state’s twen¬ ty-first amendment power to override inde¬ pendent constitutional constraints has been the doctrine that seemingly liberates states and localities from first amendment

ply "not of the same stature as the goals of the Sherman Act.” Id. at 115. Accord, 324 Liquor Corp. v. Duffy, 107 S.Ct. 720 (1987) (Sherman Act invalidates New York liquor pricing statute requiring retailers to

the commerce

principles when they act to separate sex from alcohol, as through banning nude dancing in bars that serve liquor. See City of Newport v. Iacobucci, 107 S.Ct. 383 (1986); New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981); California v. LaRue, 409 U.S. 109 (1972). This line of decisions has led Justice Stevens to remark

clause, powers reserved by the twenty-first amendment appear to be at their weakest

that the twenty-first amendment now "is toothless except when freedom of speech is

not only when the state’s regulatory pur¬ pose is other than to control liquor con¬ sumption, but also when the regulated sub¬ ject-matter is something other than the importation or distribution of liquor as such. See California Liquor Dealers v. Midcal Aluminum, 445 U.S. at 110. In Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984), for example, the Court struck down an Oklahoma regulation that re¬ quired cable television operators to delete all advertisements for alcoholic beverages contained in the out-of-state signals that they retransmitted within Oklahoma. The

involved.” City of Newport, supra, 107 S.Ct. at 387 (dissenting opinion). No doubt

charge at least 112% of "posted” wholesale price filed with state). When

in conflict with

state’s decision to regulate not "the condi¬ tions under which liquor may be imported or sold within the state” but only "the importation of [certain liquor advertising]

the Court would heed Justice Stevens’ warning and invalidate a state statute or local ordinance banning political argument or religious discussion in bars — and even a law purporting to outlaw raucus jokes or heated controversies wherever liquor is served. The cases from Larue through City of Newport should probably be under¬ stood as standing not for the proposition that the twenty-first amendment overrides the first but for the more modest notion that twenty-first amendment power over alcohol consumption is broad enough to embrace state power to zone strong sexual stimuli away from places where liquor is served.

§ 6-25

LIMITS

ON STATE

§ 6-25. The Effect of Federal emption

AND

LOCAL

POWER

Legislation on State Action:

479 Pre¬

So long as Congress acts within an area delegated to it, the preemption of conflicting state or local action — and the validation of congressionally authorized state or local action 1— flow directly from the substantive source of power of the congressional action coupled with the supremacy clause of article VI; such cases may pose complex questions of statutory construction but raise no controversial issues of power. Those issues are raised, however, when state power is said to be ousted not because of specific conflict with what Congress has done but because of negative implications thought to flow from what Congress might have done. Such ouster of state authority because of "dormant” congressional power of course lies at the heart of most commerce clause litigation. There is a third category of preemption, a hybrid of the other two, within which states are deemed powerless to act because of a vacuum deliberately, even if not expressly, created by federal legisla¬ tion. In such cases, any state or local action, however consistent in detail with relevant federal statutes, is held invalid- — not because of a "dormant” federal power thought to be constitutionally exclusive but rather because the federal legislative scheme announces, or is best understood as implying, a congressional purpose to "occupy the field.” 2 In Gibbons v. Ogden,3 Chief Justice Marshall recognized the statu¬ tory hierarchy of the federal system. He observed that as "to such acts of the State Legislatures as do not transcend their powers, but . . . interfere with, or are contrar}' to the law of Congress, made in pursu¬ ance of the constitution, . . . [i]n every such case, the act of Congress ... is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.” 4 Because the commerce power, "like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution,” 5 Congress has complete authority to define the distribution of federal and state regulatory power over what is conceded to be interstate commerce.6 Courts assess the validity of state regulation in independent constitu¬ tional terms only when Congress has not chosen to act. The question whether federal law preempts state action, cannot be reduced to general formulas, but there does appear to be an overriding reluctance to infer preemption

in ambiguous

cases.7 Such reluctance seems particularly appropriate in light of the Supreme Court’s repeated § 6-25 1. See § 6-33, infra.

Note, "Pre-emption as See generally ial Ground: A New Canon of Preferent a 2. Construction,” 12 Stan.L.Rev. 208 (1959). 3. 22 U.S. (9 Wheat.) 1 (1824). 4. Id. at 209. 5. Id. at 195.

6. Subject, however, to the tenth amendment doctrine of National League of Cities v. Usery, 426 U.S. 833 (1976), dis¬ cussed in § 5-22, supra. 7. The Supreme Court has referred to this reluctance as a presumption that "Congress did not intend to displace state law.” Maryland v. Louisiana, 451 U.S. 725, 746 (1981).

480

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

emphasis on the central role of Congress in protecting the sovereignty of the states.8 In Garcia v. San Antonio Metropolitan Transit Authori¬ ty, 9 which ended the decade-long reign of National League of Cities v. Usery ,10 a closely-divided Supreme Court held that state sovereignty is "more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.” 11 By declining to infer preemption in the face of congressional ambiguity, the Court is not interposing a judicial barrier to Congress’s will in order to protect state sovereignty — an interposition that would violate Garcia — but is instead furthering the spirit of Garcia by requiring that decisions restricting state sovereignty be made in a deliberate manner by Congress, through the explicit exercise of its lawmaking power to that end. The Court evidently envisions that the constitutional procedure for lawmaking will result in a sound balance between state sovereignty and national interests. But to give the statedisplacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states’ interests.12 Although the Supreme Court is therefore properly reluctant to find preemption when Congress has been ambiguous, the question whether federal law in fact preempts state action in any given case necessarily remains largely a matter of statutory construction. In evaluating patterns of statutory interaction, the Supreme Court has declared 8. See §§ 5-7, 5-8, 5-20 through 5-23, supra. 9. 469 U.S. 528 (1985), discussed in § 522, supra. 10. 426 U.S. 833 (1976) (holding that state sovereignty constitutes a judicially enforceable limit on Congress’ commerce power). 11. Garcia, 469 U.S. at 552. 12. Compare Immigration and Natural¬ ization Service v. Chadha, 462 U.S. 919 (1983), discussed in § 4-3, supra. Recent¬ ly, after the Senate and House passed the Anti-Apartheid Act of 1986, Pub. L. No. 99-440, 100 Stat. 1086, but before it was vetoed by the President — a veto subse¬ quently overridden by Congress — the ques¬ tion arose whether the Act might preempt efforts by states and localities to limit their own economic ties to the South Africa re¬ gime, either by divesting public pension funds or by refusing to use, as state or municipal contractors or suppliers, compa¬ nies doing business in South Africa. It seems clear that, since the Act itself estab¬ lishes a national prohibition on certain im¬ ports, exports, and business relationships with the South African government and with private companies in South Africa, but indicates no congressional intent to affect state or local decisions to further sever their own ties with the South Africa regime, no preemption exists. See also § 6-20, supra, at note 9. Although one

Senator had expressed a different view of the matter, he "should not be able to deter states from deciding how to invest or spend their funds. If a few legislators could in¬ sert calculated snippets of legislative histo¬ ry and thereby instruct the courts to regu¬ late the finances of states and cities, they could circumvent the need to articulate that scheme of regulation through the usu¬ al legislative process” — the single, exhaus¬ tively-considered procedure set forth in the Constitution for making laws. Tribe, "Memorandum on the Nonpreemptive Ef¬ fect of the Comprehensive Anti-Apartheid Act of 1986 Upon State and Local Mea¬ sures,” Cong. Rec. S. 12535 (Sept. 15, 1986). Moreover, a holding that the Act preempt¬ ed some sphere of state and local govern¬ mental investment decisions, in a situation where Congress has provided no replace¬ ment mechanism, would leave federal judg¬ es in the difficult and perhaps constitution¬ ally untenable role of having to review portfolios to decide precisely which invest¬ ment strategies are preempted, thus "employ[ing] their own notions of state sover¬ eignty in delineating the boundaries of the preemption.” Id. at 12536. Thus, a find¬ ing of preemption would not only circum¬ vent lawmaking procedures, but would also place the federal judiciary in the role of delineator of the boundaries of state sover¬ eignty — a role the Supreme Court in Gar¬ cia held is properly reserved to Congress.

LIMITS

§ 6-26 generally that whether

ON STATE

AND

LOCAL

POWER

481

challenged state action has been preempted

turns on whether or not it "stands as an obstacle to the accomplish¬ ment and execution of the full purposes and objectives of Congress.” 13 Since congressional purposes can be either substantive or jurisdictional, a state action may be struck down as an invalid interference with the federal design either because it is in actual conflict with the substantive operation of a federal program, or because, whatever its substantive impact, it intrudes upon a field that Congress has validly reserved to the federal sphere.14 § 6-26.

Actual

Conflict Between

Federal

and State Law

State action must give way to federal legislation where a valid "act of Congress fairly interpreted is in actual conflict with the law of the State.” 1 Regulations duly promulgated by a federal agency, pursuant to congressional delegation, have the same preemptive effect.2 Such "actual conflict” is most clearly manifest when the federal and state enactments are directly contradictory on their face. Federal regulation obviously supersedes state regulation where compliance with both is a literal impossibility. For example, it was held in McDermott v. Wiscon¬ sin 3 that Wisconsin could not prosecute retail merchants who sold syrup obtained from other states and labeled in a manner that complied with regulations promulgated under the Federal Food and Drugs Act of 1906, where any compliance with the federal law would have caused the syrup to be mislabeled under the Wisconsin statute.4 Federal law was also given effect over directly conflicting state law in Free v. Bland ,5 where the Supreme Court held that, despite the Texas commu¬ nity property law, United States savings bonds held in co-ownership 13. Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (invalidating state alien registration law in light of federal statute governing same conduct). See Powell, "Current Con¬ flicts Between the Commerce Clause and State Police Power, 1922-27,” 12 Minn.L. Rev. 321, 327 (1928); Savage v. Jones, 225 U.S. 501, 533 (1912). 14. The Supreme Court typically di¬ vides preemption analysis into the three categories of "express preemption,” where Congress has in express terms declared its intention to preclude state regulation in a given area; "implied preemption,” where Congress, through the structure or objec¬ tives of federal law, has impliedly preclud¬ ed state regulation in the area; and "con¬ flict preemption,” where Congress did not necessarily intend preemption of state reg¬ ulation in a given area, but where the particular state law conflicts directly with federal law, or stands as an obstacle to the accomplishment of federal objectives. See, e.g., Pacific Gas & Electric Co. v. State Energy Resources Conservation & Develop¬ ment Comm’n, 461 U.S. 190, 203-04 (1983). These three categorties of preemption are anything but analytically air-tight. For example, even when Congress declares its preemptive intent in express language, de¬

ciding exactly what it meant to preempt often resembles an exercise in implied pre¬ emption analysis. So too, implied preemp¬ tion analysis is inescapably tied to the pre¬ sumption that Congress did not intend to allow state obstructions of federal policy, a central inquiry in conflict preemption analysis.

1. Savage v. Jones, 225 U.S. 501, 533 (1912) (dictum); McDermott v. Wisconsin, 228 U.S. 115, 132 (1913); § 6-26 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963) (dictum). 2. "We have held repeatedly that state laws can be pre-empted by federal regula¬ tions as well as by federal statutes.” Hills¬ borough County, Fla. v. Automated Med. Labs, 471 U.S. 707, 713 (1985). See also § 6-28, infra. And see Fidelity Federal Savings & Loan Ass’n v. de la Cuesta, 458 U.S. 141 (1982). 3. 228 U.S. 115 (1913). 4. The Court also held it irrelevant that the goods in question had been removed from the "original packages” in which they had been shipped into the state. 5. 369 U.S. 663 (1962).

482

LIMITS

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POWER

Ch. 6

form should, upon the death of one co-owner, pass to the surviving co¬ owner in accord with applicable Federal Treasury regulations. So too, in Southland Corp. v. Keating ,6 the Supreme Court held that a Califor¬ nia statute that nullified certain arbitration clauses in contracts and instead submitted disputes to judicial review was preempted by the Federal Arbitration Act, which withdrew the power of the states to require a judicial forum for the resolution of claims which the con¬ tracting parties agreed to resolve by arbitration.7 But state and federal laws need not be contradictory on their face for the latter to supersede the former: there are more subtle forms of actual conflict. Even if state action does not go so far as to prohibit the very acts which the federal government requires (or vice versa), it may nonetheless be struck down if it is in "actual conflict” with narrow objectives that underlie federal enactments.8 Thus, state action must 6. 465 U.S. 1 (1984).

7. An apparent facial conflict may

at

ited to state environmental laws. That Congress could have, but did not, make

times disappear upon closer examination of the federal law. For example, in Midlantic

this reading explicit, see id. at 766 (Rehn¬ quist, J. dissenting), was properly treated as irrelevant by the majority.

Nat’l Bank v. New Jersey Dept, of Env. Protection, 474 U.S. 494 (1986), a state’s environmental laws forbade abandonment of land on which toxic wastes had been dumped, without first decontaminating the site. Section 554 of the federal bankruptcy code, in contrast, expressly permits a trus¬ tee to abandon property if the property is

Of course, when the governing federal law simply cannot be read to leave room for a challenged state measure to operate,

either "burdensome to the estate, or . . . of inconsequential . . . benefit to the es¬ tate.” Despite the apparent facial conflict between the federal and state statutes, a closely divided Supreme Court looked be¬ hind the plain words of the federal statute and found, by examining its legislative his¬ tory, no congressional intent to preempt important state environmental laws. Jus¬ tice Powell’s opinion for the majority, joined by Justices Blackmun, Brennan, Marshall, and Stevens, offered no persua¬ sive response to the dissent’s attack on the majority’s stretching of the legislative his¬ tory. See id. at 763 (Rehnquist, J., joined by Burger, C.J., and White and O’Connor, JJ., dissenting). Yet, since it seems unlike¬ ly that Congress meant to use its bankrupt¬ cy power to alter substantive state law rights and responsibilities as deeply as the

e Th

may abandon property, subject to a variety of generally applicable background rules having nothing to do with bankruptcy as such. Cf. California Federal Savings & Loan Assn. v. Guerra, 107 S.Ct. 683 (1987), discussed in note 8, infra. Had the Court adopted this reading, a somewhat broader holding would have followed — one not lim¬

into Congress’ purposes cannot avoid a conclusion of preemption. Aloha Airlines, Inc. v. Director of of Hawaii, 464 U.S. 7 (1983), the Court unanimously invalidated

Hawaii’s imposition of a gross income tax on airlines operating within the state, be¬ cause the federal Airport and Airway De¬ velopment Act expressly preempted gross receipts taxes. Although Hawaii’s highest court "sought to avoid this direct conflict by looking beyond the language of [the Act] to Congress’s purpose in enacting the stat¬ ute,” and concluded that Congress’s pre¬ emptive intent applied only to per-passenger taxes and not to taxes, such as Hawaii’s, imposed on air carriers rather than on air travellers, the Supreme Court correctly refused to rewrite the unambigu¬ ous preemption clause that Congress had enacted into law. The reluctance to infer preemption cannot be stretched into "a [judicial] license to rewrite [statutory] lan¬ guage.” United States v. Albertini, 472 U.S. 675 (1985).

e nfg ni

r ve

go

¬ t o o or ef i t be ¬ hTo t nf re onit is he uie"dc w at tWd eqng r th orul re l e l s. se rvpewo p a o n ptui very r.coh t se sstiui mtpe mp leecnq e, h tiu a ee he j i plch icta pr ts t ob s amhi wh s or ne te u o p i o ex w qu uerr n biutls n er l tph ow r ws neg r oad ctra e h e u n fo a w yhi o br s l onfded ems it rlt e c s k ea re a e s e e t a cl mo os i ut ch th g,th at h ct in it to su , st c ri d rmf ch me su st vi y e o case hi no o n re proonl p s ve w in l or ee in t era thion aw by , l mi ed s ast rt e er f — er pt lei v m ior s cou te p cts” ag we ct ee quv a i i e g ho fe pr re a th a st or fl th en

Bankrupt’s trustee proposed, the majority’s result seems defensible. See Ohio v. Kovacs, 469 U.S. 274 (1985). Indeed, as a purely linguistic matter, see Midlantic, 106 S.Ct. at 759-62, the federal law may be read as setting only the minimum condi¬ tions for circumstances in which a trustee

inquiry properly Thus, in Taxation Supreme

LIMITS

ON STATE

AND

LOCAL

POWER

483

§ 6-26 ordinarily be invalidated if its effect is to discourage conduct that federal action specifically seeks to encourage. It was on this basis that the Supreme Court, in Nash v. Florida Industrial Commission , invaliforget that preemption is ultimately a mat¬ ter of construing a federal statute; when the statute contains its own preemption or anti-preemption provision, a court that fails to give that provision dispositive effect and instead applies its own preemption criteria is illegitimately disregarding the source of its authority and, regardless of where its preemption inquiry leads it, is pursuing a fundamentally lawless path. Unfortunately, however, only Justice Scalia appears to have followed this basic precept in California Federal Savings & Loan Ass’n v. Guerra, 107 S.Ct. 683 (1987), in which the Court reached what seems to be the correct result by a route that the approach of this footnote would condemn as incorrect. At issue in that case was a California law requiring employers to pro¬ vide leave and reinstatement to employees disabled by pregnancy. Title VII of the 1964 Civil Rights Act, as amended by the Pregnancy Discrimination Act of 1978, bars sex discrimination by covered employ¬ ers, specifies that sex discrimination in¬ cludes discrimination on the basis of preg¬ nancy, and provides that "women affected by pregnancy, childbirth, or related medi¬ cal conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit pro¬ grams, as other persons not so affected but similar in their ability or inability to work.” The Court, in an opinion by Jus¬ tice Marshall joined in all respects by Jus¬ tices Brennan, Blackmun, and O’Connor, and in all but one limited respect by Jus¬ tice Stevens, concluded that Congress in¬ tended the Pregnancy Discrimination Act to be a floor beneath which pregnancy dis¬ ability benefits may not drop and not a ceiling above which they may not rise.

require or permit any refusal to accord federally mandated equal treatment to others similarly situated. No more is needed to decide this case.” 107 S.Ct. at 697. An employer who provides leave and reinstatement for employees disabled by pregnancy in compliance with the chal¬ lenged California law, but then chooses not to provide similar protection for, let us say, men suffering somewhat similar disabili¬ ties, cannot plausibly point to the Califor¬ nia law at issue as "authority” for this latter, internally-motivated choice. Such an employer might or might not be subject to suit under Title VII for discriminating against men. If such a suit could succeed, then California’s requirement, combined with the federal law, could well have the effect of forcing covered employers in Cali¬ fornia to provide disability benefits to per¬ sons other than pregnant women — some¬ thing that neither the federal law alone nor the state law alone would have done. That possibility struck the dissenters (Jus¬ tice White, joined by Chief Justice Rehnquist and Justice Powell) as bizarre. Id. at 702. And so it may have been. Perhaps it follows that the hypothesized employer should not be deemed in violation of feder¬ al or state law. But it does not follow that the employer’s decision to deny men and non-pregnant women the same treatment that the state law mandates for pregnant women whenever the disabilities are simi¬ lar is a decision either mandated or autho¬ rized by the state law in question.

opinion concurring in the Court’s judg¬ ment, most of the Court’s analysis was beside the point if one took seriously the quite strict anti-preemption provision of Title VII, 42 U.S.C. § 2000e-7, which speci¬ fied that Title VII preempts only laws

To be sure, the Court’s central rationale for upholding the California law — that pregnant women need special benefits in the employment context to assure mean¬ ingful equality — appears to undercut this very reading of the California law by at¬ tributing to the state a policy of encourag¬ ing employers not to treat pregnant work¬ ers "the same” way they treat others similarly situated. (See also Justice Ste¬ vens’ concurring opinion, id. at 695-97, drawing an analogy to race-based affirma¬ tive action.) Perhaps the dissenters were reacting more to this rationale than to the mandate of the state law at issue. In any event, it seems wrong to dismiss the differ¬ ence between the Court’s rationale and that of Justice Scalia as resting on an

which "purport[ ] to require or permit the doing of any act which would be an unlaw¬ ful employment practice” under the title. As Justice Scalia rightly said, California’s requirement that employers provide cer¬ tain benefits to employees disabled by

optional "choice between two grounds of statutory construction.” Id. at 696 n. 1 (Stevens, J., concurring). It rests, rather, on a choice between approaching the issue as a genuine one of statutory construction and approaching it as essentially one of

pregnancy

policy.

Because California’s pregnancy disability leave statute and Title VII as amended share the common goal of promoting equal employment opportunity for women, the Court held, the federal law does not pre¬ empt the state law at issue. As Justice Scalia observed in a separate

"does not remotely purport to

.

484

LIMITS

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Ch. 6

dated a state unemployment compensation law insofar as it denied benefits to otherwise eligible applicants solely because they had filed an unfair labor practice charge with the NLRB.9 Similarly, in Xerox Corp. v. County of Harris,10 the Court held that a state tax could not be imposed on goods manufactured in Mexico, shipped to the United States, and held under bond in a customs warehouse awating shipment abroad. For Congress, in enacting a series of laws with a long history, had clearly intended to create duty-free enclaves for such imported goods stored in customs bonded warehouses pending export to foreign markets, so as to encourage merchants to use American ports. Al¬ though a state tax on such goods was not expressly prohibited, its imposition was preempted because it would manifestly discourage and indeed would financially penalize the very acts the federal law was meant to foster.11 So too, in the context of federal pension plans, when Congress strikes a delicate balance among budgetary constraints, the interest in supporting retired employees, and the interest in encouraging employ¬ ees to retire, state action directly diminishing the benefits received by a retiree frustrates Congress’ objectives, and is preempted. Thus, in Hisquierdo v. Hisquierdo,12 while acknowledging that family law is normally a matter for state control, that state action in family matters is preempted only if "positively required by direct [congressional] enact¬ ment,” 13 and that state law "must do 'major damage’ to 'clear and substantial’ federal interests” 14 to be preempted, the Court nonetheless held state community property laws preempted when they require dividing up the interest in railroad retirement income upon divorce of a future beneficiary: the federal statute creating the retirement benefits explicitly stated that the benefits would not be subject to legal attach¬ ment.15 9. 389 U.S. 235, 239 (1967). The state law disqualified for benefits any person unemployed as a result of a labor dispute; in the Nash case itself, the unemployed

co th of th di a e at e rgu ss mm e nt de ouwn wi wh la ty pr me al m th niwe¬ odp nt m ws i n a sh c ot er irt¬ uerr ar , h nd ip h itny a el a ri d u f r person’s discharge had been occasioned by y re un¬ ag or g tt ul iv po e o n her filing of an unfair labor practice c to rcael laach pue li s st k a ,lo a sredi m w r s reen po be to e to taet charge against her employer with the Na¬ w s uc ¬ rs ne ta tti rt h, tional Labor Relations Board. Contrast f c r i i at cr ts bhy pr em ng th an ohb en Ohio Bureau of Employment Services v. di tachno Co edi oaft,ra med iebn t t i n n e grsuor be d ¬ t Hodory, 431 U.S. 471 (1977) (state may to iwftii an ilnro ev t esch ttnsh tead ne in fil choose to maintain neutrality by withhold¬ pr s fr ce th re nt of co g,dr tasw e a a o o m .v c m p w ing unemployment compensation from all mu e M w wi h Hi In ac . rCt a c n c t s s Th of a labor it y t o persons unemployed as a result h q a r u h ( 2 U 4 M e d i1e0 19y 53 .S ol rty hat cC ma . dispute). th , clrdo 81), in din Co be art jo g a ea r y t c n i , e a g 10. 459 U.S. 145 (1982). rl ac ty tht re p r m n u r a i e d s e di e y y tu l e ti ss edach raen up pe la diall st be itar 11. Cf. R.G. Reynolds Tobacco Co. d nv.o my a n v ne y w t th ¬ fridyi upent tdei Durham County, N.C., 107 S.Ct. 499 (1986) ful sio fic rig at us ng vo on lfy n iar hots t r p i d t t a r c s re edan eg at nd o e ha y,bje (preemption holding of Xerox Corp. inap¬ ¬ t ers re eas d c i R J e w a t i n u e e m plicable to imported goods destined for do¬ e l i s s h p St sent an Brnqu jo te r by Ju tviec mestic use only). st e e in d. i d e nnstma fowar no th ic Mc cr ed , it r t, t a j e e C 12. 439 U.S. 572 (1979). Justice Blackby th s start te n oorfi Hi ab ici r st mun wrote the majority opinion. Justice t s e i z of syt qui fa pr icty wh din edde at er mi cr ic g ee Stewart dissented, joined by Justice Relin¬ e e h m e pt "p re do,ly if d Co on la q l io os w n quish n iqtui 43 uirUe. en gre [it by dyi 13. Id. at 581. re S 9 ov ac ssi t cItn vi d . at ] 58 tm n he dis teilny e st 14. Id. 1. en w, se g euas th ma ntim de,d ontly,” "va e p jo er l gu ri s’ic e ty at io ns th

LIMITS

ON STATE

AND

LOCAL

POWER

485

§ 6-26 In Hisquierdo, it was not the delicate congressional balance alone that preempted California’s laws, but Congress’ explicit enactment that the benefits not be subject to attachment. Hisquierdo was thus unlike Edgar v. MITE Corp ,16, where the Court considered a challenge to the Illinois Business Takeover Act — a state law which regulated interstate tender offers, favoring incumbent management in various ways. It was claimed that Congress, by enacting the Williams Act to protect public investors and by striking a delicate balance favoring neither en¬ trenched management nor takeover bidders — a balance not as favorable to management as the Illinois act — had preempted any state regulation upsetting that balance. While the state statute was struck down on commerce clause grounds, the preemption argument attracted only three votes.17 Lacking was hard evidence of congressional intent to preclude state regulation of tender offers; that the state statute upset a congressional balance was not by itself enough. State action may also be preempted as interfering with federal regulation if it encourages conduct whose absence would aid in the effectuation of the federal scheme as interpreted and applied. In City of Burbank v . Lockheed Air Terminal Inc., 18 a city ordinance making it unlawful for jet aircraft to take off from the privately owned city airport between 11 p.m. and 7 a.m. was found to conflict with the purpose of the Federal- Aeronautics Act "to insure the safety of aircraft and the efficient utilization of . . . airspace.” The Court concluded that "control of the timing of takeoffs and landings would severely limit the flexibility of the FAA in controlling air traffic flow. The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded.” 19 So, too, in Jones v. Rath Packing Co.,20 the Court invalidated a California regulation of the labeling of packaged flour sold in the state, after speculating that national flour manufacturers seeking to meet the California standard would probably from

tangentially related enactments

or

Congress’ failure to act.” 453 U.S. at 237 (emphasis in original). 16. 457 U.S. 624 (1982). 17. Justices White and Blackmun and Chief Justice Burger found preemption. Justices Powell and Stevens thought the Williams Act left open the possibility of state regulation of tender offers. The oth¬ er members of the Court did not reach the preemption issue. In CTS Corp. v. Dynam¬ ics Corp., 107 S.Ct. 1637 (1987), a majority of the Court reached a similar preemption issue and distinguished the conclusion of the MITE plurality in the course of uphold¬ ing an Indiana takeover regulation as con¬ sistent with the Williams Act. Joined by Chief Justice Rehnquist and Justices Bren¬ nan, Marshall and O’Connor, Justice Pow¬ ell summarized '’the overriding concern of the MITE plurality [as being] . . . that the Illinois statute considered in that case operated to favor management against of¬ ferors, to the detriment of shareholders. By contrast, the statute now before the

Court protects the independent sharehold¬ er against both of these contending parties. Thus, the act furthers a basic purpose of the Williams Act, 'plac[ing] investors on an footing with the takeover bidder.’ ” equal Id. at 1645-46 (citation omitted). The CTS majority’s concern was that a broader reading of the Williams Act and the com¬ merce clause would cast doubt on a wide range of state corporation law. In a state¬ ment joined by Justice Scalia as well, the CTS majority observed that "[n]o principle of corporation law and practice is more firmly established than a state’s authority to regulate domestic corporations, includ¬ ing the authority to define the voting rights of shareholders.” Id. at 1649. Ed¬ gar v. MITE is discussed from a dormant commerce clause perspective in § 6-12, su¬ 18. 411 U.S. 624 (1973). pra. 19. Id. at 639. 20. 430 U.S. 519 (1977).

486

LIMITS

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Ch. 6

overpack in order to ensure that moisture loss during distribution would not bring the weight of distributed flour packages below the weight stated on their labels, while local manufacturers, who could adjust their packing practices to the region’s humidity conditions, and manufacturers distributing only in states following the federal standard (which permitted reasonable weight variations resulting from loss of moisture during distribution), would probably not be inclined to over¬ pack. The result would be to frustrate a major purpose of the federal Fair Packaging and Labeling Act, the facilitation of value comparisons among similar products, since "consumers throughout the country who attempted to compare the value of identically labeled packages of flour would not be comparing packages which contained identical amounts of flour solids.” 21 A similar sort of conflict with federal objectives may occur when state action undermines a congressional decision in favor of national uniformity of standards — a situation similar in practical effect to that of federal occupation of a field.22 In Ray v. Atlantic Richfield Co.,23 a Washington state law required all tankers in Puget Sound either to have certain safety design features more stringent than federal require¬ ments, or to have a tug escort. The Supreme Court found that, by enacting the Ports and Waterways Safety Act of 1972, "Congress intended [to establish] uniform national standards for design and con¬ struction” of tanker vessels, thus preempting more stringent state design requirements.24 Had the state statute required only the safety designs, it would have been preempted. But, since the statute required either the safety designs or a tug escort, preemption was avoided.25 In reaching this conclusion, the Court first found that the escort require¬ ment, if enacted alone, would have been allowable: such an escort was not a design requirement; it was a local matter — at least until a tugescort rule is promulgated by a federal authority.26 Furthermore, since the state could require all ships to have a tug escort, it could also 21. Id. at 543.

The Court offered no

persuasive response to the dissenters’ ob¬ servations (1) that the majority’s entire line of argument rested on factual supposi¬ tions not fully supported by the record, and (2) that overpacking of flour is hard to regard as unduly threatening to the feder¬ al scheme once the Court has been told that, "should a manufacturer deliberately overpack, for whatever reason, there will be no federal action taken against him even though value comparisons might then 'be misleading.’ ” Id. at 546 (Rehnquist, J., joined by Stewart, J., dissenting in part). The Court was unanimous, however, in its holding that the state’s labeling require¬ ment for packaged bacon, unlike that for flour, was expressly preempted by federal statute. 22. See § 6-27, infra. 23.

435

U.S.

151

(1978).

Justice

White’s plurality opinion was joined in full only by Chief Justice Burger and by Jus¬ tices Stewart and Blackmun.

24. Id. at 163. The Court distinguished its holding in Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960), discussed in § 6-26, infra, in which the federal safety objectives were entirely inde¬ pendent of the municipalities’ health and environmental goals, and in which no fed¬ eral purpose was frustrated by coexisting regimes of regulation. Also, compare Hillsborough County, Fla. v. Automated Labs, Inc., 471 U.S. 707 (1985), where feder¬ al safety regulations governing blood dona¬ tions were held to be merely minimum standards, and where the Court found no federal objective to establish uniform stan¬ dards as such. See also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 99 n. 20 (1983). 25. 435 U.S. at 172-73. 26. The Ports and Waterways Safety Act authorized, but did not require, federal regulation in this area. No federal regula¬ tion had yet been promulgated either re¬ quiring tug escorts for tankers in Puget Sound, or stating that tug escorts are un-

LIMITS

ON STATE

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LOCAL

POWER

487

§ 6-26 require such an escort of a lesser category of ships — namely, those ships that did not meet certain design standards.27 Although the Court noted that its decision might be different if the tug escort requirement were

shown to exert pressure on tanker operators to comply with the state’s design requirements,28 the basic teaching of the Atlantic Richfield decision is that state pressure to act in derogation of a federal statutory scheme is not to be inferred lightly. So too, even when there is no doubt as to the direction in which state law pushes behavior, no such direction is to be lightly condemned as inconsistent with federal policy. Thus, while state action is preempt¬ ed if it specifically frustrates fairly narrow and concrete objectives that underlie federal enactments,29 no such conclusion follows where the most that can be said is that the direction in which state law pushes someone’s actions is in general tension with broad or abstract may be attributed to various federal laws or programs. In wealth Edison Co. v. Montana ,30 for example, Montana coal challenged the state’s coal severance tax, asserting that the

goals that Common¬ producers state tax,

.

necessary. In dictum, the plurality im¬ plied that, if the Secretary of Transporta¬ tion so regulates, the state escort requirement would then be preempted. 435 U.S. at 171-72.

requirement did not violate the commerce clause. Its cost was thought to be slight

27. Justice Stevens, dissenting in part, joined by Justice Powell, agreed that the federal objective of uniformity preempted state design requirements. But they dis¬

demands a uniform national rule.” Id. at 179, citing Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 (1851), discussed in § 64, supra. But see 435 U.S. at 189 (Stevens, J., joined by Powell, J., dissenting in part).

.agreed with the plurality’s holding that the disjunctive nature of Washington’s statute should save it. In their view, the

tug requirement was merely a special pen¬ alty for non-compliance with the state de¬ sign requirements: "Since . . . the tug escort requirement is an inseparable ap¬ pendage to the invalid design requirement, the invalidity of one necessarily infects the other.” Id. at 190.

and, like "a local pilotage requirement, a requirement that a vessel take on a tug escort is not the type of regulation that

c co a a na su tr nc b P on¬ cho rr i p nd gratin r ows re bj eyt hil e g se 4 e k In ectiv. Sh Av ssio n 6 te 2 U.S. 40o6 c. ve ia na ac co la keha bed (1 tio l An Ill w t,d en 98 n ns i n , 3 tor a tr to oirs e an ).ap f uedir¬ a p c d wi not nrsef for ogsnal tiltie ev pl ceor tIh izeAs thane Fe le d eAnv r sde d. e dm e de ia d inh raB tiC Justice Marshall, dissenting in part, b i at 40 iasd nt y lec on 8. tr en gr au joined by Justices Brennan and Rehnquist, d the sFee en aActt teod ma eAsv de ac siat i,o , ke ra ti found the tug escort requirement allowa¬ for hno. clion "c l th FngA th e e e e ble, but saw no reason speculatively to u A th seCo of tit ntra id. atari4n1 re 1 e c u invalidate the state’s design requirements, un rt pe g , st le,” l la an he ord th An a re a a l r y w especially since all tanker operators had te d ti t mi ¬ ex o " i s t a c t nir to ti n dir ra or thus far selected the tug alternative amrather c n o pl eac odb ng wiraf th sfefe co ded nt eo n j d a t t r f e than attempting to comply with the expen¬ e t h Th d pr wa li th s ra Id. at ct41 f e a s 0 e e c iv . l t” ref sive safety design requirements. Id. at st em e F ateco e t — o p o bj te o nt AA re 181. Justice Marshall did not expressly n ecc rfu d — h wistagtre thi ce t . s leiv unt o nt t s are S usea cCt croa wa h uteqsfuiso disagree with the plurality’s finding that in ee ls hiio lnc s riutsna there was a federal goal of uniformity of g oC cnKa rTre v We ¬e l No . o aglo . r at s design, or that the goal was sufficiently 32 (1 o 31 Br th & Ttielr Co. 4ne5s.p U. 98 1, ic 0 or S. 4 , en 1) k ta narrow and explicit to preempt state de¬ ac¬ s t h ( t h o u i sign requirements. Rather, he found that aotn a at ldt p r ti nan fo fa ail ion ro de e-l il on im r the issue was not before the Court: the g vi qu aw ur s o de ag at a re note be as se umsa gu state rule " 'may be viewed as simply a haains ape tshert IC wh larvic ca lyy ¬ t r e s C p e en ed t ed ri r tug-escort requirement since it does not o er to ab th lin in qvue th de ed have the effect of forcing compliance with ci e e an s Ceo. v. Ha s¬ Ga Lo do Ario tio ll u s k an5n7 , 58 i(s1i9 n 45 n); U. the design specifications.’ ” Id. at 181 s 1 S 3 4 8a1n) a,s . (quoting the plurality opinion at 179). a. 28. Id. at 173 n. 25 (plurality opinion). The Court also held that the tug escort

U. 453

488

LIMITS

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Ch. 6

by making coal production more costly, "substantially frustrated na¬ tional energy policies, reflected in several federal statutes, encouraging the production and use of coal.” 31 The Supreme Court acknowledged the broadly-declared congressional purpose of encouraging the use of coal,32 but made it clear that state laws that merely push against the grain of "general expressions of 'national policy’ ” in federal statutes will not, for that reason alone, be deemed to be preempted.33 Similarly, in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n,3 4 after California had instituted a moratorium on construction of new nuclear power plants until a satisfactory technology was found for disposal of radioactive waste, the Supreme Court unanimously rejected the claim that the state’s morato¬ rium "frustrates the Atomic Energy Act’s purpose to develop the commercial use of nuclear power.” 35 The Court concluded that Con¬ gress had not intended to accomplish the promotion of nuclear power "at all costs,” 36 and held that "Congress has left sufficient authority in the states to allow the development of nuclear power to be slowed or even stopped for economic reasons.” 37 No preemptive effect was given 31. Id. at 633. 32. Id. 33. Id. at 634. The Court noted, see id. at 633, that it had rejected a similar argu¬ ment, addressed to the "national policy favoring free competition," in Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 133 (1978). 34. 461 U.S. 190 (1983). The author of this treatise was counsel for California in the Supreme Court. 35. Id. at 220. 36. Id. at 222. 37. Id. While declining to give preemp¬ tive effect to Congress’s general purpose of promoting nuclear power, the majority found that any state nuclear safety regula¬ tion would be preempted, regardless of whether it conflicted with federal objec¬ tives. "[T]he Federal Government has oc¬ cupied the entire field of nuclear safety concerns, except the limited powers ex¬ pressly ceded to the States." Id. at 212. See § 6-25, infra. Justice Blackmun, in a concurrence joined by Justice Stevens, would have limited the preemptive effect of the Atomic Energy Act even further— to the narrow area, within nuclear safety con¬ cerns, of "how a nuclear plant should be constructed and operated to protect against radiation hazards." Id. at 224 (footnote omitted). Compare Hillsborough County, Fla. v. Automated Labs, 471 U.S. 707 (1985), holding that, in spite of "the federal goal of maintaining an adequate supply of plasma,” federal safety regulations gov¬ erning blood donations were "merely mini¬ mum safety standards," not preemptive of stricter local ordinances. Id. at 721.

In Pacific Gas & Electric , in deciding whether the California moratorium on con¬ struction of nuclear plants was an econom¬ ic regulation (not preempted) or a safety regulation (preempted), the Court largely relied on California’s own characterization of its enactment as economic, not safetyrelated. The Court did not attempt to as¬ certain California’s "true” motives — partly because that inquiry is often unsatisfac¬ tory, but also partly because, regardless of California’s motive, it was undisputed that the state could have halted construction of new nuclear plants on economic grounds, in individual proceedings. Id. at 216. This was not a case in which California sought to defend, as motivated by non¬ safety concerns, any regulation of the mode of construction or operation as such. By refusing to be skeptical, the Court showed itself distinctly inhospitable to claims of actual conflict when the allegedly preempting federal objective is as broadlyframed as it was in this case. See also New York Telephone Co. v. New York State Labor Dept., 440 U.S. 519 (1979), holding that a state strike insur¬ ance program that paid unemployment compensation to striking workers (among others) and that made "the struck, rather than all, employers primarily responsible for financing [such] striker benefits,” id. at 535, was not preempted by the National Labor Relations Act even though the state program unquestionably "affects the rela¬ tive strengths of the antagonists in a bar¬ gaining dispute," id. at 546, because New York purported not "to regulate the collec¬ tive bargaining relationships” between em¬ ployees and employers, in which case the program

would have been preempted, "but

§ 6-26

LIMITS ON STATE AND

LOCAL

POWER

489

to an unmistakeable, but general and abstractly-framed, federal pur¬ pose — the promotion of nuclear power — where Congress itself had failed to prohibit (and indeed had in other contexts affirmatively authorized) state actions that could undercut the federal objective by retarding the use of nuclear power. Finally, in the context of the preemptive reach of the Sherman Act against state action, the Supreme Court has been even more reluctant to base preemption solely on a supposed conflict of state law with broadly-framed federal objectives. Thus, the Court has given no weight at all to the pro-competition objective of federal antitrust law except to the extent that Congress manifested that objective in the actual re¬ quirements and prohibitions of its antitrust enactments. In Rice v. Norman Williams Co.38 and Fisher v . Berkeley ,39 the Court held that, although the Sherman Act broadly seeks to encourage price competi¬ tion, "a state statute [or local ordinance] is not pre-empted by the federal antitrust laws simply because it might have an anti-competitive effect.” 40 Instead, a state or local measure "should be struck down on pre-emption grounds 'only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases.’ ” 41 As a corollary of the rule that state action will not lightly be found to be inconsistent with federal policy, not only are broad and abstract federal goals given scant preemptive effect, but even congressional goals that are tightly-stated will be interpreted narrowly when testing traditional forms of state action for conflict with those goals. In Silkwood v. Kerr-McGee Corp.42 traditional state law provided for the possibility of compensatory and punitive damages for tort victims, including victims of radiation injuries from nuclear power plants. When a jury awarded such damages to the victim of radiation injuries at a plant whose safety features were in compliance with federal regulations, the Supreme Court rejected a preemption challenge, even though the Court had shortly before found, in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n,43 that "the Federal Government has occupied the entire field of nuclear safety concerns,” 44 implying that no state could impose its own more stringent safety regulations on nuclear power plants.45 As Justice Blackmun instead to provide an efficient means of insuring employment security in the State.” Id. at 533. 38. 458 U.S. 654 (1982). 39. 106 S.Ct. 1045 (1986). The author of this treatise was counsel for Berkeley in the Supreme Court. 40. Rice, 458 U.S. at 659; Fisher, 106 S.Ct. at 1048. 41. Fisher, 106 S.Ct. at 1048 (quoting Rice, 458 U.S. at 661) (emphasis added). Thus, although a private rent-fixing cartel would violate the Sherman Act, as would a state or local law authorizing such a cartel or enforcing its decisions, a local govern¬ ment’s action to control rents or rent in¬ creases at levels fixed by local government itself did not violate the Act (despite the

unavailability of the Parker v. Brown, 317 U.S. 341 (1943), exception) and hence was not preempted. Fisher, 106 S.Ct. at 1051. A thoughtful assessment of how Fisher fits into the evolving Parker v. Brown jurispru¬ dence appears in Garland, "Antitrust and State Action: Economic Efficiency and the Political Process,” 96 Yale L.J. 486, 499507 (1987). 42. 464 U.S. 238 (1984). 43. 461 U.S. 190 (1983). See the text at notes 34-37, supra. 44. Id. at 212. 45. "[T]he statute does not seek to regu¬ late the construction or operation of a nu¬ clear powerplant. It would clearly be im¬ permissible for California to attempt to do so, [see Northern

States Power v. Minneso-

490

LIMITS

ON STATE

AND

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POWER

Ch. 6

explained in Silkwood , "[w]hatever compensation standard a state imposes ... a [nuclear] licensee remains free to continue operating under federal standards and to pay for the injury that results.” 46 In Ferebee v . Chevron Chemical Co.,47 an analogous case close on the heels of Silkwood , an agricultural worker alleged that Chevron, not¬ withstanding its compliance with Federal labeling laws, had failed to give adequate warning of dangers posed by the insecticide paraquat, which it produced— -a failure that would soon lead to the death of the worker. The court of appeals found that Maryland's "cause of action in strict products liability for failure to warn adequately of a product’s inherently dangerous condition” 48 was not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and ensuing EPA labelling regulations, which provide that no state shall "impose or continue in effect any requirements for labeling ... in addition to or different from those required under this subchapter.” 49 The court, reading narrowly, found that Congress preempted only state labelling requirements more stringent than the federal. Maryland did not re¬ quire more stringent warnings; it merely said that, if more stringent warnings were not used, the defendant may have to pay for the resulting damages.50 This result seems eminently defensible. FIFRA aims at ensuring that the health costs to society from the use of a particular pesticide, with its EPA-approved label, do not exceed "the benefit to society at large from use of the chemical;” 51 it is not meant as "an affirmative subsidization of the pesticide industry,” 52 preventing states from providing for victim compensation. Ferebee was not fol¬ lowed by the Third Circuit in the very similar case of Cipollone v. Liggett Group, Inc.,53 holding that state tort law was preempted to the extent it allowed the estate of a lifetime smoker to sue tobacco compa¬ nies on the theory of inadequate warning. As in Ferebee, Congress expressly preempted any state labelling requirement more stringent than the federal requirement. But, unlike the court in Ferebee, the Third Circuit found that state law allowing such a lawsuit was in actual conflict with the objectives behind federal cigarette warning require¬ ments. The Third Circuit, in reading Congress’ preemption language expansively, apparently found that Congress meant to exempt the tobacco industry from the choice, faced by manufacturers in virtually every other industry, among increasing product safety, increasing warnings, or paying damages to injured consumers. That holding ta, 447 F.2d 1143 (8th Cir. 1971), affd mem., 405 U.S. 1035 (1972),] for such regu¬ lation, even if enacted out of nonsafety concerns, would nevertheless directly con¬ flict with the NRC’s exclusive authority over plant and operation.” 461 U.S. at construction 212. 46. 464 U.S. at 264 (Blackmun, J., joined by Marshall, J., dissenting as to punitive damages only). 47. 736 F.2d 1529 (D.C. Cir. 1984), cert, denied 469 U.S. 1062 (1984). 48. Id. at 1533. 49. Id. at 1540.

50. Id. at 1541. In this sense, the Ma¬ ryland law resembles the disjunctive Washington law not preempted in Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978), which required that tanker operators ei¬ ther comply with safety requirements more stringent than the federal, or use a tug escort in Puget Sound. See the text at notes 23-28, supra. 51. 736 F.2d at 1540. 52. Id. at 1542-43. 53. 789 F.2d 181 (3d Cir. 1986), cert, denied 107 S.Ct. 907 (1987).

§ 6-26

LIMITS

ON STATE

AND

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491

seems hard to square with Silkwood and with the Supreme Court’s admonition that there is an overriding presumption that "Congress did not intend to displace state law.” 54 It was once thought that, when the federal government regulated a given subject, any state law which purported to govern the same area was invalid. It mattered not whether there was an inescapable conflict between the letter or the spirit of the enactments or whether the state law simply duplicated, or went further than, the federal law.55 In Charleston W.C. Ry. v. Varnville Furniture Co ., the Supreme Court spoke in unequivocal terms: "When Congress has taken the particular subject matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.” 56 Over time, however, the Court tempered its undifferentiated hostility to state regulation of matters already regulated by the federal government. Generally speaking, the Court has come to sanction state regulations that supplement federal efforts so long as compliance with the letter or effectuation of the purpose of the federal enactment is not likely to be significantly impeded by the state law.57 Among the most troublesome

illustrations of this relatively toler¬

ant posture toward "supplementary” state regulation is Parker v. Brown,58 a 1943 decision in which the Supreme Court unanimously upheld a complex California plan for marketing that state’s crop of raisins, all but five to ten percent of which were destined for shipment in interstate or foreign commerce. The state program had the unde¬ nied purpose and effect of eliminating competition in the terms of sale of the raisin crop, including price.59 By upholding that program, the Court permitted California, through a scheme in which local raisin producers played a dominant role,60 to control the terms on which "almost all the raisins consumed in the United States, and nearly onehalf of the world crop,” 61 could be purchased. The Court’s rejection of the basic commerce clause attack on the California program62 relied v. Louisiana, 451 U.S.

Continental Air Lines, Inc., 372 U.S. 714,

725, 746 (1981). In contrast, see Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985),

722-24 (1963) (state statute barring dis¬ criminatory hiring upheld); California Federal Sav. & Loan Assn. v. Guerra, 107 S.Ct. 683 (1987) (state statute requiring

54. Maryland

holding that the Wisconsin tort of bad-faith handling of an insurance claim is preempt¬ ed, to the extent that the state would apply it to insurance plans included in a collec¬ tive bargaining agreement, because federal labor laws classify such a claim as a griev¬ ance, and explicitly require resolution un¬ der the grievance procedures specified in the contract — in this case, by arbitration.

55. This was the thrust of Daniel Web¬ ster’s argument in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 8-18 (1824).

56. 237 U.S. 597, 604 (1915). See also Missouri Pacific R. v. Porter, 273 U.S. 341, 346 (1927).

57. See California v. Zook, 336 U.S. 725, 730 (1949) (upholding state prohibition of transportation not licensed by ICC); Colo¬ rado Anti-Discrimination Commission v.

pregnancy disability reinstatement up¬ held); Fort Halifax Packing Co., Inc. v. Coyne, 107 S.Ct. 2211 (1987) (upholding state law requiring a lump sum severance pay benefit to employees thrown out of work by a plant closing; the Federal Em¬ ployment Retirement Income Security Act regulates only benefit plans , and therefore preempts only state regulation of plans , not state requirement of one-time-only ben¬ efits).

58. 317 U.S. 341 (1943).

59. Id. at 359. 60. Id. at 347, 352.

61. Id. at 345. 62. See § 6-8, supra.

492

LIMITS

ON STATE

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Ch. 6

heavily on the Court’s twin perceptions first that the economic distress of the less powerful California raisin producers was too local a problem to be a likely subject of direct congressional solution,63 and second that Congress had in fact pursued the indirect course of authorizing the Secretary of Agriculture either to establish locally-based agricultural stabilization programs under federal authority (something the Secre¬ tary had done for some 20 commodities other than raisins)64 or to cooperate in formulating and funding the operation of similar stabiliza¬ tion programs under state authority (something the Secretary had chosen to do with respect to raisins).65 But for these strong indications that the California program’s effect on interstate commerce was "one which it [had] been the policy of Congress to aid and encourage,” 66 the Court would almost surely have found the state’s action to be in conflict with the commerce clause.67 The same reasoning also explains the Court’s conclusion that the California program was not rendered invalid by the Agricultural Mar¬ keting Act of 1937: 68 a stabilization program adopted under that Act would of course supersede the state’s program,69 but the Secretary had chosen to order no federal program in the case of raisins, and the legislative history of the Act coupled with the Secretary’s other actions made clear that the Act’s policies could be effectuated by a state program of the type California had adopted.70 More complex and controversial 71 was the further holding of Parker that the California program was not invalidated by the Sherman Act,72 since Congress had never intended by that Act to restrain or regulate "state action or official action directed by a state.” 73 Al¬ though this holding might be understood as reflecting a requirement of congressional "clear statement” before federal legislation is construed to reach state programs as well as private conduct,74 the central role played by private producers in both triggering and approving the 63. 317 U.S. at 362-63. 12, supra.

See §§ 6-3, 6-

64. 317 U.S. at 367-68 n. 18.

69. See 317 U.S. at 353. 70. Id. at 354-58.

The Court noted the

65. Id. at 357-58, 365-68.

possibility of a federal-state conflict if the state program ''were to raise [raisin] prices beyond the parity price prescribed by the

66. Id. at 368.

federal act,” but found that this had not occurred. Id. at 355.

Cf. § 6-33, infra.

67. Indeed, the Court as much as con¬ ceded the weakness of its attempt to distin¬ guish Parker, viewed purely as a commerce clause case, from Shafer v. Farmers Grain Co., 268 U.S. 189 (1925). See 317 U.S. at 362-63. Particularly since Parker was first argued the day after Wickard v. Filburn, 317 U.S. Ill (1942), see § 5-5, supra, and was reargued on the same day as Wickard, it seems soundest to construe the case in an atmosphere of substantial defer¬ ence to congressional agricultural policy. 68. That federal statute, which broadly restricted agricultural competition, had it¬ self only recently been upheld in United States v. Rock Royal Co-Operative, Inc., 307 U.S. 533 (1939).

71. Compare, e.g., Posner, "The Proper Relationship Between State Regulation and the Federal Antitrust Laws,” 49 N.Y. U.L.Rev. 693 (1974), with Note, "Of Raisins and Mushrooms: Applying the Parker An¬ titrust Exemption,” 58 Va.L.Rev. 1511 (1972). See also Note, 24 Hast.L.J. 287 (1972); Note, 50 Tex.L.Rev. 474 (1972); Note, 19 Wayne L.Rev. 1245 (1973). 72. 15 U.S.C. §§ 1-7. 73. 317 U.S. at 351. See also Continen¬ tal Ore Co. v. Union Carbide Corp., 370 U.S. 690, 706-707 (1962). 74. See 317 U.S. at 350.

§ 6-26

LIMITS

ON STATE

AND

LOCAL

POWER

493

organization of a marketing scheme under the California program 75 makes it difficult to distinguish the case from one in which the state has merely attempted to authorize private conduct violative of the Sherman Act, something a state clearly cannot do.76 More plausible as an account of Parker is the theory that, at least where Congress has arguably implied an anti-trust exemption by establishing a federal policy with similar effects,77 the purposes of the Sherman Act do not require its extension to situations in which (1) the premises of a competitive market

fail to hold,78 and (2) the state has carefully re-

75. See id. at 346-47. 76. much, Co. v. 344-47

The Parker Court conceded as id. at 351, citing Northern Securities United States, 193 U.S. 197, 332, (1904), but stressed that it is the

State of California, "acting through the Commission, which adopts the program and which enforces it with penal sanctions, in the execution of a governmental policy.” 317 U.S. at 352. Some lower courts had extended Parker to actions by regulated utilities where state regulatory commis¬ sions had merely passively acquiesced in the challenged practices, see, e.g., Wash¬ ington Gas Light Co. v. Virginia Electric & Power Co., 438 F.2d 248 (4th Cir. 1971), criticized in Kintner & Kaufman, "The State Action Anti-trust Immunity De¬ fense,” 23 Am.U.L.Rev. 527, 530-33 (1974). But the Supreme Court then held that the Parker defense could apply only where an¬ ticompetitive action is required by direc¬ tion of the State: "It is not enough that . . . anticompetitive conduct is 'prompt¬ ed’ by state action; rather, anticompetitive activities must be compelled by direction of the state acting as a sovereign.” Goldfarb v. Virginia State Bar, 421 U.S. 773, 791 (1975) (emphasis added) (holding violative of the Sherman Act a minimum fee sched¬ ule for lawyers published by the Fairfax County Bar Association and enforced by the Virginia State Bar). Contrast Bates v. State Bar of Arizona, 433 U.S. 350, 360-63 & nn. 11-12 (1977) (state supreme court’s ban on price advertising by lawyers held not subject to Sherman Act attack, because the ban "reflected] a clear articulation of the State’s policy” and was "subject to pointed re-examination by the policymaker . . . in enforcement proceedings”), dis¬ cussed in § 12-15, infra. Cf. Cantor v. Detroit Edison Co., 428 U.S. 579 (1976); New Motor Vehicle Board of Cal. v. Orrin W. Fox Co., 439 U.S. 96 (1978).

State itself.” Id. at 105 (citation omitted). The California statute at issue in Midcal established a state wine-pricing scheme which, unless immune, constituted a viola¬ tion of the Sherman Act. The wine-pricing scheme satisfied the first of the two tests for immunity: the state clearly established it. But it failed the second test: the state "simply . . . enforces the prices estab¬ lished by private parties,” without review¬ ing the reasonableness of the prices. Id. at 105. Neither does the state "monitor mar¬ ket conditions or engage in any 'pointed reexamination’ of the program.” Id. at 106. Since the scheme did not meet the standards for Parker v. Brown immunity, the statute enacting the scheme was pre¬ empted by the Sherman Act. Accord, 324 Liquor Corp. v. Duffy, 107 S.Ct. 720 (1987). More recently, the Court made clear that, while state compulsion of anticompe¬ titive behavior "often is the best evidence that the State has a clearly articulated and affirmatively expressed policy to displace competition,” Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 62 (1985), the first prong of the Midcal test, requiring the existence of such a policy, may be satisfied absent compul¬ sion "when other evidence conclusively shows that a State intends to adopt a per¬ missive policy” toward anticompetitive pri¬ vate conduct. Id. The Court found such evidence in Southern Motor Carriers, where the state had clearly delegated sub¬ stantial power to "rate bureaus” — com¬ posed of state-regulated private competi¬ tors — to propose and effectively fix prices for common carriers. Id. at 50-52. Be¬ cause state regulatory commissions "ac¬ tively supervise the collective ratemaking activities” at issue, id. at 62, Midcal’s sec¬ ond prong was satisfied as well.

Based on those cases, the Court in Cal.

77. See P. Areeda, Antitrust Analysis 57 (2d ed. 1974).

Retail Liquor Dealers Ass’n v. Midcal Alu¬ minum, 445 U.S. 97 (1980), see § 6-24, note 14, supra, enunciated "two standards for antitrust immunity under Parker v. Brown. First, the challenged restraint must by

78. This seems the case, e.g., in the area of public utility regulation. For a rare defense of Washington Gas Light Co., supra note 76, in these terms, see Verkuil,

'one clearly articulated and affirmatively expressed as state policy’; second, the poli¬ cy must be 'actively supervised’ by the

"State Action, Due Process and Anti-trust: Reflections on Parker v. Brown,” 75 Colum.L.Rev. 328, 337-39 (1975).

494

LIMITS

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Ch. 6

placed market forces with a regulatory scheme that is procedurally fair both in its openness to all significantly affected interests,79 and in its supervision by a relatively disinterested and adequately accountable public agency.80 Just as the procedural fairness of SEC regulation was thought sufficient to warrant a measure of anti-trust exemption for security exchanges in Silver v. New York Stock Exchange ,81 so too federal deference to a procedurally fair and adequately enforced system of state controls could arguably point to a like result.82 79. This Parker Court argued, perhaps implausibly, that the "prerequisite approv¬ al of the [raisin proration] program upon referendum by a prescribed number of pro¬ ducers is not the imposition by them of their will upon the minority ...” U.S. at 352. Cf. Eubank v. Richmond, U.S. 137 (1912). 80. The

Parker

Court

317 226

stressed that

"[t]he state itself exercises its legislative authority in making the regulation and in prescribing the conditions of its applica¬ tion.” 317 U.S. at 352. But to say that this satisfies the demands of fairness, see also Verkuil, supra note 78, at 345, is to reduce those demands unjustifiably. If a licensing board composed of self-employed optometrists cannot constitutionally disci¬ pline salaried optometrists, Gibson v. Berryhill, 411 U.S. 564 (1973), it is unclear why a program designed by producers without consumer participation can consti¬ tutionally circumvent market forces to raise the prices consumers must pay. 81. 373 U.S. 341, 364 (1963). See also Gordon v. New York Stock Exchange, Inc., 422 U.S. 659 (1975). 82. See Verkuil, supra note 78, at 34749. There has been considerably less def¬ erence to municipalities that instituted an¬ ticompetitive programs, even if procedural¬ ly fair and adequately supervised by the municipality. In Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978), the Supreme Court rejected an interpretation of Parker v. Brown as a general antitrust immunity for all governmental entities, but limited the immunity to " 'official ac¬ tion directed by the state.’ ” Id. at 412, quoting Parker v. Brown, 317 U.S. at 351. This result was further elucidated in Com¬ munity Communications Co. v. Boulder, 455 U.S. 40 (1982), in which the City of Boulder argued that its anticompetitive ac¬ tion should be exempt not because of an inherent municipal exemption (rejected in Lafayette), but because of a derived exemp¬ tion, since the state had empowered the city to act — Colorado had granted Boulder extensive powers of self-government as a home-rule municipality; that is, it was "acting as the State in local matters.” Id. at 53. The Court rejected this argument, holding that the first prong of the Midcal test for Parker v. Brown immunity, requir¬

ing that a state clearly articulate and af¬ firmatively express its anticompetitive pol¬ icy, is not satisfied by a delegation of power which is neutral respecting the municipal action challenged as anticompetitive. On the other hand, the Court deems the first prong met even when the state legislature neither compels , nor explicitly states that it expects, its municipalities to "engage in conduct that would have anticompetitive effect,” Town of Hallie v. City of Eau Claire, 471 U.S. 34, 42 (1985), so long as "[s]uch conduct is a foreseeable result of empowering” municipalities with "broad authority to regulate” in a particular field. Id. The Court thus found the first Midcal prong satisfied where the state "specifical¬ ly authorized [its] cities to provide sewage services and . . . delegated to the cities the express authority to take action that foreseeably will result in anticompetitive effects.” Id. at 43. In Town

of Hallie, the Court went on to

hold Midcal’s second prong entirely inap¬ plicable to municipalities, reasoning that "the active state supervision requirement should not be imposed in [such] cases,” id. at 46, since it is appropriate to "presume, absent a showing to the contrary, that the municipality acts in the public interest . . . [whereas] [a] private party . . . may be presumed to be acting primarily on his or its own behalf.” Id. at 45. Cf. Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48 (1985) (second prong of Midcal test is applicable where price-setting actor is a private combina¬ tion, id. at 57 n.20, but not where actor is a municipality, Town of Hallie, 471 U.S. at 46). The upshot of Town of Hallie was to extend Parker v. Brown immunity to a case in which, but for that immunity, a plausible antitrust claim might have been made against the city’s use of its monopoly power over sewage treatment services to gain monopolies in sewage collection and transportation. See 471 U.S. at 37. The Court subsequently made clear that, absent an actual violation of the antitrust laws by the municipality involved, the is¬ sue of Parker v. Brown immunity need not be reached at all: without a violation, there is no preemption in this area. Fish¬ er v. Berkeley, 475 U.S. 260 (1986) (holding that a municipal rent control ordinance

LIMITS

ON STATE

AND

LOCAL

495

POWER

§ 6-26 In part because it nicely fits a vision of the Sherman

Act as a broad

charter of personal economic liberty,83 this reading of the Parker doctrine has undoubted appeal. But a major difficulty with applying the doctrine as thus reconstructed to the facts of Parker itself is the vast power that the decision delegated to local raisin producers over unrepresented consumers. Consumers in California, at least, could exert influence over the marketing program through the state’s own political processes even if they had no direct voice on the relevant agricultural boards; but all but five to ten percent of the raisins were to be consumed elsewhere, and one may at least question whether the willingness of Congress and the Secretary of Agriculture to tolerate such local control over outsiders adequately accommodates ests.84 The Supreme Court has this sort of accommodation. decision which, like Parker again upheld a California

their inter¬

evidently begun to doubt the adequacy of Ironically, those doubts were signaled by a v. Brown , rejected federal preemption and agricultural regulation: Florida Lime &

Avocado Growers v. Paul.85 In that 1963 decision, a bare majority of the Court upheld a California law which regulated the marketing of avocados sold in California on the basis of oil content in order to protect consumers from being disappointed by edible but unsavory avocados. Federal regulation of Florida avocado production determined marketa¬ bility on the basis of size, weight and picking date, with the same general objective. About six of every one hundred Florida avocados meeting the federal marketing nia’s markets

standards were excluded from Califor¬

by that state regulation.86

under which a local public agency imposes ceilings on rent increases involves neither a conspiracy between the city and private parties to fix prices nor a municipal autho¬ rization or encouragement of private price¬ fixing, and therefore entails no violation of, or conflict with, the Sherman Act). See P. Areeda, Antitrust Analysis 395 (3d ed. 1981). See also Gifford, "The Antitrust State-Action Doctrine After Fisher v. Berkeley,” 39 Vand.L.Rev. 1257 (1986). The author of this treatise argued Berke¬ ley’s position against antitrust preemption in the Supreme Court. Town

of Hallie and Fisher leave some

(limited) room to make antitrust argu¬ ments against particular municipalities or their officials. See, e.g., Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1557-59 (5th Cir. 1984) (en banc) (mayor abdicates decision over cable TV franchise to four firms for reasons unrelated to the merits, allows the four to divide up the city, and requires them to make room for a fifth firm controlled by the mayor’s person¬ al attorney), cert, denied 106 S.Ct. 788 (1986). But the Local Government Anti¬ trust Act of 1984, 15 U.S.C. § 35(a), elimi¬ nates antitrust damage liability for actions

taken "in an official capacity” by any "lo¬ cal government, or official or employee thereof.” The principal avenues of relief remaining against local officials are thus declaratory and injunctive. 83. Id. at 333, 357-58. See also United States v. Topco Associates, Inc., 405 U.S. 596, 610 (1972). 84. See § 6-5, supra. 85. 373 U.S. 132 (1963). 86. An avocado which appears satisfac¬ tory at the time of purchase may fail to ripen properly because it was prematurely picked. The disappointed avocado buyer, whose avocado has "decay[ed] or shrivel[ed] and become rubbery and unpalatable,” 373 U.S. at 137, then turns to other fruits next time he is at the market. The oil-content test is evidently a more accurate gauge of maturity at picking as applied to Califor¬ nia-grown avocados, most of which are of Mexican ancestry, than as applied to avo¬ cados shipped to California from South Florida, most of which are of Guatemalan or hybrid origin and many of which may become mature before their oil content is as high as 8%. See 373 U.S. at 140.

496

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

Despite the apparent history of avocado warfare between California and Florida,87 and despite evidence that an oil content standard which satisfactorily measures the ripeness of California avocados cannot simultaneously measure with equal accuracy the different kinds of avoca¬ dos grown in Florida,88 the Court upheld California’s regulation as consistent with the commerce clause and the supremacy clause, overtly resting decision on the lack of any necessary conflict between the state and federal rules.89 Given the difficulty of perceiving the California regulation as any¬ thing but an obstacle to full enforcement of the federal scheme,90 the result in Florida Lime & Avocado Growers should probably be under¬ stood as deriving from concerns that the Court noted but did not expressly deem dispositive: The Federal marketing rules for Florida avocados had not been drafted "by impartial experts in Washington or even in Florida, but rather by the South Florida Avocado Administrative Committee,” 91 a self-interested committee of Florida growers and han¬ dlers who sought to promote orderly marketing and competition among the South Florida growers in the exercise of their federally delegated authority.92 In the face of what thus appeared to be a delegation of federal power to a local cartel, rather like the delegation to raisin growers the Court had unanimously upheld in 1943, 93 a majority of the Supreme Court could not conclude—despite the lawfulness of the delega¬ tion according to current constitutional doctrine 94— that California’s law interfered with any truly national program of federal regulation. Thus, although there would probably have been no comparable way to limit the territorial impact of the raisin marketing scheme upheld in 87. Id. at 153-54 n. 19. 88. See note 86, supra. 89. 373 U.S. at 141. There was

no

demonstrated impossibility of dual compli¬ ance since "the Florida growers might have avoided [the California] rejection by leaving the fruit on the trees beyond the earliest picking date permitted by the fed¬ eral regulations ...” Id. at i43. Nor was there reason to assume federal occupa¬ tion of the field, see § 6-26, infra, absent such a direct conflict: "The maturity of avocados seems to be an inherently unlike¬ ly candidate for exclusive federal regula¬ tion.” Id. at 143. However comprehensive the federal regulation of picking and processing in Florida, "Congressional regu¬ lation at one end of the stream of com¬ merce does not, ipso facto, oust all state regulation at the other end.” Id. at 145. 90. As the dissent pointed out, id. at 167-69, the regulations at both ends of the "stream of commerce” in avocados were concerned with precisely the same economic interest: that of sellers in not disappointing buyers. Once the Secretary of Agriculture specifically rejected chemical tests (such as California’s) as inadequate to protect the good will of the avocado industry, id. at 139 n. 8, sustaining California’s power to impose

such tests to the disadvantage of Florida competitors became an extraordinary step for the Supreme Court to take, see id. at 171, 175 (White, J., dissenting). 91. 373 U.S. at 150-51. 92. The Court noted that the Secretary of Agriculture had "invariably adopted the Committee’s recommendations for maturity dates, sizes, and weights.” Id. at 151. Thus the majority perceived the federal program as "essentially local in nature” and as "chiefly ... a 'self-help’ program, . . .” Id. at 151 n. 17. 93. Parker (1943).

v. Brown,

317 U.S. 341

94. See § 5-17, supra. Responding to the majority’s emphasis upon the self-inter¬ ested character of the federal avocado regu¬ lations for Florida, the dissenters pointed to cases like Parker v. Brown, 317 U.S. 341 (1943), in insisting that "the delegation to the regulatees of the power to propose regu¬ lations in the first instance” violates no constitutional requirement. However that may be, it need not follow that self-interest¬ ed regulation should have the same preemp¬ tive effect as might regulation that is more broadly based.

LIMITS

ON STATE

AND

LOCAL

POWER

497

§ 6-27 Parker v. Brown,95 the Florida Lime & Avocados Court was able to treat the federal regulatory scheme for avocados as though it were merely the law of Florida, giving it no binding effect upon consumers or

producers who had no opportunity to affect the law’s content. It would be difficult, to say the least, to convert the Florida Lime & Avocados concern about adequacy of participation into coherent preemption doc¬ trine; 96 perhaps the best reading of the case is one that views it as eroding the premises of Parker v. Brown by suggesting a new level of judicial sensitivity to the fairness of schemes that delegate economic power over others. § 6-27. Federal Occupation of the Field Even where state regulation is found not to conflict in its actual operation with the substantive policies underlying federal legislation, it must still be established, if the state regulation is to survive judicial scrutiny, that Congress did not exercise its jurisdictional veto. For if Congress has validly decided to "occupy the field” for the federal government, state regulations will be invalidated no matter how well they comport with substantive federal policies. But federal occupation of a field will not be lightly inferred: "The principle to be derived from [the Supreme Court’s] decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons— either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.” 1 Where such "persuasive reasons” have been found, however, state action has been held to be preempted even prior to the effective date of the federal legislation; even nascent federal occupation of a field suffices to oust the states.2 The less comprehensive is a federal regulatory scheme, the more likely it is that a holding ousting state jurisdiction would create a substantial legal vacuum— and hence,3 the less likely is such a holding.4 For example, in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n,5 it was largely this "anti-vacu¬ um” principle that led the Supreme Court to hold California’s nuclear power plant moratorium not preempted by the Atomic Energy Act. In that case, the Court noted that both safety-related and economic prob¬ lems are associated with disposal of wastes from nuclear power plants: first, the nuclear wastes themselves might endanger human health; 95. 317 U.S. 341 (1943).

tance to find complete federal preemption

96. Numerous federal laws delegate ini¬ tiating or ratifying authority to local groups; to treat all such laws as lacking

comports with the basic conception of fed¬ eral law as interstitial in nature. See

'’supremacy” status under article VI would obviously be unacceptable, and to draw principled distinctions among them would not be an easy task.

York, 233 U.S.

§ 6-27 al Se (1 14 13 U. 37 Pa so 2, ul S. e 2 3 96 11 3)v. Wi No Lo Al , . 1 c . l 3s1co IJ. Bo 1 Re al Em enS 5n a la B v. Sa rd Fe El sin . Rti 74 plo 7r4ad (1 i , e c n 0, y 9 l 94 va me3 ey U 2) 21 eon2s3 (1 ta reto Th Co . ; 3 lur e 8, 94 0 S. n1t rp c¬ 7) ., .

§§ 5-7, 5-8, supra. 2. Erie Railroad v. New 671 (1914).

3. See the discussion of the anti-Madisonian interpretation in § 6-3, supra. 4. See, e.g., Askew v. American Water¬ ways Operators, Inc., 411 U.S. 325, 336-37 (1973). 5. 461 U.S. 190 (1983), also discussed in § 6-24, supra. The author was counsel for California in this case.

498

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

second, insufficiency of storage space for the spent fuel might lead to service shutdowns, '"rendering nuclear energy an unpredictable and uneconomical adventure/’ 6 After finding that Congress, in passing the Atomic Energy Act, "intended that the [Nuclear Regulatory Commis¬ sion] should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant,” 7 but that "[t]he Com¬ mission . . . was not given authority over . . . the economic question whether a particular plant should be built,” 8 the Court concluded that "[i]t is almost inconceivable that Congress would have left a regulatory vacuum; the only reasonable inference is that Congress intended the States to continue to make” judgments about need, reliability, economic consequences of service shutdowns due to waste disposal problems, and other economic

matters.9

Thus, absent a more

explicit congressional

mandate than was present in Pacific Gas & Electric , Congress’ decision not to regulate nationally the economic concerns of power generation was not to be equated with a congressional determination that the states may not themselves enact local regulations addressing those same concerns; such an inference does not follow logically, and would result in an undesirable regulatory vacuum.10 Conversely, where a multiplicity of federal statutes or regulations 11 govern a given field, the pervasiveness of such federal laws will help to sustain a conclusion that Congress intended to exercise exclusive con¬ trol over the subject matter.12 6. Id. at 196-97 (footnotes omitted).

which case "an authoritative federal deter¬ mination that the area is best left unregu¬ lated . . . would have as much pre-emp¬

7. Id. at 205. 8. Id. at 207. 9. Id. at 207-08.

In deciding how

to

classify California’s moratorium on con¬ struction of nuclear power plants, the Court held that, inasmuch as the state was not directly regulating how a plant was constructed or how the radioactive effluent of the plant or of its fuel were to be con¬ trolled, the state’s purpose in enacting its regulation was the touchstone: if the state’s purpose were economic, the regula¬ tion would not be preempted. Id. at 216. The Court distinguished its prior holding in Perez v. Cambell, 402 U.S. 637, 651 (1971) O'that state law the operation of federal the state legislature in some purpose in mind

may not frustrate law simply because passing its law had other than one of

tive force as a decision to regulate.” Arkansas Electric Cooperative Corp. v. Ar¬ kansas Public Serv. Comm’n, 461 U.S. 375, 384 (1983) (finding no such congressional desire) (emphasis in original).

11. The Supreme Court has been "more reluctant to infer pre-emption from the comprehensiveness of regulations than from the comprehensiveness of statutes. [Since] . . . agencies normally deal with problems in far more detail than does Congress[,] [t]o infer pre-emption whenever an agency deals with a problem comprehen¬ sively . . . [would be] virtually tanta¬ mount to saying that whenever a federal agency decides to step into a field, its regu¬ lations will be exclusive.” Hillsborough County, Fla. v. Automated Medical Labora¬ tories, Inc., 471 U.S. 707, 717 (1985). See

frustration”), see 461 U.S. at 216 n. 28, by noting that "[i]n Perez, unlike this case, there was an actual conflict between state

also § 6-28, infra, note 1.

and federal law.” Id. The Court went on to explain that the Perez principle is appo¬ site only in cases of actual conflict, imply¬ ing that the principle is inapposite where the claimed preemption is said to flow from federal occupation of the field. For a discussion of how the Court determined the

12. See, e.g., Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 296 (1971) (state wrongful dis¬ charge actions requiring interpretation of

state’s purpose, see § 6-26, supra, note 37. 10. Congress may in other situations have desired to leave a regulatory gap, in

labor contract’s union security clause pre¬ cluded by pervasiveness of federal regula¬ tion in the area); Castle v. Hayes Freight Lines, Inc., 348 U.S. 61 (1954).

§ 6-27

LIMITS

ON STATE

AND

LOCAL

499

POWER

However, where Congress legislates "in a field which the States have traditionally occupied ... we start with the assumption that the historic police powers of the States [are] not to be [ousted] by the Federal Act unless that was the clear and manifest purpose of Con¬ gress.” 13 Because this test looks to the nature of the subject rather than the character of the federal regulatory scheme, dards upon which it relies closely parallel those that would be the state regulation or taxation were challenged under the

regulated the stan¬ applied if commerce

clause. If, under the Cooley doctrine,14 the activity or interest affected by a challenged state action is regarded as "local,” and if the state action contravenes no other commerce clause requirement, then total federal preemption will not be inferred in the absence of an obvious congressional intent to bar state action over the same subject matter.15 On this basis, the Court ruled in Huron Portland Cement Co. v. City of Detroit 16 that a municipality may enforce its smoke abatement ordi¬ nance against a federally licensed steamship engaged in interstate commerce, even though structural modification of the vessel was re¬ quired to bring it into compliance with the anti-pollution statute.17 Similarly, while federal occupation of the field defined by direct regula-

U.S 218 230 (19 See als Ark o , . 47) an . Ele Coo Cor v. Ark sas ctr p. per ans ic Pub Ser Coamtive 461 U.S 375 a3s77 (198lic in wvh.i tm he’nC,our held .that a, state ch 3), t pub ser com cou asse vic lic ld m rt i s sioov rat juer a r e l u ec r ner isde trice-sceotot t two alfede ¬ ivcte inon hough pinegr ral age weartive per inv in su¬ ol nc ip e per ies suc rat heral See § 6-v2ed infr 8a , eis. c ly a ThevisCionug reah ts onc fter bal.¬ rt che l usi d anc stat reg of util on — "on of the inmgos iemp ulatio of the fuinties tread c t o n io¬ tion ass rtant wit the politionspow f o h e c ally cia r e ted the Sta id. — aga the "pa ] in¬ tes ter brionst nat tent[ inte ,” wit ion fer h ade r¬ al etnc r est m r f u e e h n r a s a c ] o ul s t b y reg ” Anmd see onHtirloll y the stat t ula e oug tiCoou Fla v. s.Aut Medsbloerd¬ . n nty i h oma , Inc Lab 471 U.S te 707 (19c8 al ., or . d 5) hol atorithat in spit of num fede , di es,, ero e r us of bloal reg ng gov col od l ula ern ect tio i i o n g n"sth reg pl of hea n and safe eis p ula v. S ¬a ty asmmaat, and hlitsht r t ant i i m t o oric ari n ers a F e mEa of loca con ly, id. at 7a1l9ly, In letvte c . R l e rnv,. Sta Paci atror Gas & Elec Ene e¬ ” t r f t e gy ric sou ic CorCpo.n & Dev , s3er rce elo 3 s Com 461 U1.vSatio190 (19 the pmCeonu t 8 . m lik ’n, fou the fieln of eco3), reg rt ewi u n n d la d o s to be omniec " 'whi ¬ util tion ofe elec iti ch tric ” occu tra es hav the Sta 461 U.S tesat 206e quo ditio Rice 331 piUe.dS. at , . tin na , ’ 230 Acc the g Coully fou it ap¬ ordt u r n pro . iong se the Ricet pres d pri l ump y , a p aga Thi pre tio is ins te reemp s sum n t p t not, how ainonabs bar to tpiroe ev nem . olut tio For ere,xa in Heis v. Hpis¬n. q m u qui 439 U.Sple,572 581 (1i9e7rdo eve a , . e 9), a stn f¬ ter rdtoh,e Cou ack ron rt now pre aga pl i thge n r e dmge ins sum e ptdia ma fiel ofptfiam law tnor on tter for , mal d onily ly

state control, the Court nonetheless held state community property laws preempted by the federal law at issue in that case. See § 6-26, supra, text at notes 12 to 15. See also McCarty v. McCarty, 453 U.S. 210 (1981), discussed in § 6-26, supra, note 15; Ridgway v. Ridgway, 454 U.S. 46, 54 (1981). 14. See § 6-4, supra. 15. It should be noted, however, that in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959), discussed in § 628, infra, the Supreme Court established a more lenient standard of preemption with regard to state intrusion into activities "ar¬ guably subject” toAct. §§ 7 or 8 of the National Labor Relations 16. 362 U.S. 440 (1960). 17. See the discussion of the implica¬ tions of federal licensing in § 6-26, infra. Cf. Askew v. American Waterways Opera¬ tors, Inc., 411 U.S. 325, 343 (1973) (Florida may create tort liability for damages from oil spills in its territorial waters despite a similar congressional grant of federal mari¬ time and admiralty jurisdiction: regula¬ tion of "sea-to-shore pollution — historically within the reach of the police power of the state — is not silently taken away from the States by the Admiralty Extension Act, which does not purport to supply the exclu¬ sive remedy”). The Court was aided in Huron Portland Cement by a congressional declaration that local responsibility should continue. 362 U.S. at 445-46. For a dis¬ cussion of preemption in the environmen¬ tal field generally, see and Note,the"State Envi¬ ronmental Protection Commerce Clause,” 87 Harv.L.Rev. (1974).

1762, 1769-72

500

LIMITS

ON STATE

AND

LOCAL

POWER

tion of safety designs for nuclear power plants had been made

Ch. 6 clear in

Pacific Gas & Electric Co.,18 the Court in Silkwood v. Kerr-McGee Corp.19 held that state law providing for compensatory and punitive damages for tort victims, including victims of radiation injuries, was outside the occupied field and therefore not preempted. In reaching this conclusion, the Court was clearly influenced by the long tradition of state concern with the compensation of victims of negligently, recklessly, or intentionally inflicted injury.20 On the other hand, if the field is one that is traditionally deemed "national,” the Court is more vigilant in striking down state incursions into subjects that Congress may have reserved to itself. It was not surprising, therefore, that the Court invalidated the state alien regis¬ tration law in Hines v. Davidowitz ; 21 the Court was extremely solici¬ tous of the paramount federal interest in matters germane to foreign affairs.22 Of course, an unambiguous declaration by Congress that it intends to occupy a particular field must be treated as dispositive regardless of the nature of the subject; state action in such a case is invariably preempted, providing Congress has acted constitutionally.23 Rare is the 18. 461 U.S. 190 (1983). See also Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), affd mem. 405 U.S. 1035 (1972) (state law regulating nuclear waste effluents of power plant held preempted).

pressly preempted by congressional provi¬ sion forbidding imposition of "labeling, packaging, or ingredient requirements in addition to, or different than, those made

19. 464 U.S. 238 (1984). See § 6-26, supra, text at notes 42 to 54.

(discussed in § 6-26, infra, note 7). In Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 (1983), federal law expressly preempted

20. 464 U.S. at 251, 253-55. 21. 312 U.S. 52 (1941). 22. Other examples of peculiarly na¬ tional concerns, where one seeking to es¬ tablish preemption faces a lighter burden, have included migratory bird protection, see North Dakota v. United States, 460 U.S. 300, 309 (1983) ("protection of migra¬ tory birds has long been recognized as 'a national interest of very nearly the first magnitude’ ”) (citation omitted); regulation of Indian tribal affairs, see Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U.S. 832, 839 (1982) (construction and financing of Indian educational institu¬ tions is "a sphere . . . heavily regulated by the Federal Government”); control of immigration, see Toll v. Moreno, 458 U.S. 1, 10 (1982) ("recognizing] the preeminent role of the Federal Government with re¬ spect to the regulation of aliens within our borders”); and regulation of labor-manage¬ ment relations, see Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 193 (1978); San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). 23. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 247, 255 (1947). Accord, Jones v. Rath Packing Co., 430 U.S. 519, 536-37 (1977) (state labeling requirement with respect to packaged bacon held ex¬

under” the federal statutes); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984)

"any and all state laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA, id. at 91 n. 6. The issue was whether the New York Human Rights Law "relate[d] to” employee benefit plans within meaning of the federal statute. The Court held that it did. See also Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522-25 (1981); cf. Metropoli¬ tan Life Ins. Co. v. Massachusetts, 471 U.S. 724, (1985) (state law related to employee benefit plans, and thus fell within the sphere of the preemption clause of ERISA, but was not preempted because it also fell within a statutory exception to that pre¬ emption clause); Fort Halifax Packing Co., Inc. v. Coyne, 107 S.Ct. 2211 (1987) (state law mandating one-time, lump-sum sever¬ ance payment to workers unemployed by plant closing is not preempted by ERISA, because that statute regulates only benefit plans , not any and all benefits ); Fidelity Federal Savings & Loan Assoc, v. de la Cuesta, 458 U.S. 141, 147 (1982) (state law restricting operation of due-on-sale clauses in mortgages held preempted by federal regulation that explicity empowered feder¬ al savings and loan associations to include and enforce such clauses, and that stated that such clauses must be governed "exclu¬ sively by Federal law”).

LIMITS ON STATE AND LOCAL POWER 501 8 2 § 6case, however, where Congress makes the judicial task so simple. A 'clearly expressed” congressional purpose will normally be divined only through close analysis of the statute in question as applied in the particular case. For example, in Campbell v. Hussey the Supreme Court held that '"Congress, in legislating concerning the types of tobac¬ co sold at auction, preempted the field and left no room for any supplementary state regulation concerning those same types.” But the Court reached this conclusion only on the basis of a detailed examina¬ tion of the statutory language and history.25

§ 6-28. The Effect of the Presence of Relevant Federal Regulato¬ ry Agencies or of Federal Licensing on Preemption Decisions The fact that Congress created a regulatory agency, or delegated regulatory authority to the Executive, in order to carry out its statutory program, is not by itself determinative of the preemption inquiry. But understanding the implications of the presence of a relevant federal regulatory agency is a prerequisite to the correct application, in partic¬ ular cases, of the principles set forth above. An analysis of the reasons why Congress created a particular regulatory agency, or of the policies pursued by that agency, may reveal that restriction of remedial access to a particular range of agency procedures was substantively motivated, and that the very existence of overlapping state action may therefore frustrate federal policy.1 24. 368 U.S. 297, 301 (1961). 25. See, e.g., id. at 301.

§ 6-28"State Regulation 1. But see Farber, and the Dormant Commerce Clause,” Con¬ stitutional Commentary 395 (1986), for the view that, where Congress has empowered a federal agency to prohibit certain state actions, and where that agency has not done so, there should be a strong presump¬ tion against a judicial finding of implied preemption. Farber argues that the prac¬ tical impediments of inadvertence, lack of expertise, insufficient time, or inability to agree, that prevent Congress from includ¬ ing explicit language in each enactment detailing its preemptive intent, do not war¬ rant a similar approach to agency silence on the subject of preemption. On the con¬ trary, an agency charged with formulating and implementing national policy in a par¬ ticular domain could easily promulgate regulations explicitly barring state actions perceived to threaten that national policy. Thus, an agency’s failure explicitly to bar such state action should be taken as a strong sign that the state action does not threaten national policy and is not im¬ pliedly preempted. The Court seemed to have adopted an analysis of this sort in Hillsborough County v. Automated Medi¬ cal Laboratories, Inc., 471 U.S. 707, 721 (1985): "The FDA

possesses the authority

to promulgate regulations pre-empting lo¬ cal legislation . . . and can do so with relative ease. Moreover, the agency can be expected to monitor . . . the effects on the federal program of local requirements. Thus, since the agency has not suggested that the county ordinances interfere with federal goals, we are reluctant in the ab¬ sence of strong evidence to find a threat to the federal goal.” See Farber at 409. See also City of Milwaukee v. Illinois, 451 U.S. 304, 312-13 (1981); Ray v. ARCO, 435 U.S. 151, 171-73 (1978). It should be noted that, although this theme was present in the unanimous Hillsborough opinion, it was but one of several alternative grounds for decision. More prominent in the Court’s opinion were (1) the FDA’s own explicit statement "that it did not intend its regulations to be exclusive,” 471 U.S. at 714, a statement that the Court deemed "dispositive on the question of implicit in¬ tent to pre-empt unless either the agency’s position is inconsistent with . . . congres¬ sional intent, or subsequent developments reveal a change in that position,” id., and (2) "the presumption that state or local regulation of matters related to health and safety ,” such as the local regulations at issue in the case, are not preempted. Id. at 715. See also California Coastal Comm’n v. Granite Rock Co., 107 S.Ct. 1419 (1987) ("[i]f ... it is the federal intent that Granite Rock conduct its mining un-

LIMITS

502

ON STATE

AND

LOCAL

POWER

Ch. 6

As to labor-management relations, for example, the Supreme Court has recognized that one of the reasons underlying the creation of the National Labor Relations Board (NLRB) was the need "to provide an informed and coherent basis for . . . delicately structuring the bal¬ ance of power among competing forces so as to further the common good.” 2 Accordingly, the Court that a state could not prevent customers to refrain from doing was permitted by Congress and

held in Teamsters Local 20 v . Morton 3 strikers from asking their employer’s business with him, since that practice the NLRB. So too, in Golden State

Transit Corp . v. Los Angeles ,4 the Court held that the National Labor Relations Act (NLRA) preempts a city’s action that conditioned renewal of a taxi franchise on settlement by a certain date of a labor dispute between the drivers and owners: Congress intended to leave the resolu¬ tion of strikes "to be controlled by the free play of economic forces.” 5 Similarly, as to communications regulation, in Farmers Union v. WDAY, Inc.,6 the Supreme Court refused to allow state libel actions against broadcasters for statements made over the air by political candidates, in light of the policy of Congress and the FCC to prevent the radio and television operators from censoring such statements; to allow the libel suits "would either frustrate the underlying purposes for which [the FCC rule] was enacted, or alternatively impose unreasonable burdens

on the parties governed by that legislation.” 7

hindered by any state environmental regu¬ lation, one would expect to find the expres¬ sion of this intent in the[ ] Forest service regulations”). Farber urges that a strong presumption against implied preemption when an agen¬ cy could have, but failed to, expressly pre¬ empt state action makes good structural sense: federal agencies, rather than feder¬ al courts, should be charged with the deci¬ sion whether to preempt state action be¬ cause agencies have superior expertise and information-gathering capabilities, are po¬ litically accountable, and have an express mandate from Congress to make policy. Farber at 408. See, e.g., Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 865-66 (1984) (in which the Court recognized the appropriateness of having agencies make policy choices which Congress either inad¬ vertently did not resolve, or intentionally left to be resolved by an agency). Howev¬ er, as a matter of political reality, agencies may occasionally thwart the will of Con¬ gress rather than advance it. It thus seems appropriate that the Court, rather than any agency, be entrusted with the basic authority to decide how far Congress meant to displace state action. For the judiciary to impose a flat presumption that there should (or should not) be preemption whenever an agency enters a field, without first examining the circumstances of the congressional delegation, would undesir¬ ably alter the federal-state balance. Cf. § 6-25, supra, note 11.

2. Amalgamated Association of Street Employees v. Lockridge, 403 U.S. 274, 286 (1971). 3. 377 U.S. 252 (1964). 4. 106 S.Ct. 1395 (1986). 5. Id. at 1398, quoting Machinists

v.

Wisconsin Employment Relations Comm’n, 427 U.S. 132, 140 (1976). Compare Baker v. General Motors Corp., 106 S.Ct. 3129 (1986) (NLRA does not preempt state stat¬ ute that denied state unemployment bene¬ fits to workers whose union required them to pay strike fund dues, in addition to regular union dues, and who thereby fi¬ nanced a strike causing their own unem¬ ployment, even though the NLRA protects employees’ right to authorize a strike). 6. 360 U.S. 525, 535 (1959). 7. Id. at 535. It is unnecessary to ana¬ lyze either the reasons Congress created an agency, or the policies pursued by that agency, if there are more direct ways of determining whether a state law is pre¬ empted. Thus, in Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984), the Court held that Oklahoma’s ban on advertising alcoholic beverages was preempted to the extent that it prohibits cable television sys¬ tems within the state from retransmitting out-of-state signals that contain such ads, for two reasons: (1) the FCC, acting within its congressionally delegated authority, ’'unambiguously expressed its intent to pre-empt any state . . . regulation of this entire array of signals carried by cable

503 LIMITS ON STATE AND LOCAL POWER 8 2 § 6 The very existence of a federal regulatory agency may signify a congressional determination that some jurisdictionally-definable aspect of the regulated subject matter demands uniform national supervision, and that the judicial grant to the states of jurisdiction to act is, to that degree, legislatively withdrawn. Thus, in San Diego Building Trades

Council v. Garmon ,8 the Supreme

Court ruled that a tort action would not lie under state law for damages reputedly occasioned by a union’s organizational picketing. The Court perceived the unifying theme of its labor decisions as an emphasis on "the fact that Congress has entrusted administration of [national] labor policy . . . to a central¬ ized administrative agency.” 9 In light of that choice, the Court con¬ cluded that "to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purpose,” and therefore held that, "[w]hen activity is arguably subject to section 7 10 or section 8 11 of the [National Labor Relations] Act, the States as well as the federal courts must defer to the exclusive compe¬ tence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” 12 Similarly, in Maryland v. Louisiana ,13 the Court held that Louisiana’s tax on the television systems,” id. at 701; (2) further¬ more, apart from the FCC’s general pre¬ emption of state regulation in this field, the state’s advertising ban was in actual conflict with specific federal regulations that required carriers to retransmit signals in full from nearby out-of-state stations, and that authorized and encouraged carri¬ ers to retransmit signals, but only in full, from distant out-of-state stations. 8. 359 U.S. 236 (1959). 9. Id. at 242. See also Wisconsin Dept, of Industry v. Gould Inc., 475 U.S. 282, (1986), in which the Court, citing Garmon, held that the NLRA preempts a state stat¬ ute that prohibited firms that violated the NLRA three times within a five-year peri¬ od from doing business within the state; the state statute stood as a supplemental sanction to the already-comprehensive scheme of regulation imposed by the NLRB. 10. Section 7 protects "concerted activi¬ ties.” 29 U.S.C. § 157 (1970). 11. Section 8 proscribes "unfair labor practices.” Id. § 158 (Supp. V 1975). 12. 359 U.S. at 245. The Garmon test

85 Harv.L.Rev. 1337 (1972). And see Inter¬ national Longshoremen’s Ass’n, AFL-CIO v. Davis, 106 S.Ct. 1904 (1986). In that case, after a state court awarded a verdict against a union, the union raised a claim that the state court lacked jurisdiction be¬ cause the suit should have been decided by the NLRB. The state’s highest court held that, according to the state’s procedural rules, this preemption defense was waived, since the union did not affirmatively plead it. The Supreme Court reversed, holding that the state’s procedural rules them¬ selves were preempted, to the extent they purported to relieve the state court from deciding on the merits whether its own jurisdiction was preempted in favor of the NLRB. The Court then went on to ex¬ amine the merits, and held that a party asserting preemption in this context "must make an affirmative showing that the ac¬ tivity is arguably subject to the [NLRA],” id. at 1916, and therefore subject to the exclusive jurisdiction of the NLRB, rather than relying on the absence of an NLRB ruling to the contrary. The Court found that the union had made no such showing, thus determining "on the merits” that the union was subject to state jurisdiction.

controversially extended federal preemp¬ tion even to those situations where it was

both these sections”: "It is essential to the administration of the Act that those deter¬ minations be left in the first instance to the National Labor Relations Board.” Id. See also Garner v. Teamster Local 776, 346 U.S. 485, 490-91 (1953). See generally, Cox, "Labor

Law

Preemption

Revisited,”

1 45

f f v. 4 s e¬o o y Ga d ’ 47 tbel n s ta mo res ice RC . ras om rp g pr d E te c Co on aloul F n C i rh i, paps tu s d sig ed yNa an isat us b ed ssnteh pp es Mili l he rc tri raat t fo s , pe d Pi of ule atuth ed an r n t m mp ndge t s d ss ee ti ke Ga ar teake re prrsac r a ng Bo stat ceen m ( u Coy, od pl aisn s pr atup Ga ) or w n th s 86 at he & (19 per tal s s, he w o ua n tt, g o l Ac ons,; ne i Oi 409ti var of ti ga on e na ne sc e mi cy in li an at S. pe om olte li rm ch Tr St U. pi fr pode Po te su

uncertain "whether the particular activity regulated by the States was governed by Sec. 7 or Sec. 8 or was, perhaps, outside

U. 72 S. 5

504

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

"first use” of any natural gas brought into that state that was not previously subject to taxation — namely, gas brought in from offshore wells — was preempted by a congressional delegation to FERC, under the Natural Gas Act, of authority to determine the proper allocation of costs associated with the sale of natural gas to consumers. The Court also found the tax to be discriminatory against interstate commerce, since in-state users of the gas received credit against other Louisiana taxes, substantially insulating them from the impact of the tax, where¬ as gas that subsequently moved out of the state bore the full burden of the tax. Yet the presence of a federal regulatory agency is not itself deter¬ minative of the questions of actual conflict or federal occupation of the field; state action not otherwise violative of the commerce clause may be shown in a particular case to concern itself with matters so local as to be inherently unlikely candidates for federal preemption, despite the apparent comprehensiveness of the federal regulatory scheme as en¬ forced by an administrative agency. As to communications regulation, for example, in Head v. New Mexico Board of Examiners in Optometry ,14 the Supreme Court held that, despite the relatively comprehensive program of federal regulation under the Federal Communications Act, New Mexico could enjoin a radio station located in that state from broadcasting the price quotations of a Texas optometrist, pursuant to a state statute banning all such advertising.15 Similarly, as to labormanagement regulation, in Linn u. United Plant Guard Workers Local 114 , the Supreme Court held that a defamation action arising out of a union-organizing campaign could be brought in state court, given " 'an overriding state interest’ in protecting its residents from malicious libel.” 16 Likewise, the Court held in Farmer v. United Brotherhood of Carpenters and Joiners that the National Labor Relations Act does not preempt a state court action for intentional infliction of emotional distress.17 Whereas regulation of interstate utilities, particularly for rate¬ setting purposes, is an important national concern, regulation of the its jurisdiction to directly set the price of such gas, it did so not to allow states to regulate the price, but to leave it unregu¬ lated).

sounding in contract brought by a former union member against a union that had dropped him from membership for failure to pay dues).

14. 374 U.S. 424 (1963). 15. The Court noted that the FCC

had

viewed state advertising regulations "as complementing its regulatory function.” Id. at 432. Such a ban would today be of doubtful validity under the first amend¬ ment. See § 12-15, infra. 16. 383 U.S. 53, 61 (1966). See also Allen-Bradley Local No. 1111 v. Wisconsin Employment Relations Board, 315 U.S. 740 (1942) (picketing and personal threats may be regulated by the state). But cf. Amalga¬ mated Association of Street Employees v. Lockridge, 403 U.S. 274 (1971) (applying the Garmon doctrine to hold that a state 43 0U court cannot take jurisdiction of a suit .S .2 90 (1 97 7) .Th e C

in la bo te in ral irnes th ralst an re d ¬ a tt g e d di we te su ere re to lo ula s¬ re f ff i st cr win tioth rt th cov po or icint et g n at e er te by th estnetrf ca syc nt wi e th fe al e e e de u th he ia to co tey ren se wara in me l of ac su un ti ce sl su ter an le ffi tohn st an e si at th gsit ci to bs co ba be d in ce tait en rt acti ta u l¬ te nc e’s e to onan ntolfid th re meat t wi e re res s t f e th y a e (i lth in pr ere sp olv , fe ou n i e e te d ot n ca cia din thera co t re at a un s ecof accet se l e ll nt s i t i ts on y eIx Co at ed 10 viti ha hi , d t . M 64 C es 10 mp S. v. llG)e Barin ot -6orp 6 ar Ct. .ne ke g o .,no 5. e s dai 31 r (1 6 r r u . s pr 98 te sc 29 l 6) a, us , se d

so

ne

th

at

th

e

fe

de

in

505 LIMITS ON STATE AND LOCAL POWER 8 2 6 § intrastate activities of a utility is primarily a local matter; the Court will not lightly infer that a congressional delegation to a federal agency precludes state power to regulate intrastate utility rates. It was on this basis that the Court, in Arkansas Electric Cooperative Corp. v. Arkansas Public Serv. Comm’n ,18 held that Arkansas’ Public Service Commission could assert jurisdiction over the rates charged by a rural electric cooperative to its local member cooperatives, even though two federal agencies, the Federal Power Commission and the Rural Electrification Administration, each regulated rates charged by such electric utilities. The FPC had no authority to regulate wholesale rates charged by cooperatives under the supervision of the REA, and the REA supervised rates only to the extent necessary to make its loans secure, but neither agency had determined

as a matter of policy that the wholesale cooper¬

atives should not be subject "to the type of pervasive rate regulation almost universally associated with electric utilities in this country.” 19 So too, in Louisiana Public Service Comm ’n v. FCC,20 the Court held that state regulation of methods of depreciating telephone equipment, for intrastate ratemaking purposes, was not preempted where Congress established a system that gave jurisdiction to the FCC to regulate depreciation of such equipment used in interstate communication, but left jurisdiction with the states, and in fact forbade the FCC to exercise jurisdiction, over charges, classifications, and practices in connection with intrastate communication, and where, in practice, a single piece of telephone equipment may be used both in inter- and intrastate commu¬ nication. The Court thus rejected an earlier FCC ruling that, to avoid frustrating the objectives of Congress, state regulation of depreciation of dual-jurisdiction equipment is preempted. As to transportation regulation, despite the fact that the Motor Carrier Act of 1935 permitted the Interstate Commerce Commission to establish minimum qualifications for taxi drivers engaged in interstate or foreign commerce, a closely divided Supreme Court, in Buck v. California 21 held that San Diego County could impose additional quali¬ fications. Similarly, in California v. Zook,22 the Court by a bare majority upheld a state statute that was almost identical to the federal Motor Carrier Act of 1935. And, in Wardair Canada, Inc. v. Florida Dept of Revenue,22 the Court held that a state tax imposed uniformly on airline fuel sold within the state — regardless of whether the fuel was subsequently used to fly within the state, without the state, or even in foreign commerce — was not preempted, in spite of the fact that "agen¬ cies charged by Congress with regulatory responsibility over foreign air travel exercise power . . . over licensing, route services, rates and fares, tariffs, safety, and other aspects of air travel”.24 The Court found no indication that Congress wished to preclude state sales taxation of fuel, and even found some evidence that Congress intended to invite such taxation. 18.

461 U.S. 375 (1983).

19.

Id. at 382.

20.

106 S.Ct. 1890 (1986).

21.

343 U.S. 99, 102 (1952).

22.

336 U.S. 725 (1949).

23.

106 S.Ct. 2369 (1986).

24.

Id. at 2372.

506

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

Like the circumstance that a relevant federal regulatory agency is present, the fact that interstate commerce is federally licensed does not by itself determine that state regulation is preempted.25 In Gibbons v. Ogden , Chief Justice Marshall made what would today be characterized as an "actual conflict” argument to hold that a federal statute licensing steamboats in interstate commerce prevented New York from protect¬ ing its steamboat monopoly by enjoining a federally licensed competitor from operating a parallel New York-to-New Jersey route: the New York restriction interfered with a provision of the federal statute which granted to steamboats the same privileges as those enjoyed by sailing ships.26 Accordingly, the Supreme Court has held that a Federal Power Commission determination that a given power project be approved precludes any state attempt to proscribe the project.27 Similarly, in Castle v. Hayes Freight Lines , Inc., the Supreme Court held that Illinois could not bar an ICC-licensed interstate truck operator from its roads for repeated violations of state highway regulations governing weight and load, because the congressional aim in designing the licensing statute — "to provide stability for operating rights of carriers” — required a uniform national mechanism (the ICC) for enforcing highway regula¬ tions of the sort there involved.28 So too, in Ray v. Atlantic Richfield Co .,29 the Court reasoned that state efforts to impose design require¬ ments on oil tankers operating in Puget Sound would be preempted by a federal statute requiring Coast Guard inspection and licensing of all tankers, since Congress’ goal was uniformity of design requirements.30 Whether federal licensing operates to preempt state regulation will ordinarily depend on the respective aims of the state and federal 25. But "[t]hat no state may completely exclude federally licensed commerce is in¬ disputable.” Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963) (dictum) (emphasis added). In California Coastal Comm’n v. Granite Rock Co., 107 S.Ct. 1419 (1987), the Court upheld a Cali¬ fornia statute that required a mining com¬ pany to apply for a state permit, even though the company was operating on na¬ tional forest land pursuant to a National Forest Service permit. Although the Court hinted that an attempt by California to prohibit federally-authorized mining would conflict with federal law, the Court was not willing to assume that was the state’s intent. Instead, by a 5-4 margin, it held that environmental regulation, as op¬ posed to land use regulation, would not be preempted. The Court’s holding that the state requirement was not facially invalid seems to imply that California, under cer¬ tain circumstances, could deny the mining company’s permit application — perhaps for failure to comply with environmental regu¬ lations — and thus prohibit federally-autho¬ rized mining. 26, 22 U.S. (9 Wheat.) 1 (1824). Accord, Douglas v. Seacoast Products, Inc., 431 U.S.

265 (1977) (state cannot exclude federally licensed vessel from fishing off state coast; even if Gibbons was a misinterpretation of Congress’ original intent in licensing ves¬ sels, its construction has been congressionally ratified). 27. See First Iowa Hydro-Electric Coop, v. Federal Power Commission, 328 U.S. 152 (1946). Cf. Illinois Natural Gas Co. v. Cen¬ tral Illinois Public Service Comm., 314 U.S. 498 (1942) (a state cannot mandate that a utility, in contravention of an FPC order, extend its facilities). 28. 348

U.S. 61 (1954).

The

Court

based its conclusion largely upon the statu¬ tory language which provided that a certif¬ icate of convenience and necessity ‘'shall remain in effect until suspended or termi¬ nated as provided [by the Motor Carrier Act of 1935].” Id. at 64. 29. 435 U.S. 151 (1978). See also § 626, and § 6-25, supra. 30. However, state efforts to impose tug-escort requirements on such tankers were not preempted, even though Congress had authorized, but did not require, the Secretary of Transportation to regulate in this area. See § 6-26, supra, note 26.

§ 6-28

schemes.

LIMITS In Huron

ON STATE

AND

LOCAL

POWER

Portland Cement Co. v. City of Detroit

507 for exam¬

ple, the Court upheld Detroit’s regulation of smoke emitted while a ship’s boilers were being cleaned, despite extensive federal licensing of such ships in interstate and foreign commerce. The Court submitted "that there is no overlap between a municipal pollution control ordi¬ nance and the scope of the federal ship inspection laws” that set the standards for federal safety licensing of sea-going vessels.32 And, in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n ,33 the Court upheld a state’s action in suspending future construction of federally-licensed nuclear power plants within the state. The state’s concern that insufficient capacity for storage of radioactive wastes might ultimately lead to federally-required service shutdowns — and that nuclear plants would thus be an undependable and economically risky source of energy for the state’s people — was deemed an appropriate predicate for such a moratorium despite the required licensing of such plants by the NRC and despite the NRC’s responsibility to find a place to store long-term nuclear wastes by the time the storage space would be needed,34 since the NRC was empow31. 362 U.S. 440 (1960), discussed in § 6-12, supra. 32. 362 U.S. at 446. See also Union Brokerage Co. v. Jensen, 322 U.S. 202 (1944): Ziffrin v. Reeves, 308 U.S. 132 (1939). In Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978), the Court indicated — arguably in dictum — that the State of Washington could not impose, on tankers operating in Puget Sound, safety design requirements more stringent than the fed¬ eral requirements. The Court distin¬ guished its prior holding in Huron Port¬ land Cement, noting that "the sole aim of the Detroit ordinance [was] the elimination of air pollution to protect . . . the local community,” 435 U.S. at 164, whereas the purpose of the federal design requirements was "to insure the seagoing safety of ves¬ sels.” Id. Thus, while the Detroit ordi¬ nance affected the same subject-matter as federal law — namely, design of ships — Con¬ gress had intended that the federal govern¬ ment occupy only the field of safety stan¬ dards for ship design. The federal regulations do "not prevent a State or city from enforcing local laws having other pur¬ poses , such as a local smoke abatement law.” Id. (emphasis added). By contrast, in Atlantic Richfield, the state imposed its stringent requirements "on the ground that [certain ships’] design characteristics constitute an undue hazard,” id. — a con¬ cern held by the Court to fall squarely within the field occupied by the federal government. The Court’s distinction be¬ tween Atlantic Richfield and Huron Port¬ land Cement illustrates the difficulty of searching for the relevant state purpose, since it would seem that the State of Wash¬ ington, by regulating only oil tankers rath¬ er than ships generally, was concerned not

with "the seagoing safety of vessels,” id., the federally occupied field, but with the effects of oil spills on the shores and com¬ munities of Puget Sound, in a manner closely analogous to Detroit’s non-preempted objective in Huron Portland Cement. In any event, after an extensive discussion of why Washington’s safety requirements would be preempted, the Court did not strike them down, since the state’s law actually required either the stringent de¬ sign requirements, or a tug escort: "[N]o tanker then afloat had all of the design features required by the [state’s] Tanker Law,” 435 U.S. at 173 n.24. Thus the Court viewed the law as merely a tug es¬ cort requirement with certain potential ex¬ emptions, a local matter not preempted by federal law. See § 6-26, supra. 33. 461 U.S. 190 (1983). See § 6-26, supra, text at note 34. 34. The Court, in assessing Congress’ preemptive intent, had before it the telling rejection by Congress of an amendment to pending legislation, proposed by Senator McClure, that would have essentially over¬ turned California’s moratorium. The mor¬ atorium was imposed by California law on¬ ly until the federal government approved a technology and facilities for nuclear waste disposal, and Senator McClure’s proposed amendment would have declared that the pending federal legislation satisfied any such state requirements for the existence of technology and facilities. Thus Califor¬ nia’s moratorium would have ended if the McClure Amendment had been enacted. See 128 Cong.Rec. § 4310 (daily ed. Apr. 29, 1982); id. at § 6404 (daily ed. May 27, 1982) (remarks of Sen. Hart). This lan¬ guage was deleted from the pending legis-

508

LIMITS

ON STATE

AND

LOCAL

Ch. 6

POWER

ered to consider only the safety aspects of waste disposal when licensing a plant, not the economic consequences of subsequent failure to find or develop the necessary storage capacity. § 6-29.

Uses of Preemption Clause Context

Most problems

Analysis

Outside

pertaining to federal preemption

the

Commerce

have arisen in

close connection with the commerce clause; the relevant federal legisla¬ tion was enacted pursuant to that clause, and the challenged state or local action was vulnerable to commerce clause attack as well as to preemption arguments. But the principles developed in the preceding sections are not limited to this context; essentially the same techniques are used to determine the consequences for state action of any exercise of a plenary federal authority.1 Several areas in which preemption has previously been at issue will serve to illustrate the application of these techniques. In Pennsylvania v. Nelson ,2 the Supreme Court held that a state could not proscribe sedition against the United States because Congress, in passing the Smith Act, had enacted a sufficiently comprehensive regulatory scheme to evidence an intent to occupy the field, and because the nature of the subject matter was such as to lead to a presumption of national, rather than local, regulation. The Court adverted also to the conflict that might arise between federal and state officials if the regulatory schemes were allowed to coexist.3 The Court has read Nelson narrowly. In Uphaus v. Wyman,4 it upheld a convic¬ tion traceable to a New Hampshire subversive activities statute, distin¬ guishing Nelson on the ground that the prior decision related merely to state statutes governing sedition against the United States; the federal government had evidenced no intent to preempt laws proscribing sedi¬ tion against the states themselves.5 Another

example is provided by state laws penalizing debtors who

initiate federal bankruptcy proceedings. In Perez v. Campbell ,6 the Court stressed the conflict between federal and state law in holding that Arizona, by withholding driving privileges from automobile lation, the House was told, precisely "to insure that there be no preemption.” Id. at H8797 (Dec. 2, 1982) (remarks of Rep. Ottinger). In assessing this history, the Court stated that, "[w]hile we are correctly reluctant to draw inferences from the fail¬ ure of Congress to act, it would, in this case, appear improper for us to give a reading to the [Atomic Energy Act] that Congress considered U.S. at 220.

and

rejected.” 461

er than under the Commerce

acci-

Clause. Yet,

against the urging of Justice Powell’s dis¬ sent, joined by Justice Stevens, id. at 1432, the Court used its standard preemption test: "[E]ven within the sphere of the Property Clause, state law is preempted only when it conflicts with the operation or objectives of federal law, or when Congress 'evidences an intent to occupy a given field.’ ” Id. at 1431-32 (citation omitted). 2. 350 U.S. 497 (1956). 3. Id. at 507.

§ 6-29 Coastal Comm’n 1. See, e.g., California v. Granite Rock, Co., 107 S.Ct. 1419 (1987), discussed in § 6-28, supra, note 25. In that case, the Supreme Court regarded fed¬ eral laws pertaining to mining on national

forest lands as exercises of Congress’ power under the Property Clause of Art. IV, rath¬

4. 360 U.S. 72 (1959). 5. Id. at 76. 6. 402 U.S. 637 (1971), overruling Kesler v. Dept, of Public Safety, 369 U.S. 153 (1962).

LIMITS ON STATE AND LOCAL POWER 509 9 § 6-2 dent judgment debtors who discharged their judgments in bankruptcy, interfered with the federal Bankruptcy Act policy of giving debtors a fresh start.7 Patent rule, when state law expounded

and copyright laws provide a third example. As a general an article is unprotected by a federal patent or copyright, may not forbid others to copy it. The Supreme Court the logic underlying this rule in Sears, Roebuck & Co. v.

Stiffel Co.: "To allow a state by use of its law of unfair competition to prevent the copying of an article which represents too slight an ad¬ vance to be patented would be to permit the state to block off from the public something which federal law has said belongs to the public.” 8 But otherwise constitutional state action has been upheld in the ab¬ sence of evidence that congressional withholding of federal copyright protection was meant to implement a policy of "free access.” In Goldstein v. California ,9 the Court upheld a California law which made the commercial reproduction of recordings produced by others a misde¬ meanor. The absence of a federal "free access” policy was perceived in a congressional act granting limited federal copyright protection to future recordings and by the administrative difficulties that would have been entailed in 1909, the date of the relevant copyright law, by any federal attempt to regulate the reproduction of recordings: "Congress has drawn no balance; rather it has left the area unattended, and no reason exists why the State should not be free to act.” 10 Conflicts between Indian tribes and state authorities provide a final example. In the context of Congress’ power to regulate commerce with the Indian tribes — power derived from the so-called Indian commerce clause — the Supreme Court has consistently "rejected the narrow focus on congressional intent to pre-empt state law as the sole touchstone ... [as well as] the proposition that pre-emption requires ... an 7. But cf. Reitz v. Mealey, 314 U.S. 33, 37 (1941) (state suspension of driver’s li¬ censes of persons negligently involved in automobile accidents and unable to pay compensation held not inconsistent with federal bankruptcy law despite lack of state exemption for bankrupts, since the law’s emphasis was on preventing irrespon¬ sible driving rather than on assuring pay¬ ment of judgments). 8. 376 U.S. 225, 231-32 (1964). See also Compco Corp. v. Day-Brite Lighting Co., 376 U.S. 234, 237 (1964) ("To forbid copying would interfere with the federal policy, found in Article I, Section 8, Clause 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copy¬ right laws leave in the public domain”). Cf. Teamsters Local 20 v. Morton, 377 U.S. 252 (1964), discussed in § 6-28, supra.

9. 412 U.S. 546 (1973). 10. Id. at 570. Cf. Kewanee

Oil Co. v.

Bicron Corp., 416 U.S. 470 (1974) (holding that federal patent law does not preempt state trade secret protection since trade

secret law, which affords weaker protec¬ tion than the patent laws, does not deter patent applications by inventors of clearly patentable subject matter, and since the elimination of trade secret protection in cases of doubtfully patentable subject mat¬ ter would increase resort to self-help of a type which could balkanize and fragment research and marketing efforts). A powerfully critical examination of the Goldstein decision and an illuminating comparison with the Kewanee case is con¬ tained in Brown, "Publication and Preemp¬ tion in Copyright Law: Elegiac Reflections on Goldstein v. California,” 22 U.C.L.A.L. Rev. 1022 (1975). Compare also Aronson v. Quick Point Pencil Co., 440 U.S. 257 (1979) (federal patent law does not preempt state law that would make enforceable a con¬ tract between inventor and licensee calling for payment of royalties even if invention proved to be unpatentable, since contract, which enabled licensee to be first in the market with a new idea, did not withdraw any idea from the public domain, and such contracts would not discourage anyone from seeking a patent).

510

LIMITS ON STATE

AND

LOCAL

POWER

Ch. 6

express congressional statement to that effect.” 11 Instead, the Court rests its preemption analysis on a consideration of the nature of the state, federal, and tribal interests at stake.12 In New

Mexico v. Mes-

calero Apache Tribe ,13 a tribe challenged New Mexico’s assertion that, should the tribe choose to permit hunting and fishing on its reservation by non-members, such hunting and fishing would be subject to general¬ ly applicable state-imposed rules. The tribe, with federal assistance, had undertaken substantial development of its fish and game resources, both for its own use and to provide income for the tribe from sale to non-members of tribal hunting and fishing licenses and related services. The tribe had established its own bag limits, seasons, and licensing requirements, which conflicted seriously with state regulations.14 The Court found that the tribal and federal interest at stake was the promotion of tribal self-sufficiency and economic development.15 The state, on the other hand, "cannot point to any off-reservation effects that warrant state intervention,” except for its loss of revenues from sale of state licenses to non-members who hunt or fish on the reserva¬ tion.16 The Court concluded that, because of the "strong federal inter¬ ests favoring exclusive tribal jurisdiction” and the absence of strong state interests, the state’s laws, as applied, were preempted.17 Thus, the Court’s analysis is reminiscent of typical preemption analysis where there is a claim of actual conflict with a federal objective. It differs in that under the Indian commerce clause, but not under the interstate commerce clause, the Court will give preemptive effect to a broadlyframed or abstract federal objective. However, almost as a quid pro quo, the Court will consider the magnitude of the state’s interest, which is irrelevant in typical preemption analysis.18 Above all, perhaps the most fundamental point to remember is that preemption analysis is, or should be, a matter of statutory construction rather than free-form judicial policymaking. The fact that Congress may override a preemption holding (as opposed to a constitutional interpretation) should not be taken to liberate courts in general, or the Supreme Court in particular, from a sense of fidelity to law, and to the judicial task of interpretation. To be sure, there are specialized areas in which Congress may be presumed to have acted against the backdrop of a well-known

set of judicial assumptions and approaches; the regula-

11. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334 (1983) (Marshall, J., for a unanimous Court). See also, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-144 (1980); Ramah Nav¬ ajo School Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 838 (1982); Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 106 S.Ct. 2305, 2310 (1986). 12. Mescalero at 333-34.

Apache

Tribe, 462 U.S.

state hunting and fishing licenses were not required on the reservation. 15. Id. at 335. 16. Id. at 342. 17. Id. at 344. 18. It is unclear whether

the state law

would have been preempted if the state’s interest were strong (for instance, if the state were able to show that on-reservation

14. For instance, "[t]he Tribe permits a hunter to kill both a buck and a doe; the

game normally commingled with off-reser¬ vation game, and that tribal hunting poli¬ cies were adversely affecting strengths of herds off the reservation) and the federal

State permits only buck to be killed.” Id. at 329. Moreover, the tribe specified that

or tribal interest were broadly-framed weak.

13. 462 U.S. 324 (1983).

or

LIMITS

§ 6-30

ON STATE

AND

LOCAL

POWER

511

tion of Indian affairs, described above, may be an example. But it is one thing to pursue a specialized approach unless and until Congress says something to overturn it, and something else again to approach preemption issues generally as though one were doing something other than reading an applicable federal statute. Thus, where the relevant federal law itself speaks in a seemingly definitive way on the preemp¬ tion issue — either by broadening or by narrowing the preemptive effect the law would otherwise have been thought to possess — a court should deem itself bound by what Congress has said on the subject. In the pregnancy disability decision, California Federal Savings & Loan Ass’n v. Guerra ,19 for example, it appears that only Justice Scalia took with sufficient seriousness Congress’ explicit mandate that the federal law at issue preempts only state laws that purport to compel or authorize employers to act in violation of the relevant federal law — not all state laws that might be in some more nebulous sort of tension with the federal mandate of equal treatment. Although the outcome of the case did not turn on the difference between Justice Scalia’s approach and that of the others in the majority, the legitimacy of the Court’s decision as a matter of statutory interpretation rather than as an exercise in open-ended policymaking may well have been undercut by the failure of the rest of the Court to follow Justice Scalia’s lead. In matters of statutory interpretation no less than in matters of constitutional con¬ struction, the Court’s task is an interpretive one; that the task entails choices cannot be taken to make it indistinguishable from lawmaking pure and simple. § 6-30.

The Special Role of Federal Supremacy in Direct Inter¬ governmental Confrontation: Immunizing Federal In¬ stitutions, Agents, and Contractors

In all the areas thus far examined in this chapter, the federal-state interaction has been indirect: the question has been how to allocate constitutional power as between the two levels of government when each seeks to deal with the same area of private conduct. This section turns to a different sort of interaction, although one that is best understood as posing an issue essentially of federal preemption: The subject is that of state attempts to regulate or tax entities with some special link to the federal government.1 In those rare cases where Congress has expressly granted or withheld regulatory or tax immunity to certain of its instrumentalities, agents, or contractors, the validity or invalidity of state action is definitively settled by such federal legislation.2 When 19. 107 S.Ct. 683 (1987), discussed in § 6-26, supra.

§ 6-30

1. On the converse topic of federal regu¬ lation and taxation of state activities or property, see §§ 5-20 to 5-22, supra. On the related but even more specialized topic of the immunity of Indians and Indian property on reservations, see, e.g., McClanahan v. Arizona State Tax Comm., 411 U.S.

Congress has not

164 (1973) (income derived from reserva¬ tion sources immune to state taxation); Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) (upholding state gross receipts tax on revenue from ski resort operated by reservation Indians on off-reservation land leased from the federal government). 2. See, e.g., Carson v. Roane- Anderson Co., 342 U.S. 232, 234, 236 (1952) (sales tax held unenforceable as to sales of commodi-

POWER

Ch. 6

spoken, or has spoken but not clearly, the remaining

question is the

512

LIMITS

ON STATE

AND

LOCAL

degree of so-called "constitutional immunity” — the immunity to be inferred, subject to congressional revision, from the plan of the Consti¬ tution. The law in this area traces to McCulloch v . Maryland ,3 where Chief Justice Marshall wrote for a unanimous Court holding that the suprem¬ acy clause prevented Maryland from levying a stamp tax on bank notes issued by the Baltimore branch of the Bank of the United States, a corporation chartered by Congress. Applying to the federal structure the principle that a government may not tax or control those whom it does not represent, the Chief Justice concluded that the states could not tax or control a federal instrumentality.4 Operation of a federal instrumentality necessarily affects the interests of all since it is for the benefit of all; the national power must therefore remain unfettered if control and representation are to be coincident: 5 "In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused.” In addition, Chief Justice Marshall doubted the ability of the federal courts to review the reasonableness of taxes imposed upon federal instrumentalities if a state’s power to tax were to be recognized in principle.6 McCulloch thus announced the prophylactic per se rule that has been followed ever since. If Congress does not authorize state taxation or regulation of federal instrumentalities, the possibility of interference with substantive federal policy is sufficient to raise a presumption

of immunity.7

ties to contractor employed by Atomic En¬ ergy Commission, immunity having been expressly conferred by federal statute); City of Cleveland v. United States, 323 U.S. 329, 333 (1945) (power of Congress to confer exemptions and immunities as deemed nec¬ essary is settled "by such an array of au¬ thority that citation would seem unneces¬ sary”). Congress must make clear its intent to subject federal installations or instrumentalities to state control. See, e.g., EPA v. State Water Resources Control Board, 426 U.S. 200 (1976); Hancock v. Train, 426 U.S. 167 (1976) (federal installa¬ tions and instrumentalities not subject to state permit requirements for air and water pollution). cu in § 5su Se al We v. s 3 Chssed 27 , U. pra(2 Pe e 44 o (1 sto (c 8 S 9 a . t n i ta rleon st is . by U.n) St 29) he ty x st o s a l i vo uonn ck ar ued VI co ted intesa mo d t , ), di i di fi d ve der biycl Co 70 ¬ fiin 12 St e ng ed at 9, ed rs 71 § 1io(n1 31 Ur.e § 74 Th. cu r¬ 86 e 2. o re0, co of tShs.sC fe 3 b ) . nt di de e li , fi is 3 U im § 31 ral whgat e 1 . c 2 S a ic ior s¬ m 4 .tCh se un reti c ( h nusle on a) .e sotn n atLi Se tiaiRtoy In Co stiv. ,Il De . s. esfe . tu lin e ll ck pt of Re y fo 10 S. 23 (t1i oi (f , C e 9 7 1 s ve rd o7n t. d 8 2 e nu )aol " ra co ro a g f Gi l e, le s uar rp nn is Ma or mo in an in ie ve s e” at rt t or tr io ga st um n’ g me en s e nt ts

too indirect, contingent and unliquidated to transform Ginnie Maes into federal obli¬ gations immune from state taxation) (unanimous opinion). 4. 17 U.S. at 428-31. 5. Id. at 435-36. See also Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197 (1824); Helvering v. Gerhardt, 304 U.S. 405, 412, 416 (1938). 6. 17 U.S. (4 Wheat.) at 429-30, 436. Hence, "the power to tax involves the pow¬ er to destroy.” Id. at 431. 7. See Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 865 (1824) (rejecting Ohio’s argument that the presumption, when Congress is silent, should be against immunity). See also First National Bank v. Anderson, 269 U.S. 341, 347 (1926): In¬ strumentalities or "agencies of the United States created under its laws to promote its . . . policies . . . cannot be taxed under state authority except as Congress consents and then only in conformity with the re¬ strictions attached to its consent.” Note that federally-chartered corporations en¬ gaged in private business are not federal instrumentalities for purposes of this rule. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 426 (1819) (dictum); Thomson v. Pacific Railroad, 76 U.S. (9 Wall.) 579,

.

§ 6-30

LIMITS

ON STATE

AND

LOCAL

POWER

513

But immunity from "interference” obviously cannot include "a general immunity from state law” for all federal agents acting within the scope of their agency; 8 given the interstitial character of federal law, any contrary principle would require Congress to undertake the overwhelming burden of having to provide a comprehensive body of rules to govern all of the rights and obligations of all those who act on its behalf, including "the mode of turning at the corners of streets.” 9 Thus, even in military bases or other federal enclaves, where such enclaves are ceded by a state without reserving a right of continuing regulation, the general body of state law extant at the time the enclave is acquired continues to govern primary activity 10 unless such state law actually conflicts with a federal law, program, or policy.11 A similar principle emerges from cases involving immunity of federal instrumen¬ talities from state regulation. State law is presumptively applicable, but absent explicit congressional consent no state may command feder¬ al officials, instrumentalities, or agents to take action in derogation of their validly delegated federal responsibilities.12 588 (1869). Compare Dept, of Employment v. United States, 385 U.S. 355, 359-60 (1966) (holding that the American Red Cross, chartered by Congress in 1905, is a federal instrumentality immune from state taxation until Congress declares otherwise:

duct occurring outside the enclave, but af¬ fecting the enclave, is subject to general state regulation, see, e.g., Penn Dairies,

"time and time again, both the President and Congress have recognized and acted in

minimum

reliance upon the Red Cross’ status virtual¬ ly as an arm of the Government”). 8. Johnson v. Maryland, 254 U.S. 51, 56 (1920) (Holmes, J.) (dictum). The rule was recognized as early as First National Bank v. Commonwealth, 76 U.S. (9 Wall.) 353, 362 (1870). 9. Johnson, 254 U.S. at 56. 10. See Pacific Coast Dairy v. Dept, of Agriculture, 318 U.S. 285, 294 (1943) (Cali¬ fornia cannot penalize milk dealer for sell¬ ing milk to War Department below state minimum price where sales and deliveries occurred entirely within federal territory).

Inc. v. Milk Control Comm’n, 318 U.S. 261 (1943) (state can refuse to renew license of milk dealer who sold milk at below state price to United States agents for

consumption by troops where sales oc¬ curred outside federal jurisdiction), so long as it does not actually conflict with federal law. See, e.g., Public Util. Comm’n of Ca¬ lif. v. United States, 355 U.S. 534, 544, 547-58 (1958) (essentially same facts as Penn Dairies, but federal law had been altered, giving procurement officers exclu¬ sive responsibility for negotiating price without regard to state law); Paul v. Unit¬ ed States, 371 U.S. 245 (1963); United States v. Georgia Pub. Serv. Comm’n, U.S. 285 (1963).

371

37 38 (1 (s is pr fr ta 96 9, oh o 5 t 3 en as )un pr ib of la m e w, a jo au ct ite i t i n t g a o b p a li¬ fed¬ d 11. Congressional jurisdiction over ce ge f dv ho he iniv y at r g c b U P O t g s i i e n eral enclaves is exclusive only if exercised. , ngy .S f en atce iz n o i t u . se en ed Ifice tv A ve s ch a L M . rk nc es il t dv d State law enacted prior to federal acquisi¬ le ( 35 ice U. 18lie (1 c.u (apns tion continues to govern within the enclave r p rias 95 , er 7 2 ); S. ri v, t 6 c c r b t s a ) o e o e a u t m if the state law is "not inconsisten with nt qu nn bm ate o ) ir as pr ot pr it st ra li ed at ct ce ec federal policy” and if it is not "altered by o c of ebi or nsi fo fe ed co whond g national legislation.” Id. "This assures u r d n d n er it ov¬ r e t g d that no area however small will be left e r r i er pr al s ac sta e ionpro ng fed ni oc j ¬ t re tu v s f e o i t u r without a developed legal system for pri¬ r ur dg sp te de ng an al onv C em iAn da of cso .si al vate rights.” James Stewart & Co. v. rd bidd en rgi m p2e zo(1 Sadrakula, 309 U.S. 94, 100 (1940). Absent s ni U 4 4 (bAil ifor t e 2 . 8 r 5 t n a 9 3 S riity ¬ s 3 1 it a31 congressional action, theSeestate law applied zo ca , einv . co, ); -52 of ) co e.g n n j n e n g o s Id. Con¬ .,S within federal enclaves is static. na not au Botr Da de re faai in pe urlly of Utnho St ulductto co m, wsipi ssist l¬ a poli¬ rr e a gress, however, may validly legislate tthe o-ate i m r e i te tiez yv all s r onJ ply cy of dynamic conformity under which ap pdred v .F . Mar oh oc 5 pr 2 lo state laws enacted subsequent to creation l U 5 ( ( Poy¬ n ri U. an ov 54 19so .S ed 1, 6s d S d 2 . u 5 a . St t Of , l em of a federal enclave will apply within athe re dir 7 by 0nU)ni ,37 f a pl s e i te omya enclave unless they directly conflict with3 U. to dcee by )t;r cte an he ted pr s e li iel uc d d nc es S vfoe k , federal legislation. See e.g., United States . ab co fo th te by uFme r b at c ask ly a urn mp e c a¬nd¬ r u e o a d et v. Sharpnack, 355 U.S. 286 (1958). Con¬ al th nv d n n en or ic o t it t te ie d s,

LIMITS

514

ON STATE

AND

LOCAL

POWER

Ch. 6

Mayo v. United States 13 illustrates the reach of this principle. The Soil Conservation and Domestic Allotment Act of 1936 empowered the Secretary of Agriculture to purchase and distribute fertilizer as part of the national soil conservation program, while state regulations required each bag of fertilizer to be stamped as evidence of payment of an inspection fee.14 After the Florida Commissioner

of Agriculture issued

a "stop sale” notice, a precondition to seizure, the United States obtained an injunction against enforcement of the state law. In up¬ holding this injunction, the Supreme Court noted that the state law authorizing seizure and sale by the sheriff of unstamped fertilizer could jeopardize administration of the federal program. Any such dramatic confrontation, in which the supremacy clause of article VI would plainly require that federal law prevail, was averted by holding the state regulation wholly unenforceable as applied to federally distribut¬ ed fertilizer. Despite the Court’s extravagant assertion that "the activities of the Federal Government are free from regulation by any state,” 15 the decision in Mayo , properly understood, establishes only a far more modest principle: a state statute contravening the hegemony of federal law and backed by threatened seizure of federal property for noncompliance cannot be enforced against the United States. § 6-31.

The

Scope

of Federal

Although immunity

Tax

Immunity

from state taxation was initially accorded on a

far broader basis to persons dealing with the federal government,1 it is the narrow principle at the heart of Mayo 2 rather than its sweeping pronouncement that has defined federal tax immunities absent congres¬ sional consent in the great majority of the cases decided since 1937. This principle can provide a doctrinal basis for the sometimes bewilderingly complex array of judicial decisions in this area: The supremacy clause implies that, absent congressional consent, no state may (1) impose upon the United States or its instrumentalities 3 an obligation to pay any tax; 4 or (2) make any property interest owned by the United States or its instrumentalities subject to seizure or forced sale in order fined under state law for driving without a state license). The rule of these cases emerged as early as In re Neagle, 135 U.S. 1, 75 (1890). 13. 319 U.S. 441 (1943). 14. Id. at 442. 15. Id. at 445.

§ 6-31

ed St 22 U. (9 Wh 73 86 7 at 8, S. ea (1 Pa O es(d C v. t. i o , ic 82 l . nh ) Kn 4) 27 Ut.u 2 ( ( to fe d Sm.) 18 192and ven 7 8) tole st do sa al oxg,o taexr¬ : im a r l ve m ), ov in Al un v. Ki te & esBo r n oz e e ng a eTrh 31 rruU. me1n, 9 (1 ba di be ,e 9 4 leS. m s t l 4 c a ea wh 1), re us br ow. st dca at se r co sed o ea s fr ichfe gnta im ly asad we ll s de om izxa mu edtii P th nciot ar caral "A onn ow e e nyv nv n e er aOsp Im Ju 44 ll,Ha rv Re ag 88 se(1 di sien 93 ci v. in 9 .L dio 1 . ). al n, ar ” y

2. Mayo

v. United States, 319 U.S. 441

(1943), in § 6-30, supra. 3. "Instrumentalities” do not include independent contractors, employees, or others dealing for their own purposes with the federal government but only those enti¬ ties "so assimilated by the Government as to become one of its constituent parts.” United States v. Township of Muskegon, 355 U.S. 484, 486 (1958). 4. The critical issue is whether the state purports to require collection from the United States or any of its instrumen¬ talities; the legal incidence of the tax must be on an immune entity for this bar to apply. Legal incidence, in turn, depends not only on the party from whom the state seeks to collect its tax but also on the party to whom the state requires that the tax be passed. In particular, "where a state re¬ quires that its sales tax be passed on to the

§ 6-31

LIMITS

ON STATE

AND

LOCAL

POWER

515

to satisfy a state tax liability.6 This rule of legal incidence seems defensible despite its apparent woodenness: either of the direct affronts to federal sovereignty noted above would offend the most basic notions of national supremacy, unless explicitly authorized by Congress.6 Moreover, to extend this doctrinal formulation so as to make congres¬ sional authorization a prerequisite to state taxation of federal employ¬ ees or contractors on their income, receipts, property or activities — simply because of their contractual connection with the United States, or because the executive branch voluntarily assumes the economic burden imposed on them by state taxes — would be to create unwarrant¬ ed inroads upon the revenue bases of the states.7 purchaser and be collected by the vendor from him, this establishes as a matter of [federal] law that the legal incidence of the tax falls upon the purchaser.” United States v. State Tax Comm, of Mississippi, 421 U.S. 599, 608 (1975); First Agricultural National Bank v. Tax Commission, 392 U.S. 339, 347-48 (1968). For a somewhat novel application of this settled rule, see Gurley v. Rhoden, 421 U.S. 200, 203, 210 (1975).

to pot sei at the t s por zur ts o ubjec ent e, int tim its tax its lev aialpro ied e e per , ty at rtehsat hel by the fed gov t e d tim a straal can ernmetax fed Thu t e ea t not ofnts owne. lan s und eiz rallfyor hre d er ed ure at and a sta non sell for can t n p e o a at the ownt Sta the Uni tax ylman e t ed t e eved if the weerd leves tim s sucnts , tax ied es e h n e has no int in suc lan Sta Uni e t h ds t v. at tehde tim es of sal SeeresVtan Bro e e. ckl 117 U.S 151 179 Ten (i1n88 , . n e 8 S Whe ssethe Uni l 6). r 0o ted tates etains nly egal re e, titl to lan as sec for pay of the uri d e men t pur pri app y of tthe sam c lic e c tha a stat pri hase cor e, indati ica on nci rec t e may ipmlpe a tatxly on the tleans mea by d ose sur its full val so lon as the tax is enfed u e lawg onl by a lev oonrcetah¬e sta ble und t y y er e tha has alr pas t int equ ere t ity sed o ead s y t at th ti the pur e me the tax is im¬ cSha I pos v 327 U.S M nc. . inn .Rs.er . ed. A., e s Sta 558, 565 Tha the otUani (19 t ,t 46) t be . hur in its abil ed to seelsl may ind 66 i t s w the lan reicstlycon irr ity id. het ele s d t her at 57 i entvant t t t on t s ire , the 0, ince he utieosnta urns whe st t i the staly as¬ wlhliy te ch theate he nteres bel sert ar ripgur to seiz t is an int e ht¬ ong e s ¬ or itsreistns Sta ing to the Uni trIun The tedCou tesin S.R tal cm.en v. iti .A. rt ¬ es. as "to mec, dis Min o mak tax ihmamnic any nersuol tha miwsosue ea t l t e d d hadunaiblet”ey last unti the full pur pri c n c l e h pai and lega titl hadasepas to the pur¬ o Sin sed the loc Id. lat 56e 9 chad us f ce ser . . inj i d irr eco id. at ele ury s eeme nom d v ant as ob¬ be und mus 570 tihce Cou , o t not trot the tidea of a erfsotrom jec , oadl est f tin t a test tha wou imm g but sim t ply o u n i i con eve whe the stat hlads fer ty mmun n r e e ity

claimed no right to proceed against some¬ thing belonging to the federal government. Accord, United States v. Detroit, 355 U.S. 466, 469 (1958) (denying tax immunity to private lessee of federal property where state law did not make owner liable and did not subject the property to a lien in the event of nonpayment); City of Detroit v. Murray Corp., 355 U.S. 489, 492 (1958) (same result even where tax is denominat¬ ed a "personal property tax”). The rules governing tax and regulatory immunity are, of course, subject to the overriding requirement that a state not discriminate against the federal government or those with whom it deals. See United States v. Detroit, 355 U.S. 466, 473 (1958). 6. That the allocation of tax immunity should ultimately be decided by Congress does not necessarily provide any reason for judicial invalidation of state legislation taxing federal instrumentalities; if Con¬ gress objects to such interference, it can always pass a law denying immunity, which federal courts would then enforce against the states. However, an opposite rule follows from considerations that have led courts to adopt a prophylactic, prohibi¬ tory approach. If the harm a state may inflict on a federal instrumentality can be so great as to support injunctive relief, see Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824); Mayo v. United States, 319 U.S. 441 (1943), and if courts are not in a good position to assess what a reasonable infringement of federal inter¬ ests might be, then a judicial rule protect¬ ing the status quo while Congress decides whether to claim immunity would seem justified. 7. See, e.g., Union Pac. R.R. v. Peniston, 85 U.S. (18 Wall.) 5, 33, 36 (1873) (immuni¬ ty for persons who deal with the federal government from time to time from all state taxes on property used in their feder¬ al dealings and on the fruits of their work would exempt a "very large proportion of the property within the states” and leave them "paralyzed”). Any result potentially so drastic should at least require a clear

516

LIMITS ON STATE AND

LOCAL

POWER

Ch. 6

The legal incidence rule was developed in a series of cases that considered tax immunity claims arising from contracts between the federal executive and private parties. In the 1937 case of James v. Dravo Contracting Co.8 a contractor sought immunity from a state gross receipts tax imposed on amounts received under a contract to construct locks and dams for the federal government. Before Dravo , immunity was almost always implied when the state tax would otherwise have increased the cost of the government’s operations.9 Dravo , however, broke new ground by announcing that even if "the gross receipts tax may increase the cost to the Government, that fact would not invalidate the tax.” 10 Instead, the Court sought to apply a "practical criterion” and held that "where no direct burden is laid upon” the federal government,11 a nondiscriminatory tax collected from its contractors did not violate the McCulloch principle.12 The force of Dravo’s conclu¬ sion must, however, be qualified by the fact that the United States agreed in the Supreme Court that the tax was valid in the absence of congressionally conferred statutory immunity, perhaps because the federal government did not in fact reimburse the contractor for the state taxes in question.13 Dravo’s legal incidence test was followed in the 1941 case of Alabama v. King & Boozer. 14 There, King and Boozer sold lumber to contractors that had cost-plus contracts with the federal government. Alabama sought to collect a sales tax from King and Boozer, although by state law, King and Boozer was merely a collector and the obligation to pay the tax fell on the contractors.15 The economic impact of the tax reached the United States because, under the terms of its contract, it had agreed to reimburse the contractors for all taxes paid.16 The Court held that economic impact was not enough,17 that the United States was not a "purchaser” within the contemplation of Alabama law and therefore was not legally obligated to pay the tax,18 and that the contractors were not mere agents of the federal government so as to make

the tax on them

extraneous

circumstances

in effect one on the government.19 make

statement of purpose by Congress. §§ 3-37, 5-8, 5-22, supra. 8. 302 U.S. 134 (1937).

Again,

King & Boozer’s use of the legal inciSee

9. See, e.g., Dobbins v. Erie County, 41 U.S. (16 Pet.) 435 (1842) (salary of federal officer); Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928) (sales made to federal government); Gillespie v. Oklahoma, 257 U.S. 501 (1922) (income of lessee of federal lands). But see note 18, infra. 10. 302 U.S. at 160; accord, Graves v. New York ex rel. O’Keefe, 306 U.S. 466 (1939) (applying legal incidence test in up¬ holding state taxes on income of federal officers). 11. 302 U.S. at 150, 152. 12. 302 U.S. at 160-61. 13. See id. at 149, 159-60. The Court’s much-cited declaration that a voluntary

pass-through makes no difference, id. at 160, was thus pure dictum. 14. 314 U.S. 1 (1941). 15. Id. at 9-10. 16. Id. at 10. 17. Id. at 8-9. 18. Where state law requires that the vendor collect the tax from the purchaser, then it follows as a matter of federal law that the legal incidence of the tax is on the purchaser, id. at 9-10, 13-14, even if title to the items purchased vests in the United States rather than in its contractor at the time of the contractor’s purchase. 19. 314 U.S. at 12-14. The Court thus overruled Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218 (1928), supra note 9.

LIMITS

ON STATE

AND

LOCAL

POWER

517

§ 6-31 dence test less than a fully compelling precedent — the Senate had earlier refused to grant cost-plus contractors tax immunity, and the Court might have been persuaded by this deliberate omission not to imply such immunity from the Constitution.20 Dravo and King & Boozer establish that a federal contractor cannot escape payment of nondiscriminatory gross receipts or sales taxes where state law makes the contractor, but not the United States, liable for payment of the tax. The rule applies even if the ultimate financial burden of the tax is passed through to the United States pursuant to the contract, and even if title to the property whose sale is being taxed passes to the United States before the state tax is levied.21 Drawing on the United States’ concession that an economic burden rule would be "illusory and incapable of consistent application,” 22 the Court has claimed the government’s "full support” 23 for a legal incidence rule. The dispositive inquiry in tax immunity cases has become the search for the legal incidence of a state tax. If the state imposes no legal obligation on the United States or its instrumentalities but only on persons contracting with them, no immunity will be implied simply because a voluntary pass-through has been engineered.24 Where state or local taxes are assessed against the user of federal property, the cases find no implied immunity unless state law purports to hold the United States or its instrumentalities liable for the tax, or attempts to make federal property subject to a lien in the event of nonpayment.25 This is so whether the tax is denominated by the state as one on the privilege of using the property 26 or as one on the property itself; 27 even if the tax is measured by the value of the federal property; 28 and even if the government has agreed to reimburse the 20

See 314 U.S. at 8 & n. 1.

21. See note 5, supra. 22. See United States v. Detroit, 355 U.S. 466, 473 n. 4 (1958) (quoting from the Government’s King & Boozer brief). 23. Id. at 472-73. 24. Just as a voluntary pass-through to the United States or one of its instrumen¬ talities does not confer immunity absent an applicable act of Congress, so too a refusal to assume the tax does not with¬ draw immunity. Rohr Aircraft Corp. v. San Diego, 362 U.S. 628 (1960) (property owned by Reconstruction Finance Corpora¬ tion could not be subject to taxes assessed against the federal instrumentality not¬ withstanding a private lessee’s agreement to pay all such taxes). 25. See United States v. County of Fres¬ no, 429 U.S. 452 (1977) (upholding county tax on the possessory interest of U.S. For¬ est Service employees in housing located in National Forests supplied to the employees as part of their compensation, pursuant to state statutes authorizing counties to im¬ pose annual use or property tax on posses¬ sory interest in improvements on tax-ex¬ empt land). The Court also upheld the tax

against a claim that it discriminated against Forest Service employees, although Justice Stevens dissented on that issue. Id. at 707-11. 26. See Esso Standard Oil Co. v. Evans, 345 U.S. 495 (1953) (state tax of $.06 per gallon for privilege of storing gas may be collected from federal contractor who stores high-octane aviation fuel owned by United States in tanks owned or privately leased by the contractor). 27. Although the Court in Esso Stan¬ dard Oil Co., 345 U.S. at 499 (1953) relied on such a distinction, it was abandoned as overly formalistic in City of Detroit v. Mur¬ ray Corp. of America, 355 U.S. 489, 492, 493, 495 (1958) (upholding a state "person¬ al property tax” imposed on a private cor¬ poration with "no effort to hold the United States5, or its property accountable”); see note supra. 28. City of Detroit v. Murray Corp. of America, 355 U.S. 489, 491-92 (1958); United States v. Detroit, 355 U.S. 466, 468 (1958); S.R.A., Inc. v. Minnesota, 327 U.S. 558, 570 (1946). These decisions can only be understood as abandoning United States v. Allegheny County, 322 U.S. 174, 185

518

LIMITS ON STATE AND

LOCAL

Ch. 6

POWER

user for paying the tax.29 In all these cases, unless the state deliberate¬ ly precipitates a federal-state confrontation by insisting that the United States or its instrumentalities be answerable for the tax, the underlying theory must be that only affirmative congressional action should be sufficient to strip the state of power to collect nondiscriminatory taxes from third parties. Understanding and defending that theory requires that its central paradox be confronted.

§ 6-32. Formalism, Realism, and the Role of Congress in Inter¬ governmental Immunity Cases Because of the tensions between the rigidly formal yet admirably precise legal incidence rule and the palpably realistic but impracticably indeterminate economic burden test, the field of federal tax immunity "has been marked from the beginning by inconsistent decisions and excessively delicate distinctions.” 1 The Court reached its nadir in this regard in Kern-Limerick, Inc. v. Scurlock.2 The case presented a threeparty situation identical to that in Alabama v. King & Boozer : 3 the tax was collected by the state from a vendor who supplied the federal government’s contractor. No immunity was found in the earlier case, but the Court prohibited collection of the tax from the vendor-taxpayer in Kern-Limerick because the contract between the United States and the vendee-contractor (1) described the latter’s purchases as being made "by the Government,” (2) provided that the "Government shall be obligated to the Vendor for the purchase price,” and (3) identified the contractor as a federal "purchasing agent” despite state law designat¬ ing the contractor as the "purchaser” from whom the vendor was to collect the tax.4 The first edition of this treatise criticized Kern-Limerick

and ar¬

gued that it should be overruled. The decision’s vice is that the tax immunity it recognized resulted, without action by Congress, from an obligation gratuitously assumed by the executive branch — one costing nothing, since the obligation of the tax evaporated due to federal immunity as soon as the executive agreed to absorb it. The Supreme Court admitted that its holding meant that "the form of [federal] contracts may determine [tax immunity]” where Congress has not (1944) (state cannot impose real estate tax on bailee of machinery owned by United States where the value of the machinery is added to the assessment of the real estate in measuring the tax). After the 1946 and 1958 decisions, Allegheny County must be regarded either as overruled altogether or as limited to the special situation in which the threat of a tax lien against the under¬ lying non-federal property amounts to an assertion of state power to enforce its tax by putting the federal government to a choice between allowing sale of its proper¬ ty (the machinery) and physically moving that property as the land is sold "out from under [it]” so as to defeat the government’s "purpose Id. at 187. ... in owning and leasing it.”

29. United States v. Detroit, 355 U.S. 466, 468, 472 (1958). 1. United States v. New U.S. 720, 730 (1982). 6-32 2. 347 U.S. 110 §(1954).

Mexico, 455

3. 314 U.S. 1 (1941). 4. 347 U.S. at 119. The lawyers who drafted the contract had lead the U.S. Re¬ ports very carefully indeed: dicta in King & Boozer suggested that even if state law locates the onus of the tax as falling on a contractor, the contractor might be immu¬ nized if the contract was written to make the contractor a federal purchasing agent. 314 U.S. at 13.

§ 6-32

LIMITS

ON STATE

AND

LOCAL

POWER

519

official’s choice of language should thus be allowed to amputate the reach of a state’s revenue power. Certainly the executive must have the power to decide for its own internal purposes who is the ’'purchas¬ it, chosen 5 to con 6 fer faistr leductto laitra n ct; why but er” of materials under but a con a fed thaera t adm initra ionexpcon strcti l con ating ve necessity cannot justify permitting the executive to escalate its intra¬ mural definition into a confrontation between state and federal authori¬ ty where a state disclaims any intention to impose a tax obligation on the United States or to compel collection from it.

Faced with an opportunity to correct the aberration of KernLimerick in a recent tax immunity case, United States v. New Mexico ,6 the Supreme Court unanimously concluded "that the confusing nature of our precedents counsels a return to the underlying constitutional principle.” 7 The Department of Energy (DOE) had brought suit against New Mexico seeking a declaratory judgment that several pri¬ vate management contractors were constitutionally immune from state taxation. The government conceded that the legal incidence of the tax fell on the contractors, but argued that the contractors were essentially federal agents, who in fact drew checks directly on the United States Treasury by means

of an "advanced

funding” procedure.8

.

The Court rejected DOE’s arguments by adopting the reasoning of the dissenting opinion in Kern-Limerick : "We cannot believe that an immunity of constitutional stature rests on such technical considera¬ tions, for that approach allows 'any government functionary to draw a constitutional line by changing a few words in a contract.’ ” 9 Although it did not expressly overrule Kern-Limerick , the New Mexico Court virtually read it out of existence. All that is left to distinguish KernLimerick are the facts that the contract language there designated the contractor a "purchasing agent,” that the purchase orders declared the purchase was made by the government, and that the contractor had to obtain advance government approval for each transaction.10 Given the Court’s refusal to allow its constitutional doctrine to be manipulated by a civil servant’s pen, such distinctions are surely meaningless. The Court continued its "recent tendency to be sympathetic with States in their urgent quest for new taxes” 11 in Washington v. United States ,12 where the Court’s tax immunity doctrine became even more pragmatic. Washington’s principal source of revenue was a sales and use tax imposed on all consumers of tangible personal property. With regard to construction materials, the legal incidence of the tax fell on the landowner who purchased construction work from the contractor, and who therefore paid the tax on the full price of the project. However, since such a tax would fall directly on the federal government 5. 347 U.S. at 122-23.

10. New n. 17.

6. 455 U.S. 720 (1982).

7. Id. at 733.

Mexico, 455 LT.S. at 738—42 &

11. Washington v. United States, 460 ing). 536, 547 (1983) (Blackmun, J., dissent¬ U.S.

8. Id. at 737.

9. Id. (quoting Kern-Limerick, 347 U.S. at 126 (dissenting opinion)).

U 460

520

LIMITS ON STATE

AND

LOCAL

POWER

Ch. 6

in the case of federal building projects, in such instances the state imposed the sales tax on the contractor’s purchase of the materials.13 The federal government charged that the State of Washington was trying to circumvent federal tax immunity by selectively taxing federal contractors. The Supreme Court disagreed, noting that an identical tax rate is imposed on every construction transaction in the state: 14 "'The only deviation from equality between the Federal Government and federal contractors on the one hand, and every other taxpayer on the other, is that the former are taxed on a smaller portion of the value of the project than the latter. Thus the Federal Government and federal contractors are both better off than other taxpayers because they pay less tax than anyone else in the state.” 15 Washington thus did not discriminate against federal contractors but merely shifted the legal incidence of the sales tax in order to ''accommodate” the Constitution.16 This in itself does not offend the supremacy clause, and as the Court stated in United States v. New Mexico , "[i]f the immunity of federal contractors is to be expanded beyond its narrow constitutional limits, it is Congress that must take responsibility for the decision.” 17 The unanimous decision in United States v. New Mexico signals a return to the principal purpose of the immunity doctrine: "forestalling 'clashing sovereignty’ by preventing the States from laying demands directly on the Federal Government.” 18 To resist a state’s revenue power, "a private taxpayer must actually 'stand in the Government’s shoes.’ ” 19 Such a narrow approach to intergovernmental tax immuni¬ ty serves two ends. First, it comports with federalism by "giving full range to each sovereign’s taxing authority.” 20 Second, it reserves to Congress the authority to adjust the competing symbolic and fiscal claims of federal autonomy and state revenue needs The Court has thus recognized and returned to the wisdom which the first edition of this treatise argued was implicit in the Court’s own bewildering and apparently inconsistent precedents (except for Kern-Limerick ): the nature of the line between permissible and impermissible taxation depends most of all upon who is assigned the task of drawing it. Congress is best suited to reconcile competing state and national claims in this sphere because it alone represents both state and national interests. Therefore, when Congress speaks, full effect should be given to its determinations. And when Congress is silent, a decision to make immunity

turn on the legal incidence of a tax under a state’s own laws

13. 460 U.S. at 539-40. 14. The case is therefore unlike Mem¬ phis Bank & Trust Co. v. Garner, 459 U.S. 392 (1983), where the Court struck down a Tennessee law that taxed the income from federal bonds but not comparable state bonds. 15. 460 U.S. at 541. 16. Id. at 546. See also Minneapolis Star & Tribune Co. v. Minnesota Commis¬ sioner of Revenue, 460 U.S. 575, 589 n. 12 (1983) ("The special rule prohibiting direct

taxation of the Federal Government but permitting the imposition of an equivalent economic burden on the Government may not only justify the State’s use of different methods of taxation, but may also force us, within limits, to compare the burdens of two different taxes”). 17. 455 U.S. at 737-38. 18. Id. at 735. 19. Id. at 736. 20. Id.

LIMITS ON STATE

§ 6-33

AND

LOCAL

POWER

521

avoids both the hazards inherent in ad hoc determinations, and unnec¬ essary collisions between state law and federal instrumentalities.21 § 6-33.

Congressional Limits

Authorization

and Ratification and Their

Although Congress cannot authorize a state to violate a constitu¬ tional command designed to protect private rights against government action (such as the commands of the fourteenth amendment), and cannot authorize a state to disregard an explicit constitutional prohibi¬ tion (such as the article I, § 10 provision that no state may enter into any "Treaty, Alliance, or Confederation,” coin money, issue bills of credit, or take certain other designated steps), congressional consent or ratification may suffice to validate otherwise unconstitutional state action in three different settings: first , where the Constitution express¬ ly makes congressional consent a prerequisite of state action, as in the provisions of article I, § 10, with respect to import and export duties, interstate compacts, and certain other topics; second , where the exis¬ tence of a constitutional ban on state action is inferred entirely from a grant of legislative power to Congress, as in the case of the commerce clause; and third , where the constitutional prohibition against state intrusion is thought to follow from concerns of federalism that may properly be entrusted to Congress, as in the case of federal immunity from state taxation. Judicial analysis in three contexts — interstate compacts, commerce regulation, and taxation of federal instrumentali¬ ties — serves to illustrate the relevant principles. Article I, § 10 declares that "[n]o State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State ...” The Court revealed its inclination to read that language narrowly as early as 1893, when it suggested that congressional consent is required only of compacts and agreements that affect "the political power or influence” of particular states or "encroach . . . upon the full and free exercise of federal authority.” 1 That view was fully embraced by the Court in the leading modern case on compacts, United States Steel Corp. v. Multistate 'Tax Commission .2 In Multistate Tax Commission , some 21 states had adopted legisla¬ tion establishing a "Multistate Tax Compact” to coordinate the taxation of businesses that generate income in several states. The legislation created a commission composed of the member states’ tax administra¬ tors, and empowered it to study state tax systems, develop proposals for uniform state tax laws, adopt advisory uniform administrative regula21. In United States v. New Mexico, supra, the Court noted a final irony that reveals how attentive the Court is to con¬ gressional will in this area. In Carson v. Roane-Anderson Company, 342 U.S. 232 (1952), the Court held that Atomic Energy Commission management contracts essen¬ tially identical to the DOE contracts at issue in the New Mexico case were statuto¬ rily exempt from state taxation because of a sentence in the Atomic Energy Act that prohibited state or local taxation of AEC Tribe-Amer.Const.Law

2nd Ed. UTB — 14

’'activities.” Congress promptly repealed that sentence. The DOE in 1982 was thus asking the Supreme constitutional

Court to establish a

immunity

where

Congress

had expressly eliminated a statutory immu¬ nity. See 455 U.S. at 743-44.

1. Virginia v. Tennessee, 148 U.S. 503, 520 (1893). § 6-33 2. 434 U.S. 452 (1978).

522

LIMITS ON STATE

AND

LOCAL

POWER

Ch. 6

tions, and conduct audits on behalf of member states. In rejecting a compact clause challenge, the Court concluded that the legislation, its creation of a multistate authority notwithstanding, did not enhance the political power of the compacting states in a manner that encroached upon or otherwise interfered with the just supremacy of the federal government. Although the compact clearly increased the bargaining power

of member

states vis-a-vis multistate corporations, the Court

ruled that the relevant test was "whether the compact enhance[d] state power quoad the national government.” 3 The Court noted that histori¬ cally it had "upheld a variety of interstate agreements effected through reciprocal legislation without congressional consent,” 4 and held that the Multistate Tax Compact went little beyond such reciprocal arrange¬ ments: each member state retained complete freedom to adopt or reject the Commission’s recommendations and was free to withdraw at any time; moreover, the Commission possessed no powers that the member states did not themselves possess independently.5 After Multistate Tax Commission , the Court had little trouble in unanimously upholding reciprocal, unilaterally revocable, regional bank acquisition statutes in Northeast Bancorp , Inc. v. Bd. of Governors of the Federal Reserve System.6 The Massachusetts and Connecticut laws challenged there as an unauthorized compact allowed bank hold¬ ing companies from other New England states to acquire banks within the two states, provided that the acquiror’s home state extended recip¬ rocal acquisition privileges. No multistate commission or other third level of authority was injected into the federal structure, no change in the political relationship of the states was effected, and no challenge was mounted to federal authority, for the Federal Reserve Board continued to regulate mergers

and other aspects of the banking busi¬

ness.7 3. Id. at 473. 4. Id. at 469. See, e.g., Bode v. Barrett, 344 U.S. 583 (1953) (reciprocal exemptions of non-resident motorists from highway use tax require no consent); St. Louis & San Francisco Ry. Co. v. James, 161 U.S. 545 (1896) (reciprocal permission for out-ofstate corporations to operate within state). 5. 434 U.S. at 473. 6. 472 U.S. 159 (1985).

7. The Court went on to assume argu¬ endo that the reciprocal legislation consti¬ tuted a compact, and still found the com¬ pact clause inapplicable. Having previously found that Congress, in passing the Douglas Amendment to the Bank Hold¬ ing Company Act, intended to authorize the type of actions taken by Massachusetts and Connecticut, the Court stated that the compact clause did not come into play be¬ cause the "challenged state statutes which comply with that Act cannot possibly in¬ fringe federal supremacy.” 472 U.S. at 176 (emphasis added). Thus, the import of

congressional consent was not that the compact clause had not been violated, but that the clause was wholly inapplicable. Although the Court did not emphasize this point, there is obviously an incentive for supporters of a state agreement to con¬ clude that the compact clause is inapplica¬ ble, since the consequence of finding that there is no violation (due to congressional consent) is that the states’ agreement be¬ comes federal law. This subtle aspect of the Northeast Bancorp opinion may be a harbinger of future efforts to cut back on the notion that prior congressional consent necessarily transforms reciprocal state leg¬ islation into federal law. Justice Rehnquist, the author of the unanimous opinion in Northeast Bancorp, had warned in his earlier dissent in Cuyler v. Adams, 449 U.S. 433, 454 (1980), discussed infra, that "the Court’s opinion threatens to become a judicial Midas meandering through the state statute books, turning everything it touches into federal law.”

LIMITS

§ 6-33

ON STATE

AND

LOCAL

523

POWER

If Multistate Tax Commission limited the range of interstate agree¬ ments that Congress must authorize, Cuyler v. Adams 8 expanded the range of agreements that Congress may authorize. Cuyler involved the procedures accorded a Pennsylvania state prisoner transferred to New Jersey pursuant to the Interstate Agreement on Detainers, reciprocal legislation adopted by both states. In ruling on the prisoner’s chal¬ lenge, the Court first had to determine whether the Detainer Agree¬ ment was a formal "compact” within the meaning of the clause — hence federal law requiring federal judicial interpretation 9-— or mere recipro¬ cal legislation to which Congress may have given its consent in ad¬ vance, albeit unnecessarily. The Court ruled that the Multistate Tax Commission test did not apply: "where Congress has authorized the states to enter into a cooperative agreement, and where the subject matter is an appropriate subject for congressional legislation, the consent of Congress transforms the states’ agreement into federal law under the compact clause.” 10 Because crime control was an appropriate subject for federal legisla¬ tion, it was sufficient for the Court that, 22 years before, Congress had given blanket approval to all interstate crime prevention agreements in the Crime Control Act of 1934. Cuyler underscores the Court’s belief that federal supremacy is the core of the compact clause. The reason for the requirement that compacts be approved by Congress — rather than solely by the states involved — is, in Justice Story’s words, "to check any infringement on the rights of the national government.” 11 There can be little concern that those rights have been infringed if Congress has already given its blessing to an interstate compact. Therefore, the probability that the Detainer Agreement fell well below the threshold of impact on the federal system set forth in Multistate Tax Commission simply did not interest the Cuyler majority. Since the "requirement that Congress approve a compact is to obtain its political judgment,” 12 the Court concluded that the Detainer Agreement was to be treated as a compact pursuant to the compact clause because Congress wished it, whether or not the Constitution demanded it. Cuyler thus stands for the proposi¬ tion that, if Congress enacts some kind of consent legislation, the Court will defer to Congress’ political judgment that the compact is good for the nation and simply ignore the Multistate Tax Commission test. But if Congress has been silent or has actively disapproved, the Court will then examine the challenged agreement on its own terms, in accord with the Court’s own precedents, to determine whether the compact clause (or perhaps the commerce clause) makes the absence of congres¬ sional authorization or approval fatal. Congressional

consent, when

required, may

be inferred from a

statute or pattern of enactments,13 may take the form of prior authori8. 449 U.S. 433 (1981).

whether [a compact] enhances

9. 449 U.S. at 438 & n. 7.

quoad the national government”). 12. 449 U.S. at 441 n. 8.

10. Id. at 440. 11. J. Story, Commentaries on the Con¬ stitution ]|1403 (1833). See Multistate Tax Commission,

434 U.S. at 473 (the ’'test is

state power

13. See, e.g., Virginia v. Tennessee, 148 U.S. 503, 521 (1893); Green v. Biddle, 21 U.S. (8 Wheat.) 1, 85-86 (1823).

524

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

zation as well as that of subsequent approval,14 and may be conditioned on state acceptance of congressionally mandated modifications.15 Whether or not the United States chooses to become one of the compacting parties,16 a valid compact is binding on the citizens of the signatory states,17 may be enforced by federal statute,18 and itself operates as federal law in the sense that construction of its terms is a federal question for purposes of Supreme Court review of a state court decision 19 and in the further sense that signatory states cannot plead state law, even state constitutional law, as a defense to compliance with the compact’s terms as construed by the Supreme Court.20 But a multistate commission established by an authorized compact should not necessarily be considered a federal agency for the purposes of such constitutional provisions as the appointments clause.21 A second example is congressional ratification of state commerce regulation. Although the seminal decision in Cooley v. Board of Port Wardens 22 is most accurately read as having implied that Congress lacks power to legitimate what would otherwise be an invalid state intrusion upon interstate commerce, that position was abandoned in dictum in Leisy v. Hardin 23 and in any event could hardly have been reconciled with the prevalent theory that state intrusions upon com¬ merce can be judicially invalidated only because of Congress’ para¬ mount and plenary authority over the activities the state is said to have improper^ affected.24 By 1945, the Supreme Court was thus able to describe as "undoubted” the power of Congress "to redefine the distri¬ bution of power over interstate commerce” so as to "permit the states 14. See, e.g., Cuyler v. Adams, 449 U.S. 433 (1981). 15. See, e.g., Petty v. Tennessee-Missouri Bridge Comm., 359 U.S. 275 (1959). 16. See Grad, "Federal-State Compact: A New Experiment in Co-operative Feder¬ alism,” 63 Colum.L.Rev. 825 (1963).

interstate council may be appointed by state governors, rather than pursuant to article II, § 2, cl. 2, because a compact agency’s officers are not "officers of the United States”). Cf. Melcher v. Federal Open Market Comm., 644 F.Supp. 510 (D.D.C.1986) (private persons appointed by directors of federal reserve banks, rather than pursuant to art. II, § 2, cl. 2, may serve on a Federal Reserve committee and

17. See Poole v. Fleeger’s Lessee, 36 U.S. (11 Pet.) 185, 209 (1837); Hinderlider v. La Plata Co., 304 U.S. 92, 104, 106 (1938).

may engage in open market trading of government securities as element of na¬ tional monetary policy).

18. See Virginia v. West Virginia, 246 U.S. 565, 601 (1918).

22. 53 U.S. 299 (1851). See § 6-4, su¬

19. See Delaware River Joint Toll Bridge Commission v. Colburn, 310 U.S. 419 (1940). 20. See West Virginia ex. rel. Dyer v. Sims, 341 U.S. 22 (1951). Insofar as Jus¬ tice Frankfurter’s majority opinion sug¬ gests federal power to revise the state

23. 135 U.S. 100, 108, 109-10 (1890). pra. Congress responded to Leisy’s invitation by passing a statute authorizing precisely the state liquor regulations Leisy had held un¬ constitutional, and the Court promptly up¬ held the statute. In re Rahrer, 140 U.S. 545 (1891). Accord, Whitfield v. Ohio, 297 U.S. 431 (1936).

court’s interpretation of its own constitu¬ tion, cf. id. at 33-34 (Reed, J., concurring), it seems plainly wrong; the outcome of the decision, binding West Virginia to its com¬ pact, is amply supported by the supremacy clause of article VI.

24. To the extent that state intrusion is deemed offensive because of a constitution¬ ally mandated allocation of responsibility

21. See Seattle Master Builders Ass’n v. Pacific Northwest Power Planning Council, 786 F.2d 1359 (9th Cir.1986) (officers of

independent of Congress’ wishes, however, congressional ratification would amount to an impermissible delegation of federal au¬ thority. See § 5-17, supra.

§ 6-33

LIMITS

ON STATE

to regulate the commerce

AND

LOCAL

in a manner

POWER

525

which would not otherwise be

permissible. . . S’25 Shortly after the Supreme Court had held in 1944 that the Sher¬ man Anti-Trust Act of 1890 applied to interstate insurance business as a form of "commerce/’ 26 Congress passed the McCarran Act, which not only deferred and limited the applicability of federal antitrust laws to the insurance business but also provided that "silence on the part of Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.” In Prudential Insurance Co. v. Benjamin21 the McCarran Act was held to have congressionally ratified a South Carolina tax on out-of-state insurance companies doing business within that state, even though the tax was not matched by any comparable tax on local insurance companies and therefore discriminated against interstate commerce in a manner that would not have survived judicial scrutiny in the absence of such congressional action.28 The principle of Prudential v. Benjamin applies only to the com¬ merce clause, and cannot properly be extended to a conclusion that Congress has limitless power to authorize state discrimination against out-of-state citizens. The equal protection clause still imposes limits on state action, and nothing in the fourteenth amendment suggests that Congress has authority to deprive people of constitutional protection against discrimination by state government.29 Properly understood, the privileges and immunities clause of article IV, § 2, likewise confers a personal right against state action unjustifiably discriminating against out-of-staters, whether or not such discrimination has purportedly been sanctioned by Congress.30 Congressional authorization of state regulation otherwise imper¬ missible under the commerce clause comes in different degrees, and the Court will examine the federal legislation carefully before upholding challenged state laws. The McCarran Act has been read as tantamount to congressional abdication to the states of the field of insurance regulation.31 Therefore, in Western & Southern Life Insurance Co. v. 25. Southern Pacific Co. v. Arizona, 325 U.S. 761, 769 (1945) (dictum). 26. United States v. South-Eastern Un¬ derwriters Association, 322 U.S. 533 (1944). 27. 328 U.S. 408 (1946). 28. See, e.g., Welton v. Missouri, 91 U.S. 275 (1876), discussed in § 6-17, supra. 29. Section 5 of the fourteenth amend¬ ment "grants Congress no power to re¬ strict, abrogate, or dilute these guaran¬ tees.” Katzenbach v. Morgan, 384 U.S. 641, 651 n. 10 (1966). And while the Su¬ preme Court "give[s] deference to congres¬ sional decisions and classifications, neither Congress nor a State can validate a law that denies the rights guaranteed by the fourteenth amendment.” Mississippi Uni¬ versity for Women v. Hogan, 458 U.S. 718, 732-33 (1982).

30. See §§ 6-34 and 6-35, infra. But see White v. Mass. Council of Constr. Em¬ ployers, 460 U.S. 204, 215 n. 1 (1983) (Blackmun, J., concurring in part and dis¬ senting in part) (indicating that the ques¬ tion is still open whether Congress can authorize what would otherwise be a viola¬ tion of the privileges and immunities clause); Shapiro v. Thompson, 394 U.S. 618, 666 (1969) (Harlan, J., dissenting) (ar¬ guing that it "appears settled” that the privileges and immunities clause does not limit federal power). 31. The

Court

will not

infer such

sweeping abdication. In Sporhase v. Ne¬ braska, 458 U.S. 941 (1982), the Court re¬ viewed groundwater legislation enacted by Nebraska that barred groundwater exports unless the state receiving the water had reciprocal laws authorizing the export of

526

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

State Board of Equalization ,32 the Court had little difficulty in uphold¬ ing a California law that inflicted a retaliatory tax on foreign insurance companies whose home states imposed higher taxes on California insur¬ ers. That is, if Ohio imposed a 3% premium tax on all insurance policies issued in Ohio, including those issued by companies incorporat¬ ed in California, while California charged only a 2% premium tax, California would hit all policies issued by Ohio companies with a 1% premium surtax in order to induce those insurers to persuade the Ohio legislature to lower its tax rate, at least as applied to California insurance companies.33 The Court upheld the resulting interstate tariff war over both commerce clause and equal protection challenges, declar¬ ing that there "can be no doubt that the promotion of domestic industry by deterring barriers to interstate business is a legitimate state pur34 pose.,, Not all congressional authorizations of state regulation are as sweeping as the McCarran Act. In Northeast Bancorp, Inc. v. Bd. of Governors y35 the Court unanimously upheld state bank acquisition stat¬ utes enacted by several New England states that discriminated against bank holding companies from outside a six-state region.36 The Justices water to Nebraska. It was clear that Con¬ gress had not specifically approved this arrangement, nor had it previously autho¬ rized states to erect such barriers to trade with non-reciprocating states. Therefore, Nebraska’s only hope was to convince the Court that Congress had abdicated control over water rights to the states. But the Court held that routine congressional ap¬ proval of interstate water compacts and a pattern of deference to the states evidenced

competitors, see Western & Southern, the narrow majority in Metropolitan Life opined that the "promotion of domestic business within a state, by discriminating against foreign corporations that wish to compete by doing business there, is not a

32. 451 U.S. 648 (1981).

legitimate state purpose.” 470 U.S. at 880. See Chapter 16, infra. A few weeks later, the Court unanimously upheld state legis¬ lation that discriminated against bank holding companies on the basis of their state residence; the Court deemed promo¬ tion of smaller, responsive, locally-oriented banks to be a legitimate state goal. North¬ east Bancorp, Inc. v. Bd. of Governors, 472 U.S. 159, 172-73 (1985). Metropolitan Life, which is criticized in

33. Id. at 650-51. His rhetoric carried

Cohen, "Federalism in Equality Clothing: A Comment on Metropolitan Life Ins. Co.

by 37 separate pieces of federal water legis¬ lation did not mean that the field had been expressly abandoned to the states. Id. at 959-60. The case is discussed further in § 6-10, supra.

aloft by the drama of the contemporaneous Iran hostage crisis, see Dames & Moore v. Regan, 453 U.S. 654 (1981), discussed in § 9-7, infra, Justice Stevens characterized the California law as yet another deplorable example of the practice of

v. Ward,” 38 Stan.L.Rev. 1 (1985), is best seen as an aberration. Once Congress has given the states free reign to regulate a particular field unconstrained by com¬ merce clause objections, there would seem to be little merit in applying the equal

"holding economic hostages to coerce an¬ other sovereign to change its policies.” 451 U.S. at 674 (Stevens, J., dissenting).

protection clause to re-impose the very same policies against economic protection¬ ism that Congress swept aside when it leg¬ islatively suspended the dormant com¬ merce clause. See Metropolitan Life, 470 U.S. at 898-900, 105 S.Ct. at 1693

34. Id. at 671. In Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985), the Court ruled 5-4 that a state law impos¬ ing a higher gross premiums tax on out-ofstate insurers than on in-state insurance companies would violate the equal protec¬ tion clause if it were not related to a legiti¬ mate state interest, and remanded for de¬ velopment of the record. Although the Court had upheld California’s promotion of domestic insurance companies by levying a tax that discriminated against non-resident

(O’Connor, J., dissenting); Northeast Bancorp, 472 U.S. at 179-80 (O’Connor, J., concurring). 35. 472 U.S. 159 (1985).

36. The author argued in the Supreme Court on behalf of the New England banks, defending the state statutes.

§ 6-33

LIMITS

ON STATE

AND

LOCAL

POWER

527

read the Bank Holding Company Act of 1956 as itself balkanizing banking along state lines, while authorizing the individual states to lift the general federal barrier to interstate bank acquisitions to the extent that they saw fit. The power to exclude out-of-state holding companies altogether was understood in Northeast Bancorp to encompass the power to admit only holding companies from reciprocating New Eng¬ land states, thereby providing the congressional authorization without which the state statutes would have violated the commerce clause.37 Yet in Lewis v. BT Investment Managers, Inc .,38 the Court had deployed the commerce clause to strike down a Florida law that prohibited outof-state banking institutions from owning or controlling a Florida investment advisory business. The statute was overtly parochial, in that it prevented foreign enterprises from competing in local markets, and hence implicated the dormant commerce clause. The Court unani¬ mously opined that the freedom granted to the states by the Bank Holding Company Act to allow interstate acquisitions in whole or in part did not include the freedom to discriminate between local and foreign holding companies with respect to other areas of bank regula¬ tion, or the freedom to use that power as a lever to induce out-of-state holding companies, as a condition to entry to the Florida market, to accept extraneous

regulation by the state.39

Finally, as §§ 6-30 and 6-31 indicated, Congress may ratify what would otherwise be struck down as an invalid state tax on the United States, its instrumentalities, or its property. To suppose simply because Congress has the power of the purse and shift federal resources to the states if it wished would since it is not the fiscal burden of a state tax but its legal

that this is so could directly be a mistake, incidence that

triggers immunity in the absence of congressional consent.40 Thus the power of Congress to consent to an otherwise invalid state action in this area and others like it must be understood as reflecting a judgment that, although the underlying limit on state action rests on deeper values and concerns than a mere negative inference from a grant of congressional power, Congress can safely be assumed to have given those values and concerns adequate weight in deciding to override the underlying limit.41 But that judgment of confidence in Congress must itself be tem¬ pered by three kinds of reservations: First, Congress must not have the final word in every instance on the degree to which national responsi¬ bilities may be delegated to the states.42 Second, the courts rather than Congress must be the arbiters of whether a particular ratification 37. Although not the compact See note 7, supra.

clause.

39. For an anticipatory defense of the Northeast Bancorp decision in the face of BT Investment Managers, by analogy to the "market participant” theory discussed in § 6-11, supra, see L. Tribe, Constitution¬ al Choices 138-48 (1985). 40. See § 6-31, supra. 41. See § 6-32, supra.

¬ le to or¬ to a. , iennt f inss ig t pr r al re ns rn a su w on ng cort he e t si po Cgo y c S ( n s l n o Z es7, im ri te si gr-1 te olaut tCfr.u 8)on 5 as 6c § en s h ab tnal in (19 o on in r h as i ssre ea uc s3 . re a cl e’44 e (s at pl ng h s co suc t st am , it ed s( ha ms ex 29 im er 4 t L on id ee a ti ns or . e s ac co ir ns it ) f fyU.S qu io es ti e ree ct . , r onoc ra s 9 a at a g) ir8 ita st fa3 in ll o at ea s otaf rr n u , th tat c on er n ns ti n , lnl co ee ) ga ig en d Miig tw es d re dd ulre , le be vi an fo bi cofo v. J. de

38. 447 U.S. 27 (1980).

st

Ju a

528

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

impermissibly intrudes upon the constitutional responsibilities of the Executive Branch.43 And third, insofar as federalism-based limits on state action also affirm underlying personal rights against government generally, Congress should be no more able to authorize state invasion of such rights than either Congress or a state is able independently to invade them.44

§ 6-34. The Privileges and Immunities Classic Doctrine

of State Citizenship: The

Article IV, § 2 builds a bridge between

federalism and personal

rights by providing that "[the] Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States.” 1 The modern understanding of this interstate privileges and immunities clause, an understanding that sets the clause on a course closely parallel to that of the commerce clause, was announced by the Supreme Court in Toomer v. Witsell: 2 "The primary purpose of this clause . . . was to help fuse into one nation a collection of independent, sovereign states. It was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.” There has been little debate about this basic purpose. Courts and commentators from the beginning have agreed that tates national unification by promising some measure tion for citizens who venture beyond the borders of "Indeed, without some provision of this kind removing of each state the disabilities of alienage in the other

the clause facili¬ of federal protec¬ their own state.3 from the citizens States . . . the

Republic would have constituted little more than a league of States.” 4 43. Cf. Myers v. United States, 272 U.S. 52 (1926), discussed in § 4-10, supra. In making that judgment, however, courts must be mindful of the constitutional (if

3. Article IV, § 2, is a shortened ver¬ sion of the privileges and immunities clause of article IV of the Articles of Con¬ federation. Persuaded that article IV, § 2

not political) dominance ordinarily accord¬ ed congressional power when it clashes with that of the executive.

of the proposed constitution was "formed exactly upon the principles of the 4th arti¬ cle of the present Confederation . . .”,3 M. Farrand, Records of the Federal Con¬ vention of 1787 at 112 (1911), the Constitu¬ tional Convention adopted the privileges and immunities clause with little discus¬ sion. 2 id., at 173, 187, 443. Alexander Hamilton later asserted that the policy ex¬ pressed in the privileges and immunities

44. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 629-31, 641-42 (1969) (one-year waiting period for new residents seeking welfare infringes personal right to travel interstate and can be saved neither by congressional authorization nor, in the case of the District of Columbia, by direct congressional enactment); Crandall v. Ne¬ vada, 73 U.S. (6 Wall.) 35, 43-44 (1868) (state tax on privilege of leaving state vio¬ lates rights of national government and "correlative rights” of citizens in a nation¬ al polity).

-34immunities” § 6or 1. The "privileges

of na¬

tional citizenship are discussed in Chapter

7, infra. Article IV, § 2, limits only state power. On the relationship between state deprivation of privileges secured by article IV, § 2, and congressional authorization, see § 6-33, supra, notes 29-30. 2. 334 U.S. 385, 395 (1948).

clause was "the basis of the Union.” The Federalist No. 80 at 575 (Modern Lib. Ed., 1937). 4. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869). The commerce clause, of course, could have served as a unifying and centralizing force of a comparable sort — and indeed has served something like that function. See, e.g., Baldwin v. Seelig, 294 U.S. 511, 522-23 (1935), discussed in § 6-6, supra. But it would have been more diffi¬ cult for the commerce clause to serve as a charter of personal rights secure against all governmental

action.

§ 6-34

LIMITS

ON STATE

AND

LOCAL

POWER

529

But as to the specific content of national protection, no consensus was forged until the post-Civil War

years.

In Corfield v. Coryell ,5 the first major case decided under article IV, § 2, Justice Bushrod Washington concluded that the privileges and immunities clause encompassed those privileges "which are in their very nature, fundamental; which belong, of right, to the citizens of all free governments.” Among these fundamental rights he included "the right of a citizen of one state to pass through or reside in any other state, for purposes of trade ... or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold, and dispose of property; and an exemption from higher taxes or impositions than are paid by the other citizens of the state.” 6 Justice Washington chose to frame only one right in terms of unequal treatment. The remainder he took to be absolute rights, "the enjoyment of [which] by the citizens of each state, in every other state, was manifestly calculated . . . . ” 7 The natural rights of state citizens were clothed, in his view, with national protection against the desires of the foreign states through which they passed. Behind the 1823 Corfield opinion lay the nineteenth century controversy over the status of "natural rights” in constitutional litigation. Some judges had sup¬ posed an inherent limitation on state and federal legislation that compelled courts to strike down any law "contrary to the first great principles of the social compact.” 8 They were the proponents of the natural rights doctrine which, without specific constitutional moorings, posited "certain vital principles in our free republican governments, which will determine and overrule an apparent abuse of legislative 9 powers.” Corfield can be understood as an attempt to import the natural rights doctrine into the Constitution by way of the privileges and immunities clause of article IV. By attaching the fundamental rights of state citizenship to the privileges and immunities clause, Justice Washington would have created federal judicial protection against state encroachment upon the "natural rights” of citizens. On its face, his decision held only that states must accord the fundamental, "natural” rights of state citizenship to non-residents. But broader implications were irresistible: for a state to withhold from its own citizens the personal and property rights that it extended, whether under constitu¬ tional compulsion or otherwise, to citizens of other states would have been anomalous in the extreme. Furthermore, the courts need only take a small step beyond Corfield to require similar treatment of all state citizens in every state, establishing in effect a body of uniform national rights protected from state intrusion by the Federal Govern¬ ment. 5. 6 Fed.Cas. 546, 551-52 (No. 3230) (C.C.E.D.Pa.1823) (on circuit) (non-citizens have no right to gather shellfish in New Jersey waters). 6. Id. at 552. 7. Id.

8. Calder v. Bull, 3 U.S. (3 Dali.) 386, 388 (1798) (Chase, J.), discussed further in § 8-1, infra. 9. 3 US. at 388

530

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

But the Supreme Court never acceded to the natural rights doc¬ trine that informed Cor field. 10 And in a series of cases beginning with Paul v. Virginia 11 and Downham v. Alexandria ,12 the Court rejected the natural rights theory of the privileges and immunities clause entirely, concluding in the Slaughter-House Cases 13 that article IV "did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause ... no security for the citizen of the State in which they were claimed.” 14 In other words, the privileges and immunities clause of article IV was not a source of substantive federal protection for natural rights. Rather, the object of the clause was found to be solely that of "relieving state citizens of the disabilities of alienage in other States and of inhibiting discriminatory legislation against them by other States.” 15 To serve this more limited objective, the Court need not define a set of fundamental rights that states must grant to citizens of other states; it need only declare that "whatever . . . rights [each state] grants ... to [its] own citizens . . . shall be the measure of the rights of citizens of other states within [that state’s] jurisdiction.” 16 Thus a state might withhold what might be deemed fundamental rights from citizens of other states so long as it withheld the same rights from its own citizens; and nonfundamental rights might be extended to a state’s own citizens without parity of treatment for outsiders. State laws that failed both tests were struck down: only they transgressed the right to nondiscriminatory treatment of fundamental rights of state citizenship. Although this interpretation of the privileges and immunities clause necessitated a determination of which rights were fundamental to state citizenship and which were not, the Supreme Court refused to offer a general definition, believing it "safer, and more in accordance with the duty of a judicial tribunal, to leave [the matter] to be determined, in each case, upon a view of the particular rights asserted and denied therein.” 17 So the lower federal courts were left to ham¬ mer out the categories of protected and unprotected rights over the course of litigation. In performing that function, they relied heavily on the illustrations in Corfield v. Coryell. As a result, the natural rights doctrine continued to play a part, albeit indirect, in article IV adjudica¬ tion.18 10. A number of individual Supreme Court Justices did embrace the natural rights theory of the privileges and immuni¬ ties clause in dissenting opinions, however. See, e.g., Justice Curtis, dissenting in Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 580 (1857), and Justice Bradley, dissenting in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 117, 118 (1873). 11. 75 U.S. (8 Wall.) 168 (1869). 12. 77 U.S. (10 Wall.) 173 (1870). 13. 83 U.S. (16 Wall.) 36 (1873), dis¬ cussed in §§ 7-2, 8-1, infra. 14. 83 U.S. at 77. 15. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869).

16. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 77 (1873). 17. Conner v. Elliot, 59 U.S. (18 How.) 591, 593 (1856). For a discussion of what were and were not fundamental rights of state citizenship under the traditional in¬ terpretation of privileges and immunities, see Meyers, "The Privileges and Immuni¬ ties of Citizens in the Several States”, 1 Mich.L.Rev. 286, 364 (1902). 18. Compare

the closely analogous role

played by "fundamental rights” in trigger¬ ing equal protection strict scrutiny. See §§ 16-7 to 16-12, infra.

LIMITS

§ 6-34

ON STATE

AND

LOCAL

531

POWER

The natural rights theory of Corfield had been abandoned

by the

mid-1870’s but its holding lived on in McCready v. Virginia.19 In that case, a Virginia law effectively prohibited citizens of other states from oyster farming in the Ware River. Writing for the Court, Chief Justice Waite upheld the discrimination: "[T]he right which the people of the State . . . acquire [in common property] comes not from citizenship alone but from citizenship and property combined. . . . The right thus granted is not a privilege or immunity of general but of special citizenship; it does not belong of right to the citizens of all free governments . . . . ” 20 Because farming oysters was not a fundamen¬ tal right that attached to state citizenship, the privileges and immuni¬ ties clause did not guarantee its equal availability. The rigid application of the standards outlined here would have struck down all discriminatory state legislation that touched fundamen¬ tal rights of state citizenship. But sensitive to the special problems that non-residents presented for state policies, the Supreme Court, in the late nineteenth and early twentieth centuries, carved out excep¬ tions for discriminations that "could not reasonably be characterized as hostile to the rights of citizens of other states.” 21 The clearest cases presented procedural "discriminations” against nonresidents, in the form of rules requiring them to appoint state officials as agents for service of process before being permitted to drive 22 or conduct busi¬ ness 23 in the state. In each case, the Supreme Court held that the discrimination was more apparent than real since the statutes simply tended to put non-residents "on the same footing as residents” in amenability to process for actions arising within the state. But the criteria for judging reasonableness remained

vague. Laws

forbidding non-residents from selling insurance 24 and restricting their access to state courts 25 passed as reasonable regulations on the tenuous ground that they discriminated against non-residents rather than against citizens of other states.26 The reasonableness exception thus 19. 94 U.S. (4 Otto) 391 (1876). 20. Id. at 396. The common

property

doctrine subsequently spread to commerce clause litigation. See, e.g., Geer v. Con¬ necticut, 161 U.S. 519 (1896); Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908), discussed in § 6-9, supra.

21. Blake v. McClung, 172 U.S. 239, 256 (1898).

22. Kane v. New (1916); Hess (1927).

Jersey, 242 U.S. 160

v. Pawloski, 274 U.S. 352

23. Doherty & Co. v. Goodman, 294 U.S. 623 (1935).

24. La Tourette v. McMaster, 248 U.S. 465 (1919).

25. Douglas v. New

Haven

R.R., 279

U.S. 377 (1929).

26. The Court had seen through this guise in other cases. Blake v. McClung,

172 U.S. 239 (1898); Travis v. Yale & Towne Mfg. Co., 252 U.S. 60 (1920). A different justification for upholding a state statute that restricted the rights of non¬ residents to sue in the state’s courts was provided in Canadian Northern Ry. v. Eggen, 252 U.S. 553 (1920). The statute in question barred by lapse of a designated period of time actions arising outside of the state unless the plaintiff was a citizen of the state. The Court simply ignored the discrimination and held that "a man can¬ not be said to be denied . . . the privilege of resorting to courts to enforce his rights when he is given free access to them for a length of time reasonably sufficient to en¬ able an ordinarily diligent man to institute proceedings for their protection.” Id. at 562 (emphasis added). Compare the shift from equal to minimal protection in pover¬ ty cases in §§ 16-51 to 16-59, infra.

LIMITS ON STATE

AND

LOCAL

POWER

Ch. 6

tempered the otherwise rigid impact of the privileges and immunities clause but did so in an unpredictable and seemingly arbitrary manner.27

§ 6-35. Privileges and Immunities ern Interpretation

of State Citizenship: The Mod¬

The equal right to fish reached the Supreme Court for the third time in Toomer v. Witsell.1 A South Carolina law limited commercial access to migratory shrimp in the three-mile maritime belt off the

.

7

532

state’s coast by imposing a license fee of $25 for each shrimp boat owned by a resident, but $2500 for each such boat owned by a nonresi¬ dent. South Carolina attempted to justify the discrimination as reason¬ able, claiming that it furthered the state’s interest in conserving its supply of shrimp and paid for the additional conservation expenses attributable to non-taxpaying shrimpers. The state also pleaded the common property doctrine of McCready v. Virginia.2 From the collision of a discriminatory state tax, the common property doctrine, and the reasonableness exception emerged the modern interpretation of the privileges and immunities clause of article IV, § 2. Chief Justice Vinson, speaking for the Court, rejected the "well-settled” 3 rule of McCready. The Court initially distinguished the McCready case on two grounds: shrimp swimming past a state’s shore could not easily be called state property; 4 and while a state may regulate activity off its shore, a recent Supreme Court decision had held that no state actually owned

off-shore waters.5

More

importantly, the Toomer

Court pro¬

claimed "the whole ownership theory [to be] but a fiction expressive ... of the importance [of recognizing each state’s] power to preserve and regulate the exploitation of an important resource.” 6 Thus South Carolina would be allowed to discriminate against non-residents only so far as necessary to execute the state’s responsibility to safeguard important natural resources. That holding, in turn, subsumed the whole common property doctrine under a second exception to the rule of nondiscrimination. In place of the traditional interpretation of the privileges and immunities clause of article IV, the Toomer Court enunciated the substantial reason test: 7 "Like many other Constitu¬ tional provisions, the Privileges and Immunities Clause is not absolute . . . [I]t does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it . . . [But] it does bar discrimination against citizens of other States 27. For a discussion of other doctrinal excuses for allowing "reasonable” discrimi¬ nations, see Note, "The Equal Privileges and Immunities Clause of the Federal Con¬ stitution,” 28 Colum.L.Rev.

347 (1928).

1. 334 U.S. 385 §(1948). Another aspect 6-35 of Toomer is discussed in § 6-9, supra. 2. 94 U.S. (4 Otto) 391 (1876), discussed

4. The Court relied on Justice Holmes’ statement in Missouri v. Holland, 252 U.S. 416, 434 (1920): "To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership.” 5. United States v. California, 332 U.S. 19 (1947).

in § 6-34, supra. 3. Described as such in Note, "The Equal Privileges and Immunities Clause of

6. 334 U.S. at 402.

the Federal Constitution,” 28 Colum.L.Rev. 347 n. 9 (1928). 396. Ida.t

LIMITS

ON STATE

AND

LOCAL

POWER

533

§ 6-35 where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” In the first application of the substantial reason test, the Supreme Court struck down the South Carolina licensing act. The state’s interests in conserving shrimp and paying the costs of doing so were insufficient because the state failed to establish (1) a sufficiently unique link between the interests served and the discrimination practiced; 8 (2) a sufficiently demonstrated link between the legitimate interests served and the discrimination practiced; 9 and (3) the actual impracticality of apparent and less restrictive alternatives .10 Later doctrine, both under the commerce clause and under the equal protection clause, was to be much influenced by this 1948 formulation. Its "substantial reason” test permits disparate treatment of non-residents, but only where the very fact of their non-residence demonstrably creates problems for legitimate state objectives that cannot be remedied in less discriminato¬ ry ways. Toomer v. Witsell dramatically shifted the focus of review under the privileges and immunities clause from categorizing fundamental rights of state citizenship to analyzing state justifications for maintain¬ ing the challenged discriminatory burdens. A flexible approach that seeks to allow discrimination but only where necessary was substituted for the rigidity inherent in a test that cast down any discrimination once found to diminish a fundamental right of state citizenship. In addition, the Toomer standard explicity isolated the factors involved in a privileges and immunities clause judgment of reasonableness, factors previously vague and ad hoc. In spite of this shift in focus, the fundamental rights approach has not been purged from privileges and immunities clause analysis. In Toomer itself the Court took time to point out that the right in question, pursuing a business on equal terms with state residents, was fundamental.11 In Doe v. Bolton ,12 which struck down Georgia’s resi¬ dency requirement for those seeking abortions in-state, the Court ap¬ peared to be adding to the panoply of protected privileges when it relied on Toomer to hold that, if article IV, § 2 "protects persons who enter other States to ply their trade, so must it protect persons who enter Georgia seeking the medical services that are available there.” 13 And 8. "[T]he purpose of the clause ... is to outlaw classifications based on . . . non-citizenship unless there is something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed.” Id. at 398. 9. "Nothing in the record indicates that non-residents use larger boats or different fishing methods than residents, or that any substantial amount of the State’s general funds is devoted to shrimp conservation.” Id. 10. "The State is not without power ... to restrict the type of equipment used ... to graduate license fees accord¬ ing to the size of the boat, or even to

charge non-residents a different fee which would merely compensate the State for any added enforcement burden ... or for any conservation expenditure which only resi¬ dents pay.” Id. at 398-99. It should be noted that neither in Toomer nor in any subsequent case has the Court treated re¬ quirements of bona fide residency as bur¬ dens on interstate travel: only durational residency requirements have been so treat¬ ed. See §§ 7-4, 16-8, infra. 11. 334 U.S. at 394. 12. 410 U.S. 179 (1973). 13. Id. at 200.

534

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

Cor field v. Coryell 14 was invoked in Austin v. New Hampshire 16 to invalidate a state commuter income tax which fell on the New Hamp¬ shire-derived income of non-residents while exempting the income residents earned within the state: among the "fundamental” privileges is an "exemption from higher taxes or impositions than are paid by the other citizens of the state.” 16 Finally, Baldwin v. Montana Fish and Game Commission 17 upheld the practice of charging non-residents more than residents for an elk-hunting license on the ground that the privileges and immunities clause protects only "basic and essential activities.” 18 The Court declined to apply the substantial reason test to Montana’s blatantly discriminatory policy because big-game hunting is mere recreation: out-of-state sportsmen therefore have no "fundamen¬ tal” right to shoot Montana elk.19 These invocations of "fundamental” rights are in reality echoes, rather than true incarnations, of the 19th-century natural rights no¬ tions that animated Justice Washington’s opinion in Cor field. The Toomer Court may have used the term "fundamental,” but it was the smallest of rhetorical tails on a body of new and refreshingly practical privileges and immunities analysis: the substantial reason test. Nor does the offhand way in which Bolton added "medical services” — not just abortion — to the list of protected privileges, without any use of the label "fundamental,” suggest that such characterizations were much on the Court’s mind. A closer reading of Austin and Baldwin indicates that their reliance on Justice Washington’s opinion in Corfield was more a matter of convenience than of adherence to outdated doctrine. The privilege vindicated by Austin— the outsider’s privilege against paying taxes higher than those required of locals — is the only right that Corfield framed in terms of discriminatory treatment. Austin's result is perfectly compatible with the modern approach inaugurated by Toomer v. Witsell. Baldwin is a more difficult case, but it, too, must be seen to some extent as a product of the fact, often noted by the Court,20 that the relative dearth of precedents on the privileges and immunities clause leaves the Justices with fewer references when they sit down to draft their opinions. Baldwin's facts — a state acting as guardian for its citizens in preserving the wildlife that sovereigns were once thought to "own”- — provided a setting in which it was particularly easy to slip back into 19th-century rubrics and rationales.21 Although the dissent in Baldwin may have overstated the degree of retrograde motion represented by the majority’s resort to the vestigal 14. 6 Fed.Cas. 546 (No. 3230) (C.C.E.D. Pa. 1823).

15. 420 U.S. 656 (1975). 16. 420 U.S. at 661, citing 6 Fed.Cas. at

of constant litigation and judicial interpre¬ tation”); id. at 395 (Brennan, J., dissent¬ ing) ("the Clause has not often been the subject of litigation before this Court”).

552.

17. 436 U.S. 371 (1978). 18. Id. at 387. 19. Id. at 388.

20. See, e.g., Baldwin, 436 U.S. at 379 (Blackmun, J., for the Court) (the "Clause is not one the contours of which have been precisely shaped by the process and wear

21. The majority in Baldwin

conceded

that "title” to wild animals was " 'no more than a 19th-century legal fiction,’ ” 436 U.S. at 386, but reviewed the old cases nevertheless and said that state steward¬ ship of natural resources remains an im¬ portant consideration. Id. at 384-86. See § 6-10, supra.

§ 6-35

LIMITS

ON STATE

rhetoric of fundamental

AND

LOCAL

535

POWER

rights,22 there can be little doubt that the

dissent’s misgivings about the majority’s unfortunate choice of lan¬ guage were justified. For while the Court had never expressly repudi¬ ated the fundamental rights limitation on privileges and immunities analysis, that view played no substantial part in any of the Court’s opinions from Toomer v. Witsell onward. By restoring it to a place of prominence, the Court payed homage to a doctrinal anachronism.23 What is most curious about the Baldwin decision is that the Court *

District v. Rodriguez : 24 the creation of autonomous catalogues of fundamental rights. This is not to say that the list of fundamental privileges and immunities under article IV is co-extensive with the very limited list of fundamental interests recognized by equal protection doctrine. Indeed, if it took a fundamental equal protection interest to trigger article IV, § 2, the privileges and immunities clause would be superfluous. As the Baldwin Court itself recognized, the equal protec¬ tion clause guards the interests of the class of non-residents in any given state; the presence of a fundamental equal protection interest would therefore activate strict scrutiny independent of the privileges .

9

created for itself much the same problem that it sought to avoid in equal protection jurisprudence in San Antonio Independent School

and immunities clause.25 On the other hand, the mental privileges includes interests — such as work26 — which are not considered fundamental doctrine.27 The prospect that true resurrection proach would require the Court to define a wholly fundamental rights makes Baldwin all the more An

understanding

of what

may

catalogue of funda¬ the opportunity to in equal protection of the Corfield ap¬ separate category of puzzling.

really have been going on in

Baldwin can be obtained by comparison with the Court’s application of the privileges and immunities clause one month later in Hicklin v. Orheck .28 There, the Court unanimously struck down the Alaska Hire statute, which required that qualified residents be given preference in all employment "resulting from” oil and gas leases or pipeline projects to which the State of Alaska was a party.29 Alaska was openly exploiting its propitious natural resource position, and doing so in a manner that could not be entirely explained as a way of helping local 22. See 436 U.S. at 394-402 (Brennan, J., joined by White and Marshall, JJ.) (quoting the first edition of this treatise for the proposition that Corfield was tainted by 19th-century ’'natural rights” notions). 23. This is not to say that the natural rights theory lacks merit in and of itself, only that it has no place in the article IV privileges and immunities clause, which is best understood as embodying the anti-dis¬ crimination principle that the framers deemed to be the basic cement of the union. In contrast, the development of a vigorous natural rights jurisprudence might make eminent sense with regard to the fourteenth amendment’s privileges or immunities clause, which suffered an un¬ fortunate and unnecessary demise soon af¬ ter its birth. See § 7-4, infra.

24. 411 U.S. 1 (1973), discussed in § 169, infra. 25. The right to vote is, of course, the exception, since it is a fundamental inter¬ est for equal protection purposes but does not implicate article IV, § 2. See § 13-12, infra. 26. See, e.g., Hicklin v. Orbeck, U.S. 518 (1978).

437

27. See, e.g., Massachusetts Bd. of Re¬ tirement v. Murgia, 427 U.S. 307 (1976) (per curiam); New Orleans v. Dukes, 427 U.S. 297 (1976). 28. 437 U.S. 518 (1978).

520. Ida.t

536

LIMITS

ON STATE

AND

LOCAL

Ch. 6

POWER

unemployables.30 Moreover, even if the state could have proven that non-residents were a "peculiar source of evil,” as Toomer v. Witsell requires,31 the Alaska Hire statute’s grant of an across-the-tundra job preference to all Alaskans clearly swept too broadly.32 Hicklin itself was unsurprising.

What

was surprising was Hick-

Zm’s failure to distinguish Baldwin : one learns from the that working on pipelines is "basic to the maintenance or the Union” 33 while hunting elk is not.34 Where this kind comes from is less than clear. Why it should be made obscure:

one would

two decisions well-being of of distinction is even more

suppose that neither elk-hunting nor pipeline

employment "bearfs] upon the vitality of the Nation as a single enti¬ ty,” 35 but that the avoidance of unjustified interstate contests with respect to either does. One possible explanation for the Court’s differing approaches in Hicklin and Baldwin is suggested by the familiar theory that the privileges and immunities clause was historically designed to safeguard "all the privileges of trade and commerce.” 36 Such a design suggests that the occupations of life must be protected while sideshows such as the recreational slaughter of elk need not be.37 This distinction serves to explain why discriminatory commercial fishing license fees were invalidated in Toomer while the disparities in resident and non-resident recreational hunting license fees in Baldwin were upheld without even being subjected to privileges and immunities clause scrutiny. This explanation draws substance from the historically close relationship between the privileges and immunities clause and the commerce clause. Both originated in the fourth or so-called states’ relations article of the Articles of Confederation.38 The Hicklin Court explicitly linked the two clauses on the basis of their "shared vision of federalism” and relied on commerce clause decisions.39 30. The record indicated that the newly arrived workers were generally more skilled than unemployed residents, and their ability to command jobs was there¬ fore a symptom of, rather than the cause of, conditions resulting in high unemploy¬ ment rates among Native Alaskans and other residents. Id. at 526-37. 31. 334 U.S. at 398.

32. 437 U.S. at 527-28; see Toomer v. Witsell, 334 U.S. at 398-99. 33. Baldwin, 436 U.S. at 388.

34. The key to this distinction — and to the Court’s failure to reconcile the holdings in Baldwin and Hicklin — may simply lie in the authorship of the opinions. Justice Brennan, who wrote for the Court in Hick¬ lin, had no use for the fundamental rights analysis employed by Justice Blackmun in Baldwin, see 436 U.S. at 402 (Brennan, J., dissenting), and may simply have been loath to legitimate it by distinguishing Baldwin on that basis. Justice Brennan’s opinion for the unanimous Court in Hick¬ lin is strikingly similar to, and even relies upon, the dissent he wrote for himself and

Justices White

and Marshall

in Baldwin.

See, e.g., 437 U.S. at 526. Both opinions rely heavily on Toomer v. Witsell.

35. Baldwin, 436 U.S. at 383. 36. See Austin v. New Hampshire, U.S. 656, 660-61 & n. 6 (1975).

420

37. See Baldwin, 436 U.S. at 388 ("Elk hunting by non-residents in Montana is a recreation and a sport ... It is not a means

to the non-resident’s livelihood”).

38. "The better to secure and perpetu¬

ate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugi¬ tives from justice excepted, shall be enti¬ tled to all privileges and immunities of free citizens in the several States; and the peo¬ ple of each State shall have free ingress and regress to and from any other State and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively. ...” 39. See 437 U.S. at 531-34.

§ 6-35

LIMITS

ON STATE

AND

LOCAL

POWER

537

But the history of the privileges and immunities clause also indi¬ cates that it was designed to bind the citizens of the several states socially and politically as well as commercially. The explicit purpose of the states’ relations article was to "secure and perpetuate mutual friendship and intercourse among the people of the different States.” 40 If the Baldwin Court meant to say that "mutual friendship” among the states is not threatened when blatant state discrimination affects only a non-resident’s recreational activities, it tion about human nature,41 and one Corfield v. Coryell held that states may a citizen to pass through, or to reside in

made a rather dubious assump¬ not shared by earlier Courts. not interfere with "the right of any other state, for purposes of

trade, agriculture, professional pursuits, or otherwise

42 Justice Wash¬

ington included in his catalog of "fundamental” privileges and immuni¬ ties "the enjoyment of life” and the right "to pursue and obtain happiness.” 43 Similarly, Justice Field declared for the unanimous Court in Paul v. Virginia that the clause "insures to [non-residents] in other States the same freedom possessed by the citizens of those States in the . . . pursuit of happiness.” 44 Thus those who would urge the difference between vocational and avocational pursuits to rationalize the holdings in Hicklin and Baldwin tion even in the older case law.

cannot easily locate the distinc¬

Nor is there authority in other areas of constitutional jurispru¬ dence for considering play less fundamental than work when the issue is one of discrimination.45 Indeed, in the equal protection area, the Court has abjured the temptation to rank activities or benefits on a scale of "relative societal significance.” 46 Moreover, even if a narrowly historicist view of the purposes of the privileges and immunities clause did justify a subcategory of interests with respect to which national uniformity is deemed especially important, the underlying vision of the framers — that the states not war with one another by discriminating against one another’s citizens without good reason — should nonetheless be regarded as giving rise to the dominant meaning of the clause even if the framers themselves may have had a more limited set of examples in mind. This, of course, is precisely the virtue of the Court’s flexible approach in Toomer v. Witsell : looking first to the state’s justification for discrimination, rather than to whether the privilege in question is on some short list, allows for consideration of a fuller range of unequal 40. See n. 38, supra. 41. It is not difficult to imagine the outrage of a non-resident who is told that she may not travel on Vermont’s state roads if she seeks only the pleasure of viewing the autumn foliage, or the hostili¬ ty of a vacationing tourist who is charged ten times as much as a resident for the privilege of soaking up sunshine on a southern California state beach. See Varat, "State ’Citizenship’ and Interstate Equality,” 48 U.Chi.L.Rev. 487, 515-16 (1981) (criticizing Baldwin). 42. 6 Fed.Cas. 546, 552 (No. 3230) (C.C. E.D.Pa.1823) (emphasis added). 43. Id.

44. 75 U.S. (8 Wall.) 168, 180 (1869). 45. See Varat, "State 'Citizenship’ and Interstate Equality,” 48 U.Chi.L.Rev. 487, 515-16 (1981) ("the fundamentally doc¬ trine reaffirmed in Baldwin reflects neither an appreciation of the instances in which interstate divisiveness is likely to result from residence classifications, nor the fundamental interest or suspect classi¬ fication approaches to equal protection, nor any other discernible concept that can be tied to the purposes of the privileges and immunities clause”). 46. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33 (1973).

538

LIMITS

ON STATE

AND

LOCAL

POWER

Ch. 6

treatment of outsiders that may well transgress the Constitution’s "norm of comity” 47 without good cause. If neither the history of the clause’s interpretation by the Court nor the broader aims of the clause justify restricting the privileges and immunities of state citizenship to a list of "fundamentals,” the explana¬ tion for Baldwin may lie in a desire on the part of the majority to uphold Montana’s license scheme, coupled with a belief that this desired result could not be reached within the terms of the Court’s current jurisprudence. Montana could constitutionally charge non¬ residents more for elk hunting privileges to the extent that their presence imposed added costs on the state or to the extent that residents, through taxes other than license fees, contributed more to the state’s wildlife management program.48 But uncontroverted testi¬ mony had estimated that the increased costs to the state, both direct and indirect, could justify a non-resident fee no more than resident fee.49 With a $9 elk hunting fee for natives and outsiders,50 the non-resident elk hunter was charged a greater. This degree of disparity was clearly too great

2lh times the a $225 fee for fee 25 times to permit the

Court to treat the discrimination as substantially related to the state’s interest in recouping expenditures on behalf of out-of-state hunters.51 Yet the discrimination could pass muster if scrutinized only for mini¬ mum rationality. By holding that elk-hunting was not a fundamental privilege and therefore that the interest of non-resident sportsmen was beyond the purview of the privileges and immunities clause, the Bald¬ win Court could apply its least exacting standard of review under the equal protection clause.52 It is not readily apparent why the Court wished to uphold a licensing regime that shifted a grossly disproportionate share of the state’s conservation costs onto the shoulders of non-residents. But the majority’s frequent reference to the necessity of attentive and expen¬ sive management of the elk herds and their environment, and to Montana’s commitment to conservation of this unique natural re¬ source,53 reveals that the Court deemed elk to be something Montana 47. Austin v. New at 660.

Hampshire,

420 U.S.

48. 436 U.S. at 390-91; id. at 404 (Bren¬ nan, J., dissenting). 49. Montana Outfitters Action Group v. Fish and Game Commission, 417 F.Supp. 1005, 1008 (D.Mont.1976). 50. A non-resident wishing to hunt only elk still had to buy a combination hunting license for elk and other species at a price of $225. The resident combination license cost $30, which would render a fee discrim¬ ination ratio of 7.5 to 1, but a resident could buy an elk-only license for a mere $9. 436 U.S. at 373-74. 51. The discriminatory license struc¬ ture invalidated in Toomer v. Witsell re¬ quired non-residents to pay a fee 100 times

greater than that paid by residents for commercial shrimp fishing; the fishing li¬ cense fee regime struck down in Mullaney v. Anderson, 342 U.S. 415 (1952), required non-residents to pay 10 times as much as residents.

52. See 436 U.S. at 388-89.

53. See 436 U.S. at 375, 377, 388-90. The dissent pointed out that Montana had not asserted its interest in conservation as a justification for the fee differential, nor was there anything in the record to show that the influx of non-resident hunters cre¬ ated a special danger to Montana’s elk. 436 U.S. at 403 (Brennan, J., dissenting). For a discussion of the limits on the use of justification by afterthought, see § 16-32, infra.

§ 6-35

LIMITS

ON STATE

AND

LOCAL

POWER

539

'’held in trust for [its] own people” — something the state was "not obliged to share.” 54 The Court appears to have been groping for a principle that would immunize from privileges and immunities review a sphere of rights and opportunities that a people may preserve for themselves. The intuitive notion lurking beneath Baldwin's surface is a strong one. No one would deny that "[s]ome distinctions between residents and non-resi¬ dents merely reflect the fact that this is a nation composed of individu¬ al states.” 55 Indeed, "without certain residency requirements the state 'would cease to be the separate political communit[y] that history and the constitutional text make plain w[as] contemplated.’ ” 56 So it is that a polity is entitled to reserve to its citizens the right to vote 57 and to hold elective office.58 There also appear to be some goods and services that a state’s citizens, having created or preserved for themselves, are entitled to keep for themselves. Thus Montana’s carefully-tended elk herds are akin to public libraries, public schools,59 state universities,60 statesupported hospitals,61 and public welfare programs62 — things that the Court has suggested a state may reserve for the use or enjoyment of its citizens. The Court implied in Baldwin that it would approve even a total exclusion of non-resident hunters upon a showing by the state that any additional hunting opportunities beyond those Montana chose to reserve to its citizens would endanger the elk population to the point of extinction.63 If a state like Montana 54. Baldwin, 436 U.S. at 384. 55. Id. at 383.

56. Supreme Court of New

Hampshire

v. Piper, 470 U.S. 274, 282 n. 13 (1985), quoting Simson, ’'Discrimination Against Non-residents and the Privileges and Im¬ munities Clause of Article IV,” 128 U.Pa.L. Rev. 379, 387 (1979).

57. See Dunn

v. Blumstein, 405 U.S.

330 (1972).

58. See Kanapaux

v. Ellisor, 419 U.S.

891 (1974). A city or state may also be entitled to require residency as a condition of direct employment by the polity. Com¬ pare McCarthy v. Philadelphia Civil Ser¬ vice Comm’n, 424 U.S. 645 (1976) (per curiam) (rejecting an equal protection chal¬ lenge to municipal residency requirement for municipal workers), with United Build¬ ing & Construction Trades Council v. May¬ or of Camden, 465 U.S. 208 (1984) (require¬ ment that contractors on city-funded public works projects give hiring prefer¬ ence to local residents is not immune from scrutiny under privileges and immunities clause). 59. See Martinez

v. Bynum, 461 U.S. 321 (1983) (upholding residence require¬ ment for tuition-free public education).

60. See Starns v. Malkerson, 401 U.S. 985 (1971), summarily

affg 326 F.Supp.

were forced to act evenhandedly 234 (D.Minn.1970) (upholding one-year residency requirement for reduced, in-state tuition rate). Cf. Vlandis v. Kline, 412 U.S. 441 (1973) (state may not use irrebutable presumption of non-residence to deny in-state tuition rate).

61. See Doe v. Bolton, 410 U.S. 179, 200 (1973) (residency requirement for medical services invalidated because "not based on any policy of preserving state-supported fa¬ cilities for Georgia residents [and because there was] no intimation that . . . Geor¬ gia facilities are utilized to capacity in car¬ ing for Georgia residents”). Cf. Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (striking down a one-year residency requirement for non-emergency county medical care).

62. See Shapiro v. Thompson, 394 U.S. 618 (1969) (state may not impose one-year residency requirement for welfare pay¬ ments). The Shapiro Court objected not to the requirement of residency per se, but to the unjustified duration of the residency requirement. Cf. Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974).

63. 436 U.S. at 387, citing State v. Kemp, 44 N.W.2d 214 (1950) (upholding total exclusion of non-resident recreational waterfowl hunters), dismissed for want of a substantial federal question, 340 U.S. 923 (1951).

540

LIMITS ON STATE AND

LOCAL

POWER

Ch. 6

in distributing its state-created "goodies,” perhaps it would simply give up the effort to conserve or create them. With respect to goods and opportunities that exist within a given state but that are not attributable to state programs or revenues, the privileges and immunities clause by and large forbids a regime of unequal access for outlanders. If the state is not thus involved, there is no concern that requiring equal access for resident and non-resident alike will curtail state innovation and experimentation.64 The Alaska Hire statute succumbed in Hicklin because oil, unlike elk, is a nonre¬ newable resource that cannot be regarded as created by the state; 65 and while Alaska may own the oil that lies beneath state land, it certainly does not "own” the jobs created within the state by the economic ripple effect that flows from the private sector’s exploitation of that mineral wealth.66 Likewise, a state may not restrict non¬ resident use of in-state private medical facilities and services.67 And the respect for a polity’s self-definition and self-governance implicit in allowing states to restrict their elective offices to their own citizens cannot justify a requirement that all members of the state bar reside within the state, since lawyers in private practice, even though "officers of the court,” are not state officers who wield public power.68 The interests of national cohesion may also forbid discrimination against those from out-of-state even when state programs or revenues play a significant role in creating or sustaining the privilege, opportuni¬ ty, or other good in question. Police and fire departments are quintes¬ sential^ creatures of the state, supported by state or local revenue and operated for the good of the local citizenry, yet it is inconceivable that a state would be permitted to deny police and fire protection to tourists or short-term visitors, or to charge a premium to those just passing through for the service of extinguishing a blaze or apprehending a hitand-run perpetrator.69 Discrimination against non-residents with re64. See Varat, supra n. 45, 48 U.Chi.L. Rev. at 556. 65. The Court took a different approach from this, arguing that "[rjather than plac¬ ing a statute completely beyond the clause, a state’s ownership of the property with which the statute is concerned is a factor — although often the crucial factor — to be considered in evaluating whether” the stat¬ ute violates the clause. Hicklin, 437 U.S. at 529. Yet the Court’s conclusion that, regardless of Alaska’s purported "owner¬ ship” of the oil, its claim of employmentpolicy hegemony over nearly the entire state economy constituted outrageous over¬ reaching, id. at 531, is not so different from the explanation offered here: that Alaska had not done enough to warrant its claim to control. 66. Alaska may exploit its geological good fortune by imposing a severance tax on that oil at almost any rate it chooses, see Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981), discussed in § 6-15, supra, but the state may not hoard its

mineral wealth to the detriment of its sis¬ ter states. See West v. Kansas Natural Gas Co., 221 U.S. 229 (1911). 67. In striking down Georgia’s residen¬ cy requirement for abortions in Doe v. Bol¬ ton, the Court noted that the law could not have been based "on any policy of preserv¬ ing state-supported facilities for Georgia residents, for the bar also applie[d] to pri¬ vate hospitals and to privately retained physicians.” 410 U.S. 179, 200 (1973). 68. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). Cf. Frazier v. Heebe, 107 S.Ct. 2607 (1987) (invoking its inherent supervisory power over the lower federal courts, the Court struck down a rule promulgated by a Louisiana district court denying admission to its bar to those members of the Louisiana bar who did not live in-state or maintain an office in-state). 69. Similarly, a state could not restrict visitors’ access to the services of volunteer fire departments, both because they would be creations of the private sector rather

§ 6-35

LIMITS ON STATE AND

LOCAL

POWER

541

spect to such basic advantages of civilization would surely undermine national cohesion and deter intercourse among

the states.70

Even in less critical areas, a state’s attempt to deny non-residents equal access to benefits generated by its own expenditures may run afoul of the privileges and immunities clause. In United Building & Construction Trades Council v. Mayor of Camden,11 the Court held that a city could not require private contractors on city-funded public works projects to give hiring preference to city residents without implicating the privileges and immunities

clause.72 The opportunity to seek a job

with such private sector employers is " 'sufficiently basic to the liveli¬ hood of the nation’ as to fall within the purview” of the clause.73 Yet the Court cautioned that "states should have considerable leeway in analyzing local evils and in prescribing appropriate cures,” particularly when the government "is merely setting conditions on the expenditure of funds it controls,” as the Camden ordinance did, rather than trying to bias employment opportunities throughout the state economy, as Alaska had attempted to do in the law struck down in Hicklin v. Orbeck14 Thus, state creation of a resource or other good might not always immunize disparate treatment of outsiders from scrutiny under article IV, § 2, but it would remain a powerful argument for justifying such discrimination.75 The fact that Camden than the state, and because of the adverse impact such discrimination would have on national unity. 70.

Justice

Washington

included

"[protection by the government” among the "fundamental” privileges of citizen¬ ship. Corfield v. Coryell, 6 Fed.Cas. at 551-52. 71. 465 U.S. 208 (1984). 72. The Court rejected the contention that the clause was not implicated by mu¬ nicipal residency classifications that dis¬ criminate against some state residents as well as all non-residents. 465 U.S. at 21618. New Jersey residents had no claim under the prmleges and immunities clause against the Camden ordinance, but they were represented in the state legislature that had enacted the legislation pursuant to which Camden’s ordinance was adopted. Id. at 217 & n. 9. Since New Jersey resi¬ dents living outside Camden were free to enact their own local-preference schemes, the Court rejected Justice Blackmun’s dis¬ senting argument that non-Camden New Jersey residents burdened by the ordi¬ nance would protect the interests of job¬ seekers from out-of-state. Id.; see id. at 227, 231-32 (Blackmun, J., dissenting). Al¬ though the Camden majority was certainly correct to be worried that a blanket exemp¬ tion for all residency classifications that are less than state-wide would make it easy for states to evade the strictures of the clause, by simply denying the relevant privilege or immunity to some geographic

was "expending its own

segment of the state, id. at 217-18 n. 9, its cavalier rejection of an analogy to the sur¬ rogate representation analysis so central to commerce clause jurisprudence required more explanation. See, e.g., South Caroli¬ na Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 187 (1938) ("The fact that [regulations] affect alike shippers in inter¬ state and intrastate commerce in large numbers within as well as without the state is a safeguard against their abuse”). See § 6-5, supra. 73. Id. at 221-22, quoting Baldwin Montana Fish and Game Comm’n.

v.

74. 465 U.S. at 223. 75. The Court distinguished White v. Massachusetts Council of Construction Em¬ ployers, 460 U.S. 204 (1983), in which it had rejected a commerce clause challenge to a nearly identical local-hire requirement by invoking the market participant excep¬ tion. The Camden Court explained that such an exception completely immunized government action from commerce clause scrutiny because the dormant elements of that clause restrain only government regu¬ lation. In contrast, the privileges and im¬ munities clause is implicated by all state discrimination against outsiders, without regard to the mechanism by which it is achieved. See 465 U.S. at 220. In White the Court had noted that it did not pass on the import of the privileges and immuni¬ ties clause. 460 U.S. at 214-15 n. 12. White is discussed in § 6-11, supra.

542

LIMITS ON STATE AND

LOCAL

POWER

Ch. 6

funds or funds it administers in accordance with the terms of a grant is . . . perhaps the crucial factor . . . to be considered.” 76 Zobel v. Williams11 illustrates how even restrictions on state-creat¬ ed goods that undeniably can be limited to residents may nevertheless implicate the principles underlying the privileges and immunities clause. In Zobel , a nearly unanimous Court 78 struck down Alaska’s 79 statutory program for distributing its surplus oil-boom wealth to state residents in the form of dividends in direct proportion to the recipient’s length of post-statehood residence — in evident recognition of the early settlers’ longer and larger sacrifices in the state’s behalf. The effect of the dividend statute, wrote the Court, was to create "fixed, permanent distinctions between an ever increasing number of perpetual classes of concededly bona fide residents . . . . ” 80 Although the law was invalidated on equal protection grounds,81 a far more compelling rationale for the decision can be found in the concurring opinions of Justices Brennan and O’Connor. Justice O’Connor argued that Alaska’s dividend scheme impermissibly bur¬ dened the freedom to travel, which she located squarely in the text of article IV, § 2. 82 Justice Brennan agreed that the statute ran afoul of the right to travel and of norms of national cohesion: "For if each state were free to reward its citizens incrementally for their years of resi¬ dence, so that a citizen leaving one state would thereby forfeit his accrued seniority, only to have to begin building such seniority again in his new state of residence, then the mobility so essential to the economic progress of our nation, and so commonly accepted as a fundamental

aspect of our social order, would

76. 465 U.S. at 221. The Court re¬ manded the case for full development of a record that would permit evaluation of Camden’s claim that the influx of outsiders who lived off Camden without living in the city, thereby exacerbating local unemploy¬ ment problems, necessitated restrictions on the hiring of non-residents. Id. at 222-23. 77. 457 U.S. 55 (1982). 78. Justice Rehnquist was the sole dis¬ senter. 79. Alaska has generated a dispropor¬ tionate number of privileges and immuni¬ ties precedents. In addition to Zobel v. Williams and Hicklin v. Orbeck, Alaska has also given us Mullaney v. Anderson, 342 U.S. 415 (1952) (discriminatory fishing license fees invalidated), a case decided when our 49th state was still a territory. When one recalls that Alaska is the sec¬ ond-youngest member of the union, is phys¬ ically removed from the continental Unit¬ ed States, and constitutes what might be called our sole remaining "frontier” state, its prominence in Article IV, § 2 jurispru¬ dence breathes real life into the Court’s rhetoric about "constituting] the citizens of the United States [as] one people.” Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869).

not long survive.” 83

80. 457 U.S. at 59. 81. 457 U.S. at 65. Cf. Plyler v. Doe, 457 U.S. 202 (1982) (invoking equal protec¬ tion clause to invalidate a law denying free public education to children of illegal im¬ migrants, observing that such a law would create a permanent underclass of illiter¬ ates). See § 16-23, infra. 82. 457 U.S. at 73-74 (O’Connor, J., con¬ curring in the judgment). 83. 457 U.S. at 68, (Brennan, J., joined by Marshall, Blackmun and Powell, JJ., concurring). Justice Brennan noted that he did not find it necessary to assign the right to travel to a particular textual source in the Constitution, id. at 66-67, and his use of the term "fundamental” therefore carries no particular doctrinal significance. Justice Brennan’s primary objection to the law was that it would establish "de¬ grees of citizenship based on length of resi¬ dence,” in direct contravention of the Con¬ stitution’s norm of equality of citizenship under law. Id. at 69; see id. at 69 n. 3 (citing the title of nobility clause of article I, § 9).

§ 6-35

LIMITS ON STATE

AND

LOCAL

POWER

543

Alaska was clearly entitled to limit distribution of largesse from its treasury to bona fide residents. And, by holding out the promise of dividend payments of some size to all new Alaskans, the scheme actually constituted an incentive to outsiders to emigrate to Alaska. Yet by classifying many citizens on the basis of their former status as non-residents, the statute imposed a deferred "disability of alienage” 84 in the form of a relative burden on those who moved to Alaska more recently. Such a burden on former non-residents, and such a penalty on recent arrivals, must fall because it interferes with the capacity to vote with one’s feet.85 In Justice O’Connor’s words: "Just as our federal system permits the states to experiment with different social and economic programs, it allows the individual to settle in the state offering those programs best tailored to his or her tastes.” 86 Barely a week after its decision in Zobel v. Williams , a majority of the Court in Edgar v. MITE Corp. struck down an Illinois corporate takeover law — one having impact well beyond

the state — with the

remarkable assertion that a "state has no legitimate interest in protect¬ ing non-resident shareholders.” 87 Yet the national cohesion argument underlying Zobel and most privilege and immunities precedents surely suggests that a state not only may but must be interested in the well¬ being of non-residents who may ultimately be affected by its policies. The notion that state legislators should be assumed to have thought only of the welfare of their own citizens when passing laws has been persuasively debunked in the conflict-of-laws literature.88 If those same legislators are forbidden by the Constitution from concerning them¬ selves substantively with the welfare of non-residents, then it ought to suffice for one state to accord to another state’s citizens only those privileges and immunities which the non-residents enjoy at home. This cannot be. The anti-discrimination principle has been understood as the core of the privileges and immunities clause at least since Paul v. 84. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869). 85. In this respect Zobel is in line with those decisions in which the Court has invalidated durational residency require¬ ments, albeit on equal protection grounds. See, e.g., Shapiro v. Thompson, 394 U.S. 618 (1969) (one-year residency requirement for welfare payments); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (non-emergency state medical services), dis¬ cussed in § 16-8, infra.

nan, Marshall and O’Connor in stating for the Court "that Indiana has no interest in protecting nonresident shareholders of nonresident corporations. But this act ap¬ plies only to corporations incorporated in Indiana. We reject the contention that Indiana has no interest in providing for the shareholders of its corporations the voting autonomy granted by the Act. Indiana has a substantial interest in preventing the corporate form from becoming a shield for unfair business dealing.” (emphasis in original).

Id. at 1651-52

86. 457 U.S. at 77. Corp., 457 U.S. 624,

644 (1982). Justice White’s opinion for the Court on this point was joined by Chief Justice Burger and Justices Powell, Ste¬ vens and O’Connor. In CTS Corp. v. Dy¬ namics Corp., 107 S.Ct. 1637 (1987), the Court clarified its thinking on this point in the course of upholding an Indiana take¬ over regulation as consistent with the Wil¬ liams Act. Justice Powell was joined by Chief Justice Rehnquist and Justices Bren¬

e 23 t 78 th a¬ ih¬a o¬ u¬ ). gu ormt ar f” — mp dit ”981 , te asnt n(,1 isnt s ly n on Ow te les E co nc u In it w s t 91 t s La I no 5ar i t 18 us y H nof Th b e na v i i , , ng at hn om 73 ti ry sl Jod d eo ice1tec gi ).ue o ro th Le 98a0rg he Ch P n t " a v. (1 h t of in Re n , L. 2 ee , ly aw 39 b r is E f-l st s th la y s l -eo rery My ha choana cSe teMa s n i I d v. ho e a c & th an Re . . st —.L al e’s e re d ch e bl te ry on at . an Mi bl da in ra ti St Wm

87. Edgar v. MITE

e

Se ay

m il

Br

544

LIMITS ON STATE AND

LOCAL

POWER

Ch. 6

Virginia,89 and the Court made clear in Austin v. New Hampshire 90 that the content of a challenger’s home-state law is irrelevant. The Court’s contrary statement in Edgar v. MITE notwithstanding, a state must consider the impact of its laws on out-of-staters, particular¬ ly if the law would deter them from travelling into or establishing residence in the state, or would otherwise make their treatment and status within the state turn on their current or prior non-residence. The only shortcoming of the Court’s substantial reason analysis, as set forth in Toomer v. Witsell , is that it did not explicitly require considera¬ tion of a state’s legitimate interest in discriminating against outsiders in order to preserve goods and opportunities to which the citizens and government of that state have devoted their labor and their public fisc. The unresolved issue of contemporary privileges and immunities juris¬ prudence is how to honor the state’s interest in keeping some things for itself. One way is to restrict the clause to a list of "fundamental” privileges--- as the Court did in Baldwin. The alternative is to recog¬ nize, as the Court did in Camden , that even if the clause is implicated by a challenged residence classification, the state may be able to justify its discrimination by adverting to its role in creating and nurturing the good or opportunity in question and to its character as a politically cohesive entity. The latter appears to be the wiser course. The standard of review employed in Toomer, Bolton, Piper and Camden— characterized by a shift in the burden of proof to the discrimi¬ nating state and by an insistence on a fairly precise fit between remedy and classification — is almost as demanding as that elaborated by the Warren Court in equal protection and first amendment strict scrutiny.91 If the privileges and immunities clause as currently construed does not precisely duplicate the equal protection clause of the fourteenth amend¬ ment, the major reasons are that the former does not protect aliens and corporations,92 and that non-residence and out-of-state citizenship have not in fact been deemed suspect classifications for equal protection purposes.93 Indeed, equal protection challenges to durational residency 89. 75 U.S. (8 Wall.) 168, 180 (1869) ("It was undoubtedly the object of the clause in question to place the citizens of each state upon the same footing with citizens of oth¬ er states, so far as the advantages resulting from citizenship in those states are con¬ cerned”). 90. 420 U.S. 656 (1975). 91. After creating a mode of review that would subsequently be used in a revo¬ lutionary addition to equal protection anal¬ ysis, the Toomer Court declined to pass on the equal protection challenge to the stat¬ ute. 334 U.S. at 403. One rationale for the privileges and immunities clause is the protection it affords non-residents, who are not represented in the discriminating state’s legislature. This rationale is simi¬ lar to that most frequently offered to ex¬ plain judicial protection of discrete and insular minorities. See §§ 16-5, 16-6. One conspicuous difference between article

IV review and strict scrutiny under

the

equal protection clause remains: truly sus¬ pect classifications must be justified as nec¬ essary to serve a compelling state interest in order to meet equal protection require¬ ments. The Toomer Court spoke only in terms of substantial connection to valid state objectives. 334 U.S. at 398. Cf. §§ 16-32, 16-33, infra (intermediate scruti¬ ny). 92. Corporations and aliens are not "citizens” within the meaning of article IV, § 2. Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869). 93. The protections of the article IV privileges and immunities clause do signifi¬ cantly overlap those of the commerce clause, however. The Toomer holding, for example, could probably have been reached under the principles of that clause, al¬ though invoking commerce clause princi¬ ples to uphold the abortion rights of non-

545 LIMITS ON STATE AND LOCAL POWER 5 3 § 6 requirements have found objection in the length of time affixed rather than in the ordinarily valid requirement of state or local residency as such. Were they subject to equal protection scrutiny alone, the nondurational residency requirements struck down in cases like Bolton would be assessed solely for minimal rationality and in all likelihood upheld. The equal protection clause of course concerns

a vastly broader

range of discriminations than those against nonresidents closely scruti¬ nized under article IV. Perhaps the deepest significance of the overlap that does exist is the fact that the core concerns of equal protection, article IV, and the commerce clause, are remarkably similar: all address the problems that occur when governments inflict injury upon outsiders — whether geographical outsiders, as in the case of burdens imposed on persons from other states; or political outsiders, as in the case of disadvantages visited upon minorities insulated from other groups within the state itself; or psychological outsiders, as in the case of actions adverse to persons whom those in power regard as different or inferior.94 residents in the Bolton case would required some stretching.

have

94. This theme, which was expressed in these same words in the first edition of this treatise, see L. Tribe, American Constitu¬ tional Law 412 (1978 ed.), has since been advanced as a unifying principle that might serve not only to justify selective judicial activism but also to limit active

judicial review to cases where fair political representation has broken down. See J. Ely, Democracy and Distrust (1980). For doubts as to the wisdom and coherence of any such purported "limitation,” see Tribe, "The Puzzling Persistence of Process-Based Constitutional Theories,” 89 Yale.L.J. 1063 (1980).

Chapter 7 DIRECT PROTECTION OF INDIVIDUALS AND GROUPS: MODELS BEYOND THE SEPARATION AND DIVISION OF POWER § 7-1. The Limited Nature Pre-Civil War Era

of Direct Federal Protection in the

The first century of government under the Constitution was under¬ standably characterized by a preoccupation with structural issues. Charting a course for a federal republic demanded attention above all else to the respective roles of the national and state governments and to the tripartite separation of powers at the national level. But although Model I— the Model of Separated and Divided Powers — therefore occu¬ pied center stage,1 it would be a serious mistake to underestimate the significance of three additional themes, all struck early in American constitutional history, pointing directly to federal protection of individ¬ uals and groups against governmental overreaching. First, as Chapter 6 demonstrated, both the commerce clause and the interstate privileges and immunities clause of article IV provided a setting for federal judicial intervention to control state and local impositions upon the citizens and residents of other states, not only in the service of nationhood but also in the interest of the adversely affected citizens and residents themselves.2 Second, as Chapters 3 and 4 suggested, separation-of-powers doc¬ trines, particularly those limiting the Executive Branch, have been invoked from the very beginning — indeed, from the Court’s decision in Marbury v. Madison 3 itself — to articulate the relationship between the rule of law and a regime of individual rights. Congress created Marbury’s position by statute; it provided a procedure whereby the Execu¬ tive Branch was to make appointments. The procedure having been employed, and Marbury having been duly appointed, he had a vested right to his post that the Executive was not free to disregard. To be sure, the Court said it all in dictum — perhaps the most in all of American constitutional law — but the theme has never been abandoned: In protecting expectations and in assuring governmental regularity, we defend liberty must ultimately mean.4

famous dictum was struck and created by law, a part of what

In Chapters 9 and 10 those notions are

§ 7-1

2-6, supra. 1. See Chapters . 2. See particularly §§ 6-34, 6-35, supra 3. 5 U.S. (1 Cranch.) 137 (1803), discussed in Chapter 3, supra.

546

4. ’’The very essence of civil liberty • • • consists in the right of every individual to claim the protection of the laws,

whenever he receives an injury. One of the first duties of government is to afford that protection .... The government of the United States has been emphatically

§ 7-1

DIRECT

547

PROTECTION

developed in some detail; suffice it at this point to observe that the core idea has its roots in Model I. Third, growing partly out of separation-of-powers doctrine but grounded also in a set of explicit constitutional prohibitions, a particu¬ larly feared trio of legislative excesses — ex post facto laws, bills of attainder, and impairments of contract — was singled out for explicit federal judicial invalidation. Although ex post facto laws and bills of attainder were condemned only in dicta prior to the Civil War (both are taken up in Chapter 10), impairments of contract (considered in Chap¬ ter 9, together with the just compensation requirement) were not only identified by the Supreme Court as forbidden, but were invalidated in landmark holdings as early as 1810, 5 making the contract clause the most formidable early restraint upon the dealings of states with their own residents.6 Of these three themes, all moving beyond government structure to a direct concern with persons, the first is in many respects the most significant for the remainder of this book. Its central idea is that, even while they look primarily to matters of structure and procedure, federal courts have a special mission in defending substantive personal inter¬ ests from governmental action that overreaches because of its unduly limited constituency — action that oppresses people because they are outsiders. Once the premises of that idea are understood, the stage is set for its extension to substantive controversies between the states and their own citizens whenever the appeal to local politics seems insufficient source of protection.

an

The contract clause, to be sure, represented a potential source of general substantive protection for persons burdened by their own states. And one should not understate the importance of the role that the clause played.7 Still, as we shall see in Chapter 9, its dramatic limitation in a seminal 1834 decision 8 prevented the clause from having as broad a reach as it might, and left a vast realm of statecitizen controversy beyond the cognizance of the federal judiciary and indeed of the federal Constitution. The Civil War, and the three constitutional amendments

that were

its fairly immediate legacy, 9 changed all that. We will be tracing the changes, and their many implications, in the remaining chapters of this book. Six models of constitutionalism remain to be examined. One elusive thread will help us wind our way through the story: it is the termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Id. at 163. 5. See Fletcher v. Peck, 10 U.S. (6 Cranch.) 87 (1810), discussed in Chapter 9, infra. 6. For example, almost half the pre1889 decisions in which the Supreme Court invalidated state legislation were based on the contract clause. B. Wright, The Con¬ tract Clause of the Constitution 95 (1938).

7. Many

have overestimated

it as well.

See, e.g., Sir Henry Maine’s paean to the clause as "the bulwark of American indi¬ vidualism against democratic impatience and socialistic fantasy.” Popular Govern¬ ment 247-48 (1886). “ 8. Ogden v. Saunders,

25 U.S. (12

Wheat.) 213 (1827) (upholding non-retroactive insolvency laws), discussed in Chapter 9, infra. 9. The thirteenth, fourteenth, and fif¬ teenth.

548

INDIVIDUALS

AND

GROUPS

Ch. 7

thread of fourteenth amendment privileges or immunities. As we will see in the remainder of Chapter 7, that thread has yet to sew together a single enduring doctrine. But it links the privileges and immunities clause of article IV, and with it the entire topic of federalism, to the general subject of personal rights; its meandering through the cases, even when it proves not at all decisive, reveals strands of thought that might otherwise have been obscure; and it suggests lines of doctrinal development still unexplored.

§ 7-2. Fourteenth Amendment Privileges or Immunities: cal Background and Early Interpretation

Histori¬

Section 1 of the fourteenth amendment declares: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .” The words "privileges” and "immunities” first appear in the Constitution in article IV, § 2,1 and their recurrence in the fourteenth amendment naturally inspires comparison. State citizenship carries with it, by virtue of article IV, the right to non-discriminatory treatment within each state of the fundamental rights of citizens of all the states. The protection is broad, in the sense that numerous rights have been held to be fundamental rights of state citizenship, but weak, because only relative equality of rights is conferred: each state retains discretion over what rights are granted to its citizens as long as citizens of other states are accorded the same

rights.2

The constitutional guardianship

of the privileges of national citi¬

zenship, on the other hand, is more rigid: "[T]he Fourteenth Amend¬ ment prohibits any State from abridging the privileges or immunities of citizens of the United States, whether its own citizens or any others. It not merely requires equality of privileges; but it demands that the privileges or immunities

of all citizens shall be absolutely unim¬

paired.” 3 But this rigidity does not imply breadth of protection; the Supreme Court has greatly narrowed the rights that attach to national citizenship so that "instances of valid 'privileges or immunities’ must be but few.”4 Thus in at least one respect the fourteenth amendment privileges or immunities clause and its ancestor in article IV are much alike: courts rarely rely upon either to protect the privileges of citizens, state or federal.

1. ’’The Citizens of each State shall be § 7-2and Immunities of entitled to all Privileges Citizens in the several States.” For a dis¬ cussion of article IV, § 2, see §§ 6-34 to 635, supra. 2. And even if they are not, the state’s only duty is to show the difference in treat¬ ment reasonably necessary. See § 6-35, supra. 3. Colgate v. Harvey, 296 U.S. 404, 428 (1935). Ed wa rd sv. Ca li fo

18 (1 (J J. co Th , 94 a 3 n c c em be so uth th e 1) khsa at rror as en osn Ju cul St wa , pr toinogcua it "t s hev s . . om . c )g.lClh al tic atifo one . o l p Hamo e no 3 te aatu 44 (d lg onrsgu opt is at te d se 3 r st .” op vey Irtnae co hsae e of ¬ n nt d i v m , e te ni tr the cl ein do me as es n on ea s ed, au g r¬ se nta " ent P ). teS ma e H . to CTh ia ri g. of oFwe an n Im dee, an , adr rsitie lly vil d t. mu d e dr,a8 U eg 2 ze niv H Co es62 n l7 .P t. a 26l (1 , a. shi 7ga 93 ies rve p te 9) L. y . .” Re v.

§ 7-2

DIRECT

549

PROTECTION

The Civil War settled at least two issues, the existence of slavery and the supremacy of the national government. The decisions of the battlefield were given constitutional expression in the Reconstruction Amendments. The thirteenth and fifteenth straightforwardly abol¬ ished slavery and prescribed equal voting rights for the freedmen. The fourteenth amendment, in § 1, approached unification under a supreme national government more subtly: it made state citizenship derivative of national citizenship and transferred to the federal government a portion of each state’s control over civil and political rights. Before the Civil War, the status of national citizenship remained at best vague. The Constitution mentioned

it 5 without defining what it was. Interest

in the question quickened when slavery (and its champion, states’ rights) divided lawmakers. Calhoun thought that national citizenship must be a function of state citizenship and that, as a result, there could be no citizenship in the United States without state permission, a theory that meshed well with his notion of state supremacy.6 No congressional action ensued on the matter, but in 1857 the Supreme Court lept into the fray with its infamous decision in Dred Scott v. Sand ford.1 Dred Scott is often recalled for its politically disastrous dictum, the wholly gratuitous announcement

by Chief Justice Taney that the Mis¬

souri Compromise was unconstitutional. But the decision’s greatest constitutional significance lay in its holding: whether enslaved or free, "persons who are descendants of Africans . . . imported into this country, and sold as slaves,” cannot bring suit in federal courts, even if their state citizenship is unquestioned. Access to federal courts pre¬ sumed national citizenship, a status distinct from state citizenship and denied to such persons as Scott by the Constitution. The Dred Scott Court construed the Constitution to grant citizenship only to the residents of states that formed the Union and to the descendants of those initial arrivals, unless Congress legislated otherwise. The fourteenth amendment rejected Calhoun’s theory and squarely overruled Dred Scott. The citizenship clause perfected the distinction between state and national citizenship, but defined national citizenship so as to nullify Dred Scott's conclusion: "All persons born or natural¬ ized in the United States . . . are citizens of the United States . . . . ” 8 Section 1 also fixed a definition of state citizenship, and did so in a way that made it depend on national citizenship: "All persons born or naturalized in the United States . . . are citizens ... of the State wherein they reside.” National supremacy was thus highlighted by "causing citizenship of the United States to be para¬ mount and dominant instead of being subordinate and derivative.” 9 5. Article I, § 2 (qualification for Repre¬ sentatives); id., § 3 (qualification for Sena¬ tor); art. II, § 1 (qualification for Presi¬ dent); cf., art. I, § 8 (power of Congress to regulate naturalization). 6. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 51, 52 (1873) (abstract of the argument against monopolies); Morris, "What

Are the Privileges and Immunities

of Citizens of the United W.Va.L.Q. 38 (1921).

States?,” 28

7. 60 U.S. (19 How.) 393 (1857). 8. Amend.

XIV,

§ 1.

The

power

of

Congress to grant or revoke national citi¬ zenship is discussed in Chapter 5, supra. 9. Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 389 (1918).

550

INDIVIDUALS

AND

GROUPS

Ch. 7

Lest the symbolism of citizenship be lost on the states’ rightists, the framers of the fourteenth amendment, in its very next clause, hoped to place the power of the federal goyernment between state legislatures and the privileges or immunities of national citizens. For one thing, the Congress was persuaded that "notwithstanding the formal recogni¬ tion by those states of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before.” 10 The privileges or immunities clause, along with the due process and equal protection clauses, promised the additional protection Congress thought necessary. But beyond that, the proponents of the amendment need to assert a federal remedied was not merely spirit of insubordination which had troubled the

perceived the

role in state affairs. "The mischief to be slavery and its . . . consequences; but that and disloyalty to the National government country for so many years in some of the

states.” 11 Civil rights seemed the obvious place to intervene: "The Amendment was an attempt to give voice to the strong National yearning for that time ... in which American citizenship should be a sure guaranty of safety, and in which every citizen of the United States might stand erect on every portion of its soil, in the full enjoyment of every right and privilege belonging to a freeman . . . . ” 12 The choice of language to accomplish federal intervention was not difficult. Representative Bingham, the Congressman who framed the privileges or immunities clause of the fourteenth amendment, pointed to the privileges and immunities clause of article IV as his model.13 The article IV clause had been interpreted by Justice Washington in 1823 to protect against state action the privileges "which are, in their very nature, fundamental; which belong, of right, to the citizens of all free governments.” 14 The framers wished to protect those very funda¬ mental rights from state encroachment, and there was every reason to believe that the new clause would be similarly interpreted.15 Whatever goals the framers set for the fourteenth amendment, Supreme

Court quickly dismantled

them.

the

In the Slaughter-House

Cases,16 the Court’s first decision interpreting the amendment, it was held that laws enacted by the Louisiana legislature establishing a slaughterhouse monopoly did not violate the fourteenth amendment’s privileges or immunities clause. The right to carry on a lawful trade was squarely among the fundamental rights of citizens enumerated by 10. Slaughter-House Wall.) at 70.

Cases, 83 U.S. (16

11. Id. at 123 (Bradley, J., dissenting). 12. Id. 13. Cong. Globe, 39th Cong., 1st Sess., part 2, pp. 1033-34 (1866). 14. Corfield v. Coryell, 6 Fed.Cas. 546, 551 (No. 3230) (C.C.E.D.Pa.1825), discussed in § 6-34, supra. 15. Senator Howard, for example, quot¬ ed from Corfield during the Congressional discussion of the fourteenth amendment, and added: "Such is the character of the

privileges and immunities spoken of in the second section of the fourth Article of the Constitution. To these privileges and im¬ munities . . . should be added the person¬ al rights guarantied and secured by the first eight Amendments of the Constitu¬ tion.” Cong. Globe, 39th Cong., 1st Sess., part 3, p. 2765 (1866). For a different view of the circumstances surrounding the adop¬ tion of the fourteenth amendment, see Fairman, "Does the Fourteenth Amend¬ ment Incorporate the Bill of Rights?,” 2 Stan.L.Rev. 5 (1949).

§ 7-2

DIRECT

PROTECTION

551

Justice Washington,17 but that made little difference to the majority in Slaughter-House , for in their view the state and federal roles in secur¬ ing civil rights had not been altered at all by the fourteenth amend¬ ment.18 First, the primary purpose of the amendment, as Justice Miller saw it in his opinion for the majority, was to protect the rights of newly emancipated slaves.19 The Court conceded that persons other than newly freed slaves could claim the guarantees of the amendment, but noted that the argument of such persons for protection would depend on the amendment’s

language and not its history.20

The framers selected the '"privileges or immunities” language for the fourteenth amendment in anticipation of a judicial construction identical to that given the privileges and immunities of state citizenship in article IV, and so the plaintiffs argued.21 But that was history, not language, and in the language of the amendment, interpreted as a whole, the plaintiffs’ argument faltered before the majority.22 Specifi¬ cally, the Court turned to the words of the citizenship clause, words which emphatically distinguished state from national citizenship. "We think this distinction and its explicit recognition in the amendment of great weight . . . because the next paragraph . . . speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. ... It is a little remarkable, if this clause was intended as a protection to the citizen of a state against the legislative power of his own state, that the word citizen of the State should be left out when it is so carefully used . . . in contradistinction to citizens of the United States in the very sentence which precedes it.” 23 The majority then proceeded to turn the supposed identity of the fourteenth amendment privileges or immunities clause and the article IV privileges and immunities clause on its head. Justice Miller noted that recent interpretations of article IV had restricted that article’s force to the equalizing of rights, rather than the protection of any rights as such, so that discretion over civil rights remained in the state 17. Nor did the Court express doubt that the right of a butcher to ply his trade was among those civil rights of state citi¬ zens that could not lawfully be infringed. But, as the Court saw it, a legislative mo¬ nopoly over slaughtering was a classic ex¬ ercise of the state police power and not an interference with the right to be a butcher. 18. Thus it was up to the courts of Louisiana, or a federal Circuit Court (as the federal trial courts were then called) sitting in a diversity case, to protect the right to slaughter if and when it should be jeopardized — something the Court said had not occurred here. 19. "[0]n the most casual examination of the language of [the 13th, 14th, and 15th Amendments], no one can fail to be im¬ pressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them

would have been even suggested; we mean the freedom of the slave race, and the security and firm establishment of that freedom, and the protection of the newlymade freeman and citizen from the oppres¬ sions of those who had formerly exercised unlimited dominion over him.” Wall.) at 71.

83 U.S. (16

20. Id. at 72. 21. Id. at 74. 22. The Supreme Court, in a later case, offered the following explanation for ignor¬ ing the framers’ statements and other leg¬ islative discussion: "what is said in Con¬ gress upon such an occasion may or may not express the views of the majority of those who favor the adoption of the mea¬ sure. ...” Maxwell v. Dow, 176 U.S. 581, 601 (1900). 23. 83 U.S. (16 Wall.) at 74.

INDIVIDUALS

552

AND

Ch. 7

GROUPS

governments.24 That meant that "the entire domain of the privileges and immunities of citizens of the states, [as defined by Justice Washing¬ ton], lay within the constitutional and legislative power of the states, and without that of the Federal government.,, 25 The fourteenth amendment retained the distinction between the privileges of state citizenship and those of national citizenship; therefore, the Court reasoned, the fourteenth amendment left responsibility over the funda¬ mental rights of state citizenship where it had always rested, in the state governments. Since the privilege claimed by the Slaughter-House plaintiffs numbered among the rights of state citizenship, they were told to look to Louisiana for redress: the privileges or immunities clause provided federal protection only for the rights of national citizen¬ ship.26 Competing attitudes toward federal-state relations played a large part in the Slaughter-House dispute. The nineteenth century legal mind grasped the concept of federalism by visualizing two coextensive spheres, one defining the power of the federal government, the other that of the states.27 Each citizen was subject to two governments, "but there need be no conflict between the two. The powers which one possesses, the other does not. . . . The citizen . . . owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand

protection from each within its own jurisdic¬

tion .” 28 The Civil War conclusively established that "Within the scope of its powers . . . [the federal government] is supreme and above the States.” 29 But the effect of the Union victory on the states’ sphere was less clear: the victors were states as well, and whatever powers they took from the vanquished they lost for themselves. Historically, a large part of the states’ sphere consisted in the power and duty to guard the "rights and privileges of the citizen, which form a part of his political inheritance derived from the mother country.” 30 The federal government initially had no responsibility for safeguarding these rights. The proponents of the privileges or immunities clause sought to delegate to the federal government

the power to restrain state interfer-

24. Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869), discussed in § 6-34, supra.

Immunities under the Fourteenth Amend¬ ment,” 18 Wash.L.R. 120, 124 (1943).

25. 83 U.S. (16 Wall.) at 77. 26. Justice Miller never related the narrow interpretation of the privileges or immunities clause to his understanding of the function of the fourteenth amendment, the protection of the newly freed slaves. One commentator has argued that "[i]t would have been little aid to [the negro] to have the privileges and immunities created by national laws protected against state impairment while all the fundamental rights and a fected left to

'which belong to him as a free man free citizen’ — those rights which af¬ his whole manner of living — were the unfettered discretion of the local

governments.”

Lomen,

"Privileges and

27. I am greatly indebted to my col¬ league Duncan Kennedy, whose illuminat¬ ing work on pre-classical and classical legal consciousness has powerfully influenced my thinking here and in § 7-3. See his "Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940,” 3 Research in Law & Sociology 3-24 (1980). 28. United

States v. Cruikshank,

92

U.S. 542, 550-51 (1876) (emphasis added). 29. Id. at 550. 30. Logan v. United 263, 288 (1892).

States, 144 U.S.

§ 7-3

DIRECT

553

PROTECTION

ence with the fundamental personal rights of United States citizens. On its face, the clause left discretion in the state legislatures to determine the scope of these rights subject only to limitations enforced by the national government as authorized by the fourteenth amend¬ ment. But within the universe of the spheres, the judicial minds of the Slaughter-House Court were not at home with the idea of coterminous jurisdictions. What the Constitution placed in the federal sphere, it necessarily took from the states’ sphere. The Justices could perceive only one authoritative jurisdiction over civil rights, and the interpreta¬ tion of the privileges or immunities clause envisioned by its proponents would have made that jurisdiction federal. Despite the radical changes that vision forebode in federal-state relations, the four dissenters in Slaughter-House embraced the intent of the framers: "It is objected that the power conferred is novel and large. The answer is that the novelty was known and the measure deliberate¬ ly adopted. . . . Where could it be more appropriately lodged than in the hands to which it is confided?” 31 But the majority rebelled against the implications of the minority’s position. They resisted the vast capacities that would be created in the Supreme Court itself should the national government become the dispenser of civil rights: "such a construction . . . would constitute this court a perpetual censor upon all legislation of the states . . . with the authority to nullify such as it did not approve.” 32 Even more troublesome to the majority, Congress would acquire the power to legislate affirmatively where the Court could only strike down. "Congress . . . may also pass laws in ad¬ vance, limiting and restricting the exercise of legislative power by the states, in their most ordinary and useful functions.” 33 The necessary consequences of a general federal duty to safeguard civil rights settled the issue for the majority: "when . . . these consequences are so . . . great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the state governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character . . . the argument [from consequences] has a force that is irresistible, in the absence of language . . . [too clear] to admit of doubt.” 34

§ 7-3. The Inversion of the Slaughter-House Boomerang

Logic: Glimpse at a

Less than thirty years after Justice Miller penned his SlaughterHouse opinion, the Supreme Court appeared to have undertaken just the course that Miller most feared; during the period from 1890 to 1937, the Court tested hundreds of state laws against a broad vision of the Constitution’s guarantee that no state shall deprive any person of life, liberty, or property without due process of law.1 31. 83 U.S. (16 Wall.) at 129 (Swayne, J., dissenting). The dissents are discussed in the context of substantive due process doctrine in Chapter 8, infra. 32. Id. at 78.

33. Id. 34. Id.

1. See generally Chapter 8.

§ 7-3

INDIVIDUALS

554

AND

GROUPS

Ch. 7

Ironically, the Slaughter-House Cases’ reaffirmation of the spheres helped pave the way for the substantive due process doctrine of this post-1890s era. Justice Miller had reasoned that federal intrusion into civil rights under the aegis of the privileges or immunities clause was unnecessary because a well-defined body of general law, enforcible in state courts and in diversity cases, would assure that common-law rights remained intact,2 and that such intrusion must not have been intended because broadened federal responsibility would have danger¬ ously evaporated the content of state sovereignty. To avoid that result, Justice Miller affirmed the duty of the Supreme Court to safeguard the autonomy of the federal and state governments within their respective spheres of power over the same geographical territory. But the Jus¬ tices of the 1890-1937 era, likewise imbued with Miller’s sense of the state and federal spheres and persuaded of the need to protect their sanctity, discerned yet a third sphere — that of the citizen, whose auton¬ omy both required federal protection and could be defended without federal suffocation of the states. The discovery of a sphere of citizen autonomy judicially protectible as a matter of federal law without threat to state autonomy began in a series of commerce clause cases in which the Supreme Court held that, because Congress possessed sole power over interstate commerce, the states could not regulate the activities of persons participating in commerce between the states; 3 indeed, citizens had a right to engage in interstate commerce — a right to make interstate contracts free from state restraints. From the notion that negative limitations on state action in matters of interstate commerce created corresponding affirm¬ ative rights of contract in citizens, there emerged a more general concept whereby the line drawn around state power within the federal system could be extended to trace the boundary of a citizen sphere within a larger system, a sphere which no state law could legitimately pierce.4 The due process clause set that boundary property. In defining the boundary

at life, liberty, and

of the state sphere, the Supreme

Court

drew upon the common law doctrine of implied powers, which pre¬ scribed three areas of authority suitable for state action — the police, taxing, and eminent domain powers — and which provided general stan¬ dards for judging what laws came within these zones.5 Miller himself had proclaimed the existence and trenchancy of those standards by confidently asserting that they sufficed to protect the common law liberties of Louisiana’s butchers — liberties that he asserted were

not

invaded by the state’s slaughterhouse monopoly.6 The Court thus came to perceive a perfect complementarity between the citizens’ right to "life, liberty, and property” and the state’s authority to preserve such life, liberty, and property through the exercise of its implied powers within settled common law standards. This complementarity permit2. See § 7-2 notes 17-18, supra. The point is more fully developed in Chapter 8. 3. See § 6-3, supra. 4. See Allgeyer v. Louisiana, 165 U.S. 578 (1897).

5. See Chapter 8, infra,

g

2 note

supra

§ 7-4

DIRECT

PROTECTION

555

ted the turn-of-the-century Court to believe that the federal judiciary could protect citizen autonomy without intruding upon the state’s sphere — because any state action that invaded the liberty or property of its citizens was, by definition, beyond the state’s sphere. Justice Miller had feared that federal intervention into civil rights would destroy state sovereignty because it would puncture a welldefined area of state authority. The substantive due process doctrine answered this objection to the satisfaction of many of that period’s jurists by building upon Miller’s own reaffirmation of the spheres: the concept of rigidly defined and mutually exclusive spheres of federal, state, and citizen autonomy created the possibility that the federal judiciary could delimit state authority without destroying it; if the boundaries were as clear as he himself had claimed, the Court could simply enforce them. But for a belief in that possibility, the fear of crushing state sovereignty in the name of the fourteenth amendment might have powerfully deterred the development of substantive due process.

§ 7-4. The Penumbral Career of National Privileges or Immuni¬ ties: Phantom or Phoenix? In his opinion in Slaughter-House , Justice Miller may thus have unwittingly taken a first step toward the recognition of substantive due process. But the Slaughter-House holding had the opposite effect on the privileges or immunities clause, since it removed from the purview of that clause every civil right traditionally associated with state protection. There remained the question of what rights "national” citizenship conferred; Miller responded that the only such rights were those "which owe their existence to the Federal government, its Nation¬ al character, its Constitution, or its laws” 1— in other words, rights, such as habeas corpus, independently secured by the federal Constitution. In two subsequent cases,2 the Supreme Court unfortunately sug¬ gested an even narrower definition of the rights of national citizenship. Rather than any right created by the Constitution or laws of the United States, only those rights which "arise out of the nature or essential character of the National Government” were said to be protected.3 In Twining v. New Jersey ,4 however, the Court in dictum finally settled on the Slaughter-House definition as correct. No case has ever attempted to identify the totality of implied federal rights guaranteed by the privileges or immunities clause, but the Twining opinion did provide a list of the privileges or immunities which had by then been judicially recognized: 5 (1) the right to pass freely from state to state; (2) the right to petition Congress for redress of grievances; (3) the right to vote for national officers; (4) the right to enter the public lands; (5) the right to be protected against violence while in the lawful custody of a United States Marshal; and (6) the right to inform United States authorities of § 7-4

3. Maxwell

v. Dow, 176 U.S. 581, 594

1. 83 U.S. (16 Wall.) 36, 79 (1873). (1900)2. Bradwell v. State, 83 U.S. (16 Wall.) 4. 211 U.S. 78 (1908). 130 (1872); Maxwell v. Dow, 176 U.S. 581 (1900). 5. Id. at 97.

556

INDIVIDUALS

AND

GROUPS

Ch. 7

violations of its laws. The Twining Court neglected to mention Crutch¬ er v. Kentucky ,6 which had included (7) the right to carry on interstate commerce. And one right has since been added to the Twining group, that in Oyama v. California 7 — (8) the statutory right to take and hold real property.8 The Slaughter-House

definition of national rights renders the four¬

teenth amendment’s privileges or immunities clause technically super¬ fluous; rights preexisting in "the Federal government, its National character, its Constitution, or its laws”, were by definition already shielded from state infringement by the principle of federal supremacy articulated in the supremacy clause of article VI, or by more general principles of constitutional structure and relationship.9 A mere look at the Twining list evidences the redundancy. For each privilege there listed, the opinion cites the case that initially held the right to be one protected from state interference. None of those cases relied on the privileges or immunities clause for its holding; other constitutional devices had achieved the desired result whenever they were necessary.10 The issue of federal versus state power over civil rights surfaced in a new context in Colgate v. Harvey n, where Justice Sutherland, speak¬ ing for a majority of the Court, invalidated a state income tax levied against in-state residents exclusively upon

dividends

and

interest

earned outside the state: "The right of a citizen of the United States to engage in business, to transact any lawful business, or to make a lawful loan of money in any state other than that in which the citizen resides is a privilege . . . attributable to his national citizenship.” 12 The majority reasoned that the power to tax was the power to destroy interstate loans and corporate ownership; Justice Stone vigorously dissented. 6. 141 U.S. 47 (1891). 7. 332 U.S. 633 (1948). 8. The statute is 42 U.S.C. § 1982: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and con¬ vey real and personal property.” 9. See C. Black, Structure and Relation¬ ship in Constitutional Law (1969). Justice Field, dissenting in the Slaughterhouse Cases, pointed to the redundancy and add¬

the tax interfered with the right to pass freely from state to state, a right implied in the Constitution from the needs of the federal government to transport its troops across state lines, to call to the capital any of its citizens to aid in its service as mem¬ bers of Congress, the judiciary, or the exec¬ utive departments, and to have access to its seaports, revenue offices, and land of¬ fices within the states. Citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819),

ed that, under the majority’s interpreta¬ tion, the privileges or immunities clause

the majority stated that "the right of the States in this mode to impede . . . the constitutional operation of [the Federal] government, or the rights which its citi¬ zens hold under it, has been uniformly

"was a vain and idle enactment, which accomplished nothing, and most unnecessa¬ rily excited Congress and the people on its

denied.” Id. at 45 (emphasis added). Citi¬ zens were protected because "if the govern¬ ment has these rights on her own account,

passage.” 83 U.S. (16 Wall.) at 96. 10. An illustration is Crandall v. Neva¬ da, 73 U.S. (6 Wall.) 35 (1868), which Twin¬ ing cited as the first case to recognize the right to pass freely from state to state. In Crandall the Court struck down a Nevada statute that levied a head tax of one dollar on every person leaving the State by any vehicle for hire. The majority held that

the citizen also has correlative rights.” Id. at 44. Note that the case was decided several months before the fourteenth amendment was even ratified. 11. 296 U.S. 404 (1935). 12. Id. at 430.

§ 7-4

DIRECT

PROTECTION

557

The arguments for each side resembled those in the SlaughterHouse CaseSy but the sides had been switched. In the intervening years, the Supreme Court had accomplished essentially the intervention that Justice Miller and his colleagues had resisted, using the fourteenth amendment due process clause as their constitutional vehicle in place of the diminished privileges or immunities clause. But the substantive due process doctrine did not clearly reach the statute attacked in Colgate , and the Court’s still conservative majority seized the opportu¬ nity to reawaken the privileges or immunities clause, thus providing an additional means for the federal judiciary to review state laws gov¬ erning property rights. The dissent repeated the arguments of Justice Miller’s opinion but from a different perspective. The substantive due process doctrine had been used since the 1890’s to strike down state laws that attempted to redress the unequal bargaining power of employers and employees. Justice Stone feared that the privileges or immunities clause, as inter¬ preted by the majority, would permit similar treatment of other laws controlling the power of wealth, perhaps even after the substantive due process doctrine itself had passed. Thus all the outrage that attached to the employment decisions appropriately accompanied the Colgate

.

holding.13 Four years later, and shortly after the passing of the substantive due process era, Madden v. Kentucky 14 overruled Colgate , reclaiming the lost taxing power for state governments and setting aside the only case in which a majority of the Supreme Court has ever held a state provision violative of the privileges or immunities clause. Non-economic rights were less carefully guarded by the substantive due process Court. The Court twice refused, over stinging dissents, to place the Bill of Rights among the privileges of national citizenship.15 But in Hague v. C/O,16 a majority prohibited city officials from interfer¬ ing with assemblies and speeches organized by the CIO for the purpose of disseminating information about the NLRA. Three Justices — Black, Hughes, and Roberts — agreed that the right to assemble and discuss national issues was a privilege of national citizenship, being part of the right to petition Congress for a redress of grievances. Two other Justices — Stone and Reed — rested their concurrence on a long line of decisions that secured first amendment freedoms of speech and assem¬ bly to all persons through the due process clause of the fourteenth amendment. Justice Stone argued that the rights of national citizen¬ ship should be restricted to those growing out of the national govern¬ ment and its relations to its citizens. There is little doubt that the Colgate decision and the danger it created for state regulation of business inspired Justice Stone’s narrow interpretation of the privileges or immunities clause even where political liberties were at stake. 13. An example of such outrage can be found in Howard, "The Privileges and Im¬ munities of Federal Citizenship and Col¬ gate v. Harvey," 87 U.Pa.L.R. 262 (1939). 14. 309 U.S. 83 (1940). 15. See Maxwell v. Dow, 176 U.S. 581 (1900); Twining v. New Jersey, 211 U.S. 78

(1908). Harlan, could be citizens, ernment

The dissents were by Justice who argued that if any rights characterized as rights of national it would be those the federal gov¬ itself is forbidden to transgress.

.S4.

307U

558

INDIVIDUALS

AND

GROUPS

Ch. 7

Whatever the merits, Justice Stone’s approach outlasted the holding in Hague . In subsequent decisions in similar cases, the Supreme Court has not invoked the privileges or immunities theory where a first amendment-due

process analysis was available.17

Finally, in Edwards v. California ,18 four Justices relied on the privileges or immunities clause as a vehicle for protecting the right of interstate travel against infringement by a California law which crimi¬ nally punished persons who knowingly assisted "in bringing into the State any indigent person who is not a resident of the State. . . .” The majority reached the same result under the commerce clause. And, in more recent decisions, the Court has protected the right of interstate travel under the rubric of equal protection.19 In sum, the privileges or immunities clause appears technically redundant — so far. Its applications have been unstable. It has been historically eclipsed by the equal protection and due process clauses as agents of federal intervention in the civil rights duties of the states. But a fair assessment shows the record to be more complex than that. For example, even though the Supreme Court has eschewed reliance on the clause to safeguard the right to migrate from state to state, it is entirely possible that the privileges or immunities clause contributed significantly to the equal protection analysis that reached this result. Justice Brennan’s majority opinion in Shapiro v. Thompson ,20 the case that first enunciated equal protection safeguards for the right to travel, at least cited the concurring opinions in Edwards in support of the recognition of that constitutional right.21 Future Supreme Court cases might draw upon similar interpreta¬ tions of the privileges or immunities clause to suggest still other protections for personal rights. Perhaps the modern significance of the clause is simply the impetus it has furnished and may continue to furnish for the judicial articulation of rights which might otherwise have gone unprotected — as a source of inspiration if not of authority. But one should not rule out the possibility growing weary of the heavily encumbered and of due process and equal protection, might yet privileges or immunities clause not only for

that courts and often sputtering turn to the still a rhetorical lift

lawyers, vehicles shadowy or for a

reminder of such peculiarly "national” interests as interstate travel, but for a fresh source of distinctly personal rights. Attracted by its crisp, non-balancing cadence; 22 drawing solace from its availability only to natural persons; 23 and deeming appropriate for an era of affirmative 17. See generally Chapter 12, infra. 18. 314 U.S. 160, 171 (1941). 19. See Chapter 16, infra. 20. 394 U.S. 618 (1969). 21. Id. at 630. The Court had "no occa¬ sion to ascribe the source of this right to travel interstate to a particular constitu¬ tional provision.” Id. 22. See, e.g., Gertz v. Welch, 418 U.S. 323, 359-60 (1974) (Douglas, J., dissenting).

23. See, e.g., Benoit,of "The or Immunities Clause the Privileges Fourteenth Amendment: Can There Be Life After Death?” 11 Suffolk L.Rev. 61, 109 (1976). That the clause excludes aliens need pose no problem given the equal protection clause as a supplement, see id. at n. 235, and that it does not apply to the federal government should present no difficulty in light of the well-known absorptive capacity of the fifth amendment’s due process

§ 7-4

DIRECT

PROTECTION

559

government its aggressively positive rather than negative cast,24 stu¬ dents of the Constitution and advocates of constitutional progress may find themselves in good company if they treat the clause as alive and

potentially robust.25 clause. See Bolling v. Sharpe, 347 U.S. 497 (1954).

sexual equality, as well as the right to be let alone).

24. See, e.g., Kurland, "The Privileges or Immunities Clause: Tts Hour Come

25. Its history and structure, too, pro¬ vide considerable support for using the clause as the basis for imposing substan¬ tive limits (such as those of the Bill of

Round At Last’?” 1972 Wash.U.L.Q. 405, 419 (urging use of the clause for claims to adequate educational opportunity, welfare and health services, police protection, and

Rights) upon the states. See J. Ely, De¬ mocracy and Distrust (1980).

Chapter 8 MODEL II— THE MODEL OF IMPLIED LIMITATIONS ON GOVERNMENT: THE RISE AND FALL OF CONTRACTUAL LIBERTY § 8-1, Evolution and Federalization Limitations

of the Theory

of Implied

The notion that governmental authority has implied limits which preserve private autonomy predates the establishment of the American republic.1 During the 17th and 18th centuries, there evolved an Ameri¬ can tradition of "natural law,” postulating that "certain principles of right and justice . . . are entitled to prevail of their own intrinsic excellence.” 2 It was widely believed that these principles effectively reconciled governmental power with individual liberty by identifying their respective roles in society. In particular, each level and branch of government was thought to be confined to a sphere of authority defined by the nature and function of that level or branch and by the inherent rights of citizens. Just as each of the three branches of the federal government was bound to remain within its proper jurisdiction, so the state or federal government as a whole had no power to act outside its rightful jurisdiction to intrude upon the "natural rights” reserved to the people within the private domain or to trench upon the preroga¬ tives of other governmental departments. Rights belonging to citizens by virtue of their very citizenship, including personal security, personal liberty, and private property, would thus be preserved 3 not only by decentralization of power and mutually checking forces, as in Model I, but by rules enforceable in the proper tribunals at the behest of threatened citizens. roles in influencing the development of such theories in America. See Corwin, su¬

1. For a discussion of this notion’s § 8-1 evolution in pre-Revolutionary America and of its role in the Revolution itself, see B. Bailyn, The Ideological Origins of the American Revolution 55-93, 175-98 (1967). See also G. Wood, Creation of the Ameri¬ can Republic (1969).

pra note 2, at 400-409; Kennedy, "The Structure of Blackstone’s Commentaries,” 28 Buff.L.Rev. 205 (1979); P. Spurlin, Mon¬ tesquieu in America 1760-1801 (1940). See also Wood, supra note 1 at 152-160, 26064; Bailyn, supra note 1, at 26-31. See generally E. Corwin, Liberty Against Gov¬ ernment (1948); B. Wright, American In¬ terpretations of Natural Law (1931);

2. Corwin, ’The ’Higher Law’ Back¬ ground of American Constitutional Law,” 42 Harvard Law Rev. 149, 365 (1928-29).

Corwin, "The Basic Doctrine of American Constitutional Law,” 12 Mich.L.Rev. 247 (1914); Grey, "Do We Have An Unwritten Constitution?” 27 Stan.L.Rev. 703 (1975).

3. See Wood, supra note 1, at 260-65; Bailyn, supra note 1 at 76-79. Blackstone’s ’’Commentaries” and Montesquieu’s ’’The Spirit of the Laws” played important

560

§ 8-1

IMPLIED

LIMITATIONS

ON GOVERNMENT

At least to some, it mattered little whether

561

a written constitution

expressed these rights and the precise governmental limits they re¬ flected; they were to be preserved because they comprised the central tenets of the unwritten constitution or social compact among the citizenry upon which government itself was based. Common law and written constitutions expressed and elaborated these notions, but did not create them; even "'Magna Carta itself’ was thought "but a constrained declaration” of "original, inherent, indefeasible natural rights.” 4 Perhaps the most notable early example of these perceived limits on governmental power is to be found in Justice Chase’s opinion in Calder v. Bull in 1798.5 In that case, potential heirs challenged as an ex post facto law a Connecticut statute which invalidated a probate court decree which had failed to approve a will, resulting in a second hearing at which the will was approved, to the heirs’ detriment. While the Supreme Court held that the Constitution’s ex post facto clause applied only to criminal laws and thus rejected the heirs’ claim, Chase expressed his willingness in a proper case to prevent a legislature from intruding upon private contract or property rights, even if not "express¬ ly restrained by the Constitution . . . ” 6 A law that "takes property from A. and gives it to B.,” 7 according to Chase, would exceed the proper authority of government and would thus be invalid. It should be noted that Chase’s conception of inherent limits on legislative power did not rest on notions of immutable natural rights alone. In his opinion, Chase maintained that the limits he expounded were implied by the creation and character of the legislature itself— that is, by the specific purposes for which legislatures were created in the American states and by the means through which it was supposed that such legislatures might accomplish their objectives. Thus "the nature, and ends of legislative power will limit the exercise of it.” 8 The attempt to take from A to give to B was void not simply because it violated A’s natural rights in some ill-defined sense but because legisla¬ tures were never established — and, according to Chase, never would be — with such a function in mind. Objections, such as Justice Iredell’s in dissent, to vague and romantic notions of natural rights as an insufficient basis for hardheaded judicial review, were to this degree wide of the mark; 9 Chase’s natural rights were defined in large part reflexively: they were the residue marked out by the limits on govern¬ ment implied by its very reasons for being. 4. Bailyn, supra note 1, at 78 (quoting address by John Dickinson in 1766). See, e.g., Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dali.) 304, 310 (1795) (preservation of property is "a primary object of the social compact”). For a useful discussion of the influential social contract theories of Locke, Hume, and Rousseau, see E. Barker (ed.), Social Contract (1962). See also Wood, supra note 1, at 260-65, 282-91. 5. 3 U.S. (3 Dali.) 386 (1798).

6. Id. at 386 (1798) (Chase, J., seriatim opinion). 7. Id. at 388.

Chase

concluded

that,

since the probate court’s initial decree had not conferred vested property rights upon the heirs under Connecticut law, the Con¬ necticut legislature had not exceeded its authority. Id. at 391-94. 8. Id. at 388. 9. See Justice Iredell’s seriatim opinion in Calder attacking Chase at 398-400.

562

IMPLIED

LIMITATIONS

ON GOVERNMENT

Ch. 8

An example perhaps more vulnerable to objections like Iredell’s is provided by Fletcher v. Peck ,10 where the Supreme Court invalidated a Georgia statute attempting to revoke a series of state land grants. Concurring, Justice Johnson

opined that the revocation violated gener¬

al principles of justice which would "impose laws even on the Deity.” 11 Writing for the Court, Chief Justice Marshall straddled the fence between pure natural law, implied limitations, and formal interpreta¬ tion of explicit constitutional commands, suggesting simply that the Georgia statute was rendered invalid "either by general principles which are common to our free institutions, or by the particular provi¬ sions of the Constitution,” noting that the "nature of society and government [may limit the] legislative power.” 12 Similarly, in Terrett v. Taylor 13 tne Supreme Court struck down Virginia’s attempt to divest the Episcopal Church of its property. Justice Story’s majority opinion declared that the statute violated "principles of natural justice” and "fundamental laws of every free government,” as well as the "spirit and letter” of the Constitution.14 Parallel invocations of natural law ideas continued to emerge well before the adoption of the fourteenth amend¬ ment.15 Yet in the period immediately following the Civil War Amend¬ ments, some of the same judges who endorsed natural law methods or at least methods looking to implied limitations refused to employ the fourteenth amendment itself in order to scrutinize state legislation allegedly interfering with natural rights or common-law

rights. Per¬

haps the most notable example was Justice Miller’s majority opinion in the Slaughter-House Cases,16 in which the Supreme Court upheld Loui¬ siana’s law granting to a private corporation a 25-year monopoly to maintain slaughterhouses and stockyards in and around New Orleans. As we saw above in § 7-2, Justice Miller and a majority of his brethren 10. 10 U.S. (6 Cranch.) 87 (1810).

of Due

11. Id. at 143 (Johnson, J., concurring).

War,” 24 Harv.L.Rev. 366 (1911); Graham, "Procedure to Substance — Extra-Judicial Rise of Due Process 1830-60,” 40 Cal.L. Rev. 483 (1952). But cf. Mason and Bea¬ ney, supra note 12, at 215, discussing treat¬ ment of fifth amendment’s due process clause in Murray v. Hoboken, 59 U.S. (18 How.) 272 (1856). One strong advocate of judicial review of state legislation infring¬

12. Id. at 139, 135 (emphasis

added).

Marshall’s equivocation as to whether the Constitution or natural law was the basis for his decision could suggest either that many judges joined Iredell in insisting that only explicit constitutional limits on the legislature could be policed by the judicia¬ ry, see A. Mason and W. Beaney, The Su¬ preme Court in a Free Society 198-199 (1968), or that Marshall was uncertain about applying the contract clause to state land grants. See § 9-8, supra. 13. 13 U.S. (9 Cranch.) 43 (1815). 14. Id. at 52. 15. See, e.g., Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 657 (1829) (upholding Rhode Island statute confirming otherwise void land title: ”... fundamental max¬ ims of a free government seem to require that the rights of personal liberty and pri¬

C. of ¬ Re ). 71 so t al ourand (19 C e Se 74 me 20on re 13 ti au.p , ruc prS 1 t su e ns th eco t R ar P of 7,

ute). See generally Corwin, "The Doctrine

Before the Civil

ing upon "natural law” rights such as those of contract and property was Thomas M. Cooley, whose famous treatise was in¬ fluential in these developments. T. Cooley, A Treatise on Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union (1868); see C. Jacobs, Law Writers and the Courts: The Influence of Thomas M. Cooley, Chris¬ topher G. Tiedeman, and John F. Dillon upon American Constitutional Law 27-32 (1954).

r s: te ryte ap tota 8, 88 Ch is S H -1 64 in 1e8d it Un n, n ed ma ss ir e io cu Fa th un

vate property should be held sacred”); Wynehamer v. People, 13 N.Y. 378 (1856) (invalidating state liquor prohibition stat¬

Process of Law

§ 8-1

IMPLIED

LIMITATIONS

563

ON GOVERNMENT

interpreted the fourteenth amendment narrowly, so as not to forbid the state legislation at issue. The privileges or immunities clause guaran¬ teed only the rights of national citizenship, which did not include the right to be free from a state-created monopoly.17 The equal protection clause was of doubtful application where discrimination against blacks was not involved.18 The due process claim had "not been much pressed,” and could not succeed in any event since no previous or "admissible” construction of that provision had suggested that the Louisiana statute fell within its scope.19 Justices Field and Bradley disagreed vehemently, both arguing that no government could deprive its citizens of their inherent rights, and both relying on the natural law tradition.20 While the federal courts may previously have possessed no power to prevent a state from infringing upon the rights of its own residents, both contended, the fourteenth amendment placed these basic rights "under the protection of the national government.” 21 The monopoly created by Louisiana, they wrote, violated butchers’ fundamental rights under the fourteenth amendment to pursue their occupation.22 While the Court was strictly limiting the application of the four¬ teenth amendment, however, it continued to employ a natural law-cumimplied limits approach to strike down state legislation in other set¬ tings. In the 1864 case of Gelpcke v. Dubuque™ the Supreme Court upheld the validity of Iowa municipal bonds issued in aid of railroads, despite a state supreme court decision which had recently held the bonds invalid under the state’s constitution. Writing for the majority, Justice Swayne refused to adhere to the doctrine of following the latest state supreme court construction of a state’s own constitution, declaring that "the plainest principles of justice” prevented the state from nulli¬ fying a municipal bond obligation which was valid when made.24 Jus¬ tice Miller dissented, emphasizing the importance of respecting the sovereignty of the states and the autonomy of their courts.25 Yet Justice Miller himself employed a strikingly similar approach ten years later in Loan Association v. Topeka,™ invalidating a munici¬ pal ordinance which had authorized taxation to support the issuance of municipal bonds to assist private industry. Miller elaborated upon the idea of definable spheres of governmental 17. 83 U.S. (16 Wall.) at 75-80; Fairman, supra note 16, at 1352-54; Mason and Beaney, supra note 12, at 218. 18. 83 U.S. (16 Wall.) at 81; Fairman, supra note 16, at 1355. This interpreta¬ tion of the equal protection clause, unlike Miller’s construction of the privileges or immunities clause, has not survived. See Chapter 16, infra. 19. 83 U.S. (16 Wall.) at 80; Fairman, supra note 16, at 1354-55. 20. See 83 U.S. (16 Wall.) at 95-96 (Field); 114-16 (Bradley). 21. Id. at 93 (Field); 119-21 (Bradley). 22. Id. at 97-98 (Field); 120-22 (Brad¬ ley). Swayne, who wrote his own brief

and private power: "There

dissent, and Chase, who

did not, agreed.

Charles Fairman has argued that Field’s suggested interpretation of the fourteenth amendment was too broad, while Bradley’s was more workable. See Fairman, supra note 16, at 1358-60, 1387-88. 23. 68 U.S. (1 Wall.) 175 (1864); Fairman, supra note 16, at 935-44; 3 C. War¬ ren, The Supreme Court in United States History 251-54 (1922). 24. 68 U.S. (1 Wall.) at 206-07. 25. Id. at 207-20. 26. 87 U.S. (20 Wall.) 655 (1874).

564

IMPLIED

LIMITATIONS

Ch. 8

ON GOVERNMENT

are rights in every free government beyond the control of the State/’ he wrote, along with "limitations on such [governmental] power which grow out of the essential nature of all free governments.” 27 The most fundamental of these limits, according to Miller, was that the state must use its powers to enhance the general public welfare, rather than to redistribute resources from one citizen to another. The ordinance, by levying a tax in order to benefit a private industry, violated this principle and was thus void.28 The results in cases like Loan and Slaughter-House , only two years apart, may at first seem difficult to reconcile. Surely they cannot be explained entirely by a desire to protect or aid moneyed corporations; the decision in Loan , for example, invalidated a scheme that would have redistributed income to private industry through taxation. Simi¬ larity, an unyielding commitment to laissez-faire did not appear to motivate the decisions, as witnessed by the Court’s approval of govern¬ ment regulation in Slaughter-House ,29 To jurists like Miller, the principles behind cases like Loan and Slaughter-House were clear: Government regulation of economic affairs was not impermissible per se; it was invalid only where the state moved beyond the sphere of its inherently limited authority by using its powers to help some citizens at the expense of others, rather than to promote genuinely public purposes to benefit the citizenry as a whole.30 But just as there was thus a clear boundary between governmental and private prerogative, so too a bright line divided federal from state authority.31 Cases like Loan , as well as such earlier decisions as Colder, Fletcher , and Terrett, did not gravely threaten legitimate state prerogatives because federal jurisdiction in those cases was based on diversity of citizenship. The underlying rationale of the diversity jurisdiction, parallel to that of the privileges and immunities clause of article IV, § 2,32 was to protect residents of one state from potentially hostile treatment as "outsiders” by the courts of another. Thus in diversity cases, the federal courts were free to apply the "general common law” without infringing on legitimate state authority.33 But in litigation pitting a state against its own citizens, Miller believed that the Court should not invalidate state legislation even if such legislation might violate "some of these principles of general constitutional law of which we could take jurisdiction if we were sitting in review of a Circuit Court of the United States, as we were in Loan Association v. Topekar 34 27. Id. at 662-63. 28. Id. at 663-66; Fairman, supra note 16, at 1101-12. 29. For the large volume of contempo¬ rary criticism of the cases, see Fairman, supra note 16, at 1369-74; Miller, supra note 27, at 261-70, 291-300. 30. See Fairman,

1111.

supra

note

16, at

31. Cf. United States v. DeWitt, 76 U.S. (9 Wall.) 41, 45 (1870) (holding unconstitu¬ tional a congressional prohibition of sale of

illuminating oil mixture as a "police regu¬ lation relating ... to internal trade of the states.”). 32. See Chapters 3 and 6, supra. 33. Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842); see Fairman, supra note 16, at 93640. 34. Davidson

v. New

Orleans, 96 U.S.

97, 105 (1877). Another key difference be¬ tween the two sources of power lay in the threat of congressional enforcement, some¬ thing the Court feared if it grounded its

IMPLIED

LIMITATIONS

ON GOVERNMENT

565

§ 8-1

The federal-state boundary insisted upon by Miller could not long survive the Civil War and the constitutional amendments that followed. Increasingly, judges and critics agreed with Field and Bradley that the post-war amendments were intended to bring state actions against their own citizens within the reach of federal court scrutiny.35 Even diversi¬ ty jurisdiction sometimes aided residents against their own states; in Loan itself, the out-of-state loan association which had sued to recover interest on the bonds at issue lost in the Supreme Court, thus protect¬ ing the rights of Topeka resident-taxpayers from usurpation by their own government. As the need for federal judicial review to protect the rights of citizens against their own states came to seem increasingly important, there emerged an apparent solution to Miller’s fear of the seemingly limitless scope of the fourteenth amendment. Increasingly, judges came to believe that substantive due process review could be confined by boundaries derived from common law categories — the crucial idea lead¬ ing to Model II. Just as inherent limitations on government guided natural law scrutiny of legislative action, so could they guide federal judicial review under the fourteenth amendment. Miller’s very recog¬ nition of definable spheres of governmental and private authority first in Slaughter-House and later in Loan — the spheres that had enabled him to opine in the first case that the butchers’ rights were not in fact violated and to opine in the second that the taxpayers’ rights were — thus paved the way to the destruction of his attempted limitation of the fourteenth amendment

in the Slaughter-House Cases.36

Accordingly, the years following Loan and Slaughter-House wit¬ nessed rapid movement toward substantive review of state legislation under the due process clause of the fourteenth amendment.37 Miller himself recognized the demand for such review in 1877, grudgingly admitting that meaning could be given to the due process clause through "the gradual process of judicial inclusion and exclusion,” while adhering to his view that the Court’s discretion was broader in diversity cases.38 In the same year, however, the Court warned in Munn v. Illinois 39 that, as to matters in which the public has no legitimate interest, "what is reasonable must be ascertained judicially,” and insisted in dictum that the fourteenth amendment "prevents the states from doing that which will operate” as a violation of common law principles. decisions on the fourteenth amendment but not if it pronounced them as general law in diversity cases. fe for st the de re de r co m o conral de nge du atnod th go gni r z e c e v fi¬o rase a re in th sta de er erde f s a e nc nm po t u se es l t 8 S th e Civ en Wsaed in Sl d ee 3 e a r 81 at 67ugh (1il t Wa U. 6 ll -8 S. -6 te .) 2. 9, r H 36. Early twentieth-century commenta¬ ou se ry recognizing this relationship between . Loan and Slaughter-House is contained in Miller, supra note 23, at 291-92.

37. Some believed that such review was actually consistent with Slaughter-House, in which the due process contention was not "clearly stressed,” and that it was more limited than review under the privi¬ leges and immunities clause. See Miller, supra note 23, at 268-71, 289-91. 38. Davidson v. New

Orleans, 96 U.S.

97, 103-05 (1877) (upholding tax assess¬ ment as furthering public purposes). 39. 94 U.S. 113, 134, 125-26 (1877) (up¬ holding Illinois’ regulation of grain eleva¬ tor charges).

566

IMPLIED

LIMITATIONS

ON GOVERNMENT

Ch. 8

Less than a decade later, the Court specifically considered the relationship between the fourteenth amendment and the police power of the states. It upheld a San Francisco ordinance prohibiting the operation of laundries at night in Barbier v. Connolly ,40 but warned that the due process clause protected the freedom to contract and prevented arbitrary deprivations of common-law liberty — deprivations which by definition could not amount to exercises of the police power, whose mission was the protection of common-law rights. In 1886, the Court claimed that a regulation which amounts to confiscation of property, such as one requiring a railroad to carry passengers or freight '"without reward,” would extend beyond state authority.41 The next year, the Court upheld a Kansas statute prohibiting the manufacture and sale of alcoholic beverages, but declared in unmistakable terms that it would scrutinize the substantive reasonableness of state legislation pursuant to the due process clause, and would invalidate a law supposedly enacted pursuant to the police power if in fact it had "no real or substantial relation” to the public health, morals, or safety, and was "a palpable invasion of rights secured by the fundamental law.” 42 By the 1890’s the Supreme Court was clearly on the verge of embarking upon the full-scale substantive due process review that formed what I have called Model II. Why those who sat on the Court were ready at that precise time remains unclear. William Nelson has attributed the change to the jurisprudential impact of the antislavery movement, which recognized the transcendent importance of liberty and gave legitimacy to arguments from moral absolutes. According to Nelson, judges influenced by the antislavery movement had gained control of the federal bench by the 1890’s.43 Other legal historians have identified other, perhaps more influential, causes. Some have argued that conservative economic philosophies and economic and social pressures influenced the judiciary.44 Still others have pointed to 40.

113 U.S. 27, 31 (1885).

41. Railroad Commission Cases, 116 U.S. 307, 331 (1886). Judicial scrutiny of rate regulation rapidly advanced through a series of cases, culminating in Smyth v. Ames, 169 U.S. 466 (1898), which estab¬ lished the ground rules for scrutiny of the reasonableness of such regulation. For a discussion of the evolution of Smyth and its eventual repudiation, see FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944), dis¬ cussed in Chapter 9, infra. 42. Mugler v. Kansas, 123 U.S. 623, 661 (1887). See also Hurtado v. California, 110 U.S. 516, 532 (1884) (upholding state law

power. See, e.g., In the Matter of Jacobs, 98 N.Y. 98 (1885) (invalidating state law restricting cigar manufacture); Godcharles v. Wigeman, 113 Pa. 431, 6 A. 354 (1886) (invalidating state regulation of wage pay¬ ment methods); Millett v. People, 117 Ill. 294, 7 N.E. 631 (1886). See generally Mendelson, "A Missing Link in the Evolution of Due Process,” 10 Vand.L.Rev. 125 (1956) (discussion of state court decisions prior to the Civil War); Nelson, "The Impact of the Antislavery Movement upon Styles of Judi¬ cial Reasoning in Nineteenth Century America,” (1974).

87 Harv.L.Rev.

513, 521-532

43. Nelson, supra note 42, at 547-66.

substituting prosecutor’s information for grand jury indictment but stating that due process guarantees "the very substance” of individual rights to life, liberty, and prop¬ erty). By this time, several state courts had begun to invalidate state laws which thus "exceeded”

the limits of the police

44. E.g., A. Paul, The Conservative Cri¬ sis and the Rule of Law (1969); B. Twiss, Lawyers and the Constitution: How Lais¬ sez-Faire Came to the Supreme Court (1942).

§ 8-2

IMPLIED

LIMITATIONS

ON GOVERNMENT

567

the effects of pressure from the organized bar 45 and hostility to labor regulations.48 Whatever

the precise cause, the line of dicta beginning in the

1870’s ripened into a landmark holding In Allgeyer v. Louisiana ,47 the Supreme statute prohibiting any act in the state insurance on Louisiana property with business in Louisiana. The Court held

before the turn of the century. Court invalidated a Louisiana to effect a contract for marine a company not licensed to do that the statute exceeded the

state’s police power and violated the due process clause of the four¬ teenth amendment, in that it infringed upon the liberty to contract for insurance. The floodgates of substantive due process review had been opened as implied limitations analysis moved from the realm of sporad¬ ic invocation as "general law” in diversity cases and treatises to the realm of routine enforcement as part of specifically federal law in the name of the fourteenth amendment. Model II, the Model of Implied Limitations whose conceptual elements had been at hand for decades, came into its own as federal constitutional law.

§ 8-2. The Lochner

Era: Model

II Triumphant

Model II reigned in the period beginning around the turn of the century with Allgeyer and ending by the middle of the 1930’s with West Coast Hotel v . Parrish.1 That period is ordinarily described as "the Lochner era,” but it should be so characterized only with great cau¬ tion — and with a recognition that " Lochnerizing* ’ has become so much an epithet that the very use of the label may obscure attempts at understanding. While the Supreme Court invalidated much state and federal legislation between 1897 and 1937, more statutes in fact with¬ stood due process attack in this period than succumbed to it.2 More¬ over, the Court also interpreted other constitutional provisions, such as 45. Mason at 227-36.

and Beaney, supra note 12,

46. L. Beth, The Development of the American Constitution 1877-1917, 138-66 (1971). 47.

165 U.S. 578 (1897). The Court also

suggested that the statute unlawfully in¬ terfered with interstate commerce, an area within federal control, since the contract was made outside Louisiana.

1. 300 U.S. 379 (1937), discussed in § 8§ 8-2 7, infra. 2. It has been estimated that the Su¬ preme Court invalidated state or federal regulations pursuant to the due process clause, usually coupled with another provi¬ sion such as the equal protection clause, in 197 cases between 1899 and 1937, while an even larger number of regulations survived scrutiny. See B. Wright, The Growth of American Constitutional Law 154, 176 (1942); G. Gunther, Constitutional Law: Cases and Materials 565 (9th ed. 1975); Warren,

§ 8-1 supra note 23, at 463-65

(369 state laws enacted under the police power upheld between 1889 and 1918). Several discussions of this period of consti¬ tutional history suggest that in the years surrounding World War I, the Court’s com¬ position, its concern with the integrity of wartime legislation, and the influence of the Progressive movement, temporarily produced greater tolerance on the federal bench of social and economic legislation. See E. Lewis, History of American Political Thought from the Civil War to the World War 101-07 (1937); P. Murphy, The Consti¬ tution in Crisis Times 1918-1969, 18-37 (1972); Mason & Beaney, § 8-1, supra, note 12, at 238-42. Compare Warren, § 81, supra, note 23 at 463-65 (53 state police power statutes held unconstitutional be¬ tween 1889 and 1918) with Murphy at 63 (almost 140 laws held unconstitutional be¬ tween 1920 and 1930). For a comprehen¬ sive summary of the Court’s decisions be¬ tween 1897 and 1937, see N. Small (ed.), The Constitution of the United States, 1392-99, 1427-87 (1964 ed.).

568

IMPLIED

LIMITATIONS

Ch. 8

ON GOVERNMENT

grants of congressional power in article I and the contract clause, so as to restrain progressive and redistributive social and economic legisla¬ tion throughout the early twentieth century.3 Nevertheless, it would be accurate to conclude that during this period the Supreme Court was quite willing — certainly more willing than it has otherwise ever been — to scrutinize and invalidate economic regulations pursuant to the due process clause.

Many observers have contended that the Supreme Court’s decisions during the Lochner era were motivated by the majority’s conservative economic ideology and by its hostility toward labor regulation.4 What¬ ever the validity of these suggestions, it is clear that more than a few Americans shared the conservative beliefs held by some members of the Court.

Many

legislatures and courts resisted the Progressive move¬

ment, and it is clear that the Supreme Court’s views echoed a powerful strand in the thought and politics of the early twentieth century.5 For example, Charles Warren has noted that the number of contemporary commentators

who approved the decision in Lochner

v. New

York 6 at

least equalled the number who attacked it.7 The Court’s inclinations in the Lochner era of Model II were hardly in the vanguard of social and economic thought, but at least until the 193Q’s they were far from aberrant or peculiarly retrogressive.8

§ 8-3. Model

IPs Scrutiny of Means-Ends

Relationships

In reviewing state and federal economic regulation, the Supreme Court closely scrutinized both the ends sought and the means employed in challenged legislation. In its analysis of legislative means, the Court required a "real and substantial” relationship between a statute and its objectives.1 By itself, such a standard might have produced few if any alarming consequences; indeed, in several cases the Court yielded to factual demonstrations of the claimed relationship between legislative 3. See Chapters 5 (art. I) and 9 (con¬ tract clause). The due process cases ac¬ counted for less than half of the decisions in which the Court invalidated federal or state laws on constitutional grounds. See 3 C. Warren, The Supreme Court in United States History 108, 154, 178 (1922). 4. See § 8-1, notes 44 and 46, supra. 5. See R. Billington, American History After 1865, 86-98, 161-78 (1965 ed.); G. Kolko, The Triumph of Conservatism (1963); Murphy, supra note 2, at 141 (lower federal courts); L. Beth, The Development of the American Constitution 216-48 (1971) (state courts). For example, as of 1932, less than 20 states had enacted minimum wage laws, 22 states had not enacted ' 'pro¬ gressive” legislation regulating the employ¬ ment of women, and only one state re¬ quired seating accommodations for male and female workers. See E. Nichols and J. Baccus (eds.), Minimum Wages and Maxi¬ mum Hours 27-28, 297-98, 311-12 (1936).

6. 198 U.S. 45 (1905) (invalidating state law setting 10-hour daily maximum and 60-hour weekly maximum for employment by bakers). 7. See 3 C. Warren, The Supreme Court in United States History 435-36 n. 1 (1922). See also Murphy, supra note 2, at 67-68 (business, government, and organ¬ ized bar support for Supreme Court deci¬ sions in the 192Q’s); Ransom, "The Profes¬ sion of Law,” 2 Vital Speeches 628 (1936) (address by President of American Bar As¬ sociation defending Supreme Court). 8. See Ackerman, "The Storrs Lectures: Discovering the Constitution,” 93 Yale L.J. 1013, 1051-57 (1984).

1. See Lochner

v. New

York, 198 U.S.

45, 56, 64 (1905); Jacobson v. Massachu¬ setts, 197 U.S. 11, 31 (1905); Liggett Co. v. Baldridge, 278 U.S. §105, 8-3 111 (1928).

IMPLIED

LIMITATIONS

ON GOVERNMENT

569

§ 8-3

means

and ends. The famous "Brandeis briefs” in such cases as Muller

v. Oregon 2 helped save a number

of statutes from invalidation.

Decisions such as Muller , however, appeared as exceptions to the rule. The more typical decisions of the era expressed profound skepti¬ cism about academic or other experts as witnesses and especially about legislators as factfinders.3 Such "facts” were regarded as manipulable and thus unreliable.4 Instead, the Court interpreted its requirement of a substantial means-ends relationship so as to invalidate statutes which interfered with private economic transactions unless evolving common law concepts demonstrated a proper fit between the legislation and its asserted objectives.

Lochner itself provides the best example of such strict and skeptical means-ends analysis. There, the Court rejected New York’s claim that its 60-hour limit on a bakery employee’s work week was significantly and directly related to the promotion of employee health. Yet consider¬ able evidence, discussed at length by Justice Harlan in dissent, suggest¬ ed that limiting the work week as New York had decided to do would enhance the health of bakers, whose working conditions appeared to pose significant threats to their health and welfare.5 Justice Harlan found the majority’s decision particularly objectionable in light of

Holden v. Hardy,6 which seven years earlier had upheld a similar limit on the working hours of underground

miners.

The majority, however, thought the cases clearly distinguishable. Detailed empirical demonstrations had not justified the result in Hold¬

en ; instead, the decision appeared to rest heavily on the characteriza¬ tion of mining as an activity which the courts had traditionally recog¬ nized as unusually dangerous or ultrahazardous.7 Just as reputation evidence is often preferred over more pointed, but potentially also more slanted, opinion testimony in the law of evidence, so the Court was 2. 208 U.S. 412 (1908) (upholding maxi¬ mum working hours provisions for women). See also, e.g., McLean v. Arkansas, 211 U.S. 539 (1909) (upholding state regulation of wage payment to miners); Simpson v. O’Hara, 243 U.S. 629 (1917) (upholding, by an equally divided Court, state minimum wage requirement for women factory em¬ ployees); Bunting v. Oregon, 243 U.S. 426 (1917) (upholding state law establishing ten-hour work day for manufacturing em¬ ployees). For more general discussion of the technique, see P. Freund, On Under¬ standing the Supreme Court 86-91 (1949); Bikle, '’Judicial Determination of Ques¬ tions of Fact Affecting the Constitutional Validity of Legislative Action,” 38 Harv.L. Rev. 6 (1924); Karst, "Legislative Facts in Constitutional Litigation,” 1960 Sup.Ct. Rev. 75. 3. For example, when Chief Justice White was confronted with a Brandeis brief in Adams v. Tanner, 244 U.S. 590 (1917), he reportedly responded: "I could compile a brief twice as thick to prove that the legal profession ought to be abolished.” Tribe-Amer. Const. Law 2nd Ed. UTB — 15

L. Pfeffer, This (1965).

Honorable

Court

259

4. Id. See also Adkins v. Children’s Hosp., 261 U.S. 525, 559-SO (1923) (such facts found "interesting but only mildly persuasive”); A. Mason and W. Beaney, The Supreme Court in a Free Society 242246 (1968). In Lochner itself, for example, Justice Peckham, author of the majority opinion, refused even to reply to Justice Harlan’s reliance in dissent on factual re¬ ports and treatises on industrial diseases. 198 U.S. at 58-63, 70-71. 5. Lochner v. New York, 198 U.S. 45, 68-72 (1905) (Harlan, J., dissenting). 6. 169 U.S. 366 (1898). 7. Id. at 391.

See Lochner

v. New

York, 198 U.S. 45, 54-55 (1905). For a discussion of the English and American common law of ultrahazardous activities, see W. Prosser, Law of Torts 78 (4th ed., 1971). Even ordinary coal mining had been regarded as ultrahazarous by many American courts. Id. at 511.

570

IMPLIED

plainly more

willing to trust the gradually evolving categories of the

LIMITATIONS

ON GOVERNMENT

Ch. 8

common law than the readily tailored findings of "experts,” commit¬ tees, or even legislative majorities. Moreover, the majority in Lochner reasoned that other state regu¬ lations could promote employees’ health without infringing so funda¬ mentally on their freedom to contract; limits needlessly restrictive would therefore exceed the boundaries of the police power.8 Indeed, the fact that the New York law invaded contractual autonomy beyond the level warranted by its asserted goal of protecting employee health suggested to the Court that health was not really the statute’s objective at all, so that the legislation could not be justified as a means of accomplishing its alleged aims.9 This strict scrutiny of means-ends relationships continued to surface in later decisions. Thus the Court invalidated a Nebraska law requiring standardized weights for loaves of bread, finding the statute "not neces¬ sary for the protection of purchasers against . . . fraud by short weights,” since that problem "readily could have been dealt with” without such restrictive regulation.10 In striking down minimum wage laws for women in Adkins v. Children's Hospital ,n Justice Sutherland noted for the majority that governmental wage regulation was needed only within limited categories of activity. And in a 1928 decision which invalidated Pennsylvania restrictions on corporate ownership of pharmacies, the Court pointed to other specified types of regulatory statutes as permissible methods of promoting public health in that area.12 Stringent analysis of the relationship between a challenged law and its alleged objectives thus formed an important part of judicial activism in the Lochner period. § 8-^4. Model II’s Scrutiny of Legislative Perhaps more striking than such close relationships during the Lochner era was the of legislative ends. In this respect, judges

Ends scrutiny of means-ends strict judicial assessment drew heavily on earlier

natural law and implied limitation notions; 1 partly on the economic and social theories of Herbert Spencer advocating social Darwinism; 2 and to a degree also on the conservative legal theories of Roscoe Pound,3 Thomas 8. Lochner 61-62 (1905).

v. New

Cooley,4 and Christopher Tiedeman,5 York, 198 U.S. 45,

9. See id. at 64 (claiming that laws like New York’s are often "in reality passed for other motives”). 10. Jay Bums

Baking Co. v. Bryan, 264

U.S. 504, 517 (1924). Justice Brandeis’ dis¬ sent predictably discussed factual proof of the need for the regulation. 11. 261 U.S. 525, 546-48 (1923). 12. Liggett Co. v. Baldridge, 278 U.S. 105 (1928). See also, e.g., Weaver v. Palmer Bros., 270 U.S. 402 (1926) (invalidating state prohibition of "shoddy” in the manufacture of bedding materials where other means of protecting health and preventing deception

advocating pro-

were available); Adams v. Tanner, 244 U.S. 590 (1917) (total prohibition of fee collection from workers by employment agencies held not justified by potential abuses). Liggett was expressly overruled in North Dakota Bd. of U.S.Pharmacy 156 (1973).v. Snyder’s Drug Stores, 414

1. See § 8-1, supra. 2. H. Spencer, Social Statics (1872). See R. Hofstadter, Social Darwinism in American Thought 1860-1915 (1945). § 8-4 3. See, e.g., Pound, "Liberty of Con¬ tract,” 18 Yale L.J. 454 (1909).

4.-5. See notes 4 and 5 on page 571.

§ 8-4

IMPLIED

LIMITATIONS

ON GOVERNMENT

571

tection for individual freedom of contract and property through limita¬ tions on the reach of the police power. In broad outline, the underlying philosophy held that the only legitimate goal of government in general, and of the police power in particular, was to protect individual rights and otherwise enhance the total public good; 6 if they were to be upheld, governmental regulations thus had to promote "the general welfare” and not be "purely for the promotion of private interests.” 7 As a corollary, it followed that any statute which was imposed upon individuals or corporations in order to redistribute resources and thus benefit some persons at the expense of others (for that is how redistribution was then conceived) would extend beyond the implicit boundaries of legislative authority. Such a law would thus violate natural rights of property and contract, rights lying at the very core of the private domain.8 Moreover, laws aimed at redistributing resources would by their very nature fall outside the legislative function. Governmental actions which sought to benefit some persons at the expense of others were perceived as dangerous and exceptional. If such activities were not based on notions of corrective justice between parties, they were merely disguised forms of robbery. If, on the other hand, corrective justice was involved, then it was solely the function of the courts to act. As Cooley wrote, even if the Constitution did not itself limit legislative depriva¬ tions of property, a statute transferring resources "would nevertheless be void” as an act "judicial in its nature,” if permissible at all.9 At the same time it was believed that legislatures could properly enact statutes which protected the interests of certain discrete groups, such as children and women, both treated by the dominant legal ideology as unable to protect themselves. Such laws, it was thought by many, simply recognized "distinctions that exist in the nature of things.” 10 But equalization or redistribution of economic or social 4. T. Cooley, A Treatise on the Consti¬ tutional Limitations which Rest upon the Legislative Power of the States of the American Union (8th ed., 1927). Cooley’s treatise was originally published in 1868. The great influence of Cooley and Tiedeman is demonstrated persuasively in C. Jacobs, Law Writers and the Courts: The Influence of Thomas M. Cooley, Chris¬ topher G. Tiedeman, and John F. Dillon Upon American Constitutional Law (1954). 5. See C. Tiedeman, A Treatise on the Limitations of the Police Power in the United States (1886). Tiedeman explicitly acknowledged that his treatise was de¬ signed in part to stem what he perceived as the rising tide of governmental interfer¬ ence in private affairs and to promote a "return” to laissez-faire. 6. Conceived as an amalgam of (1) the aggregate welfare of individuals, and (2) conventional morality.

7. Cooley, supra note 4, at 1227-28 n. 2. 8. See, e.g., Spann v. Dallas, 111 Tex. 350, 235 S.W. 513 (1921); Cooley, supra note 4, at 1229-30, 1348. 9. Cooley, supra note 4, at 357. Even the courts, according to Cooley, could not dispense distributive justice; their function was only to do commutative justice as be¬ tween parties (i.e., to transfer property from A to B in order to restore what prop¬ erly belongs to B at common law according to the law of contracts, property, or torts), not to proceed "without reasons” through "mere arbitrary flat.” Id The very idea of distributive justice was thus ruled out; but one correct "distribution” could exist — that generated by the inexorable interac¬ tion of private wills under the ground-rules of the common law.

10. Cooley, supra note 4, at 1341-42.

572

IMPLIED

LIMITATIONS

ON GOVERNMENT

Ch. 8

power, which "'takes property from A. and gives it to B.,” 11 was an impermissible end of legislation. Again, Lochner

itself usefully illustrates the application of this

judicial philosophy. The Court there summarily rejected any sugges¬ tion that New York’s limitation of working hours could stand as a "labor law” intended to benefit bakers at their employers’ potential loss, while interfering with the formal contractual freedom of both. "The interest of the public,” wrote Justice Peckham, would not be "in the slightest degree affected.” 12 Nor did the bakers fall within a recognized category of persons warranting special governmental protec¬ tion: "There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their indepen¬ dence of judgment and of action. They are in no sense wards of the State.” 13 Thus the New to help bakers, whether contractual regime or by assure bakers of decent

York law could not be justified as an attempt by enhancing their bargaining power in the circumventing that regime in order directly to working conditions.

Perhaps the clearest and fullest statement of the era’s dominant philosophy appeared in Coppage v. Kansas,14 where the Supreme Court struck down a state law prohibiting "yellow dog” contracts — contracts which required workers to refrain from union membership as a condi¬ tion of employment. Writing for the majority, Justice Pitney discussed the Court’s theory of due process review at length. Restriction of freedom to contract for personal employment, he explained, was a "substantial impairment of liberty” which was "as essential to the laborer as to the capitalist, to the poor as to the rich,” since only by bartering their employment could poor laborers begin to acquire prop¬ erty.15 The right to join a union was a right that a worker should be able to bargain away if it was to his or her advantage.16 Liberty of contract could be incidentally impaired by statutes in aid of the general public welfare (for "liberty” did not include the right to injure the public), but not to redress so-called inequalities of bargaining power, which were "but the normal and inevitable result” of the exercise of the right to contract itself.17 In contrast to Lochner and Coppage, protection of the "particular class” of coal miners was justified on the theory that their contracts were unilaterally imposed by their employers.18 Similarly, the Court 11. Calder v. Bull, 3 U.S. (3 Dali.) 386, 388 (1798) (Chase, J.). See § 8-1, supra. 12. Lochner v. New York, 198 U.S. 45, 57 (1905). 13. Id. 14. 236 U.S. 1 (1915). Coppage reaf¬ firmed and extended Adair v. United States, 208 U.S. 161 (1908), in which the Court invalidated a federal “yellow dog” contract restriction. 15. 236 U.S. at 14. 16. Id. at 19-21.

17. Id. at 17-18. 18. Holden v. Hardy, 169 U.S. 366, 393, 397 (1898). The Court in Lochner did not specifically explain why such “constraints” as employee fear of being fired in Holden did not apply to the bakers in Lochner; apparently the Court felt that coal miners as a class constituted a captive labor force while bakers did not. Cf. Marsh v. Ala¬ bama, 326 U.S. 501 (1946) (holding that operation of “company town” was a public function for first amendment purposes).

§ 8-4

IMPLIED

LIMITATIONS

ON GOVERNMENT

upheld a working hours limit for women

573

in Muller v. Oregon 19 in order

to protect a class which it perceived as dependent; in the Court’s frame of reference, the social and biological role of women might not be compromised by limited amounts of non-domestic work, but would be jeopardized by labors so excessive as to threaten the essential reproduc¬ tive functions of the female.20 Even where women were involved, however, the Supreme Court disallowed minimum wage laws, which could not so readily be assimilated to sexist assumptions about the nature and role of women 21 and which would have struck at the heart of private control over property and contract; even for women, mini¬ mum wages thus constituted a "naked, arbitrary exercise” of asserted legislative authority.22 Similar attempts to bring legislative goals into alignment with these substantive views surfaced throughout the Lochner era, as the Court invalidated federal and state statutes regulating labor-manage¬ ment relations,23 prices and wages,24 and entry into business.25 It thus 19. 208 U.S. 412 (1908). 20. Id. at 420-22 (e.g., references to the "dependence” of women upon men and the social need for "healthy mothers”). From a modern and less sexist perspective, the Court’s concern with the proper role of women can be understood partly as an attempt to freeze women within the role of wives and mothers, and partly as reflecting the then-popular conception that the ge¬ netic composition of humanity would be adversely affected should women become too involved in the labor force. The ratio¬ nale for treating women differently had rested largely on claims of divine intention in the 1830’s and 1840’s. Although that approach was reflected in some judicial opinions even into the 1870’s (see, e.g., Bradwell v. State, 83 U.S. (16 Wall.) 130, 141 (1873) (Bradley, J., concurring) (state allowed to deny women the right to prac¬ tice law since the "paramount destiny and mission of women” under the "law of the Creator” is "to fulfill the noble and benign offices of wife and mother”), the dominant defense of "protective” laws and practices by the late 19th and early 20th centuries was cast along physiological lines. A popu¬ lar tract in the last quarter of the 19th century, Clarke, Sex in Education, or a Fair Chance for Girls (1873), claimed that excessive non-domestic work or rigorous academic study could seriously damage a woman’s reproductive system. Needless to say, Clarke’s conclusions, and those of oth¬ er physicians who took the same view, did not rest on reliable data; in fact, the major source of the empirical information in¬ voked seems to have been isolated in¬ stances of menstrual difficulty among mid¬ dle-class adolescents. See Trecker, "Sex, Science and Education,” 26 Am.Q. 352 (1974). The physiological rationale for spe¬ cial treatment of women, however thin its

evidentiary base, fit well for several de¬ cades with sterilization laws and similar state attempts to shape the population’s genetic future. Although feminists coun¬ tered the view of people like Clarke with data about the healthy children of women who had gone to college, reformists like Jane Addams and Josephine Shaw Lowell found the older stereotypes more useful in their battle for improved conditions for working-class women. See generally E. Flexner, Century of Struggle (1973). 21. Substandard wages did not appear to risk the same biological damage to a woman’s "physical structure and the per¬ formance of maternal functions,” 208 U.S. at 420, that overly strenuous or unduly prolonged periods of work were thought to entail. 22. Adkins v. Children’s Hosp., 261 U.S. 525, 559 (1923). See also Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936) (New York minimum wage law for women). The Court’s treatment of wage and hour legislation would tend to support the theories discussed at note 20, supra. That is, limitation of women’s working hours would be justified by a perceived need to limit the participation of women in the labor force, whereas minimum wage legislation would not. 23. E.g., Coppage v. Kansas, 236 U.S. 1 (1915) (state law prohibiting "yellow dog” contracts); Adair v. United States, 208 U.S. 161 (1908) (federal "yellow dog” re¬ striction); Truax v. Corrigan, 257 U.S. 312 (1921) (state law restricting the use of in¬ junctions in labor disputes); Wolff Pkg. Co. v. Court of Indust. Reltns., 262 U.S. 522 (1923) (compulsory arbitration); Railroad 24.-25. See notes 24-25 on page 574.

574

IMPLIED

LIMITATIONS

ON GOVERNMENT

Ch. 8

became clear, especially in the late 1920’s and early 1930’s, that much economic and social legislation could not withstand substantive due process scrutiny by the Supreme Court.

§ 8-5. The Decline of Lochner:

Internal Erosion

However

firm the Court’s adherence to the conception of contractu¬ al liberty and to the logic through which such liberty was "derived” from the implied limits on government power, the reign of Lochner came to an end in the late 1930’s. Both erosion within the internal structure of the relevant doctrines and external attacks on their under¬ lying philosophical and factual premises contributed to the era’s demise and thus to the collapse of Model II. Exceptions to the regime of governmental

non-interference in con¬

tractual liberty, recognized as proper even by Lochner ’s advocates, suggested that the seeds of self-contradiction lay close to the philoso¬ phy’s surface. For example, the Court’s decisions in Holden v. Hardy 1 and Muller v. Oregon 2 indicated that, insofar as such groups as coal miners and women were concerned, states could attempt to assist the protected group 3 even at the expense of others, because of its supposed¬ ly vulnerable and dependent position. These recognized exceptions were cast in terms that rendered the entire theory potentially vulnera¬ ble to an argument that, as social and economic patterns change or as existing patterns are reassessed, other groups — ultimately, industrial laborers in general — may become unable, or may come to be regarded as unable, to protect their own interests effectively, so that governmen¬ tal intervention on their behalf becomes justifiable in terms of an already available theory. Cases such as Bunting v. Oregon 4 may indeed reflect an early recognition of that potential, and made it more difficult for observers and critics of the doctrine’s later applications to accept its persistence as mandatory. Revealing examples

of internal disarray also surface in the Su¬

preme Court’s treatment of tax legislation. The Court had ruled the income tax unconstitutional in Pollock v. Farmers Loan and Trust Co.,5 reversing its earlier approval.6 But the Court in turn saw its decision reversed by the sixteenth amendment in 1913, authorizing an unapporRetirement Bd. v. Alton R. Co., 295 U.S. 330 (1935) (federal railroad pension plan). 24. E.g., Connally v. General Const. Co., 269 U.S. 385 (1926) (construction workers’ wages); Tyson and Bro. v. Banton, 273 U.S. 418 (1927) (theater ticket resale prices); Ribnik v. McBride, 277 U.S. 350 (1928) (employment agency fees); Williams v. Standard Oil Co., 278 U.S. 235 (1929) (gaso¬ line prices). Olsen v. Nebraska, 313 U.S. 236 (1941), explicitly overruled Ribnik, and Tyson was overruled in Gold v. DiCarlo, 380 U.S. 520 (1965) (per curiam). 25. E.g., Adams v. Tanner, 244 U.S. 590 (1917) (collection of fees from workers by employment agencies); New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (ice man¬ ufacturing).

1. 169 U.S. 366 (1898), discussed in § 84, supra. 2. 208 U.S. 412 (1908), discussed in § 8§ 8-5 4, supra. 3. Or, as in Muller, help freeze its so¬ cial role. 4. 243 U.S. 426 (1917) (upholding state law establishing 10-hour work day for manufacturing employees), discussed in § 8-3, supra. See the discussion of Bunt¬ ing in Adkins v. Children’s Hospital, 261 U.S. 525, 550-51 (1923). 5. 157 U.S. 429 (1895). 6. Springer v. United States, 102 U.S. 586 (1881). See A. Paul, Conservative Cri¬ sis and the Rule of Law 159-200 (1969).

§ 8-5

IMPLIED

LIMITATIONS

ON GOVERNMENT

575

tioned taxing mechanism 7 and implicitly accepting the income redistri¬ bution which such a tax produced.8 Both before and after the sixteenth amendment, however, the Court itself had approved a number of taxing schemes which appeared to belie its insistence that the government not rearrange the workings of the property and contract system ordained by the common lawT or interfere in private affairs. It upheld taxes on inheritance 9 and on corporate income,10 despite arguable similarities to the tax in Pollock. It sustained a North Dakota plan in which tax revenues were used to operate a state-run mill and home building project.11 On several occasions, it exhibited a hands-off policy towards taxes used to regulate private uses of property,12 although it struck down other instances of regulatory taxation.13 Although the Court was basing its tax decisions not on any overt assessment of the degree to which any given tax redistributed property or interfered with contract but on various article I doctrines, it would be difficult (perhaps impossi¬ ble) to demonstrate that the key to how the Court acted in these cases was not in fact related to the degree of redistribution or interference.14 What seems significant for our purposes is that a fully coherent

Lochner model would have consistently addressed taxing schemes from such a perspective; instead, the Court’s tax decisions suggest at least some ambiguity with respect to the extent to which government may properly interfere with "private” economic

life.15

The Court’s decisions during this period concerning the taking of private property also illustrate the growing internal tensions within the

Lochner model.16 Under

the classical nineteenth century approach,

eminent domain power could be employed to appropriate private land for clearly public uses, such as the construction of public roads; in 7. The Pollock case had ruled that a federal tax on income from state and local bonds was a "direct tax” within the mean¬ ing of art. I, §§ 2 and 9, and thus was invalid unless apportioned among the states in accord with the population of each. See Chapter 5, supra. 8. For a discussion of the evolution of

10. Flint v. Stone Tracy Co., 220 U.S. 107, 150, 162 (1911). 11. Green (1920).

v. Frazier, 253

U.S. 233

12. E.g., McCray v. United States, 195 U.S. 27 (1904) (oleomargarine); United States cotics). v. Doremus, 249 U.S. 86 (1919) (nar¬

the 16th Amendment in response to Pol¬ lock and the decline of the Court’s restric¬ tive policy in general, see Mason & Beaney, § 8-1, supra note 12, at 127-150; S. Sur¬ rey, W. Warren, P. McDaniel, & H. Ault, Federal Income Taxation: Cases and

13. Bailey v. Drexel Furn. Co., 259 U.S. 20 (1922) (federal excise tax on net profits of certain employers of child labor); Unit¬ ed States v. Butler, 297 U.S. 1 (1936) (Agri¬ cultural Adjustment Act).

Materials 4-11, 284-85 (1972). The opin¬ ions in Pollock itself suggest that the redis¬ tributive consequences of an income tax were recognized early. See 158 U.S. 607 (Field, J., concurring) (claiming the tax was

14. For a discussion of the seemingly contradictory holdings, see A. Mason & W.

an "assault on capital” which would pro¬ duce "a war of the poor against the rich”); id. at 695 (Brown, J., dissenting) (noting that "even the spectre of socialism” was used as an argument against the tax). See also L. Beth, The Development of the American Constitution 1877-1917, 157-60 (1971). 9. Knowlton (1900).

v. Moore,

178

U.S. 41

Beaney, The Supreme Court in a Free Soci¬ ety 137-50 (1968). 15. For an early discussion reflecting the acceptance of progressive taxation (and thus of implicit income redistribution), see Hackett, "The Constitutionality of the Graduated Income Tax Law,” 25 Yale L.J. 427 (1916). See 3 C. Warren, The Supreme Court in United States History 422 nn. 1-2, (1922), for additional early commentary. 16. These decisions are analyzed in de¬ tail from the perspective of the just com¬ pensation requirement in Chapter 9, infra.

576

IMPLIED

LIMITATIONS

ON GOVERNMENT

Ch. 8

contrast, any attempt to take private resources for the benefit of other private parties, whether by direct seizure or through regulation, would be invalid either as an attempted exercise of eminent domain or as a purported use of the police power.17 By the 1920’s, however, courts had begun to employ a novel form of eminent domain analysis in consider¬ ing regulations increasingly perceived as falling into a gray area between those deemed clearly valid as promoting the public welfare, and those deemed clearly void as redistributive. In Pennsylvania Coal Co. v. Mahon ,18 for example, a homeowner sought an injunction against underground coal mining which would have damaged his property on the surface, pursuant to a recently enacted Pennsylvania

statute which

forbade such mining.

The Su¬

preme Court recognized that a deed executed prior to the statute’s enactment by the homeowner’s predecessor in title had granted the coal company the right to engage in such mining, so that the law’s applica¬ tion would "destroy previously existing rights of property and con¬ tract,” 19 effectively rewriting the pre-existing deed to transfer more than the homeowner had paid or bargained for. But the Court did not hold that the statute violated due process of law as a taking from the coal company for the private benefit of the homeowner. Instead, the majority found for the coal company solely because it had not been compensated for the "taking” of its property (its subsurface mining rights) for public benefit by the mining restriction statute. Yet the public nature of the benefit wrought by the Pennsylvania statute was ambiguous at best as applied to cases where damage was threatened only to a surface owner who had bought property from a mining company

for a price plainly reduced to reflect the well under¬

stood surface risks of continued mining operations. One of the statute’s primary functions was to protect individual private houses from subsur¬ face mining, a goal in which the Court detected potential elements of public interest but which, as applied here, related primarily to "ordina¬ ry private affairs.” 20 The statute as a whole, at least when retroactive¬ ly applied as in this case, could easily have been viewed as upsetting the results of the private bargain between homeowner and mining company and of others similarly situated, just as the New York statute in Lochner was viewed as interfering with employer-employee bargain¬ ing. Eminent domain in Mahon thus became a kind of procedural substitute for substantive guarantees of contractual autonomy; rather than invalidating statutes in which the public character of the benefit was unclear while the private harm was both evident and focused, the Court in effect forced the public to internalize private costs in ambigu¬ ous cases by requiring government to compensate private parties for 17. See §§ 8-4, supra, and 9-2, infra. 18. 260 U.S. 393 (1922). 19. Id. at 413. 20. Id. The Court noted specifically that the public interest in safety was limit¬ ed since the statute did not apply at all where the surface and subsurface rights were owned by the same person, and since

other methods (e.g., signs warning the pub¬ lic) could have been used to protect the interest in safety. Nor had any claim been made that the statute was concerned with avoiding depletion of the housing stock, clearly a matter of public interest in some periods. Contrast Keystone Bituminous Coal Ass’n v. DeBenedictis, 107 S.Ct. 1232 (1987), discussed in § 9-2, infra, note 9.

§ 8-5

IMPLIED

LIMITATIONS

577

ON GOVERNMENT

what they were being forced to lose.21 This approach obviously in¬ fringes on Loc/mer-recognized private property and contract rights and blurs the distinction between private and public purposes which lies at the heart of the Lochner philosophy. This private-public distinction was blurred still further later in Miller v. Schoene.22 There, property owners whose tained red cedar trees infected (but not ruined) with a fungoid rust disease were ordered, pursuant to a Virginia statutory control the disease, to cut down their trees lest the contagion

six years land con¬ carrier of scheme to spread to

a nearby apple orchard, where it would destroy the orchard’s commer¬ cial value. Pointing to the great importance of apple orchards to the state economy, the Supreme Court upheld the statute without requiring compensation. Yet it is clear that, in terms of the conceptual scheme of Lochner , the state’s statute and the Court’s decision sustaining it infringed on the property "rights” of the cedar owners in order to benefit the apple tree owners. The orchard owners themselves could presumably have accomplished by private contract the same level of apple preservation that the statute achieved by fiat, with the apple owners rather than the cedar owners bearing the attendant expense. The Court upheld the statute as promoting an overriding public inter¬ est in protecting the apple orchards, even though the benefit produced fell within the private economy of the state and favored one party over another. The private and the public interests were thus recognized as virtually identical; the distinction between private and public benefit had plainly begun to collapse.23 Miller not only indicates that redistribution of property between private parties may be justified in the public interest. The decision also suggests that the state inevitably has a positive role to play, a role whose exercise in either direction will benefit some private actors while hurting others. For the Court opined that, if the state had done nothing and permitted disaster to strike the apple orchards, "it would have been none the less a choice.” 24 If the Lochner philosophy had been strictly applied, common law categories would have guided the Court to the conclusion that the state was powerless to intervene unless the cedar trees constituted a public nuisance. But the majority re¬ jected the common law of nuisance as a baseline in favor of a more generalized idea of the public interest.25 The notion of the common law universe defining a "natural” state of affairs without governmental interference was fading. It is important, however, to note that not even Miller or Mahon contradicted the proposition that it was illegiti¬ mate for a legislature to transfer resources from one citizen to another for the very purpose of making the social or economic distribution more just. Nevertheless, these decisions cast serious doubt on the continuing 21. Cf. Vincent v. Lake Erie Transpor¬ tation Co., 109 Minn. 456, 124 N.W. 221 (1910) (shipowner who moors his vessel to a dock during a storm is guilty of no wrong — but only if he compensates the dock owner for the injury inflicted). 22. 276 U.S. 272 (1928).

23. See, e.g., id. at 279 (". . . prepon¬ derant public concern in the preservation of the one interest over the other”). 24. Id. 25. Id. at 280.

578

IMPLIED

hold of the Model majority.

LIMITATIONS

ON GOVERNMENT

II philosophy on the members

§ 8-6. The Decline of Lochner:

Ch. 8

of the Lochner

External Assault

Even more important in triggering Lochner s demise than its internal tensions were the external pressures to which the doctrine was increasingly subject. Legal criticism of the prevailing view had of course been present from the beginning, as evidenced by the dissents of Justices Harlan and Holmes in Lochner itself, with Harlan questioning the Court’s interference with legislative fact-finding and Holmes chal¬ lenging the Court’s intrusion into the legislature’s choice of values. But it was by no means Justice Holmes alone who attacked the Lochner approach by arguing that the fourteenth amendment "does not enact Mr. Herbert Spencer’s Social Statics.” 1 Many members of the bench and bar roundly criticized the economic, social, and judicial philosophy expressed by the Lochner majority.2 Indeed, by 1936 the composition and philosophy of the Supreme Court had changed so significantly that at least four Justices — Hughes, Brandeis, Cardozo, and Stone — were clearly prepared to abandon the Lochner approach.3 In large measure, however, it was the economic realities of the Depression that graphically undermined Lochner ’s premises. No long¬ er could it be argued with great conviction that the invisible hand of economics was functioning simultaneously to protect individual rights and produce a social optimum. The legal "freedom” of contract and property came increasingly to be seen as an illusion, subject as it was to impersonal economic forces.4 Positive government intervention came to be more widely accepted as essential to economic survival, and legal doctrines would henceforth have to operate from that premise. In fact, the economic crisis provided substantial impetus to evolv¬ ing legal doctrines which directly contradicted the Lochner thesis and constituted a frontal attack on the structure of Model II. A growing number of legal scholars, including most prominently the advocates of legal realism, came to reject the notion that the common law represent¬ ed a "natural” state of affairs, and instead saw common law doctrines and decisions as expressions of positive governmental intervention to achieve identifiable, though not always laudable, human purposes. In the private law of contract and property, as well as in the public law of criminal and constitutional adjudication, the perspective shifted to one that saw the whole fabric of law and legal decision as more chosen than given.5 Thus

the basic justification for judicial intervention under

1. Lochner v. New York, 198 U.S. 45, 90 (1905) (Holmes, J., dissenting). § 8-6 2. A useful summary and discussion of such criticism appears in P. Murphy, The Constitution in Crisis Times 70-82, 99-110 (1972). See, e.g., Powell, "The Judicially of Minimum Wage Legislation,” 37 Harv.L. Rev. 572 (1924). 3. See A. Sutherland, Constitutionalism in America 498-99 (1965).

4. A typical criticism of this "Due Process,” (July 1936). See my and Society

example of contemporary type is found in Amidon, 25 Survey-Graphic 412 M. Weber, Law in Econo¬ 188-91 (1954 ed.).

5. See generally White, "From Sociolog¬ ical Jurisprudence to Realism: Jurispru¬ dence and Social Change in Twentieth-cen¬ tury American Law,” 58 Va.L.Rev. 999 (1972); Kennedy, "Form and Substance in Private Law Adjudication,” 89 Harv.L.Rev. 1685, 1731-2, 1745-51 (1976); G. Gilmore,

IMPLIED

LIMITATIONS

ON GOVERNMENT

§ 8-6

579

Lochner — that the courts were restoring the natural order which had been upset by the legislature — was increasingly perceived as fundamen¬ tally flawed. There was no "natural” economic order to upset or restore, and legislative or judicial decision in any direction could neither be restrained nor justified on any such basis.6 The legitimacy of the Court’s way of identifying implied limits on legislative authority was thus subject to increasing question. Just as the Swift v. Tyson doctrine that federal judges should apply the "general common law” in diversity cases could not survive the belief that there just was no transcendent body of binding general common law,7 so too that belief ultimately devastated Lochner s due process doctrine that legislatures may not upset the "natural” conditions of contract and property en¬ shrined in common law categories and in their logical entailments. Parallel developments in economic, political, and social thought similarly eroded the premises of the Lochner approach. The suffering of the underprivileged, including the misery of underpaid, overburden¬ ed, or unemployed workers, came to be seen not as an inescapable corollary of personal freedom or an inevitable result of forces beyond human control, but instead as a product of conscious governmental decisions to take some steps affecting the affairs of economic life — punishing some people as thieves, awarding damages to others as the victims of trespass or breach of contract, immunizing still others from liability through steps that might tion.8 Indeed, it kind of violence — types of human

concepts of corporate law — while not taking other rescue people from conditions of intolerable depriva¬ became possible to see such preventable harm as a different in form and source from more conventional

violence, perhaps, but violence none the less.9 In any

The Death of Contract (1974); N. Rumble, American Legal Realism (1968). 6. Examples of the development of these theories during the Lochner era in¬ clude Cohen, "The Basis of Contract”, 46 Harv.L.Rev. 553 (1933); Llewellyn, "The Constitution as an Institution,” 34 Colum. L.Rev. 1 (1934): T. Arnold, the Symbols of Government (1935); J. Frank, Law and the Modern Mind (1930). A discussion of such developments, including their effect on such pivotal figures as Hughes and Rob¬ erts, is provided in Murphy, supra note 2, at 72-82, 99-115. See also the discussion of Miller v. Schoene, 276 U.S. 272 (1928), in

Foundations of Capitalism (1924); T. Veblen, The Theory of the Leisure Class (1899).

ar

ob

in a po ar ha ti ve se we c be marve th el rfu bu le,sh at e t en em kis l eofn th ha n"gt in po mu th terh¬a a int ha t chb p ta e of rtm s beg he natt tho t o e ar ry e u.r . . uofg lif is no at tall na ha n al t za tu ht e r [b dsis in fa at to thral ma tiut] of me ct Fatri fr be teh . rechi of on bu om su n e r i n n a s l . gan th op of gr tab im t ¬ e at le er d pe u m fo ha be se amt u ra t rc ioc en sosn he rm itouust e h n wo s, of as ag s .. [It isaloft si t en . en rkob t i o s ha ¬ gnha f uc he nf ts je rm li atb h ct ct l e e sh ndo be re aison a fo of "v io t § 8-5, supra. ¬of leould bu [t gadre wi arnm so Ma dfeoi v rt nc t] c o] t y rx c t u w h f l h i dne o p h 7. See Erie R.R. Co. v. Tompkins, 304 is ar e,” e onc le n e on m ich it a ts e t r i n p s y el at he nt ceo as in Swift v. t U.S. 64, 78-80 (1938), overruling y t y i-t pa C h i m t . . . esru. M n r l h h a i a d¬ ti "The e nd u e rexy a ve p Tyson, 41 U.S. 1 (1842). See Ely, cu de arl fo in¬ is nd n e r l n e y r c t ar Irrepressible Myth of Erie,” 87 Harv.L.Rev. x h f o p p i u an eff a s li nj pe hy ap po ,as i u 693, 700-04 (1974). For a more focused c u n s l c s n ,vi fu . . i.c If a ma ry itse st u ti o a analysis of the shift from Swift to Erie, see ne s nwi on c l d a n we tdiom no do l th he ha, bbe ctho dlelai t a ub a edwn § 3-23, supra. tohl¬ vtinhg, of a vi Wo s t ss t e e ol ct u au ld l en j im a h t o i w lt o lt ur t ud av 8. See Kennedy, supra note 5, at 1745. f eh arter e e l t t s s b g r l t is ib h h e Liberalism of e 51; R. Wolff, The Poverty imde tw il e at ar s e n n t e as ea as yo pl to Tht setn po 89-93 (1968). Early examples of such anal¬ il s i i u e etFo is th ily th ed ofaseth we s if nwte ysis include H. Croly, The Promise of t in e e o r ge dg ? American Life (1909); J. Commons, Legal ar in in th qu e. of th pr e e e te ev es are ti st on ed

580

IMPLIED

LIMITATIONS

ON GOVERNMENT

Ch. 8

case, critics of the 1930’s increasingly saw progressive legislation as a necessary and proper responsibility of government and argued that the Supreme Court, by frustrating such legislation, was partly responsible for the human suffering that resulted.10 Such criticisms were reflected in a rising tide of attacks on the Court by various social and economic groups in the press and elsewhere in the 1920’s and 1930’s. Labor unions claimed that the Court was usurping the powers of Congress and proposed constitutional amend¬ ments as a response.11 The liberal press and organizations such as the ACLU vigorously criticized decision after decision.12 Even the con¬ servative press was often jolted; it was reported, for example, that 79% of all commenting newspapers criticized the Court’s decision to strike down New York’s minimum wage law in 1936.13 Political pressures mounted as well.14 Franklin Roosevelt had ascended to the Presidency with a promise of a New Deal and he proceeded to enact programs involving extensive federal involvement in economic affairs. Such legislation, while attracting great popular sup¬ port, was certain to come into conflict with the constitutional model that had animated the Court since the late 1890’s.15 As the conflict materialized, the pressure on the Court mounted, culminating in the widely condemned

Presidential court-packing plan.16 The influence of

lence of violence in human affairs, ... it would be absurd to ignore or exclude meth¬ ods men find of killing or injuring their fellows that do not happen to involve vigor¬ ous direct actions . . . Where muggings and violent demonstrations are the fear and the theorists speak for the fearful, vigorous direct actions will seem the most important features of violence. Where the streets are quiet, but people who could be saved are left to die of neglect or cold or hunger, or are crippled or killed by their living or working conditions, a different group of people may suffer, and other theo¬ rists may see their suffering as attributa¬ ble to human agency, and so class it as part of man’s violence to man.” Harris, "The Marxist Conception of Violence,” 3 Phil. & Pub.Aff. 192, 212, 215-16, 219 (1974). 10. E.g., Amidon, supra, note 4; Lauck, "Require a Two-thirds 260 (May 15, 1923).

Vote,” 50 Survey

11. E.g., Gompers, "Usurped Power”, 50 Survey 221 (May 15, 1923); Smith, "The Supreme Court and Minimum Wage Legis¬ lation,” 33 Amer. Federationist 197 (Feb. 1926). See generally Murphy, supra note 2, at 68-72; I. Bernstein, The Lean Years: A History of the American Worker 192033 (1960). 12. See, e.g., "The Legal Right to Starve,” 34 New Republic 254 (May 2, 1953); "A Conspiracy of Lawyers,” 141 Na¬ tion 369 (Oct. 2, 1935); "A Deplorable Deci¬ sion,” 24 Commonweal 199 (June 19, 1936). See generally Murphy, supra note 2, at 68-

72; D. Johnson, The Challenge to Ameri¬ can Freedoms: World War I and The Rise of the American Civil Liberties Union (1963); L. Filler, Crusaders for American Liberalism

(1939) (discussing "muckrak-

ers”). 13. "Wage Law Decision as Viewed by the Press,” 4 U.S. News 12 (June 8, 1936). See also "Chiseling is Constitutional,” Phil¬ adelphia Record (June 3, 1936) at 8. See generally Murphy, supra note 2, at 150151. The decision at issue was Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). For a selected bibliography of com¬ mentary between 1920 and 1936, see E. Nichols & J. Baccus (eds.), Minimum Wages (1936).

and

Maximum

14. For examples

Hours

439-458

of political criticism

in the 1920’s, see Murphy, supra note 2, at 71-72; 50 Survey 217-19 (May 15, 1923) (comments by seven state governors). 15. Murphy, supra note 2, at 128-157. See generally W. Leuchtenberg, Franklin D. Roosevelt and the New Deal (1963). The legislation interfered with the two core concerns of Model II: liberty of con¬ tract and state autonomy; thus, although its invalidation might have been avoided, the task would have been difficult indeed. See also Chapter 5, supra. 16. See, e.g., A. Sutherland, Constitu¬ tionalism in America 481-501 (1965); L. Pfeffer, This Honorable Court 295-320 (1965).

§ 8-7

IMPLIED

LIMITATIONS

ON GOVERNMENT

581

these political forces should not be exaggerated; there is evidence, for example, that Justice Roberts’ famous 1936-1937 switch in favor of minimum wage legislation — the ''switch in time that saved nine” 17 — was not motivated solely by the threat of court-packing.18 Moreover, Roosevelt’s power of appointment would eventually have produced the result he desired anyway; by 1941, only Justice Roberts remained among

the pre-Roosevelt Justices. Nevertheless, political pressures no

doubt played some role in the timing of Lochner’s decline, as was perhaps to be expected with a doctrine cutting against the grain of so deep a shift in economic and social perception. § 8-7. Judicial Abdication

After the Collapse of Lochner

Whatever its precise cause, Lochner’s decline proceeded even more rapidly than had its late-nineteenth century ascent. Presaged by its approval in 1934 of Minnesota’s mortgage moratorium law 1 and of New York’s milk price control regulations,2 the Supreme Court dramatically reversed itself and upheld minimum wage legislation in 1937 in West Coast Hotel v. Parrish .3 Judicial approval of crucial New Deal legisla¬ tion, such as the Fair Labor Standards Act,4 the National Labor Relations Act,5 and the new Agricultural Adjustment Act,6 quickly followed as World War II approached. Thus, as the sphere of private contractual autonomy shrank, that of federal power over subjects formerly deemed exclusively the province of states and localities ex¬ panded.7 By 1939, the Court was moved to note that the economic theories of Adam Smith and John Maynard Keynes were equally acceptable.8 By 1949, no headlines were made

when

the Court unani¬

mously and explicitly repudiated the " Allgeyer-Lochner-Adair-Coppage constitutional doctrine.” 9 17. See B. Wright, The Growth of American Constitutional Law 202 (1942); Pfeffer, supra note 16, at 317.

1. Home Building and Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934), discussed in

18. Private correspondence later sug¬ gested that the switch occurred at the ex¬ act moment it did because Roberts, whose views were less firm than those of the four solid conservatives on the Court and whose attitude had evolved more over time, felt that the issues had not been properly raised in Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936) (invalidating minimum wage law), as opposed to West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (upholding minimum wage law). See Suth¬ erland, supra note 16, at 496-97. It should be noted that Roberts wrote the essentially anti-Lochner majority opinion two years prior to Morehead in Nebbia v. New York, 291 U.S. 502 (1934) (upholding milk price control law). For further discussion of

§ 9-9, infra. 2. Nebbia (1934).

Roberts’ switch see 2 M. Pusey, Charles Evans Hughes 701 (1951); Chambers, The Big Switch: Justice Roberts and the Mini¬ mum Wage Cases, 10 Labor History 44 (Winter, 1969).

(1940). Lochner-era precedents were often explicitly reversed. See, e.g., Phelps Dodge v. NLRB, 313 U.S. 177 (1941) (overturning Adair and Coppage).

v. New § York, 291 U.S. 502 8-7

3. 300 U.S. 379 (1937). The legislation was not materially distinguishable from that invalidated the previous year in Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). 4. United States v. Darby, 312 U.S. 100 (1941). 5. NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1 (1937). 6. Wickard (1942).

v. Filburn, 317 U.S. Ill

7. See Chapter 5, supra. 8. Osborn

v. Ozlin, 310 U.S. 53, 62

9. Lincoln Federal Labor Union v. Northwestern Iron and Metal Co., 335 U.S. 525, 535 (1949).

582

IMPLIED In abandoning

LIMITATIONS

ON GOVERNMENT

Lochner, however, the Court eventually moved

Ch. 8 well

beyond the elder Justice Harlan’s earlier suggestion that legislatures need only demonstrate a real or substantial relation between laws and their objectives. In United States v. Carotene Products Co.,10 the case in which Justice Stone’s famous footnote 4 would later support increased judicial intervention in non-economic affairs,11 the Court declared that it would sustain regulation in the socioeconomic sphere if any state of facts either known or reasonably inferrable afforded support for the legislative judgment. Even this limited scrutiny soon gave way to virtually complete judicial abdication. The Court became willing to resort to purely hypothetical facts and reasons to uphold legislation 12 or, as in Ferguson v. Skrupa,13 to uphold it for virtually no substantive reason at all. Indeed, in sustaining Kansas’ law limiting the practice of debt-adjusting to licensed attorneys in Ferguson , the Court almost appeared to treat pure political interest-balancing and log-rolling com¬ promise as normatively acceptable; writing for the majority, Justice Black stated that the legislature was "free to decide for itself’ absent a violation of a specific federal law or of specific constitutional provisions, and suggested that arguments demonstrating the social utility of debt adjusting "are properly addressed to the legislature, not to us.” 14 Lochner’s discrediting of judicial review thus lent credence to the notion that the legislative process should be completely willful and selfcontrolled, with absolutely no judicial interference except where consti¬ tutional provisions much more explicit than due process were in jeop¬ ardy. Yet it is significant that the Court never wholly abandoned the position that legislatures, at least in their regulatory capacity, must always act in furtherance of public goals transcending the shifting summation of private interests through the political process. The pluralist thesis that there exists no public interest beyond that summa¬ tion 15 never became judicial dogma in economic life any more than in other sectors of human concern. Thus, even when deferring to legisla¬ tive actions, the Court continually pointed to reasons that could justify such actions in terms of the general public interest,16 and explained 10. 304 U.S. 144 (1938). 11. See Chapters 11-13, 15, and 16, in¬ fra. 12. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955) (upholding law restricting optometry on the supposition that legislature decided that eyeglass pre¬ scriptions were necessary to promote health). See also § 16-3, infra, on the use of the "conceivable basis” test in equal protection challenges to economic regula¬ tion. 13. 372 U.S. 726 (1963). 14. Id. at 730-1, 732. 15. See the critical discussion of that thesis in Wright, "Politics and the Consti¬ tution: Is Money Speech?”, 85 Yale L.J. 1001, 1013-16 (1976). See generally, R. Dahl, A Preface to Democratic Theory

Se

e,

e

(1956); R. Dahl, Who Governs? (1961); E. Herring, Group Representation Before Congress (1929). See generally Sunstein, "Interest Groups in American Public Law,” 38 Stan.L.Rev. 29 (1985), for an un¬ usually lucid explication of how Madisoni¬ an ideals provide a critique of interestgroup pluralism.

(u (1 42 U. 34 Mi 95 S. ss ph 2 1 on wool to 2)le em la oupe av w rirm rdki pl , it d nag a o ex e el s tiay at empyee e p su o r t of ngsa me ct lo s en f i h f g e i f a y s h o 34 ¬ Co Op v. e Le fr n n Wi eg e t r . ag s t 8 ll ua s’e 1,2 su aticano (1ia U. e) 48 r(dd ¬ ; , 95m lt i S 42 v. Due of5s)oNe insgcOur C3i pr . a 7 t ke n w ssle pe or (u U. ); 29 y (1 s, edan r 9 S 7 ph d s op¬ to icno es 76) mi . ovle an ¬ t t n wh ntcien fo Qduidnor inabl Fr er tin r i ibs en agr s a u b diati g ne uhes ch te s a lmeea e id¬ of ng ons w di r ns ne ss es

IMPLIED

§ 8-7

LIMITATIONS

583

ON GOVERNMENT

why the legislation under review could be viewed as "an exercise of judgment” rather than "a display of arbitrary power.” 17 The political, intellectual, and economic pressures of the 1930’s undoubtedly made the demise of Lochner inevitable. But judicial retreat from the Lochner doctrine need not have followed the path chosen by the Supreme Court. At least three alternatives were availa¬ ble: first , acceptance of the pluralist philosophy that no public interest exists beyond the log-rolling result of the legislative process, so that one could not scrutinize legislative choices according to any ascertainable standard of the public good beyond knowing that the political bargain¬ ing process was in working order; second , an institutional argument that, even if the public good or social justice could be defined apart from the aggregation of political interests, and even if particular legislative restraints on liberty were profoundly unjust according to some cognizable standard or principle, legislative choices among con¬ flicting values were beyond judicial competence to criticize and hence

.

beyond judicial authority to strike down; or third, a substantive accept¬ ance of certain regulatory laws as supportive of human freedom, rightly understood, and therefore not violative of due process. Supreme Court decisions since the 1930’s demonstrate that the Court has wisely resisted the first, or pluralist, approach,18 one that has been criticized as giving undeserved weight to highly organized, wealthy interest groups, and as tending to "drain politics of its moral and intellectual content.” 19 In its neglect of substantive values and in its treatment of politics as nothing more than the clash of conflicting forces, pluralism appears hardly less parochial than Lochner itself.20 But, having soundly rejected the first approach, the Court took the more dubious step of preferring the second to the third: it ultimately invoked institutional rather than substantive arguments for upholding social and economic legislation. The precise reasons for this choice remain unclear. The Justices may have believed, as Holmes and others long ago insisted, that courts possess neither the ability nor the authori¬ ty to scrutinize social goals, and should facilitate legislative innovation by permitting social and economic experimentation to continue without judicial interference.21 But such a belief would hardly justify wholesale abdication to the political process, since there exists no type of legisla-

Se

gradually enhancing the area’s ’'touristoriented charm” to promote city economy), discussed in § 16-2, infra. Even in Fergu¬ son, the Court suggested that the limita¬ tion of debt adjusting to attorneys could be justified as a means to ensure that proper legal advice was provided to debtors. See 372 U.S. at 732.

ra.

up 6,s te1

eno

Se (1 10 La Co e ns 94 18 w 46 of - Li En Th al t T. Lo 2 ). -5 19 be e d 28so itu (1wi, 4, ra 1- ti 969 li 91 on ). sm al

R.

(1

61

4;0 11) 96

(u

ma iser alib ur L Pl of

97

sm

li

an ty ic er er ov Am P of he T

(1

¬ Ol dis¬ ( cf. 1) 94 (11); 92 (1 36 2 2 34 . S ). U. ts 2, en 31 3 um 31 arg S. U. ,’ 7 kaes 25 aslm brHo Ne v. an, g in ig rr n ss Co se cu

pr of So ci ov ph al 6) i o s l i "w io ac d Ac Se n i i s be cur tot wi corng li wfie’n hu ura d i v n sbH nc v tsh es inwi in bu efintoy to di aenl e gve g quot t tst vo dves( s r3c0 i in v. ” Da U 6 6 ( ) r,u 1,9 40 ng 19 e1d .S. g vi 37 S ¬p¬ ,s ho ols, be o ) o f ch ci ne d l em aalt fi te a Ac -ageag Se ding B mee ¬ . Wts nt ai t ta cu nd h ns ck ri r ig ). ty t me ht nt ,Th eG ro wt 5

e in f, ). cl lf 968 De Wo (1

18

584

IMPLIED

LIMITATIONS

ON GOVERNMENT

Ch. 8

tion that can be guaranteed in advance to leave important constitution¬ al principles unimpaired, and there is simply no way for courts to review legislation in terms of the Constitution without repeatedly making difficult substantive choices among competing values, and indeed among inevitably controverted political, social, and moral con¬ ceptions. Nor can it suffice to dismiss constitutional review of socioeco¬ nomic regulation as uniquely ''political”; all significant constitutional judgments — from those of the nation-building Marshall Court 22 to those of the Burger Court’s federalism23 — are inescapably political. The notion of mechanically laying statutes beside the constitutional text to see if they "fit” was properly discredited long ago. And the alternative of consciously deferring to the legislature, especially if such deference is selective (as it will inevitably be), is itself no less "political” than the alternative of seriously reviewing legislation’s substantive validity. The fact that judges and lawyers, most of whom knew better, often couched their anti-Lochner conclusions in institutional terms may have reflected tactical considerations as much as any genuine conviction; the extremism of Lochner may have fatally discredited, at least tempo¬ rarily, the whole concept of judicial review of social and economic legislation.24 Whatever institutional arguments

the reasons, the Court’s tendency to invoke for its retreat from Model II has structured

most constitutional analysis since Lochner. From Justice Stone’s foot¬ note 4 to modern arguments about economic as against political liber¬ ties, the search for ways to make judicial review legitimate, given the rejection of Lochner for reasons of institutional competence and author¬ ity, has preoccupied (one could say obsessed) constitutional scholarship for the last forty years.25 This preoccupation has forestalled extensive analysis of the third possible path of retreat from Lochner. If one accepted fully the central notion which contributed to Lochner ’s decline — that even judicial en¬ forcement of common-law rules of contract and property represents a governmental choice with discernable consequences for the social distri¬ bution of suffering, pleasure, and power — then it would be hard to avoid the realization that a judicial choice between invalidating and uphold¬ ing legislation altering the ground rules of contract and property is nonetheless a positive choice , one guided by constitutional language and history but almost never wholly determined by it. Having come to that recognition, one would understand that Lochner v. New York 26 and Morehead v. New York ex rel. Tipaldo ,27 striking down maximum-hour 22. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). 23. See, e.g., National League of Cities v. Usery, 426 U.S. 833 (1976), discussed in § 5-22, supra. 24. See Gunther, "Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection,” 86 Harv.L.Rev. 1, 43 (1972); McCloskey, "Eco¬ nomic Due Process and the Supreme Court: An Exhumation and Reburial,” 1962 Sup. Ct.Rev. 34. But see the attempted resur¬ rection of Lochner-style economic due pro¬

cess in R. Epstein, Takings (1985), dis¬ cussed in § 9-6, infra, and in B. Siegan, Economic Liberties and the Constitution (1980). 25. See, e.g., Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale L.J. 920 (1973); Bork, "The Constitu¬ tion, Original Intent, and Economic Rights,” 23 San Diego L.Rev. 823 (1986). 26. 198 U.S. 45 (1905). 27. 298 U.S. 587 (1936).

§ 8-7

IMPLIED

LIMITATIONS

585

ON GOVERNMENT

and minimum-wage laws, and West Coast Hotel v. Parrish,28 sustaining such laws, all involved substantive choices, so that if the latter decision was right and the former decisions wrong, the reason can only be that, in twentieth century America, minimum wage laws, as a substantive matter, are not intrusions upon human freedom in any constitutionally meaningful sense, but are instead entirely reasonable and just ways of attempting to combat economic subjugation and human domination.29 Thus, when the Court said in West Coast Hotel that minimum wage laws, in light of "recent economic experience,” prevented the "exploita¬ tion of a class of workers ... [in ways] detrimental to their health and well being,” 30 it might have gone on to conclude not simply that the "legislature was entitled to adopt measures to reduce the evils of . . . exploiting workers at wages [too] low ... to meet the bare cost of living,” 31 but also that the legislature was right to adopt such measures, although other ways of filling the gaps left by the state’s fabric of private and public law were of course conceivable — and have indeed been employed.32 Taking any such position would certainly have seemed more diffi¬ cult than merely deferring to legislative wisdom; it always looks more legitimate, at first, to defer to others — and sometimes

it is. But in fact

the Court’s landmark decision in West Coast Hotel spoke more about the justice of minimum wages than about the right to enact them without judicial interference; 33 the emphasis on deference for institu¬ tional reasons was more prevalent in the Holmes dissents of thirty years earlier 34 and in the majority opinions of the 1950’s and 1960’s.36 And even deferring to others, as we have seen, may entail an assump¬ tion of power,36 especially when the decision-maker exercises discretion in deciding when to defer and when to intervene, as the Court obviously has done throughout its history. As long as judges do not fully and irrevocably repudiate the mission of occasionally rejecting majoritarian political choices, there is no honest way for them to escape the burdens of substantive judgment in every case. Now of course the right substantive judgment cannot be insensitive to matters of institutional competence and democratic legitimacy. Part 28. 300 U.S. 379 (1937). 29. See Kennedy, "Form and Substance in Private Law Adjudication,” 89 Harv.L. Rev. 1685, 1756-58 (1976); Harris, "The Marxist Conception of Violence,” 3 Phil. & Pub.Aff. 192 (1974). 30. 300 U.S. at 399. 31. Id. at 398-99 (emphasis added).

32. See § 15-9, infra, for an analysis of a possible affirmative duty of government to fill such gaps somehow. 33. The Court spent many pages ex¬ plaining why the minimum wage was a wholly reasonable regulation of liberty, see 300 U.S. at 394-95, 396-400, and several pages recalling other regulations that had similarly been upheld as reasonable, id. at 392-93, 395, 397; only a few sentences in

fact talk of the legislature’s "right” to act independent of judicial veto, and not even those sentences are cast in terms of the impropriety or illegitimacy of substantive judicial review in the economic area. Thus, although West Coast Hotel has been largely recast by history as having rested on institutional grounds, it would be en¬ tirely possible, and indeed truer to its lan¬ guage, to invoke it as precedent not for judicial timidity but for the substantive justice of minimum wage laws. 34. See, e.g., Lochner v. New U.S. 45, 90 (1905).

York, 198

35. See notes 13 and 16, supra. 36. Cf. Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803), discussed in Chapter 3, supra.

586

IMPLIED

LIMITATIONS

ON GOVERNMENT

Ch. 8

of what was wrong with Lochner was the Court’s overconfidence, both in its own factual notions about working conditions and perhaps also in its own normative convictions about the meaning of liberty; at least by the 1920’s, if not yet in 1905, the Court should have paid more heed to the mounting agreement, if not the consensus, that the economic "freedom” it was protecting was more myth than reality. But it would be wrong to make too much of the point; surely there can be no general duty on the part of a deliberately coun term aj oritarian body like a court, and especially on the part of the Supreme Court, simply to follow the election returns. At most, there is a duty not to be pigheaded, too certain of all of one’s premises, and a solemn duty to connect one’s decisions to an intelligible view of the Constitution.37 Beyond that, one can offer no advice calculated to take judges off the hook; nor should one try-— for that is where, sometimes for better and sometimes worse, our constitutional system has put them. 37. See generally §§ 11-2 to 11-4, in¬ fra. The Justices of the Lochner majority may have violated the injunction against overconfidence, but they were guilty of no breach of this second duty; theirs was a fully understandable, and theoretically highly defensible, picture of the Constitu¬ tion’s words "liberty,” "property,” "con¬ tract,” and "due process of law.” It was, moreover, a picture probably more faithful to the assumptions of the Framers than can be said of many rulings we are accus¬ tomed to applaud — with respect, for exam¬ ple, to free speech, race, or reapportion¬ ment. What was wrong was simply that, as a picture of freedom in industrial socie¬ ty, the one painted by the Justices badly distorted the character and needs of the human condition and the reality of the economic situation. We may believe that judges will often get such things wrong.

for

But so will other people, including legisla¬ tors. To be sure, legislators are elected — but they cannot avoid distance from the people much more readily than judges can. And in any event, as long as judges are in the business of deciding cases — even gar¬ den-variety contract and property cases — they will be shaping the society even when they claim they are "only” deferring to others. In short, there is no escape from the difficult task of painting a better — a morally and economically truer-— picture; to leave the canvas blank from time to time just hands the brushes over to other artists. The picture’s frame, and the art¬ ist’s tools, must be drawn from the Consti¬ tution’s text, structure, and history; but there can be no escape from the need to supply vision. at least some measure

of one’s own

Chapter 9

MODEL III— THE MODEL OF SETTLED EXPECTATIONS: UNCOMPENSATED TAKINGS AND CONTRACT IMPAIRMENTS § 9-1. The Background

of Model

III

With the demise of the Lochner era of Model II,1 there began a search for alternative methods of protecting individuals from majoritarian oppression. The major fruits of this post -Lochner search form the subject matter of Chapters 11 to 17. But two sets of restraints on governmental power both antedated and informed the Lochner era and survived that era’s eclipse, retaining a measure of vitality even today. One such model, expressed primarily through the ex post facto clauses, the bill of attainder clauses, and the procedural due process requirement, demands regularity in the application of governmental power to particular persons; that model of regularity is explored in Chapter 10. The present chapter discusses a norm perhaps as basic as that of regularity: the norm of repose. We deal here with the idea that government must respect "vested rights” in property and contract — that certain settled expectations of a focused and crystallized sort should be secure against governmental disruption, at least without appropriate compensation. As early as Chief Justice Marshall’s great decision in Marhury v. Madison ,2 the American judiciary defended certain vested claims from destruction by governmental whim — even when those claims are ab¬ stract in character and have their roots in positive enactments rather than in natural law or in customary personal dominion over physical resources. It was, after all, Marshall’s declaration that legal rights had "vested” in William Marbury by virtue of Congress’ creation of his office and the President’s signing of his seal, which provided the occasion for che Court’s earliest proclamation, even if only in dictum, that the rule of law, entailing fidelity to vested rights, binds even the Chief Executive.3 Within the next two decades, such dicta had ripened into several landmark holdings, protecting both interests in land 4 and more abstract interests such as those in a corporate charter,6 from what the Court treated as lawless legislative action. § 9-1

U.S. (9 Cranch) 43 (1815), both discussed in

suPra1. See Lochner v. New York, 198 U.S. § 45 (1905), discussed in Chapter 8, supra. 5. See Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819), discussed in 2. 5 U.S. (1 Cranch) 137 (1803). § 9_8, infra. 3. Id. at 162. 4. See Fletcher Peck, 10 U.S. (6 Cranch) 87 (1810); Terrett v. Taylor, 13

587

588

MODEL

OF SETTLED

EXPECTATIONS

Ch. 9

In these early nineteenth century cases, the Supreme Court was less concerned to locate the protection of vested economic rights in any particular clause of the Constitution than to define such rights and to defend them in the general name of the Fundamental Law; later generations could worry about textual details.6 Despite such noncha¬ lance, the contract clause of article I, § 10, was soon located as the centerpiece of the Constitution’s protective armor,7 with the fifth amendment’s ban on uncompensated takings of property serving as an important backstop.8 Together those two provisions exemplified, al¬ though they did not exhaust, the sanctity of settled economic expecta¬ tions under American law. Although the legal autonomy of the states left the substantive freedom of contract largely to the protection of state tribunals (and of federal tribunals sitting as common law courts under their diversity jurisdiction) until the last decade of the nine¬ teenth century,9 the prohibitions against uncompensated takings and contract impairments provided a foundation of federally enforceable rights upon which Model II could and did build. The primary question of interest in this chapter is what remained of that foundation after the edifice so elaborately built upon it had collapsed.10 § 9-2. The Shift From Direct to Indirect Enforcement on Takings for a Private Purpose As early as 1798, Justice Chase, in his memorable

of the Ban

dictum in Calder

v. Bull , had expressed constitutional law’s undisputed condemnation of any law attempting to 'Take property from A. and give it to B.” 1 General principles of law, enforceable in a proper forum, had settled that no form of legislative authority could be employed to serve private ends: taking, taxing, and regulation were all inherently linked to the public good and depended for their legitimacy upon the preservation of that link.2 Throughout our history, distinctive strands of thought have 6. See, e.g., Fletcher, 10 U.S. at 135, 139; Terrett, 13 U.S. at 52. 7. See § 9-8, infra. 8. See §§ 9-2 to 9-6, infra. 9. See § 8-1, supra. 10. This chapter considers just compen¬ sation and contract impairment law not from the perspective of a comprehensive survey but rather as sources of insights and illustrations bearing on the basic prob¬ lems of protecting "settled expectations” through constitutional law. The topics of just compensations and eminent domain in particular are too large, and too special¬ ized, to warrant more than a general anal¬ ysis here. For a much more detailed re¬ view, see P. Nichols, The Law of Eminent Domain (3d ed. 1986). The most important theoretical analyses of the taking issue are B. A. Ackerman, Private Property and the Constitution (1977); Michelman, "Proper¬ ty, Utility, and Fairness: Comments on the Ethical Foundations of 'Just Compensa¬ tion’ Law,” 80 Harv.L.Rev. 1165 (1967);

Sax, "Takings and the Police Power,” 74 Yale L.J. 36 (1964); Sax, "Takings, Private Property and Public Rights,” 81 Yale L.J. 149 (1971). Considerably more idiosyncrat¬ ic, but likely to prove influential in some circles, is R. Epstein, Takings: Private Property and the Power of Eminent Do¬ main (1985), discussed in § 9-6, infra.

1. 3 U.S. (3 Dali.) 386, 388 (1798) (seria¬ tim opinion). 2. The power to take § 9-2 property by emi¬ nent domain is among the powers "re¬ served to the States” by the tenth amend¬ ment. Despite early doubts about the eminent domain powers of the United States, see P. Nichols, 1 Eminent Domain § 1.24 (rev.ed. 1974), since 1875 the right of the United States to exercise that power when reasonably related to its other pow¬ ers has been undisputed. See Kohl v. United States, 91 U.S. (1 Otto) 367 (1875); P. Nichols, supra, at § 1.24[4].

§ 9-2

MODEL

OF SETTLED

EXPECTATIONS

589

put forward very different views of what might be meant by "the public good,” but that government power must serve such an end if that power is to count as "law” has never been denied. When the Court began enforcing this principle as a matter of fourteenth amendment due process,3 the real innovation was jurisdictional, not substantive, since takings for a private purpose had widely if not uniformly been regarded as illegal long before the Court held such takings violative of the fourteenth amendment.4 Nonetheless, it was the latter holding that opened the way to the rounded development of Model II. We saw in Chapter 8, however, that the disintegration of Model II was foreshadowed by the gradual erosion of the distinction between public and private purposes in the law of takings.5 Originally, the requirement of just compensation, expressed against the federal govern¬ ment in the fifth amendment and implied against the states through the due process clause of the fourteenth,6 attached only after it was clear that a particular taking of property was in fact for a public suffice; the taking would have to be set aside as void. But by the time of Pennsylvania Coal v. Mahon,6 in 1922, the compensation requirement had begun to serve the distinct function of assuring, in sufficiently ambiguous cases, that particular actions did indeed redound to the public benefit. The public’s willingness to pay, expressed through the legislative process, would serve as proof that the public had in fact been the beneficiary of what otherwise appeared to be a forbidden transfer of property from one owner

or class of owners

3. The first Supreme Court decision to hold that a governmental taking of proper¬ ty violates fourteenth amendment due pro¬ cess if it is for a private purpose was Mis¬ souri Pac. Ry. v. Nebraska, 164 U.S. 403 (1896) (compensation cannot cure unconsti¬ tutionality of such a taking).

to another.9

right to cause damage to surface, in deed executed prior to enactment of mining ban).

B i K d Co 1 10 iSt.u Court As ecisv. De n eys Cmt i 232 7 al ’s sn to Be i 4. See §§ 7-3, 8-1, 8-2, supra. o .n ne a m ne r n oPue (.u (1 di ec or 9 ns p m c ehno sy 87 clti e 5. See § 8-5, supra. oa nt in n¬ lv ) imsi e alcd l i ,ti timnP as ngc)o Co di ani rpose.7 6. See Chicago, Burlington8 & Quincy ng egnen ,n¬ st a al t ns i Ry. v. Chicago, 166 U.S. 226 (1897). The e s a o i " t n nd ta yl f ai g na th If such u i tu p ct i constitutions of anearly state require publicevery so ning ifosh the be cia voafn pr t e d. ar e r purpose l e n i p p t s a 1 a i e e ti t ly24 tr efi ub d hea vaatr nd compensation when property is taken;was and d e 2, es t l t absent, sae icu an s," pr ic pu the constitutions of some 23 states require no ocompensation f con sed e f l rp ett ar d pus¬ focould va of pr ser er os compensation when property is taken or y a r trh¬ re xati povati es In so odoper vatiKe lue i i e s y S o damaged. See Note, "Inverse ngty on st nf on ee Condemna¬ ex es. n to wh ,th c,o o or re tion: its Availability in Challenging the ce qu r § toe pl mpenteh ad seich metent no 8s ir ol ay nse di em w nt e Validity of a Zoning Ordinance," 526 Stan. , t s in am th ¬ e a caio of gu at L.Rev. 1439, 1440 n. 3 (1974). su s a ar b io pr bne ensal se t is ge igu pu anpu a r b in n tr .T 7. The prohibition against taking pri¬ Cvhed. Se lic 10 eSe.pios at 12 uin ous Te g h C l 7 ie e 4 nt. e vate property for public use without just e l 1- ely SuJu jo ingl by Ju f di45 Re g ss. s in y, compensation forbids uncompensated con¬ h ps en an to ¬ Secd tirteic Po nqu O’ t fiscation by the judicial and executive ce mee we ok al i C , d ia ch is s wi ll th st’ maonn branches as well as by the legislature. See , Co of suteh acth i,n e s joror in Pe ara t e al va , nn ct i Hughes v. Washington, 389 U.S. 290, 298 t li s y o i i p as pr e y t ’ r n r r da lvb iszc ig idsv (1967) (Stewart, J., concurring). te Th iotbl ef an ayn aotn in iast s em fe d e d Asceen in ia tiroan sin de at tcht Ko 8. 260 U.S. 393 (1922) (uncompensated st sc t t, va hl ices. , li ri er a taking occurred when state sought to en¬ l d " a a a C Pe be l s ta p i y oa force ban on coal-mining threatening sur¬ ab ’evnns adn l ” id. at 1m2e5d an tedarubli u d gCu c s as in Pe 5, th ils yiln dKe face structure against mining company oead va ys es,’ at nn l, that had sold surface rights, but retained [is pu of a pu sy me nia etxon "t he bl lv ise, rp re ] ic an te os nc ia e e

590

MODEL

OF SETTLED

EXPECTATIONS

Ch. 9

In the modern period, the requirement of compensation continues to serve this role of surrogate assurance of public purpose.10 That its function is not exhausted by this role is clear enough; otherwise, if the public’s willingness to pay had been established, or if the public gain from a particular appropriation of property was independently settled, no further end would be served by actually requiring compensation to be paid. Yet nothing could be clearer, even today, than that a suffi¬ ciently unambiguous governmental seizure of private property for pub¬ lic use-— a sufficiently clear laying-on of official hands followed by a transfer of possession and title to the general public — is unconstitution¬ al unless followed by payment to the former owner of the fair market value of what was taken.11 What would have been quite unthinkable in insufficient to release the government from the compensation requirement.” Id. 10. Although federal courts retain theo¬ retical power to invalidate a taking as in¬ sufficiently public in purpose even if com¬ pensation is provided, the practice since the first third of this century has been to treat as a legislative function the decision of ’'what type of taking is for a public use. ...” United States ex rel. T.V.A. v. Welch, 327 U.S. 546, 551 (1946). The Court has recently characterized the con¬ cepts of "public use” and "public purpose” as broad enough to be "coterminous with the scope of a sovereign’s police powers.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984) (Hawaii Land Reform Act’s use of eminent domain power to en¬ able homeowners with long-term land leases to purchase the lots on which they live upheld as serving a valid "public use”). See also Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (provisions of federal act that authorized Environmental Protection Agency to disclose corporate trade secrets to competing license applicants in return for compensation upheld as advancing val¬ id public use or purpose); accord, Berman v. Parker, 348 U.S. 26, 32 (1954) (upholding statute authorizing government to take private property and sell it to private man¬ agement to be redeveloped for improved private use). But see Thompson v. Consoli¬ dated Gas Utilities Corp., 300 U.S. 55 (1937) (Brandeis, J.) (gas proration order held an unconstitutional taking for benefit of certain private producers). The state enjoys wide latitude in redi¬ recting the stream of economic wealth: "legislation readjusting rights and burdens is not unlawful solely because it upsets oth¬ erwise settled expectations .... This is true even though the effect of legislation is to impose a new duty or liability based on past acts.” Usery v. Turner Elkhorn Min¬ ing Co., 428 U.S. 1, 15-16 (1976) (sustaining a federal statute requiring coal mine opera¬ tors to compensate former employees dis¬ abled by black lung disease, even though the operators had never contracted for such

liability and the employees had long since terminated their connection with the indus¬ try). Consequently, in Connolly v. Pension Benefit Guaranty Corp., 106 S.Ct. 1018 (1986), the Court unanimously upheld feder¬ al legislation requiring an employer with¬ drawing from a multiemployer pension plan to pay a fixed and certain debt to the plan amounting to the employer’s proportionate share of the plan’s unfunded vested bene¬ fits, even though that debt exceeded the employer’s obligation to the pension plan under the governing collective bargaining agreements. Id. at 1019. The Court rea¬ soned that "such interference with the prop¬ erty rights of an employer arises from a public program that adjusts the benefits and burdens of economic life and, under our cases, constitutefor a all taking.” Id. at 1026. does It wasnotsufficient nine Justices that the federal government had "taken nothing for its own use,” id., and had mere¬ ly imposed an additional contractual obliga¬ tion in a field within its regulatory purview: "We and the ties the are

are far from persuaded that fairness justice require the public, rather than withdrawing employers and other par¬ to pension plan agreements, to shoulder responsibility for rescuing plans that in financial trouble.” Id. at 1027.

11. The owner is entitled to the fair value to the owner (not the worth to the government) at the time of the taking. See Almota Farmers Elevator & Ware¬ house Co. v. United States, 409 U.S. 470, 473-74 (1973); United States v. Reynolds, 397 U.S. 14, 16 (1970); Monongahela Navi¬ gation Co. v. United States, 148 U.S. 312, 326, 343 (1893). See P. Nichols, 3 Eminent Domain § 8.62 et seq. (3d ed. 1974). The body of rules determining which expecta¬ tions constitute compensable property in¬ terests and which do not, see, e.g., Flem¬ ming v. Nestor, 363 U.S. 603 (1960) (social security expectations not property subject to compensation under taking law); United States v. Petty Motor Co., 327 U.S. 372, 379-80 (1946) (leasehold renewal expecta¬ tion not property), plainly requires recon-

§ 9-2

MODEL

OF SETTLED

EXPECTATIONS

591

the nineteenth century is that the constitutional obligation to provide just compensation could serve the additional ends to which Justice Holmes

turned that obligation in Pennsylvania

Coal.12

Even in Pennsylvania Coal , however, compensation was not held to be required in all cases where private loss attended a governmental measure. It was only when regulation went "too far” that it would have to be treated as a taking 13 and deemed invalid unless compensa¬ tion was provided. What constituted going "too far” remained a problem to be addressed case by case, since none of the general guidelines extracted from the precedents could yield a truly definitive test of when the government had crossed the line.14 Of course, not even sideration in light of the broader definition of property interests now employed in the law of procedural due process. See Logan v. Zimmerman Brush Co., 455 U.S. 422

tution,” 41 U. Miami L.Rev. 21, 31 (1986) (showing how these two "rhetorical trick[s]” do much of the work in R. Epstein, Takings (1985)).

(1982) (right to use state’s fair employment practice held a protected property interest under due process clause; see § 10-9, in¬ fra). But see Bowen v. Gilliard, 107 S.Ct. 3008 (1987) (child receiving court-ordered

12. In addition to this use of the com¬ pensation requirement as a surrogate for a

support payments has "no vested protect¬ able expectation that his or her parent will continue to receive identical support pay¬ ments on the child’s behalf,” so Congress may require that families receiving welfare payments assign child support income to the government in exchange for increased welfare payments not designated for the particular child). There seems no good reason why the broader definition, incorporating wholly in¬ tangible forms of property, should not be extended to the takings context. Indeed, some of the Supreme Court’s recent deci¬ sions suggest it is inching toward just such a broadened conception of "property” in takings analysis. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001-03 (1984) ("commercial data” in the form of trade secrets released to the public pursuant to a federal statute held a compensable proper¬ ty interest under takings clause); Arm¬ strong v. United States, 364 U.S. 40, 44, 46 (1960) (materialman’s lien provided for un¬ der Maine law held protected by takings clause); cf. Prune Yard Shopping Center v. Robins, 447 U.S. 74, 82 (1980) (stating that the right to exclude others is also "one of the essential sticks in the bundle of proper¬ ty rights”). As the focus of the takings clause shifts from land and personal goods to labor, credit, information, and the like — and as property comes to be conceived less in terms of simple and undivided dominion than in terms of complex bundles of rights and interests — care must be taken to avoid "transferring to each stick in the property bundle the powerful connotations that tra¬ ditionally attach to full ownership,” and equating all broad restrictions on unfet¬ tered control with "large number partial takings.” Grey, "The Malthusian Consti¬

judicially enforceable "public use” test, note the use of judicial techniques of avoid¬ ance such as that in United States v. Se¬ curity Industrial Bank, 459 U.S. 70 (1982) (rejecting an interpretation of a bankrupt¬ cy law that would destroy pre-existing property rights and hence raise a "tak¬ ings” issue). A caveat: the mere fact that a legislative action satisfies the "public purpose” re¬ quirement and provides adequate compen¬ sation to injured parties will not shelter it from challenges based on other constitu¬ tional provisions. A graphic (if unlikely) hypothetical illustrates this point. Sup¬ pose that a state legislature were to re¬ quire all citizens with a rare blood type to donate a fixed amount of their blood to hospitals every month, in return for which these donors would be generously compen¬ sated. The public purpose (saving lives) and the adequacy of compensation might be beyond dispute. Yet except in the most dire of emergencies, it is hard to imagine that such a scheme would pass constitu¬ tional muster under the due process clause, see Chapter 15, infra. 13. 260 U.S. at 413. 14. Indeed, in Keystone Bituminous Coal Assn. v. DeBenedictis, 107 S.Ct. 1232 (1987), also involving a Pennsylvania stat¬ ute setting stringent limits on coal mining, the Court pointedly distinguished Penn¬ sylvania Coal as a rare takings case in which, as a result of a legislative enact¬ ment, it was impossible for parties to en¬ gage in their business profitably. In Key¬ stone, by contrast, as Justice Stevens’ opinion for the Court’s majority observed, the claimants "have not even pointed to a single mine that can no longer be mined for profit.” Id. at 1248; see also id. at 1246-51. The Court also distinguished the statute challenged in Keystone on the

592

MODEL

OF SETTLED

EXPECTATIONS

Ch. 9

a case-by-case inquiry is meaningful unless one specifies what the inquiry is about and why it is being conducted. Such a specification is attempted in § 9-6; but its point will be more transparent if we first set out the traditional tests courts have articulated for identifying those government actions that constitute compensable takings of property. Section 9-3 describes those tests. § 9-3. The Traditional Tests for Compensable Takings: Physical Takeover* Destruction of Value* and Innocent Use Most people know a taking when they see one, or at least think they do. Before the taking, an object or a piece of land belonged to X, who could use it in a large number of ways and who enjoyed legal protection in preventing others from doing things to it without X’s permission. After the taking, X’s relationship to the object or the land was fundamentally transformed; he could no longer use it at all, and other people could invoke legal arguments and mechanisms to keep him away from it exactly as he had been able to invoke such arguments and mechanisms before the taking had occurred. As Professor Bruce Ackerman has shown in a thoughtful analysis of the taking problem,1 much of the constitutional law of takings is built upon this ordinary, lay view of what a "taking” is all about. Thus a clear case is one that intuitively seems like a taking in the layman’s sense of that term: a physical takeover of a distinct entity,2 with an accompanying transfer of the legal powers of enjoyment and grounds that it— unlike the application of the Kohler Act at issue in Pennsylvania Coal — had indisputably valid public pur¬ poses: these included conservation, safety, preservation of land values for taxation, and the preservation of surface water drainage potential. Id. at 1242-46. 1. B. A. Ackerman, Private Property -3 and the Constitution§ 988-167 (1977). 2. See § 9-5, infra. For examples of such "physical invasions,” see, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (compensable taking occurred when city required landlords to permit installation of television cables for a $1 fee, even though landlords bore no installation costs or risks); Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922) (compensable taking of servitude may regular firing land); Batten 580 (10th Cir.

be created of cannon v. United 1962), cert,

by government’s over petitioner’s States, 306 F.2d denied 371 U.S.

955 (1963) (denying compensation to landowners near, but not under, flight path); Griggs v. Allegheny County, 369 U.S. 84 (1962) (compensable taking of an easement by government’s use of a flight path less than a hundred feet over respondent’s land); United States v. Causby, 328 U.S. 256, 261-62 (1946) (same); Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S.

166, 177-78 (1871) (compensable taking oc¬ curred when land was destroyed by govern¬ ment-caused flooding). In Richards v. Washington Terminal Co., 233 U.S. 546 (1914), the Court had denied compensation to landowners adjacent to a railroad for injuries caused by unavoidable smoke, soot, and sparks. The Richards Court was con¬ cerned about the demands of progress, id. at 555, and Justice Black, dissenting in Causby v. United States, 328 U.S. at 27475, echoed a similar refrain. Writing for the Causby majority, id. at 263, Justice Douglas distinguished Richards by pointing to the direct overflight invasions. The costs involved in finding and compensating all of the people injured by airport noise would probably have been extraordinarily high in 1946, just as they would have been for all injuries from railroad smoke in 1914. The Causby Court was able to con¬ tain such costs by compensating the limit¬ ed number of readily ascertainable people immediately under approach paths, just as the Richards Court had limited costs by awarding damages only for the "direct and peculiar and substantial” injury caused by the forced funneling of smoke from a tun¬ nel onto one plaintiffs land. To the extent that technological advances have made it possible to limit recovery costs by less arti¬ ficial rules, one might expect to see com¬ pensation extended accordingly.

§ 9-3

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exclusion that are typically associated with rights of property. More¬ over, forcing someone to stop doing things with his property — telling him "you can keep it, but you can’t use it” — is at times indistinguish¬ able, in ordinary terms, from grabbing it and handing it over to someone else. Thus a "taking” occurs in this ordinary sense when government controls a person’s use of property so tightly that, although some uses remain to the owner, the property’s value has been virtually destroyed.3 Again in accord with ordinary intuition, government need not pay even for complete takeover or destruction if the latter is justified by the owner’s insistence on using his property to injure other people or their property. In such cases of noxious use, or nuisance, the offending user may be required to stop,4 and if he refuses his property may be seized as a means of enforcing civility. It is this "non-noxious” or innocent use qualification that came to cause the greatest difficulty as the law of takings and of just compensa3. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413-14 (1922). For a more de¬ tailed discussion of such "regulatory tak¬ ings,” see § 9-4, infra. The Court’s stan¬ dards for making out a regulatory taking have often been most demanding. Uncom¬ pensated losses in excess of 75% of a prop¬ erty’s value caused by regulation have been sustained both before Pennsylvania Coal, see Hadachek v. Sebastian, 239 U.S. 394, 405 (1915) (88%), and after Penn¬ sylvania Coal, see Village of Euclid v. Am¬ bler Realty Co., 272 U.S. 365, 384 (1926) (75%). In Goldblatt v. Hempstead, 369 U.S. 590 (1962), a town which had expand¬ ed around a sand-and-gravel mining opera¬ tion amended its zoning laws "to prohibit any excavating below the water table and to impose an affirmative duty to refill any excavation presently below that level.” Id. at 592. Although the owner had argued that the ordinance totally destroyed the economic value of his property, and al¬ though the New York Court of Appeals had found that the ordinance was amended as part of "a systematic attempt to force [the owner] out of business . . . under the guise of regulation,” 9 N.Y.2d 101, 172 N.E.2d 562 (1961), the Supreme Court found "no evidence in the . . . record which even remotely suggests that prohibi¬ tion of further mining will reduce the value of the lot in question;” thus the Court saw no need to decide how "far regu¬ lation may go before it becomes a tak¬ ing. . . .” 369 U.S. at 594. Moreover, although the New York Court of Appeals had found that it would cost over one mil¬ lion dollars to refill the excavation, the Supreme Court withheld decision on the validity of the mandatory-refill provision since its specific enforcement had not been sought. Id. at 597-98. Five months later, the Court considered an appeal from an extraordinary zoning case that squarely posed the question "whether

zoning ordi¬

nances which altogether destroy the worth of valuable land by prohibiting the only economic use of which it is capable [i.e., rock and gravel excavation] effect a taking of real property without compensation,” Brief for Appellant, Jurisdictional State¬ ment, p. 5, Consolidated Rock Products Co. v. Los Angeles, 57 Cal.2d 515, 20 Cal.Rptr. 638, 370 P.2d 342, appeal dismissed 371 U.S. 36 (1962). In an action that cast doubt on the diminution of value test, the Court dismissed for want of a substantial federal question. Id. In a similar vein, the Court’s early holding in the area of rate regulation that a public utility is enti¬ tled to a fair return on the fair value of its investment, Smyth v. Ames, 169 U.S. 466 (1898), gave way by the 1940’s to the far more deferential inquiry whether "the to¬ tal effect of the rate order [is] unjust and unreasonable,” Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944), a standard that only the most egregiously confiscatory rate structure would have difficulty meeting; see also Andrus v. Allard, 444 U.S. 51 (1979) (prohibition on sale of lawfully acquired feathers of pro¬ tected bird species held not a taking be¬ cause other "strands” in the bundle of property rights remain). 4. See, e.g., Northwestern Fertilizing Co. v. Hyde Park, 97 U.S. 659 (1878) (ban¬ ning animal rendering plant from residen¬ tial area); Mugler v. Kansas, 123 U.S. 623 (1887) (destroying beer business by enforc¬ ing state prohibition on sale of alcohol); Sligh v. Kirkwood, 237 U.S. 52 (1915) (prohibiting exportation of unripe oranges); Northwestern Laundry v. Des Moines, 239 U.S. 486 (1916) (prohibiting dense smoke as a nuisance); Arcara v. Cloud Books, Inc., 106 S.Ct. 3172 (1986) (closing for one year a place of business — as it happened, an adult bookstore — on whose premises solicitation of prostitution was occurring).

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Ch. 9

tion developed. In one of the more extreme cases, Hadachek v. Sebas¬ tian, ,5 the Supreme Court held that a brickyard originally located far beyond the city limits of Los Angeles could be ordered to cease its operations, without compensation for the decline in property value from $800,000 to around $60,000, when "progress” and the city’s boundaries finally caught up with it. The Court also denied compensa¬ tion when a village effectively closed down a fertilizing company that had moved, pursuant to a governmental agreement, from Chicago to what had then been an uninhabited swamp. "If population, where there was none before, approaches a nuisance, it is the duty of those liable at once to put an end to it.” 6 Or, as Justice Sutherland colorfully put it when the Court upheld a local zoning ordinance in Village of Euclid v. Ambler Realty Co.,7 "a nuisance may be merely a right thing in the wrong place, like a pig in a parlor instead of the barnyard” — even if the parlor has come to the pig rather than the other way round. But why must the owner of the parlor not pay to remove the pig? That was the question, and even though it might have answered itself in an earlier time when "nuisance” seemed a self-defining and fixed concept, loss of faith that certain "causes” were objectively responsible for certain "harms,” coupled with rapid social and economic change and a growing role for government in mediating such change, left a large question mark where once none had been perceived. If cedar trees spawned a pest that would destroy nearby apple orchards, the Court could suggest that governmental destruction of the cedars to save the apples was like abatement of a nuisance at common law,8 but nobody could blame the cedar owners for believing that it was the apple trees which, by their proximity and their susceptibility to the cedar pest, constituted a nuisance to the cedars. The case, as one astute observer remarked, was "not essentially different from one in which the apple pest spent its whole life in the apple trees but could be exterminated only by some arcane component of cedar ash, to furnish which the [cedars] were condemned without compensation.” 9 Increasingly, decid¬ ing who had harmed whom seemed too open a choice to provide any determinate

solution to the question of compensation.10

5. 239 U.S. 394, 410 (1915). The Court relied heavily on Reinman v. Little Rock, 237 U.S. 171 (1915), which had upheld the ban¬ ishment of a well-established livery stable from one section of a city. See also Laurel Hill Cemetery v. San Francisco, 216 U.S. 358 (1910), where a cemetery, originally located outside the city limits, had been overtaken and then ordered to cease operations. 6. Northwestern Fertilizing Co. v. Hyde Park, 97 U.S. 659, 669 (1878); cf. Pierce Oil Co. v. Hope, 248 U.S. 498 (1919). But see Dobbins v. Los Angeles, 195 U.S. 223 (1904). 7. 272 U.S. 365, 368 (1926). But cf. Nectow v. Cambridge, 277 U.S. 183 (1928). 8. Miller v. Schoene, 276 U.S. 272, 27980 (1928) (deeming irrelevant the question

whether the infected cedars would techni¬ cally constitute a nuisance at common law but stressing government’s traditional pow¬ er to take reasonable measures to termi¬ nate uses of land harmful to neighboring property), discussed in § 8-5, supra. 9. Michelman, "Property, Utility, and Fairness: Comments on the Ethical Foun¬ dations of 'Just Compensation’ Law,” 80 Harv.L.Rev. 1165, 1198-99 (1967). 10. For a bold, if unpersuasive, argu¬ ment that this sort of question, and indeed every question bearing on when govern¬ ment must provide compensation, has a unique constitutional answer determinable by reference to, of all things, "general eco¬ nomic theory,” see R. Epstein, Takings 200-01 (1985), discussed in § 9-6, infra.

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§ 9-4 A final source of perplexity was the changing notion of harm itself. Difficult as it might be to fix blame in a situation like that of the cedars and the apples, at least that case left little doubt that the pestdestroyed apple orchards, and the government-felled cedar trees, consti¬ tuted "harms” to the owners of the apples and the cedars, respectively. But is harm done when wildlife belonging to no "owner” is threatened by a practice? When a wilderness area is flooded? When a company is forced to stop soiling a river with its effluents? Or suppose government determines that cedar owners are too wealthy and apple owners too poor, and compels a partial redistribution of land from the former to the latter: does that inflict a harm, or had the former distribution caused a harm that the government’s choice simply corrected? The wider the range of permissible definitions of public harm and legitimate governmental purpose, the more difficult it becomes to mesh ordinary conceptions of taking and compensation with contemporary notions of what government is for, and the more urgent it becomes to ask more systematically, as we attempt to do in § 9-6, why compensa¬ tion should ever be required. Initially, however, it is important to examine in some detail how the Supreme Court has responded to two broad types of government actions that can interfere with settled expectations: so-called "regulatory takings,” and "physical invasions” of property. A look at these areas — regulatory takings in § 9-4, and physical invasions in § 9-5 — will in turn help to fill out our sense of what the Court regards as the aims of the compensation requirement (§ 9-6) and what the Court deems "property” for the purpose of takings analysis (§ 9-7). § 9-4. Regulatory Takings In 1922, Justice Holmes set an agenda for generations of lawyers with his famous epigram, "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” 1 The difficulty of determining, in cases involving nothing like a physical invasion or trespass, just how far is "too far” has predictably plagued the Court for over six decades,2 and the attempt to differentiate "regu1. Pennsylvania Coal Co. v. Mahon, 260 4 U.S. 393, 415 (1922).§ 9It- seems settled that

extended to situations in which the govern¬ mental purpose to be advanced — consolida¬ tion of ownership of Indian lands — would not conflict with the further descent of the

regulation goes "too far” and thus consti¬ tutes a compensable taking if it deprives the property owner of such an essential attribute of property ownership as the right to exclude trespassers, see Kaiser Aetna v. United States, 444 U.S. 164 (1979)

property; fact that the property retained value during life, and could be conveyed by inter vivos transfer, held immaterial to ing). that regulation amounted to a tak¬ claim

(discussed in § 9-5, infra); collect interest, see Webb’s macies, Inc. v. Beckwith, (1980) (discussed in § 9-7,

or the right to Fabulous Phar¬ 449 U.S. 155 infra); or the

2. See, e.g., Keystone Bituminous Coal Assn. v. DeBenedictis, 107 S.Ct. 1232, 1237

right to transmit the property to one’s heirs by descent or devise, see Hodel v. Irving, 107 S.Ct. 2076 (1987) (invalidating, as an uncompensated taking, a 1983 con¬ gressional enactment abolishing descent or devise of undivided fractional interests in certain Indian lands, where the abolition

examination of "the particular facts”); United States v. Riverside Bayview Homes,

(1987) (repeatedly emphasizing that tak¬ ings decisions can be reached only after

Inc., 474 U.S. 121 (1985) ("[w]e have never precisely determined those circumstances where land-use regulations amount to tak¬ ings”); Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (tak-

596

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lation” from "taking” has become "the most haunting jurisprudential problem in the field of contemporary land-use law . . . one that may be the lawyer’s equivalent of the physicist’s hunt for the quark.” 3 In 1978, the Supreme Court reaffirmed its practice of engaging in "essentially ad hoc, factual inquiries” into regulatory takings in Penn Central Transportation Co. v. New York City.4 The Court allowed New York City to prevent the construction of a 53-story building atop Grand Central Station, as part of a comprehensive plan to preserve the station’s (and the city’s) historic and aesthetic value.5 The govern¬ ment’s regulatory action would result in long-term economic gain for the city as a whole, thus significantly benefitting those "expropriated” as well: landmarks attract people to New York and create business for,

.

among others, Penn Central.6 The company could not complain of being the only 7 or an especially frequent victim of this kind of action, nor even of suffering very greatly in this particular instance: the diminution of property value was limited by the facts that (1) the law did not in any way interfere with Penn Central’s primary use of the land as a railroad terminal containing office space and concessions, (2) not all development of the air space above Grand Central was categori¬ cally prohibited, and (3) New York City gave the company valuable "transferable developmental rights” which could be used on its other parcels of land nearby.8 Whatever injury Penn Central could be said to have suffered after these circumstances were taken into account, the Court was willing to allow to go uncompensated. Governmental regula¬ tion — by definition — involves the adjustment of private rights for public benefit. To require compensation whenever the law curtailed the ings analysis involves "essentially ad hoc, factual inquiries”); Goldblatt v. Hemp¬ stead, 369 U.S. 590, 594 (1962) ("no set formula to determine where regulation ends and taking begins”); United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958) ("question properly turning up¬ on the particular circumstances of each case”). The overwhelmingly fact-specific nature of takings inquiries led the Court in several recent cases involving alleged tem¬ porary inverse condemnations to defer judgment on takings claims until the legis¬ lative or administrative action in question has assumed final form. See, e.g., Mac¬ Donald, Sommer & Frates v. Yolo County, 106 S.Ct. 2561 (1986) ("A court cannot de¬ termine whether a regulation has gone 'too far’ unless it knows just how far the regu¬ lation goes”); Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 199 (1985) ("[t]he difficult problem [is] how to define 'too far,’ that is, how to distinguish the point at which regulation becomes so oner¬ ous that it has the same effect as an appro¬ priation of the property through eminent domain or physical possession .... [The effect of the application of the zoning ordinance at issue] cannot be measured until a final decision is made as to how the

regulations will be applied to respondent’s property”). Although the Court held in First English Evangelical Lutheran Church v. Los Angeles, 107 S.Ct. 2378 (1987), that temporary takings require just compensation, see note 13, infra, it had no occasion to determine whether the regula¬ tion at issue went so far as to constitute a taking. Id. at 2384-85. 3. C. Haar, Land-Use Planning 766 (3d ed. 1976). See generally Michelman, "Property, Utility and Fairness: Com¬ ments on the Ethical Foundations of 'Just Compensation’ Law,” 80 Harv.L.Rev. 1165 (1967). 4. 438 U.S. 104 (1978). 5. If the city had allowed entities other than Penn Central, the owner of the sta¬ tion, to build atop the terminal without the owner’s permission, a case more like those analyzed in § 9-5, infra, would have been posed. 6. 438 U.S. at 134-35.

7. The New York Landmarks

Preserva¬

tion Law applies to all the buildings in 31 historical districts and to over 400 individ¬ ual landmark structures. 438 U.S. at 134.

.Sa.

438U

§ 9-4

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OF SETTLED

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597

potential for economic exploitation "would effectively compel the gov¬ ernment to regulate by purchase.” 9 It has long been recognized that such a regime would be unworkable.10 The upshot of Penn Central is that, when faced with a regulation which not only (1) advances some public interest, but also (2) falls short of destroying any classically recognized element of the bundle of proper¬ ty rights, (3) leaves much of the commercial value of the property untouched, and (4) includes at least some reciprocity of benefit, the Supreme Court is unlikely to find a taking. For example, Agins v. Tiburon 11 involved open-land zoning which significantly limited the economic value of some residential acquisitions, but was enacted in the interest of coherent land development and environmental policy. The zoning plan was unanimously held not to be a compensable taking. No classical element was wholly destroyed, much of the value was left, and the owners could expect in the long run 12 to gain as much as they would lose.13 Had Agins involved not zoning restrictions, but a more 9. Andrus v. Allard, 444 U.S. 51, 65 (1979) (no taking where federal wildlife law prohibits trade in feathers of endangered species but allows other remunerative uses) (emphasis in original). 10. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922); Penn Central, 438 U.S. at 124. 11. 447 U.S. 255 (1980). 12. This of course might mean the very long run which John Maynard Keynes had

the Court was joined by Chief Justice Bur¬ ger and Justices White, Rehnquist and Ste¬ vens. Justices Brennan, Stewart, Marshall and Powell dissented and reached the mer¬ its.) Justice Brennan, writing for the dis¬ senters, argued that the majority misun¬ derstood the lower court’s ruling: there was no final judgment that there had been a taking only because the California appel¬ late court, following the California Su¬ preme Court in Agins, had held that it was legally impossible for San Diego to have "taken” property since a zoning ordi¬ nance — an exercise of the police power —

in mind when he said, "In the long run, we are all dead.” 13. 447 U.S. at 262-63. One issue in Agins was left unresolved. The California

can never constitute a "taking,” no matter how arbitrary or excessive it may be. 450 U.S. at 639-40 (Brennan, J., dissenting).

Supreme Court had held that "inverse con¬ demnation” — a claim by the regulated owner that there has been a de facto con¬ fiscation for which payment must be

The utility company in Agins had bought land for the purpose of constructing a nu¬ clear power plant, only to have some of its

made — is inappropriate where only uncon¬ stitutional regulation is alleged. Compen¬ sation, the state court reasoned, is called for only when ing its power police power. Rptr. 372, 375,

the state is literally exercis¬ of eminent domain, not the 24 Cal. 3d 266, 272, 157 Cal. 598 P.2d 25, 28 (1979). If a zoning ordinance is so intrusive as to de¬ prive someone of property without just compensation, his remedy lies solely in an action for mandamus or declaratory relief to invalidate the regulation prospectively; no money will be paid for interim harm done. The question whether a state may thus say that the exercise of the police power can never constitute a compensable taking could have been resolved in San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621 (1981), but a majority of the Court dismissed the appeal in that case for lack of a final judgment since, as it believed, the California court had yet to determine if there had in fact been a taking. 450 U.S. at 633.

(Justice Blackmun’s

opinion for

parcels rezoned by San Diego as "open space” in anticipation of the city’s buying the land for use as a public park. When a bond issue to pay for the purchase of the land was defeated, the utility company was left with $6 million of land on which it could not build a generating facility. Id. at 625-26. It sued San Diego to force the city to condemn the land formally and to buy it at fair market value. The dissenters are certainly correct that nothing in the just compensation clause empowers a court to compel the government to exercise its pow¬ er of eminent domain for the future where the regulatory "taking” is temporary and reversible and the government would rath¬ er end the "taking” than buy the land. Id. at 658 (Brennan, J., dissenting): "Just as the government may cancel condemnation proceedings before passage of title, see 6 J. Sackman, Nichols’ Law of Eminent Do¬ main § 24.113, p. 21-24 (rev. 3d ed. 1980), or abandon property it has temporarily occupied or invaded, see United States v.

598

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direct form of governmental incursion, these mitigating factors might not have saved the regulation in question.

For example, Nollan v. California Coastal Comm ’n 14 involved an attempt by the state to condition issuance of a permit to rebuild an ocean-front residence on the property owners’ willingness to grant the public a permanent easement across their beach. In an opinion by Justice Scalia,15 the Court first deemed it '"obvious” that a direct state appropriation of such an easement would constitute a taking of a classic property interest— the right to exclude others 16 — rather than "a mere restriction on its use.” 17 The majority then turned to whether the state could constitutionally achieve its end by requiring conveyance of an easement as a condition for a land use permit. Assuming arguendo that the Coastal Commission could have altogether denied the Nollans a permit to build on their property if it concluded that such develop¬ ment would undermine the state’s legitimate goals of reducing beach congestion and of overcoming the psychological barrier to beach use created by an over-developed shoreline, the Court agreed that the Commission could impose a permit condition so long as it served those same

ends.19. No

such nexus

could be found, for the condition in

question could not by any stretch of the imagination serve the state’s purported interests: the easement the state sought would not have Dow, 357 U.S. 17, 26 (1958), it must have the same power to rescind a regulatory 'taking.’ ” Justice Rehnquist, in his con¬ currence, noted his essential agreement with the dissenters’ views on the merits. 450 U.S. at 633. It is equally plain, though, that the gov¬ ernment must compensate the property owner for whatever "taking” occurred dur¬ ing the time between enactment and re¬ peal of the offending regulation. First English Evangelical Lutheran Church v. Los Angeles, 107 S.Ct. 2378, 2389 (1987). Writing for himself and Justices Brennan, White, Marshall, Powell and Scalia, Chief Justice Rehnquist declared that " 'tempo¬ rary’ takings which . . . deny a landown¬ er all use of his property are not different in kind from permanent takings, for which the Constitution clearly requires compen¬ sation.” Id. at 2388. The just compensa¬ tion requirement is "not precatory: once there is a 'taking,’ compensation must be awarded.” San Diego Gas & Electric, 450 U.S. at 654. See United States v. Clarke, 445 U.S. 253, 257 (1980) (compensation clause is "self-executing”); First Evangeli¬ cal Lutheran Church, 107 S.Ct. at 2386 n. 9 (squarely rejecting the Solicitor General’s argument that " 'the Constitution does not, of its own force, furnish a basis for a court to award money damages against the gov¬ ernment.’ ”). Although this remedial ques¬ tion was thus finally resolved, the posture of the case gave the Court no occasion to decide whether the land-use ordinance in issue actually denied the plaintiff all use of his property, or "whether the county might

avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State’s authority to enact safety regulations.” Id. at 2384-85. 14. 107 S.Ct. 3141 (1987). 15. He was joined by Chief Justice Rehnquist and Justices White, Powell and O’Connor. Justices Brennan, Marshall, Blackmun and Stevens dissented. 16. Id. at 3145. 17. Id. at 3154 n.3 (Brennan, J., joined by Marshall, J., dissenting). 18. Id. at 3147-48.

Justice Scalia rea¬

soned that a nexus between the state’s legitimate purpose and the condition it would impose was mandated by a variation on the doctrine of unconstitutional condi¬ tions: "When that essential nexus is elimi¬ nated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to the state treasury. While a ban on shouting fire can be a core exercise of the State’s police power to protect the public safety, and can thus meet even our stringent stan¬ dards for regulation of speech, adding the unrelated condition alters the purpose to one which, while it may be legitimate, is inadequate to sustain the ban. Therefore, even though, in a sense, requiring a $100 tax contribution in order to shout fire is a lesser restriction on speech than an out¬ right ban, it would not pass constitutional muster.” Id. at 3148.

§ 9-5

MODEL

OF SETTLED

EXPECTATIONS

599

allowed the public access to the beach across the Nollans’ property from the public street, but merely have allowed those people already on the public beach on one side of the Nollans’ property to cross the private strip of sand to the public beach on the other side.19 The Court concluded that, "unless the permit condition serves the same govern¬ mental purpose as the development ban, the building restriction is not a valid regulation of land use but 'an out-and-out plan of extortion.’ ” 20 If California wanted an easement across the Nollans’ beach, it would have to pay for it. Such physical invasions — the governmental actions most vulnerable to takings challenges — are the subject of the next section. § 9-5. Physical Invasions In a number of recent decisions, the Supreme Court has dealt with state laws which allow third parties to trespass physically upon private property. In two such cases, the Court applied its usual ad hoc approach, recognizing that, while factors developed in other cases may be helpful, "the resolution of each case . . . ultimately calls as much for the exercise of judgment as for the application of logic.” 1 In a third case, however, the Court abandoned this approach in favor of what appears to be a per se repudiation of all permanent, physical invasions of even the most trivial variety. PruneYard Shopping Center v. Robins 2 involved the right of a privately owned shopping center to resist the use of its property as a public forum. The PruneYard consisted of 21 acres, 10 restaurants and more than 65 shops which were visited by 25,000 people every day.3 To resist use of the area by students seeking signatures on a petition, no plausible privacy claim could be made, nor a claim of protecting any right of intimate association. However, the owner of the shopping center had a general rule, neutral as to subject matter, prohibiting public expression other than the business-related variety. Unlike the ancient Greek agora , the PruneYard saw itself solely as a marketplace of goods, not a marketplace of ideas. Thus when some high school students tried to set up a booth to solicit signatures for a petition opposing a United Nations resolution, they were summarily ordered off the premises. 19. Id. at 3149. 20. Id. at 3148 (citation omitted). The Court did not specify just how tight this nexus requirement was, finding that even the Commission’s proposed test — that the condition be '’reasonably related to the public need or burden” that the Nollans’ proposed development would create — could not be satisfied by the facts of the case before it. Id. There are, however, indica¬ tions that a tight nexus would not neces¬ sarily be required where the state’s condi¬ tion on a land use permit involved something less than coercive abdication of a core property interest: "our cases de¬ scribe the condition for abridgement of property rights through the police power as a ' substantial advancing]’ of a legiti¬

mate state interest. We are inclined to be particularly careful about the adjective where the actual conveyance of property is made a condition to the lifting of a land use restriction, since in that context there is a heightened risk that the [real] purpose is avoidance of the compensation require¬ ment” Id. at 3150 (original emphasis). Outside of this concededly sensitive con¬ text, a more relaxed standard for review¬ ing exercise of the police power may pre¬ vail. But see id. at 3147 n. 3.

1. Andrus

v. Allard, 444 U.S. 51, 65

(1979). 2. 447 U.S. 74 (1980). 3. Id. at 77-78.

§ 9-5

600

MODEL The

OF SETTLED

California Supreme

EXPECTATIONS

Court, however,

Ch. 9

interpreted the state

constitution’s free speech clause as entitling the students to set up their booth in the Prune Yard — perhaps subject to reasonable time, place and manner regulations — despite the fact that the shopping center was private property.4 The Prune Yard argued that California, by inviting third persons onto its property to conduct their petition drive, was taking its property without just compensation. In a unanimous opinion by Justice Rehnquist, the Supreme Court disagreed. The Court conceded that the right to exclude others from one’s property has long been held to be a fundamental element of one’s bundle of property rights.5 But the owner did not exclude people from the Prune Yard — indeed, its purpose was to attract people there to spend money — and the Court could find no indication in the record that permitting free expression would significantly impair the value of the Prune Yard as a shopping center, especially since the owner could impose reasonable time, place and manner restrictions to limit any disruption of commercial activity. In these circumstances, the Court refused to view the fact that the appellant’s property had been "physi¬ cally invaded” as determinative.6 A huge shopping center open to the general public understandably did not appear to the Court to be the kind of traditional "property” from which one has a federal constitutional right not only to exclude the public but also to extend invitations conditional upon what one’s visitors have to say while on the premises. As a consequence, the positivist argument that California possesses a "residual authority that enables it to define 'property’ in the first instance”7 carried more weight in Prune Yard than it did in Webb's Fabulous Pharmacies , where the Court held, just as unanimously, that interest follows the principal no matter what the state’s law may 4. As much as it may have wished to, the California Supreme Court could not rest its decision on the first amendment to the federal Constitution, for the latter had been read as not giving people a right, over and above the right of the property owner, of free access to shopping centers for ex¬ pressive purposes. Hudgens v. NLRB, 424 U.S. 507 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). See §§ 12-25, 18-5, infra. And the Court has held that a state su¬ preme court may not give the first amend¬ ment more bite than the Supreme Court would. See, e.g., Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). 5. 447 U.S. at 82. See Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979); International News Serv. v. Assoc. Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dis¬ senting). 6. 447 U.S. at 83-84. 7. 447 U.S. at 84. 8. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161, 164 (1980). See § 9-7, infra. The case of Pacific Gas & Electric Company v. Public Utilities Com-

say to the contrary.8 mission of California, 106 S.Ct. 903 (1986), provides a useful post-Prune Yard reminder that redefinitions of property by legisla¬ tures and agencies are, of course, limited by other provisions of the federal Constitu¬ tion. For 62 years, Pacific Gas, a Califor¬ nia utility, had enclosed a newsletter in its monthly billing envelopes containing polit¬ ical editorials as well as more mundane items. 106 S.Ct. at 906. In 1980, after a public interest group during ratemaking proceedings called for a ban on the inclu¬ sion of these politicized enclosures, Califor¬ nia’s Public Utilities Commission (PUC) or¬ dered the utility to allot the “extra space” in its envelopes to the public interest group to allow it to voice its point of view on ratemaking issues. Id. at 906-907. The Court, in a plurality opinion by Justice Powell, invalidated the envelope-sharing order on first amendment grounds, reason¬ ing primarily that the forced inclusion would effectively violate the utility’s right under Wooley v. Maynard, 430 U.S. 706 (1977), not to speak or be forced to reply. See § 12-4, infra. Both Justice Powell, id. at 909-10, and Justice Marshall in his con-

MODEL OF SETTLED EXPECTATIONS 601 5 § 9A second physical invasion case held a government regulation which invited third parties to trespass on private property to be a compensable taking. Kaiser Aetna v. United States 9 arose in the late Pleistocene Period — near the end of the ice age, when a lagoon was formed on what much later became known as Oahu, Hawaii. This lagoon, the 523 acres known as Kuapa Pond, was passed down through the ages until eventually, as an ahupuaa allotted by King Kamehameha III during the Great Mahele, it ended up in the hands of one Bernice Bishop, whose estate ultimately granted a long-term lease to the Kaiser Aetna Company. Kaiser Aetna decided to make the Kuapa Pond into a considerably more valuable piece of property by developing it into a residential community. To do so, the company spent millions of dollars in 1961— after receiving approval for its plans from the U.S. Corps of Engineers — to convert a land-locked, two-footdeep fish pond into a navigable body of water connected to the Pacific Ocean by an eight-foot-deep channel.10 A private marina-style commu¬ nity of some 22,000 residents surrounded Kuapa Pond, of whom about 1,700 paid fees for the maintenance of the marina. In 1972, a dispute arose between

Kaiser Aetna and the Corps of

Engineers over public access to the pond — which was by then a "naviga¬ ble waterway” in fact even if still "fast land” under Hawaiian law. Did the government effect a compensable taking by saying to the general public, "Come on in, the water’s fine”? True, there had been no expropriation as such. But the government was regulating the proper¬ ty by imposing a navigational servitude which effectively invited actual physical invasion by third parties.11 Unlike the Prune Yard, Kuapa Pond was the sort of private property for which excluding the public was a critical stick in the bundle.12 Each resident of the Kuapa Pond marina community paid a $72 annual fee to maintain the pond which the government-invited gatecrashers would get to use for free.13 The Court, speaking again through Justice Rehnquist,14 repeatedly stressed that Kaiser Aetna had spent millions of dollars developing a marina community on the assumption that it would stay private and not become

a public aquatic park.15 The majority held that, while the

currence, id. at 914-17, pointedly distin¬ guished Prune Yard. In particular, they contended, the access permitted in Pacific

state sought to ensure public access to the marina by, for example, conditioning issu¬ ance to a marina resident of a permit to

Gas would impinge on the utility’s right to speak more than did what Justice Mar¬ shall termed "the slight incursion” permit¬ ted in PruneYard. Id. at 917. While

build a sundeck on the resident’s granting to the general public of a right of access to the marina. See Nollan v. California

states are generally free to create statebased rights, Justice Marshall noted, they may not do so in such a way as to burden federal constitutional rights. Thus the utilities commission, Marshall wrote, "has crossed the boundary between constitution¬ ally permissible and impermissible redefinitions of private property.” 917.

Id. at

9. 444 U.S. 164 (1979). 10. Id. at 166-67.

11. Id. at 180. The unconstitutional re¬ sult would have been the same had the

Coastal Comm’n, 107 S.Ct. 3141 (1987), dis¬ cussed in § 9-4, supra. 12. 444 U.S. at 176; cf. PruneYard, U.S. at 84.

447

13. Justice Rehnquist stressed this point in the penultimate line of his opinion for the Court. 444 U.S. at 180. 14. But not unanimously: Justices Blackmun, Brennan and Marshall dissent¬ ed. Id. at 180.

602

MODEL

OF SETTLED

EXPECTATIONS

Ch. 9

consent of the Corps of Engineers in Kaiser Aetna’s development plans could not estop the United States from now placing the pond under a navigational servitude, it could engender investment-backed expecta¬ tions rising to the status of property rights for which the government must pay when

it effectively nationalizes them.16

The legal-positivist argument

that the state must be free to take

away with one hand what it gave with the other 17 was especially leaky in the Kuapa Pond case because two sovereigns were involved: Justice Rehnquist noted several times that the law of Hawaii led the plaintiffs to believe their pond was private property,18 until the federal govern¬ ment, in the form of the Corps of Engineers, sailed in to say, "No, it’s not.” The "bitter-sweet” argument — that one who relies on a state’s law to claim property is not free to ignore restrictions or qualifications built into the same law but must instead take the "bitter” with the "sweet” 19 — thus posed little difficulty to a majority bent on protecting from government-invited gatecrashers what it saw as plainly private property. The final, and in some ways the most curious, in this instructive trio of physical invasion cases is Loretto v. Teleprompter Manhattan CATV Corp.20 Prior to 1973, cable television (CATV) companies like Teleprompter had given landlords 5% of their gross revenues from users living in the landlord’s property in exchange for the landlord’s authorization of the necessary CATV installations. In order to facili¬ tate tenant access to the important educational and community benefits of CATV, New York passed a law requiring all landlords to allow installation of CATV cables in exchange for a $1 fee.21 The landlord was not to bear the costs of installation, however, and could not only demand that installation conform to reasonable conditions necessary to protect the appearance and safety of the premises, but was entitled to indemnification by the CATV company for any damage resulting from installation, operation or removal of the CATV facilities.22 When a disgruntled landlord seeking a bigger piece of the action sued Tele¬ prompter for trespass, the Supreme Court abandoned its now-familiar ad hoc approach in favor of a per se rule: a permanent physical occupation authorized by government is a compensable taking, however significant the public interests it may serve.23 The majority opinion contains several pages of hyperbolic rhetoric in which a few feet of V2 inch cable and a couple of small silver boxes — the totality of the offending installation — are described as having effectively destroyed the 16. Id. at 179-80. See A. Brownstein, "The Takings Clause and the Iranian Claims Settlement,” 29 U.C.L.A.L.Rev. 984, 1064-66 (1982).

bitter with the sweet”). See § 10-12, infra. 20. 458 U.S. 419 (1982). 21.

17. See § 10-12, infra. 18. 444 U.S. at 166, 167, 179. 19. Cf. Arnett v. Kennedy, 416 U.S. 134, 153-54 (1974) (Rehnquist, J.) (stating in due process context that, where state cre¬ ates a right, the recipient ’’must take the

22.

Id. at 423-24. Id. at 423 n. 3.

23. Id. at 426. Justice Marshall deliv¬ ered the opinion of the Court. Justice Blackmun, joined by Justices Brennan and White, dissented.

§ 9-5

MODEL

OF SETTLED

EXPECTATIONS

603

landlord’s use of his roof space.24 We are told that to allow a " stranger ” to "invade” and "exercise complete dominion” over the landlord’s property is "literally to add insult to injury.” 25 The majority even takes the dissent to task for underestimating the size of the CATV installation, which actually displaced more This obsession with permanent

than IV2 cubic feet! 26

physical invasions of even the most

de minimus variety borders on fetishism.27 The majority apparently finds merely temporary limitations on the right to exclude, such as those in PruneYard, Kaiser Aetna, and the intermittent flooding cases,28 to be less constitutionally offensive even though the economic depriva¬ tion of those incursions far exceeds that worked by CATV installa¬ tions.29 New York can force Penn Central not to build a multi-million dollar, 53-story office building above Grand Central Station, but it cannot force Jean Loretto to abide a couple of lV2-foot high boxes and some V2 inch cable above her apartment building. Would the result have been different if the boxes were to be removed periodically? Or if Teleprompter

had simply been given a state-created right of periodic

access to Ms. Loretto’s rooftop, much as utility companies’ meterreaders must enter an apartment building? It is hard to believe that the outcome in such cases should turn on distinctions of this sort. The final oddity of the Teleprompter decision is that the majority concedes that its analysis turns upon the fact that the CATV company, rather than the landlord, owns the offending installation. The Court claims that its holding does not affect the state’s power to require landlords to provide such things as mailboxes, smoke alarms, and utility connections. The reason is that, although the expense in those situations is imposed directly on the landlord, and her dominion over her property is certainly impaired, she owns the installation, albeit unwittingly.30 This distinction is of critical importance to the majority because ownership would permit the landlord, not the CATV company, to decide how the cables were to be stapled to the roof and hence to control the aesthetic impact of the installation. But even this meager distinction collapses since the majority admits that New York’s statute gives the landlord authority to prescribe reasonable conditions to pro¬ tect the appearance of the premises, and the right to demand indemnifi¬ cation for any damage. The only burden remaining on the landlord is the inconvenience of initiating minor repairs. Although the majority is correct that such a burden is "cognizable,” 31 it hardly amounts to cleaning out the Augean stables, and is in any event a lame excuse for abandoning the search for workable balancing tests in favor of a talisman-like "permanent

physical invasions.” 32

24. Id. at 427. 25. Id. at 436. 26. Id. at 438 n. 16. The majority adds that the size of the physical invasion is not germane to the question of the existence of a taking, only to the amount of compensa¬ tion.

27. See L. Tribe, Constitutional Choices 174-79 (1985).

28. See, e.g., Pumpelly v. Green Bay & Mississippi Co., 80 U.S. 166 (1871). 29. 458 U.S. at 435 n. 12. 30. Id. at 440 & n. 19. 31. Id. at 440. 32. The Court’s flirtation in Tele¬ prompter with a per se rule regarding physical invasions has appropriately gener¬ ated criticism from commentators. See,

604

MODEL A comparison

OF SETTLED

EXPECTATIONS

Ch. 9

of Teleprompter and Penn Central at least suggests

that the Supreme Court’s takings cases harbor no consistent capitalist agenda: in Penn Central , an expensive real estate development project by a corporate giant lost out to the cause of historic preservation; in Teleprompter , the needs of important, new information technology gave way to the formal property rights of small urban landlords. Evidently the Court sees itself, or at least wishes to depict itself, as neutrally protecting property as the Constitution, not capitalism, dictates. Yet the Court’s "Constitution” is anything but inevitable: it is the Constitu¬ tion as Lochner- style common law. The roof-top space invaded by the law struck down in Teleprompter certainly looks more like traditional property than does the volume of air above Grand Central Station which was protected by the law upheld in Penn Central. One suspects that there would be a closer fit between the Court’s sense of property and the demands of fairness and efficiency in post-industrial society were the Court’s imagination less captivated by common law legacies resembling those the Court rigidly enforced from the 1890s to 1937. By saying, "We know a taking of property when we see it, and this physical occupation by third parties, however insignificant, is it,” the Court perpetuates the myth that the just compensation clause is a template which judges may simply lay atop the facts of nature so as to detect a taking if any rough edges are seen to protrude beyond the template. Critical analysis would be fostered by a more candid conces¬ sion of the choices the Court necessarily makes in filling out the "takings” concept when it follows common merely doing arithmetic.33 e.g., DiGiovanni, "Eminent Domain— Loretto v. Teleprompter Manhattan CATV Corp.: Permanent Physical Occupation as a Taking,” 62 N.C.L.Rev. 153 (1983) (criti¬ cizing Court’s abandonment of a unified factual approach for a "two-track” bifurca¬ tion of takings questions into those involv¬ ing physical invasions and those in which such incursions are absent); Baker, "Prop¬ erty and Its Relation to Constitutionally Protected Liberty,” 134 U.Pa.L.Rev. 741, 766 & n. 56 (1986) (noting that, while a per se rule against physical invasions could in theory be defended as a prophylactic mea¬ sure to prevent the arbitrary imposition of burdens on particular landowners, such a danger was absent in the broad regulation at issue in Teleprompter). Perhaps because of such criticism, the Court, in Federal Communications Com¬ mission v. Florida Power Corp., 107 S.Ct. 1107 (1987), appeared to seek to narrow the scope of the per se rule suggested by Tele¬ prompter. The Court in Florida Power upheld against a takings challenge the fed¬ eral Pole Attachments Act, which empow¬ ered the FCC to set the rates that utility companies may charge cable television sys¬ tems for using utility poles as the physical medium for stringing television cable. Justice Marshall’s opinion for a unanimous

law habits as though it were

Court noted the central difference between Teleprompter

and the Florida Power

stat¬

ute: while the Teleprompter statute "spe¬ cifically required landlords to permit per¬ manent occupation of their property by cable companies, nothing in the Pole At¬ tachments Act as interpreted by the FCC gives cable companies any right to occupy space on utility poles, or prohibits utility companies from refusing to enter into at¬ tachment agreements with cable opera¬ tors.” Id. Justice Marshall’s reiteration in Florida Power that the Teleprompter holding was "very narrow,” id., may por¬ tend a restriction of the per se ban on physical invasions to those cases involving what he termed "required acquiescence” by landowners. Id. 33. An important premise underlying all three of the foregoing cases — PruneYard, Kaiser Aetna, and Teleprompt¬ er — is that uncompensated physical inva¬ sions by third parties acting under the express authorization of government are just as unconstitutional as are takings in which the government itself is the tres¬ passer. See Teleprompter, 458 U.S. at 432-33 n. 9 ("Permanent physical occupa¬ tion authorized by state law is a taking without regard to whether the State, or instead a party authorized by the State, is

§ 9-6 § 9-6.

MODEL

OF SETTLED

EXPECTATIONS

The Compensation Requirement as an Attempt Arbitrary Sacrifice of the Few to the Many

605 to Limit

As we will see even more clearly in our consideration of the first amendment in Chapter 12, seeking a systematic explanation of any constitutional requirement is a treacherous business, in part because the very notion that a '"systematic” explanation exists or would be desirable may entail some doubtful assumptions.1 The modern tenden¬ cy to treat each constitutional provision as a means to some other end, or at least as a manifestation of a set of values whose internal structure may be coherently elucidated, may at times falsify the meaning of a constitutional command as a reflection of a rather concrete intuition about a particular set of problems. But having said this much, it is difficult not to indulge the modern tendency by asking what more general ends the just compensation requirement might serve or what more general norms it might reflect, particularly since the intuitive picture of the requirement seems to generate so few answers in the hard cases addressed in § 9-3. Whether

traced to a principle that society simply should not exploit

individuals in order to achieve its goals,2 or to an idea that such exploitation causes too much dissatisfaction from a strictly utilitarian point of view unless it is brought under control,3 the just compensation requirement appears to express a limit on government’s power to isolate particular individuals for sacrifice to the general good. Such a limit is relevant, although in different ways, to each of the three identifiably legitimate reasons government might have for taking an action with adverse impact on someone’s property. First, government might act with the deliberate aim of redistributing wealth.4 Second, it might act so as to reallocate property, leaving the distribution of wealth intact but seeking, through a different arrangement of objects or resources, to generate more of some uniformly desired good or less of some uniformly disliked bad. And third, it might act out of a convic¬ tion that a formerly tolerated use of property should now be deemed immoral or otherwise unacceptable. the occupant’ ). This premise buttresses the understanding of modern state action doctrine that a private citizen who violates the rights of others pursuant to state au¬ thorization may be as much a state actor as is a policeman or an attorney general. See Chapter 18, infra. A taking is a tak¬ ing regardless of whether the invasion of property is committed by the government or by a private party acting at govern¬ ment’s invitation. Conversely, so long as the taking is for a public purpose and the government is willing to provide compensa¬ tion, the taking is legitimate. The next section, § 9-6, examines the rationales un¬ dergirding the compensation requirement.

§ *M3 1. See § 12-1, infra.

2. See I. Kant, Groundwork of the Met¬ aphysic of Morals 66-67 (H. J. Paton, tr.;

2d ed. 1964); Michelman, "Property, Utili¬ ty, and Fairness: Comments on the Ethical Foundations of 'Just Compensation’ Law,” 80 Harv.L.Rev. 1165, 1218-24 (1967). 3. Id. at 1211, citing Bentham, Theory of Legislation, chs. 7-10 (6th ed. 1890). 4. The idea that redistribution per se violates the constitutional duty of the state to be "neutral” among social and economic interests and classes has a venerable past but fails to capture both a major part of our 18th and 19th century heritage and a crucial dimension of the post-Depression consensus. See generally M. Horwitz, Key¬ note Address to American Society of Legal Historians, 16th Annual Meeting (Toronto, Oct. 25, 1986).

606

MODEL

OF SETTLED

EXPECTATIONS

The first two sorts of government

Ch. 9

action typically leave unaltered

the notion of what is "good,” with the first seeking to carve up the collection of good things in a different way and with the second seeking to rearrange the already carved up pieces; the third sort of government action entails a shift in the very definition of the good. Only the second type of action is designed to generate an economic surplus out of which those who are left worse off could presumably be compensated. But all three types present a choice not unlike that central to the law of torts — a choice between (1) leaving the harm where the government action initially imposed it, and (2) taking steps to spread the harm more widely or at least differently. All three types of government action thus pose the same question from the perspective of the individual harmed: Why me? 5 In the first and third categories of cases, a substantive reply may be available. Government may argue in the first situation that the injury should remain uncompensated because the person "injured” had more than his or her rightful share in the first place, an imbalance that the injury simply redressed — much as one would recapture a thief s booty.6 Or government may argue in the third situation that the 5. The same question arises in some socalled ’'affirmative action” plans. See § 16-22, infra. 6. Naked redistributions of wealth are obviously rendered problematic, if not in¬ deed pointless, by the just compensation requirement. For that requirement effec¬ tively mandates that government restore the status quo ante by compensating vic¬ tims of takings, presumably out of govern¬ ment tax revenues. The effect of this re¬ quirement is, of course, to make the redistributive potential of government reg¬ ulation, of outright redistribution followed by payment in accord with the takings clause, coextensive with, but no greater than, that of the taxing power. Nevertheless, some foes of New

Deal and

Great Society legislation mistake the prac¬ tical pointlessness of explicit wealth redis¬ tribution under the just compensation clause— and the respect the Constitution accords private property — for a broader and far more radical theory: that the Con¬ stitution forbids any measures that would alter the basic, common-law status of prop¬ erty holders. The leading expositor of this view is University of Chicago Professor Richard Epstein, who has argued that in including the fifth amendment’s eminent domain provision, the framers of the Con¬ stitution meant to endorse and freeze for all time a singularly static view of proper¬ ty. In his 1985 book, Takings, Epstein interprets the takings clause as embodying a broad anti-confiscation sentiment that "forecloses virtually all public transfer and welfare programs, however designed and executed.” R. Epstein, Takings 30-31, 324 (1985). "The basic rules of private proper¬

ty are inconsistent with any form of wel¬ fare benefits,” Epstein argues. According¬ ly, he calls upon the judiciary to strike down the progressive income tax, mini¬ mum wage laws, and the National Labor Relations Act, along with many other in¬ terventionist measures of the 20th century. Id. at 303, 327-28. While the aversion to economic

and so¬

cial legislation undergirding Epstein’s Tak¬ ings may strike a responsive chord in some circles, as a work of constitutional explica¬ tion Epstein’s argument is wide of the mark. The gaps, flawed assumptions and argumentative ellisions in Epstein’s reac¬ tionary interpretation of the fifth amend¬ ment, while too numerous to address fairly here, are effectively — and elegantly— ex¬ posed by Professor Thomas Grey in his review of Epstein’s work. See Grey, "The Malthusian Constitution,” 41 U. Miami L.Rev. 21 (1986). Grey concludes that Ep¬ stein’s endorsement of "nothing less than the constitutional rollback of the welfare state” is a "travesty of constitutional schol¬ arship,” id. at 22, 24. While Grey chal¬ lenges Epstein’s work on numerous fronts, his rejoinder rightly focuses on the fact that Epstein, sub silentio, imputes to the founding fathers a hotly contested and ex¬ ceedingly dubious economically-oriented view of the Constitution. "When the ver¬ biage about rigor and natural rights is stripped away, Epstein’s core position is that 'private property’ means that set of rules governing resource distribution and allocation that will produce the greatest good for the greatest number.” Id. at 45. It is because the effective ban on interven¬ tionist legislation that Epstein endorses lit-

MODEL

§ 9-7

OF SETTLED

607

EXPECTATIONS

"injury” involved nothing more than being forced to cease a practice that the individual should have realized was unacceptable.7 In the second category, however, the argument against compensation is less substantive than procedural: the losses should remain uncompensated because it would cost more to administer a compensation system for cases like yours than it would be worth, even for you, in the long run.8 Given the nature of the harm inflicted, the identity of the individu¬ als harmed, and the character of the governmental body and process through which the decision to inflict harm was taken, a court may have good reason to suspect the adequacy of each reply to the "why me” question. A reply in terms of intentional redistribution is least accept¬ able when others still more fortunate have been spared.9 A reply in terms of prior notice is least persuasive when no history of accumulat¬ ing disapproval suggests that the individual really should have seen the handwriting on the wall.10 And a reply in terms of long-run gain to all is most suspect when made to someone in a situation of frequent disadvantage or exploitation,11 or when made by an agency with a programmatic goal of its own that is furthered by the injury inflicted.12 § 9-7. The

Problematic

Nature

of Property

While the just compensation clause, as § 9-4, § 9-5, and § 9-6 noted, appears to represent a substantial check on government power, it is possible for government to take a very different tack in defense of its actions. It might say simply: "You can’t complain of any injury at ally since you never had what you claim we have taken away. From the very beginning, your property was subject to the condition that, if and when we thought it wise to do so, we could restrict it as we have or transfer it as we have.” 1 Lest such a claim be dismissed as altogether preposterous, it should be recalled that, in the late 18th century, the erally requires "government [to] leave the weak and helpless to their fate,” id. at 47, that Grey terms Epstein’s vision the "Mal¬ thusian Constitution.” Epstein’s optimisti¬ cally titled rejoinder to the critiques by Grey and others, "A Last Word on Emi¬ nent Domain ” 41 U. Miami L.Rev. 253 (1986), argues that his critics merely chip away at his vision of the eminent domain clause, which he contends remains the only

10. Cf. Michelman, 1235-45.

supra

note 2, at

11. See United States v. Carolene Prod¬ ucts Co., 304 U.S. 144, 152 n. 4 (1938). 12. See Sax, 74 Yale L.J. at 61-67 (sug¬ gesting closer scrutiny of losses inflicted by

7. See, e.g., New York Central R.R. Co. v. White, 243 U.S. 188 (1917) (upholding against due process and equal protection

government in its "enterprise” than in its "arbitral” capacity); accord, Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974) (upholding, but more closely scrutinizing, a city tax on parking receipts of competitors of city-owned parking lots); id. at 379 (Powell, J., concurring); compare §§ 9-10 and 9-11, infra (closer scrutiny of govern¬ ment breach of public contracts than of

challenges workmen’s compensation laws imposing liability on employers without fault).

government impairment of private con¬ tracts). But see Sax, 81 Yale L.J. at 150 n. 5.

"complete 275.

theory” of the clause.

8. See generally Michelman, 2, at 1214-15, 1223-25.

Id. at

supra note

9. On "the equal protection dimensions of compensation law,” see Sax, "Takings and the Police Power,” 74 Yale L.J. 36, 6445 (1964); Sax, "Takings, Private Property and Public Rights,” 81 Yale L.J. 149, 16971 (1971).

1. See, e.g., HFH, Ltd. v. Superior Court, 15 Cal.3d 508, 521, 125 Cal.Rptr. 365, 368, 542 P.2d 237, 247 (1975), cert, denied 425 U.S. 904 (1976) (arguing that § 9-7 know that envi¬ every land investor must ronmental controls might be imposed at any time); Dames & Moore v. Regan, 453

608

MODEL

OF SETTLED

EXPECTATIONS

Ch. 9

feudal common-law

view that all property ultimately belonged to the king still had wide currency and was reflected in republican-communi¬ tarian notions of property; nothing less could explain the absence of just compensation clauses from most post-revolutionary state constitu¬ tions, or the absence from the 1787 Constitution of a just compensation clause limiting state action: even though the Constitution contained a clause barring state contract impairments and one barring federal takings without just compensation, pensated state takings .2

it contained none barring uncom¬

But a very different "liberal” tradition, one traceable through Madison’s 10th Federalist,3 co-existed with that republican heritage,4 was ascendant in the Lochner era, and remains present, if not intact, in the post-1937 period. To the degree that private property is to be respected in the face of republican and positivist visions, it becomes necessary to resist even an explicit government proclamation that all property acquired in the jurisdiction is held subject to government’s limitless power to do with it what government wishes. Indeed, govern¬ ment must be denied the power to give binding force to so sweeping an announcement, whether explicit or implicit, if we are to give content to the just compensation clause as a real constraint on federal power and, through the fourteenth amendment, on state and local power. But this shows that the expectations protected by the clause must have their source outside positive law. Grounded in custom or necessity, these expectations achieve protected status not because the state has deigned to accord them protection, but because constitutional norms entitle them to protection.5 These norms, however, cannot be expressed entirely within the language of expectations; that path is a circular one inasmuch as expectations are themselves subject to governmental manipulation. Instead, the norms must reflect a mix of several concerns — including regularity , which we consider in Chapter 10; autonomy , which we consider in Chapters 11 through 15; and equality , which we consider in Chapter

16.® Without

appeal to such concerns, we

U.S. 654, 674 n. 4 (1981) (holding no taking existed when U.S. nullified attachments of Iranian assets because petitioner’s attach¬ ments were "revokable” and "contingent”). 2. See Treanor, "The Origins and Origi¬ nal Significance of the Just Compensation Clause of the Fifth Amendment,” 94 Yale L.J. 694, 695-701 (1985). The absence of such clauses in large part reflected a strong faith that legislatures would govern wisely and not abuse their discretion. See id. at 701: " ’All property,’ Thomas Paine asserted, ’is safe under their [the people’s] ” protection.’ 3. See id. at 708-13. While Madison "did not believe property was a natural right,” he did contend that "its protection was of critical importance” because ”[t]he diversity of interests that possession of property occasioned prevented tyranny, and the acquisition of property was a nec¬

are defenseless

essary by-product of the freedom of action he deemed Id. at 710. an essential part of liberty.” 4. See M. Horwitz, Keynote Address to American Society of Legal Historians, 16th Annual Meeting (Toronto, Oct. 25, 1986), at 9 (describing tension between "the liberal ideal of a neutral, night-watchman state of Madison’s Tenth Federalist” and more re¬ publican visions of government). 5. For a discussion of the need for lim¬ its to legal positivism, particularly as man¬ ifested in the apparently short-lived "enti¬ tlement doctrine,” see generally Flax, "Liberty, Property, and the Burger Court: The Entitlement Doctrine in Transition,” 60 Tulane L.Rev. 889 (1986). 6. See generally Radin, "Property and 'Personhood,’ ” 34 Stan.L.Rev. 957 (1982); Michelman,

"Property as a Constitutional

MODEL

OF SETTLED

EXPECTATIONS

§ 9-7 against the alluring but fatal argument

that gives, government

609

that, since it is government

is free to take as well.7

The Court’s conception of property in its takings analysis, however, has often rested too heavily on whether a given stick in a bundle of property rights resembles the Justices’ collective hunch as to what "traditional” property is all about. Supreme Court Justices apparently believe they know a taking when they see one.8 They seem at times to find the constitutional test transparent, and their duty simple: "to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether

the latter squares with the for¬

mer.” 9 What this mechanical notion of judicial review obscures is the fact that the Constitution does not in truth provide us with a template for property, and the Court’s decisions in recent years suggest that it is once again sanctifying the common law as constitutional principle in the guise of drawing on common sense.

The Court’s deference to common-law conceptions of property was well illustrated by the 1980 case of Webb’s Fabulous Pharmacies , Inc. v. Beckwith ,10 in which the Court unanimously struck down a state’s attempt to define as public property the interest earned on a private fund which had been deposited with a state court in the course of an interpleader proceeding. Webb’s was in dire financial straits, and another pharmacy chain, Eckerd’s, agreed to buy its assets. In compli¬ ance with Florida law, Eckerd’s tendered the purchase price to a state court and interpleaded Webb’s and some 200 of its creditors. The clerk of the court deposited the purchase fund in an interest-bearing account and deducted a statutorily determined sum as a fee for services ren¬ dered.11 The fund was ultimately paid to a court-appointed receiver, but the clerk retained nearly $100,000 in interest on the authority of § 28.33 of the Florida Laws, which declared that "[ijnterest accruing from moneys deposited shall be deemed income of the office of the clerk.” 12 In a unanimous

opinion, the Supreme

Court disagreed, declaring

that the "usual and general rule” is that the interest follows the principal.13 The interest was not retained as a fee, for a statutory fee had already been deducted. The interest therefore belonged to Webb’s creditors as an "incident of ownership” of the principal.14 The Florida Supreme Court had held that, because there was no requirement that funds deposited in the court’s registry be invested, and because the very statute which directed investment also declared that the interest Right,” 38 Wash. Reich, "The New 733 (1964).

& L.L.Rev. 1097 (1981); Property,” 73 Yale L.J.

7. The effom to ground a defense in what

Professor Thomas

Tribe, Constitutional Choices 169, 171-74 (1985). 9. United States v. Butler, 297 U.S. 1, 62 (1936).

Grey aptly calls

"The Malthusian Constitution,” see 41 U. Miami L.Rev. 21 (1986) (reviewing R. Ep¬ stein, Takings (1985) ), does not merit close attention here in light of the overwhelm¬ ing flaws exposed by Grey. See § 9-6, note 6, supra. 8. See B. A. Ackerman, Private Proper¬ ty and the Constitution 88-167 (1977); L.

10. 449 U.S. 155 (1980). 11. Id. at 157. 12. Id. at 156 n. 1. 13. Id. at 162 (citations omitted). 14. Id. at 164.

610

MODEL

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EXPECTATIONS

Ch. 9

earned thereby was public property, the state took only what it had itself created.15 The Supreme Court conceded that, since the Constitu¬ tion itself creates no property rights, property is essentially what the state says it is,16 yet rejected Florida’s "bitter-sweet” argument nonethe¬ less.17 The Court unanimously rejected the only applicable positive law in favor of its own neo-Lockean notion of property, and declared that "a State, by ipse dixit , may not transform private property into public property without compensation.” 18 Justice Blackmun, writing for the Court, tried to restrict the holding by saying that the same result would not necessarily obtain if the expropriated interest were the only service charge levied by the

as long a time as possible.20 Despite the Court’s precatory reservations, it seems doubtful that the mere act of calling the confiscation of interest a service charge would enable the state to oust the traditional notion of property to which the Justices subscribe. The state may not carve up property interests in such a way as to purloin sticks from the property owner’s Hohfeldian bundle. Just as the ownership of a chicken farm includes the right to a tranquil sky overhead,21 and the property interest in a sofa includes the right to a hearing before .

3

state.19 Yet he simultaneously pointed out that such a "charge” would give the state a dangerous incentive to retain the interpleader fund for

prejudgment replevin by the creditor,22 so the bundle of property rights in a fund temporarily deposited with a court evidently includes the right to the interest which it earns, no matter how the state legislature may characterize the principal. However, not every stick in a bundle of property rights is entitled to the unwavering judicial protection accorded the accrued interest in Webb's. Some sticks are problematic. If a particular property interest is highly speculative or evanescent, it is harder for a court to judge whether what one is given in exchange for its expropriation is sufficient compensation. The less traditional the property, the less likely the Court has been to find that there has been an uncompensated taking. In Duke Power Co. v. Carolina Environmental Study Group ,23 the property alleged to have been taken was so intangible as to be all but invisible — and was untraditional. The respondents there challenged the federal Price-Anderson Act, which limited to $560 million the right to recover for injuries from an accident at a nuclear power plant. The 15. Id. at 163. 16. Id. at 161. The Court quoted Board of Regents v. Roth, 408 U.S. 564, 577 (1972). 17. See § 9-5, supra, at note 19; § 1012, infra. 18. 449 U.S. at 164. 19. Id. at 164-65. 20. Id. at 162. 21. See United States v. Causby, 328 U.S. 256 (1946), cited by the Court in Webb’s, 449 U.S. at 165. 22. See Fuentes v. Shevin, 407 U.S. 67 (1972) (notice and hearing required before

prejudgment replevin by creditor of house¬ hold goods sold to debtor on conditional sales contract, despite pre-existence of state law allowing for ex parte prejudg¬ ment replevin). See also North Georgia Finishing, Inc., v. Di-Chem, Inc., 419 U.S. 601 (1975) (probable cause hearing re¬ quired before garnishment of corporate bank account, despite contract between creditor and garnishee corporation that, if construed in light of pre-existing state law, conditioned corporation’s property interest in the bank account upon relinquishment of any right to demand such a hearing).

438U

MODEL

OF SETTLED

EXPECTATIONS

611

§ 9-7 case presented interesting questions of standing and ripeness 24 which the Court resolved in favor of respondents, in all likelihood because it

seemed important to reach the merits.25 On the merits, the Court found no taking where respondents lost a right to an uncertain recov¬ ery, in the "exceedingly remote” event of a nuclear accident, from utility companies with private insurers, and gained instead a guarantee of compensation which, although limited, would be given on a strict liability basis and would be distributed equally among the claimants, without a "race to the courthouse.” 26 The Court also rejected the respondents’ claim to a right under the due process clause to be free of nuclear power or to "take advantage of the state of uncertainty which inhibited the private development of nuclear power.” 27 The argument was that private insurance compa¬ nies would not have insured nuclear power plants for any amount approaching the estimated liability for a major nuclear mishap, and without such insurance private utility companies would probably not have built the reactors. The Price-Anderson Act was therefore alleged to be a deliberate decision to expose some people to the risk of nuclear meltdowns and other catastrophes because Congress thought nuclear power development was in the public interest. For government to deny full compensation to the potential victims would surely sacrifice the few to the many or even, if one thinks the primary beneficiaries of nuclear power plants are the utility companies which lobbied for the PriceAnderson Act,28 to a different, more influential, few. An apparently minor point in the majority opinion would now seem to be crucial. The Court repeatedly placed emphasis on the fact that Congress had expressly committed itself to take whatever further emergency action would be necessary to aid victims of a nuclear accident should the insurance fund prove insufficient.29 Yet the consti¬ tutionality of the Price-Anderson Act cannot possibly turn on a congres¬ sional promise to "make everything all right” in the event of a nuclear disaster, for such a pledge would not be binding on a subsequent Congress. Citizens have no more of a vested property interest in statutorily promised government benefits 30 than they do in any rule of the common law,31 and the congressional pledge of future legislative appropriations in the Price-Anderson Act is obviously even less depend¬ able than are the more traditional entitlement programs. No future victim could possibly enforce that pledge in court. Thus Duke

Power

can only be understood

as a judgment

by the

Court that the "property” of which plaintiffs claimed to have been deprived simply did not look like anything the Court was prepared to call property; it was far too problematic. The China Syndrome and 24. See §§ 3-10, 3-19, supra. 25. 438 U.S. at 103 (Stevens, J., concur¬ ring).

30. See Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980), discussed in Chapter 16, infra. 31. Duke

26. Id. at 85-86. 27. Id. at 88 n. 33. 28. Id. at 64. 29. Id. at 86-87 n. 39, 90-91, 93.

Power, 438 U.S. at 88 n. 32;

see also Second Employers’ Liability Cases, 223 U.S. 1, 50 (1912).

612

MODEL

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EXPECTATIONS

Ch. 9

other nuclear accidents were considered unlikely in the extreme. Full recovery in the event of disaster would be highly uncertain given state tort law and the limited financial resources of the utilities and their insurers. And, even if full recovery for an accident were achieved, the worst-case, Nagasaki scenarios were so horrific as to make any damage award inadequate. In exchange for this extremely contingent and evanescent "property” interest, the plaintiffs received strict-liability recovery out of an established fund as well as the benefits of nuclear power which Congress found so compelling. The Supreme Court decid¬ ed that the deal was fair enough; there was no taking. The Court came to a similar conclusion in the Iranian claims case, Dames & Moore v. Regan P In response to the seizure of the American embassy and the taking of hostages in Iran, President Carter, pursuant to his authority under the International Emergency Economic Powers Act (IEEPA), froze all Iranian assets within the jurisdiction of the United States. Prejudgment attachments against such assets were conditionally authorized, but the President barred entry of any final decree. As part of the agreement which ended the hostage crisis, the President revoked the conditional licenses to attach, nullified the at¬ tachments, and ordered that all Iranian assets be transferred to the Federal Reserve Bank of New York for return to Iran. Creditors with enforceable contract rights lost the ability to satisfy their claims against Iran out of the previously frozen assets. Their only recourse was to arbitration in a special international claims tribunal which possessed a limited capacity to satisfy the enormous claims of creditors, because it held only $1 billion and a pledge — of dubious value — of future payments by Iran. Thus the settlement sacrificed the financial interests of a narrow class of American creditors and forced them to bear the entire burden The Supreme answered

of obtaining the release of the hostages.

Court took a narrow

view of the takings issue and

only the formal question of whether

the government

de¬

stroyed the creditors’ property interest (liens) by nullifying the attach¬ ments of Iranian assets obtained pursuant to the President’s condition¬ al licenses.33 The Court, in an opinion by Justice Rehnquist, held that because the "petitioner’s attachments [were] 'revocable,’ 'contingent,’ and 'in every sense subordinate to the President’s power under the IEEPA,’ . . . petitioner did not acquire any 'property’ interest in its attachments of the sort that would support a constitutional claim for compensation.” 34 The IEEPA made it clear that businesses conducting trade with foreign countries should not rely on the availability of foreign-owned assets in the United States, because in times of trouble those assets would become bargaining chips in a game of diplomatic poker.35 And without access to unconditional attachments, creditors had unenforceable and essentially worthless claims. The settlement, then, deprived creditors only of the right to sue the Ayatollah, who was unlikely — to put it mildly — to pay his debts to the financial minions of 32. 453 U.S. 654 (1981).

33. See A. Brownstein, 'The Takings Clause and the Iranian Claims Settle¬ ment,” 29 U.C.L.A.Rev. 984, 991-92 (1982).

34. 453 U.S. at 674 n. 6.

35. See Brownstein, supra, at 1069.

§ 9-8

MODEL

OF SETTLED

EXPECTATIONS

613

'The Great Satan.” Balanced against the loss of this problematic right of action was the provision of a crack at the $1 billion fund held by the international claims tribunal, and the opportunity to sue the federal government under the Tucker Act on the ground that the suspension of claims against Iran may constitute a taking.36 Given the uncertainties of foreign policy and the evanescent character of foreign assets, Iran’s creditors got about what they should have expected. The Court’s holding in Dames & Moore — that there was no taking — seems consistent with the broad contours of doctrine under the takings clause: unless the clause is to become a mandate for shackling govern¬ ment to the model of a minimal, night-watchman state, only a highly restricted set of fairly traditional, focused expectations will be protected by the just compensation requirement. § 9-8. Early Applications

of the Contract

Impairment

Clause

Article I, § 10 commands that "No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . . ” 1 Responding to state debtor relief laws enacted to combat the economic depression that preceded the adoption of the Constitution,2 the clause was included primarily to protect private contracts from improvident majoritarian impairment.3 Its first application nonetheless came in the somewhat surprising context of public land grants: In Fletcher v. Peck,4 the 36. The majority concluded that, unlike the attachment issue, the question whether the suspension of claims against Iran con¬ stituted a taking was not ripe for review, but opined that the Court of Claims would have jurisdiction to consider such a suit. 453 U.S. at 688-89 n. 14. See § 4-8, supra.

§ 9-8

(i re an con nc f d s e am ludi burt endunl the justitucto e t o icmope sat ndm nclga no,t tao ijkue f ounranl¬ dg ion ent use t m See Tid s Oil, Co. v. Fl en 263 U.S 4s4.4 a ) . al t n (19 Al no expagan cson t l s 2 , la 4). sihmoug pro icit the staintu of ng h tio t c i e t l u ityna th co ag ag arl fed cts leg nt e ai y l e isl era ra n s a l catm t fif du pr ctliao wa oncth th end to hav e ess oces tuhnse,e sa s ou me m s e e e eff Sgeht ntL’y v. Un ntia Sta 29e2 e it lly snch e ed co tes, U.S ct.571 (19 (in ng 3 . v att to ca4n) goalid warresrsis lif ve at iokn e c e in mpt Butel see Pernnming Ben Guaal s e an uranCor v. R. A. Gr sionnt& Co.efit467 U.rS¬ ty ce p. ay , . 717 733 ).(19 (up aga due pro ¬ , 84) i h imp ret nst Con oldi ces cha o roa gre nlg sits o lle" ction priv ¬ ss’ iab ion f nwgieth ilfi ate for wdir co rtyom mvuelt t m a ” thia-c the plhwadarl and sta pa pan pen ny y si t om tin n,awi onim g nogn ec "s leg ¬ ta on po is Cla omi are "llea¬ tio ndbayr the Due sPerdo ss ds t use o c s sean tho cess im by t n h s a a p ” t s n cl oPse th rchco v U e e . nis erdr e innt au te se 3 y g”2rac U Sta 3 ( held ) 1 3 . 9 5 t . 9 0, S. 4 3 dt thates,a con sta -54 pu 35), o r t t gre po ab a scsl in guote b r ti ond ro ve iaouns n ga r e cogn s in gol nmceoi te for pa al cal tra ym d ntn lin en ¬ g t

vened

the provision of art. I, § 8, cl. 2,

giving Congress "Power ... To borrow money on the credit of the United States,” although the creditor was denied any rem¬ edy absent a showing of actual damages. But cf. Lichter v. United States, 334 U.S. 742 (1948) (upholding War Contracts Rene¬ gotiation Act, which provided for recapture by government of "excess profits” on con¬ tracts made before Act’s passage). Once Congress — by treaty, agreement, or stat¬ ute — has guaranteed an Indian tribe a per¬ manent right of use and occupancy in a given tract of land, Congress may not sub¬ sequently "give [such] lands to others or . . . appropriate them to its own pur¬ poses, without rendering, or assuming an obligation to render, just compensa¬ tion. . . . For that would not be an ex¬ ercise of guardianship, but an act of confis¬ cation.” Shoshone Tribe of Indians v. United States, 299 U.S. 476, 497 (1937); see Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 277-78 (1955). 2. See B. Wright, The Contract Clause of the Constitution 4-6, 15-16, 32-33 (1938). 3. See, e.g., Sir Henry Maine’s remark¬ able suggestion that the clause "is the bul¬ wark of American individualism against democratic impatience and socialistic fan¬ tasy.” Popular Government 247-48 (1885). 4. 10 U.S. (6 Cranch.) 87 (1810). Ac¬ cord, New Jersey v. Wilson, 11 U.S. (7 Cranch.) 164 (1812) (invalidating a New

614

MODEL

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EXPECTATIONS

Ch. 9

Supreme Court, in an opinion by Chief Justice Marshall, held that the contract clause prevented the Georgia legislature from annulling land titles that had previously vested in good faith purchasers from the state’s original grantees.6 Probably the most

famous

decision

under

the clause

was

Dartmouth College v. Woodward ,6 where the Marshall Court held that New Hampshire could not pack the Dartmouth College board of trust¬ ees and alter its faculty so as to change the college into a public institution in violation if its 1769 charter from George III. That protecting contracts with the state was not the inspiration for the impairment clause made no difference; such contracts came within its purview and were thus entitled to its protection.7 Within weeks of its Dartmouth College decision, the Court applied the contract clause to the sort of law the Framers quite clearly did have in mind: New York’s insolvency law, discharging debtors of their obligations upon surrender of their property. In Sturges v. Crowninshield ,8 the Court held the law unconstitutional. But eight years later the Court divided 4-3 in Ogden v. Saunders , holding that such insolven¬ cy laws can be applied without constitutional objection to debts in¬ curred after the laws were enacted.9 Over the bitter dissent of Chief Jersey statute of 1804 repealing a tax ex¬ emption granted certain lands in 1758 by the colonial legislature).

mou sca in Geo pol the leg is¬ ilti lat s atntdal torgiaann g on c ansd: ran ure ul emp t s the gro tthea the leg wh ma o de isl dt und the gra had bee bri ato See gen nts n era bed rs Mag Yaz La and. Pol in llthe w y i oo: rat t i Ne R,ep (19 Th lan cs Geo h e w d rgi 66) ubl a .t d icc ori P e o e o c f n k pregina in veinyt was ehneld and occ’s a e e l d r l d e e pie cbey ysev Ind st tri at d nthte tim u¬of sso er b d e ian e tha co r al See 10 sU.S at 88, 142 n . t 43.t Pla vey F arg hat a 1763 int anc letc u ed iff eb.y thheer Ki Pro had ng of Engl cla a nldan con ma fu tit t t s i le o he ubje d n fir tio ll c mterdi n th the ren Gt in e bes daer i eorgi i i ¬ capse of , tra reby nyin nte a n t. nsf abl g res e See ide. at 102 117 rr 141 The Cout hel , o , t ing -i4 for def id. at r14t2 budt his s2s.u n , e e, tha rulndan did not dis of the dis t tin t ing pos ct e que whe the tri ac k abostio ritgher in the lbaen’s id. naotw 142 le d hts rig n mig inawit mor bar Geo, fro dgec4o3n, d¬ ei i vey ht aln hoiuntt On rgtihaa quem n t . ere t sti ing Mar opi st for the Cou enu on, n nio s r ed ahalclo "Tht majciat¬ n pos . P ’ m . . . iss porf opi thiati the nate oofri the eck om ni t on: t u r i gre e to ybe In tit sewhon is cer d w ic le tai out r ian h b a c u l n o e y l til intlybe legiti urt of spe mata ct ext as to b¬e si,s not suc ing h ef e abs lya¬ d repui to sei in fee on the sin olu ugshe par toefly the stanandt, Id. at 14 Thi 2t t e 4 res set the .”cou of Mar lats 3. ¬ o r shia er olpuiti mor ful setre a r l s i s s¬ l ul’ ati no ing frionns Un e Stya reelss ng it om a evd. Ge tes- 31 U. See Wor (6tioPnest S o I . .) r n ces gia dia ter , n

515, 544, 556-57, 560 (1832); Cherokee Na¬ tion v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831); Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823). On contemporary legal ques¬ tions involving the aboriginal land rights of American Indians, and the allocation of state-federal-tribal rights and powers in re¬ spect to that land, see Oneida Cty., New York v. Oneida Indian Nation, 470 U.S. 226 (1985); Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979); Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974); Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955); Joint Tribal Council of Passamaquoddy Tribes v. Morton, 388 F.Supp. 649 (D.Me.1975), affd 528 F.2d 370 (1st Cir. 1975). See § 16-14, infra. 6. 17 U.S. (4 Wheat.) 518 (1819). See Baxter, Daniel Webster and The Supreme Court (1966).

7. See M. Horwitz, The Transformation of American Law 255 (1977) ("By forging constitutional doctrines under the Con¬ tracts Clause barring retroactive laws and giving constitutional status to Vested rights,’ this line of intellectual develop¬ ment sought basically to limit the ability of the legal system — more specifically, of the legislature — to bring about redistributions of wealth”). 8. 17 U.S. (4 Wheat.) 122 (1819). See also Green v. Biddle, 21 U.S. (8 Wheat.) 1 (1821) (invalidating Kentucky law designed to make it more difficult for landowners to eject good faith squatters). 9. 25 U.S. (12 Wheat.) 213 (1827).

MODEL

OF SETTLED

EXPECTATIONS

615

§ 9-9 Justice Marshall, the majority reasoned that state laws in existence at the time a debt or other contractual obligation was incurred became part of the contract; the subsequent enforcement of such laws thus could not constitute an impairment of the contract’s obligation.10 Re¬ jecting Marshall’s theory that a contractual obligation derives not from the positive law of the place where it is made but from natural law prior to the social compact itself,11 the majority in Ogden paved the way for the potential unravelling of the contract clause in the circularity to which all arguments based entirely upon legislatively grounded expec¬ tation are doomed.12 § 9-9. Invoking ments From

the Contract Clause to Protect Private Agree¬

the beginning, the Court had announced

a distinction be¬

.

tween laws impairing a contract’s obligation and those merely modify¬ ing the remedies provided for its enforcement.1 But by the 1840’s, the validity of remedial changes was already being assessed in terms of their '"reasonableness” rather than in terms of any sharp substanceremedy dichotomy.2 Justice Cardozo was putting the matter mildly some ninety years later when he described as "at times obscure” the resulting "dividing line” between remedy and obligation.3 More basic still, it is crucial to recall that the Court had already held in 1827 that a contract incorporates in its terms the positive law of the time and place where it is made.4 Once that is conceded, contract clause doc¬ trine teeters atop the most slippery of slopes. For if a loan is extended in contemplation of the then current rules of insolvency, pursuant to which a debtor may one day claim relief, why is the loan not also extended in contemplation of the "master rule” that the rules them¬ selves may one day change, substantively as well as remedially, in the debtor’s interest? If a contract must be deemed to include, as a term made operative by law, the state’s provision for excusing one of the parties, why not also the state’s provision for changing such provisions pursuant to future legislation? Why, in short, did Ogden not in effect overrule Sturges ? This line of thought found its way into the leading modern case on contract impairment, Home Building & Loan Ass’n v. Blaisdell ,5 where the Supreme Court upheld the Minnesota Mortgage Moratorium Law of 1933. Enacted during the depression, that law authorized state courts, for the duration of the economic emergency declared to exist by the state legislature, to extend the period of redemption from mortgage foreclosure sales "for such additional time as the [appropriate county] 10. Justices Story and Duvall joined the Chief Justice in dissent. It was Marshall’s only recorded failure, in thirty-four years as Chief Justice, to command a majority for his constitutional views. 11. See 25 U.S. at 332, 337, 342-48.

12

2,

limiting mortgagee’s rights on foreclosure). 3. Worthen Co. v. Kavanaugh, 295 U.S. 56, 60 (1935). 4. See Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 257-62 (1827), discussed in § 9-8, supra.

12. See § 9-6, supra.

(4 Wh ea t. )

2. See, e.g., Bronson v. Kinzie, 42 U.S. (1 How.) 311 (1843) (invalidating state law

-9 19 § 9 (1 81 99) 20 . 7 . 290U

616

MODEL

OF SETTLED

EXPECTATIONS

Ch. 9

court may deem just and equitable,” but not beyond May 1, 1935. Each extension was to be made only upon an order requiring the mortgagor to '"pay all or a reasonable part” of the property’s income or rental value. Although the Court stressed the remedial and limited character of the measure and the urgency of the crisis it was designed to meet, the crux of its opinion in defense of a retroactive mortgage moratorium came in this passage: "Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order . ...” 6 In other words, one of the "rules” that may be read into every contract at its inception is the rule that all other rules are subject to change if and when the legislature reasonably concludes that such change is needed. But because the contract clause was successfully invoked several times in the decade after Blaisdell,7 with the Court finding even some purely remedial changes too "oppressive and unnecessary” to pass forth in Ogden v. Saunders 9 and applied in Home Building & Loan Ass’n v. Blaisdell 10 — the postulate that every private contract is fully

subject to the positive law that predates its formation. Indeed, such contemporary cases as Fuentes v. Shevin ,n although not ordinarily analyzed in these terms, are flatly inconsistent with any such positivist notion. Without articulating the precise sources or contours of the protection it is providing, the Court has thus found in the Constitution a defense for contract-related interests going well beyond the enforce¬ ment of the state’s enacted law.12 To the extent that Model III, the model of settled expectations, is cast exclusively in terms of the expectations that persons in fact entertain in reliance upon legal commitments expressly made by the

sovereign, it is within the sovereign’s power to hedge those com mi t6. Id. at 435.

10. 290 U.S. 398 (1934).

7. See, e.g., Wood v. Lovett, 313 U.S. 362 (1941) (invalidating 1937 state legisla¬ 11. 407 U.S. 67 (1972). See also North ster,8 9 buyers at tive repeal of 1935 law protecting Georgia Finishing, Inc. v. Di-Chem, Inc., state tax sales from state attempts to re¬ it follows 419 U.S. 601 (1975). Both cases are de¬ scind for various Worthen thatirregularities); one cannot scribed in § 9-7, supra, in note 22, and in Co. v. Kavanaugh, 295 U.S. 56 (1935)take (strik¬literally Chapter 10, infra. ing down retroactive change in procedure the basic postulate for enforcing payment of benefit assess¬ set 12. In El Paso v. Simmons, 379 U.S. 497 ments pledged as security for municipal (1965), although the Court upheld state bonds; the destruction of "nearly all the legislation placing a five-year time limit on incidents” making collateral security valu¬ the right of land purchasers to reinstate able was "oppressive and unnecessary”); Worthen Co. v. Thomas, 292 U.S. 426 claims to public lands after forfeiture for nonpayment of interest, it did so by (1934) (invalidating state law that exempt¬ ed life insurance benefits from garnish¬ stressing the non-central character of the ment; despite conceded emergency, law reinstatement right, and the reasonable¬ went too far because it had no time limit ness of the law as a means of restoring and did not confine the exemption to the confidence in state land titles, rather than needs of the particular case); see also Treiby reminding the purchasers that state law at the time of their initial purchase had gle v. ACME Homestead Ass’n, 297 U.S. 189 (1936). included a tacit power to alter the purchas¬ er’s rights after the fact if and when the 8. Worthen Co., 295 U.S. at 62. legislature deemed it wise to do so. El 9. 25 U.S. (12 Wheat.) 213 (1827). Paso is discussed in § 9-10, infra.

§ 9-9

MODEL

OF SETTLED

EXPECTATIONS

617

ments in order to cut the expectations down to any desired size.13 It must be the case, therefore, that the expectations protected by Model III in the years after Blaisdell are of a quite different sort. At stake must be not only what people in fact expect upon examining the body of positive law, but also what they are entitled to expect, positive law to the contrary notwithstanding. One might expect the content of this normative entitlement in the area of private contracts to be essentially coextensive with the reach of substantive due process 14 and equal protection,15 for the contract-protection norm draws centrally on the core principle that respect for each person’s equal worth limits sacri¬ fices, for the greater good, of anyone’s reliance on another’s promise.16 Nevertheless, in the 1984 case of Pension Benefit Guaranty Corp. v. R. A. Gray & Co .,17 the Court seems unanimously to have rejected this view, characterizing the limitations imposed upon Congress by the due process clause as "less searching” than those imposed upon states by the contract clause— -but offering little guidance as to the supposedly distinct contours of the latter constitutional provision.18 13. This power is subject, of course, to the requirement that substantive entitle¬ ments not be procedurally undermined. See Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), discussed in § 10-12, infra. 14. See Chapter 8, supra, and Chapter 15, infra. 15. See Chapter 16, infra. 16. Compare § 9-6, supra. On the proposition that the contract clause is thus superfluous, see Hale, "The Supreme Court and the Contract Clause,” 57 Harv.L.Rev. 852, 890 (1944). But see § 9-10, infra. 17. 467 U.S. 717 (1984). 18. 467 U.S. at 733. At issue in Gray & Co. was a congressional enactment that had the effect of imposing liability on com¬ panies for actions they had taken months before the bill was passed. In 1974, Con¬ gress was concerned about the possibility that private pension plans could terminate without sufficient funds and thereby leave workers and their beneficiaries without sufficient retirement income. Accordingly, it passed the Employee Retirement Income Security Act (ERISA), which, among other things, created a government corporation known as the Pension Benefit Guaranty Corporation (PBGC) to insure covered pen¬ sion plans against termination and thereby protect participating employees from being suddenly stripped of pension protection. Id. at 720-21. Six years later, Congress amended ERISA: the Multi-Employer Pen¬ sion Plan Amendments Act of 1980 re¬ quired employers withdrawing from a mul¬ ti-employer pension plan to pay a fixed debt to the plan. Under the 1980 amend¬ ments, this "withdrawal liability” provi¬ sion applied to actions taken as long as five months before the amendments were Tribe-Amer.Const.Law2nd

Ed. UTB — 16

passed. Id. at 724-25. Accordingly, the PBGC sought to collect about $200,000 from R. A. Gray & Co., a building and construction firm that had withdrawn from its multi-employer pension plan sev¬ eral months before adoption of the 1980 ERISA amendments. Id. at 725. The Supreme Court, in a unanimous opinion written by Justice Brennan, up¬ held the retroactive imposition of such lia¬ bility. It held that only a showing that a legislature had acted in "an arbitrary and irrational way” could imperil otherwise valid economic legislation under the due process clause. In this case, Justice Bren¬ nan wrote, "it was eminently rational for Congress to conclude that the purposes of the [1980 amendments] could be more fully effectuated if its withdrawal liability provi¬ sions were applied retroactively,” id. at 730, particularly because Congress had been concerned by the possibility of a spate of withdrawals prompted by employer con¬ cerns that Congress would, in fact, adopt (as it did) the more onerous burdens it was considering. "Withdrawal occurring dur¬ ing the legislative process not only would have required that remaining employers increase their contributions to existing pension plans, but also could have ulti¬ mately affected the stability of the plans themselves.” Id. at 731. Justice Brennan also dismissed Gray’s contract clause challenge to the imposition of retroactive liability, writing: "We have never held . . . that the principles em¬ bodied in the Fifth Amendment’s Due Pro¬ cess Clause are coextensive with prohibi¬ tions existing against state impairments of pre-existing contracts (citation omitted). Indeed, to the extent that recent decisions of the Court have addressed the issue, we have contrasted the limitations imposed on

618

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Ch. 9

§ 9-10. Invoking the Contract Clause to Protect Public Commit¬ ments Particularly since the clause was not intended primarily to protect public contracts, it is not surprising that it originally provided only a mild limit on government’s power to retract public agreements. Al¬ though the Marshall Court appeared willing to read such agreements with generosity toward their private beneficiaries in the Dartmouth College case,1 little more than a decade had passed before the Court adopted a distinctly more cramped reading.2 Moreover, even when no plausible reading of a public grant or contract could comport with a state’s later decision to exercise its police or eminent domain powers against a corporation or individual, the Court ruled these powers inalienable so that the state could not be bound by any promise to give them up.3 Finally, as Justice Story’s concurring opinion in Dartmouth College had warned,4 the states remained free to reserve in their contracts and even in their constitutions the power to change their states by the Contract Clause with the less searching standards imposed on economic legislation by the Due Process Clauses.” Id. at 733. The same withdrawal liability provisions were unanimously held not to be an uncompensated "taking” in Connolly v. Pension Benefit Guaranty Corp., 106 S.Ct. 1018 (1986). See § 9-2, supra, note 10. In the Term following Gray & Co. the Supreme Court spelled out in somewhat more detail its test for evaluating whether federal economic legislation unconstitu¬ tionally impairs a private contractual right. In National Railroad Passenger Corp. v. Atchison, Topeka & Santa Fe Rail¬ way Co., 470 U.S. 451 (1985), the Court stated that a party complaining of uncon¬ stitutionality has the burden, first, of dem¬ onstrating that the statute alters contrac¬ tual rights or obligations. "If an impairment is found, the reviewing court next determines whether the impairment is of constitutional dimension. If the alter¬ ation of contractual obligations is minimal, the inquiry may end at this stage; if the impairment is substantial, a court must look more closely at the legislation. When the contract is a private one, and when the impairing statute is a federal one, this next inquiry is especially limited, and the judi¬ cial scrutiny quite minimal. The party asserting a Fifth Amendment due process violation must overcome a presumption of constitutionality and 'establish that the legislature has acted in an arbitrary and irrational way.’ ” omitted).

Id. at 472 (citations

§ 9-10

promise that the trustees’ rights were invi¬ olate. The fifth amendment’s due process clause was once believed to bind the feder¬ al government to its agreements to the same degree that the contract clause binds the states. However, in Pension Benefit Guaranty Corp. v. R. A. Gray & Co., 467 U.S. 717 (1984), the Court asserted — with¬ out explanation — that federal contracts are subject to "less searching” scrutiny under the due process clause than are state con¬ tracts under the contract clause. See § 99, supra. 2. See Providence Bank v. Billings, 29 U.S. (4 Pet.) 514 (1830) (refusing to read into a bank’s ambiguous charter an im¬ plied immunity from taxation). Accord, Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420 (1837) (refusing to read into Charles River Bridge Company’s char¬ ter to operate a toll bridge an implied promise by the state not to authorize con¬ struction of the competing free Warren Bridge): "[A]ny ambiguity in the terms of the contract, must operate against the ad¬ venturers, and in favour of the public.” 3. Cases holding that a state cannot bind itself never to take a parcel of proper¬ ty even upon payment of just compensa¬ tion include West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507 (1848) and Penn¬ sylvania Hosp. v. City of Phila., 245 U.S. 20 (1917). To the same effect with respect to promises to refrain from future exercises of the police power to restrict use of property is Stone v. Mississippi, 101 U.S. 814 (1880). But a state can bind itself in perpetuity to exempt a person or organization from taxa¬ tion. See the discussion in Georgia Rail¬ way Co. v. Redwine, 342 U.S. 299 (1952).

. i¬ ed 9) as 81 e pli (1 itme 8 ui 51 q no ld o)u e tc. lud c ea in r Wh te (4 atro ch d S. ela U. yra ro 17 en be , h’s rdveut wa hamo od rt Wo Da ly

4. See (1819).

17 U.S. (4 Wheat.)

518, 692

§ 9-11

MODEL

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619

EXPECTATIONS

minds. Legislatures were therefore liberated to be as openly unreliable as they pleased in their dealings with the people. The catch is that, for a variety of reasons, legislatures may

not

"please” to be all that openly unreliable; they often prefer to decline the invitation extended in 1819 by Justice Story — the invitation to warn all who would deal with them that their word may well prove worthless. For its own purposes, a government may find it convenient, sometimes indeed imperative, to signal its trustworthiness and thus to induce the sort of reliance that it could instead have spurned. When government makes that choice, a powerful argument may be advanced that the most basic purposes of the impairment clause, as well as notions of fairness that transcend the clause itself,5 point to a simple constitutional principle: government must keep its word.6 What this has come to mean since the late 1970s is the subject of the following section. § 9-11. The Resurrection of the Contract Clause The contract clause had remained largely dormant

during the

Lochner era— the due process clause and other constitutional provisions did much of the needed work — and was nearly interred altogether in Home Building & Loan Ass’n v. Blaisdell.1 In the ensuing years, the Court backed away somewhat from its parsimonious reading of the clause, as litigants successfully invoked the clause several times, with the Court finding even some purely remedial changes too "oppressive and unnecessary” to pass constitutional muster.2 The degree to which contracts were impaired was an important factor in evaluating chal¬ lenged statutes. Yet while the courts continued to recognize the rule first announced in Pennsylvania Coal Co. v. Mahon 3 that the just compensation clause put a limit on government regulation of property, the parallel shield of the contract clause gradually fell into disuse. The Supreme Court seemed to adopt the view that contract rights had no special constitutional status, and that statutes impairing contractual obligations would generally be upheld on a rationality test if they arguably promoted

the economic

welfare of the general public.4

The protective shield of the contract clause lay practically forgot¬ ten 5 for three decades until the Court dusted it off and put it to use in 5. See, e.g., Raley v. Ohio, 360 U.S. 423 (1959) (state cannot convict citizen for exer¬ cising an option that its agents clearly told him he could lawfully exercise).

Kavanaugh, 295 U.S. 56 (1935) (striking down retroactive change in procedure for enforcing payment of benefit assessments pledged as security for municipal bonds:

6. See, e.g., Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938) (state law of 1933 repealing tenure rights of certain teachers under a 1927 law impaired obligation of contracts).

the destruction of "nearly all the inci¬ dents” making collateral security valuable was "oppressive and unnecessary”).

9-11 see § 9-9, supra. 1. 290 U.S. 398 §(1934);

2. See, e.g., Wood v. Lovett, 313 U.S. 362 (1941) (invalidating 1937 state legisla¬ tive repeal of 1935 law protecting buyers at state tax sales from state attempts to re¬ scind for irregularities); Worthen Co. v.

3. 260 U.S. 393 (1922). The case is dis¬ cussed in § 9-4, supra. 4. See, e.g., East New York Sav. Bank v. Hahn, 326 U.S. 230, 232 (1945); Veix v. Sixth Ward Bldg. & Loan Ass’n, 310 U.S. 32, 38 (1940). 5. Justice Black, the sole dissenter in El Paso v. Simmons, 379 U.S. 497 (1965), where the Court allowed Texas to limit to

620

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EXPECTATIONS

Ch. 9

United States Trust Co. of New York v. New Jersey in 1977.® In a 4-3 decision,7 the Supreme Court held that the contract clause rendered void the retroactive 1974 repeal of a 1962 bi-state statutory covenant which limited the ability of the Port Authority of New York and New Jersey to subsidize rail passenger transportation from revenues and reserves pledged as security for consolidated bonds issued by the port authority. The 1962 covenant had been adopted "with full knowledge” of the concerns that ultimately led to its repudiation; any subsequent changes were found to be "of degree and not of kind.” 8 Moreover, the "purpose of the covenant was to invoke the constitutional protection of the Contract Clause as security against repeal.” 9 If New York and New Jersey could do what they tried to do in 1974, "the Contract Clause would provide no protection at all.” 10 It seems insufficient to reply, as did the dissenters in United States Trust Company , that states will be adequately restrained by political and economic pressures, fearing a loss of credibility from too fast and loose a disregard of their own contract obligations.11 The very exis¬ tence of the contract clause suggests the obvious rejoinder: when the gains from repudiation appear to exceed the losses in credibility, selfinterest may tempt breach instead of fidelity to obligation. Despite the Framers’ evident inattention to the danger that states might be even more tempted to break their own promises than to help private debtors break theirs,12 the Court seems correct in stressing the heightened need for judicial oversight when "the State’s self-interest is at stake,” 13 and hence in adopting "a dual standard of review,” 14 with stricter scrutiny of state (or federal) abrogations of governmental obligations than of legislative interference in the contracts of private parties. The

major modern

expansion

of the contract clause came

the

following year in Allied Structural Steel v. Spannaus.15 The Court there struck down a Minnesota statute designed to protect certain workers’ expectations of receiving pensions.

The law provided that

a five-year period the reinstatement rights of purchasers who bought land from the state and then defaulted on interest pay¬ ments, lamented that the Court had com¬

just compensation is paid,” id. at 19 n. 16, and thus "the States remain free to exer¬ cise their powers of eminent domain to abrogate such contractual rights, upon

pletely ’'balanced away” the limitation on state action imposed by the contract clause. Id. at 517.

payment of just compensation.” Id. at 29 n. 27. It is uncertain, however, whether the proper measure of just compensation in the case of the abrogation of a public con¬ tract is the same as the traditional "fair value” test for eminent domain, or wheth¬ er contractual principles of expectancy also inform the meaning of just compensation in such circumstances.

6. 431 U.S. 1 (1977). 7. Justice

Blackmun

wrote

for the

Court, joined by Chief Justice Burger and Justices Rehnquist and Stevens. Justice Brennan, joined by Justices White and Marshall, dissented. Justices Stewart and Powell took no part. 8. 431 U.S. at 32. 9. Id. at 18. 10. Id. at 26. Had New York and New Jersey paid the bondholders fair value, however, the states’ actions would appar¬ ently have passed constitutional muster. As Justice Blackmun noted, "Contract rights are a form of property and as such may be taken for a public purpose provided

11. Id. at 61-62 (Brennan, J., joined by White and Marshall, JJ., dissenting). 12. See id. at 45 n. 13 (dissenting opin¬ ion). 13. Id. at 26. 14. Id. n. 25. See the parallel sugges¬ tion with respect to just compensation doc¬ trine in § 9-6, supra, at note 8. 15. 438 U.S. 234 (1978).

§ 9-11

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621

EXPECTATIONS

when a company employing at least one hundred workers — of whom at least one was a Minnesota resident — terminated a pension plan or closed a facility in Minnesota, "'pension rights” would vest for all employees who had been with the company for ten years or longer, whatever their contracts or any applicable pension plan might provide. Allied Steel had a pension plan whereby an employee’s rights vested at a time determined by one of several formulae, depending on age at retirement, but generally after much longer than ten years of working for the company. Allied expressly reserved the unilateral right to terminate the plan at any time, and then to distribute among its employees

whatever

assets were in the pension fund.16 Although

the company’s contributions made, the pension plan did contributions or impose any adequately. The employee

to the pension fund were not obligate the company sanctions on it if it failed had a right to a pension

irrevocable once to make specific to fund the plan only if he or she

met the various criteria and "if the company remained in business and elected to continue the pension plan in essentially its existing form.” 17 Justice Stewart, writing for the majority,18 found that the law worked "a severe, permanent and immediate change” 19 in the expecta¬ tions of the parties by "nullifying] express terms of the company’s contractual obligations and imposing] a completely unexpected liability in potentially disabling amounts.” 20 In a literal sense, the statute did not "impair” Allied Steel’s obligations, as the dissent pointed out,21 but increased them.22 But to argue that the contract clause was therefore not implicated at all seems too wooden: after all, the same argument could be made of a law retroactively doubling the rents tenants had agreed to pay landlords for residential dwellings. The Court, while avoiding the words "strict scrutiny,” seems to have applied just such an exacting standard of review to the Minnesota law by invoking the "compelling state interest” and "necessary means” tests.23 The Court also stressed that the legislation in question was retroactive, and in an area not previously regulated by the state, so that the company would not have expected the rules on pension plans to change.24 Thus a decision by Allied Steel to close a plant or terminate a pension plan would have consequences that decision would not have had prior to the law’s enactment: the company required to meet obligations it had not foreseen.

would

be

The first problem with this reasoning is that, although Minnesota had not previously regulated pension plans, it had long regulated workers’ compensation,

of which pension benefits are but a subset.25

16. Id. at 237. 17. Id. at 238 (emphasis added). 18. Justice Brennan dissented, joined by Justices White and Marshall. Justice Blackmun took no part. 19. 438 U.S. at 250. 20. Id. at 247.

23. See, e.g., 438 U.S. at 242, 247 ("Yet there is no showing . . . that this [Act] was necessary to meet an important gener¬ al social problem”) (emphasis added). 24. Cf. § 9-9, supra. But see 438 U.S. at 246, 249-50, 261 n. 8 (Brennan, J., dis¬ senting).

21. Id. at 255, 257-58. 22. Compare 438 U.S. at 244 n. 16 with id. at 257 n. 5.

25. See 438 U.S. at 261 n. 8 (Brennan, J., dissenting).

622

MODEL

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EXPECTATIONS

Ch. 9

Second, the statute added obligations to employment contracts only if a pension plan was terminated or a plant was closed after the effective date of the law.26 This sort of retroactivity — where obligations are added to pre-existing contracts by virtue of post-enactment conduct — is not readily distinguishable from applying minimum wage, maximum hours, and health and safety regulations to a company which previously bought, for instance, a bakery in reliance on there being no such laws. In both cases, the company’s long-settled business plans may be signifi¬ cantly upset even by the prospective application of these unforeseen laws. Yet, in the latter case, such laws are quite routinely upheld. In Usery v. Turner Elkhorn Mining Co.?1 for instance, mine operators never expected to be held financially liable for employee disabilities resulting from black lung disease, especially since the mine workers may have contracted the ailment before its cause was understood and prophylactic measures were known.28 Nevertheless, the Supreme Court upheld a statute imposing such onerous responsibility after only minimal review.29 The Allied Steel decision could eventually be seen as an early signal of a back-door return to the jurisprudence of Lochner , especially given the Court’s exacting economic scrutiny, using "tests” that could easily be turned into engines of destruction for many economic regula¬ tions. As Justice Brennan noted in dissent, "[t]he necessary conse¬ quence of the extreme malleability of these rather vague criteria is to vest judges with broad subjective discretion to protect property inter¬ ests that happen to appeal to them.” 30 More likely, the Allied Steel decision will be confined in the future to a narrow class of cases. One possible limiting principle could be that states must

not regulate

economic affairs that are properly the concern of Congress.31 The Minnesota statute was passed knowing that the Employee Retirement Insurance and Security Act (ERISA) would soon be passed by Congress, and was in effect for only a few months before being explicitly preempt¬ ed by the latter.32 The Court may even have seen Minnesota’s action as an improper burden on interstate commerce, penalizing companies that chose to leave the state.33 If this is the case, Allied Steel could signal merely a narrow departure from past tendencies to allow state legisla¬ tion preserving local employment at some cost to interstate commerce.34 26. 438 U.S. at 248; id. at 254 (Bren¬ nan, J., dissenting). 27. 428 U.S. 1 (1976). 28. Id. at 15-16. 29. Id. at 18-19. 30. 438 U.S. at 261. See id. at 261 n. 8: "The only explanation for the Court’s deci¬ sion is that it subjectively values the inter¬ ests of employers in pension plans more highly than it does the legitimate expecta¬ tion interest of employees.” 31. But the Court denied any such prin¬ ciple at roughly the same time in Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978). And in Malone v. White Motor

Corp., 435 U.S. 497 (1978) (sustaining $19 million assessment against employer ter¬ minating its pension plan pursuant to state law imposing funding charges on such em¬ ployers in order to guarantee to employees with more than ten years’ service full pay¬ ment of their accrued pension benefits), the Court had held that the Minnesota Pension Act was not preempted by any federal law prior to the enactment of ERISA. 32. Allied Structural Steel, 438 U.S. at 248-49 n. 21. 33. Cf. § 6-9, supra. 34. See § 6-12, supra.

§ 9-11

MODEL

OF SETTLED

623

EXPECTATIONS

Indeed, despite the sweeping language of Allied Steel , the Court has made it clear that its manipuiable, born-again contract clause analysis will not be deployed to uphold many claims alleging unconsti¬ tutional impairment of contracts. In Energy Reserves Group (ERG) v. Kansas Power & Light Co. (KPL ),35 the Court unanimously rejected a contract-impairment challenge to a state natural gas regulation.38 ERG and KPL had contracted for the sale of natural gas, and had included within their agreements provisions for redetermining the purchase price in accord with any change in the comprehensive laws which might set a new price ceiling. In the wake of the deregulation of natural gas by the federal government, Congress empowered the state legislatures to engage in further regulation of the intrastate natural gas market. In response to that invitation, Kansas promptly imposed price controls on intrastate gas.37 When ERG sought to redetermine the purchase price in accord with the governmental escalator clause of its contract with KPL, the utility refused on the ground that the new Kansas gas legislation prohibited the activation of such price redetermi¬ nation clauses.38 The Court applied the analysis it had used in United States Trust Co. and Allied Steel but held that there was no violation of the contract clause. The Kansas gas regulations were not special interest legisla¬ tion of the kind struck down in Allied Steel because they affected the entire natural gas industry, and were not aimed at merely one or two firms.39 Moreover, the Kansas

law was an attempt to deal with the

'’important social problem” of protecting consumers from rapidly rising gas prices due to federal deregulation, while the pension legislation in Allied Steel was tailored to affect the retirement benefits of only a small fraction of industrial workers.40 The Court was willing to defer to the legislative determinations of the public interest in Energy Reserves Group since, unlike the situation in United States Trust Co ., the state itself was not a party to any of the contracts affected by its new laws.41 The Court further distinguished Allied Steel on the ground that the businesses there could not have foreseen disruption of their pension agreements since the state had never directly regulated pension plans, whereas Kansas had regulated sales of natural gas for 75 years.42 All contracts for the purchase of natural gas in Kansas were explicitly geared to extensive state and federal regulation, and depriving ERG of windfall profits on its gas could not be said to disrupt its expectations iU since no one in the industry could have anticipated federal deregula¬ -18

tion.43 35. 459 U.S. 400 (1983). 36. Justice Blackmun delivered the opinion of the Court. Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, concurred on the ground that no contract had in fact been impaired; they thus had no occasion to decide wheth¬ er Kansas had a legitimate state purpose. Id. at 421.

37. 38. 39. 40.

459 Id.

.S. at 407. at 408.

Id. at 412 n. 13. Id. at

41.

Id. at

42. 43.

Id. Id.

412

n.

n. 25. 14.

n. 18. 414 417-& at at 415.

624

MODEL

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EXPECTATIONS

Ch. 9

A final sign that Allied Steel may not prove the progenitor of a new Lochner era — an era resting this time on the contract (or perhaps the takings) clause, rather than the due process clause — was the 1983 case of Exxon Corp. v. Eagerton.44 Handed down two years after the resigna¬ tion of Justice Stewart, the author of Allied Steel, Exxon upheld against a contract clause challenge an Alabama law imposing an oil and gas severance tax. The law in question in Exxon was striking in that it imposed harsh and inescapable new burdens on oil producers: it speci¬ fied that producers had to bear the tax burden themselves and flatly forbade them from passing on their new tax burdens directly or indirectly to consumers.45 A unanimous Court, speaking through Jus¬ tice Marshall, held that the severance tax law passed muster because it stated "a generally applicable rule of conduct” not limited to contractu¬ al obligations or remedies.46 In other words, the law covered all producers of oil and gas, whether or not they already were parties to sales contracts containing provisions allowing them to pass along tax increases to consumers. The Court characterized the impact on these pre-existing contracts as purely incidental 47 Exxon seems hard to square with Allied Steel , particularly when one recognizes that the Alabama law upheld in Exxon dealt exclusively with contracts for the sale of oil and gas while the Minnesota law struck down in Allied Steel announced a rule of conduct applicable to firms regardless of whether or not they had pension plans in place. If Allied Steel were followed faithfully, the Alabama law, like the Minne¬ sota statute at issue in Allied Steel , should have been invalidated — as applied to those pre-existing contractual provisions that the new Ala¬ bama law superceded. The Court’s reluctance to strike down the Alabama law may suggest that the narrow construction of the contract clause represented by Energy Reserves , not the broader reading put forth in Allied Steel , is winning the battle for the mind of the Supreme Court.48 44. 462 U.S. 176 (1983). 45. Id. at 178-79. 46. Id. at 191, quoting Allied Steel, 438 U.S. at 249. 47. Id. at 192. 48. For an illuminating analysis of the Court’s recent contract clause jurispru¬ dence, see Baker, "Has the Contract Clause Counter-Revolution Halted? Rhetoric, Rights, and Markets in Constitutional Analysis,” 12 Hastings L.Q. 71, 103-04 (1984) (contrasting "the perfect market and private rights vision” of Allied with the "imperfect market and public interest vi¬ sion” of Energy Reserves, and suggesting that one of these visions "will dominate the constitutional structure on economic regulation for the next generation, and so determine the agenda of American eco¬ nomic life”). The recent case of Keystone Bituminous Coal Ass’n. v. DeBenedictis, 107 S.Ct. 1232 (1987), further suggests that the Court is swinging back towards a nar¬

rower construction of the contract clause limitation than that espoused in Allied Steel. In Keystone, the Court, in an opin¬ ion written for a 5-4 majority by Justice Stevens, rejected takings and contract clause challenges to the Subsidence Act, a Pennsylvania statute limiting coal mining. See § 9-2, supra. The majority conceded that the act "operates as a ’substantial impairment of a contractual relation¬ ship,’ ” id. at 1252 (citations omitted), par¬ ticularly because it removed the contractu¬ al obligations of surface owners of land to waive damages caused them by under¬ ground mining operators. Id. Neverthe¬ less, the Court held that "the impairment of petitioners’ right to enforce the damage waiver is amply justified by the public pur¬ poses served by the Subsidence Act.” Id. at 1253. The Court’s almost casual will¬ ingness in Keystone to let Pennsylvania’s mere pronouncement of a legitimate public purpose vitiate the state’s obligations un¬ der the contract clause would seem to send

§ 9-11

MODEL

OF SETTLED

But the picture is incomplete

625

EXPECTATIONS without

United States Railroad

Retirement Board v. Fritz ,49 which upheld Congress’s ill-informed de¬ struction of statutorily scheduled retirement benefits for a whole class of railroad employees. The Railroad Retirement Act of 1974 phased out ''dual benefits” — railroad pensions plus social security — both pro¬ spectively and, to a degree, retroactively: it cancelled benefits to which many workers had been entitled by statute as of their retirement from the railroad. What

marked

the statute — superficially a garden-variety

effort at cutting costs by eliminating "double-dipping” into the federal coffers — as unique was the curious pattern of deprivation which it wove. The retirees who lost money were not those with fewer years of service to their credit but those who had retired longer ago. Specifical¬ ly, retirees who had left the railroad industry prior to 1974 lost their "vested” benefits unless they had worked on the railroad at least 25 years; retirees who quit in 1974 or later retained these benefits even if they had worked barely 10 years.50 Thus having severed their ties to the railroad the neck, while employees with no more enough to have worked on the railroad 1974, smiled all the way to the bank.

those who had the bad luck of business before 1974 took it in seniority, but who were lucky for one day after January 1,

By a 7-2 vote,51 the Supreme Court held that the law did not constitute a denial of equal protection under the fifth amendment. The majority, in an opinion by Justice Rehnquist, applied minimal scrutiny and asked only for "some reasonable basis” for the legislative formula, which it then proceeded to supply by what Justice Brennan in dissent aptly called tautology.52 The Court assumed purpose from result by concluding that, because the Act divested some retirees but not others, Congress must have intended to do just that.53 Justice Rehnquist’s circular argument comes surprisingly close to saying that Congress may "take from A to give to B” because, if it does so, it is advancing the public purpose of making B better off and A worse off. Justice Stevens concurred in the judgment but was unwilling to accept the majority’s merely "conceivable” or "plausible” rationales for the unequal treat¬ ment meted out by the Railroad Retirement Act.54 Instead, he called for the Justices to put their imaginations to work to find a principle that, even if not the one Congress had in mind, would provide a reasonable and impartial lawmaker

with a basis upon which to distin¬

guish among the classes of retirees. He concluded that since Congress’s mission was to cut costly "windfall benefits,” and since it arguably had a "duty ... to eliminate no more vested benefits than necessary to achieve its fiscal purpose,” the choice of currency of railroad service — as a kind of anti-seniority basis on which to distinguish among retir¬ ees — was "impartial.” 55 the clause back towards the desuetude which it had grown accustomed United States Trust era.

to

in the pre-

49. 449 U.S. 166 (1980). 50. 449 U.S. at 172-73. 51. Justices Brennan sented.

and Marshall dis¬

52. 449 U.S. at 186-87 dissenting).

(Brennan,

J.,

53. 449 U.S. at 176-77. 54. Id. at 180. 55. Id. at 182. One can only wonder what the difference is between this ratio¬ nale and the merely "plausible” explana-

626

MODEL

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Ch. 9

EXPECTATIONS

Justice Brennan’s reply to both the majority and concurring opin¬ ions was an admonition to consider reality. He examined the legisla¬ tive history of the act and agreed with the express findings — never repudiated — of the district court that Fritz and his fellows were short¬ changed by a Congress which had no idea that it was depriving any of these retirees of an earned and promised benefit. The highly complex legislation had been drafted by "representatives of railroad manage¬ ment and labor, whose self-serving interest in bringing about this result destroyed] any basis for attaching weight to their statements.” 56 The group of dispossessed retirees was not represented on the panel which wrote the law nor in the hearings on the law before Congress.57 When the law’s proponents told the congressional committee that no retirees were being frozen out, there was no one there to contradict them. Thus, there was every reason to believe that this law was a craftily engineered accident, not a deliberate legislative approximation of a dividing line, nor a calculated policy decision to gore one person’s ox in order to get a little more for someone else — which some see as the name of the game in the law-making, logrolling process. In fact, this is precisely the sort of "circumstantial evidence” 58 which convinced the Allied Steel Court that what it had before it was impermissible special interest legislation: 59 the selective divestiture of the pension benefits of a particular class of retirees certainly had a suspiciously "narrow focus,” and the desire to save the contents of the pension fund coffers for the benefit of a class of currently employed railroad workers hardly seemed

to address an "important social problem.” 60

Justice Rehnquist’s retort was that the real facts and real reasons behind the law were constitutionally irrelevant, and that Congress’s alleged ignorance of what it was doing was no excuse: unfortunate, improvident, or even semi-conscious legislation is a fact of injured citizen is remitted to the democratic processes Justice Brennan was not satisfied here with mere political yet he had argued in his dissent in United States Trust

life, and the for relief.61 protection — Co. v. New

Jersey that constitutional limits on the state’s power to play fast and loose with bond obligations were unnecessary because government conduct would be "adequately policed by the political processes and the bond marketplace itself.” 62 The difference, one may be forgiven for noticing, seems to be that the victimized bondholder whom the contract tions employed by the majority which Jus¬ tice Stevens derides. 56. Id. at 189 (Brennan, J., dissenting); see id. at 192-93 & n. 9.

do Administrative Committee,” id. at 15051, as "a 'self-help’ program”, id. at 151 n. 17, in the longstanding avocado wars be¬ tween California and Florida. Id. at 15354 n. 19. See Chapter 17, infra.

57. The notion of a due process right to adequate participation in the enactment of

58. See Kansas Power & Light, 459 U.S. at 417-18 n. 25.

legislation affecting one’s economic inter¬ ests is also reflected in the Court’s decision in Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963), where the Court upheld a California avocado regulation against a federal preemption challenge in part because of concern that the federal

59. Allied Structural Steel, 438 U.S. at 247-48 & n. 20.

regulation had not been drafted "by impar¬ tial experts in Washington or even in Flor¬ ida, but rather by the South Florida Avoca¬

62. 431 U.S. 1, 61-62 (1977) (Brennan, J., dissenting, joined by White and Mar¬ shall, JJ.).

60. See Kansas Power & Light, 459 U.S. at 412 n. 13. 61. 449 U.S. at 179 & n. 12.

§ 9-11

MODEL

OF SETTLED

EXPECTATIONS

627

clause protected in United States Trust Co. was a powerful financial institution with $300 million in Port Authority holdings,63 while victims in Fritz — for whom the Constitution was not successfully voked — were retired blue-collar workers. The voting booth and petition are apparently sufficient protection for the interests of

the in¬ the hoi

polloiy but not for the interests of the coupon-clipping financial elite.64 One sobering aspect of the decision in Fritz is that all nine Justices took for granted the unavailability of any claim that Congress had taken property or had abrogated some contract-like expectation in violation of the fifth amendment. Fritz and his cohorts were scheduled to receive certain retirement benefits. They had spent years expecting and planning on that income. Their expectation was written into the statute — and then suddenly repealed. The Court split over the issue of whether the criterion which cut Fritz off was a rational one, but said not a word about the fact that something workers had banked on receiving was almost literally taken out of their pockets. On that issue, the Court, without a single dissenting voice , held: there was no taking of property, "since railroad benefits, like social security benefits, are not contractual and may be altered or even eliminated at any time.” 65 Those who invest their money in government bonds are fully protected, but for those who invest their time and toil in exchange for statutorily promised government pension benefits, "the legislative determination provides all the process that is due.” 66 One evident effect of prevailing doctrines of property and contract is thus to tilt in favor of those with sufficient economic clout to win bilateral contract protection vis-a-vis the government, while providing less protection for those whose only power lies in concerted political action. First, what they manage to win can be legislatively revoked with virtually no judicial review — as Gerhard Fritz has learned; sec¬ ond, their gains may even be judicially cancelled if the laws add obligations to those which the other side assumed by contract — as the former employees of Allied Steel now know. Relaxing the level of judicial scrutiny under the contract clause would reduce this disparity to some degree, but would still leave the weakest groups in our economy least well defended by constitutional law against the kinds of schemes put in place by the railroad management and recent retirees 63. Id. at 62 n. 18. 64. The Court was, however, deferential to the political process in Kansas Power & Light, 459 U.S. at 411-13, where the legis¬ lation had the stated purpose of indirectly protecting consumers against utility price hikes. Id. at 416-17. The direct effect of Kansas Power was nonetheless to benefit one powerful economic interest (the utility companies) ducers).

against another (the gas pro¬

65. 449 U.S. at 174; Flemming v. Nes¬ tor, 363 U.S. 603, 608-11 (1960) (social se¬ curity payments, unlike an annuity, are

to the individual’s contributions through withholding taxes. Other government-cre¬ ated property interests which provide the holder with exclusive rights enforceable against third parties, such as copyrights and patents, may not be legislatively re¬ voked without just compensation. Such rights, unlike welfare or social security benefits, are not mere wagers on the gov¬ ernment’s continued sufferance.

(1 .

2)

98

3

2,

43

42

.

S U.

5

45

., Co

not "accrued property rights”). See also Bowen v. Gilliard, 107 S.Ct. 3008 (1987), discussed in § 9-2, note 11, supra. The

theory seems to be that the termination of these sorts of transfer payments does not disrupt investment-backed expectations, since receipt of them is not directly related

628

MODEL

OF SETTLED

EXPECTATIONS

Ch. 9

in Fritz. Yet this should not seem too surprising. Although constitu¬ tional protections for settled expectations may on occasion help the relatively less well off, the predominant role of such protections is to defend those who have from those who want. That might not be the path of charity, or even of fairness, but these failings are not license simply to ignore the fact that, whatever their "'tilt,” property and contract are part of the Constitution we must expound and, unless it is amended, enforce.

Chapter 10 MODEL IV— THE MODEL OF GOVERNMEN¬ TAL REGULARITY: EX POST FACTO LAWS, BILLS OF ATTAINDER, AND PROCEDURAL DUE PROCESS § 10-1. The Values and Dimensions

of Governmental

Regularity

The ideals of governmental reliability and regularity are related but distinct. Political philosophers have occasionally sought to explain the propositions that "statutes [should] be general" and that "penal laws should not be retroactive" by invoking the need to protect reliance on "legitimate expectations," 1 but a closer analysis suggests that regu¬ larity — with its associated norms of prospectivity, generality, and im¬ partiality — serves both to express and to implement ends quite separate from those of respecting reliance and protecting settled expectations. Although the protection of such expectations amply explains the refus¬ al to permit punishment in the absence of fair warning,2 it cannot account (1) for the persistent if lesser reluctance to punish under a newly-enacted statute even where the actor plainly knew that he was committing a wrong; 3 (2) for the willingness to punish even where the presumption that persons know of pre-existing laws makes no sense whatever 4; or (3) for the insistent view that the norms of prospectivity and generality apply with unique force to criminal punishments, rele¬ gating expectations against purely civil deprivations to sharply reduced protection.5 Moreover, despite early efforts to analogize the bans on ex post facto laws and bills of attainder to the bans on contract impair¬ ments and uncompensated takings,6 there has long been a deep aver¬ sion to the idea that nonconstitutional immunities of some sort "vest" upon a person’s commission of a wrong.7 Values of reliance and repose 5. See Chapter 1. J. Rawls, A §Theory 10-1 (1971).

9, supra;

Hochman,

"The Supreme Court and the Constitution¬ ality Retroactive Legislation,” 73 Harv. L.Rev.of 692 (1962).

of Justice 238

2. 1 W. Blackstone, Commentaries* 46; Lanzetta v. New Jersey, 306 U.S. 451 (1939); Bouie v. Columbia, 378 U.S. 347 (1964); Marks v. United States, 430 U.S.

6. See J. Bishop, Criminal

Procedures

§ 115, at 70 (2d ed. 1872); Crosskey, "The Ex-Post-Facto and the Contracts Clauses in the Federal Convention: A Note on the

188 (1977); Note, 'The Void-for- Vagueness Doctrine in the Supreme Court,” 123 U.Pa. L.Rev. 67, 73-74 (1960).

3. See, e.g., United States v. Bell, 371 F.Supp. 220 (E.D.Tex.1973) (mistaken pros¬ ecution under subsequently enacted crimi¬ nal statute). 4. See, e.g., United States v. Casson, 434 F.2d 415, 422 (D.C.Cir. 1970) (applying stat¬ ute increasing punishment for burglary, signed 8 hours before, but announced si¬ multaneously with, the burglary’s commis¬ sion).

629

Editorial Ingenuity of James Madison,” 31 U.Chi.L.Rev. 248 (1968); Crosskey, "The True Meaning of the Constitutional Prohi¬ bition of Ex-Post-Facto Laws,” 14 U.Chi.L. Rev. 539 (1947); Field, "Ex Post Facto in the Constitution,” 20 Mich. L.Rev. 315 (1922). 7. See, e.g., State v. Arlin, 39 N.H. 179, 181 (1859); Smith, "Retroactive Laws and Vested Rights,” 5 Tex.L.Rev. 231 (1927); 6 Tex.L.Rev. 409 (1928).

630

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

fit comfortably the paradigm of conduct that the society wishes (or once wished) to encourage, but such values are distinctly less well suited to the paradigm of action that all admit should never have taken place. For these reasons, understanding is advanced by attempting to disentangle the model of governmental regularity (Model IV) from the model of settled expectations (Model III), remembering their frequent overlap in constitutional history and decisional law, but seeking none¬ theless to identify as clearly as possible the elements distinctive to each. Chapter 9 accordingly explored the expectations model; this Chapter will explore the model of regularity. To isolate the virtues of regularity, it is helpful to note at the outset the pervasive and recurring equation between the irregular and the oppressive. It is probably true that "the most significant feature of small town politics is the frequency with which legal and procedural requirements are overlooked and ignored. . . . [so as] to take account of unique conditions;” such "[personalized government” even at the local level can be as offensive as it may be intimate and effective 8 — and at the more remote level of relations with federal, state, and other relatively distant bureaucracies and institutions, personalization in government, at least when not sought by the individual, most often seems the antithesis of respect for personal integrity and autonomy. Hence the emphasis upon "a government of laws, and not of men” as the "very essence of civil liberty,” 9 and the persistent war, throughout the history of liberal thought, against capricious subjugation to the whim of the sovereign. "[T]he very idea that one may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another” has been thought "intolerable in any country where freedom prevails, as being the essence of slavery itself.” 10 The classic statement in the Supreme Court’s jurisprudence was that in Hurtado v. California : 11 "Law is something more than mere will exerted as an act of power. It must not be a special rule for a particular person or a particular case, but . . . The general law . . . ’ so that 'every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society,’ and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation . . . and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or an imper¬ sonal multitude.” It is to this vision that we owe the constitutional doctrines "assur¬ ing that the fundamental policy choices underlying any exercise of state power are explicitly articulated by some responsible organ of 8. Wood, Suburbia

278-80 (1958).

9. Marbury v. Madison, Cranch.) 137, 163 (1803).

5 U.S. (1

16. Yiek Wo v. Hopkins, 118 U.S. 356, 370 (1886). See J. Locke, Two Treatises of

Government ed. 1960).

§§ 22-23, at 324-25 (Laslett

11. 110 U.S. 516, 535-36 (1884).

MODEL

§ 10-1

OF GOVERNMENTAL

REGULARITY

631

government.” 12 Such articulation begins with general lawmaking processes accountable to the electorate and ends with specific lawenforcement processes answerable to the individuals on whom the law operates; the model of regularity touches both ends of this spectrum. Now

it must

be stressed that this conception of governmental

power and of its relation to personal autonomy, however ill-suited to life in a truly organic community where solidarity and even love have replaced formal rules and procedures, need not regard government as some sort of "neutral guardian of the social order.” 13 Although the rise of the welfare state leads in familiar ways to a disintegration of purely formal ideals of law and justice,14 it does not follow that ancient concerns about power and its abuse can no longer be usefully advanced, at least in part, through norms of regularity. For such norms reduce the helplessness of individuals and groups by limiting their dependence on distant and inaccessible centers of implacable authority. The model of governmental regularity has classically expressed these aspirations by requiring that the most focused deprivations of individual interests in life, liberty, or property be accompanied by a panoply of procedural safeguards, and that the most general "policy decisions ... be made not by . . . appointed officials] but by [bodies] immediately responsible to the people.” 15 But the proliferation and combination of government functions, in institutions increasingly diffi¬ cult to characterize in terms of the three traditional branches of government, require that we seek a doctrinal formulation less depen¬ dent on how various entities are classified or how particular functions are assigned to specific institutions. Such a formulation is available: It requires only that a normative distinction be drawn between those processes of choice which have such wide public ramifications that adversely affected individuals need not participate personally, and those choice processes which so focus upon particular persons that their personal participation must be assured. Whenever

government

excludes affected persons from participating

in a choice, government in effect opts for the first type of decision¬ making process. Whether the choice is made by a legislature, an administrative agency, or a court, it must thus be limited in its impact upon specific persons so that their interests in life, liberty, and property are neither (1) immediately affected by it (as through a decree directly subjecting those persons to incarceration or dispossession) without their personal participation, nor (2) adversely affected, without such personal participation, by a delayed impact that they are powerless to avoid by lawful means (as through a law expressly restricting the liberty of a specific set of persons to engage in a lawful occupation). The first limitation can be accomplished only by forcing the govern¬ ment to adopt a trial-like decision-making process when it acts directly 12. McGautha v. California, 402 U.S. 14. Id. at 192-216. 183, 265 (1971) (Brennan, J., dissenting). 15 Arizona v. California, 373 U.S. 546, See Chapter 17, infra. 626 (1963) (Harlan, J., dissenting). 13. R. Unger, Law 193 (1976).

in Modern

Society

MODEL

632 upon

OF GOVERNMENTAL

REGULARITY

Ch. 10

particular individuals — i.e., by requiring procedural safeguards

("procedural due process”) ensuring personal participation by individu¬ ally and immediately affected persons. The second limitation can be accomplished only by insisting that, even when government acts in less personally focused ways, it may not apply its criminal prohibitions to persons who violated those prohibitions before they were promulgated; and by demanding that prohibitions be directed not at fixed groups of individuals but at whoever happens to transgress a generally applicable norm. § 10-2. The Ban on Ex Prospectivity

Post

Facto

Laws:

Article I of the Constitution forbids enactment

The

Safeguard

of

of ex post facto laws

by Congress 1 or by any state; 2 although the ex post facto prohibition applies of its own force only to legislative acts 3 rather than to judicial decisions,4 unforeseeable judicial enlargements of criminal statutes have been struck down as violative of due process when applied retroac¬ tively.5 The first Supreme Court discussion of the ex post facto prohibi¬ tion came in Colder v. Bull.6 In his separate opinion in that case, Justice Chase opined that no people would with "reason and justice” entrust government with power to pass ex post facto laws, so Congress and the states would be powerless to do so even if not expressly forbidden by the Constitution.7 The ex post facto clauses were added "for greater caution” 8 by the Framers, who recalled the excesses of Parliament and of the colonial governments, motivated by ambition, personal resentment, proscribed: 10

or vindictive malice.9 Accordingly, the clauses

"1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punish¬ ment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony than the law required at the time of the commission of the offence, in order to convict the offender.” 6. 3 U.S. (3 Dali.) 386 (1798). 1. Art. I, § 9, cl. 3.

§ 10-2

2. Art. I, § 10, cl. 1. 3. Including, of course, constitutional changes. See Kring v. Missouri, 107 U.S. 221 (1883). 4. Frank v. Magnum, 237 U.S. 309, 344 (1915); Ross v. Oregon, 227 U.S. 150, 161 (1913). 5. See Bouie v. Columbia, 378 U.S. 347, 353-54 (1964); Rabe v. Washington, 405 U.S. 313 (1972) (per curiam); Marks v. United States, 430 U.S. 188, 191-7 (1977). Cf. Splawn v. California, 431 U.S. 595, 601 (1977).

7. Id. at 388-89. See also W. Wade, A Treatise on the Operation and Construc¬ tion of Retroactive Laws § 270, at 315 (1880); cf. Art. 11 of the Universal Decl. of Human Rts., G.A. Res. 217 (III), Art. 11, 52, 3 U.N.GAOR, pt. I, at 73, U.N.Doc. A/810 (1948). 8. 3 U.S. (3 Dali.) at 390. 9. See 2 M. Farrand, The Records of the Federal Convention of 1787, at 375-76 (1937); The Federalist No. 44, at 351 (J. Hamilton ed. 1868) (J. Madison). 10. 3 U.S. (3 Dali.) at 390.

§ 10-2

MODEL

OF GOVERNMENTAL

The Court concluded

REGULARITY

633

in Calder v . Bull that a resolution of the

Connecticut legislature which set aside a decree of a probate court, and which granted a new hearing on the construction of a will after the right of appeal to the ordinary court had expired, was not a forbidden ex post facto law. Although Justice Chase argued that no right to property had vested in Calder and his wife by reason of the probate court decree, and thus that no vested right was disturbed by the resolution,11 he also suggested that "[t]he restraint against making any ex post facto laws was not considered, by the framers of the constitu¬ tion, as extending to prohibit the depriving a citizen even of vested rights to property; or the provision 'that private property should not be taken for public use without just compensation’ was unnecessary.” 12 While the opinion of Justice Chase left open the question whether the retrospective imposition by the legislature of civil disabilities might ever come within the scope of the ex post facto clauses, the separate concurring opinions of Justices Paterson and Iredell sought to dispose of this issue as well. Justice Paterson looked to the three personal guarantees of article I, § 10 — the attainder ban, the ex post facto ban, and the ban on contract impairments — and suggested that the presence of the latter established "that the framers of the constitution . . . understood and used the words [ex post facto law] in their known and appropriate signification, as referring to crimes, pains and penalties, and no further.” 13 Justice Iredell looked not to the structure of the constitutional restraints on legislation, but rather to the purposes, and concluded that . . the act or resolution of the legislature of Con¬ necticut, cannot be regarded as an ex post facto law; for the true construction of the prohibition extends to criminal, not to civil cases. It is only in criminal cases, indeed, in which the danger to be guarded against, is greatly to be apprehended. The history of every country in Europe will furnish flagrant instances of tyranny exercised under the pretext of penal dispensations. . . . . . . The policy, the reason and humanity of the prohibition, do not, I repeat, extend to civil cases, to cases that merely affect the private property of citizens. Some of the most necessary and important acts of legislation are, on the contrary, founded upon the principle, that private rights must yield to public exigencies.” 14 In Calder v. Bull , then, the Court took a fairly restricted view of the scope of the ex post facto clauses, concluding for various reasons that they did not reach the challenged deprivation of property. It soon became clear, however, that the scope of the clauses was far from settled. The

next important

discussion of the matter

appears in Chief

Justice Marshall’s opinion for the Court in Fletcher v. Peck,16 involving an act of the Georgia legislature which purported to annul, as tainted by bribery, a huge land grant by the previous legislature. While the 11. Id. at 394.

12. Id. 13. Id. at 397 (concurring opinion of Paterson, J.).

14. Id. at 399-400

(concurring opinion

of Iredell, J.). 15. 10 U.S. (6 Cranch.) 87 (1810).

MODEL

634

OF GOVERNMENTAL

REGULARITY

Court concluded that the purported annulment "either by or by the Marshall’s case is of before in

Ch. 10

was rendered invalid

general principles which are common to our free institutions, particular provisions” 16 of the Constitution, Chief Justice application of the prohibition of ex post facto laws to the particular interest in light of the decision but twelve years Calder v. Bull. The Chief Justice reasoned: 17

"An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties on the person or may inflict pecuniary penalties which swell the public treasury. The legislature is then prohibited from passing a law by which a man’s estate, or any part of it, shall be seized for a crime which was not declared, by some previous law, to render him liable to that punishment .... This rescinding act would have the effect of an ex post facto law. It forfeits the estate of Fletcher for a crime not committed by himself, but by those from whom he purchased. This cannot be effected in the form of an ex post facto law, or a bill of attainder; why then is it allowable in the form of a law annulling the original grant?” Marshall’s use of the ex post facto clause in analyzing the Georgia statute implicitly repudiated the sug¬ gestions of Justices Chase and Paterson in Calder v. Bull that the three key restraints imposed on the legislative process by article I, § 10 must serve distinct purposes, and substituted the suggestion that the re¬ straints were complementary and could thus overlap. Moreover, Chief Justice Marshall’s opinion implied that a legislative enactment could violate the ex post facto clause even though no evidence of punitive intent was attributable to the legislature; the challenged Georgia statute was not adopted to punish Fletcher or, to borrow the imagery of Justice Iredell in Calder v. Bull , as a flagrant instance of tyranny. It declared no action criminal, but Marshall nonetheless thought it forbid¬ den by the ex post facto clause. Despite Justice Marshall’s opinion in Fletcher v. Peck , the Supreme Court had, by 1855, once again embraced the view that the ex post facto clauses reached only criminal penalties. In Carpenter v. Penn¬ sylvania :,18 the Court upheld the application of a Pennsylvania statute which imposed a special tax on certain bequests left by persons who died prior to the act’s passage. The Court concluded simply that "[t]he debates in the federal convention upon the Constitution show that the terms ' ex post facto laws' were understood in a restricted sense, relating to criminal cases only, and that the description of Blackstone of such laws was referred to for their meaning.” 19 Yet the Court in the postCivil War cases of Cummings v. Missouri 20 and Ex parte Garland 21 concluded that statutes which disqualified former Confederate sympa¬ thizers from specifically enumerated occupations violated the ex post facto clauses. In Garland , the Court concluded simply that "exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for 19.

16.

Id. at 139.

17.

Id. at 138-39.

20.

71 U.S. (4 Wall.) 277 (1866).

18.

58 U.S. (17 How.) 456 (1854).

21.

71 U.S. (4 Wall.) 333 (1866).

Id. at 462.

§ 10-2

MODEL

OF GOVERNMENTAL

REGULARITY

635

such conduct.” 22 In Cummings , the Court did speak in terms of "offenses” and "guilt” 23 in explaining why the provision of the Missouri Constitution requiring the expurgatory oath from those seeking to enter the ministry was an ex post facto law, but a careful reading of the two cases makes clear that the Supreme Court did not intend to restrict the scope of the ex post facto clauses to penal legislation, seeing the ban as extending to a wide class of legislation retroactively burdening otherwise lawful activities.24 The only hint during the early stages of ex post facto adjudication of how far the Supreme Court might go in invalidating retrospective inflictions of civil disabilities appears in Burgess v. Salmon ,25 where the Court concluded that a bill signed by the President on the afternoon of March 3, 1875, raising the tax on tobacco, could not be applied to a sale of tobacco which had been completed during the morning of the same day without violating the ex post facto prohibition. The Court inter¬ preted its prior cases as holding that the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal.26 While the Burgess opinion provides no what should be considered "essentially criminal,” phrase to the rescission of a land grant contested in sales tax challenged in Burgess itself suggests that

direct indication of application of the Fletcher and to the the Court viewed a

wide range of civil disabilities indeed as encompassed by the "essential¬ ly criminal” label. During the early years of the 20th century, the uncertainty over the scope of the ex post facto clauses which marked the early cases was replaced by a consensus in favor of the narrower view that only criminal punishment is prohibited by the ban. The main vehicle for the articulation of this new consensus was a series of Supreme Court cases dealing with the ability of Congress to control the movement and rights of aliens.27 By the 1950’s the limited view of the scope of the 22. Id. at 377. 23. 71 U.S. (4 Wall.) at 327-28. 24. Id. at 327. See also § 10-4, infra. 25. 97 U.S. H Otto) 381 (1878). 26. Id. at 385. See generally United States v. Will, 449 U.S. 200, 225 n. 29 (1980) (federal cost-saving statutes which terminated or reduced previously automat¬ ic cost-of-living increases for federal judges, and which became law after the increases had taken effect, deemed violative of the article III compensation clause) (stating that "Burgess dealt not so much with bene¬ fits and penalties as it did with constitu¬ tional limitations on the legislative author¬ ity of Congress and the Executive.”); Accord, Weaver v. Graham, 450 U.S. 24, 29 n. 10 (1981). 27. In Johannessen v. United States, 225 U.S. 227 (1912), the Court implicitly embraced the interpretation of the ex post facto clauses which had been posited by Justices Paterson and Iredell in Calder v. Bull and concluded that "[i]t is . . . set¬

tled that this prohibition is confined to laws respecting criminal punishments, and has no relation to retrospective legislation of any other description.” 225 U.S. at 242. The law challenged in Johannessen was a federal statute which revoked the citizen¬ ship of persons who had obtained certifi¬ cates of citizenship by fraud or other illegal conduct. The Court might have avoided discussion of the scope of the ban on ex post facto laws altogether by resting its decision on the ground that the statute inflicted "no new penalty upon the wrong¬ doer”, id., and made nothing "fraudulent or unlawful that was honest and lawful when it was done,” but simply deprived the individual of a privilege that was never rightfully his. Id. A series of cases deal¬ ing with the right of Congress to provide for the deportation of aliens perpetuated the conclusion of the Johannessen Court that the ex post facto clauses operate only to prohibit retrospective criminal punish¬ ment. See e.g., Mahler v. Eby, 264 U.S. 32, 39 (1924).

636

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

constitutional ban was so well established that the Court seemed reluctant to upset the pattern of statutes and decisions based on the belief that the retrospective imposition of civil disabilities was beyond the scope of the ex post facto clauses. Thus, in Harisiades v. Shaughnessy , Justice Jackson, writing for the Court, argued that: 28 "It has always been considered that that which it [the Ex Post Facto Clause] forbids is penal legislation which imposes or increases criminal punishment for conduct lawful prior to its enactment. Depor¬ tation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure. Both of these doctrines as original proposals might he debatable, but both have been considered closed for many years and a body of statute and decisional law has been built upon them.” The opinion in Harisiades adopted the rhetoric of the Court in Burgess v. Salmon , but dismissed the earlier cases with the comment that "[t]he . . . novel disabilities there imposed upon citizens were really criminal penalties for which civil form was a disguise.” 29 Yet Burgess, when read in its entirety, evidences an expansive judicial perception of what was "essentially criminal,” encompassing not only the land grant rescission of Fletcher but also the tax on tobacco challenged in Burgess itself. When the Court in Harisiades read the cases to restrict the sweep of the ex post facto clauses to "novel” civil disabilities which veil criminal penalties, and to exclude even the admittedly severe penalty of deportation from the class of such "novel” civil disabilities, the Court implied — without any real explanation — that the once-broad sweep of the "essentially criminal” theory had been greatly curtailed.30 28. 342 U.S. 580, 594 (1952) (emphasis added). The Court upheld deportation of

deportation of aliens . . . But the slate is not clean. [Tjhat the formulation of these

legally resident aliens "because of member¬ ship in the Communist Party which termi¬ nated before enactment” of the federal statute making such membership a basis for deportation. Id. at 581. Justice Doug¬ las, joined by Justice Black, dissenting,

policies is entrusted exclusively to Con¬ gress has become about as firmly embed¬ ded in the legislative and judicial tissues of

would have forbidden Congress to "order[ ] . . . aliens deported not for what they are but for what they once were.” 29. Id. at 595. 30. In Galvan

Id. at 601.

v. Press, 347 U.S. 522

(1954), the Court re-emphasized the con¬ fines which history placed upon its inter¬ pretation of the ex post facto clauses when dealing with the deportation cases. Writ¬ ing for the majority, and sustaining the constitutionality of § 22 of the Internal Security Act of 1950 which provided for the deportation of any alien who had been a member of the Communist Party at any time following his entry into the United States, Justice Frankfurter thought that "much could be said for the view, were we writing on a clean slate, that the Due Pro¬ cess Clause qualifies the scope of political discretion heretofore recognized as belong¬ ing to Congress in regulating the entry and

our body politic as any aspect of our gov¬ ernment. And whatever might have been said at an earlier date for applying the ex post facto clause, it has been the unbroken rule of this Court that it has no application to deportation .” Id. at 530-31 (emphasis added). See also Immigration and Natu¬ ralization Service v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984) (citing Galvan and holding that a deportation proceeding is a civil action in which the exclusionary rule does not apply). While Galvan v. Press maintains a narrow scope for the constitu¬ tional ban on ex post facto laws, there is at least a hint in Justice Frankfurter’s opin¬ ion that this scope is not restricted solely to criminal legislation. Rather, his opin¬ ion suggests that the ban will apply to all "punitive” legislation, excluding only the narrow field of deportation from the re¬ straint on retrospective infliction of disa¬ bilities by the legislature. Even if one assumes that the European history of "tyr¬ anny exercised under the pretext of penal

§ 10-3

MODEL

OF GOVERNMENTAL

REGULARITY

637

§ 10-3. Modern Ex Post Facto Doctrine: Problems of Prevention, Increased Punishment, and Altered Procedure Although

the Supreme

Court has held that the ex post facto ban

cannot be avoided by clothing a penal imposition in civil dress,1 it has upheld as nonpunitive a host of limitations imposed with respect to activity antedating the enactment of such limitations, including laws disqualifying from various offices or professions persons previously convicted of felonies,2 and laws subjecting to convicts who commit further crimes after such In quite routinely sustaining the application Court has paid scant attention to the potential

augmented penalties ex¬ laws have been enacted.3 of such limitations, the abuse of the governmen¬

tal power to impose a retroactive restraint "as a relevant incident to a regulation of a present situation.” 4 Nor has the Court focused on the danger of abuse when striking down, on a fairly routine basis, such retroactive increases in punishment5 as rules adding solitary confine¬ ment and delegating to the warden the power to fix a secret date of execution.6 Perhaps because it has not been systematically attentive to the purposes of the ex post facto ban, the Court has struck down a variety of retroactive procedural changes lightening the prosecutorial burden 7 dispensations,” Calder v. Bull, 3 U.S. (3 Dali.) 386, 399 (1798) (Iredell, J., concur¬ ring), was central to the adoption of the ex post facto clauses, it is extremely difficult to rationalize the conclusion that "the poli¬ cy, the reason and humanity of the prohibi¬ tion, do not . . . extend to civil cases, to cases that merely affect the private proper¬ ty of citizens.” Id. at 400. Certainly the early experience of England with bills of attainder and ex post facto laws had demonstrated the willingness of Parlia¬ ment to mandate the forfeiture of private estates as a penalty for actions which were lawful when committed; and cases such as Cummings and Galvan v. Press evidence the continued resourcefulness of legislative bodies in fashioning civil disabilities which serve "punitive” goals. Thus, if the objec¬ tive of insuring that legislatures operate only prospectively when the rights of indi¬ viduals might be adversely affected is to be served in any meaningful sense, the consti¬ tutional inhibition of ex post facto laws cannot be restricted to penal legislation.

1. Burgess v. Salmon, § 10-3 97 U.S. (7 Otto) 381, 385 (1878).

2. See, e.g., De Veau v. Braisted, 363 U.S. 144 (I960); Hawker v. New York, 170 U.S. 189 (1898). But see Schware v. Board of Bar Examiners, 353 U.S. 232 (1957), discussed in § 15-13, infra.

3. See, e.g., Gryger v. Burke, 334 U.S. 728 (1948); Graham v. West Virginia, 224 U.S. 616 (1912); McDonald v. Massachu¬ setts, 180 U.S. 311 (1901).

4. De Veau v. Braisted, 363 U.S. 144, 160 (1960). See Flemming v. Nestor, 363 U.S. 603 (1960) (statutory provision termi¬ nating payment of old-age benefits to alien deported for Communist affiliation not ex post facto, since designed to relieve Social Security System of administrative prob¬ lems of supervision and enforcement in connection with disbursement to benefi¬ ciaries abroad). See also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14-20, 2231 (1976). For a critical perspective on the cases, and a cogent argument that the ex post facto ban should apply whenever it cannot be shown that "significant regulato¬ ry interests unrelated to . . . deterrence” are served, see Note, "Ex Post Facto Limi¬ tations on Legislative Power,” 73 Mich.L. Rev. 1491, 1505 (1975). 5. But changes that are not "in¬ creases” — such as a shift from hanging to the supposedly more humane punishment of electrocution — are not subject to the ex post facto ban. Malloy v. South Carolina, 237 U.S. 180 (1915). 6. In re Medley, 134 U.S. 160, 172 (1890). See also Lindsey v. Washington, 301 U.S. 397 (1937) (statute making mandatory the previously maximum sen¬ tence, while also making parole available, deemed an increase in punishment viola¬ tive of ex post facto clause). 7. See, e.g., Kring v. Missouri, 107 U.S. 221 (1883) (retrospective abrogation of state rule treating conviction for lesser in¬ cluded offense as acquittal of greater of¬ fense); Thompson v. Utah, 170 U.S. 343

638

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

while upholding others that can hardly be distinguished in any func¬ tional way from those invalidated.8 Although attempts to invoke concepts of reliance, repose, or fair notice are conspicuously indetermi¬ nate in many procedural settings, courts need not despair of making sensible use of those concepts — as some have occasionally done in guiding the necessarily difficult line-drawing task they have confronted in this area.9 In addressing the recurring and particularly troublesome problems posed by alterations in the punishment applicable to past conduct, the Supreme Court has insisted that it is "dealing] with substance, not shadows,” 10 and has thus deemed it irrelevant whether the change at issue affects anything that "was in some technical sense part of the sentence.” 11 And, in keeping with this realism, the Court has treated ameliorative provisions that are "purely discretionary, contingent on . . . the wishes of the correctional authorities [or] special behavior by the inmate”, 12 as incapable of offsetting simultaneously enacted provi¬ sions that deprive prisoners of more routine opportunities — for exam¬ ple, by "removing] . . . the possibility of a sentence of less than [the statutory maximum],” 13 or by eliminating ordinary good-time credits and thereby "reducing] [the prisoner’s] opportunity to shorten his time (1898) (retrospective application of state law requiring only 8 jurors instead of 12). 8. See, e.g., Hopt v. Utah, 110 U.S. 574 (1884) (enlarging class of competent wit¬ nesses); Duncan v. Missouri, 152 U.S. 377 (1894) (reducing number of judges hearing defendant’s appeal); Gibson v. Mississippi, 162 U.S. 565 (1896) (change in mode of grand jury selection); Thompson v. Missou¬ ri, 171 U.S. 380 (1898) (broadening mode of authenticating and introducing handwrit¬ ing samples); Mallett v. North Carolina, 181 U.S. 589 (1901) (granting right of ap¬ peal to the state); Beazell v. Ohio, 269 U.S. 167 (1925) (limiting right of jointly indicted defendants to receive separate trials). Not surprisingly, lower courts have therefore evidenced understandable confusion "con¬ cerning the application of the Ex Post Facto Clause to changes in rules of evi¬ dence and procedure.” Murphy v. Ken¬ tucky, 465 U.S. 1072, 1073 (1984) (White, J., joined by Brennan and Powell, JJ., dis¬ senting from denial of certiorari to review state court decision, based on Hopt v. Utah, upholding retroactive application of statute repealing bar on use of uncorrobo¬ rated accomplice testimony as basis for criminal conviction). 9. See, e.g., the notion that extensions of statutes of limitation are allowed, Rob¬ erts v. United States, 239 F.2d 467 (9th Cir. 1956), while revivals of expired statutes of limitation are not, State v. Sneed, 25 Tex. Supp. 66 (1860), on the theory that defen¬ dant acquires a right to rely once the stat¬

ute of limitations has fully run. See Note, supra note 4, at 1512 n. 78. 10. Weaver

v. Graham,

450 U.S. 24, 31

(1981), quoting from Cummings ri, 71 U.S. (4 Wall.) at 325.

v. Missou¬

11. Weaver, 450 U.S. at 32 (striking down retroactive reduction in availability of good-time credits against sentence, with¬ out regard to whether terms for earning such credits should be deemed part of the original sentence or merely ancillary thereto). See also Miller v. Florida, 107 S.Ct. 2446, 2451-52 (1987) (ex post facto clause precludes sentencing defendant un¬ der guidelines setting presumed sentence at 5V2 to 7 years where sentencing guide¬ lines at time of the offense would have resulted in presumed sentence of only 3V2 to 4 years; it is irrelevant that the sentenc¬ ing guidelines at all times included a "no¬ tice that [they] might be changed”, and that the guidelines do not alter the statuto¬ ry limits of punishment for the particular offense). 12. Id. at 35 (refusing to treat enhanced opportunities to earn good-time credits for commendable prison behavior, at discre¬ tion of prison authorities, as offsetting re¬ duction in automatic good-time credits). See also Lindsey v. Washington, 301 U.S. 397 (1937) (refusing to treat inclusion of discretionary parole opportunity as offset¬ ting statutory change making maximum sentence mandatory). 13. Lindsey, 301 U.S. at 401.

§ 10—3

MODEL

OF GOVERNMENTAL

REGULARITY

639

in prison simply through good conduct.” 14 Although the Court’s ap¬ proach has been to compare the old and new "statutory procedures in toto to determine if the new may be fairly characterized as more onerous,” 15 it has thus been sensitive to the realities of the prison situation in making such comparisons.16 Unfortunately, this realistic focus on the prisoner’s expectations has on occasion blurred the Court’s vision of one of the chief concerns of the ex post impartially Dobbert v. procedure —

facto ban — that of "ensuring] that the sovereign will govern and that it will be perceived as doing so.” 17 Thus, in Florida ,18 a procedural change in Florida’s death penalty a change in the roles of judge and jury in sentencing — was

regarded by the Court as "ameliorative”; 19 this led the Court to uphold a death sentence under a statute enacted in late 1972 — months after the period during which petitioner had committed his offense (January to April, 1972). The majority, after reciting the genuinely horrifying tale of petitioner’s torture and murder of his own children noted that the death penalty statute in effect at the time of the murders had subsequently been found by Florida’s highest court to be invalid under controlling Supreme Court precedent 20; in this sense, no "valid” death penalty provision at all was in effect at the time petitioner acted.21 But the Court had little difficulty concluding that the superceded statute’s "existence on the statute books provided fair warning” 22 to petitioner "of the penalty which Florida would seek to impose on him if he were convicted of first degree murder.” 23 If Florida’s legislature had known Dobbert’s identity, or could realistically have discovered it, when it enacted the revised death penalty statute, his case would have powerfully illustrated why the ex post facto ban should prevent the imposition of penalties enacted by lawmakers who know exactly which individuals they are punishing. In such a situation, fair notice to those individuals of what the legislature had in store for them would indeed be beside the point.24 The objection 14. Weaver, 450 U.S. at 15. Dobbert v. Florida, 294 (1977) (holding changed procedure more ameliorative viewed in toto ).

33-34. 432 U.S. 282, death penalty than onerous,

16. See especially the opinion of Justice Rehnquist, concurring in the judgment in Weaver, 450 U.S. at 37-39. But compare the less sensitive approach of Justice Blackmun, joined by Chief Justice Burger, also concurring in the judgment. Id. at 36-37 (suggesting that, if the matter were not foreclosed by precedent, the state should have been permitted to offset the cancellation of automatic good-time credits with its more generous, if discretionary, enhancement of gain-time opportunities).

17. Dobbert, 432 U.S. at 307-08 (Ste¬ vens, J., joined by Brennan and Marshall, JJ., dissenting). (majority

tion. On July 17, 1972, Florida’s highest court found that state’s death penalty pro¬ cedure void under Furman. Donaldson v. Sack, 265 So.2d 499 (Fla. 1972). 21. The death penalty provision under which Dobbert was sentenced, enacted in late 1972, was found constitutional in Prof¬ fitt v. Florida, 428 U.S. 242 (1976). On the jurisprudence of how a Supreme Court de¬ cision retroactively invalidating a provi¬ sion such as the death penalty statute of Florida should be understood to affect the status of the law in effect prior to such invalidation, see § 3-3, supra. note 27, infra.

See also

22. Dobbert, 432 U.S. at 297. 23. Id. at 298.

18. 432 U.S. 282 (1977). 19. Id. at 294 Rehnquist, J.).

20. On June 22, 1972, in Furman v. Georgia, 408 U.S. 238 (1972), the Court struck down death penalty provisions ad¬ ministered through unbridled jury discre¬

opinion

of

24. Compare Kolender v. Lawson, 461 U.S. 352 (1983) (noting that statutes void

.

640

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

would not be that they were entitled to rely on the state of the law at the time they acted. Dobbert’s reliance interest at the time he tortured two of his children and murdered another hardly deserves mention, let alone respect. The objection would be that even such individuals are entitled to something better than a legislative lynching. The original edition of this treatise quoted with approval the Dobbert dissenters’ condemnation of the Court’s result as "an archaic gargoyle” defacing "a majestic bulwark in the framework of our Consti¬ tution.” 25 But it seems sounder, on reflection, to treat the Dobbert Court’s inattention to this theoretical risk of legislative abuse as reflect¬ ing only the absence of any actual risk of this sort in the case at hand. For, long before Dobbert’s arrest in early 1973, and well before he was tried and sentenced, later that year, the new death penalty provision — enacted in late 1972 — was safely in place. Those who enacted it to cure the constitutional flaws in the prior procedure might conceivably have been aware of the crime at issue, but there is no reason to suspect they were aware of the criminal .26 And although the capital punishment law in effect when he acted had been changed by the time he was tried and sentenced, the Court seems correct in its conclusion that the change was, on the whole, an ameliorative one — making the death penalty more difficult to inflict.27 Dobbert therefore should not be read to stand for the proposition that, so long as an individual is given fair warning, the legislature may deliberately design a crime — or a punish¬ ment — to fit the criminal. Not only the ex post facto clause but the bill because of the vague and open-ended en¬ forcement discretion they entrust to gov¬ ernment officials are of constitutional con¬ cern more because such discretion might be abused than because fair notice is neces¬ sarily absent). Accord, Houston v. Hill, 107 S.Ct. 2502, 2511-12 & n. 15 (1987). 25. Dobbert, 432 U.S. at 311 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). 26. If the legislature had passed a stat¬ ute specifically mandating the penalty of death for "whichever individual is convict¬ ed of the first degree murder of the Dob¬ bert children,” such a statute would have been unconstitutional, quite apart from its retroactivity and specificity, on the ground that mandatory death penalty provisions, which give the jury no discretion whatever, violate the fourteenth amendment. See Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). What if the legislature had simply taken the widely publicized facts of the killing of the Dobbert children into account in drafting the list of aggravating circum¬ stances for juries to consider in deciding Su pp whether to impose the death penalty? If se one aim of the Furman oholding was to Fu encourage lawmakers to focus rinm a deliber¬ an ate way on what criteria juries should use v. in selecting who should live andGe who or gi a,4 08

should die, see McGautha v. California, 402 U.S. 183, 265 (1971) (Brennan, J., dissent¬ ing), then it seems hard to fault the legisla¬ ture in the hypothesized case for doing just that. So long as it is willing to write the statute in terms broad enough to encom¬ pass not just the particular individual who is ultimately convicted of the specific kill¬ ing at issue but anyone else who meets similar criteria, the concern that the legis¬ lature may be secretly focusing on improp¬ er characteristics of the particular individ¬ ual, even if not then known to the legislators, seems inapposite.

pu pr ma ( ha be 2 U. o¬ S. 38 197 r d e d e n toe po ly on sp — ap2), Th pliex po cl st- wh flay trect c au F ia iv s i c e too su ls e le tahbl otp sweo ur thch p ate ti a en r . ,u m e el on fo, ca ld anpu n ha ely le veDso ft ( bb ri e pi i n isve n ff tal whe ¬ un er the sgtiabl hm tue i h de tm tr ect ha noc¬ he ecno t f i r u e i s tmm p To ho al wi d th to Furde cu r i ld e th r ttior rt mr) e p th di red cl fa, e o h x a d au h a atdi e n. re st becto cosse seis su ff ca mmnte usan be un lt 19 ar an rs di no ocere ¬ e t , r d t 7 c n d d i e 3 ne waurt th l ca st shi tr , i s c deuse un al af s Ju eref 22 19 ess is to t t malay th efil oef r th ncel ore , a fu72, ari of f e au l n e k e ct is tr e rase th cti why wh e d so i th a o e me e e er t n t n dn oonc — ad no th n cr ve to de hat he is¬ neocur un diom see lt nt t re de es y fend d rt . ak e

§ 10-4

MODEL

OF GOVERNMENTAL

REGULARITY

641

of attainder clause, to which we now turn, should be deemed any such departure from the rule of law. § 10-4.

The Ban on Bills of Attainder: mentary Safeguard

Generality

to forbid

as a Supple¬

The ban on ex post facto laws could be readily circumvented if a legislature wishing to punish people for conduct innocent when commit¬ ted could simply determine for itself the class of persons it deemed guilty of such conduct and designate the members of that class, either by name or in some equivalent manner, for imposition of a punitive disability like imprisonment or expulsion from various lawful occupa¬ tions. Indeed, were such punishment by direct specification an availa¬ ble option, a host of other constitutional safeguards would be rendered nugatory as well. Procedural protections against the use of various categories of evidence 1 would mean little if a legislature could simply decree punishment for those whose judicial conviction might prove inconvenient or impossible by virtue of such protections. And substan¬ tive protections against the use of various criteria2 could likewise be ignored by a legislature willing to designate the individuals it regarded as meeting those criteria and prepared to direct the punishment of those individuals by name. Most basic of all, trial by legislature — the use of the lawmaking process, or of a trial-like process in a lawmaking setting, to inflict punitive disabilities on identifiable persons — would be radically incom¬ patible with the safeguards provided by trial before a neutral judge and an impartial jury according to ascertainable standards, promulgated in advance of the conduct said to violate them, and enacted and applied in accord with constitutionally required substantive and procedural stan¬ dards. Accordingly, article I forbids passage of any bill of attainder by Congress 3 or by any state.4 The term "bill of attainder” originally applied to legislative enact¬ ments decreeing death for named or described persons or groups for high crimes, "attainting” the victims, and forbidding inheritance of their property.5 Lesser penalties inflicted in the same manner were 1. The exclusionary rule prohibiting § 10-4 the use of evidence obtained through un¬ reasonable searches or seizures in violation of the fourth amendment and the protec¬ tion provided by the fifth amendment against being required to testify against oneself in a criminal matter are two exam¬ ples.

2. The protections of freedoms of speech and religion under the first and fourteenth amendments and equal protec¬ tion of the laws under the fifth and four¬ teenth amendments all constrain the sub¬ stantive content of laws by forbidding legislative use of certain criteria. For ex¬ ample, absent compelling justification, freedom of speech entails a prohibition on the use of viewpoint or subject matter as

criteria; freedom of religion prevents the use of religious belief or affiliation as crite¬ ria; and the equal protection of the laws protects against the use of race or (in many cases) gender as criteria in legislative line¬ drawing. See generally Chapters 12, 14 and 16. 3. Art. I, § 9, cl. 3. The clause protects only persons, not states, and states have no standing to invoke the clause on behalf of their citizens against the federal govern¬ ment. South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). 4. Art. I, § 10, cl. 1. 5. 1 T. Cooley, Constitutional Limita¬ tions 536 (8th ed. 1927); 3 J. Story, Com¬ mentaries on the Constitution 209 (Da Capo Press ed. 1970).

642

MODEL

OF GOVERNMENTAL

REGULARITY

known as "bills of pains and penalties.” 6 Early in litigation surrounding bills of attainder, the Supreme that the prohibition against attainder applied to these penalties as well. Thus, in Fletcher v. Peck , Chief

Ch. 10

the constitutional Court determined bills of pains and Justice Marshall

wrote for the Court that "a bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.” 7 A half century later, Justice Field was able to conclude simply that "[w]ithin the meaning of the Constitution, bills of attainder include bills of pains and penalties.” 8 And, by the 1940’s, the Court could hold that the prohibition against bills of attainder extends to all "legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial . . . ” 9 And the object of such a trial must, of course, be something more than the mechanical determination of whether the accused is indeed a member of some finite list of persons that a lawmaking

process has already specifically

condemned without trial safeguards — whether by directly decreeing their punishment, or by ousting them from a sphere of public life, or by conditioning their access to that sphere upon the taking of an oath that they are not in fact members of the class singled out by law for such condemnation. Perhaps the clearest example of a bill of attainder is provided by the case of United States v. Lovett. 10 The House Committee on UnAmerican Activities had made charges against three government em¬ ployees, Lovett, Dodd, and Watson, and, after investigation, the House Appropriations Committee had found that the three had engaged in "subversive activity.” 11 Despite the opposition of the agencies employ¬ ing the three, Congress then passed a law providing that, after a certain date, name with down

no funds could be used to compensate the three — specified by — unless prior to that date they were appointed by the President the advice and consent of the Senate.12 The Supreme Court struck the law as an unconstitutional bill of attainder, pointing out that

the law accomplished the same result as one which, "stating that after investigation [Congress] had found Lovett, Dodd, and Watson 'guilty’ of 6. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1866); 1 T. Cooley, supra note 5, at 538; 3 J. Story, supra note 5, at 209-10.

federal statute which prohibited the pay¬ ment of compensation to three named gov¬ ernment employees who had been charged with subversive activities and investigated

7. 10 U.S. (6 Cranch.) 87, 132 (1810).

by the House Un-American Activities Com¬ mittee, United States v. Lovett, 328 U.S. 303 (1946); and an Act of Congress making it a crime for a member of the Communist Party to serve as an officer of a labor union or to be employed by such a union except in a clerical or custodial capacity, United States v. Brown, 381 U.S. 437 (1965).

8. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1866).

9. United States v. Lovett, 328 U.S. 303, 315 (1946). The concept of punishment under the bill of attainder clauses has al¬ ways been a fairly broad one. The Su¬ preme Court has struck down four laws as forbidden bills of attainder: a state law which required priests to take an oath that they had never aided the Confederacy, Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1866); a congressional enactment which required a similar oath of attorneys practicing in the federal courts, Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866); a

10. 328 U.S. 303 (1946). An interesting account of the evolution of this case is contained in Ely, "United States v. Lovett: Litigating the Separation of Powers,” 10 Harv.Civ.Rts — Civ.Lib.L.Rev. 1 (1975). 11. 328 U.S. at 308-13. 12. Id. at 305.

§ 10-4

MODEL

OF GOVERNMENTAL

REGULARITY

643

the crime of engaging in 'subversive activities,’ defined that term for the first time, and sentenced them to perpetual exclusion from any government employment.” 13 The essence of the bill of attainder ban is that it proscribes legislative punishment of specified persons — not of whichever persons might be judicially determined to fit within properly general proscrip¬ tions duly enacted in advance. Whether the persons improperly speci¬ fied are being punished for conduct lawful when engaged in, and hence in violation of ex post facto clause principles, or by reason of their religious or political beliefs, and hence in violation of first amendment principles, or as a result of legislative distaste for them as individuals, the bill of attainder prohibition is fully applicable. But its application necessarily depends on the presence of improper specification by the legislature of the individuals singled out for punishment. If a law merely designates a properly general characteristic, such as employ¬ ment in a regulated industry, and then imposes upon all who have that characteristic a prophylactic measure reasonably calculated to achieve a nonpunitive public purpose, no attainder may be said to have resulted from the mere fact that the set of persons having the characteristic in question might in theory be enumerated in advance and that the set is in principle knowable at the time the law is passed. Thus, the Court has upheld such measures as § 32 of the Banking Act of 1933, which prohibited partners and employees of firms engaged in underwriting securities from serving as directors or officers of national banks.14

Although

they obviously pose closer cases, laws

13. Id. at 316. 14. Board of Governors

This proposed distinction between v. Agnew,

329

U.S. 441 (1947). Although no considera¬ tion was given to an attainder argument in Agnew itself, the Court defended § 32 spe¬ cifically, and conflict-of-interest laws in general, against that argument in United States v. Brown, 381 U.S. 437, 453-56 (1965). Central to the Court’s distinction between § 32 of the Banking Act and § 504 of the Labor-Management Reporting Act (which made it a crime for a member of the Communist Party to serve as an officer of a labor union) was the observa¬ tion that "§ 32 incorporates no judgment censuring or condemning any man or group of men. In enacting it, Congress relied upon its general knowledge of human psychology, and concluded that the concurrent holding of the two designated positions would present a temptation to any man — not just certain men or mem¬ bers of a certain political party.” 381 U.S. at 453-54. The conclusion of the Brown Court was that, "insofar as § 32 incorpo¬ rates a condemnation, it condemns all men.” Id. at 454. Section 504 of the La¬ bor-Management Reporting Act, on the other hand, specifically stigmatized mem¬ bers of the Communist Party, and thus violated the prohibition against bills of at¬ tainder.

§ 32

and § 504 is by no means wholly satisfacto¬ ry. One could argue that § 32, by exclud¬ ing other categories, specifically con¬ demned those persons who were officers or employees of underwriting firms; or, con¬ versely, one could argue that § 504 merely expressed the judgment that any person would find it impossible in good faith con¬ currently to hold the positions of Commu¬ nist Party member and labor union offi¬ cial. In his dissent in Brown, Justice White argued that no meaningful distinc¬ tion between the two statutory schemes could be drawn along these lines. Id. at 466 (White, joined by Harlan, Clark, and Stewart, JJ., dissenting). Perhaps a better distinction was made by the Court when it noted that "§ 504, un¬ like § 32 of the Banking Act, inflicts its deprivation upon the members of a politi¬ cal group thought to present a threat to the national security. . . . [Sjuch groups were the targets of the overwhelm¬ ing majority of English and early Ameri¬ can bills of attainder.” Id. at 453. While in Agnew the Court explained that § 32 "is directed to the probability or likelihood . . . that a bank director interested in the underwriting business may use his influ¬ ence” in undesirable ways, 329 U.S. at 447, the Court in Brown pointed to "the fallacy

644 barring

MODEL convicted

OF GOVERNMENTAL and

unpardoned

REGULARITY

feions from

Ch. 10

the practice of

medicine,15 or excluding such individuals from employment in a water¬ front labor organization,16 might well be regarded less as instances of legislatures singling out the class of felons — a class that might in theory be enumerated as a list of names — than as properly general measures suitably tailored to legitimate and nonpunitive ends. It is not that the concept of "punishment” encompasses solely retribution — that view was properly rejected by the Supreme Court in light of the often non-retributive aims of even the criminal process itself.17 It is simply that the concept of legislative "specification” in this context cannot be so broad as to swallow up all laws that impose some disabling limitation upon an ascertainable group.18 Even a law requiring airline pilots to be sighted, or brain surgeons to have steady hands, would otherwise be vulnerable to attack. Yet it is equally true that the attainder ban cannot be rendered inapplicable simply because a law designating an identifiable class of individuals for punishment might be recharacterized as a prophylactic measure enacted to serve some legitimate public end. To be sure, the availability of other constitutional provisions, such as the free speech clause and the due process and equal protection clauses, would in any event serve as a limitation of sorts on all such laws. But the applica¬ tion of these other constitutional provisions sometimes requires evi¬ dence of legislative purpose or motive— evidence that is not always readily available 19 and that might easily be negated by a seemingly of the suggestion that membership in the Communist Party, or any other political organization, can be regarded as an alter¬ native, but equivalent, expression for a list of undesirable characteristics.” 381 U.S. at 455. See note 25 infra and accompany¬ ing text.

a la ove a bil su (u 189 (18 w ch ph l r 98) o th on th gr chld of at a e ta alin ou leg b nd re t a re the di inde n o la¬ ge re sq r as ua t t o o p s p ti n f in¬ lio he ro tat ur ab on f p p l e i s e o e of go se ch su hi tha caall doc r we r o r ar ti to ac a on rs add Coe Ha te ing p Tht ¬ r) op ur e w k teto le dit ga er gr th st . sc at d g¬ ea ve an re dis "rt isl dard in inf ti on eg abi lic a ul"W g va tie tuurpe t r ath ha thvei lelgii¬s la s os nde rio thing ou wh oe s ol t a cl ¬ ar usla t ofps:otehve Stryn” sh ate be th urecr e al d e e r at im s ws l iln it ceh mo in go de a a clk a od r em r a i l or acftan an ar d is noetd la yi ng own bi ec n t ra to th su riful no rel rul — one gha ry e b v to a jewcetl aaptio bu iinsg on ma e tt t ly pe n -l ex of hu al fa re er, i ct p co ma ng er iUen at 19 . . g.n”i 17 U. n Af S 0 t nicto 5zve B . 38 e ( 4 U St r ende 9 . 1 . 3 d ro 9 6 S at 1 7 65) .. w e n th , res ag co s pe , arg e u rh ueo t ain t am ult in apHa re ld s h h n e t eo ac s wk o arery, an ostng fel co er ot hed th h a n ra¬i inpons esp ciz ers, gr t wi victlit n t o ed eci ut, edtle h up ma all in inf of § 13 li jo S y, raC,f U to v. pr -16, polght rita . nit oc t iti t a e Co. 30 Ue.d 14 risa15 Pr ess Ca ca 4, n2S. 4 od es ro l , uc . le ts ne

53 n. 4 (1938). See also § 15-13, infra. It is true that, even in Brown, the Court said that "Congress [properly] relied upon its general knowledge of human psychology” in enacting § 32 of the Banking Act of 1933 (conflict-of-interest legislation), 381 U.S. at 454, but financial officers are hard¬ ly a closed, ostracized class resembling the ex-convicts burdened in Hawker. 16. De Veau v. Braisted, 363 U.S. 144 (1960) (upholding such a law), discussed in § 10-5, note 13, infra. 17. See United States v. Brown, U.S. at 456-60. 18. The

381

bill of attainder clause thus

"does not . . . limit[ ] Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.” Nixon v. Administrator of General Services, 433 U.S. 425, 471 (1977). 19. For equal protection cases in the race area discussing the need to show dis¬ criminatory purpose, see Washington v. Davis, 426 U.S. 229 (1976); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Mobile v. Bolden, 446 U.S. 55 (1980); Rogers v. Lodge, 458 U.S. 613 (1982); Hunter v. Un¬ derwood, 471 U.S. 222 (1985), discussed in § 16-20, infra. In the gender area, see Personnel Administrator v. Feeney, 442 U.S. 256 (1979), discussed in § 16-20, infra.

645 MODEL OF GOVERNMENTAL REGULARITY 4 0 § 1 plausible assertion that the legislature had not proceeded in terms of any forbidden generalization but had in fact determined, after appropri¬ ate empirical investigation, that the individuals it had decided to restrict posed a threat to the public weal. The ban on bills of attainder prevents just such an assertion. Consider, for example, a law excluding all members

of a political

party — say, the Communist Party — from service as officers or managers of any labor organization. Such a law could be attacked under the first amendment,20 but the attack might be rebuffed by a claim that, rather than proceeding upon a forbidden generalization about political beliefs and associations, the lawmaking body was in fact proceeding on the basis of what it had learned, in extensive hearings, about members of the designated political group and about the threats those members had historically posed, and seemed likely to pose in the future, to the labor movement. The bill of attainder ban provides a powerful retort to any such claim: insofar as the legislature denies that it has in fact acted on the basis of what might be deemed "legislative facts” or societal generalizations and insists that it has instead acted on the basis of what some have termed "adjudicative facts” about identifiable persons, it is engaged in trial by legislature— -a process that cannot constitutionally result in any punitive measure. This was indeed the Supreme Court's precise mode of analysis in the leading modern decision under the bill of attainder clauses, United States u. Brown.21 Congress had made it a crime for anyone who was, or within five years had been, a member of the Communist Party to serve as an officer or manager

of a labor union.22 In the face of an

argument that Congress had really enacted "a general rule to the effect that persons possessing characteristics which made them likely to incite political strikes should not hold office, and [had] simply inserted in place of a list of those characteristics an alternative, shorthand criteri¬ on — membership in the Communist Party,” the Court accurately per¬ ceived an improper attempt to recharacterize the law as a prophylactic measure enacted to serve a legitimate public end, and rejected that attempt, drawing implicitly on first amendment principles: "The desig¬ nation of Communists as those persons likely to cause political strikes as bargaining th 38 (19 U 33 v. Do ci e at 9 .S. 2 ud 5 0 i s,a fi ), on a a Co on rej t m r t u ecst of the ser ack thsat deend a sritm teadt n m v t i ila e i uteL c t a Re ed nt Bo Na r th ab ar es o la e ti o to fdai un ona of wh r som tio off lab ic io l l n i e or e c s d ers m tha n the areh not pre sw em ea s t y e r Tnhtl Co bercson Pa of the Co ur ey ¬ rt m y. co ra t thmun "C si t Pa uld is niootn lik finder tha tahet isCto ong rt mm re d ed t y of po ally e in itusn ustsi pa ot si rt is li h ti t ilee w b m a z t of eurn h y s a e sad ic ons o taino io h estr na ot sn obs an br bo he rsihki d in t u r r t ad¬ of pol uct fo eps pu of cg o r rp i i mm t o ic g n Sh er . . .” Id. atos3e9 va ow d al resat 1. s cet s nt co inet de ag o uc ng fe e ge h r "t rmpiunb fo ess th Co ti renc th he of al¬tih inons, e ein thuert goo unfdai ion aetxe ce te a t r h o l u ci o pod f [q rest f ni se fi we ua cia on si r ls s -l eg is la ti v

representatives]

is very

great,” id. at 402, while the statute, rather than being aimed at, or serving as a vehi¬ cle for, the suppression of dangerous ideas, id. at 403, merely opposed the "combina¬ tion of [Communist Party] affiliations or beliefs with occupancy of a position of great power over the economy of the coun¬ try,” id. at 403-04. The current validity of Douds may be dubious. See Ch. 12, infra. 21. 381 U.S. 437 (1965). 22. Id. at 438 & n. 1. Section 504 was enacted to replace the provision at issue in Douds, and was "designed to accomplish the same purpose . . ., but in a more direct and effective way.” Id. at 439 & n. 2. See also note 20, supra.

646

MODEL

OF GOVERNMENTAL

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. . . rests . . . upon an empirical investigation by Congress of the acts, characteristics, and propensities of Communist Party members. In a number of decisions, this Court has pointed out the fallacy of the suggestion that membership in the Communist Party, or any other political organization, can be regarded as an alternative, but equiva¬ lent, expression for a list of undesirable characteristics.” 23 Instead, the Court found that the statute "designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold office without incurring criminal liability — members

of the Com¬

munist Party.” 24 Such a law constitutes a bill of attainder. In effect, when a legislature’s designation of a group cannot, for independent constitutional reasons, be defended by treating that designation as the equivalent of a list of undesirable characteristics but must be defended, if at all, by treating the designation as the equivalent of a list of names , the bill of attainder ban prevents the designation from being used as the basis of punishment.25 23. 381 U.S. at 455. In Garner v. Pub¬ lic Works of Los Angeles, 341 U.S. 716 (1951), the Court sustained an ordinance which required each city employee to take an oath disclaiming any prior affiliation with any group which advocated the vio¬ lent overthrow of government; the majori¬ ty was "unable to conclude that punish¬ ment is imposed by a general regulation which merely provides standards of qualifi¬ cation and eligibility for employment.” Id. at 722. The Garner oath would today be deemed violative of the first amendment freedom of association. See § 12-26, infra. 24. 381 U.S. at 450. 25. This distinction is not always an easy one to make; one must look not only to the nature of the class defined, but also to the nature of the legitimate, non-punitive end pursued — and, in particular, to the reasonableness of the relation between the two. For example, if it is possible for members of the asserted class to leave it at any time without foregoing the exercise of any right or privilege, there would seem to be little reason to be concerned about im¬ proper specification. See the discussion of Selective Service System v. Minnesota Pub¬ lic Interest Research Group, 468 U.S. 841 (1984), infra. Classes defined by present occupation, in which exit is burdensome yet possible — for example, the securities underwriters affected by § 32 of the Bank¬ ing Act — would seem to be less trouble¬ some than classes defined according to some involuntary or unchangeable charac¬ teristic, such as a disease or a physical or mental disability. A law requiring that airline pilots be sighted would not seem improperly to single out the blind, while a requirement that forbade AIDS victims from becoming airline pilots would seem unfairly to target an unpopular group of individuals; on the other hand, a law

prohibiting AIDS victims from selling blood to the Red Cross reasonably pursues a legitimate, non-punitive end. See, e.g., United States v. Brown, 381 U.S. at 454 n. 29 (suggesting that the legislature could properly prohibit, from obtaining licenses to operate dangerous machinery, all per¬ sons afflicted with a certain disease which has as one of its symptoms a susceptibility to uncontrollable seizures — simply by nam¬ ing the disease rather than by describing its symptoms). Of course, those unchange¬ able characteristics — such as race and gen¬ der — which define "suspect” classes in the equal protection area would be expected to invite particular scrutiny under bill of at¬ tainder analyses, as would classes defined by exercise of first amendment rights. The identification of an individual by name should raise an almost conclusive presumption of constitutionally suspect specification, given that the ban on bills of attainder is designed to prevent trial by legislature. Even so, in Nixon v. Adminis¬ trator of General Services, 433 U.S. 425 (1977), the majority found that, since only Mr. Nixon’s papers (and not those of other Presidents) "demanded immediate atten¬ tion,” he constituted "a legitimate class of one,” id. at 472 — a finding that Justice Stevens accepted only because of the resig¬ nation and pardon that made the Nixon case truly unique, id. at 486 (concurring opinion). But it is difficult to avoid Chief Justice Burger’s conclusion in that case that legislating against a named person without judicial safeguards cannot be justi¬ fied by that person’s apparent unique¬ ness— especially since Congress could have expressed, in a law motivated by the Nixon resignation but applicable to similar future cases as well as to Nixon’s, whatever fac¬ tors were deemed to make his case unique. Hopefully, Chief Justice Burger is correct

647 MODEL OF GOVERNMENTAL REGULARITY 4 0 § 1 The earliest direct applications of the bill of attainder clause are best understood as standing for precisely this principle. In Cummings v. Missouri,26 the Court struck down a provision of Missouri’s state constitution 27 which prescribed an oath disavowing various past actions of disloyalty to the United States, as well as past manifestations "by act or word” of sympathy for members of the Confederacy, as a condition for pursuing several enumerated occupations. The petitioner in Cum¬ mings was a Roman Catholic priest who had been convicted of preach¬ ing after refusing to take the oath and sentenced to "pay a fine of $500, and to be committed to jail until the same was paid.” 28 The loyalty oath demanded by the state in Cummings was perceived as flawed by the Court because "[i]t was required in order to reach the person, not the calling. It was exacted, not from any notion that the several acts [of loyalty to the Confederacy] indicated unfitness for the callings, but because it was thought that the several acts deserved punishment ” 29

The

Court

relied

upon

the

reasoning

of Cummings

in holding

a similar, federally-required expurgatory oath unconstitutional in Ex parte Garland ,30 despite the argument of Justice Miller that the acts brought in question by the oath were not at all irrelevant to the practice of law in the federal courts, the affected occupation.31 But what if the statutes at issue in Cummings and Garland had been passed during the Civil War, and had permitted those who wished to be free of the challenged disqualifications to lift those disqualifica¬ tions by putting down their arms and ending their affiliation with the Confederacy? What the Supreme Court properly treated in Cummings and Garland as the forbidden specification of an identified class for a in his suggestion that the Court’s holding might itself eventually constitute a "class of one.” Id. at 545 (dissenting opinion). 26. 71 U.S. (4 Wall.) 277 (1866). 27. The Supreme Court has never found it significant that the challenged provision was part of the state’s constitu¬ tion rather than a simple enactment of its legislature. It is of course true that a state cannot use a popular referendum, either as a part of its constitution or otherwise, to circumvent federal constitutional re¬ straints. See Reitman v. Mulkey, 387 U.S. 369 (1967); Hunter v. Erickson, 393 U.S. 385 (1969); but cf. James v. Valtierra, 402 U.S. 137 (1971); Eastlake v. Forest City Enterprises, 426 U.S. 668, 678-79 (1976). But if a central concern of the ban against attainder is the separation of governmen¬ tal powers, see § 10-6, infra, it becomes relevant that a constitutional amendment adopted by popular referendum does not pose quite the same threats of overly cen¬ tralized governmental power which legisla¬ tion entails. On the other hand, a consti¬ tutional amendment adopted by popular referendum would exacerbate the concern for not circumventing the procedural safe¬ guards of a judicial trial or other adversary hearing — a concern which has also been

central in the jurisprudence of the bill of attainder clauses. See §§ 10-5, 10-6, in¬ fra. Eastlake v. Forest City Enterprises, 426 U.S. at 680 (Powell, J., dissenting); id. at 693 (1976) (Stevens, J., joined by Bren¬ nan, J., dissenting). This concern seems sufficient to justify application of the at¬ tainder ban to state constitutional amend¬ ments or other referenda which inflict seri¬ ous disabilities on particular individuals. 28. 71 U.S. (4 Wall.) at 316. 29. Id. at 320. 30. 71 U.S. (4 Wall.) 333 (1866). 31. "That fidelity to the government under which he lives, a true and loyal attachment to it, and a sincere desire for its preservation, are among essential quali¬ fications which should be required in a lawyer, seems to me too clear for argu¬ ment.” Id. at 387 (dissenting opinion). However, the Court has never endorsed the position taken by Justice Miller. In later opinions, the oath struck down in Garland has been seen as unrelated to the affected occupation. See, e.g., Dent v. West Virgin¬ ia, 129 U.S. 114, 128 (1889) (upholding the right of the states to prohibit the unli¬ censed practice of medicine).

648

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

punitive disability would then, in all likelihood, have been transformed into the allowable enactment of a prophylactic measure — an incentive to comply with valid laws against armed rebellion, enforced by with¬ holding the enjoyment of various benefits (and even rights) until such compliance is evidenced. Thus, the Court in Brown did not entirely overrule its earlier decision in American Communications Association v. Douds32 since the Taft-Hartley Act provision upheld in that case expressly allowed members of the Communist Party to resign their membership and thereby gain immediate eligibility to serve as union officials, whereas the Labor-Management Reporting Act provision struck down in Brown contained no such option.33 Today, of course, the notion that government is free to condition eligibility for an occupation upon someone’s abandonment of a political belief or affiliation would be hard to square with the first amendment.34 But, at least if we focus on a class from which the legislature is free to encourage exit — such as the class of persons who have yet to comply with some lawful obligation — there emerges a basic difference between laws disadvantaging a fixed class from which persons are unable to escape, and laws encouraging departure from an open class by condi¬ tioning benefits upon such departure.35 The best example is that provided by Selective Service System v. Minnesota Public Interest Research Group33 in which the Supreme Court sustained over bill of attainder attack an Act of Congress denying higher education financial aid to male students who had not complied with their draft registration requirements.37 32. 339 U.S. 382 (1950). See note 20, supra. 33. The Douds Court distinguished the provisions before it from those condemned in Cummings, Garland, and Lovett on the ground that, while the earlier cases in¬ volved punishment for past actions, the provisions before it sought only to prevent future action — a contention supposedly demonstrated by the fact that "there is no one who may not, by a voluntary alteration of the loyalties which impel him to action, become eligible to sign the affidavit.” Douds, 339 U.S. at 414. The Brown Court pointed to this distinction as a reason why Douds was not controlling precedent, 381 U.S. at 458 (also noting, however, that even an escapable burden might impose "pun¬ ishment,” since the meaning of punish¬ ment encompasses more than retribution). It is revealing that the replacement of the provision in Douds by the one in Brown was prompted in part by the legislature’s suspicion that many Communists were tak¬ ing the prescribed oath, leaving as the only sanction a perjury prosecution that pre¬ sented serious difficulties of proof. See 381 U.S. at 477 (White, J. dissenting). 34. See, e.g., FCC v. League of Women Voters of California, 468 U.S. 364 (1984), discussed in § 11-5, infra. 35. The distinction may not be determi¬ native, of course. Thus the Court noted in

In Selective Service , the

Brown that inescapability was not an abso¬ lute prerequisite to a finding of attainder. See 381 U.S. at 457 n. 32. Conversely, inescapability alone does not suffice to es¬ tablish an attainder — since the class defini¬ tion may yet be reasonable in light of a legitimate, non-punitive end. See note 25, supra. Thus, perhaps the best explanation that can be offered for Douds is that in 1950, at the height of the Cold War, a law exclud¬ ing from service as labor union officials all those belonging to an organization dedicat¬ ed to capturing the leadership of the "pro¬ letariat” in order to bring about mass vio¬ lent destruction of the state could have appeared as reasonable as might a law, passed in 1987, to prohibit from service as airline pilots all those belonging to "terror¬ ist” organizations dedicated to the achieve¬ ment of political goals through the hi¬ jacking of airplanes. 36. 468 U.S. 841 (1984). 37. The Act was also challenged on the ground that it violated the fifth amend¬ ment privilege against compelled self-in¬ crimination by forcing non-registrants to acknowledge that they have failed to regis¬ ter in time when confronted with the need to certify to their schools that they have complied with the registration law. 468 U.S. at 856. The Court rejected this at¬ tack, stating that "a person who

has not

649 MODEL OF GOVERNMENTAL REGULARITY 4 0 § 1 district court had construed § 1113 of the Department of Defense Authorization Act of 1983 as leaving no late registration option open to a student who had failed to register and thereafter sought to qualify for financial aid. Accordingly, the district court found that the statute "clearly single[d] out an ascertainable group based on past conduct.” 38 The Supreme Court, on the other hand, found that the statute did not single out any identifiable group because, under its reading of the statute, any student who found himself in the class of those denied financial aid could remove himself from the class by simply registering late.39 Thus the class was not fixed: " Tar from attaching to . . . past and ineradicable actions,’ ineligibility for Title IV benefits 'is made to turn upon continuingly contemporaneous fact’ which a student who wants public assistance can correct.” 40 to seek

him because the classification is also based

financial aid,” id., and noting that, in the case of applicants who registered late, the statement to the school does not require them to disclose whether or not their regis¬ tration was timely. Id. at 857. The gov¬

on youth, a group "less able to exercise their vote because of their transience and, frequently, state laws burdening student

registered is under no compulsion

ernment "has not refused any request for immunity for their answers or otherwise threatened them with penalties for invok¬ ing the privilege. . . .” Id. at 858. The Court implied that a student would have to assert the privilege in the act of filing late and that, by doing so, a late registrant would not necessarily admit to the commis¬ sion of a crime, but would "merely call attention to himself.” Id. Dissenting, Justice Marshall, joined by Justice Brennan, found that the threat of the denial of student aid is substantial economic coercion, id. at 870, and that the process of late registration, even were a student to assert the fifth amendment priv¬ ilege in filling out the registration form late, "creates a Veal and appreciable’ haz¬ ard of incrimination and prosecution, and that the risk is not 'so improbable that no reasonable man would suffer it to influ¬ ence his conduct.’ ” Id. at 868, quoting Brown v. Walker, 161 U.S. 591, 599-600 (1896).

The majority also rejected an argument that the statute violates equal protection because it discriminates against the poor, explaining, in a statement reminiscent of Anatole France, that "Section 12(f) treats all nonregistrants alike, denying aid to Id. at 859 the poor and the wealthy.” both 17. Justice Marshall, dissenting, n. stressed that "[t]he wealthy do not require, are not applying for, and do not receive federal education assistance, and therefore are not subject to the requirement that they make statements that they have com¬ plied with the Selective Service registra¬ tion requirement, nor to the economic com¬ pulsion to provide incriminating facts to the Government in the act of late registra¬ tion.” Id. at 877. Justice Marshall added that the inequity of this de facto classifica¬ tion based on wealth was intensified for

voter registration.” Id. at 878 n. 21. The majority responded that, "even if the statute discriminated against poor nonregistrants . . . the statute must be sustained .... because [It] is rationally related to the legitimate Government objectives of encouraging registration and fairly allocating scarce federal resources.” Id. at 859 n. 17. Justice Marshall an¬ swered that, "[w]hen the law lays an une¬ qual hand on those who have committed precisely the same offense, the discrimina¬ tion is invidious,” id. at 880, and pointed out that Congress did not similarly condi¬ tion such "rich persons’ Government bene¬ fits and entitlements” as "oil depletion al¬ lowances, accelerated depreciation, capital deductions.” owners’ [and] property gains, Id. at 881. See Chapter 16, infra. 38. Doe v. Selective Service System, 557 F.Supp. 937, 942 (D. Minn. 1983). While the Supreme Court considered the district court’s interpretation to be "plainly incon¬ sistent with the structure of § 1113 and its legislative history,” 468 U.S. at 849, the Supreme Court also noted that a statute should be construed, " 'if consistent with the will of Congress, so as to comport with constitutional limitations,’ ” id. at 850, quoting United States Civil Service Com¬ mission v. Letter Carriers, 413 U.S. 548, 571 (1973), thus suggesting its agreement that interpreting the statute to deny eligi¬ bility to late registrants might pose fatal constitutional problems. 39. Selective Service, 468 U.S. at 847 n. 3, 849. 40. Id. at 851, quoting Communist Par¬ ty of United States v. Subversive Activities Control Board, 367 U.S. 1, 87 (1961). Of course, the notion of a fixed class shows similarity with other areas of the law: all retrospective legislation necessarily creates a fixed class, as does all legislation based on gender, race, national origin, or any

650

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

The conception of the fixed class — an ascertainable group whose rights are being resolved — suggests that the making of a rule with regard to such a group necessarily also amounts to an application of that rule to members of the group, although the impact on such members might be delayed. A rule conferring a benefit upon such a group, or — in circumstances where there is no evidence of punitive intent — even a rule imposing a burden on such a group, might be acceptable as a legitimate regulation. But where there is punishment of a fixed class — where a deprivation is imposed with punitive intent or is one not reasonably calculated to pursue some nonpunitive aim — a bill of attainder is established. The Court evidently accepted this view when, in Selective Service , it agreed with the Government that a bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifi¬ able individual without provision of the protections of a judicial trial,” 41 and therefore has three elements: specification of the affected persons, punishment, and lack of a judicial trial.42 In sum, regularity demands that, before a person may be punished, the rule imposing the punishment must first pass through filters of generality and impartiality. Where a governmental body lacks the procedures to ensure impartiality — as is normally the case with the legislature itself — it must limit itself to creating general rules. Where a governmental body necessarily must act with specificity — as is nor¬ mally the case with a court — it must apply rules in accord with impartial procedures. In administrative as opposed to legislative pro¬ ceedings, where quasi-judicial functions often occur, it is easy to appre¬ ciate the operational significance of the requirement that any govern¬ ment body, if it is to impose burdens, may do so only by establishing rules of appropriate generality and by applying rules with judicial impartiality. Whether the bill of attainder ban in fact imposes such a broad requirement, as opposed to limiting legislatures alone, is the subject of § 10-6. What sorts of burdens count as sufficiently punitive to trigger the attainder ban in any institutional context is the subject of § 10-5. § 10-5.

Limiting

Bill of Attainder

Doctrine

to Punitive

Measures

Legislative measures often grant or withhold benefits or burdens from precisely identified individuals and groups. A bailout for Chrysler might be seen as a burden to Ford, a subsidy to Lockheed as a competitive blow to Boeing, a private bill for a favored constituent as a severe disappointment to a neighbor, a tax break for one company as a punishment for a competitor. Yet the bill of attainder ban has, quite other characteristic that an individual can¬ not change. 41. Selective Service, 468 U.S. at 84647 quoting Nixon v. Administrator of Gen¬ eral Services, 433 U.S. 426, 468 (1977). 42. Selective Service, 468 U.S. at 847. The Government argued in Selective Ser¬ vice, with respect to the third requirement, that the statute at issue did not dispense with a judicial trial, because a hearing was

provided in the event of disagreement be¬ tween the applicant and the Secretary about whether the applicant had in fact registered, and because the decision made at that hearing was subject to judicial re¬ view. Id. at 847 n. 3. The Court properly deemed that argument "meritless [since] Congress has not provided a judicial trial to those affected by the statute.” Id.

§ 10-5

MODEL

OF GOVERNMENTAL

REGULARITY

651

properly, never been regarded as an obstacle to all such measures — a guarantee that all lawmaking activity will proceed through majestic generalities.1 Although the Supreme Court once struck down a statute exempting American Express by name from a generally applicable economic regulation,2 that decision was itself overruled two decades later, when the Court upheld a law permitting two identified vendors to continue hawking their wares in New Orleans’ French Quarter but forbidding all of their competitors to do so.3 It is only laws that inflict punishment on legislatively specified individuals that the bill of attainder ban condemns, and the examples noted above make

plain that not all burdens may be deemed

punish¬

ments for this purpose even when legislative "specification” is shown. At the same time, the Supreme Court has been careful not to limit the notion of punishments to the classic instances of death, imprisonment, banishment, and punitive fines or confiscations of property. From the earliest applications of the attainder ban, the Court has applied it to "legislative bars to participation by individuals or groups in specific employments or professions,” 4 even when such bars are not demonstra¬ bly retributive in aim.5 There can be little doubt, for example, that a law depriving Richard Nixon by name of access to future government employment would have been struck down as a forbidden bill of attainder despite references in Nixon v. Administrator of General Services to the odd notion that Mr. Nixon is "a legitimate class of one.” 6 How, then, is one to account for the Supreme Court’s holding in that case that Congress acted constitutionally when, in the Presidential Recordings and Materials Preservation Act, it provided for governmental custody of his presidential papers and his alone? Congress might, after all, have written the legislation to cover all future presidents who resign under threat of impeachment. It is true, as the Court noted, that the papers of all other former Presidents were by that time safely en¬ sconced in various libraries,7 but that hardly justified drawing a bright line between Richard Milhous Nixon and any equally unfortunate successor. Equal protection doctrine does not forbid legislatures to proceed one step at a time,8 but the bill of attainder ban goes beyond equal protection in forbidding at least those legislative steps that highly individualized 1. However, some § 10-5 been held to violate have measures fiscal the ban on nonuniform bankruptcy laws. See Railway Labor Executives’ Assn. v. Gibbons, 455 U.S. 457 (1982), discussed in § 5-4, supra, at note 6, and in § 5-11, supra, at note 3.

2. Morey v. Doud, 354 U.S. 457 (1957) (violation of equal protection). See Ch. 16, infra. 3. New Orleans v. Dukes, 427 U.S. 297 (1976). It was an equal protection attack that the Court rebuffed in this case, but a bill of attainder challenge should have fared no better.

4. Selective Service System v. Minneso¬ ta PIRG, 468 U.S. 841, 852, (1984) (citing Brown, Lovett, Cummings, and Garland, all discussed in § 10-4, supra). 5. United

States v. Brown,

381 U.S.

437, 458-61 (1965). Not all such bars to participation have been deemed to run afoul of the attainder ban, however. See, e.g., Hawker v. New York, 170 U.S. 189 (1898), discussed in § 10-4, note 15, supra, and De Veau v. Braisted, 363 U.S. 144 (1960), discussed in note 13, infra. 6. 433 U.S. 425, 472 (1977). See § 10-4, note 25, supra. 7. 433 U.S. at 472. 8. See Chapter 16, infra.

652

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

punish one individual at a time.9 The Court did not, however, deem the temporary withholding of the Nixon papers to be a "punishment” at all; and, in that conclusion, the Court may have been on defensible ground. To be sure, the very specificity of the disability — its singling out of Mr. Nixon by name — heightened the sting, and the stigma, of what had been done in the statute. But stigma alone may not suffice to make an attainder where the deprivation is as limited in duration, and as circumscribed by provisions for compensation should private proper¬ ty be taken, as was the case in Nixon.10 In developing the punishment concept for attainder purposes, the Court has at times spoken as though three independent tests must be met if an arguably punitive measure is to be rescued from that categorization: the measure must not be of the sort "historically associated with punishment”; 11 it must "reasonably . . . further 9. See § 10-4, note 25, supra. 10. Nixon v. Administrator of General Services, 433 U.S. 425 (1977). The Court, in an opinion by Justice Brennan, took account of the fact that the statute placed the materials under the very same agency designated by the agreement between Mr. Nixon and the Administrator as depository of the documents for a minimum threeyear period; that the statute ensured Mr. Nixon access to the materials at all times, including the right to make copies; and that the statute not only expressly pre¬ served Mr. Nixon’s opportunity to assert any legally or constitutionally based right or privilege, but also preserved for Mr. Nixon all of the protections that adhere in a judicial proceeding by assuring district court jurisdiction and appellate review over all his legal claims — even to the point of providing that such claims would have first priority on the docket of such courts. Id. at 481-82. More generally, the Court emphasized (1) the statute’s provision for just compensation in the event any of Mr. Nixon’s economic interests are invaded, id. at 445 n. 8; (2) the statute’s failure to bar Mr. Nixon from any specified employment or vocation, id. at 475; (3) the statute’s enactment in the wake of a specific agree¬ ment between Mr. Nixon and the General Services Administrator expressly contem¬ plating the destruction of certain presiden¬ tial papers and tapes that Congress reason¬ ably deemed necessary to complete the prosecutions of Watergate-related crimes, id. at 476-77, 479; and (4) the reasonable belief of Congress that appropriate public access to the Nixon materials would be of great value to the nation in coming to terms, both currently and in the future, with a unique episode in its history. Id. at 477-78.

11. Selective Service, 468 U.S. at 853. In Cummings v. Missouri, Justice Field concluded for the Court that depriving a person of the means of his livelihood was

certainly punishment: "The deprivation of any rights, civil or political, previously en¬ joyed, may be punishment, the circum¬ stances attending and the causes of the deprivation determining this fact. Dis¬ qualification from office may be punish¬ ment, as in cases of conviction upon im¬ peachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator or guardian, may also, and often has been, imposed as pun¬ ishment.” 71 U.S. (4 Wall.) 277, 320 (1866). It is true that the language in Cummings discusses punishment in terms of deprivations of "rights”; but a close reading of the Cummings opinion "dis¬ closes that the word 'right’ was used by the Court to encompass what other courts have called 'privileges,’ and that therefore the case stands for a repudiation of any dichot¬ omy between the two.” Note, "The Bounds of Legislative Specification: A Sug¬ gested Approach to the Bill of Attainder Clause,” 72 Yale L.J. 330, 358 (1962). Nonetheless, in Flemming v. Nestor, 363 U.S. 603 (1960), the Court rejected bill of attainder attacks — among others — upon a provision of the Social Security Act which terminated old-age benefits to aliens de¬ ported for any of several specified reasons. Nestor had immigrated to the United States from Bulgaria in 1913 and became eligible for old age benefits in November 1955. In July 1956 he was deported for having been a member of the Communist Party from 1933 to 1939. Since this was one of the benefit-termination grounds specified in § 202(n) of the Social Security Act, his benefits were terminated soon thereafter. The Court stressed that this "sanction [was] the mere denial of a non¬ contractual governmental benefit. No af¬ firmative disability or restraint [was] im¬ posed, and certainly nothing approaching the 'infamous

punishment’

of imprison-

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nonpunitive goals”; 12 and it must not have been motivated by a desire ment.” Id. at 617. The Court’s adherence to the distinction between rights and privi¬ leges was also reflected in American Com¬ munications Association v. Douds, where the Court concluded that it was not "free to treat § 9(h) [of the Taft-Hartley Act] as if it merely [withdrew] a privilege gratui¬ tously granted by the Government 339 U.S. 382, 389-90 (1950).

. . .”

In the 1960s, however, the right-privilege dichotomy again began to lose its signifi¬ cance in the adjudication of attainder, a downfall that corresponded with the de¬ cline of that distinction in constitutional law generally. See generally Van Alstyne, "The Demise of the Right-Privilege Distinc¬ tion in Constitutional Law,” 81 Harv.L. Rev. 1439 (1968); O’Neill, "Unconstitution¬ al Conditions: Welfare Benefits with Strings Attached,” 54 Calif.L.Rev. 443 (1966). See §§ 10-8, 10-9, 11-5, infra. By the time of United States v. Brown, 381 U.S. 437 (1965), the Court was ready to reaffirm the principles first articulated al¬ most a century earlier in Cummings v. Missouri. The Court quoted with evident approval the language from Cummings noted earlier, and recalled that "the Bill of Attainder Clause was not to be given a narrow historical reading, . . . but was instead to be read in light of the evil the Framers had sought to bar: legislative punishment

of any form of severity, of spe¬

cifically designated persons or groups .” Id. at 447 (emphasis added). Read in its en¬ tirety, United States v. Brown both repudi¬ ated the right-privilege dichotomy and revitalized the ban against singling out persons for special disability without the safeguards of trial. Even so, the Supreme Court has not alto¬ gether lost interest in the right-privilege dichotomy in this context. In Selective Service System v. Minnesota PIRG, 468 U.S. 841 (1984), where the Court rejected a bill of attainder attack upon the condition¬ ing of federal financial assistance to male students upon their certification that they had duly registered for the draft, the Court quoted the passage in Flemming referring to the "mere denial of a non-contractual governmental benefit.” Id. at 853, quoting 363 U.S. at 617. Analogizing to historical precedents of denials of employment, the district court had found that the denial of federal financial aid "deprives students of the practical means to achieve the educa¬ tion necessary to pursue many vocations in our society.” Doe v. Selective Service Sys¬ tem, 557 F.Supp. 937, 944 (1983). The Su¬ preme Court intimated in a footnote that Goldberg v. Kelly, 397 U.S. 254 (1970), and Mathews v. Eldridge, 424 U.S. 319 (1976), two of the cases standing for the demise of

the right-privilege dichotomy, were distin¬ guishable as due process cases involving special dependence on a benefit, and noted that Flemming itself provided an example of a case in which the benefit at stake was considered to fall under the protection of the due process but not the bill of attainder clause. 468 U.S. at 853 n. 10. But the Court went on to stress that, however the deprivation might be characterized, appli¬ cants could avoid it "at any time by regis¬ tering late and thus 'carry the keys of their prison in their own pockets.’ ” Id. at 853, quoting Shillitani v. United States, 384 U.S. 364, 368 (1966). Thus the invocation of the right-privilege distinction may have been a makeweight attainder analysis.

in the Court’s bill of

Justice Powell, concurring, appears to have found the absence of any coercive degree of dependence decisive of the "pun¬ ishment” issue: "[The statute] provides a benefit at the expense of taxpayers gener¬ ally for those who request and qualify for it. There is no compulsion to request the benefit.” Id. at 860. Concurring in Immi¬ gration and Naturalization Service v. Chadha, 462 U.S. 919, 967 n. 9 (1983), Jus¬ tice Powell had stated more broadly that, "[w]hen Congress grants particular individ¬ uals relief or benefits under its spending power, the danger of oppressive action that the separation of powers was designed to avoid is not implicated.” In Chadha, how¬ ever, he took the view that action by all or part of Congress vetoing an administrative suspension of a specific individual’s depor¬ tation implicated the concerns of the bill of attainder ban. Id. at 963, discussed in § 43, supra. 12. Selective Service, 468 U.S. at 854. Even under the expansive view in Brown, legislatively inflicted disabilities will con¬ tinue to escape the attainder ban unless they contain stigmatizing elements sug¬ gesting that they go beyond anything rea¬ sonably necessary for valid governmental regulation. When the Court rejected for¬ mer President Nixon’s bill of attainder at¬ tack upon the Act of Congress requiring the General Services Administration to take custody of his presidential papers and tape recordings, the majority opinion stressed circumstances showing that the Act rested neither upon a congressional determination of the former President’s blameworthiness nor upon a desire to pun¬ ish him. Nixon v. Administrator of Gener¬ al Services, 433 U.S. 425 (1977). But neither the Brown opinion nor the Nixon opinion adequately explained why a con¬ cern with blameworthiness as such, or even an inquiry into Congress’ aims, should con¬ tinue to be a prerequisite to classification

654

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to impose punishment.13

REGULARITY

Ch. 10

It seems fairly clear, however, that this is a

as a bill of attainder in a system that views punishment as encompassing deterrence and prevention as well as retribution. In the Nixon opinion, the Court noted that the absence of explicit congressional con¬ cern to fix Mr. Nixon’s blame or to con¬ demn his conduct "undercuts a major con¬ cern that prompted the bill of attainder prohibition: the fear that the legislature, in seeking to pander to an inflamed popu¬ lar constituency, will find it expedient openly to assume the mantle of judge — or worse still, lynch mob.” Id. at 480 & n. 45. Yet Justice Stevens seemed to offer a more realistic assessment when he observed that what Congress did "implicitly condemns [Mr. Nixon] as an unreliable custodian of his papers” and subjects him to "humiliat¬ ing treatment” not unlike that "typically directed [by bills of attainder] at once pow¬ erful leaders of government.” Id. at 484, 485 n. 1 (concurring opinion). The danger that such public retaliation against the once-powerful will be politically motivated seems no less serious, and no less relevant to the bill of attainder ban, than the risk that it will be inspired by a desire to pun¬ ish. Indeed, although the Selective Service System opinion repeated that only punitive measures may be classified as bills of at¬ tainder, its principal focus in that regard was on the structure of Congress’ statute rather than on the motives of those who voted for it: the Court emphasized that the law at issue permitted anyone to avoid its disabilities by belated draft registration and was in that sense purely regulatory rather than penalizing of any particular class. 468 U.S. at 853-55. 13. Selective Service, 468 U.S. at 855. Whether one is dealing with the depriva¬ tion of a right or the denial of a privilege, however, the prohibition against bills of attainder has traditionally been thought to apply only when the challenged enactment is in some suitable sense classifiable as "punitive” in nature. At one time, the Supreme Court indicated that the legisla¬ tively inflicted disability had to be intend¬ ed by the legislature as retribution for past acts before the bill of attainder clauses could apply. This doctrine was first ex¬ pressed in United States v. Lovett, 328 U.S. 303, 308-12 (1946). In his concurring opin¬ ion, Justice Frankfurter took the position that an act could not be termed a bill of attainder unless it contained a direct ex¬ pression of an intent to punish. Id. at 326. The Frankfurter view was accepted by the Court in American Communications Asso¬ ciation v. Douds, 339 U.S. 382 (1950). Sec¬ tion 9(h) of the Taft-Hartley Act, which required each officer of a union utilizing the Act’s opportunities to file an affidavit stating that he was not a member of the

Communist Party, was there sustained against challenges that the provision both infringed freedom of speech and was a pro¬ hibited bill of attainder. The attainder attacks on the provision’s requirements the Court’s convic¬ because inofpassing rejected were tion that Congress, § 9(h), was concerned only with likely future conduct. 339 U.S. at 413-14. See § 10-4, supra. Two cases decided by the Supreme Court in 1960 indicate that the Court was still searching for clear signs of punitive intent before striking down a legislative scheme as a bill of attainder. In Flemming v. Nestor, 363 U.S. 603 (1960), supra note 11, Justice Harlan concluded for the Court that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground. Judicial inquir¬ ies into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed.” Id. at 617. In De Veau v. Braisted, 363 U.S. 144 (1960), decided the same Term as Flem¬ ming v. Nestor, the Court appeared much readier to inquire into legislative motive to support its decision upholding § 8 of the New York Waterfront Commission Act of 1953, which disqualified any person who had been convicted of a felony without subsequently being pardoned or having the disability removed by the Board of Parole, from serving in any office in a waterfront labor organization. In determining that § 8 violated neither the ban on bills of attainder nor the prohibition of ex post facto laws, the Court, in an opinion by Justice Frankfurter, asked "whether the legislative aim was to punish the individu¬ al for past activity, or whether the restric¬ tion of the individual comes about as a relevant incident to a regulation of a pres¬ ent situation,” 363 U.S. at 160, and con¬ cluded that "[n]o doubt is justified regard¬ ing the legislative purpose of § 8. The proof is overwhelming that New York sought not to punish ex-felons, but to de¬ vise what was felt to be a much-needed scheme of regulation of the waterfront, and for the effectuation of that scheme it be¬ came important whether individuals had previously been convicted of a felony.” Id., In United States v. Brown, however, in the course of invalidating § 504 of the La¬ bor Management Reporting Act, which made it a crime for Communists to hold union office, the Court re-examined both the history of bills of attainder and the purposes of punishment and concluded

that "[i]t would be archaic to limit the definition of 'punishment’ to 'retribution.’ Punishment serves several purposes: re¬ tributive, rehabilitative, deterrent — and

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mistaken description of the process by which a measure is classified as punitive or otherwise. Even measures historically associated with punishment — such as permanent exclusion from an occupation — have been otherwise regarded when the nonpunitive aims of an apparently prophylactic measure have seemed sufficiently clear and convincing.14 And, conversely, measures enacted not in order to punish but in order to prevent future harm have been condemned as forbidden bills of attainder when such measures have been thought to rest on a legisla¬ tive determination that particular persons have shown themselves to be blameworthy or at least culpably unreliable.15 In Selective Service System v. Minnesota Public Interest Research Group , the Court found nothing punitive in Congress’ determination to withhold federal aid from college and graduate school students unwill¬ ing to comply with their draft registration obligations. Although there is language in the opinion suggesting that the temporary withholding of a statutory benefit cannot qualify as punishment for bill of attainder purposes absent punitive motive by the legislature at least where a nonpunitive aim is served,16 it would be a mistake to read those passages apart from the special context in which they appeared. For the Court had already held that the attainder attack on the statute failed the most basic test that all such challenges must meet: the statute did not, as a bill of attainder must, single out or "specify” a fixed class of persons for disadvantageous treatment. Inasmuch as the persons designated remained free to avoid disadvantage by belated compliance with the law, the law avoided the pitfall of specifying a set of persons for some burden they were unable thereafter to avoid.17 Thus the Court’s discussion of the nonpunitive character of the disabili¬ ty was unnecessary to its decision. Moreover, even in that discussion, the Court stressed the ability of any student to avoid the disability simply by registering for the draft — something Congress had undoubted power to require.18 preventative. One of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm, but that does not make imprisonment any the

ish — but need not seek to do so for retribu¬ tive as opposed to preventative or

less punishment.” 381 U.S. 437, 458 (1965). Given this analysis, no specifically retributive intent need be shown before an

despite "several isolated statements [by congressional sponsors] expressing under¬ standable indignation over the decision of some nonregistrants to show their defiance of the law.” Id. at 855 n. 15.

inflicted disability can be classified as pun¬ ishment. "Punishment is not limited sole¬ ly to retribution for past events, but may involve deprivations inflicted to deter fu¬ ture misconduct.” Selective Service Sys¬ tem v. Minnesota PIRG, 468 U.S. 841, 852 (1984) (dictum), citing United States v. Brown, 381 U.S. at 458-59; see also Nixon v. Administrator of General Services, 433 U.S. 425, 476 n. 40 (1977) (dictum). The Court has nonetheless reiterated its earlier insistence, see Flemming v. Nestor, 363 U.S. at 619, supra note 11, that there be "unmistakable evidence of punitive intent” before an Act of Congress may be invali¬ dated on this basis. Selective Service, 468 U.S. at 855 n. 15. Evidently, then, a for¬ bidden bill of attainder must seek to pun¬

rehabilitative purposes. The Court in Se¬ lective Service found no punitive intent

14. See, e.g., Hawker v. New York, 170 U.S. 189 (1898), discussed in § 10-4, note 15, supra, and De Veau v. Braisted, 363 U.S. 144 (1960), discussed in note 13, supra. 15. See, e.g., United States v. Brown, 381 U.S. 437 (1965), discussed in § 10-4, supra.

16. 468 U.S. at 851-56. See also Pow¬ ell, J., concurring, id. at 859-62.

17. Id. at 847-51. See § 10-4, supra. 18. For example, the Court concluded that "[a] statute that leaves open perpetu¬ ally the possibility of qualifying for aid does not fall within the historic meaning of

656

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If Congress were to exclude from student aid programs, from public housing, from food stamp benefits, or from some other statutory scheme of privileges, all those who could not affirmatively certify, on pain of perjury, that they had not at any time in the past committed any of several specified criminal offenses, the fact that such exclusion might well serve nonpunitive purposes — as by deterring future violations — and the fact that Congress might have acted without "punishment” in mind but solely with the thought that scarce public resources ought not to be expended on lawbreakers, should not suffice to rebuff a bill of attainder attack on the legislative exclusion. Rather, absent a provi¬ sion for the individuals named to purge themselves of disability by belated compliance, the exclusion ought to be regarded as an augmenta¬ tion to the existing scheme of statutory penalties, imposed without the safeguards of criminal trial. That such imposition might also occur without a finding of willfulness or the other usual indicia of criminali¬ ty, far from saving the measure from condemnation as a bill of attainder,19 should mark it as an even more egregious circumvention of the protections normally afforded accused persons through the process of criminal charge and trial. § 10-6. Applying Bill of Attainder Doctrine to Non-legislative Action: Separation of Powers Considerations As the Supreme

Court construed it in United States v. Brown , the

"command of the Bill of Attainder Clause” is "that a legislature can provide that persons possessing certain characteristics must abstain from certain activities, but must leave to other tribunals the task of deciding who possesses those characteristics . . . ” 1 In this sense, the forbidden legislative punishment.” Id. at 853. Under the functional test, the Court noted that "one of the primary purposes of § 1113 was to encourage those required to register to do so.” Id. at 854. And the Court believed that the fact that Congress allowed all nonregistrants, willful or not, to qualify for Title IV aid "simply by regis¬ tering late” evidenced its "nonpunitive spirit.” Id. at 855. The doctrinal separation of the analysis of the ban on bills of attainder into two tests — one for "specification,” discussed in § 10-4, and one for "punishment,” dis¬ cussed in this section — should not be al¬ lowed to obscure the overlapping concern with the reasonableness of the legislature’s pursuit of legitimate, nonpunitive aims. Where a fixed, identifiable group — such as ex-convicts — is singled out and a burden — such as denial of some form of employ¬ ment — is imposed, but there is no indica¬ tion of a legislative motive to punish and there is a legislative end that is both legiti¬ mate and nonpunitive, then the ability of such a law to pass scrutiny under bill of attainder analysis will depend on the rea¬ sonableness with which it pursues the ends it serves. Given such reasonableness, it may be plausible to say either that the law

does not entail undue "specification,” see the discussion in § 10-4, or that the law does not inflict "punishment,” or perhaps both. Indeed, the judgment as to reasona¬ bleness may depend largely on the rela¬ tionship between the nature of the singling out, the nature of the legitimate, nonpuni¬ tive end, and the nature of the burden imposed. See § 10-4, note 25, supra. 19. The majority in Selective Service viewed the denial by § 1113 of benefits to "innocent as well as willful” nonregis¬ trants as an indication that the statute was not punitive. 468 U.S. at 855. It is entire¬ ly consistent with the presence of a puni¬ tive intent, however, that, in a rush to condemn the "guilty” without the procedu¬ ral safeguards of a trial, some of the "inno¬ cent” may be swept into the corral as well. This, of course, is the basic fear underlying the bill of attainder doctrine — that some will be dealt with unjustly. If legislatures could be depended on to condemn only those truly deserving of punishment, there would be far less need for the prohibition on bills of attainder.

1. 381 U.S. 437, 454 n. 29 (1965). § 10-6

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657

ban on bills of attainder, and to some degree the more limited ban on ex post facto laws,2 serves not "as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislature.” 3 Viewed as an implementation of principles of separation of pow¬ ers,4 the ban on bills of attainder is important for several reasons. First, the ban reflects the judgment that "a legislative body, from its number and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited — the very class of cases most likely to be prosecuted ing the legislature, or any body acting inflicting injury upon specific persons, operate to guarantee that the procedural or at least an adversary hearing before available to offset the clamor of public

by this mode.” 5 By prevent¬ in a lawmaking mode, from the bill of attainder clauses safeguards of a judicial trial, an impartial tribunal, will be opinion.

Second, the prohibition reflects not only the judgment

of the

Framers that the legislative branch of government presented the great¬ est potential threat to liberty,6 but also the further conviction that no branch should be empowered unilaterally to inflict a serious hardship on particular individuals or groups.7 By restricting the legislative process to the formulation of general rules, the bill of attainder clauses work to guarantee an institutional fractionalization of power. A third concern that links the bill of attainder clauses to notions about separation of powers "is rooted in the desirability of legislative disclosure of its purposes. When one branch may both enact and apply, it may more easily veil its real motive and even its true target. . . . Thus, separating policy making from application has the additional virtue of requiring relatively clear and candid articulation of the legislative purpose. By requiring the legislature to expose its purpose for observation the political processes are given a fuller opportunity to react to it. And the judiciary is better able to judge the validity of the purpose and to assure that it violates no constitutional restrictions.” 8 2. See §§ 10-2, 10-3, supra. 3. 381 U.S. at 442. 4. See Chapters 1 and 2, supra.

5. 1 T. Cooley, Constitutional Limita¬ tions 536-537 (8th ed. 1927). 6. See The Federalist No. 48, at 383384 (Hamilton ed. 1880) (J. Madison): ". . . [I]n a representative republic, where the executive is carefully limited, both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a

multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the peo¬ ple ought to indulge all their jealousy and exhaust all their precautions.”

7. See also Montesquieu, The Spirit of Laws 154 (6th ed. 1792) (translated by Nu¬ gent); The Federalist No. 47, at 373-374 (Hamilton ed. 1880) (J. Madison). 8. Note, "The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause,” 72 Yale L.J. 330, 346-47 (1962). This view of the im¬ portance of the institutional separation of

658

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Ch. 10

Although the historic core of the bill of attainder ban requires its application to any genuinely legislative trial regardless of the procedu¬ ral safeguards provided, the concerns behind the principle of separation of powers raise the question whether the ban should also be applied, when trial-type safeguards are absent, to punitive measures inflicted by rcorc-legislative bodies, whether the people at large or an executive agency supposedly accountable to the people in some way. As Justice Powell noted in Immigration and Naturalization Service v. Chadha , although ''the traditional characterization of [a] power as legislative, executive, or judicial may provide some guidance . . ., the more helpful inquiry ... is whether the act in question raises the dangers the Framers sought to avoid” through the separation of powers: "the exercise of unchecked power.” 9 Justice Powell treated the bill of attainder clause as a specific application to the legislature of more general separation of powers principles; 10 understood in terms of its purposes, the ban on bills of attainder could be far-reaching indeed. For example, in Eastlake v. Forest City Enterprises , where a divided Supreme Court upheld a city’s refusal to grant a zoning variance without approval by a 55% vote in a popular referendum,11 the enter¬ prise seeking the variance might have done better to argue not that the referendum requirement was an "unconstitutional delegation of legisla¬ tive power to the people,” 12 but that the requirement operated much like a bill of attainder— particularly since it was enacted (1) while the respondent’s application "for a zoning change a multifamily, high-rise apartment building” the face of the City Planning Commission’s City Council approve the change.14 To be government powers suggests that one of the functions of the bill of attainder clauses is to provide protection, through a direct restraint on the process of legislat¬ ing, for substantive rights, and for politi¬ cally weak groups, which might be subject¬ ed to veiled assaults through legislation. One further way of viewing the ban on bills of attainder is to regard it as a mirror image of the restraints placed on judicial action by Article III. See id. at 347. Just as the institutional incapacity of judicial bodies is usually thought to reach its apex when they try to formulate general rules or policies, so the incapacity of political bodies like legislatures may be at its peak when they seek to decide which specific individuals deserve to be deprived of some opportunity. See Brown, 381 U.S. at 454 n. 29. 9. 462 U.S. 919, 965 n. 7, 967 (1983) (concurring opinion). 16. Id. at 963.

Justice Powell opined

that, although "independent regulatory agencies and departments of the Executive Branch often exercise authority that is 'ju¬ dicial in nature,’. . . . [t]his function . . . forms a part of public law and is subject to the procedural safeguards, in¬

to permit construction of was pending,13 and (2) in recommendation that the sure, no "existing rights

cluding judicial review, provided by the Administrative Procedure Act.” Id. at 967 n. 10, quoting Buckley v. Valeo, 424 U.S. 1, 140-41 (1976). It might be that, at least for Justice Powell, safeguards like those of the Administrative Procedure Act would be constitutionally required in the opera¬ tion of regulatory agencies and executive departments. 11. 426 U.S. 668 (1976). 12. Id. at 671. The Court, in an opinion by Chief Justice Burger, easily distin¬ guished such prior cases as Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928), and Eubank v. Richmond, 226 U.S. 137 (1912), as having condemned only delegations of lawmaking power "to a narrow segment of the community, not to the people at large.” 426 U.S. at 677. 13. 426 U.S. at 670. 14. Id. Strangely, respondent

did not

appeal the lower court’s rejection of the argument "that the charter amendment could not apply to its rezoning application since the application was pending at the time the amendment was adopted.” Id. at 671 n. 2. Since the issue was "therefore not before [the Court],” id., the case cannot

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[were] being impaired; new use rights [were] being sought from the City Council,” 18 and administrative as well as other forms of relief remained available if hardship could be shown.16 But although such alternative avenues for obtaining the benefit that respondent sought might suffice to meet a conventional due process objection even if a protected right were being impaired,17 it is doubtful that either the character of the variance as a "privilege” or the availability of relief from demonstrated hardship could meet the less familiar but in some ways more basic objection that popular assemblies — and, even more clearly, the popu¬ lace itself — cannot constitutionally be empowered to dispose of impor¬ tant interests of identified individuals without some "realistic opportu¬ nity for the affected person to be heard, even by the electorate.” 18 The fact that "the popular vote is not an acceptable method of adjudicating the rights of individual litigants,” 19 even if they may have no "legal right to the relief [they seek],” 20 should be understood as following not simply from general notions of fairness but from the more specific concerns implicit in the ban on bills of attainder. Just as the fact that Archie Brown had no "legal right” to hold a labor union office properly made no difference in United States v. Brown ,21 so it should not have been decisive in Eastlake that the respondent had no "right” to a zoning change. And just as Brown probably did not turn on the absence of any procedure for "hardship” dispensations,22 so the pres¬ ence of such a procedure should not have affected the outcome in Eastlake. Since the referendum requirement was upheld only against a delegation challenge,23 Eastlake is not authority for rejecting chal¬ lenges, based either on the attainder ban or on a due process principle derived therefrom, to processes of decision that bypass normal protec¬ tive procedures for resolving issues adversely affecting individual inter¬ ests.24 be taken to have rejected the argument text.

in

15. 426 U.S. at 679 n. 13. 16. Id.

17. See, e.g., Ingraham v. Wright, 430 U.S. 651 (1977), discussed in § 10-14, infra. But see Moore v. East Cleveland, 431 U.S. 494, 497 n. 5 (1977); id. at 512 (Brennan, J., joined by Marshall, J., dissenting), dis¬ cussed in §§ 15-17, 15-20, infra.

18. 426 U.S. at 680 (Powell, J., dissent¬ ing).

19. Id. at 693 (Stevens, J., joined by Brennan, J., dissenting). See also id. at 680 (Powell, J., dissenting).

20. Id. at 682 (Stevens, J., joined by Brennan, J., dissenting) (emphasis added). 21. 381 U.S. 437 (1965).

22. The Court in Brown

did suggest

that the inclusion of an "escape clause” in § 32 of the Banking Act, at issue in Board of Governors v. Agnew, 329 U.S. 441 (1947), supports the conclusion that Congress was merely using a convenient shorthand phrase to express a concern with general

characteristics rather than with a specific group of individuals. 381 U.S. at 455. It seems highly unlikely, however, that the presence of such a clause, consisting in § 32 of a provision that the prescribed dis¬ qualifications should not obtain whenever the Board of Governors determined that there would not be undue influence upon the investment policies of the bank or upon the advice given by the bank to customers, is constitutionally dispositive of the issue whether a given act is a bill of attainder. There was, for example, no further intima¬ tion by the Brown Court that a similar provision in § 504, giving the NLRB au¬ thority to allow certain Communists to serve as labor union officials when there appeared to be little risk of political strikes, would have been sufficient to con¬ vert § 504 into a constitutionally accept¬ able shorthand phrase. 23. Eastlake, 426 U.S. at 672-77; id. at 677 n. 11.

24. One imaginable limitation on this use of either the attainder ban or the due process requirement would focus on the character of the interest affected. Every

660

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Ch. 10

Nor should the ban on bills of attainder be limited to actions taken by the ever-excitable popular will, directly or through representatives. For a core aspect of the separation-of-powers theory accepted by the Supreme Court in United States v. Brown 25 was the belief that no branch of government should be empowered unilaterally to impose a serious penalty or disability on identified private individuals. The development of powerful administrative agencies was of course not foreseeable in 1787, 26 and the risk that the Executive Branch would engage in rule-making activities at all, much less rule-making aimed at particular persons, probably did not occur to those framing constitu¬ tional restraints. As a result, the ban on bills of attainder was probably conceived at first as a limitation upon the legislature alone. Today, however, as executive and administrative agencies play an increasingly significant role in government, the question whether the ban applies to actions of these agencies assumes greater significance. The Supreme

Court has never directly ruled on the applicability of

the attainder ban to agency actions. But the facts of Joint Anti-Fascist Refugee Committee v. McGrath 27 made a powerful case for the applica¬ bility of the ban to actions by the Attorney General. Pursuant to Executive Order No. 9835, the Attorney General had compiled lists of allegedly subversive organizations. The Supreme Court reversed the dismissal of complaints by three organizations challenging their inclu¬ sion on the lists. Justice Black’s separate concurrence was especially noteworthy: 28 "[I]n my judgment the executive has no constitutional authority, with or without a hearing, officially to prepare and publish the lists challenged by petitioners . . . [Officially prepared and proclaimed governmental blacklists possess almost every quality of bills of attainder, the use of which was from the beginning forbidden to both national and state governments. U.S. Const., Art. I, §§ 9, 10. It is true that the classic bill of attainder was a condemnation by the legislature following investigations by that body, . . . while in the present case the Attorney General performed the official tasks. But I cannot believe that the authors of the Constitution, who outlawed the bill of attainder, inadvertently endowed the executive with power to engage in the same tyrannical practices that had made the bill such an odious institution.” Justice Black’s argument is bolstered by the concern for institution¬ al fractionalization of power discussed above. Montesquieu, among others, realized that it was important to keep the Judiciary separate from the Executive as well as the Legislature: 29 "Again, there is no enactment

thus far held to be a forbidden

bill of attainder barred designated individ¬ uals or groups from taking part in specified employments or vocations. In Nixon v. Administrator of General Services, 433 U.S. 425 (1977), the former President had been denied only unfettered pers and tapes most of which claim to own, and Congress for a future award of just

access to pa¬ he could not had provided compensation

should any of Mr. Nixon’s property inter¬ ests be taken. That neither "property” nor "liberty” to pursue an occupation was involved proved important in the Court’s

holding that Mr. Nixon had not been sub¬ jected to a forbidden bill of attainder. See §§ 10-4, 10-5, supra. 25. 381 U.S. 437 (1965). 26. See Note, "The Bill of Attainder Clauses and Legislative and Administra¬ tive Suppression 'Subversives,’ ” 67 Colum.L.Rev. 1490, of 1500 (1967). 27. 341 U.S. 123 (1950). 28. Id. at 143. 29. The Spirit of the Laws 1792) (T. Nugent, trans.).

154 (6th ed.

§ 10-6

MODEL

OF GOVERNMENTAL

liberty, if the judiciary power the executive. Were it joined the subject would be exposed be then the legislator. Were

REGULARITY

661

be not separated from the legislative and with the legislative, the life and liberty of to arbitrary control; for the judge would it joined to the executive power, the judge

might behave with violence and oppression.” But there is a more fundamental reason to accept Justice Black’s conclusion. Insofar as the ban on bills of attainder is understood "not to prohibit trial by a particular body but rather to prohibit trial by legislative method , that is, to assure a defendant adequate judicial safeguards regardless of what body tries him,” 30 it would make no sense to view the ban as less applicable to executive officers or adminis¬ trative agencies than to legislative assemblies, or to the people acting in a general referendum. And it would make no sense to view the ban as less applicable to agencies having narrow enforcement responsibilities than to agencies exercising broad rule-making

functions.31

The generalization that "[legislatures cannot properly function like Courts, [while at least some] administrative agencies can,” 32 should thus be taken as having no particular force when a legislature indeed undertakes to accord trial-type safeguards to affected persons in accord with constitutionally approved procedures — or conversely, when an administrative agency omits such safeguards. When the House of Representatives sits to consider a bill of impeachment or the Senate to conduct an impeachment trial, for example, the attainder ban has no application — not because Congress loses its character as a legislative assembly on such awesome occasions but because its adversary process¬ es are expressly delineated by a more specific constitutional provision. In contrast, for Congress to "find” a sitting or past President "guilty” in the course of enacting ordinary legislation poses the attainder problem in a powerful form 33 — and, in fact, would still pose that problem even if Congress were to provide trial-type safeguards. So too, when the Attorney General, or any agency or department of government, acts to impose a focused deprivation upon an identifiable individual, its con¬ duct should be subject to scrutiny under attainder principles — to ascer¬ tain, in particular, whether it has accorded appropriate trial-type safeguards. Finally, one apparent difficulty with the separation-of-powers view of the bill of attainder doctrine as applied to non-legislative action should be disposed of explicitly. As Justice White said in his Brown dissent, "if Art. I, § 9, cl. 3, immortalizes some notion of the separation of powers at the federal level, then Art. I, § 10 necessarily does the same for the States,” a conclusion he thought incompatible with the traditional view that how the states separate or combine their legisla30. Note, "The Supreme Court, 1964 Term/’ 79 Harv.L.Rev. 105, 121 (1965) (em¬ phasis added). 31. On the contrary, the desire to pre¬ vent the bill of attainder ban from impos¬ ing any particular configuration of separat¬ ed powers, especially upon state and local government, see Brown, 381 U.S. at 462 (White, J., joined by Harlan, Clark, and

Stewart, JJ., dissenting), points strongly to a doctrine that treats the ban as barring trial by legislative method and not simply trial by legislative body. 32. Note, supra note 26, at 1502. 33. See the discussion of Nixon v. Ad¬ ministrator of General Services, 433 U.S. 425 (1977), in §§ 10-4 and 10-5, supra.

Ch. 10

662

MODEL

tive, judicial, cases cited in only that the in the federal

and executive powers is for them to determine.34 But the support of that view, such as Dreyer v. Illinois ,35 suggest particular pattern of interbranch relationship employed government need not be copied by each state, not that a

OF GOVERNMENTAL

REGULARITY

state should be any freer than the federal government to inflict depri¬ vations upon identified persons by popular vote, by the sort of log¬ rolling process that is characteristic of representative assemblies, or indeed by any process that circumvents the safeguards of adversary hearing and judicial review.36 On the contrary, as early as 1810, Chief Justice Marshall argued that the Framers designed the ban on state bills of attainder as part of a system of institutional protections against the excited actions of popular assemblies: 37 "Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting the instrument have manifested a determination to shield themselves and their property from those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the states are obviously founded in this sentiment; and the Constitution of the United States contains what may be deemed

a bill of rights for the people of each state.”

In accord with this ing the bill of attainder of-powers configuration or, for that matter, at governmental processes

early vision, Brown should be read as interpret¬ bans not as freezing any particular separationinto the Constitution, either at the state level the federal level, but as requiring that those which are not circumscribed by the safeguards

34. 381 U.S. at 473.

Justice White

in Brown,

for Carfer held

only that claiming a state legislative inves¬ 35. 187 U.S. 71 (1902) (upholding state’s Indeterminate Sentencing Act over an at¬ tack that it impermissibly delegated judi¬ cial power to the executive), cited by Jus¬ tice White in 381 U.S. at 473.

tigation to be beyond the legislature’s juris¬ diction as established in the state constitu¬ tion did not present a federal question. Finally, in Sweezy v. New Hampshire, 354 U.S. 234 (1957), while the Court did say in

36. In his dissent in Brown, Justice White cited several cases in addition to

dictum that "the concept of separation of powers embodied in the United States Con¬ stitution is not mandatory in state govern¬ ments,” id. at 255, the Sweezy Court held that a conviction for contempt of the legis¬ lature visited upon petitioner for refusing to answer certain questions in an investi¬ gation conducted by the state attorney gen¬ eral violated the due process clause of the fourteenth amendment since there was no evidence that the legislature actually de¬ sired the information inquired about and since the petitioner’s constitutional rights were jeopardized by the investigation. There is thus no real support in the cases for the proposition that a state legislature can assume fully judicial powers.

.

38

0) 81

(1

7-

13

, 87

Dreyer to support the proposition that the doctrine of separation of powers does not apply to the states. 381 U.S. at 473. Reetz v. Michigan, 188 U.S. 505 (1903), upheld the power of a state to establish a board of registration for doctors and to authorize the board to refuse to certify an applicant if he had not presented sufficient proof that he had been legally registered under a prior act. But it was the board of registration rather than the legislature which performed the individualized factfinding under the legislative program in Reetz, and adjudication by an administra¬ tive agency need not present the same in¬ stitutional or procedural dangers as adjudi¬ cation by the legislature itself. Carfer v. Caldwell, 200 U.S. 293 (1906), also provides no substantial support for the position of

§ 10-7

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663

of adversary trial limit themselves — if they are to mete out penalties — to the promulgation of general rules.38 It should be stressed that the principle elaborated here is not equivalent to any mechanical ban on legislative, administrative, or other nonadjudicative actions having adverse impacts on identifiable persons or institutions; rather, it is a principle that puts government to a choice of either avoiding such action or devising procedurally fair ways for adversely affected persons to participate directly in the deci¬ sion-making process.39 And it bears repeating that the initial choice in any given case is for government to make; government must decide how prospective and how general to make its actions. To the extent that they are retrospective , however, they may neither frustrate justi¬ fied reliance without good reason nor inflict condemnation without clearly promulgated prior authority; and to the extent that they focus on specific persons , they may not be effected without safeguards closely akin to those of judicial trial. What this will mean as a practical matter is not that executives and administrators, like legislatures or the people acting through referenda, should be expected to formulate only general policies and to avoid actions having determinate adverse impacts upon the lives or liberties of particular persons; what it will mean is that the case for procedurally fair participation by such persons should be understood to rest not only on the general norms of fairness derived from the due process clauses— norms taken up in the remaining sections of this Chapter — but also on the more precise concerns of the ex post facto and bill of attainder clauses — concerns we have canvassed in §§ 10-1 through 10-6. § 10-7. Procedural

Due

Process:

Intrinsic and Instrumental

As¬

pects The fifth amendment commands the federal government: "No person shall ... be deprived of life, liberty, or property, without due process of law. . . . ” The fourteenth amendment similarly binds the states: "nor shall any State deprive any person of life, liberty, or 38. To be su~e, "Congress may pass leg¬ islation affecting specific persons in the form of private bills. It may also punish

cussed in §§ 10-7 and 10-19, infra, and Ch. 17, infra, it does not follow that specific persons adversely affected in determinate

persons who commit contempt before it.” 381 U.S. at 473 (White, J., dissenting). But these practices should be regarded either as highly specialized exceptions for purely beneficial as opposed to burdensome mea¬ sures, or as subject to procedural safe¬ guards, and not as derogations of the truly

ways by a "public act” may be completely excluded from individualized interchange with the decisionmaker and relegated to generic exercise of the right of citizens generally, see Chs. 12 & 13, to speech, petition, and voting. That the number of such persons in a given case may be large should bear on the sort of process that is

fundamental principle that trial by log¬ rolling or by popular vote must be forbid¬ den.

39. Thus, although the "Constitution does not require all public acts to be done in town meeting or an assembly of the

devised, cf. Stewart, "The Development of Administrative and Quasi-Constitutional Law in Judicial Review of Environmental Decisionmaking: Lessons From the Clean

whole,” Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 445

Air Act,” 62 Iowa L.Rev. 713, 731-33 (1977) (on "paper hearing” procedures), but not on the question whether some process of

(1915); accord, O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980); id. at 799-800 (Blackmun, J., concurring), dis¬

personalized participation is constitutional¬ ly mandated. See generally §§ 10-7 to 1019, infra.

664

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Ch. 10

These procedural safe¬ property, without due process of law. . . guards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institution¬ al check on arbitrary government action.1 The Supreme Court has analogized due process to the Magna Carta’s "'guaranties against the oppressions and usurpations” 2 of the royal prerogative, in support of the basic conclusion that due process "is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress [or the states] free to make any process 'due process of law,’ by its mere

will.” 3

The element of due process analysis characterized as "procedural due process” delineates the constitutional limits on judicial, executive, and administrative enforcement of legislative or other governmental dictates or decisions.4 This has traditionally involved the elaboration of procedural safeguards designed to accord to the individual "the right to be heard before being condemned to suffer grievous loss of any kind” 5 as a result of governmental choices— -which can take the form of acts or, less commonly, of omissions. However, governmental omissions that cause loss of life, liberty, or property, but are not the result of intentional governmental choices or policies, do not necessarily entail " deprivations ” without due process. In both Daniels v. Williams 6 and Davidson v. Cannon ,7 Justice Rehn10-7 1. See generally,§ Kadish, "Methodology and Criteria in Due Process Adjudication — A Survey and Criticism,” 66 Yale L.J. 319, 340 (1957) (limitations required "even in the area of legitimate governmental con¬ cern”). 2. Hurtado 531 (1884).

v. California, 110 U.S. 516,

3. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1855). See also Twining v. New Jersey, 211 U.S. 78, 106 (1908) (due process clause prohibits procedures which abridge any "fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such government”). Cf. Linde, "Due Process of Lawmaking,” 55 Neb.L.Rev. 197 (1976). 4. The analysis of constitutional limits on the content of legislative action, known as substantive due process, is discussed in Chapter 8, supra, and in Chapters 11-15, infra. And constitutional limits on the form of such action, or structural due pro¬ cess, are considered in Chapter 17, infra. 5. Joint Anti-Fascist Refugee Commit¬ tee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring). See also Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974) (some kind of hearing is required); Grannis v. Ordean, 234 U.S. 385, 394 (1914) ("The fundamental requisite of due process of law is the opportunity to be heard”);

McVeigh v. United States, 78 U.S. (11 Wall.) 259, 267 (1870) (right to notice and hearing). 6. 106 S.Ct. 662 (1986) (no "depriva¬ tion”, and thus no cause of action for dam¬ ages under 42 U.S.C. § 1983, where deputy sheriff negligently left a pillow on a flight of prison stairs, causing injury to a prison¬ er who slipped and fell on the pillow). Chief Justice Burger and Justices Brennan, White, Powell, and O’Connor joined Justice Rehnquist’s opinion for the Court. Justice Marshall concurred in the judgment. Jus¬ tice Blackmun concurred in the judgment, referring to his dissent in Davidson v. Can¬ non, 106 S.Ct. 668, 671 (1986). Justice Stevens filed a separate opinion concurring in both judgments. 7. 106 S.Ct. 668 (1986) (no "depriva¬ tion,” and thus no cause of action for dam¬ ages under 42 U.S.C. § 1983, where prison officials negligently failed to take action to protect a prisoner who had warned those officials of imminent danger to his life and physical safety). Chief Justice Burger and Justices White, Powell, and O’Connor joined Justice Rehnquist’s opinion for the Court. Justice Stevens concurred in the judgment. Justices Brennan, Marshall, and Blackmun dissented. In his dissent in Davidson, joined by Jus¬ tice Marshall, Justice Blackmun made a powerful argument that this case should have been distinguished from Daniels. In¬ carcerating someone in prison does not in-

§ 10-7

MODEL

OF GOVERNMENTAL

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665

quist stated for the majority that due process functions only to curb governmental abuse, unfairness, or oppression, not to compensate for injury caused by unintentional official behavior. Accordingly, it is immaterial whether or not the state provides any post-deprivation remedy, by way of a tort suit or otherwise, for such injuries.8 "Not only does the word 'deprive’ in the Due Process Clause connote more than a negligent act, but we should not 'open the federal courts to lawsuits where there has been no affirmative abuse of power.’ . . . Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law.” 9 Mere negligence of an official, then, does not implicate a due process violation.10 The extent to which one may require officials to submit to judicial or quasi-judicial review 11 of choices which disadvantage the individuvolve depriving him of the ability to be careful going down stairs, but it does in¬ volve stripping him of the means of self¬ protection: "[T]he state prevented David¬ son from defending himself, and therefore assumed some responsibility to protect him from the dangers to which he was ex¬ posed.” Davidson, 106 S.Ct. at 671 (Blackmun, J., dissenting). In contrast to Dan¬ iels, the injury here was "peculiarly related to the government function.” Id. at 674. Cf. Boddie v. Connecticut, 401 U.S. 371, 380-81 (1971) (Connecticut’s require¬ ment that a dissolution of marriage occur only through resort to its judicial system made the conditioning of such recourse on the ability to pay court fees and costs an unconstitutional denial of due process).

t he was "en th ma she tit in oa im theriffdef inta of sov at led mu ens ine ere n i at 663 ty lea to e sui d 106 iSg.Cn sta t,w”i vin In re , no ts.ta th te pri rt e t g m t s h epdr e one st e l Da x a y o.v p v w r ate is liidaed or ermess ent tha idsnoo pub p l n b t i l tole a by aloypyeri for any , inj ic cauty rs u s at 670 onerCon 106ed S.C pri ry fel t. J c rinlow in bsootne jud ust . Stevur¬ h r. gm g esns the vie etnhta bot pircie exp uf¬ s h t w s, res o n d " — e of lib fer se"de ert of aa rmesipriv tioed mad pribe the con sta a¬ y y va n se tio a q — kbeut 6 a S 1 u or a neg t 7 06en .Ct c a all8 pcrei . con lig tha nsn”et,i” ege son the ent t clu r iner the stad in con ded t a id. at 679 inea’s res deq "p stit r u , Da s¬ mu oce uatsiothe cir pons couacy had rej n¬ ect ch du na cui e, rt imed tth ” so asrsal l iel lawmuncla haert def at hivseresta wo s’ veio ul i i t e ig e nwh lef ttyhme the n de ated she aga d o t p r pil inst on the priuty sta iff id. at 680 and unf , as no sonfu irs, in low nd as air on n pol in aamesta inh nec muc ntte icy fessot ess h ere a to fin or its agle exp ari the pub s anlic 2nd Ed. UTB osi ly Tribe-Amer.Const.Law — n17ts ng

cial liability for prisoner-inflicted injuries such as the one Davidson sustained. Id. at 680-81. For Justice Stevens, it seems that the only colorable claim of basic unfairness was one Davidson did not make: that the state’s sovereign immunity statute would not have applied if the same prisoner had assaulted a non-prisoner. Id. at 681. 9. Daniels, 106 S.Ct. at 664-65 (quoting Parratt v. Taylor, 451 U.S. 527, 548-49 (1981) ). 10. Although the Court in 1986 re¬ served the question of whether official recklessness or gross negligence may result in a deprivation without due process, see Daniels, 106 S.Ct. at 667 n.3, the degree of culpability and abuse suggested by this heightened level of irresponsibility ought to suffice to satisfy the Court’s view of a deprivation — especially since a finding of a deprivation in such Amendment cases would not "makeof of the Fourteenth a font tort law to be superimposed upon whatever systems may already be administered by the states.” Id. at 666, quoting Paul v. Davis, 424 U.S. 693, 701 (1976). See also Whitley v. Albers, 475 U.S. 312 (1986) (shooting of prisoner during quelling of ri¬ ot, without prior warning, does not violate either eighth amendment ban on cruel and unusual punishment or substantive due process unless there is unnecessary and wanton infliction of pain; question of whether procedural due process is impli¬ cated in light of recklessness or gross negli¬ gence of prison officials was not presented by the prisoner). 11. The theory of due process as a guar¬ antee of meaningful access to judicial pro¬ tection is noted in § 10-18, infra, but is canvassed more fully in Chapter 16.

666

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Ch. 10

al 12 depends upon the range of personal interests qualifying as protect¬ ed "life,” "liberty,” and "property,” and upon the sort of hearing which will adequately protect these interests when threatened by governmen¬ tal acts or omissions. These considerations are in turn shaped by alternative conceptions of the primary purpose of procedural due pro¬ cess and by competing visions of how that purpose might best be achieved.

One approach begins with the proposition that there is intrinsic value in the due process right to be heard, since it grants to the individuals or groups against whom government decisions operate the chance to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons.13 From this perspective, the hearing may be considered both as a "mode of politics,” 14 and as an expression of the rule of law, regarded here as the antithesis of power wielded without accountability to those on whom it focuses. Whatever its outcome, such a hearing represents a valued human interaction in which the affected person experiences at least the satisfaction of participating in the decision that vitally concerns her, and perhaps the separate satisfaction of receiving an explanation of why the decision is being made in a certain way. Both the right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one. Justice Frank¬ furter captured part of this sense of procedural justice when he wrote that the "validity and moral authority of a conclusion largely depend No better instrument has on the mode by which it was reached .... been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so impor¬ tant to a popular government, that justice has been done.” 15 At stake here is not just the much-acclaimed appearance of justice but, from a perspective that treats process as intrinsically significant, the very essence of justice.16 A second, more instrumental approach views the requirements of due process as constitutionally identified and valued less for their intrinsic character than for their anticipated consequences as means of assuring that the society’s agreed-upon rules of conduct, and its rules 12. See generally Michelman, "The Su¬ preme Court and Litigation Access Fees: The Right to Protect One’s Rights — Part II,” 1974 Duke L.J. 527, 543, 552. 13. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 264-65 (1970) (right of the poor to participate in public processes). See also Michelman, "Formal and Associational Aims in Procedural Due Process,” XVIII Nomos 126-71 (1977) (due process vindi¬ cates values of "participation” and "revela¬ tion”); Saphire, "Specifying Due Process Values: Toward a More Responsive Ap¬ proach to Procedural Protection,” 127 U.Pa.L.Rev. Ill, 117-25 (1978) (due process

standard should measure whether conduct in question comports with basic notions of fairness and dignity). 14. See generally Michelman, "The Su¬ preme Court and Litigation Access Fees: The Right to Protect One’s Rights — Part I,” 1973 Duke L.J. 1153, 1175. 15. Joint Anti-Fascist Refugee Commit¬ tee v. McGrath, 341 U.S. 123, 171-172 (1951) (Frankfurter, J., concurring). 16. See, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) (emphasizing not only the appearance but the reality of fairness).

§ 10-7

MODEL

OF GOVERNMENTAL

REGULARITY

667

for distributing various benefits, are in fact accurately and consistently followed. Rather than expressing the rule of law, procedural due process in this sense implements law’s rules — whatever they might be. From this "instrumental” perspective, due process is such process as may be required to minimize "substantially unfair or mistaken depriva¬ tions” 17 of the entitlements conferred by law upon private individuals or groups.18 It ensures that a challenged action accurately reflects the substantive rules applicable to such action; its point is less to assure participation than to use participation to assure accuracy. On either view — the intrinsic or the instrumental — the case for due process protection grows stronger as the identity of the persons affected by a governmental choice becomes clearer; and the case becomes stronger still as the precise nature of the effect on each individual comes more determinately within the decisionmaker’s purview. For when government acts in a way that singles out identifiable individu¬ als — in a way that is likely to be premised on suppositions about specific persons — it activates the special concern about being personally talked to about the decision rather than simply being dealt with. Moreover, the danger of action motivated by personal animus or by some other substantively impermissible factor is heightened whenever a specific individual is targeted, highlighting the need for procedures to ensure that the government’s act fits within the framework of applica¬ ble law.19 This view was endorsed by Justice Blackmun in his lucid and probing concurrence in O’Bannon v. Town Court Nursing Center ,20 a case involving the unwilling transfer of elderly patients from a nursing home facility decertified by the Department of Health, Education and Welfare as a facility eligible to receive Medicare

and Medicaid pay¬

ments. The Court held that the patients have no "interest in receiving benefits for care in a particular facility that entitles them . . . to a hearing before the Government can decertify that facility.” 21 After finding no applicable entitlement, the Court went on to observe that a facility’s "decertification ...

is not the same

17. Fuentes v. Shevin, 407 U.S. 67, 97 (1972). 18. See, e.g., Boddie v. Connecticut, 401 U.S. 371, 374 (1971): "Perhaps no charac¬ teristic of an organized and cohesive socie¬ ty is more fundamental than its erection and enforcement of a system of rules defin¬ ing the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differ¬ ences in an orderly, predictable manner.” 19. Hearings are necessary partly be¬ cause "suspicion that certain others cannot count upon effective juridical access can hardly help biasing the shape of transac¬ tions, relationships, and attitudes that arise between” government and the indi¬ vidual. Moreover, the "legislature, when it considers what general rules or entitle¬ ments should prevail in some sector of human affairs, tends to proceed on the

for purposes of due

comforting assumption that the courts, ful¬ ly armed not only with whatever rule or entitlement the legislature may promul¬ gate but also with the tradition and princi¬ ple of common law and equity, are there if needed to prevent unanticipated injustice.” Michelman, supra note 12, at 537. 20. 447 U.S. 773, 790 (1980) (Blackmun, J., concurring in the judgment). Justice Stevens wrote for the Court, joined by Chief Justice Burger and by Justices Stew¬ art, White, Powell, and Rehnquist. Justice Marshall took no part. Only Justice Bren¬ nan dissented. 21. Id. at 784. The Court reasoned that the relevant Medicaid provisions confer on¬ ly a right to stay in qualified facilities, not a right that the facilities of the patient’s choice remain properly certified as quali¬ fied. Id. at 785.

668

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Ch. 10

process analysis as a decision to transfer a particular patient or to deny him financial benefits, based on his individual needs or financial situation.” 22 The Court noted, significantly, that the government was acting 'Tor the benefit of the patients as a whole and the home itself ha[d] a strong financial incentive to contest” the decertification.23 It was this observation that Justice Blackmun deemed crucial. Regarding the majority opinion as not explaining why decertification and transfer are relevantly different,24 Justice Blackmun set forth his analysis — one that courts would do well to emulate — in two parts: first, the patients claimed that they had been deprived of a property interest; second, they claimed that they had been deprived of life and liberty interests. To assess the property claim, Justice Blackmun applied a four-part analysis to determine "whether the litigant holds such a legitimate 'claim of entitlement’ that the Constitution, rather than the political branches, must define the procedures attending its removal.” 25 First, he applied a "representational test” and found that the nursing facility, which was "intimately involved” in the "process of deciding the disqualification question,” "had the opportunity and incentive to make the very arguments the patients might make” and thus that the patients’ "due process interest in accurate and informed decisionmak¬ ing . . . , in large measure, was satisfied.” 26 Second, he asked wheth¬ er the case implicated the conceded governmental power to abolish the program

or source from which

an individual receives benefits — and

concluded that, because "the property of a recipient of public benefits must be limited, as a general rule, by the governmental power to remove, through prescribed procedures, the underlying source of those benefits,” the government could act to decertify "Town Court . . . [as] the underlying source of the benefits] [the patients] seek to retain,” by allowing it rather than them to be heard.27 Third, he adopted the view stated above that, as individuals are more specifically singled out from a more general group, due process rights become more significant.28 Accordingly, he also endorsed the converse proposition that less proce¬ dural protection should accrue as a uniformly affected group grows in size.29 Thus, individuals who suffer "deprivation . . . in a nondiscriminatory fashion” only as part of a larger group, such as the 180 or so elderly nursing home residents in O’Bannon , may lose procedural protections that they might have retained had they been dealt with on an individual basis.30 Fourth, and finally, he stressed that the "pa¬ tients’ interest has [not] been jeopardized . . . because of alleged shortcomings on their [own] part,” reasoning that neither the value of 22.

Id. at 786.

23.

Id. at 790 n. 22.

24. Id. at 793 (Blackmun, J., concurring in the s judgment). 25.

Id. at 796.

26.

Id. at 797.

27. Id. at 798 (emphasis added). 28. Id. at 800-01 (quoting part of the preceding page from the first edition of this treatise).

29. Id. at 799-801.

30. Id. at 799-800 ("When governmen¬ tal action affects more than a few individu¬ als, concerns beyond economy, efficiency, and expedition tip the balance against find¬ ing that due process attaches. We may expect that as the sweep of governmental action broadens, so too does the power of the affected group to protect its interests outside rigid constitutionally imposed pro¬ cedures”)-

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heightened accuracy nor the virtue of respecting personal dignity were significantly compromised

by denying hearings to the patients individu¬

ally where, as in O’Bannon , only a generic determination was being made: "It may be that patients’ [personal] participation in the decertifi¬ cation decision would vaguely heighten their and others’ sense of the decision’s legitimacy, even though the decision follows extensive gov¬ ernment inspections undertaken with the very object of protecting the patients’ interests. . . . [but] that interest is far less discernible in this context than when a stigmatizing determination of wrongdoing or fault supplements

removal

of a presently enjoyed benefit.” 31

The second phase of Justice Blackmun’s sensitive two-part exami¬ nation involved the determination of whether the patients’ life and liberty interests were implicated. He reasoned that a constitutionally protected liberty interest may arise where government action entails a serious likelihood of added stigma or of harmful treatment, particularly where

a high risk of death or of grave illness is created.32 Quite

properly, he was not "soothed by the palliative that this harm is 'indirect’,” concluding instead that "where such drastic consequences attend governmental action, their foreseeability, at least generally, must suffice to require input by those who must endure them.” 33 In this case, however, Justice Blackmun was unpersuaded that there existed a "substantial . . . danger” of serious "transfer trauma”. 34 Although the two perspectives, intrinsic and instrumental, both point to a strengthened case for dialogue with the affected person as the specificity of the government action increases, the perspectives may nonetheless have different consequences for the sorts of interests to be encompassed within the protected categories of life, liberty, and proper¬ ty, and for the procedural safeguards that the involvement of such interests triggers. If the intrinsic justification for procedural due process — with its emphasis on promoting dialogue between citizen and government — had played a large role in shaping doctrinal development, courts would, for the most part, have adopted constitutional formulas permitting the widest possible assurance of independently valued proce¬ dural rights and would presumably have specified certain procedures as valued for their own sake — although it is the intrinsic view, ironically, that better illuminates the Court’s recently narrowed definition of "deprivation” and therefore the scope of the due process clause.35 31. Id. at 801-02. 32. Id. at 803. 33. Id. 34. Id. at 804. O’Bannon is discussed further in § 10-19, infra, and in Chapter 17, infra. 35. See Daniels v. Williams, 106 S.Ct. 662, 665 (1986); Davidson v. Cannon, 106 S.Ct. 668, 670 (1986). Justice Rehnquist, somewhat uncharacteristically, focused in both opinions on the intrinsic objective of promoting fairness and preventing abuse and oppression in governmental decision¬ making, rather than the instrumental goal of reducing error and conserving govern-

ment resources — although, in this instance, to narrow rather than expand procedural protections for individual interests. For Justice Stevens, the redefinition of the term "deprivation” was unnecessary and misguided: " 'Deprivation’ . . . identifies, not the actor’s state of mind, but the vic¬ tim’s infringement or loss. The harm to a prisoner is the same whether a pillow is left on a stair negligently, recklessly, or intentionally; so too, the harm resulting from an attack is the same whether his request for protection is ignored negligent¬ ly, recklessly, or deliberately. In each in¬ stance, the prisoner is losing — being 'de¬ prived’ of — an aspect of liberty as the

670

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Such an intrinsic perspective might have been perceived as leading courts to protect a wider range of interests than those specified or fairly derivable from the Bill of Rights, federal or state statutes, or those recognized at common

law,36 and to construct procedures for hearings

with no very firm foundation in the Constitution’s text; thus the intrinsic perspective would predictably have been criticized as involving judges in overly political matters, turning unduly upon the subjective preferences of the particular judicial decisionmaker.37 Alexander Bickel38 and others39 have downplayed the ability of courts to establish sound "neutral principles” to define and enforce constitutional rights and liberties; the suggestion is routinely made that the proper role of courts in the American polity is to protect those personal rights explicitly granted in the Constitution 40 and, beyond this, to invalidate only wholly irrational actions, leaving the pluralistic political process to define and protect other "fundamental values”.41 The premises of this line of argument have of course been chal¬ lenged.42 Among other things, it is doubtful that those most likely to be dealt with in ways that disregard the intrinsic values of dialogue have sufficient access to the political branches to justify a presumption of their consent to the majority’s specification of protected interests or values. Moreover, it is entirely consistent with democratic theory — and is at all events consistent with the text and structure of our only partly "democratic” Constitution — for the majority to bind itself to a general concept of due process, open to judicial elaboration in accord with changing views of fundamental fairness, rather than to endorse a specific conception of due process.43 Indeed, given the continual change in societal needs and relationships over time, it has been argued that only such an interpretation would be consistent with a "living” Constiresult, in part, of a form of state action.” Id. at 680 (Stevens, J., concurring in the judgments in Daniels v. Williams and Da¬ vidson v. Cannon). However, the state of mind of the official actor is of significance from the intrinsic viewpoint: even a dog recognizes the difference between being kicked and being tripped over. Although Justice Stevens may have denigrated such a distinction, it is the goal of individual participation in governmental decision¬ making, and the curb on governmental abuse rather than mere official accident, that illuminates the intrinsic value of pro¬ cedural due process. Political and person¬ al meaning accrue through interaction and explanation in an intentional government act that do not occur through, and perhaps make no sense in the context of, an unin¬ tentional official accident.

37. See, e.g., Adamson v. California, 332 U.S. 46, 89 (1947) (Black, J., dissenting). 38. See A. Bickel, The Supreme Court and the Idea of Progress 11-42 (1970). 39. See, e.g., Frank, "What Courts Do In Fact,” 26 Ill.L.Rev. 645 (1932); Llewel¬ lyn, "A Realist Jurisprudence — The Next Step,” 30 Col.L.Rev. 431 (1930); W. Rum¬ ble, American Legal Realism: Skepticism, Reform, and the Judicial Process (1968). 40. See, e.g., Rochin v. California, 342 U.S. 165, 176 (1952) (Black, J., concurring). 41. See, e.g., A. Bickel, supra note 38, at 35-39.

of e ¬ 37 th ce 25 t ro en or y p nm . f er f Ct ov o er S. rec 3 ov 98 g 6 1 ” 10 the § by ce an . rt i,t .C po ed rrma.S im ni pheu U " de ac r St to 42 o s es v. r oc” deng prue . nsi al st fuu "v e Di (re du es ct . ol 6) g ra l n) ho 98 ma st ra tio Sc (1 da ab du ac

42. See generally R. Dworkin, Law’s Empire (1986); Linde, "Judges, Critics and the Realist Tradition,” 82 Yale L.J. 227 (1972); Wright, J., "Professor Bickel, the Scholarly Tradition, and the Supreme Court,” 84 Harv.L.Rev.

769 (1971). See

§§ 1-8, 3-6, supra. 43. See R. Dworkin, Taking Rights Seri¬ ously 131-49 (1977).

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tution.44 Finally, there is little reason to suppose that the leaps of faith and exercises of judgment required of courts under the instrumental approach to due process are any less political, or subjective, than those demanded by the intrinsic approach. After all, a due process right that "the rules” (whatever they are) be followed accurately — the right iden¬ tified from an instrumental viewpoint — can move off dead center only if "the rules” that present themselves for this form of enforcement are understood to exclude the rules of procedure that government has chosen to follow in resolving particular cases. For otherwise whatever process government grants is, by definition, the process that is "due.” But to exclude procedural rules from the corpus of law that procedural due process instrumentally secures is to draw the same problematic, and ultimately "political,” lines to which the judicial passivist, who resisted the intrinsic view of procedural due process, objected in the first place.45 The Court, while nonetheless pursuing an almost exclusively in¬ strumental vision in its due process jurisprudence, has at times ac¬ knowledged, that procedural due process is of intrinsic significance, alluding to considerations weighing in favor of giving an individual procedural protections well beyond those that might be justified solely by the need to make

an accurate determination.46

In Carey v. Piphus ,47

for example, the Court ruled that a student’s distress at being denied the process due him in his suspension from school was itself compensa¬ ble by nominal damages under 42 U.S.C. § 1983, indicating at least some appreciation for the intrinsic approach.48 Compensable distress at the wrongful denial of process, however, cannot be presumed , the Court said, since "[wjhere the deprivation of a protected interest is substantively justified but procedures are deficient in some respect, there may well be those who suffer no distress [at all] over the procedural irregularities.” 49 But even if actual distress is not shown, and even if it is ultimately determined that the suspensions were substantively justified, a student denied procedural due process in the 44. See Tribe, "Structural Due Pro¬ cess,” 10 Harv.Civ.Rts.-Civ.Lib.L.Rev. 269, 290-98 (1975). 45. See §§ 10-12 to 10-14, infra. 46. In Regents of the University of Cali¬ fornia v. Bakke, 438 U.S. 265 (1978), the Court struck down a numerical set-aside for disadvantaged minority applicants to a state medical school, but permitted minori¬ ty status to be used as one of many factors in admitting students. Writing only for himself but delivering the Court’s judg¬ ment, Justice Powell seemed to express not only an aversion to such decisions made on an overtly racial basis but also an aversion to mass process as such, perhaps indicating recognition of an individual right to be treated by the government as a unique being, not a fungible object. For him, "in a broader sense, an underlying assumption of the rule of law is the worthiness of a system of justice based on fairness to the

individual.” Id. at 319 n. 53. Justices Brennan, White, Marshall, and Blackmun, although disagreeing with Justice Powell on the issue of whether setting aside a number of places for qualified minorities denied the white applicant individualized treatment, did not directly dispute his con¬ clusion that the fourteenth amendment mandates individualized consideration as an aspect of fair treatment. Id. at 378-79 (Brennan, White, Marshall, & Blackmun, JJ., concurring in the judgment in part and dissenting in part). See L. Tribe, Con¬ stitutional Choices 223-28 (1985). 47. 435 U.S. 247 (1978). 48. The Court would not permit, howev¬ er, the recovery of damages for the value of time missed in school, since the student might have been suspended even if due process had been observed. Id. at 252, 260. 49. Id. at 263.

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of his or her suspension remains entitled to nominal punitive damages for deprivation of a constitutional right.50 manner

non-

The Court’s insistence that, absent some proof of actual distress, a procedural violation alone cannot warrant an award of more than nominal damages 51 — coupled with the Court’s statement that violations of free speech, voting, and other constitutional rights may in them¬ selves warrant substantial compensation 52 — suggests that the Court’s recognition of the intrinsic value of process is limited if not begrudg¬ ing.53 Nonetheless, while the intrinsic value of due process continues not to bear on the decision of whether or not process is due , and does not provide for substantial damages when due process is denied, Carey v. Piphus at least attributed nominal significance to the intrinsic dimen¬ sion of due process in deciding upon relief. The decision thus paved the way for giving this dimension greater importance in the future. For example, in Marshall

v. Jerrico, Inc.,54 Justice Marshall cited Carey v.

Piphus in writing for the majority that there are "two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affect¬ ed individuals in the decisionmaking process.” 55 The Court further held that both "the appearance and reality of fairness” were involved in preserving the feeling that "no person will be deprived of his 50. Id. at 266-67.

While recognizing

that substantial damage awards have been allowed by some common-law courts for deprivation of rights, such as voting rights, without showing of actual injury, id. at 264-65 n. 22, the Court concluded without elaboration that "the elements and prereq¬ uisites for recovery . . . appropriate to . . . deprivation of one constitutional right are not necessarily appropriate to . . . another.”

Id. at 264-65.

51. Id. at 264 ("[Although mental and

emotional distress caused by the denial of procedural due process itself is compensa¬ ble under § 1983, we hold that neither the likelihood of such injury nor the difficulty of proving it is so great as to justify award¬ ing compensatory damages without proof that such injury actually was caused”). See also Memphis Community School Dis¬ trict v. Stachura, 106 S.Ct. 2537, 2544 n. 11 (1986) ("nominal damages, and not dam¬ ages based on some undefinable 'value’ of infringed rights are the appropriate means of 'vindicating’ rights whose deprivation has not caused actual, provable injury”).

52. See Carey, 435 U.S. at 264-65 & n.

22; Memphis Community School, 106 S.Ct. at 2547 (Marshall, J., concurring).

53. In Memphis Community School, a teacher was suspended without any hear¬ ing based on unsupported accusations that he had shown sexually explicit films to his students. He brought suit under 42 U.S.C. § 1983, claiming damages for denial of due

process. Justice Powell, who had also writ¬ ten the majority opinion in Carey, ap¬ proved of compensatory and punitive dam¬ ages in the teacher’s case, but refused to grant substantial damages for the abstract "value” or "importance” of the constitu¬ tional rights violated. Id. at 2544-45. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, con¬ curred with the majority "that substantial damages should not be awarded where a plaintiff has been denied procedural due process but has made no further showing of compensable damage.” Id. at 2547. But they wrote separately "to emphasize that the violation of a constitutional right, in proper cases, may itself constitute a com¬ pensable injury,” id., where damages are "reasonably quantifiable” and not based solely on the "inherent value” of the right violated. Id. The concurring justices seem to imply a greater appreciation for the intrinsic value of certain substantive rights than they are willing to accord to procedural due process alone.

54. 446

U.S. 238 (1980) (challenging

practices of the Department of Labor’s Em¬ ployment Standards Administration on grounds that the administrator who heard a case might be unfairly biased against the party charged with violating the child la¬ bor laws).

55. Id. at 242 (citing Carey v. Piphus, 435 U.S. 247, 259-262, 266-67 (1978) ).

.

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interests in the absence of a proceeding in which he may

673 present his

case with assurance that the arbiter is not predisposed against him/’ 56 The value of process, then, is at least to assure that the individual’s right to be heard provides meaningful and satisfying participation in the decision that affects her — regardless of the outcome. Despite the fact that the Court went on in Marshall v. Jerrico to find that the individuals involved had received the process that they were due, its language furnished precedent for at least a limited recognition that more than accurate factfinding makes procedural regularity vital in the constitutional scheme. By persisting, despite this recognition, in centering its more cus¬ tomary mode of analysis around the instrumental importance of pro¬ cess,57 the Court has relaxed procedural protections in two important ways. First, by focusing on the reduction of error to the exclusion of more intrinsic concerns,58 the Court has eroded at least part of the traditional rationale for insisting that, with very few exceptions,59 the hearing required by due process precede rather than follow the depriva¬ tion at issue. A prior hearing had been required by the traditional conception of procedural due process under the precept that one should be able to continue living in quiet enjoyment of liberty or property unless and until there has been a fair determination that the state is entitled to intrude upon that situation of repose. But, as the more recent conception that the predominant value of process is accuracy has become ascendant, a pos£-deprivation remedy has more often sufficed to meet due process objections. Such an after-the-fact remedy may take either the form of a hearing scheduled and conducted after a temporary deprivation,60 or the form of a collateral legal remedy provided under the law of the jurisdiction to persons who have suffered deprivation.61 56. 446 U.S. at 242 (citing Joint Anti-

Fascist Committee

v. McGrath,

341 U.S.

123, 172 (1951) (Frankfurter, J., concur¬ ring) ). See also Aetna Life Ins. Co. v.

solitary confinement for administrative reasons), discussed in § 10-14, infra.

i a c to (p (1 rt w lai p s de¬ fo pr re ost qu981 ho m ro r is a ) me -d on of pr se of per bdy enpe wa te lo fic ty y rg st er i s 'justice must satisfy the appearance of jus¬ v. sWoin in pailviag Da ov ial 10 rt tien ni er ll s), 6 tice’ ”) (citing In re Murchison, 349 U.S. ru ia once e(l ou r ( 6 6 S ms 133, 136 (1955) ). .C led62 "s[ 63 19 ec r , t 8 , W o los anls in Pa 6) th e] 't st . h at c e liead s, ne rra ev ate th 57. See, e.g., Mathews v. Eldridge, 424 au gmeeor gl tt en me ou s d u e ig W U.S. 319, 344-45 (1976) (value of procedu¬ th nt th to a ndte gh en e con d, p tlis si c no im at ed e ral safeguards weighed primarily in terms Cl Pr ri Du y p oc va au mp lud t e calic anly of e o a ed by a ense ti s of contribution to accuracy). See general¬ f c e f t sgl lon o a i luisaitn¬ tiocialif un ig os. f n nj be g in e ens ’ l Mashaw, "The Supreme Court’s ly, ur , rt Calculus for Administrative Adjudication t t y e 43y v. Wr In or prn Pa 0 od6pe i in Mathews v. Eldridge: Three Factors in g p d ( ( 6 U ra19 5ed1r no .S 75 ueght ro rr ,tywh -7 sc h7a7ch a is su , ces to vi . ) il U.Chi.L. ol h b Search of a Theory of Value,” tt44 6 ” m e s o v ) ol Rev. 28 (1976). . a jeche wi d pu; n co ati Ta t a rp on t n yl coedrin ha ri hou un th ichs be or ihlm e gh t de s ca al or 424 58. See, e.g., Mathews v. Eldridge, m g to t re Bl de la us si r da mo , ,4 U.S. at 319. n n c w e c a 51 ov i e mag n th e fa cksif ptu ers xc U. afte e ct t n e S. Bu r se Lo Br essi Cso vo.n Ziis 59. See generally § 10-14, infra. e mhm e us ve ., 52 t g m(eesn 42an (1 U. 475 hre ). 60. See, e.g., Barry v. Barchi, 443 U.S. 98 S. 5 2 m rumtb 2 em edy be in wo ) in casasneq wh 55, 64 (1979) (sufficiently prompt hearing ul ad pl e ue er d c eqac e exoy¬ a i o e n s would f e license a ut t after suspension of jockey’s uati ’ u s s o by ctlein¬ la of st m gu e as a mattoen be adequate); Hewitt v. Helms, 459 U.S. a w i a teti T, ca ri¬ of st te em ca sh er l ed ro se ca hes at r pl 460, 472 (1983) (prompt post-detention s , e r l e o i 1 § i a f m a in l placed prisoner nf hearing adequate when ul re 0yye n na or r l 14 ly e) e a. y , ze . d

Lavoie, 106 S.Ct. 1580, 1587 (1986) ("to perform its high function in the best way,

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Second, the Court’s increasingly instrumental approach is reflected in its increased reliance on the balancing test outlined in Mathews v. Eldridge 62 holding that the degree and type of procedural protection that is due can be determined by weighing: "[fjirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the func¬ tion involved and the fiscal and administrative burdens that the addi¬ tional or substitute procedural requirement would entail.” 63 This approach not only overlooks the unquantifiable human interest in receiving decent treatment,64 but also provides the Court a facile means to justify the most cursory procedures by altering the relative weights to be accorded each of the three factors.65 A typical illustration of the instrumental approach is Greenholtz v. Inmates of Nebraska Penal and Cor. Complex,66 in which the Court upheld Nebraska’s procedure for initial parole release decisions. The state’s parole review procedure was divided into two parts: an initial, informal hearing and, if granted in the first hearing, a final, formal hearing. The initial hearing consisted of an examination by the board of the inmate’s entire preconfinement and postconfinement record and, second, an informal hearing where the board interviewed the inmate and permitted the inmate to present any statements or letters he wished to produce, although allowing "no evidence as such [to be] introduced” by the inmate.67 The inmate was allowed to review his record, and therefore the evidence against him, only at the parole board’s discretion.68 After this initial hearing, the board would make a decision based on the inmate’s file and on the statements and letters presented at his interview; the inmate would be informed of this decision, but no written explanation citing the evidence relied upon, or the reasons for a denial of opportunity to reach the second formal hearing (and therefore the resulting denial of parole), would be given the inmate. Nonetheless, the Court held that such meager protection provided all the procedure due to inmates in parole pre-release hear¬ ings. Chief Justice Burger wrote for the Court that "[t]he function of 62.

424

U.S. 319

(1976).

See

also

§§ 10-13 to 10-17, infra. 63. Id. at 336. 64. Despite Carey v. Piphus, 435 U.S. 247 (1978), the Court has not seemed par¬ ticularly interested in the psychic harm done to individuals by the very fact of their exclusion from decisions affecting them, and has not adopted the formulation of "freedom from arbitrary adjudicative pro¬ cedures as a substantive element of one’s liberty” propounded by Professor Van Alstyne in "Cracks in 'The New Property’: Adjudicative Due Process in the Adminis¬ trative State,” 62 Cornell L.Rev. 445, 483 (1977). See, e.g., Memphis Community School Dist. v. Stachura, 106 S.Ct. 2537 (1986) (dismissing claims for damages

based cess). on the "abstract” value of due pro¬ 65. See § 10-11, infra. For discussion of how balancing tests have been employed to cut back on individual rights, see "Cases that Shock the Conscience: Reflections on Criticism of the Burger Court,” 15 Harv. C.R.-C.L.L.Rev. 713, 729-31 (1980). 66. 442 U.S. 1 (1979). Chief Justice Burger wrote the majority opinion, joined by Justices Stewart, White, Blackmun and Rehnquist. Justice Powell concurred in part. Justice Marshall dissented in part, joined by Justices Brennan and Stevens. See also § 10-9, infra. 67. Id. at 4. 68. Id. at 15 n. 7.

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legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous deci¬ sions . . . . ; the quantum and quality of the process due in a particu¬ lar situation depend upon the need to serve the purpose of minimizing the risk of error.” 69 Because the state’s procedures adequately mini¬ mized error,70 the Court required no more procedural protection, con¬ cluding that any further procedures "would provide at best a negligible decrease in the risk of error.” 71 In addition, Chief Justice Burger commented that "the Parole Board’s decision as defined by Nebraska’s statute is necessarily subjective in part and predictive in part. . . . [vesting] broad discretion in the Board. No ideal, error-free way to make parole-release decisions has been developed; the whole question has been and will continue to be the subject of experimentation involv¬ ing analysis of psychological factors combined with fact evaluation guided by the practical experience of the actual decisionmakers in predicting future behavior .... If parole determinations are encum¬ bered by procedures that states regard as burdensome and unwarrant¬ ed, they may abandon or curtail parole.” 72 Chief Justice Burger’s discussion of the parole board’s role of reaching "essentially an exper¬ ienced prediction based on a host of variables,” 73 and his defense of the necessarily "subjective” 74 nature of that role, reflected sensitivity to the subjective needs of government officials in their official capacity, while giving little heed to the subjective needs of the individual. Justice Marshall, joined by Justices Brennan

and Stevens, argued

forcefully for a more intrinsic appreciation of the needs of the individu¬ al over the needs of the state, maintaining in dissent 75 that "the need to assure the appearance, as well as the existence, of fairness” 76 required more extensive procedural safeguards than were provided under the Nebraska parole system. Justice Marshall invoked the Chief Justice’s own language from an earlier parole case to argue that, " 'apart from avoiding the risk of actual error, this Court has stressed the importance of adopting procedures that preserve the appearance of fairness and the confidence of inmates in the decisionmaking pro¬ cess.’”77 Justice Marshall, deriding Chief Justice Burger’s view that 69. Id. at 13. 70. Justice Marshall

76. Id. at 35 (Marshall, J., dissenting in disagreed

even

with this view, citing error in Greenholz’s own record and in a variety of other simi¬ lar cases. Id. at 33-34 & n. 15 (Marshall, J., dissenting in part). 71. Id. at 14. 72. Id. at 13. 73. Id. at 16. 74. Id. at 10, 13. 75. Justice Powell’s separate opinion, concurring in part and dissenting in part, found fault with the majority’s holding that the due process required for parolerelease decisions depends upon statutory language and that the notice provisions of the Nebraska system were adequate. Id.

part). 77. Id. at 34 (Marshall, J., dissenting in part), quoting Morrissey v. Brewer, 408 U.S. 471 (1972) (parole revocation deprives parolee of a liberty interest and must be preceded by due process). See also Parham v. J.R., 442 U.S. 584, 636 n. 22 (1979) (Brennan, J., concurring in the judg¬ ment in part and dissenting in part) (post¬ admission hearings for children whose par¬ ents wish to have them committed to mental institutions will prove therapeutic by giving the children satisfaction in a fair hearing, helping them accept their illness and confinement, and encouraging them to cooperate with the hospital treatment staff).

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the subjective nature of the parole board’s decisionmaking should not be encumbered by more process, argued instead that the parole board should be required to provide to the inmate the criteria to be applied to parole-release decisions and an explanation of the reasons and support¬ ing facts for these decisions. "For '[o]ne can imagine nothing more cruel, inhuman, and frustrating than serving a prison term without knowledge of what will be measured and the rules determining whether official decision¬ but — at least as participation is avoid an individ¬

ual’s feeling that her life and liberty have been dealt serious affliction without reason or explanation. In his opinion for the Greenholtz majority, Chief Justice Burger expressed the sharply contrasting view that the relevant intrinsic value inhered in summary government action rather than in extensive legal .

0

one is ready for release.’ ” 78 Not only is subjective making perhaps most susceptible to arbitrary results, importantly, under the intrinsic approach — individual most required in such subjective situations precisely to

process.79 He maintained for the Court that the procedures the lower court had prescribed — a formal bearing on parole eligibility and a statement of the evidence relied on by the Parole Board when parole is denied — were

not only not required by the Constitution, but were

socially undesirable as well: "[I]t will not contribute to these desirable objectives [of rehabilitating convicted persons to be useful members of society] to invite or encourage a continuing state of adversary relations between society and the inmate.” 80 Greenholtz thus adopts the view that, while due process formalities are valued overwhelmingly for the instrumental purpose of enhancing accurate factfinding, such formalities should be relaxed not only to minimize cost to the state but also for reasons intrinsic to informality — especially the preservation of supposedly harmonious relations in socie¬ ty. Whatever one’s assessment of such "togetherness” in other set¬ tings, it seems a dubious aim in cases involving the continued involun¬ tary incarceration of prisoners.81 More fundamentally, the vision of society and law reflected by this ideal stands in some tension not only with social reality but also with the theoretical underpinnings of a Constitution that assumes individuals require legal protection from the overarching power of the state.82 Too often, the ideal of the delegalized

2U 44

78. 442 U.S. at 35 (Marshall, J., dissent¬ ing in part) (quoting K. Davis, Discretiona¬ ry Justice: A Preliminary Inquiry 132 (1969) ).

state’s interest by giving drivers an oppor¬ tunity to delay law enforcement); Parham v. J.R., 442 U.S. at 605-07 (1979) (sug¬ gesting that extensive procedural require¬ ments for the admission of children to a state mental institution for psychiatric treatment might discourage parents from committing them).

. 14

a hearing before a driver’s license is sus¬ pended for refusing to submit to a breathalyzer test would undermine the

13 .at

.S

79. See also Mackey v. Montrym, 443 U.S. 1, 18 (1979) (suggesting that requiring

81. See also Parham v. J.R., 442 U.S. at 610 (1979) (requiring a formal hearing when parents seek commitment of their children would constitute an undesirable "intrusion into the parent-child relation¬

ship”). 82. See, e.g., Lassiter v. Department of Social Services, 452 U.S. 18, 57 (1981) (Blackmun, J., dissenting) (mother’s lack of a lawyer in parental termination hearing makes "virtually incredible the Court’s conclusion today that her termination pro¬ ceeding was fundamentally

fair”).

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society is a mask for a society in which one of the few tools available to combat official subjugation is taken away from potential victims of such oppression.83 As a plausible though not inescapable corollary of the Court’s emphasis on the instrumental goal of accurately enforcing whatever lines are drawn by the applicable rules, the Court in recent years has tended to adopt a positivist theory of the private interests encompassed in "'life, liberty, and property,” and hence protected from governmental deprivation without "due process of law.” 84 The positivist view presup¬ poses the existence of an independent legal rule as a prerequisite to any due process protection. To be procedurally protected an interest must be grounded in substantive legal relationships defined by explicit con¬ stitutional provisions or by specific state or federal rules of law.85 It should be stressed that this positivist view is not an inevitable partner of an instrumental perspective: it has not, for example, prevailed on the Court with respect to the determination of what process is due, notwithstanding the Court’s instrumental orientation. In fact, the Court has squarely rejected such a positivist view of what process will be required.86 While arguably abdicating a significant part of its constitutional role in determining whether a given interest deserves the protection of due process, the Court has refused similarly to relieve itself of the power to decide what kinds of process must be followed when a protected interest is implicated. Thus, while government may decide freely whether or not to accord a legal entitlement in the form of a specific benefit, it has been given far less latitude to determine what interchange with the individual to conduct in conjunction with the withdrawal of that benefit. Instead, the Court has made an indepen¬ dent inquiry into what form of interchange or encounter to require; since, from the Court’s instrumental perspective, procedural require¬ ments are valued almost exclusively because they minimize the risk of error in the specification and enforcement of substantive legal relation¬ ships, the constitutionally mandated procedures have varied from case to case, depending upon the character of the risks perceived and the weight the Court has accorded to the competing substantive interests that are at stake in whatever

hearing might be held.87

83. See generally J. Auerbach, Justice Without

Law

(1983).

'bitter with the sweet’ approach miscon¬ ceives the constitutional guarantee. . . .

U.S. 215 (1976); Bishop v. Wood, 426 U.S. 341 (1976); Paul v. Davis, 424 U.S. 693 (1976).

[T]he Due Process Clause provides that cer¬ tain substantive rights — life, liberty, and property — cannot be deprived except pur¬ suant to constitutionally adequate proce¬ dures. The categories of substance and

85. See §§ 10-10 and 10-11, infra. See

procedure are distinct. Were the rule oth¬ erwise, the Clause would be reduced to a

84. See, e.g., Meachum

v. Fano, 427

generally H. L. A. Hart, The Concept of Law (1961); Kennedy, ''Legal Formality,” 2 J. Legal Stud. 351 (1973); Hart, ''Positiv¬ ism and the Separation of Law and Morals,” 71 Harv.L.Rev. 593 (1958). Cf. Yarbrough, ''Mr. Justice Black and Legal Positivism,” 57 Va.L.Rev. 373 (1971). 86.

Cleveland

Bd.

of

Educ.

v.

Loudermill, 470 U.S. 532, 541 (1985) ("[T]he

mere tautology. 'Property’ cannot be de¬ fined by the procedures provided for its deprivation any more than can life or liber¬ ty”). See § 10-12, infra. 87. See §§ 10-13 and 10-14, infra.

678

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§ 10-8. The Development of Procedural Due 1970: Common-Law Interests and Conditions

Ch. 10

Process Prior to Unconstitutional

The actual elaboration by the Supreme Court of protected interests and procedural safeguards has been an evolving process punctuated by vague generalizations and declarations of broad, overarching princi¬ ples.1 Due process has been held to protect "those fundamental princi¬ ples of liberty and justice which lie at the base of all our civil and political institutions,” 2 and to guarantee those procedures which are required for the "protection of ultimate decency in a civilized society.” 3 On a somewhat more mundane level, the Court established early in its consideration of this area that procedural due process was implicated whenever government action seemingly conflicted with substantive individual rights protected either by a constitutional guarantee more specific than due process4 or by "those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors which were shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.” 5 Thus, apart from the specific declarations of the Bill of Rights — virtually all of which later came to be applied to the states through the due process clause of the fourteenth amendment 6 — there was no attempt to tie the invocation of due process protection to positive rules. To the contrary, until very recently "fairness,” 7 "necessity,” 8 and "privileges long recognized at common law as essential to the orderly pursuit of happiness by free men,” 9 were the mixed underpinnings of the Court’s decisions on procedural safeguards. Moreover, in assessing the dictates of "funda¬ mental fairness,” courts determined the requirements of procedural due process in a one-step process without any clear attempt to distinguish (1) the question of what specific interests are entitled to due process

1. See generally § Kadish, "Methodology 10-8 and Criteria in Due Process Adjudication — A Survey and Criticism,” 66 Yale L.J. 319, 340 (1957). See also Mashaw, "The Su¬ preme Court’s Calculus for Administrative Adjudication in Mathews v. Eldridge:

ernment] would directly impinge upon in¬ terests in free speech or free press, this Court has . . . held that opportunity for a fair adversary hearing must precede the action, whether or not the speech or press interest is clearly protected under substan¬ tive First Amendment standards.”).

Three Factors in Search of a Value,” 44 U.Chi.L.Rev. 28, 47 n. 61 (1976): This pro¬ cess "might be characterized as a continu¬ ous search for a theory of Due Process review that combines the legitimacy of the evolutionary theory with a flexibility that permits adaptation to contemporary cir¬ cumstances. Dignitary or natural rights, utilitarian, and egalitarian theories have

5. Turney v. Ohio, 273 U.S. 510, 523 (1927). See also Powell v. Alabama, 287 U.S. 45, 65 (1932); Ownbey v. Morgan, 256

all been incorporated to this end.”

7. See, e.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162 (1951) (Frankfurter, J., concurring).

2. Hurtado 535 (1884).

Id.

v. California, 110 U.S. 516,

3. Adamson v. California, 332 U.S. 46, 61 (1947) (Frankfurter, J., concurring). 4. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 575 n. 14 (1972) ("when [gov¬

U.S. 94 (1921); Murray’s Lessee v. Hobo¬ ken Land & Improvement Co., 59 U.S. (18 How.) 272, 276-80 (1855). 6. See § 11-2, infra.

8. See, e.g., North American Cold Stor¬ age Co. v. Chicago, 211 U.S. 306, 320 (1908). 9. Meyer v. Nebraska, 262 U.S. 390, 399 (1923), cited with approval in Board of Re¬ gents v. Roth, 408 U.S. 564, 572 (1972).

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protection, from (2) the inquiry into what process is due.10 The simplic¬ ity of this pre-1970’s mode of analysis may reflect a variety of factors; one in particular seems worth noting here. Barring emergency, at least the minimum content of the process due was largely unques¬ tioned: notice and a hearing had to be accorded prior to any grievous government

deprivation.11

The fifth and fourteenth amendments’ due process clauses as interpreted in the Supreme Court’s substantive due process analyses 12 have furnished a broad definition of the "liberty” that was in turn afforded procedural protection against arbitrary deprivation. The "core” liberty interests in this expansive sense included "not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children [and] to worship God according to the dictates of . . . conscience.” 13 In addition, there were protections independently required by funda¬ mental fairness. For example, in Joint Anti-Fascist Refugee Committee v. McGrath ,14 the Supreme Court declared invalid the designation of certain groups as Communist by the Attorney General, purporting to act pursuant to an Executive Order, in a list furnished to the Loyalty Review Board for use in connection with determinations of disloyalty of government employees. While the opinion of the Court rested on the ground that the Attorney General’s action was not authorized by the Executive Order,15 Justice Frankfurter, in apparent agreement with Justices Jackson,16 Black,17 and Douglas,18 found the Attorney General’s action authorized by Executive Order but inconsistent with the require¬ ments of procedural due process.19 He declared that, while "no legal sanction” was directly imposed on the groups labeled "Communist” by the Attorney General, it "would be blindness . . . not to recognize that in the conditions of our time such designation drastically restricts 10. See, e.g., Cafeteria & Restaurant Workers Union 473 v. McElroy, 367 U.S. 886, 895 (1961) (balancing the government interests in national security against the private interest in a specific job, the Court determined there was no entitlement to procedural protections). 11. See, e.g., Twining

v. New

Jersey,

211 U.S. 78, 110-11 (1908): "Due process requires . . . that there shall be notice and opportunity for hearing given the par¬ ties . . . [T]hese two fundamental condi¬ tions . . . seem to be universally pre¬ scribed in all systems of law established by civilized countries.” See also Baldwin v. Hale, 68 U.S. (1 Wall.) 223 (1863) ("Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be noti¬ fied.”) 12. See Chapters 8, 11-15. 13. Meyer v. Nebraska, 262 U.S. 390, 399 (1923), cited with approval in Board of

Regents v. Roth, 408 U.S. 564, 572 (1972). See also Smith v. Organization of Foster Families, 431 U.S. 816 (1977) (suggesting that foster families, despite lack of biologi¬ cal relationship and despite role of state in creating foster parent-foster child relation¬ ship might have a protected "liberty inter¬ est” sufficient to trigger procedural due process when state removes child from fos¬ ter home, but holding state procedures ade¬ quate). 14. 341 U.S. 123 (1951). 15. Id. (plurality opinion by Burton, J.). 16. Id. at 186 (Jackson, J., concurring). 17. Id. at 143 (Black, J., concurring). 18. Id. at 178 (Douglas, J., concurring) ("The gravity of the present charge is proof enough of the need for notice and hearing before the United States officially brands these organizations as subversive.”). ring). 19. Id. at 162 (Frankfurter, J., concur¬

MODEL

680

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Ch. 10

the organizations, if it does not proscribe them.” 20 Because this disa¬ bling designation was accomplished without granting the affected groups any prior notice or opportunity to participate in a hearing on the question, Justice Frankfurter concluded that "thus to maim or decapitate ... an organization . . . ostensibly engaged in lawful objectives is so devoid of fundamental fairness as to offend the Due Process Clause of the Fifth Amendment.” 21 At least since 1937, 22 the Constitution has not been interpreted to give direct definitions of the "property” interests that can claim proce¬ dural, and sometimes substantive, protections; with a few exceptions, there has been no precise analogue to the continuing willingness to find specific "liberty” interests in the Constitution itself.23 But the Supreme Court has nonetheless consistently recognized that due process require¬ ments are implicated whenever the enforcement power of government is employed to deprive an individual of an interest, derived from the common

law, in peaceful possession 24 or use 25 of real or personal

"property,” using that term in its colloquial sense, whether such property was being taken to meet a need of government or for the benefit of another private individual. Thus, in Ewing v. Mytinger & Casselberry , Inc.,26 the Court subjected to procedural due process analy¬ sis, though eventually upholding, a provision of the Federal Food, Drug and Cosmetic Act which permitted a designated government official to act at his or her discretion, free of any requirement to hold a prior hearing, in ordering seizures of misbranded articles. In the case of public employment or other goods and services which federal and state governments provide, however, courts adhered until quite recently to a distinction, expressed most classically by Justice 20. Id. at 161 (Frankfurter, J., concur¬ ring). 21. Id. 22. See discussion in Chapter 8, supra. 23. See Chapters 11-15, infra. But see §§ 9-6, 9-7, 9-9, supra, and § 10-11, infra. In a few instances, the Court has raised its own intuitive notions of what constitutes ownership to a constitutional limit on posi¬ tive law. In Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980), a unanimous Court struck down Florida’s at¬ tempt to define as public property the in¬ terest earned on a private fund deposited with a state court. The Supreme Court rejected the argument that, since the very statute that directed investment of the fund by the clerk of court also declared that the interest earned thereby was public property, the state took only what it itself had created. Instead, the Court substitut¬ ed for the state’s positive law its own Lock¬ ean notions of property that interest is "an incident of ownership” of the principal, and held that "a State, by ipse dixit, may not transform private property into public property without compensation.”

449 U.S.

at 164.

See also Fuentes

v. Shevin, 407

U.S. 67 (1972) (state could not constitution¬ ally define chattel ownership to essentially eliminate property right to possessions ob¬ tained in conditional sales contracts). Both cases are discussed in more detail in § 9-7, supra. 24. See, e.g., Lindsey v. Normet, 405 U.S. 56 (1972) (accepting without question the property interest of tenant in suit seek¬ ing to prevent imminent state-enforced eviction); Pennoyer v. Neff, 95 U.S. (5 Ot¬ to) 714 (1877) (procedural due process ques¬ tion raised by action to recover possession of tract of land). 25. See, e.g., Mullane v. Central Hano¬ ver Bank & Trust Co., 339 U.S. 306 (1950) (procedural due process violated by provi¬ sions of New York statute for triennial judicial settlement of trust estate accounts because an inadequate method of giving notice to beneficiaries of pooled trusts ef¬ fectively denied at least some beneficiaries an opportunity to participate in control of their property). 26. 339 U.S. 594 (1950).

§ 10-8

MODEL

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681

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Holmes,27 between individual "rights” stemming from constitutional or common law sources and mere "privileges” bestowed by government; the latter could be withheld absolutely and "therefore” could be with¬ held conditionally — even if the condition, viewed independently, would have violated a settled constitutional norm like that against ideological censorship or racial discrimination.28 The now somewhat eroded twentieth century doctrine of "unconsti¬ tutional conditions,” which holds that government may not condition the receipt of its benefits upon the nonassertion of constitutional rights even if receipt of such benefits is in all other respects a "mere privilege,” 29 theoretically allowed individuals to challenge government action which indirectly inhibits or penalizes the exercise of constitution¬ al rights.30 But in the absence of a general plaintiffs right of access to 27. See McAuliffe v. New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 518 (1892) ("The petitioner may have a constitutional right to talk politics but he has no constitu¬ tional right to be a policeman.”)

28. See, e.g., Bailey v. Richardson, 182 F.2d 46 (D.C.Cir. 1950), aff d by an equally divided Court 341 U.S. 918 (1951) (due pro¬ cess protections not applicable to dismis¬ sals from federal civil service employment). See generally Frug, "Does the Constitution Prevent the Discharge of Civil Service Em¬ ployees?” 124 U.Pa.L.Rev. 942, 961 (1976) (Until the 1950’s courts consistently re¬ fused to review challenges to executive’s power to remove employees).

29. For an early statement of this doc¬ trine, see Frost v. Railroad Comm’n, 271 U.S. 583, 593-94 (1926). See also Sherbert v. Verner, 374 U.S. 398 (1963) (state may not deny unemployment benefits to person who refuses to work on Saturdays for reli¬ gious reasons); Speiser v. Randall, 357 U.S. 513 (1958) (government may not act indi¬ rectly to "produce a result which [it] could not command directly”). A few recent Su¬ preme Court decisions have cast doubt on the continued validity of the doctrine. In Posadas de Puerto Rico Associates v. Tour¬ ism Co. of Puerto Rico, 106 S.Ct. 2968 (1986), the Court upheld a Puerto Rico law conditioning the privilege of operating gambling casinos on forbearance of the right to advertise under the first amend¬ ment’s commercial speech doctrine. In its efforts to distinguish two previous deci¬ sions striking down similiar commercial

lobbying activities by those receiving bene¬ fits did not violate the First Amendment). Cf. F.C.C. v. League of Women Voters, 468 U.S. 364 (1984) (absolute bar on editorializ¬ ing by television stations receiving federal funds not saved by subsidy argument, since the station was unable to segregate its activities according to their source of fund¬ ing). The trend may ultimately lead to¬ ward further revival of the rights-privileges distinction. In fact, Chief Justice (then Associate Justice) Rehnquist was able to garner the support of two other justices for the proposition that constitu¬ tional rights are sufficiently protected any time a "rational relationship” exists be¬ tween the condition imposed and Congress’ purpose in providing a government benefit. F.C.C. v. League of Women Voters, 468 U.S. at 407 (Rehnquist, J., joined by Bur¬ ger, C.J. and White, J., dissenting). See also Wyman v. James, 400 U.S. 309 (1971) (upholding New

York

law which

condi¬

tioned eligibility for welfare on recipient’s foregoing fourth amendment privilege to deny home visits by welfare caseworkers); Van Alstyne, "The Demise of the RightPrivilege Distinction in Constitutional Law,” 81 Harv.L.Rev. 1439, 1448 (1968) ("The basic flaw in the [unconstitutional conditions] doctrine is its assumption that the same evil results from attaching cer¬ tain conditions to government-connected activity as from imposing such conditions on persons not connected ment.”) See § 11-5, infra.

with govern¬

¬ Red n ou f y gr o ll na io d ut r it oa st B e on v. ibl (c s is rm 67). 8) e 96 mp (19 an (1 i hi s is9 3i ey58 56 K h S. ec S. U. e U. sp ); 1 5 ge 39 38har c ised , dct s, on e ti ot r nt ca pr fo ge

speech restrictions, the Court stated, "In Carey and Bigelow , the underlying conduct that was the subject of the advertising re¬ strictions was constitutionally protected and could not have been prohibited by the State. . . . [Here t]he greater power to completely ban casino gambling necessar¬ ily includes the lesser power to ban adver¬ tising of casino gambling. . . .” Earlier, the Court distinguished Congress’ refusal to "subsidize” the exercise of a right from

conditioning one’s receipt of that subsidy upon forgoing the exercise of the right. Regan v. Taxation with Representation, 461 U.S. 540 (1983) (since organization could create one affiliate to receive taxdeductible funds and another affiliate to exercise its lobbying rights, preclusion of

682

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

the courts,31 the existence of this retrospective judicial remedy remains insufficient for many individuals — ironically those most likely to be dependent on the government’s benefits.32 The lower courts have been split,33 and the Supreme Court has not yet authoritatively determined whether procedural due process requires a government agency to grant affected persons a hearing whenever a bona fide claim is made that the withdrawal of government benefits was a response to the exercise of constitutional rights.34 Including particular activities within the constitutional definition of "liberty” or "property” is not, of course, the equivalent of granting those activities total immunity from government regulation or depriva¬ tion.35 Nevertheless, such inclusion usually implies a burden of justifi¬ cation for every substantive curtailment of the interest in question,36 and always implies constitutional recognition of a procedural right to be heard even when a concededly valid government rule infringing that interest is enforced.37 For example, notwithstanding

the existence of the common

law

"liberty” to follow a chosen profession,38 "[t]he power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will . . . tend to secure them against the consequences

of ignorance and incapacity as well as decep¬

tion and fraud.”39 Substantively constitutional regulations — usually, those which are rationally related to legitimate governmental objec¬ tives— taking the form of mechanically applied general eligibility stan31. See discussion of access to judicial protection in § 10-18, infra. 32. See generally, Michelman, § 10-7 in note 14.

supra

33. Compare McDowell v. Texas, 465 F.2d 1342, 1347 (5th Cir. 1971), cert, denied 410 U.S. 943 (1973) (employee must be giv¬ en hearing if he claims termination for unconstitutional reasons even though he had no expectancy of re-employment) with George v. Conneaut Board of Education, 472 F.2d 132 (6th Cir. 1972) (government not obligated to grant administrative hear¬ ings on request, though unconstitutional conditions claim is cognizable in court.). 34. See Perry v. Sindermann, 408 U.S. 593, 599 n. 5 (1972) (rejecting suggestion "that the respondent might process right to some kind of ply if he asserts to college their decision was based on

have a due hearing sim¬ officials that his constitu¬

tionally protected conduct”) (emphasis in original.) The Sindermann footnote can be read to leave open the possibility that a factual showing (amounting to more than a mere assertion) that government acted to penalize the exercise of constitutional rights would trigger procedural due pro¬ cess obligations to provide a hearing to air fully the issue of whether government had in fact acted to penalize the exercise of constitutional rights. Once the individual

succeeds in establishing, possibly with the aid of an administrative hearing, or with help from discovery mechanisms ancillary to adjudication, that constitutionally pro¬ tected conduct probably "played a 'substan¬ tial part’ in [a] decision not to renew [a public benefit],” the burden shifts to gov¬ ernment to show "by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct.” Mt. Healthy City School Dist. Bd. of Education v. Doyle, 429 U.S. 274, 285-87 (1977). 35. See, e.g., Ewing v. Mytinger & Cas¬ selberry, Inc., 339 U.S. 594 (1950) (allowing official discretion to order summary seizure of misbranded articles over proce¬ dural due process challenge). 36. See Chapters 11 and 15, infra, for discussions of substantive due process. 37. However, the right to be heard may be limited to the right to submit a written statement. See, e.g., Hewitt v. Helms, 459 U.S. 460, 472-77 (1983), discussed in § 1015, infra. 38. See § 15-13, infra. 39. Dent v. West Virginia, 129 U.S. 114, 122 (1889) (upholding a state law forbid¬ ding the practice of medicine without a license).

§ 10-8

MODEL

OF GOVERNMENTAL

REGULARITY

683

dards such as those of age, educational attainments, or residency, have not ordinarily triggered any requirement that procedural due process be accorded to each affected person individually.40 However, regula¬ tions which are structured so as to require more individualized determi¬ nations in their application — such as findings of "good character” 41 — can be validly enforced only in a manner consistent with the dictates of procedural due process. During the decades in which these notions were being worked out, the Supreme Court took the position that the form of procedural due process was not fixed; rather, its "content varies according to specific factual contexts.” 42 Yet, certain procedures were consistently thought to be required either by some "higher law” 43 or as a matter of "fundamental fairness.” 44 In all cases, the core content of procedural due process placed upon government the duty to give notice 45 and an opportunity to be heard46 to individuals or groups whose interests in life, liberty or property were adversely affected by government action. The assurance of a fair trial or at least a fair hearing mandated that the individual be accorded an open hearing47 before a "neutral and 40. But see the discussion of irrebut¬ table presumptions in Chapter 16, infra. 41. See, e.g., Willner v. Committee on Character & Fitness, 373 U.S. 96 (1963) (New York denied individual procedural due process by refusing to admit him to the practice of law on the basis of adverse report by bar association character com¬ mittee that he was given no opportunity to contest); Goldsmith v. United States Bd. of Tax Appeals, 270 U.S. 117 (1926) (certified public accountant’s application to practice before Board of Tax Appeals should not be rejected on grounds of unfitness without giving him an opportunity for a hearing and an answer). Cf. In re Ruffalo, 390 U.S. 544 (1968) (Government must afford attor¬ ney notice and opportunity for hearing be¬ fore previously granted permission to prac¬ tice law can be validly revoked). But cf. Greene v. McElroy, 360 U.S. 474, 507 (1959) (construing a federal statute in a way that avoided the constitutional ques¬ tion whether, in the context of the revoca¬ tion of a defense industry engineer’s securi¬ ty clearance, "a person may be deprived of the right to follow his chosen profession without full hearings where accusers may be confronted”); Barsky v. Board of Re¬ gents, 347 U.S. 442, 451 (1954) (criminal conviction for contempt of Congress for reasons unconnected with ability to prac¬ tice medicine held a sufficient ground for state to suspend physician’s license since "the practice of medicine in New York [is a 'privilege’ granted by the state and] is law¬ fully prohibited by the state except under the conditions it imposes”). Barsky is crit¬ icized in § 15-14, infra. 42. Hannah 442 (1960).

v. Larche, 363 U.S. 420,

43. See, e.g., Twining v. New Jersey, 211 U.S. 78, 106 (1908) (natural law right to live free from arbitrary exercise of gov¬ ernment power). 44. See, e.g., Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Frankfurter, J., dissent¬ ing). See generally, Radish, supra § 10-7 in note 1, at 321-34. 45. See, e.g., Mullane v. Central Hano¬ ver Bank & Trust Co., 339 U.S. 306, 314-15 (1950) (notice must be "reasonably calculat¬ ed, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections;” "[t]he but in¬ dividual interest does not where stand alone is identical with that of a class . . . notice reasonably certain to reach most of those interested in objecting is likely to safe¬ guard the interests of all”); In re Oliver, 333 U.S. 257, 273 (1948) (petitioner de¬ prived of due process right to notice and hearing when, immediately after testimony before a one-judge-grand-jury, he was charged and convicted of contempt and sent to jail). See also Shaffer v. Heitner, 433 U.S. 186 (1977), extending to quasi-in rem jurisdiction, despite Pennoyer v. Neff, 95 U.S. (5 Otto) 714 (1877), the fair notice — minimum contacts approach of Interna¬ tional Shoe Co. v. Washington, 326 U.S. 310 (1945). 46. See, e.g., Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 678 (1930) (enjoining collection of tax assessment be¬ cause petitioner was not afforded "at any time an opportunity to be heard in its defense”). 47. See, e.g., In re Oliver, 333 U.S. 257, 266-73 (1948) (due process violated where

684

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OF GOVERNMENTAL

REGULARITY

Ch. 10

detached magistrate” 48 who has no "direct, personal, substantial pecu¬ niary interest in reaching a conclusion against him in his case,” 49 and who is free from domination by "a mob,” 50 with counsel provided for indigents in criminal cases.51 Life, liberty and property could not, furthermore, be taken by virtue of a statute whose terms were "so vague, indefinite and uncer¬ tain” 52 that one cannot determine their meaning. Nor could statutes employ overly attenuated presumptions "where the inference is so strained as not to have a reasonable relation to the circumstances of life.” 53 Government was expected to maintain high standards of hon¬ esty in dealing with citizens. Thus it was held violative of due process to convict "a citizen for exercising a privilege which the State clearly had told him was available to him,” 54 or for the State to contrive "a conviction . . . through a deliberate deception of court and jury by the presentation of testimony known to be perjured.” 55 Finally, it was held that an individual is denied due process if he is deprived of liberty "on a record lacking any relevant evidence as to a crucial element of the offense charged.” 56 The Court did, however, recognize certain limits on the availability of these protections in the context of a deprivation of an otherwise person deprived of liberty through crimi¬ nal trial conducted in camera). 48. Coolidge v. New Hampshire, 403 U.S. 443, 449 (1971) (invalidating warrant executed by active participant in investiga¬ tion). See also In re Murchison, 349 U.S. 133, 134 (1955) ("The due process require¬ ment of an impartial tribunal [is violated] where the same judge presiding at the con¬ tempt hearing had also served as the 'one man grand jury’ [in the secret hearings] out of which the contempt charges arose”). 49. Turney v. Ohio, 273 U.S. 510, 523 (1927) (invalidating fine for illegal posses¬ sion of intoxicating liquor where mayor received a share of such fines). See also Ward v. Monroeville, 409 U.S. 57, 62 (1972) (petitioner denied right to neutral and de¬ tached judge where a major portion of town’s income came from penalties im¬ posed by the town mayor sitting as judge). 50. Moore v. Dempsey, 261 U.S. 86, 9091 (1923) (petitioners sentenced to death under mob pressure were deprived of life without due process of law). 51. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963); see also Powell v. Ala¬ bama, 287 U.S. 45, 71 (1932) (defendant in capital case must be given reasonable time and opportunity to secure counsel and must be provided with counsel if he is "incapable adequately of defense”). 52. Lanzetta v. New 451, 458 (1939) (reversing statute making it penal "gangster”).

making

his own

Jersey, 306 U.S. conviction under offense to be a

53. Tot v. United States, 319 U.S. 463, 468 (1943) (reversing conviction under stat¬ ute making possession of firearm or ammu¬ nition by convicted felon or fugitive from justice presumptive evidence that such firearm was shipped in violation of the act). See also Turner v. United States, 396 U.S. 398, 415-20 (1970) (allowing jury to infer, from fact of possession of heroin, that petitioner had knowledge of its illegal importation, since the overwhelming pro¬ portion of heroin consumed in United States is illegally imported; but not al¬ lowing similar inference with respect to cocaine, since more of that drug is lawfully prepared in United States than is illegally imported); Leary v. United States, 395 U.S. 6, 36 (1969) (disallowing inference, from possession of marijuana, that peti¬ tioner had knowledge of its unlawful im¬ portation in absence of proof that most possessors have such knowledge). 54. Raley v. Ohio, 360 U.S. 423, 438 (1959). 55. Mooney v. Holohan, 294 U.S. 103, 112 (1935) (noting that a valid claim had been stated, but refusing to allow petition for writ of habeas corpus due to lack of exhaustion of state remedies). 56. Vachon v. New Hampshire, 414 U.S. 478 (1974), quoting Harris v. United States, 404 U.S. 1232, 1233 (1971) (Douglas, J., concurring). See also Thompson v. Lou¬ isville, 362 U.S. 199 (1960) (invalidating conviction for loitering and disorderly con¬ duct where there was no evidentiary sup¬ duct). port for so characterizing petitioner’s con¬

MODEL

§ 10-9

OF GOVERNMENTAL

685

REGULARITY

protected cy,57 and that the hearing. that the

interest in life, liberty, or property: first, in cases of emergen¬ of taking by eminent domain,58 the Court has not required government-enforced seizure be preceded by an adversary Second, procedural due process has not been held to require affected individuals or groups be granted a hearing before government acts in a legislative, or broadly rule-making or policyforming, capacity.59 Thus, while an administrative agency was re¬ quired to grant specifically affected individuals or groups a hearing before a rule was particularly enforced against them, the agency was not required by due process to grant such a hearing when simply formulating the rule.60 All of these holdings continued to represent the law throughout the expansion of due process rights described in § 10-9, and have remained good law through the period of contraction in due process described in §§ 10-10 through 10-14; but underlying modes of analysis have changed dramatically, and harder cases than those yet canvassed would prove sensitive to such shifts in method and emphasis. § 10-9. Extending Procedural Due Process Beyond Law Core of Personal Interests

the Common-

During the early 1970’s, the circle of interests sufficient to create "liberty” or "property” for purposes of due process was significantly widened.1 Professor Charles Reich’s ground-breaking article, The New Property ,2 traced the ways in which rapid expansion of the public sector of the economy, together with the acceptance of a governmental obliga¬ tion to aid the downtrodden, had created increasing dependence upon government as a major source of employment, contracts, or welfare benefits on the part of increasing numbers of citizens. Yet notwith¬ standing their growing reliance upon the state, citizens were granted virtually no constitutional protection against the arbitrary withdrawal of needed benefits, even after the supposed demise of the rights57. See, e.g., North American Cold Stor¬ age Co. v. Chicago, 211 U.S. 306, 320 (1908) (allowing seizure and destruction of poul¬ try without prior hearing on grounds of '’emergency . . . which would fairly ap¬ peal to the reasonable discretion of the legislature”).

58. See, e.g., Crozier v. Fried, Krupp Aktiengesellschaft, 224 U.S. 290, 306 (1912)

”)

("Indisputably the duty to make compensa¬ tion does not inflexibly . . . [require] . . . that compensation should be made previous to the taking — it being sufficient . . . that adequate means be provided for a reasonably just and prompt ascertain¬ ment and payment of compensation •

•

•

/•

59. See, e.g., Bi-Metallic Invest. Co. v.

State Board of Equalization, 239 U.S. 441 (1915); see §§ 10-1, 10-6, 10-7, supra.

60. See, e.g., Opp Cotton Mills, Inc. v. Administrator of Wage & Hour Div., 312 U.S. 126 (1941) (rejecting a procedural due

process attack on provisions of the Fair Labor Standards Act making recommenda¬ tion as to minimum wage); United States v. Illinois C.R. Co., 291 U.S. 457 (1934) (rejecting procedural due process claim for notice and hearing prior to Interstate Com¬ merce Commission establishment of mini¬ mum rates for common carriers on inland waterways so long as opportunity for full hearing granted before order became ative).

1. See, e.g., Perry v. Sindermann,

oper¬

408

U.S. 593 (1972) (teacher’s continued em¬ ployment at state university pursuant to § 10-9 "implied” tenure): Morrissey v. Brewer, 408 U.S. 471 (1972) (conditional freedom following parole); Bell v. Burson, 402 U.S. 535 (1971) (driver’s license); Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare bene¬ fits). 2. 73 Yale L.J. 733 (1964).

686

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privileges distinction protected such benefits from the imposition of unconstitutional conditions.3 Perhaps responding to the alienation and affront to human dignity which such complete dependence and vulnera¬ bility might induce in circumstances where no alternative source of relief was available, the Court ultimately rejected much of what re¬ mained of the rights-privileges distinction.4 For the first time, the Court recognized as entitlements 5 interests founded neither on consti¬ tutional nor on common law claims of right but only on a state-fostered (and hence justifiable) expectation, as opposed to a mere hope,6 which was derived from 'an independent source such as state law” 7 or from "mutually explicit understandings.” 8 While these new "statutory enti¬ tlements” did not grant a constitutional right to governmental non¬ arbitrariness whenever benefits were being provided (since government remained free to foster no expectations in distributing its largesse), they did serve to surround the "core” of liberty and property interests with a periphery activated, unlike the core, only by affirmative state choices, but secure, once activated, against destruction without due process of law. Determining

the existence of these new entitlements depended on

construction of the relevant statutes, and of the pertinent understand¬ ings between government and individuals, rather than on any balanc¬ ing of interests; the existence of an entitlement turned not on "the weight but [on] the nature of the interest at stake.” 9 The Court appears, therefore, to have placed great emphasis both on making it possible for those who deal with the government in any way to rely on any clearly announced rules,10 and also on reducing the helplessness of persons who are in a dependent relationship to government with respect to basic needs. As to the latter in particular, the Court has 3. See § 10-8, supra. 4. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Graham v. Richard¬ son, 403 U.S. 365, 374 (1971); Bell v. Burson, 402 U.S. 535, 539 (1971); Goldberg v. Kelly, 397 U.S. 254, 262 (1970); Sherbert v. Verner, 374 U.S. 398, 404 (1963). The dis¬ tinction still retained vitality, however, where government carefully avoided creat¬ ing any expectation of receipt or renewal upon the fulfillment or non-fulfillment of stated conditions. Board of Regents v. Roth, 408 U.S. 564 (1972). However, the conditions must be "substantive limitations on discretion” in the form of standards rather than a mere procedural framework, since "[t]he State may choose to require procedures for reasons other than protec¬ tion against deprivation of substantive rights. ...” Olim v. Wakinekona, 461 U.S. 238, 249-51 (1983) (holding that no state-created liberty interest arose despite prison regulations requiring a hearing pri¬ or to interstate transfer of an inmate, since "[n]o standards governed]” the determina¬ tion). See also Hewitt v. Helms, 459 U.S. 460, 471 (1983); Connecticut Bd. of Par¬ dons v. Dumschat, 452 U.S. 458 (1981).

5. The Court adopted the terminology used by Reich, supra note 2. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 262 n. 8 (1970). 6. Thus the Court has not defined prop¬ erty interests as expansively as some com¬ mentators have urged. See, e.g., Com¬ ment, "Entitlement, Enjoyment, and Due Process of Law,” 1974 Duke L.J. 89, 111 (urging the Court to "regard life, liberty, and property as encompassing everything of which a person can be deprived, and [to] hold that a person has a claim within the ambit of the due process clause whenever governmental action has accrued to his detriment”). 7. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). 8. Perry v. Sindermann, 601 (1972).

408 U.S. 593,

9. Roth, 408 U.S. at 571. See also Goss v. Lopez, 419 U.S. 565, 575-76 (1975); Fuentes v. Shevin, 407 U.S. 67, 86 (1972). 10. See also § 9-7, supra.

MODEL

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687 9 0 1 § evidently sought to assure that government decisions about needs are reasonably accurate and that individuals have a personal chance to be heard when vital necessities are at stake.11 Moreover, the Court appears to have proceeded on the premise that, when a reduction in helplessness requires participation in hearings, the cost in dollars cannot be accepted as a sufficient reason to proceed by discretionary choice, since due process will always involve administrative burdens of that sort.12 In Goldberg v. Kelly , for example, the Court held that New

York

could not terminate "public assistance payments to a particular recipi¬ ent without affording him the opportunity for an evidentiary hearing prior to termination.,, 13 Writing for the Court, Justice Brennan noted that "[i]t may be realistic today to regard welfare entitlements as more like property than a 'gratuity.' Much of the existing wealth in this country takes the form of rights that do not fall within traditional common law concepts of property." 14 Thus, welfare "benefits are a matter of statutory entitlement for persons qualified to receive them." 15 Similarly, in Bell v. Burson 16 the Court found that a clergy¬ man involved in a car accident had an entitlement to his driver’s license under state law, and thus had a federal constitutional right to a due process hearing on the question of his responsibility for the acci¬ dent prior to any suspension of his license to drive. "Once licenses are issued . . . continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees." 17 The Court also held that "a person’s liberty is equally protected even when the liberty itself is a statutory creation of the state,” 18 since statutory entitlements include "many of the core values of unqualified liberty.” 19 Thus, although government is not constitutionally required 11. See United States Dept, of Agricul¬ ture v. Murry, 413 U.S. 508 (1973) (invali¬ dating as violative of due process a statuto¬ ry provision basing the food stamp ineligibility of an entire household upon the presence of a member who had been claimed as a dependent by an ineligible taxpayer living outside the household; such a rule of thumb is an excessively inaccurate measure of needs). 12. See § 10-13, infra, on the question of balancing costs of hearings in determin¬ ing what process is due.

13. 397 U.S. 254, 255 (1970). 14. Id. at 262 n. 8.

15. Id. at 262. Parker, 472

443 U.S. 55, 64 (1979) (horse trainer’s liscense, not revocable at the discretion of racing officials, constituted a "clear . . . unfair¬ A particular property ness in theinterest”). scheme struck down in Bell v. Burson was its delegation of unaccountable power to the other driver involved in an accident; by simply alleging damages in some astronomical amount, the other driv¬ er could put the licensee to a choice be¬ tween posting an enormous bond and sub¬ mitting to license suspension. Cf. § 5-17, supra.

18. Wolff v. McDonnell, 418 U.S. 539, 558 (1974).

See also Atkins v.

19. Morrissey v. Brewer, 408 U.S. 471,

U.S. 115, 129 (1985) (food

482 (1972). Justice Stevens has consistent¬ ly adhered to the Lockean view that the

stamp benefits are a statutory entitle¬ ment). But see note 37, infra.

16. 402 U.S. 535 (1971). 17. Id. at 539. See also Mackey v. Montrym, 443 U.S. 1, 10 n. 7 (1979) ("That the Due Process Clause applies to a state’s suspension or revocation of a driver’s li¬ cense is clear. . . .”); Barry v. Barchi,

state does not "create” liberty: "[N]either the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant con¬ stitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or

688

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Ch. 10

to offer prisoners early release opportunities, once such opportunities are promised on specified conditions, they may not subsequently be withdrawn unless the government complies with the requirements of procedural due process.20 However, since an individual in this context is deprived of a conditional liberty rather than of the absolute freedom from bodily restraint enjoyed prior to criminal conviction, the procedu¬ ral safeguards government must provide in revoking the conditional grant of early release are not as stringent as those it was required to observe in order to bring about the original conviction and confinement. In Morrissey v. Brewer , for example, the Court held that, since an individual ""can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life” when free subject to the conditions of parole, the termination of this 'liberty” by revoking parole "inflicts a 'grievous loss’ on the parolees and often on others,” and must therefore be preceded by "some orderly process, however informal.” 21 Similarly, in Gagnon v. Scarpelli , the Court found "that revocation of probation where sentence has been imposed previously is constitutionally indistinguishable from . . . revocation of parole.” 22 Thus the guarantee of due process also attach¬ es to the liberty interest in conditional freedom afforded by probation. And in Wolff v. McDonnell ,23 the Court held that, when a state chooses to offer prisoners a shortened jail sentence by permitting the accumula¬ tion of credits for good behavior, the revocation of a prisoner’s "good¬ time” credits as a punishment for misconduct is valid only if carried out in a manner satisfying the obligations of procedural due process. In more

recent cases, the Court has focused on specific statutory

language to determine whether

the state has "created” a liberty inter¬

they curtail the freedom of the citizen who must live in an ordered society.” Meachum v. Fano, 427 U.S. 215, 230 (1976) (Stevens, J., dissenting), quoted in Connect¬ icut Bd. of Pardons v. Dumschat, 452 U.S. 458, 469 n. 1 (1981) (Stevens, J., dissenting). 20. The Court has also declared that state commitment proceedings, whether civil or criminal, are subject to procedural due process. Specht v. Patterson, 386 U.S. 605 (1967) (individual convicted of sex crime for which statutory punishment was ten years imprisonment was denied due process when, without full panoply of pro¬ cedural safeguards, the state sentenced him to commitment in a mental institution as a sexual psychopath for an indefinite period). See also Addington v. Texas, 441 U.S. 418 (1979) (requiring a "clear and convincing” standard of proof in civil com¬ mitment proceedings); Jones v. United States, 463 U.S. 354, 361 (1983) (commit¬ ment for any purpose constitutes a depri¬ vation of liberty requiring due process); Vitek v. Jones, 445 U.S. 480 (1980), dis¬ cussed in note 26, infra. Cf. Minnesota ex rel. Pearscn v. Probate Court, 309 U.S. 270 (1940) (upholding state procedures for the indefinite commitment of sexual psycho¬ paths; procedures included rights to prior

adversary hearing, representation by coun¬ sel, medical examination by two doctors, access to compulsory process, a written rec¬ ord, an appeal, and release pending hear¬ ing or appeal; the Court did not indicate whether all or merely some of these rights were required by procedural due process). The Court has also required that due pro¬ cess must be accorded before renewal of an individual’s criminal commitment beyond the expiration date of the maximum prison sentence for the crime of which he was convicted. See Humphrey v. Cady, 405 U.S. 504 (1972). Cf. McNeil v. Director, Patuxent Institution, 407 U.S. 245 (1972) (despite refusal to submit to psychiatric examination, detention of an alleged "de¬ fective delinquent” beyond the expiration date of his criminal sentence violates due process). 21. 408 U.S. 471, 482 (1972). In the Morrissey opinion, the Court for the first time undertook to analyze due process in an explicitly bifurcated manner: "Once it is determined that due process applies, the question remains what process is due.” Id. at 481. 22. 411 U.S. 778, 782 n. 3 (1973). 23. 418 U.S. 539 (1974).

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689

§ 10-9 est. Greenholtz v . Inmates of Nebraska Penal and Cor. Complex 24 for example, held that while the mere existence of a parole system fails to establish a liberty interest for those seeking parole,25 the particular statute at issue contained such ''unique structure and language” that it entitled the inmate to protection.26 This new ''statutory entitlement” doctrine was also extended be¬ yond those property and liberty interests, such as welfare and parole, which are conferred by the government basically to meet the needs of recipients. The Court also accorded due process protection to such "property” interests as government employment, conferred for the government's own purposes rather than the recipient’s. Here, as with the new entitlements generally, the property interest in government employment was protected by procedural due process only insofar as it was derived from reliance induced by the state’s express agreement or implied promise. In Perry v. Sindermann27 the Supreme Court held that a cause of action was made out by a state junior college professor’s contention that he had been denied procedural due process by the failure of the junior college to grant him a hearing before deciding not to renew his teaching contract. Justice Stewart’s majority opinion found that, although state law did not authorize the junior college explicitly to grant its professors tenure, there was evidence indicating that "there may be an unwritten 'common law’ in [the junior college] that certain employees shall have the equivalent of tenure.” 28 The Court concluded that Sindermann, previously employed by the junior college for four years, might be able to show "the existence of rules and understandings, promulgated and fostered by state officials, that . . . justify his legitimate claim of entitlement to continued employment absent 'sufficient cause.’ ” 29 In the companion 24. 442 U.S. 1 (1979), also discussed in

case of Board of Regents

Morrissey v. Brewer, 408

prison, the director "may” order his trans¬ fer). And "the presence of general or broad release criteria — delegating signifi¬ cant discretion to the decisionmaker—

U.S. 471 (1972). The Court in Greenholtz spent considerable time distinguishing

[does] not deprive the prisoner of the liber¬ ty interest in parole release created by

Morrissey, presumably because the parol¬ ee’s liberty in Morrissey existed regardless of the precise language in the parole stat¬ ute. See Greenholtz, 442 U.S. at 24 (Mar¬ shall, J., dissenting in part).

... [a] statute” specifying that parole must be granted "unless one of [several] designated justifications for deferral [or de¬ nial] is found.” Board of Pardons v. Allen, 107 S.Ct. 2415, 2419 (1987) (relying on

26. 442 U.S. at 12. The court appeared

Greenholtz); cf. id. at 2424 (O’Connor, J., joined by Rehnquist, C.J., and Scalia, J.,

§ 10-7, supra, and § 10-10, infra.

25. Compare

to rely on the mandatory

character of the

phrase ’'shall order his release un¬ less . . . . ” Elsewhere, the Court has rec¬ ognized that "explicitly mandatory lan¬ guage in connection with requiring specific substantive predicates demands a conclu¬ sion that the State has created a protected liberty interest.” Hewitt v. Helms, 459 U.S. 460, 472 (1983). But the absence of mandatory language does not preclude the state’s creation of a liberty. Vitek v. Jones, 445 U.S. 480, 488-491 (1980) (inter¬ est created where statutory language pro¬ vided that if a psychologist "finds” that an inmate "suffers from a mental disease” which could not be properly treated in the

dissenting) (urging that " Greenholtz is ... an aberration and should be reexam¬ ined and limited strictly to its facts.”).

27. 408 U.S. 593 (1972). See also Con¬ nell v. Higgenbotham, 403 U.S. 207 (1971) (holding that a state could not summarily dismiss a substitute classroom teacher who had refused to sign a loyalty oath without affording the teacher a prior hearing com¬ plying with due process).

28. Perry v. Sindermann, 408 U.S. 593, 602 (1972).

29. Id. at 602-03.

690

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v. Roth,30 on the other hand, the Court found no basis for the claim of a nontenured assistant professor to a hearing before the state university declined to renew his contract. Justice Stewart’s majority opinion reasoned that, "to have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it”; property interests "are created and . . . defined by existing rules or under¬ standings that stem from an independent source such as state law.” 31 There, state law left "the decision whether to rehire a nontenured teacher for another year to the unfettered discretion of university officials,” 32 and there was no other independent source such as past custom, as there was in Perry, on which an entitlement could be based.33 The Court in Roth also suggested that present enjoyment34 of a statutory entitlement is an indispensable prerequisite of due process protection, when it commented that "[t]he Fourteenth Amendment’s procedural protection of property is a safeguard of the security interests that a person has already acquired in specific benefits.” 35 It might thus be argued that there exists no due process duty to afford a hearing when the state turns down an initial request (as opposed to renewal, dismissal or revocation) for welfare, a government job or parole.36 But it would be inconsistent with any intelligible rationale underlying due process protection to deny all procedural safeguards to the new appli¬ cant where the law provides that all individuals meeting certain objective criteria are entitled to, say, welfare.37 In Memphis Light, Gas, & Water Div. v. Craft,33 the Supreme Court held that customers of a public utility were entitled to process before their power was disconnected for non-payment of disputed bills. Al¬ though electricity is arguably required to meet the needs of most persons, the Court chose to rest its finding of a property interest on state decisional law providing that service could be terminated only "for cause.” 39 30. 408 U.S. 564 (1972). 31. Id. at 577. 32. Id. at 567. 33. Id. at 578 n. 16. 34. See Comment, "Entitlement, Enjoy¬ ment, and Due Process of Law,” 1974 Duke L.J. 89. 35. 408 U.S. at 576 (emphasis added). 36. Indeed, in Greenholtz v. Inmates of Nebraska Penal and Cor. Complex, the Court distinguished initial denial from rev¬ ocation of parole, stating that "[tjhere is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires.” 442 U.S. at 9. The Court de¬ scribed the issue as an open one in Lyng v. Payne, 106 S.Ct. 2333, 2343 (1986).

precedent,” are "unsettling in [their] impli¬ cation^],” and are contrary to "the weight of authority among lower courts.” Id. at 1380, 1381-82 (O’Connor, J., joined by Brennan, and Marshall, JJ., dissenting). If the Court were to deny any protection to interests in statutory benefits not current¬ ly enjoyed, then the fear expressed by Jus¬ tice Black in his dissent in Goldberg v. Kelly, 397 U.S. 254, 279 (1970), may be borne out: a state would be tempted to delay putting a person on welfare until absolutely sure he or she was eligible, since once the individual started receiving wel¬ fare payments, the payments could not be discontinued without a hearing. The Greenholtz ruling, see note 36 supra, is not to the tocontrary inasmuch the rested inmate’s claim entitlement in thatascase on the "unique structure and language” of the particular statute at issue. 442 U.S. at 12.

37. Although some lower courts have done just that, see, e.g., Gregory v. Pitts¬ field, 479 A.2d 1304 (Me. 1984), cert, denied 470 U.S. 1018 (1985), such holdings seem

38. 436 U.S. 1 (1978).

"a questionable reading of [Supreme] Court

39. Id. at 9-12.

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691 § 10-9 While the extension of procedural safeguards to statutory entitle¬ ments beyond the constitutional and common law core of personal interests was the most significant change in procedural due process jurisprudence during the early 1970’s, this period was also marked by the recognition of a broader set of "core” interests; there was no inconsistency, in short, between the entitlement view and the preserva¬ tion of a core of substantive "liberty” and "property” rights indepen¬ dent of a state’s laws. The Court appeared, for example, to find a liberty interest "where a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him,” 40 so that government had to meet due process requirements before taking action which explicitly labeled an individual in an invidious or deroga¬ tory manner. First, in Jenkins v. McKeithen ,41 the Supreme Court held that, given appropriate offerings of proof, a valid claim for declaratory and injunctive relief would be made out by the contention that the Louisiana Labor-Management Commission’s practice of investigating and finding facts relating to violations of state and federal criminal laws in the labor-management

relations field was inconsistent with the

requirements of procedural due process. Justice Marshall’s plurality opinion found that the Commission performed the directly accusatory function of publicly labeling individuals and groups as violators of the criminal laws. Since the public identification of "criminals” was a direct rather than collateral consequence of the Commission’s activities, "the personal and economic consequences” for the branded individuals and groups triggered procedural due process obligations.42 Second, in Wisconsin v. Constantineau ,43 the Court held that state officials must comply with the requirements of procedural due process before they take action to publicly label an individual as an excessive drinker by displaying in all liquor stores of a given community a public notice that sales or gifts of liquor to the named individual are forbidden for one year. The Court found that, while posting "under the Wisconsin act may to some be merely the mark of illness, to others it is a stigma, an official branding of a person” in a degrading way. "Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.” 44 However, action which labels an individual only implicitly does not violate any personal interest entitled to due process protection. Thus in Board of Regents v. Roth , the Court held that the unexplained 40. Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). See also Board of Regents v. Roth, 408 U.S. 564, 573 (1972). 41. 395 U.S. 411 (1969). See also Joint Anti-Fascist Refugee Committee v. Mc¬ Grath, 341 U.S. 123, 161 (1951) (Frankfurt¬ er, J., concurring) (government action pub¬ licly labeling groups as Communist without prior notice or opportunity to par¬ ticipate "is so devoid of fundamental fair¬ ness as to offend the Due Process Clause of the Fifth Amendment”), discussed in § 108, supra. But see Hannah v. Larche, 363 U.S. 420 (1960) (U.S. Commission on Civil Rights is not subject to due process obliga¬

tions in finding facts pertaining to voting discrimination because invidious conse¬ quences such as loss of jobs, subjection to public scorn and the chance of criminal prosecution would be collateral rather than direct). 42. 395 U.S. at 424. 43. 400 U.S. 433 (1971). 44. Id. at 437. The Court reached this procedural conclusion despite its recogni¬ tion of sweeping state authority to impose substantive controls in the liquor field. Cf. California v. LaRue, 409 U.S. 109 (1972).

692

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Ch. 10

decision of a state university not to renew the contract of an untenured assistant professor did no constitutionally significant damage to the reputation of the dismissed employee: "[I]t stretches the concept too far to suggest that a person is deprived of liberty when he simply is not rehired in one job but remains as free as before to seek another.” 45 But the Court noted that, had the state invoked ''any regulations to bar the respondent from all other public employment in state universities . . . this . . . would be a different case”. 46 Roth indicates that the Court is operating on the theory that, although an individual may acquire a property interest in government employment if a statute or government-induced understandings confer such an entitlement, an individual cannot be said to possess any "liberty” to choose a specific public post which government, under the applicable substantive law, may

offer or withdraw

without explanation.47

In some respects, the Court has also broadened

the core of protect¬

ed liberty interests by extending the "residuum of liberty” which an inmate retains upon lawful incarceration. In Vitek v. Jones,48 for example, the Court held that a prisoner’s transfer to a mental hospital automatically implicated due process, since "commitment to a mental hospital is not within the range of conditions of confinement to which a prison sentence subjects an individual.” 49 The prisoner’s retained liberty inhered in his right not to be further stigmatized and his right to be free from unjustified intrusions on personal security — intrusions implicated by compelled behavior modification programs at the mental institution.50 In addition to occasionally enlarging the liberty interest in reputa¬ tion and in freedom from certain kinds of incarceration the Court also appears to have built a kind of "privacy” or "repose” interest onto the core "property” interest in possession by enabling people to be secure, in their houses and personal effects, against seizures by the state (or with the state’s approval) without warning and a chance to resist advance— even in cases where the deprivation was temporary and least theoretically reversible, or where the individuals deprived possession by the enforcement power of government lacked full title 45. 408 U.S. 564, 575 (1972). Cf. Cafete¬ ria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961) (holding that the unexplained revocation of security clear¬ ances did no constitutionally cognizable damage to the reputation of a short-order cook privately employed on the premises of a naval installation, even though the cook lost her job at the installation as a conse¬ quence of the revocation, since her employ¬ ment opportunities elsewhere were not shown to have been impeded). 46. 408 U.S. at 573-54. See also Joint Anti-Fascist Refugee Committee v. Mc¬ Grath, 341 U.S. 123, 185 (1951) (Jackson, J., concurring) ("to be deprived not only of present government employment but of fu¬ ture opportunity for it certainly is no small injury”).

in at of to

47. But compare the protected "liberty” interest in at least being considered for government employment. Hampton v. Mow Sun Wong, 426 U.S. 88 (1976). See § 15-13, infra. 48. 445 U.S. 480 (1980). 49. 445 U.S. at 493. 50. See also Hughes v. Rowe, 449 U.S. 5 (1980) (disciplinary segregation of an in¬ mate without a prior hearing may violate due process absent emergency conditions). But see Hewitt v. Helms, 459 U.S. at 46869 (holding that administrative segregation alone does not require due process and noting that Hughes was "essentially a pleading case” not reaching the merits).

.

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693

§ 10-9 the goods.51 In Sniadach v. Family Finance Corp.,52 the Supreme Court held that, absent a provision for a prior adversary hearing, a state could not permit the institution by civil plaintiffs by prejudgment wage garnishment actions against the employers of prospective defendants in order to halt payment to defendant-employees of a substantial portion of their wages pending the outcome of litigation. In deciding that a recovery provision allowing the defendant to post security so as to regain the property was insufficient to protect defendant’s constitution¬ al interest, Justice Harlan noted that "[t]he 'property’ of which petition¬ er has been deprived is the use of the garnished portion of her wages during the interim period between the garnishment and the culmina¬ tion of the main suit.” 53 In Fuentes v. Shevin, the Court faced a considerably more difficult issue since the civil plaintiff seeking prejudgment replevin of household goods unquestionably had a property interest in these goods, sold to the debtor under a conditional sales contract which the debtor had not yet paid in full. In holding that the "possessory interest in the goods clearly bought and protected by contract was sufficient to invoke the protection of the due process clause” 54 notwithstanding a pre-existing state law allowing for ex parte prejudgment replevin, the Court rea¬ soned that "the Fourteenth Amendment’s protection of 'property’ . . . has never been interpreted to safeguard only the rights of undisputed ownership.” 55 Justice Stewart’s majority opinion reasoned that "even assuming that the [debtors] had fallen behind in their installment payments and that they had no other valid defenses . . . [t]he right to be heard does not depend upon an advance showing that one will surely prevail at the hearing.” 56 In an analysis similar to that undertaken in Perry v. Sindermann , the Court noted that, since the state has recog¬ nized an interest in property by virtue of statutory or common law or mutual understandings, the process due for deprivation of the property interest must have its roots in substantive constitutional doctrine and is not derived either from the will of the parties 57 or from provisions of 51. In other contexts the Court has also expanded this "peaceful enjoyment” addi¬ tion to the property "core” to encompass the interest on a sum of money deposited with the court. Webb’s Fabulous Pharma¬ cies, Inc. v. Beckwith, 449 U.S. 155 (1980) (interest could not be defined as public

due process may apparently turn upon the potential merits of the case.

th

po

of wa of du pr ss oc iv e i es a etro th ri bybi th pa co s l¬ li e gh rt nt e t t i r t s it f y th e in Fu "at la property by state for purpose of "takings” n¬ guhou of thoun pu ats waen pr chte, clause), discussed in § 9-7, supra. ov e d rp ag gh ivte is ercs 52. 395 U.S. 337 (1969). di eno wa th oarpt i o d t e p n eedl ri to ivae pr he st of osnos g m e l a i 53. Id. at 342 (Harlan, J., concurring). ki ht Id at 9s6ei Thant Co rin altut ra e . .zu a e ’s wur g so iown ise se nd. qu reb aail d ht 54. 407 U.S. 67, 86-87 (1972). ri ” es wo ou be fto wh out th ethpa wveer iuo r re e e ul s e 55. Id. at 86. t ra i re p un d in bannds th e n o s e rg d/ eq we 56. Id. at 87. At least one case casts "b ua wa baoin pa of r a pr or co T nC¬ rpt thi tr arg l an a nse of th intsa n f. e this principle. a doubt on the universality hof a g e r l e d ce ctHai O t Co e d D C v F C 4 U . s o. . . n” ve .S 05 In Codd v. Velger, 429 U.S. 624 ur (1977), the sa o. . ri , . ck r t r 1 1 ( ( t e o t y Court held that no hearing wasno required f wo 74 ha ho 85 m1y9 ac ne e7r2 b lad co , bty co h ha divn ) ot upon termination of an untenured temploy¬ un rp d he i h g se [ or a " se le m k a vo nd l, int nod ad ati srs ee where he does not challenge the "sub¬ ec l el w e o g w o i r t p u stantial truth” of statements impugning nsai li f ts ig in o re en og n n a a h t ¬ ht g his reputation. Hence, the existence ofni ott] n,d ve ju aera ze ic ” r yr,i dg ng e d me ). nt e

694

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positive law enacted in advance by the legislature.58 It is up to the Court, rather than the state, to determine the balance between the competing property interests of creditors and debtors in terms of the process due to resolve the controversy between them.59 In striking that balance, the Fuentes Court concluded that a state may "seize goods before a final judgment in order to protect the security interests of creditors [only] so long as those creditors have tested their claim to the goods through the process of a fair prior hearing.” 60

§ 10-10. The Narrowing of Protected Interests: Formalizing Entitlement Concept

the

Since the latter half of the decade of the 1970’s, the Supreme Court’s treatment of the entitlement concept has indicated a considera¬ ble narrowing of the liberty and property interests protected by proce¬ dural due process. In Meachum v. Fano , for example, the Court held that the does not a prison prisoner,

interest in "liberty” contemplated by the due process clause entitle "a state prisoner to a hearing when he is transferred to the conditions of which are substantially less favorable to the absent a state law or practice conditioning such transfers on

proof of serious misconduct or other events.” 1 In expressly rejecting "the notion that any grievous loss visited upon a person by the state is sufficient to invoke the procedural protections of the due process clause,” the Court was wary of subjecting "to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrations

aun

sta (pr 213 (18 (12 Whe te e-e 27) at. xis ) la go i c ba r n e t t w dis verns in §d§ito9-8 ing9-9 eressu¬ in nkcroun r p trWtac ,t t to ’as,r it ciusss pos pr hat hciyt) g a. ed si u l , e e b one s s Og ove Fue d le ub ilent r n Og io, fro mi tes se rutloe dis en e g d d m t r stna onk the gro ingutha the e Fue ht te ule nte und isht in” to all sub " tha swa s co read wa seqdes in Og entt ntr s ue ig de ere n a deb ntlnebdut con to casts not sidm sist tor ytra ply isn the the pub ct int als to ser o lic ing ere ve wh res st of sca all ord en rce oca erl our tfiuo caels of th m c the dyeb a e l e nds nno taor as twel eats the pub the cla g s a ’ l l i i m, sta ic a fre peo innstgiv int ms rt. ere sh ing ple s t pro rep in” a su "R ea mm ¬ oss d a i o " j h o t o vis e r n u h n u t h a s st t seilp o tt” herb rynd, selion, gor lene y eli he ons f he ler der m e v s neg of act ing coss an bu d rd t oti u wiatt or of proally su en pro c v hionug cee isi the h t din ons m. g This distinction seems untenable, howev¬ er; the statutes in Fuentes could also be justified on the basis of the public interest in making credit more available or less expensive for poor buyers. Moreover, if der

s,

25

property "rights” mean anything special, they connote the idea that, although gov¬ ernment infringements can be justified to U.Sprotect conflicting "rights,” they cannot be . defended in the name of anything as nebu¬

rather than of federal courts.” 2 lous as "public interest.” Hence Fuentes must have its basis in the doctrine (1) that the process due for relinquishment of "property” is determined by constitutional standards which place great weight on the rights to peaceful private possession and uninterrupted enjoyment, and (2) that any contract disregarding these rights is at least constitutionally unenforceable by the state and perhaps void altogether. 59. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (rejecting the "bitter with the sweet” approach), dis¬ cussed in § 10-12, infra. 60. 407 U.S. at 96.

1. 427 U.S. 215, 216 (1976). See Com¬ ment, "Two Views §of10a-1Prisoner’s Right to 0 Due Process: Meachum v. Fano,” 12 Harv. Civ.Rts. — Civ.Lib.L.Rev. 405 (1977). In Olim v. Wakinekona, 461 U.S. 238, 244-248 (1983), the Court extended Meachum to hold that no process is due when an inmate is transferee! to another state’s prison, "even when . . . the transfer involves long distance and an ocean crossing” (Ha¬ waii to California), effectively separating the inmate from his family and friends. 2. 427 U.S. at 224-25. Van

See also Jago v.

Curen, 454 U.S. 14, 19 (1981) ("We

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Justice White’s majority opinion concluded that "[w]hatever expecta¬ tion the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all.” 3 Similarly, in Hewitt v. Helms, 4 the Court refused to find that prisoners have a procedurally protected liberty interest not to be placed in solitary confinement 5 inhering in the due process clause itself. Stating that "[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorites judicial oversight,” 6 the Court held that "the transfer of an inmate less amenable and more restrictive quarters for non punitive reasons well within the terms of confinement ordinarily contemplated by prison A source Bishop

to to is a

sentence.” 7 corresponding reluctance to look beyond positive state law as a of rights protected by due process guarantees was evident in v. Wood , where a three and a half year veteran of the police

force, classified as a "permanent employee” by a city ordinance which also provided that he could be dismissed if certain grounds were present, was fired for failure to discharge his duties properly, "without affording him a hearing to determine the sufficiency of the cause for his discharge.” 8 Justice Stevens, writing for reasoned that "the sufficiency of the claim decided by reference to state law,” 9 which in Still v. Lance,™ where the North Carolina would severely restrict the necessary flexi¬ bility of prison administrators and parole authorities were we to hold that any one of their myriad decisions with respect to indi¬ vidual inmates may . . . give rise to pro¬ tected 'liberty’ interests . . .”). 3. 427 U.S. at 228. Only a completely instrumental approach to procedural due process, see § 10-7, supra, can suggest that a hearing is pointless whenever discretion¬ ary power is being exercised; in such a case, the hearing obviously cannot focus on the presence or absence of previously speci¬ fied facts, but it can certainly address the question of how the challenged power ought to be exercised in the circumstances. 4. 459 U.S. 460 (1983). 5. See 459 U.S. at 479 (Stevens, J., dis¬ senting). While the confinement was offi¬ cially labelled "administrative segrega¬ tion,” the majority’s opinion demonstrates that "solitary confinement” is an appropri¬ ate description of the conditions in which the prisoner was placed: the segregation denied the prisoner "access to vocational, educational, recreational, and rehabilita¬ tive programs,” restricted his exercise, and confined him to his cell for lengthy periods of time. 459 U.S. at 463 n. 1, 467 n. 4.

a closely divided Court, of entitlement must be, this case was governed by Supreme Court had held

6. Id. at 468, quoting Montanye v. Haymes, 427 U.S. 236, 242 (1976). Vitek v. Jones, 445 U.S. 480 (1980), discussed in § 10-9, represents one of the rare in¬ stances where the Court has found a change in a prisoner’s status (transfer to a mental hospital) "not within the range of conditions of confinement to which a pris¬ on 493.sentence subjects an individual.” Id. at 7. Id. Although

the Court had previ¬

ously stated that "[segregation of a prison¬ er without a prior hearing may violate due process,” Hughes v. Rowe, 449 U.S. 5, 11 (1980), as Chief Justice (then Justice) Rehnquist noted in Hewitt, the Hughes opinion explicitly refused to "express any view on [the] merits.” Hewitt, 459 U.S. at 469 n. 5; Hughes, 449 U.S. at 12. 8. 426 U.S. 341, 344, 342 (1976). The Court’s treatment of the policeman’s claim of infringement of a "liberty” interest in reputation is discussed in § 10-11, infra. 9. 426 U.S. at 344.

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"that an enforceable expectation of continued employment in that state can exist only if the employer by statute or contract has actually granted some form of guarantee.” 11 Since finding in Bishop that the policeman "held of the city” 12 was a plausible interpretation Still v. Lance , the Court concluded that

the federal district court’s his position at the pleasure of the ordinance in light of the finding foreclosed its

independent examination of the state law issue 13 "even if an examina¬ tion of [that] issue without such guidance might have justified a different conclusion.” 14 This exclusively positivist analysis of entitlements undertaken in Meachum, Helms and Bishop presents a profoundly novel vision of procedural due process. The Court in Meachum , for example, was able successfully to distinguish the earlier decision in Wolff v. McDonnell ,15 where the state had "not only provided a statutory right to good time credit but also specified that it is to be forfeited only for serious misbehavior”, 16 on the ground that the Massachusetts statute in Meachum had not conferred on prisoners the "right” to be confined in any particular prison. But when the Court, without any detailed examination of "mutually explicit understandings,” 17 characterized as "too ephemeral” prisoners’ claims of a justifiable expectation of remain¬ ing at a more favorable prison if good behavior was maintained, it marked an important break from prior decisions. Thus, in Morrissey v. Brewer , the Court had found an "implicit promise” that an individual would not have his parole revoked in the absence of the violation of any of its provisions, notwithstanding a decision by the Iowa Supreme Court interpreting the state parole statutes to leave all parole-related issues completely within the discretion of the parole board.18 By failing to conduct "an analysis of the common practices utilized and the expecta¬ tions generated by [the city], and the manner in which the local ordinance would reasonably be read” 19 by members of the police force, the Court in Bishop also significantly retreated from its position in 11. 426 U.S. at 344. But see id. at 36162 (Blackmun, J., dissenting) (suggesting that the statute construed in Still v. Lance, unlike the one in Bishop, had no "for cause” requirement and was therefore dis¬ tinguishable). 12. Bishop v. Wood, 377 F.Supp. 501, 504 (W.D.N.C.1973). But see 426 U.S. at 356 (White, J., dissenting) ("The majority purports ... to read the District Court’s opinion as construing the ordinance not to condition dismissal on cause, and, if this is what the majority means, its reading . . .

14. Id. at 346. 15. 418 U.S. 539 (1974), discussed in § 10-9, supra. 16. Meachum (1976).

v. Fano, 427 U.S. 215, 226

17. The Court has since completely re¬ jected the notion that "mutually explicit understandings” can form the basis of a liberty interest; since the principle is de¬ rived from contract law, it is only "useful” in determining property interests. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981) (no

is clearly erroneous.”) For a discussion of Justice White’s claim that the majority in Bishop was in fact adopting Justice Rehn-

liberty interest impaired in board’s recission of parole after prisoner was notified that he would be released).

quist’s "bitter with the sweet” position in Arnett v. Kennedy, 416 U.S. 134, 154 (1974), which supposes that the State may qualify procedurally an entitlement it has accorded, see § 10-12, infra.

18. 408 U.S. 471, 482 (1972). See Curtis v. Bennett, 256 Iowa 1164, 131 N.W.2d 1 (1964), cert, denied 380 U.S. 958 (1965).

13. 426 U.S. at 347.

19. 426 U.S. at 354 (Brennan, J., dis¬ senting).

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Perry u. Sindermann,20 where its finding that a professor arguably had a property interest in his job was based on "an unwritten common law.” 21 The practical impact of the Court’s adoption of a positivist approach to the definition of "property” in Bishop v. Wood is that a public employee can count on procedural due process protection only if the law or contract defining the employee’s job expressly provides that the employee can be discharged only for cause. In its desire to leave "ultimate control of state states,” 22 Bishop's approach rights-privileges distinction, safeguards . . . merely by

personnel relationships . . . with the involves "a resurrection of the discredited for a state may now avoid all due process labeling them as not constituting proper¬

ty.” 23 The Court’s retreat from its Morrissey and Perry rationales did not end with Bishop and Meachum. In Greenholtz v. Inmates of Nebraska Penal and Cor. Complex 24 the Court refused to find that due process applied to initial parole decisions apart from the specific statutory language establishing the parole system. Realizing the need to distin¬ guish Morrissey , the Court pointed out that the parolees in Morrissey were already at liberty, while the inmates in Greenholtz were still confined. Since "there is a . . . difference between losing what one has and not getting what one wants,” when "the state holds out the possibility of parole [it] provides no more than a mere hope that the benefit will be obtained.” 25 In Connecticut Board of Pardons v. Dumschaty26 the Court further withdrew actual expectations from its formal¬ ized calculus of state-created interests. Dumschat applied for commu¬ tation of his life sentence and was repeatedly rejected without explanation. The Court rejected the Second Circuit’s contention that despite the absence of a statutorily created interest (since the review board was given "unfettered discretion”), Dumschat acquired a protect¬ ed interest from the fact that over 75% of the life inmates’ sentences were commuted. Finding that Dumschat’s expectation was "simply a unilateral hope,” the Supreme Court ruled that "[n]o matter how frequently a particular form of clemency has been granted, the statisti¬ cal probabilities standing alone generate no constitutional protec¬ tions. . . . The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency.” 27 Finally, Jago v. Van Curen’s extraction of the "mutually explicit understandings” doctrine from liberty interest determinations 28 suggests that even the most reasona¬ ble expectations are not enough to implicate due process.29 This view 20. 408 U.S. 593 (1972), discussed in § 10-9, supra. 21. Id. at 602. 22. 426 U.S. at 350 n. 14. 23. Id. at 354 n. 4 (Brennan, J., dissent¬ ing). 24. 442 U.S. 1 (1979). 25. See Id. at 9-11. But see the discus¬ sion of Greenholtz in § 10-9, supra. 26. 452 U.S. 458 (1981).

27. Id. at 465. 28. See note 17, supra. 29. See also Leis v. Flynt, 439 U.S. 438, 443 (1979) (denying that out-of-state coun¬ sel had either a property or liberty interest in representing an out-of-state defendent, the Court stated, "Even if . . . respon¬ dents . . . had 'reasonable expectations of professional service,’ [cite omitted] they have not shown the requisite mutual un¬ derstanding that they would be permitted

698

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(beginning with Bishop and Meachum and continuing through Jago ) that mere expectations, however reasonable and however demonstrably induced by government, do not amount to interests protected by due process unless they are grounded in explicit rules of state law, is founded on the same notion as the rights-privileges distinction — name¬ ly, that what a state may decline to provide at all, it can grant on any terms it chooses. That proposition, in Justice Stevens’ words, "de¬ means the concept of liberty itself.” 30 Although the Court has maintained that it intends to adhere to the notion of statutory entitlements, it has insisted on an increasingly narrow formula for defining the circumstances in which the interest is to be maintained. Indeed, the Court has drifted closer to the flipside of the "bittersweet” doctrine31 by holding that statutes create protected interests only if they contain "specific substantive predicates” and "explicitly mandatory language;” the existence of a "careful procedural structure” is not enough.32 Hence, if a statute gives an official "unfet¬ tered discretion,” it creates no protected interest, even if the exercise of that discretion is channelled through required procedural mecha¬ nisms.33 This narrowly formalistic approach, relying on verbal distinc¬ tions having no relation to reasonable expectations or to public under¬ standings, seems far too obscure to serve the purposes of protecting reliance on government,

reducing helplessness, or enhancing accounta¬

bility.34 If the Court were to focus on real expectations and the role a government job actually plays in someone’s life, then it would have to move well beyond the positivist framework it first adopted in Bishop. Yet the dissent in Bishop , unlike that in Meachum, does not offer a practical alternative. In the Meachum dissent, Justice Stevens (who authored the Bishop majority) suggests that the interest in liberty to represent their clients ...

in the Ohio

courts.”) (emphasis in original). 30. Meachum, 427 U.S. at 233 (Stevens, J., dissenting). This failure seriously to consider the existence of justifiable expec¬ tations also created a significant internal

tersweet,” that mere procedural protec¬ tions also cannot expand the substance to create a protected interest. 32. Hewitt v. Helms, 459 U.S. 460, 470472 (1983). See also Olim v. Wakinekona, 461 U.S. 238, 250 (1983) (prison regulations

inconsistency in Justice White’s opinion, since he had earlier indicated a willingness to look for a liberty interest either in

requiring a particular kind of hearing be¬ fore transferring an inmate to another

’'state law or practice.” Id. at 216 (empha¬ sis added).

state’s prison did not create a liberty inter¬ est where regulations provided "no sub¬ stantive limitations on official discretion”).

31. The "bittersweet” doctrine, intro¬ duced by the plurality in Arnett v. Ken¬ nedy, 416 U.S. 134, 152-54 (1974), would hold that since statutorily-created rights are partially defined by the procedures which accompany them, one asserting the right must "take the bitter with the sweet” and is thereby limited to the procedures which the statute provides. In its explicit rejection of this theory, the Court found itself forced to take the dubious position

33. See id. 34. See generally Rabin, "Job Security and Due Process: Monitoring Administra¬ tive Discretion Through a Reasons Re¬ quirement,” 44 U.Chi.L.Rev. 60 (1976). See also A. Camus, "State of Siege,” in Caligula and 3 Other Plays 165 (1958):

that "substance and procedure are dis¬ tinct.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). Such

"[A]ll this rigamarole . . . [is] intended to get them used to that touch of obscurity which gives all government regulations their peculiar charm and efficacy. The less these people understand, the better

a stance implies the "flipside” of the "bit¬

they’ll behave.

You get my

point?”

§ 10-10

protected "all men state has the other

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699

by due process is a "cardinal inalienable right” with which are endowed by their creator” 35 and not "an interest that the created through its own prison regulations.” 36 In Bishop , on hand, the dissenters attempt to find a statutory entitlement

to a job as a policeman.37 But there is a degree of circularity to their argument that there may have been "reasonable expectations” in Bishop that justified a finding of a property interest: it is questionable whether a person can truly be said to "justifiably rely” on continued employment where the person’s contract or statute expressly indicates either that the employment can be terminated without cause, or that cause is theoretically required but no hearing is to be allowed. This circle can be broken only by an assertion of substantive values or norms in the name of the Constitution — norms as to what an employee, for example, is entitled to expect whatever the contract or statute may say. Indeed, breaking the circle would require an acceptance of the proposi¬ tion that due process is not merely a means to the end of implementing the state’s own substantive rules and allocations but either a means to some very different and larger purpose, or — as in the intrinsic approach to procedural safeguards — an end in itself. The view announced

in the procedural due process cases of the

early 1970’s, that protection would be given to individual interests when government had invited dependence on certain benefits and reliance on some method of their distribution,38 must be premised on just such a substantive theory of a constitutional right to a hearing whenever important personal interests are affected by government action. The case for such a hearing could be grounded either in intrinsic or in instrumental considerations. But if the latter are relied upon, the end to which due process must be a means

is not that of

carrying out the state’s own positive choices, but rather that of assuring fairness and participation in the meeting of basic human needs. Bishop, Meachum and their progeny do not necessarily presage a general retrenchment by the Court in the scope of entitlements or a complete rejection by the Court of substantive theories of why and when "process” should be due. The Court in Meachum and Helms seems to have confined its newly limited application of the entitlement concept to prisoners for whom "the conviction has sufficiently extin¬ guished the . . . liberty interest to empower the State to confine [them] in any of its prisons” 39 or anywhere within its prisons. 40 In¬ deed, Vitek v. Jones 41 indicates that the Court is still willing to find 35. 427 U.S. at 230 (Stevens, J., dissent¬ ing).

37. See 426 U.S. at 353, 355, 361 (Bren¬ nan, White, Blackmun, JJ., dissenting).

36. Id. at 233 (Stevens, J., dissenting). That is only partly correct; as we have seen in § 10-9, supra, liberty interests can be of either sort. However, Justice Ste¬ vens would probably assert that the State

38. See The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 95 (1976).

never actually "created” those liberties ei¬ ther, it simply reduced the scope of its earlier constitutional restriction of the "re¬ siduum of liberty”. See Hewitt v. Helms, 459 U.S. at 484, 486 n. 12 (1983) (Stevens, J., dissenting); § 10-9, note 19, supra.

39. 427 U.S. at 224 (emphasis in origi¬ nal). 40. Hewitt v. Helms, 459 U.S. 460, 468 (1983). 41. 445 U.S. 480 (1980), discussed in § 10-9, supra.

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liberty interests inhering in the due process clause itself where

the

further deprivation of liberty "is not within the range of conditions of confinement to which a prison sentence subjects an individual.” 42 Nevertheless, the Court’s treatment of prison cases in and since Meachum remains hard to reconcile fully with the view that "even the inmate retains an inalienable interest in liberty — at the very minimum the right to be treated with dignity.” 43 Moreover, perhaps paradoxical¬ ly in a case involving institutions once acknowledged to have the task of reforming and rehabilitating antisocial behavior, the Court ignored one of the most important aims of procedural due process — the promo¬ tion of individual participation and dialogue in decisions affecting a person’s relationship with government. Similarly, Bishop’s treatment of state law as determinative in establishing the policeman’s lack of entitlement to his job may be applicable only where interests are conferred by government choice rather than stemming from "core” values, and where they are provided to meet the government’s own needs, rather than those of the recipient. In Goss v. Lopez, for example, the Court held that high school students were denied due process when "they were temporarily sus¬ pended from their high schools without a hearing either prior to suspension or within a reasonable time thereafter.” 44 Writing for the Court, Justice White observed that "[h]ere, on the basis of state law, appellees plainly had legitimate claims of entitlement to a public education,” 45 notwithstanding a provision in the entitlement-conferring statute which apparently allowed student suspensions of up to ten days without a hearing; that observation, and the Court’s holding, represent¬ ed a marked contrast with its other narrowly formalistic decisions. For the Goss Court declined to find that the statutory grant of a substantive right to education was qualified by the statute’s specifically envisioned possibility of short summary suspensions; in doing so, the majority rejected Justice Powell’s fear that the Court was opening "avenues for judicial intervention in the operation of our public schools that may affect adversely the quality of education.” 46 The Court, furthermore, dismissed the contention that the infringement of the entitlement to education was "too speculative, transitory, and insubstantial to justify imposition of a constitutional rule” 47; for the majority, it sufficed that the "deprivation is not de minimis .” 48 Focusing, in a rare departure from the instrumental mainstream, on the intrinsic quality of due process in offering an opportunity for "at least an informal give-andtake between student and disciplinarian,” 49 the Court concluded that "[h]aving chosen to extend the right to education to [students] general42. Id. at 493.

44. 419 U.S. 565, 567 (1975). 45. Id. at 573. 46. Id. at 585 (Powell, J., dissenting). 47. Id. at 586 (Powell, J., dissenting) (emphasis in original). 48. Id. at 576.

e¬ e omr ¬ r¬ 8) 97 or fr na¬ suimnte (1 "m liot s ip n a 90 sc die do sen ty , l r 78 er saev tu op na an mis pr s th is S. U. on , rd toirng ei turi 5 th a i t 43 "e h s y iinveic rt by atem a be , luad of li trze va c wia e a al ro rmon d Ho ed faoti ey n a ct v. th uc s, te edion ny pro s a ci ve a rs dsee ti to au ec her re . g i tg) ra ec bj Cu (b su ry hi qu iens

43. 427 U.S. at 233 (Stevens, J., dissent¬ ing).

t

.a

Id

§ 10-11

MODEL

OF GOVERNMENTAL

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701

ly, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether misconduct has occurred.” 60 Moreover, to the extent that the Meachum and Bishop line of cases may be explained by concerns for preserving federalism and reducing remote intervention in state and local affairs, they do not point to a restrained view of entitlements based on reliance induced by the federal government. Thus, in Mathews v. Eldridge ,51 again dealing with gov¬ ernment creation of interests for the benefit of the citizens receiving them and not for the benefit of those they are asked to serve, the Court declined to take advantage of the opportunity to overrule or even cast a shadow across Goldberg v. Kelly .52 Although holding that the termina¬ tion of federal disability benefit payments without a prior evidentiary hearing does not violate due process, the Court in Eldridge recognized that "it has been implicit in our prior decisions . . . that the interest of an individual in continued receipt of [Social Security disability benefit payments] is a statutorily created property interest protected by the Fifth Amendment.” 53

§ 10-11. Narrowing Turns to Erosion: Uses of the Entitlement Concept to Cut Back the Core The notion of entitlements protected by due process but stemming from independent sources " such as state law” 1 was originally intro¬ duced to provide added protection to the reasonable expectations of individuals in their relations with government over and above the rights secured by the "core” concepts of liberty and property grounded in the Constitution and in common law. In Paul u. Davis,2 this new concept of entitlements seems to have been turned, for the first time, in precisely the opposite direction.3 Writing for a majority,4 Justice Rehnquist held that no interests protected by due process were impli¬ cated when the police put an individual’s name on a flyer distributed to local merchants describing him as a "known” active shoplifter despite his lack of any convictions for such a crime, even though the characteri¬ zation "would seriously impair his future employment opportunities.” 5 The Court first found that past cases "do not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either 'liberty’ or 'property’ by itself sufficient to invoke the procedural protection of the due process clause.” 6 Second, the Court looked to state law to determine whether a statutory entitlement existed, but held that "Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been 50. Id. at 574. 51. 424 U.S. 319 (1976). 52. 397 U.S. 254 (1970), discussed in § 10-9, supra. 53. 424 U.S. at 334. § 10-11 1. Perry v. Sindermann, 408 U.S. 593, 601 (1972) (emphasis added).

2. 424 U.S. 693 (1976).

3. Compare generally cussed in § 10-9, supra.

the cases dis¬

4. Joining the majority opinion were Chief Justice Burger and Justices Stewart, Powell, and Blackmun. Joining Justice Brennan’s dissent were Justices White and Marshall. Justice Stevens did not take 5. 424 U.S. at 697. part. 6. Id. at 701.

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altered as a result of the actions of the police, notwithstanding

the

protection against injury by virtue of [the state’s] tort law.” 7 In thus denying relief to a person whose reputation was seriously damaged by a state officer’s action, the Court appears to have held that what previously had been recognized as a "core” interest in reputation 8 would now be cognizable only when damage to reputation was alleged to accompany government’s denial of some more tangible interest such as a specific job.9 Contrary to Justice Rehnquist’s contention, this requirement of "reputation-plus” 10 was a considerable departure from past precedents concerning the core interest in reputation. Justice Rehnquist, for example, interpreted Wisconsin v. Constantineau’s 11 recognition of a liberty interest in not having one’s name posted in liquor stores as a chronic drinker, as having been based on the fact that the posting "significantly altered his status as a matter of state law, and it was that alteration of legal status which, combined with the injury resulting from the defamation justified the invocation of proce¬ dural safeguards.” 12 On this view, due process was accorded in order to protect the state-conferred right to buy liquor which the posting might hinder. But the Court in Constantineau rested its holding only on the fact that "a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.” 13 And both Board of Regents v. Roth,14 and Goss v. Lopez 15 reiterated this formulation of the "core” interest in reputation. Similarly, Justice Rehnquist attempted to distinguish the holding of Jenkins v. McKeithen ,16 that a Commission which undertakes a directly accusatory function of publicly labeling individuals or groups as violators of the criminal laws must first grant due process protections, on the grounds that the police in Paul "are not by any conceivable stretch of the imagination, either separately or together, 'an agency whose sole or predominant function, without serving any other public interest, is to expose and publicize the names of persons it finds guilty of wrongdo¬ ing.’ ” 17 But this verbal distinction does nothing to grapple with Jenkins' real aim of protecting "a person’s interest in his good name and reputation,” and, as Justice Brennan put it: 18 "The logical and disturbing corollary of this holding is that no due process infirmities would inhere in a statute constituting a commission to conduct ex parte trials of individuals so long as the only official judgment pronounced was limited to the public condemnation and branding of a person as a Communist, a traitor, an 'active murderer,’ a homosexual, or any other mark that 'merely’ carries special opprobrium. The potential of today’s decision is frightening to a free people.” 7. Id. at 711-12.

13. 400 U.S. at 437.

8. See § 10-9, supra.

14. 408 U.S. 564, 573 (1972).

9. 424 U.S. at 701.

15. 419 U.S. 565, 574 (1975).

10. Id. See also The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 88 (1976). 11. 400 U.S. 433 (1971), discussed in § 10-9, supra. 12. 424 U.S. at 708-09.

16. 395 U.S. 411 (1969). 17. 424 U.S. at 706 n. 4, quoting from Jenkins, 395 U.S. at 438. 18. 424 U.S. at 721 (Brennan, J., dis¬ senting).

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That the refusal to find a "liberty” interest in reputation where there was no statutory entitlement to it and no accompanying loss of a state-conferred status is more than an "aberration” 19 was made clear when it was reiterated in Meachum v. Fano ,20 in spite of Justice Stevens’ pronouncement that "all men [are] endowed by their Creator with liberty as one of the cardinal unalienable rights” and that "the Due Process Clause protects” those rights rather "than the particular rights or privileges conferred by special laws or regulations.” 21 As disturbing as Paul's iconoclastic handling of precedent 22 was its refusal to give much weight to the practical impact of the "posting” on Davis.23 To satisfy the "reputation plus tangible interest” threshold for due process protection, it was not enough that the injury to reputation affect his chances of employment and his other dealings in the private sector,24 since the interest in such dealings was not created by statute.25 A similarly limited concern with the consequences of state action damaging to reputation was present in Bishop v. Wood , where the Court found that even assuming that a policeman’s "discharge was a mistake and based on incorrect information,” there is no incursion on a protected liberty interest "when there is no public disclosure of the reasons for the discharge.” 26 This conclusion totally ignored the fact that the policeman is engaged "in a profession in which prospective employees are invariably investigated, [and his] job prospects will be severely constricted by the government action.” 27 A parallel indifference to the right of individuals dependent

on

government opportunities to participate in matters affecting their rela¬ tionships with government was demonstrated in Codd v. Velger ,28 where the Court rejected a fired policeman’s claim of a "liberty” interest in a hearing prior to the placement of stigmatizing material by the Police Department in his personnel file, which he asserted was the cause of his dismissal as a policeman and his inability to find other related employment. The Court noted that the policeman had made no claim 19. Id. at 734. 20. 427 U.S. 215, 224 (1976), discussed in § 10-10, supra. See also Leis v. Flynt, 439 U.S. 438, 443 (1979). 21. 427 U.S. at 230 (Stevens, J., dissent¬ ing). 22. See generally Shapiro, "Mr. Justice Rehnquist: A Preliminary View," 90 Harv. L.Rev. 293, 324-28 (1977). 23. See generally The Supreme Court, 1975 Term, supra note 10 at 100-101. 24. See 424 U.S. at 697. 25. The

extreme

insensitivity of this view prompted Justice Brennan to com¬ ment: "It is inexplicable how the Court can say that a person’s status is 'altered’ when the State suspends him from school, revokes his driver’s license, fires him from a job, or denies him the right to purchase a drink of alcohol, but is in no way 'altered’ when it officially pins upon him the brand of a criminal, particularly since the Court

recognizes how deleterious will be the con¬ sequences that inevitably flow from its offi¬ cial act." Id. at 734 (Brennan, J., dissent¬ ing). The harshness of Paul may have been somewhat mitigated by the Court’s apparent willingness to overlook the ab¬ sence of clear causation between the initial stigma and the alleged injury. See Owen v. Independence, 445 U.S. 622, 633-34 n. 13 (1980) (although city manager had previ¬ ously told police chief that he would be fired, city counsel’s accusations, coming be¬ fore his actual firing, violated due process, since, "even if they did not in point of fact 'cause’ petitioner’s discharge, the defama¬ tory and stigmatizing charges 'certainly’ occurred] in the course of the termination of employment”). 26. 426 U.S. 341, 348 (1976), discussed in § 10-10, supra. 27. Id. at 350 (Brennan, J., dissenting). 28. 429 U.S. 624 (1977).

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that the government’s characterization of him was false, and since the purpose of the hearing is solely "to provide the person an opportunity to clear his name,” 29 there was no need for a hearing.30 In viewing the sole purpose of due process as ensuring accuracy in government actions, the Court ignored not only the intrinsic purposes of a hearing, but also the liberty interest in avoiding a "stigma or other disability that forecloses employment opportunities” even where the stigmatizing as¬ sertion is true.31 Since "[t]he discharge itself is part of the deprivation of liberty against which the employee is entitled to defend,” the "hearing [should] include consideration of whether the charge, if true, warrants discharge,” in light of the fact that considerable injury is caused by "an official determination, based on such information, that the employee is unfit for public employment.” 32 Paul v. Davis need not, however, portend a significant cutback in all of the "core” interests protected by due process. An alternative and at least somewhat less troublesome explanation may be found in Justice Rehnquist’s concern that the case presented an important "question of the relationship between the National and State Govern¬ ments.” 33 Since that Court could see no difference between "the infliction by state officials of a 'stigma’ to one’s reputation [and] . . . the infliction by the same officials of harm or injury to other interests protected by state law,” 34 it feared that allowing Davis’s suit for relief under § 1983 "would seem almost necessarily to result in every legally cognizable injury which may have been inflicted by a state official acting under 'color of law’ establishing a violation of the Fourteenth Amendment.” 35 Thus the decision may be seen as evidence of a reluctance to federalize tort law in suits against government action.36 Moreover, even if Paul v. Davis significantly narrows the range of individual interests entitled to federal due process protection and as such might be viewed as "overtly hostile to the basic constitutional safeguards of the Due Process Clause,” 37 the Court has maintained other core areas, albeit with somewhat reduced protection. For exam¬ ple, the Court has continued to refuse to allow state legislatures to strike the balance between competing property interests of creditors and debtors where this might unduly infringe on the "core” property interests in possession and privacy. In North Georgia Finishing , Inc. v. 29. Id. at 627, quoting from Board of Regents v. Roth, 408 U.S. 564, 573 n. 12 (1972). 30. Justice Blackmun

emphasized

that

the Court was "not presented with a ques¬ tion as to the limits, if any, on the disclo¬ sure of prejudicial but irrelevant, accurate information,” as there was no suggestion that the information if true was not of a kind appropriately "disclosed to prospec¬ tive employers.” Id. at 629 (Blackmun, J., concurring). 31. Id. at 633 n. 3 (Stevens, J., dissent¬ ing) (truth of the information does not es¬ tablish that it warranted dismissal, a sepa¬ rate matter).

32. Id. at 633 (Stevens, J., dissenting). 33. 424 U.S. at 698. 34. Id. at 699. 35. Id. at 697. 36. This

view

is reinforced

by the

Court’s willingness elsewhere to uphold state deprivations of protected interests against procedural due process attack where post-deprivation tort remedies exist. See Ingraham v. Wright, 430 U.S. 651 (1977), Parratt v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer, 468 U.S. 517 (1984), discussed in § 10-14, infra. 37. 426 U.S. at 351 (Brennan, J., dis¬ senting).

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§ 10-11

Di-Chem,38 the Court invalidated a Georgia prejudgment garnishment statute which provided neither notice nor a hearing in a case involving commercial property. Justice White’s majority opinion cited with approval Fuentes v. Shevin’s 39 holding that the fact "[t]hat the debtor was deprived of only the use and possession of the property, and perhaps only temporarily, did not put the seizure beyond scrutiny under the Due

Process Clause.”40

The Court went on to hold that

procedural due process applies not only to "[c]onsumers who are victims of contracts of adhesion, and who might be irreparably damaged by temporary deprivation of household necessities” but extends to "the commercial setting . . . involving parties of equal bargaining power” even where "the double bond posted . . . gives assurance to the [debtor] that it will be made whole in the event the garnishment turns out to be unjustified.” 41 In noting the need for a probable cause hearing either prior to or immediately following a prejudgment gar¬ nishment, the Court made it clear that Fuentes had not been completely overruled by Mitchell v. W. T. Grant Co.,42 where the Court upheld the Louisiana sequestration statute permitting prejudgment seizure of con¬ sumer goods without prior notice or hearing. To be sure, Fuentes ’ requirement of notice and hearing, prior to prejudgment replevin by the creditor of consumer products which had been purchased on a conditional sales contract, no longer applies with full force. Yet DiChem indicated that the absence of a requirement of a prior hearing in Mitchell may have reflected the presence of other special protections offered by the Louisiana statute: "That a judge upon the filing of an affidavit allegations and clearly setting up the sequestration. The Louisiana law also an immediate hearing after seizure and

writ . . . was issuable only by going beyond mere conclusory facts entitling the creditor to expressly entitled the debtor to to dissolution of the writ absent

proof by the creditor of the grounds on which the writ was issued.” 43 Thus the Court did not adopt a narrowly positivist approach to the determination of property interests protected by due process, rejecting the proposition that such interests could be limited by statutory or contractual attempts to tie procedural conditions to their exercise.44 In addition, the Court continued to recognize the individual’s "core” common law "liberty” interest in freedom to follow a chosen 38. 419 U.S. 601 (1975).

"greatly exaggerated.” 419 U.S. at 608 (Stewart, J., concurring).

39. 407 U.S. 67 (1972). 40. 419

U.S. at 606.

While

Justice

Powell continued ’'to doubt whether [Fuen¬ tes] strikes a proper balance, especially in cases where the creditor’s interest in the property may be as significant or even greater than that of the debtor,” he did not question the notion that it was the respon¬ sibility of the Court, and not of the legisla¬ ture, to find the appropriate balance. Id. at 609 (Powell, J., concurring). 41. Id. at 608. 42. 416 U.S. 600 (1974). Justice Stew¬ art noted that his earlier report in Mitch¬ ell of the demise of Fuentes had been

43. 419 U.S. at 607. In fact, Justice Powell raised the possibility that Mitchell has been relegated to "its narrow factual ring). setting.” Id. at 609 (Powell, J., concur¬

44. See generally Tribe, "Structural Due Process,” 10 Harv.Civ.Rights-Civ.Lib. L.Rev. 269, 279-80 (1975). See also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980) (interest on fund deposited with court could not be defined as public property by state for purposes of "takings” clause), discussed in §§ 10-8, note 23 and 9-7 supra.

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profession.45 Acceptance of such an interest implies that at least some regulations which are substantively constitutional can be validly en¬ forced only in an individualized manner consistent with the dictates of procedural due process. Thus in Gibson v. Berry hill** for example, the Court held that a State Board of Optometry which was composed solely of self-employed optometrists with a pecuniary interest in excluding others from the profession, and which had filed a complaint in state court against other optometrists for alleged misconduct, "was so biased by prejudgment and pecuniary interest that it could not constitutional¬ ly conduct hearings looking toward the revocation of [those optome¬ trists’] licenses to practice optometry.” 47 However, the Court is not always so willing to require individualized determinations, especially where licensing and regulation of a particular profession has historical¬ ly been left exclusively to the States. In Leis v. Flynt,48 for example, the Court rejected an argument that out-of-state lawyers had a due process right to a hearing on their application to appear pro hac vice in Ohio courts, stating, "[T]he suggestion that the Constitution assures the right of a lawyer to practice in the court of every State is a novel one, not supported by any authority brought to our attention.” 49 This statement implies that the procedural aspect of the due process clause protects no more than those liberties which it substantively protects. But the statement’s matter-of-fact style suggests that the Court did not intend such a sweeping change from earlier precedent.50 § 10-12.

What Process is Due: Identifying Protection to be Accorded

the Source

of the

Prior to the advent of the notion of statutory entitlements, the question of "what process is due” was not considered separately from the issue of what deprivations of personal interests by the government warrant due process protections. Both constitutional questions were answered with reference either to the dictates of natural law or in terms of fundamental

fairness.1 The process due depended

in essence

on whether an individual had been "condemned to suffer grievous loss,” 2 and on whether the interest in avoiding that loss was greater than the government’s interest in summary process.3 When statutory entitlements were recognized, however, the Court distinguished conceptually between the identification of the interests protected, and the assessment of the process due, and isolated different factors as crucial to the two inquiries. Whether or not a legitimate entitlement existed depended upon interpreting the relevant body of positive law to see if it recognized a "liberty” or "property” interest in 45. See discussion in § 10-8 supra and § 15-14, infra. 46. 411 U.S. 564 (1973). 47. Id. at 578. 48. 439 U.S. 438 (1979). 49. Id. at 444 n. 5 (emphasis added). 50. For example, the Court made no mention of Gibson v. Berryhill, discussed above.

1. See § 10-8, supra. § 10-12 Refugee Commit¬ 2. Joint Anti-Fascist tee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J. concurring).

3. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961).

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the threatened benefit or opportunity.4 But while the Court was willing to rely on non-constitutional sources of law as the basis for a judgment about the existence of a substantive entitlement, it held that constitutional rather than nonconstitutional criteria must be employed to identify the content of the procedural obligations thereby triggered. The Court thus employed traditional modes of analysis to determine the process due, while recognizing "the importance of not imposing upon the states or the Federal Government in this developing field of law any procedural requirements beyond those demanded by rudimentary due process.” 5 The notion that the Constitution is the source of the protection to be accorded when an interest in "liberty” or "property” is infringed was challenged for the first time in Arnett v. Kennedy , where the Court reviewed the constitutionality of a federal law (1) guaranteeing Civil Service employees that they could be dismissed only for "cause,” but simultaneously (2) denying employees any right to a hearing until after they had been dismissed.6 Justice Rehnquist, joined by Chief Justice Burger and Justice Stewart, wrote a plurality opinion to uphold the law, arguing that "the property interest which [the employee] had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of the interest” 7 and concluding that, "where the grant of a substantive right is inextricably interwined with the limitations on the procedures which are to be employed in determining that right, a litigant . . . must take the bitter with the sweet.” 8 Justices Powell, Blackmun,

White, Marshall, Douglas, and Brennan

disagreed, suggesting that the plurality "view misconceives the origin of the right to procedural due process. That right is conferred, not by legislative grace, but by constitutional guarantee.” 9 "While the State may define what is and what is not property, once having defined those rights the Constitution defines due process.” 10 In effect, six Justices were prepared to hold that Congress, having created what looked like a property entitlement, was powerless to qualify its character by adding a caveat that the seeming entitlement could be withdrawn without a hearing. Although a majority of the Supreme Court thus rejected Justice Rehnquist’s analysis, the law was upheld as applied to the case before the Court because the six members of that majority divided 4. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 262 (1970). 5. Id. at 267. 6. 416 U.S. 134 (1974). 7. Id. at 155. 8. Id. at 153-54. The same three Jus¬ tices would have applied precisely the same form of analysis to the foster parentfoster child relationship as a creation of state law in Smith v. Organization of Fos¬ ter Families, 431 U.S. 816, 856-57 (1977) (Stewart, J., joined by Burger, C.J., and Rehnquist, J., concurring in judgment). Id .a 9. Arnett, 416 U.S. tat 18 167 (Powell, J., 5( joined by Blackmun, J., concurring). Wh it e,J ., co nc ur

pa

an

di in pa Se al id. so ss e rt d en J c ). at 16 (P (" ad ti ., on e¬ o 7 n qu of wsetl pr cu fo [Thede g r r p a a o ] l riin ti cy of a st t,u crce ri pr vtae ng to on a e d o t a p u es mu buet ray n ¬r¬ te rei)n con er t or al st d s t s y te id at il2y1 yz (M J.titjo by ,d u in Dorms a.n Br1 edars JJ t is i ed ., ug ") ha d en s on l ; l, (" la [t enma pr ent al in in ¬ te [A s ar fr he stpnl, th doep g) r a o e p o o e l e t s r y r m of shtith cl e of en ute to coit s o ai nvya ti e,e’ u st]o me em htal mi titnio gh m wo un veem e u p en du t pr nim ed re st lo of plrd t oc a y oc ump ¬ ga nd men of th die pre e ro s e rd ar t sdcu oc s ¬ d r l h e aarl vi es sby th st du at e de s ge re ut d s e" ). rt

708

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Ch. 10

among themselves on the question whether the statutory procedures that were actually provided satisfied the requirements of procedural due process.11 In urging that "the substantive right may [not] be viewed wholly apart from the procedure provided for its enforcement,” 12 Justice Rehnquist sought to apply the narrowly positivist perspective, now dominant on the Court with regard to the identification of entitle¬ ments,13 to the analysis of what process is due. Procedural due process, on this view, serves only the instrumental role of assuring that people get what is "theirs” as defined by positive rules of law. Such a positivist theory is potentially destructive; once it is unleashed, it may be hard to provide analytical justification for confining its application to certain forms of statutory entitlement, and hard not to agree that " all property rights are granted by the sovereign and subject to any terms which it might impose . . . . ” 14 While the positivist theory, which would produce a significant contraction in protection of "liberty” and "property,” contains no internal contradictions, it may be criticized as an unjustifiable abdica¬ tion of judicial responsibility. An emphasis on limiting federal judicial intrusion in state affairs can take one only so far: the fourteenth amendment, after all, was clearly designed to place limits on state action adverse to individuals.15 Similarity, the fifth amendment was aimed at limiting federal deprivations of personal interests without due process of law. Thus, by allowing the government not only to deter¬ mine the existence of an entitlement but also to prescribe the proce¬ dures for its deprivation, the Court would fail to fulfill its important protective function. In Cleveland Board of Education v. Loudermill,16 a majority of the Court 17 explicitly rejected the Arnett plurality opinion, putting to rest any speculation that other members of the Court were sympathetic to Justice Rehnquist’s position.18 At issue in Loudermill 11. See the discussion in § 10-14, infra. 12. 416 U.S. at 152. 13. See §§ 10-10, 10-11, supra. 14. Comment, "Fear of Firing: Arnett v. Kennedy and the Protection of Federal Civil Service Employees,” 10 Harv.Civ. Rights— Civ.Lib.L.Rev. 472, 483 (1975) (em¬ phasis added). 15. See Comment, "Entitlement, Enjoy¬ ment, and Due Process of Law,” 1974 Duke L.J. 89, 111.

was a challenge

tested by giving the complainant "a fair opportunity before discharge to produce contrary records or testimony, or even to confront an accuser in front of the deci¬ sion-maker.” Id. at 553. He also argued that the Court should have remanded the case to the district court for development of the claim that administrative delay in this case violated due process guarantees, an assertion rejected by the Court. See § 10-14, infra, at note 62.

16. 470 U.S. 532 (1985).

of the state’s assertions could have been

¬ ¬ 9 y is de i¬ ¬ ht h Ar 41 b ck st ’ ceent ucraig n la iinvi d in re h e t eBd s fe c z,in posi i re to ’tshi h pejo w t Lo on es , en e d iinc .si ur t tu ght st , d civ h s u lJlu ri on lis de ce ho we ero t e ti ab ssPo by otp wi thlaa est r Go is w g ty d t tle of i t ianli acne ou be no ing ur ti ab al y s pl id , er Ju , r ov ens’ st v e e ce rg , pr sdio ui ony th tan B)u, nq h ni l he en s 5 pint"T im e in 97 Re d l e o ' i r y (1 e a wh ed ll ic p ra hoor e st d ap thgtt: ene ec F 65 u an J 5 n g t tine s, enAr es’ menn s . f on tt S. ie n rm ss n e o si ne U. Ch mu te di to fi tl ti

17. Only Justice Rehnquist dissented from the majority opinion. Justice Mar¬ shall concurred, but added that a full, trialtype hearing should be constitutionally re¬ quired before any decision to terminate wages is made. Id. at 548. Justice Bren¬ nan concurred in part and dissented in part, arguing that the Court should have prescribed a procedure in which the truth

Pr i

§ 10-12

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to a state civil service statute providing that employees

would

be

discharged only for cause, but entitling them only to post-discharge administrative review. Upon finding that the statute created a proper¬ ty interest 19 and that principles of due process required a pre-discharge opportunity to respond,20 the Court, through Justice White, relied on two prior opinions of the Court 21 to find that Justice Rehnquist’s Arnett opinion had already been "clearly rejected”, adding that "it is settled that the 'bitter with the sweet’ approach misconceives the constitution¬ al guarantee.” 22 The Court was adamant that "[t]he categories of substance and procedure are distinct,” and asserted that "[t]he point is straightforward: the Due Process Clause provides that certain substan¬ tive rights — life, liberty and property — cannot be deprived except pur¬ suant to constitutionally adequate procedures . . . 'Property’ cannot be defined by the procedures provided for its deprivation any more than can life or liberty. The right to due process 'is conferred, not by legislative grace, but by constitutional guarantee . . . ’ ” 23 In Loudermill, the Court decisively rejected any purely positivist approach to the procedural protection of state-conferred rights, and thus eliminated the precedential uncertainty that existed, at least for a time, after the splintered decision in Arnett. Nevertheless, the Court free of discipline imposed

in accordance

with Ohio law.” Id. at 586 (dissenting opinion). And in Bishop v. Wood, 426 U.S. 341 (1976), Justices White, Marshall, Blackmun and Brennan accused the Court of relying "on the fact that the ordinance described its own procedures for determin¬ ing cause,” thereby "effectively adopting the analysis rejected by a majority of the Court in Arnett.” Id. at 456 (White, J., dissenting). See also id. at 353-54 n. 4 (Brennan, J., dissenting). Justice Stevens, writing for the majority of five, denied this attack, claiming that the decision was based on a finding that the policeman in Bishop had no substantive "entitlement” to his job under state law, and therefore that the majority had not even reached the question of what process was due. See id. at 345 n. 8. 19. 470 U.S. at 538. 20. The Court noted, however, that the hearing affording this opportunity "need not be elaborate.” 470 U.S. at 545. 21. In Loudermill, Justice White cited Vitek v. Jones, 445 U.S. 480 (1980), and Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), as decisions that had earlier rejected Arnett. In Vitek, a state prisoner challenged the procedures followed in transferring him to a mental hospital. In his opinion for the Court, Justice White, joined by Justices Brennan, Marshall, Ste¬ vens, and Powell, rejected the state-prof¬ fered procedure for determining whether transfer to such a facility was appropriate, finding that such an adjudication must be conducted in conformance with constitu¬

tional standards.

The

Court added

that

"[t]hese minimum requirements being a matter of federal law, they are not dimin¬ ished by the fact that the State may have specified its own procedures. ...” id. at 490-1, noting that "[a] majority of the Jus¬ tices rejected an identical position in Ar¬ nett . . ..” Id. at 490 n. 6. In Logan, an employee of the defendant company filed a claim with the state fair employment commission, alleging that he was discriminatorily discharged. When the state commission attempted to initiate proceedings beyond the statutorily-mandat¬ ed 120-day period requiring the commis¬ sion to commence such actions, the defen¬ dant successfully moved to dismiss the claim. The state supreme court upheld the denial, reasoning that, since the state had created the entitlement, it was empow¬ ered to establish procedures to adjudicate complaints. The Court, in an opinion by Justice Blackmun, joined by Chief Justice Burger and Justices Brennan, White, Mar¬ shall, and Stevens, found that the employ¬ ee possessed a statutory entitlement to avail himself of the adjudicatory process of the commission — a species of property — and rejected the state supreme court’s ra¬ tionale as "misunderstand[ing] the nature of the Constitution’s due process guaran¬ tee,” 455 U.S. at 432, citing Vitek and referring to Justice Powell’s concurrence and Justice Marshall’s dissent in Arnett. See § 10-14, infra. 22. 470 U.S. at 541. 23. in Id.,Arnett. quoting Justice Powell’s concur¬ rence

710

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Ch. 10

failed to provide a fully convincing basis for its rejection of Justice Rehnquist’s position, reasserted in his Loudermill dissent, that the state’s prerogative in defining a substantive right ought to include the ability to limit that right through state-defined procedural devices.24 The Court merely reasserted the rationale, grounded in the separation of powers concept, of limiting the government’s procedural protections.

powers

to dictate

There has been no suggestion on the Court that the government should be able to tie the exercise, existence, or safeguarding of "core” rights of liberty or property to government’s decisions of what proce¬ dures to provide. To the contrary, in the summary repossession cases,25 the Court developed the theme that the process due for deprivation of rights to peaceful possession and enjoyment of tangible property defi¬ nitely does not derive either from the will of the parties or from positive rules of law enacted in advance by the legislature.26 Thus, the Court has extended the same procedural protections to statutorily created rights as to "core” rights. The basic position of the Court in Loudermill — that while full deference must be accorded the positive law in the creation of at least some property interests (those beyond the "core”), only minimal defer¬ ence need be shown to statutory provisions imposing procedural limita¬ tions on the continued enjoyment of those property interests — must rest on a notion that the Constitution treats certain procedural protections as mandatory incidents in the creation of any relationship terminable only on stated substantive conditions. This separation of the procedu¬ ral elements of an entitlement from its substantive boundaries may reflect both intrinsic and instrumental considerations. To the extent that the separation rests upon the instrumental

objective of enforcing

government’s own positive choices about competing economic interests, however, there are serious and probably fatal problems with the dis¬ tinction. First, it leaves the Court wholly at the mercy of resource allocation arguments for limits on procedural rights — arguments of the sort expressed in Mathews v. Eldridge.27 Not surprisingly, therefore, the Court in recent years has drawn back from imposing costly due process requirements in what might be seen as large-scale intrusions into government programs.28 Second, if the state is free to define and 24. In his dissent, Justice Rehnquist ad¬

26. See the discussion in § 10-9, supra.

monished the Court to "recognize the total¬ ity of the State’s definition of the property right in question,” and thereby to recog¬ nize the validity of the state-provided pro¬

27. 424 U.S. 319 (1976), discussed in

cedure, adding that, while the Court’s opin¬ ion did not "impose a federal definition of property,” its decision nevertheless in¬ fringed on the state’s prerogative to confer substantive rights. 470 U.S. at 561 (dis¬ senting opinion). 25. See, e.g. North Georgia Finishing, Inc. v. Bi-Chem, Inc., 419 U.S. 601 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974); Fuentes v. Shevin, 407 U.S. 67 (1972); cf. Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).

§ 10-13, infra. 28. The Court has shown a willingness in recent cases, however, to perceive as not unduly burdensome the costs that required procedures would impose on the state. In Loudermill, for instance, the Court argued that the required procedures would actual¬ ly serve the state’s long-term interests, in¬ cluding its economic concerns, to a degree outweighing the short term costs of those procedures: "... the employer shares the employee’s interest in avoiding disrup¬ tion and erroneous decisions; and until the matter is settled, the employer would con-

§ 10-12

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OF GOVERNMENTAL

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711

limit underlying substantive entitlements by positive enactment, there seems no clear reason why it should not be equally free to define the procedure that goes with each entitlement. After all, if substantive restrictions on entitlements can be adopted which have the effect of limiting procedural rights — e.g., if government

can create jobs overtly

terminable at the public employer’s will — it seems strange not to allow government to take the intermediate course of limiting public benefits and opportunities in an explicitly procedural way. Conversely, if the judiciary is to decide what process is due, it is hard to justify completely deferring to government even on a substantive level, since the basic character of decisions as to how applicants are processed, and how disputes over eligibility for government benefits and opportunities are resolved, is inevitably substantive. Moreover, the objective of accurate¬ ly enforcing the state’s own positive choices hardly seems sufficient to justify judicial intrusion into the essentially legislative province of deciding how those choices can best be implemented. On the other side, it might be argued that the Arnett plurality’s allocation of responsibility between the political and judicial branches rests on a notion of the special relevance of judicial expertise, and the comparative irrelevance of legislative competence, in making processoriented decisions. Values of accuracy, participation and predictability are matters that ance; conversely, political interests factual disputes.

judges are continually required to consider and bal¬ legislative ability to adjust competing economic and has little to do with designing fair ways to resolve If the courts have any special competence at all, it is

to be found in the area of fair dispute resolution. Indeed, the Court’s insistence in Loudermill that a clear distinction exists between substan¬ tive and procedural concerns, followed by its undertaking a detailed balancing of the opposing interests of the parties, underscores the distinction between the judicial role of prescribing constitutionallyrequired procedure and the legislative role of conferring and substan¬ tively delimiting the interest.29 tinue to receive the benefit of the employ¬ ee’s labors. It is preferable to keep a quali¬ fied employee on than to train a new one. A governmental employer also has an in¬ terest in keeping citizens usefully em¬ ployed rather than taking the possibly er¬ roneous and counter-productive step of forcing its employees onto the welfare rolls.” 470 U.S. at 544. Only where the employee is a "significant hazard” would the government have to absorb the eco¬ nomic loss of suspending the employee with pay pending an adjudication of the case. See also Lassiter v. Department of Social Services, 452 U.S. 18, 27 (1981) (not¬ ing that the state provision of counsel to indigents in parental status termination hearings would advance the state’s concern in protecting the interests of the child by ensuring an equally-balanced adversary hearing). 29. See also Atkins v. Parker, 472 U.S. 115, 129 (1985) (rejecting a due process

challenge to notice provided in the wake of a change in welfare benefits, specifically noting that Congress has "plenary power to define the scope and the duration of the entitlement,” but that "[t]he procedural component of the Due Process Clause does not 'impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits.’ ”) (citation omitted); Logan v. Zimmerman Brush Co., 455 U.S. 422, 43132 (1982), discussed in note 21, supra. The Court in Logan compared actions whereby a state "create[s] substantive defenses on immunities for use in adjudication — or . . . eliminate[s] its statutorily created causes of action altogether,” with actions whereby a state "amend[s] or terminates its welfare or employment pro¬ grams. . . . [or] adjusts benefit levels,” id. at 432 (emphasis added), contrasting both with " procedural limitation[s] on [a] claimant’s ability to assert his rights.” Id.

712

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Ch. 10

This notion of special judicial competence in the area of procedure, as distinguished from that of substance, may derive some support from Justice Stewart's statement for the Court in Dandridge v. Williams: 'The Constitution may impose certain procedural safeguards upon systems of welfare administration. But the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.” 30 But this justification for the Court’s greater willingness to overturn legislative decisions on matters of procedure than on questions of substance rests on the premise that procedural problems can be neatly separated from substantive choices. Plainly, this premise is open to serious question. In Lindsey v. Normet,31 for example, the Court upheld Oregon’s streamlined eviction procedure over the attack that it unfairly gave apartment tenants insufficient protection, deferring to Oregon’s legislative judgment that landlord-tenant relations were rationally dis¬ tinguishable from other creditor-debtor relations. It would be quite impossible to classify that judgment as either substantive or procedural: it was both. Similarly, in Mathews v. Eldridge , when the Court upheld the Social Security Administration’s procedures for terminating social security benefits without an evidentiary hearing, it gave "substantial weight ... to the good faith judgment of the [agency] charged by Congress with [administering] the social welfare system.” 32 The Court expressly noted the interdependence of substantive and procedural issues: "Significantly, the cost of protecting those whom the prelimina¬ ry administrative process has identified as likely to be found undeserv¬ ing may in the end come out of the pockets of the deserving since resources available for any particular program of social welfare are not unlimited.” 33 In sum, there must be a better reason than special judicial competence if the Court is to revise procedural judgments arising out of "what [is] essentially a legislative compromise,” 34 after which "Congress may no longer have room to maneuver and balance employees’ rights and executive flexibility, to find some middle ground between no justification at all and an evidentiary trial prior to remov¬ al.” 35 The Court itself has offered no alternative justification for the substance-procedure distinction whereby individuals must look to statu¬ tory and contract provisions for their definition of entitlements but need not do so for the specification of what procedures will be followed when

government

infringes on such entitlements.36

at 433 (emphasis added). In the former situation but not the latter, the Logan Court reasoned, "the legislative determina¬ tion provides all the process that is due,” id., citing Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445-46 (1915), discussed in § 10-6, supra, at note 39.

Ultimately, the

33. Id. at 348. 34. Arnett v. Kennedy, 154 (1974).

416 U.S. 134,

35. Frug, "Does the Constitution Pre¬ vent the Discharge of Civil Service Employ¬ ees?” 124 U.Pa.L.Rev. 942, 986 (1976).

30. 397 U.S. 471, 487 (1970). 31. 405 U.S. 56 (1972). 32. 424 U.S. 319, 349 (1976).

36. See Tribe, "Structural Due Pro¬ cess,” 10 Harv.Civ. Rts. — Civ.Lib.L.Rev. 269, 280 (1975).

§ 10-12

MODEL

OF GOVERNMENTAL

clarity of the demarcation

REGULARITY

the Court declared in Loudermill

713 between

the rights-conferring function and the process-prescribing function is illusory; the Court must eventually move toward more deference on matters of procedure or less deference on matters of substance. Since the former course would leave the due process clauses with little content in the modern state, where so much has come to depend on relationships with government, the latter seems preferable, certainly in relationships created to meet the needs of the individuals involved, and probably also in relationships created to meet the needs of others. Particularly in the latter context, the attempt to link procedural protection to the "property” interest of the individual in retaining a given relationship with government — typically, a public job— is ulti¬ mately unsatisfactory. As Professor William Van Alstyne has observed in a thoughtful reconsideration of interests in governmental relation¬ ships, attempts to squeeze public office-holding into the mold of private property entitlements are "unhappily reminiscent of a much earlier period when important positions of trust were sold (by the crown) quite literally as property. ... [so that] the status holder acted with the officiousness of an office 'owner.’ There is something abrasive and offensive, something anachronistic, in the idea that public sector posi¬ tions can be appropriately described as the property of the individual status holder . . . . ” 37 Rather than "the ingenious fashioning of a new property ,” what is required in the public employment and public contract contexts, in contrast to the public welfare and public housing contexts, is "the more general protection of the old liberty , i.e., those personal freedoms sheltered from government in all its protean exer¬ cises of power.” 38 Accordingly, Professor Van Alstyne proposes that we "treat freedom from arbitrary adjudicative procedures as a substan¬ tive element of one’s liberty,” and suggests that "the ideas of liberty and of substantive due process may easily accommodate a view that government may not adjudicate the claims of individuals by unreliable means.” 39 With two

important

modifications, that view

is the one that

emerges from this chapter. First, the emphasis on "unreliable means” continues the unfortunate practice of treating procedural due process as merely instrumental; once the doctrine is unhinged from notions of protecting what belongs to the individual, it might as well be recognized that unfairness inheres in the very act of disposing of an individual’s situation without allowing that individual to participate in some mean¬ ingful way — not simply because more mistakes are likely to be made thereby, but because such treatment seems incompatible with the person’s claim to be treated as a human being. Indeed, the very notion of "unreliability” or "mistake” presupposes a regime that is more rulebound than discretionary; yet the right to be heard, and to be told why an adverse action is being taken, need not arise only when there exist objective rules specifying the permissible grounds for such action. 37. Van Alstyne, "Cracks in 'The New Property’: Adjudicative Due Process in the Administrative State,” 62 Cornell L.Rev. 445, 483 (1977). Tribe-Amer. Const. Law 2nd Ed. UTB — 18

38. Id. at 487. 39.

714

MODEL

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Ch. 10

However closely the existence of such objective rules is linked to the idea of property-like entitlements, there is no necessary connection between their existence and the intrinsic virtues of regularizing the interaction between the individual and the state through requiring an interchange of views before the state does the individual grievous harm. Second, the stress on "adjudicating” the claims of individuals might invite government to act to the focused detriment of identified persons without giving them a hearing — so long as it purports to be acting in a rulemaking rather than adjudicatory capacity. What we saw in §§ 103 to 10-6, however, was that the due process requirement of an adversary hearing is triggered not by a governmental decision to proceed by adjudication but by a governmental decision to single out particular persons for deprivation. Whatever form that decision takes, the Model of Regularity implicit in the ex post facto and bill of attainder clauses as well as in the due process clauses compels proceed¬ ing in a way that accords adversely affected individuals an opportunity to participate.

§ 10-13. What Process is Due: Methods Protections

of Specifying Required

The still dominant "instrumental” approach to procedural due process accords value to procedural safeguards less as expressions of the individual’s dignity than as means to the minimization of factual error in the application of the relevant substantive rules.1 In part because of this approach, the Court has stressed its view that "[t]he very nature of due process negates any concept of inflexible procedures applicable to every imaginable situation.” 2 The Court has continually insisted that the procedures needed to minimize error and to reduce the dangers of arbitrary action to an acceptable level vary "according to specific factual contexts,” 3 since "not all situations calling for procedural safeguards call for the same kind of procedure.” 4 The earliest methods used by the Court to determine the required form of procedural due process involved reference to natural law.5 Later, ideas of "conventional morality” or notions of what has histori¬ cally seemed "fair and right and just” 6 were at the root of the selection of procedures.7 Although "a weighing process has long been a part of 10-13 1. See § 10-7, §supra. 2. Cafeteria and Restaurant Workers

Union, Local 473 v. McElroy, 367 U.S. 886, 895 (1961). See also Joint Anti-Fascist Ref¬ ugee Committee v. McGrath, 341 U.S. 123, 162-63 (1951) (Frankfurter, J., concurring). Of course an intrinsic approach could also make the required safeguards depend on context, but such an approach would be less likely to reflect wholly ad hoc, situa¬ tional assessments. 3. Hannah (1960).

v. Larche, 363 U.S. 420, 442

4. Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

5. See, e.g., Twining v. New Jersey, 211 U.S. 78, 106 (1908). See generally § 10-8, supra.

6. See, e.g., Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Frankfurter, J., dissent¬ ing): "To kill a man who has become in¬ sane while awaiting sentence offends the deepest notions of what is fair and right 7. just." See generally Note, "Specifying the and Procedures Required by Due Process: To¬ ward Limits on the Use of Interest-Balanc¬ ing," 88 Harv.L.Rev.

1510, 1537 (1974).

MODEL

OF GOVERNMENTAL

REGULARITY

715

§ 10—13

any determination

of the form of hearing required in particular situa¬

tions by procedural due process,” 8 overtly utilitarian interest-balancing has come to play a predominant role only in recent years.9 The preoccupation with a balancing approach has led to some refinement in the factors to be considered, and in Mathews v. Eldridge the Court announced something akin to a general formula for the determination of what process is due: 10 "[0]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private inter¬ est that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the func¬ tion involved and the fiscal and administrative burdens that the addi¬ tional or substitute procedural requirement would entail.” By requir¬ ing a weighing of the personal interest infringed, discounted by the chance that alternative procedures would be more likely to safeguard it, against the added cost of such alternative procedures, the Court’s manner of determining what procedural due process mandates repre¬ sents the application of a crude sort of social welfare function. The utilitarian nature of the approach contrasts sharply with the Court’s mode of deciding whether a procedural due process requirement is triggered at all; at that level, "as long as a property [or liberty] deprivation is not de minimis , its gravity is irrelevant to the question whether account must be taken of the due process clause.” 11 The difference in treatment accorded to the two questions is gener¬ ally explained by the proposition that, in a world of limited resources, society cannot afford wholly to ignore interests other than those of the individual asserting a denial of "life, liberty or property” — interests which are implicated by large expenditures on the provision of hear¬ ings. Thus, although "the cost of protecting a constitutional right cannot justify its total denial,” 12 considerations of cost may play a role in deciding exactly what level of protection a right should receive. In Mathews o. Eldridge , for example, in holding that the termination of social security benefits without a prior evidentiary hearing does not violate due process, the Court noted that "[significantly the cost of 8. Board of Regents v. Roth, 408 U.S. 564, 570 (1972). 9. Justice Rehnquist ancing approach in his land Board of Education U.S. 532 (1985), arguing

criticized this bal¬ dissent in Cleve¬ v. Loudermill, 470 that its result in that case was "unobjectionable” but un¬ principled: "The balance is simply an ad hoc weighing which depends to a great extent upon how the Court subjectively views the underlying interests at stake.” 470 U.S. at 562 (dissenting opinion). He suggests, not surprisingly, that one way to prevent numerous cases, all requiring unique balancing, from coming to the Court is to allow government to prescribe procedure as well as substance in creating

the entitlement. See § 10-12, supra. See generally Mashaw, "TheForSupreme Court’s Due Process Calculus Administrative Adjudication in Mathews v Eldridge: Three Factors in Search of A Theory of Value,” 44 U.Chi.L.Rev. 28 (1976). 10. 424 U.S. 319, 334-35 (1976). 11. Goss v. Lopez, 419 U.S. 565, 576 (1975). See also Ingraham v. Wright, 430 U.S. 651, 674 (1977); Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972). 12. Bounds v. Smith, 430 U.S. 817 (1977) (right of access to courts requires prison authorities to furnish inmates with adequate law libraries or adequate aid from law-trained persons).

716

MODEL

OF GOVERNMENTAL

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Ch. 10

protecting those whom the preliminary administrative process has identified as likely to be found undeserving may in the end come out of the pockets of the deserving since the resources available for any particular program of social welfare are not unlimited.” 13 In addition to its growing worry about expense,14 the Court has been concerned not to protect statutory entitlements through procedures which might seriously impair the purpose of the statute from which the entitlements are derived-— a concern both instrumental and intrinsic in character.15 The restriction of procedural safeguards where an individual’s interest in such safeguards conflicts with the rights of others has long been a basic tenet of procedural due process jurisprudence.16 But in cases where the rights of other individuals would not be impeded by according a full hearing to an individual prior to a significant depriva¬ tion, the contemporary emphasis upon minimizing expense and avoid¬ ing sacrifice of various governmental objectives represents a considera¬ ble break with a tradition that has identified the due process clause as '"designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may character¬ ize praiseworthy government officials no less, and perhaps more, than 13. 424 U.S. 319, 348 (1976). Note that, in this formulation, the concern with cost purports to be a concern

with other indi¬

viduals’ rights. Compare the much looser formulation in Ingraham v. Wright, 430 U.S. 651, 680 (1977): "[E]ven if the need for advance procedural safeguards were clear, the question would remain whether the incremental benefit could justify the cost.” See also Wheeler v. Montgomery, 397 U.S. 280, 284 (1970) (Burger, C.J., dissenting). 14. But see Ake v. Oklahoma.

470 U.S.

68 (1985) (rejecting the state’s argument based on cost and requiring that an indi¬ gent accused of murder be provided with access to behaviorial specialists to establish his insanity defense); see also United States Trust Co. of New York v. New Jersey, 431 U.S. 1 (1977) (refusing to per¬ mit cost-saving justification for a state’s impairment of its contract obligations to bondholders). 15. See, e.g., Goss v. Lopez, 419 U.S. 565 (1975) (requiring an informal give-and-take between student and administrator prior to suspension would not jeopardize state ob¬ jective of providing education): Morrissey v. Brewer, 408 U.S. 471, 483 (1972) (al¬ lowing hearing prior to revocation of pa¬ role would not impede purpose of deterring misbehavior). In other cases, the Court has refused challenges to procedures on similar grounds. See, e.g., Walters v. National As¬ sociation of Radiation Survivors, 473 U.S. 305 (1985) (rejecting a challenge to the $10 maximum attorney’s fee established by fed¬ eral law to be paid toS attorneys represent¬ ee , e Veteran’s Admin¬ ing claimants before the .g .,S mi th v. O

istration,

in

order

to

preserve

the

congressional purposes of maintaining in¬ formal procedures and ensuring that claimants do not have to share awards with attorneys); Parham v. J.R., 442 U.S. 584 (1979) (rejecting a challenge to infor¬ mal, non-adversary procedures in deter¬ mining whether a child should be voluntar¬ ily committed to a mental institution by his parents, in order to preserve the state’s interest in avoiding obstacles that may un¬ necessarily discourage the mentally ill or their parents from taking advantage of these state benefits); Greenholtz v. In¬ mates of Nebraska Penal and Cor. Com¬ plex, 442 U.S. 1, 13-14 (1979) (rejecting a challenge to informal procedures for parole of prisoners, partly in order to prevent "a continuing state of adversary relations be¬ tween society and the inmate” from under¬ mining the "objective of rehabilitating con¬ victed persons”), discussed in § 10-7, supra.

Fo

Fa 43 U. 81 (1 (s ta 97 S. st 1 mi 6 7)f li f pr er r c ftoe hi ro esor em si¬ o ld es te ce fa m , he ov ad n re pe r du mi ld in eq n c l r li oef ico ing ua of th i bi s esnf g te t e al ol l&y ogCa rve. eMy li Ew ca ht pa i¬s¬ st t ct l re i se In in33 ng U. 59s i(n1 (u n t c p 4 g9e5 inlber fe s); ., lga9 aSu. 0r) mu hol lt d¬b th se g ry, der of ap w ip ut or mis al iz pa le o i b ph ur ha d i a re f ru zi nra dv ys es rm nt n n g a an ic ad h o t m o t g leea l n s he erde nc f he y al ve sAsri y se N Co Sittsd e Co r ly s or meng . iz l o a ry t2h1 v. uCrh U. ri 30 (1 d (urag 90 ei)c S. ca 6 1 p e 8) ex pa ;ag se an dne of hoal ldei r o i st d ly di te , zurpo gneg ru u se el d¬ ct tr as io y) ed n .

MODEL

§ 10-13

OF GOVERNMENTAL

REGULARITY

111

mediocre ones.” 17 Indeed, the Court has had occasion to recall even recently that "procedural due process is not intended to promote efficiency” 18 and that a procedural safeguard must be afforded "if that may be done without prohibitive cost.” 19 The willingness to override individual protection in the interests of efficiency flows quite readily from an instrumental perspective which perceives "fair process” as serving only the wholly "neutral” or "techni¬ cal” value of accurately enforcing the state’s own positive choices about how competing interests are to be adjusted through rules governing behavior and through formulas allocating scarce resources. But even accepting that instrumental perspective for the moment, there are serious problems in striking the balance called for by decisions like Eldridge .20 How, for example, can one measure

in monetary

terms the

social and psychological "costs” to dignity and self-respect caused by loss of a government job or of welfare? One commentator has suggest¬ ed that, as "applied by the Eldridge Court, the utilitarian calculus tends, as cost-benefit analyses typically do, to 'dwarf soft variables’ and to ignore complexities and ambiguities.” 21 Moreover, the difficulty of the Court’s task is aggravated when it fails even to consider the functional utility of alternative procedures such as confrontation and cross-examination.22 Nor has the Court, for the most part, been pre¬ pared to identify general procedural requirements for typically recur¬ ring situations in order to further consistency in doctrine or in applica¬ tion.23 In fact, given the complexity of the problem, and given the selfimposed framework which allocates to the Court the duty of balancing essentially the same factors that a legislature or agency presumably considered in initially selecting a procedural policy, it is hardly surpris¬ ing that Eldridge appears to create a presumption of constitutionality for procedural safeguards provided by government: "substantial weight must be given to the good-faith judgment of the individuals charged by Congress with the administration of the social welfare system that the procedures they have provided assure fair consideration of the entitle¬ ment claims of individuals.” 24 17. Stanley v. Illinois, 405 U.S. 645, 656 (1972). See generally R. Dworkin, Taking Rights Seriously 190-92 (1977). 18. Fuentes v. Shevin, 407 U.S. 67, 90 n. 22 (1972).

"Some Kind of Hearing,” 123 U.Pa.L.Rev. 1267, 1301-02 (1975). Cf. Mashaw, supra note 9, at 28-29 (expressing need for gener¬ al criteria to provide consistency and to minimize need for judicial testing of each

19. Goss v. Lopez, 419 U.S. 565, 580 (1975) (emphasis added).

procedure); Note, supra note 7, at 1517-18 (noting Court’s seeming confusion about whether to specify general procedures).

20.

For

a detailed

critique of the

Court’s balancing process in Mathews Eldridge, see Mashaw, supra note 9.

supra note 9, at 48. The

point is developed in Tribe, "Policy Sci¬ ence: Analysis or Ideology?” 2 Phil. & Public Aff. 66, 97 (1972). 22. See generally, Note, supra note 7, at 1516. 23. See Wheeler

v. Montgomery,

397

U.S. 280, 283 (1970) (Burger, C.J., dissent¬ ing); Sanders v. United States, 373 U.S. 1, 32 (1963) (Harlan, J., dissenting); Friendly,

Ma th sv.

ew

6 ¬ e 5, n¬ n th45 re on¬ at , 3c0i¬ co eve ssifu¬ p c stht F d so re e f rig c As . to o ng o S r , ngW at Co edp the U. rero . th u v t rd ty 3 al ffo ethee y cCl"s di 4o7n a nc t b M a li ti re tuof va ee ta v. m on Na ebf s ha ti "d , a l v. s d heing ra mp a or t ni ee tnd ng su iv tus t de nt (fi er I pre rv ham tha a ( ra ikof Seurs t a e is gu hw lt ) c ; 2 r Wa g t ts S 98 o ”7) n (1 av (i1o9n7 ntin e m fec f . iota gmai ef ss Cf ct e at(s ud cl 00in a 51 oc di j 2 pr Ra he )6; d ). 5) t te f6 8, t” S. l lac e 98 97o n a 18 n a u n (1 n d (1 e me iUo. ion o h t s si g n nd 9 io 9 es ou s l e S. mp es 0 34 at 31 gr th ha ra Am U. su gr 43

21. Mashaw,

v.

MODEL

718

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Ch. 10

The Court’s unwillingness to consider values beyond accuracy of result in the context of a utilitarian balancing test when deciding what process is due, and the Court’s grant of a strong presumption of constitutionality to statutory procedural provisions, amount to a serious abdication of traditional notions of judicial responsibility under the due process clauses.25 Like many other provisions of the Constitution, the due process requirement represented a decision on the part of the Framers to safeguard certain rights and values, those considered funda¬ mental in a free society and yet unusually vulnerable to the risk of denial by the majority.26 Adequate protection of such "core” concerns cannot be afforded by "balancing” the general interests of the majority against those of the individual.27 Here as elsewhere the Court should decline the "invitation to engage in a utilitarian comparison of public benefit and private loss.” 28 And there is no reason to believe that the judiciary would be better suited to that task of utilitarian comparison than the legislature even if it were called for.29 The proper role of courts in this context is to define and protect those substantive and procedural rights that may not receive their due respect in the political process. It is largely this additional protection, after all, that justifies the judicial review of administrative procedures in the elaboration of constitutional norms. § 10-14.

Current Doctrine: The Relevance of Timing and Need for More Than Pos£-Deprivation Process

the

The Court has long maintained its adherence to a flexible approach in deciding what process is due. The method most commonly employed at present to determine the form of required procedures is a judicial interest-balancing process whose outcome necessarily varies from case to case.1 There has nevertheless been considerable regularity in the procedural safeguards prescribed, since the determination of what process is due has centered on an adversary model whose core constant has involved granting notice and an opportunity to be heard to those individuals or groups whose personal interests are adversely affected by government

action.2

tort remedies for deprivation of liberty meet due process requirements). 25. Justice Rehnquist’s dissent Cleveland Board of Education

in v.

Loudermill, 470 U.S. 532, 559 (1985), advo¬ cates what might be viewed as an even greater abdication of judicial responsibility by eventually eliminating all judicial re¬ view in cases where procedure is pre¬ scribed at the time the entitlement is cre¬ ated. See § 10-12, supra.

27. See generally Reich, "The New Property,” 73 Yale L.J. 733, 776-77 (1964) (noting that, where individual interest is balanced against public interest, the latter almost always prevails). 28. United York v. New

States Trust Co. of New Jersey, 431 U.S. 1 (1977)

(striking down state impairment of bond¬ holders’ contract claims despite resulting gain to goals of better mass transit, energy tion). conservation, and environmental protec¬

26. See § 11-4, infra. "The Due Pro¬ cess Clause of the Fifth Amendment, later incorporated into the Fourteenth, was in¬ tended to give Americans at least the pro¬ tection against governmental power that they had enjoyed as Englishmen against

29. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 272 (1970) (Black, J., dissenting).

the power of the Crown.” Ingraham Wright, 430 U.S. 651, 672-73 (1977).

2. See generally Subrin & Dykstra, "Notice and the Right to be Heard: The

v.

1. See generally § 10-13, supra.

§ 10-14

§ 10-14 The

MODEL

OF GOVERNMENTAL

REGULARITY

719

first question generally faced in choosing procedural safe¬

guards is that of timing .3 Although "[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause,” the Court’s largely instrumental interest-balancing has generally required "that deprivation of life, liberty, or property by adjudication be preced¬ ed by notice and an opportunity for a hearing appropriate to the nature of the case.”4 Whether procedural requirements are designed to ex¬ press respect for affected individuals or "to minimize substantially unfair or mistaken deprivations,” it makes obvious sense in most cases to insist that "the right to notice and a hearing ... be granted at a time when the deprivation can still be prevented,” 6 in part because some deprivations may be truly irreversible, and in part because institutional pressures and commitments tend to militate against re¬ versing even those deprivations that have not yet worked irreparable harm, since the governmental decision-maker may have acquired a vested interest in ratifying an action already taken.6 In general, the right to prior hearing should prevail unless the state successfully demonstrates that "some valid government interest is at stake that justifies postponing the hearing until after the event.” 7 Where important interests would ostensibly be impaired by a prior hearing requirement, but private rights would seemingly be jeopardized in a more permanent way by the grant of only a subsequent hearing, the Court has responded by closely examining and explicitly weighing Significance of Old Friends,” 9 Harv.Civ. Rts. — Civ.Lib.L.Rev. 449 (1974).

without the other.” Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972).

3. See generally Rubenstein, "Procedu¬

5. Fuentes v. Shevin, 407 U.S. 67, 81-82 (1972).

ral Due Process and the Limits of the Ad¬ versary System,” 11 Harv.Civ.Rts. — Civ. Lib.L.Rev. 48 (1976); Mashaw, "The Man¬ agement Side of Due Process: Some Judi¬ cial and Litigation Notes on the Assurance of Accuracy, Fairness, and Timeliness in the Adjudication of Social Welfare Claims,” 59 Cornell L.J. 772 (1974).

4. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). Lan¬ guage in earlier Supreme Court decisions suggested that the distinction between "lib¬ erty” and "property” played a doctrinally significant role in the Court’s resolution of prior hearing questions. Phillips v. Com¬ missioner of Internal Revenue, 283 U.S. 589, 596-97 (1931) (Brandeis, J.) ("Where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process if the opportunity given for the ultimate judicial determina¬ tion of the liability is adequate.”). But recently, the Court has declared that it no longer regards the distinction between "lib¬ erty” and "property” as necessarily deci¬ sive: The "dichotomy between personal lib¬ erties and property rights is a false one. Property does not have rights. People have rights ... In fact, a fundamental interdependence exists between the person¬ al right to liberty and the personal right in property. Neither could have meaning

6. The Court has found statutory proce¬ dures for post-deprivation hearings to be inadequate in numerous cases. See, e.g., Perry v. Sindermann, 408 U.S. 593 (1972) (firing from employment at state universi¬ ty); Morrissey v. Brewer, 408 U.S. 471, 475-76 (1972) (termination of parole); Fuentes v. Shevin, 407 U.S. 67, 75-77 (1972) (replevin of consumer goods held under conditional sales contract); Stanley v. Illinois, 405 U.S. 645, 647-49 (1972) (re¬ moving unwed father’s custody over his children); Bell v. Burson, 402 U.S. 535 (1971) (suspending driver’s license); Gold¬ berg v. Kelly, 397 U.S. 254 (1970) (with¬ holding welfare benefits); Sniadach v. Family Finance Corp., 395 U.S. 337, 339 (1969) (prejudgment wage garnishment). Contrast Dixon v. Love, 431 U.S. 105 (1977) (state system for summary suspension or revocation of driver’s license based on number of prior traffic convictions upheld partly because state made special provision for hardship and for holders of commercial licenses).

7. Boddie v. Connecticut, 401 U.S. 371, 379 (1971). See, e.g., Dixon v. Love, supra note 6, at 114 (stressing important public interest in prompt removal of safety hazards).

720

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the relevant interests found to be affected. Thus, in Goldberg v. Kelly , the Supreme Court held that a state could not "terminate public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination.’’ 8 The Court recognized that the requirements of a prior hearing involve greater expense, and that "the benefits paid to ineligible recipients pending decision at the hearing probably cannot be recouped, since these recipients are likely to be judgment-proof.” 9 On the other hand, termination "of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate.” 10 Moreover, because the individual who is denied welfare benefits pending the outcome of a subsequent hearing must "concentrate upon finding the means for daily subsis¬ tence,” he cannot take the time necessary to prepare effectively for the subsequent hearing. And this "impaired adversary position is particu¬ larly telling” in light of evidence "of the welfare bureaucracy’s difficul¬ ties in reaching correct decisions on eligibility.” 11 Finally, the Court held that the drain on resources could be reduced by the less restrictive alternative of "developing procedures for prompt pre-termination hear¬ ings and by skillful use of personnel and facilities.” 12 Exceptions have traditionally been made to the general rule requir¬ ing hearings prior to government deprivations only where a prior hearing would have been inconsistent with "a countervailing state interest of overriding significance,” 13 either because of the delays created by the hearing process,14 or because of the opportunity for 8. 397 U.S. 254, 255 (1970). 9. Id. at 266.

10. Id. at 264. The Court has also giv¬ en weight in other cases to the situation of the party seeking a hearing prior to remov¬ al of a government benefit or opportunity. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (termination of parole pend¬ ing hearing would inflict "a 'grievous loss’ on the parolees and often on others”); Bell v. Burson, 402 U.S. 535, 539 (1971) ("con¬ tinued possession of driver’s license may become essential in the pursuit of a liveli¬ hood”); Sniadach v. Family Finance Corp., 395 U.S. 337, 341-42 (1969) ("A prejudg¬ ment garnishment of the Wisconsin type may as a practical matter drive a wage¬ earning family to the wall.”); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18 (1978) ("The consumer’s interest is self-evident. Utility service is a necessity of modern life; indeed, the discontinuance of water or heating for even short periods of time may threaten health and safety.”).

11. 397 U.S. at 264 n. 12. The Court made a similar point in Sniadach v. Family Finance Corp., 395 U.S. 337, 341 (1969), when it observed that empirical studies indicate that wage garnishments are often secured in a fraudulent manner.

12. 397 U.S. at 266. 13. Boddie v. Connecticut, 401 U.S. 371, 377 (1971). 14. For example, in Barry v. Barchi, 443 U.S. 55 (1979), the Court upheld the suspension of a horse trainer’s license without a prior evidentiary hearing pursu¬ ant to a New York statute providing that where

a post-race urinalysis shows

the

presence of drugs in the horse’s system, the license of the horse’s trainer may be re¬ voked or suspended if the trainer drugged the horse, negligently failed to prevent the drugging of the horse, or knew or should have known that the horse had been drugged. Justice White, for the majority, wrote that "the State is entitled to impose an interim suspension [pending a prompt post-suspension hearing] whenever it has satisfactorily established probable cause to believe that a horse has been drugged and that a trainer has been at least negligent in connection with the drugging.” Id. at 64. Although the trainer has a substantial interest in avoiding suspension, "the train¬ er’s interest is not being baselessly compro¬ mised,” and thus does not outweigh "the State’s interest in preserving the integrity of the sport and in protecting the public from harm.” Id. at 65.

§ 10-14

MODEL

OF GOVERNMENTAL

REGULARITY

721

evasion presented to the target of government action by the very fact of prior notice.16 At the same time, these exceptions have also required that the denial of a prior hearing not severely burden the individuals affected by summary government action — either because the action could be reversed, or because the government could be required to pay compensation if the subsequent hearing revealed that the government had acted mistakenly. Given the asymmetric impact of a prior hearing requirement where these conditions concerning governmental and pri¬ vate interests have prevailed, the Court has found it relatively easy to conclude that a subsequent, rather than prior, hearing better satisfied the due process standard of "just treatment” in these exceptional cases. Thus, the Supreme Court has not required a hearing prior to emergen¬ cy action in wartime 16 nor has the Court compelled prior hearings where summary action has been necessary to protect public health and safety,17 to secure effective tax collection,18 to seize articles used in the See also Mackey v. Montrym, 443 U.S. 1 (1979), in which the Court found that the delay which would be created by the re¬ quirement of a hearing prior to the tempo¬

gencies of wartime conditions and the in¬ sistent demands of inflation control .... National security might not be able to afford the luxuries of litigation and

rary suspension of a driver’s license for refusal to submit to a breathalyzer test

the long delays which preliminary

would compromise the state’s interest in public safety: "in promptly removing such [allegedly drunken] drivers from the road, the summary sanction of the statute con¬ tributes to the safety of the public high¬ . ways.” Id. at 18. Cf. Hewitt v. Helms, 459 U.S. 460, 472-73 (1983).

hear¬

ings traditionally have entailed.” Bowles v. Willingham, 321 U.S. 503, 521 (1944). See also Haig v. Agee, 453 U.S. 280, 302 (1981) (no hearing prior to revocation of a passport is necessary where "there is a substantial likelihood of 'serious damage’ to national security or foreign policy.”

.

15. See, e.g., Mackey v. Montrym, su¬ pra, upholding a Massachusetts statute providing for automatic suspension of a

fe to le ju th th e g r a dg pr red of iscloa inme re t t q o tn the teicm se isvuem of de enrtess go uire in driver’s license for 90 days for refusal to iz e o f time s d ec ts ondi of a submit to a breathalyzer test. Chief Jus¬ ad adure r hetiv ons, th n a e y a v va t tice Burger, writing for the majority found re er sa me nce of teh go ac ing Fo ex¬ r tiC ve A amrits in Neo St r that "[a] presuspension hearing would sub¬ oonl rnme y or p r . stantially undermine the state interest in th 2 merUi agth Co le,v. Ch 30 (d1 . 1 n c ee 9 . ic 1 t Sa. 6 08 public safety by giving drivers significant n a go th ex pa Co up se a)n, d rt o ipz d e e¬ he o ,4 e b incentive to refuse the breath-analysis test sturt u e l v f a f o 7 r en d ru rr ule and demand a presuspension hearing as a el d tmr th cti th al w as i e s ya le se ou on is t g a g dilatory tactic.” Mackey, 443 U.S. at 18. b k i c s a t t a ste he im n ol edl to ei h ep nd Th d d n y ira t p e e that th ng d to 16. The Supreme Court has held g os o an mme er Co e g e e d e ur Congress, in the exercise of its war powers, th fpou as lo as it dwia n s ng e t ast ot old.r rbeli e may validly enact emergency legislationha c s See also, Ewing v. Mytinger & Casselber¬ try, which grants affected individuals or groups ra Inc., 339 U.S. 594, 600 (1950), approving di a hearing only after the fact of adverse ti provisions of a federal law authorizing on government action. Thus, for example, a ll seizures of apparently mis¬ multiple yde the Court upheld World War I legislation ¬ physically harmless, drugs in branded, but authorizing the President unilaterally to advance of any adversary hearing on the

seize property held by enemy aliens; prop¬ erty mistakenly seized could be recovered in a subsequent hearing. See, e.g., Stoehr v. Wallace, 255 U.S. 239 (1921); Central Union Trust Co. v. Garvan, 254 U.S. 554 (1921). And in World War II, the Supreme Court upheld provisions of the Emergency Price Control Act of 1942 which authorized the Office of Price Administration to fix rents without first granting landlords a hearing; judicial review was permitted on¬ ly "after the order had been promulgated.” "Congress was dealing here with the exi¬

merits of seizure on ground that "[t]here is no constitutional reason why Congress in the interests of consumer protection may not . . . conclude . . . that public dam¬ age may result even from harmless articles if they are allowed to be sold as panaceas for man’s ills.” And in Mackey v. Montrym, 443 U.S, 1 (1979), discussed in notes 14 and 15, supra, the Court

reasoned

that "[s]tates surely

722

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REGULARITY

Ch. 10

commission of crimes,19 to permit emergency bank management,20 or to protect schools, prisons, or other public institutions from serious disrup¬ tion.21 have at least as much interest in removing drunken drivers from their highways as in summarily

seizing mislabeled drugs or de¬

stroying spoiled foodstuffs,” and according¬ ly upheld a Massachusetts statute provid¬ ing for the automatic suspension of a driver’s license for 90 days for refusal to submit to a breathalyzer test. Id. at 17. The Court found that the summary sanc¬ tion substantially promoted the state’s in¬ terest in public safety by acting "as a de¬ terrent to drunken driving,” by "effectuat[ing] the Commonwealth’s inter¬ est in obtaining reliable and relevant evi¬ dence for use in subsequent criminal pro¬ ceedings,” and by "promptly removing such drivers from the road.” Id. at 18.

1

18. The Supreme Court has consistent¬ ly held that the federal and state govern¬ . ments may validly resort to summary pro¬ cedures in order to assure effective collection of taxes by minimizing

the tax¬

payer’s opportunity to waste assets in an¬ ticipation of a collection attempt. See, e.g., Bob Jones University v. Simon, 416 U.S. 725, 747 (1974) (rejecting, "in light of the powerful governmental interests in pro¬ tecting the administration of the tax sys¬ See tem from premature judicial interference,” , the claim of an organization, whose taxexempt status was unilaterally revoked by the IRS because of the organization’s ra¬ cially discriminatory practices, that a con¬ gressional provision for only "post-enforce¬ ment review” of the IRS decision violated procedural due process); Phillips v. Com¬ missioner of Internal Revenue, 283 U.S. 589 (1931) (approving provisions of the Rev¬ enue Act of 1926 authorizing the summary collection of taxes); Scottish Union & Na¬ tional Insurance Co. v. Rowland, 196 U.S. 611 (1905) (upholding a state’s ex parte seizure of property from a delinquent tax¬ payer); Springer v. United States, 102 U.S. 586 (1880) (approving an ex parte seizure of property from a tax delinquent). Cf. Mur¬ ray’s Lessee v. Hoboken Land & Improve¬ ment Co., 59 U.S. (18 How.) 272 (1855) (upholding ex parte seizure of property from a customs collector who had failed to turn over to the United States over $1 million in collected duties and tariffs). 19. See, e.g., Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974) (up¬ holding ex parte seizure of yacht allegedly used for marijuana smuggling). 20. See, e.g., Fahey v. Mallonee, 332 U.S. 245 (1947) (approving provision of the Home Owner’s Loan Act of 1933 authoriz¬ ing Federal Home Loan Bank Administra¬

tion to summarily

assume

management

of

any federally insured savings and loan as¬ sociation conducting business in unlawful, unauthorized, or unsafe manner pending outcome of subsequent full investigation, in order to protect customers from further unlawful management and to protect bank’s assets from liquidation by panicking customers during federal investigation). Cf. Coffin Brothers v. Bennett, 277 U.S. 29 (1928) (upholding a Georgia law permitting state, in event of a bank failure, to execute a lien against the property of the bank’s shareholders in advance of any hearing on the merits of their liability in order to tors). protect the interests of the bank’s deposi¬

565 582 (19 (al "as a gen tho s erare rul, not -83 and 75h)ea pre h ughou l¬ e ice c rin l e mov of a stu frgo sch d stdue o d den m a "wh l pre danents tpose a con ol,” soern p s or an tion to poesre thrger cerop ugion son e e i of dis s the ratcya pro gng may abte ces rup dem s tin ifc imm sch wit g rem r o ool h m edi o v not a a hea ed fol "as ,”soo as ice atnedl n l rin owi y g ng posSee also Hewitt v. Helms, 459 U.S. 460 sib e.g le” ., (1983), where the Court held that, follow¬ Gos ). ing as prison riot, confinement to adminis¬ v trative .segregation of a prison inmate Lop ez, viewed as a security 419 threat, pending inves¬ tigation of the misconduct charges against U.S . the inmate, need not be preceded by any

hearing and need be followed only by "an informal, nonadversary evidentiary re¬ view” in which the inmate receives "some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” Id. at 476. So long as this review occurs "within a reasonable time after confining [the inmate] to administra¬ tive segregation,” the requirements of due process are satisfied. Id. at 472. Justice Rehnquist’s majority opinion rested on the conclusion that the inmate’s interest in remaining in the general prison population was "not one of great consequence,” since the prison is itself a restricted environ¬ ment, while the state’s interests in the safety of the prison’s guards and inmates, in the security of the institution, and in the insulation of potential witnesses to the alleged misconduct from the possibility of coercion or harm are all of great import, far outweighing the interest of the inmate in a hearing prior to action by the prison officials. Id. at 473.

MODEL

OF GOVERNMENTAL

REGULARITY

723

§ 10-14 In addition, the Court has balanced the interests of the affected individuals when judging the validity of rules granting private litigants

access to government processes for the purpose of attaching the proper¬ ty of their opponents, without prior notice or hearing, pending the outcome of litigation. In this context, the Court has declared that the '"basic and important public interest'’ in a government’s civil enforce¬ ment of its laws may justify ex parte government action on behalf of private litigants attaching private property in order to secure judicial jurisdiction.22 In the past, a litigant was also able to make a summary attachment of property to prevent an opponent from rendering himself judgment-proof in anticipation of an unfavorable outcome in litiga¬ tion.23 But more recently, even though prior notice of attachment proceedings might result in a frustration of their purpose, the Court held in Sniadach v. Family Finance Corp. that ex parte prejudgment wage garnishment mechanisms which permitted litigants substantially to block their opponents’ receipt of wages pending the outcome of litigation, and which were not shown to be necessary to secure jurisdic¬ tion, were constitutional only if government could demonstrate a "situ¬ ation requiring special protection to a . . . creditor interest.” 24 Jus¬ tice Douglas’ majority opinion in Sniadach explained the Court’s finding of unconstitutionality by noting first "that a prejudgment garnishment . . . may as a practical matter drive a wage-earning family to the wall” 25, since the "leverage of the creditor on the wage earner is enormous,” the collection of fraudulent debts and other "grave injustices” are "made possible by prejudgment garnishment whereby the sole opportunity to be heard comes after the taking.” 26 Finally, the Court countered the suggestion that the debtor might dissipate his wages by observing that the garnished wage-earner

often

"just quits his job and goes on relief.” 27 The Court has nevertheless relaxed the presumption in favor of a prior hearing when conflicting property rights in the same item exist. Thus, recognizing that both debtors and creditors have "property” interests in the goods involved in disputes over the terms of installment contracts, the Court held, in North Georgia Finishing, Inc. v. Di-Chem, Inc., 28 that an adversary hearing was necessary either prior to or immediately following a prejudgment garnishment. But where ex parte prejudgment repossession proceedings are employed, they are n. 23 (1 (d Se al Ow v. so 97 e ic nb 2) t Mo 25 U. um9)4 11 (1 (" pery , af op th 9 S 1 6 r hi 21 wh . ab . ty gaow ro er e ) m s n o n ¬ seS en , er te ju o a lme f t l ts rr at ri a f v in ex be ed, e it, mu wsidi hi itpor g r s e t s o c i h t m p t ne to coini th th St e ma aler o a ce a e d n y t t t se n su ssi suy pr to ju pr e to n t d b oc op c t ic an jec atede h m a h i h e e s n is g i i rt ad s t ma y e t aain al p m s ab wer acnd ra o nsyt se cos ct n r me ce th redi ma be ad ica as ngv. He Bu th se, Saht Ua.p bl 18 y 43 on af St.ed e 6 it 3 t od e (1 ab f n ”) e e 97 r ly r, . 7) .

23. See, e.g., Coffin Brothers v. Bennett, 277 U.S. 29 (1928). See also McKay v. Mclnnes, 279 U.S. 820 (1929) (summarily affirming state law authorizing govern¬ ment to attach property solely because of a litigant’s request). 24. 395 U.S. 337, 339 (1969). 25. Id. at 341-42. 26. Id. at 340. 27. Id. at 342 n. 9. 28. 419 U.S. 601 (1975).

724

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Ch. 10

constitutional only if they are adequately protected from abuse and error by procedural safeguards.29 Recently, however, even in cases where there were no conflicting rights in the "life, liberty, or property” for which an individual sought protection by means of a prior hearing, the Supreme Court has indicat¬ ed a reduced concern about the intrinsic and instrumental benefits of a prior as opposed to a subsequent hearing. In upholding governmental procedures denying hearings prior to important deprivations, the Court has given less weight than in the past to the possibility that personal interests cannot be adequately vindicated after deprivation, and has demanded less urgency of the governmental interest involved, so long as the alternative procedures offered by the government are shown to produce substantially accurate results. In Ingraham 29. In Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974), for example, the Court upheld the constitutionality of Louisiana’s prejudgment sequestration procedure — but only after noting (1) that Louisiana law permitted no one but a judge to approve the creditor’s application for prejudgment repossession; (2) that such approval was permitted only when the claim and the factual and legal grounds for it were clear¬ ly stated; (3) that the creditor had to fur¬ nish a bond in an amount specified by the judge; (4) that the debtor could regain pos¬ session either by furnishing a bond of his own or by demonstrating at an immediate post-repossession adversary hearing that the repossession was unjustified; and (5) that, if such a hearing was the method used to regain possession, the debtor could secure compensation for economic and reputational damages, and payment by the creditor of the debtor’s attorney’s fees. By contrast, the Florida and Penn¬ sylvania prejudgment replevin statutes struck down in Fuentes v. Shevin, 407 U.S. 67 (1972), had been held by the Court to possess several procedural defects which rendered their ex parte proceedings an in¬ adequate substitute for prior adversary hearings. Both states’ writs of replevin issued on the approval of a clerk or prothonotary, respectively, rather than a judge. Both issued "on the bare assertion” and willingness to post bond of the party seeking the writ, without requiring even a rudimentary factual showing. Moreover, neither of the state statutes provided any immediate opportunity for the debtor to regain possession except by posting bond. Finally, while Florida law allowed for the award of damages to the debtor if the cred¬ itor’s suit for repossession ultimately failed at trial, the Pennsylvania law did not even oblige the creditor to file suit for perma¬ nent repossession after the issuance of the replevin writ; the burden rested with the debtor to initiate a lawsuit for return of the property.

v. Wright j30 for

In New Motor Vehicle Board of Califor¬ nia v. Orrin W. Fox Co., 439 U.S. 96 (1978), the California Automobile Franchise Act required an automobile

manufacturer

to

obtain the approval of the New Motor Ve¬ hicle Board before opening or relocating a retail dealership within the market area of an existing franchisee if the franchisee protested its entry. Pursuant to the Act, a hearing would be held subsequent to notifi¬ cation of the manufacturer of the protests, and the manufacturer was denied the op¬ portunity to enter the territory pending a determination by the Board of the lack of good cause for refusing to approve the franchise permit. Distinguishing this case from Fuentes v. Shevin, supra, the Court held that this statutory scheme did not violate due process because of its failure to provide for a pre-deprivation hearing. Where neither party has a clear entitle¬ ment and there are competing interests in a property-like hearing — granting a pre¬ deprivation hearing to the manufacturer, and allowing entry until such a hearing had found good cause to deny it, would be the equivalent of denying a pre-deprivation hearing to the existing franchisee — the state may have broader authority to deter¬ mine the timing and contours of the pro¬ cess it will provide. 30. 430 U.S. 651 (1977). See also Ma¬ thews v. Eldridge, 424 U.S. 319 (1976) (up¬ holding Social Security Administration’s provision for notice and an opportunity to introduce rebutting evidence, but no evi¬ dentiary hearing, prior to termination of federal disability benefits): Arnett v. Ken¬ nedy, 416 U.S. 134 (1974). In Arnett, the Court applied a balancing test before ap¬ proving the statutory procedures provided by Congress for the dismissal of Civil Ser¬ vice employees. Of the six Justices who extensively scrutinized these procedures in light of the requirements of due process, only Justices Powell and Blackmun found that the grant of a subsequent hearing after the fact of dismissal was sufficient.

725 MODEL OF GOVERNMENTAL REGULARITY 4 1 0 § 1 example, the Court held that a child may be deprived, without a prior hearing of any sort, of the protected liberty interest in avoiding physi¬ cal restraint and preventing the infliction of "appreciable physical pain,” by corporal punishment in public schools.31 The Court reasoned that "[i]n view of the low incidence of abuse, the openness of our schools, and the common law safeguards that already exist, the risk of error that may result in violation of a school child’s substantive rights can only be regarded as minimal.” 32 While "[i]mposing additional administrative safeguards as a constitutional requirement might reduce that risk marginally, [it] would also entail a significant intrusion into an area of primary educational responsibility.” 33 This willingness of the Court to balance risks of irreversibly violating constitutionally protected interests in property and even liberty against considerations of efficiency and ability of a state remedies to deter discounting of the

cost-avoidance, and the Court’s confidence in the judicial system to provide sufficient after-the-fact illegal government action, may portend a general need for hearings prior to the deprivation of interests

in "liberty” or "property” "as long as [the individual] can later recover damages from a state official if he [was] innocent.” 34 The novel theory announced in Ingraham v. Wright may indeed have much broader implications for the doctrine of what process is due. The notion that a "post-deprivation state remedy may be all the process that the Fourteenth Amendment requires,” as Justice Stevens suggest¬ ed in his dissent, may well come to be seen in the future as the explanation for Paul v. Davis’ denial of relief for damage to reputa¬ tion,35 since there too one could "conclude that an adequate state remedy may prevent every state inflicted injury to a person’s reputaTheir view was based on the belief that the legitimate government interest in the effi¬ ciency of the civil service would be jeopard¬ ized by "prolonged retention of a disruptive or otherwise unsatisfactory employee” pending a pre-termination hearing, Id. at 168 (Powell, J., concurring), and on the impression that existing procedures pro¬ duced accurate results. Id. at 170 (Powell, J., concurring). Minimal significance was attached to the effect upon the dismissed employee of the interruption in income suffered pending the subsequent hearing, since a "public employee may well have independent resources to overcome any temporary hardship, and . . . may be able to secure a job in the private sector. Alternatively, he will be eligible for wel¬ fare benefits.” Id. at 169 (Powell, J., con¬ curring).

at 194. (White, J., concurring in part and dissenting in part). And Justice Marshall charged that to downplay the financial im¬ pact of the dismissal "is to exhibit a gross insensitivity to the plight of these employ¬ ees”: "Many workers, particularly those at the bottom of the pay scale will suffer severe and painful economic dislocations from even a temporary loss of wages.” at 220-21. (Marshall, J., dissenting).

Id.

The three remaining Justices — Rehnquist, Burger, and Stewart — contended pri¬ marily that there existed in this case no "property” interest sufficient to trigger procedural due process obligations at all, and secondarily that whatever interest in reputational "liberty” was adversely affect¬ ed by dismissal could be adequately pro¬ tected by a subsequent hearing. See the discussion in § 10-13, supra.

Justices White, Marshall, Douglas and Brennan all thought a prior hearing was required by due process. Unlike Justice Powell, Justice White believed that dismis¬ sal in advance of hearing was not the only

31. 430 U.S. at 674.

alternative to "keeping a person on the scene” prior to a hearing; "suspension with pay would obviate this problem.” Id.

34. Id. at 696 (White, J., dissenting).

32. Id. at 682. 33. Id.

36. 424 U.S. 693 (1976).

726

MODEL

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Ch. 10

tion from violating 42 U.S.C. § 1983.” 36 Thus, combining Ingraham with Justice Stevens' interpretation of Paul , the Court appears to have taken a dramatic turn from the view that a timely due process hearing should be held in the government agency itself for an infringement of protected "liberty” or "property.” By failing to interpret the due process clause to require such hearings, the Court further discounts the intrinsic importance of due process as providing a right to dialogue between government and the individual so that each person can partici¬ pate in the focused, adverse decisions of governmental bodies — a right implicit in bill of attainder notions as well as in due process.37 Instead, the view that courts can provide a sufficient forum to correct mistakes after the fact emphasizes the instrumental elements of due process at the expense of its participatory role.

Parratt v. Taylor 38 and Hudson of Ingraham

v. Palmer 39 applied the reasoning

to circumstances in which the theory is considerably easier

to defend — those in which

a pre-deprivation hearing is essentially

"impossible.” Parratt and Hudson built upon the reluctance of the Court, alluded to in Paul v. Davis 40 and Ingraham , to "federalize” the law of torts— -that is, to "make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States” 41 by "turning every alleged injury which may have been inflicted by a state official acting under 'color of law' into a violation of the Fourteenth Amendment cognizable under [42 U.S.C.] § 1983.” 42 In Parratt v. Taylor ,43 the hobby materials ordered by the respon¬ dent, an inmate of a Nebraska prison, were lost by employees of the prison. Respondent brought an action in federal court under 42 U.S.C. § 1983 against the prison officials, alleging that his hobby materials had been negligently lost and that he had been deprived of his property without due process of law. Noting that "the Fourteenth Amendment protects only against deprivations 'without due process of law,’ ” 44 the Court held that, because the tort remedy provided by the State of Nebraska was "sufficient to satisfy the requirements of due process,” 45 it follows that "the respondent has not alleged a violation of the Due Process Clause of the Fourteenth Amendment.” 46 The Parratt Court reasoned

that pre-deprivation process cannot

properly be demanded where the loss "is not a result of some estab¬ lished state procedure” 47 but is instead the "result of a random and 36. 430 U.S. at 702 (Stevens, J., dissent¬ ing). 37o See § 10-6, supra.

that there is no "deprivation” within the meaning of the due process clause if the government is merely negligent.

38. 451 U.S. 527 (1981).

43. 451 U.S. 527 (1981).

39. 468 U.S. 517 (1984).

44. Id. at 537.

40. 424 U.S. 693 (1976).

45. Id. at 544.

41. Paul, 424 U.S. at 701, quoted in Parratt v. Taylor, 451 U.S. at 544. 42. Parratt, 451 U.S. at 544. See also Daniels v. Williams, 106 S.Ct. 662 (1986), and Davidson v. Cannon, 106 S.Ct. 668 (1986), discussed in § 10-7, supra, holding

46. Id. at 543. In light of Daniels and Davidson, see note 42, supra, no violation would have been alleged in Parratt even if no tort remedy had been provided. 47. Id. at 541.

§ 10-14

MODEL

OF GOVERNMENTAL

REGULARITY

727

unauthorized act of a state employee” 48 beyond the state’s control, making it "not only impracticable, but impossible, [for the state] to provide a meaningful hearing before the deprivation.” 49 Where the state provides the opportunity for a meaningful post-deprivation hear¬ ing (in Parratt , the state’s tort remedy), this remedy fies the requirements of due process.

adequately satis¬

The Parratt rule was extended by the Court in Hudson v. Palmer 50 to cover intentional deprivations of property by state employees acting under color of state law. In Hudson a prison employee was alleged to have intentionally destroyed non-contraband personal property of a prison inmate in the course of a "shakedown” search of his cell.51 The Court found that the destruction was "random and unauthorized” although intentional, and that the post-deprivation tort remedy provid¬ ed by the State of Virginia would satisfy the requirements of due process for the same reasons as those outlined in Parratt. Since the wrongful deprivation was not the result of some established state procedure,52 a pre-deprivation hearing was impossible, and the availa¬ bility of a meaningful post-deprivation hearing was thus "adequate process.” "For intentional, as for negligent deprivations of property by state employees, the state’s action is not complete until and unless it provides or refuses to provide a suitable post-deprivation remedy.” 53 Although the Hudson opinion was unanimous on this issue, the

.

magnitude of the opinion’s apparent leap beyond Parratt seems unwar¬ ranted. It is one thing to say that no deprivation of life, liberty, or property without due process of law has occurred simply because a state agent negligently injures someone in the course of carrying out his 48. Id. 49. Id.

50. 468 U.S. 517 (1984). 51. Although the Court’s decision in

Hudson was unanimous with regard to the procedural due process issue discussed in this section, Justice Stevens dissented (joined by Justices Brennan, Marshall and Blackmun) from the holding of the Court that a prisoner ''does not have a reasona¬ ble expectation of privacy enabling him to invoke the Fourth Amendment. . . .” Hudson, 468 U.S. at 530. Justice Stevens wrote that this part of the decision in Hud¬ son "declares prisoners to be little more than chattels,” according them no measure of human dignity while incarcerated, in the name of efficient jail administration. Id. at 555.

52. An instructive contrast is provided by Logan v. Zimmerman Brush Company, 455 U.S. 422 (1982). There, the appellant filed a charge with the Illinois Fair Em¬ ployment Practices Commission. Pursuant to the Illinois Fair Employment Practices Act (FEPA), a fact-finding conference was to be scheduled within 120 days of the filing of the charge. The conference, how¬ ever, was inadvertently scheduled five days after the limitations period had expired,

thus depriving appellant of his FEPA claim without any fault or neglect on his part. The Court held that the state’s post¬ deprivation tort claims procedure (for the negligence of some state employee) was a constitutionally inadequate remedy. What the appellant in Logan sought was to have his state-created FEPA claim (a species of property) heard; the state’s procedural rules had rendered the negligence of a state employee a source of irreparable harm to the interest in that hearing. Thus the relevant deprivation in Logan — the use of a state rule to make a public employee’s negligence the basis for destroying an indi¬ vidual’s property — was caused not by a random and unauthorized act alone but rather by an "established state procedure” that lacked adequate safeguards against error. In fact, the appellant’s claim was characterized as "challenging not the Com¬ missioner’s error [as such] but the 'estab¬ lished state procedure’ that destroys his entitlement without according him proper procedural safeguards.” Logan, 455 U.S. at 422. It followed that there was no post¬ deprivation remedy afforded by the state that satisfied the requirements of procedu¬ ral due process.

728

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Ch. 10

official duties — as the Court was later to hold in Daniels v. Williams 54 and Davidson v. Cannon.™ It is quite another thing to suggest that even an intentional abuse of state authority cannot inflict any constitu¬ tional injury unless and until the state has failed to provide redress. To be sure, an intentional taking of property by the state for public use, when challenged only under the just compensation clause, is not a violation at all unless just compensation is in fact subsequently denied by state authorities. But that is the case only because the right at issue in such an instance is the right not to have the government take one’s property ''without just compensation.” Although it therefore seems correct to say that ''Parrott’ s reasoning applies ... by analogy because of the special nature of the Just Compensation Clause,” 56 the casual extension of that analogy in Hudson to other categories of intentional injury seems problematic in the extreme, unless carefully confined to the kind of injury to property involved on the facts of

Hudson

itself.57

At least some intentional abuses of a state agent’s authority — such as the killing of a prisoner after arrest by a state sheriff in the landmark case of violate procedural tion relief (e.g., a doer), despite the

Screws v. United States 58 — must surely be deemed to due process despite the availability of post-depriva¬ wrongful death action, or prosecution of the wrong¬ absence of any state policy encouraging or condoning

the abuse (no such policy despite the impracticality tion process for the sort act that was involved in

was found or even alleged in Screws 59), and of asking the state to guarantee pre-depriva¬ of obviously unauthorized and unpredictable Screws. Nor does it seem plausible to limit

Screws to cases in which state officials abuse their authority by in¬ flicting the ultimate deprivation and, in effect, serving as executioners. Certainly a police officer’s deliberate and unauthorized decision to inflict a severe beating on someone he has just arrested,60 or indeed to destroy such a person’s property, rather than to await the usual processes of trial and sentencing, constitutes a violation of procedural due process complete when it occurs, regardless of the avenues of redress available under state law. Dirty Harry violated the Constitu¬ tion even if the state made it possible for his victims to sue him. Any 54. 106 S.Ct. 662 (1986). See § 10-7, supra, note 6. 55. 106 S.Ct. 668 (1986). See § 10-7, supra, note 7. 56. Williamson County Regional Plan¬ ning Commission v. Hamilton Bank, 473 U.S. 172, 195 (1985) (claim of taking with¬ out just compensation is "premature” until the property owner "has used the [stateprovided] procedure and been denied just compensation”). 57. Cf. Bonner v. Coughlin, 517 F.2d 1311, 1318-1320 (7th Cir. 1975) (per Ste¬ vens, Circuit Judge), modified en banc, 545 F.2d 565 (7th Cir. 1976), cert, denied 435 U.S. 932 (1978). See also Ingraham v. Wright, 430 U.S. 651, 700-703 (1977) (Ste¬ vens, J., dissenting).

58. 325 U.S. 91, 93 (1945) (holding that such a killing deprived the prisoner of the right to trial and thus subjected the sheriff to federal criminal prosecution under 18 U.S.C. § 242). 59. Although the Court found no offi¬ cial state policy encouraging behavior such as this sheriffs, it is entirely possible that the Court may have imagined a skewing of the system toward implicitly condoning the violent behavior of a white sheriff toward black prisoners, with white juries excusing such behavior, in Georgia in the 194Q’s. 66. If imposed as part of a sentence, such punishment would violate the eighth amendment’s prohibition against "cruel and unusual punishment.” Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) (per Blackmun, Circuit Judge).

729 MODEL OF GOVERNMENTAL REGULARITY 4 1 § 10 contrary intimation in the needlessly broad language of Hudson ought to be regarded as dictum, and should be reconsidered when a suitable case presents itself. At the end of this section, we

Parratt and Hudson

return to the question whether

could possibly stand for the sweeping proposition

that procedural due process is never violated provided the state’s legal system as a whole provides a constitutionally acceptable set of reme¬ dies. Before addressing that broad issue, we turn first to a question raised even when it is clear that some sort of post-deprivation remedy is all that procedural due process demands. In such situations, it is important to recognize that the state’s mere provision of some post¬ deprivation remedy leaves open the question whether the particular remedy provided is constitutionally adequate. The adequacy of post¬ deprivation process is most often called into question on the ground that, even if affording relief of the right sort, it does not do so "at a meaningful time;” 61 "[a]t some point, a delay in the post-termination hearing would [itself] become a constitutional violation.” 62 In Barry v.

Barchi,63 a horse trainer’s license was suspended without a pre-suspen¬

sion hearing after a urinalysis indicated that his horse had been drugged during a race. The New York statute pursuant to which his

license was suspended provided for a subsequent administrative hear¬ ing, but it "neither on its face nor as applied in this case, assured a prompt hearing and prompt disposition of the outstanding issues be¬ tween [the horse trainer] and the State.” 64 The Court held that, because those subject to suspension under this statute have a weighty interest in the prompt resolution of the controversy, and because there is "little or no state interest . . . in an appreciable delay in going forward with a full hearing,” 65 the statute does not comport with the requirements of due process inasmuch as it provides for an indefinite delay between suspension and hearing — a delay during which the full penalty of the suspension could be irreparably and mistakenly suffered before any hearing had been held.66 Under less egregious circumstances, however, the length of the delay which due process deems tolerable would necessarily depend upon the facts of each particular case.67 As a result of this fact-specific approach, the decisions of the Court offer no "rule” 68 other than a four61. Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

62. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 547 n. 12 (1985) (citing Barry v. Barchi, 443 U.S. 55, 66 (1979) ) (recognizing as a separate claim respondent’s allegation of a distinct due process violation in administrative delay).

63. 443 U.S. 55 (1979). 64. Id. at 66. 65. Id. 66. But see Mackey v. Montrym, 443 U.S. 1, 29 n. 7 (1979) (Stewart, J., dissent¬ ing).

67. See United States v. $8,850 in Unit¬ ed States Currency, 461 U.S. 555, 565 Cf .A rn et tv .K e

(1983); Cleveland Board of Education v. Loudermill, 470 U.S. at 557 (Brennan, J., concurring in part and dissenting in part).

19

(1

(W

J.

co

in pa rt tie p u an di 4) ( o a s r f n a t ap , rt tod sscse pu topr wrhin ov atu¬50 ) n ov i g ry er rs heti ua ’' pe omfeng ap mo al ch th th nt tva E re an4 morce Mapea Ur.ee k. e l 2 n l d 4 n ride 31 th (t1 (1 th tso 11 in re S. 0- ew ce 9 s 97 l d geay b ii of de ”) 6) on Sos mo Se e , nt cu ci ne v $ ptm¬ pl cisi; ap U S al n h ri t fi. 8 i ty at4e in citUn on proSt Cu ite U.ts ,85 5 6 s 05 lyi veat S. 1 r d te( d)es d ren b (1 s of ei el d18 et ; 9 c 8 z a y cu 3 t f o,f wae ci fo u -amn rf re r ) odnn hee iliny en vil pr re C eiBo g t o x l th ta ce oc nc ev of Eede y v. Lo ss su el (9 urerd pr an ud iv udci -m a d er e); antg on mi io th l n l, 4

97

hi

,

nc

730

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OF GOVERNMENTAL

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Ch. 10

factor test for evaluating the constitutionality of the delay between the deprivation and the post-deprivation hearing: as described in United

States v. $8,850 in United States Currency ,69 the test calls for balancing of the length of the delay, the reasons justifying it, the "claimant’s assertion of the right to a judicial hearing,” 70 and the prejudice to the claimant resulting from the delay.71 We return, then, to the broadest question posed by the entire series of decisions assessing the adequacy of post-deprivation remedies in various circumstances, including the cases holding that there are situa¬ tions in which only a suitable post-deprivation remedy is required by due process. Should these cases be thought to establish a general principle that a state violation of procedural due process is never "complete unless and until [the state] provides or refuses to provide a suitable post-deprivation remedy”? 72 Presumably not. For there is a long and venerable line of precedent holding that an abuse of state power may violate the due process clause even where the state provides fully adequate procedures for review and redress. In Ex parte Virgin¬

ia ,73 the Supreme amendment

Court held that the provisions of the fourteenth

are addressed not only to the states as states , but also to

their agents: "Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law . . . violates the constitutional inhibition [of the four¬ teenth amendment]; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.” 74 This principle was reaffirmed by the Court in Home Telephone & Telegraph

Co. v. Los Angeles ,75 when the Court noted that, where a state agent "in

the exercise of the authority with which

he is clothed misuses the

power possessed to do a wrong forbidden by the [Fourteenth] Amend¬ ment, inquiry concerning whether the State has authorized the wrong is irrelevant.” 76 Thus "the Federal judicial power is competent to afford redress for the wrong” 77 in such an instance without a declara¬ tion from the state court that the acts were authorized. More recently, in Monroe v. Pape,™ the Court held that "Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” 79 The Court added that "[i]t is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to delay not unconstitutional where there was no other indication that the wait was prolonged and where it stemmed in part from the thoroughness of the procedure). 69. 461 U.S. 555, 564 (1983).

72. Hudson,

468 U.S. at 533.

73. 100 U.S. 339 (1879). 74. Id. at 347. 75. 227 U.S. 278 (1973). See discussion in § 18-4, infra.

70. Id. at 568-569. 71. This four-factor balancing test was first set forth by the Court in Barker v. Wingo, 407 U.S. 514 (1972), to assess claimed violations of the Sixth Amend¬ ment right to a speedy trial.

76. Id. at 287. 77. Id. 78. 365 U.S. 167 (1961). 79. Id. at 171-172.

MODEL

OF GOVERNMENTAL

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731

§ 10-14 the state remedy, and the latter need not first be sought and refused

before the federal one is invoked.” 80 How, then, are we to account for the seemingly contrary view taken in Parratt , and for the statement by the Hudson Court that, until post-deprivation relief is sought and refused, "the state’s action is not complete”? 81 The answer must be that there are rights secured by the Constitution which cannot be said to have been violated at all until relief is sought from, and denied by, the state — and that the Parratt and Hudson decisions apply only to such rights. Such rights include, for example, the right not to be deprived of private property for public use without just compensation,82 and the right — when the requirement of a pre-deprivation hearing is obviated by impossibility,83 impracticabil¬ ity,84 or exigent circumstances 85 — not to be deprived of property with¬ out a suitable pos£-deprivation hearing. After all, when there is no right to a pre-deprivation hearing, it is hardly surprising that, absent a refusal to provide an adequate post-deprivation hearing, no right at all may have been violated. But there is nothing in the Supreme Court’s decisions to support the view that all procedural rights are of this character. For example, the right to a fair trial before an impartial judge86 is a right whose violation should be deemed to be complete when punishment has been meted out by a state official without any trial,87 or when a trial has been held that did not meet basic standards of fairness. The right to a fair trial is just that — a right to a fair trial , and not merely a right to fairness in the state’s processes of review at some point before the Supreme Court’s certiorari jurisdiction is in¬ voked.88 80. Id. at 183 (unreasonable search and seizure by Chicago police officers acting in violation of Illinois law). 81. Hudson,

468 U.S. at 533.

82. See, e.g., Williamson

County Re¬

gional Planning Commission v. Hamilton Bank, 473 U.S. 172, 195 (1985); Hudson, 468 U.S. at 539 (O’Connor, J., concurring) (no unconstitutional taking results if just compensation is provided). Cf. Barney v. New York, 193 U.S. 430 (1904) (dismissing federal suit seeking to enjoin city’s railroad construction as a deprivation of property). 83. See, e.g., Parratt v. Taylor, 451 U.S. 527 (1981).

84. See, e.g., Ingraham v. Wright, 430 U.S. 651 (1977).

85. See, e.g., North American Cold Stor¬ age v. Chicago, 211 U.S. 306 (1908), dis¬ cussed in note 17, supra. 86. See, e.g., Ward v. Monroeville, 409 U.S. 57, 61-62 (1972); In re Murchison, 349 U.S. 133 (1955); Turney v. Ohio, 273 U.S. 510 (1927), discussed in § 10-16, infra.

87. See Screws v. United States, 325 U.S. 91 (1945), supra, note 58. 88. The

Fifth Circuit took a contrary

position on this issue in Holloway v. Walk¬ er, 784 F.2d 1287, 1294 (5th Cir. 1986), cert.

denied 107 S.Ct. 571 (1986). Because a civil judgment of a state court cannot be set aside in an original federal action, see Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Ap¬ peals v. Feldman, 460 U.S. 462 (1983), even a reversal of the Fifth Circuit’s extension of Parratt and Hudson would, as a practi¬ cal matter, leave litigants complaining of unfair state trials in civil cases with no alternative to direct review in the state’s appellate courts, with ultimate review in the Supreme Court by certiorari, if such litigants are to recover anything beyond nominal damages for the deprivation of unfairness as such under Carey v. Piphus, 435 U.S. 247 (1978) (discussed in § 10-7, supra). But cf. Dennis v. Sparks, 449 U.S. 24, 25 (1980) (holding § 1983 action in fed¬ eral district court available against private co-conspirators of state trial judge alleged to have corruptly issued injunction against the federal plaintiffs, where the injunction had been "dissolved by [a state] appellate court” before the § 1983 action was filed, and where the relief sought in the § 1983 action thus presumably did not entail re¬ viewing the concededly invalid state court injunctive decree). Whether Dennis v. Sparks would be reaffirmed after Parratt and Hudson, particularly in light of Feld-

732 § 10-15. Where

MODEL

OF GOVERNMENTAL

Current Doctrine: Issues Standards of Proof

REGULARITY

of Formality,

Ch. 10

Content,

and

due process continues, even after Paul u. Davis,1 Ingraham

v . Wright,2 Parratt v. Taylor , 3 and Hudson

v. Palmer 4, to mandate

a

hearing within the government agency involved in inflicting a depriva¬ tion, the formality of the procedures employed by the agency may vary widely with the circumstances.5 Given the importance of the factual background in determining the procedures required to achieve the Court’s instrumental objective of insuring accuracy, this necessarily general discussion can only outline the procedural issues whose specific resolution will necessarily turn on the context of particular cases. At the core of the procedural due process right is the guarantee of an opportunity to be heard and its instrumental corollary, a promise of prior notice.6 The constitutionality of a particular notice mechanism is man’s resurrection of Rooker, is an open question inasmuch as the only issue litigat¬ ed in Dennis and expressly addressed by the Supreme Court in that case was the question whether the private individuals who conspired with the state trial judge

ensure that the subpoenas comply with the standards set forth by the Court in United States v. Powell, 379 U.S. 48 (1964) (hold¬

could be deemed

dicates no legal rights ...” 467 U.S. at 742, citing Hannah v. Larche, 363 U.S. 420, 440-43 (I960)). See also Texaco, Inc. v. Short, 454 U.S. 516 (1982), upholding a

to have acted "under color

of law.”

-15 1. 424 U.S. 693 discussed § 10(1976),

in

§ 10-14, supra. 2. 430 U.S. 651 (1977), discussed

in

§ 10-14, supra. 3. 451 U.S. 527 (1981). 4. 468 U.S. 517 (1984). 5. See, e.g., Hannah v. Larche, 363 U.S. 420, 442 (1960). See generally Friendly, "Some Kind of Hearing,” 123 U.Pa.L.Rev. 1267 (1975). 6. Notice must include not only infor¬ mation that a hearing is about to occur but information as to what the hearing will entail — including both "the nature of the charges [and] also . . . the substance of the relevant supporting evidence.” Brock v. Roadway Express, 107 S.Ct. 1740, 1743 (1987) (Marshall, J., announcing judgment, joined by Blackmun, Powell, and O’Connor, JJ.); accord, id. at 1751 (Brennan, J.); id. at 1744 (Stevens, J.). Nothing less permits the person threatened with deprivation to prepare sufficiently to avoid undue risk of an erroneous outcome. Apart from such instrumental aspects of the issue of notice, the Court in several recent cases has focused on which affected individuals or entities are entitled to no¬ tice. For instance, in Securities and Ex¬ change Commission v. Jerry T. O’Brien, Inc., 467 U.S. 735 (1984), a unanimous Court, held that the "targets” of nonpublic SEC investigations have no right to notice when third parties are issued subpoenas in the investigation so that such targets can

ing that "[t]he Due Process Clause is not implicated under such circumstances be¬ cause an administrative investigation adju¬

state statute providing that severed miner¬ al interests not used for a 20-year period automatically lapse and revert to the sur¬ face owner unless the owner of the mineral rights, before the expiration of the 20-year period (or before the end of a two-year grace period from the time of the effective date of the act) filed in the county record¬ er’s office to preserve his interest. The Court found no constitutional requirement that the state should have informed the mineral rights owners of the requirements of the new law, adding that the 2-year grace period was sufficient to allow those affected by the statute to become familiar with it. The Court also refused to find that notice should have been given the mineral rights owners before their rights were to lapse, noting that "the full proce¬ dural protections of the Due Process Clause” would be provided before judgment would enter in any subsequent quiet title action. Id. at 534. The Court reached a different result in Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983), where the Court held that, "[s]ince a mortgagee clearly has a legally protected property interest, he is entitled to notice reasonably calculated to apprise him of [an] impending tax sale,” id. at 798. See discussion in text at note 26, infra. In one case, the Court upheld a state statute that conditioned the right to re¬ ceive notice on whether the party seeking it had satisfied statutory requirements en-

MODEL

OF GOVERNMENTAL

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733

§ 10-15 not to be judged by its actual success — whether an individual or group is in fact notified — but turns instead on whether the chosen method is "reasonably calculated, under all the circumstances, to apprise interest¬ ed parties of the pendency of the action and afford them an opportunity to present their objections.” 7 In a series of cases, the Supreme Court has examined the type of notice to be given and has generally required that, where a significant interest is at stake, there must be greater certainty that notice will be effective. In Memphis Light , Gas, & Water Division v. Craft* for instance, the Court held that mailed notice from a utility company threatening to terminate service was constitutionally deficient where it failed to advise customers of the proper procedures for protesting the utility’s actions. The Court held that the notice provided failed to comport with the dictates of Mullane because it "was not 'reasonably calculated’ to inform [consumers] of the availability of 'an opportunity to present their objections’ to their bills,” 9 adding that "[n]otice in a case of this kind does not comport with constitutional requirements when it does not advise the customer of the availability of a procedure for protesting termination of utility service as unjustified.” 10 Emphasizing the need for ensuring that due process requirements remain flexible to respond to a variety of situations,11 the Court noted that, although the chal¬ lenged notice "may well have been adequate under different circum¬ stances,” in this case it was not. Because the notice at issue "is given to thousands of customers of various levels of education, experience and resources,” and since it concerns "electrical service, the uninterrupted continuity of which is essential to health and safety,” it must clearly inform consumers "of the availability of an opportunity to present their complaint[s]” and tell them "where, during which hours of the day, and before whom disputed bills appropriately may be considered.” 12 titling him to such information. In Lehr v. Robertson, 463 U.S. 248 (1983), the Court denied the putative father of an illegiti¬ mate child an absolute right to notice of adoption proceedings, holding, in an opin¬ ion by Justice Stevens, that the statute which required that putative fathers not meeting other statutory criteria file in a "putative father registry” to receive such notice did not deny the putative father his right to due process. The Court noted that, where the father of a child fails to develop "a relationship with his offspring . . . the Federal Constitution will not au¬ tomatically compel a State to listen to his opinion of where the child’s best interests lie.” Id. at 262. Chief Justice Burger and Justices Brennan, Powell, Rehnquist and O’Connor joined the Court’s opinion. Jus¬ tice White, joined by Justices Marshall and Blackmun, dissented.

8. 436 U.S. 1 (1978). Justice Powell wrote the majority opinion, in which Jus¬ tices Brennan, Stewart, White, Marshall and Blackmun joined. Chief Justice Bur¬ ger and Justice Rehnquist joined Justice Stevens’ dissent. 9. Id. at 14. 10. Id. at 14-15. 11. Id. at 15 n. 15, citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972), and Ma¬ thews v. Eldridge, 424 U.S. 319, 334 (1976). 12. Id. at 15 n. 15. Contrast the Court’s approach to adequacy of notice to prison¬ ers. In Greenholtz v. Inmates of Nebraska Penal and Cor. Complex, 442 U.S. 1 (1979), for example, the circuit court held that the due process clause required that a Nebras¬

e 0 Se 55

5, 54). 0 95 (1 U.S. 4 31 380 6, 30 o, nz Ma S. U. v.

9 33 ng ro ., Co mst Ar . t 5) us so 96 Tr al (1

ka prison inmate eligible for parole "re¬ ceive written notice of the precise time of the hearing reasonably in advance of the hearing, setting forth the factors which may be considered by the Board in reach¬ ing its decision.” Id. at 6. Nebraska re¬ quired only that the Board of Parole in-

734

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Ch. 10

The dissent attacked the decision as imposing an unnecessary and paternalistic burden on the state, arguing that, although the additional information to be included in the notice would be "helpful”, it was not constitutionally required: "a homeowner surely need not be told how to complain about an error in a utility bill . . . our democratic govern¬ ment would cease to function if, as the Court seems to assume, our citizenry were

unable to find such information

on their own

initia¬

tive.” 13 The majority disagreed, stressing that the magnitude of the interest at stake demanded that additional steps be taken, and arguing that "[t]he dissent’s restrictive view of the process due . . . would erect an artificial barrier between the notice and hearing components of the constitutional guarantee

of due process.” 14

Similarly vital interests supported the Court’s requirement for more adequate notice in Greene v. Lindsey N There the Court was presented with a challenge to a state statute regulating service of process in forcible entry and detainer actions, which allowed notice to be posted on the resident’s apartment door if a single attempt at personal service failed to find the defendant or a member of his family over the age of 16 on the premises. The record indicated, however, that form the inmate of the month in which his final parole hearing would be held, posting the exact time of the proceeding on the day of the hearing. The Supreme Court re¬ versed the circuit court, finding the state procedure constitutionally adequate since it allowed the inmate to obtain letters or statements on his own behalf and since "[t]here is no claim that either the timing of the notice or its substance seriously prejudices the inmate’s ability to prepare adequately for the hearing.” Id. at 14 n. 6. Four Justices dissented on the notice is¬ sue. Justice Marshall, joined by Justices Brennan and Stevens, disputed the majori¬ ty’s reasoning, arguing that the inmates "plainly have contended throughout this litigation that reasonable advance notice is necessary to enable them to organize their evidence, call witnesses permitted by the Board, and notify private counsel allowed to participate in the hearing,” id. at 37-8, and adding that, "[gjiven the significant private interests at stake, and the impor¬ tance of reasonable notice in preserving the appearance of fairness, I see no reason to depart from this Court’s longstanding recognition that adequate notice is a fun¬ damental requirement of due process.” Id. at 38. Justice Powell’s dissent pointed out that, under the majority’s rationale, the right of an inmate to present evidence, call witnesses and be represented by private counsel "is reduced or nullified completely by the State’s refusal to give notice of the hearing more than a few hours in ad¬ vance,” id. at 21, and added that "the courts below correctly determined that the current notice procedure undermines the prisoner’s ability to present his case ade¬

quately at the final review hearing . . . [a] conclusion according] with common sense.” Id. Even when a prisoner is notified in ad¬ vance of the date of a hearing, his opportu¬ nity to participate may be impaired if he is segregated from the rest of the prison pop¬ ulation pending the proceeding. In Hughes v. Rowe, 449 U.S. 5 (1980), the Court, in a per curiam, opinion, reversed, inter alia, the circuit court’s dismissal of a prisoner’s claim pre-hearing tion violated his that due process rightssegrega¬ in the absence of any showing of an emergency situation justifying the segregation. In dissent, Justice Rehnquist argued that the Court should defer to the prison officials’ determination of the need to segregate the inmate, adding that their decision demon¬ strated no abuse of discretion. Id. at 2021. He went on to argue that even if emergency conditions did not exist to justi¬ fy the state’s action, segregation of the inmate "was fully justified in order to pro¬ tect the integrity of the later hearing” because "[permitting inmates to return to the general prison population following a serious breach of prison discipline or viola¬ tion of prison rules poses difficulties in terms of alibi construction and witness in¬ timidation.” Id. at 22. 13. Memphis,

436 U.S. at 26.

14. Id. at 14-15 n. 15. 15. 456 U.S. 444 (1982). Justice Bren¬ nan wrote for a majority that included Justices White, Marshall, Powell, Blackmun and Stevens. Justice O’Connor dis¬ sented in an opinion joined by Chief Jus¬ tice Burger and Justice Rehnquist.

MODEL

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735

§ 10-15 the posted notices were at times removed from doors by children or other tenants; the appellee tenants, evicted after default judgments were entered against them and the period of appeal had lapsed, argued that they were thus deprived of due process because they had never seen the notices. After declining to accept the argument

that posted notice in an in

rem proceeding is " ipso facto constitutionally adequate,” 16 the Court, opting to focus on the importance of a resident’s interest in remaining at home,17 held that posted notice was inadequate under the circum¬ stances of the case. Although recognizing that the use of posted notice was reasonably based on the assumption that "a property owner will maintain superintendence of his property,” 18 the Court nevertheless held that posting under the circumstances presented would predictably result, too often, "in a failure to provide actual notice to concerned.” 19 To the Court, "the failure to effect personal the first visit [could] hardly [be taken to] suggest[ ] that the abandoned his interest in the apartment such that mere

the tenant service on tenant has pro forma

notice might be held constitutionally adequate.” 20 Although stating that it was not mandating the type of notice required, the Court observed that "[n]otice by mail in the circumstances of this case would surely go a long way toward providing the constitutionally required” notice,21 adding that "we have no hesitation in concluding that posted service accompanied by mail service, is constitutionally preferable to posted service alone.” 22 The dissent asserted that the majority, in effectively prescribing mailed notice,23 ignored the fact that the law at issue was designed "for quickly determining whether or not a landlord has a right to immediate possession of leased premises and, if so, for enabling the landlord speedily to obtain the property in wrongful possession,” 24 and errone¬ ously relied upon conflicting testimony "of a few . . . process serv¬ ers” 25 in determining that posted service was constitutionally ineffec¬ tive. The fact that a significant interest was imperilled by state proce¬ dures seemed

to guide the Court’s decision in Mennonite

Missions v. Adams™

Board

of

even though the Court suggested that the actual

risk of deprivation may have been relatively slight. At issue was a state statutory scheme governing the sale of land for non-payment of property taxes. Under state law, owners of the property were notified by certified mail of the tax sale, but mortgagees of those owners had to rely upon posted and published notice. The Supreme Court, in striking down

the scheme, reasoned that, "[s]ince a mortgagee

16. Id. at 450. 17. Id. at 450-51. 18. Id. at 451. 19. Id. at 453. 20. Id. at 454. 21. Id. at 455. 22. Id. n. 9 (emphasis in original). 23. Id. at 459 n. 2.

clearly has a

24. Id. at 457. 25. Id. at 458. 26. 462 U.S. 791 (1983). The majority opinion by Justice Marshall was joined by Chief Justice Burger and Justices Brennan, White, Blackmun and Stevens. Justice O’Connor wrote in dissent, joined by Jus¬ tices Powell and Rehnquist.

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iegally protected property interest, he is entitled to notice reasonably calculated to apprise him of an impending tax sale.” 27 The Court added that, "[w]hen a mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supple¬ mented by notice mailed to the mortgagee’s last known address, or by personal service. But unless the mortgagee is not reasonably identifi¬ able, constructive notice alone does not satisfy the mandate of MullaneF 28 Even though the Court recognized that many of the lenders affected by its ruling were '"sophisticated creditors [who] have means at their disposal to discover whether property taxes have not been paid and whether tax sale proceedings are therefore likely to be initiated,” 29 the majority held that mailed notice was still required; the fact that the state is required under the dictates of the due process clause to take extraordinary measures in providing notice to inexperienced or incom¬ petent people in other contexts30 does not concomitantly relieve the state of its duties where many of the recipients of the notice are likely to be more sophisticated: "Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” 31 The fundamental procedural due process right to a hearing is generally found to embrace the right to present evidence32 and to confront and cross-examine adverse witnesses.33 But the Supreme Court has held that, in extraordinary circumstances, due process per¬ mits the limitation, or even the total denial, of these evidentiary safeguards. In Wolff v. McDonnell , for example, the Court held that cancella¬ tion of a prisoner’s "good time” credits as a punishment for misconduct is valid only if carried out in a manner satisfying procedural due process, but the Court went on to rule that the prison inmate "should be allowed to call witnesses and present documentary evidence in his defense [only] when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” 34 Further¬ more, a balancing of "the inmate’s interest in avoiding loss of good time against the needs of the prison” resulted in a conclusion that "at the present time” the Constitution "should not be read to impose” proce27. Id. at 798.

formed of their rights, id. at 808, as well as

28. Id.

the Court’s "fashioning a broad rule for 'the least sophisticated creditor’ ... ig¬ nores the well-settled principle that 'proce¬ dural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of

29. Id. at 799. 30. Id. 31. Id. at 800 (emphasis in original). The dissent criticized the Court for pre¬ scribing a general rule "[without knowing what state and individual interests will be

cases, not the rare exceptions.’ ” Id. at 803, citing Mathews, 424 U.S. at 344.

at stake in future cases.” Id. at 802. For the dissenters, "the constitutional obliga¬ tion imposed upon the State may itself be

32. See, e.g., Morgan 304 U.S. 1, 18 (1938).

v. United States,

defined by the party’s ability to protect its interest,” id. at 803, and the Court’s failure to require mortgagees to expend even "a minimum amount of effort” to stay in¬

33. See, e.g., Green U.S. 474, 497 (1959).

v. McElroy,

34. 418 U.S. 539, 563-S4 (1974).

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§ 10-15

dures of confrontation and cross-examination

upon prison disciplinary

hearings; if these procedures "were to be allowed as a matter of course, . . . there would be considerable potential for havoc inside the prison walls.” 35 Similarly, the Court’s instrumental concentration on utilitarian interest-balancing and accuracy to the exclusion of all intrinsic reasons for a hearing36 has led it to extend the Wolff approach to school hearings on disciplinary matters.37 In Goss v. Lopez , the due process requirement of "at least an informal give and take” left to the discre¬ tion of the decisionmaker the choice of whether to allow cross-examina¬ tion or the presentation of witnesses.38 Moreover, although the right to present evidence usually includes a right to make an oral presenta¬ tion 39 the Supreme Court has suggested that, where administrative rule-application turns primarily on the evaluation of technical matters, the administering agency may validly limit evidentiary presentations to documentary submissions.40 And Judge Henry Friendly proposed that courts go further and abandon any general presumption of a need for oral presentation of evidence, for cross-examination, or for the calling of witnesses, replacing that presumption with an ad hoc approach to assessing the need for, and merits of, any of these safeguards.41 35. Id. at 566-68. Accord, Hewitt v. Helms, 459 U.S. 460 (1983) (informal, nonadversarial review suffices for decision that prison inmate poses security threat and for decision to confine inmate to ad¬ ministrative segregation pending miscon¬ duct investigation; inmate need not be giv¬ en opportunity to appear personally to present his case). See also, Ponte v. Real, 471 US 491 (1985) (where prison officials fail to call witnesses requested by an in¬ mate in a disciplinary hearing, burden of proof is on prison officials to show that their acts were not arbitrary or capricious; at some point, prison officials must express the reasons for their actions, but that ex¬ planation need not be in writing nor exist as part of the administrative record devel¬ oped at the hearing, but may be added to the record later or presented through testi¬ mony if the failure is challenged in court, and "so long as the reasons are logically related to preventing undue hazards to 'in¬ stitutional safety or correctional goals,’ the explanation should meet the Due Process requirements

as outlined in Wolff.’’).

36. See, e.g., Wolff, 418 U.S. at 557 (minimum procedures are necessary "to in¬ sure the state created right is not arbitrari¬ ly abrogated’’); Richardson v. Perales, 402 U.S. 389, 407 (1971) (analyzing the func¬ tional utility of cross-examination solely in terms of contribution to accuracy). See generally § 10-7, supra.

37. See, e.g., Goss v. Lopez, 419 U.S. 565, 579-80 (1975) ("The [due process] con¬ cern would be mostly academic if the disci¬ plinary process were a totally accurate,

unerring process, never mistaken, and nev¬ er unfair”). 38. 419 U.S. 565, 584 (1975). 39. See, e.g., Califano v. Yamasaki, 442 U.S. 682 (1979), in which the Court held, without dissent, that where an overpay¬ ment is made to a social security recipient, an oral hearing is required as a matter of procedural due process when one is re¬ quested by the recipient before the agency determines whether recoupment (by de¬ creasing future payments to which the claimant would otherwise be entitled) should be waived on the grounds that the overpayment was not the "fault” of the recipient and requiring recoupment would be "against equity and good conscience.” Unlike the determination of whether there actually was an overpayment, a finding which "involve[s] relatively straightfor¬ ward matters of computation for which written review is ordinarily an adequate means to correct prior mistakes,” id. at 696, matters like "fault”, "equity”, or "det¬ rimental reliance, usually require[ ] an as¬ sessment of the recipient’s credibility, and written submissions are a particularly in¬ appropriate way to distinguish a genuine hard Id. atluck 697. story from a fabricated tall tale.” 40. See Mathews v. Eldridge, 424 U.S. 319 (1976) (no oral hearing required prior to termination of social security disability insurance benefits on medical grounds). 41. See Friendly, supra note 5, at 1270, 1281, 1284-85. See also United States v. Florida East Coast Ry., 410 U.S. 224 (1973)

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Quite apart from whether the government

Ch. 10

may limit the manner

in

which an individual presents his or her case, "due process requires that there be an opportunity to present every available defense.” 42 But government nonetheless may validly limit the issues which individuals or groups can raise at a hearing held in advance of a proposed governmental action adversely affecting their interests, so long as (1) there exists an opportunity for a subsequent hearing at which the previously ignored issues can be aired, and so long as (2) some legiti¬ mate purpose is served by the postponement. Thus, for example, the Court has held that government "may exclude all [other] claims of . . . right from possessory actions, consistently with due process of law.” 43 Oregon eviction allowing

More recently, in Lindsey v. Normet44 the Court upheld an statute which limited the defenses tenants could raise in an action brought by landlords alleging nonpayment of rent, while tenants to litigate their right to damages or alternative relief

in their own subsequent actions.45 While the Supreme Court has frequently expressed the view that the "right to be heard would be, in many (opportunity to submit written comments satisfies due process requirements for rulemaking under 5 U.S.C. § 553(c) ). But see Subrin & Dykstra, "Notice and the Right to be Heard: The Significance of Old Friends,” 9 Harv.Civ.Rts. — Civ.Lib.L.Rev. 449, 471-72 (1974) ("The likelihood of accu¬ rate fact ascertainment in the absence of testimonial evidence, cross-examination, and an impartial decisionmaker is palpa¬ bly slim”); Mashaw, "The Supreme Court’s Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value,” 44 U.Chic.L.Rev. 28, 50 (1976) (oral presentation is fundamental prerequisite of due process hearing); Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970) ("Written sub¬ missions are an unrealistic option for most [welfare] recipients, who lack the educa¬ tional attainment necessary to write effec¬ tively and who cannot obtain professional assistance.”). The Court has indirectly limited the right to confrontation and cross-examina¬ tion by holding that the requirements of procedural due process were not violated by the admission into evidence, as reliable hearsay, of government-introduced medical reports at an administrative hearing on the question of a claimant’s eligibility for Social Security disability benefits. Rich¬ ardson v. Perales, 402 U.S. 389 (1971). Justice Blackmun’s majority opinion ob¬ served that, while the claimant plainly could not cross-examine the adverse medi¬ cal reports themselves, "the authors of these reports were known and were subject to subpoena and to the very cross-examina¬ tion that the claimant asserts he has not enjoyed.” Id. at 407. The Court also ar¬ gued that the "vast workings of the social

cases, of little avail if it did

security administration system make for reliability and impartiality in the consult¬ ant reports,” and that with "over 20,000 disability claim hearings annually, the cost of providing live medical testimony at those hearings, where need has not been demonstrated by a request for a subpoena, . . . would be a substantial drain on the trust fund and on the energy of physicians already in short supply.” Id. at 403, 406. Of course in the area of criminal prose¬ cutions, the sixth amendment provides that "the accused” is guaranteed "the right . . . to be confronted with the witnesses against him” and "to have compulsory pro¬ cess for obtaining witnesses in his favor.” These mandatory procedural requirements directly bind the federal government and indirectly bind the states through their incorporation in the fourteenth amend¬ ment due process clause. See, e.g., Wash¬ ington v. Texas, 388 U.S. 14 (1967) (right to compulsory process for obtaining witness¬ es); Pointer v. Texas, 380 U.S. 400 (1965) (right to confrontation, and thus cross-ex¬ amination). 42. American Surety Co. v. Baldwin, 287 U.S. 156, 168 (1932) (Brandeis, J.). 43. Bianchi v. Morales, 262 U.S. 170, 171 (1923) (Holmes, J.). 44. 405 U.S. 56 (1972). 45. This restriction on the issues raised in eviction proceedings is ordinarily justi¬ fied not only as a way of allocating eco¬ nomic advantages as between landlords and tenants, cf. Dandridge v. Williams, 397 U.S. 471 (1970), but also as a way of mak¬ ing formal proceedings more attractive to landlords, and thereby minimizing resort to self-help against tenants.

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not comprehend the right to be heard by counsel,” 46 and has firmly established a right to counsel in criminal proceedings,47 the Court has espoused a case-by-case approach in non-criminal cases. One case illustrating this observation is Vitek v. Jones ,48 in which the Court held that, when the state transfers a convicted felon from state prison to a mental hospital, due process demands that he be provided assistance in preparing his case. Four of the five Justices in the majority held that this meant that counsel would have to be appointed for indigent inmates in this situation,49 while the other justice, Justice Powell, concluded that the required assistance could be provided by "a qualified and independent adviser who is not a lawyer.” 50 The plurality distin¬ guished earlier cases which had "not required the automatic appoint¬ ment of counsel for indigent prisoners facing other deprivations of liberty,” 51 contending that "prisoners who are illiterate and uneducat¬ ed have a greater need for assistance in exercising their rights. A prisoner thought to be suffering from mental disease or defect requiring involuntary treatment probably has an even greater need for legal assistance, for such a prisoner is more likely to be unable to understand or exercise his rights. In these circumstances, it is appropriate that counsel be provided to indigent prisoners whom the state seeks to treat as mentally ill.” 52 The Court suggested the general contours of its approach to the right to counsel in civil cases in Lassiter v. Department of Social

Services,53 in which a 5-4 majority held that, although there is "a presumption

that an indigent litigant has a right to appointed counsel

when, if he loses, he may be deprived of personal liberty,” 54 no such right attaches simply because one is losing parental rights — on the theory that, "as a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel.” 55 This presumption can be 46. Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970), quoting from Powell v. Ala¬ bama, 287 U.S. 45, 68-69 (1932).

ing cancellation of prisoner’s good time credits, which determined when prisoner would be eligible for parole).

47. In criminal proceedings, the right

ted). 52. 445 U.S. at 496-97 (citations omit¬

"to have the Assistance of Counsel” is mandated by the sixth and fourteenth amendments. See, e.g., Argersinger v.

Hamlin, 407 U.S. 25, 37 (1972) (absent "a knowing and intelligent waiver, no person may be imprisoned for any offense whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial”); Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (if "any person hauled into court ... is too poor to hire a lawyer,” the government must provide free counsel). 48. 445 U.S. 480 (1980). 49. Id. at 496. These four were Justices Brennan, White, Marshall and Stevens. 50. Id. at 499.

51. Id. at 496, citing Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973) (rejecting gener¬ al requirement of counsel in probation rev¬ ocation hearings), and Wolff v. McDonnell, 418 U.S. 539, 569-70 (1974) (rejecting re¬ quirement of counsel in proceedings involv¬

53. 452 U.S. 18 (1981). Justice Stewart delivered the opinion of the Court, in which Chief Justice Burger and Justices White, Powell and Rehnquist joined. Chief Justice Burger also filed a concurring opin¬ ion. Justice Blackmun dissented in an opinion joined by Justices Brennan and Marshall. Justice Stevens dissented sepa¬ rately. 54. Id. at 26-27. 55. Id. at 26. The Court recalled that, in Gagnon v. Scarpelli, 411 U.S. 778 (1973), it had rejected any general right to counsel in probation revocation hearings inasmuch as the probationer possessed only a "condi¬ tional liberty” interest. Id. at 26, quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972). So far as the parent-child relationship is concerned, the Court evidently views mi¬ nors as in a state of continuing quasi-custo-

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rebutted, however, where an evaluation of the Mathews strates a need for appointed counsel.56

Ch. 10

criteria demon¬

In Goldberg v. Kelly ,57 for example, the Court held that, while government need not itself provide welfare recipients with publicly financed counsel at pre-termination hearings, government cannot deny recipients the right to secure for themselves the representation of counsel. In Wolff v. McDonnell , on the other hand, the Court deter¬ mined that inmate participants in prison disciplinary proceedings may be validly denied the right to counsel since "[t]he insertion of counsel into the disciplinary process would inevitably give the proceedings a more adversary character and tend to reduce their utility as a means to further correctional goals.” 58 Nevertheless the Court did declare in Wolff that, if "an illiterate inmate is involved,” or if the issue is complex, the inmate participant "should be free to seek the aid of a fellow inmate or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff.” 59 The Supreme Court has also held that the standards of proof with which courts are to evaluate potential deprivations of substantive interests serve important practical and symbolic purposes,60 and thus must comport with constitutional minima in civil as well as in criminal dy, whether by their parents (or guardians) or by the state. See Schall v. Martin, 467 U.S. 253, 265 (1984) (upholding preventive pretrial detention of juveniles in part on the theory that "juveniles, unlike adults, are always in some form of custody.”). Perhaps in part because of this notion, in Secretary of Public Welfare of Penn¬ sylvania v. Institutionalized Juveniles, 442 U.S. 640, 645 (1979), the Court similarly concluded that due process does not neces¬ sarily mandate legal counsel for a child " 'during all significant stages of the com¬ mitment process.’ ” Chief Justice Burger wrote for the Court, joined by Justices White, Blackmun, Powell, and Rehnquist. Justice Stewart concurred in the judgment. Concurring in part and dissenting in part, Justice Brennan, joined by Justices Mar¬ shall and Stevens, agreed that no preadmission appointment of counsel was required, but argued that the state’s post¬ admission procedures violated due process. For children under 13, the dissent argued that the state’s failure to provide either representation or "reasonably prompt post¬ admission hearings”, id. at 651, was uncon¬ stitutional under the rationale set forth in Justice Brennan’s opinion concurring in part and dissenting in part in Parham v. J.R., 442 U.S. 584 (1979). For juveniles over 13, the dissenters found that the cur¬ rent state practice, in which these juveniles are informed of their rights to a hearing and given the phone number of an attorney within 24 hours of admission, im¬

properly placed "the burden of contacting counsel and the burden of initiating pro¬ ceedings” upon the child. Id. at 651. Since "[m]any of the institutionalized chil¬ dren are unable to read, write, comprehend the formal explanation of their rights, or use the telephone . . . [f]ew will be able to trigger procedural safeguards,” id. at 651; thus, the dissent reasoned, "[i]f the children’s constitutional rights to represen¬ tation and to a fair hearing are to be guaranteed in substance as well as in form and if the commands of the Fourteenth Amendment are to be satisfied, then waiv¬ er of those constitutional rights cannot be inferred from mere silence or inaction .... Pennsylvania must assign each in¬ stitutionalized child a representative obliged to contact the child and ensure that the child’s constitutional rights are fully protected.” Id. at 651-2. 56. 452 U.S. at 31. 57. 397 U.S. 254 (1970). 58. 418 U.S. 539, 570 (1974). 59. Id. at 570. See also Bounds v. Smith, 430 U.S. 817 (1977) (right of access to courts requires prison authorities to as¬ sist inmates in filing of meaningful legal papers by providing prisoners with ade¬ quate law libraries or adequate assistance from law-trained persons). 60. Addington v. Texas, 441 U.S. 418, 427 (1979); Santosky v. Kramer, 455 U.S. 745, 764 (1982).

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cases.61 In passing upon the appropriate standard to be used in ordinary civil cases, the Supreme Court has followed the approach established in Mathews v. Eldridge ,62 balancing the public and private interests at stake along with the need to minimize erroneous decisions, with special attention devoted to proper placement of the risk of that error. In Addington

v. Texas,63 for example, the Court was presented with

a challenge to the use of a "clear, unequivocal, and convincing” stan¬ dard in an involuntary commitment case — a civil case in form, but one in which physical liberty was at stake. The appellant, ordered commit¬ ted to a state mental hospital after a jury found that he was mentally ill and required hospitalization for his own welfare or for the welfare of others, argued that a "beyond a reasonable doubt” standard should have been applied. In holding that only a "clear and convincing” 64 standard is required by due process, Chief Justice Burger, writing for a unanimous Court of those justices participating,65 held that, although the individual obviously has a strong interest in avoiding commit¬ ment — a "significant deprivation of liberty” 66 that can "engender ad¬ verse social consequences” 67 — the state’s countervailing interest in "providing care to its citizens who are unable because of emotional disorders to care for themselves,” 68 and in "protecting] the community from the dangerous tendencies of some who are mentally ill,” 69 coupled with the ability to reverse a commitment decision later found to be erroneous,70 argued for a measure of proof between the "preponder¬ ance” and "beyond a reasonable doubt” standards.71 Distinguishing 61. As to criminal cases, the basic re¬ quirement is that of proof beyond a reason¬ able doubt as to every element of the crimi¬ nal offense, even in a juvenile case, so long as a deprivation of liberty may be decreed as punishment for the offense. In re Winship, 397 U.S. 358 (1970). This standard has been interpreted to prohibit states from shifting to defendants the burden of proof on any element of the crime. See, e.g., Mullaney v. Wilbur, 421 U.S. 684 (1975) (state rule in murder cases conclu¬ sively assuming malice aforethought once the prosecution proved a killing to be in¬ tentional and unlawful, shifting the bur¬ den to the defendant to show that he acted

consideration of the factors identified in Eldridge

to determine

whether

a particu¬

lar standard of proof in a particular pro¬ ceeding satisfies due process.” 63. 441 U.S. 418 (1979). 64. The actual standard utilized by the trial court was "clear, unequivocal and convincing.” The Court noted that the Constitution required a standard greater than a preponderance, adding that the "de¬ termination of the precise burden equal to or greater than the 'clear and convincing’ standard which we hold is required ... is a matter of state law.” Id. at 433. 65. Justice Powell did not take part.

in the heat of passion on sudden provoca¬ tion to reduce the charge from murder to manslaughter, held an unconstitutional vi¬ olation of due process, the Court rejecting

66. Id. at 425.

the state’s argument that the principles of Winship were inapplicable since the level of intent was not part of the substantive law but rather an element relevant only in determining the appropriate sentence).

69. Id.

71. The Court’s justification for its choice followed a fine line. On the one

62. 424 U.S. 319 (1976). See Santosky, 455 U.S. at 754, where the majority noted that "the Court’s . . . decisions concern¬ ing constitutional burdens of proof have not turned on any presumption favoring any particular standard. To the contrary, the Court has engaged in a straightforward

hand, the Court indicated that the prepon¬ derance standard was inappropriate be¬ cause it "creates the risk of increasing the number of individuals erroneously commit¬ ted.” Id, at 426. On the other hand, a reasonable doubt standard over-compensat¬ ed for this tendency; the Court noted that,

67. Id. at 426. 68. Id.

70. Id. at 428-29.

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the punitive exercise of state power in criminal proceedings

and the non-punitive goals of the state in civil commitment matters,72 the Court refused to rely upon the reasonable doubt measure of proof, finding that the "lack of certainty and the fallibility of psychiatric diagnosis” 73 does not lend itself to such a fact-specific standard, and thus "may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment.” 74 On the other hand, a preponderance standard would not do because it improperly forces the individual "to share equally with society the risk of error when the possible injury to the individual is significantly greater than the harm to the state.” 75 Again applying the Mathews

test, the Court

in Santos ky v.

Kramer 76 held that a "clear and convincing” standard is constitutional¬ ly required in determining whether a child is to be considered "perma¬ nently neglected” by his natural parents, thus justifying the state’s ’'even though an erroneous confinement should be avoided in the first instance, the layers of professional review and observa¬ tion of the patient’s condition, and the concern of family and friends will provide continuous opportunities for an erroneous

carceration Jones

could have

served in

prison for his offense, he demanded uncon¬ ditional release or recommitment pursuant to civil commitment proceedings which re¬ quired clear and convincing proof of mental illness or dangerousness. Justice

commitment to be corrected,” id. at 42829, adding that, unlike the criminal con¬

Powell, writing for a majority that includ¬ ed Chief Justice Burger and Justices

text, "[i]t cannot be said . . . that it is much better for a mentally ill person to 'go free’ than for a mentally normal person to be committed.” Id. at 429. 72. Id. at 428.

White, Rehnquist and O’Connor, rejected Jones’ argument. The Court emphasized the fact that the Court in Addington was

73. Id. at 429. 74. Id. at 432. The Court also noted that the reasonable doubt standard is a "unique” one, "regarded as a critical part of the 'moral force of the criminal law’ ”, and should not be applied "too broadly or casually in noncriminal cases.” Id. at 428 (citation omitted).

when "the acquitee himself advances in¬ sanity as a defense and proves that his criminal act was a product of his mental illness, there is good reason for diminished concern as to the risk of error.” Id. at 367 (original emphasis) (footnotes omitted). The Court added that the defendant’s own raising of the insanity defense "diminishes the significance of the deprivation” be¬ cause "[a] criminal defendant who success¬ fully raises the insanity defense necessar¬ ily is stigmatized by the verdict itself, and thus the commitment causes little addi¬ tional harm.” Id. at 367 n. 16. In dissent, Justice Brennan, joined by Justices Mar¬ shall and Blackmun, argued that the pro¬ cedures at issue unconstitutionally excused the government from fulfilling its proper burden under Addington, id. at 382, assert¬ ing that the majority opinion "at most support[s] deferring Addington' s due pro¬ cess protections . . . for a limited period only, not indefinitely.” Id. at 386. Justice Stevens dissented separately, asserting the last point.

by e es s. t ic en hi st ev Wed Ju St n oi by dj es ic an st Ju , ed in d jo , te ll nd we saen Pto, dis ur Co r ge e lu,r t th alB s sh ui r fo Mar nq h e . Re tic nor s e Ju Con ot ’ wr n, eO na ic f n en st ie d mu Br Ju Ch an

75. Id. at 427. Addington, however, does not stand for the proposition that a clear and convincing standard applies in all cases in which civil commitment may result. In Jones v. United States, 463 U.S. 354 (1983), the Court upheld a District of Columbia statutory scheme under which a defendant in a criminal case could be ac¬ quitted if he proved, by a preponderance of the evidence, that he was insane at the time of the crime. (Indeed, the Jones Court recalled that, under Leland v. Ore¬ gon, 343 U.S. 790, 799 (1952), a defendant may be required to prove his insanity by a higher standard than a preponderance. 463 U.S. at 368 n. 17.) Upon a finding of insanity, the defendant in Jones was com¬ mitted to a state mental hospital, but failed to secure his release when he was unable to show, again by a preponderance, that he was no longer mentally ill or dan¬ gerous at a mandatory hearing held within fifty days of confinement. After a year of commitment, the maximum period of in¬

particularly concerned with the risk of er¬ ror when it erected the clear and convinc¬ ing standard and the further fact that,

§ 10-15 termination

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743

of their parental rights. The Court found the private

interest of the parents 77 in maintaining custody a "commanding” one, especially considering that, "[o]nce affirmed on appeal, a New York decision terminating parental rights is final and irrevocable.” 78 Stressing the risk of error prong of the Mathews test, the Court held that "numerous factors combine to magnify the risk of erroneous factfinding.” 78 Moreover, since "[t]he state’s ability to assemble its case almost inevitably dwarfs the parent’s ability to mount a de¬ fense,” 80 a significant risk of error was created when "[c]oupled with a 'fair preponderance of the evidence’ standard.” 81 Recognizing the state’s own interest in "preserving and promoting the welfare of the child,” 82 and noting that stricter standards of proof do not impose fiscal burdens of the sort entailed when hearings or court-appointed counsel are mandated, the Court held that a stricter standard of proof would serve the basic interests of all involved.83 The dissent replied that the standard of proof should not be evaluated in isolation, arguing that "[c]ourts must examine all procedural protections offered by the State, and must assess the cumulative effects of such safeguards,” 84 lest state experimentation be threatened and a stultifying "federalization of family law” be inaugurated.85 The dissent also attacked the majority’s failure to weigh the independent interests of the child in the balance.86 In the dissent’s view, adding those interests into the balance would support a conclusion that the risk of error might be evenly distributed between

the parties without offending due process.87

Turning from the calibrations involved in setting suitable stan¬ dards of proof to a more elemental aspect of procedural due process, we observe, in closing this section, that the Supreme Court has closely 77. The Court defined the private inter¬ est involved as that of the parents only, explaining that, although "the child and his foster parents are also deeply interest¬ ed in the outcome,” id. at 759, the fact that the "factfinding hearing pits the State di¬ rectly against the [natural] parents” makes the natural parents the "focus” of the pro¬ ceeding. Id. 78. Id. at 759. In contrast, the state may try again if it fails in severing the parent’s rights. Id. at 764. Partly because "a paternity suit terminates with the entry of a final judgment that bars repeated liti¬ gation” by either party, paternity proceed¬ ings lack the "asymmetry” that could make a preponderance standard violate due process. Rivera v. Minnich, 107 S.Ct. 3001, 3006 (1987) (due process satisfied by preponderance standard in paternity pro¬ ceedings).

79. The Court noted the "imprecise standards that leave determinations un¬ usually open to the subjective values of the judge,” 455 U.S. at 762; the "unusual dis¬ cretion [of the court] to underweigh proba¬ tive facts that might favor the parent,” id. (footnote omitted); the potential of a cul¬ tural bias against the generally poor and

uneducated parents, id. at 763; and the overwhelming power of the state. Id. 80. Id. at 763. 81. Id. at 764. 82. Id. at 766. 83. Id. at 767.

Again, the Court em¬

phasized that the state’s interests are served only if the factfinding hearings are accurate, thus throwing the state’s inter¬ ests on the higher-standard side of the scale. See § 10-12, supra. Because the real issue is not the total number of errors but their distribution (as between errone¬ ous deprivations and erroneous decisions not to deprive), all such arguments are of dubious validity. 84. Id. at 775. 85. Id. at 773. 86. Id. at 788 n. 13 87. Id. at 790-91. Equal distribution of this risk is least tolerable when pre-ex¬ isting rights are being terminated, and most tolerable when only future responsi¬ bilities (especially economic burdens) are being allocated. See Rivera v. Minnich, 107 S.Ct. at 3004-3005, discussed in note 78, supra.

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Ch. 10

connected the fundamental procedural due process guarantee of an opportunity to be heard with the requirement that government officials provide an explanation (ordinarily in writing) for action which adverse¬ ly affects particular individuals or groups.88 Like government’s duty to grant a hearing, its duty to provide an explanation has often been valued less for its own sake than as a device for the protection of substantive rights or entitlements: "The provision for a written record helps to insure that administrators, faced with possible scrutiny by [other] officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly.” 89 However, the Court has not explained this insistence in constitutional terms, relying instead on the principles of administrative law. Similarly, decisions reviewing the adequacy of particular forms of explanation have been couched largely in the language of administra¬ tive law doctrine. Nevertheless, the Court has included the core content of the right to an explanation in its lists of the basic require¬ ments of due process.90 Among the formal procedural safeguards ordinarily held to be required by due process, perhaps the two most striking — the right to be heard and the right to hear why — are ultimately more understandable as inherent in decent treatment than as optimally designed to minimize mistakes. When God asked Adam if he had eaten of the tree of life, the Midrash explains, the point of the exchange was less to minimize the risk of divine error than to afford Adam a moment to regain his composure. And the Code of Wild Bill Hickock — the code that forbids shooting someone without first looking him in the eye — was likewise concerned with something deeper than reducing mistakes. Those pro¬ cedural formalities that are implicit in treating persons with respect as members of the community should thus be required by due process for reasons more basic than any utilitarian calculus of accuracy, although accuracy of course matters as well when the procedure is ancillary to a substantive interest of great importance to the individual.

§ 10-16. Current Doctrine: Issues of Neutrality The Supreme

Court has traditionally placed enormous

weight on

the neutrality of due process hearings. In this area, indeed, the Court’s approach to due process has tended to stress its intrinsic aspects almost In

v U St 37 U. 15 (1 c. . nit 96 at S. 6 1 2 es ed , mu ag ma (" th fi su ) a n st an ke th poThe its endce f t mu p¬ cyi rt os dingind d st si e s in on by su g be su e bsho Th pprp co, pvrisde a t o n i e n w e csarotne in ttheixt re anetvie Se sp e.g senceP”o se d e g . t )n r e 47 U. s , 49 ard (1 al, , wh , s .tteh v. ciRael e al S. 1 1 . 985 e ,he Co al th th), du repr at e o l u e , prthou cl rt red of to csetss at f a qu i g e ir fo re son h toicicaa th use re w i lsl r ei f a e t l u s n s on to be ca si by an in es at a re r s s ll ng qu m a ed th di es he re te nees s t ed e ar as in no on no cipbeed in wr bese in in t li g, r it s co n in th ad ar re du rp pr is g e co mi y e or oc e r a n sa a li d ex is te ss iswhe ti mi ; pl tr n d sf t a at ed na ie iv d ti e on

made at the hearing, made part of the administrative record or presented as testi¬ mony in court "if the deprivation of a 'liberty’ interest is challenged because of that claimed defect in the hearing.” Id. at 497. 89. Wolff v. McDonnell, 565 (1974).

418 U.S. 539,

90. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 271 (1970) ("the decision maker should state the reasons for his determination and indicate the evidence he relied on, . . . though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law”).

§ 10-16

MODEL

OF GOVERNMENTAL

REGULARITY

745

as much as its instrumental aspects, focusing on the "moral authority” of the law as well as on the accuracy of its application. Thus "the right to an impartial decision-maker is required by due process” in every case.1 And since "the appearance of evenhanded justice . . . is at the core of due process,” 2 the Court may disqualify even decision-makers who in fact "have no actual bias” if they might reasonably appear to be biased.3 The Court’s examination of the demand for impartiality has been structured by a distinction between personal and institutional conflicts of interest. In the realm of personal conflicts, the Court has consistent¬ ly held that procedural due process bars ostensibly impartial decision¬ makers from deciding cases whose outcome directly and substantially affects their personal financial interests 4 or the financial concerns of that: (1) the optometrists whose

§ 10-16 416 U.S. 134, 197 1. Arnett v. Kennedy, (1974) (White, J., concurring in part and dissenting in part). 2. Mayberry v. Pennsylvania, 400 U.S. 455, 469 (1971) (Harlan, J., concurring). See also Offutt v. United States, 348 U.S. 11 (1954). Cf. Dr. Bonham’s Case, 8 Co. 114a, 118a (1610) (a "person cannot be judge in his own cause . . . and one can¬ not be judge and attorney for any of the parties”). 3. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 485-86 (1972) (decisionmaker bias is grounds for reversal); Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (same). But see Kirp, "Proceduralism and Bureaucracy: Due Process in the School Setting,” 28 Stan.L.Rev. 841, 863 (1976) ("a challenge to a decision based on impressions of the deci¬ sionmaker’s unreceptiveness is hard to forsee; all that Due Process formally de¬ mands is a particular structuring of the outward forms of decisionmaking. It read¬ ily permits the routinization of the new, enabling the administrator to proceed com¬ fortably 'by the book’ without actually al¬ tering the substance of his actions”). 4. The leading case is Turney v. Ohio, 273 U.S. 510 (1927). There, Chief Justice Taft held for a unanimous Court that the fourteenth amendment due process clause prohibited a town from granting its mayor, as reimbursement for services as judge in prohibition law cases, the court costs as¬ sessed against convicted defendants. The Supreme Court has extended the Turney principle to cases unconnected with the criminal law. In Gibson v. Berryhill, 411 U.S. 564 (1973), the Court held that proce¬ dural due process was violated by a deci¬ sion of the Alabama State Board of Optom¬ etry revoking the licenses of "all optometrists in the State who were em¬ ployed by business corporations . . . ” Justice White’s majority opinion accepted the conclusions of the federal district court

licenses

were revoked "accounted for nearly half of all the optometrists practicing in Ala¬ bama”; (2) "the Board of Optometry was composed solely of optometrists in private practice for their own account”; and (3) "success in the Board’s efforts” could thus sufficiently "redound to the personal bene¬ fit of members of the Board”. "[Those] with substantial pecuniary interest in legal proceedings should not adjudicate these disputes.” Id. at 578-79. In Aetna Life Insurance Co. v. Lavoie, 106 S.Ct. 1580 (1986), the Supreme Court applied the principle of Turney to vacate a state supreme court’s per curiam affirm¬ ance of a civil damages award against an insurance company where an apparently decisive vote in the state’s highest court had been cast by a justice who had a legal¬ ly similar suit of his own pending in a lower state court. Relying on the require¬ ment of strict neutrality imposed upon judges by Turney and In re Murchison, 349 U.S. 133 (1955), the Supreme Court, in an opinion by Chief Justice Burger joined by Justices Brennan, Powell, Rehnquist and O’Connor, relied on language from Tumey that "it certainly violates the Fourteenth Amendment ... to subject [an individu¬ al’s] liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.” 106 S.Ct. at 1585, citing Tumey, 273 U.S. at 523. Since the state court justice’s vote as an appellate judge "had the clear and immediate effect of enhancing both the legal status and the settlement value of his own case,” 106 S.Ct. at 1586, his "par¬ ticipation in this case violated appellant’s due process rights.” Id. at 1587. Even if the particular judge was not "influenced,” it was fatal that his situation "would offer a temptation ... to the average [judge] ... to lead him not to hold the balance nice, clear and true.” Id. at 1587, citing Ward v. Monroeville, 409 U.S. 57, 60

746

MODEL

OF GOVERNMENTAL

organizations for which

REGULARITY

Ch. 10

they are officially responsible.5 Nor may

a

judge or other ostensibly impartial decision-maker "give vent to person¬ al spleen or respond to a personal grievance” in reaching a decision.6 Identification and separation of adversarial and adjudicative func¬ tions is more difficult in contexts where procedures are more adminis¬ trative than formally adjudicative in character.7 With respect to non(1972). The Court did not have to decide what it would have done had the offending judge’s vote been demonstrably immaterial to the outcome of the case, inasmuch as here the ''disqualified judge [had] cast[ ] the deciding vote,” id. at 1588, in a 5-4 affirmance of the lower court where state law provided that the decision below would not have been affirmed had the court been equally divided, instead requiring the ap¬ pointment of a special justice to participate in the decision of the case. The Supreme Court thus vacated and remanded for fur¬ ther proceedings. In so doing, however, the Court rejected a challenge that, since one of the cases being pressed by the dis¬ qualified state supreme court justice was a class action that included all state employ¬ ees insured under a group insurance plan (apparently including the justices of the state supreme court), the entire court, or at least those six justices who had not with¬ drawn from the class, must be disqualified as well. The Supreme Court ruled that the interests of the other justices was not sufficiently "direct, personal, substantial [and] pecuniary” to warrant disqualifica¬ tion, id. at 1587-88, citing Ward, 409 U.S. at 60, and cautioning that "[c]harges of disqualification should not be made light¬ ly.” Id. at 1588. In concurrence, Justice Brennan ex¬ plained that it was the participation of the more directly interested justice in the deci¬ sion of the case, and not the fact that he cast the deciding vote, that violated due process, since "[t]he participation of a judge who has a substantial interest in the outcome of a case of which he knows at the time he participates necessarily imports a bias into the deliberative process.” Id. (emphasis in original). Justice Blackmun’s concurrence, joined by Justice Marshall, echoed Justice Brennan’s view that it was the judge’s participation in the case that constituted the violation, and not the fortu¬ ity of his casting the deciding vote. Justice Stevens did not participate in the consider¬ ation or decision of the case. (1 wh th Co 9 e ur er du 72) pr v bty e i , o o e l c es au ma ate to si t s th y d fic oorf ca ors Ju if st s it it op zeinsn obes. in egin se is de cheat viy i c r l r fo lag on omco ved an ivfe e st eds rf e d s, ei tu re s,

he pr oc l an d Oh edst io uat as ju in rautlrte af dg ¬ es Br ma jo en "[ nama pa r¬ of a]f n jo t ro ’s r he rftine s,in im m .. po . se d

[the] mayor’s court,” concluding that " 'pos¬ sible temptation’ may . . . exist when the mayor’s executive responsibilities for vil¬ lage finances may make him partisan to maintain the high level of contribution from the mayor’s court.” Id. at 58, 60. 6. Offutt v. United States, 348 U.S. 11, 14 (1954). See also Mayberry v. Penn¬ sylvania, 400 U.S. 455 (1971), where the Court held that, if contempt citations are handed down after a trial rather than dur¬ ing the proceedings, due process requires that a defendant in the subsequent con¬ tempt proceeding, who had previously "vil¬ ified” and "cruelly slandered” the trial judge, should be given a public contempt trial "before a judge other than the one reviled by the contemnor”: "No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudi¬ cation.” Id. at 465. Cf. Arnett v. Ken¬ nedy, 416 U.S. 134, 196 (1974) (White, J. concurring in part and dissenting in part) (arguing that otherwise valid procedures for a preliminary supervisor’s review prior to dismissal of a Civil Service employee failed to provide the impartial hearing re¬ quired by statute since the grounds re¬ viewed included the employee’s public at¬ tacks on the personal reputation of the supervisor; however, a majority of the Court found that this possible bias did not violate due process, given the availability of an adequately impartial subsequent hearing). In fact, the presumptive require¬ ment of prior rather than subsequent hear¬ ings, see § 10-14, supra, has been based in part on the risk that, once an action has been taken by a government agent, the decisionmaker may be emotionally commit¬ ted to the action by the time it is chal¬ lenged. 7. The Court has also considered issues of neutrality in non-adversarial contexts. In Parham v. J.R., 442 U.S. 584 (1979), for example, the Court rejected the argument that an adversary hearing was required in deciding whether children may be commit¬ ted by their parents to state mental hospi¬ tals, but nevertheless held that "the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a 'neu¬ tral factfinder’ to determine whether the statutory requirements for admission are satisfied.” Id. at 606. But, consistent with

747 MODEL OF GOVERNMENTAL REGULARITY 6 1 § 10 criminal proceedings, the Supreme Court has required only, if a hearing is adversarial in nature, ’'that the hearing be conducted by some person other than one initially dealing with the case”: "The officer directly involved in making recommendations cannot always have complete objectivity in evaluating them.”8 Two recent cases illustrate the Court’s tolerance of apparent insti¬ tutional biases in non-adjudicatory settings. In Marshall v. Jerrico , Inc.,9 the Court was faced with a due process challenge to the procedure under which fines are collected under the Fair Labor Standards Act, in which the Employment Standards Administration (ESA), the body responsible for assessing fines under the FLSA, receives those sums back as reimbursements for the costs of determining violations and assessing penalties. The sums are, in turn, distributed to the regional offices of the ESA. In unanimously rejecting the contention that this arrangement created "an impermissible risk and appearance of bias by encouraging [the assistant regional administrators of ESA who assess the fines] to make unduly numerous and large assessments of civil penalties,” 10 the Supreme Court found that, since the assistant regional administrator involved could only assess fines against violators, and since his decision with respect to the amount assessed was appealable to an administrative law judge, his duties "resemble[d] those of a prosecu¬ tor more closely than those of a judge”,11 thus making inapplicable "the strict requirements of Tumey and WardU 12 Moreover, the Court found that "[n]o governmental official stands to profit economically from vigorous enforcement ... of the Act” 13 because the salary of the assistant regional administrator is fixed by law. Additionally, since the sums collected represent "substantially less than 1% of the budget of ESA,” 14 and since the sums were returned to regional offices on the basis of expenses incurred and not on the basis of amounts collected,15 there was no "realistic possibility that the [regional officer’s] judgment will be distorted by the prospect of institutional gain as a result of zealous enforcement

efforts.”16 Thus the "influence alleged to impose bias is exceptionally remote.” 17

the need to maintain the flexibility of due

plinary hearings at the Nebraska

process, see § 10-15, supra, the Court found that informal hearings conducted by

Complex, is "sufficiently impartial to satis¬ fy the Due Process Clause” since the Com¬ mittee "is not left at large with unlimited discretion”, but must "operate within the principles stated in the controlling regula¬

"a staff physician . . . [who] is free to evaluate independently the child’s mental and emotional condition and need for treatment”, id. at 607, were sufficient.

v. Ke G Se al (1 48 so old l e 97 5we ly, ( 2 2 2 2 39 86U. be(w S. 54,). 66, 71 197 h 7 l rgil f 0 no e ta arteh "n ) he te e t ke ar e r in or qu ed tri fo mina of a ju di ofgsth deas maul” th rm im ti ci e e pa o st, cii-j a n siud s i in "[ l be as rtia n om oi s o l a c Pr w ba e a n v n n ci as r pe uredf ity ase ior ill ot olv ece makael ] e c s r d a a ac fr o:f we ts s m e ensar f ti l om t ilyh cisi pa hong no Heiciash ma far a t, l ou ve on¬r¬ w k e un th deeve in ma ld ti er. ¬ e te r, ci ki 41 v. Mrcm cfn. g Wo de patre 8 r edvi lf Dion f(h tnhanti an "A 53 ew” 57 (1 U. d atelo ol 97 9, ); 1 S 4) on,f se ¬ cdoi Co ju . l mmm dniisor wh mnpgo co s prstm eimt is en taff n i ci¬ ch sed du btee on t ct res, s ,”

Prison

tions”). 9. 446 U.S. 238 (1980). Justice Mar¬ shall wrote for a unanimous Court. 10. Id. at 241. 11. Id. at 243. 12. Id. But see note 17, infra. 13. Id. at 250. 14. Id. at 245. 15. Id. at 246. 16. Id. at 250. 17. Id. Principles of neutrality are not wholly inapplicable to prosecutorial mat¬ ters, however. Thus, in Young v. United

748

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

In Schweiker v. McClure ,18 the Court rejected a similar due process challenge to the system of providing federal reimbursements to insur¬ ance carriers under a provision of Medicare under which the Secretary of Health and Human Services, the official responsible for administer¬ ing the payments of claims under the program, pays insurance carriers themselves to conduct review of claims as agents of the Secretary.19 In disputed claims over $100, oral hearings are authorized when claims are rejected by the carrier and a written appeal fails; these hearings are conducted by hearing officers appointed by and serving at the pleasure of the insurance carriers themselves, with no right of appeal reserved for dissatisfied claimants. The district court found this prac¬ tice unconstitutional for two reasons. First, the hearing officers had a pecuniary interest in pleasing their employer insurance carriers since "their incomes as hearing officers are entirely dependent upon the carrier’s decisions regarding whether, and how often, to call upon their services.” 20 The fact that those carriers themselves had twice denied the claims at issue in the hearings created "links between the carriers and their hearing officers sufficient to create a constitutionally intoler¬ able risk of hearing officer bias against the claimants.” 21 Second, providing a hearing before an administrative law judge either before or after a hearing officer’s decision was warranted by the balancing test set out in Mathews.22 Disagreeing, the Supreme Court began "from the presumption that the hearing officers who decide [these] claims are unbiased.” 23 The Court found no reason for a blanket disqualifica¬ tion,24 given "the absence of proof of financial interest on the part of the carriers . . . [upon which to ground] a derivative bias among their States ex rel. Vuitton et Fils S.A., 107 S.Ct. 2124 (1987), in an exercise of its superviso¬ ry power, the Supreme Court held that "counsel for a party that is the beneficiary of a court order may not be appointed to undertake contempt prosecutions for al¬ leged violations of that order.” (opinion of Brennan, J., for a 5-4 Court). The case grew out of a trademark suit filed by Vuit¬ ton in which defendants agreed to pay damages and accepted a court order bar¬ ring them from selling any product bearing the Vuitton trademark. One of the defen¬ dants was sentenced to 5 years in prison for violating the court order; the other defendants received shorter prison terms. A federal district court had appointed two of Vuitton’s private attorneys to act as special prosecutors representing the Feder¬ al Government in the contempt proceed¬ ings. Only Justice White, dissenting from the Court’s reversal of the convictions, saw no impermissible conflict of interest in use of the interested private attorneys as pros¬ ecutors; he was joined in dissent by three Justices who agreed with the majority that use of such prosecutors was impermissible but concluded that defendants had not been prejudiced.

wr

fo

ot

e

r

a un an im ou s

Co

19. The

relevant

Medicare

provision

"covers a portion (typically 80%) of the cost of certain physician services, outpa¬ tient physical therapy, X-rays, laboratory tests and other medical and health care.” Id. at 190. 20. Id. at 192, quoting 503 F.Supp. 409, 415 (1980). 21. Id. Although the hearing officer considering a particular claim cannot have personally participated in the case prior to the hearing, the district court nonetheless noted the fact that five out of the seven past and present hearing officers for the carrier involved in the case "are former or current . . . employees” of the carrier. 456 U.S. at 193. This, along with the pecuniary interests of the hearing officers in protecting their employment with the carrier and the fact that the carrier had twice denied the claims of all those peti¬ tioning for a hearing, led the lower court to the conclusion that hearing officers were unconstitutionally biased. Id. at 192-93. 22. Mathews v. Eldridge, 424 U.S. 319 (1976). 23. 456 U.S. at 195.

ur

24. The Court noted that "[ajppellees neither sought to disqualify their [individu¬ al] hearing officers nor presently make t.

§ 10-17

MODEL

OF GOVERNMENTAL

REGULARITY

749

hearing officers/’ 25 since it was the federal government, and not the carriers, that paid all claims. In so holding, the Court rejected the assertion that the actions of the Secretary of Health and Human Services — in "helping] carriers identify medical providers who alleged¬ ly bill more services than are medically necessary and . . . warn[ing] carriers to control overutilization of medical services” 26 — demonstrated that the Secretary himself was "biased in favor of inadequate . . . awards” 27 because "[i]t does not establish that the Secretary has sought to discourage payment of . . . claims that do meet [the] require¬ ments.” 28 Moreover, in making this observation, the Court implicitly rejected any argument that the Secretary’s warning to carriers created an undue incentive for carriers to minimize claim awards and thus created a biasing influence on hearing officers. And the Court rejected the district court’s conclusion that the Mathews test required additional safeguards to reduce the risk of erroneous deprivation, finding unjusti¬ fied the lower court’s ruling that hearing officers were untrained and unqualified to conduct the hearings, thus warranting additional mea¬ sures.29 It is interesting to note that in Schweiker the Court, focusing narrowly on the factual evidence adduced to rebut the presumption that hearing officers were in fact unbiased, also rejected the argument that hearing officers, "for reasons of psychology, institutional loyalty, or carrier coercion,” 30 would appear "reluctant to differ with carrier determinations.” 31 Arguments of this sort merit closer attention if the subtler effects of perceived institutional bias are to receive due weight.

§ 10-17. Current Doctrine: Issues of Waiver Although the Court has recognized that due process protections may be waived, it has sought to minimize the possibility of any waiver that is not knowing and voluntary by declaring that courts and other decisionmakers must "indulge every reasonable presumption against waiver.” 1 The Court has presumed that the standard for waiver in noncriminal proceedings "is the same standard applicable to waivers of constitutional rights in a criminal proceeding” 2— namely, that it "not only must be voluntary, but must be knowing, intelligent [and] done with sufficient awareness of the relevant circumstances and likely consequences.” 3 claims of actual bias.” (emphasis in original).

Id. at 195 n. 8

25. Id. at 197. 26. Id. at 196 n. 9. 27. Id. 28. Id. (emphasis in original). 29. Id. at 198-99. 30. Id. at 196 n. 10. 31. Id.

2. D. H. Overmyer Co., Inc. v. Frick Co., 405 U.S. 174, 185 (1972). 3. Brady v. United States, 397 U.S. 742, 748 (1970). The Supreme Court has de¬ clared that, as a threshold matter, before the validity of a waiver can be evaluated, the existence of the waiver must be clearly demonstrated : "We need not concern our¬ selves with the involuntariness or unintel¬ ligence of a waiver when the contractual language relied upon does not, on its face, even amount to a waiver.” Fuentes v. Shevin, 407 U.S. 67, 95 (1972) (finding that

7 v. Kennedy, 301 § 10-1Co. 1. Aetna Insurance U.S. 389, 393 (1937).

the right to notice and a hearing in ad¬ vance of repossession is not waived by sign-

750

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

The Court, however, has found that waiver of rights can be con¬ structive as well as actual. In Insurance Corporation of Ireland v. Compagnie des Bauxites de Guinee 4, for example, the Court held that failure to comply with discovery being conducted to establish jurisdic¬ tional facts after several of the defendants had raised the defense of lack of personal jurisdiction permitted the district court to assert personal jurisdiction over the uncooperative parties as a sanction pur¬ suant to Federal Rule of Civil Procedure 37(b)(2)(A). Reasoning that "the requirement of personal jurisdiction represents first of all an individual right” and can thus "be waived,” 5 the Court noted that "for various reasons a defendant may be estopped from raising the issue . . . [if his] actions . . . amount

to a legal submission to the jurisdic¬

tion of the court, whether voluntary or not.” 6 The Court held that the petitioner’s refusal to produce documents in discovery thus constituted a "waiver” 7 of any challenge grounded on a lack of personal jurisdic¬ tion,8 adding that " 'the preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense.’ ” 9 ing contracts which "simply provided that upon a default the seller 'may take back,’ 'may retake’ or 'may repossess’ merchan¬ dise”: the contracts failed to indicate "how or through what process . . . the seller could take back the goods”). Contrast D. H. Overmyer Co., Inc. v. Frick Co., 405 U.S. 174, 187 (1972), where the Supreme Court tory authorization constitutional, both plied. In this case,

held that Ohio’s statu¬ of cognovit notes was on its face and as ap¬ the cognovit note was

included in a contract supported by "ade¬ quate consideration and [was] the product of negotiations carried on by corporate par¬ ties with the advice of competent counsel.” Id. at 183. Justice Blackmun’s majority opinion concluded that, even if the waiver of procedural rights were judged by the stringent standard of the criminal law, "Overmyer, in its execution and delivery to Frick of the . . . note containing the cog¬ novit provision, voluntarily, intelligently, and knowingly waived the rights it other¬ wise possessed to prejudgment notice and hearing . . . with full awareness of the legal consequences.” Id. at 187. However, the Overmyer Court stated in dictum that, while "a cognovit provision may well serve a proper and useful pur¬ pose in the commercial world”, there could nonetheless exist situations in which this form of waiver would not be recognized: "where the contract is one of adhesion, where there is great disparity in bargain¬ ing power, and where the debtor receives nothing for the cognovit provision, other legal consequences may ensue.” Id. at 188. The Court also observed that, in this case, "execution of the cognovit note” did not

render defenseless the party waiving proce¬ dural rights: "In Ohio the judgment court may vacate its judgment upon a showing of a valid defense ...” Id. 4. 456 U.S. 694 (1982). 5. Id. at 703. 6. Id. at 704-05. Cf. Illinois v. 397 U.S. 337 (1970) (holding that cused may, by obstreperous conduct, his right to be personally present criminal trial).

Allen, an ac¬ waive at his

7. The Court compared this refusal to a failure to file a timely objection to personal jurisdiction, long deemed a waiver of the objection. 8. In concurring in the judgment, Jus¬ tice Powell argued that "[b]efore today our decisions had established that 'minimum contacts’ represented a constitutional pre¬ requisite to the exercise of in personam jurisdiction over an unconsenting defen¬ dant .... [i]n the absence of a showing of minimum contacts, a finding of personal jurisdiction . . . even as a sanction, there¬ fore would appear to transgress previously established constitutional limitations.” Id. at 712-13. The Court, however, dismissed his objections, asserting that "our holding today does not alter the requirement that there be 'minimum contacts’ .... Rath¬ er, our holding deals with how the facts needed to show those 'minimum contacts’ can be established when a defendant fails to with Id. comply at 703 n. 10. court-ordered discovery.” 9. Id. at 705, quoting Hammond Pack¬ ing Co. v. Arkansas, 212 U.S. 322, 350-51 (1909).

§ 10-17

MODEL

OF GOVERNMENTAL

REGULARITY

751

In other contexts, however, it has been unclear whether a particu¬ lar party intended a waiver or was aware that certain actions would be interpreted as one. Yet the Court seems simply to have examined the underlying interests at hand to determine whether the actions of the involved party should be treated as a waiver. For instance, in United States v. Gagnon ,10 the Court found waiver where a district judge had stated in open court that he wished to speak to one of the jurors in chambers to ascertain whether his objectivity had been compromised because he had noticed one of the defendants sketching portraits of the jurors during the trial. At the time, none of the four defendants either objected to the proposal or requested to be present at the discussion, although the lawyer for one of the defendants was present at the meeting. On appeal, the defendants contended that the in camera discussion violated their constitutional and statutory rights. The Su¬ preme Court, in a per curiam decision representing the views of six members of the Court, rejected that argument, emphasizing that "the presence of the four respondents and their four trial counsel at the in camera discussion was not required to ensure fundamental fairness or a "reasonably substantial . . . opportunity to defend against the charge,” 11 and that "[t]he Fifth Amendment does not require that all the parties be present when the judge inquires into such a minor occurrence.” 12 On the issue of waiver, the Court held that "[t]he district court need not get an express 'on the record’ waiver from the defendant for every trial conference which a defendant may have a right to attend,” 13 adding that, if the defendant wished to exercise his right to attend the conference, he must affirmatively assert it.14 In Lassiter v. Department of Social Services ,15 the Court again found a form of waiver where a party failed to act affirmatively. In Lassiter, the Court, having held that there was no due process right to appointed counsel in every parental termination hearing,16 went on to consider whether due process demanded appointment of counsel in the case at hand. In doing so, the Court examined the conduct of the parent whose rights were threatened in the proceeding and noted that "a court deciding whether due process requires the appointment of counsel need not ignore a parent’s plain demonstration that she is not interested in attending a hearing . . . [or] even . . . speak[ing] ... to her retained lawyer after being notified of the termination hearing.” 17 As evidence of this sort of waiver, the Court observed that Ms. Lassiter had failed to appear at an earlier custody hearing and had not discussed the termination proceeding with the attorney representing her in a sepa¬ rate criminal proceeding, and noted that her "failure to make an effort to contest the proceedings was without cause;” 18 the Court accordingly 10. 470 U.S. 522 (1985). 11. Id. at 527. 12. Id. at 528. 13. Id. 14. Id.

15. 452 U.S. 18 (1981). Justice Stewart wrote the opinion of the Court, joined by Chief Justice Burger and Justices White,

Powell and Rehnquist joined. Chief Jus¬ tice Burger also filed a concurring opinion. Justice Blackmun dissented, joined by Jus¬ tices Brennan and Marshall. Justice Ste¬ vens dissented separately. 16. Id. at 23-27.

17. id at 33. 18. Id.

See § 10-15, supra.

752

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

held that it was not error for the state court not to appoint counsel.19 Yet Ms. Lassiter’s behavior might not have indicated lack of interest; hearing in the silence of an illiterate and inarticulate mother the voice of informed consent hardly comports with due process generously conceived. Such a due process conception seems to have motivated the dissent in Secretary of Public Welfare v. Institutionalized Juveniles .20 Stressing Pennsylvania’s failure to provide institutionalized juveniles over the age of 13 with "a representative obliged to initiate contact with the child and ensure that the child’s constitutional rights are fully protect¬ ed,” 21 the dissent argued that the state was creating a situation where "it is inevitable that the children’s due process rights will be lost through inadvertence, inaction or incapacity.” 22 Since "[m]any of the institutionalized children are unable to read, write, comprehend the formal explanation of their rights, or use the telephone . . . [flew will be able to trigger the procedural safeguards and hearing rights . . . provide[d].” 23 Certainly the assertion of other rights that an individual has under either the Constitution or a statute should not result in the unexpected waiver of due process rights. In United States v. $8,850 in United

States Currency ,24 the government sought to justify an 18-month delay

.

in instituting civil forfeiture proceedings with respect to money seized from a claimant at customs by arguing that, since the claimant had filed a petition for remission of the seized money, the government had a right to wait until an administrative decision had been made. The Court properly rejected the government’s contention that "a pending administrative petition should completely toll the requirement of filing a judicial proceeding,” 25 holding that "[a] claimant need not waive his right to a prompt judicial hearing simply because he seeks the addition¬ al remedy of an administrative petition for mitigation.” 26 Neverthe¬ less, the Court did allow the pendency of the petition to be weighed along with other factors proffered by the government,

ultimately hold¬

ing that the delay did not violate the claimant’s right to due process. Perhaps more disturbingly, in Jones v. United States 27 the Court held that a criminal defendant who pleaded not guilty to a criminal charge by reason of insanity under a statute authorizing acquittal if insanity is established by a preponderance of the evidence essentially waived his rights under Addington v. Texas 28 to proof by clear and convincing evidence of mental illness and dangerousness before being 24. 461 U.S. 555 (1983).

19. Id. 20. 442 U.S. 640 (1979). Chief Justice Burger wrote the opinion of the Court, in which Justices White, Blackmun, Powell and Rehnquist joined. Justice Stewart concurred in the judgment. Justice Bren¬ nan concurred in part and dissented in part in an opinion joined by Justices Mar¬ shall and Stevens. 21. Id. at 652 (Brennan, J.). 22. Id. 23. Id. at 651.

25. Id. at 566. 26. Id. 27. 463 U.S. 354 (1983). Justice Powell wrote an opinion in which Chief Justice Burger and Justices White, Rehnquist and O’Connor joined. Justices Marshall and Blackmun joined Justice Brennan’s dis¬ sent. Justice Stevens dissented separately.

4

§ 10-18

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recommitted.29 In rejecting the defendant’s argument, the Court held that there were "important differences between the class of civilcommitment candidates and the class of insanity acquitees that justify differing standards of proof’; 30 since "the acquitee himself advances insanity as a defense and proves that his criminal act was a product of his mental illness, there is good reason for diminished concern as to the risk of error,” 31 justifying the lower evidentiary standard. The Court’s decisions in this area do not provide a structured approach to the issue of waiver. In failing to do so, and in hearing waivers of rights even in the silence of rights holders, the Court has allowed rights as fundamental as preserving parental relationships to be lost by inadvertence. Due process ought to mean more than this. § 10-18.

Meaningful Access to Judicial Protection Strand of Due Process Doctrine

as a Separate

In § 10-14, we saw that the Supreme Court has moved toward a view, exemplified by Ingraham v. Wright,1 Parratt v. Taylor ,2 and

Hudson v. Palmer ,3 that prior administrative hearings are not ordinari¬ ly required by due process where

the conduct of the state agent, if

insufficiently justified, would constitute a crime or a common-law under the state’s ably be awarded the Court relies concluding that

tort

own laws, so that the injured individual could presum¬ relief in a subsequent judicial proceeding. The more on the availability of state judicial relief as a basis for due process has been accorded, however, the stronger

will be the argument that access to such relief is independently presup¬ posed by the due process clause. In specialized settings, such as those of criminal proceedings, the Supreme Court has repeatedly affirmed a right of access to courts. In

Bounds v. Smith , for example, the Court held that "the fundamental

constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assis¬ tance from persons trained in the law.” 4 But how far beyond the setting of crime and punishment the Constitution requires "States to shoulder affirmative obligations to assure . . . meaningful access to

the courts” 5 has been a much debated question, and even in the criminal context the precise extent of such affirmative obligations has been less than clear.6 In Chapter 16, we explore the extent to which the Supreme Court’s decisions in Boddie v. Connecticut 7 and NAACP v. Button 8 reflect a general right of unimpeded access to civil courts, including a right to a waiver of court costs for plaintiffs otherwise too poor to seek judicial 29. See the discussion in § 10-15, su¬ pra. 30. 441 U.S. at 367.

3. 468 U.S. 517 (1984). 4. 430 U.S. 817, 828 (1977). 5. Id. at 824.

31. Id. 6.

See

§§ 16-11,

16-52, infra.

10-38,

10-18 1. 430 U.S. 651§ (1977).

7. 401 U.S. 371 (1971).

2. 451 U.S. 527 (1981).

8.

371

U.S. 415

(1963).

16-40,

16-51,

754

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Ch. 10

relief. We also consider in that chapter the degree to which decisions like Sniadach v. Family Finance Corp ,9 and Fuentes v. Shevin 10 make sense only as aspects of a right to a judicial hearing at a meaningful time. It is crucial to understand here that such a right is analytically distinct from the due process claim of an individual who says that a government official is about to discipline her, or terminate her welfare, or injure her good name, and who insists that the official must not be permitted to do so without at least hearing her side of the story. This latter claim, which we have seen grows out of a norm that only general rules may be framed without the direct participation of the individuals adversely affected,11 cannot ordinarily be satisfied by subsequent judi¬ cial relief — notwithstanding the holdings in such cases as Ingraham v. Wright. At the same time, the right to prior or substantially contemporane¬ ous administrative hearings cannot be made secure without an ancilla¬ ry right to subsequent judicial protection; without it, government is free to ignore its hearing duties with impunity, at least when it deals with individuals too poor or powerless to defend their rights without affirmative governmental assistance, whether in the form of a waiver of court costs or through some costlier form of aid. Thus the promise of Goldberg v. Kelly 12 that welfare would not be terminated without a prior administrative hearing meant considerably less than met the eye after the Court held, in Ortwein v. Schwab ,13 that an individual chal¬ lenging welfare termination in violation of Goldberg v. Kelly could be excluded from court for failure to pay a filing fee— a failure not entirely surprising after welfare payments have been terminated. Unless the Court is willing to say that the due process clause means more than this, our heritage of procedural safeguards will be "only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.” 14 In fact, the Court has on occasion held unconstitutional otherwise acceptable state requirements for access to court where such limitations have been perceived to render the promise of meaningful access to court nothing more than a "teasing illusion.” "[A]t least where inter¬ ests of basic importance are involved, 'absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaning¬ ful opportunity to be heard.’ ” 15 Thus, "having made access to the courts an entitlement or a necessity, the State may not deprive some¬ one of that access unless the balance of state and private interests favors the government

scheme.” 16

9. 395 U.S. 337 (1969). 19. 407 U.S. 67 (1972).

15. Logan v. Zimmerman Brush Com¬ pany, 455 U.S. 422, 430 n. 5 (1982), quoting Boddie v. Connecticut, 401 U.S. 371, 377

11. See §§ 10-1, 10-4, 10-5, 10-6, su¬

(1971).

pra.

12. 397 U.S. 254 (1970). 13. 410 U.S. 656 (1973) (per curiam).

14. Edwards v. California, 314 U.S. 160, 186 (1941) (Jackson, J., concurring).

16. Logan, 455 U.S. at 430 n. 5. Note, however, that the right to judicial access has not been held to encompass any right to appellate review. See McKane v. Durston, 153 U.S. 684, 687 (1894); Pittsburgh, Cincinnati, Chicago & St. Louis Railway

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§ 10-18 The right of access to court cannot, of course, be equated with a right to be free of all substantive legal obstacles to particular forms of recovery: substantive defenses and immunities to a claim may be recognized by the state without a constitutional violation.17 For exam¬ ple, in Martinez v. California ,18 a unanimous Court upheld against a due process claim a California statute granting immunity from suit to state parole officials for their actions in releasing an inmate who was sentenced to a state mental hospital after his conviction of attempted rape. Five months after the inmate was released on parole, he tortured and murdered a fifteen year old girl. Her parents’ tort action against the state officials was defeated by the California immunity statute. Rejecting the appellants’ claim that the girl was deprived of her life without due process of law, the Court noted that "[t]he statute neither authorized nor immunized the deliberate killing of any human be¬ ing.” 19 The Court then found that, although the tort action might be deemed a form of property of which the appellants were deprived by the immunity statute, there was no deprivation without due process of law.20 "[T]he State’s interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an inter¬ est in protecting the individual citizen from state action that is wholly arbitrary or irrational.” 21 Given the rational relation between the state purpose and the statute’s operation in limiting governmental tort liability, there was no deprivation of the appellant’s property interest in the tort claim without due process of law.22 Co. v. Backus, 154 U.S. 421, 427 (1894); Reetz v. Michigan, 188 U.S. 505, 508 (1903); Rogers v. Peck, 199 U.S. 425, 435 (1905); Standard Oil Company of Indiana v. Mis¬ souri, 224 U.S. 270, 287 (1912); Ohio ex rel. Bryant v. Akron Metropolitan Park Dis¬ trict, 281 U.S. 74, 80 (1930); District of Columbia v. Clawans, 300 U.S. 617, 627 (1937); Griffin v. Illinois, 351 U.S. 12, 18 (1956); Lindsey v. Normet, 405 U.S. 56, 77 (1972); Abney v. United States, 431 U.S. 651, 656 (1977) (the right of appeal in crim¬ inal cases is "purely a creature of statute”); Jones v. Barnes, 463 U.S. 745, 751 (1983). But cf. id. at 756-757 n. 1 (Brennan, J., dissenting): "The Court surprisingly an¬ nounces that '[t]here is, of course, no con¬ stitutional right to an appeal.’ Ante, at 751. That statement, besides being unnec¬ essary to its decision, is quite arguably wrong.” Justice Brennan added that "[i]f the question were to come before us in a proper case, I have little doubt that the passage of nearly 30 years since Griffin and some 90 years since McKane v. Durston . . . would lead us to reassess [the bases of the Court’s earlier decisions]. There are few, if any, situations in our system of justice in which a single judge is given unreviewable discretion over matters concerning

a person’s liberty or proper¬

ty. ...” Note also that the Court has held that "[w]hen an appeal is afforded ...

it can¬

not be granted to some litigants and capri¬ ciously or arbitrarily denied to others with¬ out violating the Equal Protection Clause.” Lindsey v. Normet, 405 U.S. at 77; Griffin v. Illinois, 351 U.S. 12 (1956); Smith v. Bennett, 365 U.S. 708 (1961); Lane v. Brown, 372 U.S. 477 (1963); Long v. Dis¬ trict Court of Iowa, 385 U.S. 192 (1966); Gardner v. California, 393 U.S. 367 (1969). 17. On constitutional limits pertaining to restrictions of access to federal courts in particular, see Ch. 3, supra. 18. 444 U.S. 277 (1980). 19. Id. at 281. 20. The Court also recognized the argu¬ ment that "the immunity defense, like an element of the tort claim itself, is merely one aspect of the State’s definition of that property interest.” 444 U.S. at 282 n. 5. "When state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immu¬ nity. . . .” Id., citing Ferri v. Acker¬ man, 444 U.S. 193, 198 (1979). The Court did not, however, decide Martinez on this basis. 21. Martinez, 444 U.S. at 282. 22. See also Bi-Metallic Investment Co. v. State Board of Equalization of Colorado, 239 U.S. 441 (1915) (legislative determina¬ tion provides all the process that is due), discussed in § 10-6, supra, note 39.

756

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Martinez illustrates the general proposition that ordinarily the state does not deny due process when it restricts judicial access through reasonable procedural or evidentiary requirements, such as statutes of limitations,23 and filing fees.24 Where the state’s requirements work to deny any "meaningful opportunity to be heard,” 25 however, due process has been denied. In Little v. Streater ,26 for example, the Court held that the state must pay for blood-grouping tests requested by an indigent defendant where, in a paternity action under state law, the burden rests on the defendant to prove his lack of paternity "by other evidence than his own” 27 once the mother of the child has established her prima facie case. Chief Justice Burger, writing for a unanimous Court, noted that "a cost requirement, valid on its face, may offend due process because it operates to foreclose a particular party’s opportunity to be heard.” 28 In this case, the unavailability of evidence from blood-grouping tests because of the defendant’s inability to pay for such testing would deprive the defendant of any "meaningful opportunity to be heard” since the tests would provide virtually the only possible exculpatory evidence sufficient to rebut the plaintiffs prima facie case. Without the evidence that only the blood-grouping

tests could provide, the

defendant’s access to court in his defense would be merely illusory, and would not comport with the requirements of due process.29 Unrealistically brief statutes of limitations which do not further any substantial state interest have similarly been held unconstitution¬ al. In Mills v. Hableutzel,SQ a unanimous Court held that a Texas statute providing a one-year limitations period in actions to prove the identity of the natural father of an illegitimate child for the purpose of obtaining parental support, where there is no similar limitations period restricting the right of a legitimate child to receive support from the father, denies illegitimate children the equal protection of the laws. While noting that "[n]ormaiiy . . . States are free to set periods of limitations without fear of violating some provision of the Constitu23. See, e.g., Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945); Interna¬ tional Union of Electrical Workers v. Rob¬ bins & Myers, Inc., 429 U.S. 229, 243 (1976). Cf. Logan v. Zimmerman Brush Company, 455 U.S. 422 (1982), discussed in § 10-14, supra, in which the Court distin¬ guished the state’s termination of a claim for the claimant’s failure to comply with a reasonable procedural requirement, such as a limitations period, from the state’s random, arbitrary destruction of a cause of action with no fault on the part of the claimant, thus denying any opportunity for a meaningful hearing at a meaningful time, and depriving the claimant of proce¬ dural due process. See also James v. Unit¬ ed States, 459 U.S. 1044, 1046 (1982) (Bren¬ nan, J., opinion respecting denial of writ of certiorari, joined by Blackmun, J.). 24. See United States v. Kras, 409 U.S. 434 (1973); Ortwein v. Schwab, 410 U.S. 656 (1973). Cf. Boddie v. Connecticut, 401

U.S. 371 (1971), discussed in §§ 16-44, 1651, infra. 25. Boddie, 401 U.S. at 377. 26. 452 U.S. 1 (1981). 27. Id. at 11, quoting the Connecticut Supreme Court in Mosher v. Bennett, 108 Conn. 671, 674, 144 A. 297, 298 (1929). 28. Id. at 16, quoting Boddie, 401 U.S. at 380. 29. See also Ake v. Oklahoma, 470 U.S.

68, 77 (1985) (holding that, where the de¬ fendant’s sanity at the time of the criminal offense is likely to be an issue in the defen¬ dant’s trial, the state must provide free access to a psychiatrist’s assistance if the defendant is indigent: "We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary pro¬ cess .... ”). 30. 456 U.S. 91 (1982).

§ 10-18

MODEL

OF GOVERNMENTAL

REGULARITY

757

tion,” 31 and recognizing the state’s interest in "avoiding the litigation of stale or fraudulent claims,” 32 the Court nonetheless found that the one-year limitations period was not substantially related to the further¬ ance of the state’s interest, which in any event did not "justify a period of limitation which so restricts [the support rights of illegitimate children] as effectively to extinguish them.” 33 "[I]t is clear that the support opportunity provided by the State to illegitimate children must be more than illusory. The period for asserting the right to support must be sufficiently long to permit those who normally have an interest in such children to bring an action on their behalf. . . .’,34 A unanimous Court reasserted the reasoning of Mills in Pickett v.

Brown,35 invalidating on equal protection grounds 36 a Tennessee statute providing a two-year limitations period in actions for paternity and support.37 The Court found that the two-year statute of limitations was not substantially related to the state’s interest in avoiding the problems of proof that arise with the passage of time in a paternity action, and that "the 2-year limitations period does not provide illegitimate chil¬ dren with 'an adequate opportunity to obtain support.’ ” 38 Although on its face the statute did not deny meaningful access to the judicial system, it provided such a narrow avenue of entry that access was in effect being arbitrarily withheld. A right to meaningful access to court may also be implicated by denials of adequate legal representation, and even by denials of the legal representation of one’s choice. The Court has not, however, found any constitutional right to court-appointed counsel in civil cases.39 In fact, there is a presumption that the right to appointed counsel "exist[s] only where the litigant may lose his physical liberty if he loses the litigation.” 40 "It is against this presumption that all other elements in the due process decision must be measured.” 41 Thus, in Lassiter v.

Department of Social Services ,42 the Court held that the right to ap¬ pointed counsel when the state threatens termination of parental rights depends upon the circumstances of each particular case. The factors

are to be weighed according to the Mathews v. Eldridge43 formula, under which the process due depends upon a balancing of the private interests affected, the risk of error in the determination, and the governmental interests supporting the continued use of the challenged procedure. In Lassiter , the Court concluded that, on the facts before it, "the presence of counsel . . . could not have made 31. Id. at 101 n. 9. 32. Id. at 100. 33. Id. at 101. 34. Id. at 97. See also § 16-24, infra. 35. 462 U.S. 1 (1983).

36. The Court did not reach Pickett’s due process challenge to the statute. Id. at

11 n. 11.

37. The two-year statute of limitations applied unless the father had acknowl¬ edged his paternity in writing or provided support to the child, or the child was (or

a determinative

was likely to become) a public charge. Where the statute of limitations did not apply, suit could be brought at any time prior to the child’s eighteenth birthday. 38. 462 U.S. at 13, quoting Mills v. Hableutzel, 456 U.S. 91, 100 (1982). 39. See discussion in § 16-51, infra. 40. Lassiter v. Department of Social Services, 452 U.S. 18, 25 (1981). 41. Id. at 27. 42. 452 U.S. 18 (1981). 43. 424 U.S. 319 (1976).

758

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Ch. 10

difference,” 44 and that "the absence of counsel’s guidance . . . did not render the proceedings fundamentally unfair.” 45 The Court cautioned, however, that "[i]f, in a given case, the parents’ interests were at their strongest, the State’s interests were at their weakest, and the risks of error were at their peak, it could not be said that the Eldridge factors did not overcome the presumption against the right to appointed counsel, and that due process did not therefore require the appointment of counsel.” 46 In Walters v. National Association of Radiation Survivors ,47 veter¬ an’s organizations, veterans and a veteran’s widow challenged the constitutionality of 38 U.S.C. § 3404(c), which limits to ten dollars the fee which may be paid to any attorney or agent representing a veteran before the Veteran’s Administration (VA). They argued that, under the due process clause, "the right to retain and compensate an attorney in VA cases is a necessary element of procedural fairness.” 48 Treating the appellees’ argument that they had been "denied 'meaningful access to the courts’ to present their claims” 49 as tantamount to an argument that the process prevented "a meaningful presentation,” 50 the Court disagreed, stressing that the process was reasonably designed in light of Congress’ desire that it operate on an informal, nonadversary basis, thereby diminishing any real need for legal counsel’s assistance. The fee limitation was fair because it did not prevent claimants from making a meaningful presentation pro se , with an attorney working on a pro hono basis, or with unpaid, noniegal counsel.51 Viewing litigation as a form of speech or petition, the claimants in Walters also contended that the fee limitation violated their first amendment rights. The district court,52 agreeing that the "right to 'adequate legal representation’ or 'meaningful access to courts’ . . . was infringed by [the fee limitation],” 53 ruled for the claimants because "the First Amendment rights to petition, association and speech protect efforts by organizations and individuals to obtain effective legal repre¬ sentation of their constituents or themselves.” 54 But the Supreme Court took a different view, characterizing the appellees’ argument as a "questionable proposition” "based on some notion that VA claimants, who are presently allowed to speak in court, and to have someone speak for them, also have a First Amendment right to pay their surrogate 44. 452 U.S. at 33.

48. Id. at 331.

45. Id.

49. Id. at 335.

46. Id. at 31. See also Santosky v. Kramer, 455 U.S. 745 (1982) (reaffirming the right of parents to a fundamentally fair procedure when the state moves to terminate their parental rights). 47. 473 U.S. 305 (1985). Justice Rehnquist wrote for the majority; Justice O’Connor filed a concurring opinion, in which Justice Blackmun joined; Justice Brennan filed a dissenting opinion which Justice Marshall joined; and Justice Ste¬ vens filed a dissenting opinion, in which Justice Brennan and Justice Marshall joined.

50. Id. 51. Id. at 319-35. 52. 589 F.Supp. 1302 (N.D.Cal.1984). 53. 473 U.S. 315-16. 54. 589 F.Supp. at 1324. In support of this proposition the district court cited United Mine Workers of America v. Illi¬ nois State Bar Assn., 389 U.S. 217 (1967), and Brotherhood of Railroad Trainmen v. Virginia ex. rel. Virginia State Bar, 377 U.S. 1 (1964), discussed in § 16-45, infra.

§ 10-18

MODEL

OF GOVERNMENTAL

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759

speaker.” 56 In the Court’s view, "such a First Amendment interest would attach only in the absence of a 'meaningful alternative,’ ” 56 and since the VA claims process provides a meaningful opportunity for claimants to present their claims, and "significant government inter¬ ests [favor] the limitation on 'speech,’ ” 57 no constitutional violation was shown. The cautious and circumscribed

terms in which the first amend¬

ment argument was rejected by the majority58 — and the fervor with which it was embraced by the dissent 59 — combine to suggest that, in a case where no informal alternative to the usual adversary process is provided by statute, restrictions operating to limit a litigant’s choice of competent counsel to any significant degree, and thus constraining the litigant’s ability to petition the courts for redress, might yet be subject¬ ed to close first amendment scrutiny.60 In Lets v. Flynt ,61 the Court did not address the question of whether the State of Ohio, in refusing to allow the pro hac vice appearance of the out-of-state attorneys for Larry Flynt and Hustler Magazine, violat¬ ed any right of the defendants to meaningful access to court. Justice Stevens, however, argued in dissent that the defendants’ interest in representation by nonresident counsel may indeed be entitled to consti¬ tutional protection: "[I]n instances where the federal claim or defense is unpopular, advice and assistance by an out-of-state lawyer may be the only means available for vindication.” 62 What emerges from these disparate cases and lines of thought is, quite clearly, less than a solidly grounded or coherently elaborated right of judicial access. But it would be surprising, and ultimately indefensible, if the separate strands of doctrine noted above — including procedural due process, equal protection, and the first amendment rights of speech and petition — were not in the end woven into a fundamental right of access to a neutral and fair tribunal in which to ventilate such claims of right as one may have under the governing body of substantive law. That no individual constitutional clause may fully secure that right of access should not be dispositive under a Constitution whose ninth amendment commands that the enumeration of certain rights "shall not be construed to deny or disparage others retained by the people.” Inasmuch as the Court has relied upon the ninth amendment to reinforce a first amendment right of access for the press and the public to observe judicial proceedings,63 a similar argu¬ ment, grounded in constitutional history and structure, should point to 55. 473 U.S. at 335. 56. Id. 57. Id. 58. Id. at 334-35. 59. Id. at 367-72. 60. But see Roa v. Lodi Medical Group, Inc., 106 S.Ct. 421 (1985) (dismissing appeal from state court decision upholding, over first amendment challenge, a state statute setting a sliding-scale ceiling on contingen¬ cy fees).

61. 439 U.S. 438 (1979) (per curiam). Flynt and Hustler Magazine had been in¬ dicted for allegedly disseminating harmful materials to minors in violation of Ohio law. 62. 439 U.S. at 446 n. 2. 63. Richmond Newspapers, Inc. v. Vir¬ ginia, 448 U.S. 555 (1980) (plurality opin¬ ion), discussed in § 12-20, infra.

760

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Ch. 10

a no less basic right to invoke those proceedings as a litigant. It would be the height of irony if the right of access to court applied solely to those who wish to watch, and not to those who § 10-19.

The

Future

of Procedural

Due

need to take part.64

Process

Recent cases have exhibited tendencies toward a narrowed

under¬

standing of the substantive scope of the "life, liberty, and property” entitled to due process protection, and toward a devalued assessment of the role of personal participation in the determination of what process is due. Bishop v. Wood 1 and Jago u. Van Curen,2 for example, demon¬ strate that the Supreme Court is wary of basing "property” interests, and will refuse to base liberty interests, on "mutually explicit under¬ standings” 3 between government and an individual when such under¬ standings are not formalized in an unambiguous contract or statute. Moreover, the Court’s dubious efforts completely to separate procedure from substance 4 have led to a formalized calculus of protected interests which tends to ignore expectations arising from an existing procedural framework.5 Similarly, in several recent cases 6 the Court has accepted the view that post-deprivation tort remedies under state law may, under some circumstances, protect even "core” liberty and property interests well enough to meet due process requirements, even though there is no opportunity for the individual to interact with a government official in time to prevent (or even promptly redress) the deprivation of liberty or property in question. If this trend should continue in a time of ever-increasing individual dealings with government, the promise of a prominent role for due process doctrine in the definition of govern64. In some circumstances, a right of access to an article III court may be deemed implicit in the constitutional plan — a matter explored in some detail in § 3-5, supra. In United States v. Mendoza-Lopez, 107 S.Ct. 2148 (1987), for exam¬ ple, the Supreme Court ruled by a 5-4 vote that an alien re-entering the United States after being deported cannot be convicted if he is able to show that the original depor¬ tation order was invalid. The majority, speaking through Justice Marshall (joined by Justices Brennan, Blackmun, Powell, and Stevens), held that, even though there was no evidence that Congress intended to permit illegal aliens to contest the validity of their previous deportations in such pros¬ ecutions, an opportunity to do so is man¬ dated by the "constitutional requirement of due process.” Chief Justice Rehnquist, joined in dissent by Justices White and O’Connor, saw no need to reach the consti¬ tutional issue inasmuch as the deportation orders at stake had been valid. In a sepa¬ rate dissent, Justice Scalia wrote: "I think it clear that Congress may constitutionally make it a felony for deportees — irrespec¬ tive of the legality of their deportations — to re-enter the United States illegally.” The majority’s rejection of Justice Scalia’s position necessarily rests on the view that,

by making the validity of the underlying deportation order relevant, the Govern¬ ment triggers the deportee’s right to judi¬ cial review. In the majority’s words, "Where a determination made in an ad¬ ministrative proceeding is to play a critical role in the subsequent imposition of a crim¬ inal sanction, there must be some mean¬ ingful review of the administrative pro¬ ceeding.” 1. 426 U S. 341 (1976), discussed § 10-19 § 10-10, supra.

in

2. 454 U.S. 14 (1981), discussed in § 1010, supra. 3. Perry v. Sindermann, 601 (1972).

408 U.S. 593,

4. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), discussed in §§ 10-9, 10-10, and 10-12, supra. 5. See, e.g., Hewitt v. Helms, 459 U.S. 460 (1983), discussed in § 10-10, supra. 6. See Hudson v. Palmer, 468 U.S. 517 (1984), Parratt v. Taylor, 451 U.S. 527 (1981), and Ingraham v. Wright, 430 U.S. 651 (1977), discussed in § 10-14, supra; and Paul v. Davis, 424 U.S. 693 (1976), discussed in §§ 10-11 and 10-14, supra.

§ 10-19

MODEL

OF GOVERNMENTAL

761

REGULARITY

merit’s relationships with individuals — a promise raised by the due process cases of the early 1970’s — will be broken. Instead, we may confront a retreat to the situation where government defined both the substantive and the procedural aspects of its relations with individuals free of any significant responsibility to protect the reliance it induces or to treat individuals with regularity and respect. If, on the other hand, due process doctrine is to continue to play a significant role in structuring government’s relations with individuals, it will be necessary to confront more squarely the substantive values underlying due process decisions such as Goldberg u. Kelly ,7 Fuentes u. Shevin ,8 Perry v. Sindermann ,8 and Vitek v. Jones, 10 all of which rejected the notion that government should enjoy unqualified discretion in dealing with individuals so long as it does not invade some minimal concept of the personal liberty and property interests inherited from the common law. To the extent that the substantive values underlying decisions like Goldberg , Fuentes , Perry and Vitek involve the preserva¬ tion of personal dignity and self-respect, specifying the safeguards of procedural due process will be a task increasingly indistinguishable from giving substantive content to the due process clauses; the right not to be singled out for hurtful treatment by the state without a chance to talk back, and to be told why, will increasingly have to be identified as a substantive aspect of personal liberty. Thus both gov¬ ernmental objectives and the means chosen to accomplish them will be impermissible unless they accord with rights of personal dignity and autonomy — and with values of public participation and self-govern¬ ment.11 Moreover, the purpose and scope of due process hearings will have to be increasingly tailored, as in the irrebuttable presumption cases,12 to the substantive values of individuality and interaction at stake in their dispositions. In addition, to the extent that the substantive values underlying the due process decisions of the early 1970’s include the minimization of subservience and helplessness, it will be necessary to repudiate the notion that government can escape procedural due process merely by writing its statutes or contracts so as to exclude recognition of any entitlements at all and can thereby make individuals totally dependent on its generosity. It must be recalled in this regard that the values of governmental regularity go well beyond those of protecting settled expectations.13 And the Supreme Court has indicated a willingness to place some limits on the extent to which an individual can be made dependent

on governmental

determinations

of need and on govern¬

ment’s advantageous allocations of resources: wThere government ar¬ rangements leave no room for individual adjustment, and '"where the 7. 397 U.S. 254 (1970), discussed

in

§ 10-9, supra.

8. 407 U.S. 67 (1972), discussed in § 109, supra. 9. 408 U.S. 593 (1972), discussed

11. See Chapters 11 and 15, infra. See also Michelman, "The Supreme Court, 1985 Term — Foreword: Traces of Self-Gov¬ ernment,”

100 Harv.L.Rev.

in

§ 10-9, supra.

12. See § 16-32, infra.

10. 445 U.S. 480 (1980), discussed in § 10-9, supra. Tribe-Amer. Const. Law 2nd Ed. UTB — 19

13. See § 10-1, supra.

4 (1986).

762

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private interests affected are very important interest can be promoted

without much

Ch. 10

and the governmental

difficulty by a well-designed

hearing procedure,” 14 the Court has taken steps to merge procedural due process and substantive equal protection analysis. In United States

Dept, of Agriculture v. Murry , for example, the Court invalidated a section of the Food Stamp Act of 1964 which "create[d] a conclusive presumption that [a] . . . household is not needy and has access to nutritional adequacy,” whenever any member of that household under the age of 18 has been claimed as a "tax dependent” in another household not itself eligible for food stamps.16 The Court reasoned that "the deduction taken for the benefit of the parent in the prior year is not a rational measure of the need of a different household with which the child of the tax-deducting parent lives and rests on an irrebuttable presumption often contrary to fact,” and "therefore lacks critical ingre¬ dients of due process.” 16 And in United States Dept, of Agriculture v.

Moreno , the Court struck down another section of the Food Stamp Act of 1964 which "exclude[d] from participation in the food stamp program any household containing an individual who is unrelated to any other member of the household,” 17 on the ground that such an exclusion "creates an irrational classification in violation of the equal protection component of the Due Process Clause of the Fifth Amendment,” 18 since it is "clearly irrelevant to the stated purposes of the Act,” "to alleviate hunger and malnutrition among the more needy segments of our

society.” 19 Minimizing helplessness and dependence, furthermore, may re¬ quire courts to go beyond remedies that individual poor people must invoke on their own.20 Indeed, the adversary model, with its emphasis on individual initiative, may prove quite inappropriate in the context of protecting at least some rights connected with those governmental services which are provided on a mass scale. While the provision of hearings to individuals seeking to substantiate claims against the government, and the concomitant reliance on parties acting in their own self interest to present all the issues in the strongest possible way, undoubtedly has important advantages in ensuring accuracy of result, its efficacy is conditioned on the presumption that those in a dependent position with respect to government will have sufficient knowledge and resources to employ such procedures. Yet at least some thoughtful commentators have suggested that "individual claimants [often] either do not know of, or are generally fearful of exercising, the unfamiliar 14. United States Dept, of Agriculture v. Murry, 413 U.S. 508, 518 (1973) (Mar¬ shall, J., concurring), discussed in §§ 16-34 and 16-50, infra. See generally Tribe "Structural Due Process,” 10 Harv.Civ. Rights Civ.Lib.L.Rev. 269, 286-88 (1975). 15. 413 U.S. at 511. 16. Id. at 514.

19. Id. at 529. But see Lyng v. Castillo, 106 S.Ct. 2727 (1986) (Food Stamp Act’s irrebuttable presumption that parents, children, and siblings prepare meals to¬ gether — thus entitling them to fewer bene¬ fits — is rationally related to the goals of the food stamp program and hence consti¬ tutional), discussed in §§ 16-34 and 16-50, note 5, infra. 20. Cf. §§ 5-22, 8-6, 8-7, supra, and

17. 413 U.S. 528, 529 (1973), discussed in §§ 16-34 and 16-50, infra.

§§ 11-4, 15-9, infra.

Ida5.t33.

§ 10-19

MODEL

OF GOVERNMENTAL

763

REGULARITY

right to a hearing.” 21 Indeed, the often complex web of hearings and judicial review may in fact create a "perseverance bounty,” which rewards those willing and able to pursue claims while disadvantaging "the ignorant, the incompetent, and the demoralized,” whose claims are at least as meritorious.22 Moreover, because the procedural norms prescribed by the Supreme Court’s due process decisions may run counter to important bureaucratic routines and be viewed by agencies as a criticism and rebuke, such agencies may "circumvent the very values that procedural justice is intended to serve, either by ignoring the judicial decision or by giving it only grudging and mechanical compliance, or by resorting to a crabbed course of literal rule-mindedness divorced of the exercise of any discretion.” 23 In light of these problems, at least one commentator

has argued

that a system de-emphasizing, or perhaps eliminating, ordinary hear¬ ings and judicial review in favor of "bureaucratic rationality” would more effectively address the concerns inherent in an administrative state — at least for some programs.24 Bureaucratic rationality would utilize sophisticated techniques of organization and management 25 in order to "develop, at the least possible cost, a system for distinguishing between true and false claims” as defined by the "democratically (legislatively) approved task.” 26 The process would include several general aspects: (1) the agency’s approach to deciding any individual claim would be active and investigatory — it would seek information rather than merely rely on its supply from interested parties; 27 (2) since "there is a fundamental political presumption that the agency is responsible for the adjudicatory performance of its employees[, a] coor¬ dinating system of management [would be] instituted to ensure . . . 21. Kirp, "Proceduralism and Bureau¬ cracy: Due Process in the School Setting,” 28 Stan.L.Rev. 841, 861 (1976). See gener¬ ally Rubenstein, "Procedural Due Process and the Limits of the Adversary System,” 11 Harv.Civ.Rts. — Civ.Lib.L.Rev. 48, 66-70 (1976) (claiming that, in practice, the ad¬ versary system is unavailable to the vast majority of people in positions of dependen¬ cy in relation to government, given igno¬ rance of rights and lack of access to legal aid); Mashaw, "The Management Side of Due Process: Some Theoretical Litigation Notes on the Assurance of Accuracy, Fair¬ ness, and Timeliness in the Adjudication of Social Welfare Claims,” 59 Cornell L.Rev. 772, 784 n. 33 (1974) (noting that only six percent of those denied welfare benefits actually seek a hearing). 22. J. Mashaw, Bureaucratic Justice 137-139 (1983). According to Mashaw, available data indicate that white, middleaged males, who are generally financially better off, are more likely to appeal denial of their social security disability benefits. Since 50% of those appeals are granted, the unjust disparity, at least in the social security disability context, is significant. 23. Kirp, supra note 21, at 852.

24. J. Mashaw, Bureaucratic Justice (1983). While Professor Mashaw does ar¬ gue that his model may apply in other contexts, he limits most of his discussion to the social security disability (SSD) pro¬ gram. 25. See generally id. at 145-168. 26. Id. at 25.

Since few legislative

mandates can precisely define the "truth” of all claims (and thus require agency flexi¬ bility), bureaucratic rationality would re¬ quire decisionmakers to (1) understand the values or goals that are to be pursued; (2) determine the relevant facts; and (3) accu¬ rately predict the connection between a particular decision and the accomplish¬ ment of one or more of the goals. See id. at 49. While Mashaw recognizes that no bureaucratic system could fully attain these three objectives, he suggests that the weaknesses provide "entry points” for "al¬ ternative conceptions of justice” which may include "some mixture of justice mod¬ els and decisional techniques,” such as par¬ ticipation through "specialized representa¬ tives.” Id. at 74-77, 200. See also note 44, infra. 27. Id. at 171.

764

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Ch. 10

that subordinate actions are . . . premised on the policies or goals of the program

. . .

28 (3) hierarchical control would require a systemic

perspective to maintain the equilibrium of forces within its "adjudicato¬ ry” system.29 In a nutshell, "the bureaucratic model of administrative justice is an accuracy-oriented, investigatorily active, hierarchically organized, and complexly engineered system of The model is not without its problems. Liebman and Richard Stewart have persuasively probably does not extend to programs in which,

adjudication.” 30 As Professors Lance argued, its usefulness unlike social security

disability, the bureaucratic orientation may be incapable of "cautious benevolence” and the administration involves a regulatory scheme instead of a cash-transfer system.31 Moreover, even within the SSD program, we may well question whether, in a nation properly suspi¬ cious of bureaucratic administration and of the very concept of scientif¬ ic expertise as a source of legitimation, civil servants should be entrust¬ ed with the sole power to decide eligibility decisions — even under regimes supervised by judges with an eye to improving the technical efficiency of administration.32 Indeed, despite its many difficulties,33 the adversary system has deep roots in America’s political and cultural heritage,34 so that any departure from its premises is not without risks 28. Id. 29. Id. 30. Id. at 172.

One

possible concrete

application of Mashaw’s bureaucratic juris¬ prudence would have courts "impose on police departments various quality control and disciplinary measures calculated to maximize observance of constitutional . . . requirements” as an alternative to the exclusionary rule. See C. Edley, Judi¬ cial Governance 266 n. 548 (June 26, 1986 manuscript) (forthcoming). Cf. Amster¬ dam, "Perspectives on the Fourth Amend¬ ment,” 58 Minn.L.Rev. 349, 409-39 (1974). Professor Amsterdam urges that "[ujnless a search or seizure is conducted pursuant to and in conformity with either legislation or police departmental rules and regula¬ tions, [courts should hold] that it is an unreasonable search and seizure prohibited by the fourth amendment.” Id. at 416. 31. See Liebman & Stewart, Book Re¬ view, 96 Harv.L.Rev. 1952, 1965-67 (1983) (reviewing J. Mashaw, Bureaucratic Jus¬ tice (1983) ). See also the powerful critique developed by Professor Christopher Edley, Jr., in C. Edley, supra note 30, at 265-78. Professor Edley summarizes his most im¬ portant criticism as follows: [T]he perspective of ideal administration cannot provide a totalizing theory of ad¬ ministrative justice or law within bu¬ reaucracy, for reasons conceptually re¬ lated to the limitations of the rule of law and interest group representation per¬ spectives. Such monochromatic exer¬ cises develop our sensibilities in very im¬ portant ways, just as studying the music

for full the the

solo violin is helpful preparation for appreciation of a symphony. But in very effort to focus on one element, whole is distorted.

Id. at 267. Mashaw is unable to escape the interrelationships between the three para¬ digms inherent in the separation of powers ethos. See note 38, infra. Hence, policy choices and adjudicative fairness cannot be entirely extracted; rather, they are merely "displaced to a prior moment of centralized judgment,” resulting in an "impoverished version of political and policy choice, be¬ cause the interests and values figuring in the choice will be those of the technocra¬ cy.” Id. at 274. See also id. at 78. 32. Liebman & Stewart, 96 Harv.L.Rev. at 1963. 33. A further problem which may mili¬ tate against the efficacy of adversary hear¬ ings in the context of large-scale govern¬ ment programs is the possibility that the considerable expense involved in the provi¬ sion of hearings "may in the end come out of the pockets of the deserving since re¬ sources available for any particular pro¬ gram of social welfare are not unlimited.” Mathews v. Eldridge, 424 U.S. 319, 348 (1976). 34.

See,

e.g., Walker,

LaTour

&

Moulden, "Procedural Justice as Fairness,” 26 Stan.L.Rev. 1271 (1974) (study indicat¬ ing people favor adversary hearing model). See also C. Edley, supra note 30, at 370 n. 733 (suggesting that agencies adopt a "rule of presumptive desirability of quasi-adversarial processes,” with a concomitant "bat¬ tle of experts.” In addition to testing the

§ 10-19

MODEL

OF GOVERNMENTAL

REGULARITY

765

of its own. Yet as Justice Frankfurter noted, due process, "unlike some legal rules, is not a technical conception with a fixed content unrelated to time, places and circumstances. . . . [It] cannot be imprisoned within the treacherous limits of any formula.” 35 On the contrary, "the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” 36 The Court has, in fact, recently recognized this flexibility in refraining from requiring a trial-type adversary hearing prior to short suspensions from public schools. Instead, in Goss v. Lopez , the Court mandated no more than "an informal give and take” between student and school disciplinari¬ an.37 If the Court is really as prepared as it appears to look beyond the traditional adversary model for procedures to restrain arbitrary govern¬ ment action and thus fulfill the ideal of governmental regularity, such a search would not be inconsistent with the underlying jurisprudence of due process. One alternative would break down the current formalized dichotomy between adjudicative and representative processes and rec¬ ognize that both sets of processes are merely the ends of a single continuum of procedures by which government action might better be shaped in accord with basic principles of accountability and participa¬ tion. Until now, the Court has taken an all-or-nothing approach when determining what form of participation an individual may claim in a given context: either the right to be heard as a party, or the right to be counted as a voter, but little in between.38 Hence, it has refused to quality of agency expertise, such a pre¬ sumption would better discern the "real limits” of the expertise paradigm by identi¬ fying scientific areas of disagreement more appropriately decided on the basis of poli¬ tics or fairness). 35. Joint Anti-Fascist Refugee Commit¬ tee v. McGrath, 341 U.S. 123, 162 (1951) (Frankfurter, J., concurring). 36. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961). See generally Friendly, "Some Kind of Hearing,” 123 U.Pa.L.Rev. 1267, 1269 (1975). 37. 419 U.S. 565, 584 (1975). See also Greenholtz v. Inmates of Nebraska Penal and Cor. Complex, 442 U.S. 1, 4, 12-16 (1979) (parole determination procedures satisfy due process where Board examines the inmate’s written record, informally in¬ terviews him, and considers any letters or statements he wishes to present), discussed in §§ 10-12, 10-13, supra.

38. See C. Edley, note 30 supra. Pro¬ fessor Edley’s analysis provides a possible explanation for the Court’s rigid approach. In his view, a trichotomy of decisionmak¬ ing norms, attributable to a "separation of powers ethos” generated before the emer¬ gence of the administrative state, results in "rather arbitrary selection and emphasis of one or another [of the three competing] paradigm[s] in order to draw conclusions

about the scaling of judicial deference.” Id. at 118. The three paradigmatic norms constituting the trichotomy are adjudicato¬ ry fairness (and its reasoned elaboration), science and technical expertise, and poli¬ tics (with interest accommodation). The three, of course, correspond roughly to the three branches of our government: the ju¬ diciary, the executive, and the legislature, respectively. However, the problem with the trichotomy is not just its use in creat¬ ing formal separations, but its more subtle use in determining the "applicable verbal formula for the balance of judicial defer¬ ence and intervention.” Id. at 22. Thus, the Court’s dichotomy in this instance may merely be part of the greater trichotomy which inhibits it from adjusting judicial and administrative roles and integrating the three paradigms to serve better the needs of the administrative state. See id. at 390-95. As Professor Edley argues, the choice of which of the two categories to identify with the problem becomes depen¬ dent not upon any proof of which proce¬ dure would better advance instrumental (or, I would add, intrinsic) concerns, but a matter of custom, which "seems 'right’ in a conclusory sort of way.” Id. at 60. To take it a step further, I would argue that the trichotomy helps create the choice it¬ self — between the right to be heard and the right to vote — based upon custom rather

766

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

vary the nature of the process due as the government’s actions move along the spectrum toward individualization by focusing on increasing¬ ly smaller groups or on increasingly personal assessments. Instead, the Court has clung to its Bi-Metallic 39 rationale and denied due process protection to individuals affected by government "en masse,” without questioning whether the need for some mix of the direct and represen¬ tative participation models would better approximate the goals of due process given the size and nature of the affected group and the charac¬ ter of the government determination. In O’Bannon v . Town Court Nursing Center 40, for example, a group of elderly patients from a nursing home sought an evidentiary hearing on the home’s decertification and their consequent involuntary trans¬ fer. The majority opinion noted that decertification was "not the same . . . as a decision to transfer a particular patient” and that, since "the home itself ha[d] a strong financial incentive to contest” the decision, the individual patients had "no constitutional right to participate in the enforcement proceedings.” 41 Thus, instead of searching for a form of process which could satisfy the patients’ participational needs while limiting its adverse effects on the government program, the Court indicated that no process at all was due. Moreover, the Court failed to analyze whether the patients’ interests might differ from the nursing home’s in certain respects such that some form of participation should be allowed. A more

enlightened approach could untangle at least part of the

bureaucratic knot. A two-axis continuum would provide the key. First, in order to emphasize the view that the need for adjudicative process becomes more important the closer the government’s focus approaches the singling out of individuals,42 the Court could adjust the mix of direct and representative participation to which the individual is entitled. Where the group is large and the individual unidentifiable, a nearly absolute reliance on pure voting representation would be war¬ ranted. Conversely, government targeting of a specific individual would demand direct participation via an individualized hearing. Be¬ tween these two poles, however, courts could fashion mechanisms appropriate to the specific context which would provide more direct forms of representation.43 than any reasoned explanation of why such an all-or-nothing choice is necessary.

National Housing Act to establish a right to be heard. In distinguishing Bi-Metallic,

39. Bi-Metallic Invest. Co. v. State Board of Equalization, 239 U.S. 441 (1915). 41. Id. at 786, 789 n. 22.

the court stated: "[T]he determination which emerges from the governmental pro¬ cess under scrutiny here is not so individu¬ alized. We do not, however, regard this difference as determinative. We believe

42. See § 10-7, supra.

the correct approach is to ascertain wheth¬ er tenants can make relevant contribution

40. 447 U.S. 773 (1980).

43. See Thompson v. Washington, 497 F.2d 626 (D.C. Cir. 1973). Tenants in a

to the issues presented for decision, not¬ withstanding the fact that they apply to a

low-rent housing project sought the right to participate in the consideration of rent increases under the National Housing Act

potentially large class.” Id. at 638 n. 42. Moreover, in analyzing the process due,

and the due process clause. "Informed” by the due-process interests potentially at stake but avoiding decision upon constitu¬ tional grounds, the court interpreted the

the court observed that "because the num¬ ber of tenants potentially involved is quite large, we must be careful to shape proce¬ dures to protect the tenants’ interests that

§ 10-19

MODEL

OF GOVERNMENTAL

767

REGULARITY

The second axis would complement the first by directing attention to the continuum of representational interests in modern society. The individual is generally not alone in his battles against the state; often various ad hoc or otherwise organized groups are equally affected by the government’s decisions. The Court could actively search for the proper group in its effort better to represent the individual at the appropriate level of participation.44 And, each time, a court would question whether the representational group provided an adequate surrogate for the individual given the strength of the competing govern¬ mental and individual interests.45 In fact, courts already make similar inquiries when testing the adequacy of representation in class action suits 46 and third-party intervention.47 By adopting such an approach, the Court would not only give real meaning to these democratic processes, it could also advance

associational rights.48

While these axes would establish a range of procedural mecha¬ nisms outside the current scope of due process protections, they would not have to be written in constitutional stone. Instead, the decisions might frame a constitutional common the power to design ticipatory interests. to the legislature,” 50 "due process” more state.

other methods of protecting the individual’s par¬ Thus, such a jurisprudence could effect a "remand prodding it to discover and develop new systems of compatible with the needs of the administrative

avoid their becoming unduly burdensome.” Id. at 639. While settling for hearings of the type prescribed by the Administrative Procedure Act, the court noted that addi¬ tional safeguards might be required in oth¬ er specific contexts. Id. at 641. But see Harlib v. Lynn, 511 F.2d 51 (7th Cir, 1975).

Cf. § 17-3, infra; Tribe, "Structural Due Process,” 10 Harv.C.R.-C.L.L.Rev. 268 (1975). 44. Professor Mashaw would take a similiar approach in order to shore up the weaknesses in his system of bureaucratic rationality. Thus, he suggests that "a sys¬ tem that provided claimants with special¬ ized representatives . . . could instill somewhat more confidence both that in¬ formed choices were being made concern¬ ing whether to request reconsideration and that relevant evidence was not being over¬ looked. Representatives could also be ex¬ pected to filter out frivolous claims. . . . [They] could also play a mediating role between the claimant’s perceptions of dis¬ tress and the program’s policies.” Mashaw would require the representatives to be laymen (non-lawyers) and government em¬ ployees. He suggests as an example the veterans administration system of claims representatives operating through veterans organizations. J. Mashaw, Bureaucratic Justice 200-201 (1983). 45. To some extent, Justice Blackmun agreed with these views in his concurrence in O’Bannon

v. Town

law,49 leaving legislatures with

Court

Nursing

Center, 447 U.S. 773, 790 (1980) (Black¬ mun, J., concurring), discussed in § 10-7. For example, in his analysis of whether process was due, he tested the nature and quality of representation by the nursing home, agreed that adjudicatory process rights become more important as the indi¬ vidual is singled out, and probed the effects of the current process on both instrumen¬ tal and intrinsic grounds. Id. at 797-82. However, Justice Blackmun failed to dis¬ solve the dichotomy between adjudicatory and representational processes and its con¬ sequent all-or-nothing approach to due pro¬ cess rights. Nevertheless, his cogent anal¬ ysis could well provide a foundation for a better due process jurisprudence. 46. See 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d §§ 1765-1770 (2d ed. 1986); 3B J. Moore & J. Kennedy, Moore’s Practice [[23.07 (2d ed. 1985).

Federal

47. See 7C C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 1909 (2d ed. 1986); 3B J. Moore & J. Kennedy, Moore’s [[24.07 (2d ed. 1985).

Federal Practice

48. See §§ 12-26 and 15-17, infra. 49. See generally Monahan, "The Su¬ preme Court, 1974 Term — Foreword: Con¬ stitutional Common Law,” 89 Harv.L.Rev. 1 (1975). 50. See § 17-2, infra.

768

MODEL

OF GOVERNMENTAL

REGULARITY

Ch. 10

Another recurring suggestion, heard so often perhaps because of its successful introduction in many European countries, is the establish¬ ment of an ombudsman appointed by a court either (1) independently to investigate the accuracy and fairness of administrative agency determi¬ nations, or (2) to assist those dependent upon government benefits and opportunities in directing their complaints and grievances.51 In addi¬ tion to an ombudsman’s instrumental utility in ensuring that legisla¬ tive dictates are accurately carried out when most beneficiaries have neither the knowledge nor the resources to take protective action on their own, such court-appointed investigators might preserve and in¬ deed reinforce the intrinsic purposes of due process hearings by giving more than symbolic content to the participation of individuals in negotiation and compromise with agency decision-makers. Surely these are worthwhile alternatives to ritualistic encounters that may have less significance even as drama than the rhetoric of trial combat encourages lawyers to believe. 51. For a general discussion of the ad¬ vantages of an ombudsman system, see Rubenstein, supra note 21, at 82-87; Verkuil, "The Ombudsman and the Limits of the Adversary System,” 75 Colum.L.Rev. 845 (1975). See also Special Project, "Self Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Soci¬ ety,” 37 Vand.L.Rev. 845, 1031-40 (1984) (pointing out some advantages of an ombudsman, especially in local-govern¬ ment settings). Cf. J. Mashaw, Bureau¬ cratic Justice 226-27 (1983) (suggesting cre¬ ation of a "superbureau” which would "supervise the drafting of administrative legislation, review the competence of agen¬ cy policy analysis, audit administrative performance in the field, provide binding counsel on managerial technique, and hear in the final instance complaints of malad¬

ministration”); Verkuil, "The Emerging Concept of Administrative Procedure,” 78 Colum.L.Rev. 258, 328-29 (1978) (sug¬ gesting expansion of the Administrative Conference to conduct " 'procedural audits’ to evaluate agency performance in a sys¬ tematic manner”); Mashaw, supra note 21, at 776 (suggesting a court-ordered "man¬ agement system for assuring adjudicatory quality in claims processing”); C. Edley, supra note 30, at 374-404, 458-461 (pre¬ scribing a partnership among court, agency and legislature while emphasizing a rather discretionary judicial responsibility to de¬ termine its own level of deference by focus¬ sing on "sound governance” as a goal and utilizing a highly contextual analysis un¬ constrained by the traditional "separation of powers

ethos”).

Chapter 11 MODEL V— THE MODEL OF PREFERRED RIGHTS: LIBERTY BEYOND CONTRACT § 11-1. The Basic Problem of Post-1937 Constitutional Law We saw in Chapters 1 and 8 that 1937 marked a watershed in American constitutional law; it seems fitting that the Bicentennial of the 1787 Constitution should coincide with the Semicentennial of the Constitutional Revolution of 1937. With the final collapse of Model II, the Lochner 1 era drew to a close, inaugurating a search for alternative conceptions of constitutional rights. Although the downfall of Lochner is often explained in institutional terms,2 the persistent involvement of federal judges from 1937 to the present in reviewing the substantive validity of federal and state actions 3 makes that explanation false as a descriptive matter: the basic relation between federal judges and politi¬ cal bodies has continued, without real interruption, to be one in which general constitutional principles are regularly invoked to strike down governmental choices. And as we saw in Chapter 8, the institutional account of Lochner’s demise also seems false on a normative level: the error of decisions like Lochner v. New York 4 lay not in judicial inter¬ vention to protect "liberty” but in a misguided understanding of what liberty actually required in the industrial age.5 The authority and the duty of judges, as well as legislators and executive officials, to seek a better understanding and to enforce it in accord with their constitution¬ al oaths, were undiminished by the revolution of 1937. As Chapters

9 and

10 showed, the constitutional models

most

readily available to fill the vacuum created by Model II’s collapse — the model of settled expectations (Model III) and the model of governmental 1. Lochner (1905).

nists while imprisoning repeated embez¬ zlers); Lanzetta v. New Jersey, 306 U.S. 451 (1939) (state cannot make being a "gangster” a crime).

v. New iYork, 198 U.S. 45 § n-

2. See § 8-7, supra.

4. 198 U.S. 45 (1905).

3. See, e.g., Moore v. East Cleveland, 431 U.S. 494 (1977) (state cannot prevent grandmother from including in her home grandchildren who are not siblings); Stan¬ ley v. Georgia, 394 U.S. 557 (1969) (state cannot punish private possession of obscen¬ ity for personal use); Griswold v. Connecti¬ cut, 381 U.S. 479 (1965) (state cannot pun¬ ish married couple’s use of contraceptives); Aptheker v. Secretary of State, 378 U.S. 500 (1964) (Congress cannot withhold pass¬ ports from members of Communist Party); Robinson v. California, 370 U.S. 660 (1962) (state cannot make narcotics addiction a crime); Skinner v. Oklahoma, 316 U.S. 535 (1942) (state cannot sterilize repeated larce-

769

5. See §§ 8-6, 8-7, supra. See Poe v. Ullman, 367 U.S. 497, 517 (1961) (Douglas, J., dissenting); cf. Moore v. East Cleveland, 431 U.S. 494, 541 (1977) (White, J., dissent¬ ing). Since all of the decisions listed in note 3, supra, involved determinations that the government had deprived persons of liberty in substantive violation of the due process clause of either the fifth or the fourteenth amendment, Judge Craven’s as¬ sertion that "[sjubstantive due process is synonymous with Lochner v. New York,” see Craven, "Personhood: The Right to be Let Alone,” 1976 Duke L.J. 699, 700 n. 4, cannot be taken literally.

770

MODEL

OF PREFERRED

RIGHTS

Ch. 11

regularity (Model IV) — could in the end protect little beyond the entitle¬ ments government chose to confer unless their operation were infused with substantive values beyond those of assuring the fair implementa¬ tion of the state’s own positive decisions. The model most squarely confronting the need to elaborate such values has been Model V, the model of preferred rights. Expressed largely through doctrines involv¬ ing freedom of expression and association,6 rights of political participa¬ tion,7 rights of religious autonomy,8 and rights of privacy and personhood,9 this model has not attempted to define inherent limits on the power of all governmental institutions but has aimed more modestly to exclude governmental

power from specific substantive spheres, by iden¬

tifying and protecting certain "preferred rights” 10 from all but the most compellingly justified instances of governmental intrusion.11 Broad limitations on governmental intervention once thought to be implicit in the internal structure of governmental powers as defined and delimited by common law conceptions were thus replaced by more selective limitations imposed from without.12 Distributions of advan¬ tage through contractual transactions came to be regarded as the shifting products of the economic system as a whole, as often coerced as freely chosen, rather than the fixed contents of a sphere of volition put

.

beyond governmental reach.13 But particular forms of expression, action, or opportunity perceived as touching more deeply and perma¬ nently on human personality came to be regarded as the constituents of freedom rather than the coerced reflections of the economic system, and thus served to set new boundaries on majority rule through law. Throughout the same post-1937 period, a competing Model VI, the model of equal protection, has offered alluring alternatives for constitu¬ tional argument,14 seeking to identify those fundamental aspects of social structure which should be presumptively open to all on equal terms, and those criteria of government classification which are most suspect as likely to reflect habitual reaction and prejudice rather than reflective understanding. Again, as with Model V, it has been possible to give content to this model only through controversial substantive judgments. 6. See Chapter 12, infra.

becomes checked and atrophied. There¬ fore, in considering what interests are so fundamental as to be enshrined in the Due

7. See Chapter 13, infra. 8. See Chapter 14, infra. 9. See Chapter 15, infra. 10. See Murdock v. Pennsylvania, U.S. 105, 115 (1943). 11. See Thomas 530 (1945).

319

v. Collins, 323 U.S. 516,

12. The same transformation from in¬ ternal to external limitations also charac¬ terized the Burger Court’s ill-starred at¬ tempt to set bounds on Congress’ commerce power. See National League of Cities v. Usery, 426 U.S. 833 (1976), and compare § 5-4, supra, with § 5-22, supra. 13. See, e.g., Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring): "[Wjithout freedom of expression, thought

Process Clause, those liberties of the indi¬ vidual which history has attested as the indispensable conditions of an open as against a closed society come to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic ar¬ rangements. . . .” Such a view treats particular contractual arrangements as properly controllable by government sub¬ ject to only minimal judicial scrutiny but is compatible with more searching judicial review of government actions that place some individuals at the economic mercy of others.

§ 11-1

LIBERTY

BEYOND

771

CONTRACT

The source of such substantive judgments in both models, and especially in the model of preferred rights, has itself become a major source of controversy. Part of the sea of argument has swirled about a school of red herring. The question has been debated whether the Supreme Court has the authority to "construct new rights’’ 15 or instead has an "obligation to trace its premises to the charter from which it derives its authority.” 16 Put that way, the question answers itself; yet it merely postpones the inquiry about how the charter’s broad guaran¬ tees— -of due process, equal protection, and privileges or immunities of national citizenship — should be given content. Thus, to say that a principle, however durable and appealing, must not be imposed by the Supreme marks as what is invoking

Court "if it lacks connection with any value the Constitution special” 17 is to say nothing false — but it reveals very little of true. The Lochner error, it bears repeating, was not in a value the Constitution did not mark as special; the text

evinces the most explicit concern with "liberty,” "contract,” and "prop¬ erty.” 18 The error lay in giving that value a perverse content. And to say, at the other extreme, that judicial protection of human rights "would be better justified by explication of contemporary moral and political ideals not drawn from the constitutional text” 19 adds little in this context, for in the end it is the text that invites a collaborative inquiry, involving both the Court and the country, into the contempora¬ ry contents and demands of freedom, fairness, and fraternity. The text does so through majestic generalities that plainly summon judges and lawmakers alike to a task which simply cannot be understood as the deciphering of an ancient scroll, however much the image of purely passive interpreter might suit an enterprise whose legitimacy is some¬ times doubted.20 Truthfully portrayed, the mission of giving content to the due process, equal protection, and privileges or immunities clauses entails an inescapable assumption of responsibility; neither the strate¬ gy of locating that responsibility outside the Constitution, nor the strategy of separating principles of justice "connected” with the Consti1, 47 Ind Pr Am Fi ob en (a . t u 8 rs(t1 L nsle .hJa.t it dmrg 97 m u 1 s u r prp,e” sur mo n ) b e ci do es ot ut ntonngc, isrh re ¬ lmuo rec of thinagpsri th pr d i otg¬ Coe ly,ghtssi ni sin by that Su sitng, he g n z e u p ce no ro re in th rtCo 19 ed lyh,a ns ot m e 20 ve tCi v. sCi e of Ea Se s als Mo lteut t s e or J.t, di veiloan) 5, e at 54 (Wy noo su ss te hi 4 pr en nd., t a ti fo pr am e, ha th Co ’’ n r urof n s co pl ec thThatcr e e t ed rigg)h: ns e e ea w e tsa p n i t r t t ntoio le sh t t n ad t o epe itut he roct ou e a l i s ha t re on Wh Ju wi d s thi i a s l s of ths th l.” bo ticin ur ite the ov terl e th e a e gi e ngRo U.S v. Warrul t4e1d de ab me ci or 0 e de in . ssi v,. gAm Th 11 ti(o1 o e 9 n e 3 e n 73 , or S. ric21 10 Co )o,f Ob nb 6 Ct st ll 6 ur . R an9, e(t g b j J (1 21 ege . r h o Whi y eh 9 9 icti a , i inwe forn- a qui 2-9 J., di86) d n e a r n ss ,ns d it st, 8 , be¬ in ing, thenti ho 5- Co at ng mo 4 ur ti m of p t i a cto, tw ), dsue n he arci ns ee x i l v eascc tsuta n s ean e th nho o l o pe oyns reti nt e me c i n t i t g v l a B S pr tu ed ee l . Har i¬ ow ti ot d¬ er (1 28 wi on 10 S.Cec 28 s 98 4 ck al 6 4 t t 1 46). . ion , , 46 .

16. Ely, ’’The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale L.J. 920, 949 (1973) (arguing, unsurprisingly, that it does). Who could deny it? 17. Id. at 949. 18. On

the latter two, see Chapter 9,

supra. 19. Gray, "Do We Have an Unwritten Constitution?” 27 Stan.L.Rev. 703, 706 (1975). Cf. Corwin, "The 'Higher Law’ Background of American Constitutional Law,” 42 Harv.L.Rev.

149, 365 (1928).

20. See Moore v. City of East Cleveland, supra note 5, at 543 (White, J., dissenting): "Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimen¬ sion, we must always bear in mind that the substantive content of the Clause is sug¬ gested neither by its language nor by preconstitutional history . . . . ” that is an overstatement.

Surely

772

MODEL

OF PREFERRED

Ch. 11

RIGHTS

tution from those lacking this link, can finally alter this reality. How to deal with it— not how to avoid it— is the post-1937 problem.

§ 11-2. Selective Incorporation of Bill of Rights Safeguards Partial Answer

as a

In 1938, in United States v. Carotene Products Co.,1 the Supreme Court suggested that "[t]here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” Nine years later, the Court came within one vote of holding that the fourteenth amendment guaranteed that '"no state could deprive its citizens of the privileges and protections of the Bill of Rights.” 2 Such a holding could have taken either of two forms: most plausibly, it could have emerged as an elaboration of the privileges or immunities of national citizenship; 3 or it could have emerged as a translation of fourteenth amendment "liberty” into the freedoms secured by the Bill of Rights, with the understanding that depriving someone of such liberty "without due process of law” means doing so "where the federal government could not.” 4 In neither form has the full incorporation of the Bill of Rights into the fourteenth amendment ever commanded a majority on the Court,5 but in giving content to the due process clause "the Court has looked increasingly to the Bill of Rights for guidance [to the point where] many of the rights guaranteed by the first eight Amendments” 6 have been "selectively” absorbed into the fourteenth. Thus the due process clause has been held to protect the right to just compensation; 7 the first amendment freedoms of speech,8 press,9 assembly,10 petition,11 free exercise of religion,12 and non-establishment of religion; 13 the fourth amendment rights to be free of unreasonable search and seizure 14 and to exclude from criminal trials evidence illegally seized; 16 the fifth amendment rights to be free of compelled self-incrimination 16 1. 304 U.S. 144, 152 2 n. 4 (1938). § ll2. Adamson

v. California, 332 U.S. 46,

74-75 (1947) (Black, J., dissenting, joined on this issue by Douglas, Murphy, and Rut¬ ledge, JJ.). 3. See Chapter 7, supra. 4. See Black, "Unfinished Business of the Warren Court,” 46 Wash.L.Rev. 3, 34 (1970). 5. Nor has the position of "total incor¬ poration” won scholarly approval. See, e.g., Fairman, "Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding,” Rev. 5 (1949). 6. Duncan 148 (1968).

2 Stan.L.

v. Louisiana, 391 U.S. 145,

7. See, e.g., Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897).

8. See, e.g., Fiske v. Kansas, 274 U.S. 380 (1927). 9. See, e.g., Near v. Minnesota, 283 U.S. 697 (1931). 10. See, e.g., DeJonge U.S. 353 (1937).

v. Oregon, 299

11. See, e.g., Hague v. CIO, 307 U.S. 496 (1939). 12. See, e.g., Cantwell 310 U.S. 296 (1940).

v. Connecticut,

13. See, e.g., Everson v. Board of Educa¬ tion, 330 U.S. 1, 15-16 (1947). 14. See Wolf v. Colorado, 338 U.S. 25 (1949). 15. See Mapp (1961).

v. Ohio, 367 U.S. 643

16. See Malloy v. Hogan, (1964).

378 U.S. 1

§ H-2

LIBERTY

BEYOND

CONTRACT

773

and double jeopardy; 17 the sixth amendment rights to counsel,18 to a speedy 19 and public 20 trial before a jury,21 to an opportunity to confront opposing witnesses,22 and to compulsory process for the purpose of obtaining favorable witnesses; 23 and the eighth amendment right to be free of cruel and unusual punishments.24 In deciding which Bill of Rights provisions to "incorporate,” 25 the Court has said that it was searching for "principle^] of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental” and thus "implicit in the concept of ordered liberty,” 26 or for those principles that were "basic in our system of jurisprudence.” 27 Given the artificiality of an inquiry into whether "a civilized system

could be imagined that would not accord the particular protection,” 28 the Court began in the early 1960’s to proceed "upon the valid assump¬ tion that state criminal processes are not imaginary and theoretical schemes but actual systems bearing [specific] characteristics” and to ask "whether given this kind of system a particular procedure is fundamental — whether, that is, a procedure is necessary to an AngloAmerican regime of ordered liberty.” 29 The reference to "procedure” should not be allowed to obscure the fact that Supreme Court decisions drawing on the Bill of Rights to restrict state action have frequently limited the permissible substance of state law and not merely its procedures for applying rules to particular cases.30 It might have been wiser to ground such substantive 17. See Benton v. Maryland, 395 U.S. 784 (1969).

18. See, e.g., Gideon v. Wainwright, 372 U.S. 335 (1963).

19. See, e.g., Klopfer v. North Carolina, 386 U.S. 213 (1967).

20. See In re Oliver, 333 U.S. 257 (1948).

21. See Duncan

state trials; (b) the right to jury trial ap¬ plies in the same way to state and federal cases; but (c) only a unanimous jury may constitutionally return a criminal convic¬ tion in a federal trial. See id. at 369-80 (separate opinion of Powell, J.). The con¬ tradiction is likely to be resolved by ulti¬ mately abandoning (b).

26. Palko v. Connecticut, 302 U.S. 319, v. Louisiana, 391 U.S.

145 (1968). 22. See, e.g., Pointer v. Texas, 380 U.S. 400 (1965).

23. See Washington v. Texas, 388 U.S. 14 (1967).

24. See Robinson v. California, 370 U.S. 660 (1962).

25. The language of "incorporation” is

perhaps misleading inasmuch as the Bill of Rights provisions remain points of refer¬ ence only. Although the Court ordinarily applies essentially identical constitutional standards to the state and federal govern¬ ments when one of the "incorporated” ar¬ eas is involved, see, e.g., Ker v. California, 374 U.S. 23 (1963) (search and seizure), the congruence is not invariably perfect. See, e.g., Apodaca v. Oregon, 406 U.S. 404 (1972), and Johnson v. Louisiana, 406 U.S. 356 (1972), in which several alignments of Justices produced holdings to the effect that (a) nonunanimous juries may constitu¬ tionally return criminal convictions in

325 (1937) (Cardozo, J.).

27. In re Oliver, 333 U.S. 257, 273 (1948). 28. Duncan v. Louisiana, 391 U.S. 145, 149 n. 14 (1968) (emphasis added).

29. Id. at 148-49 n. 14. The Court ex¬ pressly extended the Duncan approach to substantive due process in Moore v. East Cleveland, 431 U.S. 494, 503-04, & n. 12 (1977). For a powerful attack on the entire notion of "incorporating” Bill of Rights provisions, selectively or otherwise, see Duncan, 391 U.S. at 171-93 (Harlan, J., joined by Stewart, J., dissenting). 30. See, e.g., Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897) (just compen¬ sation); Grosjean v. American Press Co., 297 U.S. 233 (1936) (freedom of press); DeJonge v. Oregon, 299 U.S. 353 (1937) (free¬ dom of assembly); Shelton v. Tucker, 364 U.S. 479 (1960) (freedom of association); Stanley v. Georgia, 394 U.S. 557 (1969) (right to possess even obscene literature in private).

774

MODEL

OF PREFERRED

RIGHTS

Ch. 11

limitations in the privileges or immunities of national citizenship,31 but even if that strategy had been pursued, much the same question would have remained: What besides the rights secured by the first eight amendments are to be counted among the "preferred” freedoms, wheth¬ er operating against the states through the due process clause or through privileges or immunities? The answer, at least if due process were the vehicle, would bear also on the possible existence of substan¬ tive freedoms against federal action beyond those enumerated in the Bill of Rights. In Adamson v. California , Justice Black, joined in dissent by Justice Douglas, treated the Bill of Rights not only as fully incorporated but also as setting an outer boundary on the substantive reach of the fourteenth amendment apart from the equal protection clause.32 Jus¬ tices Murphy and Rutledge, while agreeing with Justice Black on full incorporation, rejected his "reverse incorporation” view and argued that the fourteenth amendment goes beyond extending the Bill of Rights to the States.33 The next section explores the ramifications of that position. § 11-3. Beyond Incorporation: The "Rational Continuum”

Ninth

Amendment

and

the

Justice Harlan’s dissenting opinion in Poe v. Ullman stated the thesis best: 1 "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liber¬ ty’ is not a series of isolated points picked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, . . . that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement.” The history of the framing and ratification of the Constitution and of the Bill of Rights leaves little doubt about the correctness of Justice Harlan’s proposition. Indeed, James Madison introduced the ninth amendment in specific response to the arguments of Hamilton and others that enactment of a Bill of Rights might dangerously suggest "that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.” 2 The ninth amendment, which provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” therefore at least states a rule of construction pointing away from the reverse incorporation view that only the interests secured by the Bill of 31. See Chapter 7, supra. 32. 332 U.S. 46, 69-72, 77-78, 83-85, 89-90 (1947) (dissenting opinion). Justice Black never veered from this view; Justice Douglas did. See, e.g., Griswold v. Con¬ necticut, 381 U.S. 479 (1965).

1. 367 U.S. 497, 543 (1961). 2. 1 Annals of Cong. 439 (Gales and Seaton ed. 1834). § 11-3

LIBERTY

§ 11-3

BEYOND

775

CONTRACT

Rights are encompassed within the fourteenth amendment, and at most provides a positive source of law for fundamental but unmentioned rights.3 In either case, the "Bill of Rights presumes the existence of a substantial body of rights not specifically enumerated but easily per¬ ceived in the broad concept of liberty and so numerous and so obvious as to preclude listing them.” 4 The line of cases protecting, as unenumerated aspects of liberty, the right to teach one’s child a foreign language,5 the right to send one’s child to a private school,6 the right to procreate,7 the right to be free of certain bodily intrusions,8 and the right to travel abroad,9 had set the stage for the most important substantive due process decision of the modern period, Griswold v.

Connecticut .10 That case presented the question whether a married couple could be sent to jail by the State of Connecticut for using birth control.11 Professor Charles Black wrote of Griswold that it was "not so much a case that the law tests as a case that tests the law.” 12 He continued: "If our constitutional law could permit such a thing to happen, then we might almost as well not have any law of constitution¬ al limitations, partly because the thing is so outrageous in itself, and partly because a constitutional law inadequate to deal with such an outrage would be too feeble, in method and doctrine, to deal with a very great amount of equally outrageous material. Virtually all the intima¬ cies, privacies and autonomies of life would be regulable by the legisla¬ ture — not necessarily by the legislature of this year or last year, but, it might be, by the legislature of a hundred years ago, or even by an administrative board in due form thereunto authorized by a recent or long-dead legislature.” The Court held that Connecticut’s law was unconstitutional. Justice Douglas’ opinion for the Court relied on "the zone of privacy created by several fundamental constitutional guaran¬ tees,” explaining that "specific guarantees in the Bill of Rights” — he was referring to the first, third, fourth, fifth, and ninth — "have penum3. See generally B. Patterson, The For¬ gotten Ninth Amendment (1955); Redlich, "Are There 'Certain Rights . . . Retained by the People’,” 37 N.Y.U.L.Rev. 787 (1962). See note 14, infra.

4. 3 Story, Commentaries

on the Consti¬

tution of the United States 715-16 (1833); see also 2 Story, Commentaries on the Con¬ stitution of the United States 626-27, 651 (5th ed. 1891).

wold, see the remarks of Professors Dixon, Emerson, Kauper, McKay, and Sutherland in 64 Mich.L.Rev. 197-288 (1965). 11. Griswold, the Executive Director of the Planned Parenthood League of Con¬ necticut, and its medical director, a li¬ censed physician, were convicted as acces¬ sories for giving married persons information on contraception and for pre¬

262 U.S. 390

scribing a contraceptive for the A Connecticut statute made it a wife’s crime use. for

6. Pierce v. Society of Sisters, 268 U.S. 510 (1925).

any person to use any drug or device to prevent conception. The Court held the statute unconstitutional and concluded that appellants could not be convicted as accessories. The majority opinion focused

5. Meyer (1923).

7. Skinner (1942). 8. Rochin (1952).

v. Nebraska,

v. Oklahoma,

316 U.S. 535

v. California, 342 U.S. 165

not on appellants’ rights, but on those of the married couple. See 381 U.S. at 48586. The Griswold case is discussed further in Chapter 15, infra.

9. Aptheker v. Secretary of State, 378 U.S. 500 (1964).

12. "The Unfinished Business of the

10. 381 U.S. 479 (1965). For useful commentary

in prompt

reaction to Gris¬

Warren (1970).

Court,”

46 Wash.L.Rev.

3, 32

776

MODEL

bras, formed by emanations

OF PREFERRED

RIGHTS

Ch. 11

from those guarantees that help give them

life and substance.” 13 Justice Goldberg, concurring in an opinion joined by Chief Justice Warren and Justice Brennan, agreed that the unmentioned right to privacy resolved the case but was more unabashed about locating the right, with the help of the ninth amendment as a rule of construction,14 in "the concept of liberty,” 15 and had no hesitation in concluding that there existed no sufficiently compelling justification for the state’s drastic infringement of the right.16 Justice Harlan concurred in the judgment but on the still broader ground that the law violated "basic values 'implicit in the concept of ordered liberty’ ” 17 whether or not it could be "found to violate some right assured by the letter or penumbra of the Bill of Rights.” 18 Finding the " '[s]pecific’ provisions of the Constitution” no more precise or determinate than "due process,” 19 Justice Harlan urged replacing the illusory certitude of reliance on the "specifics” with "continual insistence upon the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving Ameri¬ can freedoms.” 20 Justice White, also concurring in the judgment, agreed that the law was a substantial denial of liberty, especially for 13. 381 U.S. at 485. The thesis that Griswold constitutes an adoption by the Court of the civil law method of reasoning by analogy from statute and statute-law is imaginatively developed in Franklin, "The Ninth Amendment as Civil Law Method and Its Implications For Republican Form of Government,” 40 Tul.L.Rev. 487 (1966). Justice Douglas had originally drafted an opinion relying squarely on the first amendment, arguing that the Connecticut law violated freedom of association by in¬ truding on marriage, which "flourishes on the interchange of ideas.” B. Schwartz, The Unpublished Opinions of the Warren Court 235 (1985). At conference, Justice Black had caustically replied that, for him, associational rights stem from the "right of assembly,” and the married couple’s right "to assemble in bed is . . . new ... to me.” Id. at 237. Justice Brennan was similarly unpersuaded that the freedom of assembly clause was of much relevance. Id. Justice Douglas was eventually per¬ suaded to adopt a privacy rationale. Id. at 238. How any of the Justices would have reacted to an argument equating sexual

Civ.Lib.L.Rev. 95, 101-08 (1987). But it is a vital rule — one without which the Bill of Rights might have been more threatening than reassuring, see note 3, supra, and one without which, therefore, the 1787 Consti¬ tution might not have lasted. For argu¬ ments that would give considerable force to the ninth amendment, see J. Ely, Democra¬ cy and Distrust 38 (1980); C. Black, Deci¬ sion According to Law 44-68 (1981). For arguments that would largely empty the ninth amendment of significance, see Ber¬ ger, "The Ninth L.Rev. 1 (1980); Constitution,” 56 (1981). To the

Amendment,” 66 Monaghan, "Our N.Y.U.L.Rev. 353, extent the ninth

Cornell Perfect 366-67 amend¬

ment is deemed a "repository] for an ex¬ ternal schedule of rights,” an argument is available that this "list” was "closed as of 1791 or 1868.” Id. at 367, 395; Dunbar, "James Madison and the Ninth Amend¬ ment,” 42 Va.L.Rev. 627, 641 (1956). But if, as seems plain, the ninth amendment is not a "repository” at all but a prohibition against certain forms of argument by nega¬ tive implication, then the "closed set” posi¬ tion loses most of its plausibility.

intimacy and "expression” with "freedom of speech” is unclear, but there is basis for skepticism.

15. 381 U.S. at 486. Compare the ma¬ jority opinion, id. at 481-82, which purport¬ ed to eschew reliance on fourteenth

14. 381 U.S. at 488-93, 496. It is a common error, but an error nonetheless, to

amendment "liberty” or "due process.” 16. 381 U.S. at 497-98. 17. Id. at 500.

talk of "ninth amendment rights.” The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution. See Tribe, "Con¬ trasting Constitutional Visions: Of Real and Unreal Differences,” 22 Harv.Civ.Rts.-

18. Id. at 499. 19. Id. at 501. 20. Id.

§ H-4

LIBERTY

BEYOND

777

CONTRACT

the "disadvantaged citizens of Connecticut”; 21 but for him the crucial fact was that this denial could not significantly advance any of the purposes the state claimed for it.22 Justices Black and Stewart both dissented, claiming that the majority was usurping a legislative func¬ tion.23 By 1973, however, Justice Stewart had "accepted” Griswold "as one in a long line of . . . cases decided under the doctrine of substan¬ tive due process,” 24 and indeed all nine of the Justices as of 1973 had accepted the Court’s role in giving the fourteenth amendment due process clause substantive content beyond the Bill of Rights, despite significant disagreements over exactly how the role should be per¬ formed.25 The topic of those disagreements is the subject of the next section: Where, beyond the Bill of Rights, is the "substance” in sub¬ stantive due process to come from?

§ 11-4. True and Rights

False Starts in the Search

for Substantive

Justice Frankfurter believed that he could identify "those liberties of the individual which history has attested as the indispensable condi¬ tions of an open as against a inquiry pursued in the spirit of exactly and fairly stated, on the claims, . . . , on a judgment not

closed society” 1 by a science, on a balanced detached consideration ad hoc and episodic but

"disinterested order of facts of conflicting duly mindful

of reconciling the needs both of continuity and of change in a progres¬ sive society.” 2 But after that elaborate wind-up, and despite his references to "considerations deeply rooted in reason and in the compel¬ ling traditions of the legal profession,” 3 Justice Frankfurter could explain only that the stomach-pumping he deemed violative of due process in Rochin v. California was "conduct that shocks the con¬ science.” 4 References to history, tradition, evolving community stan¬ dards, and civilized consensus, can provide suggestive parallels and occasional insights, but it is illusion to suppose that they can yield answers, much less absolve judges of responsibility for developing and 21. Id. at 503.

22. Id. at 504-06. But compare Justice White’s dissent in Moore v. East Cleveland, 431 U.S. 494, 541 (1977), discussed in § 1517, infra.

23. 381 U.S. at 507 (Black, J., joined by Stewart, J.); id. at 527 (Stewart, J., joined by Black, J.).

24. Roe v. Wade, 410 U.S. 113, 168 (1973) (concurring opinion). But compare Justice Stewart’s dissent in Moore v. East Cleveland, supra note 22, at 531 (joined by Rehnquist, J.).

25. See, e.g., Roe v. Wade, 410 U.S. at 152-54 (Blackmun, J., writing for the Court in an opinion joined by Burger, C.J., and by Douglas, Brennan, Stewart, Mar¬ shall, and Powell, JJ.); id. at 172-73 (Rehn¬ quist, J., dissenting); id. at 221-23 (White,

J., dissenting). See also Richmond News¬ papers, Inc. v. Virginia, 448 U.S. 555, 57980 & n. 15 (1980), discussed in § 12-20, infra.

1. Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (concurring opinion). 2. Rochin 172 (1952).

§ H-1

v. California, 342 U.S. 165,

3. Id. at 171.

4. Id. at 172. Compare Irvine v. Cali¬ fornia, 347 U.S. 128 (1954) (invading priva¬ cy with microphone concealed in marital bedroom not so shocking as to render the use of evidence thus obtained violative of due process); but see id. at 142-49 (Frank¬ furter, J., dissenting).

778

MODEL

OF PREFERRED

RIGHTS

Ch. 11

defending a theory of what rights are '"preferred” or "fundamental” under our Constitution and why.5 None of the theories offered to date is wholly satisfying. That some freedoms form "the matrix, the indispensable condition” 6 of all others, helps frame the inquiry. Thus "legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” must be "subjected to more exacting judicial scrutiny” than most laws.7 But even a garden-variety ban on commercial advertising turns out to restrict the fully informed opera¬ tion of the political process.8 And physical survival is certainly as "indispensable” to the enjoyment of other freedoms as are speech or voting. One must be able to express oneself to protest the violation of other rights, but to express oneself one needs at least a decent level of nourishment, shelter, clothing, medical care, and education. To have those things, one needs either employment or income support. Too easily government may purchase the silent acquiescence of the deprived in their own constitutional undoing. People who cannot buy bread cannot follow the suggestion that they eat cake; people bowed under the weight of poverty are unlikely to stand up for their constitutional rights. Yet the Constitution cannot readily be construed to make income support an affirmative duty of the state. The effort to identify the "indispensable conditions of an open society” thus proves inseparable from the much larger enterprise of identifying the elements of being human — and deciding which of those

431 U.S 494 (19 dis in §§ 1577) . 1 cus 15inf the S,u Cou hel th7a, s e p d r ra, f t d an 20e,x ami rehmaes a cotns te rig t ndl i E ly Cle dteistu t ht o ievde n ast pittio he vel n cit o str liamnd thee raell a¬ y’s rdin ict iti tiv who caonu liv tolgy asng a "fa c e e lde op etohf Ju Th s plu Pmoiwl ini e er sti eyl.l” ral joi by Jiuts Bron Mar ce an,d e yt n Bl ed souices esc nnan fro tshheallper o ac ape , m ght , ils f k jud mun sub in his an tra d di¬ ici , jec tor tio al "O dteic est tha the y v u r Conn: proistyio the abslain otf the sc tec ns s fam titu pre betcs the ihntsity of tit ily tio cis aus n iseldy the fam roeo in thi uNtaiton e e s ted ilay his tra ply Id. at 503 Buiton’sas n d , tor dit . Jus y Wh saiio in dis "[w the i deetic roo te tra d n.” osfentthe cou ]ha are dit ted , plye ntr t is arg and "iwons of th dey the pruoab of the hiDcuhe Pro em Cla serv is tecle ces use e eve mor ti”odneb Id. at 54s9 And as eS . b ,J ata j Jusn i d n u iss tew o y s¬ ti ent art ble.ined ” tic cReeh a t " i , he tra m¬ nqu of th erxgued d pore f i A i n a m t mil io ist e ten, eri ta ¬ can nlcife nee, not imdped tha ya panral e t t d l ” cit or to ma n yf a l it w yI aot 5 ollon 7 Mess curlaadi¬ tioy pat n r w d . t 37 . or . nal ter eov yo Jus Br n. joi in his con f E er, e t n c ast opi ice by nnJauns Maerd str urri the ,ti Cle ess ng n ce of esxhal vel spe ion im f as a miled tenl, po and cia r ded tato t alt, l niuecs nc he "tra ern lea e for atesp for rac ditian eth m d i i e nicT ri¬ al nn ona6vescIida. at 50 norm, & rad . l”10 9l i tio tieaslo thluy can 10 exp th.e Mo i¬ . ne or n s lai not e n

decision. Indeed even the plurality opin¬ ion in Moore, despite its attempt to use history to limit the judiciary, see id. at 503 n. 12, undertook a functional rather than purely historical analysis when it reasoned that "[i]t is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.” Id. at 503-04. Nor would it be consistent with the rationale of Moore to withhold the status of preferred rights in Model V from those practices or institutions that "incul¬ cate and pass down” values that the cur¬ rent majority might not deem among its "most cherished,” for the plurality opin¬ ion’s closing sentence insisted that "the Constitution prevents East Cleveland from standardizing its children — and its adults — by forcing all to live in certain narrowly defined family patterns.” Id. at 506. Both the historical inquiry and the functional analysis, then, must proceed at a level general enough to avoid the trap of sanctifying the conventional and prevent¬ ing moral and cultural change. See also §§ 15-20, 15-21, infra. 6. Palko v. Connecticut, 302 U.S. 319, 327 (1937). 7. United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938). 8. See Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748, 765 (1976), discussed in § 12-15, infra.

LIBERTY

§ H-4

BEYOND

CONTRACT

779

elements are left entirely to politics to protect, and which are entrusted to protection by judicial decree. Not surprisingly, the judicially pro¬ tectable may include aspects of material well-being as well as the more ethereal facets of life ordinarily associated with constitutional protec¬ tions.9 Thus the attempt to distinguish the rights protected during the Lochner 10 era from the preferred rights of Model V in terms of a supposed dichotomy between economic and personal rights must fail,11 and a wider conception of what human beings require becomes unavoid¬ able. The day may indeed come when a general doctrine under the fifth and fourteenth amendments recognizes for each individual a constitutional right to a decent level of affirmative governmental pro¬ tection in meeting the basic human needs of physical survival and security, health and housing, work and schooling. The time may come when constitutional law will answer the scholar’s question, "Why education and not golf?” 12 with a reply that is likely to make human sense — "Because education is more important” — and when this answer, however odd it will seem to some lawyers,13 will seem inescapable to those who take their lessons from life itself. But despite straws in the wind and strands of doctrine pointing in this general direction,14 that time has not yet come,15 and constitutional lawyers must continue to struggle with less sweeping solutions and more tentative doctrinal tools. The enterprise of discovering and defending fundamental constitu¬ tional rights in the text and structure of the Constitution contains three additional dimensions that must be noted before embarking upon the more particular inquiries of Chapters 12 through 15. The first is the dimension of justification: granted that there is a constitutional "right” to X, what sorts of considerations warrant governmental re¬ striction of that right? In the chapters that follow,16 this question proves central. Without attempting to answer it here, we might simply observe that the two most conventional answers — the first focusing on the supposed distinction between self-regarding conduct and conduct affecting others,17 and the second focusing on the supposed distinction 9. See, e.g., §§ 15-9, 15-13, 16-33, infra.

Thus the Court has already recognized that state actions that limit access to the means of effectuating a protected decision are sub¬ ject to much the same strict scrutiny as are state actions that prohibit the decision en¬ tirely. Carey v. Population Services Inter¬ national, 431 U.S. 678, 697-99 (1977) (in¬ validating state ban on distribution of nonmedical contraceptives except through licensed pharmacists).

10. See Lochner v. New York, 198 U.S. 45 (1905), discussed in Chapter 8, supra.

11. See § 15-13, infra. 12. See Michelman,

’The

83 Harv.L.Rev.

13. Compare

Woodrow

the spirit of the age,” W. Wilson, Constitu¬ tional Government in the United States 69 (1927).

14. See §§ 8-7, 9-8, 10-9, and 10-19, supra, and §§ 15-9, 16-8, 16-33, 16-35, 1649, 16-50, 16-59, infra. 15. See, e.g., Maher v. Roe, 432 U.S. 464, 469 (1977) (upholding state refusal to fund nontherapeutic abortions): "The Con¬ stitution imposes no obligation on the States to pay the pregnancy-related medi¬ cal expenses of indigent women, or indeed

Supreme

Court, 1968 Term — Foreword: On Protect¬ ing the Poor through the Fourteenth Amendment,”

States is not a mere lawyers’ document; it is a vehicle of life, and its spirit is always

7, 59 (1969).

Wilson’s obser¬

vation: "[T]he Constitution of the United

to pay any of the medical expenses of indi¬

16. See Chapters 12-16, infra. gents.”

17. See §§ 15-1 to 15-3, infra.

780

MODEL

OF PREFERRED

RIGHTS

Ch. 11

between moral and utilitarian reasons for regulating behavior 18 — both prove strikingly unhelpful in constitutional law and theory. The second dimension to be noted at the outset is that of institu¬ tional role: granted that a particular right is fundamental, and that only considerations of a particular sort can warrant its infringement, when should that mean strict judicial scrutiny of measures that appear to infringe the right without sufficient warrant? Again, factors rele¬ vant to that question will arise throughout the chapters that follow, but one feature in particular seems worth pointing out. In Stanley v. Illinois , in holding that an unwed father was entitled to a hearing on his fitness as a parent before his child could be taken from him by the state, the Court observed that "the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizen¬ ry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.” 19 What makes some values more "fragile” and others more "robust” is a difficult question. Political fragility — and thus the need for special judicial protection — may be present even when a value is of universally recognized importance, and even when its deprivation would be universally perceived as a misfortune. For it is less the importance of a value than the character and intensity of its involvement in a given case that determines its political resilience in that specific situation. When a value is intangible, or its involvement in a choice diffuse, the fact that the choice threatens that value may not outweigh the immediate gains that tempt government to sacrifice it. Thus values of speech, religion, and privacy exemplify concerns whose ubiquity and widely acknowledged importance have not rendered them politically invulnerable. Finally, even though other values — such as vocational freedom or adequate food and housing — are anything but intangible, the irreversible harm of their denial may warrant a degree of judicial scrutiny undiminished by the political visibility of appeals for nutrition or shelter — especially since those who are most severely deprived are likely to be "discrete and insular minorities,” 20 not the politically powerful. The third dimension is that of penalty vs. subsidy: given the conclusion that a particular activity or choice is protected as a matter of constitutional right, it follows that making the protected choice may not subject one to governmental punishment. But must the govern¬ ment go so far as to support the choice affirmatively — even with public funds? And, if not, how is one to distinguish selectively withholding support from imposing a penalty? That is the subject of the next section. 18. See § 15-10, infra. 19. 405 U.S. 645, 656 (1972).

20. United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938).

§ 11-5

LIBERTY BEYOND

CONTRACT

§ 11-5. The Elusive Distinction Between and Imposing a Penalty A problem pervading much

Withholding

of contemporary

781

a Subsidy

constitutional law is

that of drawing a workable distinction between government’s undoubt¬ edly broad power to decide which activities to subsidize or otherwise encourage, and government’s considerably narrower power to decide which activities to penalize or otherwise discourage, whether directly or by attaching conditions to various privileges or gratuities. The notion that, whenever a privilege or benefit might be withheld altogether, it may be withheld on whatever conditions government chooses to impose, has been repeatedly repudiated since the mid-20th century.1 Independently unconstitutional conditions — those that make enjoyment of a benefit contingent on sacrifice of an independent consti¬ tutional right — are invalid; whether a condition is unconstitutional depends on whether government may properly demand sacrifice of the alleged right in the particular context. That was the holding of FCC v. League of Women tion .3

Voters 2 and of Babbitt v. Planned Parenthood

1. See, e.g., Sherbert v. Verner, 374 § H-5 U.S. 398 (1963) (state may not deny unem¬ ployment benefits to person who refuses to work on Saturday for religious reasons). 2. 468 U.S. 364 (1984). By a 5-4 vote, the Court invalidated a provision of the Public Broadcasting Act that prohibited any noncommercial educational station re¬ ceiving public funds from endorsing candi¬ dates or editorializing. The stations were thus forced to give up their right to engage in quintessential first amendment expres¬ sion if they wished to receive public subsi¬ dies for any of their programming. Writ¬ ing for the Court, Justice Brennan concluded that the ban suppressed protect¬ ed speech without being narrowly tailored to the goal of providing a balanced presen¬ tation of issues to the public. Id. at 380, 395. Upon close inspection of the statute, the Court rejected Justice Stevens’ argu¬ ment, id. at 414-16 (dissenting opinion), that the law was a legitimate way to pre¬ clude the insidious tendency that public funding might have to induce stations to skew their editorials in favor of the govern¬ ment, or their endorsements in favor of incumbents, in order to improve their pros¬ pects for continued benefits. In dissent, Justice Rehnquist, joined by Chief Justice Burger and Justice White, protested that all Congress had done was to attach to a discretionary subsidy a requirement that the managers of educational stations not promote their private views at public ex¬ pense. Id. at 405. 3. 107 S.Ct. 391 (1986), affg Planned Parenthood of Central & Northern Arizona v. State of Arizona, 789 F.2d 1348 (9th Cir. 1986). An Arizona bill appropriating state

Federa¬

funds to pay for family-planning services contained a provision forbidding the chan¬ neling of any such funds "to agencies or entities which offer abortions, abortion procedures, counseling for abortion proce¬ dures or abortion referrals.” Planned Parenthood sued to enjoin enforcement of this prohibition. The state sought to de¬ fend the prohibition as a prophylactic mea¬ sure designed to implement the state’s right, under Maher v. Roe, 432 U.S. 464 (1977), to withhold public funds from abor¬ tion-related services. The state argued that, because "it was impossible for the state to monitor use of the funds to prevent their use for abortion-related services,” 789 F.2d at 1350, through a system of "ear¬ marking ...[,] tracing [,] [and] audit¬ ing,” id. at 1351, the state’s only way to prevent use of its funds for abortion-relat¬ ed activities was to keep organizations like Planned Parenthood from obtaining state family-planning funds for any purpose. The Ninth Circuit held that no such impos¬ sibility had been established and that, on the contrary, Planned Parenthood had "successfully segregated state funds from its abortion-related expenditures.” Id. at 1351. The court flatly rejected any notion that such funding segregation is inherently illusory and that " any expenditure on abortion-related activities necessarily is de¬ rived from state funds” to the extent that those funds constitute a portion of the re¬ cipient’s budget, id. at 1350 (emphasis in original). Although Chief Justice Rehn¬ quist, Justice White, and Justice Scalia would have set the case for plenary brief¬ ing and argument rather than summarily affirming, it would be difficult to justify any result other than the one the Ninth Circuit reached without holding, in effect,

782

MODEL

OF PREFERRED

RIGHTS

Ch. 11

But the fact that government may not penalize exercise of a right by withholding an otherwise discretionary benefit does not imply that government must subsidize exercise of the right. Thus, although Planned Parenthood makes it clear that those who undergo, perform, or counsel abortion may not be required to cease those activities as a condition of receiving public funding for their other activities, it cer¬ tainly does not follow that government must pay for abortions or abortion counseling. Indeed, the Supreme Court held in Harris v. McRae 4 that the government

is even free to influence an indigent

pregnant woman’s constitutionally protected reproductive choice by refusing public health funds for abortions while fully subsidizing medi¬ cal care for childbirth within its comprehensive medical benefits pro¬ gram. Even when

the Constitution forbids government

to interfere with

an individual’s choice between two alternatives — such as the choice between abortion and childbirth, or that between public and private education— it does not follow that government may not put its thumb on the scale by subsidizing one alternative but not the other. Were that not the case, the subsidy of public schooling would entail a constitutional duty to subsidize the private alternatives that, under Pierce u. Society of Sisters ,5 the government

must leave parents free to

choose. "It cannot be that because government may not prohibit the use of contraceptives, or prevent parents from sending their child to a private school, government, therefore, has an affirmative obligation to ensure that all persons have the financial resources to obtain contra¬ ceptives or send their children to private schools.” 6 Whatever one thinks of the validity of educational voucher plans,7 one surely cannot argue that the Constitution compels government to institute them. There may well be settings, however, in which the very decision to subsidize one activity entails a decision to penalize another. Thus, if government were to pay a bounty to those who agreed to vote for incumbents, it would necessarily be penalizing supporters of the oppos¬ ing candidates, in clear violation of basic norms of equality inherent in the franchise.8 Arguably, too, if government were to fund all who advocate freedom of abortion — but not those who advocate saving the fetus — it would in effect be penalizing the "pro-life” position.9 Or if government were to permit tax-deductable contributions to be used by pro-life advocates in their lobbying efforts while refusing "pro-choice” advocates the same privilege, it might be said to have penalized the latter. that wholly speculative difficulties of seg¬ regating and monitoring public funds give the government a lever over all recipients of such funds whereby such recipients may be forced to choose between foregoing pub¬ lic subsidy and abandoning private activi¬ ties in which the first and fourteenth amendments

entitle those recipients to en¬

gage.

cu

ss

ed

in mo re

de

ta

il

in Ch ap te r

15

,

in

fr

a.

5. 268 U.S. 510 (1925). 6. Harris v. McRae, (citations omitted).

448 U.S. at 318

7. See Chapters 14 and 16, infra. 8. See Chapters 13 and 14, infra. 9. Cf. Arkansas Writers’ Project, Inc. v. Ragland, 107 S.Ct. 1722 (1987) (invalidat¬ ing state tax on general-interest magazines that exempts newspapers and religious, professional, trade, and sports journals).

§ 11-5

LIBERTY

This sort of argument

BEYOND

CONTRACT

may be made

783

with some plausibility in any

zero-sum situation, in which amplifying the vote or even one side is the same as muffling the vote or the voice of the the Court has been properly reluctant to regard selective certain voices as automatically having such a viewpoint

the voice of other. But subsidies of (or even a

subject-matter) bias. Note, for example, the unanimous conclusion of the Court in Regan v. Taxation With Representation (TWR ) that a governmental decision to subsidize the political lobbying of veterans’ organizations but of no other organizations, through rules permitting only the former to engage in such lobbying with tax-deductible contri¬ butions, is subject to no heightened first amendment scrutiny.10 Even when viewpoint bias is acknowledged, a complicating feature of the analysis arises from whatever special freedom government might be thought to enjoy when it acts less as a regulator of expression than as a participant in the marketplace of ideas.11 When government adds its own voice to the dialogue, and perhaps also when it subsidizes the voices of its surrogates, it is not subject to the usual form or level of first amendment scrutiny. A second complicating feature in the analysis arises because gov¬ ernment’s power to set the terms on which it offers a subsidy must be thought to include at least some power to restrict not only how that very subsidy is used but also certain other activities of the subsidized person or entity when those other activities bear a close enough relationship to use of the subsidy. Hence, for example, the power to restrict use of public campaign funds has been held, in Buckley v. Valeo , to include a power to cap even the private campaign expendi¬ tures of those who receive such public funds.12 Although the Court in the same case held campaign expenditure limits invalid under the first amendment in the absence of public funding,13 and although the Court has held that public funding does not permit imposition of a cap on independent expenditures made by others on behalf of the publiclyfunded candidate,14 it is understandable that the Court should have concluded, in Buckley v. Valeo , that a candidate may be forced to choose between running a campaign funded exclusively with a public grant and running a campaign funded solely with unlimited private spending. A third complication arises whenever the government’s authority to limit use of a public subsidy, and the recipient’s right not to be penalized for independently protected activity, come together in the 11. See § 12-4, infra. th sel ra a tes fo mi r ti e ec¬ n t on A go waim up tiv su a l u s b v l t h shia ithvoe ewri mee y,utg dsy lon m reewld. nt nt e g ar o hra i p ¬h as sp th su depp ns n ub¬ ec in ch gs Ad seial Pe dortu lic em e mi4 rvs F ni to ofploMa n4i2 U.S . o e t r n e ie ymss . n n e e s a p st e ov ( 25 (1 97 entcuhpuh er l quay, rot ra¬ 6 , os 9) l e ve cti ab a lleidtit ch t sos emera on ci in sftentsgi pr all l e v u a r plns e e m il totveicre omiyl’ pr te e, me fer ngeit se e w e o e n a n b t m to¬i¬ a ac rd ta ), se ce snot witle pre rv c ry hs mat feo ic o w tr ess pr om ic rtrhe e r it ad iv edr h e it il io o " t w bu fo egof ben h c i na f e t vo th ur a rlmo e peof l re ice liit ud nc t,i er . ca y” l

12. 424 U.S. 1, 99 (1976). Compare South Dakota v. Dole, 107 S.Ct. 2793, 2796 (1987) (upholding Congress’ authority to withhold federal highway funds from states that fail to raise the drinking age to 21, on the theory that such failure relates closely enough to highway safety, and hence to proper use of the federal subsidy in question), discussed in § 5-10, note 13, supra. 13. Id. at 58-59. 14. See Federal Election Comm’n NCPAC, 470 U.S. 480, 493 (1985).

v.

784

MODEL

OF PREFERRED

RIGHTS

Ch. 11

same case. Both features were involved in Regan v. TWR , inasmuch as the Court was unanimous in agreeing that government should be free not to subsidize political lobbying,15 but it also seemed clear that government could not penalize lobbying with private funds by one who received a public subsidy for other activities.16 The structure of the Internal Revenue Code made it possible for both principles to be respected, since the Code permitted organizations eligible for taxdeductible contributions under § 501(c)(3) to retain that status while setting up financially independent but wholly controlled § 501(c)(4) lobbying arms that would conduct lobbying directed by their § 501(c)(3) affiliates but funded without benefit of any taxpayer-assisted dollars. This statutory scheme, which the majority noted 17 and which the concurring opinion expressly deemed crucial,18 should be regarded as indispensable to the Regan v. TWR holding.19 Finally, cases might arise in which the option of setting up a separately funded lobbying arm poses serious independent difficulties. For example, telling broadcast licensees that they may engage in political editorializing without losing their public funding (as FCC v. League of Women Voters holds they must be permitted to do), but insisting that all of their political editorializing be cleanly separated from the rest of the programming — that there be a sharp division between culture and politics— would entail a problematic intrusion into those broadcasters’ editorial discretion.20 Even more severe constitu¬ tional problems would be posed by telling churches that they may retain their tax-exempt status under § 501(c)(3) only if they conduct all of their lobbying efforts through separately funded affiliates rather than from the pulpit.21 Whenever a problematic degree of governmental entanglement would be required to police such a division, the compromise solution approved in Regan v. TWR might be unavailable. A choice would then have to be made— a choice between (1) denying government the ability to restrict the use private recipients may make of public subsidies (thereby freeing some individuals or groups to lobby with public funds, for example), and (2) giving government that ability by denying recipi¬ ents the opportunity to receive public subsidies without sacrificing their freedom to use private funds for exercise of private rights (thereby putting some to what would otherwise seem to be an unconstitutional choice). 15. See Cammarano 358 U.S. 498 (1959).

v. United

States,

16. For example, food stamp recipients surely could not be told they would be cut off and left to starve if they were to use other funds to try to influence the political process. 17. 461 U.S. at 544. 18. Id. at 552-53.

19. Cf. Babbitt v. Planned Parenthood of Arizona, 107 S.Ct. 391 (1986), affg Planned Parenthood of Central & North¬ ern Arizona v. Arizona, 789 F.2d 1348 (9th Cir. 1986), discussed in note 3, supra. 20. See

CBS

v. FCC,

453

U.S. 367

(1981), discussed in § 12-25, infra. 21. See §§ 14-11, 14-14, infra.

RIGHTS § 12-1. The

Chapter 12 OF COMMUNICATION EXPRESSION

System

AND

of Free Expression

To speak of the "purposes” of the first amendment’s protections of speech, press, assembly, petition, and (by implication) association,1 is to risk begging the central question posed by the Constitution’s most majestic guarantee: is the freedom of speech 2 to be regarded only as a means to some further end — like successful self-government, or social stability, or (somewhat less instrumentally) the discovery and dissemi¬ nation of truth-— or is freedom of speech in part also an end in itself, an expression of the sort of society we wish to become and the sort of persons we wish to be? No adequate conception of so basic an element of our fundamental law, it will be argued here, can be developed in purely instrumental or "purposive” terms.3 No doubt the most familiar theory of free speech gives it little beyond an instrumental role. Milton had evoked the happy image of truth and falsehood grappling "in a free and open encounter,” 4 and Holmes followed suit in one of the most famous of his celebrated dissents: "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. . . . But when men have real¬ ized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct 3. Attempts to develop a first amend¬ ment jurisprudence based on historical evi¬ dence regarding the intent of the framers have proven quite manipulable. Compare L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American

1. The complete §text 12-1of the first amend¬ ment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Govern¬ ment for a redress of grievances.” Const., amend. I. Freedom

History (1960) (contending that the fram¬ ers had no meaningful experience with freedom of expression and understood it to mean no more than freedom from prior restraint), with L. Levy, Emergence of a Free Press xi (1985) (revising earlier views;

U.S.

of association is not mentioned

in the constitutional text, but it is recog¬ nized at least as a derivative safeguard of an individual’s rights of speech and assem¬ bly when exercised in a group. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

1798”). See generally, Anderson, Book Re¬ view: "Levy v. Levy,” 84 Mich.L.Rev. 777 (1986).

(1958). See § 12-26 infra.

2. Throughout

for example, "Americans respected free¬ dom of expression far more than theoreti¬ cians and legalists acknowledged before

4. ty of ment 23-38

this chapter, "freedom

of speech” will be employed as shorthand for the entire collection of freedoms (other than those pertaining specifically to reli¬ gion) secured from government interfer¬ ence by the first amendment. On religion, see Chapter 14, infra.

785

Areopagitica, A Speech for the Liber¬ Unlicensed Printing, To the Parlia¬ of England (1644), in Prose Writings (Everyman ed. 1927).

786

COMMUNICATION

AND

EXPRESSION

Ch. 12

that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution . . . . ” 5 This "marketplace of ideas” argument for freedom of speech may at times serve liberty well, but it relies too dangerously on metaphor for a theory that purports to be more hard-headed than literary. How do we know that the analogy of the market is an apt one? Especially when the wealthy have more access to the most potent media of communication than the poor, how sure can we be that "free trade in ideas” is likely to generate truth? 6 And what of falsity: is not the right to differ about what is "the truth” subtly endangered by a theory that perceives communication as no more than a system of transactions for vanquishing what is false? 7 What, finally, of speech as an expression of self? As a cry of impulse no less than as a dispassionate contribution to intellectual dialogue? Closely related to the "marketplace of ideas” theory but even narrower in its reach and more preclusive in its implications has been the view that free speech is protected by the first amendment as essential to intelligent self-government in a democratic system. As expounded by Alexander Meiklejohn, its most widely cited proponent,8 this theory would limit the special guarantees of the first amendment to public discussion of issues of civic importance; 9 in exchange

for

offering supposedly "absolute” protection 10 to a political category of discourse, the theory would relegate to only minimal due-process pro¬ tection 11 everything outside that category. When critics respond that the "public issues” category is obviously far too narrow unless it becomes almost infinitely expandable,12 the theory — in the hands of all States, 250 U.S.

valuable contribution to the public debate,

616, 630 (1919) (Holmes, J., joined by Bran-

since it brings about 'the clearer percep¬ tion and livelier impression of truth, pro¬

5. Abrams

v. United

deis, J., dissenting). See Rabban, "The Emergence of Modern First Amendment Doctrine,” 50 U.Chi.L.Rev. 1205 (1983) (dis¬ cussing the development of the views of Zechariah Chafee, Oliver Wendell Holmes, and Louis Brandeis): Holmes’ original views, expressed in Schenck v. United States, 249 U.S. 47 (1919), were decidedly not libertarian. Chafee, however, in "Freedom of Speech in War Time,” 32 Harv.L.Rev. 932 (1919), provided a conve¬ nient, although historically inaccurate, framework that Holmes, and later Bran¬ deis, ultimately adopted. See also Rogat & O’Fallon, "Mr. Justice Holmes: A Dissent¬ ing Opinion — The Speech Cases,” 36 Stan. L.Rev. 1349 (1984). 6. For powerful critiques of the market¬ place model, see Baker, "Scope of the First Amendment Freedom of Speech,” 25 U.C. L.A.L.Rev. 964 (1978); Ingber, "The Mar¬ ketplace of Ideas: A Legitimizing Myth,” 1984 Duke L.J. 1. 7. Compare New York Times v. Sulli¬ van, 376 U.S. 254, 279 n. 19 (1964) ("Even a false statement may be deemed to make a

duced by its collision with error,’ ” quoting John Stuart Mill), with Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) ("there is no constitutional value in false statements of fact”), discussed further in § 12-13, infra. 8. See A. Meiklejohn, Free Speech and Its Relation to Self-Government (1948); A. Meiklejohn, Political Freedom (1960). For an early anticipation of Meiklejohn, see Stromberg v. California, 283 U.S. 359, 369 (1931). 9. See, e.g., A. Meiklejohn 18-19, 22-27 (1948). All other "speech” would be pro¬ tected only by substantive due process. 10. See Meiklejohn, "The First Amend¬ ment is an Absolute,” 1961 Sup.Ct.Rev. 245 (1961). 11. That is, the same protection to which such liberties as the freedom to con¬ tract or to go on a picnic are now entitled. 12. See, e.g., Chafee, Book Harv.L.Rev. 891, 900 (1949).

Review, 62

§ 12-1

COMMUNICATION

AND

EXPRESSION

787

but its truest believers 13 — obligingly expands to encompass "novels and dramas and paintings and poems,” 14 as well as even commercial infor¬ mation,15 insofar as all of these may indirectly contribute to the sophis¬ tication and wisdom of the electorate. Yet when the theory has been thus expanded, it tells us disappointingly little. Indeed, in none of its forms does it tell us a great deal, since it takes for granted the virtues of the self-governance to which it argues that free speech is so necessary. But once one asks why self-government and political participation are to be valued, one is apt to come to an answer that immediately suggests a broader ground for valuing freedom of speech itself, and hence a broader notion of what "speech” is to be protected. Theorists defending free speech as crucial to the polity in a representative system are inclined to respond to the " why ” by arguing that political participa¬ tion is valuable in part because it enhances personal growth and selfrealization.16 But if that is so, then do not those values themselves explain much of our commitment to freedom of speech without the intermediate step of the Meiklejohn thesis? And do they not explain it in terms broad enough to encompass the full sweep of expressional activity with far less strain? 17 More generally, it must be said that Meiklejohn’s conception of the first amendment, and Holmes’, were both far too focused on intellect and rationality to accommodate the emotive role of free expression — its place in the evolution, definition, and proclamation of individual and group identity. Justice Harlan

was to recognize in Cohen

v. Califor¬

nia 18 that expression "conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.” In holding constitutionally protected an act (wearing a jacket bearing the words "Fuck the Draft” into a courthouse corridor) that the dissent dismissed as "mainly conduct and little speech,” 19 Justice Harlan’s opinion for the majority implictly rejected the hoary dichoto¬ my between reason and desire that so often constricts the reach of the 13. See Bork, "Neutral Principles and Some First Amendment L.J. 1, 20-35 (1971).

Problems,” 47 Ind.

14. Meiklejohn, "The First Amendment is an Absolute,” 1961 Sup.Ct.Rev. 245, 263 (1961). See also Abood v. Detroit Board of Education, 431 U.S. 209 (1977): "But our cases have never suggested that expression about philosophical, social, artistic, eco¬ nomic, literary, or ethical matters ... is not entitled to full First Amendment pro¬ tection.” Id. at 231.

15. See Virginia Board of Pharmacy

v.

Virginia Consumer Council, 425 U.S. 748, 765 (1976) (information about drug prices must not be suppressed; it is vital not only to consumer choices in a market system but also "to the formation of intelligent opinions as to how that system ought to be regulated or altered”).

16. See, e.g., J. S. Mill, Considerations on Representative Government 203 (1882). Cf. Muller, Issues of Freedom 50 (1960).

17. Many thinkers have grounded their defenses of free expression on notions of self-realization and self-fulfillment. See, e.g., R. Dworkin, Taking Rights Seriously (1977); M. Redish, Freedom of Expression: A Critical Analysis (1984); Baker, "Scope of the First Amendment Freedom of Speech,” 25 U.C.L.A.L.Rev. 964 (1978); Redish, "The Value of Free Speech,” 130 U.Pa.L.Rev. 591 (1982); Richards, "Free Speech and Obscenity Law: Toward a Mor¬ al Theory of the First Amendment,” 123 U.Pa.L.Rev. 45 (1974). But critics have argued that speech is but one possible selfexpressive activity — motorcycle riding might be another — and that therefore speech cannot claim a special status on that basis. See F. Schauer, Free Speech: A Philosophical Enquiry 47-72 (1982); Schauer, "Must Speech Be Special?”, 78 Nw.U.L.Rev. 1284 (1983).

18. 403 U.S. 15, 26 (1971). 19. Id. at 27 (Blackmun, J., joined by Burger, C.J., and Black, J., dissenting).

788

COMMUNICATION

AND

Ch. 12

EXPRESSION

first amendment. At least implicitly, the Cohen Court projected a more capacious image of the place occupied by free expression in our system, defending the "constitutional right of free expression” as "putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” 20 This broader vision was evoked nearly half a century earlier by Justice Brandeis’ masterful concurrence in Whitney v. California : 21 "Those who won our independence believed that the final end of the State was to make men free to develop their faculties. . . . They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness

and courage to be the secret of liber¬

ty. . . . ” Brandeis wisely went on to defend "freedom to think as you will and to speak as you think” as a "means indispensable to the discovery and spread of political truth” 22 and as essential both to "stable government” 23 and to "political change.” 24 But he did not make the mistake of reducing freedom of speech to its instrumental role in the political system. Those who defend freedom of speech as an end in itself and as a constitutive part of personal and group autonomy 25 at times err in the opposite direction, by forgetting that freedom of speech is also central to the workings of a tolerably responsive and responsible democracy and that at least some of the first amendment’s most convincing implications follow directly from this perspective.26 And even those who conceive the freedom of speech from the dual perspective of selfrealization and political operation 27 occasionally err by defining "speech” itself in ways too confined and question-begging to fit comfort¬ ably the breadth of their theoretical justification for its special constitu20. Id. at 24 (emphasis added). 21. 274 U.S. 357, 375 (1927) (Brandeis, J., joined by Holmes, J., concurring). 22. Id. 23. Id. 24. Id. at 377. 25. See, e.g., Scanlon, "A Theory of Free Expression,” 1 Phil. & Pub.Aff. 204 (1972). 26. Compare

Scanlon, supra note 25, at

205-206, with Kalven, "The New York Times Case: A Note on The Central Mean¬ ing of the First Amendment,’ ” 1964 Sup. Ct.Rev. 191, 205 (1964) (deriving the Su¬ preme Court’s New York Times decision, discussed infra in § 12-12, from the core conviction "that defamation of the govern¬ ment is an impossible notion for a democ¬ racy”). See also Blasi, "The Checking Value in First Amendment Theory,” 1977 Am. B. Found. Research J. 521, 593 (pro¬ posing that an important function of the first amendment is to restrain government;

newsgathering

privileges, for example,

might be justified on the theory that "the professional press [performs] a special watchdog function over public officials”). See § 12-22, infra. Cf. Schauer, "The Role of the People in First Amendment Theo¬ ry,” 74 Calif.L.Rev. 761, 780-82 (1986) (ad¬ vocating "greater respect [in first amend¬ ment theory] for majoritarian decisions” that represent the popular will). For a broader theory linking the first amend¬ ment to the values of tolerance and diversi¬ ty, see L. Bollinger, The Tolerant Society (1986) (arguing that the urge to suppress disagreeable speech is but one aspect of a more general desire to suppress all beliefs and behavior that appear to pose a threat to the established order, and that freedom of speech is important apart from any value of the speech itself, because it serves as a low-cost means of demonstrating and instilling habits of tolerance).

7

es

. 0)

pr on

si

m

do

ee

97 (1

6-

Ex

of

Fr

§ 12-2

COMMUNICATION

AND

EXPRESSION

789

tional status, compensating for their generous notion of why speech merits protection by adopting an artificial dichotomy between (protect¬ ed) speech-related conduct in which "expression” predominates and (unprotected) conduct in which "action” is dominant.28 No satisfactory jurisprudence of free speech can be built upon such partial or compromised notions of the bases for expressional protection or the boundaries of the conduct to be protected. However tempting it may be to resist governmental claims for restricting speech by retreat¬ ing to an artificially narrowed zone and then defending it without limit, any such course is likely in the end to sacrifice too much to strategic maneuver: the claims for suppression will persist, and the defense will be no stronger for having withdrawn to arbitrarily constricted territory. Any adequate conception of freedom of speech must instead draw upon several strands of theory in order to protect a rich variety of expres¬ sional modes.29 § 12-2. The Two Ways in Which Government Speech — And the Two Corresponding Amendment Analysis

Might "Abridge” "Tracks” of First

Government can "abridge” speech in either of two ways. First , government can aim at ideas or information, in the sense of singling out actions for government control or penalty either (a) because of the specific message or viewpoint such actions express, or (b) because of the effects produced by awareness of the information or ideas such actions impart. Government punishment of publications critical of the state would illustrate (a),1 as would government discharge of public employ¬ ees found in possession of "subversive” literature.2 Government prohi¬ bition of any act making consumers aware of the prices of over-thecounter drugs would illustrate (b),3 as would a ban on the teaching of a foreign language 4 or a prohibition against discussing a political candi¬ date on the last day of an election.5 Second , without aiming at ideas or information in either of the above senses, government can constrict the flow of information and ideas while pursuing other goals, either (a) by limiting an activity through which information and ideas might be 28. See, e.g., Emerson, supra, note 27,

For discussion of the free speech rights of

at 80-89 (excluding certain expressional

public employees, see § 12-18, infra. Cf. Herndon v. Lowry, 301 U.S. 242 (1937) (literature taken from black organizer for

conduct as more dominantly "action” than "speech”), discussed in § 12-7, infra. Con¬ trast Meiklejohn, Free Speech and its Rela¬ tion to Self-Government 42-43 (1948).

29. See Shiffrin, "The

First Amend¬

ment and Economic Regulation: Away From a General Theory of the First Amendment,”

78 Nw.U.L.Rev.

Communist Party, advocating "equal rights for the Negroes and self-determina¬ tion for the Black Beit” as well as unem¬ ployment compensation and social insur¬ ance, was wholly insufficient proof of attempt to incite an insurrection).

1212 (1983).

Times v. Sulli¬ 1. See, e.g., New§ 1York 2-2 van, 376 U.S. 254, 276 (1964) (Sedition Act of 1798 unconstitutional) (dictum).

2. See, e.g., Keyishian v. Board of Re¬

gents, 385 U.S. 589 (1967) (invalidating statute barring teachers from employment in the schools merely on the basis of mem¬ bership in "subversive” organizations).

3. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (invali¬ dating such a prohibition). 4. See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923) (invalidating such a ban). 5. See, e.g., Mills v. Alabama, 384 U.S. 214 (1966) (invalidating such a prohibition).

790

COMMUNICATION

AND

EXPRESSION

Ch. 12

conveyed, or (b) by enforcing rules compliance with which might dis¬ courage the communication of ideas or information. Government prohibitions against loudspeakers in residential areas would illustrate (a).6 Governmental demands for testimony before grand juries notwith¬ standing the desire of informants to remain anonymous would illus¬ trate (b),7 as would ceilings on campaign contributions.8 The first form of abridgment may be summarized as encompassing government ac¬ tions aimed at communicative impact ; the second, as encompassing government actions aimed at noncommunicative impact but nonetheless having adverse effects on communicative opportunity.9 Any adverse government action aimed at communicative impact is presumptively at odds with the first amendment. For if the constitu¬ tional guarantee means anything, it means that, ordinarily at least, "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content . . . ”.10 And if the constitu¬ tional guarantee is not to be trivialized, it must mean that government cannot justify restrictions on free expression by reference to the ad¬ verse consequences of allowing certain ideas or information to enter the realm of discussion and awareness.11 Whatever might in theory be said either way, the choice between "the dangers of suppressing information 6. See, e.g., Kovacs v. Cooper, 336 U.S. 77 (1949) (upholding such prohibitions).

7. See, e.g., Branzburg v. Hayes, 408 U.S. 665 (1972) (upholding such demands). . 8. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) (upholding such ceil¬ ings, but invalidating ceilings on campaign expenditures).

cert, granted sub nom. Boos v. Barry, 107 S;Ct. 1282 (1987) (No. 86-803); Note, "Con¬ tent Regulation and the Dimensions of Free Expression,” 96 Harv.L.Rev. 1854, 1856 n. 15 (1983).

ma v. Vi Ci Co Co un n(s cilcy Inc 42r5ginU.S 74t8ize(19 w ¬ s u h t n i , m i ., s o76) d ateurp chb pr ad a . f ru teri y ve oh ces g r i t 9. See Ely, "Flag Desecration: A Case ph bit ost is to ma pro in Study in the Roles of Categorization and fesb ens iang siarma edst p t ha ai mo ¬y on ci an i b rmh n i Balancing in First Amendment Analysis,” su al sts daprri coly ng a eclid nva mp pp , dsce lid st et re 88 Harv.L.Rev. 1482 (1975); Scanlon, "A it wa ss th sta s be g a "b o c in e al ion s ca hi y t Theory of Freedom of Expression,” 1 Phil. e g ev Ce ’sin ig , kHe use p e e Gaop & El v P dSenrtr & Pub.Aff. 204 (1972); Nimmer, "The uedpi ec nor.a ubl s le viacl Meaning of Symbolic Speech Under the song . i n e n Co 447 U.S 557 581 c(e1”9 c (St m , . 8 ) e m First Amendment,” 21 U.C.L.A.L.Rev. 29 J., c’on in ju (st 0;) vdeonw n.c, dg rik (1973). Se u a v o t f a ordsn,, m s iol rr f he irsen me i e n er g t t) nd Vi a i of sta tivuetnig co whme pro rg of 10. Police Department of the City in icnt mm te ia h , thoibipro ultiity firs ad Chicago v. Mosley, 408 U.S. 92, 95-96 Sta ed publi t¬ ¬ v s o lit er mio (1972) (ordinance prohibiting picketing in tem c t i n t u o e " j e i tioBotoea fohre tshe rfes lectr is [ntso]ihneg ustifmo the vicinity of school held invalid because, e g th r icra e ul fici t i th n d tohfe ex t a a n t e h h u in allowing exception for labor union pick¬ ti ar y; at e g di ¬ an Ph pre o e n eting, the state had not been content-neu¬ ma fi ar¬th sseduti me pe nce r n e sRui dBu tral). Although the Court has sometimes si y s Pli dsesa Pu ac¬ g e t v Tee ostay’s C r declared that the first amendment almost e Asve”) . ou da o. of Pue to Ricoo so . s( ri2 , 10 ciaS. 29 (ruto s9m7 19 completely prohibits governmental regula¬ p 68 6 teCt. 86 p ho 8w sRi Pu st,a tion of speech because of its content, this is )ro ld the hi ca er t h c u i n t h ca bi toingth ad o of tgea ultimately an untenable position, at least e s t v mb po erti of Pu Rliicn whi inpose ed descriptively — witness the Court’s doc¬ e p rm leP it Ri ad ulat seme a rt o o g trines in the areas of defamation, see ue t c ve io nt ime o uts r to ciongo; da su idead ma rti n fo t §§ 12-12, 12-13, infra, obscenity, see § 12h uld ch ve jo s un t be rreity ing d in ord to pr rtis loc r lb, infra, and commercial speech, see § 12esi gu ev ing al er ¬ l 15, infra. See also Finzer v. Barry, 798 e den farte en in law nt but "po omd ga ful F.2d 1450, 1468 (D.C. Cir. 1986) (comment¬ gi co ti ts ha Wh ten¬ n a n r Po ll ma mf be regc wit co eth du ing that "a total ban on content-based re¬ s y nt e i y o c ra ada fre sp ul donci i hd strictions of any sort” would require that ct le t”) s isc empor n ry s e ee ri d . us ch first amendment law be "revolutionized”), ne se ¬ § 12inf d ra. 15,

COMMUNICATION

AND

EXPRESSION

791

§ 12-2

and the dangers of its misuse if it is freely available” is, ultimately, a choice "that the First Amendment makes for us.” 12 A government action belonging to the second category is of a different order altogether. If it is thought intolerable for government to ban all distribution of handbills in order to combat litter,13 for example, the objection must be that the values of free expression are more important constitutionally than those of clean streets at low cost; if a ban on noisy picketing in a hospital zone is acceptable, the reason must be that the harmful consequences of this particular form of expressive behavior, quite apart from any ideas it might convey, out¬ weigh the good.14 Where government aims at the noncommunicative impact of an act, the correct result in any particular case thus reflects some "balancing” of the competing interests; 15 regulatory choices aimed at harms not caused by ideas or information as such are acceptable so long as they do not unduly constrict the flow of informa¬ tion and ideas.16 In such cases, the first amendment does not make the choice, but instead requires a "thumb” on the scale to assure that the balance struck in any particular situation properly reflects the central position of free expression in the constitutional scheme.17 The Supreme Court has evolved two distinct approaches to the resolution of first amendment claims; the two correspond to the two ways in which government may "abridge” speech.18 If a government regulation is aimed at the communicative impact of an act, analysis should proceed along what we will call track one. On that track, a regulation is unconstitutional unless government

shows that the mes¬

sage being suppressed poses a "clear and present danger,” constitutes a 12. Virginia Board, 425 U.S. at 770. See § 12-15, infra. 13. See Schneider v. State, 308 U.S. 147 (1939) (purpose of keeping streets clean in¬ sufficient to justify an ordinance which prohibits all public distribution of hand¬ bills). 14. See Grayned v. Rockford, 408 U.S. 104 (1972) (upholding validity of ordinance which barred noisy demonstrations on streets abutting schools while classes were in session). 15. See Scanlon, "A Theory of Freedom of Expression,” supra note 9, at 222. See also Konigsberg v. State Bar of California, 366 U.S. 36, 50-51 (1961) (Harlan, J.) ("gen¬ eral regulatory statutes, not intended to control the content of speech but inciden¬ tally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade . . . , when they have been found justified by subordinating valid governmental inter¬ ests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved”). 16. See Cox v. New Hampshire, 312 U.S. 569, 574 (1941) (upholding ordinance requir¬ ing parade permits where official discretion

was limited exclusively to considerations of time, place, and manner): "(T]he question in a particular case is whether [a] control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the oppor¬ tunities for the communication of thought ...” (emphasis added). See also San Fran¬ cisco Arts & Athletics, Inc. v. United States Olympic Committee, 107 S.Ct. 2971, 2981 (1987) (applying track-two analysis to Con¬ gress’ assignment of "Olympic” trademark preventing group organizing Gay Olympics from using that term). 17. The phrase is Professor Kalven’s. See "The Concept of the Public Forum: Cox v. Louisiana,” 1965 Sup.Ct.Rev. 1, 28. 18. The Court has long recognized that government may "abridge” speech in dis¬ tinct ways requiring distinct judicial meth¬ ods. See, e.g., Konisberg v. State Bar of California, 366 U.S. 36, 49-51 (1961). Even Justice Black distinguished "direct” abridgments which the first amendment from "indirect”is absolutely prohibited abridgments whose constitutionality tested by balancing the competing inter¬ ests. See Freund, "Mr. Justice Black and the Judicial Function,” 14 U.C.L.A.L.Rev. 467, 471-72 (1967).

792

COMMUNICATION

AND

EXPRESSION

Ch. 12

defamatory falsehood, or otherwise falls on the unprotected side of one of the lines the Court has drawn to distinguish those expressive acts privileged by the first amendment from those open to government regulation with only minimal due process scrutiny. If a government regulation is aimed at the noncommunicative impact of an act, its analysis proceeds on what we will call track two. On that track, a regulation is constitutional, even as applied to expressive conduct, so long as it does not unduly constrict the flow of information and ideas. On track two, the ''balance” between the values of freedom of expres¬ sion and the government’s regulatory interests is struck on a case-by¬ case basis, guided by whatever unifying principles may be articulated. A recurring debate in first amendment

jurisprudence

has been

whether first amendment rights are "absolute” in the sense that government may not "abridge” them at all, or whether the first amendment requires the "balancing” of competing interests in the sense that free speech values and the government’s competing justifica¬ tions must be isolated and weighed in each case.19 The two poles of this debate are best understood as corresponding to the two approaches, track one and track two; on the first, the absolutists essentially prevail; on the second, the balancers are by and large victorious. While the "absolutes” — "balancing” controversy may have been "unfortunate, misleading and unnecessary,” 20 it has generated several important observations. First, the "balancers” are right in concluding that it is impossible to escape the task of weighing the competing considerations. Although only the case-by-case approach of track two takes the form of an explicit evaluation of the importance of the governmental interests said to justify each challenged regulation, similar judgments underlie the categorical definitions on track one.21 Any exclusion of a class of activities from first amendment safeguards represents an implicit con¬ clusion that the governmental interests in regulating those activities are such as to justify whatever limitation is thereby placed on the free expression of ideas. Thus, determinations th

ma

of th se Ju Ha is e st co rl nn i n a er c d di by Gu "I Se e of nJu n s ar C ci cu Qu onnth a Ch Tdhi¬ chou al ss al e a e rt ng r, edo itJ : Ca P 2 S i f yus ta ow ng 4 s n ti F el 10 e (1 a " ceir ab .L.R stof Jmuenl,” soar ev dis in 01 th 97m2a Bl )n.n lue . ¬ stdm e ac te ic en k e s”Mr cu by Kar "U e t Re . s lv r Ju sed Bl onen th Firpon Am ead 14 s ac , e en i k U. tice 42 (s1t dmTh ng "ab C. 96 8 e so eng lu L. — "b 7) co ¬ t e t nt wh . an es exA. al l th ,n”e re ro ic ” teL. an ite e ra ad r c ve h teedr ca sa nsiRvev iinng thatu Me rs d e¬ r n y mp e . ” e e nd ba S l M "Oels th Me o thte Fi ee e Aemnd Abo e in th f n a n e e . rs snoenel in t luFr so g d t8ea2n Ba 50 mCean, ( s1tz 196 la nlti Fr nc "T Fi Af:m. in th 2B)a; rs l e an e h L e e . an tz, ,7”1 Ya L.tJ 14 nRde(1 Fr "I¬s 24 Lmve.96 — A aRn . thce,” Fi Alme to etpz, awnt2); rs e en ly ? t Pr Me dm 51 Ca 72 li 9 of nd e f e n el (1 ss Me "T Fi ALm . t r so P he an963 tohr Jnude Ast Re .eRen to Mr n,roc dil . d ); e pl vd.m ” cs es y e S Fr 17 iVaoaln, 4 ( s: nt ee 19 79 an nd 64 tz .L ). ,” .R ev . e

of the reach of first amend-

also, Baker, "Unreasoned Reasonableness: Mandatory Parade Permits and Time, Place, and Manner Restrictions,” 78 Nw. U.L.Rev. 937 (1983) (advocating an "absolu¬ tist” rather than a "reasonableness” or balancing theory). 20. Kalven, "Upon Rereading Mr. Jus¬ tice Black on the First Amendment,” supra note 19, at 442-44: "But the whole balanc¬ ing 'war’ seems to me to have been a fruitless one, generating on the one hand an unnecessary philosophic debate and ob¬ scuring on the other by its large rhetoric, a hard technical free speech issue.” 21. Nimmer expresses this thought in the term "definitional” balancing. See "The Right to Speak from Time to Time,” 56 Calif.L.Rev. 935, 942 (1968). See also Mendelson, "The First Amendment and the Judicial Process: A Reply to Mr. Frantz,” (1964).

17 Vand.L.Rev.

479, 481-83

§ 12-2

COMMUNICATION

AND

793

EXPRESSION

ment protections on either track presuppose some form of "balancing” whether or not they appear to do so. The question is whether the "balance” should be struck for all cases in the process of framing particular categorical definitions, or whether the "balance” should be calibrated anew on a case-by-case basis.22 The "absolutists” may well have been right in believing that their approach was better calculated to protect freedoms of expression, espe¬ cially in times of crisis.23 If the judicial branch is to protect dissenters from a majority’s tyranny, it cannot be satisfied with a process of review that requires a court to assess after each incident a myriad of facts, to guess at the risks created by expressive conduct, and to assign a specific value to the hard-to-measure worth of particular instances of free expression.24 The results of any such process of review will be some "famous victories” for the cause of free expression, but will leave no one very sure that any particular expressive act will find a constitu¬ tional shield.25 When the Supreme Court draws categorical lines, creating rules of privilege defined in terms of a few factors largely independent of context, judicial authority speaks directly to the legisla¬ ture by means of a facial examination of laws without regard to the context in which they are applied.26 And categorical rules, by drawing clear lines, are usually less open to manipulation because they leave less room for the prejudices of the factfinder to insinuate themselves into a decision.27 The jury after all is a majoritarian institution,28 and 22. For a discussion of the debate over whether the balance should be struck on an ad hoc or categorical basis, see Schauer, "Categories and the First Amendment: A Play in Three Acts,” 34 Vand.L.Rev. 265 (1983); Schlag, "An Attack on Categorical Approaches to Freedom of Speech,” 30 U.C. L.A.L.Rev. 671 (1983). For an "eclectic” approach that relies on several different styles of balancing, see Shiffrin, "The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment,” 78 Nw.U.L.Rev. 1212, 125153 (1983). See also § 12-18, infra. 23. See L. Bollinger, The Tolerant Soci¬ ety (1986) (arguing that protecting free ex¬ pression can instill values of tolerance in the citizenry); Blasi, "The Pathological Perspective and the First Amendment,” 85 Colum.L.Rev. 449, 449-50 (1985) (proposing that the first amendment should be equipped "to do maximum service in those historical periods when intolerance of un¬ orthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically. The first amendment, in other words, should be targeted for the worst of times.”); Ely, "Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis,” 88 Harv.L. Rev. 1482, 1500-1502 (1975). 24. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 343-44 (1974) (Powell, J.): To scrutinize and weigh the competing inter¬

ests in every libel case "would lead to unpredictable results and uncertain expec¬ tations, and it could render our duty to supervise the lower courts unmanageable . . . [W]e must lay down broad rules of general application.” 25. See Note, "The First Amendment Overbreadth Doctrine,” 83 Harv.L. Rev. 844, 865-871 (1970). 26. See Linde, " 'Clear and Present Danger’ Reexamined: Dissonance in the Brandenberg Concerto,” 22 Stan. L. Rev. 1163, 1174-1182 (1970) (arguing that the first amendment should be seen as directed at the legislative process of "making a law” so as to prevent legislators from writ¬ ing laws directed in terms against speech). 27. See Ely, supra note 23, at 1501. 28. Because much of the present impor¬ tance of the first amendment lies in pro¬ tecting unpopular speech, it is doubtful that "the jury is a reliable factfinder in free speech cases. The jury may be an adequate reflector of the community’s con¬ science, but that conscience is not and nev¬ er has been very tolerant of dissent.” Monaghan, "First Amendment Due Pro¬ cess,” 83 Harv.L.Rev. 518, 529 (1970). The problem of jury insensitivity to first amendment values has repeatedly arisen in the defamation cases. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-50 (1974) (common law doctrines of presumed and punitive damages

in defamation

ac-

794

COMMUNICATION

AND

EXPRESSION

Ch. 12

judges historically have been drawn from more conservative groups. Categorical rules thus tend to protect the system of free expression better because they are more likely to work in spite of the defects in the human machinery on which we must rely to preserve fundamental liberties. The balancing approach is contrastingly a slippery slope; once an issue is seen as a matter of degree, first amendment protections become especially reliant on the sympathetic administration of the law. On track two, when government does not seek to suppress any idea or message as such, there seems little escape from this quagmire of ad hoc judgment, although a few categorical rules are possible.29 But on track one, when the government’s concern is with message content, it has proven both possible and necessary to proceed categorically.30

§ 12-3. Separating Content-Based Abridgments from Those Inde¬ pendent of Expressive Content: Getting Onto Track One Government may be deemed to have "abridged” speech in the first sense, thus triggering track-one analysis,1 if on its face a governmental action is targeted at ideas or information that government seeks to suppress,2 or if a governmental action neutral on its face was motivated by (i.e., would not have occurred but for) an intent to single out constitutionally protected speech for control or penalty.3 Of course, the target of government action will be instantly recognizable if the govern¬ ment openly admits that its purpose is limiting information or sup¬ pressing an idea, but government will ordinarily defend a restriction on free expression by reference to some danger beyond the speech itself — often, by invoking the permissive talisman of "time, place, or manner” regulation.4 Any inference that government’s aim is keeping people tions impermissibly leave juries with un¬ controlled discretion to award damages bearing no relation to actual injuries and thereby selectively punish expressions of unpopular views), discussed in § 12-13, in¬ fra. 29. See, e.g., § 12-23, infra. 30. See §§ 12-8 to 12-19, infra. 1. See § 12-2, supra. § 12-3 2. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (statute singling out information about drug prices); Cohen v. California, 403 U.S. 15 (1971) (statute singling out offensive con¬ duct, applied to offensive language); Bran¬ denburg v. Ohio, 395 U.S. 444 (1969) (stat¬ ute singling out advocacy of the doctrines of criminal syndication). In each of these cases, the Court determined that the limit on speech was invalid upon finding that government could not justify the regula¬ tion by reference to "an important or sub¬ stantial governmental interest [that] is un¬ related to the suppression of free expression.

...”

United

States

v.

O’Brien, 391 U.S. 367, 377 (1968). The O’Brien opinion, upholding a law against draft-card destruction, defined this test in the course of distinguishing the case from Stromberg v. California, 283 U.S. 359 (1931): "The case at bar is therefore unlike one where the alleged governmental inter¬ est in regulating conduct arises in some measure because the communication alleg¬ edly integral to the conduct is itself thought to be harmful. In Stromberg v. California . . ., for example, this Court struck down a statutory phrase which pun¬ ished people who expressed their 'opposi¬ tion to organized government’ by display¬ badge, banner, or device.’ ” ing 'any 391 U.S. flag, at 382. 3. See § 12-5, infra. 4. See, e.g., Tinker v. Des Moines School District, 393 U.S. 503 (1969), where the state sought to justify a "place” regula¬ tion (forbidding the wearing of armbands in school as a protest against the war) on the basis of the reaction which it engen¬ dered. See id. at 526 (Harlan, J., dissent¬ ing). John Ely, in "Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analy-

§ 12-3

COMMUNICATION

AND

795

EXPRESSION

ignorant of ideas or information that it considers dangerous must normally be made in the first instance from the face of the statute. The notion that the first amendment

protects the free flow of ideas

and information leads to the conclusion that the amendment’s guaran¬ tees, on track one at least, apply to the speech involved, and not just to the source. The central teaching of the Court’s decision in First National Bank of Boston v. Bellottif striking down a state ban on corporate advocacy, is that the first amendment protects speech wheth¬ er or not it protects the particular speaker.6 The Massachusetts statute invalidated in First National Bank represented a bold attempt to silence corporate opposition to a proposed constitutional amendment authorizing the state legislature to impose a graduated individual income tax. The law forbade certain categories of corporations 7 to expend funds to communicate their views about any referendum subject that did not materially affect the corporate busi¬ ness.8 To be sure that the courts would not miss its point, the legislature further specified that a ballot question concerning the taxation of individuals was deemed not to affect materially the business of any corporation.9 The law thus identified a particular issue and silenced a particular class of speakers with regard to it. Few restric¬ tions could be more offensive to a norm of viewpoint-neutrality than the government "dictating the subjects about which persons may speak and the speakers who may address a public issue.” 10 The Court’s analysis emphasized that the interests of the potential audience are independent of the identity of the speaker. The rights at stake were those of Massachusetts’ voters to information that would enable them to evaluate the merits of the referendum issue, and the sis,” 88 Harv.L.Rev. 1482, 1498 (1975), rightly stresses that "what sort of regula¬ tion it really is” is irrelevant, as well as unintelligible. The critical inquiry is whether the state chooses to (or must) jus¬

not lose its constitutional shield simply be¬ cause its source is a corporation. See also Consolidated Edison Co. v. Public Serv.

tify the regulation by reference to dangers

Comm’n. of New York, 447 U.S. 530, 53334 (1980); Schneider, "Free Speech and Corporate Freedom: A Comment on First

that flow from an act’s communicative tent.

National Bank of Boston v. Bellotti,” 59 S.Cal.L.Rev. 1227 (1986) (criticizing the de¬

con¬

5. 435 U.S. 765 (1978). Justice Powell delivered the opinion of the Court, in which Chief Justice Burger and Justices Stewart, Blackmun, and Stevens joined. The Chief Justice also filed a concurring opinion. Justice White dissented, joined by Justices Brennan and Marshall. Jus¬ tice Rehnquist filed a separate dissenting opinion.

6. See, e.g., Lamont v. Postmaster Gen¬ eral, 381 U.S. 301 (1965) (receipt of mail protected; source was outside U.S. and hence unprotected); Stanley v. Georgia, 394 U.S. 557 (1969) (possession in home protected; source was vendor of obscene material and hence unprotected). The Court did not decide in First National Bank that corporations have first amend¬ ment rights; it reserved that question. 435 U.S. at 777 & n. 13. The Court decided only that otherwise protected speech does

cision as a product of a "new formalism” Supreme Court jurisprudence).

in

7. Essentially, only banks and business corporations were covered. The law did not apply to non-profit corporations, var¬ ious trusts, labor unions, or associations. 435 U.S. at 785, 793. The Massachusetts Supreme Judicial Court subsequently held that the law was also intended to ban all referendum advocacy through expendi¬ tures by municipal or other public corpora¬ tions, and upheld this construction. An¬ derson v. Boston, 376 Mass. 178, 380 N.E.2d 628 (1978), motion to vacate stay order denied, 439 U.S. 951 (1978), appeal dismissed, 439 U.S. 1060 (1979). 8. Mass. Gen. Laws

Ch. 55 § 8.

9. 435 U.S. at 769-70 n. 3. 10. Id. at 785.

.

796

COMMUNICATION

AND

EXPRESSION

Ch. 12

"[t]he inherent worth of the speech in terms of its capacity for inform¬ ing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” 11 The state could in¬ fringe these rights only upon a showing — here absent — that its law was both necessary and narrowly tailored to serve a "compelling” state interest.12 While the view that corporate speech is constitutionally protected remains controversial,13 it is difficult to reject the principle, endorsed by First National Bank , that first amendment analysis must focus on the speech itself and not only on the speaker, and that speaker-based restrictions on speech may amount to impermissible censorship of the flow of ideas and information regarding the relevant set of listeners even if the speakers subject to restriction cannot complain that their rights as speakers have been violated.14 11. Id. at 777. 12. Id. at 786.

The

Court voiced no

doubt about the legitimacy of the state’s interest in preventing corporations from exerting undue influence on the outcome of the referendum, id. at 788-89, but held that the state could not simply assume that corporate expenditures would distort the referendum process. Id. at 789-92. In Cit¬ izens Against Rent Control v. Berkeley, 454 U.S. 290 (1981), the Court similarly struck down on first amendment grounds a law limiting to $250 the amount of contri¬ butions that any person could make to support advocacy on a ballot measure and prohibiting organizations from receiving contributions that would cause a person to exceed his $250 limit. See also Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) (con¬ cluding that limitations on campaign con¬ tributions and expenditures reduce the quantity of political speech and thus war¬ rant exacting first amendment scrutiny; the Court upheld contribution limits but struck down regulations on expenditures), discussed in § 13-27, infra. 13. See Pacific Gas & Elec. v. Public Utility Comm’n. of California, 106 S.Ct. 903, 920-22 (1986) (Rehnquist, J., dissent¬ ing) (attacking the majority’s holding that corporate entities retain first amendment rights not to serve as vehicles for speech on important matters of public policy, where state public utility commission ordered utility to place newsletter of consumer rate-payer organization in its monthly bill¬ ing envelope); Central Hudson Gas & Elec,

Yale L.J. 235, 236 (1981) (arguing that con¬ stitutional protection for corporate speech "could significantly reduce the regulatory power of government over an institution whose existence is uniquely a function of government authorization, whose power and wealth often far exceed those of the government that created it, and that has long been a subject of pervasive govern¬ ment regulation”). Professor Brudney con¬ tends that the number of shareholders who disagree with the political expenditures of management "is not trivial.” Id. at 237. The power of the state to forbid the corpo¬ ration from making wasteful expenditures, whether on speech or other activities, is necessary to protect the property interest of stockholders. "A’s right to receive infor¬ mation does not require the state to permit B to steal from C the funds that will enable B to make the communication.” Id. at 247. Brudney therefore recommends a govern¬ ment requirement of unanimous stockhold¬ er consent for noncommercial corporate speech. See also Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977) (invalidat¬ ing state rule which permitted collective bargaining agreements with state employ¬ ees including mandatory contributions for union political speech).

A st re sp so s e m en ate co tr fo ak ex ma e i jo i p ennst ct unr er-amp fr la y, in bo io ba le om ga it ion n ick a agsi utlo s. as it etha anns bsoe , st r in s iong ri ydc d n T g e so g nSae fo ot do ba ra kes r tsin si el,l .g., ea, t . , i U. 3y5 In v V st on Lo m2 s 69 c. er al ca S. ¬84 5 . oggt 4 , s l , pi ag in (u (1 , v. Public Service Comm’n., 447 U.S. 557, 95 ck ai ju ph 584 (1980) (Rehnquist, J., dissenting) (state e nts nsc ol u u l in 7) be ttai ni t¬ hte aw di nd g ca rule prohibited electric utility from adver¬ to an on"’u amtoen st us of cnog er r e o e rc tising to promote the use of electricity; "I St sn¬ NL un v. Re pu la at eg i t w r Tior ( 1 L U E po ni on oc RB t0e0 Saai mpfu y disagree with the majority’s conclusion tle d l f l 1 a s e (euc (1 60l 44 e on U. In lo Co that the speech of a state-created monopo¬ To ”) , S. s. ye .) 98 oh p 7 7 ly, which is the subject of abe comprehensive pr t;h NL 0) un ol fr es ,or de oh at io di om R regulatory scheme, is entitledsur to protection bo en B rin a se ib n whng e, it v yc i co ga t e t t edia ot of thich he hr gi co nd under the First Amendment”); he Brudney, bi rd t e n n a Co '‘Business Corporations and Stockholders’ ur Se o al F omPio rAy "T lit Th V pta ate gL th 91 e f soir cpe m he y re al ermt neadd Rights Under the First Amendment,” e- ue as , en st sies de Sy s: dm up r ). s¬ he en ld t

§ 12-3

COMMUNICATION

AND

EXPRESSION

797

A series of seven hypothetical cases, six dealt with in this section and a seventh in § 12-4, may clarify the inferential process that is required in determining whether to classify a government measure as designed to suppress particular ideas or categories of information. Compare

these ordinances:

(1) A misdemeanor to affix on a government building any sign expressing opposition to former governors of Georgia, and Two Rungs and a (Labor) Black Hole,” 11 Hast.Con.L.Q. 189 (1984); Note, '’Peaceful Labor Picketing and the First Amend¬ ment,” 82 Colum.L.Rev. 1469 (1982). The Court has also upheld limits on speech by management in a union representation election campaign. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 616 (1969) (upholding NLRB finding of an unfair la¬ bor practice where management communi¬ cations were cast as a threat of retaliatory action and not as a prediction of "demon¬ strable economic consequences”); NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964) (upholding NLRB decision to set aside an election where several weeks be¬ fore the representation election a company had sent its employees a letter that men¬ tioned several new benefits; "the danger inherent in well-timed increases is the sug¬ gestion of a fist inside the velvet glove”). See J. Getman, S. Goldberg & J. Herman, Union Representation Elections: Law & Reality (1976) (contending that representa¬ tion campaign speech has negligible effect on the outcome of the election); Getman, "Labor Law and Free Speech: The Curious Policy of Limited Expression,” 43 Md.L. Rev. 4 (1984) (criticizing restrictions on both union and employer speech); Posner, "The Constitution As Mirror: Tribe’s Con¬ stitutional Choices,” 84 Mich.L.Rev. 551, 564 (1986) (noting the parallel nature of restrictions on labor and management speech). Similar activities conducted by organizations other than unions or man¬ agement would enjoy first amendment pro¬ tection. Compare NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (finding economic civil rights boycott protected by the first amendment), with Int’l Long¬ shoremen’s Ass’n v. Allied Int’l, 456 U.S. 212 (1982) (political boycott by labor union is not protected expression).

In some contexts, the Court has invali¬ dated challenged restrictions on speech without addressing the speaker-based ineqalities implicit in those restrictions. See, e.g., Consolidated Edison Co. v. Public Service Comm’n., 447 U.S. 530 (1980) (striking down Commission rule that pro¬ hibited public utilities, but not other com¬ panies, from including inserts in monthly billing envelopes); Village of Schaumburg

v. Citizens for a Better Environment,

444

U.S. 620 (1980) (invalidating municipal or¬ dinance restricting solicitation by charities that did not use 75 percent of their receipts for "charitable purposes”). But the Court has upheld, after highly deferential review, arrangements that confer benefits and sub¬ sidies on selected speakers. See, e.g., Re¬ gan v. Taxation With Representation, 461 U.S. 540 (1983) (sustaining the constitu¬ tionality of federal statute which provided that contributions made to support politi¬ cal lobbying by tax-exempt veterans orga¬ nizations were tax deductible, but which denied deductions for contributions to any other tax-exempt organization that en¬ gaged in political lobbying), discussed fur¬ ther in § 11-5, supra; Perry Education Association v. Perry Local Educators’ Asso¬ ciation, 460 U.S. 37, 49 (1983) (upholding exclusive access of certified teacher union to interschool mail system; characterizing the distinction as one based on "the status of the unions rather than their views,” the majority noted that "[ijmplicit in the con¬ cept of the nonpublic forum [see § 12-24, infra] is the right to make distinctions in access on the basis of subject matter and speaker identity”). It is not always possi¬ ble to distinguish government actions which confer benefits on some speakers and not on others from those which active¬ ly punish selected viewpoints. See Perry, 460 U.S. at 65 (Brennan, J., joined by Mar¬ shall, Powell, and Stevens, JJ., dissenting) (" '[t]he access policy adopted by the Perry schools, in form a speaker restriction, fa¬ vors a particular viewpoint on labor rela¬ tions in the Perry schools . . . : the teach¬ ers inevitably will receive from [the certified union] self-laudatory descriptions of its activities on their behalf and will be denied the critical perspective offered by [the rival union]’ ”) (quoting Perry Local Educators’ Association v. Hohlt, 652 F.2d 1286, 1296 (7th Cir. 1981) ). Indeed, in many situations, speaker identity may serve as an accurate proxy for point of view. See Stone, "Content Regulation and the First Amendment,” 25 Wm. & Mary L.Rev. 189, 249 (1983) (suggesting the ex¬ ample of laws denying tax deductions to individuals who contribute to the Nazi Par¬ ty).

798

COMMUNICATION

AND

EXPRESSION

(2) A misdemeanor to affix on a government not readily removable.

Ch. 12

building any object

Both ordinances might abridge speech. The difference between the two is that the first is directed at consequences that occur only when messages critical of certain former governors are communicated, while the second is directed at the impact of acts affecting government property without regard to the content of any message those acts might convey, and, indeed, without regard to whether the acts in fact convey any message. Because the first is aimed at the communicative impact of the conduct proscribed, it will be unconstitutional unless the govern¬ ment shows that the message triggering the regulation presents a "clear and present danger” or is otherwise unprotected by the first amendment. Because the second is aimed at the noncommunicative impact of conduct, it is constitutional, even as applied to an author of political graffiti, as long as attaching posters to government buildings is not thought vital — as it might be, for example, in the People’s Republic of China — to the flow of information and ideas.15 The Court applies the "most exacting scrutiny” 16 to regulations that discriminate among instances of speech based on its content.17 15. Cf. City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upholding municipal rule that forbade the posting of signs on public prop¬ erty, where the effect was to prevent a political candidate from posting campaign signs on utility poles), discussed in § 12-24, infra; Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (uphold¬ ing National Park Service anti-camping regulations, as applied to protesters at¬ tempting to call attention to the plight of the homeless by sleeping outside in a park across from the White House). 16. Widmar v. Vincent, 454 U.S. 263, 276 (1981) (exclusion of religious speech from public forum violates first amend¬ ment). See also Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972) (invalidating law which exempted labor picketing from general ban on picket¬ ing near schools).

speech regulations as those that 'are justi¬ fied without reference to the content of the regulated speech.’ ” Id., quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976) (emphasis added in Renton). The Court thus found that, despite the restric¬ tion’s outward appearance, it was not content -based, because the government chose to defend the rule with reasons other than its impact on the minds of listeners. Car¬ ried to its logical conclusion, the doctrine could gravely erode first amendment pro¬ tections. See, e.g., Finzer v. Barry, 798 F.2d 1450, 1469-70 n. 15 (D.C. Cir. 1986) (describing as content-neutral a statute that prohibited the display of signs critical of a foreign government within 500 feet of that ting cert, S.Ct.

government’s embassy, while permit¬ all pro-government demonstrations), granted sub nom. Boos v. Barry, 107 1282 (1987). In dissent, Chief Judge

17. The Court has recently added an illadvised dimension to the determination of

Wald soundly warned, "If listeners’ reac¬ tion to the content of speech is deemed to

whether a restriction is based on "con¬ tent”. In City of Renton v. Playtime Thea¬ tres, Inc., 106 S.Ct. 925 (1986), the Court upheld a zoning ordinance which prohibit¬ ed adult theaters from locating within 1,000 feet of any residential zone, dwelling, church, park, or school. The Court ex¬ plained that, while the ordinance on its

be a 'secondary’ effect, then there is noth¬ ing left at all of the content-based distinc¬ tion doctrine.” 798 F.2d at 1480 n. 5 (Wald, C.J., dissenting). For a detailed cri¬ tique of Barry, see 132 Cong.Rec. H 650306 (daily ed. Sept. 9, 1986) (remarks of Rep. Barney Frank (D. Mass.) ). The guarantees of New York Times v. Sullivan, 376 U.S. 254 (1964) (heightened protection accorded

face "treats theaters that specialize in adult films differently from other kinds of theaters,” it was aimed not at the content per se of the films, "but rather at the secondary effects of such theatres on the surrounding community.” 106 S.Ct. at 929. It was therefore "completely consis¬ tent with our definition of 'content-neutral’

to writings about "public officials”), ample, might be eliminated on the that libel laws are directed not at fending speech per se, or even at its

for ex¬ ground the of¬ impact

on the minds of the speaker’s audience, but rather on its indirect results— on the pain or humiliation

that the audience’s likely

COMMUNICATION

§ 12-3

AND

EXPRESSION

799

Such restrictions are valid only if "necessary to serve a compelling state interest and . . . narrowly drawn to that end.” 18 (3) A misdemeanor to mutilate the U.S. flag that Francis Scott Key observed over Fort McHenry while composing the "Star Spangled Banner.” This statute is the least restrictive means for preserving a specific national monument; it is independent of any message conveyed by a mutilator. If the government can preserve the fort, it can preserve the flag.19 Of course, a vandal in this case may well intend the disfigure¬ ment of the Fort McHenry flag to express contempt for government, and any audience may well perceive the act as communicative. But the Court in United States v. O'Brien expressly rejected an approach which would key the constitutional analysis of conduct to whether "the person engaging in the conduct intends thereby to express an idea.” 20 It cannot be concluded that the first amendment is irrelevant to a vandal’s expressive behavior, but only that the right to express one’s point of view in a way that mutilates the Fort McHenry flag or otherwise creates a harm unrelated to the message expressed may yield, and surely would yield in this case, to the government’s in preserving a rare historical object.

interest

(4) A misdemeanor to wear or hold a U.S. flag while speaking critically of the United States. This statute aims purely at the message conveyed; unless the conduct expresses a critical view of the United States, the conduct is allowed. The statute is thus like the law invalidated in the famous red flag case, Stromberg v. California ,21 where the Court struck down a state’s attempt to ban flying of a red flag in symbolic opposition to organized government. The statute is also like the law voided in Schacht v. United States ,22 in which Congress had prohibited unautho¬ rized wearing of army uniforms in a manner calculated to discredit the armed forces. The hypothetical statute imposes an impermissible restriction on speech depending on its viewpoint. By allowing only speech in favor of American policy, the law results in a distortion of public debate that may be greater than if the law simply prohibited discussion of Amerireactions cause to the subject. The Renton view will likely prove to be an aberration limited to the context of sexually explicit materials. On the same day the Court handed down that opinion, it also issued its decision in Pacific Gas & Elec. Co. v. Public Utilities Comm’n., 106 S.Ct. 903 (1986), which reaffirmed the more familiar con¬ tent doctrine. "For a time, place, or man¬ ner regulation to be valid, it must be neu¬ tral as to the content of the speech to be regulated.”

Id. at 914.

405, 409 (1974): "We

property”. 20. 391 U.S. at 376. Nor is it enough to ask whether the act involved is likely to be perceived as conveying a message. See, e.g., Cohen v. California, 403 U.S. 15, 18 (1971); Note, "Symbolic Conduct,” 68 Colum.L.Rev. 1091, 1109-1117 (1968). See § 12-7, infra.

18. Perry Education Ass’n v. Perry Lo¬ cal Educators’ Ass’n, 460 U.S. 37, 45 (1983). 19. See Spence v. Washington,

the state or national governments constitu¬ tionally may forbid anyone from mishan¬ dling in any manner a flag that is public

418 U.S.

have no doubt that

21. 283 U.S. 359 (1931). 22. 398 U.S. 58 (1970) (invalidating the prohibition).

800

COMMUNICATION

AND

EXPRESSION

Ch. 12

can policy altogether.23 Viewpoint discrimination "is censorship in its purest form” 24 and has been traditionally subjected to the highest level of scrutiny.25 Professor Kenneth Karst has suggested that the concept of equality among views "lies at the heart of the first amendment’s protections against government regulation of the content of speech.” 26 This doctrine may sometimes result, perhaps ironically, in the reduced protection of speech, since one method of "equalizing” is not to permit more speech but rather to adopt even more suppressive content-neutral regulations.27 Under this approach, for example, the government may often "fare better by adopting a more restrictive means, a judicial incentive which [then- Justice Rehnquist] had thought this Court would hesitate to afford.” 28 (5) A misdemeanor to display a U.S. flag with any extraneous material attached, even if the material is readily removable. In Spence v. Washington ,29 the Court held such a law invalid, at least as applied in a case where the "extraneous material,” there a peace symbol, was intended to express a specific message. Because the ent sub rat tha mer a par tic j i ula re vie ect, or heirte onf inf ely ha¬s r m orm wpo ati int bee ter a "su reson, tri n bje med ct- of Spe See Sto "Re Becctio strTh m e a of its Cnoen, P C o aSu n. cahs ecu tte icte e f usbe¬ ten l r i i ” ons ar tR: jec 46 U.C est t-M hi. Li.nR thi 81, 83at(t19 ThriectiCou dec evS.e s are areer78n)o.t mod onsr,to”’fs con ision e a sis s els t e Sto "Co Reg and ncthye Fir st ne, ula nte . Ame L.R 189 nt 25 Wm. t&io Mar e 238 ndme (19 One pro n y ari v. in de,¬ ses -4 nt 83) bl fin 1 the,” re.l "su em mat If bje eva tesru defing suf n a ar ct nt .b”jec mat ined res ficie can clroowly app tn sel , tri t rox y crtei tly a vieer S e G i ee, .g., remea v. gounl wpo rte o a i4n2t4 U.S t8i2o8 (19 Spo (ex f c . c n. 76) pol k, can see folrusio for it d k u n spe icalfro miildate bas ianfgt som m civi er e i e l m e ian chspe alltary sub mat de¬¬ Pro j tp er fin a akae s owe o a paerct hib oli ed s nrys peech d; f tis iti tic a on n Y v A M T n . a heaal i m o t ni of eri ung exptr ureI)n; ordi¬ c., 427 U.S. 50 (19c7a6n (zoni reess, )of ad ng mo ¬ nan sio req dis ult vie per ce n abuir osuutbing the mat siondef as non j i a o t sce tersb;ut sex eacnt exper monved Facbl ne u e i i wit thi amb ally onecit com es). hads s h igu men i tatc sug tha "tthy, mos pru is oorurs t e g t d e e sim ste to tes all sub res e n t tri t jsec c tio plybyd the ord sta t t r ns ina inmgat nda ¬ r e rds4 ilay ntterS of con 6 ten U.C at 114nalysSee Con tone, sol hi. t is. . ida L.CR -bv asPe ”C Edi S te4d47 oe.v. . udbl erv omm son ic ice ’ n U.S 530 537 (19 (op tha ., "[t ]he 80) , . t ini ng to con Fir Am hos e t til n basst reg ndm ext itoyt only toentr-e¬ ula ent ed end str on tipoar ’s but al¬ svie ict t w n i p c o so to iopnro ofulapub d i of an s hib r lic iscnutsss, iti ionW ent top Ark on Se al r Proire Iincc”) v. Reag so 1a0n7sa S.C it1e7r2s .. 2’, j lan s t. 172 ect,(19 (ov sal tax d, sta t 8 es ert 8 tha tax 7) gen mage but urinnt e t ed era azi inrges l t exe spe jou suc ansespro fes cia h rna mpt ¬ l l ty ed s

sional, religious, and sports magazines and newspapers in a manner that discouraged discussion of particular subjects , although not necessarily advocacy of particular views ). But see id. at 1732 (Scalia, J., joined by Rehnquist, C.J., dissenting) (dis¬ puting the argument that subject-matter distinctions are invalid and pointing to U.S. Postal Service rates which grant pref¬ erential treatment to religious, education¬ al, scientific, philanthropic, agricultural, labor, veterans’, and fraternal organiza¬ tions; federal subsidies for the Kennedy Center, a performing arts theater; and governmental support for the Corporation of Public Broadcasting). 24. Perry Education Ass’n v. Perry Lo¬ cal Educators’ Ass’n, 460 U.S. 37, 62 (1983) (Brennan, J., joined by Marshall, Powell, and Stevens, JJ. dissenting). Even when upholding restrictions on speech, the Court has been careful to insist that they do not involve viewpoint discrimination. See, e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50, 67-68 (1976). 25. See Stephan, "The First Amend¬ ment and Content Discrimination,” 68 Va. L.Rev. 203, 233 (1982). 26. Karst, "Equality as a Central Prin¬ ciple in the First Amendment,” 43 U.Chi.L. Rev. 20, 21 (1975). 27. See Stone, "Content Regulation and the First Amendment,” 25 Wm. & Mary L.Rev. 189, 205 (1983). 28. Carey v. Brown, 447 U.S. 455, 475 (1980) (Rehnquist, J., dissenting). 29. 418 U.S. 405 (1974) (per curiam). See also Cahn v. Long Island Vietnam Moratorium Committee, 418 U.S. 906 (1974), affg 437 F.2d 344 (2d Cir. 1970) (invalidating a similar New York statute).

§ 12-3

COMMUNICATION

AND

801

EXPRESSION

"extraneous material” was readily removable and created no risk that viewers would think the government endorsed the message expressed,30 the only interest government had left was the interest in preventing expression of Spence’s symbolic protest against the Cambodian sion and the Kent State tragedy.

incur¬

(6) A misdemeanor to destroy or permanently mutilate any object bearing the pattern of the U.S. flag on its surface. On its face, this law seems to ban conduct regardless of whatever message the conduct conveys: the law would apply to someone who used a flag as fuel to keep warm, or to someone who bit into a bicentennial candy bar decorated wifh a flag. But what is the govern¬ ment’s interest in preventing such acts? The Court in Spence v. Washington speculated on a governmental interest, not implicated by Spence’s act as such, in preserving the flag as a national symbol capable of mirroring the sentiments of all who view it.31 But how is the flag’s role as such a universal symbol threatened by someone’s act in destroying a particular flag? To test the question, consider whether the national symbol, which the government seeks to preserve unsullied, would be corrupted or interfered with in any way by "closet” flag burnings — people drawing their own flags on flammable fabric and igniting them in the dead of night in the privacy of their homes. The 30. Spence, 418 U.S. at 413. See also Greer v. Spock, 424 U.S. 828, 839 (1976) (preserving appearance of a politically neu¬ tral military establishment held a factor in approving as constitutional the exclusion of partisan political activities from milita¬ ry bases); id. at 841 (Burger, C.J., concur¬ ring); id. at 845-848 (Powell, J., concur¬ ring); Lehman v. Shaker Heights, 418 U.S. 298, 304 (1974) (avoiding appearance of fa¬ voritism held a factor in permitting munic¬ ipality to refuse political advertising while allowing commercial advertising in space on city-owned buses).

31. Spence, 418 U.S. at 412-415. Draw¬ ing an analogy to a law which prevents the interruption of a scheduled speaker, see Reynolds v. Tennessee, 414 U.S. 1163 (1974) (mem.) (refusing to review convic¬ tion, under statute prohibiting disturbance of religious assemblies, for chanting during President Nixon’s speech at the Reverend Billy Graham’s East Tennessee Crusade), Professor Ely, see note 4, supra, at 15031504, 1506-1508, notes that the state’s in¬ terest in protecting the message conveyed by the flag may be ideologically neutral with respect to the message the defendant is conveying by destroying or defacing the flag. But Ely argues that such a statute is distinguishable from a law prohibiting the interruption of all speakers regardless of the message spoken — a law which is neu¬ tral with respect both to the content of the interruption and to the content of the mes¬ sage interrupted. He then proposes to re¬

quire not only that government

justify its

regulations by reference to harms unrelat¬ ed to the content of the defendant’s mes¬ sage, but also that government refrain from singling out a specific message or set of messages for such content-neutral pro¬ tection. This extension of the requirement seems unnecessary, however: on closer in¬ spection, the flag-protecting statute is aimed at the message conveyed by the de¬ fendant’s act of altering or destroying the flag — for the symbol is degraded only to the degree that people comprehend the act. In a law prohibiting the interruption of speakers, the harm occurs without regard to whether listeners "get” the heckler’s message; any noise will do. Moreover, Ely’s extension seems to rest on a doubtful premise — one barring government from singling out messages for protection. Cf. United States Civil Service Commission v. Letter Carriers, 413 U.S. 548, 565 (1973) (upholding limitations on partisan political activities by federal employees because it was necessary to insure that ment and its employees” not the laws impartially but also public to be doing so); Cox. (II), 379 U.S. 559, 565 (1965) statute prohibiting picketing

"the Govern¬ only execute appear to the v. Louisiana (upholding a in vicinity of

a courthouse in part to prevent "the possi¬ bility of a conclusion by the public that the judge’s action was in part a product of intimidation and did not flow only from the fair and orderly working of the judicial process”). See also § 12-4, infra.

802

COMMUNICATION

AND

EXPRESSION

Ch. 12

answer is quite clearly no; the symbol is degraded, if at all, only to the degree that people learn of the act.

This hypothetical case thus differs from United States v. O’Brien?2 where the Supreme Court upheld the conviction of a young man who had burned his draft card on the steps of the South Boston Courthouse to protest the war in Viet- Nam. O’Brien was convicted under an amendment to the draft laws making it a felony knowingly to destroy or mutilate a draft card. The government claimed that the statute furthered its legitimate interest in the smooth and proper functioning of the draft, an interest substantially advanced by the existence of the pieces of paper called draft cards: in a time of crisis, for example, the existence of the cards would facilitate rapid identification of men fit for immediate induction into the armed forces.33 Once this or other purposes are accepted (as the Court in fact accepted them), the govern¬ ment’s interests are frustrated as much by closet draft-card burning as by public burning to express open revulsion toward the war in VietNam. On its face, the sixth hypothetical thus differs from OBrien , since the only possibly legitimate interest advanced by prohibiting destruction or mutilation of any flag is an interest that arises only when such conduct is perceived by others, and only when the conduct is interpreted in a certain way. Thus the hypothesized law should be scrutinized by reference to the demanding standards of track one. While this analysis may appear easy to apply, it is important to see how a notion of content-based regulation can misfire badly if it is too rigid. In Carey u. Brown,34 for example, the Court invalidated an Illinois statute on the ground that it ''selectively proscrib[ed] peaceful picketing on the basis of the placard’s message.” 35 The law, as the majority described it, barred picketing of residences but exempted labor picketing of places of employment.36 In fact — as Justice Rehnquist, joined in dissent by Chief Justice Burger and Justice Blackmun, not¬ ed — the statute did no such thing. Rather, it prohibited residential picketing "except when the residence or dwelling is used as a place of business,” 37 and created a further exemption for a residence used to "hol[d] a meeting or assembly on premises commonly used to discuss subjects of general public interest.” To make clear its intention that 32. 391 U.S. 367 (1968). See §§ 12-6, 12-23, infra. 33. 391 U.S. at 378-80.

acceptable, but deny use to those wishing to express less favored or more controver¬ sial views.” Id. at 96.

34. 447 U.S. 455 (1980). 35. Id. at 459. 36. Id. at 460. The majority thus squeezed the case into the pigeonhole es¬ tablished by Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), which struck down a law which prohibited all picketing within 150 feet of a school building, except for labor picketing. Id. at 92-93. The Court held that the statute was flawed because "it describes permissible picketing in terms of its subject matter,” id. at 95, and "government may Il not grant the use of l. a forum to people whose views it finds Re v. St at .,

(1

97

pr

ov id , ed : "It is unlawful to picket before or about the residence or dwelling of any person, except when the residence or dwelling is used as a place of business. However, this Article does not apply to a person 7)

peacefully picketing a place of employ¬ ment involved in a labor dispute or the place of holding a meeting or assembly on premises commonly used to discuss subjects of general public interest.” See Carey v. Brown, 447 U.S. at 457.

§ 12-3

COMMUNICATION

AND

EXPRESSION

803

the statute not be used to muzzle labor unions, the legislature also exempted — perhaps redundantly— labor picketing of residences used as "place[s] of employment.” 38 Finally, a person was allowed to picket his or her own home.39 The regulation was thus aimed not at content, but rather at "the character of the residence sought to be picketed.” 40 Residences could not be picketed unless they fell within one of the exempted categories. But, within those categories, the statute did not restrict permissible picketing. All picketing, both labor and nonlabor, was allowed at residences used as places of business or of public assembly.41 The majority’s analogy to Mosley was thus inexact at best. The distinctions between types of speech restrictions, however clear in the abstract, may thus prove arbitrary and easily manipulable.42 "Content-based” restrictions on speech may regulate speech on the basis of its general subject matter ("no discussion of the upcoming national election”) or on the basis of its particular viewpoint ("no criticism of the Democratic candidate”). Audience-based and speakerbased regulations are also possible.43 The Court has at times attempted to separate these categories,44 but this is in practice a difficult task. Restrictions based on the "status” of a speaker,45 although often upheld, bear a troublesome correlation with viewpoint.46 Exclusion of "advoca¬ cy” groups from charity drives, for example, may have the effect of limiting speech to mainstream, status quo views,47 ,and the requirement 38. The redundancy arises because the regulation already exempted all picketing of a "residence or dwelling . . . used as a place of business.” 39. Id. at 473-74 (dissenting opinion). 40. Id. at 474. 41. Id. (noting that "Illinois has not 'flatly prohibited all nonlabor picketing’ since it allows nonlabor picketing at resi¬ dences used as public meeting places, and at an individual’s own

residence”).

42. For a useful criticism of the Court’s efforts in this area, see Stone, "Restrictions of Speech Because of its Content: The Pe¬ culiar Case of Subject-Matter Restrictions,” 46 U.Chi.L.Rev. 81, 83-100 (1978). 43. For a discussion of speaker-based restrictions, see note 14, supra. For exam¬ ples of audience-based restrictions upheld by the Court, see Bethel School District No. 403 v. Fraser, 106 S.Ct. 3159 (1986) (sexual¬ ly suggestive but not obscene speech at high school assembly may be penalized); Posadas de Puerto Rico Associates v. Tour¬ ism Co. of Puerto Rico, 106 S.Ct. 2968 (1986) (advertising of casino gambling aimed at local audiences may be forbid¬ den).

44. See, e.g., Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983) (upholding term of collective bargaining agreement that granted prefer¬ ential access to intraschool mail system to labor union representing majority of teach¬ ers, and attempting to distinguish the

"content-neutrality” rule of traditional public forums from the (ostensibly less rig¬ orous) "viewpoint-neutrality” requirement of nonpublic forums). 45. See, e.g., Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 806 (1985) (upholding rule which limit¬ ed participation in federal charity fund¬ raising drive to those organizations which did not "attempt to influence the outcome of political elections or the determination of public accurate policy”); toPerry, 460 U.S. the at 49 ("it is more characterize access policy as based on the status of the respec¬ tive unions rather than their views”) (em¬ phasis in opinion). 46. See Perry, 460 U.S. at 57 (Brennan, J., joined by Marshall, Powell, and Stevens, JJ., dissenting). See also First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), and note 14, supra. Cf. Larson v. Valente, 456 U.S. 228, 246 (1982) (striking down as violative of the establishment clause a state rule which imposed registra¬ tion and reporting requirements on reli¬ gious organizations that solicited more than 50 percent of their funds from non¬ members; the statute was in part aimed at the Unification Church of Rev. Sun Myung Moon and reflected impermissible "denom¬ inational preferences”). 47. See Cornelius, 473 U.S. at 832 (Blackmun, J., joined by Brennan, J., dis¬ senting) (attacking as viewpoint discrimi¬ nation a rule that excluded from a federal

804

COMMUNICATION

AND

EXPRESSION

Ch. 12

that all groups at a state fair distribute literature from fixed booth locations might discriminate against unpopular and minority views whose representatives may be shunned by the public.48 But such effects are often hard to detect, and the Justices are far from consistent in identifying them. In United States Postal Service v. Greenburgh Civic Associations ,49 for example, Justice Brennan commented

that the

prohibition on the placement of nonstamped mailable matter in let¬ terboxes "is content-neutral because it is not directed at the content of the message [that the civic association members] seek to convey, but applies equally to all mailable matter.” 50 While in a narrow sense this is true, it ignores the risk that, by raising the costs of communicating, such a rule may predictably freeze out those with less standard views, or those who wish to speak on new and heretofore neglected subjects.51 § 12-4.

Distinguishing Government’s Addition of its Own From Government’s Silencing of Others

Voice

Consider this seventh hypothetical case: (7) A misdemeanor to remove from a government building any representation of the U.S. flag commissioned for the building and approved by the General Services Administration. That government must regulate expressive activity with an even hand if it regulates such activity at all does not mean that government must be ideologically "neutral.” To be sure, it is the teaching of West Virginia v. Barnette J where the Court held that school children could

not be required to join in a flag salute ceremony, that government cannot compel a show of respect for the flag — since forcing someone to express a view is as offensive as forbidding someone to express it. Likewise government cannot compel an individual to display on his person or property a message fostering public adherence to an ideologi¬ cal view the individual finds unacceptable,2 and it may not force a newspaper to print a story it does not want to print.3 In Abood v. employee fundraising drive those charities that engaged in political advocacy). 48. But see Heffron v. International So¬ ciety for Krishna Consciousness (ISKCON), 452 U.S. 640, 649 n. 12 (1981) (rejecting the argument that a state fair rule restricting the distribution of printed material and the solicitation of funds to certain fixed booth locations "is not content-neutral in that it prefers listener-initiated exchanges to those originating with the speaker” and thereby especially burdens unpopular or little-known speakers). See § 12-23, infra. 49. 453 U.S. 114 (1981). 50. 453 U.S. at 135 (Brennan, J., con¬ curring in the judgment). 51. Cf. City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upholding city ordinance that prohibited the posting of signs on public property, as applied to a political candidate

who sought to post signs on the cross-arms of utility poles). Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (upholding National Park Service regula¬ tions that prohibited sleeping outside in a park across from the White House, as ap¬ plied to protesters attempting to call atten¬ tion to the plight of the homeless).

1. 319 U.S. 624 (1943). 2. Wooley v. Maynard, 403 U.S. 705 12-4 motor vehicles (1977) (requirement§ that bear license plate embossed with state mot¬ to, al). "Live Free or Die,” held unconstitution¬ 3. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (statute im¬ posing on newspaper an obligation to grant political candidates a "right of reply” held unconstitutional). See also § 12-25, infra.

§ 12-4

COMMUNICATION

AND

EXPRESSION

805

Detroit Board of Education ,4 the Court extended this principle to strike down a law compelling non-members to pay to a public employees’ union a service fee equal in amount to union dues; the Court required the return to each non-member of the portion of such fees used by the union to subsidize political and ideological activity to which the non¬ member objects.5 In Ellis v. Railway Clerks ,6 the Court went even further, invalidating (as a matter of statutory construction rather than constitutional command) a rebate scheme that "allowed the union to collect the full amount of a protesting employee’s dues, use part of the dues for objectionable purposes, and only pay the rebate a year later.” 7 The Court argued that, given the ready availability of acceptable alternatives, such as the reduction of dues in advance or the use of interest-bearing escrow

accounts, "the union

4. 431 U.S. 209 (1977). 5. The decision in Abood did not uphold any right of a non-member to withhold contributions from the cost of communica¬ tive activities with which the non-member disagrees, so long as such activities are germane to the union’s duties as collective bargaining representative. Concurring in the result, Justice Powell, joined by Chief Justice Burger and Justice Blackmun, would have concluded that a non-member’s first amendment rights were infringed by being compelled to contribute to any union activities to which the non-member object¬ ed, whether or not related to the union’s collective bargaining activities, and would also have held that the state should bear the burden of justifying its policy of requir¬ ing fees of non-members. Id. at 259-64. Under the "agency shop” agreement at issue, an employee was not required to become a member of the union as a condi¬ tion of employment, but only to pay a service fee. The decision in Abood would require the union to refund an appropriate sum to those non-members who objected to the union’s ideological activities. (Presum¬ ably, membership being voluntary, mem¬ bers were deemed to have consented to the expenditure.) The Court has not decided whether a public employee can be forced to join a union under a union shop agree¬ ment. Id. at 218 n, 11. See also Buckley v. American Federation of Television and Radio Artists, 496 F.2d 305 (2d Cir. 1974), cert, denied 419 U.S. 1093 (1974) (the politi¬ cal pundit could not be compelled to join a union or submit to its discipline, but he may be required to pay dues). If union membership were required by law or on pain of job dismissal, members would of course be entitled to a partial refund under the Abood theory to the extent of union ideological activities to which they object¬ ed. In discussing the appropriate remedy, the majority opinion of Justice Stewart

cannot

be allowed to

rejected a system which would require ob¬ jecting non-members to identify the specif¬ ic expenditures to which they object, since such a system would require the employee to publicly disclose his or her beliefs to vindicate the right to withhold support. Id. at 240-42. But the same objection may be lodged against imposing on non-mem¬ bers the burden of affirmatively indicating their objection, even in general terms. Cf. Lamont v. Postmaster General, 381 U.S. 301 (1965) (government cannot impose the obligation upon the addressee of affirma¬ tively requesting delivery of foreign un¬ sealed mail detained by the Post Office as "communist political propaganda”). A bet¬ ter solution might well be to require ideo¬ logical activities unrelated to collective bargaining to be financed from voluntary contributions in the first place. But see Mitchell, "Public Sector Union Security: The Impact of Abood,” 29 Lab.L.J. 697 (1978) (criticizing Abood as weakening union ability to bargain and engage in political activities). 6. 466 U.S. 435 (1984). Justice White delivered the opinion of the Court, in which Chief Justice Burger and Justices Brennan, Marshall, Blackmun, Rehnquist, Stevens, and O’Connor joined. Justice Powell joined in part and filed a separate opinion concurring in part and dissenting in part. 7. 466 U.S. at 441. The Court reasoned that, "[b]y exacting and using full dues, then refunding months later the propor¬ tion that it was not allowed to exact in the first place, the union effectively charges the employees for activities that are outside the scope of the statutory authori¬ zation [of the Railway Labor Act]. . . . The harm would be reduced if the union were required to pay interest on the amount refunded, but . . . [e]ven then the union obtains an involuntary loan for pur¬ poses to which the employee objects.” Id. at 444.

.

806

COMMUNICATION

AND

EXPRESSION

Ch. 12

commit dissenters’ funds to improper uses even temporarily.” 8 Chica¬ go Teachers Union v. Hudson 9 unanimously found constitutionally inadequate a union procedure for rebating dues paid by non-members, on the grounds that the procedure permitted non-member contributions to be used temporarily for ideological purposes, that it failed to provide sufficient justification for the advance deduction of dues, and that it did not afford a prompt opportunity to challenge the amount of the fee before an impartial adjudicator. The logic of Abood and its progeny has been applied by the lower courts in a wide variety of contexts.10 types of unio expe befor the n n Court for the first timdeiturTehse Courte held . that the union could not charg objec ting e emplo for the costs of gener organ iz¬ ing eyffeoers and of litig n al i ts ation ot nvolving the negot of agre or settle e ment of iagtriioenv butmentthsat it could¬ ances charg disse emp,lo their pro rata nting e yees share for the union q conve ’s uadrennis n¬ a a p u o tion, nion ubli nd clial activi¬ c a ties. Id. at 440- tions,The Court found it 41. "unne to rule on th[e] quest o ionw”eref wheth cessdaeath benef for emplo ry its er yees Id. peErlmliis expen see id. at 454—5 The Csosuialrbstloe ianpvpoli dittuhreesl,ogic of earli c 5. er ases lveedd in separ thosea cahctailv i in lietnigees nherent ating the colle barg prtooc from ess aini ctive ng th on incid to it: "the test must beosewhetly theentcahlall expen her di enged are neces or reaso incur turefsor sar re nably the purpo iloyf perfo the dutie dof an s se rming exclu repre of the empl oyee sive senta s in deali with thteiveempl on labor oyer ng mana issue Id. at 448. In Inter ¬ g s natio emenAsts’n of Ma.c”hi v. Stree 367 U.S. n7a4l0 (1961) for examnpists the Courtt, had le , held that the Rail Lab,or Act did not way autho a union to spen an objec d ting rize em mo to su pol caupsleoyeeb’escau ne thye use of pp fuonrdts foritsiuccalh s, se purpo was unrel to Congr desir to elsiemsi "free artiedder and etshse’ resen e t¬ s” na ment theyte prov Id. at 768The 69. oke. Court did not expre a view as to "expe ssi t iture for activi a b nt s ties n he rea etween dh¬e costs which led direc t t c a tly o he omplaint s to 'free rider a the expen to s,’ nd ditur e suppo unio poli acti Isd. at 769-7rt see nid. at t7i7c0al n. 18 v(iptrioevs.” t iding he 0; examp of death benef these were pre¬ i cisel lethe types of expetns); at issue in y d Ellis The same disti iturebsetw com¬ een nctio . pelle econo and ideol n assoc d ogica iatio mic l n was empl by Justi O’Co in a n c later case:oye"d The Court haes thus rnuolred that a State may comp assoc for the el iatio n comm purpo o e i c erci ses f ngaging n ollec¬ a l tive barga admin labor con¬ ining ister , tract a adjus empl ing oy s, nd ti griev but it manyg not infrmient-roenl assong an at ciati ces,right invol ideol e or epdo¬ on s og ving litica alassoc We appli icalthis dis¬ tinct l i Eiati v R C ed 4 U ion n llis on.s. ailway lerks, 66 .S.

earlier this Term.” decided 435 (1984), Roberts v. United States Jaycees, 468 U.S. 609, 639 (1984) (O’Connor, J., concurring in part and concurring in the judgment) (up¬ holding the application of a state statute which compelled an all-male organization to accept women as regular members). 9. 106 S.Ct. 1066 (1986). 10. See, e.g., Galda v. Rutgers, 772 F.2d 1060, 1070 (3d Cir. 1985) cert, denied 106 S.Ct. 1375 (1986) (holding invalid under the first and fourteenth amendments an ar¬ rangement whereby a refundable fee was extracted from each student at a state uni¬ versity in order to support an independent political and educational organization); Romany v. Colegio de Abogados de Puerto Rico, 742 F.2d 32, 41 (1st Cir. 1984) (vacat¬ ing and remanding, on abstention grounds, decision of district court that statutes cre¬ ating and compelling financial support of bar association were unconstitutional, but holding that dissenting lawyers could not be forced to pay full dues to the bar associ¬ ation while litigation proceeded); Int’l Ass’n of Machinists and Aerospace Work¬ ers v. Federal Election Comm’n, 678 F.2d 1092, 1117 (D.C. Cir. 1982) (en banc) affd mem. 459 U.S. 983 (1982) (affirming deci¬ sion of FEC that amendments to Federal Election Campaign Act authorizing corpo¬ rate committees to solicit executive and administrative employees did not violate those employees’ first amendment rights and that amendments authorizing use of general corporate assets to establish and support corporate committees did not vio¬ late first amendment rights of dissenting shareholders). The lower courts have also applied Abood and Ellis in a variety of labor-management situations. See, e.g., Beck v. Communications Workers of America, 776 F.2d 1187, 1202 (4th Cir. 1985), appeal pending 107 S.Ct. 2480 (1987) (holding that nonunion employees subject to agency shop agreement could be charged only for those expenses reasonably in¬ curred by the union in performing the du¬ ties of an exclusive bargaining representa¬ tive and permitting union to place the funds obtained from non-union employees in an interest-bearing escrow account, sub¬ ject to later reduction); Hudson v. Chicago

§ 12-4

COMMUNICATION

But none of this means to the many that it must

AND

EXPRESSION

807

that government cannot add its own voice tolerate, provided it does not drown out

private communication.11 The first amendment does not, for example, prevent government from promoting respect for the flag by proclaiming Flag Day or by using public property to display the flag. Those who disdain the national symbol may express that view but may not silence government’s affirmation of national values, nor may they insist that government give equal circulation to their viewpoint — any more than they may insist that the flags of their choice be flown alongside the American flags that ring the Washington Monument. And if govern¬ ment expends public funds to subsidize flag production,12 the fact that some people object to this expenditure of their tax money to propagate the state’s patriotic message is likely to be deemed irrelevant, either in a challenge to the expenditure itself 13 or in a challenge to the payment of the full amount of tax.14 Many forms of government speech are Teachers Union Local No. 1, 743 F.2d 1187, 1194-95 (7th Cir. 1984) affd 106 S.Ct. 1066 (1986) (finding constitutionally inadequate a union system for rebating share of dues to objecting employees); Robinson v. New . Jersey, 741 F.2d 598, 607 (3d Cir. 1984), cert, denied 469 U.S. 1228 (1985) (holding that lobbying activities that are pertinent

4

to public employee unions’ duties as bar¬ gaining representatives and that are not used to advance political and ideological positions could be financed with represen¬ tation fees and that union demand and return system was not unconstitutional on its face). The re 11. See generally Emerson, The System of Freedom of Expression 697-716 (1970). But government may not endorse a reli¬ gious point of view. See Chapter 14, infra. Whether

it is possible for government

to

"drown out” private communication is a matter of debate. Compare M. Yudof, When Government Speaks 31-32 (1983) (describing "communications overload”); Shiffrin, "Government Speech,” 27 U.C. L.A.L.Rev. 565 (1980) (discussing the "drowning out” model), with Schauer, "Is Government Speech a Problem?”, 35 Stan. L.Rev. 373, 380 (1983) ("this aural meta¬ phor is ill-fitting in the context of newspa¬ pers, magazines, books, and other sources of information because each item is availa¬ ble to the reader regardless of the quantity of the other items.”). 12. The federal government, in fact, spends over $500 million dollars per year on hundreds of films, slide shows, TV pro¬ grams, and radio broadcasts and is one of the ten largest advertisers in the nation. See M. Yudof, When Government Speaks 7 (1983). 13. Federal taxpayers have been denied standing to challenge the constitutionality of expenditures except where their chal¬ lenges are based on the establishment

clause of the first amendment. See Flast v. Cohen, 392 U.S. 83 (1968), discussed in Chapter 3, supra.

is to o i t a l in suc a cas e, t east f he bject h the ta ioO of an ea pa x. n n rm ym wou ark not be tha gov mer ent the cla t its im ern ld ed r¬e¬ pro mo not spe men , ma ma spe t fory the fla ndbut ntheay a pmeorti y g, t ct so ng tax conn to fur not be com n B i h t b tow pel tha vi tio ew ish ut t as ribeue¬n ns ard led t . los any wou tha the tax as su e t pay ld m v. in Woo on the meerr suc ecdha h its lle ley : nsgue sil Ma pra note 2, the major yn ent ar i ¬ tyas d R J a l , u y e c neeth s sf tiNe hanq cceip b c H o ouelrt e titze d at mu cew i ednsth the ptsiahsxit’ to payd ofnor combe n ro ir ersse pe o bil and mai the clolsesdtaonf ere ugh l¬ din ct t n tai g p ing " D o F pr bo n evard if thoecl crooubl noLtive be rceoem ingr ie,”to en s e a l y p on the ellelic tha pirmoin d m dis g e i t p rucllam in the est r d nse Th pl lay at eh t baebcli be ati d cla es. cas es as een oinffer use ausshm he e e ten o has bee nttho exp ver o t f¬ y nto th ug ta bel a ernidg fen h x e ihtu t of Edu payer v. reDet ongi Boa See d Ab oo n . ro ca g rd d n. 31. Cf. Butcion not 4, at 234it sup , e r & n. 127 (k1l9 ey 424 U.S 1-,3592v. Vaal 76) . eo 93 est be (an (pe cu,r clatwee of thaeblifir andiam fre spaelo me r nt sh¬st ) e use n ecghy s to con ina pat am e sti p e of pre ¬ of punbtly fin plic tut ndme lic ion nt sid anc abl buitn seee id. at 2e4n8 cam tia ealeli ¬l g ctiy pai on C.J on con digsn 51 (Bu .p, roge t ss psrtoit ali f ubl e)n;tfiina h r e , viusti ty n ic t g nfca a But the dif ioonn¬be¬ i h s rng su us tmhe f)r.e an th ferse tw ed e tnac d ee e is ren inbelitshi res spe n cla hs p use der ec s by th mhoent ect of Ab edaf¬ que h e l o due od, fro to widting firstio the rig ht m s m na h unr of uni holmeds the idnigs ble e on s sag Thees rec ¬ ba to emcionl lat r in onh¬is Pow by gJauisn attaletcitoi cil ed n iat v t e ii eomp e slalt con ion pinted is not wnchego.l isf cur ion ly y rin ass ing: p a o s "c f riv upp g om ate su ocia ortfr "co tio pelis dif ppo ¬ o n” led fer m mpe rt ent lle d

808

COMMUNICATION

AND

EXPRESSION

Ch. 12

entirely unobjectionable from a constitutional perspective. An address by the President in favor of aid to rebels seeking to overthrow the Nicaraguan government does not offend the first amendment,15 even if it is steeped in powerful political images and resonant appeals to patriotism.16 Indeed, "all speech has a persuasive character, and . . . persuasive government rhetoric is often desirable.” 17 Thus the seventh hypothetical statute is likely to be upheld as a permissible protection for government’s message rather than an uncon¬ stitutional discrimination against private messages government does not like. But if the hypothetical statute were best understood, in its context, not as an instance of government speaking but as a case of government dedicating a forum to public communication, the discrimi¬ nation against unapproved representations of the flag would be an unconstitutional departure from the 18neutrality required of government in regulating access to that forum of government” because the former repre¬ sents only "one segment of the population” while the latter is "representative of the people.” Abood, 431 U.S. at 259 n. 13. But since the authority of the public em¬

ployees’ union to compel support is derived from the legislature, the cases seem hard to distinguish on any private-public ground. It might be argued, however, that the portion of total government expenses attributable to ideological dissemination . unrelated to other government functions is probably so small that the refund right Abood would otherwise imply would be too small to be measured, whereas a signifi¬ cant part of union expenses come within the refund rule of the Abood case. Any notion that the very relation of taxpayer to government makes the refund argument inherently inapt seems refuted by positing a hypothetical instance in which, say, half the state budget of New Hampshire goes

feared when

it seeks to overturn the basic

political structure of the nation”). Thus, the White House Director of Communica¬ tions, unlike a newspaper editor, may not enjoy full constitutional protection when he exclaims, "God Bless Colonel North,” thereby expressing official approval of North’s alleged circumvention of the con¬ gressional ban on aid to the rebels in Nica¬ ragua, see § 4-4, supra. See also § 12-18, note 15, infra.

ex¬ wi co co me up m thm mum s o pa nt l u sen f op ed ed ass n itc e hi iao e t te din s o f h a f n t e f ch g t h i e th itctilivk me ioannce mcaate go nol a , s kd v o ee op nleyss on t a pu es ca sagaeff go ern gies bl n in v m se icS M.ion Yu of i,sct wi ern veant e do su e de me ri nGt et 71 f, 31 Seps. Wh y o -3 ev89 maeaks Tvher pr (1 en 7a,n e e n 98 d e m o cit arne efgfnit ho th 3)di e s f h n e i e . re ect ud wev t s of Al to ctdieo op , thee quaer toward broadcasting "Live Free or Die” en bna th , n t across the countryside. In such a case, tes tihty pri iosugin go .pe cr e h v ¬ T e e ea in even assuming that this allocationheof pub¬ is al¬ co ch vat rnsec s in dus m mm lic resources does not itself violate theincfirst g, terx so e un etnotr unun re de icpr ypan as and fourteenth amendments, the Supreme atec rg ed a s t s " a g i o e f o beionnoo [t tonde t ee p ro w in nd Court should probably conclude that the ree nd ] wt ha g f qvui hheats nthe msrop h, ts re ed ednen o broadcast cannot constitutionally be fi¬ r c o u t t wi spev go ycoe th i i he ottailon niI¬ eeer nanced with the involuntary contributions ve ver fofgoco i c n n s ncr h rs nm ve mm of persons who disagree with the message. th easi it is de¬ po fac e itenste rn¬uniqu ss i at n em t, ib" g. s S cattei G cr l Ies ch on ov ea au er 37 Sp si a Pr la to im in co er 35 bSta o e n w ns ci onf mepu 3, F ( 3 m n b e , l g 8 1 e u . l i c e 0 h 98 .” b ca L. 39 Us.s v. Onhe B t C ac tit 3) r rtehme?” us Re o ntglic S. 5 ino ti ut f. raenme i t s . e f h ov¬ v n k e r , t , e s . e g m dc nt a cr (r (p 44 on(.1 e ge ardi oriet ha bteitu qu er ptic im er eunrbi 96 ev 4 ne en ti es , s nm i pui¬ th n un uam a st er co 9) na n¬ at si l nv at en on tiaon in¬ sp wh ent sm go rall g de r)g ne joe e u e n v i y r e . . . cr te g sa "a ct is prch he the ad er , ov yxs d n bote e i im p r v dvioor un o m vihed r r v r m e a f a e e n e tarr n ocn ol la th e, geor "O te the co ssio to taigts nsot du tsol wf i od i e u e , S 1 § is enc di ati ¬ ma n be so ntrgre n bi rc an ely ee as e. ar a ti y Yum”) e, susc ngno uln 11 a2t-9 2s6 n(fpr , 0 , rao. to the ve y,t, re es wi pa gov do , prus ] te ra rt fe t pado fo go co a se st f, ci ioc ern le h re mu ri r s d g t p o n v v f h i o t ty u n o lilta me ad eorf un at ce ch of roin cy ctsh v nag c e e , eror n r c c i n r l r ¬ cally t i o s, nm ex fomenpr nst be s tem th or il t en le r p i a h t e t— ret nsto n on th alvgatritu ogfal th asvai si 17.-18. See notes 17-18 on pages 809 sh¬a ,rt on e e t e moer o 810. t u i , is mo ndonato be ex "[ l pr re go es ve si rn on me nt

COMMUNICATION

§ 12-4

AND

809

EXPRESSION

Not all forms of government speech are permissible, however, and the most troubling instances of governmental expression are often the speech may

encounter

a public strongly

predisposed to disbelief.” Id. at 381. These factors, as well as the statistically indeterminate impact of mass communica¬ tions on behavior generally, have led even those most concerned about the possible dangers of government speech to warn that sociological evidence cannot demonstrate

ers, but would extend to any unusually powerful or influential voice. See Shiffrin, "Book Review: Government Speech and the Falsification of Content,” 96 Harv.L. Rev. 1745, 1752-54 (1983) (criticizing Yudof’s public-private distinction); Tushnet, "Talking to Each Other: Reflec¬ tions on Yudof’s When Government

that "increased government expenditures and activity” are linked with "measurable improvements in outcomes.” M. Yudof, supra, at 70. This cautionary note is all the more reassuring because theories that maintain that some forms of expression should be curtailed because they are un¬ usually effective in persuading listeners, or

Speaks,” 1984 Wis.L.Rev. 129, were willing to say that speech can limit the evaluative of citizens, one is implicitly broader critique of traditional

because of the speaker’s identity, are theo¬ ries that run counter to important first amendment teachings. See First National Bank of Boston v. Bellotti, 435 U.S. 765,

Speaks 73 (1983). Dean Yudof himself be¬ lieves that two-way communications flow between government and citizenry is neces¬ sary to the process of government, see id. at 20-22 (noting that, in its ideal type, democracy is unstable — government must lead, communicate with, and respond to the people), and to the development of a "self-controlled” citizenry that can make choices as rational, autonomous agents, see id. at 32. Indeed, in many contexts gov¬

777 (1978) ("capacity [of speech] for inform¬ ing the public does not depend on the iden¬ tity of its source”), discussed in § 12-3, supra; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) (extending constitutional protection to commercial speech because of interests of listeners, not speakers), dis¬ cussed in § 12-15, infra; Zauderer v. Of¬ fice of Disciplinary Counsel, 471 U.S. 626, 651 (1985) ("the extension of First Amend¬ ment protection to commercial speech is justified principally by the value to con¬ sumers of the information such speech pro¬ vides. . . .”); Central Hudson Gas & Elec. v. Public Serv. Comm’n, 447 U.S. 557, 587 (1980) (Stevens, J., joined by Brennan, J., concurring in judgment) ("The justifica¬ tion is nothing more than the expressed fear that the audience may find the utili¬ ty’s message persuasive”); Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (per curiam) ("the concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the first amendment”); Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 254 (1974) (invali¬ dating right of reply statute). See also Schauer, supra, at 381-82 ("The assump¬ tion that government speech is likely to have a highly distorting effect on the trade in ideas is an assumption that goes to the roots not ... of government speech but ... of the very idea of freedom of speech .... [A]s a long-run strategy, we are willing to place some faith in the col¬ lective judgment of the people, and, if this is the case, there seems to be no good reason to assume that such collective judg¬ ment cannot appreciate government speech for what it is, in light of its source.”). Such a doctrine also could not be logically confined to government speakTrib&-Amer.Const.Law

2nd Ed. UTB — 20

theory.”). 17. M.

Yudof,

When

132 ("if one government capabilities accepting a free speech

Government

ernment has a duty to speak: "it is incum¬ bent on government to seek actively to promote citizens’ autonomy, to program the citizen to program himself.” Id. at 34. Yudof concedes the difficulty of separating permissible "education” and "leadership” from "propaganda” and "impermissible manipulation of opinion” and in the end proposes a very limited role for the courts in policing government expression, see id. at 259-99. He seems content with greater legislative awareness of the possible abuses of government expression, see id. at 17475, and an ultra vires doctrine that would ensure that decisions to embark on a cam¬ paign of governmental speech are made by the institutionally "correct” and politically accountable actor, see id. at 301-06. Pro¬ fessor Shiffrin criticizes the "search for single principles or all-encompassing mod¬ els yielding easy solutions” and instead proposes an eclectic, balancing approach. Shiffrin, "Government Speech,” L.A.L.Rev. 565, 609 (1980). He notes that government speaks in different contexts, with too many

27 U.C. correctly too many different

effects, to expect that a single, unified the¬ ory is feasible. Id. at 610. In particular, Shiffrin proposes that government speech on partisan political issues be closely cir¬ cumscribed, as when government subsidies are designed to influence the outcome of elections. See id. at 622-26. Representa¬ tive of these subsidies are congressional franking privileges. See id. at 632-37. In addition, the decision-making process in programs that dispense public monies to

810

COMMUNICATION

AND

EXPRESSION

Ch. 12

most subtle and insidious.19 Under the Foreign Agents Registration Act,20 for example, the Department of Justice may classify a foreign film as "political propaganda” if it determines that the film is "reasona¬ bly adapted to . . . prevail upon, indoctrinate, convert, induce, or in any way influence a recipient or any section of the public . . . with reference to the political or public interests, policies, or relations” of a foreign government or political party or the foreign policy of the United States.21 In Meese v. Keene ,22 a member of the California State Senate who wished to exhibit three Canadian films, one concerning the envi¬ ronmental effects of nuclear war and the other two on the subject of acid rain, argued that Congress violated the first amendment by using the term "political propaganda” as the statutory name for the regulat¬ ed category in which his films concededly fell. Not at issue in Keene were the constitutionality of the underlying requirement that foreign support the arts must be structured to min¬ imize the risk of government propaganda. Grant awards, for example, should be de¬ termined by a diverse set of officials who are insulated from the political process. See id. at 645-46.

v. Con 420 U.S 546 (19 dis in 75) . cus rad , s ed of § 12- , inf Th det e 24, ra. erm "p for s f p i a o t ttiao f hone ums”p tatudso or urtphon gouvblic s ctr us es knes eec er ine a gre nmendea of sihg As one com at t l ¬ nif i"ca t men has not e a r r v T n ea er o ce. eat e t of goavtor comd, as a y'pu bl ern mun for womue dep tche gov of iicts i ri um ati er lndt n leg ’ rol in vpeub do B e lic ianlo ment ollin iti g m uSep ger "aTthe Sed of Fr 8¬1 e Mic, 867itio870 (19 ee For.e”eecxha , n ,m”p 83) h le, . a pro if th.eL.Rgeov ope fes v.er rat jou or namelnib seeesBoa of sEidouna rar rna t cal¬ r d ( tio vl., Pic 4 U y 8 ( n o, 57 .S., 53 1982) upho rev of the sum dis of ladisnui ers mis gt m a ry wh bro al by stu cshaal a o den lle ugh ncgee t bo sch dec ts to rem rd ard o i o o s v l i ’ boo fro sch liobn mus e it actcain rar ool e ks m t for pub or cir y), eve art pt icl cul l ry e ati or pe or boo icthaati is sub s e lec r on t on k mit hap t ted fi e S pie o a fir bsas If , rstout ces n sti s se t e ? the gov coims per hea e, mit rve o xercis ern ste ditsed in thee rn con men edit cre Pro ten cas mototf-ba jou t oorria l pub ltiibo wha e io as rna rnar lic t y,mu ns, ed slu dis c f t a h r ses e nic om Ltd i cSh i¬ paltintghue Pro . n ou iasth m t o h eer tio eas One pro s div ltiner is tha " n e t, whesr? idi pos n e n ed th go migs i t c soifo re s o oamnmu th cate anvdernthe sca d ni¬ e n sou e me rc nat of thent’esnt ity mak rceesdi se¬ tor erp ure e i ritsh sta lec ine nee noatl tol¬ e t t era ivitoyr acq vitabl in use of ethe fdor tha te t uie e, um sdcee sub the com s sta tro mun n ys and edtiiall pro M. Yud icatsup not 11t,oriayt 241 ces In oth wor of, iif ontrhae al e ds, . ses. er ” gov a in cre the for um req ern it to iremt edi ati dis n cre tor g ain uir men t i the etshe tu’sse of tha dis i c i t cre al s onstion, n tu¬of t tio per The ioncir nal cul mis thi layr haorwi sib is tro gu s ubl etvye le. me ing r. nt ,

What would stop the city in Southeastern Promotions from announcing at the outset that its purpose in constructing the theater was to allow the performance of only "non¬ offensive” or "truly artistic” productions, of which it would be the judge? Cf. Corne¬ lius v. NAACP Legal Defense and Educa¬ tional Fund, 473 U.S. 788, 823 (1985) (Blackmun, J., joined by Brennan, J., dis¬ senting) (criticizing a government intent or purpose test for determining public forum status): "Under [this] reasoning, . . . the theater in Southeastern Promotions would not have been a limited public forum.” See Shiffrin, supra note 17, at 580-89 (ana¬ lyzing possible "convincing bases” for schemes of "limited access.”). The question of whether a public high school newspaper is a public forum, and hence protected from the government’s edi¬ torial and censorial powers, is presented by Kuhlmeier v. Hazelwood School District, 795 F.2d 1368 (8th Cir. 1986), review grant¬ ed 107 S.Ct. 926 (1987). 19. Government speech poses especially difficult issues because many of its features go to the heart of democratic theory. The legitimacy of government depends on the consent of the governed, but that consent is influenced, and, indeed, sometimes manipulated, by the government itself. See Tushnet, "Talking to Each Other: Re¬ flections on Yudof s When Government Speaks,” 1984 Wis.L.Rev. 129, 130. 20. 22 (FARA).

U.S.C.

§§ 611-621

(1982)

21. 22 U.S.C. § 611(j) (1982). 22. 107 S.Ct. 1862 (1987). Justice Ste¬ vens delivered the opinion of the Court. Justice Blackmun filed an opinion dissent¬ ing in part, in which Justices Brennan and Marshall joined. Justice Scalia took no part in the consideration or decision of the case.

§ 12-4

COMMUNICATION

AND

EXPRESSION

811

films be registered or classified and the "validity of the characteristics used to define the regulated category of expressive materials.” 23 The Court in Keene upheld Congress’s "power to define [such] terms” as "propaganda” in its chosen manner24 and rejected the argument that the statute could be invalid not because of what it "actually says, requires, or prohibits, but rather [because of] a potential misunder¬ standing of its effect.” 25 But, as Justice Blackmun, joined by Justices Brennan and Marshall, noted in dissent, "[e]ven if the statutory defini¬ tion [supplied by Congress] is neutral, it is the common understanding of the Government’s

action that determines

the effect on discourse

protected by the First Amendment.” 26 The word "propaganda” has long been an explosive, value-laden term with such pejorative connota¬ tions that the registration process necessarily does more than simply label the source of a film of foreign origin; rather, it almost certainly discourages audiences from viewing the film by branding it as a product of half-truths and distortions.27 This alone may

po w s of the regu aspe latoa fo chemeag erew s¬ siblcts For exa h r r e ich y eign nt mpl e. e, su U t i f a seek to dist n i h n l e it¬ c m h ribu s t e"s ful in ] fo mu ed St e tion aastesto thest plac t[ timerth and l extfeorma¬of es, s, nt § 614( 22 U.S tra suc rae)g.¬ imp .C. The h Just nsmDietpt l a i a e r c ltt.m f a me t r re ulat ions equire he”entoreign gentntinog eport re¬ or gro i of eac the nam h ndivid u e or mor ualof the matep 100 copi ceiv e e i r of eiaaclh and, nign the case osf a film the nam e , usin or th or "s agn”d thetatfiiolnm the gadnaitze a the film waseatsehrow , s tio n, n see 28 C.F. att , the est end ima R. a t n e a forc A schce, whi (19d8 § 5.40 c e es 1(b) 5). h me of its r t to iden dist tify he ecipien ribu t t s of La¬ c t viol film argor atesGe he omm a U 3 v. uaPbolsy men n 8 1 d .S. 301 nera tma t l, ste a stat inva the rCour whe (196 . ¬ r the tPost Oflfiidate to deta ute 5)t,hat reqeu d ce in ired at a t u o d t a d h n pon 186 nd o eliv fore e madirlessee of requ er unsely 4.publ ign est ings ’s aled Cihca lle nge poli Jus¬ pro "co c tice mmDuonui s towriottical for ptahgeanCour gls da. t, on¬ hiensrg s,su ” u w a thaat clud as ncon yst ch t ed em s an offi titua¬ct it requ "be tion c c a i (viz lretu ause the replre[dc]ard as a ilailmi , ) ye of the taad¬¬ tion on trhneingunfe xerc tter ise Id. at righ Am ed Fi dres frtos.” mer dist 305 see’Tshis risstsu weansdme m ely . e n in the as tprcot mat lab pag A det scheling in Learmial anmder err eme ont a ic e d by ;foracns lite fore from rece r i i i atur aect and idenng t mving an afgfni the m o ake ¬ rmat as reci ive of such mate tify them ¬ pien s cert itss alm rial "Thielverseq aians sa det uire e os e to :hav err men ffect, spetcia e e nht t s poslily w t resp tion ects hose ho ave ensitiv on s. a may be dep e live The ir end liho like offient Pub cle od secu lic ara cial m nh t n h w schority s co e. ave o enure , ight ol , i t d invi thi tetahcehe wou f hey nk y rs ld te G isaster says the Fed wha rea o ver d era t nme l Idn.t at 307. the seed of tre cont aso s ains n.”

not be dispositive, as

The Court in Lamont in dictum also inti¬ mated that a labeling scheme alone might have this same chilling effect: "any ad¬ dressee is likely to feel some inhibition in sending for literature which federal offi¬ cials have condemned as 'communist politi¬ cal propaganda.’ ” Id. The D.C. Circuit Court of Appeals in Block v. Meese at¬ tempted to distinguish Lamont on the ground that the Foreign Agents Registra¬ tion Act contained no requirement that recipients commit an "official” or affirma¬ tive act before they could receive the film. Block v. Meese, 793 F.2d 1303, 1311 (D.C. Cir. 1986), cert, denied 106 S.Ct. 3335 (1986). But this analysis is too simple. A recipient, in order to receive the material, must acknowledge the fact that the foreign agent distributor may disclose his identity, and this creates precisely the same chilling effect as did the rule in Lamont. It mat¬ ters not that in one instance, the recipient must disclose his own name, while in an¬ other the sender must disclose it for him. A better means of distinguishing the two cases would focus instead on FARA’s em¬ phasis on commercial recipients rather that private individuals. By creating an exemption for receipt of fewer than 100 copies, the regulations permit an individu¬ al to receive material for his personal use. Commercial entities, on the other hand, must surrender their anonymity, but such a requirement is hardly a burden, since theaters and bookstores presumably want the public to know what they have for sale. 24.

107 S.Ct. at 1873.

25. Id. at 1870. 26. Id. at 1876 (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting in part). 27. See Keene v. Meese, 619 F.Supp. 1111, 1125 (E.D.Cal. 1985) (finding that

812

COMMUNICATION

AND

EXPRESSION

Ch. 12

Judge (now Justice) Scalia noted for the United States Court of Appeals for the District of Columbia Circuit, since the government may express its views on a whole range of issues, even if they sometimes collide with the opinions of private actors.28 However, first amendment analysis should be more sensitive to the potentially chilling effects of the use of such inflammatory language in an ostensibly "neutral” scheme. It will not do to concede that, when government condemns

labelling officially

a film or book as suspect, readers or viewers may

be de¬

terred — and then to assert that the classification of a film as "political propaganda” does "not constitute the government’s expression of its own official suspicion.” 29 Public schools, similarly, can be powerful means of indoctrination.30 The audiences of such schools are captive and immature. The schools’ messages are labelled as "educational” rather than as propaganda and promotion. And these schools may dispense a panoply of rewards and punishments to reinforce their favored views. To reduce the potential for abuse, some diversity of viewpoints must be ensured, not by limiting the spectrum of views that the school system may communicate, and not by prescribing official requirements of artificially "balanced” cover¬ age of such topics as evolution and creationism,31 but by providing genuine opportunities for more speech — by safeguarding the academic freedom of students and teachers,32 and by affirming the constitutional¬ ly-protected status of private schools.33

.

"Congress’ use of the phrase 'political prop¬ aganda’ to describe the material subject to the registration and reporting require¬ ments constitutes a burden on speech by making such materials unavailable to all but the most courageous”), rev’d 107 S.Ct. 1862 (1987). The Supreme Court’s own prior use of the term "propaganda,” how¬ ever, supports the view that the term un¬ mistakably impugns the credibility of the speech to which it is applied. See Lehman v. Shaker Heights, 418 U.S. 298, 304 (1974) (refusing to grant a right of access to pub¬ lic transit vehicles, in part in order to avoid the "blare of political propaganda”); National Association of Letter Carriers v. Austin, 418 U.S. 264, 279 n. 14 (1974) (dis¬ tinguishing "union propaganda” from "oth¬ er method[s] of peaceful persuasion”). In¬ deed, the entire history of the Foreign Agents Registration Act demonstrates that "Congress enacted the portion of FARA at issue in order to suppress or restrict that [speech] which it found F.Supp. at 1124; see also 75 (Blackmun, J., joined Marshall, JJ., dissenting

abhorrent.” 619 107 S.Ct. at 1874by Brennan and in part).

13 (D Ci 1 ce de 10 r r. 986 . 6 ni q S. 12- 33 (1C. Ju ), Sct, eduo Ct 13 35 a s 9 th . fi1 ed 86 of thtic tr lia st ti ) r4s e i re ng i e , e . at s ss co th ev t ar tio fr sp aids edn¬ n ee a e d e v e t n e e o , ce to go n a cbr po to c t h a de oa we ve t e vo cr ab adne it s orf pr rn vie i¬ it ic ou r em m w i e en s t ca l t

vate speech than to silence such private speech. See 793 F.2d at 1314. 29. Id. at 1312. 30. See M. Yudof, supra

note 11, at

213-33; Shiffrin, supra note 11, at 568. 31. See Edwards v. Aguillard, 107 S.Ct. 2573 (1987) (striking down, as violative of the establishment clause, Louisiana statute that specified that "the subject of origins” of the universe, of life, and of species need not be taught in public schools, but that if either "creation-science” or "evolution-sci¬ ence” were taught, balanced treatment must be given to the other and that each must be taught as a theory "rather than as proven scientific fact”), discussed in Chap¬ ter 14, infra. 32. Lower courts have protected princi¬ ples of academic freedom in elementary and secondary schools. See, e.g., Cary v. Board of Education, 598 F.2d 535, 543 (10th Cir. 1979) (upholding ban by board of edu¬ cation of ten books out of a list of 1,285 for use in elective language arts class, because there was no showing that exclusion was designed to promote any particular type of book or thinking, but affirming the rights of teachers to "freedom of expression in the classroom”); Minarcini v. Strongville

§ 12-4

COMMUNICATION

AND

EXPRESSION

813

Finally, it is important to keep in mind that government affects public opinion as much by what it does not say as by what it does say. The Gulf of Tonkin incident, the Pentagon Papers, the Watergate break-in, and the Iran-Contra scandal are easy examples for the point that informed debate is not possible if government reveals only select¬ ed, and sometimes distorted or even falsified, bits of information.34 The resulting need is to impose pressure on government to speak — and truthfully — through judicially recognizing and enforcing rights of ac¬ cess to certain governmental institutions and proceedings,35 legislative¬ ly enacting suitably designed freedom of information statutes, and City School District, 541 F.2d 577, 582 (6th Cir. 1976) (holding that students have a first amendment right to know which did not permit removal of books based solely

487 (1960); Sweezy v. New Hamphire, 354 U.S. 234, 250 (1957) (plurality opinion).

on the "social or political tastes of school board members”); Keefe v. Geanakos, 418 F.2d. 359 (1st Cir. 1969) (reversing dismis¬ sal of high school teacher who assigned magazine article containing the word

Teachers to Determine What They Teach,” 124 U.Penn.L.Rev. 1293 (1976); Hirschoff,

"motherfucker”); Parducci v. Rutland, 316 F.Supp. 352, 355 (M.D. Ala. 1970) (ordering reinstatement of high school teacher who assigned the come to the guards of the ly be brought

Vonnegut short story, "Wel¬ Monkey House”; "the safe¬ First Amendment will quick¬ into play to protect the right

of academic freedom”); Parker v. Board of Education, 237 F.Supp. 222 (D. Md. 1965) (reversing decision of school board not to renew contract of teacher who assigned "Brave New World”), affd 348 F.2d 464 (4th Cir. 1965), cert, denied 382 U.S. 1030 (1966). Although the Supreme Court has not explicitly identified academic freedom as an independent first amendment doc¬ trine, it has at least implicitly recognized its importance. See, e.g., Board of Educa¬ tion v. Pico, 457 U.S. 853 (1982) (Brennan, J., joined by Marshall, Blackmun, and Ste¬ vens, JJ.) (plurality opinion) ("local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to 'prescribe what shall be orthodox in politics, nationalism, reli¬ gion, or other matters of opinion.’ ”) (cita¬ tion omitted); Tinker v. Des Moines Inde¬ pendent Community School District, 393 U.S. 503, 511 (1969) ("in our system, stateoperated schools may not be the enclaves of totalitarianism,” and students may not be regarded as "closed-circuit recipients of only that which the state chooses to com¬ municate”); Keyishian v. Board of Re¬ gents, 385 U.S. 589, 603 (1967) ("Our Na¬ tion is deeply committed to safeguarding academic freedom, which is of transcen¬ dent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the class¬ room.”); Shelton v. Tucker, 364 U.S. 479,

See generally, Goldstein, "The Asserted Constitutional Right of Public School

"Parents

and the Public School Curricu¬

lum: Is There a Right to Have One’s Child Excused From Objectionable Instruction?”, 50 S.Cal.L.Rev. 871 (1977). 33. See Pierce v. Society of Sisters, 268 U.S. 510 (1925), discussed in Chapter 14, infra. Some commentators have gone even further. See, e.g., M. Yudof, supra note 11, at 227 (proposing that schools should be treated as limited public forums, where "outsiders should be entitled to distribute pamphlets, give speeches in the school yard, participate in assemblies, and so forth, even if we all agree that they may not push the English teacher aside in order to teach social anthropology.”). BonnerLyons v. School Committee of Boston, 480 F.2d 442 (1st Cir. 1973), involved a school board that had sent home with all children a notice urging parents to attend an anti¬ busing rally. The court of appeals found that the distribution of this notice trans¬ formed the school system into a public forum for purposes of the first amendment, thereby requiring it to distribute other, opposing viewpoints on the same issue. The court’s reasoning, however, may prove too powerful to limit to this narrow con¬ text. Schools teach about many controver¬ sial subjects, and "to allow a right of reply in every instance would likely disable gov¬ ernments from carrying on important so¬ cialization and communications functions.” M. Yudof at 298. Rather, it might have been wiser to invalidate the school board’s action on an ultra vires theory — the board lacked an explicit legislative delegation of power to engage in drumming up opposi¬ tion to busing. See note 17, supra. 34. Government refusals to speak in circumstances like these have been termed "sins of omission.” See M. Yudof, supra note 11, at 9-10 (noting that "government secrecy may itself be thought of as a pow¬ erful communications device”). 35. See § 12-20, infra.

814

COMMUNICATION

AND

EXPRESSION

Ch. 12

undertaking ments

both legislative and executive de-classification of docu¬ needlessly deemed secret.36

§ 12-5. Facially Neutral Abridgments sorship

Motivated by Content Cen¬

A crucial distinction in the previous examples has been that between government action which on its face singles out particular messages for suppression and that which is facially neutral. But a court should also subject to the more demanding scrutiny of track one any governmental act, whether taken by a legislature or by an execu¬ tive or judicial official, which is intended by the government actor to control or penalize the exercise of rights of expression or association.1 If the first amendment requires an extraordinary justification of gov¬ ernment action which is aimed at ideas or information that government does not like, the constitutional guarantee should not be avoidable by government action which seeks to attain that unconstitutional objective under some other guise.2 The Supreme Court and lower courts have routinely inquired into the motivation 3 underlying executive or administrative decisions in a 36. The

first amendment

itself is, of

course, neither a substitute for such legis¬ lative and executive openness nor a source of judicial doctrine mandating whatever degree of openness wisdom might dictate.

1. ”[W]hen the §regulation is based on 12-5 the content of speech, governmental action must be scrutinized more carefully to en¬ sure that communication has not been pro¬

(suit by bona fide purchasers of land charg¬ ing the Georgia legislature with rescinding the grant because of a prior legislature’s bribery). The statement of the Chief Jus¬ tice, however, was only that the issue of the legislature’s intent could not be raised "collaterally and incidentally” in a private action to which the state was not a party. As to whether legislative motive may ever be scrutinized, Marshall said only that it

hibited ’merely because public officials dis¬ views,’ ” approve the Consolidated Edison speaker’s Co. v. Public Service

was a problem to be approached "with much circumspection.” Id. at 130. See Brest, supra note 1, at 100-101. The cau¬ tion expressed by Marshall in Fletcher v.

Comm’n, 447 U.S. 530, 536 (1980), quoting Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J., concurring in re¬ sult). Accord, United States Postal Service

Peck and had ancient hardened by thethat1930’s intowill "a wise doctrine a Court not inquire into the motives of a legislative

v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 132 (1981). See generally Brest, ’’Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive,” 1971 Sup.Ct.Rev. 95; Ely, ’’Legis¬ lative and Administrative Motivation in Constitutional Law,” 79 Yale L.J. 1205 (1970); Alfange, "Free Speech and Symbol¬ ic Conduct: The Draft-Card Burning Case,” 1968 Sup.Ct.Rev. 1; Bickel, The Least Dan¬ gerous Branch 208-221 (1962). 2. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819) (dictum) (Mar¬ shall, C. J.): ”[S]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not en¬ trusted to the government . . . such an [enactment would not be] the law of the land.” But the authority of Chief Justice Marshall is more often invoked for the contrary proposition. See Fletcher v. In Peck, 10 U.S. (6 Cranch.) 87, 131 (1810) th is di sc us si

body or assume them to be wrongful.” United States v. Constantine, 296 U.S. 287, 298-99 (1935) (Cardozo, J., dissenting). But the cases make clear tl at, confronted with the right circumstances, the Court has traversed the "forbidden” path of inquiry time and again. See P. Freund, The Su¬ preme Court of the United States 61 (1961).

po an "m wi be us in te l s e o d l tiSo ch e” sc hda ra¬t ¬ te an to es veme a diho bvee ” l s t m t g wLee th pt etaw Se abl e. A. Bitinars Th eans ckct e, is g., e ed bo e Da Br 20 (1 elio (s .l h t y. 96 , n ug 9 an ng 2 g th er "p chis "e th) na es gi at o ur i e me toi vet t to th us Cop ob he as fng nhe o e of ursa s je o r a sce ef te r t osn ct te’” a fe rm scml i s tu de ct th Ctoe ve in ju euns degn meno of th e co ur de al otr ¬d e n l t n t y p s o ’ t en ha w th in th le ha in ti s co a gi at g e ul de ve bl d tu d c nt e vi an thsla "tim to or at tu oonta ew d r th ,” le a i In re c ilvl nt es gi tu ey e p e o sl al” nt n at io ds ur ns e’ )

§ 12-5

COMMUNICATION

AND

EXPRESSION

815

variety of contexts.4 A frequent occasion for judicial scrutiny to detect illicit purposes has been judicial review of a decision by a government authority whose actions are ordinarily all but unreviewable given the wide discretion accorded in public administration. In Pickering u. Board of Education ,5 the Court held that a teacher could not be dismissed from public employment for writing a letter to a newspaper, absent proof of knowingly or recklessly false statements, except upon a showing that the expression interfered with the teacher’s performance of classroom duties or with the operation of the school.6 Given the number of subjective criteria by which teachers are regularly evalu¬ ated, and considering that nontenured teachers may be discharged for no reason whatsoever,7 the Pickering rule would be empty if courts did not seek to determine whether an illicit motive had entered into a decision. A teacher who makes out an arguable claim that a dismissal was motivated by the teacher’s exercise of first amendment practice, however, both terms are often employed to refer to the goals that deci¬ sionmakers seek to achieve. See, e.g., Ely, note 1, supra, at 1219; Brest, note 1, supra, at 101; Note, "Legislative Purpose and Federal Constitutional Adjudication,” 83 Harv.L.Rev. 1887, 1887-88 n. 1 (1970). The Supreme Court, at any rate, fails to observe a distinction. See Village of Ar¬ lington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66 (1977) ("Washington v. Davis [426 U.S. 229 (1976) ] does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or adminis¬ trative body operating under a broad man¬ date made a decision motivated solely by a single concern .... When there is proof that a racially discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justi¬ fied.”) (emphasis added).

613 62 (19 (af dis 0tri 8 , f 2 i 2 pl in c1o w)i anrm atvco scan in uwnht noth bla inhgalar eve tbtiiennegg d ge r iyc he c n ele me to the chou cou k Cr v. a cte nci n w t f Los Ad n Bo o E 45o8r U.S a y f ducal); g d . 527 54 eles (19 rd (up a tio m 3 e hol th n, rend to , st -44 co 82) st m at ns din at e g and busriectnt as pup titauss ma nd ing ed il tiign Wa onmmee sch ato des ingool ryv. eSgera Sch cnhtaDnis No 1, sh45¬8 . etg i t. t o as vio U.S on457 484 talteio(19 ol(in sms) ¬ 8 v , . ; n 2 ini aalista of equ 87 pro ) lat ti da te iv te al tha e "pe bus ctifoor non ting reaative t n but for rmit it for irnagc rea -raci Ke sons v. s i biDdi Sch No. a1l, 413 soUn.S al 189 ye(1s9 str s 73) s”.) s o (De ol sch ict hel unl ; e g d o a n borega on by thewfuslch be ver dec ols lyoaol o ardpted isiof n thecausloc sch nd n upi e o e at ns w ool l i o s con by rac mo wer as n t ¬ iEal iv v. Pr Gre sidsign dw at i i m f n a e Boafin 377d U.S ce 218 (19rd Co erat entSsch 64) un io oo . rd, (in ty ns) l clo of a cou sch s ; sin ool ys¬ val nty g ida tin g

rights is

tem and the payment of tuition grants to students attending private schools because motive of the closure was to preserve segre¬ gated schooling); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (discriminatory intent of board administering laundry-licensing law inferred from pattern of refusing licenses to all Chinese applicants and granting li¬ censes to nearly all Caucasian applicants). See generally §§ 16-15 to 16-20, infra. 5. 391 U.S. 563 (1968). 6. See also Givhan v. Western Line Consolidated School Dist., 439 U.S. 410 (1979) (holding that dismissal of public school teacher because of her allegations that the school’s policies were racially disciminatory violates the first amendment). Cf. Connick v. Myers, 461 U.S. 138 (1983), which upheld the discharge of an assistant district attorney for circulating a question¬ naire to her co-workers. The offending document asked fellow employees for their opinions on such topics as job transfer poli¬ cy, office morale, and pressure to work on political campaigns. Id. at 141. The em¬ ployer objected especially to two questions, including the one concerning political pres¬ sure, "which he felt would be damaging if discovered by the press.” Id. Justice White, writing for the majority, concluded that a public employee’s first amendment right to free expression at work is limited to "speech on matters of public concern,” id. at 145, a category that did not include an "employee grievance” such as the assis¬ tant district attorney’s questionnaire. Id. at 148. Hence, the state was justified in discharging the attorney, even though there was no demonstrable impairment of her ability to perform her duties. Id. at 151. 7. See, e.g., Board of Regents v. Roth, 408 U.S. 564 (1972); Brest, supra note 1, at 138 n. 210.

816

COMMUNICATION

AND

EXPRESSION

Ch. 12

thus entitled to a full hearing on the reasons for the dismissal.8 If the teacher is able to show at such a hearing that the exercise of first amendment rights was indeed a "substantial,” or "motivating,” factor in the decision to discharge or not to rehire, the burden shifts to the school to show by a preponderance of the evidence that the same decision as to the teacher’s employment would have been reached even in the absence of the protected conduct. If the school fails to purge its decision of the "taint” of unconstitutional motivation, that decision cannot stand.9 In the first amendment context, the Supreme Court has been willing to inquire regarding — and to strike down executive and adminis¬ trative actions on the basis of — what it determines to be improper motives or purposes.10 In ascertaining the purpose of a legislature, 8. See, e.g., Perry v. Sindermann, U.S. 593 (1972).

408

9. See Mt. Healthy City Board of Edu¬ cation v. Doyle, 429 U.S. 274 (1977). Cf. Nardone v. United States, 308 U.S. 338, 341 (1939) (confession held admissible in evidence upon showing by prosecution that the causal link between a prior illegal ar¬ rest and the confession was "attenuated”). 10. See, e.g., Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985) (upholding executive order which limited participation in a charity drive among federal employees to organiza¬ tions that provided direct health and wel¬ fare services to individuals or their fami¬ lies, and excluded legal defense and political advocacy groups). The Court opined that it was not enough that the executive order appeared facially neutral (it excluded all political advocacy groups, not simply those with a particular mes¬ sage); if the regulations were motivated by a desire to suppress certain views or speak¬ ers, then they were impermissible: "[T]he government’s posited justifications for de¬ nying [the NAACP Legal Defense and Edu¬ cational Fund] access to the [Combined Federal Campaign] appear to be reasonable in light of the purpose of the CFC. The existence of reasonable grounds for limit¬ ing access to a nonpublic forum, however, will not save a regulation that is in reality a facade for viewpoint-based discrimina¬ tion.” Id. at 811. The Court therefore remanded the case for consideration of the issue "whether the exclusion of [the NAACP Legal Defense and Educational Fund] was impermissibly motivated by a desire to suppress a particular point of view.” Id. at 812-13. Justice Stevens, in dissent, made clear the Court’s willingness to examine the motivation behind the ad¬ ministrative rules: "Everyone on the Court agrees that the exclusion of 'advoca¬ cy’ groups from the Combined Federal Campaign (CFC) is prohibited if it is moti¬ vated by a bias against the views of the

excluded groups. . . . The problem pre¬ sented by this case is whether that infer¬ ence [of bias] is strong enough to support the entry of summary judgment in favor of [the NAACP].” Id. at 833-34 (Stevens, J., dissenting). Justice Stevens’ interpreta¬ tion of impermissible motive was suffi¬ ciently broad to include even a "subcon¬ scious bias, based on nothing more than a habitual attitude of disfavor, or perhaps a willingness to assume that frequent expres¬ sions of disagreement with the achieve¬ ments of advocacy groups adequately demonstrate that they are somehow inferi¬ or to 'traditional health and welfare chari¬ ties.’ ” Id. at 835-36 n. 3. See also Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (upholding provi¬ sion of public school collective bargaining agreement which granted preferential ac¬ cess to the interschool mail system to the union currently representing the teachers). The Court scrutinized the school board’s motivation in negotiating such a provision but concluded that "[t]here is ... no indication that the School Board intended to discourage one viewpoint and advance another.”

Id. at 49.

Cornelius and Perry may be viewed as specific instances of the larger doctrine of selective prosecution or enforcement, a constraint on executive decisionmaking that appears to have no precise counter¬ part in the legislative sphere, except per¬ haps in the prohibition on bills of attain¬ der. "Selectivity in the enforcement of . . . criminal law is . . . subject to con¬ stitutional constraints.” United States v. Batchelder, 442 U.S. 114, 123 (1979) (foot¬ note omitted). In particular, the decision to prosecute may not be "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classifi¬ cation,” Oyler v. Boles, 368 U.S. 448, 456 (1962), including the exercise of protected statutory and constitutional rights, see United States v. Goodwin, 457 U.S. 368, 372 (1982). The general bar against selec-

§ 12-5

COMMUNICATION

AND

EXPRESSION

817

however, the Court has been "reluctan[t] to attribute unconstitutional motives to the state, particularly when a plausible [permissible] purpose may be discerned from the face of the statute.” 11 To be sure, the Court has made clear that motive cannot be ignored altogether, even when legislatures are involved,12 especially in cases involving the establish¬ ment clause 13 or possible racial discrimination.14 But the Court’s decisions do indicate a general tendency, when all other things are equal,15 to grant greater deference to Congress and to state legislatures so far as the inquiry into purpose is concerned.16 tive prosecution, however, does not prevent law enforcement agencies from adopting strategies that have but incidental effects on expression. See Wayte v. United States, 470 U.S. 598 (1985) (upholding Se¬ lective Service "passive” enforcement sys¬ tem for draft registration). Because of the large number of non-registrants, the Ser¬ vice found it administratively infeasible to police compliance actively. Rather, the Service prosecuted only those who by their public statements and actions advertised their failure to register. The Court upheld this enforcement strategy even though it arguably discriminated against those who exercised their first amendment rights to protest the registration requirement. See generally, "Note: The Conflict of First Amendment Rights and the Motive Re¬ quirement in Selective Enforcement

.

Cases,” 39 Okla.L.Rev. 498, 514 (1986) (pro¬ posing a less stringent motive requirement in selective enforcement cases: the burden of persuasion should shift to the govern¬ ment after the defendant has made a prima facie showing of discriminatory in¬ tent).

11. Mueller v. Allen, 463 U.S. 388, 39495 (1983) (upholding Minnesota statute that permitted a tax deduction for tuition, textbook, and transportation expenses to parents whose children attended parochial schools). See also Flemming v. Nestor, 363 U.S. 603, 617 (1960) (declining to inquire into Congress’ motives for terminating So¬ cial Security benefits for deported mem¬ bers of the Communist Party); Watkins v. United States, 354 U.S. 178, 200 (1957) (refusing to examine motives of congres¬ sional investigating committee); Arizona v. California, 283 U.S. 423, 455 (1931) (refus¬ ing to examine motives underlying Hoover Dam authorization).

12. See Grosjean v. American Press Co., 297 U.S. 233 (1936) (discussing a general press freedom from taxes, but invalidating the particular tax under challenge only because it was a deliberate device to limit the circulation of newspapers critical of state government); Ely, note 1, supra, at 1208-12.

13. See Epperson v. Arkansas, 393 U.S. 97 (1968) (holding statute prohibiting the

teaching of Darwin’s theory of evolution in the state’s public schools unconstitutional because it was motivated by the intent to "establish” a religious viewpoint); Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (identifying three tests for determining whether a statute violates the establish¬ ment clause: "First, the statute must have a secular legislative purpose.”); Stone v. Graham, 449 U.S. 39 (1980) (per curiam) (holding a statute requiring the posting of the Ten Commandments in public schools violative of the establishment clause, even though the Kentucky legislature asserted that its goal was educational); Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (modifying the Lemon test by opining that "a statute motivated in part by a religious purpose may satisfy the first criterion,” but invali¬ dating an Alabama school prayer and med¬ itation statute on the ground that "the statute had no secular purpose” at all); Edwards v. Aguillard, 107 S.Ct. 2573 (1987) (invalidating state statute requiring equal time for "creation-science”). See generally § 14-9, infra. 14. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960) (racial gerrymandering held unconstitutional; an "uncouth twen¬ ty-eight-sided figure” excluding most black voters and no white voters from a city was evidence that the legislature was motivat¬ ed solely by racial considerations); Mobile v. Bolden, 446 U.S. 55, 134 (1980) (Mar¬ shall, J., dissenting) (rejecting an equal protection claim to an at-large voting sys¬ tem where, despite the fact that one-third of the city’s voters were black, no black had ever been elected to the city commis¬ sion): "[JJudicial deference to official deci¬ sionmaking has no place under the Fif¬ teenth Amendment.” 15. All other things are frequently not equal. The Court, for example, has been unwilling to inquire into the motives of legislatures or high executive officials when it fears impugning the integrity of a coordinate branch of government or in¬ truding too deeply into legislative and ex¬ ecutive processes. See A. Bickel, The

818

COMMUNICATION

AND

EXPRESSION

Ch. 12

The Court has often rested its decisions in reviewing legislation on grounds

other than motive,17 and, while Justices have on occasion

Least Dangerous Branch 208-21 (1962). The Court has accordingly recognized that a probing examination of motive at these levels can be justified only in extraordina¬ ry circumstances. See Village of Arlington Heights v. Metropolitan Housing Develop¬ ment Corp., 429 U.S. 252, 268 n. 18 (1977) (upholding municipal rezoning decision be¬ cause complainants had not shown racially discriminatory intent). But see id. at 26566 (’’racial discrimination is not just anoth¬ er competing consideration. When there is proof that a discriminatory purpose has been a motivating factor, this judicial def¬ erence is no longer justified.”); Baker v. Carr, 369 U.S. 186, 209-37 (1962) (refusing to find legislative apportionment a political question). In Davis v. Bandemer, 106 S.Ct. 2797 (1986), for example, the Court ulti¬ mately refused to overturn on equal protec¬ tion grounds an apportionment plan en¬ acted by Indiana’s Republican-controlled legislature and signed into law by the state’s Republican governor, because the challenging Democratic party members could show no "evidence of continued frus¬ tration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the

lature, at a special session called by the governor to deal with the school segrega¬ tion crisis, enacted a series of laws includ¬ ing new regulations of legal ethics which had the effect of prohibiting the NAACP from soliciting and financing litigation for its own lawyers or interfering with lawyerclient control of litigation. Virginia ad¬ vanced the justification that the law pro¬ tected black clients from the conflicts of interest that could arise from free repre¬ sentation by NAACP lawyers. The Court did not expressly respond that Virginia, under the guise of regulating legal ethics, had illegally sought to close the courts to constitutional litigation on behalf of black persons; yet it is difficult not to conclude that the Court’s invalidation of the Virgin¬ ia law as unconstitutionally broad and vague was inspired substantially by a real¬ istic assessment of the legislature’s inten¬ tions. See Kalven, The Negro and the First Amendment 63-121 (1965). It has been suggested that vagueness and overbreadth analysis (see §§ 12-27 through 12-33, infra) serve as quick and easy sub¬ stitutes for the examination of improper legislative and administrative motives.

political process.” Id. at 2811 (plurality opinion of White, J., joined by Brennan, Marshall, and Blackmun, JJ.). Neverthe¬ less, the Court by a firm majority held that such political gerrymandering claims are justiciable. See id. at 2805 (majority opin¬ ion of White, J., joined by Brennan, Mar¬ shall, Blackmun, Powell, and Stevens, JJ.)

"By invalidating statutes as overly vague or overly broad, courts foreclose the threat of selective enforcement based on venal motives without scrutinizing the motives

(rejecting the arguments that the adjudica¬ tion would involve the courts "in a matter more properly decided by a coequal branch of our Government” and that no "discerni¬ ble and manageable standards” exist to decide claims of political gerrymandering).

Schaumburg v. Citizens for a Better Envi¬ ronment, 444 U.S. 620 (1980) (striking down as unconstitutionally overbroad a vil¬ lage ordinance that prohibited door-to-door or on-street solicitation of contributions by charitable organizations that did not use at

16. See Wallace v. Jaffree, 472 U.S. at

least 75 percent of their receipts for "chari¬ table purposes” — such purposes being de¬ fined to exclude solicitation expenses, sala¬ ries, overhead, and administrative costs). The Court examined the interests purport¬

74-75 (O’Connor, J., concurring in the judgment): ”[T]he inquiry into the purpose of the legislature in enacting a moment of silence law should be deferential and limit¬ ed. In determining whether the govern¬ ment intends a moment of silence statute to convey a message of endorsement or disapproval of religion, a court has no li¬ cense to psychoanalyze the legislators. If a legislature expresses a plausible secular purpose for a moment of silence statute in either the text or the legislative history, or if the statute disclaims an intent to en¬ courage prayer over alternatives during a moment of silence, then courts should gen¬ erally defer to that stated intent.” (cita¬ tions omitted). 17. See, e.g., NAACP v. Button, 371 U.S. 415 (1963). In 1956 the Virginia legis¬

themselves.” Eisenberg, "Disproportion¬ ate Impact and Illicit Motive: Theories of Constitutional Adjudication,” 52 N.Y.U.L. Rev. 36, 103 (1977). See Village of

edly advanced by the ordinance — "protect¬ ing the public from fraud, crime, and un¬ due annoyance,” id. at 636, and concluded that they were "only peripherally promot¬ ed by the 75 percent requirement and could be sufficiently served by measures less destructive of First Amendment inter¬ ests.” Id. Because the Village’s proffered justifications were "inadequate,” the Court found that "the ordinance [could not] sur¬ vive scrutiny under the First Amend¬ ment.” Id. Professor Nimmer argues that a similar mode of analysis should have been applied in United States v. O’Brien, 391 U.S. 367 (1968): "[An overnarrow stat¬ ute] may be said to create a conclusive

§ 12-5

COMMUNICATION

AND

819

EXPRESSION

warned that "a law will not pass constitutional muster if the . . . purpose articulated by the legislature is merely a 'sham/ ” 18 they sometimes manipulate the definition of "purpose” to make a showing of improper purpose nearly impossible.19 In United States v. O’Brien,20 the Court went even further to avoid the motive inquiry, upholding a conviction for burning a draft card despite strong evidence that the intent of Congress was precisely to stop those who would demonstrate their opposition to the war in Vietnam by publicly burning their draft cards. The Court asserted broadly that a law’s constitutionality did not depend on the purpose or motive that led Congress to enact it.21 The idea was that the Constitution is primarily a document which allocates and limits power so that, if Congress has the power to act, a bad motive should be irrelevant just as a good motive could not save an enactment that was beyond the reach of legislative power.22 The Court’s conclusion that legislative motive is presumption that in fact the state interest which the statute serves is an anti-speech rather than a non-speech interest. If the state interest asserted in O’Brien were tru¬ ly the non-speech interest of assuring availability of draft cards, why did Con¬ gress choose not to prohibit any knowing conduct which leads to unavailability, rather than limiting the scope of the stat¬ ute to those instances in which the pro¬ scribed conduct carries with it a speech component hostile to governmental policy? The obvious inference to be drawn is that in fact the Congress was completely indif¬ ferent to the 'unavailability’ objective, and was concerned only with an interest which the O’Brien opinion states is impermissi¬ ble — an interest in the suppression of free expression.” Nimmer, "The Meaning of Symbolic Speech Under the First Amend¬ ment,” 21 U.C.L.A.L.Rev. 29, 41 (1973). 18. Wallace v. Jaffree, 472 U.S. 38, 64 (1985) (Powell, J., concurring). 19. See, e.g., Personnel

Administrator

v. Feeney, 442 U.S. 256, 279 (1979) (" 'Dis¬ criminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state leg¬ islature, 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.”). But such judicial manipulation occurs even when the purpose involved is not a legisla¬ tive one. Compare Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (defining illicit purpose to mean "entirely motivated” by an imper¬ missible intent but nevertheless striking down an Alabama silent prayer and medi¬ tation statute), with Lynch v. Donnelly, 465 U.S. 668, 680 (1984) (upholding a mu¬ nicipality’s non-legislative decision to dis¬ play a Christmas creche on the ground that the display served a secular purpose):

"The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no ques¬ tion that the statute or activity was moti¬ vated wholly by religious considerations.” (emphasis added). See also City of Renton v. Playtime Theatres, Inc., 106 S.Ct. 925, 929 (1986) (rejecting the view that "if 'a motivating factor ’ in enacting the ordi¬ nance was to restrict respondents’ exercise of First Amendment rights the ordinance would be invalid, apparently no matter how small a part this motivating factor may have played in the City Council’s deci¬ sion”) (quoting 748 F.2d at 537) (emphasis in original). 20. 391 U.S. 367 (1968), also discussed in § 12-3, supra, and §§ 12-6 and 12-23, infra. 21. Id. at 383.

See also Palmer

v.

Thompson, 403 U.S. 217, 224-25 (1971) (up¬ holding decision by municipal authorities closing all publicly-owned swimming pools; Court refused to inquire whether the deci¬ sion was racially motivated). See § 16-16, infra. 22. See Wright v. Council of City of Emporia, 407 U.S. 451, 462 (1972) (benign purpose of city in establishing a separate school system held irrelevant where the effect of the action would be to impede the process of dismantling a segregated school system): "The existence of a permissible purpose cannot sustain an action that has an impermissible effect.” Cf. Minneapolis Star & Tribune v. Minnesota Comm’r of Revenue, 460 U.S. 575, 592 (1983) (invali¬ dating a "use tax” on the cost of paper and ink products consumed in the publication of periodicals): "We need not and do not impugn the motives of the Minnesota legis¬ lature in passing the ink and paper tax. Illicit legislative intent is not the sine qua

820

COMMUNICATION

AND

EXPRESSION

Ch. 12

therefore irrelevant failed to acknowledge, let alone account for, the many cases in which such motive has been the focus of constitutional adjudication.23 Nor was the Court entirely faithful to its own

conclu¬

sion, since it did in fact inquire into Congress’ motivation in prohibiting the burning of draft cards, concluding that O’Brien had not proven the impermissible motive that he alleged.24 But that evidentiary conclu¬ sion was clearly reached by a Court especially sensitive to the hazards of congressional "psychoanalysis.” 25 There remains, however, the larger question of what is meant

by

an improper "motive.” Government officials, including legislators, may make decisions in order to advance their personal careers and to bring fame and fortune to themselves.26 These purposes surely cannot be deemed to taint the laws they inspire, for such a holding would invalidate much of the United States Code. Nor can the secret aspira¬ tions of legislators count as improper motives for the laws they favor. Even if a majority in Congress enacted a general, across-the-board tax relief provision in hopes that taxpayers would use much of the extra money to increase their contributions to religious organizations — or to a particular political party — such a tax cut would not be illegal.27 In the free speech context, the concept of illegitimately motivated laws or other government activities should be limited to those whose social meaning renders them abridgements of speech. The Court should accordingly treat as facially discriminatory, and thus as subject to track one scrutiny, any evident pattern of official action that a reasonably well-informed observer would interpret as suppressing a particular point of view.28 Such a restriction on speech should not be subject to validation either by a mask of surface neutrality or by the possibility of of a violation of the First Amend¬

27. See Wallace v. Jaffree, 472 U.S. 38,

ment.” 23. The Court has also recently created doctrines which require that it scrutinize legislative as well as administrative intent. The test for whether a government-created forum is open to all speakers on an equal

69-70 (1985) (O’Connor, J., concurring in the judgment): "A statute that ostensibly promotes a secular interest often has an incidental or even a primary effect of help¬ ing or hindering a sectarian belief. Chaos would ensue if every such statute were invalid under the Establishment Clause.

non

basis, for example, depends on "whether [the government] intended to designate a place not traditionally open to assembly and debate a public forum.” Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 802 (1985) (emphasis added), discussed further in § 12-24, infra. "The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally open¬ ing a non-traditional forum for public dis¬ course.” Id. (emphasis added). 24. See 391 U.S. at 385-88. 25. See United States v. Constantine, 296 U.S. 287, 298-99 (1935) (Cardozo, J., dissenting).

For example, the State could not criminal¬ ize murder for fear that it would thereby promote the Biblical command against killmg. *

^

99

28. This test should be equally applica¬ ble to legislative and other kinds of official actions. Compare Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O’Connor, J., concurring in the judgment) (striking down Alabama prayer and meditation statute): "The rele¬ vant issue is whether an objective observer, acquainted with the text, legislative histo¬ ry, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools,” with Lynch v. Donnelly, 465 U.S. 668, 693-94 (1984)

26. See Brest, "Palmer v. Thompson: An Approach to the Problem of Unconsti¬

(O’Connor, J., concurring) (upholding Paw¬ tucket display of Christmas creche):

tutional Legislative Motive,” 1971 Sup.Ct. Rev. 95, 101; Ely, "Legislative and Admin¬ istrative Motivation in Constitutional

"whether a government activity communi¬ cates endorsement of religion is not a ques¬ tion of simple historical fact. Although evidentiary submissions may help answer

Law,” 79 Yale J.L. 1205, 1218 (1970).

COMMUNICATION

§ 12-6

AND

EXPRESSION

821

hypothesizing permissible motives or "secret hopes.” 29 So it was that the Court invalidated segregation by law in public schools in Brown v. Board of Education 30 because that system unavoidably communicated a social message of black inferiority, regardless of the surface symmetry of the separate-but-equal concept, and regardless of any pretexts offered by the Topeka school administrators.31 The next section seeks to advance our understanding of the issue of motive in the context of the first amendment, and how that issue was misconstrued

in the OBrien

draft-card-burning case.

§ 12-6. A Closer Look at the Relevance Case

of Motive: The O’Brien

Three major objections have been advanced against judicial inquiry into the motives underlying an otherwise permissible enactment: (1) a law may be entirely proper although it was the expression of an improper motive; 1 (2) it would be futile to strike down an otherwise valid law which would have to be validated as soon as it was reenacted with a "show” of purer reasons; 2 and (3) motivation is extremely difficult to ascertain, particularly in a collective body such as a legisla¬ ture.3 The first argument assumes that a law may be deemed constitu¬ tional without any regard to the process that led to its enactment. But the Court often upholds a law only after finding that the legislature has it, the question is, like the question of whether racial or sex-based classifications communicate an invidious message, in large part a legal question to be answered on the basis of judicial interpretation of social facts.” See also Personnel Admin, of Massachusetts v. Feeney, 442 U.S. 256, 279 n. 24 (1979) (proposing a similar "objective test”).

29. See Arcara v. Cloud Books, Inc., 106 S.Ct. 3172, 3178 (1986) (O’Connor, joined by Stevens, J., concurring) (upholding closure of adult bookstore on the basis that solici¬ tation of prostitution was occurring on the premises): "If, however, a city were to use a nuisance statute as a pretext for closing down a book store because it sold indecent books or because of the perceived second¬ ary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment con¬ cerns and require analysis under the ap¬ propriate First Amendment standard of re¬ view.”

30. 347 U.S. 483 (1954), discussed in

Chapter 16, infra.

1. See Tussman & tenBroek, "The Equal Protection of the Laws,” 37 Calif.L. Rev. 341, 359-60 (1949); § 12-6 Ely, "Legislative and Administrative Motivation in Consti¬ tutional Law,” 1215-16 (1970).

79 Yale L.J. 1205, 1212,

2. See Wallace v. Jaffree, 472 U.S. 38, 108 (1985) (Rehnquist, J., dissenting) (sug¬ gesting that the test of secular purpose for a school prayer and meditation statute is meaningless because it "will condemn nothing so long as the legislature utters a secular purpose and says nothing about aiding religion. Thus the constitutionality of a statute may depend upon what the legislators put into the legislative history, and, more importantly, what they leave out”); Palmer v. Thompson, 403 U.S. 217, 225 (1971) (municipal decision to close swimming pools upheld although evidently motivated by consideration of race); Unit¬ ed States v. O’Brien, 391 U.S. 367, 384 (1968) (law banning draft card burning up¬ held despite evidence that it was intended to suppress a means of expressing dissent).

31. See also Hunter v. Underwood, 471 U.S. 222

(1985) (unanimously

striking down provision of Alabama state constitu¬ tion that disenfranchised persons convicted of certain enumerated felonies and misde¬ meanors, when it was clear that the sec¬ tion’s enactment represented an effort to discriminate against blacks).

3. See Palmer, 403 U.S. at 224-25; O’Brien, 391 U.S. at 383-84. Notably, none of these arguments even purports to address the role of an emphasis on motive in doctrine as addressed to the legislature itself; all focus exclusively, and myopical¬ ly, on judicial review.

822 properly weighed

COMMUNICATION

AND

EXPRESSION

its costs and benefits: where

Ch. 12

an illicit reason has

played a substantial role in the legislature’s deliberations, it may reasonably be said that the decisional calculus has been impermissibly skewed.4 The second argument assumes that it is a futile exercise to strike down a law which may be reenacted in a process that will lead to its validation. But the mere possibility of reenactment is insufficient warrant for a conclusion of futility. The prestige of the invalidating court may be enough to dissuade the legislature; judicial review may itself powerfully recall to legislators their constitutional oaths.5 If the lawmakers are adamant and do re-enact, so undisciplined and disparate an institution as a legislative body may not prove capable of the tight conspiracy needed to conceal its real motives from the judiciary.6 The courts might in any event presume that the legislature continues to entertain the illicit motive until the legislature carries the burden of showing its genuinely altered purpose in repassing the law.7 But even if lawmakers succeed in hiding illicit objectives from the judiciary, calling the resulting process a "charade” 8 would miss an essential point. At least when the illicit motive of suppressing speech is appar¬ ent to the public or stands revealed with unmistakeable clarity,9 vali4. See Califano v. Goldfarb, 430 U.S. 199, 214-17 (1977) (gender discrimination struck down because legislative history re¬ vealed motive to be stereotyped thinking, not desire to offset prior discrimination). Cf. Village of Arlington Heights v. Metro¬ politan Housing Development Corp., 429 U.S. 252, 265 n. 11 (1977) (rezoning deci¬ sion upheld where complainants had not proved racially discriminatory intent): "Legislation is frequently multipurposed: the removal of even a 'subordinate’ pur¬ pose may shift altogether the consensus of legislative judgment supporting the stat¬ ute.” See also Stone, "Content Regulation and the First Amendment,” 25 Wm. & Mary L.Rev. 189, 230 (1983) ("The improp¬ er motivation concept, however, clearly op¬ erates as a taint. That is, if an improper motivation played a substantial role in the government’s decision to restrict expres¬ sion, the restriction must be invalidated even if alternative, proper justifications are available.”); Brest, "Palmer v. Thomp¬ son: An Approach to the Problem of Un¬ constitutional Legislative Motive,” 1971 Sup.Ct.Rev. 95, 116-118, 127-128. See generally § 16-20 and Chapter 17, infra. 5. See Eisenberg, "Disproportionate Im¬ pact and Illicit Motive: Theories of Consti¬ tutional Adjudication,” 39, 116 (1977).

52 N.Y.U.L.Rev.

6. See Wallace v. Jaffree, 472 U.S. 38, 75 (1985) (O’Connor, J., concurring in the judgment) (invalidating a school prayer and meditation statute under the establish¬ ment clause): "I have little doubt that our courts are capable of distinguishing a sham secular purpose from a sincere one, or that

the Lemon

[v. Kurtzman,

403 U.S. 602

(1971) ] inquiry into the effect of an enact¬ ment would help decide those close cases where the validity of an expressed secular purpose is in doubt.” 7. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 285-86 (1977) (burden is on school officials to show by a preponderance of the evidence that a teacher who had been fired for an impermissible reason would have been fired even in the absence of that reason). Facts which might be used to show that reenactment was based on legitimate mo¬ tives could include a material change of circumstances, the passage of time accom¬ panied by a change in public attitudes, or a record showing the desirability of the en¬ actment on the merits. Such scrutiny seems an extraordinary intrusion into the legislative process, but may well be justi¬ fied by the legislature’s previous misbehav¬ ior. See Brest, supra note 4, at 126-127. 8. Ely, note 1, supra, at 274. 9. While a court may be less able to take note of illicit legislative motives than political observers might, given the proper¬ ly demanding evidentiary requirements, see Bickel, The Least Dangerous Branch 220 (1962), courts should nonetheless seek to narrow the gap between their percep¬ tions of legislative realities and those of the public. Courts cannot let themselves remain "blind” to what "others can see and understand.” And certainly they must not deliberately blind themselves to facts which are "palpable.” "[If a]ll others can see and understand [the intent of Con-

COMMUNICATION

§ 12-6

AND

EXPRESSION

823

dating the law would serve to legitimate a transparent and potentially chilling abridgment of individual liberty.10 Even when the effect of judicial inquiry into the motives of a legislature is reduced candor, the play, it must be remembered, is performed not to the Court alone, but also to the citizenry, with a salutary decline of political rhetoric antithetical to fundamental constitutional values.11 Among the most telling objections to judicial review of legislative motive is the difficulty of ferreting out the real purpose of a collective lawmaking body, particularly if it must be inferred from the articulated remarks of a few legislators.12 Nonetheless courts in the course of statutory interpretation routinely look to statements of legislators, among other evidence, for guidance as to legislative purpose.13 The inquiry into legislative motive would be rendered all but hopeless in constitutional adjudication if courts were asked to isolate an impermis¬ sible "sole” or "dominant” purpose, since the intentions of legislators will almost always be multiple and mixed.14 But this order of difficulty can be avoided if a complainant need only prove that the legislature was motivated in substantial part by an illicit purpose; once this is shown, the burden should shift to the law’s defenders to establish that the same law probably would have been enacted even if the impermissi¬ ble purpose had not been present. Casting the motive inquiry along these lines makes the threshold question no more difficult than the conventional

inquiry into motive for purposes of statutory construc¬

tion.15 gress h]ow can we properly shut our minds to it?” Bailey v. Drexel Furniture Co. (Child Labor Case), 259 U.S. 20, 37 (1922) (Taft, C.J.) (use of taxing power intended to control conditions of child labor). See also United States v. Kahriger, 345 U.S. 22, 40 (1953) (Frankfurter, J.) (dissenting from de¬ cision upholding federal occupational tax on gamblers): "The motive of congression¬ al legislation is not for our scrutiny, pro¬ vided only that the ulterior purpose is not expressed in ways which negative what the revenue

wordc on their face express.”

10. On the legitimating function of the Court, see Charles Black, The People and the Court 34—55 (1970). See also Max Web¬ er, On Law In Economy and Society 322-37 (M. Rheinstein ed. 1954). 11. See Wallace v. Jaffree, 472 U.S. 38, 75-76 (1985) (O’Connor, J., concurring in the judgment): "While the secular purpose requirement alone may rarely be determi¬ native in striking down a statute, it never¬ theless serves an important function. It reminds government that when it acts it should do so without endorsing a particu¬ lar religious belief or practice that all citi¬ zens do not share. In this sense the secu¬ lar purpose requirement is squarely based in the text of the Establishment Clause it helps to enforce.” Even if the free speech clause is not precisely analogous in this respect, a similar point may be made.

12. See O’Brien, 391 U.S. at 383-84; Edwards v. Aguillard, 107 S.Ct. 2573, 260507 (1987) (Scalia, J., joined by Rehnquist, C.J., dissenting); Miller, "Reductionism in the Law Schools, or Why the Blather About the Motivation of Legislators?”, 16 San Diego L.Rev. 891, 893 (1979) ("it is manifestly impossible for any one member of Congress to be informed about the de¬ tails of the 400 public laws enacted each session. How, then, can one speak of the motivation of Congress?”). See generally Ely, note 1, supra, at 1212-14, 1275-79. 13. See Frankfurter "Some Reflections on the Reading of Statutes,” 47 Colum.L. Rev. 527, 538-39, 543 (1947). Courts have also proven capable of determining the motivations of other collective bodies, such as labor unions and corporations. See Eisenberg, "Disproportionate Impact and Il¬ licit Motive: Theories of Constitutional Ad¬ judication,” 52 N.Y.U.L.Rev.

39, 115 (1977).

14. See Ely, note 1, supra, at 1213-14. 15. See Ely, supra note 1, at 1278. See also note 5, supra. Once the presence of an illicit motive is shown, the question remains what degree of scrutiny is thereby triggered. In his stimulating and complex essay, supra note 1, Professor Ely argues that proof of an illicit motive should trig¬ ger only a minimal burden on government to demonstrate a "legitimately defensible” reason for burdening expressive activity, so

824

COMMUNICATION

AND

EXPRESSION

Ch. 12

To determine that an illicit purpose was a "motivating factor,” a court must make use of such circumstantial and direct evidence of socially observable intent as may be available.16 Some of the proper elements of an inquiry into illicit motive may be observed through a re¬ examination of the claim that the law banning the burning of draft cards in United States v. O'Brien had been enacted with the illicit intent of stifling protest against the Vietnam war.17 The circumstances in which the law was enacted should at least have sparked the suspi¬ cion of the Court. The amendment to the Selective Service law making the knowing destruction of a draft card a federal offense was enacted by Congress only after such conduct became a notorious form of protest. To be sure, while a predictable consequence of the enactment was the elimination of a particularly dramatic vehicle for dissent, the sequence of events might seem consistent with an intent by Congress to halt draft card burnings solely because of the threat to the effective admin¬ istration of the draft laws caused by the destruction of the cards themselves. One would then look for evidence in the record that the administration of the draft had in any way been endangered. The legislative history was scant, however, the bill passing both Houses of Congress and being signed by the President in less than a month. Neither House held hearings on the merits of the draft-card-burning amendment. The only statements in the Committee Reports or from the floor of either House bearing on the merits of the law made reference to the "contumacious” and "unpatriotic” conduct of those who protested the war. More important was the striking omission from the legislative history of any explanation for protecting draft cards as such. The Court’s opinion listed some possible uses which draft cards might serve: initial notification of a registrant’s classification, proof of an individual’s registration, verification of a local board’s records in the event of administrative error, a convenient compendium of draft infor¬ mation for the registrant, a check on forgery or other deceptive misuse of the card, and evidence of availability for induction in the event of an emergency.18 The listing is a plausible if uncompelling explanation for singling out draft cards for protection, but only if the amendment crowns a regulatory process which in fact seriously pursued the goal long as the law on its face does not depart from government’s paramount obligation to be content neutral. But if track one’s demand for an extraordinary justification is triggered when government’s concern with communicative content is evident on the face of the statute, there seems insuffi¬ cient reason not to trigger the same de¬ manding scrutiny when government’s aim is rendered transparent by extrinsic evi¬ dence. See Brest, supra note 4, at 142. Other scholars have suggested methods of determining legislative purpose. Tay¬ lor, "Judicial Review of Improper Purposes and Irrelevant Considerations,” 35 Cam¬ bridge L.J. 272, 283-84 (1976); Simon, "Ra¬ cially Prejudiced Government Actions: A Motivation Theory of the Constitutional Ban

Against

Racial Discrimination,”

15

San Diego L.Rev. 1041, 1097, 1101 (1978) (proposing that the motivation of collective bodies can be determined by treating them as if they were individuals); Note, "A Case Study in Equal Protection: Voting Rights Decisions and a Plea for Consistency,” 70 Nw.U. L.Rev. 934, 961 (1976) (problems of proving motive can be avoided by alloca¬ tion of the burden of proof and by proper application of the rules of evidence). 16. See Village of Arlington Heights, supra note 4, at 564-65. 17. 391 U.S. 367 (1968). The following discussion draws heavily on Alfange, "Free Speech Ct.Rev. and 1. Symbolic Conduct,” 1968 Sup. 18. 391 U.S. at 378-80.

COMMUNICATION

§ 12-7

AND

825

EXPRESSION

that each registrant have his draft card on his person. While Selective Service regulations required registrants to have their cards in their possession at all times, the requirement had not been seriously en¬ forced. Indeed, prior to the enactment of the amendment, little atten¬ tion was paid to the possession requirement. The Selective Service had been quite casual about the possession requirement and had expressed no concern for the efficiency of the draft laws. Set in a context in which any serious concern for the asserted governmental interests would have demanded a broader solution,19 the publicly visible evidence quite clearly shows that the amendment would not have been enacted but for the purpose of suppressing dissent; 20 thus O’Brien carried the burden of showing that an illicit purpose was a "motivating factor” in Congress’ passage of the ban on burning draft cards. On this view, United States v. O’Brien appears to have been wrongly decided since the showing of illicit motive should have triggered the more demanding requirements of track one analysis rather than the weaker demands, met in would alleged to any

O’Brien , of track two. The relevant categorical test on track one have been "clear and present danger,” and no one had even that burning a draft card was an incitement to draft evasion or other illegal conduct.

From

the doctrinal point of view, the most important conclusion is

that the broad statement of the Court in O’Brien concerning the limited relevance of legislative motive in constitutional adjudication must be strongly qualified. In Washington v. Davis , Justice White wrote for the majority: "To the extent that [some of our cases suggest] a generally applicable proposition that legislative purpose is irrelevant in constitu¬ tional adjudication, our prior cases . . . are to the contrary.” 21 If there is persuasive proof that a purpose to penalize or control rights of expression or association significantly motivated the enactment of a law, or the taking of any other official government action, such proof should put the case on track one and trigger the demand for an extraordinary justification of the government’s departure from neutral¬ ity. § 12-7. The Persistent But Oversimplified Speech and Conduct

Distinction

Between

We have yet to consider a distinction between speech and conduct with which the Court has frequently ornamented

its opinions.1 The

20. See Professor Nimmer’s 44

A si ar is ma in a dif mi . ¬ de gu l fe co ar by meFnr "R an r d nt evC teuS Fe ent an ex in Ca n i o u d euwrF d p,Prr Suder La t 99 (h1n, tre eomf 95 w pr al eesCo ob em is th th S4u). wound sour e se e m, at ul p r ”no ha tYo pr rve up rem a Ne lad t w ve ob s he rk w e ld th ablfo th sh of di cat iMp tl at in y rbadth st e v. Ba seas 28 ¬ m i e a to 9 e e l n e e t n d t d e,if it hzt with U. 34 (1 kn th a 9 e S 6 na d o di . wa 33p)r, in Ne wn Yo , t he s rd ev s r sto an easeth th stal wa do w no k a a e e i th d tent s t n g i pr he ca fr ot s tt he ng tate al e o fr ven be wile in m arn tmhi s fe im th om t in yxe ct al g d ed s.

analysis

that the statute was "overnarrow,” 17, in § 12-5, supra.

note

21. 426 U.S. 229, 244 n. 11 (1976) (up¬ holding the use of a test to screen recruits for the police force, despite the test’s dis¬ proportionate impact on minority appli¬ cants, because there was no showing of racially discriminatory intent).

1. See Ely, "Flag Desecration: A Case Study in the Roles of Categorization and

§ 12-7

Balancing in First Amendment Analysis,” 88 Harv.L.Rev. 1482, 1493-1496 (1975);

.

826

COMMUNICATION

AND

EXPRESSION

Ch. 12

distinction originates in the labor picketing cases. In Thornhill

v.

Alabama ,2 the Court declared that peaceful picketing to publicize the fact of a labor dispute was constitutionally protected free speech. In a series of cases culminating some 17 years later in Teamsters Local 695 v. Vogt,3 the Court upheld state laws which banned peaceful labor picketing for illegal purposes. To distinguish these cases from Thorn¬ hill, Justice Frankfurter said that picketing is "speech plus” and that a state could for various reasons regulate the "plus.” 4 In decisions growing out of civil rights demonstrations, the Court took up that distinction, the Court’s fullest statement appearing in Cox v. Louisi¬ ana, A Cox involved 2,000 students demonstrating on the sidewalk opposite the Baton Rouge courthouse to protest segregation in general and to inveigh particularly against the previous arrest of several students, then being held in the courthouse jail, who had been picketing stores that maintained segregated lunchcounters. Justice Goldberg’s opinion for five justices characterized the demonstration as "speech plus,” and thus found it entitled to a lesser degree of protection than the first amendment affords "pure speech.” 6 Justice Black took the position that the demonstration was conduct, unprotected by the first amendment, which could be regulated or prohibited.7 In subsequent cases involving public demonstrations and nonverbal symbolic expres¬ sion, the Supreme Court has occasionally employed Justice Goldberg’s language, affording full protection to conduct labeled "pure speech” and something less to what the Court labeled other forms of conduct.8 Nimmer, "The Meaning of Symbolic Speech Under the First Amendment,” 21 U.C.L.A.L.Rev. 29 (1973); Henkin, "The Supreme Court, 1967 Term — Foreword: On Drawing Lines,” 82 Harv.L.Rev. 63, 76-82 (1968); Note, "Symbolic Conduct,” 68 Colum.L.Rev. 1091 (1968). 2. 310 U.S. 88 (1940) (facially invalidat¬ ing for overbreadth a state law which pro¬ hibited all union picketing).

Black and Douglas cited Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 498 (1949) (validating a state ban on picketing directed at enforcing a secondary boycott made illegal by state antitrust laws) for the distinction between speech and conduct. See, e.g., Street v. New York, 394 U.S. 576, 610 (1969) (Black, J., dissenting).

8. Id. at 563. 3. 354 U.S. 284 (1957) (upholding state 7. Id. at 581 (Black, J., dissenting). prohibition of picketing directed at achiev¬ Justice Black’s constitutional approach ing a "union shop” in violation of state read the Bill of Rights as withdrawing law). The result of the cases after Thorn¬ hill upholding state bans on peaceful pick¬ from government "all power to act in cer¬ 37 proper¬ tain areas — whatever the scope of those eting directed at ends the state has 9U ly forbidden is that the states .S are areas may be.” Black, "The Bill of .5 essentially as free to regulate labor picket¬ Rights,” 35 N.Y.U.L.Rev. 865, 874-75 59 (1960). The areas to which Justice Black (C ing today as if Thornhill had not been ox decided. See Kalven, The Negro and the II applied his absolutist thesis were deter¬ ) First Amendment 134 (1966); Emerson, (19mined by his definition of speech. The 65 criticism has been that, if one does not ). The System of Freedom of Expression, 435want to protect an act, one merely defines 444 (1970). See § 12-3, note 14, supra. it as "nonspeech”, cf. G. Orwell, 1984, the 4. Teamsters Local 695 v. Vogt, 354 distinction between speech and conduct U.S. at 289, 290, 292. The distinction is serving as a sub rosa tool to escape the traceable to Justice Douglas’ concurring rigidity of the absolutist position so as to opinion in Teamsters Local 802 v. Wohl, produce the desired result. See Kalven, 315 U.S. 769, 776-777 (1942) (invalidating "Upon Rereading Mr. Justice Black On the an injunction directed against union pick¬ First Amendment,” 14 U.C.L.A.L.Rev. 428 eting of wholesale bakeries and retail out¬ (1967). lets serviced by independent peddlers who had refused to join the union or work 8. See, e.g., Adderley v. Florida, 385 union hours). In later cases, Justices U.S. 39 (1966) (demonstration on premises

§ 12-7

COMMUNICATION

AND

EXPRESSION

827

The trouble with the distinction between speech and conduct is that it has less determinate content than is sometimes supposed. All communication except perhaps that of the extrasensory variety in¬ volves conduct. Moreover, if the expression involves talk, it may be noisy; 9 if written, it may become litter.10 So too, much conduct is expressive, a fact the Court has had no trouble recognizing in a wide variety of circumstances.11 Expression and conduct, message and medi¬ um, are thus inextricably tied together in all communicative behavior; expressive behavior is "100% action and 100% expression.” 12 It is thus not surprising that the Supreme Court has never articulated a basis for its distinction; it could not do so, with the result that any particular course of conduct may be hung almost randomly on the "speech” peg or the "conduct” peg as one sees fit. The disharmony in the cases is particularly apparent when one compares Justice Gold¬ berg’s opinion in Cox with an earlier opinion by Justice Stewart in Edwards v. South Carolina™ where 187 demonstrators were convicted for breach of the peace after they paraded peaceably through the grounds of the State House to protest against state segregation policies. Except that the site of the demonstration was an area around a courthouse, the style of the protest in Cox was essentially identical with that in Edwards. But in Edwards the Court saw "an exercise of [first amendment] rights in their most pristine and classic form,” 14 while in Cox the majority conjured up the specter of "mob rule.” 15 While the ultimate decisions in the two cases may well be reconciled, the charac¬ terization of the two courses of conduct is strikingly inconsistent, so the distinction between speech and conduct must be seen at best as an¬ nouncing a conclusion of the Court, rather than as summarizing in any way the analytic processes which led the Court to that conclusion. Meaning might be poured into the speech-conduct dichotomy by reference to a system of free expression that permits the identification of acts that should be protected by the first amendment. Government would be guilty of impermissibly abridging speech or petition within of county jail is conduct not protected by first amendment); Brown v. Louisiana, 383 U.S. 131 (1906) (silent demonstration on premises of public library is speech protect¬ ed by first amendment); United States v. O’Brien, 391 U.S. 367 (1968) (burning draft card is conduct not protected by first amendment); Spence v. Washington, 418 U.S. 405 (1974) (per curiam) (affixing peace symbol to flag is speech protected by first amendment). 9. See, e.g., Kovacs v. Cooper, 336 U.S. 77 (1949) ("loud trucks).

and

raucous"

sound

10. See, e.g., Schneider v. Irvington, 308 U.S. 147 (1939) (ordinance barring the dis¬ tribution of leaflets as means of reducing litter). 11. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (contributing money); Spence v. Washington, 418 U.S. 405 (1974) (display¬ ing flag with peace symbol attached); Co¬

hen v. California, 403 U.S. 15 (1971) (wear¬ ing sign on back of jacket); Schacht v. United States, 398 U.S. 58 (1970) (wearing uniform); Tinker v. Des Moines School Dist., 393 U.S. 503 (1969) (wearing black armbands); Edwards v. South Carolina, 372 U.S. 229 (1963) (demonstration); NAACP v. Button, 371 U.S. 415 (1963) (liti¬ gation); West Virginia State Board of Edu¬ cation v. Barnette, 319 U.S. 624 (1943) (compulsory flag salute); Thornhill v. Ala¬ bama, 310 U.S. 88 (1940) (picketing); Stromberg v. California, 283 U.S. 359 (1931) (displaying red flag). 12. Ely, supra note 1, at 1495-96. 13. 372 U.S. 229 (1963). The compari¬ son is more fully drawn by Kalven, "The Public Forum: Cox v. Louisiana," 1965 S.Ct.Rev. 1. 14. 372 U.S. at 230-31. 15. 379 U.S. at 562.

828

COMMUNICATION

AND

EXPRESSION

Ch. 12

the first amendment’s meaning, quite apart from the conduct at which its regulation is directed or to which its regulation is applied, if the regulation is properly understood as suppressing a disfavored viewpoint or idea. Thus, a rule forbidding ''outdoor sleeping as a means of protesting homelessness,” but permitting all other outdoor sleeping, would surely be an abridgement of speech,16 even if camping or sleeping are not generally regarded as forms of expression.17 The harder problem arises when the law is not directed at anything resembling speech or at the views expressed,18 but when its enforcement nonetheless serves to inhibit speech. If any such effect is merely incidental, no first amendment issue should be deemed to arise. In Arcara v. Cloud Books, Inc.,19 for example, the Supreme Court upheld the closure of an adult bookstore on whose premises prostitution was taking place.20 The Court found that the object of the state’s order was the illegal conduct, which "manifests absolutely no element of protected 16. Cf. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (uphold¬ ing formally neutral National Park Service regulations that forbade all sleeping in des¬ ignated monument areas, as applied to protesters attempting to call attention to the plight of the homeless by sleeping in symbolic tents erected in Lafayette Park, across the street from the White House). The previous winter, the CCNV had set up and slept in nine tents in Lafayette Park to protest homelessness after the D.C. Circuit found that these activities did not violate the then-existing Park Service regulations. See Community for Creative Non-Violence v. Watt, 670 F.2d 1213 (D.C. Cir. 1982). The Park Service then issued a set of new rules clearly aimed at the CCNV’s demon¬ strations, see 47 Fed.Reg. 24,299 (1982), and this second set included the formally neutral regulations at issue in Clark. See 468 U.S. at 302 n. 1 (Marshall, J., joined by Brennan, J., dissenting). 17. See Community for Violence v. Watt, 703 F.2d Cir. 1983) (Scalia, J., joined and Bork, JJ., dissenting)

asked: "What if a soldier in Vietnam, in a crowd, broke his weapon? Would it be symbolic speech?” And Justice Fortas asked whether the act of throwing a rock through a window of the White House could claim first amendment protection. See Bickel, The Supreme Court and the Idea of Progress 79-80 (1970). See also United States v. Miller, 367 F.2d 72, 79 (2d Cir. 1966) (upholding conviction for draftcard burning). Professor Edwin Baker proposes that the manner in which both speech and conduct affects others determines whether it is pro¬ tected expression. Baker, "Scope of the First Amendment Freedom of Speech,” 25 U.C.L.A.L.Rev. 964 (1978). Conduct, for example, is unprotected if it includes "coer¬ cion or injury to or physical interference with another or damage to physical proper¬ ty.” Id. at 1011. Blackmail, while clearly speech, is unprotected because it is "de¬ signed to disrespect and distort the integri¬

Creative Non586, 622 (D.C. by MacKinnon (denying that

ty of another’s mental processes.” Id. at 1002. For thoughtful comments on this

"sleeping is or can ever be speech for First Amendment purposes,” but conceding that "[a] law directed at the communicative na¬ ture of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment

Court,” 68 Calif.L.Rev. 422, 474-77 (1980).

requires”) (emphasis added). 18. The Court, for example, has been reluctant to concede that the first amend¬ ment has any relevance whatsoever to po¬ litical assassinations, radical bank robber¬ ies, or other violent modes of expression. This reluctance was evident in the tenor of the oral argument in United States v. O’Brien, 391 U.S. 367 (1968), in which the Court ultimately upheld a conviction for draft-card burning. Chief Justice Warren

approach, see Thomas Emerson, "First Amendment Doctrine and the Burger

19. 106 S.Ct. 3172 (1986). 20. Cf. Schad v. Borough of Mt. Ephra¬ im, 452 U.S. 61, 66 (1981) (invalidating a borough ordinance that permitted adult theaters and bookstores, but excluded live entertainment from its commercial zone): "[Njude dancing is not without its First Amendment protections from official regu¬ lation.” But cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 (1973) ("a 'live’ performance of a man and woman locked in a sexual embrace at high noon in Times Square is [not] protected by the Constitu¬ tion,” even if "they simultaneously engage in a valid political dialogue.”).

§ 12-7

COMMUNICATION

AND

829

EXPRESSION

expression/’ 21 The open sexual activities were thus in no sense part of the system of free expression, either in general or in the particular case. Since this was so — and since, as Justice O’Connor pointed out in her concurrence, the enforcement order was not a pretext for harassing certain bookstores because of the sorts of literature they sold 22 — no abridgement of speech was involved at all.23 There are certain activities that have historically been recognized as inextricably intertwined with speech or petition; regulation of these activities implicates the first amendment regardless of whether such regulation is cast in terms of message, or motivated by message. Thus, outdoor distribution of leaflets or pamphlets; 24 door-to-door political canvassing; 25 solicitation of contributions, wherever it takes place; 26 21. 106 S.Ct. at 3176-77 ("unlike the symbolic draft card burning in O’Brien, the sexual activity carried on in this case manifests absolutely no element of protect¬ ed expression”). 22. 106 S.Ct. at 3178 (O’Connor, joined by Stevens, J., concurring).

J.,

23. Justice Blackmun, joined by Jus¬ tices Brennan and Marshall, dissented on the grounds that the closure of the book¬ store represented not merely an incidental but rather a "substantial infringement of First Amendment rights.” Id. at 3180. And on remand, the New York Court of Appeals found that the closure violated freedom of expression as guaranteed by the state’s own constitution. Arcara v. Cloud Books, 68 N.Y.2d 553, 510 N.Y.S.2d 844, 503 N.E.2d 492 (1986). Even though the state’s purpose was not to interfere with legitimate bookselling activities, its en¬ forcement order inevitably had that effect. The state’s action thus had an "inciden¬ tal,” albeit "not direct,” impact on commu¬ nication. "Actions of this type are subject to lesser scrutiny than those directed at restraining free expression, but they can¬ not be said to have absolutely no [state] constitutional implications.” Id. The New York court, while maintaining that a bookstore can claim no "exception from statutes of general operation aimed at pre¬ venting nuisances or hazards to the public health and safety,” nevertheless held that it was "entitled to special protection” un¬ der the state constitution’s counterpart of the first amendment by virtue of its book¬ selling activities. The New York court ac¬ cordingly imposed the burden on the state to demonstrate that, in closing the store, it had chosen "a course no broader than nec¬ essary to accomplish its purpose.” Id. The state, in other words, had to satisfy a "least restrictive means” test: it had to show the unavailability of other measures with less detrimental effect on freedom of expression, such as the arrest of the offend¬ ing prostitutes.

24. United States v. Grace, 461 U.S. 171 (1983) (invalidating statute prohibiting all leafleting and picketing on sidewalk ad¬ joining Supreme Court building); Heffron v. International Society for Krishna Con¬ sciousness (ISKCON), 452 U.S. 640 (1981) (upholding a state fair rule that prohibited the distribution of printed material or the solicitation of funds except from duly li¬ censed booths in the fairgrounds); Schnei¬ der v. Irvington, 308 U.S. 147 (1939) (invali¬ dating several ordinances that prohibited leafleting on public streets and other pub¬ lic places). 25. Compare City of Watseka v. Illinois Public Action Council, 107 S.Ct. 919 (1987) (mem.) (affirming judgment that ordinance which limited door-to-door solicitation to the hours between 9:00 am and 5:00 pm, Monday through Saturday, was unconstitu¬ tional as applied to organization that en¬ gaged in political canvassing); Martin v. Struthers, 319 U.S. 141 (1943) (striking down an ordinance that forbade knocking on the door or ringing the door of a resi¬ dence in order to deliver handbills, as ap¬ plied to a Jehovah’s religious literature), andria, 341 U.S. 622 ordinance forbidding door-to-door to solicit

Witness distributing with Breard v. Alex¬ (1951) (upholding an the practice of going orders for the sales of

goods). 26. Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788 (1985) (upholding executive order that excluded organizations engaging in political advoca¬ cy from participating in charity fundrais¬ ing drive aimed at federal employees); Sec¬ retary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (invalidat¬ ing as an unconstitutional limitation on protected first amendment solicitation a Maryland statute that prohibited charita¬ ble organizations from paying expenses of more than 25 percent of amount raised); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) (invalidating as unconstitutionally

over-

830

COMMUNICATION

AND

EXPRESSION

Ch. 12

mailbox-stuffing; 27 picketing; 28 civil rights demonstrations 29 and boy¬ cotts; 30 communicating with government; 31 putting up outdoor pos¬ ters 32 or signs 33 — ail of these activities might variously be described, without special illumination, either as "speech” or as "conduct,” but all must be recognized as activities of special first amendment significance. Their regulation must therefore be assessed with particular sensitivity to the possible constriction of that breathing space which freedom of speech requires in the society contemplated by the first amendment. So, too, for searches of newsrooms,34 eavesdropping on private conversa¬ tions,35 military infiltration of antiwar meetings,36 or coerced disclosure of journalists’ sources.37 In all of these instances, even if a regulation is broad a limitation on door-to-door or on¬ street solicitation to organizations that use 75 percent of their receipts for "charitable purposes”). But see Munson, 467 U.S. at 979-80 (1984) (Rehnquist, J., dissenting) (arguing that the 25 percent rule did not have a sufficiently direct impact on expres¬ sive activity to warrant first amendment scrutiny): "Otherwise, national forest leg¬ islation would be equally suspect as tend¬ ing to raise the price and limit the quanti¬ ty of paper.” 27. United

States Postal

Service

v.

Council of Greenburgh Civic Ass’ns, 453 U.S. 114 (1981) (upholding postal service statute that prohibited the deposit of un¬ stamped "mailable matter” in letterboxes). 28. Chicago Police Dept. v. Mosley, 408 U.S. 92 (1972) (invalidating an ordinance that banned all picketing within 150 feet of a school building while school was in ses¬ sion and one half-hour before and after¬ wards, except "the peaceful picketing of any school involved in labor dispute”); Ca¬ rey v. Brown, 447 U.S. 455 (1980) (invali¬ dating a statute that prohibited the picket¬ ing of residences or dwellings, except when the dwelling was "used as a place of busi¬ ness,” or was "a place of employment in¬ volved in a labor dispute or the place of holding a meeting [on] premises commonly used to discuss subjects of general public interest,” or when a person was "picketing his own [dwelling].”). 29. Grayned v. Rockford, 408 U.S. 104 (1972) (upholding anti-noise ordinance un¬ der which were convicted demonstrators protesting black students’ grievances at a public high school); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) (strik-' ing down ordinance governing parade per¬ mits because it gave police officials too much discretion to determine who could demonstrate). 30. Compare NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (holding that NAACP consumer boycott was pro¬ tected expression immune from state pro¬ hibition), with International Longshore¬

men’s Ass’n v. Allied Int’l, 456 U.S. 212 (1982) (finding that political boycott by la¬ bor union is not protected expression). 31. Minnesota State Board for Commu¬ nity Colleges v. Knight, 465 U.S. 271 (1984) (upholding exclusion of state professional employees who were members of bargain¬ ing unit but not members of union from "meet and confer” sessions with state edu¬ cation board); Perry Educational Associa¬ tion v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (upholding collective bar¬ gaining arrangement conferring exclusive access to interschool mail system to incum¬ bent union). 32. Los Angeles City Council v. Taxpay¬ ers for Vincent, 466 U.S. 789 (1984) (up¬ holding city’s ban on posting of all signs on public property). 33. Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981) (striking down ordinance that imposed a greater restriction on politi¬ cal than on commercial billboards) (plurali¬ ty opinion). 34. Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (holding that fourth amendment does not prevent the government from is¬ suing a warrant based on probable cause simply because owner or possessor of place to be searched, in this case a newspaper office, is not reasonably suspected of crimi¬ nal involvement). 35. Katz v. United States, 389 U.S. 347 (1967) (holding that electronic eavesdrop¬ ping upon private conversations consti¬ tutes a search and seizure and must meet fourth amendment requirements). 36. Laird v. Tatum, 408 U.S. 1 (1972) (dismissing for lack of standing class action that sought declaratory and injunctive re¬ lief against the U.S. Army because of its "alleged surveillance of lawful civilian po¬ litical activity”). 37. Branzburg v. Hayes, 408 U.S. 665 (1972) (declining to create a first amend¬ ment newsman’s privilege to refuse to an¬ swer relevant and material questions dur¬ ing a good faith grand jury investigation).

§ 12-7

COMMUNICATION

AND

EXPRESSION

831

'Track 2” in character, a first amendment problem is posed by any arguably gratuitous or excessively severe regulation. The very notion of speech is, of course, incomprehensible outside a cultural and social context. Thus activities ordinarily thought to be speech-related need not be so in every setting. Regulations of loud noises used not to communicate but instead to shatter glass, or pam¬ phlets used not to express anything but to cover the ground with litter, need not trigger any first amendment scrutiny at all. But a generic regulation of pamphlet distribution, even as applied to an airdrop of pamphlets designed solely to litter the ground, might still be invalidat¬ ed on first amendment principles if, in the process of enforcement, the regulation is not narrowed to deal with the non-communicative aspect of the conduct at issue.38 Finally, activities not ordinarily thought to have any particularly expressive dimension — such as camping or sleeping outdoors — might properly acquire such a dimension in a specific regulatory context where the regulation is promulgated in response to what is generally understood to be expressive use of the activities in question.39 The fact that a regulation was so promulgated should not be equated with a viewpoint-suppressing motive of the sort that would trigger "Track 1” scrutiny: 40 so long as a law is not aimed at speech, the fact that it was enacted because of speech should not suffice to subject it to the strictest scrutiny.41 But in both Clark v. Community for Creative Non-Violence 42 and United States v. O'Brien,4 3 it was at least plain that the challenged rules were enacted in light of the expressive use of the activities at issue — whether camping out, or destroying draft cards — and it is this circumstance that would have made it artificial and perhaps indefen¬ sible for the Supreme Court to take the position that the first amend¬ ment had nothing at all to do with either case. When the acts that trigger a rule’s enactment and that occa¬ sion its invocation in the case at hand are both intended to ex¬ press, and understood by their audience to express,44 a particular mes38. Cf. Street v. New 576 (1969) ing words flag while punished

York, 394 U.S.

(reversing a conviction for utter¬ contemptuous of the American burning it, under a statute that both words and acts tending to

"cast contempt upon [any American flag]”). The Court did not reach the issue of wheth¬ er a conviction solely for acts of flag muti¬ lation or burning could be sustained, see id. at 594, but noted instead that the stat¬ ute had not been narrowed by the trial court’s instructions to exclude constitution¬ ally protected speech from its scope. See § 12-27, infra. 39. See Clark v. Community for Cre¬ ative Non-Violence, 468 U.S. 288 (1984), discussed in note 16, supra. 40. See § 12-3, supra. By contrast, when regulation is triggered by the views expressed, a high standard of review is employed. Compare the doctrine of selec¬ tive enforcement, as described in Wayte v. United States, 470 U.S. 598 (1985), which

upheld the "passive” enforcement strategy of the Selective Service that prosecuted those who publicly revealed their failure to register for the draft e nd thus may have punished those who exercised their first amendment rights. In dictum, the Court recognized that "the decision to prosecute may not be 'deliberately based’ ... on the exercise of protected statutory and con¬ stitutional rights.” (citations omitted). 41. See § 12-5, supra. 42. 468 U.S. 288 (1984) (upholding ban on sleeping in certain monument areas). 43. 391 U.S. 367 (1968) (sustaining con¬ viction for draft card burning). 44. See Note, "First Amendment Pro¬ tection of Ambiguous Conduct,” 84 Colum. L.Rev. 467, 493 (1984) (suggesting that courts focus on "the likelihood that the act was intended to be communicative, and will be understood

to be so”).

832

COMMUNICATION

AND

Ch. 12

EXPRESSION

sage,45 it is necessary to subject the rule and its enforcement to some degree of first amendment scrutiny.46 All that follows is that the government must meet some version of the least restrictive alternative test47— a relaxed version, as in O'Brien and CCNV , when the Court does not deem the activities in question particularly significant to the system of free expression. When the conduct is more closely linked to expression, as in the case of pamphleteering, a tighter version of the test is appropriate.48 Of course, if the Court is convinced not only that the first amendment should be applied, but also that the regulation was promulgated for the purpose of suppressing a disfavored viewpoint, then the case becomes one analogous to Stromherg v. California ,49 where the law on its face singled out conduct in terms of the anti¬ government message it expressed, triggering a virtually per se rule of invalidity.50 § 12-8. The

Structure

tent-Based Theory

of Track-One

Abridgments

Analysis:

under

Evaluating

Chap!insky*s

Con¬

Two-Level

Once it is determined that a government regulation is aimed at the communicative impact of expressive activity, one must invalidate the regulation unless it falls within one of several narrow exceptions to the principle that government may not prescribe the form or content of individual expression. Although capped with an exception for compellingly justified restrictions (to be discussed later), all of the other

.

exceptions take the form of categorical rules, such as the "clear and present danger” test, which differentiate between expression protected by the first amendment and expression which is regulable as long as minimal due process requirements have been met. The particular categorical rules for these track one cases will be examined in subse¬ quent sections. This section briefly sets out the general contours of judicial review of government action which abridges "speech” in this content-based sense, examines the premises underlying the categorical 45. See Clark v. Community for Cre¬ ative Non-Violence, 468 U.S. 288 (1984); United States v. O’Brien, 391 U.S. 367 (1968); Tinker v. Des Moines School Dis¬ trict, 393 U.S. 503 (1969) (upholding right of students to wear black armbands in an¬ ti-war protest). 46. Whether this is so when the rule was enacted long before the acts acquired any expressive significance, and when all one can say is that the rule is being ap¬ plied to an act that is not intrinsically or historically communicative but that hap¬ pens in the case at hand to be expressive in intent and effect, is less clear. Absent proof of selective application to expressive acts alone, see note 40, supra, and § 12-5, supra, the first amendment should proba¬ bly be deemed irrelevant in such a case. 47. See § 12-23, infra.

48. In City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 80507 (1984), the Court evidently thought that putting up posters was sufficiently speechrelated to trigger first amendment scruti¬ ny, but not sufficiently central to freedom of expression to prevent the city from de¬ fining the very presence of the posters as "visual blight” and thus assuring that the "least restrictive alternative” test would be met virtually by definition. 49. 283 U.S, 359 (1931) (invalidating statute that prohibited anyone from "pub¬ licly displaying] a red flag [or] device of any color or form whatever [as] a sign, symbol, or emblem ized government”).

of opposition to organ¬

e§

Se

§ 12-8

COMMUNICATION

AND

EXPRESSION

833

rules, and briefly describes the status of the two-level theory of the first amendment, according to which each category of speech is either protected or unprotected. In order to establish that particular expressive activities are not protected by the first amendment, the defenders of a regulation which is aimed at the communicative impact of the expression have the burden of either coming within one of the narrow categorical excep¬ tions or showing that the regulation is necessary to further a "compel¬ ling state interest.” In first amendment cases, the Supreme Court is least likely to take into account governmental interests which, al¬ though conceivable, were not actually considered by the relevant deci¬ sion-maker.1 The Court also requires an especially close nexus between ends and means. A statute must be narrowly drawn so that a chal¬ lenged act of government is clearly an efficacious means to achieve permissible objectives of government and is narrowly aimed at those permissible objectives so as not unnecessarily to reach expressive con¬ duct protected by the first amendment.2 The test for a content-based restriction on track one is often described as requiring that "the government . . . show that the regulation is a precisely drawn means of serving a compelling state interest.” 3 Whenever the harm feared could be averted by a further exchange of ideas , governmental suppres§ 12-8

391 U.S 367 (19 v. O’B ed Sta 68t) app tes to vio rien, thi pre . h,e lat scr s ear e est bioptt in cas is fir pri e nc mly hion ab , sees perlishe int inv iple imp , ere olv son d ort sts v L i a a n l n E o B g , C e.g. . af duc otar lev 414elaUn.S 632 d 641 n. 9 a(t1i9on (St Fle , 7 , ew¬ u d. (m4a) for the Cou art r,J., opi , rt) nio nda it in cas a lean rule mat es nvoorlyv ve ern s), nd ¬ of cla cri ing seimty ssi ter i-s f i 43ic0a U.S v. Gaol See e.g. uCsal tio . , dfa , peicfta n. r n disb, (19 o (ge 199 214 , 77) cri nde -17 be Itmiwnoau irnf § 16See gen l rCa. 33, t eara d i to taokn) a for the ou hig noll e. whe in tho rtcas morhly cas maylaott es se ual usitu e re de s t b t h scr he tric een as rad u t itiu ame ¬ f t ari est —ticnays i o h n r n e d s eIs sini a aelrl nd¬o res t men gn nal y n nde tri t. ed, yzi c t s h n C i t of exp fr asons cru¬ h g our t of the mote the raecsts tienedo izem uiaoln, iva tC v. e.g see dec d ., ioornne , iso and Edu liu Def L NA c s AC n-makegal ens (upation U.rS 788 81e3 (19 Fun P 473 e 8 , . hol al , d, 5) dinor¬ adv tha exc ord exe g t er cut lud o c acy dri feudn cha fro gan ive ve r i d m anrdaisriem emp ity aim zatiaot fed e n e loy of thengaisnsdi of the dcas sfor rdael t ees ueng e erm i n m i w o t w a he rde oti cas as ti mpr het es, r on ope h spveat¬ par rl to sup see,ed byera des a andprehsass refticuyla to accek¬ eres.g.o,r mes ire u s r pt s Uni age e t¬ s),ju fodr abr hyp sti did not inidgfea¬ct ificthe menothe of spe See oaftiytohne dec ser ts atsicatlhe ecbhas isi is s ve on. s § 12gen 5, upra. era lly

2. If a statute is not narrowly enough drawn to create a close nexus between its means and its legitimate ends, the Court may disregard such ends as justifications of the challenged law. See, e.g., Village of Schaumburg v. Citizens for a Better Envi¬ ronment, 444 U.S. 620 (1980) (striking down as unconstitutionally overbroad a vil¬ lage ordinance that prohibited door-to-door or on-street solicitation of contributions by charitable organizations that did not use at least 75 percent of their receipts for "chari¬ table purposes,” defined to exclude solicita¬ tion expenses, salaries, overhead, and ad¬ ministrative costs; the interests purportedly advanced by the ordinance were "only peripherally promoted by the 75 percent requirement and could be suffi¬ ciently served by measures less destructive of First Amendment interests.”); Street v. New York, 394 U.S. 576, 592 (1969) (revers¬ ing a conviction for publicly speaking con¬ temptuous words about the flag and dis¬ missing the argument that the language came within the class of "fighting words” because the statute was not narrowly drawn to punish only words of that charac¬ ter). Alternatively, a law which is not narrowly enough drawn may be unconsti¬ tutionally overbroad. See generally § 1227, infra. 3. Consolidated

Edison

Co. v. Public

Service Comm’n, 447 U.S. 530, 540 (1980) (invalidating order of public service com¬ mission that prohibited utility from includ-

834

COMMUNICATION

AND

EXPRESSION

Ch. 12

sion is conclusively deemed unnecessary A In addition, the Court does not refrain, as it typically does in other contexts, from substituting its own factual judgments for those made by other courts, administrative agencies, or legislative bodies.5 In short, government must come for¬ ward with sufficient proof to justify convincingly its abridgment of the constitutional right to speak,6 in terms consistent with the basic theory of free expression. In general, that will be impossible unless govern¬ ment can persuasively show a harm that would be prevented by the abridgment but could not have been prevented by dialogue; whenever "more speech” could eliminate a feared injury, more constitutionally-mandated remedy.

speech is the

The decision that a government regulation is aimed at the commu¬ nicative impact of expressive activity almost always implies two addi¬ tional conclusions: government may not justify content-based regula¬ tions by a claim either that the content of the expression has been adequately voiced by other speakers (so that advocates of different viewpoints should be given an opportunity to speak instead), or that the expression may be voiced in another place, at another time, or in another manner.7

The first amendment

ing in monthly billing envelopes an insert discussing controversial issues of public policy). See also First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978) (striking down a Massachusetts criminal statute that prohibited business corpora¬ tions from making contributions or ex¬ penditures to influence "the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corpora¬ tion”); Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam) (sustaining provisions of the Federal Election Campaign Act, that imposed a $1,000 ceiling on contributions to a candidate for federal office, but invali¬ dating limitations on expenditures by and in support of candidates).

To of Wi 43 U. 85 ll S. 1 wn i (1 shi (h un ng an ord 9 co bop i na 77) ppr oldi t o f real est ¬ henst orsot, oh ng nc ate it in ib ut g iatn "S "F e Sa s T o i h i p i e iCno of orJus le” Ma dng old for a gnusnona iuor rs ” a ) tic l . n nt h ewi qu ap all the la imou of Jus th o p n tic tedBr in roWvh v. Cgalua s 27¬ 4 an ailt g e ifoe d ne " r U.S 357 eis37 (19 t b t t y If he o enia im ,th 7 2d7i) rteh ex . fa , e l s e po ro : se ug to a cusst hp an sefal e b t v h v h y h i il e e e ooro d ces of leadcie thret re on to be ap d ¬ us pl me s dy si is mo spcea,ti not en Oined le fo re ly echon, n r ce ce r , ca ju an em T . d ep sti n er To hare no sh he fy ge of Will t d ow s wn s pa shisel ncy to haing set in, an ionthe to n n w v b d .” shi ic wa p lilnigm by e thoero Cou in its eff n¬ s ort p ite rt, s d to fo " f a t li he wh nd re g r it st in ma e hou ht” to the "moeby al t in l s e rfe sp tai re gra — th poing of "N or st , te e ee n o me t d i ch d ng y ”

does not permit government

to

Sale” signs and the use of other forms of counter-publicity. 5. See, e.g., Cox v. Louisiana (I), 379 U.S. 536 (1965) (reversing convictions of civil rights demonstrators where indepen¬ dent review of the record showed no con¬ duct which the state could prohibit as a breach of the peace); Fiske v. Kansas, 274 U.S. 380 (1927) (reversing conviction for criminal syndicalism because Court’s inde¬ pendent examination of the uncontested evidence — the preamble to the Constitu¬ tion of the I.W.W. — was not sufficient to show that the organization for which Fiske was recruiting advocated "unlawful acts” as a means of effectuating industrial changes or revolution). See generally P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler’s The Federal Courts and 1973).the Federal System 574-619 (2d ed. 6. See, e.g., Linmark Associates, supra note 4, where the record developed by the Township to justify the ordinance was strong enough to persuade the Court of Appeals that Willingboro was experiencing "incipient” panic selling and

that "fear

psychology [had] developed,” but not com¬ pelling enough by the Supreme Court’s standards to show that an "emergency” existed to justify suppressing otherwise protected expression. 7. See Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 540 n. 10 (1980) ("we have consistently rejected the suggestion that a government may justify a content-based prohibition by showing that

§ 12-8

COMMUNICATION

AND

EXPRESSION

835

moderate public discourse on the analogy of a town meeting.8 While the government may foster the values of free expression found in the speakers have alternate means

of expres¬

sion”); Spence v. Washington, 418 U.S. 405, 411 & n. 4 (1974) (reversing conviction for taping removable peace symbol onto flag displayed in apartment window, and "summarily” rejecting the state court’s ar¬ gument that the inhibition on speech was "miniscule and trifling” because of "other means” that could have been used to ex¬ press the same views; the availability of other means are irrelevant when govern¬ ment prosecutes "for the expression of an idea through activity”); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 757 n. 15 (1976) (invalidating state ban on ad¬ vertising of prices of prescription drugs; held irrelevant that consumers might be able to obtain the same information in some other ways). Accord, Wooley v. May¬ nard, 430 U.S. 705 (1977) (invalidating compelled display of emblem bearing state’s "Live Free or Die” motto on auto¬ mobile license plate; majority implicitly rejects dissenting argument, id. at 1439, that the objection to the motto could be expressed by displaying a counter-motto as easily as by removing the motto); South¬ eastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) (vacating municipali¬ ty’s denial of a permit to allow the musical "Hair” to be performed in public theater). See also Procunier v. Martinez, 416 U.S. 396, 408-09 (1974), and Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972), as explained in Virginia State Board of Phar¬ macy, 425 U.S. at 57-58 n. 15. By contrast, when dealing with what it believes to be content-neutral restrictions on speech, the Court often has inquired into the availability of alternate avenues of expression. See, e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, — (1986) ("[t]he appropriate inquiry ... is whether the . . . ordinance is designed to serve a substantial governmental interest and allows for reasonable alternative ave¬ nues of communication”); Clark v. Com¬ munity for Creative Non-Violence, 468 U.S. 288, 293 (1984) (upholding National Park Service anti-camping regulations as applied to protesters attempting to call at¬ tention to the plight of the homeless); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984) (uphold¬ ing city ordinance that prohibited posting signs on public property as applied to polit¬ ical candidate who posted campaign signs cn telephone poles); Heffron v. Interna¬ tional Society for Krishan Consciousness (ISKCON), 452 U.S. 640, 648 (1981) (up¬

holding rules of Minnesota state fair that prohibited the distribution of printed mat¬ ter or the solicitation of funds except from a duly licensed booth on the fairgrounds, as applied to religious group); Young v. American Mini Theatres, 427 U.S. 50, 7172 (1976) (plurality opinion) (upholding adult movie theater zoning ordinance and quoting the district court’s finding that because of the availability of alternate the¬ ater locations, "[t]his burden on First Amendment rights is slight”). 8. Despite the appeal of the town meet¬ ing metaphor for moral and political phi¬ losophers who have written about freedom of expression (see, e.g., Meiklejohn, Politi¬ cal Freedom 24-28 (1960); Rawls, A Theo¬ ry of Justice 203 (1971)), the image is strikingly inapt in many settings where freedom of expression is at stake. The Supreme Court’s frequent acknowledgment that speech often serves its highest func¬ tion when it shocks or stirs unrest (see, e.g., Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (reversing conviction for breach of the peace interpreted to include speech which "stirs the public to anger, invites dispute, brings about unrest, or creates a disturbance”)), and the Court’s insistence that "one man’s vulgarity is another’s lyr¬ ic,” Cohen v. California, 403 U.S. 15, 25 (1971) (Harlan, J.), bespeaks a premise more sensitive to the unruly realities of effective discourse. To preserve civility is one thing; to insist that all dialogue pro¬ ceed on the model of an ordered meeting would be quite another. Indeed, even in official public meetings themselves, the first amendment imposes severe con¬ straints both on the power of government to decide who may speak (see, e.g., City of Madison, Joint School District No. 8 v. Wisconsin Employment Relations Commis¬ sion, 429 U.S. 167 (1976) (school board can¬ not refuse nonunion teacher the opportuni¬ ty to speak on pending labor negotiations during discussion at meeting opened to the public); but cf. Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984) (upholding "meet and confer” provisions that prohibited union non-mem¬ ber faculty from meeting with state gov¬ erning board)), and on government’s power to control what may be said. See, e.g., Brown v. Oklahoma, 408 U.S. 914 (1972) (Powell, J. concurring in result) (offensive language of speaker invited to present the Black Panther viewpoint at a political meeting could not be penalized because the audience could have anticipated the char¬ acter of the invitee’s language).

836

COMMUNICATION

AND

EXPRESSION

Ch. 12

first amendment, it is precluded by the amendment from compelling expression or suppressing expression, even where government would justify such intrusion on personal liberty as a pursuit of first amend¬ ment values.9 The autonomy of the individual and of the press from government’s

content-based restrictions is thus nearly absolute.10

But "nearly” absolute does not mean "absolute.” The primary gap arises because government may justify a regulation aimed at the communicative impact of expressive conduct by reference to one of several narrowly drawn categorical definitions which distinguish be¬ tween speech protected by the first amendment and expression which government may regulate subject only to the barest due process scruti¬ ny, ultimately on the theory that such unprotected expression falls outside the first amendment’s purposes or fails to satisfy its premises. The notion that some expression may be regulated consistent with the See Rutzick, "Offensive Language and the Evolution of First Amendment Protec¬

"criminal prosecution” involved in Cohen. Id. at 747 n. 25 (plurality opinion).

tion,” 9 Harv.C.R.-C.L.L.Rev. 1, 18 (1974) (criticizing, as an inappropriate model of

9. See, e.g., Pacific Gas & Electric Co. v.

first amendment theory, the image of "a debating society, a sedate assembly of speakers who calmly discussed the issues of the day and became ultimately persuaded by the logic of one of the competing posi¬ tions.”). If "the offensiveness of language used in a political protest often measures the intensity of interest in the outcome of a governmental decision,” then protection for the use of "offensive language [be¬ comes] not a luxury but a necessity in a democratic society.” Id. at 19. For a criti¬ cism of Cohen, see Bickel, The Morality of Consent 72 (1975) (Cohen’s speech "consti¬ tutes an assault” and "may create an envi¬ ronment [in which] actions that were not possible before become possible”); Cox, The Role of the Supreme Court in American Government 47-48 (1976) (state has inter¬ est in "level at which public discourse is conducted”). See also FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (upholding FCC declaratory order granting a com¬ plaint against radio station for broadcast of "patently offensive” language), discussed further in § 12-18, infra. The Pacifica Court distinguished Cohen on several grounds. First, the plurality maintained, "[so] far as the evidence showed no one in the courthouse was offended by [Cohen’s jacket],” 438 U.S. at 747 n. 25 (plurality opinion). In addition, while in Cohen un¬ willing viewers could avert their gaze, in Pacifica the "uniquely pervasive” medium of radio guaranteed that at least some chil¬ dren and unwilling listeners would be ex¬ posed to the offensive language. Id. at 748 (opinion of the Court). Finally, the Court noted that the penalties in Pacifica were "far more

moderate”

than

the possible

Public Utilities Comm’n of California, 106 S.Ct. 903 (1986) (invalidating commission order that granted a consumer ratepayer group access to the utility’s monthly billing envelopes); Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 295-96 (1981) (striking down $250 limit on contributions to committees supporting or opposing bal¬ lot measures); First National Bank of Bos¬ ton v. Bellotti, 435 U.S. 765 (1978) (invali¬ dating content-based restrictions on corporate spending in state referenda); Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (per curiam) (striking down limits on ex¬ penditures by and on behalf of candidates for federal office but upholding a $1,000 contribution ceiling); Miami Herald Pub¬ lishing Co. v. Tornillo, 418 U.S. 241 (1974) (holding unconstitutional a state statute mandating access to a newspaper for politi¬ cal candidates attacked by the newspaper). But cf. Prune Yard

Shopping

Center v.

Robbins, 447 U.S. 74 '1980) (upholding a state-created right of access for students to distribute leaflets at a private shopping center); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (upholding constitution¬ ality of regulations requiring broadcasters to grant a right of reply to personal attacks and political editorials). See §§ 12-23, 1225, infra. 10. Some commentators have argued, however, that content-based regulation is not inherently more threatening than con¬ tent-neutral regulation, see, e.g., Stone, "Restrictions of Speech Because of its Con¬ tent: The Peculiar Case of Subject-Matter Restrictions,” 46 U.Chi.L.Rev. 81, 100-107 (1978).

§ 12-8

COMMUNICATION

AND

EXPRESSION

837

first amendment without meeting any separate compelling-interest test starts with the already familiar proposition that expression has special value only in the context of "dialogue”: communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one’s beliefs. Starting with this proposition, it is reasonable to distinguish between contexts in which talk leaves room for reply and those in which talk triggers action or causes harm without the time or opportunity for response. It is not plausible to uphold the right to use words as projectiles where no exchange of views is involved. One may not be privileged to mislead a blind man into thinking that a window is a door or to extort a sum for telling him the truth. Justice Holmes was surely right that the first amendment does not protect "a man in falsely shouting fire in a theater and causing a panic.” 11 And the law need not treat differently the crime of one man who sells a bomb to terrorists and that of another who publishes an instructional manual for terrorists on how to build their own bombs out of old Volkswagen parts.12 The premise that speech has special value only in the context of dialogue underlies the dictum of Justice Murphy in the seminal case of

.

Chaplinsky v. New Hampshire ,13 in which the Court singled out certain categories of speech as not representing "speech” within the meaning of the first amendment because they are "no essential part of any exposi¬ tion of ideas,” and because their "very utterance inflicts injury” or "tends to incite an immediate breach of the peace.” 14 In effect, the singling out of such categories concretizes the otherwise more general, but theoretically entirely parallel, track-one inquiry into a "compelling justification” for government’s decision not to leave an exchange of expressive acts in the realm of dialogue. In the Chaplinsky case itself, the defendant had been convicted under a statute proscribing insults in a public place after he called a city marshal a "racketeer” and "a damned Fascist.” 15 These were "fighting words,” a class of face-to-face epithets which tend to provoke acts of violence by the persons to whom, individually, they are addressed.16 Such provocations are not part of 11. Schenck v. United States, 249 U.S. 47, 52 (1919). 12. See the "H-bomb case,” United States v. Progressive, Inc., 467 F.Supp. 990 (W.D. Wis. 1979) (preliminary injunction issued Mar. 28, 1979), request for writ of mandamus denied sub nom. Morland v. Sprecher, 443 U.S. 709 (1979), case dis¬ missed as moot, Nos. 79-1428, 79-1664 (7th Cir. Oct. 1, 1979), discussed in § 12-36, infra; Scanlon, "A Theory of Freedom of Expression,” 1 Phil. & Pub.Aff. 204, 211 (1972).

ment undermines the argument that the speech was devoid of political content. See Rutzick, "Offensive Language and the Evolution of First Amendment Protection,” 9 Harv.C.R.-C.L.L.Rev. 1 (1974) (suggesting that Chaplinsky’s epithets can be viewed as "a sharply-expressed form of political protest against indifferent or biased police services in the enforcement of his right to free speech”). See Houston v. Hill, 107 S.Ct. 2502, 2509 (1987) (overturning ordi¬ nance that made it illegal to interfere in any manner with a police officer in the course of duty): "the First Amendment protects a significant amount of verbal crit¬ icism and challenge directed at police of¬

13. 315 U.S. 568 (1942). 14. Id. at 571-72. 15. The fact that Chaplinsky addressed an official of the Rochester City Govern¬

ficers.”

1-7 t57 .Sa.

315U

838 human

COMMUNICATION

AND

EXPRESSION

Ch. 12

discourse but weapons hurled in anger to inflict injury or invite

retaliation.17 This branch of the Chaplins ky dictum is best understood as a special application of the "clear and present danger” test, distin¬ guishing words used as "triggers of action” from words used as "keys of persuasion.” 18 More subtle is the branch of Chaplinsky focusing on outbursts which by their "very utterance inflict injury.” 19 To address such situations, it helps to begin by setting aside any case like that of one who yells "boo” at a cardiac patient.20 A rule against that "speech” is not a content regulation at all and, properly understood, poses no problem for Chaplinsky to solve. The message is irrelevant to the regulation. The complexity of the problem is advanced but a little if one is reading Poe’s "Pit and the Pendulum” to a faint-hearted aunt; again it is more medium than message that triggers government’s intervention. Much more complex are utterances which injure an individual either because they falsely damage the individual’s reputa¬ tion or because they reveal the individual’s intimate secrets. What unites both examples, and separates both from most cases of injury caused by talk, is that "more talk” is exceedingly unlikely to cure the injury: a lie once loosed is hardly quelled by self-serving denials,21 and

t t b s rac tim of abu ial lurs o ring ort s siv of emo inf for inet act lic ¬ ion ent t s i v. Ci e Soene dis tio a,l .g., oonntr nal tre 7e3r5a 565 88 Was Zel ss. Cro ,s ler h.2 wn mayd con (19bac (ep 117 P.2 sti ith 77)h, d 3 t e the mea ute witts con "ou hoifn To (dSuect of tRreasg rts (19n6i5ng ); con teaotu ) d) es"m”e T A W t Del h o W n o rt aAc¬ und Ep Iants tiogadofor Roarctds nd i : ult n , the ial s t , s 133 , 17 Har Nam v.C eca .R. Wo lliHei A Com "Ba (19 - r 8 n n thnaningWou C.Ld.sL:” 18 Har ¬ men 2); on g',W”os, t v. nd, . rds t a’nd R"ePvr. 585 (19 C.R 83 of .The Supessor id. at 5)9,3 Del C.L.LRep pas . on the rie Cou gado has.Renloites dir ssmu v. ,” ect r t sev e, and it is dou lywhe sed mor ere bt e the r pen are suc fuasl cri mea alt min h sur i al unl es the per con es s m e a cless and con issib spe titutinv ar sti le, ech ionolv If vio danalled of imm tut pre sen len gery inees cet.o al¬ gonvt for the Cotn ces sti e r i w spe low peo tu to mar na ak, mnednt rite n ple tio ch, te n j a b p o f cou f e avo rot nd usti rts r i m ace,a ce,t her g r t o lso equ hoo ov hen t ust hav e ihre d, e p a ranm a r a t t o a l d n h ermlow tre c e voc d em d,v S ismn,t 5 Seaete Col eviettedgen . 7 m 8 it l n o F.2 11t9he cvi(7dte Cir 197 in cert den h, 439 . 8), d ie 7 ic¬ h. , of Vil d dow (st U.S 916 (19 rik 78) . lag n ing mak e it ord Slu "Ra Sko r c i k i ” ial to di nan a miise sse ce, any mantger dem or reil¬i inc mina rac a al pro ea iti te ial ¬ mot nor nd nign § 12i dis h gio 10, nfra; us atriendg cus ( (19 T)h,e Tol sed Soc Bol 86) ar¬ lin iet era y a wi gui gert,ha fre spe nt req eth moech di uir idelling¬to nes ng to altl sta es e st as s ow stet of v to cul in ord be air f h a uel lue ed, tiv er s ate

self-restraint and tolerance within the citi¬ zenry). But see Arkes, "Civility and the Restriction of Speech: Rediscovering the Defamation of Groups,” 1974 Sup.Ct.Rev. 281, 310-11 (arguing that "no government that would call itself a decent government would fail to intervene” to disperse a crowd taunting a young black child on the way to a previously all-white school and that "the rights of the crowd [cannot] real¬ ly stand on the same plane” as those of the child on the way to school). For an argu¬ ment that such individualized taunting may well be constitutionally distinguisha¬ ble from advocacy of racial or religious hatred generally, see § 12-10, infra. 18. Masses Publishing Co. v. Patten, 244 Fed. 535, 540 (S.D.N.Y. 1917) (L. Hand, J.).

19. 315 U.S. at 571-72. 20. Ely, "Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis,” 88 Harv.L.Rev. 1482, 1501 (1975).

21. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 n. 9 (1974). But see Shiffrin, "Defamatory dia Speech and First Amendment

Non-Me¬ Method¬

ology,” 25 U.C.L.A.L.Rev. 915, 952-53 (1978) (arguing that the view that "the truth never catches up with the lie” is incompatible with the concept of the mar¬ ketplace of ideas, which posits that truth will emerge from open and uninhibited dis¬ cussion).

§ 12-8

COMMUNICATION

AND

EXPRESSION

839

once a secret is out of the bag it cannot be put back in again. Moreover, it may be possible to penalize defamations of private individ¬ uals, invasions of privacy, and intrusions on property rights 22 without involving the government in any judgment, either of sympathy or of hostility, about the point of view being expressed by the communica¬ tor.23 Thus, although some first amendment values might be advanced by leaving such communication alone, most of what the first amend¬ ment is concerned with is not truly at stake. The overriding idea in Chaplinsky is thus the isolation of those "'utterances [that] are no essential part of any exposition of ideas [and] of . . . slight social value as a step to truth.” 24 This suggests that the first amendment protects information and ideas but neither all possible ways of packaging them nor all possible ways of unearthing and deploying them. The state, on this view, can require that information must be obtained ethically and expressed in undisturbing terms, thus purifying public discourse while leaving its ultimate content untouched. But any such thesis is obviously difficult to maintain, since it assumes that content and form are somehow separable. As even the Nixon tapes show, merely deleting expletives may seriously alter the meaning of a message.25 Moreover, to "purify” discourse may exclude from the marketplace of ideas those messages from the street which are ex¬ pressed and perhaps expressible only in the language of the street.26 And, even if the first amendment can tolerate marginal losses in content for the sake of raising the quality of public discourse, there is a second objection. It is that the first amendment protects more than the cognitive element of discourse. Even if the logic of an expression could be preserved with its packaging

purified, the expression’s emotive

22. Although ideas and information per se are not copyrightable, their particular

ty opinion of Stevens, J., joined by Burger, C.J., and White and Rehnquist, JJ.) (1976):

arrangement — or "expression,” in the lan¬ guage of copyright law — is a legally cogni¬ zable property interest. See 17 U.S.C.

"the essence of th[e] rule [against contentbased regulation of speech] is the need for absolute neutrality by the government; its regulation of communication may not be affected by sympathy or hostility for the point of view being expressed by the com¬ municator. Thus, although the content of

§ 102(a) (1982); Nimmer, "Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?”, 17 U.C.L.A.L. Rev. 1180 (1970) (suggesting that in most cases the idea/expression dichotomy is cen¬ tral to resolving the clash between copy¬ right and the first amendment). See also Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (upholding copyright claim by corporation that owned exclusive publication rights to the memoirs of former President Ford against magazine that published unauthorized excerpted and paraphrased version); Zacchini v. ScrippsHoward Broadcasting Co., 433 U.S. 562 (1977) (upholding copyright claim of "human cannonball” against news agency that filmed and broadcast his commercial act without prior permission). See § 1214, infra.

23. See Young v. American Mini Thea¬ tres, Inc., 427 U.S. 50, 67-68 (1976) (plurali¬

a story must be examined to decide wheth¬ er it involves a public figure or a public issue, the Court’s application of the rele¬ vant rule may not depend on its favorable or unfavorable appraisal of that figure or that issue.” See generally § 12-13, supra. 24. 315 U.S. at 571-72. 25. One need only look at a bowdlerized edition of Shakespeare to recognize that changes of style are changes of substance. And Bismarck knew that a slight altera¬ tion in a message could lead to war. 26. See Cohen

v. California, 403 U.S.

15, 25 (1971): "[OJne man’s another’s lyric.”

vulgarity is

840

COMMUNICATION

charge indeed argued nia ,28

AND

EXPRESSION

Ch. 12

surely depends on how it is put.27 That this emotive charge is part of the first amendment’s concern was most persuasively by Justice Harlan, writing for the majority in Cohen v. Califor¬ Cohen was convicted for disturbing the peace by entering a

county courthouse wearing a jacket inscribed with the message: "Fuck the Draft.” The Court reversed his conviction " . . . [M]uch linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of indi¬ vidual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated

. . . ” 29

A similar but broader observation, ultimately at odds with Chaplinsky’s premises, can be made about the civil rights movement of the early 1960’s and the peace movement of the late 1960’s. It is at least incomplete to say that Americans took those causes to the streets because other channels of communication were closed to their protest. Rather, they marched, paraded, and picketed because no other medium could adequately register either the intensity of their protest or the solidarity of their movement. In a mass society, it is not enough to launch a thought like a toy boat upon the ocean of opinions. The protesters of the sixties came together in the streets to "show their numerical strength and so to diminish the moral power of the majori¬ ty.” 30 In a representative system where voting is too blunt an instru¬ ment to register the diversity of a people’s hopes and fears, and where actual citizen participation in the governing process is slight, the consent of the governed must be implied, and it is dissent that implies consent.31 "One who knows that he may dissent knows also that he somehow consents when he does not dissent.” 32 Thus the unruly protest cannot be heard as merely an especially loud voice in the national dialogue; its strength "speaks” to the moral authority of the state. It follows that Chaplinsky is carried too far when it is invoked to sterilize discourse by reducing it to logic. But it may still remain possible to distinguish governmental protection of private individuals ou Ch in me ti t¬ vso app c a msasa ha buve s l a e e l th rs rv ri yg v aart a sis t "a a mee e to vveeedd, his frsonnsak ¬ s n u y a , l st r’is or — t wh he ndse sy ra g st em e h t th Is ioittl no a — to be e op wr e m d e p o r r n to n cry t ou to be ab ma g of in e y s l t d r l e sic ivv i t a at ka syo i v s reu[ he nd ideu ci s.h] watel so ivid t a Uenty ua h n h i d i -c ¬ i al e ng tsy de l al rwo a si re ysi 'f ? le g s i r p dno n o w of se ds me gh , r r i h es lf ’ t fi e an ti t ena me h of atca th s ncga be c-ore t an er tant n ey nsal in idiz s ¬ eart eidon ,

ing some elusive 'truth.’ ” Redish, "The Value of Free Speech,” 130 U.Pa.L.Rev. 591, 626 (1982). 28. 403 U.S. 15 (1971). 29. Id. at 26. 30. Arendt, The Crisis of the Republic 96 (1972), quoting de Tocqueville, Democra¬ cy in America. 31. Arendt, supra, at 88-89. 32. Id. at 88.

§ 12-9

COMMUNICATION

AND

EXPRESSION

841

from verbal assaults on privacy and personality — the one category where utterance itself may work injury that no further dialogue can redress.33 § 12-9. Clear and Present

Danger:

Advocacy

of Lawless

Action

The "'clear and present danger” doctrine is concerned with distin¬ guishing protected advocacy from unprotected incitement of violent or illegal conduct. It was in 1919 in Schenck u. United States that Justice Holmes introduced the doctrine for a unanimous court.1 Schenck and others had been convicted of conspiring to violate provisions of the Espionage Act of 1917 forbidding anyone to obstruct the draft or to cause, or attempt to cause, insubordination in the military. The defendants had mailed circulars to draftees which declared in "impas¬ sioned language” the unconstitutionality of conscription and urged the recipients to "assert their rights.” 2 Congress undoubtedly had consti¬ tutional authority under its war powers to punish individuals who interfered or attempted

to interfere with the war

effort.3 But in

Schenck , the government did not argue that the defendant’s speech had

actually interfered with the war effort; the only question was whether the circulars alone were sufficient evidence of an illegal attempt to interfere. The conventional wisdom of the day was that speech was punishable as an attempt if the natural and reasonable tendency of what was said would be to bring about a forbidden effect.4 In addition, the criminal defendant must have used the words with an intent to bring about that effect, although such specific intent could be inferred from the tendency of the words on the presumption that one intends the natural consequences of one’s speech.5 The formula announced by Justice Holmes easily fit within this framework. "The question in every case is whether the words used are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to pre¬ vent.” 6 Since the issue whether Schenck’s conduct was a "clear and present danger” thus posed a factual question, the disposition of the claim was determined by the finding of the Court that the jury, having been propeily charged, had not acted unreasonably in finding that the circulars could be expected to persuade draftees unlawfully to refuse induction. 33. See § 12-14, infra.

1. 249 U.S. 47 (1919). § 12-9 2. Compare Keegan v. United States, 325 U.S. 478 (1945), in which the Court reversed convictions for conspiring to coun¬ sel persons to evade military service. The leaders of the German-American Bund had commanded their members to refuse induc¬ tion into military service in order to test the constitutionality of the draft law. Without discussing constitutional ques¬ tions, the Court held that the defendants’

public counsel to its members did not con¬ stitute evasion of the draft or proof of conspiracy to evade. 3. See § 5-16, supra. 4. See Gunther, "Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History,” 27 Stan.L.Rev. 719, 724 (1975). 5. See Chafee, Free Speech in the Unit¬ ed States 24, 26-28, 49-51, 57-64 (1941). 6. Schenck, 249 U.S. at 52.

.

842

COMMUNICATION

AND

EXPRESSION

Ch. 12

A week after Schenck, Justice Holmes delivered two more opinions for a unanimous Court upholding convictions under the Espionage Act. One involved the editor of a German-language newspaper that had carried articles on the constitutionality of the draft and the purposes of the war; 7 the other involved Eugene Debs, the Socialist leader and candidate for President in 1920, who had made an antiwar speech.8 In each of these cases, the Court applied the Schenck standard, but deferred to the jury’s "reasonable” determination intended effect” of the expression was to obstruct insubordination in the armed services. In its Supreme Court upheld three more prosecutions

that the "natural and recruiting or to cause next Term, a divided under the Espionage

Act,9 the majority adhering to the approach outlined in Schenck. in these cases Justice Holmes and Justice Brandeis dissented.

But

The Supreme Court in one of these three cases — Abrams v. United States — sustained the convictions of five Bolshevik sympathizers under a section of the 1918 amendments to the Espionage Act making it an offense to urge curtailment of military production with intent to hinder the war with Germany .10 Abrams and his friends had showered English and Yiddish leaflets from a window of a manufacturing building upon the streets of lower East Side New York denouncing American inter¬ vention in the Russian revolution and calling for a general strike to prevent ordnance

shipments

to anti-Soviet forces. Justice Clarke’s

7. Frohwerk v. United States, 249 U.S. 204 (1919). The outcome of the case was strongly influenced ment of the burden the inadequacy of Holmes could not

by the Court’s place¬ of proof, coupled with the record on appeal: find evidence which

would make "it impossible [to say that] the circulation of the newspaper was in quarters where a little breath would be enough to kindle the flame . . . . ” Id. at 209. 8. Debs v. United States, 249 U.S. 211 (1919). The conviction of Debs was "some¬ what as though George McGovern had been sent to prison for his criticism of the [Vietnam] war.” Kalven, "Professor Ernst Freund and Debs v. United States,” 40 U.Chi.L.Rev. 235, 237 (1973). Holmes’ loose restatement of the clear and present danger test in the Debs case — "natural ten¬ dency and reasonably probable effect,” 249 U.S. at 216 — suggests that Holmes had yet to conceive of the test as a constitutional standard protective of first amendment

military operations, when the newspaper was too impoverished to gather its own news and thus republished edited versions of other papers’ articles; the falsity alleged by the government was that the articles differed from the originals from which they were copied and were given an unpa¬ triotic tone); Pierce v. United States, 252 U.S. 239 (1920) (upholding convictions of three socialists for distributing an anti-war pamphlet containing "false statements,” including the allegation that United States entry into World War I was to secure "J. P. Morgan’s loans to the allies”; Justice Pitney’s opinion for the majority concluded that it was common knowledge that the causes of the war were otherwise and therefore that the defendants must have known that their allegations were false).

fo la se to a ge rb w, di nu id ti in p o " wa di nt th f a di t¬h ab e ubl la on arn sc ng ed e bo sl td i ur us is ng utSoya e fo ri of go me iv of h th u Un ta l i a r l e t nbge g itt ve i te, o values. See Kalven, "Uninhibited, Robust, f or m laous e e o h r r n o d e in rm s, f ng nm te and Wide-Open, A Note on Free Speech co Sgt in of entnhd Un go ua n to eed it at ge and the Warren Court,” 67 Mich.L.Rev. ve t esan di ¬ co sc te r ed 289, 297 n. 18 (1968). This suspicion has sr or m n e¬de in Ab d Th ntCuo pu pt men. been confirmed by the historical evidence n o¬f cl te , tto.. pa , one th mur co r am gathered by Gunther, supra note 4. in . ss e etl ns ” se sw th edmo y ti of the ams e c r e en c t e 9. Abrams v. United TStates, 250 U.S. tiho co tut Aecp si Es he deou in nc i n e n t p vi c on 616 (1919) (discussed in text); dllad ogn teh co s be iosu re Schaefer v. cthaal n n¬ e u s le agta i ei tnot in iorgirtey gu United States, 251 U.S. 466 (1920) n e va (uphold¬ s n i c is t t Unneden St her in th iwtae s onrgistto cu to agteh ing convictions of the officers of ant1Germand r e e a r it e 9 th in anc ¬to wi mi ta d pr tes e language newspaper for publishing18 "false i te e e li t d w od e Ge ag th hi l n tahe u statements” with intent to interfere amwith f a f c ai nd r en rm t ry o t r io t ns er an dm n t y. en t am

ou

§ 12-9

COMMUNICATION

AND

EXPRESSION

843

opinion for the majority dismissed appellant’s first amendment claims as having been settled by Schenck. The principal difficulty for the majority was finding the requisite intent — no small problem, since the defendants in Abrams had opposed the wrong war. The difficulty was surmounted by imputing to the defendants the knowledge that strikes in munitions factories would necessarily impede the war effort against Germany, as well as operations in Russia. Justice Holmes’ dissent in Abrams is principally remembered for its eloquent exposition of a philosophical foundation for the first amendment. His doctrinal approach was to infuse more immediacy into the Schenck formulation of the clear and present danger test and thereby sharply distinguish it from the loose predictions of remote consequence which had been sufficient to sustain criminal convictions in the previous cases. Applying his invigorated test to the facts of Abrams , Holmes made what amounted to two arguments: Because Congress "cannot forbid all effort to change the mind of the country,” 11 it cannot make criminal the expression of opinion and exhortations without proof of a specific intent of the speakers by those words to cause a harm that Congress may prevent.12 Holmes construed the statute at issue to conform with this requirement and concluded that the only intent proved of Abrams was to help Russia and stop American intervention there — not to impede the United States in the war against Germany.13 Second, while the publication of Abrams’ words with the intent of obstructing the war effort would have the quality of an attempt,14 the convictions still could not be sustained because in fact that danger was not clear and present. For Holmes the law was indifferent to Abrams’

words

alone and likewise indifferent to his

intentions alone, the latter being "internal phenomena of con¬ science.” 15 Nor did Abrams’ words and intentions combined fall on the wrong side of the line marking the difference between innocent behav¬ ior and a criminal attempt, since there was no showing that the feared consequences were imminent. Holmes’ dissent in Abrams is marred by ambiguity 16 and by his insistence the Schenck , Frohwerk, and especially Debs had been rightly decided.17 One cynical interpretation of Holmes’ handiwork might be that speech is protected only as long as it is ineffective. One cannot 11. 250 U.S. at 628 (Holmes, J., joined by Brandeis, J., dissenting). 12. Id. at 627.

Rogat, "Mr. Justice Holmes: A Dissenting Opinion,” 31 U.Chi.L.Rev. 213, 216-17 (1964).

13. Id. at 629. 14. Id. at 628. 15. See Holmes, The Common

text of freedom of belief and communica¬ tion. But the source of the rule accounts for its defects along with its virtues. See

Law

88

(Howe ed., 1963). The source of the "clear and present danger” test was Holmes’ un¬ derstanding, apparently mistaken, of the common law of criminal attempts. Holmes’ view was that the criminal law was concerned not with individuals’ inten¬ tions but with their actions and the harm potentially caused thereby. This empha¬ sis, whatever its merits in criminal law generally, is clearly appropriate in the con¬

16. See Gunther, supra note 4, at 743. The principal obscurity is over whether Holmes meant that specific intent to hin¬ der the war effort and a high risk of injuri¬ ous consequences were alternative bases of criminal liability, or rather that both ele¬ ments had to be shown. %

17. See 250 U.S. at 627 (Holmes, J., dissenting).

844

COMMUNICATION

AND

EXPRESSION

Ch. 12

ignore Holmes’ description of the materials he would protect — the "silly pamphlet [published] by an unknown man,” the "poor and puny ano¬ nymities” too insignificant "to turn the color of legal litmus paper.” 18 But a more generous reading may take its cue from Holmes’ admoni¬ tion to his countrymen that "[o]nly the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command [of the first amendment].” 19 If the premise of free speech is dialogue, it makes sense to distinguish between talk in contexts where reply is plausible and talk in contexts where words trigger action without any chance for response.20 This premise emerges most clearly in the classic opinion of Justice Brandeis, joined by Justice Holmes, concurring in Whitney v. California : " . . .no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so immi¬ nent that it may befall before there is opportunity for full discussion. If there be time to expose the evil by the processes of education, the remedy to be applied is more speech , not enforced silence. Only an emergency can justify repression.” 21 The next free speech cases to reach the Court were Git low v. New York 22 and Whitney v. California ,23 which involved state statutes prohibiting the advocacy of criminal anarchy and criminal syndicalism. Benjamin Gitlow was convicted for publishing a didactic tract called the Left Wing Manifesto, and Anna Whitney for participating in a meeting of the Communist Labor Party Convention which, over a dissent led by Miss Whitney, adopted a platform urging revolutionary unionism.

Al¬

though the Supreme Court majority assumed that the "liberty” protect¬ ed by the fourteenth amendment included the freedoms of speech and press,24 the Court sustained the statutes as legitimate exercises of the states’ "police powers,” reasonably related to the end of securing the safety of the state.25 The clear and present danger test was held inapplicable; its only purpose was to fix the point at which speech crossed the line between innocuous preparation and a criminal attempt to commit an act proscribed without reference to speech. The statutes in Gitlow and Whitney made advocacy itself the crime. Since the legislature had determined the danger of the proscribed words, it followed — if that determination

was

18. Id. at 628, 629. See also Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting) ("futile and too re¬ mote from possible consequences”); cf. Dennis v. United States, 341 U.S. 494, 589 (1951) (Douglas, J., dissenting) ("miserable merchants of unwanted ideas; their wares remain

unsold”).

19. Abrams, 250 U.S. at 630-31 senting opinion).

(dis¬

20. It is important to keep this func¬ tional definition in view rather than suc¬ cumbing to any mindless formula built on such familiar examples as the false cry of fire in a crowded theater. The formulas have a way of proving inapt in particular circumstances. See, e.g., T. Stoppard, Ro-

not arbitrary in the context to sencrantz & Guildenstern Are Dead, Act II, at 60 (1967): ROS: "Fire!” GUIL jumps up. GUIL: "Where?” ROS: "It’s all right — I’m demonstrating the misuse of free speech. To prove that it exists. (He regards the audience, that is the direction, with contempt — and other directions, then front again.) Not a move. They should burn to death in their shoes.” 21. 274 U.S. 357, 377 (1927) (Brandeis, J., joined by Holmes, J., concurring) (em¬ phasis added). 22. 268 U.S. 652 (1925). 23. 274 U.S. 357 (1927). 24. Gitlow, 268 U.S. at 666. 25. Id. at 667.

§ 12-9

COMMUNICATION

AND

845

EXPRESSION

which it was being applied — 26 that a court could not consider "whether any specific utterance coming within the prohibited class [would be] likely, in and of itself, to bring about the substantive evil . . . . ” 27 The dissent of Justice Holmes in Gitlow reiterated the applicability of the "clear and present danger” test without replying specifically to the majority’s distinction between a statute written without reference to speech and one aimed at speech as such. The reply came two years later in Justice Brandeis’ eloquent concurring opinion in Whitney , where he employed the clear and present danger test to assess the validity of a law directly punishing the advocacy of revolutionary violence. The legislature, by enacting a law or by making

a declara¬

tion, "cannot alone establish the facts which are essential to [the law’s] validity.” 28 It must remain open for the court and jury to decide whether, at the time and under the circumstances, the abridgment is in fact justified by reasonable fears that a "serious” and "imminent” "evil will result if free speech is protected.” 29 Ironically, because of the still underdeveloped state of any "preferred rights” theory in the late 1920’s, Justice Brandeis found himself invoking the Lochner Court’s authority to reject legislative determinations of fact.30 The same questions returned to the Supreme Court in Dennis u. United States,31 in the context of pervasive fears of an international Communist conspiracy. In 1940, Congress passed the Smith Act, which 26. See, e.g., Fiske v. Kansas, 274 U.S. 380 (1927) (reversing conviction under state law prohibiting advocacy of criminal syndicalism because the evidence to con¬ vict was insufficient as a matter of due process inasmuch as the documentary proof — the preamble of the I.W.W. — no¬ where suggested that unlawful means were to be employed); DeJonge v. Oregon, 299 U.S. 353 (1937) (reversing conviction under statute which outlawed assisting in the conduct of a meeting sponsored by an orga¬ nization which advocated illegal means to effect political change; participation in such a meeting could not be deemed crimi¬ nal where no illegal advocacy had taken place at the meeting). 27. Gitlow, 268 U.S. at 670-71. Hans Linde has persuasively argued that legisla¬ tive determinations of danger from revolu¬ tionary speech deserve very little defer¬ ence. For example, the New York Criminal Anarchy Act sustained in Gitlow had been enacted in 1902 in reaction to an anarchist’s assassination of President Mc¬ Kinley. If there was a danger in 1920 when Benjamin Gitlow was prosecuted un¬ der the Act, it was not the danger the legislature had in mind in 1902. And when Congress enacted the Smith Act in 1940, which was modeled on the 1902 New York statute, it could not have imagined the circumstances in which the leaders of the Communist Party were prosecuted in 1948. See Linde, " 'Clear and Present Danger’ Reexamined: Dissonance in the

Brandenburg 1163 (1970).

Concerto,”

22 Stan.L.Rev.

28. Whitney v. California, 274 U.S. at 374 (Brandeis, J., joined by Holmes, J., concurring). 29. Id. at 378-79. 30. See Lochner v. New York, 198 U.S. 45 (1905) (invalidating a state maximum hours law for bakery workers), discussed in Chapter 8, supra. The conventional mod¬ ern reply to the Gitlow and Whitney ma¬ jorities would be that the Court should not defer to political determinations where leg¬ islation has undermined the reasons for deference by eroding the very processes of communication and opinion-formation on which one can ordinarily rely to cause the political branches to change course. See United States v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4 (1938) (Stone, C.J.). 31. 341 U.S. 494 (1951). Chief Justice Vinson’s plurality opinion was joined by Justices Reed, Burton, and Minton. Jus¬ tices Frankfurter and Jackson wrote sepa¬ rate concurring opinions. Justices Black and Douglas wrote separate dissenting opinions. For comment see Richardson, "Freedom of Expression and the Function of the Courts,” 65 Harv.L.Rev. 1 (1951); Mendelson, "Clear and Present Danger — From Schenck to Dennis,” 52 Colum.L.Rev. 313United (1952);States Garfunkel Mack, v. and theand Clear and "Dennis Present Danger

Rule,” 39 Calif.L.Rev. 475 (1951);

846

COMMUNICATION

AND

EXPRESSION

Ch. 12

closely resembled the New York Criminal Anarchy law upheld fifteen years earlier in Gitlow. In 1949, members of the National Board of the Communist Party were convicted of conspiracy to teach and advocate the overthrow of the government and conspiracy to reorganize the Party after World War II to teach and advocate such overthrow. The Supreme Court affirmed the convictions. The plurality opinion of Chief Justice Vinson purported to accept the Holmes-Brandeis

rationale

in Gitlow and Whitney as requiring the use of the ''clear and present danger” test32 not to evaluate the Smith Act itself, but to assess its application to a particular set of facts.33 But Vinson rejected the Holmes-Brandeis formulation of the clear and present danger test, saying that the great dissenters had not been confronted by the devel¬ opment of a revolutionary fifth column in the context of recurring world crises.34 In its place Vinson accepted Judge Learned Hand’s test in the decision below: "whether the gravity of the 'evil,’ discounted by its improbability, justifies [the challenged] invasion of free speech as . . . necessary to avoid the danger.” 35 The revised standard was supposedly satisfied by conclusions pointing to the highly disciplined organization of the Communist Party and the tinder-box of world conditions.36 The problem was how to determine the relevant facts. Wholesale deference to the factual determination of the jury 37 or of the legislature 38 would not be consistent with the Holmes-Brandeis legacy. The plurality disposed of the issue by relying on judicial notice or, as Justice Frankfurter put it, a "judicial reading of events still in the womb of time.” 39 But it is difficult to escape the force of Justice Jackson’s concurrence rejecting the "clear and present danger” stan¬ dard altogether: "We must appraise imponderables, including interna¬ tional and national phenomena which baffle the best informed foreign offices and our most experienced politicians . . . . No doctrine can be sound whose application requires us to make a prophesy of that sort in the guise of a legal decision.” 40 Dennis is generally deemed to mark

the temporary

eclipse of the

Holmes-Brandeis formulation of the clear and present danger test.41 A central difficulty was that it had been so easy to misperceive factual contexts in periods of national unrest. In 1919, Holmes’ example was that of a man "falsely shouting fire in a theatre and causing a panic.” 42 Konefsky, The Legacy of Holmes deis (1956).

and Bran-

32. 341 U.S. at 507. 33. See Linde, supra note 27, at 1173. 34. 341 U.S. at 510. 35. Id., quoting from 183 F.2d 201, 212 (2d Cir. 1950). Only Justice Douglas in dissent applied the unadulterated HolmesBrandeis test in Dennis. 36. 341 U.S. at 511. 37. The question whether the facts al¬ leged would establish a sufficient danger was determined to be "a matter of law” to be decided by the trial court and was there¬ fore properly not submitted to the jury. Id. at 512-15.

38. Justice Frankfurter in his concur¬ ring opinion in Dennis indicated his view that, even without Gitlow-style deference to legislative judgments, the facts were suf¬ ficient to conclude that the conspiracy be¬ fore the Court was a substantial threat to national order and security. Id. at 542. 39. Id. at 551. 40. Id. at 570. 41. See Strong, "Fifty Years of ’Clear and Present Danger’: From Schenck to Brandenburg — And Beyond,” 1969 Sup.Ct. Rev. 41, 52-53; Kalven, "The New York Times Case: A Note on 'The Central Mean¬ ing of the First Amendment’,” 1964 Sup.Ct. Rev. 191, 213-15. 42. Schenck, 249 U.S. at 52.

§ 12-9

COMMUNICATION

AND

EXPRESSION

847

Later the same year, he was conjuring up "quarters where a little breath would be enough to kindle a flame.” 43 In those early cases the Supreme Court deferred to individual jury determinations of danger; by the mid-1920,s, it was deferring to wholesale legislative determina¬ tions covering broad categories of situations. In 1925, for example, it was said that government cannot be expected to weigh each incident on a jeweler’s scale: "A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration.” 44 By the 1950’s, it was the "inflammable nature of world conditions” 45 — Fire Again! — that justified government’s acting preventively, striking while the iron was hot, rather than waiting until the weapon was poised. In the period after Dennis , the Supreme

Court moved

gradually

toward a notion of identifiable categories of speech-related activity with respect to which legislative and executive determinations could claim only minimal deference from judges. Correspondingly, the Court tended to recast clear and present danger analysis from an exercise in assessing likely consequences along a continuum, to an exercise in characterizing an act as either "in” or "out” of a defined category of unprotected incitements. The six majority Justices in Dennis were linked in distinguishing a category of protected discussion from a category of unprotected advocacy of revolutionary violence.46 In Yates v. United States , involving Smith Act prosecutions against lower-eche¬

.

lon members of the Communist Party, the Court "reinterpreted” the Dennis distinction as a line between protected advocacy of doctrine and unprotected advocacy of action— i.e., incitement.47 The earliest case to focus largely on that line and the accompanying categorical approach was Masses Publishing Co. u. Patten ,48 where Judge Learned Hand ordered the postmaster of New York not to exclude from the mails the August, 1917, issue of Max Eastman’s The Masses, a revolutionary journal containing articles, poems, and cartoons attacking the war against Germany. The postmaster purported to act on the authority of a section of the Espionage Act of 1917 which made nonmailable any publication which violated the Act’s criminal provisions. In his Masses opinion, Judge Hand spoke of words unprotected by the first amendment as "triggers of action,” rather than "keys of persuasion.” 49 The line between "incitement” and "persuasion,” how¬ ever, is by no means clear; as Holmes once commented: "[e]very idea is an incitement.” 50 Hand’s distinctive contribution was the use of a per se categorical definition of unprotected speech: "[words] which have no purport but to counsel the violation of law.” 51 His focus was on the 43. Frohwerk,

249 U.S. at 209.

44. Gitlow, 268 U.S. at 669 (Holmes, J., dissenting). 45. Dennis, 341 U.S. at 511 (Vinson, C. J., plurality opinion). 46. Id. at 502; id. at 544-46 (Frankfurt¬ er, J., concurring); id. at 571-72 (Jackson, J., concurring). 47. 354 U.S. 298 (1957).

48. 244 Fed. 535 (S.D.N.Y. 1917), rev’d, 246 Fed. 24 (2d Cir. 1917). See Gunther, supra note 4. 49. 244 F. at 540. 50. Gitlow, 268 U.S. at 673 (dissenting opinion).

848

COMMUNICATION

AND

EXPRESSION

content, not the effect, of communicative

Ch. 12

activity. A speech merely

critical of a law, from Hand’s perspective, could not be transformed by a jury or by a legislature into a punishable act — whatever the context, and whatever the factual findings. Although "political agitation” against the war may "arouse discontent and disaffection among the people with the prosecution of the war and with the draft,” government cannot justify its suppression of speech because, "by the passions it arouses or the convictions it engenders, [it] may stimulate men to mutiny or draft evasion.” 52 Political agitation may not be equated with "direct incitement to violent resistance.” 53 Conversely, a speech urging the audience to defy a law might be punished on this view even if harmless

in its setting.54 For Hand,

punishing

a few harmless

inciters was a small price to pay for securing by an "objective” test the immunity of allegedly harmful persuaders. The current doctrinal synthesis, combining the best of Hand’s views with the best of Holmes’ and Brandeis’, is that of Brandenburg v. Ohio,55 in which the Court reversed the conviction of a Ku Klux Klan leader under Ohio’s criminal syndicalism statute because the statute was not properly limited to advocacy (1) "directed to inciting or produc¬ ing imminent lawless action” 56 and (2) "likely to incite or produce such action.”57 The first criterion embraces Hand’s insistence on treating 52. Id. at 539-40. 53. Id. at 540.

tally, "If they ever make me carry a rifle, the first man I want to get in my sights is

54. See Gunther, supra note 4, at 729.

LBJ”); Bond v. Floyd, 385 U.S. 116 (1966) (Georgia legislature could not exclude elected representative Julian Bond on the sole ground that his antiwar statements, which included no advocacy of lawbreak¬ ing, cast doubt on his ability to take oath). Of course, a statement may constitute an incitement in the context in which it is

55. 395 U.S. 444 (1969) (per curiam), overruling Whitney v. California, 274 U.S. 357 (1927). See generally Comment, "Brandenburg v. Ohio: A Speech Test For All Seasons,” 43 U.Chi.L.Rev. 151 (1975). 56. 395 U.S. at 447. Laws that on their face burden speech in terms of its content but do not limit their reach to the sort of incitement noted in Brandenburg are void. See, e.g., Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974) (voiding statutory loyalty oath, required as condi¬ tion 6f access to state ballot, to the effect that party taking the oath does not advo¬ cate overthrow of government by force or violence, since such oath goes beyond the incitement of imminent lawlessness that may be proscribed under Brandenburg); Kingsley International Pictures Corp. v. Regents, 360 U.S. 684, 689 (1959) (state cannot deny license to film pursuant to statute mandating denial whenever film

3 ur nb de an Br

dent’s life where defendant merely used political hyperbole in saying, at a public

the apparent neu¬

trality of the words. Marc Antony’s funer¬ al oration was not an explicit call to avenge the assassination of Caesar, but it might as well have been. See Letter from Z. Chafee to Learned Hand, Mar. 28, 1921, quoted in Gunther, supra note 4, at 729 n. 41. Yet the moment one permits context to transform statements into incitements, at least part of the point of Learned Hand’s effort to create a clean category of unprotected utterances is fatally compro¬ mised. Such contextual transformations should therefore be kept to an absolute minimum.

a a ¬ ¬ e he s er ¬ as va ak t wa sugs (p an tw¬ n t k r u B dnig ar it e sei st or ak em 3) erur ltl rord con r,t N 97 ev d c e’ a ae e (1 r "W i re s uml od ’llhi ic e 7. 5 e t ctmb rt av o 0 10 our nduCa aid "W he p,a h t 1 s C co t r (T nt t a n e o o e ev i n S. e th d . nt U. th ha Iide r” y ” e t ic e . er on h ff 4 rl t t a itnh o- igsu . de ns l 41 m i st tgeai n oer, ga te ana pisl a d y et n at amd en re I he tt exa, t t etf st rs n an for ee eds fime r di r ot etd te st In fo pr e cttha ci g e r .i)n Th in i v. n d s ck us o g’ ), ti s fu ng uo n g a g i ur am ic u . in ss ri nv mp on e ck bi re st nb He cu co ca si th fuam we ge ed de

presents "acts of sexual immorality . . . as desirable” since such advocacy of ideas is protected). Moreover, however a law is written, it may not constitutionally be ap¬ plied to punish speech on content-related grounds where nothing beyond abstract ad¬ vocacy is shown, and where incitement is thus absent. See, e.g., Watts v. United States, 394 U.S. 705 (1969) (per curiam) (reversing conviction for threatening Presi¬

uttered notwithstanding

COMMUNICATION

§ 12-10

AND

849

EXPRESSION

only words of incitement as unprotected; 58 the second criterion adds Holmes’ and Brandeis’ focus on likely harm, but transforms that focus into an additional safeguard for the harmless inciter.59

§ 12-10. Clear and Present Danger: "Fighting Words," Vulgari¬ ties, and Hostile or Otherwise Special Audiences In Chaplinsky v. New Hampshire,1 the Supreme Court upheld a conviction of a Jehovah’s Witness for calling a city marshal a "damned Fascist’’ and "God damned racketeer’’ 2 under a statute providing that there evidence that the remarks were like¬ ly to produce any imminent disorder; thus

nal damages of speech.

Brandenburg’s Id. at 108-09.

not met.

59. It remains to be seen whether the test announced in Brandenburg is flexible

58. The Supreme Court has made plain that it will not blindly accept a lower

enough to make the answers it gives de¬ pend in part on how severe a harm is threatened. We should surely be able to say that the state cannot constitutionally

second test was

court’s determination that speech is pun¬ ishable "incitement,” and not protected, albeit spirited, advocacy. In National As¬ sociation for the Advancement of Colored People v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Court unanimously re¬ versed a civil judgment against the NAACP and several of its members for damages arising out of a protracted boycott of white-owned businesses in Claiborne County, Mississippi. Justice Stevens’ opin¬ ion acknowledged that Charles Evers, the leader of the boycott, might under certain circumstances have been held liable for the conduct of those who acted under his influ¬ ence, but approached "with extreme care” the respondent’s theory, which would have imposed "liability on the basis of a public address — which predominantly contained highly charged political rhetoric lying at the core of the First Amendment.” Id. at 926-27. The Court conceded that Evers’ speeches referred to the possibility that "necks would "might have an unlawful as intending whether or

be broken,” and the speeches been understood as inviting fox'm of discipline or, at least, to create a fear of violence not improper discipline was

specifically intended.” Id. at 927. Still, the Court rejected any imposition of liabili¬ ty on Evers or the NAACP on the basis of holding that his rhetoric "did his speeches, not transcend the bounds of protected speech set forth in Brandenburg.” Id. at 928. The Court noted that "[sjtrong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases,” and even acknowledged that some violence did follow Evers’ speeches. Id. But the violence occurred at a suffi¬ cient remove in time from those speeches to convince the Court that allowing liabili¬ ty on that basis would impermissibly chill the type of speech the first amendment is designed to protect — an apt reminder that more is needed than a ritual incantation of the word "incitement” before civil or crimi¬

may be assessed on the basis

penalize speech which merely "incites” pedestrians to walk on the grass or jaywalk across a street. See Whitney, 274 U.S. at 377-78 (Brandeis, J., concurring). The Court’s most recent characterization of the clear and present danger test, in Landmark Communications, Inc. v. Virgin¬ ia, 435 U.S. 829 (1978) (dictum), does not illuminate, as much as recapitulate, the standard. Chief Justice Burger’s opinion, which was joined by all the Justices except Justices Brennan and Powell, who did not participate, and Justice Rehnquist, who concurred in the judgment, stated: "the test requires a court to make its own in¬ quiry into the imminence and magnitude of the danger said to flow from the particu¬ lar utterance and then to balance the char¬ acter of the evil, as well as its likelihood, against the need for free and unfettered expression.”

Id. at 843.

1. 315 U.S. 568 (1942). 0

-1 2. Id. at 569. §In 12Lewis v. City of New Orleans (Lewis I), 408 J.S. 913 (1972), the Court remanded to the state court, for re¬ consideration in light of Gooding v. Wilson, 405 U.S. 518 (1972), a conviction under a

statute making it unlawful "to curse or revile or to use obscene or opprobrious language toward . . . any member of the city police” where appellant addressed the police officers who were arresting her son as "G _ d_ m_ f_ police.” Justice Powell, concurring sug¬ gested that "fighting words” as defined in Chaplinsky may not be punishable when addressed to a police officer trained to ex¬ ercise a higher degree of restraint than the average citizen. 408 U.S. at 913. On re¬ mand the state court sustained the convic¬ tion. In Lewis v. City of New Orleans (Lewis II), 415 U.S. 130 (1974), the Court reversed again, finding the statute void on

850

COMMUNICATION

AND

EXPRESSION

Ch. 12

"'[no] person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place. . . .”3 The Court acted on the theory that "fighting words,” those words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace,” are not protected by the first amendment.4 The "fighting words” theory as originally developed focused primarily on the content of the communication without closely examining the context within which it was uttered. The Supreme Court was willing to accept the implied legislative judgment that there is a nearly certain connection between some epithets and the outbreak of violence. More recent Supreme Court decisions, however, made clear that the "fighting words” exception to first amendment protection must be narrowly construed. Further, contemporary opinions indicate that the fundamental methodological assumption of the original "fighting words” doctrine — that a category of words could be proscribed without regard to the context within which they might be used — is no longer favored by the Court. A "fighting words” statute is unconstitutional on its face if it is not limited to words which "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed,” 5 and constitutional enforcement of even facially valid its face because it was not limited to words tending to cause an immediate breach of the peace. While the Court declined to decide whether police must put up with more verbal abuse than the average citi¬ zen, id. at 132 n. 2, it held that the state may not punish such words on the theory that police officers deserve greater respect than the average citizen. 3. The Supreme Court of New Hamp¬ shire construed the law to reach only words which "have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is ad¬ dressed.” This definition was approved in the Chaplinsky opinion. See 315 U.S. at 573. Recent decisions have favored this definition over the one given by Justice Murphy in Chaplinsky, text at note 4, in¬ fra. See, e.g., Gooding v. Wilson, 405 U.S. 518, 523 (1972). 4. Chaplinsky, 315 U.S. at 572. 5. See Houston v. Hill, 107 S.Ct. 2502, 2510 (1987) (overturning an ordinance prohibiting the interruption of a police of¬ ficer in the execution of his duty): "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal char¬ acteristics by which we distinguish a free nation from a police state.” See Gooding v. Wilson, 405 U.S. 518, 523 (1972), where the appellant was convicted on two counts of using opprobrious words and abusive language in violation of Georgia law. The words spoken to police officers were: "White son of a bitch, I’ll kill you,” "You

son of a bitch, I’ll choke you to death,” and "You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.” Without considering the constitu¬ tionality of punishing Gooding’s words un¬ der a narrowly drawn statute and a corre¬ spondingly narrow jury instruction, the Court found the Georgia law as construed by the state courts void on its face because it was not limited to words having a direct tendency to cause acts of violence by the person to whom, individually, they are ad¬ dressed. Id. at 523. In Plummer v. City of Columbus, 414 U.S. 2 (1973) (per curiam), the conviction of a taxi driver who had abused a female passenger with "a series of absolutely vulgar, suggestive and abhor¬ rent, sexually-oriented statements,” id. at 3-4 (Powell, J., dissenting), was reversed because the ordinance prohibiting "menac¬ ing, insulting, slanderous, or profane lan¬ guage” was overbroad under Gooding. Subsequent to Gooding, the Court has sum¬ marily vacated and remanded to state courts for reconsideration convictions un¬ der statutes proscribing offensive language in terms broader than the definition of "fighting words” approved in Chaplinsky. See, e.g., Rosenfeld v. New Jersey, 408 U.S. 901 (1972); Lewis v. New Orleans (Lewis I), 408 U.S. 913 (1972); Brown v. Oklahoma, 408 U.S. 914 (1972); Lucas v. Arkansas, 416 U.S. 919 (1974); Kelly v. Ohio, 416 U.S. 923 (1974); Rosen v. California, 416 U.S. 924 (1974); Karlan v. City of Cincinnati, 416 U.S. 924 (1974). See also Papish v. University of Missouri Curators, 410 U.S. 667 (1973) (summary holding that student

COMMUNICATION

§ 12-10

AND

851

EXPRESSION

laws applied to "fighting words” now appears to depend as much on the factual circumstances surrounding a word’s utterance as on the charac¬ ter of the word uttered.6 The contemporary

doctrinal approach

is best illustrated by the

decision in Cohen v. California ,7 in which the Supreme

Court refused to

classify the expression, "Fuck the Draft,” as "fighting words” when lettered on the back of a jacket worn in the public corridors of the Los Angeles County Courthouse.8

While the Court acknowledged

that the

four-letter word displayed by Cohen is commonly "employed in a personally provocative fashion, the word in this instance was not directed at some particular person.” 9 It is not as though Cohen had confronted selective service personnel with his anti-draft epithet. Nor was there any evidence that "substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen.” Justice Harlan’s sensitive opinion for the Court in Cohen rejected the proposi¬ tion that "the States, acting as guardians of public morality, may properly remove [an] offensive word from the public vocabulary.” 10 Offensive utterances are necessary side effects of free expression, and a power to maintain "a suitable level of discourse within the body politic” is inherently illimitable.11 It would be difficult to prevent government from suppressing ideas in the name of bowdlerizing the vocabulary of public discourse. Except in situations where the audience is "cap¬ tive,” 12 or where the offensive message intrudes into the privacy of the editor could not be expelled for violating "conventions of decency” for publishing in student newspaper a cartoon depicting the rape of the Statue of Liberty by a police¬ man and a headline "M _ F-

Acquitted”).

to preserve an appropriately decorous at¬ mosphere in courthouses or other specified places. Id. at 19. 9. Id. at 20.

6. See, e.g., Eaton v. City of Tulsa, 415 U.S. 697 (1974) (per curiam) (reversing con¬ viction for contempt of court in witness’ use of expression "chickenshit,” since there was no showing that the expletive, at least when not directed to the judge, posed an imminent threat to administration of jus¬ tice); Hess v. Indiana, 414 U.S. 105 (1973) (per curiam) (reversing conviction for disor¬ derly conduct where statement during an¬ tiwar demonstration — "We’ll take the fuck¬ ing street later [or again]” — was not directed at any person or group in particu¬ lar and there was no showing that violence was imminent); Street v. New York, 394 U.S. 576 (1969) (statement that "We don’t need no damn flag,” made by protestor while burning a flag, was not "so inherent¬ ly inflammatory” as to come within the class of "fighting words”). 7. 403 U.S. 15 (1971).

a.

ut

e,

fr

le

ho

at

9,

ab

ug

st

-1

e

in

th

ro

of taste and style so largely to the individu¬ al.” Id. at 25. When the speech is broad¬ cast, however, the Court has been less tol¬ erant of vulgarity. In FCC v. Pacifica Foundation, 438 U.S. 726, 745-47 (1978), the Court upheld an FCC complaint against a New York radio station for play¬ ing a monologue by comedian George Car¬ lin which the Court described as "vulgar, offensive, and shocking,” but not obscene. See §§ 12-18, 12-19, infra.

5,

ic

th

distasteful than most others, it is neverthe¬ less true that one man’s vulgarity is anoth¬ er man’s lyric. Indeed, we think it is largely because governmental officials can¬ not make principled distinctions in this area that the Constitution leaves matters

-2

pl

11. "[W]hile the particular four-letter word being litigated here is perhaps more

15

ap

10. Id. at 22-23.

12

a st at ut e

the Court explicitly distinguished the issue of the constitutionality of a statute drafted

852

COMMUNICATION

AND

EXPRESSION

Ch. 12

home,13 government may not purge public dialogue of unwelcome words or symbols, just as it may not prohibit unwelcome ideas. 14 With the shift in emphasis from the words themselves to the context in which they are uttered, the "fighting words” doctrine has been largely assimilated to a class of problems in which the Supreme Court has had to consider whether authorities may silence a provoca¬ tive speaker or instead must control the hostile audience when an expressive act seems likely to touch off a violent response.15 One must begin with the premise that government may not justify the suppres¬ sion of speech because its content or mode of expression is offensive to some members of the audience.16 If, as Holmes observed, "every idea is an incitement,” 17 the duty of the police ordinarily must be to protect the speaker’s right of expression — whatever the reaction.18 Yet it is not 13. See §§ 12-19, 15-20, infra.

who are at least two generations and 3,000

14. Cohen, 403 U.S. at 25-26. Cohen is

miles away from the scene of the crime.” Id. at 3169 (footnote omitted). Justice Ste¬ vens would not have disturbed the findings of the district court, which concluded that

interestingly assessed in Farber, ''Civiliz¬ ing Public Discourse,” 1980 Duke L.J. 283. The Court also employed a modified ver¬ sion of the captive audience theory when it upheld disciplinary action against a high school student for vulgar but not obscene speech in Bethel School Dist. No. 403 v. Fraser, 106 S.Ct. 3159 (1986). There the Court upheld, by a 7-2 vote, a three-day suspension of a high school student who addressed a school assembly using "an elaborate, graphic and explicit sexual met¬ aphor.” Id. at 3162. Chief Justice Bur¬ ger’s opinion applied a balancing test: "[t]he undoubted freedom to advocate un¬ popular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of social¬ ly appropriate behavior.” Id. at 3164. Re¬ lying, then, on the "interest in protecting minors from exposure to vulgar and offen¬ sive spoken language,” id. at 3165, the Court upheld the suspension of Fraser, not¬ ing also that "the penalties imposed in this case were unrelated to any political view¬ point.” Id. at 3166. Justice Blackmun concurred in the result without opinion. Justice Brennan, concurring in the judg¬ ment, noted that school officials’ "authori¬ ty to regulate such speech by high school students was not limitless,” id. at 3168, but concluded that "in light of the discretion school officials have to teach high school students how to conduct civil and effective discourse, and to prevent disruption of school educational activities, it was not un¬ constitutional for school officials to con¬ clude . . . that respondent’s remarks ex¬ ceeded permissible limits.” Id. at 3167.

the student’s behavior did not disrupt school activities sufficiently to "justify] impinging on Fraser’s First Amendment right to express himself freely.” Id. at 3170 (citation omitted). 15. The phrase "heckler’s veto,” often used as a shorthand statement of the prob¬ lem, is Professor Kalven’s. See The Negro and the First Amendment 140-145 (1965). 16. See, e.g., Street v. New York, 394 U.S. 576, 592 (1969), where, in reversing a conviction for words contemptuous of the American flag, Justice Harlan wrote for the Court: "It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely be¬ cause the ideas are themselves offensive to some of the hearers”. But the rights of the auditors whose hostility is aroused by a speaker remain relevant. The hostility of the audience might be a factor if the speech intrudes into such sensitive areas as residential neighborhoods and schools, where many of the receivers of the mes¬ sage may in effect be "captive.” See note 12, supra. 17. Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting). 18. See Chafee, Free

Speech

in the

United States 245 (1948) ("The sound con¬ stitutional doctrine is that the public au¬ thorities have the obligation to provide po¬ lice protection against threatened disorder at lawful public meetings in all reasonable

ruptive.” Id. at 3168. Justice Stevens wrote a spirited dissent, questioning the

circumstances”); Emerson, The System of Free Expression 341 (1970) ("Once it is clear that the constitutional guarantee of freedom of assembly [is threatened by vio¬ lence and disorder] . . . the remedy open to the community is . . .to invoke emer¬

factual conclusions of "a group of judges

gency powers

Justice Marshall dissented "because . . . the school district failed to demon¬ strate that the remarks were indeed dis¬

of martial law”).

§ 12-10

COMMUNICATION

AND

853

EXPRESSION

difficult to recognize the genuine dilemma that law enforcement of¬ ficers may confront when violence is incipient; although free speech would be suppressed, silencing the speaker is certainly preferable to a blood bath.19 Still, the discretion of government authorities must be narrowly confined; they may not enforce regulations which are not narrowed ment.

so as to focus on incitement unprotected by the first amend¬

In Terminiello v. Chicago ,20 the Supreme Court refused even to consider the question whether a race-baiting speech that attracted an "angry and turbulent” crowd was itself constitutionally protected.21 Instead, the Court reversed the speaker’s breach of the peace conviction because the regulatory statute, which punished speech that "stirs the public to anger, [or] invites dispute,” was overbroad and thus void on its face.22 The first amendment protects speech that has precisely those effects: "[a] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” In cases where government invokes a what would otherwise be constitutionally the imminence of violence, the result is 19. See Note, "Protecting Demonstra¬ tors from Hostile Audiences,” 19 Kan.L. Rev. 524, 530 (1974). An attempt to articu¬ late relevant standards for police response to the problem of hostile audiences is made in Note, "Hostile-Audience Confrontations: Police Conduct and First Amendment Rights,” 75 Mich.L.Rev. 180 (1976). 20. 337 U.S. 1 (1949). 21. Id. The majority opinion was based on the ambiguity of the trial judge’s charge to the jury, which allowed the jury to find Terminiello guilty not for the riot he may have caused but for the anger he had aroused. See Note, "Scope of Supreme Court Review: The Terminiello Case in Focus,” 59 Yale L.J. 971 (1950); Note, "Constitutional Law — Freedom of Speech — All Possible Grounds for a Ver¬ dict Must Be Constitutionally Valid,” 23 S.C.L.Rev. 159 (1971). See also Bachellar v. Maryland, 397 U.S. 564 (1970) (overturn¬ ing a disorderly conduct conviction because the Court could not tell whether a jury’s general verdict resulted from the defen¬ dant anti-war protester’s alleged intention¬ al obstruction of a public sidewalk, or rath¬ er from the jury’s enforcement of statutory language, void on its face, for prohibiting speech "which offends [or] disturbs ... a number of people gathered in the same area”); Stromberg v. California, 283 U.S. 359 (1931) (same principle).

"Prior Restraints on Demonstrations,” 68 Mich.L.Rev. 1482, 1510-1515 (1970). In Hague v. C.I.O., 307 U.S. 496, 516 (1939), the Court voided on its face a system pro¬ viding that a "permit shall only be refused for the purpose of preventing riots, distur¬ bances or disorderly assemblage” because "the uncontrolled official suppression of the [right to speak] cannot be made a sub¬ stitute for the duty to maintain order in connection with the exercise of the But only three Justices subscribed aspect of the opinion. Cf. Tinker Moines Independent Community District, 393 U.S. 503, 509 (1969)

right.” to this v. Des School (school

officials cannot suspend students for wear¬ ing armbands to protest the VietNam War because of undifferentiated fear of distur¬ bance created by hostile classmates). Some lower court decisions have according¬ ly held that fear of a hostile audience does not constitute a permissible basis for deny¬ ing a permit. See, e.g., Stacy v. Williams, 306 F.Supp. 963, 977 (N.D.Miss.1969); Hurwitt v. City of Oakland, 247 F.Supp. 995 (N.D.Cal.1965); Williams v. Wallace, 240 F.Supp. 100 (M.D.Ala.1965). 38, infra.

J.) .

ou ,

as

gl

9)

94

(D

A permit requirement as a prereq¬ to use of the streets, parks, or other places is void on its face if it gives officials discretion to withhold a per¬

mit because fo generalized fears of a hos¬ tile audience. In the context of a permit application, the official decision is not based on on-the-spot observation of an emergent riot, but on the apprehension of potentially hostile officials. See Blasi,

(1

22. uisite public public

23 facially valid law to suppress protected speech because of necessarily sensitive to even

See § 12-

a,

854

COMMUNICATION

AND

EXPRESSION

Ch. 12

slight variations in the facts of the particular case. As a consequence, no general rule of constitutional etiquette — no functional equivalent of Robert’s Rules of Order-can be stated. But it is possible to observe several recurring themes in the Court’s decisions. First, the speaker cannot be silenced if his or her identity is the primary factor offered to justify the conclusion that audience violence is imminent. In the 1960’s, the Supreme Court on several occasions overturned breach of the peace or similar convictions incurred by black demonstrators who peacefully protested the racial segregation of public and private facili¬ ties by attempting to make use of those facilities. In each case, the Court concluded that reversal was mandated because the only justifica¬ tion local authorities could ultimately offer to support their belief in the imminence of white spectator violence was the assertion that the very sight of blacks attempting to make use of these facilities would stir anger. Even if true, the assertion was constitutionally irrelevant: "Such activity ... is not evidence of any crime and cannot be considered either by the police or by the courts.” 24 Second, government authorities may not suppress otherwise pro¬ tected speech if imminent spectator violence can be satisfactorily pre¬ vented or curbed with reasonable crowd control techniques.25 In anoth¬ er series of cases growing out of the civil rights demonstrations of the 1960’s, the Supreme Court reversed breach of peace or similar convic¬ tions after finding that there was no evidence to support local officials’ claims that breaking up demonstrations was justified by the imminent prospect of white spectator violence. In each case, the Court found that "[police] protection at the scene was at all times sufficient to meet any foreseeable possibility of disorder” by spectators.26

36

8

U.

S.

157

(19 (u co for br of ps nv ea 61) e i c th pe wtht th ct wa no ev in er io s e ac id h einrg e e e n e s si n the rec tha a pe t-i at a cesegr ac tc olrd ga c w it teh¬e e n fu ar ou un it te l r n c h i t hof im e li d vied acc ke ol mi r o l e ne 37 Ta iho v. Lo U. nc 15 (19rd, e n S u 4 0 yl 62) o ) (u or d br isia of t th pe . ;co n ps a e e v ce a na for estitt i in the chwa , ro of bus idcetpi i o ti5 In Col -inng v. Sm (7t ootCn)ir. n7g8 F.2dm 119 it . h lin 7 197 cer de h, 43 U.S 91 (19 the 9 6 n t, 78) 8) . ie dst , Ill Se , Cir do a Sk ru ok i ve wn c u c i n noi t vil wh wo e, ha ¬ itord k h v i u s lag e i ch ld w pr , e all pub nanc dem h oh i lic e on ch i "in bite vio ha asbtra or hos us to p to cit d a lepne otrredgr e ifo er tili by res ou wa e c , ns so t o p r re d of re , n to rel rac ns etyh as fe i ¬ i al, g o re nic nna or ncre afifous Id. at ti T 11, or e gion wa ili,pa in re¬ onh al ael di s atiss 99 e sp . to pl onfanthe Am N Par o n.d”az an on e ¬ c i r s ty tsoe ma in th epr Je e wi ed ican rc sh su ofh Ch wh om a su bs in ic b e u r t nu rb of Ho ag su e an l T rv lo o, mb tl ivea.nti he i c y a e v Co n tha auan de by lthe ur r oted mo ors t sty t ns Na "w se dis tr e ri a l at a mot p t ly ziasn meould s u o i omrb, on nd ionro uts eas nt d e, ly t a ba a bly ma of lltyhe Vil re Id.l¬¬at , nyN lag th ci sid co 12 rel ev rcu ent urt e’se 06 e ing .on Te rth sta thait ssp. , thay¬ rm el e”e t ted t in es c i "in di el s,. . . in a co h nd du sp lo vit it ce ut , es io s e n

of unrest, creates dissatisfaction with con¬ ditions as they are, or even stirs people to anger [was] among the high purposes of the First Amendment.” Id. Accordingly, the Court struck down the ordinance, which made "a crime ... of a silent march, attended only by symbols and not by ex¬ trinsic conduct offensive in itself.” Id. 25. See Feiner v. New

York, 340 U.S.

315, 326-27 (1951) (Black, J., dissenting): "If in the name of preserving order, [the police] ever can interfere with a lawful public speaker, they first must make all reasonable efforts to protect him”. 26. Edwards v. South Carolina, 372 U.S. 229, 232-33 (1963) (187 demonstrators at the State House drew a crowd of 200 to 300 evidently peaceful onlookers; police had been given ample warning and had 30 of¬ ficers at the scene, with adequate rein¬ forcements available within a short time): Cox v. Louisiana (I), 379 U.S. 536, 550 (1965) (1500 demonstrators across the street from the county courthouse and jail were separated by 75 to 80 armed police¬ men from a crowd of 100 to 300 "mutter¬ ing” spectators). Cf. Gregory v. Chicago, 394 U.S. Ill (1969) (holding that there was constitutionally insufficient evidence to

§ 12-10

COMMUNICATION

AND

855

EXPRESSION

Finally, government authorities may suppress otherwise constitu¬ tionally protected speech if imminent spectator violence cannot be satisfactorily prevented or curbed by means of reasonable crowd control techniques, and if the speech itself is the apparent cause of the impending disorder.27 In Feiner v. New York ,28 the Supreme Court upheld a disorderly conduct conviction that resulted from a soap box orator’s refusal to comply with a police command that he cease speak¬ ing to a racially mixed crowd, where the orator had given "the impres¬ sion that he was endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights;” there were only two policemen on the scene confronting a crowd of about seventy-five or eighty people; and, while some

of the crowd

approved of the speaker’s arguments, "at least one threatened violence if the police did not act.” 29 In light of the more recent civil rights demonstration cases, Feiner should be read narrowly. In general, the Supreme Court became less willing by the 1960’s to accept police judgments and police versions of the facts in such cases. As Justice Black’s dissent in Feiner made clear,30 "the police did not even pretend to try to protect” the speaker from the crowd; there was evidence that the speaker did not call on blacks to "rise up in arms ” but rather to "rise up and fight for their rights by going arm in arm . . . black and white alike,” to hear another speaker; and the sole threat of violence was made by a man accompanied

by his "wife and two small children. ...”

More illustrative of v. Indiana ,31 where the tion of a spectator at an his conduct while being

the Court’s approach in later decades was Hess Court overturned a disorderly conduct convic¬ anti-war demonstration who was prosecuted for cleared from a street on a college campus. As

the local sheriff passed by, Hess exclaimed, "We’ll take the fucking street later,” or "We’ll take the fucking street again.” Hess was immediately arrested. In reversing the subsequent conviction, the Court observed "that Hess did not appear to be exhorting the crowd back into the street;” "that his tone, although loud, was no louder than that of the other people in the area;” and that "[at] best . . . the statement could be taken as counsel for present moderation; at worst it amounted to nothing more than advocacy of illegal action at some support disorderly conduct convictions for civil rights demonstrators who failed to disperse upon a police order to do so; the Court refused to consider evidence noted by Justice Black in dissent that the hostile crowd of 1,000 spectators from the neigh¬ borhood attracted by the 85 marchers was growing unmanageable in spite of the best efforts of a special detail of 100 uniformed police: the demonstrators were charged with conducting a disorderly march, not with disobeying a lawful order to disperse). (1 28 26 U. 95 8, S. 0 9 is n1o) "I co t itn ac th pr ncu at in r ti n pr mu, th ciproi e plling oc g e ce): st ee d 34

J., ra n a cokf o to pr nsutrt es iter rde er thut, cr r, ag ve e io ow ai na d ns l t (F

whatever

its size and

temper

and

not

against the speaker.” 28. 340 U.S. 315, 316-18 (1951). 29. But

see Cantwell

v. Connecticut,

310 U.S. 296, 311 (1940) (overturning con¬ viction for common law breach of the peace of a Jehovah’s Witness who had angered a group by playing a phonograph record con¬ taining slurs on Catholicism; the commu¬ nication, although it stirred animosity, did not pose a "clear and present danger of riot, disorder, interference with traffic up¬ on the public streets, or other immediate threat to public safety, peace, or order”). 30. 340 U.S. at 326, 324 n. 5, 326. 31. 414 U.S. 105 (1973) (per curiam).

856

COMMUNICATION

indefinite future time.

AND

EXPRESSION

Ch. 12

This is not sufficient to permit the State to

punish Hess5 speech.55 32 The Court, however, has not foreclosed the possibility of imposing costs on those whose words inflict injury by their very utterance. Indeed, that notion need not be limited to words that trigger reflexive violence.33 The Constitution may well allow punishment for speaking words that cause hurt just by their being uttered and heard. The Court of Appeals for the Seventh Circuit appropriately rejected an ordinance passed by the village of Skokie, Illinois, in order to prevent a planned march by a group of neo-Nazis.34 Yet a more narrowly drawn statuteone that, say, allowed for an after-the-fact award of damages for the intentional infliction of psychic trauma— might well have passed consti¬ tutional muster. So, too, might a court approve a law that sought to protect the victims of rapes or other violent attacks from being assault¬ ed with photographic reminders of the crimes they had suffered. Such statutes would be constitutionally problematic — the potential for con¬ tent-specific regulation is always great— but a commitment to protect evenhandedly the expression of all sentiments should not degenerate from an abiding faith in the first amendment to an obsession with alluring abstractions or neutral principles. The first amendment need not sanctify the deliberate infliction of pain simply because the vehicle used is verbal or symbolic rather than physical. And legislatures may create remedies for the damage done with words so long as these remedies display sufficient sensitivity to freedom of expression as well.

§ 12-11. Clear and Present Danger: The Administration of Jus¬ tice and Alleged Conflicts Between Free Press and Fair Trial The Supreme Court has consistently used the "clear and present danger” standard to determine the constitutionality of contempt cita¬ tions, in the absence of a prior court order, based on either in-court or out-of-court statements critical of the administration of justice in on¬ going judicial proceedings.1 The Court in this line of cases has assumed 32. Id. at 108. 33. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) and § 12-10, supra. 34. See Collin v. Smith, 447 F.Supp. 676 (N.D. Ill. 1978), affd 578 F.2d 1197 (7th Cir.), cert, denied 439 U.S. 916 (1978); § 12-10, note 24, supra. 1. See In re Little, § 12-11404 (1972) (per curiam) (holding ment by the defendant ’'that biased and had prejudged the

U.S. 553, 555 that a state¬ the court was case and that

petitioner was a political prisoner” could not be deemed contemptuous because "[t]here is no indication . . . that peti¬ tioner’s statements were uttered in a bois¬ terous tone or in any way actually disrupt¬ ed the court proceeding,” while indicating in dictum that the epithet "M _ F_ ” could be found a contempt of

court); Eaton v. City of Tulsa, 415 U.S. 697, 698 (1974) (per curiam) (holding that a single use (here the when not punishable

in court of "street vernacular” phrase "chicken shit”), at least directed at the judge, was not as contempt without a further

showing that "use of the expletive” consti¬ tuted " 'an imminent . . . threat to the administration of justice,’ ” (quoting Craig v. Harney, 331 U.S 367, 376 (1947) ). But cf. Smith v. United States, 431 U.S. 291, 318 (1977) (Stevens, J., dissenting) (stating broadly that "offensive language in a courtroom . . . may surely be regulated”). The principal case that defines when an extrajudicial statement becomes a punisha¬ ble attempt to interfere with the adminis¬ tration of justice is Bridges v. California, 314 U.S. 252 (1941), in which the Court overturned a contempt citation based on union leader Harry Bridges’ public release

COMMUNICATION

§ 12-11

AND

857

EXPRESSION

that all behavior — including purely communicative behavior— that pre¬ vents the fair adjudication of a case is punishable as contempt. In Nebraska

Press Association v. Stuart ,2 the Supreme

Court confronted

directly the possible conflict between a state’s interest in ensuring criminal defendants a fair and impartial trial and the first amendment guarantee of freedom of the press,3 but unlike the earlier contempt decisions, the Nebraska Press case arose on appeal of a prior court order prohibiting press reporting of prejudicial news, thereby bringing into play the strong presumption against the constitutionality of prior restraints.4 Nebraska

Press involved a court order prohibiting the reporting of

the existence or nature of any confessions or other information "strong¬

er a telegram he had sent the Secretary of Labor "predicting” a massive strike if a California state court attempted to enforce its decision in a jurisdictional dispute over representation of West Coast dock workers. A motion for new trial was pending at the time Bridges made his telegram public. In a companion case, the Court reversed a contempt conviction where the Los Angeles Times had editorially warned a judge, while sentence was pending, against mak¬ ing a "serious mistake” if he granted pro¬ bation to two convicted members of a

331 U.S. 367 (1947) (newspaper’s criticism of county judge, an elected official who was not a lawyer and who exercised both judi¬ cial and administrative responsibilities, for his mishandling of a civil case involving a veteran); Pennekemp v. Florida, 328 U.S. 331 (1946) (articles critical of local judges’ reliance on "legal technicalities” to turn criminals loose). But see Riegler, "Law¬ yers’ Criticism of Judges: Is Freedom of Speech a Figure of Speech?”, 2 Const. Comm. 69 (1985). 2. 427 U.S. 539 (1976).

Teamsters’ Union "go on squad.” Id. at 271-75. Justice Black wrote for the major¬ ity that, before the state could abridge freedom of expression, the danger of prejudice to the disposition of the pending

that "free speech and fair trial are two of the most cherished policies of our civiliza¬ tion, and it would be a trying task to

adjudication must be "extremely serious and the degree of imminence extremely

choose between them,” Bridges v. Califor¬ nia, 314 U.S. 252, 260 (1941) (overturning

high.” Id. at 263. Applying this test, the Court found that the release of the tele¬

union leader’s contempt citation) the dan¬ ger of prejudicial pretrial publicity need not force such a choice. If our system of criminal justice is functioning properly, government is prohibited from trying an accused in a prejudicial atmosphere; if pretrial publicity prevents the impaneling

gram did not present "a clear and present danger” of interference with the adminis¬ tration of justice. Id. at 276-78. See R. McCloskey, The Modern Supreme Court 15 (1972) (commenting that if Bridges’ threat to cripple the economy of the entire West Coast did not present clear and present danger, then the lesson of the case must be that almost nothing said outside the court¬ room is punishable as contempt). Cf. Ne¬ braska Press Association v. Stuart, 427 U.S. 539, 562 (1976) (formulating a diluted version of the test: whether "the gravity of the 'evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger”). See Schmidt, "Nebraska Press Association: An Extension of Freedom and Contraction of Theory,” 29 Stan.L.Rev. 431, 459-60 (1977) (criticizing the Nebraska Press version of the clear and present danger test). The Court has generally reversed convic¬ tions for out-of-court publications. See Wood v. Georgia, 370 U.S. 375 (1962) (sher¬ iffs open letter to the press and grand jury criticizing the jury’s investigation into charges of electoral corruption involving bloc voting by blacks); Craig v. Harney, Tribe-Amer. Const. Law 2nd Ed. UTB — 21

3. While Justice Black was surely right

of an impartial jury, the defendant is enti¬ tled by the sixth amendment to a dismissal of the charges against him. See Wright, "Fair Trial-Free Press,” 38 F.R.D. 435 (1965). The key conflict is therefore not between a defendant’s sixth amendment rights and a publisher’s first amendment rights: the interests advanced to justify suppression of prejudicial news are largely the state’s interests — in putting guilty criminals in jail and in maintaining confi¬ dence in the fairness of the judicial system. Because government can ordinarily vindi¬ cate these interests by alternatives less restrictive of first amendment liberty, see Nebraska Press Association, 427 U.S. at 611-13, it has rarely been put to an ex¬ traordinary choice. See also Friendly, "Order in the Court — Freedom in the Newsroom,” 20 Judge’s J. 14 (1981) (argu¬ ing that fair trial and free press are not inherently antithetical). 4. See §§ 12-34, 12-35, 12-36, infra.

858

COMMUNICATION

AND

EXPRESSION

Ch. 12

ly implicative” of an accused murderer. The crime charged was the brutal slaying of six members of a family in a small Nebraska town; the autopsy contained evidence of necrophilia. The crime had immedi¬ ately attracted widespread publicity which included reports of incrimi¬ nating statements by the accused. The trial judge was wholly justified in concluding that intense and pervasive pretrial publicity would con¬ tinue, and that without restraining the press it would be difficult to impanel a jury which had not been exposed to the prejudicial informa¬ tion.5 Nonetheless the Supreme Court unanimously — and rightly — struck down the order. The opinion of the Chief Justice, joined by four other members of the Court, found that the trial court’s conclusion about the impact of the expected publicity on prospective jurors "was of necessity speculative, dealing . . . with factors unknown and unknow¬ able.”6 While the trial judge could reasonably predict that a very large number of veniremen would be exposed to the publicity, he could only speculate as to what he could not legally presume — namely, that jurors exposed to such information would be unable to render an impartial verdict.7 In addition, the state courts had failed to find that measures short of an order restraining all publication — a change of venue, postponement of the trial, a searching voir dire of the jury panel for bias, instructions to the jury to consider only the evidence presented in court, and sequestration of jurors — would not effectively mitigate the adverse impact of the publicity.8 Given the inevitably speculative nature of any "finding” that such alternatives would have failed, the Court’s admonition must mean that the alternatives must at least be tried before a restraint on publication may issue.9 And the Supreme Court’s apparent confidence that the alternatives would prove ade¬ quate 10 suggests that the Court has gone further and announced a 5. Nebraska Press Association, 427 U.S. at 562-63, 568-69. 6. Id. at 563. 7. Id. at 565, 568-69; see also id. at 599-601 (Brennan, J., concurring). A de¬ fendant who claims he was denied a fair trial because of jury bias must ordinarily sustain that claim by reference to the voir dire testimony of the impaneled jurors. Compare Irvin v. Dowd, 366 U.S. 717 (1961), reversing a murder conviction where adverse publicity had permeated a small community and where ninety per¬ cent of the 370 jurors and two-thirds of those actually seated on the jury believed the defendant guilty, with Murphy v. Flori¬ da, 421 U.S. 794 (1975), holding that a defendant had not been denied a fair trial where, as a result of publicity seven months before the trial, some jurors re¬ called the robbery involved in the case and the accused’s prior crimes, but where only 20 of 78 persons questioned were excused because they indicated an opinion as to the accused’s guilt and all of those actually seated testified that they could be impar¬ tial. See also United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (en banc), cert.

denied, 431 U.S. 933 (1977) (upholding con¬ victions in the Watergate cover-up case in spite of the massive pretrial publicity, where the tone of the publicity was not inflammatory and a probing voir dire by the trial judge had permitted the removal from the jury of those who harbored any prejudice or preconception). The Supreme Court has reversed a conviction on a pre¬ sumption of prejudice only in Rideau v. Louisiana, 373 U.S. 723 (1963), where a film of the defendant making an in-custody confession of robbery, kidnapping and mur¬ der was broadcast three times to the locali¬ ty from which the jury was drawn. 8. See Nebraska

Press Association, 427

U.S. at 563-64. 9. See Prettyman, "Nebraska Press As¬ sociation v. Stuart: Have We Seen the Last of Prior Restraints on the Reporting of Judicial Proceedings?” 654, 658 (1976).

20 St. Louis L.J.

10. The Court itself has always found the contrary when holding that prejudicial publicity vitiated a fair trial. See Nebras¬ ka Press Ass’n, 427 U.S. at 564-65; id. at 601-03 and n. 30 (Brennan, J., concurring

§ 12-11

COMMUNICATION

AND

EXPRESSION

virtual bar to prior restraints on reporting of news

859 about crime.11

Although the Chief Justice was unwilling to rule out the ''possibility” of the Court’s approving a prior restraint on reporting crime news, he stressed that the record before the Court was illustrative of the prob¬ lems inherent in meeting the heavy burden of demonstrating, in advance of trial, the necessity of the restraint.12 And five justices may have been willing to hold that prior orders restraining the publication of news prejudicial to a criminal defendant

are never permissible.13

Because the holding in Nebraska Press Association u. Stuart was strongly colored by the presumptive invalidity of prior restraints, the decision left unresolved the extent of judicial power to punish as contempt, and of legislative power to proscribe, extrajudicial statements of trial participants or highly prejudicial publications by the press in the absence of a prior restraint.14 But the Court’s more recent holding in Richmond Newspapers, Inc. v. Virginia 15 makes clear that the public’s right of access to judicial proceedings is of constitutional dimension, and therefore restricts the ability of trial judges to close their proceedings to the public, whether or not they couple closure with a ban on extrajudicial statements by participants. Nebraska Press found that the part of the final order prohibiting the publication of "information strongly implicative” of the accused was both too vague and too broad to survive the scrutiny required of restraints on first amendment rights.16 It may be possible to overcome the vagueness problem by drafting rules proscribing broad categories of statements, including all statements about the accused’s prior criminal record or any confessions or admissions, all of which may be presumed to be highly prejudicial to a criminal defendant. This is the approach adopted by most federal district courts following the 1969 report of a in result); Sheppard v. Maxwell, 384 U.S. 333, 363 (1966); Rideau v. Louisiana, 373 U.S. 723, 726 (1963) (trial court improperly refused change of venue); Irvin v. Dowd, 366 U.S. 717, 722-29 (1961) (same). There is considerable disagreement in the litera¬ ture as to the efficacy of the various alter¬ native devices. See, e.g., American Bar Association Project on Standards for Crimi¬ nal Justice, Standards Relating to Fair Trial and Free Press (1968); Stanga, "Judi¬ cial Protection of the Criminal Defendant Against Adverse Press Coverage,” 13 Wm. and Mary L.Rev. 1 (1971). 11. See Prettyman,

note 9, supra, at

659; Howard & Newman, "Fair Trial and Free Expression,” Report of the Senate Comm, on the Judiciary, 94th Cong., 2d Sess. 84 (1976); Goodale, "The Press Un¬ gagged: The Practical Effect on Gag Order Litigation of Nebraska Press Association v. Stuart,” 29 Stan. L.Rev. 497, 504 (1977). But see Sack, "Principle and Nebraska Press Association v. Stuart,” 29 Stan.L. Rev. 411, 411 (1977).

12. 427 U.S. at 569-70. Cf. Capital Cit¬ ies Media, Inc. v. Toole, 463 U.S. 1303,

1307 (1983) (Brennan, Circuit Justice) (sug¬ gesting the need to employ less restrictive alternatives); Smith v. Phillips, 455 U.S. 209, 227 (1982) (Marshall, J., dissenting) (contending that an absolute ban on news coverage is unjustifiable, and recom¬ mending case-by-case determinations of the need for a restraint). 13. Justice Brennan, joined by Justices Stewart and Marshall, took an absolutist position: "I would hold that resort to prior restraints on the freedom of the press is a constitutionally impermissible method for enforcing” the right to a fair trial. Id. at 572. Justice Stevens, id. at 617, subscribed to most of the views of Justice Brennan. And Justice White, although joining the Chief Justice’s opinion, said he had "grave doubt . . . whether orders with respect to the press such as were entered in this case would ever be justifiable.” Id. at 570-571. 14. See note 1, supra. 15. 448 U.S. 555 (1980), discussed in § 12-20, infra. 16. Nebraska U.S. at 568.

Press

Association, 427

860

COMMUNICATION

AND

Ch. 12

EXPRESSION

headed by Judge Irving Kaufman.17 But restrictions of this kind are grossly overinclusive, since the actual risk that a trial’s result will be tainted by such publicity is slight. Only a small percentage of criminal cases ever reach a jury, most jury trials generate no publicity, committee

and much crime news goes unnoticed.18 Moreover, mere exposure to the facts of a case, including prejudicial information, does not automati¬ cally disqualify a juror from rendering an impartial verdict, particular¬ ly if the prejudicial information is later admitted as evidence at trial.19 And for most of the small number of cases remaining, less restrictive alternatives will be available to mitigate the adverse impact of prejudi¬ cial publicity. This overbreadth requirement that no without consideration of a particular case,

may in turn be cured penalties may attach of the actual danger with the categorical

by reading into the rules a to extrajudicial statements posed in the circumstances rules functioning only to

create rebuttable presumptions of prejudice.20 The obvious vice of this "solution,” however, is that it reintroduces the problem of vagueness.21 If a jury is ultimately impaneled and a fair trial held, is the presump¬ tion rebutted? Or if a fair trial can be assured only after a change of venue or continuance, is the rebuttal rejected? In pursuing answers to these and similar questions, it should become apparent that the dilem¬ ma of overbreadth vs. vagueness in the context of the fair trial problem is insoluble for reasons that the Nebraska Press decision identified — namely, the inherently speculative character of any prediction, whether by the publisher of the prejudicial information or by the courts, that a 17. Judicial Conference of the United States, Committee on the Operation of the Jury System, Report of the Committee on

sumption of danger, shifting the burden of proof to the defendant. Cf. Whitney v. California, 274 U.S. 357, 379 (1927) (Bran-

the "Free Press-Fair Trial” Issue, 45 F.R.D. 391, 406 (1969).

deis, J., concurring) ("The legislative decla¬ ration, like the fact that the statute was passed ...» creates merely a rebuttable

18. American Bar Association Project on Standards for Criminal Justice, supra note 10. 19. See Nebraska Press Association, 427 U.S. at 565, 568-69; id. at 599-601 (Brennan, J., concurring). All of the mate¬ rial that was suppressed in Nebraska Press was eventually admitted at the defendant’s trial. See id. at 600 n. 25 (Brennan, J., concurring). 20. See Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert, denied 427 U.S. 912 (1976), where the Court of Appeals held that the rules recom¬ mended by the American Bar Association and the U.S. Judicial Conference were facially invalid because no blanket pro¬ scription of areas of comment could pass the requirement that the danger be "seri¬ ous and imminent.” The court suggested that per se rules were needed to provide lawyers with notice of the kinds of state¬ ments which were punishable and that,

such restraint was "required to obviate se¬ rious and imminent threats to the fairness and integrity of the trial”); Markfield v. Association of the Bar of the City of New York, 49 A.D.2d 516, 370 N.Y.S.2d 82 (1st Dept. 1975), appeal dismissed 37 N.Y.2d 794, 375 N.Y.S.2d 106, 337 N.E.2d 612 (1975) (disciplinary sanctions against de¬ fense attorney who participated in radio discussion of prison rebellion during trial arising from the riot held invalid since attorney’s words did not create a "clear and present danger to the administration of justice”).

y

ll ra

ne ge

d

se

us

sc

di is

a. h fr dt inea br er ov 9, -2 r fo 12 § ss n i

ne

with the inclusion of the "serious and im¬ minent threat” requirement, many of the challenged rules could validly create a pre¬

presumption that” a clear, present and substantial danger exists). See also Co¬ lumbia Broadcasting Co. v. Young, 522 F.2d 234 (6th Cir. 1975) (restrictive order against extrajudicial statements by trial participants and others in civil damage cases arising from the Kent State shootings held invalid absent a clear showing that

§ 12-12

COMMUNICATION

AND

861

EXPRESSION

particular message will prevent the fair trial of a case. To escape the dilemma, it would be necessary to reject the relevance of the clear and present danger test and look to other non-contextual rules for solutions. Succeeding sections will take up areas in which similar dilemmas have been escaped in just this way. In particular §§ 12-12 to 12-14 will address the problem of reconciling the law of defamation with first amendment rights, a problem to which the "clear and present danger” test was never thought relevant.22 But the defamation issue differs strikingly in its focus upon redressing consummated harm rather than preventing harm from occurring; it is primarily the latter focus that has forced the fair trial cases to concentrate on highly individualized factual elements. § 12-12. Defamation: From Personal Assault to Seditious Libel Although its impact is felt on reputation rather than on bodily integrity, libelous speech was long regarded as a form of personal assault, and it was accordingly assumed

that government

could vindi¬

cate the individual’s right to enjoyment of his good name, no less than his bodily integrity, without running afoul of the Constitution. More¬ over, the defamatory statement was not speech for which "more speech” was an adequate remedy: experience had shown that the truth rarely catches up with the lie. In Chaplinsky v. New Hampshire J Justice Murphy’s opinion for the Court classified libel as wholly outside the scope of first amendment protection. And in Beauharnais v. Illinois ,2 a closely divided Supreme Court held, in an opinion by Justice Frankfurter, that unprotected libelous statements include defamations of groups as well as those of individuals. A wholly different perspective on the law of defamation is derived from the history of seditious libel, the common law crime committed by words or writings that do not amount to treason but are nonetheless critical of government officials or their policies.3 The enactment of the Alien and Sedition Acts of 1798 by a group of legislators many of whom 22. See Kalven, The Negro First Amendment 29-30 (1965).

and

the

2-12 § 1(1942) 1. 315 U.S. 568 (dictum). See also Near v. Minnesota, 283 U.S. 697, 715 (1931) (dictum); Pennekamp v. Florida, 328 U.S. 331, 348-49 (1946) (dictum); Roth v. United States, 354 U.S. 476, 486-87 (1957) (dictum).

2. 343 U.S. 250 (1952). Justices Reed, Black, Douglas, and Jackson dissented in four separate opinions. For a critical dis¬ cussion, see Kalven, The Negro and the First Amendment, ch. 1 (1965).

cases "had so washed away the foundations of Beauharnais that it could not be consid¬ ered authoritative.” For further discus¬ sion of Hudnut, see § 12-17, infra.

Z. es at St ); 4 96 (1 ed 1 it

Un

formally limited”). In recent years, courts have given Beauharnais a very limited

"[i]t may be questioned after such cases as Cohen v. California, [403 U.S. 15 (1971)], Gooding v. Wilson, [405 U.S. 518 (1972) ], and Brandenburg v. Ohio, [395 U.S. 444 (1969) (per curiam) ], whether the tendency to induce violence approach sanctioned im¬ plicitly in Beauharnais would pass consti¬ tutional muster today.” See § 12-10 n. 24, supra. In American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 331 n. 3 (7th Cir. 1985), affd mem. 106 S.Ct. 1172 (1986), the Seventh Circuit stated that subsequent

e th . ev in L.R U. Y. N. h ec 39 Spe . 1) ee194 Fr (y,” it al Re , 6 ee 51 d af 7an Ch 49

The continuing validity of the Beauhar¬ nais holding is very much an open ques¬ tion. See, e.g., Smith v. Collin, 439 U.S. 916, 919 (1978) (Blackmun, J., dissenting from denial of certiorari) (noting that Beauharnais "has not been overruled or

reading. In Collin v. Smith, 578 F.2d 1197, 1204 (7th Cir. 1978), cert, denied 439 U.S. 916 (1978), the Seventh Circuit stated that

862

COMMUNICATION

AND

EXPRESSION

Ch. 12

had sat in the First Congress suggests that the implications of free speech and free press were still obscure. Indeed it was in the very controversy over the Alien and Sedition Acts that a powerful theory of first amendment freedoms first crystallized.4 The theory’s central tenet was that a free government could not be defamed by its citizens: 5 it is now an indisputable axiom of first amendment jurisprudence that government lacks constitutional power to silence its critics. In Madi¬ son’s memorable phrase, 'The censorial power is in the people over the government, and not in the government over the people.” 6 The Su¬ preme Court never ruled on the constitutionality of the Sedition Act; it expired by its own terms in 1801. But in 1812 the Court did hear the appeals of Hudson and Goodwin,7 the editors of the Federalist Connecti¬ cut Courant of Hartford, who had been convicted, under federal com¬ mon law, for the seditious libel of President Jefferson. The Supreme Court terminated federal sedition prosecutions for over a century when it ruled that the Courts of the United States had jurisdiction to try only acts declared criminal by Congress. When New York Times Co. v. Sullivan 8 reached the Court, the Justices found the more compelling analogy in seditious libel, and accordingly brushed aside the view of Chaplinsky that libelous speech was worthy only of constitutional contempt. New York Times Co. v. Sullivan arose from a libel judgment of $500,000 won by the police commissioner of Montgomery, Alabama, against four clergymen and The New York Times. The allegedly defamatory publication was a paid advertisement soliciting contribu¬ tions for Dr. Martin Luther King and the civil rights movement in the South. The advertising copy charged police brutality and harassment during the 1960 racial disturbances in Alabama. The defendants’ liability hung on two thin threads. The commissioner had not been named in the advertisement; the only link to the commissioner was his official position as supervisor of the police whose conduct had been criticized. And the advertising copy was inaccurate only in minor particulars, although under the traditionally stringent common law test, defendants were unable to carry their burden of proving truth as a 4. See New

York Times Co. v. Sullivan,

376 U.S. 254, 273 (1964); L. Levy, Emer¬ gence of a Free Press 279-82 (1986). The relevant history is recounted in J. Smith, Freedom’s Fetters 3-111 (1956); J. Miller, Crisis in Freedom: The Alien and Sedition Acts (1951). 5. See New

York

Times, 376 U.S. at

272-73; Kalven, "The New York Times Case: A Note on 'The Central Meaning of the First Amendment’,” 1964 Sup.Ct.Rev. 191, 205. 6. 4 Annals of Cong. 934 (1794), quoted in 376 U.S. at 275.

the question "as having been long since settled in public opinion,” id. at 32, a refer¬ ence which surely pointed to the political repudiation of federal sedition prosecu¬ tions. See C. Warren, 1 The Supreme Court in United States History 433-42 (1937).

an es r¬ hd¬ ic cuy,tn st cotnealme Ju ra pa n se h st io c r ct ea fi te n. ro io dep in rethng op ur ni re nc oi co j mto . s ha ng t’ t di ur s n or Co gla ve ff a eurg e g e dDbo isn th Gol uwda d cl e cne ir de cio qu oant st e urt r u wr J Co k e, n ac th nc nt e naBl wi re me th

7. United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812). In the early years of the Court, Chief Justices Jay and Ellsworth, and Justices Cushing, Iredell, Wilson, Paterson and Washington, had variously stated their beliefs in a federal

criminal jurisdiction at common law. And, except for Justices Chase and Johnson, oth¬ er members of the Court, sitting in the Circuit Courts, had upheld the common law jurisdiction. Yet Justice Johnson in his opinion in the Hudson case considered

§ 12-12

COMMUNICATION

defense. Alabama

AND

863

EXPRESSION

law, like that of most states, held the publisher of a

defamatory falsehood strictly liable, and the state recognized no privi¬ lege for good faith mistakes of fact. In upholding the jury’s verdict against defendants and its award of damages for injury to the commis¬ sioner’s reputation, the Alabama courts had not departed from familiar rules of libel law,9 but the inescapable conclusion was that Alabama’s "white establishment” had taken the opportunity to punish The New York Times for its support of civil rights activists: the South was prepared to use the law of libel to stifle black opposition to racial segregation.10 The Supreme

Court naturally and unanimously

upset the judg¬

ment, taking as its premise "the central meaning of the First Amend¬ ment” which had crystallized in the controversy over the Alien and Sedition Acts of 1798: the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and some¬ times unpleasantly sharp attacks on government and public officials . . . ” 11 From this premise the Court drew three major conclusions. First, it decided that the Sedition Act of 1798 was unconstitutional more than 160 years after its expiration; shortly afterward, the Court in Garrison v. Louisiana voided on its face a state criminal libel statute.12 Second, the Court held that a public official bringing a libel suit must establish that the defamatory statement was directed at the official personally, and not simply at a government unit.13 Third, because critical discussion of government ordinarily involves attacks on individual officials as well as impersonal criticisms of government policy, all defamation claims of aggrieved public officials must be examined closely in order to close what would otherwise be a back door to official censorship.14 To complete his opinion for the Court, Justice Brennan needed to explain why it was necessary to formulate a general rule at all, rather than merely strike down, case by case, prosecutions for sedition mas¬ querading as private libel actions. The explanation was the behavioral rationale that in other contexts is called the "chilling effect”: 15 activi¬ ties protected by the first amendment are vulnerable and must be protected from the threat of sanctions almost as much as from the actual application of sanctions.10 For a great danger of self-censorship arises from the fear of guessing wrong — the fear that the trier of fact, proceeding by formal processes of proof and refutation, will after the 9. See Kalven, "The New York Times Case: A Note on 'The Central Meaning of the First Amendment,’ ” 1964 Sup.Ct.Rev. 196-97. 10. Id. at 200. For an argument that the Court should have confined its holding to the civil rights context and refrained from a major reform of libel law, see Ep¬ stein, "Was New York Times v. Sullivan Wrong?" 63 U.Chi.L.Rev. 782 (1986).

12. 379 U.S. 64 (1964). 13. New York Times, 376 U.S. at 292. Accord, Rosenblatt v. Baer, 383 U.S. 75 (1966). 14. New

York Times, 376 U.S. at 292.

16. Dombrowski 479, 487 (1965). 16. New

v. Pfister, 380 U.S.

York Times, 376 U.S. at 271.

See § 11-4, supra.

864

COMMUNICATION

AND

EXPRESSION

Ch. 12

event reject the individual’s judgment of truth.17 This fear is exacer¬ bated by the danger that a jury will not fairly find the facts in cases involving unpopular speakers or unorthodox ideas.18 And there is simply the cost of litigating a defamation suit, even where publishers are relatively confident that a court somewhere will ultimately vindi¬ cate their judgments.19 A rule that the first amendment protects the right to utter the truth clearly does ble in free debate,” a rule is silence. the Court in New

not suffice, because "erroneous statement is inevita¬ 20 and the only guarantee of legal safety under such To remove the inhibitory effect of defamation laws, York Times Co. v. Sullivan created a constitutional

privilege for good faith critics of government officials. "The constitu¬ tional guarantees require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with

2

'actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 21 Implicit in this rule is the proposition that the first amendment establishes a right to speak defamatory truth; the common law defense of truth is thus constitutionally required at least where the publication concerns a public official.22 Assessing the evidence in New . 17. New York Times, 376 U.S. at 279; Rosenbloom v. Metromedia, Inc., 403 U.S.

York Times in light of

64, 74 (19 In Cox Br Cor v. oa p. 64) d 29, 50 (1971) (plurality opinion by Bren¬ Co 42 . U. 46 48 cas ( the 9, S. 0 hn 9- ti 1975 nan, J.) Cf. Speiser v. Randall, 357 U.S. Co , sai in di tha i9t0 hnag lef), op ur en d ct t d t t u m 513, 526 (1958) (program denying tax ex¬ the qu wh t C re¬ he on es et emptions to otherwise qualified veterans s t t it as a de¬ qui thiaon tr herbe re who refused to subscribe to an oath that u fen res in a t de uth acctogn br tio by a o f i s i am on zed ugh n e they did not advocate violent revolution pri per aastidis fro t a pub on ti held unconstitutional because it placed soon p lic vaoftfe f B thme bet ¬ nggu r ubl u i t i ter burden of proof on taxpayer). ui c i vi isialsur thac the resc.hoend ne¬ e t sti o t 18. See New York Times, 376 U.S. at ces w of reely a d is efe tu f rut co sit t h n g i 294-95 (Black and Douglas, JJ., concur¬ imp y in theni st of selia on in a See zi an bil al lic n ring); id. at 300 (Goldberg and Douglas, d Ga de ac b by ait pri r ti g arrodu f it y va on JJ., concurring). See also Gertz v. Robertriso p ama — f g h w r t t sta te n ver t ti au o e h i s e t te o . so pe h Welch, Inc., 418 U.S. 323, 349-50 (1974). n lt menLouni tru or fal Idc.t at 49 (Po ¬ sit As to w 8-b9e ell t’sJ.s,iacno th twh¬e 19. See Rosenbloom, 403 U.S. at 52-53. ho 9ar y. n , a,cu bu of 3p7rr9or on the iss of fal s the See also Anderson, "Libel and Press Selfrd s i u o e n U f Co en he in.Sg.)P.h Ne ity, Censorship,” 53 U.Tex.L.Rev. 422, 424-25 l i u w (1975). Inc rt v. He d 106 lSa.dC e 155 15 spap(19 59 er 86 p . t.lp 8, ps h s,), , i tha "w a ne apu s 20. New York Times, 376 U.S. at 271p h bli ws e t 72. pa a pr of pub erecon she pla ech i p i ervatw sa can lic rec cern da lso snhtoiff ei-tfh , ma ove not w¬ 21. Id. at 279-80. "Actual malice” as io ge ing tha the rst s at isgsuutre are fal required by the Court in New York Times at s t O em op Jus foure the Cou e.” ’ is distinguishable from common law mal¬ e i C n rt, ts Bnrio jo tice by onJnu Ma ice, which meant spite or ill will. The srt rs in n o e n h e ’i Bl d an scPeos sntan, th al"lt,h terms were nonetheless confused by many a w a d a e t—e t co ckm la r oel f d ha tthe de¬ lower courts. See, e.g., Henry v. Collins, w ule n l, alsi m t u m fe o n mu be the buty of pr ar nd n ov st rd 380 U.S. 356 (1965) (reversing libel judg¬ inr a e n n t — m f t a c ge¬ t all o rut on us ments against two public officials where s t h t ibte qu tha the pla the jury was instructed in terms of com¬ uatr the bur¬ ir i t n de emof sh fal tiafs wel ionaas fau mon law malice). In Rosenbloom, 403 U.S. n en ow lt, s f l l i t ty, in g at 52 n. 18, Justice Brennan pointedly not¬ be re da Id. at 156 ma 3 Jufore Sctove d i an op ed that ill will toward the plaintiff, or bad n i g sse e st ini . ev ri i s e nteBu .” motives, were not elements of the New joi ce by Chi nsngJus and Jus on rg d e t n tic , f i e York Times standard and recommended ce Wh d an Re Se er gen eEsa¬ e d i h era te nq that trial courts omit reference to the u ton "T A L o D l he G mer v isRt. aw W f efalIy, a , T . mnac. nd e o e hr phrase "actual malice”. rt ica be lc ti ou z r h n t , on gh

§ 12-12

COMMUNICATION

AND EXPRESSION

865

its new rule, the Court determined that, on a retrial, the evidence as it stood on the record would be insufficient as a matter of law to submit the case to a jury; the Times would, on this record, be entitled to a directed verdict.23 In the years following Justice Brennan’s magisterial invocation of the "central meaning of the first amendment,” the Court has returned frequently to the libel area but with results far less satisfying than in New York Times Co. v. Sullivan. Indeed, since that unanimous deci¬ sion, the Court has become deeply fragmented about almost every respect of libel, and the doctrine has become a frustrating tangle for all concerned — a mysterious labyrinth for those seeking to clear their names and a costly and unpredictable burden for the speakers the first amendment is designed to protect. The Court’s fragmentation ap¬ peared gradually, and the development of the doctrine proceeded sensi¬ bly for the first few years after New York Times. The Court’s first task was to define three terms that assumed great importance in the application of the doctrine: "public official,” "relating to official con¬ duct,” and "actual malice.” But as the Court attempted to explain the special responsibilities of judges — both trial and appellate — in applying the many libel rules, the splits in the Court — and in the doctrine itself — began to overwhelm its eminently sensible foundation. Libel law now changes yearly, often in dramatic ways, so no firm predictions should be made about its future course. The Court may yet find an anchor for its libel decisions, but if past is prologue, hopes for such stability should not be high. As the Court began filling in its definitions, the term "public official” came to include elected officeholders and candidates for elected office, appointed officials, and government employees located near the bottom of any organizational chart, reaching at least those government employees "who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental af¬ fairs.” 24 Not every person working for government is a "public offi¬ cial” for purposes of New York Times Co. v. Sullivan : "The employee’s Beyond: An Analytical Primer,” 61 Va.L. Rev. 1349, 1381-1386 (1975). An action for defamation thus assumes the existence of a falsehood. Because "there is no such thing as a false idea,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974), statements of opinion, even if expressed in pejorative terms, are protect¬ ed by the first amendment. In Old Domin¬ ion Branch 496, National Association of Letter Carriers v. Austin, 418 U.S. 264 (1974), the Court reversed a defamation award to non-union postmen who were called "scabs” in the union’s newsletter, which quoted Jack London’s definition of a "scab” as a "traitor to his God, his country, his family and his class,” a kin of Esau, Judas, and Benedict Arnold. The Court, construing federal labor law in light of constitutional requirements, held the state¬ ments protected expressions of opinion, ep¬

ithets and hyperbole which did not falsify facts. See also Greenb'dt Cooperative Pub¬ lishing Ass’n v. Bresler, 398 U.S. 6, 14 (1970) ("blackmail”); Cafeteria Employees Local 302 v. Angelos, 320 U.S. 293, 295 (1943) ("unfair” and "fascist”). As a result of the Gertz and Old Dominion decisions, the American Law Institute abandoned its position that mere opinion, even ridicule, unaccompanied by defamatory factual im¬ plications, was actionable. See generally, Keeton, "Defamation and Freedom of the Press”, 54 Tex.L.Rev. 1221, 1240-1259 (1976). See § 12-13, infra. 92.23. New York Times, 376 U.S. at 28524. Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). See § 12-13, infra, for discussion of "public figures.”

COMMUNICATION

866

AND

EXPRESSION

Ch. 12

position must be one which would invite public scrutiny and discussion occasioned by the particular charges in controversy.” 25 This dictum, however, has never been applied by the Supreme Court, and lower courts have tended to disregard it as well, with the net effect that the term "public official” now embraces virtually all persons affiliated with the government, such as most ordinary civil servants, including public school teachers and policemen.26 The "relevance” of a statement to the "official conduct” of the public official has also been defined expansively, although fewer defa¬ mations are likely to be deemed relevant as one moves lower and lower in the governmental hierarchy. The principal Supreme Court cases have concerned relatively prominent officers. In Garrison v. Louisi¬ ana ,27 the Court held that allegations of laziness, inefficiency, and obstruction directed against local criminal court judges were relevant to the official conduct of such judges: "anything which might touch on an official’s fitness for office is relevant.” 28 An allegation that a candidate for the United States Senate had been a "small-time bootleg¬ ger” during prohibition was relevant,29 as was the allegation that the mayor of a rural Florida town had been indicated for perjury by a federal grand jury.30 "[A]s a matter of constitutional law ... a charge of criminal conduct, no matter how remote in time or place, can ” 31 never be irrelevant to an official’s or a candidate’s fitness for office •

•

•

As to the requirement of "actual malice,” the rule is that, to recover damages for allegedly defamatory criticism of his or her official conduct, a public official must establish by "clear and convincing proof’ 32 that the defendant had knowledge of, or recklessly disregard¬ ed, the falsity of the defamatory statement.33 One aspect of this 25. Id. at 86-87 n. 13 (dictum); see also Hutchinson v. Proxmire, 443 U.S. Ill, 119 n. 8 (1979) (category of "public officials] . . . cannot be thought to include all pub¬ lic employees.”). 26. See, e.g., cases collected by Eaton, supra note 22, at 1376-78 nn. 120-21. 27. 379 U.S. 64 (1964).

North

Carolina

law — which

allowed

the

plaintiff to recover only if he proved "actu¬ al malice” by the defendant — provided 'all the protection required by the first amend¬ ment. Justice Brennan, joined by Justices Marshall and Blackmun, concurred, stat¬ ing their view that the first amendment required neither more nor less than an

29. Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971).

actual malice standard, "whether the ex¬ pression consists of speaking to neighbors across a backyard fence, publishing an edi¬ torial in the local newspaper or sending a letter to the President of the United

30. Ocala Star-Banner 401 U.S. 295 (1971).

States.” Id. at 490. Justice Powell did not participate.

28. Id. at 77.

Co. v. Damron,

31. Monitor Patriot Co., 401 U.S. at 277. The Court has nonetheless held, not surprisingly, that the petition clause of the first amendment does not provide absolute immunity for statements made to govern¬ ment officials about candidates for ap¬ pointed federal office. In McDonald v. Smith, 472 U.S. 479 (1985), an unsuccessful candidate for United States Attorney sued an individual who wrote a letter to the President of the United States which had impugned the candidate’s fitness for the office. The Court held unanimously that

32.

See

Rosenbloom

v. Metromedia,

Inc., 403 U.S. 29, 30 (1971) (plurality opin¬ ion by Brennan, J.); New York Times, 376 U.S. at 285-86: "[T]he proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands.” 33. The same must be established be¬ fore a public employee is discharged for nondisruptive public criticism of the public employer. See Pickering v. Board of Edu¬ cation, 391 U.S. 563 (1968). But see Con-

§ 12-12

COMMUNICATION

AND

EXPRESSION

867

apparently straightforward rule generated years of controversy as a result of dictum in Chief Justice Burger’s opinion for the the Court in Hutchinson v. Proxmire.34 Because the "actual malice” standard "calls a defendant’s state of mind into question,” the Court stated that proof of actual malice "does not readily lend itself to summary disposition.” 35 Several circuit courts interpreted this statement as an invitation to hold that the clear and convincing standard for actual malice need not serve as a filter for weak cases at the summary judgment stage.36 This interpretation exposed press defendants to genuine hardship by subject¬ ing them to the expense of full trials even in cases in which it was fairly predictable that the plaintiffs had virtually no chance of ultimate victory. The Court did finally settle the issue satisfactorily in Ander¬ son v. Liberty Lobby, Inc.,37 holding by a 6-3 vote that "the New York Times requirement of clear and convincing evidence must be considered on a motion for summary judgment” — on the sensible theory that "whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case,” the standard being actual malice in public figure libel cases. Justice White’s opinion for the Court relied less on first amendment principles than on judicial economy concerns — an approach which drew Justice Brennan’s fire in a dissenting opinion. Justice Brennan predicted that Anderson "will transform what is meant to provide an expedited 'summary’ procedure into a full blown paper trial on the merits.” 38 It remains to be seen whether Justice Brennan’s warnings are justified for the summary judgment inquiry generally, but Anderson surely provides a valuable accommodation of interests in the libel area. The Court’s accommodation of interests in Anderson — and its un¬ derstanding of the need for prompt resolution of libel cases — was far superior to its approach in Herbert v. Lando .39 There the Court refused to contain what may be the greatest threat to press freedom in the libel area: the monetary — and journalistic — costs of extended discovery into editorial processes. Plaintiff Anthony Herbert, who had served in Vietnam and later accused his superior officers of covering up reports of atrocities, was the subject of a CBS television documentary produced by defendant Barry Lando and of an Atlantic Monthly article written by Lando; Herbert charged that the program

and article falsely por¬

trayed him as a liar. Herbert conceded that he was a "public figure,” and thus was required to prove that the defendant "in fact entertained nick v. Myers, 461 U.S. 138, 143 (1983) (limiting the speech rights of public em¬ ployees to "matters of public concern.”) Likewise, Linn v. United Plant Guard Workers Union, 383 U.S. 53 (1966), re¬ stricted state remedies for libel committed by a party to a labor dispute to cases in which demonstrable injury results from de¬ famatory falsehoods uttered with knowl¬ edge or reckless disregard of their falsity. Accord, Old Dominion Branch 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264 (1974).

35. Id. at 120 & n. 9. 36. See, e.g., Liberty Lobby, Inc. v. An¬ derson, 746 F.2d 1563 (D.C. Cir. 1984) (Scalia, J.), rev’d 106 S.Ct. 2505 (1986). 37. 106 S.Ct. 2505, 2508, 2513 (1986). 38. Justice Rehnquist, joined by Chief Justice Burger, also dissented, believing that juries in public figure libel cases should have wide latitude to examine the credibility of witnesses. See id. at 2520. 39. 441 U.S. 153 (1979), discussed in § 12-22, infra.

868

COMMUNICATION

AND

EXPRESSION

Ch. 12

serious doubts as to the truth of his publication.” 40 By the time the case reached the Second Circuit, the deposition of Lando "had lasted intermittently for over a year and had filled 2,903 pages of transcript, with an additional 240 exhibits.”41 During that deposition, Lando refused to answer 84 questions relating to: his conclusions regarding people or leads to be pursued and facts imparted by interviewees; the basis of conclusions reached on the veracity of his sources; conversa¬ tions between Lando and fellow defendant Mike Wallace; and Lando’s reasons for including or excluding material.42 Lando asserted that the first amendment protected against inquiry into the editorial process and into the state of mind of those who edit, produce, or publish. Justice White, writing for a 6-3 majority,43 rejected that assertion, holding that such an editorial privilege was neither compelled by the Court’s earlier decisions providing substantial deference to editorial discretion,44 nor an appropriate extension of New York Times as a matter of federal law.45 Mitigating against an editorial privilege, Justice White argued for the Court, were the additional burdens it would place on libel plaintiffs and the difficulty of establishing its outer boundaries.46

The Court minimized

any chilling effects of discovery

into the editorial process: "if the claimed inhibition flows from the fear of damage liability for publishing knowing or reckless falsehoods, those effects are precisely what New York Times and other cases have held to be consistent with the First Amendment.” 47 The

Court

found

it

"difficult to believe” 48 that the possibility of discovery would inhibit frank discussion among reporters and editors, particularly when expo¬ sure to liability presents an incentive to take pre-publication precau¬ tions such as editor-reporter exchanges. The Court conceded that "it would not be surprising” if the "actual malice” standard led to more discovery than in pr e-New York Times defamation litigation, and "it would follow that the costs and other burdens of this kind of litigation would escalate and become much more troublesome for both plaintiffs and defendants.” 49 However, the Court insisted that an editorial privilege would not "cure” this problem, and that high litigation costs were not peculiar to libel litigation. Thus, "unless and until there are major changes in the present Rules of Procedure, reliance must be had on what in fact and in law are ample powers of the district judge to prevent abuse.” 50 40. St. Amant v. Thompson, 390 U.S. 727, 731 (1968). See § 12-13, infra, for further discussion of the ‘'public figure” standard. 41. Herbert v. Lando, 441 U.S. at 202 (Marshall, J., dissenting). 42. Id. at 157 n. 2.

45. States remain free under their own law, of course, to recognize such a privi¬ lege. See § 12-22, infra. 46. Herbert, 441 U.S. at 170-71. 47. Id. at 171. 48. Id. at 174. 49. Id. at 176.

43. Justice Powell wrote a concurring opinion. Justice Brennan dissented in part, and Justices Stewart and Marshall each wrote dissenting opinions.

50. Id. at 177. In his concurrence, Jus¬ tice Powell emphasized that, even though the editorial process did not merit a consti¬

44. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547 (1978). Cf. Branzburg v. Hayes, 408 U.S. 665 (1972). See § 12-22, infra.

tutional evidentiary privilege, "when a dis¬ covery demand arguably impinges on First Amendment rights, a district court should measure the degree of relevance required in light of both the private needs of the

§ 12-12

COMMUNICATION

AND

EXPRESSION

869

Unfortunately, the Court refused to give judges a powerful tool for controlling discovery of the editorial process — a requirement that the plaintiff make a prima facie showing that the publication contains a defamatory falsehood, a suggestion made by Justice Brennan in his partial dissent.51 The majority asserted that such a requirement would either become a "mini-trial” creating "burdensome complications and intolerable delay,” or "could be satisfied by affidavit or a simple verification of the pleadings.” 52 Although the Court’s refusal to adopt a prima facie showing requirement is unfortunate, it is difficult to fault the Court’s basic holding in Herbert : that the first amendment permits giving defamation plaintiffs access to editorial thought and notes when they must prove a particular condition within the mind of the defen¬ dant in order to prevail.53 The halting compromises of Herbert and Liberty Lobby illustrate nothing so much as the continuing uncertainty of the Court on defamation questions. The meaning of the Court’s standards is illuminated, at least in part, by the majority’s refusal to accept a rule of absolute immunity for speech defaming public officials, the position advanced by Justices Black, Douglas, and Goldberg in their concurrences.54 parties and the public concerns implicat¬ ed.” Id. at 179.

. Justice Stewart asserted that the ques¬ tions Lando refused to answer were simply irrelevant under a proper reading of the

The rationale of

ing in part); id. at 207 (Marshall, J., dis¬ senting).

(Bl J. joi by Do J.) id. at 297 ug ; a n c e l (G k, J., djo by asDo J.) in ol u . , gl ed db a e s Two rghighly publicized libel cases in 1985 , , provided vivid reminders of the force of

New York Times rule. Because the "actu¬ al malice” standard of New York Times has nothing to do with hostility or ill will, Justice Black’s view. General William inquiry into the motivations of the report¬ Westmoreland sued CBS for $120 million er, editor or producer is irrelevant. Id. at in compensatory and punitive damages for 199. Although inquiry into motivation the network’s portrayal, in a television doc¬ should indeed be irrelevant for a determi¬ nation of actual malice, the workings of umentary, of the General’s role in "sup¬ pressing” CIA estimates of enemy troop the editorial process certainly are relevant strength during the Vietnam War. The N to a determination of whether the edefen¬ w documentary charged that Westmoreland Yo dant knew a statement was false or reck¬ rk lessly disregarded doubts he entertained as Timengaged in a "conspiracy” to suppress the es estimates in order to prove to his superiors , to its veracity. In any case, Justice Stew¬ that 37American forces were making greater 6 U . art’s disagreement with the Court’s hold¬ . a they in fact were. The testi¬ progress Sthan ing illustrates the deep confusion on the mony in thet 2case came from a wide array 93 that statement Stewart’s subject; Justice of Vietnam-era political and military lead¬ he had "come greatly to regret the use ers and reflected the nation’s deep divi¬ ... of the phrase 'actual malice,’ ” id., is sions — then as now — about the war. In certainly most understandable. the other case, Israeli General Ariel Shar¬ on charged that Time magazine libeled 51. Id. at 197-98 (Brennan, J., dissent¬ him with its description of his role in a ing in part). 1982 massacre of civilians in a Lebanese 52. Id. at 174 n. 23. It is ironic that the refugee camp. The magazine stated that Court chose to rely upon trial judges to Sharon discussed with Lebanese officials prevent discovery abuse, but declined to "the need for revenge” of the Christian trust those same trial judges to administer extremists who perpetrated the massacre — effectively a prima facie showing require¬ a phrase which Sharon charged imputed ment. responsibility for the deaths to him. The 53. Justices Brennan and Marshall did great public attention generated by both these lawsuits — which concluded with agree with the Court in Herbert v. Lando that the state of mind of an individual Westmoreland dropping his suit near the end of the trial and with the Sharon jury reporter need not be privileged in itself, finding that the article was false and de¬ since it seemed implausible to them that inquiry could "chill” an individual’s thoughts. Id. at 192 (Brennan, J., dissent¬

famatory but not made with "actual mal¬ ice” — demonstrated that both of these high

870

COMMUNICATION

AND

EXPRESSION

Ch. 12

the qualified privilege developed by the Court was amplified in Justice Brennan’s majority opinion in the Garrison 55 case, which explicitly invoked the authority of Justice Murphy’s Chaplinsky 56 dictum: the calculated falsehood, "the lie, knowingly and deliberately published about a public official,” is simply beyond the constitutional pale.57 Stressing the element of calculation, the Court has been at pains to dispel any implication that recklessness in defaming a public official is measurable by reference to the conduct of a reasonably prudent person. The Court’s fullest statement of the point may be found in St. Amant v. Thompson: "There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” 58 The primary (and often sufficient) evidence of the absence of such doubts as would show reckless disregard for truth is "the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity.” 59 While the finder of fact may have reason to doubt the defendant’s professions of good faith, recklessness cannot be inferred from the mere combination of falsehood and the defendant’s general hostility toward the plaintiff,60 nor may recklessness be inferred from negligence.61 Thus, recklessness could not be found in The New York Times’ publishing an advertisement submitted by prominent and responsible individuals, although it may have been negligent not to have checked the accuracy of the copy against the news stories in the paper’s own files.62 Nor could reckless¬ ness be attributed to Time magazine for its summary of a U.S. Civil Rights Commission report on police brutality, in which the newsmag¬ azine recounted as fact an incident which the report had explicitly described in terms of allegations.63 Given the ambiguities of the Commission Report as a whole, it was not reckless of the newsmagazine to choose, from among several conceivable interpretations, one damag¬ ing the plaintiff.64 And there is at least some authority for the view that a publisher is completely immune to a recklessness charge if the publication clearly identifies the allegedly defamatory material as officials had wide access to the press in their efforts to clear their names. The proper "remedy” for the disputed speech in these cases was more speech — not expen¬ sive and extended trials and judicial deter¬ minations of "truth.” For a thoughtful analysis of these and similar cases and an argument that "[t]he first amendment per¬ mits no libel actions against the critics of official conduct,” see Lewis, "New York Times v. Sullivan Reconsidered: Time to Return to The Central Meaning of the First Amendment,’ ” 83 Colum.L.Rev. 603, 621 (1983). For a critical view of the liti¬ gants and lawyers in these cases as well as a critique of contemporary libel law, see R. Adler, Reckless Disregard (1986). 55. Garrison v. Louisiana, 379 U.S. 64 (1964). 56. Chaplinsky v. New U S. 568, 572 (1942).

Hampshire,

315

57. Garrison, 379 U.S. at 75, shifting from the position taken in New York

Times, 376 U.S. at 279 n. 19, to the effect that even deliberate falsehoods may ad¬ vance the search for truth. 58. 390 U.S. 727, 731 (1968). 59. Id. at 731-32. note 22, at 1373. 60. Greenbelt

See Eaton, supra

Cooperative

Publishing

Ass’n, Inc. v. Bresler, 398 U.S. 6, 10 (1970). 61. St. Amant, 62. New

390 U.S. at 731.

York Times, 376 U.S. at 287-

88. 63. Time, Inc. v. Pape, 401 U.S. 279 (1971). 64. Id. at 290. A rational interpreta¬ tion of an ambiguous document will not be accorded similar protection in cases apply¬ ing the "fault” standard announced in Gertz v. Robert Welch, Inc., discussed in § 12-13, infra. See Time, Inc. v. Firestone, 424 U.S. 448, 459 n. 4 (1976).

§ 12-12

COMMUNICATION

AND

EXPRESSION

871

representing not the publisher’s own views but those of a responsible organization — so long as the views themselves are accurately and disinterestedly reported.65 In sum, recklessness may not be inferred from a publisher’s failure to inquire into a matter’s truth or falsity, although a responsible publisher might well have inquired. In the world of New York Times Co. v. Sullivan, ignorance is bliss.66 So, too, is mere "opinion” blissful for speakers intent on shielding themselves from liability. In Gertz v. Robert Welch, Inc.,61 discussed more fully in the next section, the Court held directly what had been implicit in its earlier libel opinions: "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” 68 The lower courts have inter¬ preted that passage as recognizing an absolute privilege for opinions, as opposed to facts. This rule, eminently sensible in theory, has been difficult to apply in practice. The most extensive treatment of the subject thus far has been by a sharply divided en banc panel of the United States Court of Appeals for the District of Columbia Circuit, in Oilman v. Evans.66 Oilman, a political scientist, had charged that a published description of him as someone "with no status within the profession, but [rather] a pure and simple activist” was libelous. Judge Kenneth Starr’s thoughtful opin¬ ion for the majority held that the statements were protected opinion. He applied a four-part test: the common

usage of the statement itself,

that is, "whether the statement has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the state¬ ment is indefinite and ambiguous;” the degree to which the statement is verifiable; the immediate context in which the statement occurs; and the broader social context into which the statement fits.70 Judge Robert Bork concurred, but objected to the application of a rigid test and instead called on the court to examine "the rich variety of factors” that must go into an analysis when core first amendment values are threatened.71 He called for an "evolving constitutional doctrine” in which judges addressing "modern problems. . . . discern how the framers’ values, defined in the context of the world they knew, apply to the world we know.” 72 Judge Bork’s words drew a sharp rebuke from 65. Edwards

v. National Audubon Soci¬ ety, 556 F.2d 113 (2d Cir. 1977), cert, de¬ nied 434 U.S. 1002 (1977). 66. See Eaton, supra note 22, at 1373. Although the substantive standard of New York Times Co. v. Sullivan is a strict one, the Supreme Court has explicitly rejected the suggestion that first amendment con¬ cerns should also create a stricter jurisdic¬ tional standard. In Calder v. Jones, 465 U.S. 783, 790-91 (1984), the Court unani¬ mously held that, when the contacts of a media defendant with a forum state would suffice to support jurisdiction under that state’s long-arm statute if the case did not include free speech and press issues, such jurisdiction should be upheld regardless of the first amendment issues that may be

implicated in the case. According to the Court, introducing such concerns into the jurisdictional analysis would ’’needlessly complicate an already imprecise inquiry,” and any potential chill on protected first amendment activity is ’’already taken into account in the constitutional limitations on the substantive law governing [libel and defamation] suits.” Id. at 790. 67. 418 U.S. 323 (1974). 68. Id. at 339-40 (footnote omitted). 69. 750 F.2d 970 (D.C. Cir. 1984), cert, denied 471 U.S. 1127 (1985). 70. See id. at 979-84. 71. See id. at 993-94. 72. Id. at 995.

872

COMMUNICATION

AND

then- Judge (now Justice) Scalia, who

EXPRESSION

Ch. 12

disparaged the notion that the

press, its security "fulsomely assured” by New York Times , should need any "evolving” protections.73 In his attack on the very idea of an "evolving” jurisprudence of constitutional protection, Judge Scalia dis¬ played a fairly narrow conception of the judicial role: "It seems to me that the identification of 'modern problems’ to be remedied is quintessentially legislative rather than judicial business — largely because it is such a subjective judgment; and that the remedies are to be sought through democratic change rather than through judicial pronounce¬ ment that the Constitution now prohibits what it did not prohibit before.” 74 Judge Scalia’s approach seems at odds with the direction the Supreme Court took in Bose Corp. v. Consumers Union of the United States, Inc.75 There the Court held that appellate court’s review of a trial court’s findings on actual malice were not limited to the "clearly erroneous” standard of Federal Rule of Civil Procedure 52(a). Rather, Justice Stevens wrote, "Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars entry of any judgment that is not supported by clear and convincing proof of 'actual malice.’ ” 76 Bose illustrates that, for all the twists libel doctrine has taken over the years, a majority of the Court still takes New

York Times seriously—not

merely trusting, as it usually does, the lower courts to apply the Court’s decisions faithfully, but requiring that libel decisions receive special appellate scrutiny. Bose recognizes that the law has indeed evolved and undoubtedly will continue to do so; but the principle underlying New York Times — freedom to criticize on issues of public importance — remains paramount. Perhaps it was even in recognition of how dra¬ matically the law of libel has changed over the past two decades that the Court in Bose underscored its own duty and pledged its best efforts to maintain continued vigilance for first amendment values. 73. Id. at 1036 (Scalia, J., dissenting). 74. Id. at 1038. Judge Bork responded to this charge by stating that "[a] judge who refuses to see new threats to an estab¬ lished constitutional value, and hence pro¬ vides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty. That duty, I repeat, is to ensure that the powers and freedoms the framers specified are made effective in today’s circumstances. The evolution of doctrine to accomplish that end contravenes no postulate of judi¬ cial restraint.” Id. at 996. 75. 466 U.S. 485 (1984). 76. Id. at 511. The Court made special note of the responsibility of the Supreme Court to protect first amendment values by undertaking independent review of the evi¬ dence in libel cases: 'The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan is a rule of

federal constitutional law. It emerged from the exigency of deciding concrete cases; it is law in its purest form under our common law heritage. It reflects a deeply held conviction that judges — and particularly Members of this Court — must exercise such review in order to preserve the precious liberties established and or¬ dained by the Constitution.” Id. at 510-11. Chief Justice Burger concurred in the judg¬ ment. Justice Rehnquist, joined substan¬ tially by Justice White and entirely by Justice O’Connor, dissented, professing himself "at a loss to see how appellate courts can even begin to make” determina¬ tions which involve the credibility of wit¬ nesses. Id. at 519. For an interesting discussion of the larger implications of the Bose decision for judicial review of consti¬ tutional decisions, see Monaghan, "Consti¬ tutional Fact Review,” 85 Colum.L.Rev. 229 (1985).

§ 12-13

COMMUNICATION

§ 12-13. Defamation

of Persons

AND

EXPRESSION

Other Than

873

Public Officials

New York Times Co. v. Sullivan 1 left open the proper standard of liability in cases brought by plaintiffs who were not government offi¬ cials. But the decision’s theory of the first amendment — the profound national commitment to "uninhibited, robust, and wide-open” debate on public issues — impelled the Court to extend the constitutional mantle beyond the cluster of cases dealing with libels of public officials, and in the succeeding years the Court supervised an orderly extension of New York Times Co. v. Sullivan until the case reached all discussion and communication

involving public figures or matters of public or general

concern.2 But the Court has since retrenched. Gertz v. Robert Welch , Inc.? in the first major limitation of New York Times Co. v. Sullivan , held that private individuals — as opposed to public figures — need not prove "actu¬ al malice” in order to recover damages. Gertz appeared to signal that the Court had established the crucial distinction in libel law; it then undertook, in a series of cases,4 to define the differences between public figures and private figures. But eleven years after Gertz , the Court appeared to change direction radically. In Dun & Bradstreet, Inc. v. Greenmoss Builders , Inc.? the Court took the bifurcated analysis of public figure-private figure and bifurcated it once more, stating that the first amendment would protect only "speech on matters of public concern.” Accordingly, when the plaintiff is not a public figure and the contested statement is not about a matter of public concern, the "actual malice” standard does not apply.6 The road from New York Times to Gertz to Dun & Bradstreet provides ample evidence of the Court’s changing concerns but offers scarce hints of its future course. 12-13 1. 376 U.S. 254§ (1964). 2. See Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (football coach charged by national magazine with fixing football game held to be "public figure”, making New York Times standard applicable); As¬ sociated Press v. Walker, 388 U.S. 130 (1967), reported sub nom. Curtis Publishing Co. v. Butts (General Walker’s voluntary involvement in events involving desegrega¬ tion of University of Mississippi held to have made him a "public figure”, making New York Times standard applicable to his defamation action against the news ser¬ vice); Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) (defamation action against radio station for its reports concerning the arrest and legal battle of a distributor of nudist magazines subject to New York Times standard).

separate opinions. Justice Douglas ad¬ hered to his view that the Constitution prohibited the imposition of damages upon persons for discussion of public affairs, id. at 355; Justice Brennan reiterated the po¬ sition of his plurality opinion in Rosen¬ bloom. Id. at 361. The Chief Justice brief¬ ly and Justice White in a lengthy opinion objected to the majority’s new rules for defamation actions brought by private per¬ sons. Id. at 354, 369. 4. See, e.g., Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157 (1979) (holding that libel plaintiff who had failed to appear before a grand jury and subjected himself to a criminal contempt citation was not a "public figure”); Time, Inc. v. Firestone, 424 U.S. 448 (1976) (holding that libel plaintiff who had been a party in a highly publicized divorce case was not a "public

3. 418 U.S. 323 (1974). Justice Powell wrote the principal opinion, joined by Jus¬ tices Stewart, Marshall, and Rehnquist.

figure”). 5. 472 U.S. 749, 758-759 (1985).

Although Justice Blackmun sensed "some illogic”, he concurred in order to create a majority for a definitive ruling. Id. at 353-54. Chief Justice Burger and Justices Douglas, Brennan, and White each wrote

ly, that in order for the "actual malice” standard to apply, the Court must now find both that the plaintiff is a public figure and that the contested statement is a mat¬ ter of public concern.

6. The strong implication is, according¬

874

COMMUNICATION Gertz arose when

American

AND

EXPRESSION

Ch. 12

Opinion, an organ of the John Birch

Society, published an account of the murder trial of a Chicago police¬ man who had shot a youth. The article alleged the existence of a nationwide communist conspiracy to discredit local police, and accused Elmer Gertz, a prominent liberal attorney, of being the central figure in a conspiracy which "framed” the policeman. It also charged Gertz with past membership in "Communist-front” organizations and implied he had a criminal record. But Gertz’s involvement in the murder case was limited; he had been retained by the family of the victim to bring a civil action against the policeman. Most of the statements about Gertz were not true. He filed an action for defamation, but lost in the lower courts because he had been unable to prove "actual malice” as defined by New York Times. On appeal, the Supreme Court reversed. The Court’s holding may be briefly summarized.

First, public persons, including "public officials” and "public figures” 7 may recover for defamation only upon a clear and convincing showing of the defendant’s knowledge or reckless disregard of the falsity of the defamatory publication.8 Second, states may define their own standards of liability in defa¬ mation actions brought by private persons against the news media "so long as they do not impose liability without fault.” 9 However, any standard more lenient than that of New York Times Co. v. Sullivan may remain impermissible where a substantial danger to reputation is not apparent on the face of the statement.10 This will typically be the 7. What is meant by these terms of art will be indicated shortly. 8. To this degree, Gertz works no change in the prior law, although the defi¬ nition of public figures is, as we shall see, considerably narrowed. 9. Gertz, 418 U.S. at 347. The majority opinion may imply by its repeated refer¬ ences to the "media” that the application of the Gertz rules is not required in defa¬ mation actions against non-media defen¬ dants. But that conclusion would appear to be wrong to the extent that it rests on a generalization that private communica¬ tions as a class merit less first amendment protection than communications made in a public manner. See Hill, "Defamation and Privacy Under the First Amendment,” 76 Colum.L.Rev. 1205, 1210-11, 1221-27 (1976). See also § 12-19, infra, note 5. 10. Id. at 348. The fairness of requir¬ ing at least due care by a publisher or broadcaster in a potentially defamatory sit¬ uation is underscored by the warning that any publisher should derive from the face of the story being published: if the story appears on its face to be injurious to repu¬ tation, the publisher or broadcaster is on notice to check further into its truth. The element of fairness is equally strong if the publisher has extrinsic knowledge that the statement is defamatory, and almost as strong if, by the exercise of due care, the

publisher would have learned of the defam¬ atory potential. The Gertz decision there¬ fore appears to require a private plaintiff to prove that the publisher knew, or should have known, that the statement was de¬ famatory as a precondition to the applica¬ tion of a negligence standard of liability. If the statement is defamatory on its face, its introduction into evidence would satisfy the requirement. But what is the applica¬ ble standard if defamatory potential was hidden from the publisher? Justice White assumed that the majority’s qualification indicated that the strict New York Times standard applied in tins context, id. at 389 n. 27 (White, J., dissenting), and the lan¬ guage of the Court (stressing elements of fairness) supports the conclusion that a stricter standard is contemplated. But a plausible counter-argument can be made. It is only where the publisher is on notice of a statement’s defamatory potential that self-censorship is triggered. Where there is no warning, the material will be pub¬ lished and first amendment values will have been fully served. At this point there is no reason why the aggrieved individual should not have the benefit of the common law presumptions of malice, falsity and damages. In reply, however, it might well be urged that a publisher subject to strict liability would too often choose simply to avoid comment on specific individuals. The argument seems a close one.

§ 12-13

COMMUNICATION

AND

EXPRESSION

875

case in actions brought on a theory of depiction in a " 'false light”, where Time Inc. v. Hill , decided seven years before 11 Gertz but possibly surviving the latter, ruled the New York Times standard mandatory. Third, no punitive or presumed damages may be awarded in a defamation action brought against a media defendant without showing knowledge

or reckless disregard of the falsity of the defamatory publi¬

cation.12 Gertz represents a shift in the Court’s attention from the location of defamatory falsehoods within or without a sphere of constitutional protection to the determination of the precise degree of protection to be afforded in various contexts. This shift seems attributable to two influences, the first of which seems to have remained important to the Justices, while their concern for the second appears to have waned considerably. The first is the Gertz majority’s conclusion that for many situations the New York Times standard was too strong, its practical effect being to defeat recovery in nearly all litigated cases in which the standard had been applied.13 The second is the Gertz majority’s repudi¬ ation of the plurality opinion in Rosenbloom v. Metromedia, Inc. and the substantial acceptance of Justice Marshall’s dissent in that case.14 In Rosenbloom , the Court had extended New York Times v. Sullivan to an action brought by a private person who had been arrested for selling allegedly obscene material. The plurality opinion reasoned that the constitutional privilege should reach "all discussion and communication involving matters of public or general concern . . . . ” 15 Justice Mar¬ shall objected that "all human events” were arguably of public interest, and that courts were not competent to judge "what information is relevant to self-government.” 16 The rules announced in Gertz incorpo¬ rated these two influences. A less exacting "fault” standard was introduced for suits by private persons, and the line between those cases in which the stricter New York Times standard is applicable, and those cases in which "fault” is a sufficient basis for liability, was drawn without apparent reference to any subjective "public interest” test. On the other hand, the common law’s strict liability for defamation was entirely displaced, at least with respect to media defendants, by the application of Gertz’s "fault” requirement

without regard to whether

. . . calls into question the conceptual of one po fo fal da rot s r lifr in sev-io pe mag r igh ’s f ayta l r e t e l i al e on t-t on ca gaht be re pr son s sta , ly oco n tion iv al t u fa or re ve of ktne sh acy l r c o, w o kl ed seh es de ing its ri No wingtha oolab s sp gh de te t , o i t b di ntoe in c th f con)f.l, -t re vo t d is ase o- ac i¬ lv or in de e of priavnh inti va nt ac T ma au sii sp ial of pe y he te ¬ onnf r i h th qu th er of tyGe soha ca or in e ll or e rt es nas ma to e z t l t H d of Ti io Inc iov. il va co li l: me n n nt ,o.t. ’ adbity "T inu Co f he ma he inurt an tt g d ’ eras st or pu on int of ge s a bl m fa er fo ndde th ndee ic enct es c r rate e l rtm a t Nor t’ Yo aridTdii t wh he oi pp ew mneg rkl s st nat ly to de ma eth i tig fa an li er iv Ge ati v. in mat by darpr e br ce r o d i d i o i v Incat 41 U.vSid o32n3 34 t(z1 n Ro ugh We 97 6 be t lc ., e 8 . ua , 4) rt h, ls ,

basis of Time, Inc. v. Hill.” Cox Broadcast¬ ing Corp. v. Cohn, 420 U.S. 469, 498 n. 2 (1975) (Powell, J., concurring). 12. Gertz, 418 U.S. at 349-50. 13. Id. at 342^43, 346. See also Eaton, "The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: Analytical Rev. 1349,An 1375 (1975). Primer,” 61 Va.L. 14. See Gertz, 418 U.S. at 346, rejecting 403 U.S. 29 (1971), and expressly approving 403 U.S. at 79. 15. 403 U.S. at 43-44. 16. Id. at 79 (dissenting opinion).

COMMUNICATION

876

AND

EXPRESSION

Ch. 12

the statement concerned a matter of "public interest.” A residuum of cases remained in which traditional common law rules might apply (private defamation actions against non-media defendants), but Gertz narrowed the range of situations in which constitutional constraints left the common law tort wholly untouched. The Court found just such a case in Dun

& Bradstreet, Inc. v.

Greenmoss Builders, Inc.11 Dun & Bradstreet, a cy, released a confidential report to five of its that Greenmoss had filed a voluntary petition report was mistaken. When notified of its error,

credit reporting agen¬ subscribers indicating for bankruptcy. The Dun & Bradstreet told

its subscribers that Greenmoss "continued business as usual.” 18 Greenmoss nevertheless sued for defamation and was awarded $50,000 in compensatory and presumed damages and $300,000 in punitive damages. The trial court reversed the damage judgments because its jury charge had not required the jury to find "actual malice” on the part of the defendants, but the Vermont Supreme Court reversed that ruling, holding that credit reporting firms "are not the type of media worthy of First Amendment protection as contemplated by New York Times X 19 The Supreme

Court affirmed, but on different grounds from the

Vermont Supreme Court. Justice Powell’s plurality opinion, which was joined by Justices Rehnquist and O’Connor, agreed with the Vermont court that the New York Times protections did not apply to the speech in question; but the reason for its ruling was the nature of the speech , not the status of the Court’s path through Gertz and New York involving] a 'matter conclusion, the Court

defendant .20 The plurality’s opinion traced the the libel cases and found that the protections of Times extended only to "defamatory statements of public or general interest.’ ” 21 To reach that applied a balancing test similar to the one it had

used in Gertz— balancing "the State’s interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression.” 22 Justice Powell found that the state interest was "identical to the one weighed in Gertz ” while the "First Amendment interest . . . — [that is, in] speech on matters of 17. 472 U.S. 749 (1985). 18. Id. at 752. 19. Id. (citation omitted). 20. The

Court has not finally settled

whether the protections belonging to "me¬ dia” defendants are identical to those of "non-media” defendants. As Justice Bren¬ nan’s dissenting opinion in Dun & Brad¬ street points out, however, there is no good reason to draw such a distinction. First, the Court has recognized in other contexts that the inherent worth of speech does not depend on the identity of its source. See, e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978). Second, it would be almost impossible to generate a useful rule, in a changing technological age, for distinguishing between media and non-media defendants. See Dun & Brad¬

street, 472 U.S. at 759-761 (Brennan, J., dissenting).

& n. 6, n. 7

21. 472 U.S. at 755, quoting Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44 (1971) (plurality opinion of Brennan, J.). Indeed the Court in Dun & Bradstreet seemed clearly to resurrect Rosenbloom sub silentio, notwithstanding the Court’s emphatic rejection of the Rosenbloom plu¬ rality opinion in Gertz. See 418 U.S. at 346. As Justice Brennan noted in dissent in Dun & Bradstreet, "[djistrust of placing in the courts the power to decide what speech was of public concern was precisely the rationale Gertz offered for rejecting the Rosenbloom plurality approach.” at 785 n. 11. 22. 472 U.S. at 749.

472 U.S.

COMMUNICATION

§ 12-13

AND

EXPRESSION

877

purely private concern — . . . is less important than the one weighed in Gertz.” 23 Accordingly, "In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards

of presumed

and punitive dam¬

are both more vulnerable to injury and more deserving of recovery — vulnerable because the private individual more often lacks access to the media to rebut charges against him; 26 more deserving because the private individual has not voluntarily become involved in a public controversy in order to influence its outcome.27 The approach of the Gertz majority and Dun & Brads treet plurality was to translate these 23. Id. at 758.

Instead of maintaining the New York Times enhanced standards for liability,

24. Id. at 761 (footnote omitted).

.

.

7

ages — even absent a showing of 'actual malice.’ ” 24 The Court then had little trouble holding that the speech at issue in this case — "this type of credit reporting” — was not of "public concern,” because it was, "like advertising, . . . hardy and unlikely to be deterred by incidental state regulation.” 25 The expressed rationale in Gertz for creating two degrees of first amendment protection for defamatory speech was that private persons

Justice White urged that the Court consid¬ er limitations on damages to preserve first amendment values. He suggested that limiting or even forbidding presumed and punitive damages might better accomplish the goals sought by New York Times. See id. 772-773. Justice Brennan dissented, in an opinion joined by Justices Marshall, Blackmun and Stevens. He viewed New York Times and

25. Id. at 762. Chief Justice Burger concurred in the judgment, on the narrow ground that the Gertz protections did not apply in this case. See id. at 764. Profes¬ sor Shiffrin has offered a powerful critique of the notion that the marketplace will correct all or most false statements in ad¬ vertising. See Shiffrin, "The First Amend¬ ment and Economic Regulation: Away From a General Theory of the First Amendment,” 65 (1983).

78 Nw.U.L.Rev.

its progeny as "proceeding] from the gen¬ eral premise that all libel law implicates First Amendment values to the extent that it deters true speech that would otherwise

1212, 1261-

Justice White, in a thoughtful opinion also concurring in the judgment, expressed more fundamental discomfort with the en¬ tire state of libel law, reaffirming his disa¬ greement with Gertz and announcing, for

be protected by the First Amendment.” Id. at 778. Accordingly, "[s]peech about commercial or economic matters, even if not implicating ’the central meaning of the First Amendment,’ [New York Times,] 376 U.S. at 273, is an important part of our

the first time, his belief that the "Court struck an improvident balance in the New

public discourse,” 472 U.S. at 787, and should receive the New York Times and Gertz protections. In any event, according

York Times case between the public’s inter¬ est in being fully informed about public officials and public affairs and the compet¬ ing interest of those who have been de¬ famed in vindicating their reputation.” Id. at 767. Justice White had come to believe that the New York Times decision, which

to Justice Brennan, "the credit reporting of Dun & Bradstreet falls within any reasona¬ ble definition of 'public concern,’ ” because "an announcement of the bankruptcy of a local company is information of potentially great concern to residents of the communi¬

he joined, countenanced "two evils: the stream of information about public officials and public affairs is polluted and often remains polluted by false information; and second, the reputation and professional life of the defeated plaintiff may be destroyed by falsehoods that might have been avoid¬ ed with a reasonable effort to investigate

ty where the company is located.” Id. at 789. For these reasons, "Greenmoss Build¬ ers should be permitted to recover for any actual damage it can show resulted from Dun & Bradstreet’s negligently false credit report, but should be required to show ac¬ tual malice to recover presumed or puni¬

the facts.” Id. at 769. Gertz, he stated, was "subject to similar observations, [as it] deprived the plaintiff of his common-law remedies [and made] recovery more diffi¬ cult in order to provide a margin for er¬ ror.” Id.

tive damages.”

Id. at 796.

-4

344 Ida.t

t4

Ger

878

COMMUNICATION

admittedly broad normative

AND

EXPRESSION

Ch. 12

considerations into doctrinal tests. But

why should the plaintiffs vulnerability or deservingness make

a differ¬

ence if the freedoms of speech and press occupy a "preferred position” in the constitutional scheme? One response is to interpret Gertz in light of the two ways in which government may abridge speech.28 Where government aims at the content of speech, the first amendment demands an extraordinary justification. New York Times Co. v. Sulli¬ van was clearly a case of this type,29 and the rule forged in that decision accordingly reflected the primacy of first amendment values. But where government aims at the non-communicative impact of expressive behavior, government may act so long as the flow of information and ideas is not unduly constricted.30 And, as Dun & Bradstreet made clear, the Court is especially reluctant to limit the common law of defamation when the subject matter of the speech is "purely private.” Where the law is closely confined to the narrow purpose of compensating private individuals for injury to their reputational interests, the law is aimed at something other than content, at least in the sense that the objective is unrelated to whether government approves or disapproves the con¬ tent of the message.31 Defamation law in this sense is ideologically neutral, and therefore is appropriately remitted to a "balancing” test.32 Because the reputational interest of the individual is significant, and may indeed be of federal constitutional dimension,33 the crucial ques¬ tion is the degree to which the law of defamation actually constrains the communication of truthful information. In other contexts, the present majority of the Court has indicated skepticism toward the substance and reality of a "chilling” effect on the exercise of first amendment rights flowing from the mere threat of sanctions, and it must be assumed that a similar attitude in part underlies the Gertz and Dun & Bradstreet decisions.34 And for many the real problem is the power and unaccountability of the institutional press, not its weakness or timidity.35 But entirely different premises also serve to justify the Gertz formulation. The Court has been largely guessing that rules making it more difficult for defamed individuals to 28. See § 12-2, supra. 29. 376 U.S. 254 (1964). See § 12-3, supra. 30. See § 12-23, infra. 31. See Young v. American Mini Thea¬ tres, 427 U.S. 50, 67-68 (1976) (Stevens, J., plurality opinion) (comparing ordinance that treated sexually explicit speech unlike other types of speech with Court’s defama¬ tion rules — neither depends for its applica¬ tion on government’s disputed matter).

the costs and other burdens of this kind of litigation.” The Court there refused to recognize any chilling (. ffect, stating simply that "mushrooming litigation costs, much of it due to pretrial discovery, are not pecu¬ liar to the libel and slander area.” Id. For discussion of Herbert and Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505 (1986), see § 12-12, supra. But compare Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), discussed in § 12-25, infra.

taking sides on some

32. See § 12-23, infra.

176 (1979), the "suggestion] that the press needs constitutional protection from . . .

of . in 4) .S 97 U , n v. (1 et se io Re 2re anig t L. 4s7t Prri ma x. ad ur fa Te Br03 c 2- c., on DIne 4 5 40 & In c " ., n J ,” c. , D9u1, In n, : rs 0de e, tso nt 39 il it r e Bu (Wh obe dm h, ); R n c 3, ng Ame Wel 32 ti ) en 85 . ss (19oss t ;t6) S.di nm Firs tb()e1r97 U. e , no J. re 7 meR 8 G -7 deg . 8 41 . 67 uth v 20 v ,7 j z , te c. hi c. 9, e d rt 9, In (W In 74 than Ge 19

33. See §§ 12-14, 15-16, infra. 34. See, e.g., Branzburg v. Hayes, 408 U.S. 665 (1972); Laird v. Tatum, 408 U.S. 1 (1972). Indeed, the Court specifically re¬ jected, in Herbert v. Lando, 441 U.S. 153,

§ 12-13

COMMUNICATION

AND

879

EXPRESSION

recover damages create "breathing space” for the exercise of first amendment rights.36 Yet a publisher’s decision to print or broadcast a libelous story is only partly influenced by the probability of winning or losing a lawsuit. While the publication decision involves a complex calculus, the salient cost factors are likely to be the probability that the publisher will be sued, and the cost of defending if suit is brought. Rules affecting the publisher’s ultimate liability are thus likely to be marginal considerations in the decision to publish. One commentator’s analysis concludes that the New York Times privilege has failed to prevent self-censorship because it does little to reduce the costs of defending against libel claims.37 If that is correct, a less stringent "fault” standard will not significantly increase the amount of self¬ censorship. Short of an absolute privilege to defame which would accord no weight to society’s pervasive interest in preserving reputa¬ tion, the most efficacious strategy to reduce self-censorship may be liberal use of summary judgment procedures in defamation actions, so as to avoid long and costly litigation.38 There is no reason summary judgment should be less available under Gertz than under New York Times , at least after the substance of the Gertz "fault” standard has become apparent. Thus Gertz seems justifiable in broad outline as an accommodation making it easier for aggrieved individuals to obtain redress of reputational injuries without significantly affecting the level of self-censorship by the press. Even before Dun & Bradstreet complicated the Court’s task further, the Court had begun the attempt of defining the difference between private and public persons — between

those to whom

Gertz applies and

36. See Kalven, "The Reasonable Man and the First Amendment: Hill, Butts, and

tion law came under first amendment scru¬ tiny in New York Times precisely because

Walker,”

of the Court’s interest in protecting "[c]riticism of official conduct.” New York Times, 376 U.S. at 273. That such criti¬ cism might make the defendant more like¬ ly to be liable for damages seems to contra¬ vene the spirit, if not also the letter, of New York Times and its progeny. Fortu¬ nately, the D.C. Circuit corrected both the

1967 Sup.Ct.Rev. 267, 299.

37. Anderson, "Libel and Press SelfCensorship,” 53 Tex.L.Rev. 422, 424-25, 435-36 (1975). Former Mobil Oil Chair¬ man William Tavoulareas testified that he had spent $1.8 million in legal fees, before appeals, in his libel suit against the Wash¬ ington Post. See Lewis, "New York Times v. Sullivan Reconsidered: Time to Return to 'The Central Meaning of the First Amendment/ ” 83 Colum.L.Rev. 603, 613 (1983). The Tavoulareas case also illus¬ trates just how high the costs of libel litiga¬ tion — monetary and otherwise — can be for media defendants. In initially setting aside the district judge’s grant of judgment to the defendant, the D.C. Circuit panel held in Tavoulareas v. Piro, 759 F.2d 90, 121 (D.C. Cir. 1985), that a newspaper’s policy of "hard hitting investigative jour¬ nalism [or] sophisticated muckracking ... is relevant to the inquiry of whether a newspaper’s employees acted in reckless disregard of whether a statement is false or not.” One can scarcely imagine a for¬ mulation more at odds with the first amendment than an equation of zeal in investigative reporting with evidence of recklessness. The Aentire field of defama¬ nd er so n,s up r

holding and the approach of the Tavou¬ lareas panel in its 7-1 en banc reversal of the panel’s decision. See Tavoulareas v. Piro, Nos. 83-1604, 83-1605, slip op. (D.C. Cir. Mar. 13, 1987) (reinstating district court’s grant of judgment

to defendant).

of us to li ob pr Th be st e in e ha croa su ac in th c j s is nlt le mm t ijpa udg th exth pu as be a h l m u d at t e b¬ e r e e s wi li n y st ici of ntmi um is pe at al o nj pt t cau Di thi thshe co f ud i o slsi e r e U. ctuIln 4ea4sr v. Prries on in H’us mpe S. 3sl o t t ml th , to s.yu ap xmi 12 & chn. en9 (1 i c 9 is 0 peh re s to reppo bu ns teh 79)Co vi a i a , nc rse t on e , ur ew tu rt sru se th , mo eth t po d n si at ns e re in li memdaca is niob di ju ti be s tlev Lsc on L Iln ryes1.0 Sedgm An . ibou ob c 6 e en de ., by di of Fo erra fu 25 r (1 S. t g Ct , sc r ty e rt 05 so 98 . us § 12 d hersu su th n 6s)e si .e is bj pr -1 on ec a. 2, t,

4

880

COMMUNICATION

AND

EXPRESSION

Ch. 12

those who remain under the regime of New York Times. In drawing that line, two key points of reference are (1) that discussion concerning "public” persons is close to the "core” of seditious libel and political speech, and (2) that distinctions between the public and private sectors are increasingly blurred. Many individuals by virtue of their positions or their power are intimately involved in the resolution of public questions or the shaping of events, and are private analogs of public 9

officials.39 The Gertz Court was explicit in saying that the only legiti¬ mate state interest underlying the law of libel is the compensation of individuals for harm to their reputational interest,40 and one teaching of New York Times Co. v. Sullivan is that reputational interests are attenuated for persons who become affiliated with government exactly because government itself, unlike individuals, has no legitimate reputa¬ tional interest: government cannot be defamed. With these points of reference in view, the Court in Gertz recognized three categories of

.

public persons. The first category includes persons who have "general fame and notoriety in the community,” and are public figures for all purposes.41 Presumably these are the individuals who can most easily induce the media to publish their replies to defamatory attacks. They are people whose fame precedes them, those of whom the jury has probably heard prior to the litigation.42 But notoriety created by the publication of the defamatory communication itself does not suffice to make the plaintiff "public”; sustained media attention over a long period is ordinarily required to create "general fame or notoriety in the community.” 43 The second category consists of involuntary public figures.44 The majority in Gertz rightly sensed that instances of such persons should be rare.45 The category nonetheless appears to include persons who are involved in or directly affected by the actions of public officials. Thus the magazine distributor in the Rosenbloom case46 arrested by the police for distributing obscene literature would be an involuntary public figure with respect to reports or comments

about the arrest.47

Most public figures are likely to belong to the Court’s third catego¬ ry,48 consisting of persons who have "voluntarily injected themselves into a public controversy in order to influence the resolution of the issues involved.” 49 This formulation requires a trial court to make two determinations: first, that there is a "public controversy”; and second, that the nature and extent of the person’s participation in the contro¬ versy reached some critical mass at which "voluntary injection” oc39. See Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-64 (1967) (Warren, C.J., concurring). 40. 418 U.S. at 341, 349. 41. Id. at 351-52. 42. Id. at 352. 43. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 78, 86 (1971) (Marshall, J., dissenting) (persons "first brought to public attention by the defamation that is

45. Id. 46. Rosenbloom 403 U.S. 29 (1971).

v. Metromedia,

Inc.,

47. See Time, Inc. v. Firestone, 424 U.S. 448, 476 (1976) (Brennan, J., dissenting); Rosenbloom, 403 U.S. at 62 (White, J., con¬ curring). Cf. Anderson, supra note 37, at 450-51. 48. Gertz, 418 U.S. at 345.

the subject of the lawsuit” remain private). 44. Gertz, 418 U.S. at 345.

Id.

§ 12-13

COMMUNICATION

AND

EXPRESSION

881

curred. The apparent difficulty of this test is that it is vulnerable to the very objection that persuaded the Court to repudiate the test of the Rosenbloom plurality! Now judges are asked to determine whether a controversy is "public/’ 50 a determination indistinguishable to the naked eye from whether the subject matter is of public or general concern. The difficulty became apparent in Time, Inc. v. Firestone ,51 a libel action by Mary Alice Firestone against Time magazine for errone¬ ously reporting that her husband had been granted a divorce on grounds of her extreme cruelty and adultery, when the technical grounds were in fact extreme cruelty and lack of "domestication.” The evidence supporting the finding of non-domestication clearly indicated that what the judge escapades. But Time for the divorce, and mental anguish. The

had in mind was Mrs. Firestone’s extramarital was technically wrong in its report of the grounds a jury awarded Mrs. Firestone $100,000 for her Supreme Court held that Mrs. Firestone was not

a public figure, and remanded the case for determination of Time’s "fault” under the Gertz standard. Justice Rehnquist, writing for the Court, concluded without explanation that a divorce proceeding of a prominent socialite was not a matter of "public controversy.” 52 His opinion substantially discounted the strong public interest in the ability of the press to report what transpires in the courts.53 The divorce courts are different, said the Justice, because people are compelled to use the courts in order to obtain divorces.54 A more plausible explana¬ tion is that the Firestone majority decided that gossip about the rich and famous is not a matter of legitimate public interest.55 A fairly high threshold of public activity is evidently necessary for a finding that a person has voluntarily plunged into a public controver¬ sy. Elmer Gertz was not deemed a public figure although he had voluntarily accepted employment as counsel in a lawsuit which would 50. If instead judges are asked simply to determine whether something has be¬ come a matter of controversy, perhaps the difficulty can be mitigated. 51. 424 U.S. 448 (1976). 52. Id. at 454. 53. See id. at 476-481 (Brennan, J., dis¬ senting), comparing Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (press cannot be held liable for publishing truth¬ ful identity of rape victim where such iden¬ tity was a matter of open court record). 54. Time, Inc. v. Firestone, 424 U.S. at 454. 55. See Christie, "Injury to Reputation and the Constitution: Confusion Amid Conflicting Approaches,” 43, 55 (1976).

75 Mich.L.Rev.

The Court’s latest struggle with lic figure-private figure distinction predictably inconclusive results. held earlier the same Term that and continuing access to the media one of the accouterments of having a public figure,” Hutchinson

443 U.S. Ill, 136 (1979) (holding that sci¬ entist working in a public hospital who received a federal research grant was not a public figure), eight Justices agreed in Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157 (1979), that the plaintiff — who had been cited, sixteen years before the con¬ tested publication appeared, for refusing to testify before a grand jury investigation of espionage — was not a public figure. "To hold otherwise,” the Court stated, "would create an 'open season’ for all who sought to defame persons convicted of a crime.” Id. at 169. Justice Blackmun, whom Jus¬ tice Marshall joined, concurred in the re¬ sult, disagreeing with what he called the implication in Justice Rehnquist’s opinion that "a person becomes a limited-issue pub¬ lic figure only if he literally or figuratively 'mounts a rostrum’ to advocate a particu¬ lar view.” Id. at 169. Justice Brennan

the pub¬ brought Having

dissented, arguing that the plaintiff "quali¬ fied as a public figure for the limited pur¬ pose of comment on his connection with, or

"regular ... is become

involvement in, espionage in the 1940’s and 1950’s.” Id. at 172 (citation omitted).

v. Proxmire,

882

COMMUNICATION

AND

EXPRESSION

Ch. 12

predictably attract wide media attention; he was also a prominent member of the bar and a civic activist.56 Mrs. Firestone was not a public figure although she was a prominent member of Palm Beach Society whose activities had received constant media attention antedat¬ ing her divorce trial; the trial itself had been fully reported in Miami area newspapers, and Mrs. Firestone held several press conferences during the proceedings.57 Exactly how she might have done more to attract public attention is unclear. As Dun

& Brads treet so clearly demonstrated,

the Gertz Court

hardly settled all the issues on the non-public side of libel law. The courts have scarcely begun the task of differentiating between issues of public and private concern 58 — a subject one can fairly assume will give judges at least as much difficulty as the public figure-private figure distinction. In addition, within the broad stricture that liability cannot be imposed without fault even in a non-public plaintiffs defamation suit, Gertz left to the states the authority to define the appropriate standard of liability in cases of alleged defamation by the media. Most states are likely to adopt some form of negligence standard, imposing at least a duty to use reasonable care with respect to the truth or falsity of the defamatory publication.59 But it may take years to give this notion content on a case-by-case basis. And quite apart from such delay, notions of negligence tend to remain inherently vague, with accumulat¬ ed precedents serving only to mark off the outer limits of liability.60 The requirement of reasonable care in physical torts is deliberately made flexible so as to permit the judge and jury to consider the facts of each case and to balance the equities accordingly. But where first amendment rights are at stake, such jury flexibility is dangerous inasmuch as jurors are likely to represent majoritarian attitudes to¬ ward unpopular speakers and ideas. Given its heavy dependence on how jurors will react, "fault” is not a standard which promises the predictable results or creates the certain expectations without which journalists and others may too often "kill” or emasculate reports they believe to be true because of the threat of a libel action. The conclu¬ sion is not that "fault” is an inappropriate standard, but that the first amendment should be understood to require the states to develop bodies of law markedly clearer and more coherent than is customary in the 56. Gertz, 418 U.S. at 351-52. 57. Time, Inc. v. Firestone, 424 U.S. at 453-55; id. at 484-490 (Marshall, J., dis¬ senting).

58. In attempting to define this distinc¬ tion, the Court will surely encounter the difficulties that Justice Marshall envi¬ sioned in his dissenting opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 79 (1971). Justice Marshall stated that "all human events” were arguably of public interest, and that courts were not compe¬ tent to judge "what information is relevant to self-government;” the Gertz majority expressly supported Justice Marshall’s

view. In any event, the class of "matters of public interest” will surely be broader than those cases which merely involve "public figures.” The courts no doubt will — and certainly should — be reluctant to decide that certain issues are not worthy of public interest and debate. To do so would risk impermissible government regulation of speech based on its subject matter. Cf. Chicago Police Dept. v. Mosley, 408 U.S. 92 (1972).

See §§ 12-3, 12-8, supra,

and

§ 12-18, infra. 59. See Anderson, 458.

supra

60. See id. at 460-61.

note 37, at

§ 12-13

COMMUNICATION

AND

EXPRESSION

883

common law of negligence.61 Especially to permit adequate utilization of summary judgment procedures, it may be thought necessary — since the Court itself has offered no guidance — to distill from the decisional law a collection of publishing "rules of the road” which, if followed, will shield prudent publishers from defamation actions. Absent such rules, grave dangers lurk in the current standard. In every case under the Gertz rule there is one sense in which a publisher is never innocent: he published a statement knowing that it could ruin a reputation.62 A publisher always has the fail-safe option of avoiding liability by not printing or broadcasting the defamation. But it is this self-censorship that the Court since New York Times has sought to minimize, in Gertz by recognizing a privilege for a publisher who takes "every reasonable precaution to ensure the accuracy of its asser¬ tions.” 63 Yet what is "reasonable” may turn in part on the societal value one assigns to a particular statement. The majority in Time, Inc. v. Firestone 64 was sharply split on whether Time had been negligent in erroneously reporting the grounds of Mrs. Firestone’s divorce. The evidence concerning Time’s actions showed that the editors had exer¬ cised great care in checking the accuracy of their report before it appeared in the magazine. Time’s fault, if it was fault, consisted in failing either to understand the niceties of the law or to penetrate the ambiguities of the decision awarding the divorce. On the record, Justice Rehnquist, joined by Chief Justice Burger and Justice Blackmun, could find fault; Justices Powell and Stewart, concurring, could not. The majority therefore remanded

the case for an explicit determi¬

nation by the Florida courts of Time’s fault. The Firestone plurality evidently calculated fault in substantial part by reference to an assess¬ ment of the social value of the speech, the worth striking the plurality as so slight that almost no accuracy by Time could ever principled way of assaying the Gertz itself was a rejection of a

amount of verification of the story’s suffice. But one looks in vain for a value of specific communications, and subjective test based on judicial notions

of what speech is in the public’s legitimate interest. Fault determined by this method easily transmutes into strict liability. More fatally, it ceases to yield a standard which accommodates the competing expres¬ sive and reputational interests, becoming instead an abdication of the balancing duty to the fact-finder under the guise of determining

the

publisher’s negligence.65 Different but no less serious pitfalls await the alternative ap¬ proach, in which a definition of "fault” is derived by reference to an objective standard: did the defendant use the skill and knowledge normally exercised by the profession of journalism? Among the factors to be considered would be the medium, the size and location of the Id.; Robertson, "Defamation and the61. First Amendment: In Praise of Gertz v. Robert Welch, Inc.,” 54 Tex.L.Rev. 199, 257 (1976). 62. Gertz, 418 U.S. at 389-90 (White, J., dissenting). 63. Id. at 346 (Powell, J., principal opin¬ ion).

64. 424 U.S. 448 (1976). 65. See Anderson, "A Response to Pro¬ fessor Robertson: The Issue is Control of Press Power,” 54 Tex.L.Rev. 271, 274-276 (1976).

884

COMMUNICATION

AND

EXPRESSION

Ch. 12

publisher or broadcaster, its resources and technological capabilities, and deadline pressures. Professional customs would normally be proved by expert testimony. Whatever substantive standards might emerge from a duty to imitate a reasonable and careful publisher in the search for a more objective definition of "fault”, the development would constitute a subtle intrusion into the editorial process and a source of pressure upon the news media to conform to professional norms. In Miami Herald Publishing Co. v. Tornillo,66 the Supreme Court struck down a Florida statute granting a right of reply to political candidates attacked by newspapers because editors cannot be compelled, consistent with the first amendment, to "publish that which 'reason’ tells them should not be published.” But a similar intrusion could result from elevating a norm that a defamed individual should ordinarily be grant¬ ed space or time to rebut charges, into a rule that a publisher who grants "equal time” in a story is not normally negligent.67 Gertz may thus be profoundly significant if it compels the courts, in the process of giving meaning to "fault,” to elaborate a body of law which measures responsibility in journalism. The very existence of that body of law may be a threat of further encroachments on the liberties of the press inasmuch

as its rules will be adaptable to other and more comprehen¬

sive systems of press regulation. The adoption of a "fault” standard thus seems to create more problems than it solves. A final criticism of the Gertz "reform”— but also a possible avenue for reform of a more genuine sort — turns on the Court’s definition of recoverable damages. Gertz forbade the award of presumed or punitive damages to plaintiffs who do not prove a defendant’s knowledge or reckless disregard of the falsity of the defamatory statement; failing such proof, a plaintiff must show actual damages. The rationale for this damage limitation is that the state’s only legitimate interest is in compensating the defamed individual. Where juries have discretion to award damages far in excess of actual damages, the judgment serves as a penalty which exacerbates the problem of self-censorship. The rule that this rationale would appear to predict is required proof of tangible and quantifiable losses — but the Court expressly disclaimed this inten¬ tion.68 The "actual damages” which may be recovered include "impair¬ ment of reputation,” "personal humiliation,” and "mental anguish and suffering”.69 The practical operation of the Court’s broad examples of actual injury was apparent in Mrs. Firestone’s defamation action against Time magazine. Before trial, plaintiff withdrew her claim for 66. 418 U.S. 241, 256 (1974), discussed in § 12-25, infra. Justice Brennan, joined by Justice Rehnquist, observed in a concur¬ ring opinion, id. at 258, that the decision left open the possibility that a right-toreply provision might be constitutional in the specific context of a remedy for defa¬ mation. 67. Similarly, if courts evaluate jour¬ nalistic conduct by reference to "the stan¬ dards of investigation and reporting ordi¬ narily adhered to by responsible publishers,” Curtis Publishing Co. v. Butts,

388 U.S. at 158 (Harlan, J., plurality opin¬ ion) they may find themselves enforcing a bias against unorthodox journalism. See Anderson, supra note 37, at 466. 68. Gertz, 418 U.S. at 349-50. One thoughtful district court opinion has held that public figures may not recover puni¬ tive damages unless they also prove that they are entitled to compensatory dam¬ ages. See Schiavone Construction Co. v. Time, Inc., 646 F.Supp. 1511 (D.N.J. 1986). 69. Gertz, 418 U.S. at 349-50.

§ 12-13

COMMUNICATION

AND

EXPRESSION

885

damages to reputation, presumably to avoid placing her reputation in issue. The only claim of injury which went to the jury was her mental anguish, which the jury valued at $100,000.70 The point is not that intangible injuries such as humiliation and anguish are insignificant or not deserving of compensation, but rather that the rule requiring proof of damages this broadly defined does not succeed in its aim of limiting jury discretion. Limitations on damages do, however, have the support of at least one Justice,71 and the full Court has never squarely faced the constitutional dimension of a libel punitive damage award so large as to threaten the existence of a media defendant.72 A limit on recoverable damages in defamation cases — if not to an actual dollar amount, then certainly to actual, provable injury to reputation — would have the advantage of protecting the press in a clear, comprehensible way, without forcing judges and juries to contend with the metaphysical commands of the ’'actual malice” standard.73 So, too, would allowing "victims” of the press to sue for published retractions 74 avoid the perils of massive damage awards for defendants, although such a proposal runs directly into the holding of Miami Herald Publishing Co. v. Tornillo ,75 Similarly, allowing declaratory judgment actions for judi¬ cial findings of falsity protects against large damage awards,76 but also stretches the competence of courts and offers scant relief to plaintiffs who suffer actual harm.77 70. ing). Time, despite

Id. at 475 n. 3 (Brennan, J., dissent¬ That Gertz applied rather than Inc. v. Hill, 385 U.S. 374 (1967), the proximity of the Firestone facts

to a "false light” case, reflects the fact that the material was thought to be defamatory on its face, thus putting the publisher on notice. See note 10, supra.

fense of a return to strict liability but with punitive damages either disallowed, or al¬ lowed only if the defendant refuses to cor¬ rect or retract a statement clearly and convincingly shown to be false, see Epstein, "Was New York Times v. Sullivan Wrong? ,” 53 U.Chi.L.Rev. 782 (1986). 74. For such a proposal, see Franklin,

71. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 772-773 (1985) (White, J., concurring in the judgment). See also Anderson, "Reputa¬ tion, Compensation and Proof,” 25 Wm. & Mary L.Rev. 747, 749 (1984) (contending that "compensating individuals for actual harm to reputation is the only legitimate purpose of libel law today”); Note, "The Libel-Proof Plaintiff Doctrine,” 98 Harv.L. Rev. 1909 (1985) (applying a compensatory framework to doctrine governing plaintiffs whose reputations are already severely damaged). 72. Should

such a situation arise, the

media defendant might consider the pro¬ tection of the eighth amendment ban on "excessive fines.” See Aetna Life Insur¬ ance Co. v. Lavoie, 106 S.Ct. 1580, 1589 (1986) (finding that a $3.5 million punitive damage award potentially raised an "im¬ portant issue[ ]” under the excessive fines clause, but declining to reach that issue).

73. For an intriguing criticism of the "actual malice” standard and a careful de¬

"Good Name and Bad Law: A Critique of Libel Law and a Proposal,” 18 U.S.F.L.Rev. 1, 40-46 (1983). 75. 418 U.S. 241 (1974) (first amend¬ ment precludes state "right of reply” stat¬ ute requiring newspapers to print, on de¬ mand, replies of candidates for public office to attacks in newspapers). See § 12-4, su¬ pra, and § 15-5, infra. 76. For an interesting statutory propo¬ sal along these lines, see H.R. 2846, 99th Cong., 1st Sess. (1985). For a more conven¬ tional approach, see Schaefer, "Defamation and the First Amendment,” 52 U.Colo.L. Rev. 1, 17-18 (1980).

77. As Justice Harlan wrote, " 'truth’ is not a readily identifiable concept, and put¬ ting to the pre-existing prejudices of a jury the determination of what is 'true’ may effectively institute a system of censor¬ ship.” Time, Inc. v. Hill, 385 U.S. 374, 406 (1967) (Harlan, J., concurring in part and dissenting in part).

886

COMMUNICATION

AND

EXPRESSION

Ch. 12

But because Gertz and Dun & Bradstreet have left these and many other questions open,78 it seems apparent that the latest accommoda¬ tion between the first amendment and the individual’s reputational interests lacks coherence — and, in all likelihood, staying power. Whose reputation deserves more protection: Mrs. Firestone, according to the Court, is more deserving than Wally Butts, the football coach. She is a private person; 79 he is a public figure.80 Or is sports more important than divorce? Elmer Gertz, a prominent lawyer and defender of liberal causes, is more deserving than the unknown letter carriers whose reputations were attacked by the union they refused to join.81 And in Paul v. Davis 82 the Supreme Court held that a person who was stigmatized by mistaken police distribution to local merchants of a flyer bearing his name and picture and purporting to identify known shop¬ lifters had no federal cause of action. The Court went out of its way to suggest not only that state remedies provided due process but also that the reputational interest itself was not constitutionally cognizable.83 Surely a real concern for the private reputations Gertz was designed to protect would have counseled a more sympathetic approach. One can only conclude that the Court’s position is unstable and that, absent a more convinced majority, the Court will leave to the lower courts the task of filling out the substance of the Gertz and Dun & Bradstreet decisions.84 78. For a valuable summary of the com¬ plexity — and uncertainty — of the various libel rules, see the chart in The Supreme Court, 1984 Term, 99 Harv.L.Rev. 120, 219 (1985). 79. Time, Inc. v. Firestone, 424 U.S. at 455. 80. See Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). 81. See Old Dominion

Branch, 496, Nat.

Ass’n of Letter Carriers v. Austin, 418 U.S. 264 (1974). 82. 424 U.S. 693 (1976). 83. Id. at 710-12. Paul is also dis¬ cussed in Chapter 10, supra, and Chapters 15 and 18, infra. 84. Of particular importance in the lower courts have been the growing num¬ ber of lawsuits involving apparent fiction in which individuals believe themselves to have been defamed or their privacy to have been invaded by thinly veiled accounts of their lives, depicted so as to convey a harmful and false picture that readers or viewers will be led to think is accurate. For example, a Harvard psychiatrist sued initially for $6 million in damages and settled for $150,000 claiming that she was the basis for the suicidal lesbian character in the novel and film The Bell Jar. N.Y. Times, Feb. 3, 1987, at C17, col. 1. In a similar case, a psychologist who had con¬ ducted nude therapy sessions was awarded $75,000 in damages against an author who attended these sessions and based her nov¬

el Touching on her experiences. Bindrim v. Mitchell, 92 Cal.App.3d 61, 155 Cal.Rptr. 29 (1979), cert, denied 444 U.S. 984 (1979) (Brennan, Stewart, and Marshall, JJ., dis¬ senting). See also Pring v. Penthouse In¬ ternational, Ltd., 695 F.2d 438 (10th Cir. 1982); Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980); Middlebrooks v. Curtis Pub¬ lishing Co., 413 F.2d 141 (4th Cir. 1969); Fetler v. Houghton Mifflin Co., 364 F.2d 650 (2d Cir. 1966); Wheeler v. Dell Publish¬ ing Co., 300 F.2d 372 (7th Cir. 1962). Such losses through settlement or litigation cre¬ ate pressures on authors and publishers to limit creative expression based on actual events. Thus, the standard of liability for defamation in these suits becomes of cen¬ tral importance. The defamation standard for nonfiction cases as set out in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and its proge¬ ny is inapposite to defamation in fiction. If only a showing that a defendant know¬ ingly or recklessly made a false statement "of and concerning” the plaintiff, id. at 274, creates liability, then a literary defen¬ dant has essentially no defense once an individual can find himself or herself in a story — fiction by definition involves delib¬ erately "false” statements. Once the iden¬ tification threshold is met, see, e.g., Pring, supra, 695 F.2d at 442 ("the charged por¬ tions in context could be reasonably under¬ stood as describing actual facts about the plaintiff or actual events in which she par¬ ticipated”); Geisler, supra, 616 F.2d at 639

§ 12-14

§ 12-14.

COMMUNICATION

The Conflict Between Over Information

AND

EXPRESSION

Free Speech

and Personal

887 Control

As the Gertz 1 standard is fleshed out in subsequent cases, it will be important not to lose sight of the fact that constitutional rights beyond freedom of speech and press are at work in this area. Both privacy and reputation, as § 15-16 shows, involve interests of constitutional dimen¬ sion; when government acts to limit the untrammeled gathering, recording, or dissemination of data or statements about an individual, of course it inhibits speech — but it also vindicates the individual’s ability to control what others are told about his or her life. Such control constitutes a central part of the right to shape the "self ’ that any individual presents to the world. It is breached most seriously when intimate facts about one’s personal identity are made public against one’s will and in defiance of one’s most conscientious efforts to share those facts only with close relatives or friends. It is breached, perhaps less seriously but with unmistakable force, when one’s good name is deliberately and falsely besmirched, doing violence to one’s public identity. Not surprisingly, therefore, defamation has long been regarded as a form of "psychic mayhem,” not very different in kind, and in some ways more wounding, than physical mutilation.2 (''reasonable reader must rationally sus¬ pect'’ character is plaintiff); Bindrim, su¬ pra, 92 Cal.App.3d at 78, 155 Cal.Rptr. at 39 (reasonable person "would understand that the fictional character . . . [was] the plaintiff acting as described”), damages are awarded on what amounts to a strict liabil¬ ity basis. Yet much fiction might be sti¬ fled by that prospect. Hemingway’s The Sun Also Rises, based on his European experiences with companions who might have disliked their fictional counterparts, might never have been published without more protection than that of New York Times v. Sullivan. The same is true of the works of F. Scott Fitzgerald, whose charac¬ ters — for example, the protagonist. in The Great Gatsby — were thought by many to be based on real people. This dilemma has engendered a spate of legal commentary on the subject. Some commentators advocate a new standard of liability to protect fiction, see, e.g., Garbus and Kurnit, "Libel Claims Based on Fiction Should Be Lightly Dismissed,” 51 Brooklyn L.Rev. 401, 405 (1985); Franklin & Trager, "Literature and Libel,” 4 Comm./Ent.L.J. 205, 223-30 (1982); Note, "Toward a New Standard of Liability for Defamation in Fiction,” including amation Fiction:

92 Yale L.J. 520, 538-42 (1983), an absolute privilege against def¬ suits. Comment, "Defamation in The Case for Absolute First

Amendment Protection,” 29 Am.U.L.Rev. 571, 593 (1980). Others suggest that no new constitutional protection or standard may be warranted, see, e.g., Schauer, "Li¬ ars, Novelists, and the Law of Defama¬ tion,” 51 Brooklyn L.Rev. 233, 247, 258

(1985), or that fiction should receive no first amendment protection at all. Bork, "Neutral Principles and Some First Amendment Problems,” 47 Ind.L.J. 1, 28 (1971). A plausible first amendment standard would hold a fiction writer liable only where she is shown by "clear and convinc¬ ing” evidence to have created an impres¬ sion that a supposedly fictional character is really a true portrait. See, e.g., Schauer, supra, at 259; Franklin and Trager, supra, at 222; Note, 92 Yale L.J. at 538. No author of fiction should be held liable for negligently suggesting an actual person in fiction. But, if a defendant attempts to exploit an audience’s tendency to believe that what she calls "fiction” is actually truth, it should suffice for a plaintiff de¬ famed as a result to si ow, with "clear and convincing” evidence, that the defendant’s disclaimer that the work is fictional (and that any resemblance to actual persons, living or dead, is purely coincidental) was offset by a calculated effort, through pro¬ motional or other material, to convey the impression that the fictional work is actu¬ ally a truthful account of real persons.

1. Gertz v. Robert Welch, Inc., 418 U.S. -14 § 12-13, supra. 323 (1974), discussed § 12in 2. See Cahn, "Jurisprudence,” 30 N.Y. U.L.Rev. 150, 158 (1955). Even when the abuse of personal identity takes the form of portrayal in a falsely favorable rather than unfavorable light, the state has a legitimate interest in providing redress.

888

COMMUNICATION

AND

EXPRESSION

Ch. 12

So too, interests in property and livelihood continue to rest on a powerful constitutional base, as we point out in § 15-14.

When

an

actor or performer is deprived of the very source of his "ability to earn a living as an entertainer” 3 by another’s appropriation of his act, for example, the first amendment does not prevent government from fashioning an appropriate remedy. Just as the right to disseminate truthful information may be restricted to prevent the pirating of copyrighted material and other discrete configurations in which indi¬ viduals have specific property interests so long as no underlying idea or fact is thereby suppressed, so too the entertainer may be protected against the information predator.4 Thus, in the Human Cannonball Case, the Court concluded that a television station was not immune from liability arising from the station’s filming of a performer’s entire (15-second) act over his objection and broadcasting it on a nightly news show, thereby significantly injuring the performer’s ability to pursue his vocation by attracting a paying audience to watch his feat.5 Insofar as remedies against speech that defames, intrudes, or pirates are used to provide government with censorial devices of a kind we reject when we insist that the state has no protectable interest in its image, such remedies offend the first and fourteenth amendments. No more than that need be recognized in order to agree with New York Times Co. v. Sullivan. If the cumulative impact of defamation and false light remedies, remedies to protect privacy, and remedies to protect property interests in information about oneself, while not quite arming government with tools for silencing its critics, nonetheless equipped the state with mechanisms for reducing public discourse to unacceptably bland and uncontroversial levels — if robust public discus¬ sion were stilled or greatly chilled by the threat of jury censorship after See Time, Inc. v. Hill, 385 U.S. 374 (1967),

fended by what it characterized as the ex¬

discussed in § 12-13, notes 11, 70, supra.

ploitation of a "purloined manuscript.” Id. at 542. Like the television station’s use of Zacchini’s stunt, the Nation’s use of wordfor-word quotations from former President

3. Zacchini v. Scripps-Howard Broad¬ casting Co., 433 U S. 562, 576 (1977). Cf. International News Service v. Associated Press, 248 U.S. 215 (1918) (one news service may be enjoined from pirating the news gathered and reported by another news service). 4. Such

concerns

were

clearly para¬

mount in the Court’s decision in Harper & Row, Publishers, Inc. v. Nation Enter¬ prises, 471 U.S. 539 (1985). There a sixJustice majority upheld a finding of copy¬ right infringement against the Nation magazine, which had published excerpts from former President Gerald Ford’s memoirs before its official publication date. The Nation’s "scoop” had caused Time magazine to cancel a deal with Ford to publish a portion of the book. Although Justice O’Connor’s majority opinion, as well as Justice Brennan’s dissent, which was joined by Justices White and Marshall, expressly avoided the constitutional issues and reached only the question of first pub¬ lication rights under the copyright doctrine of fair use, the Court plainly seemed of¬

Ford’s memoirs tripped over the line be¬ tween journalism and theft. As the Court stated, "The Nation had every right to seek to be the first to publish information. But The Nation went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a ’news event’ out of its unauthorized first publication of a not¬ ed figure’s 561. See letics, Inc. S.Ct. 2971

copyrighted expression.” Id. at also San Francisco Arts & Ath¬ v. U.S. Olympic Committee, 107 (1987) (upholding grant of exclu¬

sive use of word "Olympic” Olympic Committee).

to U.S.

5. See Zacchini, supra note 3. Justice White wrote for the Court, joined by Chief Justice Burger and Justices Stewart, Blackmun and Rehnquist. Justice Powell filed a dissenting opinion, joined by Jus¬ tices Brennan and Marshall. Justice Ste¬ vens also filed a dissenting opinion.

§ 12-14

COMMUNICATION

AND

EXPRESSION

889

the fact — significant first amendment dangers would become relevant despite the absence of any clear risk that government will insulate itself from the critical views of its enemies. But in such cases, these first amendment dangers are offset to some degree by constitutional concerns of informational autonomy on the part of the individuals injured by such supposedly critical discourse. Within this zone, there can be no escape from continuing efforts to accommodate the value of uninhibited public discussion with the value of preserving control for individuals over what is known

and said about them by and to others.6

Finally, there comes a point at which only this latter value plays a significant role in a case — a point at which such public discussion as occurs is wholly parasitic upon a clear invasion of an individual’s right to retain control over personal information.7 Nothing in the Court’s defamation decisions, and nothing in the three decisions coming closest to addressing the conflict between 6, The Court accommodated a conflict between these values in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 22 (1984), where the Court considered "whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pre-trial discovery process.” Rhinehart, the leader of a small religious order, filed a defama¬ tion action against the Seattle Times. In the course of discovery, the trial court com¬ pelled the religious order to produce exten¬ sive membership records, but it also pro¬ hibited the newspaper from disclosing the contents of the material. The Supreme Court unanimously ruled that the trial court’s action was subject to first amend¬ ment scrutiny, but nonetheless proper. The test applied was "whether the practice in question furthers an important or sub¬ stantial government interest unrelated to the suppression of expression and whether the limitation of First Amendment free¬ doms is no greater than is necessary or essential to the protection of the particular

speech and privacy,8 remotely sugients’ names, addresses, and grant amounts did not violate freedom of the press since state’s "interest in protecting the privacy of those it aids through public assistance is paramount and compelling”). But see Cul¬ len v. Grove Press, Inc., 276 F.Supp. 727, 728-29 (S.D.N.Y.1967) (noting that film de¬ picting conditions inside Massachusetts in¬ stitution for criminally insane concerned a matter "of great interest to the public gen¬ erally” and refusing to enjoin its exhibi¬ tion). A Massachusetts court erred by fail¬ ing to appreciate the film’s public value and barred its showing, except to profes¬ sional groups, despite the absence of com¬ plaint any of theSeeinstitution’s inmatesv. or theirby families. Commonwealth Wiseman, 356 Mass. 251, 249 N.E.2d 610 (1969), cert, denied 398 U.S. 960 (1970) (over dissent of Harlan, J., joined by Doug¬ las and Brennan, JJ.).

to ri ha (n (1 46 97 gh S. s 9 ew 5)v s itt ha on ra pu governmental interest involved.” Id. at 32 ic o ppaide p b c Ti s r m a b ti f ubpent e at (citations omitted). Pointing out that the e ec ecli me m r i s o l t rd (m 38er U.’s 37 ic (t1y In om hv. Hi , newspaper could publish the material if it c. e ll 96 S. ); ag 5 4 , az po fo in7) li be he ca obtained it outside the discovery process, ab r in r¬ ld a nn c le e c o u l p i o t not¬ ur if t id. at 34, Justice Powell’s opinion also n f n r r l d a i orate re es kn v es i pl y ai al ta vi ed that "[t]here is an opportunity ... for e ck s ow ate d le n P M D v S f b u t . i a a a u m l litigants to obtain — incidentally or pur¬ al s ls if il ng il b i i l s t th is st s 9h7he (’1s U. Co eh 44f y(h posefully — information that not only is ir¬ . o 3 at h at S ol s 979 in feo di pe cr) st , od) im . relevant but if publicly released could be g r ng na ; po at im na lt of ju of inth pu si tr ut damaging to reputation and privacy. The ve bl ng w me p ies warle ni uth eof ¬ ic it er s le fu fe i government clearly has a substantial inter¬ atv ho tt a m l n f f c s o i ir ennd f ta deou ou s iioo ut est in preventing this Csort ox of abuse of its st rrst v. Fo rtesioCi Cnflat Ca am te , B , . e n ro potential for re en n ty processes.” Id. at 35. Such e st(f th ad 41 sU. tre 24 (1 Co Pu nd ., 97 S. ll 5 in abuse "is sufficient justification 9 ca for the au¬ bl me dwii st co 4) pu ve is nt ag n r h n a b thorization of protective orders.”inCId. at 36 s d s i i l of ttghh sc Th i li Ti ic nv. )Hi n (footnote omitted). i gor s g s . s e ll t e h mi m t toepe p. "f tnht in eCro ted an de ). Co e v. al c u e d x 7. See, e.g., McMullan v. WohlgemutCoh, hn by Hi se is st ca li rt’ pr isi ll re se iv ona 453 Pa. 147, 164, 308 A.2d 888, 897 (1973),, 42 " ght s , F t U P s s s a i h r n D n ” se 0 cy d rs e i e d v appeal dismissed 415 U.S. 970 (1974) (state erd 12 12 t 76 Co ac Am fa 07 05 ma lu y e ( 1 1 n , , 19 m. 26 d ti 27 statutes barring disclosure of welfare recip¬ 7 4- me on 26) L. . Re 68 nt 75 , , v. ” U.

890

COMMUNICATION

gests that, when

AND

EXPRESSION

this point is reached, government

Ch. 12 must exalt an

abstract right to know,9 here reduced to a right to gossip, above the deeper concerns of personhood. On the contrary, once this point is reached, it would deprive individuals of liberty or property without due process of law to provide no legal remedy.10 Both accommodating free speech values with those of informational autonomy, and defining the point at which only the latter are at stake, involve difficult judgments of degree. One helpful consideration, at least, is the extent to which the harm done by a statement is truly of a sort that "more speech” could not possibly cure. To be sure, the truth may never quite catch up with a lie, but at least in cases of injured reputation a chance to clear one’s name after the fact may substantial¬ ly reduce, if it cannot wholly erase, the harm. In cases involving clear breaches of privacy, however, the very idea that more talk could do anything but add insult to injury betrays a misunderstanding of the character of the harm. Once the cat is out of the bag, it cannot be put back. To this degree, a return to the concept at the heart of Chaplinsky11 — the elimination of those communications "which by their very utterance inflict injury” 12 — may provide one of the few steady guides in a poorly charted sea. § 12-15.

The Assimilation Amendment

of Commercial

Speech

into the First

In the preceding sections, we have examined the Supreme Court’s attempts to elaborate a doctrine denying protection to communications "which by their very utterance inflict injury.” 1 If the state may treat murder as injurious, it follows that it may forbid solicitation to murder, or the placing of an advertisement offering a reward for the first person to kill a designated enemy. More generally, an advertisement propos¬ ing an unlawful transaction may be forbidden on the theory that the harm threatened is within government’s power to prevent — and that more speech cannot be expected to avert it.2 In Pittsburgh Press Co. v. 9. Cf. § 12-19, infra. See generally Hill, supra note 8; Comment, "An Accom¬ modation of Privacy Interests and First Amendment Rights in Public Disclosure Cases,” 124 U.Pa.L.Rev. 1385 (1976); Bloustein, "The First Amendment and Pri¬ vacy: The Supreme Court Justice and the Philosopher,” 28 Rutgers L.Rev. 41 (1974); Nimmer, "The Right To Speak from Times to Time: First Amendment Theory Ap¬ plied to Libel and Misapplied to Privacy,” 55 Calif.L.Rev. 935 (1968); Kalven, "Priva¬ cy in Tort Law — Were Warren and Brandeis Wrong?,” 31 Law and Contemp.Prob. 326 (1966); Prosser, "Privacy,” 48 Calif.L. Rev. 383 (1960); Warren & Brandeis, "The Right to Privacy,” 4 Harv. L.Rev. 193 (1890). 10. In Paul v. Davis, 424 U.S. 693 (1976), the Court assumed the existence of a state remedy against official defamation of the plaintiff; thus the holding of that case, denying a federal remedy in the cir¬

cumstances, is not authority against the conclusion reached in text. See § 15-16, infra. But see Zacchini, supra note 3, at 433 U.S. at 578 (dictum) (state could confer press immunity from damages for pirating, as a matter of state law). 11. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 12. Id. at 571-72. 1. Chaplinsky v. New Hampshire, 315 5 §§ 12-10 to 12U.S. 568, 572 (1942). See § 12-1 14, supra. 2. Cf. Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring): "If there be time to expose through discus¬ sion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”

§ 12-15

COMMUNICATION

AND

EXPRESSION

891

Pittsburgh Commission on Human Relations ,3 for example, the Court upheld governmental power to forbid sex-designated help-wanted adver¬ tisements where the refusal to interview or hire on a gender-neutral basis would have constituted unlawful employment discrimination. Unlike an advertisement against the Equal Rights Amendment, for example, a help- wan ted ad that appears under a "women need not apply” column threatens, without any further opportunity for dialogue, to cause an injury that government has power to prevent. So long as inflicting the injury is something that government has not attempted to make unlawful, however, such a rationale is unavailable. Thus deci¬ sions suggesting that government may forbid the advertising of harmful commodities while leaving people free to purchase them if they wish 4 plainly go beyond the theory suggested here. Such decisions might be thought defensible because the advertiser seeks to earn money in a marketplace beyond that of ideas. But as the series of decisions that have come to be known as the commercial speech cases illustrate, the fact that an

advertiser seeks a profit

certainly cannot justify stripping the communication of all first amend¬ ment protection. Notwithstanding its suggestion to the contrary in its three-page opinion in Valentine v. Chrestensen ,5 the Court by the next year was suggesting that commercial speech must receive some protec¬ tion where the primary motive of the individual appeared non-commer¬ cial despite the solicitation of money.6 Within less than a decade, Justice Douglas, who had joined the unanimous Chrestensen opinion, admitted that the ruling in that case had been "casual, almost off¬ hand,” and that it had not "survived reflection.” 7 New York Times Co. v. Sullivan ,8 after all, upheld the right of a newspaper to publish a paid 3. 413 U.S. 376 (1973). Justice Powell’s opinion for the majority was joined by Jus¬ tices Brennan, White, Marshall and Relin¬ quish Chief Justice Burger and Justices Douglas, Stewart and Blackmun each filed dissenting opinions.

that a state could also ban all cigarette and alcohol advertising); Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582, 584 (D.D.C. 1971), affd without opinion sub nom. Capital Broadcasting Co. v. Acting Attorney-General, 405 U.S. 1000 (1972)

In a related setting, the Court had little trouble approving, over first amendment objections, an antitrust injunction against the National Society of Professional Engi¬ neers’ rule prohibiting its members from submitting competitive bids. In National

(holding that "Congress has the power to prohibit the advertising of cigarettes in

Soc’y of Prof. Engineers v. United States, 435 U.S. 679 (1978), the Court, by an 8-1

enforcement of ordinance against distribu¬ tion of commercial advertising matter in the streets, as applied to distribution of leaflet urging visitors to attend exhibition of former Navy submarine for a fee).

vote, held that the injunction "represents a reasonable method of eliminating the con¬ sequences of the illegal conduct.” Id. at 698. The Court held that by lifting the organization’s ban on competitive bidding, the injunction did "nothing [to] prevent[ ] NSPE and its members from attempting to influence governmental action.” Id. at 698 n. 27 (citation omitted).

4. See, e.g., Posadas de Puerto Rico As¬

sociates v. Tourism Co. of Puerto Rico, 106 S.Ct. 2968, 2980 & n. 10 (1986) (holding that Puerto Rico may constitutionally ban advertising of casino gambling to residents of Puerto Rico and suggesting, in dictum,

any medium,” based on its power to regu¬ late commerce, without special regard to its authority to regulate electronic media). 5. 316 U.S. 52 (1942) (refusing to enjoin

6. See, e.g., Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943) (invalidating li¬ cense tax on sales, as applied to Jehovah’s Witnesses selling religious literature, em¬ phasizing that the sales were "merely inci¬ dental and collateral” to the principal aim of disseminating religious beliefs). 7. Cammarano v. United States, 358 U.S. 498, 514 (1959) (concurring opinion). 8. 376 U.S. 254, 266 (1964), discussed in § 12-12, supra.

892

COMMUNICATION

AND

EXPRESSION

Ch. 12

political advertisement. And Joseph Burstyn, Inc. v. Wilson 9 held that "operation for profit” does not strip film distributors of first amend¬ ment rights. Attempting to separate dominant from subsidiary motives was bound to fail, in part because the purveyor of ideas and information is likely to want both to convince others and to earn money,10 in part because selfish and selfless persuaders may both claim a right to first amendment

protection,11 and in part because the advertiser who

be¬

lieves deeply in profits has no less right "to preach [the adman’s] Gospel” 12 than the Marxist has to preach his. To be sure, the demise of Lochner v. New York 13 had taught that many were the victims rather than the masters of the economic system of contract and property,14 but any notion that only economic expression may be coerced or coercive would be untenable, and in any event rules wholly suppressing commercial information are hardly calculated to protect the economy’s oppressed.15 Finally recognizing these realities,16 in Virginia State Board of Pharmacy v. Virginia Consumer Council 17 the Court repudiated the Chrestensen dogma and invalidated a state statute declaring it unpro¬ fessional conduct for a licensed pharmacist to advertise the prices of prescription drugs. The Court stressed that "[t]hose whom 9. 343 U.S. 495, 502 (1952).

the suppres-

of commercial speech from the scope of first amendment protection. Insofar as the concern of commentators like Baker is that the protection of commercial speech

10. The petitioner in Chrestensen had printed on the reverse side of the leaflet a political protest against the refusal of New York City to grant him wharfage at a cityowned pier to exhibit his submarine. Alone, this non-commercial message could be distributed without violating the New York City ordinance. Because the Court

may help to rigidify the prevailing distri¬ bution of wealth or to preserve the class

perceived petitioner’s conduct as an obvi¬ ous attempt to evade the prohibition of the ordinance, 316 U.S., at 55, it did not seri¬

Court there invalidated Congress’ attempt to distribute political power away from the wealthiest groups by limiting campaign ex¬ penditures. See the discussion in § 16-58, infra.

ously consider whether petitioner’s motives in exhibiting his submarine were mixed, or why a guided tour of a submarine is less informative because a fee is charged. 11. Even if truly selfless action were imaginable, see T. Nagel, The Possibility of Altruism (1970), it is unthinkable that first amendment protection should extend only to saints. 12. Black, "He Cannot Choose But Hear: The Plight of the Captive Audi¬ ence,” 53 Colum.L.Rev. 960, 968 (1953). 13. 198 U.S. 45 (1905) (invalidating maximum hour law for bakers). 14. See § 8-6, supra. 15. Thus one cannot ultimately accept the interesting suggestion in Baker, "Com¬ mercial Speech: A Problem in the Theory of Freedom,” 62 Ia.L.Rev. 1 (1976), that the distinction between constitutionally-pro¬ tected personal rights and unprotected property rights, which emerged after the demise of Lochner, points to the exclusion

structure, their charge could more plausi¬ bly be leveled at decisions like Buckley v. Valeo, 424 U.S. 1 (1976), to the degree the

16. The basic tenet of Chrestensen

that

"purely commercial speech” was wholly unprotected by the first amendment had been repeatedly questioned. See Bigelow v. Virginia, 421 U.S. 809, 822 (1975) (re¬ versing conviction of newspaper editor who had violated a Virginia statute by publish¬ ing an advertisement for an abortion refer¬ ral service in New York, but stressing that the advertised activity related to the pub¬ lic’s "constitutional interests”): Pittsburgh Press Co. v. Pittsburgh Human Relations Commission, 413 U.S. 376, 388 (1973) (de¬ clining to overrule Chrestensen because, even if the first amendment protected com¬ mercial advertisement, the advertisement in question involved illegal gender discrim¬ ination); see also id. at 398 (Douglas, J., dissenting); id. at 401 & n. 6 (Stewart, J., dissenting). 17. 425 U.S. 748 (1976).

COMMUNICATION

§ 12-15 sion poor, their least

AND

893

EXPRESSION

of prescription drug price information hits the hardest are the the sick, and particularly the aged. A disproportionate amount of income tends to be spent on prescription drugs; yet they are the able to learn, by shopping from pharmacist to pharmacist, where

their scarce dollars are best spent.” 18 Even when the victims of an anti-advertising policy are less sympathetic and the policy’s objectives more compelling, the Court has insisted that commercial speech merits first amendment protection. In Linmark Associates, Inc. v. Township of Willinghoro ,19 for example, the Court, in a unanimous opinion by Justice Marshall, struck down a township ordinance prohibiting the posting of real estate "For Sale” and "Sold” signs to stem what the township perceived as the flight of white homeowners from a racially integrated community. Like the ban on prescription drug price infor¬ mation held unconstitutional in Virginia Board of Pharmacy, this was a content-based prohibition on speech; 20 like the ban in Virginia Board of Pharmacy , this one was not demonstrably necessary to achieve a compelling objective attainable in no other manner; 21 and, like the ban in Virginia Board, this one suffered from the independently fatal flaw of seeking its objective through "restricting the free flow of truthful information.” 22 Recognizing that under a paternalistic approach, it might be be¬ lieved that "the only way [a state] could enable its citizens to find their self-interest was to deny them information that is neither false nor misleading,” 23 the Court noted the existence of an alternative proach: "to assume that . . . information is not in itself harmful, people will perceive their own best interests if only they are enough informed, and that the best means to that end is to open channels

of communication

ap¬ that well the

rather than to close them.” 24 But the

choice "among these alternative approaches,” as the Court said in a powerful opinion by Justice Blackmun, "is not ours to make or the [state’s]. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment

makes

for us.” 25

The Court’s landmark holding in Virginia Board of Pharmacy rested on a combination of three notions. First, as we have just seen, the state’s rationale was itself forbidden by the first and fourteenth 18. Id. at 763. Similarly, in Bates v. Arizona State Bar, 433 U.S. 350 (1977), the Court held that a total ban on advertising of prices by private attorneys, as enforced by an integrated state bar and the state’s highest court, violates the first and four¬ teenth amendments. Left open were the possible validity of a ban on in-person solic¬ itation, or on advertising claims relating to the quality of legal services. Id. at 2700.

19. 431 U.S. 85 (1977).

over sales activity by increasing homeown¬ ers’ dependence on rumor and surmise”). Among alternatives to the ordinance, the Court suggested that the township could post "Not for Sale” signs to calm communi¬ ty fears. Presumably, the township could not compel homeowners to show such signs. See Wooley v. Maynard, 430 U.S. 705 (1977), discussed in § 12-4, supra, and § 15-5, infra. 22. Linmark

20. Id. at 93-94.

Associates, 431 U.S. at 95.

23. Id. at 97.

21. Id. at 95 ("respondents failed to es¬

tablish that this ordinance

is needed

assure that Willingboro remains

to

an inte¬

grated community’’); id. at 96 n. 10 ("ban¬ ning signs may actually fuel public anxiety

24. Virginia Board U.S. at 770. 25. Id.

of Pharmacy,

425

894

COMMUNICATION

AND

EXPRESSION

Ch. 12

amendments, which preclude regulating an activity on the premise that ignorance is preferable to knowledge. Second, the values of free speech are not limited to political dialogue but extend to any exchange of ideas or information that might make

individual choices better informed.28

And third, just as commercial information "is indispensable to the proper allocation of resources in a free enterprise system, it is also indispensable to the formation of intelligent opinions as to how that system ought to be regulated or altered. Therefore, even if the First Amendment were thought to be primarily an instrument to enlighten public decisionmaking in a democracy, we could not say that the free flow of information does not serve that goal.” 27 Still, maintaining some residual distinctions between commercial and ideological expression on the ground that the former is valued only for the "facts” it conveys while the latter "is integrally related to the exposition of thought — thought that may shape our concepts of the whole universe of man,” 28 may be more likely to succeed than did Chrestensen itself. However, the Court has repeatedly struggled with defining the differences between commercial and non-commercial speech, notwithstanding its offhand announcement that the difference between the two is based on "commonsense.” 29 Certainly, though, principled reasons for some such distinction do exist. Because the advertiser ordinarily "seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else,” 30 there is little "danger that governmen¬ tal regulation of false or misleading price or product advertising will chill accurate and nondeceptive commercial expression” 31 and thus "little need to sanction 'some falsehood in order to protect speech that matters,’ ” 32 particularly since "advertising is the sine qua non of commercial profits.” 33 The "greater objectivity” with which falsity 26. Id. at 763: "As to the particular consumer’s interest in the free flow of com¬ mercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” See also id. at 765: "So long as we preserve a predominantly free enter¬ prise economy, the allocation of our re¬ sources in large measure will be made through numerous private economic deci¬ sions. It is a matter of public interest that those decisions, in the aggregate, be intelli¬ gent and well informed. To this end, the free flow of commercial information is in¬ dispensable.” 27. Id. at 765. The Court in Virginia Board identified both a right of the phar¬ macist to advertise and a reciprocal right to receive the advertising, id. at 757; in Linmark Associates, 431 U.S. at 92, the Court noted the equal interest of the home¬ owner-seller and the would-be-purchaser in the free flow of commercial information. But the discussion in both cases focusing on the inadequacy of alternative sources of information implied that the Court was more concerned with protecting listeners

than with protecting speakers who commercial messages to deliver. 28. Virginia Board of Pharmacy, U.S. at 779 (Stewart, J. concurring).

have 425

29. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455-56 (1978). See also Vir¬ ginia Board of Pharmacy, 425 U.S. at 771 n. 24 (recognizing the "commonsense dif¬ ferences between speech that does no more than propose a commercial transaction, . . . and other varieties”) (citations omit¬ ted). But cf. Bolger v. Youngs Drug Prod¬ uct Corp., 463 U.S. 60, 81 (1983) (Stevens, J., concurring in the judgment) (remarking that "the impression that ’commercial speech’ is a fairly definitive category of communication . . . may not be wholly warranted.”). 30. Id. at 772 n. 24. 31. Id. at 777 (Stewart, J., concurring). 32. Id. at 778 (Stewart, J., concurring), quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974). 33. Virginia Board of Pharmacy, 425 U.S. at 772 n. 24. See also Bates v. Arizo-

§ 12-15

COMMUNICATION

AND

895

EXPRESSION

may be identified in most commercial contexts,34 and the corresponding¬ ly reduced danger of ideological censorship in the guise of consumer protection,35 also support broader power to suppress false advertising than to censor false or misleading speech generally. Furthermore, given the legitimate and often quite compelling governmental interest in protecting individuals from injury caused by deceptive practices against which they cannot effectively guard themselves, it may be "appropriate to require that a commercial message appear in such a form, or include such additional information, warnings, and disclaim¬ ers, as are necessary to prevent its being deceptive.” 36 Finally, inas¬ much as the falsity of an advertisement may be reliably ascertainable in advance of such irreparable harm as its dissemination may cause, features distinctive to commercial speech "may also make inapplicable the prohibition against prior restraints.” 37 To be sure, none of these generalizations is airtight; all of them rest upon the obviously troublesome distinction that plagued the Chrestensen doctrine — the distinction between talk for profit, and talk for other purposes. But it is one thing to make eligibility for first amendment protection turn on a difficult line, and quite another to use the same line for the far less momentous purpose of recognizing shades of difference in the application of settled principles. That there are and will remain hard cases — is the coal company’s ad proclaiming its concern for environment and warning of the hazards of nuclear fuel commercial speech or political expression?— is an insufficient reason either to return to the unprincipled extreme of excluding all commer¬ cial speech from first amendment protection,38 or to embrace the equally indefensible position that government cannot stop someone from selling 7-Up claiming it to be insulin. But, for a doctrine in its infancy, the "commercial speech” doctrine has demonstrated remarkable vigor. In recent years, the Court has regularly taken up commercial speech controversies, even if it has not settled the exact degree of protection owed to that form of expression.39 na State Bar, 433 U.S. 350 (1977) (rejecting applicability of overbreadth analysis to ban on price advertising by attorneys).

34. Virginia Board of Pharmacy,

U.S. at 772 n. 24.

35. See Note, "Freedom

425

of Expression

in a Commercial Context,” 78 Harv.L.Rev. 1191, 1195 (1965).

36. Virginia Board of Pharmacy,

425

U.S. at 772 n. 24. The Court contrasted Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (newspaper cannot be compelled to give political candidate space to reply to attack) with Banzhaf v. F.C.C., 405 F.2d 1082 (D.C.Cir. 1968), cert, denied sub nom. Tobacco Institute, Inc. v. F.C.C., 396 U.S. 842 (1969) (upholding requirement that broadcast licenses schedule counter¬ advertising indicating the health hazards of cigarette smoking). See also Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (upholding right of state to disci¬

pline lawyers for misleading omissions in advertising).

37. Virginia Board of Pharmacy,

425

U.S. at 772 n. 24. See § 12-36, infra.

38. See Redish, "The First Amendment

in the Marketplace:

Commercial

Speech

and the Values of Free Expression,” 39 Geo.Wash.L.Rev. 429, 450 (1971). For an attempt to provide a principled defense of this extreme position, see Baker, "Commer¬ cial Speech: A Problem in the Theory of Freedom,”

62 Iowa L.Rev. 1 (1976).

39. Focusing on the first amendment’s

protection of speech as opposed to speak¬ ers, the Court held in First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), that otherwise protected speech does not lose its constitutional shield simply because its source is a corporation. For a critical analysis, see Brudney, "Business Corpora¬ tions and Stockholders’ Rights Under the

896

COMMUNICATION

AND

EXPRESSION

Ch. 12

Indeed, the Court has sent conflicting signals on that fundamental question since its announcement of a "different degree of protection” for commercial speech in Virginia Board of Pharmacy. 40 The Constitu¬ tion affords "commercial speech a limited measure of protection, com¬ mensurate with its subordinate position in the scale of First Amend¬ ment values,” 41 but the actual application of this intermediate level of review has produced something less than a seamless web of precedent. In a powerful essay surveying the Supreme Court’s handiwork in this area, Professor Shiffrin concludes that the Court’s "general balancing methodology or . . . eclectic approach,” characterized by a reluctance to rely on "excessively romantic generalizations,” has been singularly appropriate to the commercial speech context.42 Accepting a lesser level of first amendment protection for any distinct category of speech does provoke discomfort — as does any constitutional view based on "tensions, compromises or accommodation” rather than "Fourth of July speeches.” 43 But principled accommodation of the conflicting values at stake may indeed be the most appropriate course in the commercial speech area, and the Supreme Court — albeit in a somewhat halting fashion — seems to have generally stayed that course in recent years. As an initial matter, the Court’s blithe admonition that the differ¬ ence between commercial and non-commercial speech is determined by "commonsense” 44 has not provided reliable guidance for the resolution of individual cases. Indeed, one of the problems with commonsense, as opposed to analytical, distinctions is that they vary enormously with the facts of particular cases. In Hoffman Estates u. Flipside,45 a "headshop” 46 challenged a village ordinance which required a business to obtain a license and keep certain detailed records if it sold any items "designed or marketed for use with illegal cannabis or drugs.” 47 The shop— -Flipside — -charged that the ordinance constituted a forbidden abridgement of speech, because its guidelines for enforcement treated the physical proximity of drug-related literature 48 as an indication that the paraphernalia were marketed for use with drugs.49 Justice Mar¬ shall’s opinion 50 upholding the ordinance considered separately the commercial and non-commercial expression involved in the headshop’s business, and held that the law did not regulate non-commercial (and First Amendment,’’ See § 12-4, supra.

91 Yale L.J. 235 (1981).

40. Virginia Board U.S. at 772 n. 24.

of Pharmacy,

425

44. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455-56 (1978), discussed in note 66, infra. 45. 455 U.S. 489 (1982). 46. A retail establishment

41. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978). See also Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 64-65 (1983) (Constitution "accords less protection to commercial speech than to other constitutionally safeguarded forms of expression.”) 42. Shiffrin, "The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment,” 78 Nw.U.L.Rev. 1212, 1251 (1983). 43. Id. at 1282-83.

which sells,

among other things, papers, pipes and oth¬ er items intended for use with illegal drugs. 47. Id. at 494-95. 48. The titles included "A Child’s Gar¬ den of Grass,” "Marijuana Growers’ Guide,” and magazines such as Rolling Stone and High Times. Id. at 491 n. 1. 49. Id. at 496. 50. Justice White filed an opinion con¬ curring in the judgment. Justice Stevens did not participate.

§ 12-15

COMMUNICATION

AND

897

EXPRESSION

therefore more closely protected) speech at all. Because the sale of the literature was not forbidden or regulated in any way, the only first amendment interest at stake was the retailer’s "attenuated” interest in marketing and displaying merchandise in his preferred manner. Hoff¬ man Estates restricted Flipside’s ability to communicate only by its regulation of the display of certain items, thereby inhibiting solely the store’s commercial encouragement of drug use.51 The government may suppress or ban that type of expression entirely, the Court held, because it is "speech proposing an illegal transaction.” 52 In Flipside , the Court separated commercial from non-commercial speech. In Bolger v. Youngs Drug Products Corp.,53 it conflated them. Respondent, a manufacturer of condoms, successfully challenged a federal law which banned from the mails unsolicited advertisements for contraceptives.54 In order to determine to apply, mailings. thus were pamphlets The Court

which constitutional standard

the Court had to classify the speech contained in Youngs’ Certain flyers contained only product names and prices and easily identified as commercial speech, but the informational on venereal disease and contraception presented a challenge. added up various factors and concluded that the pamphlets,

too, constituted commercial speech, "notwithstanding the fact that they contain discussions of important public issues such as venereal disease and family planning.” 55 Yet a few paragraphs later, the Court appar¬ ently reversed itself and stressed that, because Youngs sought to convey truthful information about "important social issues such as family planning and the prevention of venereal disease^] . . . the First Amendment interest served by such speech [was] paramount .” 56 The subtle influence of commercial and non-commercial expression *

on one another is perplexing. In Flipside , the unprotected "speech” involved the display of drug paraphernalia next to constitutionallyprotected counter-culture literature. Regulation by the government was permissible even though it was triggered by establishing the proximity of certain items to other material which clearly was within the embrace of the first amendment. In Bolger , the condom manufac¬ turer’s information pamphlets seemed to become commercial speech by osmosis because they were mailed with traditional advertisements and mentioned specific products. In one case, then, products became sub¬ ject to regulation because of the presence of constitutionally-protected non-commercial speech, and in the other, pamphlets bearing informa¬ tion which "implicates substantial individual and societal interests” 57 53. 463 U.S. 60 (1983).

51. Flipside never asserted that its placement of the items was intended to communicate anything. Rather, the items were sold at the counter, near the magazines, to hinder shoplifters. Id. at 496 n. 8.

1873 as part of Anthony Comstock’s fa¬ mous jihad against smut. See Bolger, 463 U.S. at 70 n. 19.

52. Id. at 496. The Court appeared un¬ troubled by the fact that any drugs which

55. 463 U.S. at 67-68 (footnote omitted).

would be used with Flipside’s merchandise would have to be obtained elsewhere, and that Flipside therefore would have no role in the actual illegal transaction in ques¬ tion.

54. 39 U.S.C. § 3001(e)(2) originated in

56. Id. at 69 (emphasis added). 57. Id., quoting Carey

v. Population

Services Int’l, 431 U.S. 678, 700-01 (1977).

898

COMMUNICATION

AND

EXPRESSION

Ch. 12

were demoted

to the status of commercial speech, but protected none¬ theless, because of the presence of promotional advertising.58 The lesson of these cases, then, is less than clear. However,

once the Court files the speech into the appropriate

commercial or non-commercial category, its analysis has begun to follow a now-familiar pattern. Two opinions by Justice Powell in companion cases in 1980 demonstrate the Court’s current approach. In Consolidated Edison Co . v. New York Public Service Commission ,59 the Court, by a 7-2 vote, struck down a state regulation forbidding public utilities to include inserts in their electricity bills which promoted the utilities’ position on controversial public policy issues.60 Consolidated Edison had placed an insert in its monthly bills to ratepayers advocat¬ ing the use of nuclear power. An environmental group asked, in effect, for equal time, requesting the Public Service Commission to compel Consolidated Edison to include inserts bearing opposing views in future

.

and non spe was eve mor n ech -cio M baf I v. San Die e m n n e c m t . fl er r go 453 iUn.gS 490 c5i0oa1mled(i198 w the Cou , , . rt a,1), here str dow a mun reg on out¬ uck ula ici n t doo adv and paslta sol ion "[w t r ]e e e dea her rtiwsiit the law eodf bil mnly, A l nhg e lbo San Die o ban a a of go brdina nead b llrdsa.”f-vsite com a n l ery ill nd l ut me boa ce sel rcicaalt orfds non bill e ¬ boa ct Preogory own -cocmomu s e ledr till rect per ers rds . bil to adtvy thei own cigaolo and lbo ert d r s ard s but no oniese els ser No one cou vic e’s l . to con pos easn, y sig any nond ¬ t ns whea com mes thveey wer l r t e re sag e hou me es, sev rcialcon exc gh for reli er ept ¬ ten ipoon t-bte gio al, sym c a s l m a i,ti ¬ u b semdpor pai s and olgso,v Id.calat 494 arsyig ns. ern 95. gns men t

The

Cou

rt’

s a nalJustice White’s plurality opinion, which ysijoined by Justices Stewart, Marshall was s o f c and Powell,ommupheld the law’s ban on com¬ erc ial but struck it down re¬ mercial billboards, garding non-commercial speech. Justice Brennan, joined by Justice Blackmun, con¬ curred in the judgment. Justice Stevens concurred in part of the plurality opinion but dissented from the judgment. Chief Justice Burger and Justice Rehnquist filed dissenting opinions. On the commercial speech issue, the plurality accepted at face

value the city’s interest in beautifying the city and reducing motorist distractions, id. at 507-08, and overlooked the requirement that the city’s action be the least restric¬ tive means available. Id. at 511-12. So offended by San Diego’s having given more protection to commercial than non-com¬ mercial speech, id. at 520-21, the Court righted one wrong by reversing the ban on most non-commercial speech. But the Court then created another wrong — by neglecting to give full consideration to the rights of the commercial speakers. For a

thoughtful review of the case, see The Su¬ preme Court, 1980 Term, 95 Harv.L.Rev. 91, 211 (1981). For the Court’s latest pro¬ nouncement on the "law of billboards,” albeit in a different context, see Los Ange¬ les City Council v. Vincent, 466 U.S. 789 (1984), discussed in § 12-24, infra. 59. 447 U.S. 530 (1980). 60. Justice Blackmun filed a dissenting opinion, joined by Justice Rehnquist, on the ground that the utility’s monopoly power made "the use of the insert ... an exaction from the utility’s customers by way of forced aid The for the utility’s 447 U.S. at 549. dissent also speech.” accused the majority of "gloss[ing] over the difficult allocation issue underlying this controver¬ sy. It is not clear to me from the Court’s opinion whether it believes that charging the shareholders with the marginal costs associated with the inserts, that is, the costs of printing and putting them into the envelope, will satisfy the state’s interest, or whether the Court is suggesting some divi¬ sion of the fixed costs of the mailing, that is, the postage, the envelope, the creation and maintenance of the mailing list, and any other overhead expense.” Id. at 554. Indeed, this uncertainty in the majority opinion was highlighted, when, on remand, the Public Service Commission ordered that, if the utilities included any bill in¬ serts on controversial issues, the utilities’ shareholders would have to pay half of the cost of the mailing. The New York Court of Appeals rejected a first amendment at¬ tack on the Commission’s action, see Con¬ solidated Edison Co. of New York, Inc. v. New York Public Service Comm’n, 66 N.Y.2d 369, 497 N.Y.S.2d 337, 488 N.E.2d 83 (1985), and the Supreme Court upheld that result. See 106 S.Ct. 1627 (1986) (dis¬ missing appeal).

§ 12-15

COMMUNICATION

bills.61 Instead, the Commission

AND

EXPRESSION

899

chose to forbid utility action effective¬

ly coercing utility ratepayers to subsidize anyone's message on public issues, and to prohibit utilities from using bill inserts to "discuss political matters” or to express "their opinions or viewpoints on contro¬ versial issues of public policy.” 62 But such a ban, Justice Powell wrote, was a content-based restriction on speech which struck "at the heart of the freedom to speak.” 63 The Court had little trouble concluding that the government’s designation of certain subjects as off limits to particular speakers and audiences was a form of content-based censorship and presumptively unconstitutional.64 The Court could find no significant governmental purpose in protecting the "privacy” of utility ratepayers since they were hardly a "captive” audience: "[t]he customer of Consolidated Edison may escape exposure to objectionable material simply by trans¬ ferring the bill insert from envelope to wastebasket.” 65 The limited intrusion of the billing inserts, coupled with the emphatically contentbased nature of the Public Service Commission’s restriction, combined to lead the justices to think of Consolidated Edison more as a political speech case than a commercial speech case — and thus made far more reluctant to allow any regulation.66

Com did jus tha div t, a sharpl t i mis y do deodn Sup si Cou str the act w o i u n r m n rt firs ea grock in Paocn Gas & e men i t u Ele Cdom.e v. Cal nds Pub fic Uti lit ctr ifo lic nt ies ic rni Com 106 S.C 903a (19 Jus ti t. 8 m Pow ’n, plu opi rej 6). the cree¬ quiell’ crhaili on ntihoen gro ecte tha the eftly t und d rem s ymi s eonft acc rig ( d t u 1 tili e h ) t e ght ess ht er tay fro say thi tha mig tri n gge t ngs ing m ht adv res and (2) ind it tro re¬ spoerse to spuobnse, abo whiuce it mig j u h n t i v ch pre d to rem ects sile of thte n i o fer lat ain nt rig est in ,Mia Herion Pub h a m t b lis s Co. lv.isTor 418 iU.S 2a4l1d (19 ¬ hi 74) . hednil o, and ngWoo v. Maly 430 U.S 705 . ley nar d, (1 Ju Re pow dis¬ sen9t77)j.oi stibyce Jus hnqui Whi anderfSute ti ned s t lv , par too thcees plut’s e to tas ensf,or r k k t its irceualar o T anadlityWoo The dinly f ornil ley lo g . co dis que the plu n¬ ral sen sti it.y . . im¬ clu ter tha the o"nrei of acc ’s si es s t dgh pli on PG & E’s rigt not to sspe o t akth r o asscates wit the spe ht of oth ere ers oci h ech b , ate Id. yat scr hei tri ghJtus 920gge Woo Rehuti sta te enteic nquny. . ring ley lif tod ethe reg is ” of d,a , orn was inap t ula ia pl pPuubbli uti icabl"Ex of the tiinodn frelicc S olfitycon e ten dec to biuvsi idnua sio isio edo ervi : sci e n m c cor of theosls e str nce the rat ns ai se io p cas orattio the bre ns poi naleTo asc ons r es aki nt ibe or an .'in ent ng art suc tel iti ifi h l 'mi for cfirael of escon puerct’ nd’ sci pos edo eIsd is to con metm wit encrea . at 921 fuCshei Juas pho Bur h filleity.a con ¬ ti r ef ger . d ” con Mar andce Jus opi cur ¬ tiJc shBa cur ring in thneionj,ud uest llalc red gme i ce kmu did not par nt. n tic ipa te.

62. Consolidated 532-33.

the Court

Edison, 447 U.S. at

63. 447 U.S. at 535. 64. See § 12-2, supra. 65. 447 U.S. at 542 (footnote omitted). 66. A pair of 1978 companion cases also illustrates that commercial speech which involves elements of political expression will always receive more protection than "pure” commercial speech. In Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978), the Court upheld a disciplinary action against an attorney who violated the state’s Canon of Ethics by soliciting a cli¬ ent face-to-face. Justice Powell’s opinion, delivered without dissent, stated that be¬ cause of the state’s "special responsibility for maintaining standards among members of the licensed professions,” it could re¬ strict the attorney’s action. In In re Primus, 436 U.S. 412 (1978), the Court, again per Justice Powell, invalidated a dis¬ ciplinary action under the same state pro¬ vision against an American Civil Liberties Union attorney who sought to organize a lawsuit on behalf of mothers who had been sterilized or threatened with sterilization as a condition for the continued receipt of government assistance. The Court, with only Justice Rehnquist dissenting, held that Primus’ action was exactly the kind of associational activity protected in NAACP v. Button, 371 U.S. 415 (1963), see § 12-26, infra, when Virginia sought to enforce its ban on client solicitation against the activi¬ ties of the NAACP Legal Defense Fund. In Primus, the Court held that, "[wjhere

900

COMMUNICATION

AND

EXPRESSION

Ch. 12

The commerical nature of the speech was far more evident in the companion case, Central Hudson Gas & Electric Corp. v. New York Public Service Commission .67 There the Court ruled by an 8-1 vote that New York could not completely ban utility advertising which promoted the use of electricity. Unlike the bill inserts in Consolidated Edison , the promotional advertising at issue here "related solely to the econom¬ ic interests of the speaker and its audience.” 68 It encouraged utility customers to buy more kilowatts from Central Hudson, and therefore constituted the purest form of commercial speech.69 Justice Powell, again writing for the Court, formulated what he described as a fourpart test for determining whether particular commercial speech is protected by the first amendment. As a threshhold matter, the speech must concern lawful activity and not be misleading. Turning to the nature of the regulation, the state interest advanced by the restriction must be "substantial.” Next, the regulation must directly advance that state interest. Finally, the regulation must not be "more extensive than is required” to serve the governmental interest.70 The utility satisfied the first prong, because New York had not alleged that the utility’s advertising had been deceptive, and the use of electricity is certainly legal. Second, Justice Powell accepted "without reservation the argument that [energy] conservation . . . is an imper¬ ative national goal,” and agreed that the states may "take appropriate action to further this goal.” 71 Third, the Court stated that the ban on advertising must have had some effect on demand for electricity, or Central Hudson would not have challenged it. Finally, though, the Court found that the Commission’s ban on promotional advertising might actually suppress speech promoting some devices or services which decrease energy use. The rule thus could have had the effect of increasing the use of electricity, at least in comparison with a more narrowly tailored rule. The Court accordingly concluded that the ban was impermissibly broad. The most interesting argument made by Justice Rehnquist, the lone dissenter, was that there was no constitutional value served by closely controlling a state regulation of this sort, while rubber-stamp¬ ing, under minimum rationality review, a regulation that would force up the price of electricity or directly control its consumption.72 Justice Rehnquist, the "only” difference between political expression or association is at is¬ sue,” a member of the bar "may not be disciplined unless her activity in fact involve[s] the type of misconduct” at which anti-solicitation rules are directed. 436 U.S. at 434. 67. 447 U.S. 557 (1980). 68. Id. at 561. Justices Brennan, Blackmun and Stevens filed opinions con¬ curring in the judgment. Justice Rehn¬ quist dissented.

political leaders.” Id. at 580-81 (Stevens, J., concurring in the judgment). 70. Id. at 566.

Stevens disagreed with the majority’s find¬ ing that the regulation reached only com¬ mercial speech. As Justice Stevens stated,

71. Id. at 571.

Blackmun

per-

"[tjhis ban encompasses a great deal more than mere proposals to engage in certain kinds of commercial transactions. It pro¬ hibits all advocacy of the immediate or future use of electricity. It curtails expres¬ sion by an informed and interested group of persons of their point of view on ques¬ tions relating to the production and comsumption of electrical energy — questions frequently discussed and debated by our

and

69. Justices Brennan,

an undoubtedly

To

72. Id. at 591.

§ 12-15

COMMUNICATION

AND

EXPRESSION

901

missible form of economic regulation and the Commission’s regulation of commercial speech is that one operates on the marketplace of goods and the other on the marketplace

of ideas. A sharp distinction be¬

tween those two marketplaces could not, in Justice Rehnquist’s view, be long maintained. Just as the decline of the Lochner era signaled judicial acquiesence in a governmental role in the marketplace of goods, he suggested, so could government regulate the marketplace of ideas, especially to make sure that certain vendors do not exercise monopoly power.73 Although not expressly endorsing this view, the Court’s opin¬ ion was easier to reconcile with it than with the Virginia Board of Pharmacy theory that truthful advertising cannot be banned in order to discourage consumers from being convinced to respond to it. Justice Rehnquist had the opportunity to expand on his view of the intersection between the marketplaces of commerce and ideas for a majority of the Court in Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico,74 the last opinion for the Court that he filed before his promotion to Chief Justice. There a 5-4 majority upheld, against a facial challenge by a casino operator, a Puerto Rican statute which prohibited local casinos from advertising their gambling facilities to residents of Puerto Rico, but allowed them to advertise to potential tourists in the continental United States and elsewhere. The Court applied the four-part test of Central Hudson to uphold the statute. First, it stated that casino gambling was legal and as¬ sumed that any potential advertisements "would not be misleading or fraudulent, at least in the abstract.” 75 Second, the Court evaluated the of thi "ma to ass tha tho se wit smor rkdeotl do not exuere dist plalra rt pro h e sce— a fo tio inf ” rm of regul por¬ lue nat nce co e Re Jus in his atoipoi nide F n¬ ionticfeor thhnequ Cou Ele n mn ede ist rt cti ed ral on Co v. Nat Con Pol m i ion4 s tiTch Act m’n Com a7l0 U.S. er4v8a0t (198 ale i m 5 o . i Cou n has ,ten to vie vecom ). mer ded rt w spe as a shi to pro ope comcial e t e n l e tio ch not a swdo to cpter col peti¬ l n, mit rd am com Co Vir usion on mp g pe re at 76inia Boa g of Phatito 425 Ua . S 6-8 (re rd ban rmonacrpsh.a ad.v o0n jec e y r the gtrinog int ,alimacyof fos rtisi ope a, er ng ter n und i , n g co wit Nat So of Pr h v. Union siompeti Eng Stac’y 435 ofUe.sS¬ i a nal ti in tes . te l 679 696on), eer(1s9 (ho d tha , Sh erm 78) t Act, pro -99 of tra ldinagss whian de oci sec ch uctoi pro bid daoteion not vio o m s dFin lat hibfiitr a pnet the¬ ugrt e sst menditiv Cou in Zau m ev. Off oheD ice f rimsocriep rt der ent) Cou 471 U.eSr 626. (19 uph ,linaa re¬ ry 8 . n eald 5),w qui sel, tha att dve h o t o r ava emen on a con rneys fee bas rtiasles o i ila t t dis bil in the ad thaingecli pay csos if i ncyent t c the losleaw ty is uns t s The Cosu rt sui ucc t ess no tha "[b the feuxt of Fir st t ]epcr lt.oens co Amted a ionmm outsee en spe dme is jus pcriti by theercvial t o n e i to cchon nt fiedof thecinpainf sauluce llyor h sum spe proers [ci Vir mati Boa of tin o r vid gin ech g es ia n d

t r egu lat ion

Pharmacy], appellant’s constitutionally protected interest in not providing any par¬ ticular factual information in his advertis¬ ing is minimal.” Id. at 631. 74. 106 S.Ct. 2968 (1986).

Justice

Rehnquist’s opinion was joined by Chief Justice Burger and Justices White, Powell and O’Connor. Justices Brennan and Ste¬ vens filed dissenting opinions, which were joined by Justices Marshall and Blackmun. 75. Id. at 2976. The Court in Friedman v. Rogers, 440 U.S. 1 (1979), citing concerns about misleading advertising, upheld a Texas ban on practicing optometry under a trade name. The Court distinguished the advertisements

in Virginia Board of Phar¬

macy and Bates, which it said were "selfcontained and self-explanatory,” and held that trade name regulation concerned "a form of commercial speech that has no intrinsic meaning.” Id. at 12. The Court thus tested the law by the minimum ra¬ tionality standard applicable to other eco¬ nomic regulations. A ban on trade names was permitted because "these ill-defined associations of trade names with price and quality information can be manipulated by the[ir] users . . . [and] there is a signifi¬ cant possibility that trade names will be used to mislead the public.” Id. at 12-13. Justice Blackmun, joined by Justice Mar-

902

COMMUNICATION

AND

EXPRESSION

Ch. 12

government interest at stake— here, "the reduction of demand for casino gambling by the residents of Puerto Rico.” 76 The Court had "no difficulty in concluding that the Puerto Rico Legislature's interest in the health, safety, and welfare of its citizens constitutes a 'substantial' governmental interest.” 77 Third, the Court found that the challenged restriction did "directly advance” this governmental interest — on the theory that, as in Central Hudson , there is a direct connection between advertising for a product and demand

for it.78 Finally, the Court held

that the law was not overly restrictive, deferring to the legislature’s finding that it could reduce gambling more successfully by banning advertising outright rather than "promulgating additional speech de¬ signed to discourage ” gambling.79 Had the Court stopped there — that is, decided the case on a straightforward application of the Central Hudson balancing test — the decision would have been a largely un¬ remarkable application of the commercial speech doctrine.80 But Justice Rehnquist’s opinion added a new — and disturbing — twist to that doctrine. The Court concluded by stating that "the shall, dissented on the trade name issue, arguing chiefly that, because trade names have no intrinsic meaning, they cannot be misleading and thus should not be prohib¬ ited by the state. See id. at 24-26. Anoth¬ er concern was that the majority’s defer¬ ence to a fanciful state legislative justification may be inappropriate where those who would benefit by the restriction wield too much influence in the legislature. Cf. Ferguson v. Skrupa, 372 U.S. 726 (1963) (upholding law limiting debt-adjustment to licensed attorneys), and Williamson v. Lee Optical Co., 348 U.S. 483 (1955) (upholding restrictions on optometrists which favor ophthalmologists), discussed in § 8-7, su¬ pra. Friedman notwithstanding, the Court has shown some reluctance to assume that advertising is misleading, without actual evidence of deception. In In re R.M.J., 455 U.S. 191 (1982), the Court unanimously invalidated regulations on lawyer advertis¬ ing that (1) allowed only certain subject areas to be listed as specialties; (2) forbade listings of admission to the bars of neigh¬ boring states and the United States Su¬ preme Court; and (3) banned the mailing of announcements of office openings except to clients, former clients, friends and rela¬ tives. The Court stated, "[t]here is no find¬ ing that appellant’s speech was misleading. Nor can we say that it was inherently misleading, or that restrictions short of an absolute prohibition would not have suf¬ ficed to cure any possible deception. . . . States may regulate commercial speech, [but] the First and Fourteenth Amend¬ ments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests.” Id. at 206-07.

77. Id. at 2977, quoting Renton v. Play¬

time Theaters, Inc., 475 U.S. 41, _

(1986).

78. 106 S.Ct. at 2977. The Court also made short work of the casino’s argument that the law was underinclusive because other forms of gambling, including horser¬ acing and cockfighting, could be advertised in Puerto Rico. The Court stated first that the law did not have to reduce demand for all games of chance to reduce demand for casino gambling, and second that the legis¬ lature could legitimately single out casino gambling as a target — and not other games, which "have been traditionally part of the Puerto Rican’s roots.” Id.

79. Id. at 2978 (emphasis in original). 80. Justice Brennan’s dissenting opin¬

ion, which was joined by Justices Marshall and Blackmun, was devoted principally to challenging the majority’s application of the Central Hudson test to what he charac¬ terized as "constitutionally protected ex¬ pression.” 106 S.Ct. at 2983. There was no controversy about the first factor. But, regarding the second, Justice Brennan stated that the evidence indicated that the legislature did not want to reduce casino gambling among the local populace; after all, the practice was and remains legal. Id. Third, the dissent found it unclear how an advertising ban "would directly ad¬ vance” the objectives of reducing crime and corruption. Id. at 2984-85. Finally, Justice Brennan found the statute exces¬ sively broad to accomplish its stated objec¬ tives. Vigorous enforcement of existing criminal laws would, in his view, achieve the purpose of the law without interfering with any protected speech. Id. at 2985-86. Justice Stevens also dissented, in an opin¬ ion joined by Justices Marshall and Black¬ mun.

§ 12-15

COMMUNICATION

AND

EXPRESSION

903

greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gamblingf.]” 81 The Court observed that it would be "a strange constitutional doctrine which would concede to the legislature the authority to totally ban a product or activity, but deny to the legislature the authority to forbid the stimulation of demand for the product or activity through advertising on behalf of those who would profit from such increased demand.” 82 There is only slight exaggeration in the dissenters’ retort that this "strange” doctrine is called the first amendment.83 At the very least, the "greater power including the lesser power” form of analysis seems singularly inappropriate in the first amendment context.84 Chief Jus¬ tice Rehnquist’s misapprehensions notwithstanding,85 the Court has long required government to regulate with a far lighter touch when regulating in the marketplace of ideas — even ideas parlayed for profit — than in the marketplace of commerce. The entire commercial speech doctrine, after all, represents an accommodation between the right to speak and hear expression about goods and services and the right of government to regulate the sale of such goods and services.86 Adoption of the Posadas approach throughout the commercial speech area would plainly upset the Court’s carefully evolved balancing test, and lead to dilution of existing protections of speech that are well-settled and seem defensible. In any event, Justice Rehnquist’s observation that a state may ban all advertising of an activity that it permits but could prohibit poses, as Justice Stevens put it, only "an elegant question of constitutional law.” 87 For that question was not in fact the one posed in Posadas. The ban there was selective , not universal; it was directed only at a specific target audience: residents of Puerto Rico. An "audiencespecific” regulation of speech offends first amendment values as much as a "content-specific” ban, for both involve government controlling 81. Id. at 2979. 82. Id. 83. Id. at 2984 n. 4 (Brennan J., dissent¬ ing). 84. The notion of requiring individuals to take the "bitter with the sweet” is a familiar one in Chief Justice Rehnquist’s jurisprudence, albeit one that his col¬ leagues have consistently rejected. Com¬ pare Arnett v. Kennedy, 416 U.S. 134 (1974) (plurality opinion of Rehnquist, J.) (government not obligated to provide pro¬ cedural due process protections to public employee because the source of law creat¬ ing the employee’s entitlement simultane¬ ously made his job terminable without a full prior hearing), with Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 559 (1985) (explicitly overruling "bitter with the sweet” holding of Arnett); Compare FCC v. League of Women Voters, 468 U.S. 364, 402 (1984) (Rehnquist, J., dissenting) (government subsidy of public television should entitle government to prohibit sta¬

tions’ expression of editorial opinions), with id. at 364 (majority opinion striking down such regulations as violative of the First Amendment); Compare Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 127 (1982) (Rehnquist, J., dissenting) (govern¬ mental power to forbid Jie granting of any liquor licenses to establishments located less than 500 feet from churches includes power to delegate that authority to the discretion of the churches themselves), with id. at 116 (majority opinion striking down governmental grant of veto power to churches as an impermissible establish¬ ment of religion). 85. See, e.g., Central Hudson, 447 U.S. at 597-99 (Rehnquist, J., dissenting). 86. See, e.g., Virginia Board of Pharma¬ cy, 425 U.S. at 761-63. But Central Hud¬ son had arguably jettisoned the key pre¬ mise of the doctrine, at least in dictum, half a dozen years before Posadas. 87. Id. at 2986 (Stevens, J., dissenting).

904

COMMUNICATION

AND

EXPRESSION

Ch. 12

who may hear what.88 Justice Stevens’ incredulity that the Court "is willing to uphold a Puerto Rico regulation that applies one standard to The New

York

Times

and another

to the San Juan

Star” is well-

justified.89 Until Posadas , the Court seemed to have reached a comfortable, if not always predictable, understanding in commercial speech cases. As Professor Shiffrin observed, the Court had come to balance "the impact of the challenged regulations on first amendment values against the seriousness of the evil that the state seeks to mitigate or prevent, the extent to which the regulation advances the state’s interest, and the extent to which the interest might have been furthered by less intru¬ sive means.” 90 Those words, of course, are by no means self-execut¬ ing — but, applied with decent respect for speakers, listeners, and legiti¬ mate governmental objectives, they provided tolerable guideposts in a confounding corner of first amendment jurisprudence. But, in the wake of the Central Hudson dictum that government may seek to discourage even truthful promotion for profit of a lawful product or service 91 and the Posadas

holding that it may do so on an audience-

specific basis, the Court’s commercial speech doctrine seems poised on a makeshift— -and unsteady— foundation for the future.92 § 12-1 8« The

Continuing

Suppression

of Obscenity

If it was true in 1968 that the effort to separate unprotected obscenity from other sexually oriented but constitutionally protected 88. Speaker-specific bans have express¬ ly been equated with those that are con¬ tent-based. See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784-85 (1978); City of Madison Joint School District v. Wisconsin Employment Relations Comm’n, 429 U.S. 187 (1976), discussed in § 12-3, supra, and § 12-24, infra. Moreover, both speaker-specific and content-specific bans represent actions that selectively deprive consumers of information necessary to make informed choices based on paternal¬ istic premises. As Justice Stevens stated, "Perhaps, since Puerto Rico somewhat am¬ bivalently regards a gambling casino as a good thing for the local proprietor and an evil for the local patrons, the ban on local advertising might be viewed as a form of protection against the poison that Puerto Rico uses to attract strangers into its web. If too much speech about the poison were permitted, local residents might not only partake of it but also decide to prohibit it.” 106 S.Ct. at 2987 n. 1. 89. Acceptance of the practice of "sani¬ tizing” information for local consumption, while allowing greater access to informa¬ tion for outsiders, places the United States in most ill-becoming company. See N.Y, Times, June 20, 1986, § 1, at 10:1 (describ¬ ing South African press restrictions as they affected domestic and international journalists).

90. Shiffrin, supra note 42, at 1252. 91. Central Hudson, 447 U.S. at 563-65. 92. Perhaps the most plausible basis for reconciling Posadas with the invalidation of Virginia’s ban on prescription drug price advertising by pharmacists, see Virginia Board of Pharmacy, supra, is the proposi¬ tion that, where a state has determined that an activity is intrinsically harmful and should be stopped but would be too impractical or intrusive on privacy to ban altogether, the state may choose to ban advertising that would directly encourage the activity to go on. That was Puerto Rico’s position as to casino gambling by local residents, but it was not Virginia’s position as to prescription drug use. The first amendment does not permit a state to decide, as Virginia did, that a product’s use is ordinarily desirable but that potential users cannot be trusted to deal intelligent¬ ly with truthful price information provided by suppliers. Put otherwise, it is not all paternalistic government actions that the first amendment forbids but only govern¬ ment actions predicated on the view that people will be gullible and will misuse even information that neither misleads nor urges a dangerous course of conduct.

§ 12-16

COMMUNICATION

AND

EXPRESSION

905

speech had "'produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication,” 1 then certainly nothing in the intervening years has occurred to support a different verdict; the Supreme Court’s bare majority in 1973 for yet another definition of the obscene and yet another set of rationales for its suppression has produced a formula likely to be as unstable as it is unintelligible. Although this section will summarize that formula and the doctrines surrounding it, the discussion is organized around histori¬ cal and philosophical rather than doctrinal themes, reflecting a convic¬ tion that we have by no means seen the end of major development in the constitutional law of obscenity. In the sixteenth century, ecclesiastical 2 and royal 3 censorship of expression in England was more concerned with political and religious themes than with the sexually obscene. The earliest licensing systems were primarily addressed to the vices of sedition and heresy.4 During the seventeenth century, the influence of puritanism resulted in a sober intolerance of bawdy literature; the portrayal of sexual pleasure was strictly condemned. Shortly after the restoration, in the year 1663, Sir Charles Sedley, an intimate of the King and a notorious profligate, after a drinking spree in a tavern by Covent Garden, mounted the balcony of the tavern as a crowd gathered below. There he proceeded to disrobe, haranguing his audience with antireligious epithets as he showered them with bottles of urine. The crowd, now turned mob, stormed the tavern. Sedley’s subsequent conviction 5 is widely regard¬ ed as the first reported English case on obscenity — making Sedley the first adjudicated "streaker.” Because he employed force to cause a breach of the peace, Sedley’s offense was clearly cognizable at common law. Yet his case was subsequently relied upon in Dominus Rex v. Curl 6 for the proposition that obscenity alone — that is, Sedley’s naked¬ ness — was a breach of the peace. In a third early case, Rex v. Wilkes ,7 the Tory government used the new common law of obscenity to send Wilkes, a Whig foe, to jail for having published a poem entitled "Essay on Woman.” 8 There was little further common law development in 6. 2 Strange 788 (K.B.1727). § 12-16Inc. v. Dallas, 390 1. Interstate Circuit, U.S. 676, 704-05 (1968) (separate opinion of Harlan, J.). 2. The church began to censor works with the Council of Trent in the mid-six¬ teenth century. 3. Henry VII established the first li¬ censing system in 1538.

4. See generally Alshuler, "Origins of the Law of Obscenity,” in 2 Technical Re¬ port of the Commission on Obscenity and Pornography 65 (1970). The author sug¬ gests that the Medieval mind was not un¬ duly alarmed by a mixture of the ribald with the religions. She notes for example that The Exeter Book, an early devotional work, contained a collection of obscene rid¬ dles. 5. Sir Charles Sydlyes Case, 1 Keble 620 (K.B.1663). See 8 The Cambridge His¬ tory of English Literature 158 (1912). Tribe-Amer.Const.Law

2nd Ed. UTB — 22

7. 4 Burr. 2527 (K.B.1770). 8. The prosecution of Wilkes was a typi¬ cally political affair. In order to prove publication, the government bribed the printer of the essay to provide the prosecu¬ tion with a thirteenth copy, since the twelve early copies were circulating pri¬ vately among the members of a club to which the author belonged. On the politi¬ cal nature of these early cases, see Reyn¬ olds, "Our Misplaced Reliance on Early Obscenity Cases,” 61 A.B.A.J. 220 (1975). It has also been argued that religious impi¬ ety was a necessary element of the com¬ mon law offense. See Schroeder, "Obscene Literature at Common Law,” 69 Albany L.J. 146 (1907). See Regina v. Read, 11 Mod. Rep. 142 (1708) (holding obscenity punishable only in ecclesiastical court), overruled by Rex v. Curl, 2 Strange 788 (1727).

906

COMMUNICATION

AND

EXPRESSION

Ch. 12

England; 9 there was no common law development in the American colonies at all. And at the time of the Revolution, only one state 10 had any statutory law on the subject. The first reported obscenity case in the United States occurred in 1815. In Commonwealth v. Sharpless n, a Pennsylvania court decided that it was an offense at common law to exhibit for profit a picture of a nude couple. Several states, beginning with Vermont in 1821, subse¬ quently passed obscenity statutes. The first federal statute, passed in 1842, was aimed at the French post card trade 12 and prohibited the importation of obscene pictorial matter. Until the 1870’s, none of these statutes was rigidly enforced. But three years after the end of the Civil War, a New York City grocer named Anthony Comstock joined with Protestant leaders in that city in a campaign to suppress obscenity. At their urging, the New York State legislature enacted a bill to prohibit obscenity in 1868.13 In 1873, after intense lobbying, Congress made it a criminal offense to send obscene material through the mails.14 More state enactments followed.15 Few of the cases prior to the late nineteenth century attempted to define the obscene. In 1868, in Regina v. Hicklin , Lord Chief Justice Cockburn was called upon to provide a definition under the recently enacted Lord Campbell’s Act. For him, the "test of obscenity” was "whether the tendency of the matter charged . . . is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this The Hicklin test was widely adopted to stand for the double proposition that by its effect on the most susceptible, and

sort may fall.” 16 by American courts. It came obscenity was to be measured that obscenity of the work as a

whole was to be judged by the effect of isolated passages.17 In the years following Hicklin , judges made ad hoc exceptions for "the classics,” saving the likes of Rabelais and Ovid. But prosecutions under the Hicklin rule took a heavy toll on contemporary literature. In the same 9. Legislative prohibition in England began with the Vagrancy Act which for¬ bade the exposure of obscene books or prints in public. 5 Geo. 4, c. 83 (1824).

10. In 1711, Massachusetts had extend¬ ed its rigid censorship system to include the ”... wicked, profane, impure, filthy and obscene ...” Ancient Charter, Colo¬ ny Laws and Province Laws of Massachu¬ setts Bay, 1814. 11. 2 S.R. 91 (1815).

12. 5 Stat. 566 (1842). 13. 7 New

York Stats. 309 (1868).

14. 17 Stat. 599 (1873). 15. At one time or another, obscenity has been made the object of criminal law in all of the fifty states. For a detailed, though dated, breakdown, see Note, "More Ado About Dirty Books,” 75 Yale L.J. 1364, 1406 (1966). In recent years, four states (Iowa, Montana, South Dakota and West

Virginia) have chosen to restrict their laws to the punishment of sales to minors, adopting the recommendations of the Re¬ port of the Commission on Obscenity and Pornography (1970). See Lockhart, "Es¬ cape from the Chill of Uncertainty: Explic¬ it Sex and the First Amendment,” 9 Geor¬ gia L.Rev. 533, 535 (1975). 16. L.R. 3 Q.B. 360, 368 (1868). 17. It has been suggested that Hicklin does not support a test based on "isolated passages,” since fully one half of the antiCatholic tract in that case was found to be obscene. Note, supra note 15, at 1369 n. 24. The "isolated passages” test reached something of an apotheosis in Common¬ wealth v. Friede, 271 Mass. 318, 171 N.E. 472 (1930), where the state’s highest court upheld the refusal by a trial judge to allow defense counsel to read Theodore Dreiser’s An American Tragedy to the jury in its entirety.

COMMUNICATION

§ 12-16

AND

EXPRESSION

907

year, 1930, both Theodore Dreiser’s An American Tragedy 18 and D. H. Lawrence’s Lady Chatterly’s Lover 19 were declared obscene. The work of extra-judicial groups, such as the National Organiza¬ tion for Decent Literature (NODL), had an equally pernicious effect on American literature, taking up where Comstock’s Protestant organiza¬ tion left off. Blacklists 20 of allegedly obscene literature were circulated and enforced by threats of boycott and prosecution; the NODL exer¬ cised a powerful influence on distributors and publishers alike. Other local citizen’s groups joined the crusade, and official censorship boards were created in many cities.21 The first break in the Hicklin stranglehold over contemporary letters came in two opinions, in 1933 and 1934, which held that James Joyce’s Ulysses was not obscene.22 Both Judge Woolsey at the trial level and Judge Augustus Hand on appeal forcefully rejected the Hicklin rules based on the most susceptible persons and on isolated passages, and suggested instead a standard based on the effect on the average reader of the dominant theme of the work as a whole. Most courts soon adopted the new approach. The constitutionality of legal restraints on obscenity had been widely assumed both by courts and by litigants during the period between Comstock and Ulysses. On several occasions the Supreme Court had dealt with convictions under anti-obscenity statutes without considering their constitutionality; 23 and dicta in other cases suggested that the Court would find no constitutional barrier should the issue arise.24 It was not until 1948 that the Supreme Court squarely faced the contention that legal restraints on the publication of obscenity were an unconstitutional violation of the first amendment’s guarantees of freedom of speech and press. In that year Doubleday & Co. was convicted under a New York law for having published an allegedly obscene work, Edmund Wilson’s Memoirs of Hecate County. Despite the fact that Wilson was America’s foremost literary critic, the convic¬ tion was upheld on appeal.25 A divided Supreme Court affirmed the conviction in a per curiam decision without opinion.26 The oral argu¬ ment suggests, however, that the Court divided over the application to 18. Commonwealth

v. Friede, 271 Mass.

318, 171 N.E. 472 (1930).

19. Commonwealth

v. Delacey, 271

Mass. 327, 171 N.E. 455 (1930).

20. Authors on the NODL cluded, among

many

O’Hara, Hemingway

blacklist in¬

others, Faulkner,

and Flaubert.

21. See generally, Lockhart & McClure, "Literature, the Law of Obscenity, and the Constitution,” 38 Minn.L.Rev. 295, 311-316 (1954).

22. United States v. One Book Called "Ulysses,” 5 F.Supp. 182 (S.D.N.Y.1933), affd 72 F.2d 705 (2d Cir. 1934). The sug¬ gestion to drop the Hicklin standards had been made much earlier, by Learned Hand, in United States v. Kenner ley, 209 Fed. 119, 121 (S.D.N.Y.1913).

23. Rosen v. United States, 161 U.S. 29 (1896); United States V; Limehouse, 285 U.S. 424 (1932). 24. Near v. Minnesota, 283 U.S. 697, 716 (1931); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). For a compre¬ hensive review of these early cases, see United States v. Roth, 237 F.2d 796, 803-04 (2d Cir. 1956) (Frank, -T., concurring).

25. People v. Doubleday & Co., 272 App. Div. 799, 71 N.Y.S.2d 736 (1947), affd 297 N.Y. 687, 77 N.E.2d 6 (1947). 26. Doubleday & Co. v. New York, 335 U.S. 848 (1948). Justice Frankfurter, a personal friend of Wilson’s, did not partici¬ pate in the decision.

908

COMMUNICATION

AND

Ch. 12

EXPRESSION

obscenity of the clear and present danger test employed amendment cases.27

in other first

Nine years later, the Supreme Court granted certiorari in a case involving a Manhattan bookseller convicted under 18 U.S.C. § 1461 of having used the mails to transport obscene matter. The petition was granted limited to the question of the constitutionality of § 1461 on its face.28 The issue of obscenity vel non was consequently not before the Court.29 Despite the probing concurring opinion by Judge Frank

in the

circuit court below,30 Justice Brennan, writing for the majority in Roth v. United States?1 found the issues less complex. As for the first amendment, Justice Brennan confirmed what, according to him, the Court had always assumed — namely, that "obscenity is not within the area of constitutionally protected speech or press.” 32 And the Court dismissed the "fair notice” claim based on the fifth amendment require¬ ment of due process with the statement that, while obscenity statutes may not be precise, the Constitution did not demand "impossible standards.” 33 The test for obscenity, said that Court, was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 34 Thus the rejection by the lower courts of the Hicklin standards acquired constitutional significance.35 And the focus of judi¬ cial concern shifted from the alleged "immoral influence” of the work to a judgment about its "prurient appeal.” Roth presumed obscenity to be "utterly without redeeming social importance”; 36 nine years later, in Memoirs v . Massachusetts ,37 a threeJustice plurality treated the lack of such "redeeming social impor¬ tance” not as reason to exclude obscenity but as part of its definition : 27. See Lockhart & McClure, supra note 21, at 300. One state trial judge, Judge Curtis Bok, concluded in a lengthy and probing opinion that the "clear and present danger” test should apply to litera¬ ture allegedly deemed obscene. In Com¬ monwealth v. Gordon, 66 Pa. D & C 101 (1949), affd sub nom. Commonwealth v. Feigenbuum, 166 Pa.Super. 120, 70 A.2d 389 (1950), Judge Bok applied that stan¬ dard to find that works by Faulkner and James T. Farrell, among others, were pro¬ tected by the first and fourteenth amend¬ ments. See generally §§ 12-9 to 12-11, supra.

author of Roth, to reject that opinion six¬ teen years later in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 (1973) (dissenting opinion). 30. United States v. Roth, 237 F.2d 796, 801-27 (2d Cir. 1956). Judge Frank relied heavily on Judge Bok’s opinion in Com¬ monwealth v. Gordon, supra note 27. 31. 354 U.S. 476 (1957). 32. Id. at 485. Ninth and tenth amend¬ ment arguments that hinged on the first amendment claim fell with the latter. Id. at 492-93.

28. Roth v. United States, 352 U.S. 964 (1957).

33. Id. at 491-92.

29. The consequences were unfortu¬ nate. It was obscenity in the flesh, so to speak, which would later elude definition

35. Butler v. Michigan,

and thus raise the key problem of a "chil¬ ling effect” on protected speech. The Roth majority set itself the much simpler task of contemplating obscenity in the abstract. Thus the Court could — and did— ignore the definitional issue. Ironically it is that very issue which caused Justice Brennan, the

34. Id. at 489. 352 U.S. 380

(1957), rejected the "most susceptible per¬ sons” test by holding unconstitutional a statute forbidding the distribution to adults of materials tending to corrupt mi¬ nors. 36. Roth, 354 U.S. at 484-85. 37. 383 U.S. 413 (1966) (reversing "Fan¬ ny Hill” conviction).

§ 12-16

COMMUNICATION

AND

EXPRESSION

909

utter lack of redeeming social significance became one of "three ele¬ ments [that] must coalesce” in order for material to be condemned as obscene; 38 in addition, it had to be shown that "the dominant theme of the material taken as a whole appeals to a prurient interest in sex,” and that "the material is patently offensive because it affronts contem¬ porary community standards relating to the description or representa¬ tion of sexual matters.” 39 Because Justices Black and Douglas would have reversed essentially all obscenity convictions, that plurality opin¬ ion established a floor for subsequent obscenity prosecutions, but not until 1973 could any five Justices agree on a definition of "what constitutes obscene, pornographic material subject to regulation under the States’ police power.” 40 In 1973, in Miller v. California , a fivejustice majority converged on a modified "test”: 41 "The basic guide¬ lines for the trier of fact must be: (a) whether the 'average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,, . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Thus the Court had moved

from a view in which the obscene was

unprotected because utterly worthless {Roth ), to an approach in which the obscene was unprotected if utterly worthless {Memoirs ), to a conclusion in which obscenity was unprotected even if not "utterly” without worth {Miller ). There is little likelihood that this development has reached a state of rest — or that it will ever do so until the Court recognizes that obscene speech is speech nonetheless, although it is subject — as is all speech— -to regulation in the interests of unwilling viewers,42 captive audiences,43 young children,44 and beleaguered neigh38. Id. at 418. 39. Id. 40. Miller v. California, 413 U.S. 15, 22 (1973).

41. Id. at 24. The Court obligingly pro¬ vided illustrations of what it meant by (b). A state could, for example, proscribe "[p]atently offensive representations or de¬ scriptions of masturbation, excretory func¬ tions, and lewd exhibition of the genitals.” Id. at 25. This aspect of Miller was deemed not an expansion of criminal liabil¬ ity and hence could be applied retroactive¬ ly. Hamling v. United States, 418 U.S. 87, 116 (1974). On the other hand, the shift from "utterly without redeeming social value” to "lacking] serious literary, artis¬ tic, political, or scientific value” was an expansion and could be applied only to post-Miller conduct. Marks v. United States, 430 U.S. 188 (1977). On the limited relevance of the Miller Court’s illustra¬ tions, see Ward v. Illinois, 431 U.S. 767 (1977), discussed in note 51, infra.

dating an ordinance prohibiting drive-in movie theatres from exhibiting films con¬ taining nudity, where the screen is visible from a public street and might offend passersby, as a content-based discrimination among movies which had the effect of de¬ terring theatres from showing nonobscene films containing nudity, but implying that a "narrowly drawn nondiscriminatory traf¬ fic regulation requiring screening of drivein theatres from public view” would be upheld). Cf. Kovacs v. Cooper, 336 U.S. 77, 87-89 (1949) (upholding municipal ordi¬ nance forbidding the use of sound trucks which emit "loud and raucous noises”: re¬ spect for "claims by citizens to comfort and convenience” through barring loud noises justifiable and not an infringement on free expression); Breard v. Alexandria, 341 U.S. 622, 641-45 (1951) (upholding munici¬ pal ordinance prohibiting door-to-door so¬ licitation of orders for the sale of goods at private residences without prior consent of owners or occupants: no first amendment right "to force a community

to admit the

42. See, e.g., Erznoznik v. Jacksonville, 422 U.S. 205, 211, 215 n. 13 (1975) (invali¬

43.-44. See notes 43-44 on page 910.

910

COMMUNICATION

AND

EXPRESSION

Ch. 12

borhoods 45 — but not in the interest of a uniform vision of how human sexuality should be regarded and portrayed.46 Until that time, the rules will presumably remain roughly those announced in 1973, with several surviving from the past and a few tacked on more recently. Specifically, the Miller test would apply to words as well as pic¬ tures 47 and would require consideration of the work "as a whole.” 48 States remain free to adopt communitywide, statewide, or nationwide standards of prurience and patent offensiveness — subject to continuing supervision by the Court to assure that juries do not go too far.49 Prurient appeal may be defined in terms of the target audience, with more protective standards for children than for adults,50 and with attention to whatever special groups a book or film might be designed to stimulate.51 Indeed, a test for obscenity may solicitors of publications to the home prem¬ ises” of unwilling residents). See § 12-19, infra. 43. See, e.g., Lehman v. Shaker Heights, 418 U.S. 298, 304 (1974) (Blackmun, J., for four-member plurality), 305-08 (Douglas, J., concurring) (rejecting first amendment challenge to municipal policy of not permitting political advertising, while allowing commercial advertising, on public transit; plurality relying in part, and concurrence entirely, on the interests

evaluate not only

Louisiana, 379 U.S. 559, 562-64 (1965) (finding facially valid a state statute prohibiting picketing in or near a court¬ house with the intent to disrupt justice, although reversing a conviction under the statute in the particular case); Grayned v. Rockford, 408 U.S. 104 (1972) (ban on will¬ ful noise making near school building, which disrupts the school session, upheld against facial challenge). 46. For a discussion of viewpoint dis¬ crimination as it relates to pornography,

of the "captive audience” and the resulting "invasion of privacy through forced expo¬ sure” to petitioner’s ads). See also Public Utilities Commission v. Poliak, 343 U.S. 451, 467 (1952) (Douglas, J., dissenting).

see § 12-17, infra. 47. Kaplan v. California, 413 U.S. 115 (1973). See id. at 120 (stressing special difficulty of keeping printed material from being handed on to children).

44. See, e.g., Ginsberg v. New York, 390 U.S. 629 (1968) (state may prohibit distri¬ bution of materials to minors which may not be barred from adults). Cf. Jacobellis v. Ohio, 378 U.S. 184, 195 (1964) (dictum)

48. Miller v. California, 413 U.S. at 25

(states and localities "might well consider” effectuating their "exigent interest” in pre¬ venting the dissemination of materials deemed harmful to children through "pre¬ venting distribution of objectionable mate¬ rial to children, rather than . . . totally prohibiting its dissemination”); Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 749 (1978) (up¬ holding restrictions on radio broadcasts that include indecent "swear words” be¬ cause such broadcasts are "uniquely acces¬ sible to children”). 45. See, e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50, 71-72 (1976) (upholding zoning ordinances limiting the places where movie theatres showing "adult” films may be located; "the city’s interest in preserving the character of its neighborhoods” justifies the line drawn in its ordinances); City of Renton v. Playtime Theatres, 106 S.Ct. 925 (1986) (upholding zoning ordinance aimed exclusively at adult theaters and concluding that such an ordinance was content-neutral, thus war¬ ranting only minimal scrutiny). Cf. Cox v.

n. 7: " 'A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publica¬ tion’ ”, quoting Kois v. Wisconsin, 408 U.S. 229, 231 (1972). 49. Jenkins v. Georgia, 418 U.S. 153 (1974), for example held that no jury could properly find obscene

the film "Carnal

Knowledge.” 50. See, e.g., Ginsberg v. New York, 390 U.S. 629, 638 (1968). But cf. Pinkus v. United States, 436 U.S. 293, 297-98 (1978) (where there is no evidence that children have received the challenged materials, children should not be included as part of the relevant community); Butler v. Michi¬ gan, 352 U.S. 380 (1957) (materials may not be kept from adults solely because of their possible or supposed harmful effect on chil¬ dren). Thus, although risk of ultimate ex¬ posure to children is relevant in justifying state power to ban obscenity altogether, see note 47, supra, that risk does not war¬ rant adopting for adults a relaxed standard of obscenity that would be permissible when children are directly exposed. Cf. note 44, supra. 51. Mishkin v. New York, 383 U.S. 502 (1966), upheld a conviction for distributing

§ 12-16

COMMUNICATION

AND

EXPRESSION

911

whether the materials in question appeal to the prurient interest of the average person, but also whether they appeal to the prurient interest of a "deviant sexual group.” 52 In close cases, it may be made decisive that "the purveyor’s sole emphasis [is] on the sexually provocative aspects of his publications.” 53 Neither expert testimony on community sado-masochistic, fetishistic, and homosex¬ ual literature to groups who would find it appealing. Miller left Mishkin undis¬ turbed. See Ward v. Illinois, 431 U.S. 767 (1977) (finding that sado-masochistic materials could be proscribed by state law even though they were not expressly in¬ cluded within the examples of the kinds of sexually explicit representations that Mill¬ er used to explicate the aspect of its ob¬ scenity definition dealing with patently of¬ fensive depictions of sexual conduct).

lation of "dirty thoughts.” Appeal to pru¬ rient interest without any regard to fur¬ ther social consequences thus provides the only justification for the decision. But that in effect means a return to the regime of Regina v. Hicklin, L.R. 3 Q.B. 360 (1868), albeit with "new standards of taste for . . . thought control.” See generally Note, "More Ado About Dirty Books,” 75 Yale L.J. 1364, 1397-98 (1966). Pinkus v. United States, 436 U.S. 293 (1978), appears to have cleared up some of this doctrinal

Indeed, in reaffirming Mishkin’s continu¬ ing approval of bans on sado-masochistic literature, Ward may have extended the scope of Miller. The Illinois statute chal¬ lenged in Ward failed to define specifically the kinds of sexual conduct description or representation of which the state sought to proscribe. Id. at 770. Such specificity had been required by Miller. 413 U.S. at 24,

confusion by endorsing a broader formula¬ tion of jury instructions. The Court in Pinkus asserted that the determination of

27. The Ward majority simply "inter¬ preted” the Illinois statute as incorporat¬ ing the Miller guidelines — and construed those guidelines to allow the prohibition of sado-masochistic materials even though Miller itself had not referred to such materials. In dissent, Justice Stevens, joined by Justices Brennan, Stewart, and Marshall, argued that the Court’s decision marked a substantial departure from the specificity of state law requirement which had been integral to Miller. 431 U.S. 77778. Mishkin may be seen as illustrating the lack of a principled foundation for the Court’s early obscenity decisions. The de¬ fendant in that case had contended that publications depicting deviant sexual prac¬ tices could not satisfy the "prurient ap¬ peal” test of the then-governing Roth deci¬ sion because they did not excite prurient thoughts in Roth’s "average person”: "in¬ stead of stimulating the erotic,” he argued, "they disgust and sicken.” 383 U.S. at 508. The Court rejected the argument, modifying the Roth definition to permit suppression of erotica exciting only to the deviant. The Roth average person was replaced by the deviant person in cases where material appealing to the deviant was at stake. However, in reconciling Mishkin with Roth, the Court never asked whether sexual excitement of deviants posed the same social dangers as excite¬ ment of the "average person.” Dangerous conduct, in the Mishkin Court’s view, was not the dominant theme of Roth; the only relevant evil would appear to be the stimu¬

the prurient interest of the "average per¬ son” can take into account the prurient interests of members of a "deviant social group,” among other members of the com¬ munity. Id. at 302-03. This holding, per¬ mitting as it does consideration of the ef¬ fects of material on all members of the community, eliminates the curiously exclu¬ sive focus on "dirty thoughts” that Mishkin appeared to invite. 52. Pinkus

v. United

States, 436 U.S.

293, 302-03 (1978). 53. Ginzburg v. United States, 383 U.S. 463, 470 (1966) (conviction for mailing ob¬ scene material upheld on "pandering” the¬ ory); Splawn v. California, 431 U.S. 595 (1977) (upholding conviction for sale of al¬ legedly obscene films where jury was in¬ structed it could convict even if the films were protected under Miller provided the circumstances of sale and distribution indi¬ cated that the matter was being commer¬ cially exploited by the defendants for the sake of its prurient appeal); Pinkus v. United States, 436 U.S. 293, 303-04 (1978) (pandering instruction to jury appropriate in light of evidence including merely the names, locations, and occupations of recipi¬ ents). But cf. Rabe v. Washington, 405 U.S. 313, 315 (1972) ("pandering” cannot justify conviction for exhibition of nonobscene film where vague obscenity statute fails to give fair notice that pandering is proscribed; Rabe reliea on Cole v. Arkan¬ sas, 333 U.S. 196, 201 (1948)). The pandering doctrine is most trou¬ bling, not least because identifying "pan¬ dering” would appear to be particularly vague and subjective — this in an area not otherwise characterized by the existence of objectively determinate criteria. In Ginz¬ burg, a principal factor found by the Court to support conviction was the fact that

912

COMMUNICATION

AND

EXPRESSION

standards 54 nor instructions on precisely what "community” er56 are constitutionally required.

Ch. 12 to consid¬

The one group whom the Court has permitted judges to exclude from the community considered by a jury are children, and that exclusion, endorsed in Pinkus v. United States , came in a case whose facts may prove readily distinguishable: there was no showing in Pinkus that children had actually received the material in question.56 Thus, each jury, in each town and city, may be a law unto itself, applying what might represent not any widely-shared sense of value mailing privileges had been sought in In¬ tercourse and Blue Ball, Pennsylvania, and had been obtained in Middlesex, New

doctrine may illuminate some of the under¬ lying, albeit unstated, assumptions of the Court in the obscenity context. For under

Jersey, because of the "appeal” of the post¬ mark. 383 U.S. at 467. But where the

the pandering doctrine, "the offensive character of the defendant [is] relevant along with the noxious quality of his

Court detected the "leer of the sensualist,” id., other commentators saw only "the gig¬ gle of the college sophomore.” Note, supra note 51, at 1387. The pandering doctrine is made further problematic by the commercial speech doc¬ trine. See § 12-15, supra. Truthful state¬ ments which are neither misleading nor obscene are protected to some degree by the first amendment even though made for a commercial purpose. Virginia State Board of Pharmacy v. Virginia Consumers Council, Inc., 425 U.S. 748 (1976); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977). Nothing said in connection with the marketing of materials in the pander¬ ing cases was alleged to be false or mislead¬ ing, and in both Ginzburg and Splawn the Court assumed that the materials in ques¬ tion might be found nonobscene under the governing tests. Justice Stevens, dissent¬ ing in Splawn, suggested that Ginzburg cannot survive Virginia Board of Pharma¬ cy. 431 U.S. at 603 n. 2. Ginzburg was based on the premise that advertising the character of sexual materials may "catch the salaciously disposed,” 383 U.S. at 472, and "stimulate] the reader to accept them as prurient.” Id. at 470. Virginia Board of Pharmacy, wrote Justice Stevens for himself and Justices Stewart and Mar¬ shall, rejects " 'this highly paternalistic ap¬ proach’ ” (quoting Justice Blackmun’s ma¬ jority opinion in Virginia Board of Pharmacy, 425 U.S. at 770), and assumes " 'that . . . information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.’ ”). Although tainted by vagueness and based on a notion of the diminished legiti¬ macy of commercial speech no longer fol¬ lowed in the adjudication of challenges to restrictions on advertising in sale and dis¬ tribution of other materials, the pandering

speech.” Note, supra note 51, at 1364. The Ginzburg Court condemned not so much what the defendant sold but the way he sold it: "the purveyor’s sole emphasis is on the sexually provocative aspects of his publication,” 383 U.S. at 470-71, rather than on its serious literary merits. It was not the sexual practices described or de¬ picted but Ginzburg’s search for "titillation” — his gleeful glorification of the erot¬ ic — which constituted the "sordid business of pandering” that so offended the Court. As Professor Richards has suggested, it is opposition to this aspect of pornography "as the unique medium of a vision of sexu¬ ality, a 'pornotopia’ — a view of sensual de¬ light in the erotic celebration of the body,” which may be at the root of obscenity regulation. Richards, "Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment,” 123 U.Pa.L.Rev. 45, 81 (1974). See also note 99, infra. 54. Hamling v. United States, 418 U.S. 87, 125-27 (1974); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 (1973). 55. Jenkins 157 (1974).

v. Georgia, 418 U.S. 153,

56. 436 U.S. 293, 299-301 (1978) (up¬ holding instructions excluding children but including "sensitive persons” in relevant community). In early 1987, however, the Court agreed to hear a case, Virginia v. American Booksellers Ass’n, 107 S.Ct. 1281 (1987), whose outcome could signal a heightened sensitivity to the effects of sex¬ ually explicit material on child viewers. The case raises the question whether states may ban stores from displaying materials obscene for juveniles under Ginsberg v. New York, 390 U.S. 629 (1968), in places where minors might be able to "examine and peruse” them. So long as the risk to children is real rather than imagined, and so long as the challenged ban is not unduly broad or vague, the constitutional case for it seems very strong.

§ 12-16

COMMUNICATION

AND

EXPRESSION

913

but merely an average of local extremes.57 State and local anti¬ obscenity statutes cannot, however, go so far as to characterize as obscene that which provokes only "normal and healthy sexual desires.” 68 And redeeming social value must be assessed from the supposed perspective of the "reasonable person” rather than in terms of any particular community, whether local or regional or nationwide.59 Particularly in light of the possibility of both state and federal prosecution in any locale through which allegedly obscene matter might pass,60 the pressure on a publisher or distributor to conform to the lowest common denominator of sexual acceptability of course be¬ comes enormous, especially since the defendant need not be shown to have realized that his work was obscene.81 Thus, even those states that 57. Nor are states and localities that seek to restrict, ban or penalize obscene films necessarily limited by stringent burden-of-proof standards. See Cooper v. Mitchell Bros. Santa Ana Theater, 454 U.S. 90 (1981) (city, in public nuisance abatement action, is not required as a mat¬ ter of constitutional law to establish the obscenity of the motion pictures at issue beyond a reasonable doubt).

58. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 505 (1985) (rejecting over¬ breadth challenge to Washington state’s obscenity statute, but only after excising "normal sexual appetities” from the statu¬ tory term "lust”).

eral power to select, as the place of prose¬ cution and trial, any locality through which allegedly obscene matter is shipped or mailed. Article III, § 2, cl. 3, provides that the "trial of all crimes, except in Cases of Impeachment .... shall be held in the State where the said Crimes shall have been committed . . .” Thus the Framers expressly rejected nationwide venue for federal prosecutions. Yet the "continuing offense” doctrine has made it possible for Congress to provide, in 18 U.S.C. § 3237(a), that "[a]ny offense involv¬ ing the use of the mails, or transportation in interstate or foreign commerce, is a con¬ tinuing offense and, except as otherwise

of

expressly provided by enactment of Con¬ gress, may be inquired of and prosecuted in any district from, though, or into which

"any given community” would value a work cannot constitutionally determine its

such commerce or mail matter moves.” In 1958, Congress amended the statute

status as "obscene,” Justice White’s major¬ ity opinion was joined by Chief Justice

prohibiting the mailing of obscene materi¬ al, 18 U.S.C. § 1461, to ensure that the continuing offense doctrine would apply to that offense. In Reed Enterprises v. Clark, 278 F.Supp. 372 (D.D.C.1967), affd mem. 390 U.S. 457 (1968), a three-judge district court upheld the amendments. In Hamling, Justice Rehnquist rejected the asser¬ tion that local standards would impermissi¬ bly force national distributors to learn of, and comply with, the local standards of

59. See Pope v. Illinois, 107 S.Ct. 1918 (1987), holding that how

the members

Rehnquist and Justices Powell, O’Connor, and Scalia. In a dissent joined by Justices Brennan and Marshall, Justice Stevens complained that even the "reasonable per¬ son” test could foster "intolerable ortho¬ doxy” and offers no guidance in cases where "reasonable” people might disagree about social value. Justice Blackmun also dissented, but on narrower grounds. In a separate concurrence, Justice Scalia called for reexamination of Miller v. California, 413 U.S. 15 (1973).

60. The need for reconsideration of the constitutional law of obscenity was sharply highlighted by Smith v. United States, 431 U.S. 291 (1977), where the Court upheld a federal criminal conviction, under 18 U.S.C. § 1461, for mailing materials, in response to a request, from one place in Iowa to another, in violation of no Iowa law and without reference to any standard of conduct or depiction recognized by Iowa law. This use of federal criminal prosecu¬ tions to vindicate no discernible policy of the place either of mailing or of receipt, and indeed no discernible policy of any

government’s enormous prosecutorial re¬ sources to be deployed in a pursuit of ac¬ tors and distributors designed to catch them in the most favorable district for prosecutors on the slim ground that their allegedly obscene material passed through on the mail train.

Il v. ,

is

no

li

rd Wa

o

s al

e se

;

4)

97

(1

4

2 911

is aggravated by fed¬

against state prosecutions as well. More¬ over, it is at least unseemly for the federal

, 87

involved community,

every community through which their ma¬ terial might pass; the danger of state pros¬ ecution already compels as much, so no added problem is created by the federal statute. 418 U.S. at 106. But that hardly meets the objection; if anything, it argues

914

COMMUNICATION

AND

EXPRESSION

Ch. 12

grant added protection to obscene works under their state constitu¬ tions 62 offer relatively little succor to those who would peddle sexually explicit materials across state borders. Despite an ingenious proposal that distributors of sexually explicit material seek declaratory judg¬ ments of its "serious value,” joining public prosecutors as a class under Federal Rule of Civil Procedure 23, 63 Miller and its progeny offer only relatively limited protection to depictions or descriptions of sex, even if only consenting adults are involved.64 The Court has offered particularly skimpy protection for sexually explicit materials in cases where such materials involved children either as participants in the events being filmed or as members of the viewing audience. At issue in the 1982 case of New York v. Ferber 65 was a state criminal law which prohibited persons from "knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances.” The Court, in an opinion by Justice White, took careful note of the severity of the national problem of abuse of children in the production of pornogra¬ phy,66 and of the fact that the network for marketing "kiddie porn” must be closed down if the campaign against sexual exploitation is to be successful.67 For the first time in four decades, all nine Justices agreed that a particular kind of communicative material enjoys no first amendment protection whatsoever.68 Despite the fact that the law proscribed speech that was neither obscene nor otherwise unprotected in itself,69 the Court upheld the New

York criminal statute over a facial

431 U.S. 767 (1977) (upholding against vagueness and overbreadth challenges Illi¬

validating a state public nuisance statute that permitted injunctions against future exhibition of films not yet shown to be

nois statute banning sale of "sado-maso¬ chistic materials” in spite of statute’s fail¬ ure to state specifically the kinds of sexual conduct proscribed). But defendant must be shown to have been aware of what the work in fact contained, Smith v. California, 361 U.S. 147 (1959), and must have a per¬ sonal opportunity to contest its obscenity. McKinney v. Alabama, 424 U.S. 669 (1976).

62. See, e.g., State v. Henry, 302 Or. 510, 732 P.2d 9, 11-12 (1987) (construing protection for speech under Oregon consti¬ tution as broader than that provided in the Miller test, quoting from first edition of this treatise to reject idea that obscenity is not entitled to protection as a form of expression).

obscene by theatres shown to have exhibit¬ ed obscene films in the past); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) (in¬ validating of fill-in-the-blanks "boxcar” warrant touseseize obscene material from bookstore); but see Cooper v. Mitchell Bros. Santa Ana Theater, 454 U.S. 90 (1981) (refusing to require that determina¬ tion of obscenity in civil proceeding be made by a jury or based on proof beyond a reasonable doubt).

65. 458 U.S. 747, 749 (1982). Justice White wrote for the Court, joined by Bur¬

1838

ger, C.J., and Powell, Rehnquist, O’Connor, JJ. Justice O’Connor also concurred sepa¬ rately, and Justices Brennan, Marshall, Blackmun, and Stevens concurred in the

64. Paris Adult Theatre I v. Slaton, 413

judgment. 66. Id. at 749 & n. 1, 758-59 & nn. 9, 10.

63. See Note, 88 Harv.L.Rev. (1975).

U.S. 49, 68 (1973) (upholding injunction against showing of hard-core films in "adult theatres”). Of course, even when the first amend¬ ment does not protect speech, the rest of the Constitution continues to limit govern¬ mental measures aimed at obscenity. Even those who traffic in obscenity are entitled to procedural protections. See, e.g., Vance v. Universal Amusement Co., Inc., 445 U.S. 308 (1980) (per curiam) (in¬

67. Id. at 760 & n. 11 (citing first edi¬ tion of this treatise). 68. In 1942, the Court had unanimously held that the first amendment protected neither commercial speech, Valentine v. Chrestensen, 316 U.S. 52 (1942), but see § 12-15, nor "fighting words,” Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

69. Ferber, 458 U.S. at 753, 756. In¬ deed, the Court conceded that the statute

§ 12-16

COMMUNICATION

AND

915

EXPRESSION

challenge on the ground that preventing the sexual exploitation and abuse of children constitutes a governmental objective of "surpassing importance.” 70 Ferber seems to signal a heightened sensitivity on the Court’s part to the harms that pornographic activity can inflict upon participants in obscene productions as well as viewers of the resulting materials. Previous opinions, as well as scholarly analyses, had tended to focus almost exclusively on the impact upon the reader or viewer of the obscene.71 The difference between protecting children as viewers and children as participants is that between a child labor law as enforced in a newspaper shop — which is concerned not with what the paper says, but with the conditions under which children might be harnessed in its production — and a law that suppresses the newspaper because of what it says and the impact it might have on the reader. In spite of this receptiveness to the regulation of obscenity and child pornography, the Court has insisted that "thematic obscenity” is fully protected as a form of speech, so that a state cannot, for example, ban distribution of a film on the ground that it advocates adultery or makes fornication seem like fun.72 On this basis the Court has mainhad "arguably impermissible applications,” id. at 773, "ranging from medical textbooks to pictorials in the National Geographic,” id.; see also id. at 775 (O’Connor, J., con¬ curring), but deemed facial invalidation for overbreadth improper since such applica¬ tions would not "amount to more than a tiny fraction of the materials within the statute’s reach,” id. at 773 (opinion of Court); id. at 775 (O’Connor, J., concur¬ ring); id. at 776 (Brennan, J., joined by Marshall, J., concurring in judgment). Justice Stevens’ concurrence cautioned, however, that the Court’s rejection of the facial overbreadth challenge was prema¬ ture and that a decision on this claim should await a case with a less pressing governmental interest — one in which only a fraction of a film in question was lewd. Id. at 779-80. 70. Id. at 757. See Schauer, "Codifying the First Amendment: New York v. Fer¬ ber,” 1982 S.Ct.Rev. 285, 287-88 (1982) (ar¬ guing that Ferber, in carving out "yet an¬ other distinct category of material unprotected by the First Amendment,” sig¬ nals a move on the part of the Court away from tools ment plex

applying the "same tests or analytical to the entire range of First Amend¬ problems” and towards a more com¬ mode of analysis).

Anson, "The Last Porno Show,” New Times, Vol. 8, No. 13, June 24, 1977, or of child exploitation, as in Ferber. See 458 U.S. at 752. Given the great practical difficulty of directly enforcing laws against the crimes being filmed (especially if faces are concealed) and given the lack of any economic incentive to commit such crimes apart from the market for films of their commission (contrast films of bank robber¬ ies, say), it seems insufficient to reply that government must pursue the less restric¬ tive alternative of prosecuting the underly¬ ing crimes rather than prosecuting the filmmaker or indeed confiscating the film. It should be noted that this rationale does not apply to descriptions as opposed to actual photographs or recordings. Nor does it apply to films of simulated acts, or to films of conduct causing no harm other than that supposedly caused by the act of viewing.

s,

nt

9).

5 (19

4

68

S.

U.

0 36

ge

Re v.

.

rp

Co

71. Until recently, research and writing stressed, for example, the rather tenuous link to crime by the viewer or reader of the obscene. Consistently overlooked as a ra¬ tionale for banning at least some types of dims had been the link to crime by the persons being filmed. Governmental pow¬ er to prevent murder, rape, and child abuse, for example, should imply power to

destroy the primary economic incentive for a distinct category of abusive acts: the desire to film the criminal abuse itself for the titillation of a potential audience jaded by its satiation with other sights and sounds. Although government cannot be allowed the circular argument that films of consenting adult sex should be banned in order to diminish an economic incentive for fornication that might be too private to be punishable (see §§ 15-20, 15-21, infra) but for the fact that the acts are being filmed for viewing by others, no circle is involved when the argument is applied to films of child torture and mutilation, a genre of distressing popularity, see, e.g.,

916

COMMUNICATION

AND

EXPRESSION

Ch. 12

tained that the regime it is permitting "is distinct from a control of reason and the intellect/’ 73 It may be that hardcore pornography has little ideological content — although hedonism is surely an idea — but the first amendment has not generally been confined to the protection of high-minded discussion among savants, and in Cohen v. California , the Court reversed a conviction for wearing a jacket inscribed with the words "Fuck the Draft,” reasoning that the Constitution protects the "emotive function” of communication no less than its "cognitive con¬ tent.” 74 That obscenity or pornography appeals to viewers at a subcon¬ scious level and elicits a response more visceral than cerebral hardly distinguishes it from a great deal of the most effective advertising or, for that matter, political rhetoric. When it undertook for the first time to explain why society could suppress the obscene rather than merely protect the right of people to avoid it if they wished,75 the Court essentially offered three reasons, placed here in ascending order of generality and diffuseness: (1) that "there is at least an arguable correlation between obscene material and crime;” 76 (2) that states "have the power to make a morally neutral judgment” 77 that public exhibition of obscene material, or commerce in the obscene, tends to "injure the community as a whole” by polluting 73. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 (1973).

74. 403 U.S. 15, 26 (1971). To be sure, Cohen’s message was political, but cf. Win¬ ters v. New York, 333 U.S. 507 (1948) (en¬ tertainment materials such as crime and detective stories protected from overbroad ban on obscenity); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) (statute autho¬ rizing denial of license to films deemed sacreligious invalidated on vagueness grounds; first amendment protection of motion pictures is "not lessened by the fact that they are designed to entertain as well as to inform”).

75. Compare

Rowan

v. Post Office

Dept., 397 U.S. 728 (1970) (upholding statu¬ tory scheme whereby individuals could ex¬ clude unwelcome mail).

76. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 58 (1973) (citing The Report of the Commission on Obscenity and Pornogra¬ phy 390-412). 77. Paris Adult Theatre I, 413 U.S. at 69. The Court’s protestations about the "moral neutrality” of anti-obscenity laws may reflect a view, not shared by this book (see § 15-10, infra), that laws interfering with basic freedoms must above all be de¬ fended in amoral terms — whatever those may be. Compare Henkin, "Morals and the Constitution: The Sin of Obscenity,” 63 Colum.L.Rev. 391 (1963), arguing that ob¬ scenity laws are not based on any concern

for the prevention of sex offenses or other forms of crime, but rather are "rooted in this country’s religious antecedents, of gov¬ ernmental responsibility for communal and individual decency and morality.” Id. at 391, 392-95. Henkin suggests that a morally neutral consensus may be defined and legislated — an approach apparently in¬ consistent with established first amend¬ ment jurisprudence even if the determina¬ tion of a consensus on morality were currently possible. See, e.g., West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) ("If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nation¬ alism, religion, or other matters of opinion . . . ”); Kingsley International Pictures Corp. v. Regents, 360 U.S. 684 (1959) (first amendment protection "not confined to the expression of ideas that are conventional or shared by a majority. It protects advo¬ cacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax.”); Wooley v. Maynard, 430 U.S. 705, 714-15 (1977) (that "most individuals agree with the thrust of New Hampshire’s motto is not the test; . . . [t]he First Amendment protects the right of individuals to hold a point of view different from the majoritj' and to refuse to foster ... an idea they find morally ob¬ jectionable”).

§ 12-16

COMMUNICATION

AND

EXPRESSION

917

the "public environment;”78 and (3) that "what is commonly read and seen and heard and done intrudes upon us all, want it or not.” 79 The first and third of these reasons apply not only to people

watching hard-core films in "a place of public accommodation,” 80 where Paris Adult Theatre I v. Slaton upholds state power to prosecute, but also to the same people watching the same films in "the privacy of the home,” 81 where Stanley v. Georgia 82 denies state power to prosecute.83 Thus those reasons, quite apart from their tenuous character,84 do not suffice to explain current constitutional doctrine. What of the second reason — "the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city cen¬ ters?” 85 One may perhaps sanitized and the bookstores enough warning to exclude much as to accost passersby,

grant that, even if the marquees were reduced to unmarked doorways, with just those who would be offended but not so there would still be secondary impacts on

the surrounding area. But to assert, as the Court has,86 that unmarked brown envelopes speeding through the mails to Mr. Stanley’s protected home impinge on the "total community” environment is surely to claim too much. Cutting across the Court’s three arguments is a general defense of government regulation based on "unprovable assumptions about what is good for the people.” 87 We demand no proof of the uplifting quality of "good books, plays, and art” and hence should be satisfied with conjecture when the state acts "on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have

a tendency

to exert a corrupting and debasing im¬

pact . . . . ” 88 But the parallel seems fatally flawed, for the state does not and could not compel its adult citizens, on pain of imprisonment, to or listen to Brahms.89

read Dante, watch Shakespeare, 78. Paris Adult Theatre I, 413 U.S. at 68-69.

Reels, 413 U.S. 123 (1973) (Congress may forbid importation of obscene material for

79. Id. at 59, quoting from Bickel, 22

importer’s private use); United States v. Orito, 413 U.S. 139 (1973) (Congress may forbid interstate transportation of obsceni¬

The Public Interest 25-26 (Winter 1971). 80. Id. at 66.

ty for transporter’s private use).

81. Id.

87. Paris Adult Theatre I, 413 U.S. at

82. 394 U.S. 557 (1969), discussed in § 15-20, infra.

62. 88. Id. at 63.

83. See Katz, '’Privacy and Pornogra¬ phy: Stanley v. Georgia,” 1969 Sup.Ct.Rev. 203. See also Marks v. United States, 430 U.S. 188, 198 (1977) (Stevens, J., concur¬ ring in part and dissenting in part). 84. See note 27, supra, on "clear and present danger” obscenity regulation.

applying

standard

to

85. Paris Adult Theatre I, 413 U.S. at 58. Presumably these "great city centers” include such places as New York City’s Times Square and Boston’s Combat Zone. 86. See, e.g., United States v. Reidel, 402 U.S. 351 (1971) (Congress may forbid mailing obscenity to a consenting adult buyer); United States v. Twelve 200-foot

89. The Court’s sensitivity to the possi¬

bility that sexually explicit materials or productions might have redeeming social, literary, artistic or political merit that saves them from condemnation as "ob¬ scene” is notably absent in one set of cases: those in which sexually explicit (or even

merely nude) performances are accompa¬ nied by the sale of alcohol. The doctrinal rationale typically invoked by the Court in defense of this decisional practice is that the twenty-first amendment confers upon the states broad regulatory authority re¬ garding intoxicating liquors. See City of Newport v. Iacobucci, 107 S.Ct. 383 (1986) (upholding Kentucky city ordinance,

918

COMMUNICATION

AND

EXPRESSION

Ch. 12

To some, the obscene and the pornographic depict man

reduced to

the sorry sum of his basest appetities; 90 to others, obscenity eases psychosexual tensions or provides a release through fantasy, much like disaster films or soap operas, from the confines of the dreary present. To some, it represents shameless exploitation of the frustrated and the compulsive; to others, it symbolizes liberation from the compulsions of a leaden, regimented, and ultimately oppressive social order. The pride Comstock felt at having destroyed "something over fifty tons of vile books [and] 3,984,063 obscene pictures,” 91 most of which today would be likely to shock no one, should suggest a sober skepticism about any claim that the latest threat to decency has finally crossed the line of the tolerable: what was once beyond the pale rests comfortably on today’s living-room end table. The mid-197Q’s prosecutions of people who publish magazines

like

Hustler — a mix of eroticism, violence, and misogyny — may finally have separated the literati from the targets of government has been thoughtfully observed

censorship.

that the "journey from

It

Ulysses to

Hustler involves more than a move from literature to smut, from words to images.

It involves the transition from the preoccupation

of an

educated minority to the everyday fantasies of the bluecollar majori¬ ty. .. . Once upon a time, obscenity was confined to expensive leather-bound editions available only to gentlemen. . . . One of the questions asked by the crown prosecutor [in the trial of the publisher of Lady Chatter ly’s Lover] . . . was: 'Would you let your servant read this book?’ . . . Hustler is the servant’s revenge.” 92 Understandably anxious to avoid the embarrassing literary censorship of earlier times, the Court has retreated to a posture in which the erotic tastes of the educated and well bred emerge as part of the "grand conception of the First Amendment and its high purposes in the historic struggle for freedom,” while the less fashionable eroticism of the masses becomes the mere subject of "commercial exploitation of obscene material.” 93 Even if an intelligible line could be drawn between the two categories — passed pursuant to state delegation, prohibiting nude or nearly nude dancing in local establishments licensed to sell liquor); New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981) (upholding as within state’s broad powers under the twenty-first amendment a New York regu¬ lation prohibiting nude dancing in estab¬ lishments licensed by the state to sell li¬ quor, regardless of any artistic or communicative value attaching to such dancing); California v. LaRue, 409 U.S. 109 (1972) (upholding California regulations prohibiting explicitly sexual live entertain¬ ment in bars and other establishments li¬ censed to sell liquor). But see 324 Liquor Corp. v. Duffy, 107 S.Ct. 720 (1987) (no twenty-first amendment exception in anti¬ trust laws), discussed in § 6-24, supra. Nevertheless, in practice one senses that the Court is primarily motivated by its perception of a detrimental (and potential¬ ly crime-inducing) synergy between sex or

nudity and alcohol. It is noteworthy that the Court has looked with stern disfavor on similar bans on nude dancing in places not serving liquor. See Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981) (striking down New Jersey ordinance banning live entertainment, including nude dancing, for impermissibly prohibiting a wide range of expression protected by the first amend¬ ment). 90. See, e.g., H. Clor, Obscenity and Public Morality: Censorship in a Liberal Society (1969). 91. C. G. Trumbull, Anthony Fighter 239 (1913).

Comstock,

92. Neville, "Has the First Amendment Met its Match?” N.Y. Times, March 6, 1977, § 6, at p. 16. 93. Miller v. California, 413 U.S. 15, 34 (1973).

§ 12-16

COMMUNICATION

and Justice Brennan

seems

AND

EXPRESSION

919

correct in concluding that it cannot94 — it

would remain the case that ''grossly disparate treatment of similar offenders,” 95 to use Justice Stevens’ phrase, would inhere in the Su¬ preme Court’s own "enlightened” position of selective tolerance for the tastefully salacious coupled with contempt for the coarsely vulgar.96 Although

it might be possible to reconcile first amendment

prem¬

ises as well as norms of even-handed treatment with "time, place, and manner” regulations of sexually explicit or violent materials,97 the attempt to single out some images or ideas for complete suppression outside the protected enclave of the home seems ultimately incompati¬ ble with the first amendment premise that awareness can never be deemed harmful in itself.98 For in the last analysis, suppression of the obscene persists because it tells us something about ourselves that some of us, at least, would prefer not to know. It threatens to explode our uneasy accommodation between sexual impulse and social custom — to destroy the carefully-spun social web holding sexuality in its place.99 One need not "sound the alarm of repression” 100 in order to argue that the desire to preserve that web by shutting out the thoughts and impressions that challenge it cannot be squared with a constitutional commitment to openness of mind. 94. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 (1973) (Brennan, J., joined by Stewart and Marshall, JJ., dissenting); id. at 84 ("none of the available . . . can reduce the vagueness to ble level;” "[although we have that obscenity does exist and

formulas a tolera¬ assumed that we

'know it when [we] see it,’ . . ., we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly be¬ tween protected and unprotected speech”). See also Marks v. United States, 430 U.S. 188, 198 (1977) (Stevens, J., concurring in part and dissenting in part) ("the present . . . standards . . . are so intolerably vague that evenhanded enforcement of the law is a virtual impossibility . . . [G]rossly disparate treatment of similar of¬ fenders is a characteristic of the criminal enforcement of obscenity law”). 95. Marks v. United States, 430 U.S. at 198.

96. Even the line between Stanley v. Georgia, 394 U.S. 557 (1969), and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), tends to coincide with a distinction between polite society and hoi polloi; for protecting the living-room gathering around the privately-owned film projector, but not the adult theatre crowd, smacks of economic and cultural discrimination. See § 12-23, infra.

97. See, e.g., Young v. American Mini Theatres, 427 U.S. 50 (1976), discussed in §§ 12-18, 12-19, infra. 98. See Virginia State Board of Phar¬ macy v. Virginia Citizens Consumer Coun¬ cil, Inc., 425 U.S. 748 (1976) (commercial advertising protected by first amendment); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977) (residential "for sale” signs protected); see § 12-15 supra. But see the discussion of New York v. Ferber, 458 U.S. 747 (1982), supra, for a more lim¬ ited (though more powerful) rationale for suppressing a special category of films. 99. See, e.g., Richards, supra note 53, at 81: "In opposition to the Victorian view that narrowly defines proper sexual func¬ tion in a rigid way that is analogous to ideas of excremental regularity and moder¬ ation, pornography builds a model of plastic variety and joyful excess in sexuali¬ ty. In opposition to the sorrowing Catholic dismissal of sexuality as an unfortunate and spiritually superficial concomitant of propagation, pornography affords the alter¬ native idea of the independent status of sexuality as a profound and shattering ec¬

100. Miller v. California, 413 U.S. 15, stasy.” 34 (1973).

920 § 12-17.

COMMUNICATION

AND

Ch. 12

EXPRESSION

New Approaches to the Problem of Sexually Material: Pornography and Feminism

In recent years, the predominant

means

Explicit

of checking the spread of

sexually explicit materials- — time, place and manner restriction — has begun to give way in some locales to ordinances designed not to disperse or suppress erotica but to eliminate something described as " pornogra¬ phy.^ ” Typically such measures have operated by empowering women allegedly injured by the production or dissemination of pornography to bring civil suits against those who make or sell it, seeking damages or injunctive relief.1 Spurred on by feminist groups and literature,2 these measures — largely drafted by Professor Catherine MacKinnon and An¬ drea Dworkin — have sought to define and attack pornography as coer¬ cive of women and as establishing and reinforcing male supremacy. The one such measure challenged in the courts, an Indianapolis ordi¬ nance, was invalidated as impermissibly viewpoint-specific, and other such measures — despite their good intentions and the creativity re¬ flected by their structure— seem likely to fall prey to other potent constitutional attacks, including overbreadth and vagueness. Never¬ theless, the growing national hostility to pornography, epitomized by the late 1986 endorsement

of a national anti-pornography

campaign

by

the Attorney General’s Commission on Pornography,3 makes it likely that more and more anti-pornography measures will arise and provoke constitutional challenges. The ly from defined sexually

impetus for such new anti-pornography legislation stems large¬ the distinctive gender-related harms posed by pornography, not as supposedly offensive erotic material but as the graphic, explicit depiction of rape or other forms of male subordination

of females. Such harms have been emphasized

(and indeed conceptual¬

ized) only in recent years.4 First, pornography directly harms women who are either coerced into or brutalized during the process of partici¬ pating in pornographic works.5 The resulting protective rationale for suppressing pornography resonates with the concern for child partici¬ pants in pornographic films evoked by the Supreme Court in the childpornography case of New York v. Ferber ,6 although the concern for children’s legal incapacity and the consequent involuntariness under-17 sweeping anti¬ 1. As of early§ 12 1987, pornography legislation had been passed in Indianapolis and proposed in Cambridge, Los Angeles and Minneapolis. The mayor of Minneapolis twice vetoed anti¬ pornography bills approved by the city

council. See Attorney General’s Comm’n on Pornography, U.S. Dep’t of Justice, Fi¬ nal Report 392 (1986). 2. For examples of such literature, see, e.g., A. Dworkin, Pornography: Men Pos¬ sessing Women (1981); MacKinnon, Ad¬ dress, Women and the Law Conference, Washington, D.C. (April, 1983); MacKin¬ non, "Not a Moral Issue,” 2 Yale L. & Pol’y Rev. 321 (1984); MacKinnon, "Pornogra¬

phy, Civil Rights and Speech,” 20 Harv. C.R.-C.L.L.Rev. 1 (1985). 3. See supra note 1. 4. See Sunstein, "Pornography and the First Amendment,” 1986 Duke L.J. 589, 594-602 (1986) (arguing that the specific rationales for regulating pornography — particularly the harms to participants, to the victims of sex crimes generated by por¬ nography, and to society through social conditioning — differ from the vague justifi¬ cations for restricting obscenity as it had previously been defined). 5. Id. at 595-97. 6. 458

U.S. 747 (1982), discussed

§ 12-16, supra.

in

§ 12-17

COMMUNICATION

AND

EXPRESSION

921

girding Ferber makes that case theoretically distinguishable from those involving adult women or men.7 Second, pornography is widely believed to encourage sexual vio¬ lence against women.8 Finally, and most indirectly, pornography is thought to condition both men and women into accepting certain gender roles and relationships as appropriate 9— perceptions that in turn can encourage judges and jurors to blame victims of rape rather than their assailants,10 and can fuel and other walks of life. Because obscenity in the Roth-Miller line of permit localities to respond to many pornographic works as unprotected

discrimination in hiring, education, the Supreme Court’s definition of cases 11 does not extend so far as to such perceived harms by banning obscenity, cities have increasingly

considered anti-pornography measures to restrict sexually explicit books, productions and practices, defined in terms reflecting not the anti-erotic premises of the Court’s obscenity concept but the feminist premises suggested by this gender-specific set of injuries to women. By far the most celebrated such ordinance was that adopted by the city of Indianapolis in 1984 and ultimately struck down by the United States Court of Appeals for the Seventh Circuit in American Booksellers Association, Inc. v. Hudnut,12 a decision summarily affirmed by the Supreme Court.13 Indianapolis’ ordinance was predicated upon its city council’s finding that "pornography is a systematic practice of exploita¬ tion and subordination based on sex which differentially harms women.”

14 Accordingly, the council prohibited a wide and disparate

7. See Ferber, 458 U.S. at 756-57 ("a State’s interest in 'safeguarding the physi¬ cal and psychological well-being of a minor’ is 'compelling.’ ” (quoting Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 607 (1982)). 8. See Sunstein, supra note 4, at 597601 (summarizing laboratory studies, vic¬ tim accounts and governmental reports linking pornography and sexual violence); Attorney General’s Comm’n on Pornogra¬ phy, supra note 1, at 852-69 (demonstrat¬ ing connection between the spread of por¬ nography and illegal activity); MacKinnon, ''Pornography, Civil Rights, and Speech,” 20 Harv.C.R.-C.L.Rev. 1, 12 n. 20 (1985) (citing sources demonstrating connection between pornography and vio¬ lence). 9. See Sunstein, supra note 4, at 601. Cf. Beauharnais v. Illinois, 343 U.S. 250 (1952) (upholding conviction under statute prohibiting dissemination of materials pro¬ moting racial or religious hatred), a hold¬ ing widely assumed not have survived New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (holding, in relevant part, that pub¬ lic officials bringing libel suits must prove that a defamatory statement was directed at the official personally, and not simply at a unit of government). See Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978) (citing cases expressing "doubt, which we

share, that Beauharnais

remains good law

after the constitutional libel cases”). 10. See generally S. Estrich, Real Rape (1987). 11. The Supreme Court’s evolving ob¬ scenity doctrine is discussed in § 12-16, supra. 12. 771 F.2d 323 (7th Cir. 1985). 13. Hudnut v. American Booksellers Assn., Inc., 106 S.Ct. 1172 (1986). 14. The

Indianapolis City Council in¬

cluded "findings of fact” in the textthe of following its ordinance: "Pornography is a discriminatory prac¬ tice based on sex which denies women equal opportunities in society. Pornog¬ raphy is central in creating and main¬ taining sex as a basis for discrimination. Pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women. The bigotry and contempt it promotes, with the acts of aggression it fosters, harm women’s opportunities for equality of rights in employment, education, ac¬ cess to and use of public accommoda¬ tions, and acquisition of real property; promote rape, battery, child abuse, kid¬ napping and prostitution and inhibit just enforcement of laws against such acts; and contribute significantly to restrict¬ ing women in particular from full exer-

922

COMMUNICATION

AND

EXPRESSION

Ch. 12

array of practices it termed discriminatory. Among them were "traf¬ ficking” 15 in pornography and "forcing” pornography on a person in any place of employment, school, home or public place.16 The city also sought to act against those who coerced, intimidated or tricked others into performing in a pornographic production or appearing in a porno¬ graphic work,17 giving victims rights to enjoin such behavior through cease and desist orders and rights to collect compensatory damages. Finally, the city sought to provide victims of sexual violence with a civil cause of action against sellers of specific pornographic works that the victims alleged had directly caused an assault or physical attack on them.18 For all these purposes, the city defined "pornography” as "the graphic sexually explicit subordination of women.” 19 The ordinance provided for no enforcement by criminal proceedings, or by official condemnation proceedings of the black-listing variety,20 or by civil forfeiture actions initiated by public authorities.21 Despite this absence of any criminal or quasi-criminal enforcement mechanism, the Indianapolis ordinance drew an immediate anticipato¬ ry challenge from an array of distributors of books, magazines and films, all of whom sought to enjoin the regulation. A federal district court in Indiana struck the regulation down. Because much of the speech curtailed by the city was non-obscene, the ordinance was subject to first amendment scrutiny — and because adult women generally have the ability to protect themselves from being victimized by pornography, the district court held the city’s interest in checking pornography else of citizenship and participation in public life, including in neighborhoods.” American Booksellers Assn., Inc. v. Hudnut, 598 F.Supp. 1316, 1320 (S.D. Ind. 1984) (quoting § 16-1 (a)(2) of the Code of Indian¬ apolis and Marion County, Indiana) (here¬ inafter, "the Code”). 15. Id. (quoting § 16-3-(g)(4) of the Code). The ordinance defined "traffick¬ ing” as "[t]he production, sale, exhibition, or distribution of pornography.” 16. Id. (quoting Code).

§ 16-3(g)(6) of the

17. Id. (quoting § 16~3(g)(5) of the Code). The ordinance embodied a broad notion of coercion, specifically providing that consent was not to be inferred from a grant of permission from a spouse or other relative, from the fact that the person had previously posed for a sexually explicit pic¬ ture, or even from the fact that the person knew that the purpose of the acts or events in question was to make pornography and accepted payment for engaging in such acts. Id. (quoting § 16-3(g)(6)). 18. Id. (quoting § 16-3(g)(7) of the Code). If a victim could persuade a local committee of such causation, she would be entitled to remedies including a cease and desist order, compensatory damages, and "further affirmative action as will effectu¬ ate the purposes of this chapter.” Id. at

to be

1324 (quoting § 16-24 of the Code of Indi¬ anapolis and Marion County, Indiana). 19. Id. at 1320 (quoting § 16-3(q) of the Code). In adding content to this arguably vague definition of pornography, the city limited its ordinance to situations where such works presented women as sexual ob¬ jects enjoying pain or humiliation or rape; or as tied up, cut up, mutilated or penetrat¬ ed by objects or animals; in scenarios of degradation, injury, abusement, or torture; or as meant for domination, conquest, vio¬ lation, exploitation, possession, use or sub¬ mission. Id. 20. Cf. Bantam

Books, Inc. v. Sullivan,

372 U.S. 58 (1963) (invalidating as imper¬ missible "informal censorship” a Rhode Is¬ land law empowering a commission to rec¬ ommend prosecutions of distributors of those books it deemed to contain "obscene, indecent, or impure language” or "mani¬ festly tending to the corruption of the

youth”). 21. The ordinance did establish a city "operating board” which was empowered, based on a complaint by any aggrieved person or by one of its own members with reasonable cause, to initiate an investiga¬ tion and public hearing into the offending activity. Id. at 1321 (quoting § 16-1 7(a) of the Code).

COMMUNICATION

§ 12-17

AND

923

EXPRESSION

insufficiently compelling to justify the curtailment of speech, even by threatened civil actions brought by alleged victims. Moreover, the court held, the ordinance’s indefinite terminology — for example, its reference to literature graphically showing the "subordination of women” — was impermissibly vague and thus violated the due process clause.22 On appeal, the United States Court of Appeals for the Seventh Circuit affirmed.23 Judge Frank Easterbrook’s opinion for a unanimous panel agreed that Indianapolis’ conception of "pornography” included much that was not encompassed within the Supreme Court’s definition of unprotected "obscenity.” As a result, the appeals court, invoking an array of Supreme Court decisions protecting unpopular or offensive speech,24 held unconstitutional the city’s attempt to subject all such speech to a special legal regime. It did so even while conceding that pornography does not convey a cognitive idea like those expressed in some of the cases on which the court relied. "If pornography is what pornography does,” concluded Judge Easterbrook, "so is other speech” to which the Supreme Court had granted protection.25 The most striking aspect of Judge Easterbrook’s opinion — and the one most likely to influence future courts evaluating anti-pornography measures — was his conclusion that the Indianapolis ordinance consti¬ tuted impermissible discrimination on the basis of viewpoint. Defend¬ ing its ordinance, Indianapolis had argued that the measure was justifiable because it restricted only "low value” speech. The Seventh Circuit responded that in no case in which low value speech was subjected to special regulation had a legislature expressly sought to differentiate between

viewpoints. By contrast, emphasized

Judge Eas¬

terbrook, Indianapolis, in banning all "graphic sexually explicit subor¬ dination in works great and small” in its definition for "pornogra¬ phy,” 26 had created a constitutionally impermissible "approved point of view,” which the appeals court likened to "thought control.” 27 In particular, the court concluded, the city’s ordinance "established an approved view of women, of how they may react to sexual encounters [and] of how

the sexes may

relate to each other.” 28 Because

22. American Booksellers Assn., Inc. v, Hudnut, 598 F.Supp. 1316, 1329-42 (S.D. Ind. 1984).

23. American Hudnut,

Booksellers Assn., Inc. v.

771 F.2d 323 (7th Cir. 1985).

24. Id. at 328, citing Brandenburg

v.

Ohio, 395 U.S. 444 (1969) (protecting racist advocacy by Ku Klux Klan members), De Jonge v. Oregon, 299 U.S. 353 (1937) (pro¬ tecting Communists’ right to speak and seek office), and Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert, denied 439 U.S. 916 (1978) (permitting Nazi Party march through substantially Jewish community).

25. 771 F.2d at 329. In this vein, the court observed, "Racial bigotry, anti-semitism, violence on television, reporters’ bias¬ es — these and many more influence the

the

culture and shape our socialization. None is directly answerable by more speech. ... Yet all is protected as speech, however insidious. Any other an¬ swer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.” Id. at 330.

26. Id. at 331-32. 27. Id. at 328. 28. Id. See also the amicus brief filed against the ordinance by a group that called itself Feminists Against Censorship Taskforce, arguing that the ordinance con¬ stitutes forbidden gender discrimination, denying women who want them the erotic experiences they would find liberating.

924

COMMUNICATION

AND

EXPRESSION

Ch. 12

definition of pornography was '"defective root and branch,” 29 the court concluded, the ordinance— in all its applications — was unconstitutional. By a 6-3 vote, the Supreme Court summarily affirmed.30 The Seventh Circuit’s underlying hostility to the Indianapolis ordi¬ nance in Hudnut was understandable in light of the broad character of the legislation, which— unlike the Supreme Court’s definition of obscen¬ ity — failed entirely to take into account whether the subordinating works in dispute had any social, literary, artistic, political or scientific value. Nevertheless, the court’s anticipatory repudiation of the ordi¬ nance (which had not yet been applied) seemed at once premature and unduly sweeping. For one thing, Judge Easterbrook’s opinion oddly failed to draw any distinctions between the very different categories of behavior addressed by the city’s ordinance. A decision to remove from public areas posters featuring a graphic depiction of a woman proven to have been coerced into performing in a pornographic production would hardly be suspect under the first amendment. Yet, in lumping such protective steps alongside the more constitutionally questionable ac¬ tions sanctioned by the ordinance— for example, the removal from bookstores of works found to have inspired some rapists — the court paid insufficient heed to the ways in which many potential applications of the ordinance could be defended as valid. Judge Easterbrook’s summa¬ ry condemnation of the ordinance for sweeping beyond the Supreme Court’s definition of obscenity likewise overlooked the considerable overlap between the graphic depictions which Indianapolis character¬ ized as "pornography” and those depictions defined as "obscene” under the Roth-Miller line of cases. It would have been more appropriate— and surely more consonant with a restrained view of federal judicial intervention— to abstain from deciding Hudnut enforcement challenge had emerged.31

until a specific civil

In spite of its apparent rush to judgment, the Hudnut court’s overarching substantive conclusion — that Indianapolis impermissibly discriminated among viewpoints by installing heavy legal artillery aimed at sexually explicit works that depict women as desiring or deserving subordination to men — seems correct, although this short¬ coming need hardly have scuttled those aspects of the ordinance aimed solely at the products of coerced conduct — for example, the ordinance’s Ferber- like provision for the victims of forced pornographic perform¬ ances.32 As the Supreme Court stated in 1959 when it struck down a 29. 771 F.2d at 332. 30. Hudnut v. American Booksellers Assn., Inc., 106 S.Ct. 1172 (1986). Chief Justice Burger and Justices Rehnquist and O’Connor case.

voted to hear arguments

in the

31. Judge Easterbrook’s contention that the case was in fact ripe rested on his

Booksell¬

a on rt to ch Su rto de

un

fo

t

r la mi

si

Id. at

no

in resolution of the controversy.”

Appellees, Hudnut v. American ers Assn., Inc., at 26 (1986).

ed f cliy ne pael -osn tti s onicn rm wfpu ha vie of ems se ls er oa ld sheho e ur b n- e as no th me

assertion that "[W]e gain nothing by wait¬ ing. Time would take a toll, however, on the speech of the parties subject to the act. . . . Deferred adjudication would produce tempered speech without assisting

327. The Seventh Circuit’s opinion over¬ looked, however, the fact that none of the plaintiffs challenging the antipornography ordinance in Hudnut had alleged that they suffered any actual or threatened injury, much less an actual threat of prosecution or even civil suit, as a result of the ordi¬ nance. See Jurisdictional Statement of

§ 12-17

COMMUNICATION

AND

EXPRESSION

925

New York law denying licenses to show movies presenting adultery in a favorable light, the first amendment’s "guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax.” 33 Pre¬ sumably, the first amendment similarly protects advocacy — however sexually explicit or graphic — of the opinion that women were meant to be dominated by men, or blacks to be dominated by whites, or Jews by Christians, and that those so subordinated not only deserve but subcon¬ sciously enjoy their humiliating treatment. That such opinions are despicable and that their dissemination works real injury does not render their suppression consistent with the first amendment. It is an inadequate response to argue, as do some scholars, that ordinances like that enacted by Indianapolis take aim at harms, not at expression.34 All viewpoint-based regulations are targeted at some supposed harm, whether it be linked to an unsettling ideology like Communism or Nazism or to socially shunned practices like adultery. Indeed, the most interesting defenses of at least some parts of the Indianapolis ordinance, while provocative, seem to rest on too narrow a conception of the ban on viewpoint-based restrictions. It has been suggested, for example, that courts would be likely to uphold a statute selectively criminalizing incitement to violent lawless action in speech aimed against the government, so long as the standards of Brandenburg v. Ohio 35 were met.36 That prediction may well be correct, but relying on it to defend the anti-pornography ordinance elides a critical distinc¬ tion between the Brandenburg scenario and laws suppressing speech that endorses the subordination of women. It is beyond dispute that government may choose to outlaw the incitement of various acts independently deemed

crimes — including murder, rape, or, indeed, the

law remedies for defamation

or invasion of

privacy — constitutionally valid even when such remedies do not sweep beyond some content-based subset of the entire set of materials posing the same sort of threat to personal integrity. Judge Easterbrook’s opinion attempted to distinguish applica¬ tion of the Indianapolis ordinance to a co¬ erced sexual performance from a hypothet¬ ical case in which "someone forced a prominent political figure, at gunpoint, to endorse a candidate for office.” 771 F.2d at 332. In such a case, the Seventh Circuit

performing or having graphic depictions of her performance displayed or distributed so that they might be viewed. The fact that similar harms could in theory also occur in entirely non-sexual settings neither requires the city to draft a law broad enough to reach all such harms, nor renders impermissibly viewpoint-based a law of less ambitious scope. Ferber itself necessarily establishes as much. 33. Kingsley International Pictures Corp. v. Regents of N.Y.U., 360 U.S. 684, 689 (1959).

reasoned, "a state could forbid the com¬ mercial sale of the film containing that coerced endorsement.” Id. The court’s supposed distinction — that the Indianapolis statute, unlike the ban on the sale of the film featuring the politician, is "not neu¬ tral with respect to viewpoint,” id. at 332 — overlooks the fundamental objection to co¬ erced performances: that the injury they pose, like that in Ferber, see § 12-16, su¬ pra, is not an injury to anyone who watch¬ es, and may occur even if the performances are never, in fact, viewed. Rather, the injury is felt by the person coerced into

34. See, e.g., Sunstein, "Pornography and the First Amendment,” 1986 Duke L.J. 589, 612 (1986) (endorsing as constitutional anti-pornography legislation "directed at harm rather than at viewpoint [whose] purpose would be to prevent sexual vio¬ lence and discrimination, not to suppress expression of a point of view”). 35. 395 U.S. 444 (1969). 36. See, e.g., Sunstein, supra note 34, at 614.

COMMUNICATION

926

AND

EXPRESSION

Ch. 12

violent overthrow of the government. Likewise, government may sure¬ ly outlaw the direct incitement of sexual violence against women. Nor, in so doing, need it outlaw equally the incitement of all other illegal acts.37 It is, however, altogether different, and far more constitutional¬ ly tenuous, for government to outlaw, or to make civilly actionable, the incitement of violence against women only when such incitement is caused by words or pictures that express a particular point of view: that women are meant for domination.38 The analogue would be a ban on anti-capitalist speeches that incite robbery, leaving other equally effective incitements to robbery unprohibited; or a ban on incitements to violence against racial or religious minorities, applicable only when such incitements are conveyed through expressions of racial or religious bigotry. To be sure, one who incites arson against an NAACP head¬ quarters in a racist speech is more reprehensible than one who incites the very same arson to collect insurance proceeds, but to punish the former more severely than the latter is, arguably, to penalize a repre¬ hensible point of view as such.39 A related harm-based rationale for creating causes of action like some of those established by Indianapolis — that pornography conditions society to accept an abusive and hierarchical view of relationships between

men

and women— -would also appear

to run

afoul of the

Supreme Court’s demanding first amendment jurisprudence. The argu¬ ment in favor of the ordinance is akin to that with respect to "group libel”: those who defame an entire social group, like blacks, or women, or Jews, should be no less accountable merely because their victims are not individually identifiable. Decades ago, the Supreme Court showed some receptiveness to such claims, particularly in the 1952 case of Beauharnais v. Illinois,40 in which the Court upheld a conviction under an Illinois statute prohibiting the dissemination of materials promoting racial or religious hatred. Nevertheless, subsequent cases seem to have sapped Beauharnais of much of its force. In particular, the landmark libel case of New York Times Co. v. Sullivan 41 seemed to some 42 to eclipse Beauharnais * sensitivity to group libel or group defamation claims— not only because New York Times sweepingly endorsed "a 37. Cf. note 32, supra. See, e.g., Posadas de Puerto Rico Associates v. Tour¬ ism Co. of Puerto Rico, 106 S.Ct. 2968 (1986) (upholding Puerto Rican law that forbade advertisements inviting citizens of Puerto Rico to gamble legally in casinos). 38. Defenders of the Indianapolis ap¬ proach might argue that their law is not precisely of this character, since the crimi¬ nal laws of most states already criminalize incitement to lawless violence of all kinds. Even if this is so, singling out for especially burdensome treatment those films or books that express a particular viewpoint and might later be found to have met the in¬ citement test surely represents viewpointbased regulation. Particularly is this so where, as in the Indianapolis ordinance, films and books graphically expressing the objectionable viewpoint are subject to civil suits on any of several theories, some of

them completely unrelated to any assault allegedly incited by the offending material. 39. Perhaps, however, a legislature could properly decide that, for example, only racist or sexist incitements posed a serious threat of racial or sexual violence and could, on that basis, justify making only such incitements criminally punisha¬ ble or civilly actionable. Even if that is so, however, considerable portions of the Indi¬ anapolis ordinance would remain constitu¬ tionally infirm. 40. 343 U.S. 250 (1952). See § 12-12, supra. 41. 376 U.S. 254 (1964). 42. See, e.g., Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978) (citing cases ex¬ pressing "doubt, which we share, that Beauharnais remains good law after the constitutional libel cases”).

§ 12-17

COMMUNICATION

profound national commitment

AND

EXPRESSION

927

to the principle that debate on public

issues should be uninhibited, robust, and wide-open,” 43 but also because New York Times required public officials bringing libel suits to prove that a defamatory statement was directed at the official personally, and not simply at a unit of government. The arguments animating New York Times’ suspicion of claims seeking to vindicate group reputational interests seem particularly devastating to the cause of action Indianap¬ olis sought to give women affronted by works depicting the subordina¬ tion of women. How could a group "disprove” the viewpoint, despicable though it is, that women enjoy being subordinated? 44 And what public body is qualified or entitled to decide which claims about entire social groups are true and which are false? If "under the First Amendment there is no such thing as a false idea,” 45 then no official may be entrusted with power to resolve such matters. Nor, finally, is the constitutional case against regulation substan¬ tially weakened by the fact — conceded by the Seventh Circuit — that pornography, unlike much overtly political speech, works primarily through the subconscious and triggers a reaction more physiological than rational. For while pornography imperfectly suits the utilitarian "marketplace of ideas” rationale for the first amendment, the Supreme Court has never hinged the first amendment protection it accords a statement

on the intellectual power

of the ideas contained within.46

The fact that pornography’s effect on a viewer’s outlook may be subliminal thus hardly justifies granting authority to a licensing board, or to a judge, to determine which depictions qualify as subliminal subordination, or which instances of the eroticization of violence are acceptable.47 It is also difficult to conceive of a meaningful limiting principle to a constitutional doctrine according reduced protection to speech that works on the unconscious. The ordinance condemned

in Hudnut

derived much

of its political

strength from the perception that it rectified — not created — an imbal¬ ance in speech. Specifically, advocates of Indianapolis’ ordinance urged, pornography has the effect of silencing women by broadly disempowering them — and thus Indianapolis’ anti-pornography mea¬ sure was justified as an effort, in effect, to remove the gags on women 43. 376 U.S. at 270. 44. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) (placing bur¬ den of proving falsity of speech — as well as fault — on the person claiming to have been defamed). 45. Gertz v. Robert U.S. 323, 339 (1974).

Welch,

Inc., 418

46. Indeed, the Court in Cohen v. Cali¬ fornia, 403 U.S. 15 (1971), in reversing a conviction for wearing a jacket bearing the words "Fuck the Draft,” powerfully en¬ dorsed the idea that the "emotive func¬ tion” of words, as well as their impact on reason, also warrants first amendment pro¬ tection. Id. at 26. Judge Easterbrook’s assertions that "almost all cultural stimuli provoke unconsciouI s responses” and that n an primarily "unthink¬ even speech triggering ye ve nt

ing responses” warrants protection, 771 F.2d at 330, thus properly recognize the limits to the "marketplace of ideas” meta¬ phor as the rationale for first amendment protection. See § 12-10, supra. po of su in fa ar v rn d ppa i co or phgum it o r r n n e s fr dss thdee id graatwhs muy ent ofelf it sntce s om in e d ea ¬ at rd c co ha enegsan id po h , g eo s t,h m rn of ma pon do id log as th di og po le en mi¬ be e an eol thica nasta ra ma t, st ph y , o a l rn a n d th th gy idt se ce ef tyo re n o rv a i u e d u g t n ra su s Soulo Se wofo to essi l le ng r e ph pr S. styBer 4n,c at 6m0ece (c no y a n. it e te o 7 i nw,n an Ra Wo Mein Wi Ou Ag mi d ll ai r n,g pe m : unlle isenth (" 39 nst(1 97 e 4 di r, P pr es 5) of an or lu se ti no op te nc fe gr ag d e ma ap an le hy da ”) ).

928

COMMUNICATION

AND

EXPRESSION

Ch. 12

imposed by pornographers. The difficulty with this proposition, appeal¬ ing though it may seem, is that the Supreme Court has been strongly resistant to arguments that would justify governmental restrictions on speech as a means of equalizing power in the "marketplace of ideas.” Even in the heavily regulated area of election finance lav/— -an area where one might expect the Court to look more favorably upon ceilings imposed on moneyed speech — the Court has inveighed against restric¬ tions on expenditures on behalf of political candidates.48 More general¬ ly, arguments in favor of suppressing a type of speech on the ground that it has the ultimate effect of devaluing or disempowering others’ speech appeal to un verifiable and deeply contested intuitions. Argu¬ ments of this sort seem in principle illimitable. Claims of a "dis¬ empowering impact” could, with some plausibility, result in the govern¬ ment-ordered cancellation of numerous television commercials that depict women as deferential, or in the restriction of numerous works of literature, like Huckleberry Finn , that appear to characterize blacks as inferior to whites. The Supreme Court’s refusal to explain its summary affirmance of the Seventh Circuit’s decision in Hudnut leaves unsettled the viability of future anti-pornography ordinances. Nevertheless, it is likely that states and localities concerned about the proliferation of sexually ex¬ plicit books and films, whether for genuinely feminist reasons or out of prudishness, will take their cue from Hudnut and draft more targeted legislation in the future. Those measures carefully focusing on non¬ beholder harms— -on the outrageous treatment of participants in porno¬ graphic enterprises, for example — would seem to stand a decent chance of survival. But, barring a major drift away from the Court’s long¬ standing if not always present suspicion of viewpoint-specific mea¬ sures,49 any legislation purporting to designate a preferred or disfavored perception of male-female relations, or of sexuality and power and the relation between the two, seems likely to meet the fate of Indianapolis’ well-intended but constitutionally overambitious ordinance. § 12-18.

The New Theory of Content-Based Abridgments on Track One: From Mandatory Content Neutrality to Permissible Content Discrimination

From the dictum in Chaplinsky 1 the Supreme Court had gradually derived what became known as the two-level theory of the first amend¬ ment, recognizing speech at one level as fully entitled to first amend48. See Buckley v. Valeo, 424 U.S. 1 (1976) (invalidating federal ceilings on di¬ rect expenditures on behalf of political can¬ didates); Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480 (1985) (invalidat¬ ing federal ceilings on expenditures by po¬ litical action committees in publicly fi¬ nanced presidential elections), discussed in Chapter 13, infra. 49. That many areas of existing first amendment doctrine — ranging from ob¬ scenity law to the law of labor-manage¬ ment communications — implicitly tolerate content-based, and perhaps even viewpoint-

based, controls of speech, see Sunstein, su¬ pra note 34 at 613, seems an insufficient justification for inviting a new, and a par¬ ticularly dramatic, departure from the overarching principle that government should not be empowered to suppress ex¬ pression based on the rejection of the world view that it propounds as evil, or false, or both.

1. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942), § 12-18discussed in § 128, supra.

§ 12-18

COMMUNICATION

AND

EXPRESSION

929

ment protection and relegating to a lower level speech so worthless as to be beyond the constitutional ken.2 Fighting words, according to Chaplinsky, were in the latter class.3 Libelous utterances were placed outside the circle of constitutionally protected speech in Beauharnais v. Illinois ,4 and obscenity in Roth v. United States ,5 a case which was the centerpiece of the two-level theory. While not part of the Chaplinsky litany, commercial advertising had been similarly removed from first amendment scrutiny.6 But the two-level theory began to unravel in New York Times Co. v. Sullivan ,7 where the Court rejected the argu¬ ment that libel was not constitutionally protected. ''Libel,” said the Court, "can claim no talismanic immunity from constitutional limita¬ tions. It must be measured by standards that satisfy the first amend¬ ment.” 8 The Court’s skepticism toward "mere labels” of state law inevitably called into question the whole structure of first amendment rights erected on the Chaplinsky foundation, and ever since, that structure has been coming apart. The fighting words doctrine itself has been narrowly construed.9 More fundamentally, in the place of a dual-level theory composed of 2. The label "two-level theory” is at¬ tributable to Kalven, "Metaphysics of the Law of Obscenity,” 1960 Sup.Ct.Rev. 1. The "two-level theory” should not be con¬ fused with the two-track analysis elaborat¬

has restricted the fighting words doctrine in several ways. First, it has struck down as overbroad statutes proscribing offensive language. See, e.g., Gooding v. Wilson, 405 U.S. 518 (1972) (invalidating a Georgia or¬ dinance primarily because it had been pre¬

ed in § 12-2. The "two-level theory”, as explained by Professor Kalven, is descrip¬ tive of an approach of the Court to contentbased abridgments of speech, and is thus a theory about the class of restraints which

viously applied to "utterances where there was no likelihood that the person ad¬ dressed would make an immediate violent

are on track one. The "two-level theory” is not concerned with track-two problems — abridgments which are aimed at the noncommunicative impact of a communica¬ tion.

punished "opprobrious language,” deemed by the Court to embrace words that do not

3. 315 U.S. at 572-73, discussed § 12-10, supra. 4. 343 U.S. 250 (1952), discussed §§ 12-12 and 12-17, supra. 5. 354 U.S. 476 (1957), discussed § 12-16, supra 6. See Valentine

v. Chrestensen,

utterance”); Lewis v. New Orleans, 415 U.S. 130 (1974) (invalidating statute that

"by their very utterance inflict injury or tend to invite an immediate breach of the

in in in 316

U.S. 52 (1942), discussed in § 12-15, supra.

7. 376 U.S. 254 (1964), discussed in §§ 12-12, 12-13, 12-14, supra. 8. Id. at 269.

9. The Court has in effect incorporated the clear and present danger test into the fighting words doctrine. See Note, "The Fighting Words Doctrine — Is There a Clear and Present Danger to the Standard?”, 84 Dick.L.Rev. 75, 76-78 (1979). This result is in accord with the original thrust of Chaplinsky, which was apparently "intend¬ ed to be a very narrow opinion premised on the sole ground that the first amendment did not foreclose the states from preserving the public peace by prohibiting words thought likely to cause a brawl.” Gard, "Fighting Words as Free Speech,” 58 Wash.U.L.Q. 531, 534 (1980). The Court

Next, the Court weakened the conceptu¬ peace”). al foundation of the fighting words doc¬ trine in Cohen v. California, 403 U.S. 15 (1971) (reversing conviction for wearing, in a Los Angeles courthouse corridor, a jacket that bore the words "Fuck the Draft”). Cohen turned "the presumptions in Chaplinsky around: instead of presuming that profane or defamatory speech was be¬ neath constitutional protection, [the Court in Cohen] presumed that the speech was protected and that the burden of proof lay with those who would restrict it.” Arkes, "Civility and the Restriction of Speech: Rediscovering the Defamation of Groups,” 1974 Sup.Ct.Rev. 281, 316. Furthermore, by opining that "one man’s vulgarity is another’s lyric,” 403 U.S. at 25, the Court created definitional problems in the "fight¬ ing words” area, see Rutzick, "Offensive Language and the Evolution of First Amendment Protection,” 9 Harv.C.R.C.L.L.Rev. 1, 20 (1974); Greenawalt, "Speech and Crime,” 1980 Am.B.Found. Res.J. 645, 770: "classifying particularly offensive expressions is difficult. Forms of expression vary so much in their contexts

930

COMMUNICATION

AND

EXPRESSION

Ch. 12

two types of speech — that which enjoys full, although not absolute, constitutional protection and that which enjoys no such elevated sta¬ tus — the Court is beginning to construct a multi-level edifice with several intermediate categories of less-than-complete constitutional pro¬ tection for certain kinds of expression. These new categories include commercial speech,10 near-obscene 11 and offensive 12 speech, non-obscene child pornography,13 defamation,14 and possibly the speech of public employees.15 and inflections that one cannot specify par¬ ticular words or phrases as always being 'fighting.’ What is gross insult in one set¬ ting is crude humor in another. And what is offensive shifts over time.” See § 12-10, supra.

10. Commercial speech is defined as communication that proposes a business 5 transaction, see Zauderer v. Office of Disci¬ plinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). The topic is discussed . in § 12-15, supra.

tory falsehoods may be made actionable. That very conclusion implies that some speech is less worthy than other speech and may be suppressed so long as govern¬ ment does not, incident to the regulation of such less worthy speech, unduly hamper the exchange of ideas and information pro¬ tected by the first amendment.

rig o f s the Cou att to hts f ree peech rt emp , t s of str " b bet the int ike a alanc ere wee s the [em eas a citi n in com t p z maen s t 11. See Young v. American Mini Thea¬ upo maltoyee of pub en,con ndtin he lic t ] c gin int n ofersthe Sta as an eermnp tres, Inc., 427 U.S. 50 (1976); City of Ren¬ ere te, l o y st ton v. Playtime Theatres, Inc., 106 S.Ct. pro the eff of the pub er, ser¬ ici 925 (1986). lic mot enc iint gpe vic t i e y ts mpl hr rv.foBo Pices 3o9y1 U.S 12. See F.C.C. v. Pacifica Foundation, rmasrd ofouEgdhuca ees . ker t .u” ing ( ion 438 U.S. 726 (1978). 5 5 ( i 6 1 n , h 6 m p In de3, th 8 fi 968a)m oldi theerdmiis of ¬a rst detr e n e ndm g smsis 13. See New York v. Ferber, 458 U.S. e efnotr ope hig rmisnch tea criibslael a ionogl t h 747 (1982). Child pornography now enjoys boa of eadu cher for intlsy all icizin of oca g rd pucbat little, if any, first amendment protection. sch fun beltiicone ath and tieodnu let oo ca¬ ds we mp See id. at 763 ("Recognizing and classifying tio land for its meetn loyee of icisnf t ax¬ n ’s orm hod child pornography as a category of materi¬ i s n p a t n f a r he eed or ddi g eve¬ ay bo al outside the protection of the First tio em nueers Onl ut whe a gov n p al loy ). y n ern Amendment is not incompatible with our e men eng in exp t add to "ma e earlier decisions.”) (emphasis added). res t res a te geosf pub csoino ds t f ¬ 14. The Court in New York Times Co. lpirco cnheirm fro oeetsder he irst amres tec min n” m ndm t ati v. Sullivan, 376 U.S. 254 (1964), did not say enet "Wh e c be ofnai.r xpr ann mpl e that all defamatory and false statements of ly conn oye as rel ess to any otmat o¬f i a s t e o t i e derso fact have constitutional value. See Gertz pol or oitnhg n con tor the edcia iti e c r e l v. Robert Welch, Inc., 418 U.S. 323, 340 com cal, go, v off rn sho ici uld m e u r als t (1974). Instead, the Court in New York nmie m enj ni witdy lat n h nt ana eir of¬ itiu g ficeoy wite, o b Times Co. v. Sullivan and its progeny may d i n v y the teru ersng hou s, siv igh t be taken as holding two things: (1) that the jud in the nam eof the Fir t Ame st ici e n first amendment is an absolute bar to sedi¬ men ary Con v. Mye 461 U.S 1d3¬8 . r n t tious libel, so that government cannot 146 .(” (uipck thes, dis of an, 198 c h 3 old g )at claim to have been defamed; and (2) that ass who hcairrge a inegne tor ist cul r a n a a l e n the amendment requires protection of tedas t que aymo her cok¬ wopr some worthless falsehoods defamatory of ing sttihoen abo offnig tra o k f o e f l ice icrys,, nsf mnai ut ce individuals in order to protect speech that mor three nee for a grier com d evia s mit matters. As to the first holding, the tee,alteh,e lev nnceupe ¬ el of confid r v i e a w e f p s nce elt re ors to nd het mpl Court’s conclusion is "absolute”; seditious s , s o h u speech is protected unless the government wor in peorl cyaemes The reCdou iti r k p has not sug cal thaaigsnpe can show a compelling necessity for its by pub t s)e.c lic t ges suppression, a standard nearly always fatal emp on mtated not of puhb con l t cer loy ic ers n to government regulation. As to the sec¬ is "toees bey the pro of the tal t ond ly Fir Ame id. at 1e4c7 tioor tha it ond holding, the Court’s conclusion is not s , n t t n that defamatory falsehoods are themselves "fa int dmoene of the nar and wel l l n o roww to,f” ex protected but rather, as with a case on def ls cla car hic pre sse r ine ies sss so litdt s s val as hobs track two, see § 12-23, infra, that the regu¬ cen ue, iuocnh le ocial tha the Sta can pro and punity, lation of such defamatory falsehoods may t hib te ish i incidentally and unduly constrict the flow suc exp by all per t in its juri h res so s¬ of protected speech. So long as sufficient dic ids,ionbut the Cou nscle vie ws suctions,pe as a for orft com arly care is taken to avoid that result, defama¬ h m ” ech mun ica tio n

COMMUNICATION

§ 12-18

AND

EXPRESSION

931

Commercial speech provides an illustration of the process by which the Court has moved from the two-level theory to the approach of intermediate categories.16 The original view, represented by the Court’s comment in Valentine v. Chrestensen ,17 was that "the Constitu¬ tion imposes no . . . restraint on government as respects purely commercial advertising.” 18 Gradually, the "casual, almost offhand” 19 remark in Valentine lost favor, and the Court began to question the tenet that "purely commercial beneath

full first amendment

speech” was wholly unprotected by the

protection.

And even when an employee’s speech re¬ lates to matters of public concern, the first amendment interest must be weighed against the government’s interest as an employer, see id. at 154. This approach invites the Court to engage in standardless balancing and subjective, content-based de¬ terminations of the social importance of speech, a mode of analysis that the Court has rightly rejected in other contexts. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 346 (1974) (repudiating Rosenbloom v. Me¬ tromedia, Inc., 403 U.S. 29, 43-44 (1971), which had extended constitutional privi¬ lege to defendants sued for defamatory statements that involved "matters of pub¬ lic or general concern”), discussed further in § 12-13, supra. The judgment

of when

speech by public

employees touches a "matter of public con¬ cern” is particularly difficult to make be¬ cause communications about "the manner in which the government is operated or should be operated” are an essential part of comment on the process of self-govern¬ ance, a major purpose of the first amend¬ ment. Mills v. Alabama, 384 U.S. 214, 218 (1966). In the public employee sphere, it appears that "[b]ased on its own narrow conception of which matters are of public concern, the Court implicitly determines that information concerning employee mo¬ rale at an important government office will not inform public debate. To the con¬ trary, the First Amendment protects the dissemination of such information so that

tions” — a contention that was all too remi¬ niscent of the English Statute of Treason, which provided capital punishment for "compassing or imagining the death of the king.” Perhaps this needlessly extrava¬ gant argument led the Court to overreact. Justice Marshall, writing for the Court, found that the statement "plainly dealt with a matter of public concern” simply because it "was made in the course of a conversation addressing the policies of the President’s administration.” Id. at 2897. Because there was but minimal danger that McPherson’s outburst would be heard by the public or would interfere with the efficient functioning of the office, see id. at 2899, the police department’s interest in discharging her was outweighed by the first amendment value served by her ex¬ pression. But as Justice Scalia, joined by Chief Justice Rehnquist and Justices White and O’Connor, persuasively argued in dissent, McPherson could certainly have been reprimanded — as a lesser alternative to being fired — after her remark. See id. at 2904. Although a warning is a less severe move than a discharge, the point supports Justice Scalia’s view that Mc¬ Pherson was not entitled to make her com¬ ment. A rule that permitted a typist with¬ in the police department to "ride with the cops and cheer for the robbers,” id. at 2902, would also allow nonpolicymaking employ¬ ees of the EEOC repeatedly to crack racist jokes while on the job. Id. at 2905.

the people, not the courts, may evaluate its

The Court has also recently narrowed the fourth amendment rights of public em¬ ployees against intrusive searches, see

usefulness.” Connick, 461 U.S. at 164-65 (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting).

O’Connor v. Ortega, 107 S.Ct. 1492 (1987). 16. For a fuller discussion of the com¬ mercial speech doctrine, see § 12-15, su¬

The anomalies of the public employee speech doctrine are illustrated by Rankin v. McPherson, 107 S.Ct. 2891 (1987), in which the Court, by a 5-4 vote, ordered the reinstatement of a police clerk-typist who was fired after commenting, upon hearing of the assassination attempt on President

17. 316 U.S. 52 (1942) (upholding mu¬ nicipal ordinance that prohibited the dis¬ pra. tribution of printed "handbills, cards and circulars” bearing commercial advertising messages and that specifically exempted

Reagan in 1981, "if they go for him again, I hope they get him.” The solicitor general had argued in his amicus brief to the Su¬ preme Court that hoping for the assassina¬ tion of the President "is not a position which should be regarded as a matter with¬ in the realm of publicly debatable proposi¬

"the lawful distribution of anything other than commercial and business advertising matter”). 18. Id. at 54 (emphasis added). 19. Cammarano v. United States, 358 ring). U.S. 498, 514 (1959) (Douglas, J., concur¬

932

COMMUNICATION

AND

EXPRESSION

Ch. 12

first amendment.20 In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,21 the Court finally repudiated the Valentine doctrine and extended a modicum of first amendment protec¬ tion to commercial speech. The Court rejected the notion that such expression "is wholly outside the protection of the First Amendment” 22 and was careful not to hold "that it is wholly undifferentiable from other forms” of speech.23 The Court clearly was concerned that vigor¬ ous protection of commercial speech would require the invalidation of truth-in-advertising and anti-fraud consumer

protection legislation and

therefore cautioned that "[attributes such as . . . the greater objectiv¬ ity and hardiness of commercial speech . . . may make it less neces¬ sary to tolerate inaccurate statements for fear of silencing the speaker .” 24 The Court based its holding not on any doctrine that attributed reduced constitutional value to commercial speech,25 but rather on empirical judgments about the conditions such speech requires in order to survive. The Court accordingly concluded that the risk of reduced professionalism among pharmacists could not justify a ban on truthful commercial speech urging consumers to purchase products that are both lawful and safe when used as intended. To be sure, there are dangers that even accurate information about a safe product will be misused. But "[i]t is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.” 26 Two years later, however, in Ohralik v. Ohio State Bar Associa¬ tion the Court qualified its endorsement of this view. The choice to accord full constitutional protection to commercial speech was no longer made by the first amendment: "we . . . have afforded commer¬ cial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm 20. See Bigelow v. Virginia, 421 U.S. 809, 822 (1975) (reversing conviction for violation of a Virginia statute that criminalized the circulation of any publica¬ tion encouraging or promoting abortions, but stressing that the advertised activity related to the public’s "constitutional in¬ terests”); Pittsburgh Press Co. v. Pitts¬ burgh Comm’n on Human Relations, 413 U.S. 376, 388 (1973) (upholding an order that forbade Pittsburgh Press from carry¬ ing sex-designated "help wanted” ads, ex¬ cept for certain jobs, on the theory that such a practice involved illegal gender dis¬ crimination). 21. 425 U.S. 748 (1976). 22. Id. at 761. The Court asked wheth¬ er commercial speech "lacks all protection. Our 762. answer is that it [does] not.” Id. at 23. Id. at 771 n. 24. 24. Id. at 771-72 n. 24.

25. Indeed, the Court emphasized re¬ peatedly the important interests served by commercial speech. "As to the particular consumer’s interest in the free flow of com¬ mercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate,” id. at 763. And "society may also have a strong interest,” id. at 764, in com¬ mercial speech because "the free flow of commercial information ... is indispens¬ able to the proper allocation of resources in a free enterprise system” and "to the for¬ mation of intelligent opinions as to how that system ought to be regulated or al¬ tered,” id. at 765. 26. Id. at 770. 27. 436 U.S. 447 (1978) (upholding the authority of a state bar to discipline a lawyer for soliciting clients in person, for pecuniary gain, and under circumstances likely to pose dangers that the state may constitutionally prevent).

§ 12-18

COMMUNICATION

AND

EXPRESSION

933

of noncommercial expression.” 28 By the time of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York ,29 it had become accepted wisdom 30 that "[t]he Constitution . . . affords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for particular com¬ mercial expression turns on the nature of both the expression and of the governmental

interests served by the regulation.” 31 It is on this

28. Id. at 456 (emphasis added). The Court worried that "[t]o require a parity of constitutional protection for commercial and noncommercial speech alike could in¬ vite dilution, simply by a leveling process, of the [First] Amendment’s guarantee with respect to the latter kind of speech.” Id. See Shiffrin, 'The First Amendment and Economic Regulation: Away From a Gen¬ eral Theory of the First Amendment,” 78 Nw.U.L.Rev. 1212, 1218, 1220-21 (1983): In Virginia State Bd. of Pharmacy v. Vir¬ ginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), "the Court never admitted that commercial speech was less valuable

than political speech. The 'commonsense differences’ had nothing to do with value. . . . [Although] Justice Blackmun labored to defend the asserted equal relationship between commercial speech and political speech for the Virginia Phar¬ macy majority, Justice Powell in Ohralik . was content to lead the Court to an oppo¬ site position without explanation. In so doing, Justice Powell steered the Court to accept a hierarchy of protected speech for the first time, despite his own stated oppo¬ sition to creating any such hierarchy [in Young v. American Mini Theatres, Inc., 427 U.S. 50, 73 n. 1 (1976) (Powell, J.,

sistently accorded noncommercial

speech a

greater degree of protection than commer¬ cial speech. San Diego effectively inverts this judgment, by affording a greater de¬ gree of protection to commercial than to noncommercial speech. . . . Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial informa¬ tion concerning goods and services is of greater value than the communication of noncommercial messages.” See also Pacif¬ ic Gas & Elec. Co. v. Public Utilities Comm’n

of California, 475 U.S. 1, _

(1986) (contrasting expression that "re¬ ceives the full protection of the First Amendment” with "speech that proposes a business transaction”).

to by the Co a tes d Th ur e iffe ts ppli t ren of co ed an no res d mm nc t tri er t om po s ill cia sctpi c h u m s ia e eoen b l u o s tra by tlh fo rdi Co er¬ i¬ tio no cshocc toe n e rm na nste upi rweg basn er te pent f on e . ed ula ecd co m t m a gov h "[we vig ion re rec erpne of]rhecaiapri me eive res oro sthe visepw e u re l va ¬r¬ nt : t e s r c ma h be sus son the stiact act te onl y , tes ion y ta tha intehde reg can sh if the go ow v u t of ser ¬ me dr is earnpmre lat concurring) ].” Shiffrin, supra, at 1220-21. an aw v¬ io encis s C n t el s 29. 447 U.S. 557 (1980) (striking down i ing na co t o Innsco v. Co y aotfe Nenter Yo Edmp da . te rk isell order of commission that prohibitedCe utility w e .li¬ s d onin ntr t. ,Y 447 N o C S P g om f ew ” or erv ubl al from advertising to promote the consump¬ k Hu m i i co, do ’(nst tion of electricity). ds U.S. c530, 540ce (198 wn mm rik on s 0 isen ) f u p t r ing til , 4io u h r r ¬¬ l a o o e n t h m 4 i ins biilbi mo clo7 U ty dis 30. See Young v. American Mini Thea¬ n lionte p ert p c co sin.gS. a thl iss ters, Inc., 427 U.S. 50, 69 n. 32 (1976) fg d ub s oli ussi see nt y t u l cy)v Bng es B ofic Bo als roFvier 56N2a(Stevens, J., plurality opinion) (noting that an ;. els t6i3 rsst o t (inon 435 iaUl.S o.n76a5 786 k (19 lot the difference between commercial price ti l, 7 . v tha8) for alid bus sta a Ma, and product advertising and ideological ss t t bad ati i¬ communication permits regulation of the ceon ng frute ma caochu nes rp s om ki tr s e o former "that the First Amendment would "th ibvuo¬t to inf ng or exrattts tio lue to th evot e su qupenion on ns an e es di s not tolerate with respect to the latter”); y bm t t i an ers,of affnce m o t o Linmark Associates, Inc. v. Willingboro tt nieonureat the ha y e ed n cti s eri r a Tp., 431 U.S. 85, 91-92 (1977) (striking n ogf the cor bus the pro llor ass y ¬ ets per ine down statute that regulated posting of real 1, U 4 V v B po t s . . a 2 u lSi.m (yp,e ccukl s (st leo, do4 25 ra(t1i9 estate "for sale” and "sold” signs); Fried¬ riey wn it r ri o7n6 man v. Rogers, 440 U.S. 1, 8-10 (1979) of can s baym) an onkinbgeh on ex )”); pe f di¬ wh alf up offd da ndor fed (upholding state ban on the use of te ho il ice i e t r s l e ucr a tradenames by optometrists); Metromedia, A resdin lim ca oens l m t g i t ts) rian Inc. v. San Diego, 453 U.S. 490, 513 (1981) co ric¬ tio paion law bud nonm m . n gn fu m (White, J., plurality opinion) (striking lon th tioont islha is per er¬ cia spe e her eand l ech m iss di, a down ordinance that prohibited much out¬ as it "di ble so lo, ngdv it¬he ng rec a door advertising but contained an excep¬ a i go [su n ce t sse i tle nte m i vn ed bs.t. . an d s eortnm ore yxten rest s han rt¬ s ant tion for onsite commercial displays): "our siv e ial recent commercial speech cases have con¬ e Ce thnatal in to ser ne ] nt te ce t ve ra re ss l st ar .” y

934

COMMUNICATION

AND

EXPRESSION

Ch. 12

basis that the Court in Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico ,32 upheld Puerto Rico’s law banning entirely truthful and non-misleading advertising, whenever aimed at the local populace, of lawful gambling in Puerto Rico’s casinos. Perhaps the Court has come to view at least some advertising as less akin to advocacy than to incitement , and has decided that, if the activity being incited is suffi¬ ciently harmful in itself, the state’s decision not to ban that activity outright — out of respect for privacy, or anticipated difficulties of en¬ forcement — need not entail a first amendment duty to permit selfinterested exhortation to engage in the activity.33 A plurality of the Court created another category of speech that enjoys less-than-full first amendment protection in Young v. American Mini Theatres , //ic.,34 by upholding a zoning ordinance which restricted the locations of new theaters showing sexually explicit "adult” movies. While the decision bears on the Court’s treatment of obscenity, Ameri¬ can Mini Theatres is not itself an obscenity case. The ordinance defined an "adult” movie as one presenting material characterized by an emphasis on matter depicting "specified sexual activities” or "speci¬ fied anatomical areas,” each term being defined with some precision. The ordinance clearly included non-obscene, but sexually explicit ex¬ pression, protected by the first amendment; it was not even argued that the ordinance regulated only unprotected obscenity.35 The plurali¬ ty approached the "erogenous zoning” ordinance from a perspective novel in first amendment jurisprudence. While acknowledging the strong constitutional aversion to content-based regulation of expression, the plurality gave two reasons to justify the departures from neutrality in the Detroit ordinance. First, the "paramount obligation of neutrali¬ ty” was not violated, since the ordinance did not regulate speech on the basis of government approval or disapproval of the particular expres¬ sion’s "point of view.” 36 Second, sexually-explicit expression has Hudson Gas & Electric Corp. v. Public Ser¬ vice Comm’n of New York, 447 U.S. 557, 566 (1980). 32.

106 S.Ct. 2968 (1986), discussed in

§ 12-15, supra. 33. Such a theory would, for example, support a law prohibiting individuals from urging others to commit suicide, at least where such encouragement is motivated by self-interest (as in the case of one who would like to film another’s death). This theory would also support a law prohibit¬ ing businesses from advertising cigarettes for profit, but not a law prohibiting the advertisement of driving or skiing or other merely risky but not intrinsically harmful activities — activities that the state cannot plausibly claim it would ban outright but for the intrusiveness or impracticality of enforcing a direct prohibition. Indeed, the Court’s application of this approach to lo¬ cal gambling — the activity at issue in Posadas, supra note 32 — may well be more problematic than the approach itself. As applied to a uniquely harmful but hard to

ban activity like smoking, the approach set forth here seems unthreatening to basic free speech values. 34. 427 U.S 50 (1976) (plurality opinion by Stevens, J., joined by Burger, C.J., and White and Rehnquist, JJ.). Justices Bren¬ nan, Stewart, Marshall, and Blackmun dis¬ sented. 35. Id. at 61, 62. 36. Id. at 70. See also Greer v. Spock, 424 U.S. 828, 828-29 & n. 10 (1976) (Stew¬ art, J.) (upholding military regulations banning partisan political activities in open areas of military base). The military authorities were found not to have discrim¬ inated in any way among candidates for public office based upon the candidates’ supposed political views and no candidate had ever been permitted to campaign on the base. Nor would discrimination be in¬ ferred by the Court from the decision of military authorities to invite non-political civilian speakers and entertainers to ap¬ pear at the base.

§ 12-18

COMMUNICATION

AND

EXPRESSION

935

"lesser” value than other protected speech, particularly political de¬ bate: "Few of us would march our sons and daughters off to war to preserve the citizen’s right to see 'Specified Sexual Activities’ exhibited in the theaters of our choice.” 37 The plurality then applied a "balanc¬ ing test” which it quickly resolved in favor of the government on the basis of a finding, which was apparently not contested by respondents, that Detroit’s zoning ordinance did not greatly restrict access to sexual¬ ly explicit (albeit protected) expression, since it left enough sites for "adult” theaters to accommodate all patrons.38 The market for sexual¬ ly explicit material was thus said to be "essentially unrestrained.” Although the dissenters in American Mini Theaters trusted that the Court’s decision had been an "aberration,” 39 later developments proved them wrong. In Federal Communications Commission v. Pacifi¬ ca Foundation ,40 the Court upheld the FCC’s authority to proscribe radio broadcasts which it finds "indecent but not obscene.” 41 The case involved a recorded monologue by comedian George Carlin about "the swear words, the cuss words, and the words you can’t say” 42 which concluded a radio talk show devoted to a discussion of society’s atti¬ tudes toward language. Just before airing the piece, the program’s host advised listeners that the record contained "sensitive language which might be regarded as offensive to some.” 43 On the basis of a citizen’s complaint, the FCC issued a "Memorandum Opinion and Order” in which the agency concluded that the "seven dirty words” that Carlin spoke "depicted sexual and excretory activities and organs 37. American Mini Theatres, 427 U.S. at 70. (Powell, J., joined all but this part of the plurality opinion; Burger, C.J., White, J., and Rehnquist, J., joined the entire opinion.) The dissenters, in an opin¬ ion by Justice Stewart, id. at 84, 86, proper¬ ly took Justice Stevens to task for the standard implicit in his rhetoric. The Bill of Rights is needed precisely because few of us would make great sacrifices to preserve its principles when confronted with an im¬ mediate choice. It is because collectively we have agreed that our individual atti¬ tudes would be short-sighted that the Con¬ stitution proves so vital. See §§ 1-7, and 11-4, supra. 38. 427 U.S. at 62. The petitioners did not claim that access to the market for sexually explicit material had been re¬ stricted for the distributors of adult films or for the viewing public, but it is difficult to believe that such a case could not have been made. The decision in American Mini Theatres thus leaves open exactly how much restraint is compatible with an essentially free market in "adult” fare. 39. 427 U.S. at 87 (Stewart, J., dissent¬ ing). 40. 438 U.S. vens announced ered the opinion to those parts of

726 (1978). Justice Ste¬ the judgment and deliv¬ of the Court with respect his opinion holding that

the challenged broadcast was "indecent”

within the meaning of the FCC’s enabling statute and that such a broadcast could be regulated because of the uniquely perva¬ sive nature of the radio medium and its easy accessibility by children. He was joined by Chief Justice Burger and Justice Rehnquist and, except with respect to his contention that an indecent broadcast mer¬ ited less first amendment protection than other forms of speech, by Justices Powell and Blackmun. Justice Powell, joined by Justice Blackmun, filed an opinion concur¬ ring in part and concurring in the judg¬ ment, in which he disagreed with Justice Stevens’ conclusion that indecent speech should be relegated on the basis of its content to a low position in a constitution¬ al hierarchy of speech. Justice Brennan filed a dissenting opinion, in which Justice Marshall joined, that addressed constitu¬ tional issues presented by the FCC’s regu¬ lation, and Justice Stewart filed a dissent¬ ing opinion, in which Justices Brennan, White, and Marshall joined, that focused on the issue of the proper construction of the FCC’s governing statute. 41. 438 U.S. at 729. 42. Id. at 751-55 (appendix, in which a transcript of the broadcast appears). The "seven dirty words” to which the FCC took offense were fuck, shit, piss, motherfucker, cocksucker, cunt, and tit. 43. Id. at 730.

936

COMMUNICATION

in a manner

AND

Ch. 12

EXPRESSION

patently offensive by contemporary

community

standards

for the broadcast medium,” 44 and were therefore prohibited by 18 U.S.C. § 1464, which forbids the use of "any obscene, indecent, or profane language by means of radio communications.” 45 Expressly stating that the "indecent” speech it sought to control was " not sub¬ sumed by the concept of obscenity” 46 as defined by Miller v. Califor¬ nia ,47 the FCC justified its broader category of restricted speech by reference to the "unique qualities” of the broadcast media.48 Justice Stevens’ opinion for the Court seized upon these "unique qualities” to justify the FCC’s censorship of the Carlin monologue. First, the Court focused on the intrusion of the broadcast medium into the home and permitted the FCC to conclude that a listener should not be put even to the minimal discomfort of enduring offensive speech for the short interval required to change the channel or turn off the set. The majority held that the avoidance of such discomfort outweighed the first amendment interests of other listeners who would have wanted to hear the Carlin monologue.49 Second, the Court emphasized

the presence of unsupervised

chil¬

dren in the listening audience and agreed with the Commission’s finding that the language used by Carlin, although not obscene,50 was 44. In re A Citizen’s Complaint Against Pacifica Foundation WBAI (FM), 56 F.C.C.2d 94 (1975). Although it upheld the complaint, the Commission declined to im¬ pose formal sanctions against the station. 45. The Commission also grounded its action in 47 U.S.C. § 303(g) (1982), which requires the FCC to "encourage the larger and more effective use of radio in the pub¬ lic interest.” Justice Stewart, in dissent, characterized the invocation of § 303(g) as an independent authority for the FCC or¬ der as a "passing reference” and added that its general language is limited by the scope of the more specific § 1464, see 438 U.S. at 778 n. 3 (Stewart, J., dissenting). Justice Stevens, writing for the Court, did not consider whether § 303(g) had indepen¬ dent significance since he decided that § 1464 provided ample authority to regu¬ late the use of indecent language in broad¬ casting. 438 U.S. at 739 n. 13.

46. 56 F.C.C.2d at 97 (emphasis in origi¬ nal). The Commission argued that inde¬ cent speech lacks appeal to prurient inter¬ ests and added that, when children are in the audience, such speech cannot be saved by any literary, artistic, political, or scien¬ tific value it might possess. Id. at 98.

47. 413 U.S. 15, 24 (1973), discussed in § 12-16, supra. 48. 56 F.C.C.2d at 97.

"matters that go beyond outright 'obsceni¬ ty’ ”). The state attorney general’s prom¬ ise to enforce the statute only between the hours of 7 a.m. and midnight did not pre¬ vent the court of appeals from holding the law facially void for vagueness and over¬ breadth and pre-empted by a 1984 congres¬ sional enactment. One remarkable aspect of the case was the Tenth Circuit’s willing¬ ness, see 800 F.2d at 991, to adopt the reasoning of the district court, which had thoroughly blended the first amendment and pre-emption rationales: "If state regu¬ lations are unconstitutional, they are also pre-empted under the terms of the Policy Act. The final resolution of the pre-emp¬ tion question necessarily requires a ruling on the first amendment issue.” Communi¬ ty Television of Utah, Inc. v. Wilkinson, 611 F.Supp. 1099, 1105 (D. Utah 1985). The case thus arguably requires courts to decide the constitutionality of state cable regulations before determining whether they are pre-empted

by federal law.

t d tu an ti ns co e, it e Wh th

But see Wilkinson

cable television systems that showed "inde¬ cent” or "patently offensive” nudity or sex¬ ual acts regardless of whether the films at issue were obscene. See 800 F.2d at 991 n. 2 (the statute was conceaedly aimed at

d nd,e naoi enav Br ve ha es ic st Ju d ul by wo

49. 438 U.S. at 748-49 (opinion of Ste¬ vens, J., for the Court).

O’Connor would have set the case for ple¬ nary briefing and argument — summarily affirmed a Tenth Circuit decision, Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986) (per curiam), invalidating a Utah statute which imposed civil financial penalties on

v. Jones, 107 S.Ct.

is-

,

ll

ha

rs

Ma

1559 (1987), in which a 7-2 majority — Chief Justice Rehnquist and Justice

io l

na

§ 12—18

COMMUNICATION

AND

EXPRESSION

937

potentially degrading and harmful to children.51 Society has an inter¬ est in the " 'well-being of its youth,” and this permits government to lend the support of the law to parents, who have the primary responsi¬ bility of rearing and educating children.52 The Court went beyond these principles in holding that government may come to the aid of those parents who would keep their children from hearing smutty language although other parents, perhaps a minority, might therefore be prevented from exposing their children to the manner in which Mr. Carlin defuses the taboo surrounding the "dirty words.” 53 And the Court also went further in holding that the convenience of some parents may be invoked to force adults wishing to hear Mr. Carlin’s words to leave their homes to get the comedian’s message.54 The strangest thing about the Court’s decision was that no one could reasonably suppose that children were listening to the radio station at 2 o’clock in the afternoon. WBAI, the broadcast station involved, is listener-supported, carries no ads, does not play "top forty” records, and directs its programming at a distinctly adult, left-toradical, upper-middle-class audience.55 In addition, studies show that virtually no children listen to any radio station whatsoever at that time on a weekday for the reason that most children are then in school.56 Nor is it probable that any significant number of adults were offended by Carlin’s monologue. Certainly WBAFs regular listeners were unlikely to be scandalized; in any case, the station prefaced the broadcast with warnings of the sensitive language to come. That left at risk the radio listeners who, turning the dials, stumbled briefly onto the sues by construing the term "indecent” as used in § 1464 as meaning no more than "obscene,” see 438 U.S. at 778-80. The Court had previously taken the course urged by Justice Stewart in construing a statute that prohibited that mailing of "[e]very obscene, lewd, lascivious, indecent, filthy or vile article.” Hamling v. United States, 418 U.S. 87 (1974). The majority in Pacifica argued that differences between the print and broadcast media required different constructions of the term "inde¬ cent,” see 438 U.S. at 741 (opinion of Ste¬ vens, J., for the Court). 51. Id. at 749-50 (Stevens, J., opinion for the Court); id. at 758-59 (Powell, J., joined by Blackmun, J., concurring). 52. Cf. Ginsberg v. New York, 390 U.S. 629, 639 (1968), discussed in § 12-16, su¬ pra. Justice Stevens’ opinion can also be read as stating the broader proposition that government may act as a parent, not merely aid parents, and therefore may keep young children from hearing indecent language which the government has con¬ cluded is harmful to them. But, as Justice Brennan pointed out, such an approach would deprive minors of their first amend¬ ment rights altogether, see 438 U.S. at 768, citing Erznoznik v. Jacksonville, 422 U.S. 205, 213-14 (1975) (nudity on drive-in mov¬ ie screen): "Speech that is neither obscene

as to youths nor subject to some other legitimate proscription cannot be sup¬ pressed solely to protect the young from ideas or images that a legislative body thinks is unsuitable for them.” See also Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976) (striking down provision of a law that required an unmarried woman under the age of 18 to secure parental consent before obtaining an abortion): "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” 53. 438 U.S. at 770 (Brennan, J., joined by Marshall, J., dissenting). 54. Contrast Butler v. Michigan, 352 U.S. 380, 383-84 (1957) (government may not "reduce the adult audience ... to reading only what is fit for children”); Pinkus v. United States, 436 U.S. 293 (1978) (children cannot be included in "communi¬ ty” by whose standards obscenity is to be judged). 55. See von Hoffman, "Nine Justices for Seven Dirty Words,” More Magazine 12 (June 1978). 56. See Amicus Brief of American Broadcasting Companies, Inc., et al.

938

COMMUNICATION

AND

EXPRESSION

Ch. 12

offensive program. The number of such accidents had to be miniscule, much smaller than the number of WBAI listeners who enjoyed Mr. Carlin’s satire. Indeed, the record showed that only one person com¬ plained — an unidentified citizen who, while driving in his car with his son, tuned into WBAI, heard Carlin’s monologue, and apparently chose to turn no further. Given the facts, that the Court did not hold the FCC’s order unconstitutional suggests something else was afoot. Justice Stevens, writing for a plurality that included Chief Justice Burger and Justice Rehnquist, contended that the FCC ruling would "have its primary effect on the form, rather than on the content, of serious communication . . . [because] few, if any, thoughts cannot be expressed by less offensive language.” 57 Furthermore, argued Justice Stevens, indecent speech is at the "periphery of First Amendment concern,” 58 and while it is "not entirely outside the protection of the First Amendment,” 59 protection might vary according to context.60 The plurality thus attempted to place offensive expression in a second tier of constitutional protection. Although the Court has clearly embarked on the task of erecting a hierarchy of expression within the first amendment, it is important to note that no Court has yet squarely held that offensive or sexually explicit but non-obscene speech enjoys less than full first amendment protection. In American Mini Theatres , a plurality, including Chief Justice Burger and Justices White, Stevens, and Rehnquist, held that "it is manifest that society’s interest in protecting [sexually explicit although non-obscene speech] is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate.” 61 This proposition, however, was not accepted by the four dissenters or by Justice Powell.62 In Pacifica j63 only Chief Justice Burger and Justice Rehnquist joined Justice Stevens’ opinion in its entirety.64 Justice Powell, joined by Justice Blackmun, refused to agree with the plurality that offensive, nonobscene speech is deserving of less protection than other kinds of speech.65 Thus, while the pure two-level model is no longer confidently employed by the Court, it has not yet been formally repudiated.66 57. 438 U.S. at 743 n. 18 (plurality opin¬ ion). 58. Id. at 743 (plurality opinion). 59. Id. at 746 (plurality opinion). 60. Id. at 747 (plurality opinion). 61. Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976). 62. See 427 U.S. at 73 (Powell, J., con¬ curring). 63. F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). 64. See id. at 762-63 (Brennan, J., joined by Marshall, J, dissenting): "For the second time in two years, the Court refuses to embrace the notion, completely antithet¬ ical to basic First Amendment values, that the degree of protection the First Amend¬ ment affords protected speech varies with

the social value ascribed to that speech by five Members of this Court.” 65. "I do not subscribe to the view that the Justices of this Court are free general¬ ly to decide on the basis of its content which speech protected by the First Amendment is most 'valuable’ and hence deserving of the most protection, and which is less 'valuable’ and hence deserv¬ ing of less protection.” Id. at 726 (Powell, J., joined by Blackmun, J., concurring). 66. Arguably, the Court’s decision in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), might constitute such repudiation. Justice Rehnquist delivered the opinion of the Court for a majority that included Chief Justice Burger and Justices White, Powell, Stevens, and O’Connor. Justice Rehnquist cited American Mini Theatres in a footnote for the proposition

§ 12-18

COMMUNICATION

AND

939

EXPRESSION

The creation of intermediate categories of speech might appear to be a positive development, or at least a mixed one, because it has led the Court to extend some first amendment protection to forms of expression, such as commercial speech, that might not otherwise have received any at all.67 In New York v. Ferber ,68 the Court upheld a New York statute that prohibited persons from knowingly distributing mate¬ rial that depicted a sexual performance by a child under the age of 16, a law that admittedly went beyond the Miller 69 test for obscenity. After examining the social costs 70 and benefits 71 of child pornography, the Court concluded that it was "a category of material outside the protection of the First Amendment.” 72 The Court engaged in general¬ ized balancing to assess the constitutional value of the entire category of speech, rather than weighing the merits of the particular restriction on expression in an ad hoc way. The Court thus accepted a concededly "content-based classification of speech” because it concluded that, "within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.” 73 The dan¬ gers of censorship were minimized because the "evil” at which the law was aimed related not to the effect of the speech on viewers or listeners but to the effect on those children used to produce the speech. Justice Stevens, one of the moving forces on the Court behind the idea of intermediate categories,74 commented

in his concurrence

that although

"it is probably safe to assume that the category of speech that is covered by the New York statute generally is of a lower quality than that "it is manifest that society’s interest in protecting this type of [sexually explicit] expression is of a wholly different, and lesser, magnitude than the interest in un¬ trammeled political debate.” 475 U.S. at _ n. 2. But it is doubtful that Renton can fairly be read as endorsing the concept of a hierarchy of intermediate categories,

which

Chief Justice Burger and Justices

Powell, Rehnquist, and O’Connor joined. Justice O’Connor also wrote a concurring opinion. Justice Brennan, joined by Jus¬ tice Marshall, filed an opinion concurring in the judgment. Justice Stevens also filed an opinion concurring in the judgment. Justice Blackmun concurred in the result.

because the case turned on the majority’s characterization of the restriction as content-neutral, see id. at 929, and the issue of the relative importance of the speech in¬ volved was, strictly speaking, irrelevant. Justice Blackmun concurred in the result without opinion. Justice Brennan, joined in dissent by Justice Marshall, noted that

The case is discussed more fully in § 1216, supra.

"the Court’s analysis is limited to cases involving 'businesses that purvey sexually explicit materials,’ and thus does not affect our holdings in cases involving state regu¬ lation of other kinds of speech.” Id. at 933 (Brennan, J., joined by Marshall, J., dis¬ senting).

"[t]he value of permitting live perform¬ ances and photographic reproductions of children engaged in lewd sexual conduct is

67. See Schauer, "Categories and the

74. See Metromedia, Inc. v. San Diego,

First Amendment: A Play in Three Acts,” 34 Vand.L.Rev. 265, 286 (1981) (supporting reduced first amendment protection for the categories of commercial and defamatory speech but criticizing the categories of of¬ fensive and indecent speech).

453 U.S. 490, 544-48 (1981) (Stevens, J., dissenting in part); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 85 (1981) (Ste¬ vens, J., concurring in judgment); F.C.C. v. Pacifica Foundation, 438 U.S. 726, 742-43 (1978) (opinion of Stevens, J.); Young v. American Mini Theatres, Inc., 427 U.S. 50, 59-61 (1976) (opinion of Stevens, J).

68. 458 U.S. 747 (1982). Justice White delivered the opinion of the Court, in

69. Miller v. California, 413 U.S. 15 (1973), discussed in § 12-16, supra.

70. See 458 U.S. at 756-63. 71. See id. at 762-63 (concluding that

exceedingly modest, if not de minimis”).

72. Id. at 763. 73. Id. at 763-64.

.

940

COMMUNICATION

AND

EXPRESSION

Ch. 12

most other types of communication,” he disagreed "with the Court’s position that such speech is totally without First Amendment protec¬ 75 tion.”There are, however, powerful reasons to resist departures from a narrowly confined two-level theory. A hierarchy of ever-proliferating intermediate categories requires the Court to assign relative values to different classes of expression, a task that is all but impossible to reconcile with "the basic theory of the First Amendment.” 76 This does not mean that no content-based categorization is ever permissible. In a sense, the entire jurisprudence of free speech reflects a general catego¬ rization, composed of assumptions about which kinds of communicative acts are inside the first amendment and which are outside.77 But once an expressive act is determined to be within the coverage of the first amendment, its entitlement to protection must not vary with the viewpoint expressed, and all attempts to create content-based subcat¬ egories entail at least some risk that government will in fact be discriminating against disfavored points of view. Even categories os¬ tensibly created to address harms to participants or to bystanders rather than to beholders — as in the case of child pornography 78 and erogenous zoning 79 — might be singled out in part because of the antipa¬ thy of those in power toward the ideas implicit in, or conveyed through, the materials identified for special state supervision or outright sup¬ pression. If we are to reduce that danger, we must be most reluctant to tolerate doctrines that identify new categories of "low value” speech. It is therefore crucial to stress that, within the sphere of protected speech, the Supreme Court has ordinarily called all expression equal, labeling no individual or class of expression as more or less valuable than any other and regarding all as deserving the same first amend¬ ment protection.80 This presumption of the equality of ideas is a 75. 458 U.S. at 781 (Stevens, J., concur¬ ring in the judgment). 76. T. Emerson, The System of Free

cen to fo ta de rb en nt em ¬ eSd asiddae Ce Ka amo "E so e e rs un qu rs n nt t ra 43 a h A F t i P t , l i i n r h Expression 326 (1970); Cox, "The Supreme tlh 20e (1rst itmyenAl U.in p. e Court, 1979 Term — Foreword: Freedom of Chcip 97 t d meho th se 6) di tr Co i. leha of v te nu e e . ffe u L s Expression in the Burger Court,” 94 Harv. in¬¬ sree § t1,g2h” ofn ex ated er rt me.Re L.Rev. 1, 28 (1980) (discussing "established nt d -25 fraal an diavh.a at tpires to l i l s m d , essico er o cy ffer , principle” that court should not attempt to of e o t f nt lan, ate r at re en differentiate among values of different s i e a t re suses ads th gorpol ial ex pr tm messages). The aversion to regulations ot en e c pr Le iesitic v. seeh e.g an ec tht co es based on the content of the message is d te e m a s d He mer ion41 U. , 29., (1 hma (s l Sh widely shared among commentators. See, c 97 n us¬ S. i 8 8 a Di 4) po of mu ta ker co ght ial sc li¬ in ns s, , n e.g., Farber, "Content Regulation riand the i inre ti po ci bu a a c m d y g t in poa st l¬ First Amendment: A Revisionist View,” 68 ve fu c ut lit a l a nl pa d ow i r si om Geo.L.J. 727 (1980); Karst, "Equality tas inc io a ng me onsailcal ver d tis baces t o a tiis in r n i Central Concept in the First Amendment,”nmo o tgty s ans rci mysittey t s (se.ed ng n he ub it al at m) of ienxigpnc g g., je rteio 43 U.Chi.L.Rev. 20 (1975); Scanlon, "Free¬ te , ild c s i p t o a p r t s pp nte o usnbis ae i dom of Expression and Categories of Ex¬ wi r¬ tr loinc of os be ha estbaosrphi cket te ed en e csk th v a i pression,” 40 U.Pitt.L.Rev. 551 (1979). a e n teba on as dni as mu et su g d i s se ch ng spi t i d 44 of v)i ci Se Ca nc v. Br po 77. See Schauer, "Categories and the 7 in re ti ow ew on e t First Amendment: A Play in Three Acts,” o n D P & n. 7 (1y 455 46 . U. n o s l , ep S 9 2 34 Vand.L.Rev. 265, 267-74 (1981). 40 U8.0); 92, ic95e, 98 t, v.-63Mo of .Ch , S. 8 sl i -9 78. See New York v. Ferber, 458 U.S. ey 9 (19 cag , o 72) 747 (1982). , . 79. See Young v. American Mini Thea¬ tres, Inc., 427 U.S. 50 (1976). be

§ 12-18

COMMUNICATION

AND

EXPRESSION

941

corollary of the basic requirement that the government may not aim at the communicative impact of expressive conduct without triggering the exacting and usually fatal scrutiny of track one analysis. The classic exemplar of this approach is Police Department of Chicago v. Mosley involving a man who had been picketing peacefully near a school with a sign protesting "black discrimination.” A city ordinance prohibited picketing within 150 feet of a school during school hours but excepted "peaceful picketing of any school involved in a labor dispute.” Advised of the ordinance, Mosley sought to enjoin its enforcement. He won, and the Supreme Court affirmed. Justice Marshall’s opinion for the Court was keyed to the exception for labor picketing: "[Government] may not select which issues are worth discussing or debating in public facilities.” 82 It was no defense that Chicago’s ordinance did not depend on government’s favorable or unfavorable appraisal of the speech that the city would exclude because of its proximity to schools. Because the government discriminated among pickets in terms of their messages, the ordinance was unconstitutional. The principle for which Mosley stands is that the first amendment requires that time, place and manner regulations affecting protected expression be content-neutral,83 except in the very limited context of a captive or juvenile audience.84 Any departure from this principle must therefore be seen as having major implications for first amendment 81. 408 U.S. 92 (1972). 82. Id. at 95-96. Nor may government decide which citizens or groups of citizens are worth listening to at public meetings. See City of Madison, Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167 (1976) (held that school board could not refuse to hear one speaker — a non-union teacher — from among the speakers at a public meeting that had been called to discuss the board’s labor relations). Just as Police Depart¬ ment of the City of Chicago v. Mosley is limited to public facilities, 408 U.S. at 96, so City of Madison School District v. Wis¬ consin Employment Relations Commission, is limited to public meetings. 429 U.S. at 176. It remains the law that ”[t]he Consti¬ tution does not require all public acts to be done in town meeting or an assembly of the whole.” Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 445 (1915) (Holmes, J.). 83. "Content-neutral time, place, and manner restrictions are acceptable so long as they are designed to serve a substantial governmental interest and do not unrea¬ sonably limit alternative avenues of com¬ munication.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, — (1986). See also Clark v. Community for Creative NonViolence, 468 U.S. 288, 293 (1984); mem¬ bers of City Council of Los Angeles v. Tax¬ payers for Vincent, 466 U.S. 789, 807 (1984); Heffron v. International Society for

jurisprudence.85

Krishna Consciousness (ISKCON), 640, 647 (1981).

452 U.S.

84. See, e.g., Bethel School Dist. No. 403 v. Fraser, 106 S.Ct. 3159 (1986) (re¬ jecting civil rights claim by student who was disciplined after he delivered a sexual¬ ly suggestive speech at a high school as¬ sembly); Lehman v. Shaker Heights, 418 U.S. 298 (1974) (Blackmun, J., plurality opinion) (sustaining constitutionality of limitation on use of advertising space on municipally-owned buses to innocuous and less controversial commercial advertising as minimizing imposition upon the captive audience of commuters); Rowan v. United States Post Office Department, 397 U.S. 728 (1970) (upholding law which provided that addressees who received in the mail "a pandering advertisement” which they deemed offensive could obtain the removal of their names

from the advertiser’s mail¬

ing list and stop all future mailings; "a mailer’s right to communicate must stop at the mail box of an unreceptive addressee”); Ginsberg v. New York, 390 U.S. 629 (1968) (upholding conviction for selling to a minor magazines which shown to adults).

were

"not obscene”

if

85. A plurality of the Court, at least, has apparently reserved the presumption of equality of ideas for speech that receives full constitutional protection. See Me¬ tromedia, Inc. v. San Diego, 453 U.S. 490 (1981), where Justice White, in a plurality opinion joined by Justices Stewart, Mar-

942

COMMUNICATION' AND

EXPRESSION

Ch. 12

The Court, moreover, has not yet articulated the basis by which it creates new

categories of speech. In New

York v. Ferber ,86 the child pornography case, the Court weighed "the evil to be restricted,, against the "expressive interests” at stake,87 but it provided no indication of how it calculated those values, beyond mere intuition. As a result, Ferber fails to provide the "full exposition necessary to fit the [Court’s first amendment] decisions into a coherent body of law,” 88 and suggests a "troubling disregard of the gravity of any departure from scrupulous first amendment protection.” 89 The particular categories thus far created by the Court are objec¬ tionable in part because they appear to defy clear definition. A Court that has been unable to pin down the word "obscenity” 90 with any success will scarcely have an easier time with the "indecent.” A central difficulty with the statute at issue in Federal Communications Commission v. Pacifica Foundation ,91 like the standard involved in Miller v. California ,92 was that it did not on its face clearly define the conduct prohibited. Indeed, it was this very lack of precise definition that led the Court in the first place to construe the term "indecent” in related statutes to mean no more than "obscene.” 93 By accepting the FCC’s broader interpretation of indecency, the Pacifica Court implicitly embraced a general or national standard of offensiveness.94 Speech, however, cannot properly be valued according to the preferences of the majority.95 "The words that the Court and the Commission find so unpalatable may be the stuff of everyday conversations in some, if not shall, and Powell, held that, although the city could constitutionally regulate com¬ mercial billboard advertising, it could not impose what amounted to a partial ban on signs carrying noncommercial messages.

in the Burger Court,” 94 Harv.L.Rev. (1980).

"Although the city may distinguish be¬ tween the relative value of different cate¬ gories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between,

90. "Between 1957 and 1973, the Court decided over 30 obscenity cases; yet, over that period, a majority never agreed upon

various communicative interests.” Id. at 514. The plurality cited for this proposi¬ tion two authorities that support the tradi¬ tional view of mandatory content neutrali¬ ty: Carey v. Brown, 447 U.S. 455, 462 (1980), and Police Dept, of Chicago v. Mos¬ ley, 408 U.S. 92, 96 (1972). Thus, the plu¬

1, 72

89. "The Supreme Court, 1981 Term,” 96 Harv.L.Rev. 62, 145 (1982).

a precise definition of obscenity.” "The Supreme Court, 1977 Term,” 92 Harv.L. Rev. 57, 156 n. 68 (1978). See generally § 12-16, supra. 91. 438 U.S. 726 (1978). 92. 413 U.S. 15, 23-24 (1973). 93. See Note, "Filthy Words, the FCC, and the First Amendment: Regulating

rality concluded, "[bjecause some noncom¬ mercial messages may be conveyed on billboards throughout the commercial and industrial zones, San Diego must similarly allow billboards conveying other noncom¬

Broadcast (1975).

mercial messages throughout these zones.” 453 U.S. at 515. See also Stone, "Content Regulation and the First Amendment,” 25 Wm. & Mary L.Rev. 189, 196 (1983).

that which offends "most people,” see Pacifica, 438 U.S. at 757 (Powell, J., joined by Blackmun, J., concurring in part and concurring in the judgment).

86. 458 U.S. 747 (1982). 87. Id. at 763-64. 88. Cox, "The Supreme Court, 1979 Term — Foreword: Freedom of Expression

Obscenity,” 61 Va.L.Rev.

579

94. Indeed, Justice Powell specifically embraced a standard defining as offensive

95. Id. 438 U.S. at 766 (Brennan,

J.,

joined by Marshall, J., dissenting): "[The Court] permits majoritarian tastes com¬ pletely to preclude a protected message from entering the homes of a receptive, unoffended

minority.”

§ 12-18

COMMUNICATION

AND

943

EXPRESSION

many, of the innumerable subcultures that compose this nation.” 96 Justice Brennan correctly viewed the Court’s contrary approach as reflecting "acute ethnocentri[sm],” the product of a "depressing inabili¬ ty to appreciate that in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of [the] Court, and who do not share their fragile sensibilities.” 97 The commercial speech category, too, is fraught with potential vagueness. As early as Virginia Board of Pharmacy,99, for example, the Court recognized the difficulty of distinguishing the "commercial” from the "noncommercial.” After noting that "not all commercial messages contain ... a very great public interest element,” the Court suggested that "[t]here are few to which such an element, however, could not be added.” 99 It continued: "Our pharmacist, for example, could cast himself as a commentator on store-to-store disparities in drug prices, giving his own and those of a competitor as proof. We see little point in requiring him to do, and little difference if he does not.” 100 Profes¬ sor Steven Shiffrin has proposed several examples which suggest that a sharp "distinction between commercial and political speech [is] impossi¬ ble to maintain.” 101 More fundamentally, the fragmentation of the first amendment into a grab bag of rubrics under which different types of speech receive different degrees of protection exemplifies a propensity for pigeonholing as a method of deciding first amendment questions.102 Such a method masks the political dimension of the underlying choices by pretending to cabin judicial discretion within the limits established by the catego¬ ries themselves. This sort of pigeonholing endangers the pigeon: if one 96. Id. at 776 (Brennan, J., joined by Marshall, J., dissenting).

97. Id. at 775 (Brennan, J., joined by Marshall, J., dissenting).

98. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), discussed in § 1215, supra. 99. Id. at 764.

100. Id. at 764-65. In Metromedia, Inc. v. San of San tween mitted

Diego, 453 U.S. 490 (1981), the city Diego attempted to distinguish be¬ commercial messages, which it per¬ on the site of the business that

purchased them, and noncommercial dis¬ plays, which, for the most part, it out¬ lawed. Justice Brennan, joined by Justice Blackmun, properly took the city to task for its attempt to draw the distinction: "I would be unhappy to see city officials dealing with the following series of bill¬ boards and deciding which ones to per¬ mit: the first billboard contains the mes¬ sage ’Visit Joe’s Ice Cream Shoppe’; the second, ’Joe’s Ice Cream Shoppe uses on¬ ly the highest quality dairy products’; the third, 'Because Joe thinks that dairy products are good for you, please shop at

Joe’s Shoppe’; and the fourth, 'Joe says to support dairy price supports: they mean lower prices for you at his Shoppe.’ Or how about some San Diego Padres fans — with no connection to the team — who together rent a billboard and com¬ municate the message, 'Support the San Diego Padres, a great baseball team.’ May the city decide that a United Auto¬ mobile Workers billboard with the mes¬ sage, 'Be a patriot — do not buy Japanesemanufactured cars’ is 'commercial’ and therefore forbid it? What if the same sign were placed by Chrysler?” 453 U.S. at 538-39.

101. Shiffrin, "The First Amendment

and Economic

Regulation: Away

From

a

General Theory of the First Amendment,” 78 Nw.L.Rev. 1212, 1229 (1983). This im¬ possibility does not, however, support full first amendment protection for self-inter¬ ested promotion of a misleading variety, or of dangerous products or services. 102.

See

L.

Tribe,

Constitutional

Choices 218 (1985); Schlag, "An Attack on Categorical Approaches to Freedom of Speech,” (1983).

30 U.C.L.A.L.Rev.

671, 733^53

944

COMMUNICATION

AND

EXPRESSION

Ch. 12

parses first amendment doctrine too finely, one may soon discover that little protection for expression remains. § 12-19.

Accommodating Rights to Know, Rights Not to Know, Open Minds, and Closed Communities

The preceding section discussed the contemporary proliferation of intermediate categories of speech, categories which enjoy less than full constitutional protection. This section analyzes the forces behind this development. One strand of emergent doctrine may be an increasingly sharp differentiation between the focused right of an individual to speak and an undifferentiated right of the public to know. Some have argued that the first amendment does not confer individual rights, but protects a systemic freedom for expressive activities.1 This view unduly flattens the first amendment’s complex role; 2 but even if the view were accepted, the language of rights would nonetheless be appropriate where the liberty guaranteed by the first amendment has as its prima¬ ry focus the autonomy of individuals or of the press. A right to speak may be said to exist when the Court will not allow government to justify a restriction on expressive conduct by a claim that the ideas or information expressed are dangerous; that the speaker may exercise liberty of expression in some other place, time or manner; or that the speaker should be muffled in order that a diversity of viewpoints might be heard in the marketplace of ideas. A right to know

at times means

nothing more

than a mirror of

such a right to speak, a listener’s right that government not interfere with a willing speaker’s liberty.3 But the right to know at times means more: it may include an individual’s right to acquire desired informa¬ tion or ideas free of governmental veto,4 undue hindrance,5 or unwar9 § 12-1"The 1. See Meiklejohn, First Amend¬ ment is an Absolute,’’ 1961 Sup.Ct.Rev. 245, 255, quoted in Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 628 (1976) (Brennan, J., concurring in part). 2. See § 12-1, supra. See also Shiffrin,

4. See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923) (reversing a conviction for teaching German in violation of a state law prohibiting the teaching of foreign lan¬ guages to young children, in part because the law interfered "with the opportunities of pupils to acquire knowledge”); Stanley v. Georgia, 394 U.S. 557 (1969) (reversing a conviction for possession of pornographic

"The First Amendment and Economic Reg¬ ulation: Away from a General Theory of

material in defendant’s home; such appli¬ cation of the statute held to interfere with

the First Amendment,” 78 Nw.L.Rev. 1212, 1252 (1983): "the Court has been unwilling to confine the first amendment to a single value or even to a few values. In recent years, the first amendment literature has exploded with commentary finding first amendment values involving liberty, selfrealization, autonomy, the marketplace of ideas, equality, self-government, checking government, and more.”

the possessor’s rights to know and to be free of unwarranted intrusions into priva¬ cy).

3. See Baker, "Commercial Speech: Problem in the Theory of Freedom,” Iowa L.Rev. 1, 8 (1976) (arguing that right to know is never more than a right have the government not interfere with willing speaker’s liberty).

A 62 a to a

5. Such "undue hindrance” may entail

deliberate interference with the acquisition of specified information; more commonly, it entails government action that is largely indifferent to information-gathering but that nonetheless operates as a deterrent to its uninhibited pursuit. Researchers — aca¬ demic or journalistic — may find their at¬ tempts to acquire information inhibited by otherwise legitimate governmental de¬ mands that they reveal the identities of their confidential sources. In such cases,

§ 12-19

COMMUNICATION

AND

945

EXPRESSION

ranted exposure.6 It may even impose an affirmative obligation on government to open to the public certain of its processes such as criminal trials.7 A right to know may entail no correlative right in any particular source to originate the communication.8 In this latter sense, ordinary first amendment theory should require government to demonstrate that it had no less inhibiting alternative than to demand disclosure. See § 12-23, infra. See generally Note, "The Rights of the Public and the Press to Gather Informa¬ tion,” 87 Harv.L.Rev. 1505 (1974). When the Supreme Court declined to require such a demonstration in Branzburg v. Hayes, 408 U.S. 665 (1972) (denying even a qualified journalist’s privilege to withhold source identity from good faith grand jury inquiry), it may have been assuming that the journalist’s claim was tantamount to a plea of special privilege, something the Court has insisted the press does not enjoy. See, e.g., Pell v. Procunier, 417 U.S. 817, 827-28, 830 (1974) (press enjoys no greater right than general public to acquire infor¬ mation about prison conditions). For a discussion of the news-gathering issue, see § 12-22, infra. The dangers of recognizing a privileged status for the press are consid¬ erable; they include the risk that, just as a broadcaster’s exclusive use of a given wavelength in a given market is said to justify imposition of legal duties of fair coverage, see Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969), so a newspa¬ per’s privilege might be said to justify im¬ position of parallel duties. Contrast Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (newspaper cannot be forced to print reply to a personal attack published in its pages). See § 12-25, infra. Although it has been urged by no less considerable an authority than Justice Stewart, see "Or of the Press,” 26 Hast.L.J. 631, 634-36 (1975), that giving the press special powers of access would have no such effect, the risk certainly exists — and there is no clear need to incur it, since it seems doubtful that reversal of such deci¬ sions as Branzburg v. Hayes, supra, would require any special press immunities. See Van Alstyne, Comment: "The Hazards to the Press of Claiming a 'Preferred Posi¬ tion’,” 28 Hast.L.J. 761, 768 n. 15 (1977). Nor would the "freedom of the press” clause be rendered redundant of the "free¬ dom of speech” clause if it were treated as establishing that the great power of the technology inaugurated by Guttenberg in the fifteenth century in no way strips the press of the freedom the first amendment would otherwise confer. Id. at 769 n. 16. But the matter contains more complexities than this brief note can explore. See, e.g., Anderson, "The Origins of the Press Clause,” 30 U.C.L.A.L.Rev. 455 (1983); Nimmer, "Introduction — Is Freedom of the

Press a Redundancy:

What

Does it Add to

Freedom of Speech?” 26 Hast.L.J. 639 (1975); Lange, "The Speech and Press Clauses,” 23 U.C.L.A.L.Rev. 77 (1975); Nimmer, "Speech and Press: A Brief Re¬ ply,” 23 U.C.L.A.L.Rev. 120 (1975). On either view — whether the press is regarded as occupying a special constitutional role or not — freedom from undue interference with the acquisition of knowledge should be deemed central to the first amendment. See §§ 12-20, 12-21, 12-22, infra. Need¬ less to say, government’s duty (if any) af¬ firmatively to provide knowledge — as by declassifying information or opening its files — ordinarily rests on principles other than those of the first amendment. See § 12-4, supra. See, e.g., United States v. Nixon, 418 U.S. 683 (1974), discussed in Chapter 4, supra. For an argument find¬ ing such a duty in the first amendment itself, however, see Emerson, "Legal Foun¬ dations of the Right to Know,” 1976 Wash. U.L.Q. 1 (arguing that the citizenry has a first amendment formation).

right to government’s

in¬

6. See, e.g., Lamont v. Postmaster Gen¬ eral of United States, 381 U.S. 301 (1965) (first amendment right to receive informa¬ tion violated by congressional requirement that persons wishing to receive mail from foreign communist organizations publicly identify their wish to do so). Lamont was, surprisingly, the first case in which the Supreme Court found that an act of Con¬ gress violated the first amendment. 7. See § 12-20, infra. 8. The mail that Lamont

had a right to

receive, supra note 6, originated from per¬ sons or organizations abroad whose "speech” was unprotected by the first amendment. Id. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), the right to receive information about prescription drug prices was vindicated in a lawsuit brought by consumers; no pharmacist or seller was before the Court, and it is not clear that such a party would have had a personal right to disseminate the informa¬ tion. In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), the Court invalidated a state ban on most corporate contributions and expenditures in referen¬ dum and initiative proposals. The Court reserved the question whether corporations have first amendment rights, id. at 777 & n. 13, and merely found "no support in the First or Fourteenth Amendment ... for the proposition that speech that otherwise

946

COMMUNICATION

AND

the right to know is the first amendment

EXPRESSION

Ch. 12

filtered through the prism of

Holmes’ marketplace of ideas; such a right carries the implication that government, while it may not close the market, may move to correct its defects and regulate its incidental consequences.9 To perceive Young v. American Mini Theatres , Inc.10 along these lines, it is important to note Justice Powell’s observation in his concurrence that the respondenttheater owners were no more than commercial purveyors: "they do not profess to convey their own personal messages through the movies they show.” 11 The theater owners may be thought to have been denied the opportunity to sell certain movie tickets because they had no expressional interest of their own, and were afforded only a lesser right derived from the generalized "right to know” of the viewing public, a right which on the facts of American Mini Theatres had not been infringed by the Detroit ordinance. This strand of doctrine is most pronounced in the commercial

speech field, where the Court has explic-

would be within the protection of the First Amendment loses that protection simply because its source is a corporation.” Id. at 784. The Court thus focused on the speech involved, and not exclusively on the speak¬ er. See Baker, "Realizing Self-Realization: Corporate Political Expenditures and Red¬ ish’s 'The Value of Free Speech,”’ 130 U.Pa.L.Rev. 646, 652 (1982) ("If the impor¬ tance of speech lies in its provision of infor¬ mation, analysis, or argument to the audi¬ ence, . . . then the source of the speech is irrelevant.”). See § 12-3, supra.

F.C 39 U.S 36 (19 (u the 5 7 ph .C. 69) . oil con , of re mdpin g s u lg la th ing tigte re b ti at roa emen qu unteir dc v t¬ oanlfaai coire pr of onosp a i m ov v p r l er en i os p stereiw¬ poi ide on coity o t a i s m¬ f nugbl ssu ge nt n por ts di rove in § 1e2sin ic To frr be tasnur the scCuos rsia ha or 25, a ej.e ce di us l s nari the no ,), tha rettdhe sp o scoted f r iglht ti e me t e ma be onsac to en ch tyhse rel ha y a r nc wh acc of otihfic esp de tive e a en ersed d ec wi ess ex of lifnugl , ee ial des th pr l ly s er P m es co Ga ee vinaci si prot ed ns s o g f e t an iEtlue Co. nv. Pub ctio Uti Co ic of tc.i Cald (mplm’ on 106 S.C lic 9n0, li(t1i9 3 al es86 t. un op ifor (f vi o)f th ralfiir n o i in i e tyst la nd am ion) a, aningord bytiva uti co e g lit a mmi t sioendtha gr ceor ro y cce s¬ o an n n metn up su teen uti bitl C Ag ss m d ve er iti ai lit lin lo ns v. Re y Co for FaizensHo pe t nt nt g u r s s rCo ) i ; n Be 4 U 2 2 ( g19 all/.C 54 .S r 81) . 90, 95-9 (st kley do , oalia $2 lim on 6con 5 , it tio riki to co wn tion su0 or op trib pp po u¬ mm ns ng si 42 bal me itt Bu ort v. Va ng 4 l as i c e lot e n k U.S 1, 48 ure (19es (pe lecyu g (in o, -4 s) 76 r eria val b 9on c;a ) in . lim xp m) ida ut Br g n i di en t oa s d d af co lim Mti Het¬ dc a i t f r n a as e 4its U urm2i ald irPmuib Co. tvr.ib Tor 25¬ ti 4 . 1 e ) 1 S 4 8 ; s , . n.g ut nil ng Co (19 (st dioon lo ne rig of . wn , ws ht v. re 74) st riki S co pa urg o n p pl a m m g t e m e y u go of spen r to cor e te reg eeta ve ). ul rec ma rnm fai aanti en mochtor ega t s d r an rkeatcc ent ltuore the cohn ure of eco s lita ri¬ an s mm ess ne un ls ic a¬

tions, see Chevigny, "The Paradox of Cam¬ paign Finance,” 56 N.Y.U.L.Rev. 206, 220 (1981) (arguing that "there is a compelling interest in regulating campaign expendi¬ tures [in order] to prevent distortion of the democratic process by money”). Others, however, point out that such plans presup¬ pose a "standard with which to identify a 'properly functioning marketplace.’ ” Bak¬ er, note 8, supra, at 651 & n. 21. For a detailed ofcritique the "marketsee failure” theories the firstofamendment, Baker, "Scope of the First Amendment Freedom of Speech,” 25 U.C.L.A. 964, 981-90 (1978). 10. 427 U.S. 50 (1976), discussed

in

§ 12-18, supra. 11. Id. at 78 n. 2. In Railway Express Agency v. New York, 336 U.S. 106, 116 (1949) (validating the constitutionality of a ban on advertising on the sides of vehicles, but exempting business notices of the vehi¬ cle’s owners), Justice Jackson in his con¬ curring opinion argued that "there is a real difference between doing in self-inter¬ est and doing for hire, so that it is one thing to tolerate action from those who act on their own and it is another thing to permit the same action to be promoted for a price.” But it is difficult, to say the least, to distinguish the self-interested mo¬ tives underlying most speech activity from profit-motivation. Somewhat different is the distinction between the expressive ac¬ tivities of the public] v-owned corporation and those of individuals. See Bell v. Mary¬ land, 378 U.S. 226, 246 (1964) (Douglas, J., joined by Goldberg, J., concurring in re¬ sult) (reversing trespass convictions of dem¬ onstrators who sat-in at private restaurant; "the corporate interest is in making mon¬ ey, not in protecting personal prejudices”). For a fuller discussion, see Baker, "Com¬ mercial Speech: A Problem in the Theory of Freedom,”

62 Iowa L.Rev. 1 (1976).

§ 12-19

COMMUNICATION

itly justified "the extension "value to consumers of the "Consequently, there can be sion of commercial messages

AND

947

EXPRESSION

of First Amendment protection” by the information that such speech provides.” 12 no constitutional objection to the suppres¬ that do not accurately inform the public

about lawful activity.” 13 The government, for example, may ban forms of communication more likely to deceive the public than to inform it,14 as well as commercial speech related to illegal activity.15 Second, the decisions in American Mini nous zoning” cases, such as City of Renton reflect a concern by the Court to find a way quality and character of community life

Theatres and other "eroge¬ v. Playtime Theatres , Inc.,16 for localities to protect the without at the same time

"making the closed mind a principal feature of the open society.” 17 In Renton , for example, the Court accepted the city’s justification for the 12. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985). See also Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557, 563 (1980) ("The First Amendment’s concern for commercial speech is based on the in¬ formational function of advertising”); Vir¬ ginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761-65 (1976) (extending constitution¬ al protection to commercial speech because of interests of listeners, not of speakers); Jackson & Jeffries, "Commercial Speech: Economic Due Process and the First Amendment,” 65 Va.L.Rev. 1, 25 (1979) ("Ordinary business advertising does not advance the goal of individual self-fulfill¬ ment through free expression, nor does it contribute to political decisionmaking in a representative democracy.”). This tenden¬ cy has been strong, even in cases that are not, strictly speaking, commercial speech cases at all. See Pacific Gas and Elec. Co. v. Public Utilities Comm’n of California, 106 S.Ct. 903, 921 (1986) (Rehnquist, J., dissenting) (contending that corporations do not have "negative free speech rights,” that is, rights to refrain from forced speech): "[Corporate free speech rights do not arise because corporations, like individ¬ uals, have any interest in self-expres¬ sion. . . . [IJnstead . . . such rights are recognized as an instrumental means of furthering the First Amendment pur¬ pose of fostering a broad forum of informa¬ tion to facilitate self-government.” 13. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557, 563 (1980). Indeed, Virginia Pharmacy had provided protection only for "truthful and legitimate commercial infor¬ mation.” 425 U.S. at 771 n. 24. But the tenor of the opinion rejected a ternalistic approach” toward speech on the assumptions that mation is not in itself harmful, will perceive their own best

"highly pa¬ commerical "this infor¬ that people interests if

only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Id. at 765, 770. See also Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 642 (1985) (striking down discipli¬ nary rules from Ohio’s Code of Professional Responsibility that forbade attorneys to use illustrations or to give advice in news¬ paper advertisements, on the ground that such advertisements were "conducive to re¬ flection and the exercise of choice”). 14. Friedman v. Rogers, 440 U.S. 1, 13, 15-16 (1979) (upholding a statute that pro¬ hibited optometrists from practicing under a trade name on the grounds that such activity would be deceptive); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 464-65 (1978) (upholding ban on in-person solicita¬ tion by attorneys). "Government remains free to purge commercial advertising of speech that is deceptive or misleading or perhaps merely unverifiable.” Jackson & Jeffries, note 12, supra, at 39. See, e.g., Warner-Lambert Co. v. F.T.C., 562 F.2d 749, 758-59, 763 (D.C. Cir. 1977) (rejecting first amendment objection to FTC order requiring manufacturer of Listerine to cease and desist representations that the product cures colds and sore throats and requiring disclaimer in future advertise¬ ments). Cigarette advertising that implies the product is healthful could obviously be prohibited on this basis. See generally § 12-15, supra. 15. Pittsburgh Press Co. v. Pittsburgh Comm’n on Human 376, 388 (1973).

Relations, 413 U.S.

16. 106 S.Ct. 925 (1986) (upholding mu¬ nicipal zoning ordinance that prohibited adult motion picture theaters from locat¬ ing within 1,000 feet of any residential zone, single- or multi-family dwelling, church, park or school). 17. Kalven, The Negro Amendment 159 (1965).

and the First

948

COMMUNICATION

AND

EXPRESSION

Ch. 12

statute as promoting "the City of Renton’s great interest in protecting and preserving the quality of its neighborhoods, commercial districts, and the quality of urban life through effective land planning.” 18 And in Federal Communications Commission v. Pacifica Foundation , a case which may be likened to zoning of the airwaves,19 the plurality quoted a description of the speech at issue as "[o]bnoxious, gutteral language” that "has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions.” 20 Even in cases that do not involve obscene or near-obscene materials, the Court has been willing to grant wide latitude to a community’s decision to preserve its quality of life by freeing itself from "visual clutter,” although speech rights are sacrificed in the process.21 Outside the home, the burden is generally on the observer or listener to avert his eyes or plug his ears against the verbal assaults, lurid advertisements, tawdry books and magazines, and other "offen¬ sive” intrusions which increasingly attend urban life.22 The Court seems understandably troubled that the individual may be able to find refuge from such bombardments of his sensibilities only in the sanctua¬ ry of the home — a castle fortress under siege.23 Yet the Court has not generally allowed government to suppress speech solely to protect 18. App. to Juris. Statement 81a, quot¬ ed at 106 S.Ct. 935 (Brennan, J., joined by Marshall, J., dissenting). 19. 438 U.S. 726 (1978). Justice Ste¬ vens, in the plurality opinion, conceded

21. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 807 (1984) (upholding ordi¬ nance that prohibited the posting of signs on public property, as applied to political candidate who sought to post campaign

that "[s]ome uses of even the most offen¬ sive words are unquestionably protected. Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the

property [ ] constitutes a significant sub¬ stantive evil within the City’s power to prohibit.” The Court then quoted Young v. American Mini Theatres, Inc., 427 U.S.

same in every context.” Id. at 746-47 (plu¬ rality opinion) (citations omitted); see id. at 750 (likening offensive language on the

50 at 71 (1976) (plurality opinion) ("the city’s interest in attempting to preserve [or improve] the quality of urban life is one

radio to a " 'nuisance [which] may be mere¬ ly a right thing in the wrong place — like a pig in the parlor instead of the barnyard,’ ” quoting Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388 (1926) (up¬ holding zoning ordinance that restricted industrial use of land near residential

that must be accorded high respect”). Similarly, in Metromedia, Inc. v. San Die¬ go, 453 U.S. 490 (1981) (invalidating ordi¬ nance that restricted billboard advertising on the ground that it gave greater access to commercial than non-commercial speech), seven Justices appeared to conclude that

area)). Justice Stevens also sought "to emphasize the narrowness of [the plurali¬

the city’s interest in avoiding "visual clut¬ ter” was sufficient to justify a prohibition of billboards, see id. at 507-08, 510 (opinion of White, J., joined by Stewart, Marshall, and Powell, JJ.); id. at 552 (Stevens, J., dissenting); id. at 559-61 (Burger, C.J., dis¬ ing). senting); id. at 570 (Rchnquist, J., dissent¬

ty’s] holding,” id. at 750: "The [decision to forbid use of offensive language] requires consideration of a host of variables. The time of day was emphasized by the Com¬ mission. The content of the program in which the language is used will also affect the composition of the audience, and differ¬ ences between radio, television, and per¬ haps closed circuit transmissions, may also be relevant,” id. But see "The Supreme Court, 1977 Term,” 92 Harv.L.Rev. 57, 158-59 (1978).

20. 438 U.S. at 746 n. 23, quoting 56 F.C.C.2d at 98.

signs on utility poles): "the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public

22. See Cohen v. California, 403 U.S. 15, 21 (1971) (jacket bearing the slogan "Fuck the Draft”); Erznoznik v. Jackson¬ ville, 422 U.S. 205, 211, 212 (1975) (filmed nudity visible from outside drive-in thea¬ ter). 23. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) (upholding in-

§ 12-19

COMMUNICATION

AND

EXPRESSION

949

unwilling listeners from "offensive” expression unless substantial pri¬ vacy interests have been invaded.24 junction against the exhibition of obscene films in commercial adults-only theatre).

sick, can be protected by government from noisy, marching, tramping, threatening

The Court’s opinion by Chief Justice Bur¬ ger strongly affirms a legitimate interest of

picketers and demonstrators. . . .” Gregory v. Chicago, 394 U.S. Ill (1969) (concurring opinion) (reversing convictions for disorderly conduct for holding a demon¬ stration which the Court found to be peace¬ ful and orderly; the majority did not reach the question of residential picketing, peace¬ ful or otherwise, since that was not the crime for which defendants were charged).

the public in "the style and quality of life” and "the total community environment”, id. at 58-59, and draws an analogy to laws which protect the physical environment. Id. at 62. These concerns are evidently shared by a large part of the urban popula¬ tion. See Wilson, "The Urban Unease: Community vs. City,” 12 Public Interest 25 (1968). 24. Cohen v. California, 403 U.S. 15, 21 (1971). Indeed, in Pacifica the plurality noted that "the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.” 438 U.S. at 745. The "privacy” interests of unwilling listeners are strongest in the home. See, e.g., Rowan v. United States Post Office Department, 397 U.S. 728 (1970) (uphold¬ ing addressee’s statutory right to compel a mailer of material which is deemed erotic at the sole discretion of the addressee to

But if the expressive activities of the dem¬ onstrators are not intrusive, the household¬ er should not be able to keep speakers from communicating

their messages to the pub¬

lic comprising a person’s neighbors. Cf. Organization for a Better Austin v. Keefe, 402 U.S. 415, 420 (1971) (invalidating in¬ junction against leafleting in suburban res¬ idential area as unjustified prior restraint; Chief Justice Burger distinguished the right of privacy involved in stopping "the flow of information into [one’s] household” from preventing the flow of the same infor¬ mation to the public). See generally, Note, "Picketers at the Doorstep,” 9 Harv.Civ. Rts.-Civ.Lib.L.Rev. 95 (1974).

remove addressee’s name from mailing list and stop all future mailings); Kovacs v. Cooper, 336 U.S. 77 (1949) (upholding ordi¬ nance proscribing the use of sound trucks

In public places an individual’s privacy interests in avoiding offensive communica¬ tions are generally thought insubstantial unless the person is deemed a member of a

in a "loud and raucous” manner, in part because the individual in his home is

"captive audience”, either because the per¬ son is literally not free to leave without great burden (see, e.g., Lehman v. Shaker Heights, 418 U.S. 298, 307 (1974) (Douglas

"practically helpless to escape” the intru¬ sion). But each householder must be left with the right to decide what messages to receive; government cannot make this choice in gross. See, e.g., Martin v. Struthers, 319 U.S. 141 (1943) (voiding or¬ dinance prohibiting door-to-door distribu¬ tion of any advertisements, distinguishing the case of those who call at the home in defiance of a previously expressed will of the occupant not to be disturbed).

See also City of Watseka v. Illinois Pub¬ lic Action Council, 107 S.Ct. 919 (1987) (affirming lower court decision that struck down as applied a city ordinance which limited door-to-door canvassing to the hours of 9:00 am to 5:00 pm, Monday through Saturday). But cf. Breard v. Alex¬ andria, La., 341 U.S. 622 (1951) (upholding ordinance prohibiting door-to-door distribu¬ tion of commercial advertising), discussed

J., concurring) (commuters deemed cap¬ tives of advertising on municipally-owned buses); Mailloux v. Kiley, 323 F.Supp. 1387, 1392 (D.Mass.1971) (school children as a captive audience); cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (flag salute compelled of public school students) ), or because the person is in a place where there is a basic right to remain and where one cannot readily avoid exposure to the unwanted communication. On these grounds it may be possible to justify community control over architectural styles and at least some outdoor displays precisely because they are more permanent and visible. See Packer Corp. v. Utah, 285 U.S. 105, 110 (1932)

To what extent .the special "privacy” claims of householders may justify bans on picketing, leafleting, and other expressive activities in residential areas remains un¬ decided. Justice Black was surely right

(Brandeis, J.): "Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young as well as the adults have the message of the billboard thrust upon them. ... In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard

that "the homes of men, sometimes the last citadel of the tired, the weary, and the

or street car placard.” See also, although to a somewhat different end, Note, "Aes-

in § 12-15, supra.

950

COMMUNICATION

AND

EXPRESSION

Ch. 12

Ironically, a "privacy” right equally fails to secure the converse freedom to receive information that the majority says is worthless. The right of a man to view an obscene film in the privacy of his home 25 may seem somewhat trivial 26 if, as the Court has said, that man and others have no right to gather discreetly to have the same film shown to them for a fee.27 A line which accommodates the contrarieties of rights to know and not to know — rights to receive ideas and to exclude them~~cannot be satisfactorily drawn in "privacy” terms alone, for involved in both cases is the individual’s right to constitute his own life. That process cannot go forward if it is conceived wholly as Zarathustra meditating on the mountain top, since each man’s freedom is exercised in part through the "help and security given him by his fellow man.” 28 American Mini Theatres and Renton may signal the willingness of some members of the Court to fashion rules for speech in public places which will try to accommodate the conflicting demands of individuals and communities to have government shield each from intrusion by the other. Within this calculus, the Court has promised that it will assure the continued availability of constitutionally protected materials. In Pacifica , concluded Justice Powell, "the Commission’s order does not prevent willing adults from purchasing Carlin’s record, from attending his performances, or, indeed, from reading the transcript as reprinted as an appendix to the Court’s opinion. On its face, it does not prevent respondent Pacifica Foundation from broadcasting the monologue dur¬ ing late evening hours when fewer children are likely to be in the audience, nor from broadcasting discussions of the contemporary use of language at any time during the day.” 29 And in Renton , the Court concluded that the city had struck a reasonable balance between the potentially conflicting interests, by "mak[ing] some areas available for adult theaters and their patrons, while at the same time preserving the quality of life in the community thetic Control of Land Use: A House Built Upon Sand,” 59 Northwestern L.Rev. 372 (1964). But in the end it must be stressed that the concept of a "captive audience” is dangerously encompassing, and the Court has properly been reluctant to accept its implications whenever a regulation is not content-neutral. See, e.g., Erznoznik v. Jacksonville, 422 U.S. 205, 210 (1975) (ordi¬ nance banning the exhibition of movies containing nudity on drive-in screens visi¬ ble from the street could not be upheld in order to protect sensibilities of involuntary passers-by): "The plain, if at times disqui¬ eting, truth is that in our pluralistic socie¬ ty, constantly proliferating new and inge¬ nious forms of expression, we are inescapably captive audiences for many purposes.” 25. See Stanley v. Georgia, 394 U.S. 557 (1969). 26. See Marks v. United States, 430 U.S. 188, 198 (1977) (Stevens, J., dissent¬ ing).

at large.” 30 27. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 59, 66 (1973).

28. See Green, "Liberal Legislation and the Freedom of Contract,” in Green, Works, Vol. Ill: Miscellanies and Memoir 371 (1888). 29. F.C.C. v. Pacifica Foundation, 438 U.S. 726, 760 (1978) (Powell, J., joined by Blackmun, J., concurring in part and con¬ curring in the judgment).

30. City of Renton v. Playtime Thea¬ tres, Inc., 475 U.S. 41 (1986). In so finding, the Court rejected the determinations of both the district court and the court of appeals, which had concluded that there were no commercially viable adult theater sites within the 520 acres left open by the Renton ordinance. See 748 F.2d at 534 (noting that the ordinance "would result in a substantial restriction” on speech).

§ 12-19

COMMUNICATION

AND

EXPRESSION

951

Weighing these interests, and determining how much access must remain in order for alternative avenues of communication to be deemed "reasonable,” are difficult tasks, at which the Court has not proven particularly adept. In Schad v. Borough of Mt. Ephraim?1 the Court struck down an ordinance that prohibited all forms of live entertain¬ ment, not merely those of the "adult” variety, from the borough’s commercial district. The borough was unable to explain to the Court why a total ban on commercial live entertainment, including such varied diversions as concerts, plays, and nude dancing, was justified despite the fact that all of the usual parking, trash, or police protection problems resulting from it were equally likely to arise from such permitted commercial enterprises as restaurants and movie houses.32 The Court gave short shrift to the argument that those wishing to view nude dancers could travel to nearby establishments outside the town; in the absence of any evidence to that effect in the record, the defense was unavailable.33 But the most interesting aspect of the live-en¬ tertainment case was left open by the Court. The borough argued that, if there were county-wide rather than borough zoning, it might be constitutional to limit nude dancing to selected areas of the county and exclude it altogether from primarily residential areas such as Mt. Ephraim.34 The Court admitted that this might be true but opined that, in the instant case, there was no scheme of zoning at the county level. The borough’s suggestion was the inverse of American Mini Theatres', rather than dispersing the adult theaters in order to dilute their capacity to pollute neighborhoods, a county could concentrate such enterprises in one area that it was willing to sacrifice in order to preserve the rest of the community. Would a law banning sexually explicit films everywhere in Massachusetts hut Boston be constitution¬ al? The interplay of the holding in American Mini Theatres with the dictum in Mt. Ephraim creates some interesting scenarios.35 A plan by the sprawling city of Los Angeles to disperse adult movie houses — which would be undeniably constitutional — might well be a more geo¬ graphically significant restriction of first amendment rights than a decision by Rhode Island to ban all such entertainment from the entire state. If what the Court means to stress is reasonable access to a particular kind of expression, the doctrine in this area could soon become a tangled, rather than a seamless, web. 31. 452 U.S. 61 (1981) (opinion of the Court by White, J.). Chief Justice Burger, joined by Justice Rehnquist, dissented. 32. Id. at 73-75.

sion to require adult theaters to be separat¬ ed rather than concentrated in the same areas. . . . [T]he city must be allowed a reasonable opportunity to experiment with

33. Id. at 76.

solutions to admittedly serious problems.’ ” 106 S.Ct. at 931, quoting Young v. Ameri¬ can Mini Theatres, Inc., 427 U.S. 50 at 71

34. Id.

(1976). See also City of Newport, Ken¬ tucky v. Iacobucci, 107 S.Ct. 383 (1986) (per

35. The Court’s later cases have not provided clarification. In Renton, for ex¬ ample, the Court emphasized the need to permit local flexibility: "Cities may regu¬ late adult theaters by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton. 'It is not our function to appraise the wisdom of [the city’s] deci¬

curiam) (upholding city’s authority to en¬ act an ordinance that prohibited nude or nearly nude dancing in local establish¬ ments licensed to sell liquor for on-prem¬ ises consumption).

952

COMMUNICATION

AND

EXPRESSION

Ch. 12

Third, the Court in American Mini Theatres and Renton signaled a growing willingness to entertain content-based restrictions on protected expression at least where the government’s interest is not in protecting listeners from exposure to the speech as such but rather in protecting third-party bystanders from the "secondary effects” of the speech — the physical deterioration and crime, for example, which accompany the concentration of adult theaters in a "red light” district.36 However, while in American Mini Theatres the Court did not pretend the zoning rule was content-neutral, the Renton Court found that "the ordinance is completely consistent with our definition of 'content-neutral’ speech regulations as those that are 'justified without reference to the content of the regulated speech.’ ” 37 The Court thus found that, despite the restriction’s outward appearance, it was not content -based, because the government chose to defend the rule with reasons distinct from its impact on the minds of listeners. The Renton view should be quickly renounced. Carried to its logical conclusion, such a doctrine could gravely erode the first amendment’s protections.38 Indeed, the Court itself may see the case as an aberration: on the same day that it decided Renton , the Court also released its opinion in Pacific Gas and Electric Co. v. Public Utilities Commission of New York ,39 which reaf¬ firmed the more familiar track-two doctrine.40 Fourth, although Erznoznik v. Jacksonville 41 plainly shows, as had Manual Enterprises, Inc. v. Day 42 before, it, that the Court is unwilling to equate nudity with offensiveness, nonetheless it seems likely that a 36. See American Mini Theatres, 427 U.S. at 71-72 & n. 34, n. 35. The Court accepted a similar justification in Renton even though the city council added these stated goals as amendments to the ordi¬ nance after litigation challenging it was commenced. See 106 S.Ct. at 935 (Bren¬ nan, J., joined by Marshall, J., dissenting). Indeed, the lower court had concluded that "[t]he record presented by Renton to sup¬ port its asserted interest in enacting the zoning ordinance is very thin.” 748 F.2d at 536. Justice Brennan, too, doubted the veracity of the city’s post-hoc rationaliza¬ tions and suggested that the legislative his¬ tory of the ordinance pointed to more sinis¬ ter motives: "the ordinance was designed to suppress expression, even that constitu¬ tionally protected.” 106 S.Ct. at 936. By contrast, in Erznoznick v. Jacksonville, 422 U.S. 205 (1975), the Court voided on its face a statute making it a public nuisance for a drive-in movie theater to show films con¬ taining nudity if the screen is visible from a public street or place. The justifications offered by the city rested primarily on the unwanted exposure of some Jacksonville residents to "offensive” images. The only secondary effect advanced to justify the rule was its impact on traffic, an effect likely to be caused by any movie, even one without nudity. See id. at 214-15. 37. 106 S.Ct. at 929 (quoting Virginia State Board of Pharmacy v. Virginia Citi¬

zens Consumer Council, Inc., 425 U.S. 748, 771 (1976) (emphasis added in Renton)). 38. See, e.g., Finzer v. Barry, 798 F.2d 1450, 1450, 1469-70 n. 15 (D.C. Cir. 1986) (Bork, J.) (labeling as content-neutral a rule that required demonstrations critical of a foreign government to take place more than 500 feet away from that country’s embassy but that imposed no restriction on pro-government demonstrations), cert, granted sub nom. Boos v. Barry, 107 S.Ct. 1282 (1987). The danger lies in the fact that most, if not all, speech may thus be subject to regulation on the basis of its "secondary effects.” As Chief Judge Wald warned in dissent, "If listeners’ reaction is deemed to be a 'secondary’ effect, then there is nothing left at all of the contentbased distinction doctrine.” 798 F.2d at 1480 n. 5 (Wald, C.J., dissenting). 39.

106 S.Ct. 903 (1986).

40. "For a time, place, or manner re¬ striction to be valid, it must be neutral as to the content of the speech to be regulat¬ ed.” Id. at 914. 41. 422 U.S. 205 (1975). 42. 370 U.S. 478, 489-90 J., announced the judgment an opinion joined by (magazines which portrayed

(1962) (Harlan, of the Court in Stewart, J.,) nudes but did

able). not include the model’s genitals, held mail-

4

COMMUNICATION

§ 12-19

AND

EXPRESSION

953

distinction will persist, even after obscenity is one day assimilated into the first amendment, between sexually explicit displays and forms of speech less physiological and anatomical in their content and appeal.43 The observer and listener are ordinarily required to turn the other way if they would avoid offense in public, but we may assume that constitu¬ tional doctrine will continue to distinguish among forms of offense in applying such a principle. In Paris Adult Theatre I v. Slaton , for 9

example, the Court noted offhandedly that "a live’ performance of a man and woman locked in a sexual embrace at high noon in Times Square” is unprotected even if they "'simultaneously engage in a valid political dialogue.” 44 Perhaps the most interesting aspect of that remark was not its suggestion that the dialogue cannot shield the exhibition from the police power— that amounted to no more than a repetition of the famous dictum that a quote from Voltaire on the flyleaf of an obscene book cannot save it45— but the assumption that the sexual embrace itself may be banned from the public arena.

.

The reason, presumably, is not simply that people may take of¬ fense; that could have been said of the inscription on the jacket in

Cohen u. California 48 as well, and indeed it might be said of the political dialogue in which the Court’s hypothetical couple engaged along with their other activities. Nor does it seem satisfactory to rely on the possibility that children will be injured by the sight; the Court has, after all, held that adults may not be reduced to a literary and visual environment that is safe for children,47 and it is at least imagina¬ ble that communities where children are rarely if ever present would seek to exercise the power that Paris Adult Theatre presumes they possess. We might come closer to the mark by noting the Court’s observa¬ tion that Cohen v. California was "not ... an obscenity case” since the "Fuck the Draft” slogan on defendant’s jacket was not "in some significant way, erotic.” 48 Inasmuch as no "psychic stimulation” would be caused by "Cohen’s crudely defaced jacket,” the state could not rely on its power to protect persons from uninvited affront.49 The special features of the "psychic stimulation” found absent in Cohen are plain enough: it occurs at once, so that the offended really have no time to avoid the unwanted impact — as one might avoid the unwanted impact of most political harangues simply by sampling enough to know that one wanted to hear no more, and then moving on. Moreover, and more significantly, an odd sort of privacy interest is at stake: the right of the 43.

In Renton,

for example,

Justice

Brennan noted that the Court’s holding was limited "to cases involving 'businesses explicit materials.’ ’’ purveyat sexually that 106 S.Ct. 933 (Brennan, J., joined by Marshall, J., dissenting), quoting majority opinion, id. at 929 n. 2. 44. 413 U.S. 49, 67 (1973). 45. See Kois v. Wisconsin, 408 U.S. 229, 231 (1972) (per curiam).

Tribe-Amer.Const.Law 2nd Ed. UTB — 23

47. See Butler v. Michigan,

352 U.S.

380, 383-84 (1957) (invalidating state stat¬ ute that banned the publication, sale, or distribution of reading materials inappro¬ priate for children). 48. Cohen, 403 U.S. at 20.

Id.

46. 403 U.S. 15 (1971) (reversing convic¬ tion for wearing a jacket bearing the words

"Fuck the Draft”, under ordinance which proscribed "offensive conduct”).

954

COMMUNICATION

AND

EXPRESSION

Ch. 12

observer not to be "put on the spot” by having to react, openly and in public, to anything quite so powerful and intimate as overt sexual activity.50 For the very reason that the defendant in Stanley v. Geor¬ gia 51 had a constitutional right to resist public efforts to expose his reading habits and to rummage through his private liberary of sexual materials, the individual who comes upon a couple locked in sexual embrace in Times Square might plausibly argue that he is entitled to resist public scrutiny of his response: Will he wince? Smirk? Look away in shame? Smile in shared satisfaction? If one believes that the state has no right to put him to such a test, then one may say that government no more than vindicates his right to privacy when it tells the couple to move indoors. Only with respect to displays of an unusually powerful sort — displays that cannot plausibly pass unno¬ ticed — can such an argument prevail; for most forms of communica¬ tion, the decisive answer will be that passersby are not in fact "put on the spot,” given their ability simply to move on without making an involuntary "statement” about their innermost reactions. When such a retort is unavailable, however, government may defend its prohibition against public display by invoking the right of privacy. Finally, a content-based regulation of protected expression cannot deny speakers access to a willing public, a requirement which accords with the primary inquiry on track two: 52 whether the regulation unduly constricts the ultimate flow of information and ideas. But, as will be seen, the word "unduly” implies for track-two analysis a "balancing” of affected interests.53 It is not clear in American Mini Theatres what track the first amendment inquiry took. If the strong presumption against content-based regulation remains intact, however, it should follow that, when the plurality opinion asked whether the ordinance had "the effect of suppressing, or greatly restricting access to, lawful speech,” 54 an affirmative answer would have been decisive against the ordinance without further inquiry into government’s regu¬ latory interests. But if the Court had cast its inquiry in terms of a track-two analysis, the inquiry might not have been so swiftly terminat¬ ed — even with a finding of substantial restriction on expression. Given the ordinance’s reliance on content, it is the first track that accords best with the basic architectural plan from which first amendment jurisprudence has been building. That plan begins with the fundamen¬ tal recognition that government may "abridge” speech in two concep¬ tually distinct ways,55 and that when government aims at the communi50. See Knowles & Poorkaj, "Attitudes and Behavior on Viewing Sexual Activities in Public Places,” 58 J.Soc. & search 130 (1973-74). 51. 394 U.S. 557 (1969).

Soc. Re¬

52. Track two encompasses abridg¬ ments of speech which are not aimed at ideas or information but at a goal indepen¬ dent of communicative content, but with the indirect result that the flow of informa¬

tion or ideas is constricted. See § 12-2, supra. 53. See § 12-23, infra. 54. American Mini Theatres, 427 U.S. at 71 & n. 35. The plurality opinion said only thatif the situation would "quite different the ordinance had thebeeffect of suppressing, or greatly restricting access to, lawful speech.” 55. See § 12-2, supra.

COMMUNICATION

§ 12-20

AND

cative impact of conduct, the justifications which it may advance § 12-20.

955

EXPRESSION

successfully

in defense of its action must be truly extraordinary.56 The First Amendment Right to Know: sumptively Open to the Public

Although

Proceedings

Pre¬

the system of free expression established by the first

amendment does not decree that government conduct all of the people’s business in full view of the public, it does impose limits on the ability of government to withold certain types of information from the public. These limits are especially strict when the information is produced or released in a forum (such as a trial) that, by its nature or by express constitutional command, is open to the public and not wholly internal to government. This section elaborates upon that basic insight by reviewing the course of Supreme Court adjudication in a number of related areas from the early 1970’s into the late 1980’s. In Branzhurg v. Hayes 1 the Supreme Court first offered the tanta¬ lizing suggestion that "news gathering is not without its First Amend¬ ment protections.” 2 Six years later, in Houchins v. KQED,3 the Court directly confronted for the first time the issue of whether the press has any affirmative right of access to information controlled by the govern¬ ment. KQED sought access to inspect a section of the Alameda county jail where a prisoner reportedly had committed suicide and where a scant three years earlier a federal judge had found "shocking and debasing conditions.” 4 The Supreme Court, with only seven Justices participating,5 held that the county sheriff could not be ordered to permit access to the troubled section of the jail or to permit inmate interviews.6 All seven members of the Court adhered in some degree to two propositions. The first was that the press has no constitutional right of access to govern¬ ment information superior to that of the public at large.7 The second was that the Court’s institutional capacity to enforce a right of access to information still in the government’s hands is limited, even assuming that such a right were protected by the Constitution. Both the plurali56. See § 12-3, supra. 12-20 1. 408 U.S. 665§ (1972), discussed more

fully in § 12-22, infra. 2. 408 U.S. at 707. 3. 438 U.S. 1 (1978). 4. Brenneman v. Madigan, 343 F.Supp. 128, 132-33 (N.D. Cal. 1972) (Ziropoli, J.). 5. Chief Justice Burger announced the judgment of the Court and delivered an opinion joined by Justices White and Rehnquist. Justice Stewart concurred in the judgment. Justice Stevens, joined by Jus¬ tices Brennan and Powell, dissented. Jus¬ tices Marshall and Blackmun took no part in the case.

6. 438 U.S. at 9, 15-16; id. at 18 (Stew¬ art, J., concurring in the judgment). 7. Id. at 11 (Burger, C.J., joined by White and Rehnquist, JJ.) (plurality opin¬ ion); id. at 16 (Stewart, J., concurring in the judgment); id. at 27-28 (Stevens, J., dissenting, joined by Brennan and Powell, JJ.). See also Pell v. Procunier, 417 U.S. 817, 834 (1974) (declaring that the media has "no constitutional right of access to prisons or their inmates beyond that af¬ forded the general public”); Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (contending that "the First Amendment does not guar¬ antee the press a constitutional right of special access to information not available to the public generally”).

956

COMMUNICATION

AND

EXPRESSION

Ch. 12

ty 8 and dissenting 9 opinions stressed the difficulty of deriving constitu¬ tional standards for governing the disclosure of information. How much information to disclose was a matter of degree, involving delicate questions of policy which the Constitution reserved for the political branches. Chief Justice Burger concluded that no constitutional guidelines exist and held that the first and fourteenth amendments require no right of access.10 In dissent, Justice Stevens, joined by Justices Bren¬ nan and Powell, drew on a reservoir of first amendment theory to conclude that "[wjithout some protection for the acquisition of informa¬ tion about the operation of public institutions . . . the process of selfgovernance contemplated by the Framers would be stripped of its substance.” 11 Their answer to the plurality was that some cases do not involve matters of degree, and Houchins is one of them.12 In the judgment of these Justices, the record demonstrated the existence of "an official policy of concealing from the public knowledge” about the conditions of the Alameda jail "by arbitrarily cutting off the flow of information at its source.” 13 Although there are occasions where government may act in total secrecy,14 no government interest exists that could justify a policy of concealing prison conditions from the public.15 Once the illicit policy of concealment becomes evident, a court must act to remedy the consequences of the constitutional violation. A court has broad discretion in tailoring remedial action, and it may impose remedial duties that are not themselves specifically required by the Constitution.16 Justice Stevens’ reply to the plurality was that the Court need not create at the outset detailed standards governing disclosure of information. Its task can be more limited, familiar, and peculiarly judicial — to determine that a constitutional violation has occurred and to select an appropriate remedy. 8. Houchins, 438 U.S. at 14 (Burger, C.J., joined by White and Rehnquist, JJ.) (plurality opinion). 9. Id. at 34-35 (Stevens, J., dissenting, joined by Brennan and Powell, JJ.).

10. Id. at 12-13 (Burger, C.J., joined by White and Rehnquist, JJ.) (plurality opin¬ ion).

11. Id. at 32 (Stevens, J., dissenting, joined by Brennan note omitted).

and Powell, JJ.) (foot¬

12. Id. at 34.

senting, joined by Brennan (distinguishing prior cases Washington Post Co., 417 and Pell v. Procunier, 417 on the ground that they

and Powell, JJ.) such as Saxbe v. U.S. 843 (1974), U.S. 817 (1974), held only that

legitimate penological interests justified re¬ strictions on the time and manner of public access to information about prisons). Oth¬ er "legitimate penological interests,” such as concerns for security, may justify severe internal restrictions on inmate-to-inmate mail, although not on inmate marriages. Turner v. Safley, 107 S.Ct. 2254, 2261 (1987) (test is whether rule is "reasonably related to legitimate penological inter¬

13. Id. at 38. 14. See, e.g., Landmark

15. 438 U.S. at 35-36 (Stevens, J., dis¬

Communica¬

tions, Inc. v. Virginia, 435 U.S. 829, 845 (1978) (recommending ’'careful internal procedures” to protect the confidentiality of proceedings of commission investigating judicial misconduct); United States v. Nix¬ on, 418 U.S. 683, 705 (1974) (affirming the need for confidentiality for communica¬ tions among high government officials).

ests”). 16. 438 U.S. at 40, citing Milliken v. Bradley, 433 U.S. 267, 287 (1977) (discuss¬ ing a court’s discretion in formulating de¬ segregation decrees for public schools), dis¬ cussed in §§ 16-19, 16-20, infra.

§ 12-20

COMMUNICATION

AND

EXPRESSION

957

The first case in which a majority 17 of the Court reached agree¬ ment in this area was Gannett Co. v. DePasquale,18 which held that the Constitution allows a trial court, at the request of the defendant and without objection by the prosecution, to exclude the press and public from a pretrial suppression hearing, at least with respect to the determination of the admissibility of the defendant’s confession. The Court, relying exclusively on a sixth amendment rationale, concluded that the right to a public trial could be invoked only by the criminal defendant, and it reserved the issue of whether the first amendment contains a right of access to such proceedings by finding that, even if that amendment applied, its requirements had been satisfied in the instant case.19 The definitive answer to the question of whether the first amend¬ ment mandates open trials came in Richmond Newspapers , Inc. v. Virginia .20 In September 1978, John Paul Stevenson was on trial on a charge of murder for the fourth time.21 Despite the spirit of liberty which pervaded the site of the trial,22 the presiding judge took the unprecedented step of granting the defense counsel’s request that the trial be conducted in secret.23 Ultimately, the sole reason provided by the trial court for banishing all observers (including Richmond Newspa¬ pers’ two reporters) for public’s presence might strikingly incompatible The trial continued in

the duration of the proceedings was that the distract the jury24 — an astonishing rationale with the centuries-old norm of public trials. secret and, for unknown reasons, the court

struck the Commonwealth’s evidence and declared the defendant not guilty. Such an unexplained acquittal in the midst of a secret retrial for murder portends a regime of "mystery, miracle and authority” 25 — one wholly inhospitable to first amendment values and traditions. Yet the Virginia Supreme Court denied all of Richmond Newspapers’ tions for mandamus, prohibition, and leave to appeal.26 17. The vote was 5-4. 18. 443 U.S. 368 (1979). Justice Stew¬ art delivered the opinion of the Court, in which Chief Justice Burger and Justices Powell, Rehnquist, and Stevens joined. Chief Justice Burger and Justices Powell and Rehnquist also filed concurring opin¬ ions. Justice Blackmun filed an opinion concurring in part and dissenting in part, in which Justices Brennan, White, and Marshall joined.

19. Id. at 392. 20. 448 U.S. 555 (1980). The author of this treatise argued the case before the Supreme Court on behalf of the appellant newspaper.

peti¬

22. The place of the trial was the Hano¬ ver County Courthouse, a prototype of the American trial forum, where two centuries before Patrick Henry had gained immortal fame by delivering a stirring oration to a courtroom crowded to the rafters.

23. Va. Code § 19.2-266 (1950) provides that criminal trials may be closed, with the defendant’s consent, to "any persons whose presence would impair the conduct of a fair

trial.” 24. See 448 U.S. at 561, 580-81 (Burger, C.J., joined by White and Stevens, JJ.) (plu¬ rality opinion). 25. F. Dostoevsky, The Brothers Karamazov 301 (D. Magarshack trans. 1958).

21. His initial conviction had been re¬ versed, and two subsequent retrials ended in mistrials. Id. at 559 (Burger, C.J., joined by White and Stevens, JJ.) (plurality opinion).

26. 448 U.S. at 562 (Burger, C.J., joined by ion).White and Stevens, JJ). (plurality opin¬

958

COMMUNICATION

AND

Ch. 12

EXPRESSION

In a 7-1 27 decision which spawned seven opinions,28 none com¬ manding a majority, the Court reversed and ruled that the first amend¬ ment guarantees a public right of access to criminal trials.29 Chief Justice Burger, in an opinion joined by Justices White and Stevens, traced the historical evolution of the modern criminal trial and con¬ cluded that openness was required if trials were to perform their traditional functions of educating the populace in the ways of democra¬ cy, creating a public perception of fairness, and providing an outlet for community concern, emotion, and hostility.30 The courthouse is a "theatre of justice,” 31 wherein a vital social drama is staged; if its doors are locked, the public can only wonder whether the solemn ritual of communal condemnation has been properly performed. Justice Brennan, joined by Justice Marshall, concurred in the judgment on the ground that a right of public access to criminal trials was required by the "structural” 32 role played by the first amendment. Rather than viewing the right to observe and discuss the criminal justice system as a derivative of the general first amendment policy of protecting the intrinsic value of self-expression, Justice Brennan argued that a right of access was a necessary corollary to the constitutional purpose of ensuring government Brennan

accountability.33 Open trials, Justice

concluded, advance broad constitutional objectives; they "as-

27. Justice Powell, whose

separate

opinion was pivotal in Gannett, see J. Choper, Y. Kamisar, and L. Tribe, 1 The Supreme Court: Trends and Developments 1978-1979, at 225-30 (1979), did not par¬ ticipate.

28. Chief Justice Burger wrote for a plurality consisting of himself and Justices White and Stevens. Justice Brennan con¬ curred in the judgment and was joined by Justice Marshall. Justice Stevens joined the plurality opinion and also filed a sepa¬ rate concurring opinion. 448 U.S. at 582. Justice Blackmun concurred in the judg¬ ment primarily on sixth amendment grounds, relying on the argument made by the dissenters in Gannett. Id. at 601. Jus¬ tice White, who had joined the Gannett dissent, expressed a similar sentiment. Id. at 581-82. Justice Stewart, long an advo¬ cate of an "adversary” model of govern¬ ment-press relations, see Branzburg v. Hayes, 408 U.S. 665, 726-27 (1972) (Stew¬ art, J., dissenting); Stewart, "Or of the Press,” 26 Hast.L.J. 631, 636 (1975), also concurred in the judgment, stressing that the right of access was not absolute. See 448 U.S. at 600. Justice Rehnquist was the lone dissenter.

29. Of course, that right remains sub¬ ject to a court’s power to regulate the speech of parties, witnesses, and observers in the interest of fair and decorous pro¬ ceedings. The Court has assumed that all behavior — including purely communicative behavior — that prevents the fair adjudica¬

tion of a case is punishable as contempt. See Wood v. Georgia, 370 U.S. 375, 383 (1962) ("We start with the premise that the right of the courts to conduct their busi¬ ness in an untrammeled way lies at the foundation of our system of government”); Pennekamp v. Florida, 328 U.S. 331, 353 (1946) (Frankfurter, J., concurring) ("Among the 'substantive evils’ with which legislation may deal is the hampering of a court in a pending controversy, because the fair administration of justice is one of the chief tests of a true democracy”). § 12-11, supra.

See

30. 448 U.S. at 563-73 (plurality opin¬ ion). 31. 1 J. Bentham, The Rationale of Ju¬ dicial Evidence 597 et passim (J. Mill ed. 1827). 32. For an exposition of this theory, see Brennan, Address, 32 Rutgers L.Rev. 173, 176-82 (1979). 33. As James Madison centuries ago:

wrote nearly two

"A popular Government, without popu¬ lar information, or the means of acquir¬ ing it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Gover¬ nors, must arm themselves with the pow¬ er which knowledge gives.” 9 Writings of James Madison Hunt ed. 1910)

103 (G.

§ 12-20

COMMUNICATION

AND

EXPRESSION

959

sure the public that procedural rights are respected, and that justice is afforded equally.” 34 As in Gannett , the defense counsel had requested a closed proceed¬ ing, so a sixth amendment argument was unavailable. Indeed, given that neither the defendant an argument could be made ed an open proceeding in would represent the forced

nor the prosecutor desired an open trial,35 that the first amendment actually prohibit¬ such circumstances on the ground that it speech of unwilling speakers. While this

objection need not prove fatal,36 any satisfying interpretation of Rich¬ mond Newspapers must explain why the public has a right to receive information in spite of its supplier’s desire that it not be disclosed. Similarly, the theory must define the right to know in limited terms, without presupposing anything like a constitutionally-based, all-encom¬ passing Freedom of Information Act. The strongest case for a first amendment right of access to criminal trials rests on the fact that such trials are public by constitutional command. The sixth amendment, which confers on the accused the right to demand a public trial,37 implies that the government cannot claim unfettered discretion to treat criminal trials as though they involved wholly internal or confidential matters, or to view the infor¬ mation produced by such trials as '"information generated and con¬ trolled by government.” 38 The Richmond Newspapers plurality cor¬ rectly recognized the Anglo-American tradition of open trials; this openness is a result not of historical accident but rather of explicit constitutional command.39 34. 448 U.S. at 595 (Brennan, J., con¬ curring in judgment). For a favorable as¬ sessment of Justice Brennan’s structural approach as "the only rationale for the Richmond Newspapers decision true to the purposes of the first amendment,” see The Supreme Court, 1979 Term, 94 Harv.L.Rev. 149, 154-59 (1980). 35. Presumably the judge wanted a closed proceeding, see 448 U.S. at 561 (Bur¬ ger, C.J., joined by White and Stevens, JJ.) (plurality opinion), and perhaps the jurors and witnesses preferred a closed trial as well. 36. It is settled, for example, that the first amendment protects the right to re¬ ceive information as well as the right to communicate it. See, e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765, 781-83, 791-92 (1978); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 756-57 (1976); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). See generally § 12-19, supra. This right is protected even when the speaker is not entitled to first amendment protection. See Lamont v. Postmaster General, 381 U.S. 301, 306-07 (1965). The fact that the original source of information

now in the hands of others might have been unwilling to communicate it is also unconstitutionally irrelevant. See Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979); New York Times Co. v. United States, 403 U.S. 713 (1971). Moreover, when the source of information at issue is not a person or organization but a proceed¬ ing, the dichotomy between "willing” and "unwilling” speakers is unhelpful. 37. Nothing in the Constitution entitles the accused to compel a private trial. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980); Gannett Co. v. DePasquale, 11 (1979).

443 U.S. 368, 382, 383-84 n.

38. Houchins v. KQED, Inc., 438 U.S. 1, 16 (1978) (Stewart, J., concurring in judg¬ ment).

39. See Gannett Co. v. DePasquale, 443 U.S. 368, 368 (1979) (noting that "the Sixth Amendment . . . presumes open trials as a norm”); Houchins v. KQED, Inc., 438 U.S. 1, 36 (1978) (Stevens, J., joined by Brennan and Powell, JJ., dissenting) (con¬ tending that "[b]y express command of the Sixth Amendment the proceeding must be a ’public trial’ ”).

960

COMMUNICATION

AND

This crucial fact serves to remove

EXPRESSION

Ch. 12

criminal trials from the realm of

official proceedings within government’s the "unshared power” over foreign policy tution on the Executive,41 the power over shared — at least with the accused — simply

unilateral control.40 data conferred by the access to a criminal by virtue of the sixth

Unlike Consti¬ trial is amend¬

ment. The first amendment thus does not operate as "some sort of constitutional 'sunshine law’;” 42 it does not reveal to the public infor¬ mation and proceedings already securely within the government’s con¬ trol. The first amendment instead opens a constitutional window into material and events already identified by the sixth amendment as beyond such control. In this context, the decision as to which requests for closure by defendants will be honored and which will not be cannot be left solely in the hands of the trial judge, for this would in effect constitute a system of government censorship.43 Although none of the opinions stressed this threat of censorship, it may well form the core of Rich¬ mond Newspapers : the central flaw of the Virginia closure statute was that it invited trial judges to act exactly as the trial court in Steven¬ son’s case did — to exercise completely unbridled discretion, in virtually summary fashion, to close entire trials either for the trifling conve¬ nience of proceeding in secret, or for less obvious, more content-based reasons. If discretion to decide when to close trials is exercised not by a court but by a legislature, enacting criteria to be applied by the trial judge, a system amounting to censorship may still result. In Globe Newspaper Co. v. Superior Court ,44 the Court, in an opinion by Justice Brennan,45 struck down a Massachusetts law which had been construed by the state’s highest court to require trial judges to exclude the public 40. Cf. Landmark

Communications

v.

Virginia, 435 U.S. 829, 834-37, 841 (1978) (discussing confidentiality for commissions of judicial inquiry); United States v. Nix¬ on, 418 U.S. 683, 705 (1974) (establishing confidentiality for communications among high level officials); Pell v. Procunier, 417 U.S. 817, 834 (1974) (discussing right of access to prisons); Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (noting that "the press is regularly excluded from grand jury pro¬ ceedings, our own conferences, the meet¬ ings of other official bodies gathered in executive session, and the meetings of pri¬

utes making the exercise of first amend¬ ment speech contingent upon the discre¬ tion of a public official. See, e.g., Staub v. Baxley, 355 U.S. 313, 322 (1958); Lovell v. Griffin, 303 U.S. 444 (1938). See also Post, "The Management of Speech: Discretion and Rights,” 1984 Sup.Ct.Rev. 169, 183-87. Nor are judges trustworthy censors. See Blasi, "Towards a Theory of Prior Re¬ straint: The Central Linkage,” 66 Minn.L. Rev. 11, 52 (1981) (concluding that underly¬ ing much first amendment theory and doc¬ trine is the perception "that judges tend to be unduly risk averse in ruling upon the

vate organizations”); Zemel v. Rusk, 381 U.S. 1, 16-17 (1965) (concluding that there is no "unrestrained right to gather infor¬ mation” that entitles one to insist on a passport to Cuba or, e.g., to demand entry to the White House).

claims of speakers.”). But see Jeffries, "Rethinking Prior Restraint,” 92 Yale L.J. 409, 426-27 (1983). See generally §§ 1234, 12-35, 12-36, infra.

41. See New York Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., joined by White, J., concurring). 42. Gannett, 443 U.S. at 405 (Rehnquist, J., concurring).

45. Justice Brennan was joined by Jus¬ tices White, Marshall, Blackmun, and Pow¬ ell. Justice O’Connor concurred in the judgment. Chief Justice Burger, joined by Justice Rehnquist, dissented. Justice Ste¬ vens would have dismissed the appeal; he

43. The Court has consistently struck down as unconstitutional censorship stat¬

accused the majority of rendering an advi¬ sory opinion.

44. 457 U.S. 596 (1982).

§ 12-20

COMMUNICATION

AND

EXPRESSION

961

and press from the courtroom during the testimony of underage victims in cases of rape and other sexual offenses. The Court conceded the importance of shielding young victims from further trauma and embarrassment, but ruled that even such a compelling interest could not justify a mandatory closure rule which operated regardless of the wishes and interests of the public, In the particular trial involved the state closure statute to close the forcibly raping three girls aged 16

the parties, and the in Globe , the judge entire trial of a man and 17 at the time

witnesses.46 had relied on charged with of trial. The

majority’s comment that a case-by-case closure determination by the trial judge would be constitutional 47 is therefore mere dictum. Howev¬ er, the majority’s willingness to endorse such a view even in the abstract is ominous. Given a choice between a rule allowing closure by the judge based on an ad hoc review of the "victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives,” 48 and a rule requir¬ ing closure whenever the underage victim so requests, the latter might well be preferable. It would obviously provide more certain protection for the complaining witness, even if it did result in greater exclusion of the press and public. Yet this may well be an instance where "less is more,” for the alternative rule permitting ad hoc decisions by the judge might result in less closure but more hidden censorship by the govern¬ ment. A third possibility would be to defer to the defendant’s request rather than (or in addition to) the victim’s. If the courtroom had to be cleared during a defendant’s testimony upon his request — for example, in a rape case where the truth would exonerate but embarrass him — there would again be more closure but far less risk of government censorship.49 A case challenging this rule would be more decide than Gannett , since the rule would not permit any decide what is fit for the public to see and hear. Such a case be more complex than Globe , since it would not involve

difficult to official to would also legislative

censorship,50 and since the defendant arguably has an even greater interest in testifying in his own defense than does an underage victim in testifying against her alleged attacker. But the Court did not explicitly decide either Richmond Newspa¬ pers or Globe on such a risk-of-censorship theory. Given the broader grounds invoked, the case for an affirmative right to gather news and information is substantially stronger after these two cases. In that sense, Richmond was indeed a "watershed case.” 51 Yet the contours and the growth potential of the principles there established are far 46. Id. at 607-08.

mun, J., concurring in part, dissenting in

47. Id. at 608-11 & nn. 25, 27. 48. Id. at 608. 49. The Court, however, has held that the sixth amendment

right to public trials

does not imply a concomitant right to pri¬ vate ones. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980); Gan¬ nett Co. v. DePasquale, 443 U.S. 368, 382,

383-84 n. 11 (1979); id at 416-33 (Black-

part). 50. The Massachusetts Supreme Judi¬ cial Court in Globe interpreted the closure law not only to mandate closure during the testimony of underage rape victims, but also to allow closure during other portions of the trial at the judge’s discretion. 51. 448 U.S. at 582 (Stevens, J., concur¬ ring). The case and its potential for ex-

962

COMMUNICATION

AND

EXPRESSION

Ch. 12

from definite, in part because of the diversity of the seven opinions. Thus far the Court has relied on its reading of the common law tradition to extend the right of public access to voir dire proceedings 52 and preliminary hearings,53 but has refused to grant the public or press access to discovery hearings.54 The opinions in Richmond Newspapers suggest that a majority of the Court stands ready to extend the right of press and public access to civil trials,55 and such an extension would comport with the principles underlying both Chief Justice Burger’s and Justice Brennan’s opinions.56 The partial reliance, in Chief Justice Burger’s Richmond Newspa¬ pers opinion, on the ninth amendment as the repository of the public right of access to criminal (and presumably pansion are discussed in D. O’Brien, The Public’s Right to Know: The Supreme Court and the First Amendment 136-46 (1981); Cox, "Freedom of Expression in the Burger Court,” 94 Harv.L.Rev. 1, 19-26 (1980); Fenner and Koley, "Access to Judi¬ cial Proceedings: To Richmond Newspa¬ pers and Beyond,” 16 Harv.C.R.-C.L.L.Rev. 415 (1981); Lewis, "A Public Right to Know About Public Institutions: The First Amendment as a Sword,” 1980 Sup.Ct.Rev. 1; The Supreme Court — 1979 Term, 94 Harv.L.Rev. 149, 154-59 (1980). 52. See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 505-10 (1984) (noting the long history of public participation in jury selection and the im¬ portant role of open trials in the adminis¬ tration of justice).

53. See Press-Enterprise Co. v. Superior Court of California, 106 S.Ct. 2735, 2740 (1986) (stating that the test is "whether the place and process has historically been open to the press and general public”).

54. See Seattle Times v. Rhinehart, 467 U.S. 20 (1984) (holding that a protective order, entered on a showing of good cause, which bars dissemination of information gained through discovery, does not offend the first amendment). Since the discovery process is established and enforced by the state, it more closely resembles proceed¬ ings wholly internal to government than it does the criminal trial, where the com¬ mand of the sixth amendment denies the government unilateral control over a trial’s openness. See id. at 35-36 (the state’s "substantial interest in preventing . . . abuse of its processes” justified dele¬ gation of "broad discretion on the trial court to decide when a protective order is appropriate and what kind of protection is required.”); id. at 32 (since litigants gain information "only by virtue of the trial court’s discovery processes,” the informa¬ tion is provided as "a matter of legislative grace” and thus "continued court control over the discovered information does not raise the same

spectre of government

cen¬

also civil) trials57 consti-

sorship that such control might suggest in other situations.”). For a fuller discussion of the protective order issue, see § 12-21, infra.

55. See 448 U.S. at 580 n. 17 (Burger, C.J., joined by White and Stevens, JJ.); id. at 590, 594-95, 596 (Brennan, J., joined by Marshall, J., concurring in the judgment). See also Gannett Co. v. DePasquale, 443 U.S. 368, 386 n. 15 (1979); id. at 420, 424 (Blackmun, J., concurring in part and dis¬ senting in part). But see Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 611 (1982) (O’Connor, J., concurring in the judgment) (arguing that the value of open¬ ness is unique to criminal trials and "inter¬ preting] neither Richmond Newspapers nor the Court’s decision today to carry any implications outside the context of crimi¬ nal trials”).

56. See Note, "Trial Secrecy and the First Amendment Right of Access to Judi¬ cial Proceedings,” 91 Harv.L.Rev. 1899, 1921-23 (1978). Lower courts have tended to uphold a public right of access to civil trials. See, e.g., Westmoreland v. Colum¬ bia Broadcasting System, Inc., 752 F.2d 16, 22-23 (2d Cir. 1984) (dictum), cert, denied 472 U.S. 1017 (1985); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1067-71 (3d Cir. 1984); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177-79 (6th Cir. 1983), cert, denied 465 U.S. 1100 (1984); see also In re Continental Illinois Securities Litig., 732 F.2d 1302, 1308-09 (7th Cir. 1984) (agreeing with the reasoning of those courts holding that there is a public right of access to civil trials al¬ though not specifically recognizing such a right). Other courts, while not explicitly joining those recognizing a right of access to civil trials in general, have recognized a right of access to certain fundamental as¬ pects of civil proceedings. See, e.g., Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985) (presumptive right of ac¬ cess applied to the trial record).

57. See 448 U.S. at 579 n. 15.

§ 12-20

COMMUNICATION

AND

963

EXPRESSION

tutes the first use of that text as a guarantor of fundamental

rights

since the Court articulated the rights of privacy58 and freedom of travel.59 Such an approach is likely to broaden the range of proceed¬ ings to which Richmond Newspapers will ultimately be held to apply. Even so, it is not likely to be so broadened so as to encompass the kinds of proceedings and places that have traditionally been closed to the public.60 But, regardless of the proceeding, the Court would be unlikely to uphold a rule which permitted the general public to enter a proceeding while denying access to reporters. To be sure, despite its separate protection by the first amendment,61 the prevailing view is that the press enjoys no special status under the Constitution.62 But the press is protected at least from invidious discrimination.63 Conversely, a '’press access only” rule would probably be unconstitutional as applied to exclude, for example, the victim’s family. There remains the question whether particular media — such as television — may be totally excluded from the courtroom. The Court did not settle the issue in Chandler v. Florida .M The Court there held only that the due process clause does not invariably entitle the defendant, as a matter of his right to a fair criminal trial, to compel the exclusion of television cameras from the courtroom. The Court in effect ruled that television is now so ubiquitous that its presence cannot be deemed inherently prejudicial. To be sure, Chandler said nothing at all about the "right” of television to be there; indeed, the Court had no occasion to question the Florida Supreme Court’s statement that neither photog58. See Griswold v. Connecticut, 381 U.S. 479 (1965), discussed in Chapter infra.

15,

59. Although the Court has not explicit¬ ly invoked the ninth amendment in order to support a right of travel, its attempts to lodge that right in other constitutional texts have been so vague and various as to suggest that the Court has in effect been engaged in ninth amendment analysis. See, e.g., Zobel v. Williams, 457 U.S. 55, 78-81 (1982) (O’Connor, J., concurring) (ar¬ ticle IV privileges and immunities clause); Shapiro v. Thompson, 394 U.S. 618, 669-70 (1969) (Harlan, J., dissenting) (fifth amend¬ ment due process); United States v. Guest, 383 U.S. 745, 757-59 (1966) ("concept of our Federal Union”); Aptheker v. Secre¬ tary of State, 378 U.S. 500, 505, 514, 517 (1964) (first and fifth amendments). See also J. Ely, Democracy and Distrust 177 (1980).

60. See, e.g., Landmark

Communica¬

tions v. Virginia, 435 U.S. 829 (1978) (pro¬ ceedings of commission investigating judi¬ cial misconduct); Saxbe v. Washington Post Co., 417 U.S. 843 (1974) (prisons); Rehnquist, "The First Amendment: Free¬ dom, Philosophy, and the Law,” 12 Gonz.L. Rev. 1, 13-14 (1976) (Supreme Court con¬ ferences).

61. "Congress shall make no law . . . abridging freedom of speech, or of the press.” U.S. Const, amend.

I.

62. See Anderson, "The Origins of the Press Clause,” 30 U.C.L.A.L.Rev. 455 (1983). 63. See, e.g., Minneapolis Star & Trib¬ une Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983) (invalidating "use tax” on the cost of paper and ink products con¬ sumed in the production of newspapers and periodicals under the first amendment in part because it "singles out the press”); accord, Arkansas Writers’ Project, Inc. v. Ragland, 107 S.Ct. 1722 (1987); cf. Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) (newspaper may not be punished for publishing name of alleged juvenile offend¬ er if information is legally obtained); Okla¬ homa Pub. Co. v. District Court, 430 U.S. 308 (1977) (per curiam) ("freedom of press” prohibits injunction against publication of name of alleged juvenile delinquent availa¬ ble in public record); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (newspa¬ per may not be punished for publishing name of rape victim once it is a matter of public record). 64. 449 U.S. 560 (1981).

964

COMMUNICATION

raphers nor the broadcast media

AND

EXPRESSION

Ch. 12

enjoyed either a state or a federal

constitutional right of access to the state’s courtrooms. Yet the right of the public and the press to attend and observe criminal trials, as recognized in Richmond Newspapers , cannot plausibly be limited to the few who are fortunate enough to fit physically into whatever courtroom space is made available. Unless Richmond Newspapers and its progeny stand only for the exceedingly limited proposition that totally secret trials are unconstitutional, it should follow that wholesale exclusion of the larger public — both contemporary and historic — that is unable to witness the proceedings without the aid of a TV camera cannot stand in the absence of a compelling justification in the particular case. Wheth¬ er state and federal courts may continue to exclude even unobtrusive TV coverage from the courtroom therefore seems dubious — although the Supreme Court has yet to address the matter.65 In Schneider v. Irvington the Supreme Court first held that the government cannot prohibit public pamphleteering simply because it costs money to clean up the inevitable litter. The streets are a public forum, and handbills are the poor man’s printing press. The public forum doctrine 67 is an important recognition that it is not enough for government to refrain from invading certain areas of liberty. The state may, even at some cost to the public fisc, have to provide at least a minimally adequate opportunity for the exercise of certain freedoms.

Ch tha TV ca are not inh an me e t d r ent lerpre it is alses th obv r¬ an s j iou l ho y a cou udic cou per dis s w rt ial ld tin s the ele me,d fruoasi the pre ingulig i m vel v ss of th ctrofnir amia wh shht y al ic e en icst ue dm s an Ri N anh e e d i c nt wsp lu mat in th hmbo oaf Cha a e rk ed cnkd pe nd ed gr r ler See Are "C v. oFulno Tels . h s, evi rid a d n Cr Tri dl an D Pa:ro si1o98 i a1ls er T d aue coes t n 1 Sup mina f h u 5 h ,. s,”is tre,a¬ t 7 e . h l owri tis Ctm.a tha ar suc th gu Rdeev e ces t o m in We v. Coen Brut s . oa lut st d m m Sy 16 (2dbi Cir 198 ca cer or752 F.2 s a . t e 4 s d den tem, 472 laU.nSd 101 (19 but the ),Seting , co 85) . 7 i Cir ed all but con th,a it was sim nd cu t c ply un it to ca eded Ri Ne r w p ch per repto its log corny mo If Ric spa¬ ica s are nd clu hmm Ne and l its pro si pro d eo rend ws o t g e n e p the raipg of a fe pub ny .att ct t o lybe w ehrt l e s pr phy wi ic thendeceo e t su s s h its ica the couent be noin fir am rtro el lly re st e o l obj f, to att d to red the nndume m mbnt e u e e o of ocbtsio to mthpets few wh cearr f i r n o st, r r ive e r v aft eve to ertshe del use of "co er ibe u n o t th i c c of thret-psma e ng” r he alc rat hoi ho es po co ula e Tche fir amackl¬l¬ ld t s e en u s t s rtif edu imn d¬cf. iisblteri the ftou r n egn , l o v r i o i t i t Ka n v. Un al Sta m. k3e89 U.S 347h, 351 tz it tes , . e d (19 (el the, re tha a qu 67) t imi i r n e a "c pr areme be inv t ad¬ a” ngtu tec edonsbtef fou ing aom ar itour t e r e n t a d nrta co intteio pla h it pro dm p eth me tecent lace o nal y), s p eesr ts on tha peo —lyif it pro t ly he altr ts ec a ploef a f pri n t ben bary i o e m t ts id w , vil ch, st ege

and jury box, and

not the fundamental

right of the many "to listen, observe, and learn” at first-hand, Richmond Newspa¬ pers, 448 U.S. at 578 (opinion of Burger, C.J.). The first amendment’s "protection ... is [of] the communication itself,” Vir¬ ginia Board of Pharmacy v. Virginia Citi¬ zens Consumer Council, Inc., 425 U.S. 748, 756 (1976). This right of access is limited, of course, by the same "compelling” inter¬ ests that justify the partial or total exclu¬ sion of the public itself. See KPNX Broad¬ casting Co. v. Arizona Superior Court, 459 U.S. 1302, 1306-08 (1982) (Rehnquist, Cir¬ cuit Justice) (denying stay of trial judge’s order which banned court personnel, coun¬ sel, witnesses, and jurors from speaking directly with the press and which required that all drawings of jurors shown on televi¬ sion be reviewed by the court being broad¬ cast); United States v. Chagra, 701 F.2d 354 (5th Cir. 1983) (bar of press and public from pretrial bond reduction hearing held not violative of constitutional access rights when closure is necessary to protect defen¬ dant’s fair trial rights). But a clear danger to these interests must be shown. See United States v. Columbia Broadcasting, Inc., 497 F.2d 102 (5th Cir. 1974) (order banning in-court sketching invalid absent showing that sketching was obtrusive or disruptive). 66. 308 U.S. 147 (1939). 67. See § 12-24, infra.

COMMUNICATION

§ 12-21

AND

965

EXPRESSION

In a sense, Richmond Newspapers is of this ilk: it is not enough that the government refrain from positively gagging and censoring the press.68 It must, even at some inconvenience to its courts and juries, let the press and the public enter its courtrooms to observe a kind of public drama — a public forum for watching and listening , rather than a forum for speech. In this respect, perhaps the most interesting and farreaching feature of Richmond Newspapers has less to do with the freedoms of speech or press than with the growing realization that the Constitution is no longer simply a source of fences around private spheres, but is increasingly drawn into question when the state is asked to take affirmative steps to make liberty or equality meaningful. This new and unaccustomed role may be one that some of the Framers might have found surprising, but it is a role that the larger concepts implicit in the document they wrote and ratified may require contem¬ porary lawyers, judges, and legislators to grapple with for much of their careers. § 12-21.

The

First Amendment

Right

to Know:

Preventing

or

Penalizing Dissemination of Information "Leaked” From Proceedings or Sources Not "Open to the Pub¬

Whatever may prove to be the ultimate reach of the public and press rights of lic” access to information that is at least partly controlled by government, the Supreme Court has left no doubt that, once someone outside government acquires official information, the government can¬ not, absent an extraordinary showing, penalize its publication. There may be some rough "law of the jungle” notion at work here: even if no sweeping right to know will be recognized as a limit on government’s power to try to keep matters bottled up, an outsider who manages to obtain otherwise confidential information cannot then be prevented from disseminating it 1— or punished for having done so.2 Thus, the Supreme Court has repeatedly ruled that disseminators of confidential information obtained from judicial proceedings are enti¬ tled to first amendment protection. In Cox Broadcasting Corp. v. Cohn ,3 for example, the Court held that a state cannot constitutionally punish a television station for broadcasting a 17-year-old rape-murder 68. See, e.g., 448 U.S. at 576 n. 11, 57778, 581 n. 18 (plurality opinion). See also id. at 599-600 (Stewart, J., concurring in the judgment) (observing that "a trial courtroom is a public place,” and relying on analogies to reasonable time, place, and manner restrictions). § 12-21

a f ( ( 6 L.J 63 H 1, go36 1t9h75 au"So ar s thasti Co . e n e e to a wh s, it kn) pre ngsmasti pu nnod may bl ow at y t s u s i it can .. s, Th mouCo see to lea ti whsh e s n¬ a of In¬ a .F.r irtns on ist ne stik it a e eAlf S O n fo tut e ec or her n ffi do ct rm ion re m c ts of Th ialMo Ac ati See als A. Bic t r e o o k . a Aldi (1 Co ”) n 79 el,Br 97 dtry -8 ns . en 5 es 1 en na ) ; s, t n,

32 Rutgers L.Rev. 173, 176-77 (1979). On prior restraints generally, see §§ 12-34, 12-35, 12-36, infra. 2. The showing required to justify afterthe-fact liability is considerably less than that required to justify prior restraint. See § 12-34, infra. 3. 420 U.S. 469 (1975). Justice White delivered the opinion of the Court, in which Justices Brennan, Stewart, Mar¬ shall, Blackmun, and Powell joined. Jus¬ tice Powell also filed a concurring opinion. Chief Justice Burger concurred in the judg¬ ment. Justice Douglas filed an opinion concurring in the judgment. Justice Rehnquist filed a dissenting opinion.

966

COMMUNICATION

AND

EXPRESSION

Ch. 12

victim’s name, when obtained by the station from courthouse records that were open to public inspection. Justice White’s majority opinion focused on the public importance of trial proceedings,4 as well as the potential chilling and self-censorship effects of a rule that made public records generally available to the press but created a negligencestandard privacy tort for revelations that were "offensive to the sensi¬ bilities of the supposedly reasonable man.” 5 Similarly, the Court has held that a state cannot punish the news media for the accurate publication of an alleged juvenile delinquent’s name, when mation has been lawfully obtained.6

that infor¬

In Landmark Communications v. Virginia ,7 the Court reversed the conviction of a newspaper that had violated a Virginia statute imposing criminal sanctions on persons who breached the confidentiality of proceedings before a commission responsible for inquiries into com¬ plaints of judicial disability or misconduct. The Court did not doubt that the state had a legitimate interest in keeping such proceedings confidential, or that the state could punish a breach of confidentiality by commission members or staff or by participants in the proceedings.8 But, once the information came into the hands of a newspaper, Virginia could penalize its publication only by demonstrating a clear and pres¬ ent danger to the administration of justice, a standard it had failed to meet in the instant case.9 4. See id. at 492-93.

But the Court

cautioned that it meant "to imply nothing about any constitutional questions which might arise from a state policy of not al¬ lowing access by the public and press to various kinds of official records, such as

government must also be conceded the au¬ thority to punish those who illegally obtain access — although perhaps not those third parties who innocently obtain such illegally acquired information seminate it.

and

thereafter dis¬

records of juvenile-court proceedings.” Id. at 496 n. 26. This was, after all, five years before Richmond Newspapers, Inc. v. Vir¬ ginia, 448 U.S. 555 (1980), discussed in § 12-20, supra. 5. 420 U.S. at 496.

7. 435 U.S. 829 (1978). Chief Justice Burger delivered the opinion of the Court, in which Justices White, Marshall, Blackmun, Rehnquist, and Stevens joined. Jus¬ tice Stewart filed an opinion concurring in

6. See Smith v. Daily Mail, 443 U.S. 97 (1979); Oklahoma Publishing Co. v. Dis¬ trict Court, 430 U.S. 308 (1977) (per curiam). In both cases the Court stressed that the information had in fact been ob¬ tained lawfully. See 443 U.S. at 100-02; 430 U.S. at 311. The same concerns for

8. Id. at 841 art, concurring the importance est at stake and

truth and self-censorship, however, argua¬ bly apply to both lawfully and unlawfully obtained materials, and the appeal to legal¬ ity as a talisman may in part beg the access issue, discussed in § 12-20, supra, since the question of "what is lawful?” cannot be answered without reference to the first amendment. On the other hand, the illegal appropriation of confidential in¬ formation belonging to another raises is¬ sues of private or public property rights, as in trade secrets and copyright cases. See § 12-14, supra. Moreover, according to the logic of Seattle Times v. Rhinehart, 467 U.S. 20 (1984), discussed infra, if the gov¬ ernment is conceded the ability to deny access altogether, then it may well be that

the judgment. Justices Brennan and Pow¬ ell took no part in the decision. n. 12, 845. Justice Stew¬ in the judgment, stressed of the governmental inter¬ his certainty that the state

may properly seek to keep such proceed¬ ings confidential, although he too believed that the law could not be extended to pun¬ ish a newspaper unless the need for secre¬ cy was "manifestly overwhelming,” id. at 849 (Stewart, J. concurring in the judg¬ ment), as it might be in some national security contexts, see infra. 9. 435 U.S. at 843-44. See § 12-11, supra. The Court properly declined to de¬ fer to the finding of the Virginia legisla¬ ture that the divulgence of confidential proceedings of the commission automati¬ cally created a clear and present danger to the orderly administration of justice. Id. at 845. On its independent evaluation of the facts, the Court found that the threat to the administration of justice posed by

§ 12-21

COMMUNICATION

AND

EXPRESSION

967

In the area of national defense, as Justice Stewart expected,10 just such an extraordinary showing may be possible. In Snepp v. United States ,n the Court upheld a "secrecy agreement” required by the government as a condition of employment with the Central Intelligence Agency, under which an employee was prohibited from publishing "any information or material relating to the Agency, its activities or intelli¬ gence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the agency.” 12 Snepp, a vociferous critic of the CIA, sought to publish a book called Decent Interval , in violation of this contract. Although the government conceded that the book divulged no confidential or otherwise sensitive information,13 the Court found that "[t]he Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.” 14 Similarly, the speech and publications in Bridges v. California, 314 U.S. 252 (1941), discussed in § 12-11,andsupra, "was, ifthan anything, more direct substantial the threat posed by Landmark’s article.” 10. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 849 (1978) (Stewart, J., concurring in the judgment). 11. 444 U.S. 507 (1980) (per curiam). 12. Id. at 508. 13. Id. at 511. The government’s con¬ cession on this point distinguished the case from United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), cert, denied 409 U.S. 1063 (1972). There, the government had claimed that a former CIA employee in¬ tended to violate his agreement not to pub¬ lish any classified information, see 466 F.2d at 1313. Marchetti, therefore, did not consider the issue of the breach of an agreement to submit all material for pre¬ publication review. See 444 U.S. at 510 n. 4. 14. Id. at 509 n. 3. The Court reasoned that "a former intelligence agent’s publica¬ tion of unreviewed material relating to in¬ telligence activities can be detrimental to vital national interests even if the pub¬ lished information is unclassified,” id. at 511-12. The CIA might have a "broader understanding” than an individual agent regarding the type of unclassified material that might be harmful if disclosed, id. at 512. In addition, the CIA’s inability to enforce its secrecy agreements might dis¬ courage foreign sources of information from cooperating with the Agency, out of fear that their anonymity could not be guaranteed. Id. Cf. Haig v. Agee, 453 U.S. 280 (1981) (holding that "repeated dis¬ closures of intelligence operations and names of intelligence personnel” for the "purpose of obstructing intelligence opera¬ tions and the recruiting of intelligence per¬ sonnel” are "clearly not protected by the

Constitution,” and upholding passport rev¬ ocation of one who had been guilty of such disclosures). The Snepp Court declared that "even in the absence of an express agreement,” the CIA "could have acted to protect substan¬ tial government interests by imposing rea¬ sonable restrictions on employee activities that in other contexts might be protected by the First Amendment.” 444 U.S. at 509 n. 3. The Supreme Court has often de¬ ferred to military and executive branch expertise in identifying governmental in¬ terests in the area of foreign policy. See, e.g., Goldman v. Weinberger, 106 S.Ct. 1310, 1313 (1986) (rejecting a challenge un¬ der the free exercise clause to the Air Force’s refusal to permit religious exemp¬ tions from its standardized dress code, based on "great deference to the profes¬ sional judgment of military authorities concerning the relative importance of a particular military interest”); Brown v. Glines, 444 U.S. 348, 354-58 (1980) (uphold¬ ing Air Force regulations requiring mem¬ bers of that service to obtain approval from their commanders before circulating peti¬ tions on Air Force bases, because of the governmental interest in discipline); Greer v. Spock, 424 U.S. 828, 840 (1976) (denying political candidate access to military base, and noting that "nothing in the Constitu¬ tion . . . disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command”); New York Times Co. v. Unit¬ ed States, 403 U.S. 713, 757 (1971) (Harlan, J., dissenting, joined by Burger, C.J., and Blackmun, J.) ("[T]he very nature of exec¬ utive decisions as to foreign policy is politi¬ cal, not judicial .... They are decisions of a kind for which the judiciary has neither aptitude, facilities, nor responsibili¬ ty and which has long been held to belong in the domain of political power not subject

968 where

COMMUNICATION those outside government

AND

EXPRESSION

Ch. 12

obtain properly classified material,

they may be punished for disseminating it— and even enjoined from doing so — if the government makes a suitable showing.15 It is an altogether different issue whether a court may, by means of protective orders under such rules as Fed. R. Civ. P. 26(c), attempt to prevent the confidential information from leaking in the first place. Certainly, a court may punish a participant’s dissemination of such information if the proceeding is one from which outside observers may properly be excluded.16 But should dissemination by a party in an ordinary trial be considered a "'leak” that a court may seek to prevent? The Court, in some circumstances, answers "yes”. In Seattle Times u. Rhinehart ,17 a unanimous Court upheld protective orders issued in a defamation action brought against a newspaper publishing company by a religious organization, the Aquarian Foundation, and its spiritual leader, Keith Rhinehart. The defendant newspapers sought to publish the identities of the plaintiff organization’s members and donors, infor¬ mation that the defendants had obtained through discovery. The Foundation responded that dissemination of the material — which might never be admitted in evidence and thus might remain private but for the proposed out-of-trial dissemination — would "violate the First Amendment rights of members and donors to privacy, freedom of religion, and freedom of association.” 18 Justice Powell’s opinion for the Court purported to apply traditional first amendment analysis in exam¬ ining whether the "practice in question” — i.e., a bar on dissemination — furthers "an important or substantial governmental interest unrelated to the suppression of expression,” and whether "the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved.” 19 Such a test may have been unnecessary, however, because Justice to judicial intrusion or inquiry”), quoting Chicago & Southern Air Lines v. Water¬ man Steamship Corp., 333 U.S. 103, 111 (1948). See also United States v. Stanley, 107 S.Ct. 3054, 3063 (1987) (dismissing for¬ mer serviceman’s suit for having been sub¬ jected to LSD, because "unique disciplinary structure” of military counsels deference); United States v. Johnson, 107 S.Ct. 2063, 2069 (1987) (denying tort recovery to survi¬ vors of service member killed because of negligence of a civilian employee). In ad¬ dition, the Court has circumscribed the po¬ litical participation rights of federal em¬ ployees. See, e.g., CSC v. Letter Carriers, 413 U.S. 548, 565 (1973) (holding that Con¬ gress may constitutionally forbid federal employees from engaging in plainly identi¬ fiable acts of political management and campaigning, such as organizing a political party or actively participating in fund-rais¬ ing activities); United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947) (a federal employee may be prevented from holding a political party office, working at the polls, and acting as a paymaster for other party workers).

15. See United

States v. Progressive,

Inc., 467 F.Supp. 990 (W.D. Wis. 1979) (pre¬ liminary injunction issued March 28, 1979), request for mandamus den. sub nom. Morland v. Sprecher, 443 U.S. 709 (1979), case dismissed 710 F.2d 819 (7th Cir. 1979), discussed in § 12-36, infra. 16. See § 12-20, supra. 17. 467 U.S. 20 (1984). Justice Powell delivered the Court’s opinion. Justice Brennan filed a concurring opinion, in which Justice Marshall joined. 18. Id. at 25. Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958), discussed in § 12-26, infra. 19. 467 U.S. at 32, quoting Procunier v. Martinez, 416 U.S. 396, 413 (1974). Jus¬ tices Brennan and Marshall applied this test and found that protecting the Founda¬ tion’s religious and associational rights represented an important governmental in¬ terest that justified the restriction on free expression caused by the protective order. 467 U.S. at 38 (Brennan, J., joined by Mar¬ shall, concurring).

§ 12-21

COMMUNICATION

AND

EXPRESSION

969

Powell’s opinion for the Court implied that the protective order simply did not implicate first amendment interests, except perhaps in a very incidental way.20 The opinion noted that the newspapers

gained the

plaintiffs’ membership and donor lists "only by virtue of the trial court’s discovery processes” and "as a matter of legislative grace.” 21 20. See, e.g., id. at 36 n. 23 (refusing to

tained through discovery and suggesting a

apply "heightened First Amendment scru¬ tiny of each request for a protective or¬

balancing-of-interests theory); Note, "Role 26(b) Protective Orders and the First

der”). Under Justice Powell’s analysis, the traditional first amendment test would presumably have been met, since he found

Amendment,” 80 Colum.L.Rev. 1645, 166061 (1980) (proposing that protective orders should not be issued absent a showing that

that "Rule 26(c) furthers a substantial gov¬ ernmental interest unrelated to the sup¬

"disclosure is substantially likely to cause serious harm to the discovery system and no less intrusive alternative to prevent the

pression of expression,” 467 U.S. at 34, by preventing abuse of the judicial discovery process and protecting personal reputation and privacy. Id. at 35. The view taken in Justice Powell’s opinion for the Court per¬ mits protective orders in many more cir¬ cumstances than would Justice Brennan’s view, which apparently limits such re¬ straints on publishing the results of discov¬ ery to cases implicating such constitutional values as association and the free exercise of religion, and perhaps other "compelling interests.” Rule 26(c), however, includes much broader concerns among its express purposes — the protection of a "party or person from annoyance, embarrassment, oppression or undue burden or expense.” Commentators disagree on the extent to which protective orders implicate first amendment interests. Compare Marcus, "Myth and Reality in Protective Order Lit¬ igation,” 69 Cornell L.Rev. 1, 5 (1983) (criti¬ cizing the first amendment "public access approach” to discovery as a "myth not only contrary to reality, but also lacking [in] legal support,” and recommending a doc¬ trine of waiver that would foreclose any later claim of a right to disclose material initially obtained under a protective order); Note, "The First Amendment Right to Dis¬ seminate Discovery Materials: In Re Halkin,” 92 Harv.L.Rev. 1550, 1553, 1557 (1979) (describing full first amendment re¬ view as "illogical” and "unwarranted,” and proposing instead a lower standard of scru¬ tiny — namely, a "specific finding[ ] of a threat to a legitimate interest”), with Post, "The Management of Speech: Discretion and Rights,” 1984 Sup.Ct.Rev. 169, 187-93, 201-06 (criticizing the Court for its failure to consider more fully the first amendment rights of litigants to disseminate informa¬ tion, but defending the result in Rhinehart as protecting the necessary discretion of trial judges to manage pretrial discovery); Comment, "Protective Orders Prohibiting Dissemination of Discovery Information: The First Amendment and Good Cause,” 1980 Duke L.J. 766, 767 (arguing that first amendment analysis compels recognition of a right to disseminate information ob¬

harm

is available”).

21. 467 U.S. at 32. But this interpreta¬ tion may be at odds with the Court’s con¬ temporary approach to the right-privilege distinction, see Vitek v. Jones, 445 U.S. 480 (1980) (holding violative of fourteenth amendment due process the transfer of a convicted felon to a mental hospital with¬ out adequate notice and the opportunity for a hearing): "[The right to procedural due process] is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to con¬ fer a property interest in federal employ¬ ment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. . . . [T]he adequacy of stat¬ utory procedures for deprivation of a statu¬ torily created property interest must be analyzed in constitutional terms.” Id. at 490 n. 6, quoting Arnett v. Kennedy, 416 U.S. 134, 166-67 (1974) (Powell, J., joined by Blackmun, J., concurring in part and concurring in the result in part). See also Logan v. Zimmerman Brush Co., 455 U.S. 422, 431-32 (1982) (invalidating as violative of fourteenth amendment due process the extinguishment of a statutorily-created cause of action for employment discrimina¬ tion); Goldberg v. Kelly, 397 U.S. 254, 26163 (1970) (establishing right of AFDC recip¬ ients to evidentiary hearing prior to termi¬ nation of benefits). So regarded, the Court’s approach in Rhinehart may also run afoul of the doctrine of unconstitution¬ al conditions. See § 11-5, supra. First amendment rights may not "be infringed by the denial of or placing of conditions upon a benefit or privilege.” Sherbert v. Verner, 374 U.S. 398, 404 (1963). In Schlagenhauf v. Holder, 379 U.S. 104 (1964), for example, the Court extended to defendants the Fed. R. Civ. P. requirement that a party making certain allegations regarding his or her physical condition must submit to a medical examination. The Court re¬ jected the argument that plaintiffs alone should be subject to this requirement, be¬ cause by filing suit they had voluntarily

970

COMMUNICATION

AND

EXPRESSION

Ch. 12

The Court concluded that "[a] litigant has no First Amendment right of access to information made available only for purposes of trying his suit,” 22 and that the trial court was therefore free to impose restric¬ tions on dissemination of that information.23 waived any privacy rights they might have had. "[Constitutional problems” result from any theory that constitutional rights

political significance of the trial. See Chi¬ cago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert, denied sub nom.

in Rhinehart

Cunningham v. Chicago Council of Law¬ yers, 427 U.S. 912 (1976) (court rules re¬ stricting extrajudicial statements by attor¬ neys are valid only if limited to statements posing a serious and imminent threat to a

that litigants do not "surrender their First Amendment rights at the courthouse

fair trial); Hirst, "Silence Orders — Pre¬ serving Political Expression by Defendants

door,” id. at 32 n. 18, quoting In re Halkin, 598 F.2d 176, 186 (D.C. Cir. 1979) (vacating order that prohibited extrajudicial disclo¬ sure of information obtained through dis¬ covery). It pointed to other contexts, how¬ ever, in which the rights of trial

and their Lawyers,” 6 Harv.Civ.Rts. — Civ. Lib.L.Rev. 595 (1971). To the extent that

are waived merely by exercising a "right of access to the federal courts.” Id. at 114. 22. Rhinehart, 467 U.S. at 32. 23. The

Court conceded

participants may be restricted. The Su¬ preme Court has, for example, affirmed the power of trial judges to restrain statements by lawyers, court officials, witnesses, and defendants. See, e.g., Sheppard v. Max¬ well, 384 U.S. 333, 360, 361, 363 (1966) (dictum); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 564 (1976); id. at 601 n. 27 (Brennan, J., concurring). See also KPNX Broadcasting Co. v. Arizona Superior Court, 459 U.S. 1302, 1306-08 (1982) (Relin¬ quish Circuit Justice) (denying stay of trial judge’s order that banned court personnel, counsel, witnesses, and jurors from speak¬ ing directly with the press and that prohib¬ ited the broadcast of drawings of jurors without the review and approval of the court); Gulf Oil v. Bernard, 452 U.S. 89, 104 n. 21 (1981) ("In the conduct of a case, a court often finds it necessary to restrict the free expression of participants, includ¬ ing counsel, witnesses, and jurors.”) Restraints of this sort are evidently ac¬ ceptable when aimed at government’s own officers and agents. See Wood v. Georgia, 370 U.S. at 393-94 (1962) (Wood’s position as sheriff provided no basis for restricting his first amendment rights but might have provided such a basis if his statements had interfered with his official duties). But nothing about a person’s status as criminal defendant can explain a diminution of that person’s first amendment rights. See, e.g., Chase v. Robson, 435 F.2d 1059, 1061 (7th Cir. 1970) (vacating order proscribing pub¬ lic statements by defendants and defense counsel in case arising out of destruction of selective service records in absence of spe¬ cific findings that such conduct posed a clear and present danger). Indeed a defen¬ dant may have very strong interests in gaining media attention in order to combat the stigma of a criminal indictment, expose abuses of prosecutorial or judicial discre¬ tion, raise a defense fund, or discuss the

criminal defendants rely on counsel to rep¬ resent their interests both in and out of court, it would be problematic to impose greater restrictions on counsel than on the accused. Nevertheless, the broadest re¬ strictions have been imposed on defense attorneys on the theory that lawyers are "officers of the court” sponsibility to assure trial process. See, e.g., of the United States, Operation of the Jury

with a special re¬ the fairness of the Judicial Conference Committee on the System, Report of

the Committee on the "Free Press-Fair Trial” Issue, 45 F.R.D. 391, 406 (1969). But the label "officer of the court” cannot be decisive; a private attorney cannot sim¬ ply be assimilated into the category of gov¬ ernment agents. See Cammer v. United States, 350 U.S. 399, 405 (1956) (lawyers cannot be summarily tried for contempt on authority of federal statute empowering a court to punish "misbehavior of any of its officers in their official transactions”). To be sure, a lawyer may have a "fiduciary obligation to the courts.” See American Bar Association Project on Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press 82 (1968). But as Congressman (later President) Buchanan argued at the impeachment trial of Judge Peck for imprisoning a law¬ yer on the basis of the latter’s criticism of the judge, it is "the imperative duty of an attorney to protect the interests of his cli¬ ent out of court as well as in court.” A. J. Stansbury, Report of the Trial of James H. Peck 455 (1833). Nor can restraints on the defense be justified as preserving a balance between prosecution and defense. The scales of justice are already "weighed ex¬ traordinarily heavy against an accused af¬ ter his indictment. A bare denial and a possible reminder that a charged person is presumed innocent until proved guilty is often insufficient to balance the scales.” Chicago Council of Lawyers v. Bauer, 522 F.2d at 250. Most fundamentally, as long as defense statements fall short of a seri¬ ous and imminent threat to the fair adjudi-

§ 12-22

§ 12-22.

COMMUNICATION

AND

EXPRESSION

The First Amendment Right to Know: dentiality in News Gathering

971

Protecting Confi¬

Although journalists have long stressed the importance of confiden¬ tiality for effective reporting,1 the Burger Court consistently refused to modify legal procedures to protect the privacy of reporters’ sources or the editorial process. In three cases during the 1970’s, the Court made its postition on reporters’ confidentiality clear. Unsympathetic to Justice Stewart’s argument that the first amendment grants special constitutional status to the organized press,2 the Court was suspicious of any claim of privilege that appeared to elevate journalists above other citizens.3 The Court invited Congress and state legislatures to provide the press with whatever level of statutory protection they deem pru¬ dent,4 but insisted that the Constitution accords journalists no shield from legal process beyond the normal checks provided by judicial supervision. In the first case, Branzburg v. Hayes,5 the Court refused to grant reporters even a qualified immunity from good-faith grand jury ques¬ tioning regarding confidential sources. . Writing for the Court, Justice White tion” likely juries

acknowledged that the first amendment provided "some protec¬ for news gathering,6 but he found the hindrance of reporting to be caused by compelling journalists to testify before grand too insubstantial and speculative to overcome the paramount

public interest in bringing criminals to justice.7 Although the Constitu¬ tion would not allow grand juries to engage in purposeful harassment of the press, the majority trusted that judges supervising grand jury investigations would be sufficiently sensitive to first amendment cerns to minimize the danger of such abuse.8 cation of the case, the balance that counts — that in the courtroom — will not be disturbed. See generally Howard & New¬ man, "Fair Trial and Free Expression,” Report of the Senate Comm, on the Judici¬ ary, 94th Cong., 2d Sess. 18-24, 36-38, 4344, 67-76 (1976). Cole and Spak, "Defense Counsel and the First Amendment: ’A Time to Keep Silence, and a Time to Speak’,” 6 St. Mary’s L.J. 347 (1974); Freedman and Starwood, "Prior Restraints on Freedom of Expression by Defendants and Defense Attorneys: Ratio Decidendi v. Obiter Dictum,” 29 Stan.L.Rev. 607 (1977). § 12-22

1. See, e.g., Blasi, "The Newsman’s Privilege: An Emprical Study,” 70 Mich.L. Rev. 229, 239-53 (1971); Guest & Stanzler, "The Constitutional Argument for News¬ men Concealing Their Sources,” 64 Nw. U.L.Rev. 18, 51-61 (1969).

2. See Stewart, "Or of the Press,” 26

Hast.L.J. 631

(1975).

Recent

historical

ble to the press and

con¬

other defendants

alike”); Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (press has no "constitutional right of special access not available to the public generally”). See also, e.g., First Na¬ tional Bank v. Bellotti, 435 U.S. 765, 796802 (1978) (Burger, C.J., concurring); Pell v. Procunier, 417 U.S. 817, 827-28, 830 (1974) (press enjoys no greater right than general public to acquire information about prison conditions); Anderson, supra note 2, at 457 ("no Supreme Court decision has rested squarely on the Press Clause, independent of the Speech Clause”). cf. Minneapolis Star & Tribune Co. v. nesota Comm’r of Revenue, 460 U.S. 583-85, 590 (1983) (suggesting special stitutional solicitude for press).

But Min¬ 575, con¬

4. See Zurcher v. Stanford Daily, 436 U.S. 547, 567 (1978); Branzburg v. Hayes, 408 U.S. 665, 706 (1972).

5. 408 U.S. 665 (1972).

scholarship supports Justice Stewart’s posi¬ tion. See Anderson, "The Origins of the Press Clause,” 30 UCLA L.Rev. 455 (1983). 3. See Herbert v. Lando, 441 U.S. 153,

6. 408 U.S. at 681.

165 (1979) (evidentiary rules "are applica¬

8. Id. at 707-08.

7. Id. at 695.

972

COMMUNICATION

AND

EXPRESSION

Ch. 12

Despite the holding in Branzburg and the discouraging tone of the majority opinion, lower federal courts have consistently read the case to support some kind of qualified privilege for reporters.9 The basis for this reading is that five justices in Branzburg explicitly acknowledged that the Constitution may at times protect the confidentiality of a journalists’ sources. Four justices dissented from the Court’s decision: Justices Brennan, Marshall and Stewart would have recognized a qualified privilege,10 and Justice Douglas advocated absolute immuni¬ ty.11 Concurring, Justice Powell argued that the first amendment hazards of compromising a reporter’s confidences should be balanced on a case-by-case basis against the public’s interest in criminal investiga¬ tion, and suggested that courts should grant relief from questioning that "implicates confidential source relationships without a legitimate need of law enforcement.” 12 The alignment of the Court was substantially the same in Zurcher v . Stanford Daily,13 where the Court upheld, 5-3, 14 the authority of police officers acting pursuant to a warrant to search the offices of a newspaper, forcibly and without notice, for evidence of a crime. Given probable cause to believe the place to be searched— newspaper office or otherwise — contains evidence of a crime, the Court ruled that the fourth and fourteenth amendments require neither a showing that the place is owned or possessed by someone reasonably suspected of a crime,15 nor a determination by a neutral magistrate that seeking to obtain the same evidence by a subpoena after an adversary hearing would likely trigger its destruction or removal from the jurisdiction.16 Writing for the same majority as in Branzburg , Justice White reasoned that the warrant requirement, applied with particular care when the 9. See, e.g., Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980); In re Petroleum Products Antitrust Litigation, 680 F.2d 5 (2d Cir. 1982), cert, denied sub nom. Arizona v. McGraw-Hill, Inc., 459 U.S. 909 (1982); United States v. Criden, 633 F.2d 346 (3d Cir. 1980), cert, denied sub nom. Schaffer v. United States, 449 U.S. 1113 (1981); Unit¬ ed States v. Steelhammer, 561 F.2d 539 (4th Cir. 1977); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980), cert, denied 450 U.S. 1041 (1981); Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert, denied 409 U.S. 1125 (1973); Silkwood v. Kerr-McGee, 563 F.2d 433 (10th Cir. 1977); McArdle v. Hunter, 7 Med.L.Rptr. 2294 (E.D. Mich. 1981); Gul¬ liver’s Periodicals, Ltd. v. Chas. Levy Cir. Co., 455 F.Supp. 1197 (N.D. Ill. 1978). 10. Branzburg v. Hayes, 408 U.S. at 725 (Stewart, J., dissenting). 11. Id. at 711 (Douglas, J., dissenting). 12. Id. at 710 (Powell, J., concurring). Justice Stewart later commented that Jus¬ tice Powell’s opinion may have made the vote in the case four and a half to four and

a half. See Stewart, "'Or of the Press,” 26 Hast.L.J. 631, 635 (1975). Cf. notes 14 and 21, infra. 13. 436 U.S. 547 (1978). 14. Justice White delivered the Court’s opinion, joined by Chief Justice Burger and Justices Blackmun and Rehnquist. Con¬ curring, Justice Powell stressed that a magistrate, before issuing a warrant, should consider the values of a free press as well as the social interest in detecting and prosecuting crime. Id. at 568 (Powell, J., concurring). Justices Stevens, Stewart, and Marshall dissented. Justice Brennan took no part. 15. 436 U.S. at 553-60. Indeed, Justice White suggested for the Court that the fourth amendment interests of persons not suspected of criminal involvement are less weighty than the interests of those who are, and therefore that "a less stringent standard of probable cause is acceptable where the entry is not to secure evidence of crime 555-56.

against the possessor.”

16. Id. at 560-63.

Id. at

COMMUNICATION

§ 12-22

place to be searched is a newspaper to first amendment interests.17

AND

EXPRESSION

973

office, affords adequate protection

Despite the novelty of the protections the Court was asked to fashion, it would be a mistake to minimize the degree to which constitutional values lying at the intersection of the first, fourth, and fifth amendments were jeopardized by the Court’s holding. As Justice Stewart stressed in dissent, searches, unlike subpoenas, compromise the confidentiality of news gathering to an inherently uncontrollable de¬ gree: "[a] search warrant allows police officers to ransack the files of a newspaper, reading each and every document until they have found the one named in a warrant, while a subpoena would permit the newspaper itself to produce only the specific documents requested. A search, unlike a subpoena, will therefore lead to the needless exposure of confidential information completely unrelated to the purpose of the investigation.” 18 Nor can the possibilities of abuse be discounted. When a subpoena is served on a newspaper, it has the opportunity to assert constitutional and statutory rights to keep certain materials confidential. Such protection is circumvented when officials can proceed ex parte , by search warrant.19 And the risk of abuse may be greatest exactly when the press plays its most vital and creative role in our political system, the role of watchdog on official corruption and abuse. Officials who find themselves the targets of newspaper or media investigations may well be tempted to conduct searches to find out precisely what various journalists have discovered, and to retaliate against reporters who have unearthed

and reported official wrongdoing.20

In the third case, Herbert v. Lando ,21 the Court held that a journal¬ ist’s thoughts about the information he gathers, as well as his profes¬ sional conversations with his editorial colleagues, are not immune from discovery in libel actions brought by public figures. Justice White, writing for the majority once again,22 reasoned that, since the "actual 17. Id. at 565-67. 18. 436 U.S. at 573 (Stewart, J., dissent¬ ing) (footnote omitted).

19. Disturbingly, the Court argued that the search warrant was more advanta¬ geous to law enforcement officials than the subpoena precisely because use of a war¬ rant may deny potential criminal defen¬ dants a chance to assert their fifth amend¬ ment privilege against self-incrimination. Id. at 561-62 n.8 (opinion of the Court).

20. Citizens Privacy Protection Act: Hearings Before the Subcomm. of the Con¬ stitution of the Senate Comm, on the Judi¬ ciary, 95th Cong., 2d Sess. 70-93 (1978) (statement and testimony of Paul Davis, Vice President, Radio Television News Di¬ rectors Association).

The dangers posed by the Zurcher deci¬ sion are not confined to the press. Justice Stevens’ dissent properly warned of the damage the decision could do to privacy rights generally. The ex parte warrant

procedure enables the police to obtain ac¬ cess to privileged documents, including medical and legal files and other highly confidential records, that could not lawful¬ ly be examined if the holder of the docu¬ ments had notice and an opportunity to object. Indeed, a search for the documents described in a warrant may well involve inspection of diaries, letters, and other highly personal papers. See 436 U.S. at 579-80 (Stevens, J., dissenting).

21. 441 U.S. 153 (1979), discussed in § 12-12, supra.

22. Chief Justice Burger and Justices Blackmun, Powell, Rehnquist and Stevens joined in the majority opinion. Justice Brennan dissented in part; Justices Mar¬ shall and Stewart each dissented. As in Branzburg and Zurcher, Justice Powell filed a concurring opinion stressing that, in their supervisory capacity, judges should keep first amendment interests in mind. Id. at 178 (Powell J., concurring).

974

COMMUNICATION

AND

EXPRESSION

Ch. 12

malice” standard of New York Times Co. v. Sullivan 23 and Curtis Publishing Co. v. Butts 24 requires a libel case brought by a public figure to focus on the defendant’s state of mind,25 even a qualified privilege for editorial processes would interfere intolerably with the ability of de¬ famed public figures to bring suit.26 The Court found it ''difficult to believe” that honoring legitimate discovery requests would significantly discourage frank editorial discussion,27 and trusted judicial supervision to minimize abuses of the discovery rules 28 — abuses that the Court noted were not unique to libel litigation.29 As Justice Marshall argued in dissent, however, the problem of vindictive discovery is likely to be especially acute in libel suits, because "many self-perceived victims of defamation are animated by something more than a rational calculus of their chances of recovery. Given the circumstances under which libel actions arise, plaintiffs’ pretrial ma¬ neuvers may be fashioned more with an eye to deterrence or retaliation than to unearthing germane material.” 30 The subsequent history of major libel litigation — including Herbert v. Lando on remand — has shown just how punishing discovery requests in these cases can be.31 The possibility of such "m terrorem discovery” 32 has substantially undercut the protection provided to the press in Sullivan and Butts: the "actual malice” standard is of little help to defendants if plaintiffs can exact their retribution before (or without) going to trial.33 Although the ultimate impact of Herbert v. Lando remains to be seen,34 much of the protection the Court refused to provide in Branzburg v. Hayes and Zurcher v. Stanford Daily has since been furnished though state and federal legislation, state court decisions, and federal administrative action. Twenty-six states have enacted "shield laws” providing reporters with an absolute or qualified privilege 23. 376 U.S. 254 (1964). 24. 388 U.S. 130 (1967). 25. For a discussion of the "actual mal¬ ice” standard, see §§ 12-12, 12-13, supra. 26. Herbert v. Lando, 441 U.S. at 170. 27. Id. at 174. 28. Id. at 177. 29. Id. at 176. 30. Id. at 204-05 (Marshall, J., dissent¬ ing). 31. See Lewis, "New York Times v. Sul¬ livan Reconsidered: Time to Return to The Central Meaning of the First Amend¬ ment,’ ” 83 Colum.L.Rev. 603, 609-12 (1983) (reporting that the process of discov¬ ery in significant defamation actions is so extensive and costly that "a cynic might suspect a conspiracy of lawyers”). Discov¬ ery in Herbert v. Lando took eight years and reportedly cost the defendants be¬ tween three and four million dollars. Id. at 611-12. 32. Herbert v. Lando, 441 U.S. at 153 (Marshall, J., dissenting).

33. Cf. Nixon

v. Fitzgerald, 457 U.S.

731, 763 (1982) (upholding claim of abso¬ lute Presidential immunity from damages liability) (Burger, C.J., concurring): "When litigation processes are not tightly con¬ trolled^ — and often they are not — they can be and are used as mechanisms of extor¬ tion. Ultimate vindication on the merits does not repair the damage.” 34. Discovery requests regarding the editorial process can still be blocked under Fed. R. Civ. P. 26 as irrelevant or oppres¬ sive. See 441 U.S. at 153 (majority opin¬ ion); Rosario v. New York Times Co., 84 F.R.D. 626 (S.D.N.Y. 1979) (sustaining ob¬ jections to deposition questions concerning editorial judgment). In addition, at least one state shield law has been authorita¬ tively construed to grant reporters sued for libel an absolute privilege not to disclose confidential sources and editorial process¬ es. See Maressa v. New Jersey Monthly, 89 N.J. 176, 445 A.2d 376 (1982) (discussed in 28 Villanova L.Rev. 225 (1982) ), cert, denied 459 U.S. 907 (1982).

§ 12-22

COMMUNICATION

AND

975

EXPRESSION

not to divulge information they received in confidence.35 The courts of ten other states have found such a privilege in common law or the state constitution.36 Congress

has provided strong statutory protections

35. See Ala. Code § 12-21-142 (1977); Alaska Stat. §§ 0.9.25. 150-.220 (1973 & Supp. 1982); Ariz. Rev. Stat. Ann. § 12.2237 (1982); Ark. Stat. Ann. § 43-917 (1977); Cal. Evict Code § 1070 (West Supp. 1982) (incorporated into state constitution in 1980, Cal. Const., art. 1, § 2(b) ); Del. Code tit. 10, § 4320-4326 (1975); Ill. Ann. Stat. ch. 110, IH1&-901 to 8-909 (SmithHurd Supp. 1983); Ind. Code Ann. § 34-35-1 (Burns Supp. 1982); Ky. Rev. Stat. § 421.100 (1972); La. Rev. Stat. Ann. §§ 45:1451-45:1454 (West 1982); Md. Cts. & Jud. Proc. Code Ann. § 9-112 (1980); Mich. Comp. Laws Ann. § 767.5a (West 1982); Minn. Stat. Ann. §§ 595.021595.025 (West Supp. 1982); Mont. Code Ann. §§ 26-1-901 to 26-1-903 (1981); Neb. Rev. Stat. §§ 20-144 to 20-147 (1977); N.J. Stat. Ann. §§ 2A:84A-21 to 2A:84A-21.8 (West Supp. 1983); N.M. Stat. Ann. § 201-12.1 (Supp. 1975) (invalidated under state constitution in Ammerman v. Hub¬ bard Broadcasting Inc., 89 N.M. 250, 551 P.2d 1354 (1976)); N.Y. Civ. Rights Law § 79-h (McKinney 1976 & Supp. 1982); N.D. Cent. Code Ann. § 31-01-06.2 (1976); Ohio Rev. Code Ann. §§ 2739.04, 2739.12 (Page 1981); Okla. Stat. Ann. tit. 12, § 2506 (West 1980); Ore. Rev. Stat. §§ 44.510-44.540 (1981); Pa. Stat. Ann. tit. 42, § 5942 (Purdon 1982); R.I. Gen. Laws §§ 9-19.1-1 to 9-19.1-3 (Supp. 1982); Tenn. Code Ann. § 24-1-208 (1980). The constitutionality of these shield laws is problematic only to the degree they are employed so as to compromise the fairness of criminal trials. This issue, as well as the conflict of first amendment interests with sixth amendment guarantees, was presented in 1978 by the refusal of New York Times reporter Myron Farber to sur¬

doubtful that four members

of the Court

would vote to grant a petition for certiorari at this stage of the proceedings. New York Times Co. v. Jascalevich, 439 U.S. 1301 (1978) (White, J.); id. at 1304 (Marshall, J.). Although Justice White found no basis for believing that reporters enjoy any special protection from subpoenas, id. at 1302 (White, J.), Justice Marshall thought Far¬ ber’s case presented "important and un¬ J.). resolved questions,’’ id. at 1305 (Marshall, Subsequently

the New

Jersey Supreme

Court took Farber’s appeal, apparently un¬ able to unravel the procedural tangle which had led to Farber being jailed for civil contempt without any court having heard his defenses. New Jersey’s highest court, by a 5-2 vote, held that Farber had no first amendment protection against be¬ ing compelled to turn over his notes. The court ruled that the subpoena was not overly broad, because the trial judge could not adequately deal with the question of whether Farber’s notes were relevant to Jascalevich’s defense without first examin¬ ing them. The court also ruled that the New Jersey shield law protecting reporters against disclosure of confidential material must yield in these circumstances to the defendant’s right to a fair trial. Ironically, the court held that reporters in future cases would be entitled to a hearing on their claims, but that Farber was not — because something like a hearing, although clearly not a hearing, had been afforded by the presiding judge at the murder trial. See In re Farber, 78 N.J. 259, 394 A.2d 330 (1978), cert, denied 439 U.S. 997 (1978).

any part of the reporter’s notes should be passed on to the defense attorneys who subpoenaed them. The New Jersey courts refused to stay, and denied leave to appeal, the order of a second judge refusing to quash the subpoena. Justice White and

36. See City Council v. Hall, 180 Conn. 243, 429 A.2d 481 (1980); Morgan v. State, 337 So.2d 95 (Fla. 1976); Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977), cert, denied 436 U.S. 905 (1978); State v. Sandstrom, 224 Kan. 573, 581 P.2d 812 (1978), cert, denied 440 U.S. 929 (1979); Opinion of the Justices, 117 N.H. 390, 373 A.2d 644 (1977); Dallas Oil & Gas, Inc. v. Mouer, 533 S.W.2d 70 (Tex. Civ. App. 1976); State v. St. Peter, 132 Vt. 226, 315 A.2d 254 (1974); Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 (1974), cert, denied 419 U.S. 966 (1974); Senear v. Daily Journal American, 8 Med.L.Rptr. 1151 (Wash. 1982); Zelenka v. Wisconsin, 83 Wis.2d 601, 266 N.W.2d 279 (1978). See

then Justice Marshall denied Farber’s plication for a stay pending filing and position of a petition for certiorari in Supreme Court, each noting that it

generally Comment, "Developments in the News Media Privilege: The Qualified Con¬ stitutional Approach Becoming Common Law,’’ 33 Maine L.Rev. 401 (1981).

render to a judge, for the latter’s in camera inspection, Farber’s notes of interviews with witnesses in the murder trial of Dr. Mario Jascalevich. The trial judge or¬ dered the disclosure after certifying that the documents sought appeared sufficient¬ ly material to warrant in camera inspec¬ tion, stating that after this inspection Far¬ ber could have a full hearing on whether

ap¬ dis¬ the was

976

COMMUNICATION

AND

EXPRESSION

Ch. 12

against newsroom searches,37 and several state legislatures have done likewise.38 Although no federal shield law has been enacted, Depart¬ ment of Justice guidelines recognize a qualified privilege as a matter of prosecutorial policy.39 As disturbing as the practical impact of Branzburg, Zurcher and Herbert is what these decisions reveal about the Burger Court’s ap¬ proach to freedom of expression. Mesmerized by its insistence that the press not be given a privileged status, the Court exhibited considerable insensitivity to the special first and fourth amendment concerns raised by indirect burdens on communication. Legal procedures that threaten the confidentiality of reporters’ sources or disrupt the editorial process clearly implicate constitutional concerns not present when ordinary businesses are searched or most professionals questioned about their work — regardless of whether the first amendment gives the organized press unique institutional protection. In particular, qualified privileges of the sort rejected by the Court in Branzburg and Herbert are arguably required by the first amendment’s implicit guarantee against undue interference with the acquisition of knowledge. That guarantee, and its special importance for reporters functioning as "surrogates for the public,” was recognized by the Court in Richmond Newspapers , Inc. u. Virginia .40 Given the problems that required disclosure of confidences creates for effective information gathering, traditional first amendment theory should prohibit government compulsion of such disclosure— from reporters or other researchers — absent a demonstration that the legal system lacks a less inhibiting alternative.41 Similarly, to acknowledge the need for special safeguards against unnecessary searches of newsrooms, one need not agree that the press as an institution deserves extraordinary constitutional protection; one need only recognize that the fourth amendment acquires special force when first amendment values are also implicated. Throughout the 1960’s and into the 1970’s, the Court stressed the close historical ties between government surveillance and suppression of dissent,42 and required search and seizure procedures to meet heightened standards of exactitude when used in ways that burdened constitutionally protected 37. Privacy Protection Act of 1980, 42 U.S.C. §§ 2QQ0aa to 2Q00aa-12 (Supp. V

Id. § 200 lev sta an d te era 0aa els l . 38. See, e.g., Ill. Ann. Stat. ch. 38, . 108— 3(b) (Smith-Hurd 1980); N.J. Stat. Ann. §§ 2A:84A-21.9 to 2A:84A-21.13 (West Supp. 1983); Neb. Rev. Stat. § 29-8 13(b) (1979); Ore. Rev. Stat. § 44.520(2) (1981). fed

39. 28 C.F.R. § 50.10 (1986). The guidelines have been held binding on the Justice Department, see United States v. Blanton, 534 F.Supp. 295, 297 (S.D. Fla. 7 Me v. NL d. RB L d, i , c on ot . rev 198 (S 22 Rp e t h 2 ’1 Seer ( 1 C 1 gr r. 1691 .FD..2 e ou Wd. 82 4th), ir. d 982) 97 . 10 F. 75 v. EVva al ndOi so s lm 0 2 39 0 a. , d by Wa J., jo (Sc ns, Cir an 19 (D .C 8 in . 4) J ali d ed in pa ld an . Ed a J i , rt . s wa d , se ) rd n ti s, ng Bo

ar

se

e

Ma

ur

(describing 28 C.F.R. § 50.10 as "ap¬ proaching] the issue in a much more cali¬ brated fashion than judicial prohibition could achieve”). 40. 448 U.S. 555, 573 (1980). The Rich¬ mond Newspapers decision is discussed in § 12-20, supra. For an argument that the decision confirms and strengthens the re¬ porter’s constitutional privilege, see Goodale, Rutan & Smeall, "An Outline of Reporter’s Privilege Cases,” in 2 Communi¬ cations Law 1982, at 561, 578-79 (Practic¬ ing Law Institute, 1982). 41. See § 12-23, infra. 42. The classic judicial account of the intertwined histories of free expression and freedom from unreasonable search and seizure appears in Marcus v. Search War¬ rants, 367 U.S. 717, 724-729 (1961).

COMMUNICATION

§ 12-23

AND

EXPRESSION

977

expression.43 Starting with Zurcher, however, the Court became less sensitive to the interplay between the first and fourth amendments. In the Term following that in which Zurcher was decided, the Court ruled in Smith v. Maryland that no warrant was required before the telephone company, at the behest of law enforcement officials, electron¬ ically monitored the numbers dialed from a private telephone.44 Be¬ cause the numbers were transmitted to a third party — the phone company — the Court reasoned that the dialer could have no "reasona¬ ble expectation of privacy” in the information,45 and therefore held that the monitoring was not a fourth amendment "search” under the test set forth in Katz v. United States.46 The communicative function of the telephone apparently played no part in the Court’s analysis. If, howev¬ er, "reasonable expectation of privacy” is to have any normative content— -and the Court expressly acknowledged that it must47 — then whether an individual can reasonably expect a particular kind of privacy should depend in part on the importance of such privacy for related constitutional concerns, including freedom of expression. In¬ deed, in ruling that the fourth amendment covers electronic surveil¬ lance of calls made from pay telephones, the Katz Court emphasized "the vital role that the public telephone has come to play in private communication.” 48 By simply ignoring the hazards of telephonic sur¬ veillance for vital first amendment interests, the Burger Court made plain that the narrow approach it took to the fourth amendment in Zurcher

was

§ 12-23.

unfortunately

not an aberration.

Government Abridgments of Speech Independent of Ex¬ pressive Content: Track-Two Analysis and Less Re¬ strictive Alternatives

We saw in § 12-2 that government may abridge speech in two ways, leading to two distinct forms of first amendment analysis. Sec¬ tions 12-3 through 12-21 focused on the first type of abridgment — abridgment on track one, in which government action is targeted at ideas or information that it wished to suppress. Section 12-22, this section, and the succeeding two sections, focus on the second type of abridgment — abridgment

on track two, in which government

43. See United States v. United States District Court, 407 U.S. 297, 313 (1972) (imposing warrant requirement for presi¬ dential wiretaps); Stanford v. Texas, 379 U.S. 476, 482, 485 (1965) (invalidating seizure of books); A Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964) (same); Marcus v. Search Warrants, 367 U.S. 717, 729 (1961) (same). 44. Smith

v. Maryland, 442 U.S. 735 (1979). Justice Blackmun wrote the major¬ ity opinion. Justices Brennan, Marshall and Stewart dissented. Unsurprisingly, the Court hinted strongly during the same Term that the confidentiality of calls made by reporters warranted no greater consti¬ tutional protection. See Reporters Com¬ mittee for Freedom of the Press v. Ameri¬

does not

can Tel. & Tel. Co., 440 U.S. 949 (1979), denying cert, to 593 F.2d 1030 (D.C. Cir. 1978) (ruling that telephone company may turn over journalist’s long distance billing records to law enforcement officials with¬ out judicial supervision or prior notice to journalist). Justices Brennan, Marshall and Stewart voted to hear the case. 45. 442 U.S. at 744.

46. 389 U.S. 347 (1967). 47. Smith v. Maryland, 442 U.S. at 740

n. 5.

48. Katz v. United States, 389 U.S. at 352. For a discussion of the interplay be¬ tween technology and free expression, see § 12-25, infra.

978

COMMUNICATION

AND

EXPRESSION

Ch. 12

aim at ideas or information but seeks a goal independent of communi¬ cative content or impact, with the indirect result that the flow of information or ideas is in some significant measure constricted. One could imagine a constitutional system in which such govern¬ mental behavior would automatically be upheld, however devastating its consequences for freedom of expression. In such a system, govern¬ ment’s only duty would be to avoid gratuitous and deliberate suppres¬ sion of ideas; so long as government’s aims were ideologically neutral, speakers would have to take what they could get. That is not our system; at least since 1939, 1 it has been established that even a wholly neutral government regulation or policy, aimed entirely at harms unconnected with the content of any communication, may be invalid if it leaves too little breathing space for communicative activity, or leaves people with too little access to channels of communication, whether as would-be speakers or as would-be listeners.2 The problem is to decide ed at unlawful conduct having nothing to 1. The seminal § case 12-23 was Schneider v. State, 308 U.S. 147 (1939) (invalidating re¬ strictions on door-to-door distribution of circulars, and bans on street distribution of circulars, where valid governmental pur¬ poses could be at least approximately achieved by less restrictive alternatives). Accord, Teamsters Union v. Vogt, 354 U.S. 284, 295 (1957); Kunz v. New York, 340 U.S. 290, 293 (1951); Niemotko v. Mary¬ land, 340 U.S. 268, 276-77 (1951) (Frank¬ furter, J., concurring); Follett v. McCor¬ mick, 321 U.S. 573 (1944); Martin v. Struthers, 319 U.S. 141 (1943); Cantwell v. Connecticut, 310 U.S. 296, 308 (1940); Hague v. CIO, 307 U.S. 496, 515-16 (1939) (Roberts, J.). 2. See Ely, '"Legislative and Adminis¬ trative Motivation in Constitutional Law,” 79 Yale L.J. 1205, 1335-36 (1970). It would, however, be wrong to conclude that some form of first amendment scrutiny is triggered whenever government does any¬ thing that happens to reduce the flow of information or ideas. Otherwise, someone who is arrested for running a red light would be entitled to first amendment con¬ sideration if he happened to be a news anchor on his way to the TV studio — or a law professor on her way to a lecture. Such an individual can no more demand a showing that the government proceeded in the least restrictive manner possible than can any other person or business. See, e.g., Arcara v. Cloud Books, Inc., 106 S.Ct. 3172, 3178 (1986) (upholding state action closing down a bookstore for a year, pursu¬ ant to a generally applicable state statute providing for such closure whenever any place of business is used for "lewdness, assignation, or prostitution,” and refusing to submit such one-year closure to special first amendment scrutiny; the legislation providing the closure sanction "was direct¬

do with books or other expressive activi¬ ty”). As Chief Justice Burger wrote for the Arcara majority, "If the city imposed closure penalties for demonstrated Fire Code violations or health hazards from in¬ adequate sewage treatment, the First Amendment would not aid the owner of premises who had knowingly allowed such violations to persist.” Id. at 3177. Justice O’Connor, joined by Justice Stevens in a concurring opinion, correctly noted that "[a]ny other conclusion would lead to the absurd result that any government action that had some conceivable speech-inhib¬ iting consequences, such as the arrest of a newscaster for a traffic violation, would require analysis under the First Amend¬ ment. If, however, a city were to use a nuisance statute as a pretext for closing down a book store because it sold indecent books or because of the perceived second¬ ary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment con¬ cerns and require analysis under the ap¬ propriate First Amendment standard of re¬ view.” Id. at 3178. Had the law at issue been directed at bookstores, or at activities likely to have a significant expressive com¬ ponent, the dissenting views expressed by Justice Blackmun, joined by Justices Bren¬ nan and Marshall, see id. at 3178-81, would have had greater force. Moreover, even a law not directed at communicative activities might properly be subjected to first amendment scrutiny as applied to a particular expressive act that triggered the law’s enforcement, see United States v. O’Brien, 391 U.S. 367 (1968), distinguished in Arcara, 106 S.Ct. at 3175. But when neither the law, nor the act triggering its enforcement, has any significant first amendment dimension, the fact that the law incidentally operates to restrict first

§ 12-23

COMMUNICATION

AND

EXPRESSION

979

when a measure leaves '"too little” space or access. To that end, courts have employed what is typically called a "balancing” approach — the sort of approach it is easier to eschew while on track one.3 To be weighed in the balance are, on the one hand, the extent to which communicative activity is in fact inhibited; and, on the other hand, the values, interests, or rights served by enforcing the inhibition. Two variables have been important in structuring the balancing pro¬ cess, and in deciding how heavy a burden of justification — and how large a sacrifice of other goals — to impose on government. The first has been the degree to which any given inhibition on communicative activity falls unevenly upon various groups in the society. Like the proverbial ban on sleeping under the bridges of Paris, a ban on using loudspeakers or distributing handbills obviously falls with greater force upon the poor than upon those who can afford access to other methods of communication; 4 thus the Court has in the past scrutinized such bans with special care.5 However neutral their intention with respect amendment activity, and that some alter¬ native state measure might offer a less restrictive means of pursuing the state’s legitimate objectives, should not serve to condemn what the state has done as uncon¬ stitutional. On remand in Arcara, the New York Court of Appeals found that the closure of the bookstore violated freedom of expression as guaranteed by the state constitution. See Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 510 N.Y.S.2d 844, 503 N.E.2d 492 (1986). 3. See generally Note, "Less Drastic Means and the First Amendment,” 78 Yale L.J. 464 (1969). 4. See, e.g., Martin

v. Struthers, 319

U.S. 141, 146 (1943): "Door to door distri¬ bution of circulars is essential to the poorly financed causes of little people.” Cf. Kovacs v. Cooper, 336 U.S. 77, 102 (1949) (Black, J., dissenting): "There are many people who have ideas that they wish to disseminate but who do not have enough money to own or control publishing plants, newspapers, radios, moving picture studios, or chains of show places.” See also Kalven, "The Concept of the Public Forum: Cox v. Louisiana,” 1965 Sup.Ct.Rev. 1, 30: "We would do well to avoid . . . new epigrams about the majestic equality of the law prohibiting the rich man, too, from distributing leaflets or picketing.” 5. Although narrow limits on time, place, and manner — like the limit on using loud sound trucks on public streets in Kovacs, supra note 4— have been upheld, see, e.g., Grayned v. Rockford, 408 U.S. 104, 116 (1972), many broader prohibitions, see note 1, supra, have been struck down. Of late, however, the Court has been less willing to apply heightened scrutiny to facially con¬ tent-neutral regulations on speech that have a disproportionately severe impact on underprivileged socio-economic groups. In

Clark v. Community for Creative Non-Vio¬ lence, 468 U.S. 288 (1984), for example, the Court upheld facially neutral National Park Service anti-camping regulations as applied to forbid protesters who wished to call attention to the plight of the homeless from sleeping in symbolic tents erected in Lafayette Park, across the street from the White House. Justice Marshall, joined in his dissent by Justice Brennan, warned that the seemingly "neutral” principles of the majority predictably discriminated in practice against the poor and others who — lacking access to the mass media and lack¬ ing decent housing — naturally focused on such demonstrations to express their ideas: "[T]his case . . . lends credence to the charge that judicial administration of the First Amendment, in conjunction with a social order marked by large disparities of wealth and other sources of power, tends systematically to discriminate against ef¬ forts by the relatively disadvantaged to convey their political ideas.” Id. at 313-14 n. 14. See also City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812-13 n. 30 (1984) (upholding a municipal regulation which prohibited the posting of signs on public property, such as telephone poles, and observing that the "special solic¬ itude” previously "shown [by the Court] for [inexpensive] forms of expression that . . . may be important to large segments of the citizenry . . . has practical bounda¬ ries”); United States Postal Service v. Greenburgh Civic Associations, 453 U.S. 114 (1981) (sustaining a ban on the place¬ ment of unstamped "mailable matter” in mailboxes used to receive U.S. mail). This growing insensitivity to how background disparities in wealth and power operate to distort the impact of facially neutral rules is by no means limited to strictly first amendment cases. In Selective Service System

v. Minnesota

Public Interest Re-

980

COMMUNICATION

AND

EXPRESSION

Ch. 12

to speakers and messages, their impact is anything but neutral, and government must therefore go a substantial distance to justify enforc¬ ing them.6 Similarly, a ban on anonymous pamphleteering falls with much greater force upon individuals and groups who fear majoritarian disapproval and reprisal — upon dissidents and upon the unpopular — than upon those with widely approved messages to deliver; thus the Court has again demanded more than minimal justification for bans of this type.7 At the same

time, when

deciding whether

a particular ban or a

specific regulation of time, place, or manner does indeed have a dispro¬ portionate impact on expression by the unpopular, the dispossessed, or the little-known, the Court has demanded more than speculative argu¬ ment that such an impact might exist. In Heffron v. International Society for Krishna Consciousness (ISKCON) f the Court upheld a rule of the Minnesota State Fair which required all persons who wished to sell, exhibit, or distribute written material on the fairgrounds to do so from fixed, rented booths. ISKCON, a religious organization, chal¬ lenged the rule on the ground that it discriminated in favor of wellknown or well-liked groups that fair-goers were willing, without embar¬ rassment, to seek out affirmatively.9 ISKCON argued that the rule was search Group, 468 U.S. 841 (1984), a case challenging the constitutionality of a stat¬ ute which denied financial aid to male students who failed to register for the draft, Chief Justice Burger, writing for the Court, casually dismissed — in terms remi¬ niscent of Anatole France — the argument that the law discriminated against econom¬ ically deprived students. The law, assert¬ ed the Chief Justice, "treats all nonregis¬ trants alike, denying aid to both the poor and the wealthy.” Id. at 859 n. 17. See § 10-4, supra. It is noteworthy that, even when the Court protects first amendment interests, its decisions — whether or not justifiable — often work to enlarge the advantages of monied groups by facilitating their efforts to exploit their favored positions. See, e.g., Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (strik¬ ing down statute which limited expenses of charitable fundraisers); FCC v. League of Women Voters, 468 U.S. 364 (1984) (up¬ holding the right of publicly-subsidized tel¬ evision stations to broadcast political edito¬ rials); Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) (invalidating $250 ceiling on individual contributions to referendum campaign organizations); Buckley v. Valeo, 424 U.S. 1 (1976) (strik¬ ing down Congressionally-imposed ceilings on expenditures by, or in support of, candi¬ dates for public office). For a fuller discus¬ sion of these issues, see L. Tribe, Constitu¬ tional Choices 192-98 (1985). al on th e te ly rnbe "l wo me at e ul nt iv ss d es

av a ef ila fi bl ci e en t

to go v coern an nv ¬ d e¬

nient.” Schneider v. State, 308 U.S. 147, 164 (1939). 7. See, e.g., Talley v. California, 362 U.S. 60 (1960) (invalidating ordinance which prohibited distribution of any hand¬ bill not bearing name and address of per¬ son who prepared, distributed, or spon¬ sored it; defense that ordinance could help identify those responsible for fraud, false advertising, or libel rejected since ordi¬ nance went further than necessary to achieve those goals). Although Buckley v. Valeo, 424 U.S. 1, 60-84 (1976), upheld disclosure requirements of federal cam¬ paign regulations as essential to intelligent use of franchise and necessary to control corruption and enforce valid contribution limits, the Court in Brown v. Socialist Workers Party, 459 U.S. 87 (1982), struck down various facially valid disclosure re¬ quirements in a state campaign regulation as applied to the Socialist Workers Party. See § 13-31, infra. 8. 452 U.S. 640 (1981). Justice White delivered the opinion of the Court, in which Chief Justice Burger and Justices Stewart, Powell, and Rehnquist joined. Justice Brennan filed an opinion concur¬ ring in part and dissenting in part, in which Justices Marshall and Stevens joined. Justice Blackmun filed an opinion concurring in part and dissenting in part. The author of this treatise represented ISKCON in the Supreme Court.

9. Not at issue in Heffron was the ques¬ tion whether Minnesota could constitution¬ ally charge fees for its required state fair booths, even if those fees were so high that

§ 12-23

COMMUNICATION

AND

EXPRESSION

981

therefore not content-neutral, because it contained a built-in bias against minority and unpopular political and religious groups. Al¬ though prior decisions had made clear that government may not limit door-to-door speech to that which homeowners take positive steps to seek out,10 limiting face-to-face speech to that which fair-goers invite by entering fixed booths is not predictably calculated to filter out unpopu¬ lar speakers. Accordingly, the Court dismissed ISKCON’s contention in a footnote: "the argument is interesting but has little force.” 11 The second variable has been the degree to which the inhibition on communicative activity operates to shut down places that have tradi¬ tionally been associated with the public exchange of views, or places that have been specifically opened by government to such exchange. As we will see in § 12-24, such "public forums” represent areas within which tolerance for inhibitions on speech, petition, and assembly is at a minimum, and government’s burden of justification at its highest. Indeed, as we shall see in the next section, a governmental action that excludes a communication from such a public forum cannot be defended by pointing to the availability of alternative ways to transmit the same message; like a governmental abridgment based upon the content of an expression,12 an abridgment in this special realm is not deemed they effectively priced less affluent groups out of the marketplace. Nor did ISKCON raise a free exercise claim to enjoy rights above and beyond those that political speakers could enjoy.

10. Compare

Martin v. Struthers, 319

U.S. 141, 143-44, 146 (1943) (invalidating municipal ordinance that forbade door-todoor distribution of handbills as applied to a Jehovah’s Witness attempting to dis¬ tribute religious literature; noting that such a method of delivery is '’essential to the poorly financed causes of little people,” the Court opined that "[t]he ordinance does not control anything but the distribution of literature, and in that respect it substi¬ tutes the judgment of the community for the judgment of the individual household¬ er”); City of Watseka v. Illinois Public Action Council, 107 S.Ct. 919 (1987) (af¬ firming without opinion a Seventh Circuit decision that invalidated a municipal ordi¬ nance limiting door-to-door solicitation to the hours between 9:00 a.m. and 5:00 p.m., Monday through Saturday), with Breard v. Alexandria, 341 U.S. 622, 644 (1951) (up¬ holding ordinance that forbade the com¬ mercial door-to-door solicitation of maga¬ zine subscriptions; "[subscriptions may be made by anyone interested in receiving the magazines without the annoyance of houseto-house canvassing”).

insignif-

tial in the free-wheeling environment of a state fair. Visitors may well be in an adventurous mood, and the crowds and commotion should be expected to provide an anonymity that minimizes any fear of social stigma. At least without proof to the contrary, this expectation probably suf¬ fices to support the ISKCON result. Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., 107 S.Ct. 2568 (1987), suggests the question whether a public airport may go further and limit the use of its interior facilities to purposes directly related to air travel. If an airport permits newstands to continue to operate but excludes in-person leafleteers and solicitors, then that policy arguably discriminates in favor of wealthi¬ er, more mainstream organizations which already publish established journals — and against smaller, less popular groups which lack the resources and readership to com¬ pete in this market. Whether this argu¬ ment, too, may be dismissed as more "in¬ teresting” than forceful is unclear. But the Court did not need to reach it, because the airport’s regulation was fatally over¬ broad: it proscribed all "First Amendment activities,” including "even talking and reading, or the wearing of campaign but¬ tons or symbolic clothing.” Id. at 2572. See § 12-27, infra.

11. 452 U.S. at 649 n. 12. Even for one

requiring listeners to initiate communica¬ tion are likely to be peculiarly insubstan¬

v. e¬ ¬ ¬ 8,on pr con for 74 in n ba of t S. a ce th me en U. s sa Sp te 5 sta ice 42 pr nt vaai of lbet s); reog l, irtinto way ci a un id Co d eng al nv heliasbil (i er rt ve e oth b eard s; um76) ug ns19 dr ihnt Co ( g mi s 15 ’ st n. ia ci on n ma pti rs io in rg 7 ar ri me t Vi 75 ph sc su ma

who served as ISKCON’s advocate in the Supreme Court, it seems hard not to con¬ cede in hindsight that the Court’s conclu¬ sion was a sensible one. The dangers of

982

COMMUNICATION

AND

EXPRESSION

Ch. 12

icant simply because alternative channels are available to the speaker or to the listener.13 Unless a track two inhibition occurs in a public forum, however, government’s burden of justification is minimal unless the inhibition on communication is shown to be substantial. That is, with the exception noted above for public forums, the availability of alternative channels for the speaker to reach the same audience with the same message, or of alternative sources for the listener to receive the message, is a necessary part of the constitutional analysis when government abridges speech without regard to its expressive content. Unless the inhibition resulting from such a content-neutral abridgment is significant, govern¬ ment need show no more than a rational justification for its choice; and if equally effective alternatives are readily available to the speaker or listener, the inhibition is not deemed significant.14 One of the best illustrations of the latter point is provided by United States v. O'Brien ,15 the draft-card burning case. As we saw in § 12-6, a plausible argument exists that the government’s decision to make the destruction of one’s draft card a crime should have been treated by the OBrien Court as an abridgment of speech based upon the ideas expressed; as such, the case arguably belonged on track one and should probably have received the strictest scrutiny, with govern¬ ment’s action being invalidated unless compellingly justified by consid¬ erations that could not be satisfied with "more speech”. Instead, as we saw, the Court regarded the abridgment as content-neutral and thus treated the case as belonging on track two. Assuming for the sake of analysis that this threshold determination was correct, what the Court did next was unobjectionable: it subjected the government’s prohibition Washington, 418 U.S. 405, 411 n. 4 (1974) (reversing conviction for taping removable peace symbol onto flag displayed in apart¬ ment window, and "summarily” rejecting the state court’s argument that the inhibi¬ tion on speech was "miniscule and trifling” because of "other means” that could have been used to express the same views; avail¬ ability of other means held irrelevant when government prosecutes "for the ex¬ pression of an idea through activity”). Ac¬ cord, Wooley v. Maynard, 430 U.S. 705 (1977) (invalidating compelled display of emblem bearing state’s "Live Free or Die” motto on automobile license plate; majori¬ ty implicitly rejects dissenting argument, id. at 722, that objections to the motto could be expressed by displaying a counter¬ motto as well as by removing the state’s motto). See also Procunier v. Martinez, 416 U.S. 396, 408-09 (1974), Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972), and Lamont v. Postmaster General, 381 U.S. 301 (1965), as explained in Virginia Board of Pharmacy, 425 U.S. at 57-58 n. 15.

alleged first amendment right to distribute antiwar handbills in privately-owned shop¬ ping center, partly on the basis that sur¬ rounding public roads and sidewalks gave handbillers adequate alternative public fo¬ rums for disseminating their message). See also Greer v. Spock, 424 U.S. 828, 839 (1976) (rejecting alleged first amendment right to have political candidates speak at Fort Dix military reservation, partly on the basis that members of Armed Forces stationed at Fort Dix are free to attend political rallies off base); Pell v. Procunier, 417 U.S. 817, 827-28, 830 (1974) (rejecting alleged first amendment right of press and other media to interview specified immates, since inmates retain alternative channels of communication with outside world and since the press and general pub¬ lic are both "accorded full opportunities to observe prison conditions through such means as interviews of random inmates”); Saxbe v. Washington Post Co., 417 U.S. 843, 846-47 (1974) (same).

13. See Schneider v. State, 308 U.S. a.

,

-6

pr

su

12

,

U.S. 551, 566-67 & n. 12 (1972) (rejecting

-5

14. See Lloyd Corp., Ltd. v. Tanner, 407

12

,

-3

12

§§

147, 163 (1939).

§ 12-23

COMMUNICATION

AND

983

EXPRESSION

to relaxed scrutiny, upholding it as the least restrictive way of achiev¬ ing the legitimate purpose of protecting draft cards. But understanding

why this next step was

appropriate requires

further analysis.16 For the Court’s generous definition of a governmen¬ tal purpose — preserving every last draft card in perfect shape — guaran¬ teed that the law under review would indeed be the "least restrictive means” to the end being pursued.17 Had the Court defined the relevant purpose more generically — by looking, say, to the effective functioning of the selective service system — or had it insisted that government consider less restrictive alternatives that were almost as effective,18 then government could not have shown that its ban on draft-card destruction was the least restrictive possible means of achieving the goal. Yet on the record in O’Brien , assuming that the case belonged on track two at all, the Court was right to define the relevant purpose as generously as it did. For, as Justice Harlan observed in his concurring opinion,19 O’Brien made no showing that alternative, equally effective, ways of expressing his message were unavailable. He could, after all have burned a copy of his draft card in front of the very same audience as a means of making precisely the same point. If that alternative is to be dismissed as less effective and hence constitutionally insufficient, the only reason must be the special drama of burning a real draft card. But why was that particularly dramatic? The only plausible reason, it seems, is that the act was illegal. But surely O’Brien could not be permitted to rely on the act’s illegality to establish its unique effective¬ ness in the course of claiming that the act really was not illegal because the law in question violated the Constitution.20 One is reminded young man who kills his parents and then pleads for mercy

of the as an

orphan. Assuming that the case belonged on track two, it was there¬ fore quite clear that no special burden was imposed upon the ability to 16. The following defense of relaxed scrutiny on the Court’s premises should be distinguished from the suggestion that the Court applied only minimal scrutiny in O’Brien because draft-card burning consti¬ tuted an unorthodox mode of communica¬ tion. See Ely, "Flag Desecration: A Case Study in the Roles of Categorizing and Balancing in First Amendment Analysis,” 88 Harv.L.Rev. 1482, 1488 (1975). If only orthodox modes of expression were protect¬ ed, "the old saw that familiarity breeds contempt,” id. at 1489, might mean that truly effective communication would be left undefended by the first amendment. Moreover, just as "[l]aws which hamper the free use of some instruments of com¬ munication thereby favor competing chan¬ nels,” Kovacs v. Cooper, 336 U.S. 77, 102 (1949) (Black, J., dissenting), so laws which leave unorthodox media defenseless in ef¬ fect favor orthodox messages, a flaw that in itself should compel the strict scrutiny of track one. See §§ 12-2, 12-3, supra.

17. A law requiring continued posses¬ sion of one’s draft card, see T. Emerson, The System of Freedom of Expression 84-

85 (1970), would

neither fully serve the

government’s purpose — since one person might destroy another’s card — nor be unambiguously less restrictive — since the law’s reach would be broader, and since a person compelled to carry a draft card might regard that requirement as akin to a compelled flag salute, see West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). But see Wooley v. May¬ nard, 430 U.S. 705, 717 n. 15 (1977) (dictum suggesting that the bearer of currency in¬ scribed with the National Motto, "In God We Trust,” is not required to advertise the motto publicly and may thus be in a situa¬ tion distinguishable from that of the per¬ son forced to display "Live Free or Die” on his or her license plate). Cf. Lynch v. Donnelly, 465 U.S. 668, 693 (1984) (O’Connor, J., concurring) (suggesting that "In God We Trust” serves a purely secular purpose). 18. See Ely, supra note 2, at 1340. 19. 391 U.S. at 388-89. 20. See Ely, supra note 12, at 1489 & n. 29.

984

COMMUNICATION

AND

EXPRESSION

Ch. 12

communicate the same message in other ways to the same audience — and that any rational explanation for the law should thus have sufficed. Had the Court been willing to treat the law as aimed at O’Brien’s message, it would have been the government rather than O’Brien that would have been estopped to discuss alternative ways of getting the message across. Given the way the Court did treat the law, however, its subsequent analysis seems entirely appropriate. But it plainly does not follow that, in all instances of track-two analysis, the appropriate level of scrutiny is equally minimal. On the contrary, whenever it can be demonstrated that the result of the government’s rule or policy is to limit in some significant degree the ease or effectiveness with which a speaker or category of speakers can reach a specific audience with a particular message, the government should lose the case unless it can establish that an important public objective unrelated to the message would be sacrificed by any less restrictive alternative.21 In Schneider v. State,22 for example, anti¬ handbill ordinances were invalidated as applied to distributors of labor, political, and religious circulars despite the state’s plainly legitimate purposes of minimizing litter, noise, and traffic congestion and protect¬ ing people from fraud and invasion of privacy.23 Had the Court been willing to define the state’s purposes with an eye to upholding the ordinances at all costs, it could easily have said that the aims were to spare the state the cost of controlling traffic or cleaning up such handbills as might be left behind by distributors; even the cost of picking up a single stray handbill was a cost the state might wish to be spared, and no less restrictive alternative could fully achieve that

Co

purpose.24 Instead, the Court recognized the state’s only sufficiently

mm

is

si

on

v.

Inc Li fo Ci Ma fe r ti ss . , for ex 616zen(19 107 S.C (M ac a C h t. s 8 sec 6), of the mFepdle the FLC)o,u use inv ti er, r ttsali as a¬p¬ Ac ons (F Ca dat al El t ec t EC m e A)th ttoiona no paid co pli at pub¬ np gn rpo ed r of li ra F T "pr li it t erfr tiuosn he tr ECA coo-l proshed ing atom ea rpif h ur cosrury t o re georea”t fu ibits(i. e f h . e s nd n e i po¬ ., ou er on s rc aaln se c " to ma rat e i o x n s nn pe k i off ec¬ tnodiany pub tio on)wit any e ele lic for iscue tha ctiany ex tur andn req h c,”h pe e t on uir n by vo be fi mu a pu d e i s n l rp tu st re se unt os to a seance co e g nt pa d r ary oftegat en¬ th Co rat ha fu rib Al e ur e s nd uti th en ed the tha jut thoenso"ulgeh do . gis co t odfgmth ch sprse rp ec d ar la ene orr ctar reqacte ptiavre str ial aetg eu¬ r efu uir is tic uct tlo Wo ve. Ntaic ula Ri lat ure FE g ts C 4 r (19 rk Co ion 59 U.Siona197l,y 20h9t mm ,” . a82n) oln or res (u it 10 g ph te d t a ni Ci for inricMta sol old e, z t s a i io s ic t iz n tha theionepnasr re nsachu Lif ittahte g Co u c i tmic lare sit on), rt of tohgni grsett itn adu¬ e v o z u ol e ed upe s o the FE atio re v spe ed ner CA n qui cia p oun ofretmhe ob and be sa¬ llyoli v c un tica or ents ious tu , ofausteh ne r e w ga w l tche l the Co e er niz ell away asts nt e r a ri ar ir e t i bu wa p s t u b mo o ro-y. o se n, up ei to s ne d n p r g o y bleife wo th ca s — ind rthav e en nd u eed y e ld id , at es

surprised if it was not used for that pur¬ pose. "Some corporations have features more akin to voluntary political associa¬ tions than business firms, and therefore should not have to bear burdens on inde¬ pendent spending solely because of their incorporated status.” 107 S.Ct. at 631. The Court thus found that the FECA rules, while content-neutral, intruded too deeply into MCFL’s publishing and advocacy ac¬ tivities. See § 13-29, infra. 22. 308 U.S. 147 (1939). 23. See id. at 158, 160, 164. 24. No argument was advanced in Schneider that each handbill distributed constituted an aesthetic nuisance in itself’, when such an argument may be ad¬ vanced — as with billboards, see Me¬ tromedia, Inc. v. San Diego, 453 U.S. 490, 510 (1981) (plurality opinion), or with post¬ ed signs, see City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 80809 (1984) — a "least restrictive alternative” test imposes no real obstacle to a govern¬ ment determined to avoid "visual clutter.” Id. at 816. In such situations, whether the regulated activity is "labeled] ... a dis¬ crete medium of expression,” id. at 815 n. 32, and whether the property being used

§ 12-23

COMMUNICATION

AND

important objectives to be such more

EXPRESSION

985

general ones as maintaining

reasonably clean streets at non-prohibitive cost — and such objectives could be achieved tolerably well by measures less draconian than a total ban.25 Thus the state was required to incur affirmative costs in order to facilitate communicative activity 26 — a requirement character¬ istic of track two, but only where the adverse impact on such activity is substantial or is skewed against one type of group or, as in the Schneider case itself, is both substantial and skewed, and occurs in a public forum at that. Two further points should be noted here. The first is that "less restrictive alternative” analysis in this context is not simply a label for the conclusion that government has acted in an impermissibly broad manner, unacceptably sweeping protected conduct under its prohibitory rules. As we will see in §§ 12-27 to 12-33, the reference to less restrictive alternatives in the context of facial overbreadth challenges, particularly where government has acted in terms of expressive content and is thus subjected to track-one scrutiny, is essentially conclusory; there, to say that less restrictive alternatives exist is really to insist that government had better find such alternatives. In contrast, the discussion of less restrictive alternatives in track-two cases is a genuine part of the analysis itself; the availability of such alternatives is relevant to deciding whether government has in fact left too little opportunity for communicative activity, whether for speakers or for listeners.27 Second, the principle that government must incur affirmative costs in order to facilitate communicative activity is not lightly extended to cases in which private individuals are asked to be the cost-bearers — and especially cases in which private individuals are compelled to serve as message-bearers. Thus, although a legislature may require private individuals to make various economic sacrifices in the interest of facilitating political or communicative by the speaker ’'should be deemed a public forum,” id., may not furnish "workable an¬ alytical tool[s]” and should "not [be] dispos¬ itive.” Id.

25. Schneider, 308 U.S. at 162: "There are obvious methods of preventing litter¬ ing. Amongst these is the punishment of those who actually throw papers on the streets.” See also id. at 164: "Frauds may be . . . punished by law. Trespasses may similarly be forbidden.”

26. Id. at 164: "If it is said that these

means

are less efficient and

convenient

than [more sweeping abridgment], the an¬ swer is that considerations of this sort do not empower a municipality to abridge

light of the less drastic alternative of pro¬ tecting privacy by punishing "those who call at a home in defiance of the previously expressed will of the occupant”). Contrast Breard v. Alexandria, 341 U.S. 622 (1951) (upholding a similar ordinance as applied to door-to-door solicitation of orders to sell out-of-state goods). Justice Black, writing for the majority in Martin, assumed that the less drastic means would be so plainly equivalent that the state’s choice made sense only as a gratuitous suppression of speech. 319 U.S. at 147. For a critical view of this account, see Note, "Less Dras¬ tic Means and the First Amendment,” 78 Yale L.J. 464, 469-70 n. 27 (1969).

r¬ ¬ (a ¬ rsur ma peec or pa s 7) f nf 97 o i (1 o t s s 5 an st’ 42 me dcesn saic S. re U. -P or e f ex iv 3 ct 43 of tri s s d re nee , es t g ic eas in ic rv leen ubl Se r p sc as al l vit ra al ld . ne iv he gon) Ge ch up itni

freedom of speech and press.” See Ely, supra note 2, at 1335, 1340. See also Mar¬ tin v. Struthers, 319 U.S. 141, 148 (1943) (invalidating ordinance against knocking on doors to distribute circulars, as applied to distribution of religious literature, in

activity, as in Day-Brite v. Mis

986

COMMUNICATION

AND

EXPRESSION

Ch. 12

souri,28 courts have at times been reluctant to construe the Constitution itself as imposing a requirement of such sacrifice. As we will see in § 12-25, that proposition helps to explain some of the cases dealing with private as opposed to public forums, although, for reasons to be explored in that section, courts have occasionally been more reluctant than they should. § 12-24.

Public and Semi-Public Forums: Parks to Special-Purpose Public tions

From Streets and Places and Institu¬

Its safe delivery aided by a seminal 1965 essay by Professor Harry Kalven,1 the concept of "public forums” was spawned in a series of decisions in the 1930’s and 1940’s,2 went through a troubled period of gestation in several decisions in the 1960’s,3 and emerged as a fully viable creation as a group of decisions in the 1970’s.4 In the 1980’s, the 28. 342 U.S. 421 (1952) (upholding law requiring employers to give employees paid time off in order to vote). But cf. Thornton v. Caldor, Inc., 472 U.S. 703 (1985) (striking down as violative of the establishment clause a state law providing that "those who observe a Sabbath any day of the week as a matter of religious conviction must be relieved of the duty to work on that day, no matter what burden or incon¬ venience this imposes on the employer or fellow workers”), discussed in Chapter 14, infra.

4 2-2the § 1of 1. "The Concept Public Forum: Cox v. Louisiana,” 1965 Sup.Ct.Rev. 1. 2. See Saia v. New York City, 334 U.S. 558 (1948); Martin v. Struthers, 319 U.S. 141 (1943); Jamison v. Texas, 318 U.S. 413 (1943); Cox v. New Hampshire, 312 U.S. 569 (1941); Schneider v. State, 308 U.S. 147 (1939); Hague v. C.I.O., 307 U.S. 496 (1939). These cases established that

leafleting, parading, and other speech-re¬ lated uses of streets, sidewalks, and parks could be neither banned nor subjected to discretionary licensing. The Jamison deci¬ sion expressly rejected the older theory of Davis v. Massachusetts, 167 U.S. 43, 47-48 (1897) (affirming 162 Mass. 510, 511 (1895) ) that a state legislature has an own¬ er’s absolute control over public speaking and assembly in streets and parks belong¬ ing to the state. See 318 U.S. at 415-16. 3. See Cox v. Louisiana, 379 U.S. 536, 555 (1965) (reversing conviction for ob¬ structing public passageway by assembling near courthouse but raising possibility that nondiscriminatory closing of all "streets and other public facilities” to parades and meetings might be permissible); Edwards v. South Carolina, 372 U.S. 229 (1963) (re¬ versing breach of peace conviction for or¬ Se eS derly carrying of anti-segregation placards ou th on state capitol grounds). By the late ea st erP nro mo

1960’s, the hesitant approach of Cox was replaced by the more confident approach of Edwards. See Shuttlesworth v. Birming¬ ham, 394 U.S. 147, 152 (1969), citing ap¬ provingly (and relying on) the dictum of Justice Roberts, writing for the plurality in Hague v. C.I.O., 307 U.S. 496, 515-16 (1939) (invalidating ordinance forbidding all pub¬ lic meetings in streets and other public places without a permit): "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thought between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national ques¬ tions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.” Co 42 U. 54 5 ( (m 6, 55 197 S. 0 nr un 6t)h th ad an pr ow ic le iv ea , ea d ne ip ase apt te d al df to tceir "w f d or uebly es r or ty e l ig um ac re to eix an de a nfdo n thd cdoi no be cpr ma s un ti r t ucla us av vi ed es de dte ai tie si sh of d "H r v t p l sh ow ai fo efu e pro ermarbes” inow co s l itset ¬ r” rb io g in ns a l r Po orf Ch a v. ; g tDie idof Ci i li ty ic nt tpua d e Mo ce 40 tert U. 92 98n (1 (c ag )c;a it o n¬ , 97 8 d m S. s l 9 no e en oern p9r aly no 2) y l t n¬ f o d , t inwi la poir 15 hi fe of a sc ho 0 bi et bo ccke anth ol ti et cfein s "[ r ex ): n i e o gb ccl lme frJu a pu ng fo r a e ucst urse bl omsti ru i tiv i m f sc al Gr e v. fouRlnos c Se i lcyk c s ay (1 fo ru 40 at U. 10e 11o ¬ 9 rd ti 8 i S. 4 n 5 , -1 ed72) on , ni . 9 s ze d. ”

COMMUNICATION

§ 12-24

AND

EXPRESSION

987

Court described and reformulated public forum doctrine in ways that have proven to be quite manipulable and problematic. In its principal attempt at a comprehensive doctrinal synthesis,5 the Court set out three categories of forums: (1) traditional, "quintessential public fo¬ rums” — "places which by long tradition or by government fiat have been devoted to assembly and debate,” such as "streets and parks”; 6 (2) "limited purpose” or state-created semi-public forums opened "for use by the public as a place for expressive activity,” such as university meeting facilities or school board meetings; 7 and, finally, (3) public property "which is not by tradition or designation for public communi¬ cation” at all.8

The "public forum” doctrine holds that restrictions on speech should be subject to higher scrutiny when, all other things being equal, that speech occurs in areas playing a vital role in communication — such as in those places historically associated with first amendment activi¬ ties, such as streets, sidewalks, and parks 9 — especially because of how indispensable communication in these places is to people who lack access to more elaborate (and more costly) channels.10 Public forum analysis adds a frequently significant location-specific dimension — or at least a location-specific label — to the threshold inquiry of whether the values of free expression are involved in a given case.11 In some places, some activities are said to be entitled to greater first amendment protection than the same activities might claim in other places.12 The designation "public forum” thus serves as shorthand for the recognition that a particular context represents an important channel of communi¬ cation in the system of free expression.13 Yet many recent cases illustrate the blurriness, the occasional artificiality, and the frequent irrelevance, of the categories within the public forum classification. When the government clearly takes aim at a disfavored message, as on track one, for example, it makes no difference where that speech occurs or even what means, verbal or nonverbal, the speaker uses to communicate it. In cases such as these, 5. See Perry Education Perry Local Educators’ U.S. 37 (1983).

Association v.

Association, 460

6. Id. at 45-46.

Taxpayers for Vincent, 466 U.S. 789, 81315 (1984), and Metromedia, Inc. v. San Die¬ go, 453 U.S. 490 (1981). See notes 18 & 20, infra.

7. Id. 8. Id. at 46. 9. See Hague

Fund, 473 U.S. 788 (1985), from other char¬ itable solicitation cases, and Lehman v. Shaker Heights, 418 U.S. 298 (1974), from City Council of the City of Los Angeles v.

v. C.I.O., supra note 3.

11. The prior, threshold issue of wheth¬ er a particular activity possesses any first amendment significance is discussed in §§ 12-7, 12-23, supra.

12. This, for example, is the Court’s ra¬

us4

li ne

or

eC Se

tionale for distinguishing Cornelius v. NAACP Legal Defense and Educational

t be by s¬ re¬ y b di iu c dj¬o s ty s bl en le r st , u ndt J. p e ip pe rest ar inc pro ontsemu rvei to e ii s dpr is as w te ec s d mni, ic e ty en i lnia he es bl h iz t ri pu T tiv tsit en go es c ty s ac Br te r er er tot’ cam, o nt opll ur f i . pr a by ru Co fo f ty s es vi e vee o he cc i h si h ed itc a d ct tes t in lic l n a pr s jo ub pub hato st ex t p n tch re , no hor ded nshi te J. n w i e s u a h e s ei i m t g i agv th ). la si for e (" nd y” c a th rt beys e r pe av al xp n, esd ro mu ) h ic e g us e nd p ck ingm, yt in ed nc a la nt ru al at rd r rv la e e th (B se fo an th ga fo se ba th ed

10. See Martin v. Struthers, 319 U.S. 141, 146 (1943). But see City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 813-15 (1984) (find¬ ing that utility poles upon which political signs are posted are not public forums).

.

988

COMMUNICATION

AND

EXPRESSION

Ch. 12

public forum classifications are unnecessary and unhelpful.14 It is only when the law does not regulate the content of messages as such, and when there is no evidence of a governmental motive to discriminate in favor of or against a particular viewpoint,15 that the Court properly inquires into such factors as the place of the speech, the character of the particular activity being regulated, and the nature of the restriction imposed. Activities such as leafleting 16 and solicitation 17 are by tradition and function so closely linked with free expression that the Court has properly scrutinized restrictions upon those activities with special care, without pausing to establish at the outset that the restrictions operate in a public forum. Instead, the approach has been to presume a need for strict scrutiny unless a peculiarly rco/i-public forum is involved. Restrictions on charities engaging in fundraising drives, for example, have been upheld only when the forum for such solicitation is entirely state-created, and when

government

has evinced no intent to create

14. At times, however, the Supreme Court has suggested that rules deemed suf¬ ficiently content-neutral in other settings might be too content-based to pass muster in a public forum. See, e.g., Perry Educa¬

for Krishna Consciousness (ISKCON), 452 U.S. 640 (1981), which upheld, as applied to religious solicitation, a state rule confining the distribution of printed material at a state fair to certain fixed booth locations.

tion Association v. Perry Local Educators’ Association, 460 U.S. 37, 45-46, 48-50 (1983); Police Department of Chicago v. Mosley, 408 U.S. 92, 96-99 (1972).

The Court found that the state’s interest in crowd control was "substantial,” id. at 650, and held that the regulation, because it

15. See, e.g., Consolidated Edison Co. v. Public Service Comm’n., 447 U.S. 530, 535 & 536 (1980) (striking down order of state utility commission which prohibited the in¬ clusion by privately-owned public utilities of monthly billing inserts discussing con¬ troversial issues of public policy; the ma¬ jority, while conceding that time, place, and manner restrictions are permissible if they serve "significant government inter¬ est^]” and leave open "ample alternative channels for communication,” found that "when regulation is based on the content of speech, government action must be scru¬ tinized more carefully to ensure that com¬

afforded many alternative speech opportu¬ nities, was a valid time, place, and manner restriction. Id. at 654-55. The Court also opined that the rule did not really operate in a discriminatory fashion at all, because the booths provided to ISKCON were "not secreted away in some nonaccessible loca¬ tion,” but rather "located within the area of the fairgrounds where visitors are ex¬ pected, to pass.” Id. at 655andn. indeed 13. On encouraged this characterization of the restriction, it did not seem unreason¬ able. See § 12-23, supra.

94 U 4 Co H. Mu v J la ., 67 .S. nd . ose 7 ns wh st (i ph (1 osnt at 9 nv at ic e al ch ut munication has not been prohibited 'mere¬ ehn o pr 84) r i e ¬ oh ga ly because public officials disapprove the daar ex¬ fr ac ni ga ib in fu tiit o2m speaker’s views’ ”), quoting Niemotko v. mtoivi zatht peged ite on nsodr ngabl 5% of l a a n r e t d i i i n d i e Maryland, 340 U.S. 268, 282 (1951) (Frank¬ o c Leas am th into is r n v V e g ta rs s . aou tiatnig aise furter, J., concurring); Perry Education l (1 on (s 2 2 U 45 le nt 9 t 6 .S. nt 28, on 54-d); e Association v. Perry Local Educators’ Asso¬ alrikirel wh la do , a st 55 re 82) l ng i¬ a ciation, 460 U.S. 37, 61, 62 (1983) (Brennan, w qu icr th mo or te gi wn i h e r a ce ou ga r J., dissenting) (upholding township rule e e d no n fr co 50 s of th ni to iv t e n¬ n o % itrza f al h tr ding which granted preferential access to inter¬ fim me tiil i o e i na gh bu ta m nal public school mail system to bargaining oe n ly ati r il w st ns di ber onul ed hi cialap¬ s a s te sp sat e su agent of teachers; the Court has "never cs t pe clo me ec ch hmal ar su arg held that government maySee allow discussion n i et re Un th a or edne r le ,e ed li ts,fica s if r .g. e of a subject and then discriminate among wee gi o Sll icv. Ci ,S r V C f i h y ch ec on viewpoints on that particular topic. . . . a 44 tioU.ti¬ E ze urc fo a lBlea re ns h r tgte s nvi aum 4 ta Viewpoint discrimination is censorship in n S. ryo ru (i er ()1; 62 ro a bmuu le 98 fS n 0 n n r v me or giocn its purest form”). See generally, Stephan, adlo so¬ b0a) wh ta i-ps nt te iodr rr ic "The First Amendment and Content Dis¬ atrl us aor beyd ch li h of , ee ar tioni ga crimination,” 68 Va.L.Rev. 203, 233 (1982). Mar m cita t fot nong rneiz 25 itaof tgdhoo y¬or tio ha r nbl s eirr a ceaait 16. See, e.g., Schneider v. State, 308 ch e n n pu % e uc s dpmito rp ar h isnns ov os co it an U.S. 147 (1939). Cf. Heffron v. Int’l Soc. is st ab d er es s le tr he , at ad iv ). e

COMMUNICATION

§ 12-24

AND

EXPRESSION

989

that forum as one meant "for expressive activity.” 18 And, even in such cases, the Court has been sensitive to the possibility that impermissible motives may

underlie the restrictions on solicitation.19

Similarly, regulations on the act of posting signs — even outside a public forum — clearly implicate first amendment values.20 Open sexual activity and prostitution, on the other hand, are for the most part unrelated to free expression; hence, restrictions on these activities are not subject to first amendment scrutiny — whether or not they occur in a public forum.21 At the same time, if it could be shown that such restrictions were motivated by a purpose inimical to free speech — if a city used "a nuisance statute as a pretext for closing down a book store 18. See Cornelius v. NAACP

Legal De¬

fense and Educational Fund, 473 U.S. 788 (1985), which upheld an executive order that excluded organizations engaging in le¬ gal defense or political advocacy from par¬ ticipating in a charity fund-raising drive aimed at federal employees. The Court opined that inclusion of these groups would make the Combined Federal Campaign "administratively unmanageable,” id. at 809, and would also jeopardize the contin¬ ued success of the Campaign, since many contributors had expressed concern about the participation of such "political advoca¬ cy” organizations. Id. at 810-11. "The First Amendment does not forbid a view¬ point-neutral exclusion of speakers who would disrupt a nonpublic forum and hin¬ der its effectivenss for its intended pur¬ pose.” Id. at 811. The government may draw the advocacy-nonadvocacy distinction in other contexts as well. That a city may, for example, require that sanitation work¬ ers be allowed on a homeowner’s property in order to collect his garbage certainly does not imply that any speaker on the issue of garbage collection must automati¬ cally be granted access.

19. See id. at 811 (noting that "reasona¬

ble grounds for limiting access to a non¬ public forum . . . will not save a regula¬ tion that is in reality a facade for viewpoint-based discrimination,” and re¬ manding the case for a determination of the viewpoint-neutrality issue).

20. See, e.g., City Council of the City of

" '[t]he outdoor sign or symbol is a vener¬ able medium for expressing political, so¬ cial, and commercial ideas’ ”). But see Greer v. Spock, 424 U.S. 828, 833 n. 10 (1976) (denying the public forum status of a military base and hence rejecting the right of a political candidate to make a speech there, even though a variety of civilian speakers, including a lecturer on drug abuse, a visiting preacher, and a rock mu¬ sic band, had been granted access previous¬ ly; "the decision of the military authori¬ ties” to allow some civilian speakers "surely did not leave the authorities pow¬ erless thereafter to prevent any civilian from entering [the base] to speak on any subject whatever”); Lehman v. Shaker Heights, 418 U.S. 298, 304 (1974) (uphold¬ ing a city’s refusal to deny space to politi¬ cal candidates for advertising on municipal transit vehicles, even though the city sold commercial and service-centered advertis¬ ing; the plurality declared that "[n]o First Amendment forum is here to be found,” because the audience was essentially cap¬ tive and because the city was acting in a merely "proprietary capacity” as the own¬ er and operator of the transit system). The Metromedia plurality distinguished Lehman and Greer on the basis that they "turned on unique fact situations involving government-created forums and have no ap¬ plication here.” 453 U.S. at 514 n. 19 (emphasis added). The same distinction appears to explain the Cornelius decision in the charitable solicitation area, see note 12, supra.

C

I s i e a e l th th sel e n ur er e xuafl in to los tt r e i ” a t s e c p ea (" uar e ng a Th Sq en gag di at v ol th eodf 3)e en ph en lt 97 (u app du (1 mes e A h i ce 7 T er n 6 d, 6) wh ese is in r te 98 at r p Pa 9, (1 th ec 4 t o ks n ro nuee oo he h oo p taog 72 b st it S.n un uilal 31 es w U. y n imd si b t gh "s i b.u 3 i h c i Ct 41 l al S. a exp d at ), n icly e r of io iatl e g 6 ut , ooln ts g t n 10 tpi an ri ti to e tu ip e t ly os la r acti ic d , ur al p S brns rt li c. os xu s In cl se wa of v. emco pa va

Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 813-14 & nn. 31 & 32 (1984) (upholding, after first amendment analysis, a provision of a municipal code which pro¬ hibited the posting of signs on public prop¬ erty, with the effect that a political candi¬ date could not post campaign signs on utility poles; majority denied that the poles were a public forum, but did not make the analysis turn on that conclusion); Metromedia, Inc. v. San Diego, 453 U.S. 490, 501 (1981) (invalidating municipal re¬ strictions on noncommercial billboard ad¬ vertising but upholding restrictions on off¬

site commercial billboards; plurality, citing other public forum cases, noted that

990

COMMUNICATION

AND

EXPRESSION

Ch. 12

because it sold indecent books,” 22 or if the particular act triggering the law’s enforcement was of first amendment significance 23 — then more exacting first amendment scrutiny would be required even if no public forum were involved. The presence or absence of a public forum may thus prove immaterial in a wide variety of cases. A close look at the Court’s attempts to refine the public forum categories illustrates the important role of another variable: the con¬ crete character of the particular regulation at issue. The Court, for example, scrutinized only loosely — and readily upheld — a federal law prohibiting the deposit of unstamped "mailable matter” in letter boxes in the face of a challenge that such a ban discriminated against those groups unable or unwilling to send their literature through the mails.24 While mailboxes undoubtedly serve as an important channel of commu¬ nication, and while the alleged discrimination was surely present, the undeniable availability of other equally effective methods of distribut¬ ing handbills, such as placing them under doors, hanging them on doorknobs, leaving them on the windshields of parked cars, or deliver¬ ing them person-to-person in public areas, made the Postal Service’s rule seem too unthreatening to warrant strict scrutiny.25 The Court signaled this conclusion by denying that the mailboxes were public forums— but that denial may have done more to obscure than to illuminate the Court’s underlying analysis.26 The real issue was wheth22. Arcara, 106 S.Ct. at 3178 (O’Connor, J., joined by Stevens, J., concurring).

23. See, e.g., United States v. O’Brien, 391 U.S. 367 (1968) (upholding the convic¬ tion of draft card burner after applying first amendment analysis). It is not that the destruction of government property al¬ ways communicates a message; rather, the point is that in this particular instance, O’Brien’s behavior was both intended and understood as an expressive act, and the law used to prosecute him — even if not motivated by a desire to suppress dissent against the war — was indisputably enacted in response to draft-card burnings univer¬ sally understood as expressive acts. See § 12-6, supra. See also Clark v. Communi¬ ty for Creative Non-Violence, 468 U.S. 288 (1984) (upholding the National Park Ser¬ vice’s "anti-camping” regulations as ap¬ plied to a homeless advocacy organization that sought, as part of a political protest, to sleep overnight in national monument ar¬ eas). In June 1982, the Park Service re¬ vised the relevant regulations, see Nation¬ al Capitol Park Regulations: Camping, 47 Fed.Reg. 24, 299-306 (1982), largely in re¬ sponse to a similar CCNV demonstration. See Community for Creative Non-Violence v. Watt, 670 F.2d 1213 (D.C. Cir. 1982); Clark, 468 U.S. at 302 n. 1 (Marshall, J., joined by Brennan, J., dissenting). On the issue of symbolic speech and the speechconduct distinction, see generally § 12-7, supra.

24. United

States Postal Service v.

Council of Greenburgh U.S. 114 (1981).

Civic Ass’ns, 453

25. But cf. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) (striking down as a forbidden prior re¬ straint a municipal theater’s refusal to al¬ low of the musical "Hair”; " 'onea performance is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exer¬ cised in some other place’ ”), quoting Schneider v. State, 308 U.S. 147, 163 (1939). 26. Thus, the majority ostensibly dis¬ posed of the case by finding that the let¬ terbox is not a public forum. 453 U.S. at 131. Although it noted the easy availabili¬ ty of alternative means of distribution, id. at 119, the majority said that it did not need to reach this issue. Id. at 132. Jus¬ tice Brennan, in contrast, would have up¬ held the statute as a reasonable time, place, and manner restriction, by stressing the availability of alternative channels. Id. at 135 (Brennan, J., concurring in the judgment). Justice Brennan’s analysis seems sounder. Without it, there appears to be no answer to Justice Stevens’ dissent¬ ing objection, id. at 152, that the mailbox is in fact the homeowner’s property. The individual provides and maintains the mailbox, which typically sits on private property. In order to receive mail, howev¬ er, the individual must comply with feder¬ al postal law. The majority thus charac-

§ 12-24

COMMUNICATION

er the restriction on nonstamped

AND

EXPRESSION

991

mailable matter so inhibited the free

communication of ideas as to violate the first amendment; the "public forum” status of mailboxes was only superficially relevant to the outcome of the decision.27 Similarly, when the Court rejected the right of a nonunion

commu¬

nity college faculty member to participate in "meet and confer” ses¬ sions conducted by the state community college board with the union which served as the faculty’s exclusive bargaining representative,28 it made no attempt to deny that the right to communicate with the government — to "petition,” in the first amendment’s terms — is an im¬ portant value. Rather, the Court noted the confluence of two key factors: (1) the "meet and confer” sessions were "neither by long tradition nor by government designation open for general public partic¬ ipation,” 29 a feature which meant that they were not public forums; and (2) the nonunion faculty members retained access to both union and government officials through alternative channels of communica¬ tion.30 It is hard not to regard the first factor as largely a makeweight and the second factor as more influential. The Court’s decision seemed to hinge not at all on any formal notion of "public forum”; rather, as the exchange between Justices Marshall and Stevens indicates, the crux of the matter was the practical effect of the Minnesota statute, and whether nonunion teachers retained access to the governing board.31 terized the mailbox as part of the national postal system, the use of which the govern¬ ment could freely restrict in order to fur¬

Justice Stevens also filed a dissenting opin¬ ion, in which Justices Brennan and Powell joined in part. 29. Id. at 280.

ther the system’s purposes. 453 U.S. at 123, 128-29. Justice Stevens, on the other hand, saw the mailbox as private property, to which the owner had an independent right to grant access, a right penalized by

30. See id. at 288 ("[t]he State has in no way restrained [the nonunion teachers’] freedom to speak on any education-related

the government’s refusal to deliver mail to individuals who allowed unstamped maila¬ ble matter to be deposited in their mail¬ boxes. Id. at 152 (Stevens, J., dissenting).

issue”). 31. Justice Stevens charged that "[t]he statute prohibits [the nonunion teachers]

The dispute was not over statutory entitle¬ ments but ovei description: the majority and Justice Stevens agreed on the specific rights and privileges vested in the individ¬ ual and in the Postal Service, but dis¬ agreed about who should be deemed the "true” owner of the box for purposes of the first amendment.

27. See Farber and Nowak, "The Mis¬ leading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication,” 70 Va.L.Rev. 1219, 1223 (1984). For a fuller discussion of this issue in Greenburgh, see L. Tribe, Constitutional Choices 194-98 (1985). 28. Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984). Justice O’Connor delivered the opinion of the Court, in which Chief Justice Burger and Justices White, Blackmun, and Rehnquist joined. Justice Marshall filed an opinion concurring in the judgment. Jus¬ tice Brennan wrote a dissenting opinion.

from expressing 'any view’ on issues affect¬ ing their colleges to the administration, and as a practical matter it 'blocks effec¬ tively meaningful expression’ [by them] on the public policy issues facing the state agencies that employ them.” 465 U.S. at 310-11 (Stevens, J., dissenting) (citation omitted). As such, the statute amounted to a restriction based on viewpoint. Id. at 320. Justice Marshall, relying on the find¬ ing of the majority that "[the statute] in no way impairs the ability of individual em¬ ployees to express their views to their em¬ ployer outside that formal context [of 'meet and confer’ sessions], and [the absence of any] suggestion in these cases that . . . any such communication of views has ever been restrained,” 465 U.S. at 277 n. 4, found that the restriction on speech was not severe. Id. at 295 (Marshall, J., con¬ curring in the judgment). Justice Mar¬ shall also pointed to the fact that the re¬ striction had been imposed by the university itself, and not by the state legis-

992

COMMUNICATION

AND

EXPRESSION

Ch. 12

In a case in which these two factors were largely absent,32 the Court upheld the right of a nonunion teacher to speak out against a mandatory union dues proposal during a public and open meeting of a municipal board of education.33 In contrast, the Court affirmed a collective bargaining agreement entered into by an Indiana township which granted preferential access to the internal mail system of public schools to the union currently representing the teachers, against the wishes of rival union.34 Again, the two variables stressed in the Court’s analysis were the nonpublic-forum status of the mail system 35 and the allegedly neutral nature of the restriction.36 Justice Stevens, in a later description of the decision, emphasized that the preferential access was justified by the union’s duties as the exclusive representative of the teachers within the collective bargaining process.37 He thus limited the case to the narrow labor relations context. As this overview of the cases strongly suggests, whether

or not a

given place is deemed a "public forum” is ordinarily less significant than the nature of the speech restriction — despite the Court’s rhetoric. Indeed, even the rhetoric at times reveals as much. Thus, the Court has said that speech within public forums may not ordinarily be abridged unless the regulation is content-neutral, serves a significant governmental interest, and leaves open adequate alternative channels for communication.38 But even where property does not constitute a public forum, the Court has said that government regulation must ordinarily be content-neutral, and must still be reasonable as to time, lature, prompting him to "defer to the judgment of college administrators,” whose decisions he found less "suspicious” than those of the legislature. Id. at 294. These facts relate to the nature of the restriction, not the forum. See § 17-3, infra. 32. Madison sin Employment U.S. 167 (1976).

School District v. Wiscon¬ Relations Comm’n,

429

33. The school board meetings at issue were "opened involvement,” participation 34. Perry

[as] a forum for direct 429 U.S. at 175, and [was] permitted,” id. Education Association

citizen "public at 169. v. Per¬

ry Local Educators’ Association, 460 U.S. 37 (1983). 35. The majority found that the mail system was a nonpublic forum to which the rival union could expect no access, id. at 47, in spite of the fact that there was evidence that outside organizations such as the YMCA, Cub Scouts, and various church groups had been permitted to use the facil¬ ities, id. 36. The majority characterized the re¬ striction as "based on the status of the respective unions rather than on their views.” Id. at 49. 37. See Minnesota Bd. for Community Colleges v. Knight, 465 U.S. 271, 320-21 (1984) (Stevens, J., dissenting, joined in ee Powell, J.) (distin¬ part by Brennan, J., Sand ,e .g .,C on so l

guishing Perry); see also Perry, 460 U.S. at 52 (noting that "exclusion of a rival union may reasonably be considered a way of insuring labor peace within the schools. The policy 'serves to prevent the District’s schools from becoming a battlefield for in¬ ter-union squabbles’.”) The Court thus sit¬ uated Perry in a long line of labor law cases upholding exclusive representation arrangements in the private sector, see, e.g., Emporium Capwell Co. v. Western Ad¬ dition Community Organization, 420 U.S. 50 (1975); J.I. Case Co. v. NLRB, 321 U.S. 332 (1944), and restricting the ability of outside organizers to distribute union liter¬ ature on company property during working hours, see NLRB v. Babcock and Wilcox Co., 351 U.S. 105 (1956).

53 53 44 U. Co Se Pu rv ( 5mm d a 7 st S. re 0, 36bli(1 s o i ’n w at tr g c 98 c u e 15 of ut 0) bi ik in e in nloa ., n di ll inse , il tte sc i r i g tvs. Ro 10 U. 40 su us ty Gr o n 4 S 8 p se ), ck ay , d faon be st . 12 ra; (1 n(eu ¬ rtdi 97 at 1 dph ol aunte sp a co ,noi i2t) "r ca dji ns tshe ep d ki e¬ so ci us le ugd n fi e i r g a nd m es a gm sh dert be ree of c ex isl s c e a s e p e ntti o to tsivi natn ulpdl d in otrri at a praes tiv e ac dect rts mety d e, o r ed C itcv s (c pr fo. vm.it Co Siet Shteuela cho Po Unot f at r ol st ratvi u itec te n t s e a i c ocn4 s C ”) lA U. d)1.1il 13 Gr ed e5 iv ss 3 e itch te’n bu no4, pu 2 fi S. (1 en (s st s, t e nd b¬ li 981 fbou tat in c ) rur i n g g mg)h .

§ 12-24

COMMUNICATION

AND

EXPRESSION

993

place, and manner.39 To be sure, what the Court views as contentneutral, and what it sees as reasonable, could in theory depend on whether it regards a particular forum as public, or at least semi-public. But since the cases provide scant support for that supposition, and instead suggest that the Court uses "public forum” talk to signal conclusions it has reached on other grounds, it might be considerably more helpful if the Court were to focus more directly and explicitly on the degree to which the regulation at issue impinges on the first amendment interest in the free flow of information; translating this inquiry into public forum language may simply "confuse[ ] the develop¬ ment of first amendment principles.” 40 Beyond confusing the issues, an excessive focus on the public character of some forums, coupled with inadequate attention to the precise details of the restrictions on expression, can leave speech inadequately protected in some cases,41 while unduly hampering state and local authorities in others.42 In Southeastern Promotions, Inc. v. Conrad ,43 for example, the Court found that the refusal of the directors of two municipal theaters in Chattanooga, Tennessee — one owned, the 39. Greenburgh, 453 U.S. at 140 (Bren¬ nan, J., concurring in the judgment). See also Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 92-93 (1977) (striking down municipal ordinance prohibiting the posting of real estate "for sale” and "sold” signs in order to stem the flight of white homeowners from racially integrated com¬ munity; majority found alternative modes of expression, such as newspaper advertise¬ ments, less effective); Young v. American Mini-Theatres, Inc., 427 U.S. 50, 63 n. 18 (1976) (upholding city zoning ordinance as applied to adult movie theaters; majority found that the rules limited only the loca¬ tion of theaters and hence were a valid time, place, and manner restriction); Vir¬ ginia Board of Pharmacy v. Virginia Citi¬ zens Consumer Council, Inc., 425 U.S. 748, 771 (1976) (invalidating state ban on adver¬ tising of prescription drug prices; the Court noted that such a complete prohibi¬ tion on price advertising could not be char¬ acterized as a mere time, place, or manner restriction); Pell v. Procunier, 417 U.S. 817, 826 (1974) (upholding state corrections regulation which denied prison inmates ac¬ cess to face-to-face press interviews; the Court pointed out that prisoners retained the right to receive at least some visitors, correspond by mail, and communicate indi¬ rectly with the press and public through their visitors).

40. Farber and Nowak, "The Mislead¬

ing Nature of Public Forum Analysis: Con¬ tent and Context in First Amendment Ad¬ judication,” 70 Va.L.Rev. 1219, 1223 (1984).

41. See, e.g., Cornelius v. NAACP

Legal

Defense and Educational Fund, Inc., 473 U.S. 788 (1985) (upholding an executive order

excluding

political "advocacy”

groups from a charity fundraising drive aimed at federal employees, on the theory that the drive is a nonpublic forum and that the government may restrict access to such a forum by means of any "reasona¬ ble” regulation). As Justice Stevens noted in dissent, "I do not find the precise char¬ acterization of the forum particularly help¬ ful in reaching a decision.” Id. at 833 (Stevens, J., dissenting). See also City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 451-54 (1985) (Stevens, J., joined by Burger, C.J., concurring) (voicing a similar view with respect to equal protec¬ tion analysis), discussed in § 16-32, infra. "Everyone on the Court agreefd]” that if the exclusion of advocacy groups from the charity drive constituted viewpoint dis¬ crimination, then their exclusion was in¬ valid, regardless of how the forum was characterized. Cornelius, 473 U.S. at 833 (Stevens, J., dissenting). See also Perry Education Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 57 (1983) (Brennan, J., joined by Marshall, Powell, and Stevens, JJ., dissenting) ("This case does an 'absolute access’ claim. It 'equal access’ claim. As such, turn on whether the internal

not involve involves an it does not school mail

system is a 'public forum.’ In focusing on the public forum issue, the Court disre¬ gards the First Amendment’s central pro¬ scription against censorship, in the form of viewpoint discrimination, in any forum, public or nonpublic.”). Often, the central issue is thus the nature of the restriction, not the forum. 42. See, e.g., the discussion of Carey v. Brown, 447 U.S. 455 (1980), in § 12-3, su¬

43. 420 U.S. 546 (1975). pra.

994

COMMUNICATION

AND

EXPRESSION

Ch. 12

other leased by the city — to permit the performance of the musical "Hair” amounted to a prior restraint in violation of the first amend¬ ment. The majority opinion, written by Justice Blackmun, noted that the theaters "were public forums designed for and dedicated to expres¬ sive activities.” 44 Having opened them ostensibly as "common meeting place[s] . . . for . . . entertainment,” 45 Chattanooga was not free selectively to deny permission to use the theaters on the basis of a production’s content.46 But the Court’s call for "precise and clear standards” 47 to regulate the discretion of municipal authorities left unanswered many of the questions raised in Justice Rehnquist’s dis¬ sent: "May an opera house limit its productions to operas, or must it show rock musicals? May a municipal theater devote an entire season to Shakespeare, or is it required to book any potential producer on a first come, first served basis?” 48 The majority’s quick emphasis on the theaters’ public forum status perhaps contributed to its relative inat¬ tention to the hard issues of appropriate standards for show selection and theater management.49 In addition, the Court’s approach invites manipulation in the definition of "public forum.” At times, for example, the Court appears to have circumscribed the category of "traditional” public forums by focusing on appearance rather than function — on whether the place looks like a forum for expressive activity rather than on whether it does in fact serve as a significant medium of communication.50 The inher¬ ent limitations of this approach are suggested by United States v. Grace.51 The appellees had been ejected from the sidewalks surround¬ ing the Supreme Court building for violating a federal statute that prohibited a wide range of expressive activity in the vicinity of the building.52 Mary

Grace

had been carrying a sign displaying, aptly

44. 420 U.S. at 555. 45. 420 U.S. at 549 n. 4. 46. Perry 46 n. forum

But see Perry Education Ass’n. v. Local Educators’ Ass’n., 460 U.S. 37, 7 (1983) (suggesting that "[a] public may be created for a limited purpose

such as use by certain groups” or "for the discussion of certain subjects”). 47. 420 U.S. at 553. 48. 420 U.S. at 572-73 (Rehnquist, J., dissenting). 49. See Karst, "Public Enterprise and the Public Forum: A Comment on South¬

terfer[es] with” or "obstructs]” a forum’s intended purpose or operation). Whether the Court in Grayned actually applied such a standard, or merely articulated one, is open to debate. See 408 U.S. at 121-24 (Douglas, J., dissenting in part). 51. 461 U.S. 171 (1983). Justice White delivered the opinion of the Court, in which Chief Justice Burger and Justices Brennan, Blackmun, Powell, Rehnquist, and O’Connor joined. Justices Marshall and Stevens both filed opinions concurring in part and dissenting in part. 52. The challenged statute made

it un¬

eastern Promotions, Ltd. v. Conrad,” 37 Ohio St.L.J. 247 (1976) (criticizing the

lawful "to parade, stand, or move in processions or assemblages in the Supreme

Court’s decisions in Columbia Broadcasting Sys., Inc. v. Democratic Nat’l. Comm., 412 U.S. 94 (1973), Lehman v. Shaker Heights, 418 U.S. 298 (1974), and Southeastern Pro¬ motions, Ltd. v. Conrad, 420 U.S. 546

v. Rockford, 408 U.S.

Court Buildings or grounds” or "to display therein any flag, banner, or device de¬ signed or adapted to bring into public no¬ tice any party, organization, or move¬ ment.” Id. at 175, quoting 40 U.S.C. § 13k (1976). See also Finzer v. Barry, 798 F.2d 1450, 1476 (D.C. Cir. 1986) (Bork, J.) (up¬ holding statute which prohibited the dis¬ play of signs bringing a foreign govern¬

104, 120-21 (1972) (proposing instead an "incompatibility” of function test which would ask whether expressive activity "in-

ment into "public odium” or "public disrepute” within 500 feet of that country’s embassy; the majority dismissed concerns

(1975), for focusing on an "on/off,” all-ornothing public forum analysis rather than on the nature of the restriction at issue). 56. Cf. Grayned

§ 12-24

COMMUNICATION

AND

EXPRESSION

enough, the text of the first amendment;

995

a second appellee had been

peacefully distributing political literature. The Supreme Court de¬ clared the statute unconstitutional as applied to expressive activity on the sidewalks surrounding the Court, but declined to invalidate the statute as applied to the interior of the Supreme

Court building itself.53

Significantly, the Court’s argument for striking down the prohibi¬ tion on sidewalk expression relied more on imagery than on the functional importance of the Supreme Court sidewalks as a public forum. Conspicuously absent from the Court’s opinion was any recog¬ nition that, for many issues, the sidewalks around the Supreme Court building are indeed a uniquely appropriate forum. The Court stressed instead that the sidewalks around its building look like other sidewalks in the area and that there is no physical barrier or separation to indicate to the passerby that the Supreme Court sidewalks are in any way special, or that access to them is in any way restricted.54 The Court thus suggested that whether a place qualifies as a traditional public forum might depend more on whether it resembles such a forum, than on its functional significance as a channel of communication.55 Needless to say, appearances are well within the government’s control; a doctrine that even suggests that posting "no public speakers” signs could alter the outcome in a case like Grace hardly offers secure protection to first amendment concerns. The public forum doctrine is susceptible to manipulation in other ways as well. In City Council of the City of Los Angeles v. Taxpayers for Vincent ,56 the Court held that utility poles and lampposts upon about discrimination based on the views of the speaker as "entirely theoretical” and "academic” because "there is not and nev¬ er has been political debate about the mer¬ its of foreign governments and their poli¬ cies within 500 feet of their embassies”), cert, granted sub nom. Boos v. Barry, 107 S.Ct. 1282 (1987) (No. 86-803). For a trenchant criticism of the analysis and re¬ sult in Finzer, see 132 Cong.Rec. H 6503-06 (daily ed. Sept. 9, 1986) (remarks of Rep. Barney Frank (D. Mass.) ). 53. 461 U.S. at 180.

54. Id. at 179-80. A different image,

respondents (the author of this treatise) whether a ruling in their favor would per¬ mit the public to walk about the court¬ room, and followed up with a similar ques¬ tion about the building’s hallways and museums. See Transcript of Oral Argu¬ ment at 30-31 (1981).

55. Imagery may

also have helped to

shape the Court’s earlier thinking about expressive activity on private property. Stressing the physical indistinguishability of a company-owned town from any other American town of comparable size, the Court treated the sidewalks of a company

Court

town’s shopping district as a kind of public forum. See Marsh v. Alabama, 326 U.S.

the majority’s re¬ may lie behind building, fusal to invalidate the statute in toto. The

501, 502-03 (1946). In contrast, the Court, pointing out the novel layout of modern shopping malls, refused to extend to them the rules of public forums. See Lloyd Corp. v. Tanner, 407 U.S. 551, 553 (1972); accord, Hudgens v. NLRB, 424 U.S. 507 (1976). See generally, Chapter 18, infra (discussing Marsh, Lloyd, and Hudgens). Compare B. Ackerman, Private Property and the Constitution (1977) (demonstrating the central importance of imagery in the law of takings).

one of pandemonium

in the Supreme

Court of Appeals had held the statute un¬ constitutional on its face as a total prohibi¬ tion on expressive activity in a public place, see Grace v. Burger, 665 F.2d 1193 (D.C. Cir. 1981), and Justice Marshall would have done the same, see 461 U.S. at 184 (Marshall, J., concurring in part and dissenting in part). The Court had earlier signaled its concern that the first amend¬ ment not be interpreted in a manner that would threaten the decorum of the Su¬ preme Court building. During the oral argument in Heffron v. International Soci¬ ety for Krishna Consciousness, Inc., 452 U.S. 640 (1981), the Court asked counsel for

56. 466 U.S. 789 (1984). Justice Ste¬ vens delivered the opinion of the Court, in which Chief Justice Burger and Justices White, Powell, Rehnquist, and O’Connor

996

COMMUNICATION

AND

EXPRESSION

Ch. 12

which various organizations affixed their respective signs were not public forums.57 In a cloud of logic that threatened quickly to evapo¬ rate in circles of tautology, the Court argued that these signposts were not public forums because the Constitution didn’t say they were: "the mere fact that government property can be used as a vehicle for communication does not mean that the Constitution requires such uses to be permitted.” 58 True enough. But the point sheds little light on the central issue of the case: how strictly should courts scrutinize the challenged restriction on the use of this property for posting political signs? In addressing that issue, the Court paid scant attention to the historical dimension of the public forum doctrine as it had evolved from the 193Q’s into the 1970’s. If telephone poles in Los Angeles were in fact commonly and consistently used as means of communication, then, by the logic of that earlier doctrine, they should have qualified as "traditional” public forums. That classification would not have been decisive,59 but it would have set the stage for an analysis more sensitive to first amendment values. In recent years the Court has also restricted the protection offered to speech under the public forum doctrine by greatly expanding the third category listed in Perry — that of nonpublic forums. In Cornelius v. NAACP Legal Defense and Educational Fund,60 for example, the Court divided 4-3 to uphold the constitutionality of an Executive Order that excluded organizations engaging in legal defense or political advo¬ cacy from participating in a charity fund-raising drive aimed at federal employees. Justice O’Connor, writing for the majority, argued that the government does not create even a "limited purpose” public forum unless it intends, when it opens a non-traditional forum for public discourse, to permit a wide range of expressive activity.61 This reason¬ ing was correctly assailed by Justice Blackmun, who noted in dissent that it stood for the proposition that the charity drive was "not a limited public forum because the Government intended to limit the forum to a particular class of speakers.” 62 This effectively turned the public forum doctrine on its head: carried to its logical conclusion, it would make nearly all restrictions on speech self-justifying, since the very fact that the government had denied the plaintiff access could be invoked to prove that the government never intended to create a public forum.63 The Court manipulated

the public forum

definition by a similar

process in United States v. Albertini,64 which reversed a decision by the joined. Justice Brennan filed a dissenting opinion, in which Justices Marshall and Blackmun joined.

61. Id. at 804-05.

57. See 466 U.S. 813-14.

62. Id. at 813-14 (Blackmun, J., dissent¬ ing).

58. Id. at 814. 59. See § 12-23, supra. 60.

473

U.S.

ing opinion. Justices Marshall and Powell took no part in the decision of the case.

788

(1985).

Justice

O’Connor’s majority opinion was joined by Chief Justice Burger and Justices White and Rehnquist. Justice Blackmun dissent¬ ed, in an opinion joined by Justice Bren¬ nan. Justice Stevens also filed a dissent¬

63. Id. at 825. 64.

472

U.S.

675

(1985).

Justice

O’Connor wrote the opinion for the Court, in which Chief Justice Burger and Justices White, Blackmun, Powell, and Rehnquist joined. Justice Stevens filed a dissenting

§ 12-24

COMMUNICATION

AND

EXPRESSION

997

Ninth Circuit Court of Appeals that a peace activist, who had been barred from a military base nine years earlier for trespassing and destroying official Air Force documents, had a first amendment right to attend an "open house” at that same base. The circuit court found that portions of the military base constituted at least a temporary public forum, because the military had opened those areas to the public for purposes related to expression.65 The Supreme

Court disagreed, argu¬

ing that the "military [had not] so completely abandoned control of the base” that it became a public forum.66 This mode of reasoning, which allows the government itself to set the terms by which the public will be allowed to speak on the property, carries the same danger as Cornelius : where so much discretion is vested in the government, the forum itself can be defined in terms of viewpoint.67 The open house at the base featured displays of military aircraft, parachute jumps by Marines, Navy helicopter displays, and a Coast Guard rescue simula¬ tion. Against this backdrop of militarism, Albertini and his compan¬ ions sought to convey a different message: they gathered in front of a B-52 bomber display, unfurled a banner reading "Carnival of Death,” and passed out leaflets criticizing the nuclear arms race.68 Although the base commander may not in fact have acted out of a desire to suppress the content of Albertini’s speech, the Court’s analysis seems strikingly insensitive to this possibility. This again suggests that the cloud of doctrine to which the public forum debate has led needs to be cleared away, the better to expose what is actually at stake in the restrictions and regulations at issue. opinion, in which Marshall joined.

Justices Brennan

and

65. See 710 F.2d 1410, 1417 (9th Cir. 1983). Albertini also alleged that the ad¬ vertisements inviting the public onto the base provided him written permission to enter, satisfying the terms of his bar letter, and that enforcement of a 9-year-old letter violated due process. Id. at 1413. The Court of Appeals rejected the first conten¬ tion and found it unnecessary to consider the due process argument. Id. at 1413, 1417. 66. 472 U.S. at 686.

67. Two closely-related images from a

chusetts, 167 U.S. 43, 47 (1897) ("For the legislature absolutely or conditionally to

in his house”). The Court’s opinions in Greenburgh, Perry, Grace, and Vincent, for example, all quoted Adderley v. Flori¬ da, 385 U.S. 39, 47 (1966) (prison grounds not public forum), for the proposition that the government, "no less than a private owner of property, has the power to pre¬ serve the property under its control for the use to which it is lawfully dedicated.” See Vincent, 466 U.S. at 814 n. 31; Grace, 461 U.S. at 178; Perry, 460 U.S. at 46; Green¬ burgh, 453 U.S. at 129-30. For a fuller discussion of the influence of the notion of government as a proprietor, and the con¬ comitant right-privilege distinction, see § 11-5, supra, and L. Tribe, Constitutional Choices 203-10 (1985).

d di , e. ys us hlea ho sp di t n ha e e t op th e th d of e oflat u ip st s s ph ie ra vit og cti ot a nt ph e me th n er ok ov to g pt e ru th y dis l re d t . me an noId

bygone era, the right-privilege distinction and the notion of government as a proprie¬ pervade the Court’s tor or property-owner, recent treatment of the nonpublic forum issue. The Court has justified the wide latitude it affords the government in limit¬ ing access by characterizing the use of such forums as a kind of government subsidy that may be restricted in order to further state interests. See, e.g., Davis v. Massa¬

forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it

998

COMMUNICATION

§ 12-25.

Private

Forums:

From

AND

EXPRESSION

Shopping

Centers

Ch. 12 to the Media

In 1941 Professor Chafee identified what was to become among the most significant first amendment issues of the modern period: the need for affirmative governmental action to facilitate expression.1 Whether by allocating more public resources to cleaning up litter so that the poor may distribute their leaflets unimpeded, or by mandating that the mass media provide direct access to various speakers — clearly a more powerful remedy — a government committed to "'the widest possible dissemination of information” 2 may find it essential to impose burdens on some in order that others might hear or be heard. For if no one will rent an unpopular speaker a hall or print the speaker’s views, it may be of little use that government has not gone out if its way to muzzle the speech. Supreme Court decisions as early as 1939 3 had established the existence of a governmental duty to do more than merely refrain from censorship,4 and by 1945 the Court was saying that "[f]reedom of the press from governmental interference under the first amendment does not sanction repression of that freedom by private interests,” 5 with the clear suggestion that government may, and perhaps must, act positively to reduce such repression. At the same time, the "private interests” to which the Court referred have rights as well — both defensive rights, as illustrated by situations where attempts to protect privacy or reputation are chal¬ lenged as abridging the freedoms of speech or press; 6 and aggressive rights, as illustrated by situations where the owner of a building or a broadcast facility wishes to convey a message different from the messages that the building’s invitees, the broadcaster’s audience, or others, might wish to convey or to receive. In §§ 12-12 through 12-14, we examined the accommodation of these rights in conflict in the setting of damage actions for defamation or breach of privacy. Among the lessons to be drawn from that analysis is the simple but easily forgotten proposition that even ordina¬ ry legal rules, whether of defamation or of trespass, entail at least -25 § 12Speech 1. Z. Chafee, Free in the United States 559 (1941).

2. Associated Press v. United 326 U.S. 1, 20 (1945).

States,

3. See Schneider v. State, 308 U.S. 147 (1939), discussed in § 12-24, supra. 4. with been tions might some

See § 12-23, supra. Particularly respect to the press, the Court has careful to scrutinize government ac¬ that, while facially noncensorial, in application prove unduly burden¬ on publishers. See Minneapolis Star

v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983) (invalidating "use tax” on the cost of paper and ink products consumed in newspaper publication); Murdock v. Penn¬ sylvania, 319 U.S. 105 (1943) (invalidating potentially prohibitive fees for distributing literature). In addition, the Court has viewed

with suspicion "selective taxation

of the press — either singling out the press as a whole or targeting individual mem¬ bers of the press” — because it "poses a par¬ ticular danger of abuse by the State.” Ar¬ kansas Writers’ Project, Inc. v. Ragland, 107 S.Ct. 1722, 1727 (1987) (invalidating as violative of the press clause a state sales tax scheme that taxed general interest magazines but exempted newspapers and religious, professional, trade, and sports journals); see also Grosjean v. American Press Co., 297 U.S. 233, 250-51 (1936) (in¬ validating state tax on receipts of advertis¬ ing in newspapers with weekly circulation exceeding 20,000 copies; the tax seriously burdened news distribution and appeared to be aimed solely at opponents of Huey Long’s state administration). 5. Associated Press, 326 U.S. at 20. 6. See §§ 12-12 through 12-14, supra.

§ 12-25

COMMUNICATION

AND

EXPRESSION

999

implicit — and sometimes explicit — governmental choices as to how the competing claims of owners, speakers, listeners, and others are to be resolved.7 Those choices are no less attributable to government when embodied in common law than when expressed in statute or regula¬ tion.8 Thus, if the state’s rules of property and trespass are employed to permit a private corporation to prevent an individual, because of her religious or political views, from distributing literature to any of the inhabitants of a self-contained area in which they live and work, those rules violate the first and fourteenth amendments as clearly as if a government official had chosen to exclude the individual from a munici¬ pality on the same forbidden basis.9 When a homeowner is permitted, under the state’s property rules, to exclude individuals on ideological grounds, the rules are again subject to first and fourteenth amendment scrutiny but are valid because, as a substantive matter, the Constitution tolerates 10 (and may even compel n) placing the homeowner’s right to exclude unwanted views above the speaker’s desire to intrude them. Intermediate cases like those of privately owned shopping centers or, more clearly, migrant labor camps,12 require a similar form of analysis: in light of the degree to which the exchange of ideas or information is in fact inhibited by a particular allocation of exclusion¬ ary power under state law, and in light of the burdens on private individuals that would be entailed by a less inhibiting allocation (a less restrictive alternative), can first amendment principles tolerate the allocation that the state has chosen to enforce? Having initially approached that question with close attention to the inhibitions and burdens actually involved in specific cases,13 the Supreme Court later succumbed to the temptations of a mechanical jurisprudence, pronounc7. See Chapter 18, infra.

8. See, e.g., New York Times v. Sulli¬ van, 376 U.S. 254, 265 (1964) (tort law of recovery for defamation is state action sub¬ ject to first and fourteenth amendments); Shelley v. Kraemer, 334 U.S. 1 (1948) (rules for enforcing contracts restricting land sale constitute state action subject to fourteenth amendment). 9. See Marsh

v. Alabama,

326 U.S. 501

(1946) (when state law allows private own¬ er of "company town” to prevent distribu¬ tion of literature, first and fourteenth amendment rights of the distributors are violated).

10. See, e.g., Rowan

v. Post Office De¬

partment, 397 U.S. 728 (1970) (homeowner may be authorized to exclude unwanted mail).

11. See § 15-19, infra. C

o Council v. pa 12. See, e.g., Illinois mMigrant r eL 391 (7th Cir. Campbell Soup Co., 519 F.2d l 1975); Petersen v. Talisman oydSugar Corp., C or 478 F.2d 73, 82-83 (5th Cir. 1973):p.v "[T]here are no effective alternatives open. T to the an ne r, 40 7

plaintiffs for communicating with the [workers] other than through access to the living area of the labor camp.” See gener¬ ally Note, "First Amendment and the Problems of Access to Migrant Labor Camps After Lloyd Corporation v. Tan¬ ner,” 61 Cornell L.Rev. 560 (1976).

(e & n. 12 (1 56 55 U. 9 1 S m 6 7 , . pr th 6 wa th in 2) wh phaso ot at e 7 r g seiugh co o sh to th en esce azs¬ t e n u tr op te t il l e d y iy to th me rs r thpi co ha ei t n¬ eingb nva sds teve r r he ias y euyd st ir an si gter ferdie pu ha nde i r n d d de om nc bl sh eet the pirc su dbi wa owbut s iv e l v. Halks neding oCpop Ce an cerro ls at i u nt n .n el nt d r g to 5 U. NL er di 40 y (1 dw (r 97 a ef S. ral39 RB ) ng 7 r 2a us t f lo pa sm eq , ino ree ts )dja e al ua rk g sh ¬ wi ceen plr st te in sto t i t a n g rFe va wi t ir Lo op¬ Emh pi nd ce oso e t n i n t plI eV h Uc.al 39 Pdl 59 g nv.g tLeor n a o c S. az 1 0 ll gsa) y. a, ey(u rie,es of la 32 30 n, (1 g 8 9 b ph 2sh or owht prol pi , 23 to e6n8) soap¬ no neodt wh ter th ivdain wa picke ce f er teg s he ng te nt er pae wir wa e to coe ly erfs er an ¬ fe to un th ofct th st y th mmsuo tr d o i e on e iv ung re on y ihct s e iz at e) e .

1000

COMMUNICATION

AND

EXPRESSION

ing a rule akin to its often wooden approach in In Hudgens u. NLRB,15 a decision whose result than its rationale,16 the Court overruled Food 590 v. Logan Valley Plaza , /?ic.,17 and rejected

Ch. 12

the public forum area.14 may be more defensible Employees Union Local the right of individuals,

including laborers with a dispute related to a shopping center’s opera¬ tion, to enter a privately owned center against its owner’s wishes in order to lodge a peaceful protest. Part of what might be said for the Hudgens

outcome

is that the

"private property” interest that stood against the first amendment interest of the pickelers was itself linked to a first amendment concern, for the choice of "placing one’s property at the service of some ideolo¬ gies and not others” 18 arguably lies near the core of the "marketplace of ideas.” Indeed, when the Supreme Court in Wooley v. Maynard 19 struck down New Hampshire’s requirement that all drivers display the state motto "Live Free or Die” on their license plates, the Court observed that the state had compelled its citizens to " use their private property as . . . 'mobile billboard[s]’ for the State’s ideological mes¬ sage.” 20 It was not decisive that New Hampshire compelled no actual affirmation of belief,21 apparently permitting dissenting citizens to accompany the display of the motto with their own public disclaimers.22 14. See Greer v. Spock, 424 U.S. 828, 858-60 (1976) (Brennan, J., dissenting) (urging more flexible approach to issues of who may use a forum for wdiat purposes), discussed in § 12-24, supra.

privately owned areas of the shopping center would in fact inhibit their communi¬ cative opportunities.

15. 424 U.S. 507 (1976), overruling Lo¬ gan Valley Plaza, supra note 13, in a case factually closer to Lloyd v. Tanner, supra note 13. The Court in Hudgens concluded that Logan Valley Plaza and Lloyd were constitutionally irreconcilable, 424 U.S. at

picketers’ access to the audience they needed or wished to reach in the Hudgens case; as Justice White pointed out, for

518-20, and that the Court’s "institutional duty” was (for some unexplained reason) to follow the more recent case. Id. at 518.

aimed at one of the warehouses’ retail out¬ lets which was located at the center. 424

The Court’s further argument (1) that a shopping center either is or is not the "functional equivalent of a municipality,” (2) that if it is not the functional equivalent then the first amendment is irrelevant, and (3) that if it is the functional equiva¬ lent then the first amendment forbids dif¬ ferent treatment of war protesters (as in Logan Valley Plaza) and labor picketers (as in Lloyd v. Tanner), see id. at 520, seems mistaken. The first and fourteenth amendments should apply to test the state’s allocation of exclusionary power through its rules of property and trespass whether

or

not

the

shopping

center

is

"functionally equivalent” to a municipali¬ ty; the different treatment of the two pro¬ testing groups reflects not discrimination based on the content of their expression but discrimination based on the availabili¬ ty of alternative opportunities to reach the relevant audience: that the protesters in Lloyd had a war-related message and not a labor message to convey bears on the de¬ gree to which excluding them from the

16. It is not clear what impact exclu¬ sion from the shopping center had on the

example, the picketers’ dispute was with the operation of a warehouse not located at the center, although their picketing was

U.S. at 524-25 (concurring in result). In¬ deed, in none of the shopping center cases is the record wholly satisfactory on this issue, in part because the Court appears to have invited analysis more in terms of analogy to Marsh, v. Alabama, supra note 9, than in terms of the constitutional valid¬ ity of state property rules as applied to specific factual circumstances. 17. 391 U.S. 308 (1968). 18. Schauer, "Hudgens v. NLRB and the Problem of State Action in First Amendment Adjudication,” 61 Minn.L.Rev. 433, 449 (1977). 19. 430 U.S. v. 705 (1977). 20. Id. at 715 (emphasis added). 21. Compare West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (invalidating compulsory flag salute and compulsory recital of pledge of alle¬ giance), with 430 U.S. at 720 (Rehnquist, J., joined by Blackmun, J., dissenting). 22. See 430 U.S. at 722 (Rehnquist, J., joined by Blackmun, J., dissenting).

§ 12-25

COMMUNICATION

AND

1001

EXPRESSION

Being forced to devote one’s property to a display one finds offensive was enough to make out a first amendment violation. Shopping center owners who refuse to tolerate pickets with whose message they disagree are unable to make a similar claim. The Court held unanimously in PruneYard Shopping Center v. Robins 23 that a state may constitutionally force the owner of a private shopping center to permit individuals to exercise free speech on the shopping center’s property. As early as Hudgensy the Court had held that the NLRB could compel a shopping center owner to let picketers in,24 a position incompatible with the view that the owner’s refusal rests on a first amendment base. But several factors distinguish the shopping center from the automobile. First, when shopping center owners exclude picketers, the ability of such picketers to communicate their message to the audience they hope to affect may be greatly restricted; the state’s ability to display its motto is hardly impaired by selective refusals to serve as the motto’s vehicles.25 Furthermore, when the state itself does not dictate the content of the message that will be displayed, there is much less danger of governmental discrimination for or against partic¬ ular views.26 Next, a shopping center is, in a sense, inherently public; customers come and go as they please, by the very design of the owner. The views expressed by demonstrators are unlikely to be associated with those of the specific proprietor, and he or she is always able to post disclaimers.27 Given the historic function of newspapers and broadcasters as speakers in their own right as well as conveyers of the messages of others, the analogy to Wooley v. Maynard 28 is considerably less strained when one turns to attempts to subordinate the editorial rights of the print or electronic media to the first amendment rights of those with messages they wish to convey or of those with messages they wish to receive. In fact, the Court in Wooley relied in part on Miami Herald 23. 447 U.S. 74 (1980). See generally Comment, "PruneYard Progeny: StateCreated Free Speech Access to Quasi-Pub¬ lic Property,” 1984 Ann.Surv.Am.L. 121 (1985). 24. See 424 U.S. at 521.

Indeed, on

remand the NLRB did just that as a mat¬ ter of federal labor law. See Hudgens, 230 NLRB No. 73, 95 L.R.R.M. (BN A) 1351 (1977).

25. But this factor alone cannot be deci¬ sive. The Court has held, in a wide variety of contexts, that access guarantees are un¬ constitutional even if, without them, the targeted speakers have no effective alter¬ native by which to air their views. See, e.g., Pacific Gas & Elec. v. Pub. Util. Comm’n. of Cal., 106 S.Ct. 903 (1986) (deny¬ ing ratepayer organization access to utility billing envelope); Miami Herald Publish¬ ing Co. v. Tornillo, 418 U.S. 241 (1974) (invalidating right-of-reply statute).

26. See PruneYard, 447 U.S. at 87. For a general discussion of the dangers Tribe-Amer.Const.Law 2nd Ed. UTB — 24

in-

volved when government voices a particu¬ lar view in the marketplace, see § 12-4, supra.

27. See PruneYard,

447 U.S. at 87.

But see id. at 99 (Powell, J., concurring in part and in the judgment) (arguing that the owner’s '’right to refrain from speaking at all” is thereby infringed); Pacific Gas & Elec. v. Pub. Util. Comm’n. of Cal., 106 S.Ct. 903, 909 (1986) ("the State is not free ... to force appellant to respond to views that others may hold”). When the right of access is granted outright, however, rather than predicated on the owner’s behavior, the possible chilling effect seems slight. See Pacific Gas & Elec., 106 S.Ct. at 917-20 (Rehnquist, J., joined by White and Ste¬ vens, dissenting) ("PG & E cannot prevent the access by remaining silent or avoiding discussion of controversial subjects”). 28. 430 U.S. 705 (1977).

1002

COMMUNICATION

AND

EXPRESSION

Ch. 12

Publishing Co. v. Tornillo ,29 a decision which had unanimously upheld editorial rights over rights of access by invalidating a Florida statute that compelled newspapers to publish the replies of political candidates whom they had attacked.30 The Court reasoned both in Miami Herald v. Tornillo and in Wooley v. Maynard that the power to compel speech comes too close to the power to censor speech: both must be forbidden.31 Indeed, entrusting government with power to assure media access entails at least three dangers: 32 the danger of deterring those items of coverage that will trigger duties of affording access at the media’s expense; the danger of inviting manipulation of the media by whichev¬ er bureaucrats are entrusted to assure access; and the danger of escalating from access regulation to much more dubious exercises of governmental control. At the same time, not entrusting government with access-regulat¬ ing power entails its own counter-dangers, especially when a few powerful individuals or corporations control a central channel of com¬ munication, or when access to a communication channel is so struc¬ tured that only the wealthy can afford to exploit it.33 Stressing these counter-dangers, and omitting any reference to the tradition of unfet¬ tered editorial discretion for the print media, the Supreme Court in Red Lion Broadcasting Co. v. FCC 34 unanimously upheld the validity of FCC rules embodying two aspects of the fairness doctrine, the first requiring broadcasters to afford an opportunty to reply to personal attacks that they broadcast and the second requiring them to afford an opportunity to reply to their political editorials. Although the Red Lion decision did not imply FCC power to mandate or encourage broadcasters throughout the nation to pursue programming policies substantively satisfactory to government,35 and although Red Lion did not disturb the 29. 418 U.S. 241 (1974). See 430 U.S. at 714.

30. See generally B. Schmidt, Freedom of the Press v. Public Access 217-54 (1976); Abrams, "In Defense of Tornillo,” 86 Yale L.J. 361 (1976). Ironically, the Court de¬ cided Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), discussed in § 12-13, supra, on the same day as Miami Herald. The negli¬ gence standard of liability in private figure defamation cases established by Gertz ar¬ guably poses almost as great a threat to editorial autonomy as would guaranteed access statutes. See generally Baker,

33. See, e.g., Barron, "Access to the Press — A New First Amendment Right,” 80 Harv.L.Rev. 1641 (1967); Nimmer, "Is Freedom of the Press a Redundancy? What Does It Add to Freedom of Expres¬ sion?”, 26 Hast.L.J. 639, 644-46 (1975), sug¬ gesting that free speech and press can con¬ flict: "[T]he issue cannot be resolved merely by noting, as did [Miami Herald], that a right of reply statute 'constitutes the [state] exercise of editorial control and judgment.’ This is but one half of the equation. [Miami Herald] ignored the

and

strong conflicting claim of 'speech.’ ” Id. at 657. But see Lewis, "A Preferred Posi¬ tion for Journalism?”, 7 Hof.L.Rev. 595, 603 (1979) (contending that the issue in Miami Herald was compelled speech, not a possible conflict between the values of

Mass Communications 709-10 (1947): "If officials can tell newspapers what to put into their editorial pages, ... it is only a

speech and press). For a compendious re¬ view of the early literature, see Lange, "The Role of the Access Doctrine in the

step to tell them

Regulation of the Mass Media,” 52 N.Car. L.Rev. 1, 2 n. 5 (1973).

"Press Rights and Government Power to Structure the Press,” 34 U. Miami L.Rev. 819 (1980). 31. See 2 Z. Chafee, Government

what to leave out.”

32. See generally the excellent analysis in Bollinger, "Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media,” 75 Mich.L. Rev. 1, 29-31 (1976).

34. 395 U.S. 367 (1969).

35. But see B. Schmidt, Freedom of the Press v. Public Access 166 (1976) (Red Lion "left broadcaster autonomy

almost entirely

§ 12-25

COMMUNICATION

AND

EXPRESSION

1003

Court’s 1943 holding that radio licensees must exercise discretion independent of the national networks,36 the decision in Red Lion nonetheless amounted to a chain-breaking departure from the constitu¬ tional approach to newspapers and magazines.37 Still more striking indeed than Red Lion ’s failure even to mention the newspaper analogy was the absence of so much as a passing reference to Red Lion when the Court, in another unanimous opinion delivered five years later, invalidated Florida’s personal attack rule in Miami Co. v. Tornillo.38 The development

Herald Publishing

of the law in this area is simpler to summarize

than to comprehend. One must bear in mind Justice Holmes’ famous observation that "a page of history is worth a volume of logic.” 39 The advent of radio and television initially did require federal regulation to avert a cacophony of speakers on the airwaves, and the Court’s sensitiv¬ ity to first amendment values, combined with its layman’s attitude to technology, has led it to treat each medium of communication as ?'a law unto itself.” 40 Gutenberg, Marconi, and Bell gave us three distinct communications technologies, and the law has responded with a trifur¬ cated communications system: print, broadcasting, and common car¬ riage.41 The first amendment guarantee of freedom from government intrusion reigns most confidently in the realm of the print media, since newspapers and pamphlets were the most significant modes of mass communication in the world of the Framers.42 In the domain of the telegraph, telephone, computer, and postal network, the prevailing legal policy has been one of fair and universal access to the facilities of at the mercy of the FCC”). From the be¬ ginning, the federal government — by its li¬ censing practices and by rules directed at the substantive content of broadcasting — has strongly influenced what broadcasters have had to say. But the most comprehen¬ sive censorship is achieved without resort to formal mechanisms. It consists of elabo¬ rate systems of "self-regulation” which the broadcast industry imposes on itself, see Brenner,

"The Limits of Broadcast SelfRegulation Under the First Amendment,” 28 Fed.Com.B.J. 1 (1975), and which the FCC encourages. See Writers Guild of America v. FCC, 423 F.Supp. 1064 (C.D. Cal. 1976) (holding that first amendment was violated when FCC, national networks, and national professional associations jointly pressured local TV stations to set aside a "family hour” during which only programs suitable for children would be shown), vacated on other grounds, 609 F.2d 355 (9th Cir. 1979), cert denied 449 U.S. 824 (1980). Those systems are largely selfenforcing because the government has dedicated the airwaves predominantly to commercial use, see E. Barnouw, The Spon¬ sor: Notes on a Modern Potentate (1978), and commercial broadcasters are loathe to offend any significant segment of listeners, since advertising revenues are closely linked to Nielsen ratings. See The Report

of the Comm,

on Obscentity and Pornogra¬

phy 278-85 (1970).

36. National Broadcasting Co. v. United States, 319 U.S. 190, 204-06 (1943).

37. While the Court’s move was impor¬

tant doctrinally, the practical effects of the fairness doctrine have been disputed. See M. Yudof, When Government Speaks 294 (1983) (describing the doctrine’s supporters as "hopelessly optimistic”); Van Alstyne, "The Mobius Strip of the First Amend¬ ment,” 29 S.C.L.Rev. 539, 571 (1978) ("the technique of the fairness doctrine in partic¬ ular may represent a very trivial egalitari¬ an gain and a major first amendment loss”). 38. 418 U.S. 241 (1974).

39. New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

40. See, e.g., Metromedia, Inc. v. San Diego, 453 U.S. 490, 501 (1981) ("We deal here with the law of billboards”), discussed supra in §§ 12-23, 12-24.

41. I. de Sola Pool, Technologies of Freedom

2 (1983).

42. The same can be said of traditional forums such as pulpits, soap boxes, and public meetings. Id.

1004

COMMUNICATION

AND

EXPRESSION

Ch. 12

the "common carriers.” 43 The Constitution’s promise of free speech has eroded under this technological pressure: while the Framers fought a war precipitated in part by the Stamp Act,44 today’s telephone bills are subject to a special federal tax. The first amendment’s sweeping guarantees have been most com¬ promised in the realm of the most modern medium: electronic broad¬ casting. From the time of the Supreme Court’s 1943 decision that the FCC can constitutionally forbid radio licensees to sell time to the networks without retaining discretion over their own programming and can constitutionally select licensees in terms of their projected "service to the community,” 45 broadcast regulation has proceeded on the premise that, since government must somehow carve up the electromagnetic spectrum so as to prevent interference among broadcast frequencies, those who are permitted to use the public airwaves may be selected on criteria, and subjected to controls, that would be unacceptable in the case of the print media. In effect, the lucky few who are allowed to speak over the radio or television medium may be compelled to share their good fortune with others; it is "the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” 46 Since government "could surely have decreed that each frequency should be shared among all or some of those who wish to use it, each being assigned a portion of the broadcast day or . . . week,” 47 there could be no constitutional objection to compelling stations to set aside time for reply to personal attacks and political editorials. Without such compulsion, "station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views . . . , and to permit on the air only those with whom they agreed.” 48 Perhaps Congress could constitutionally require radio and televi¬ sion broadcasters to sell time for editorial advertising to the "highest bidders,” but it is unsurprising, given the sentiment quoted above from Red Lion , that the Court was unwilling, four years later in Columbia Broadcasting System , Inc. v. Democratic

National Committee ,49 to com¬

pel such a broadcast practice, or to hold the FCC’s refusal to compel it violative either of the Communications Act of 1934 or of the first amendment. With three Justices acting on the ground that the policy of not selling time for editorials was insufficiently attributable to 43. Id. 44. See Minneapolis

Star and Tribune

Co. v. Minnesota Comm’r. of Revenue, 460 U.S. 575 (1983) (striking down special tax on newspaper and ink as violative of free press clause); Grosjean v. American Press Co., 297 U.S. 233, 250 (1936) (tax on news¬ papers of large circulation invalid as "cal¬ culated device in the guise of a tax” to punish critics of Huey Long). This histori¬ cal reference is offered not as a dispositive argument, but as an illustration of how times and technologies have changed. Jus¬ tice O’Connor’s

dictum

in Minneapolis

Star, 460 U.S. at 583-4 n. 6 ("when Court has] evidence that a particular would have offended the Framers, [it not hesitated to invalidate it on

[the law has] that

ground alone”), is plainly overstated. 45. National Broadcasting Co. v. United States, 319 U.S. 190, 216 (1943). 46. Red Lion, 395 U.S. at 390. See also § 12-19, supra. 47. Id. (dictum). 48. Id. at 391-92. 49. 412 U.S. 94 (1973).

§ 12-25

COMMUNICATION

AND

EXPRESSION

1005

government for the first amendment to apply,50 and three on the ground that the policy, even if attributable to government, satisfied the first amendment,51 the Court rejected the suggestion 52 that it supple¬ ment the fairness doctrine upheld in Red Lion with a constitutional requirement that the electronic media sell at least some of their time for unedited discussion of public issues. Columbia

Broadcasting System took a step away from Red Lion by

its treatment of broadcasters as part of the '"press” with an important editorial function to perform rather than as analogous to the postal or telephone systems,53 but CBS was firmly in the Red Lion tradition when it refused to consider the possibility that either the technological¬ ly scarce radio and television channels, or the finite time available on such channels, might be allocated much as economically scarce newspa¬ per opportunities are allocated: by a combination of market mecha¬ nisms and chance rather than by government design coupled with broadcaster autonomy.54 The clear failure of the "technological scarci¬ ty” argument as applied to cable television 55 amounts to an invitation to reconsider the tension between the Supreme Court’s radically diver¬ gent approaches to the print and electronic media.56 Indeed, since the 50. Id. at 114-21 (Burger, C.J., joined on this point by Stewart and Rehnquist, JJ.). 51. Id. at 146-47 (White, J., concur¬ ring); id. at 147-48 (Blackmun, J., joined by Powell, J., concurring). Justice Stewart disagreed, insisting that, if broadcaster ac¬ tion were equivalent to governmental ac¬ tion, broadcasters would "inevitably [be] drawn to the position of common carriers.” Id. at 140 (concurring opinion). He found this a grave peril to first amendment val¬ ues, id. at 133, 140-41, 144-46, and was able to avoid the peril only by joining Chief Justice Burger’s conclusion that the chal¬ lenged policy was not governmental and hence was not subject to first amendment scrutiny. Justice Stewart appears to have been mistaken: to say that government is responsible for a particular action need not entail disregarding the private character and constitutional rights of the actor. See, e.g., Glennon & Nowak, "A Functional Analysis of the Fourteenth Amendment 'State Action’ Requirement,” 1976 Sup.Ct. Rev. 221, 256-57. See generally Chapter 18, infra. 52. See 412 U.S. at 182-201 (Brennan, J., joined by Marshall, J., dissenting). But the Court has permitted the FCC, on the basis of a congressional mandate, to en¬ force a right of "reasonable access” for political candidates, see CBS, Inc. v. FCC, 453 U.S. 367 (1981). 53. Id. at 124-25 (Burger, C.J., joined by White, Blackmun, Powell, Rehnquist, JJ., assimilating broadcast editors to the para¬ digm of newspaper editors).

54. See, e.g., Kalven, "Broadcasting, Public Policy and the First Amendment,”

10 J. Law & Econ. 15, 30-32 (1967); Coase, "Evaluation of Public Policy Relating to Radio and Television Broadcasting,” 41 J. Land & P.U.Econ. 161 (1965). 55. See, e.g., Home Box Office, Inc. v. FCC, 567 F.2d 9, 43-47 (D.C. Cir. 1977), cert, denied 434 U.S. 829 (1977) (rejecting content regulation of cable TV, noting that the "essential precondition” of broadcast regulation, physical interference and scar¬ city, is absent here). See also Wilkinson v. Jones, 107 S.Ct. 1559, summarily affg 800 F.2d 989 (10th Cir. 1986) (per curiam) (in¬ validating cable television indecency stat¬ ute), see § 12-18, supra. 56. The Court, in City of Los Angeles v. Preferred Communications, Inc., 106 S.Ct. 2034 (1986), explicitly left open the ques¬ tion whether cable television should be reg¬ ulated like newspapers or like television. The Court was faced only with the issue of whether cable television regulations might implicate first amendment interests; a lower court, by granting a Fed. R. Civ. P. 12(b)(6) motion, had answered in the nega¬ tive. Justice Blackmun summarized the task facing the Court in the future: "In assessing First Amendment claims con¬ cerning cable access, the Court must deter¬ mine whether the characteristics of cable television make it sufficiently analogous to another medium to warrant application of an already existing standard or whether those characteristics require a new analy¬ sis.” Id. at 2038 (Blackmun, J., joined by Marshall and O’Connor, concurring). The Court had earlier limited the FCC’s statu¬ tory authority to impose common carrierstyle regulations on the cable industry.

1006

COMMUNICATION

AND

EXPRESSION

Ch. 12

made little sense as a basis for distinguishing news¬ papers from television even in the late 1960’s and early 1970’s,57 such reconsideration seems long overdue.58 The Court in recent years, while conceding that "[t]he prevailing rationale for broadcast regulation based on spectrum scarcity has come under increasing criticism,” 59 has not abandoned the fairness doctrine.60 In 1984, the Court announced: scarcity argument

See FCC v. Midwest

Video Corp., 440 U.S.

689 (1979) (invalidating, as outside statuto¬ ry authority, FCC rules requiring certain cable operators to develop 20-channel ca¬ pacity; to make available certain channels for access by public, educational, local gov¬ ernment, and leased-access users; and to furnish equipment and facilities for access purposes): "The Commission may not regu¬ late cable systems as common carriers, just as it may not impose such obligations on television broadcasters.” Id. at 708-09. For an attempt at a functional first amend¬ ment classification of cable operators, see Berkshire Cablevision of Rhode Island v. Burke, 571 F.Supp. 976 (D.R.I. 1983) (up¬ holding mandatory access rules), judgment vacated on other grounds, 773 F.2d 382 (1st Cir. 1985). See generally Mininberg, "Cir¬ cumstances Within Our Control: Promot¬ ing Freedom of Expression Through Cable Television,” 11 Hastings (1984).

Const.L.Q. 551

57. See Bollinger, "Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media,” 75 Mich.L.Rev. 1, 10-11, 15 (1976). See

state may regulate the use of that scarce resource to keep a monopoly from bom¬ barding the public exclusively with its point of view. See id. at 542-43. 59. FCC v. League of Women Voters, 468 U.S. 364, 376 n. 11 (1984) (invalidating statute that prohibited political editorializ¬ ing by federally-funded public broadcasting stations). The Court made clear that the government’s interest in ensuring balanced coverage of matters of public interest was not unlimited. "[Broadcasters are en¬ gaged in a vital and independent form of communicative activity. As a result, the First Amendment must inform and give shape to the manner in which Congress exercises its regulatory power in this area.” Id. at 377. See CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981) (upholding FCC administration of a statutory provision guaranteeing "reasonable” access to the airwaves for federal election candidates): "[Broadcasters are entitled under the First Amendment to exercise the 'widest jour¬ nalistic freedom consistent with their pub¬ lic [duties].’ ” For the view that the Court in CBS v. FCC gave short shrift to this

also Fowler and Brenner, "A Marketplace Approach to Broadcast Regulation,” 60 Tex.L.Rev. 207, 221-26 (1982) (with the ad¬ vent of cable and satellite television tech¬ nology, communities now have access to such a wide variety of stations that the scarcity doctrine is obsolete); The Supreme Court, 1980 Term, 95 Harv.L.Rev. 93, 228

sweeping see Polsby, "Candidate Access to language, the Air: The Uncertain Future

& n. 39 (1981) (noting that "the economic realities of today’s newspaper industry make the supply of significant sources of information in the print media even more

discussed in §§ 12-18, 12-19, supra. There, the Court focused on certain physi¬ cal characteristics of broadcasting — specifi¬ cally, its uniquely pervasive presence, which prevents listeners who may be of¬ fended by indecent language from receiv¬ ing any prior warning, and the ease with which children may gain access to the me¬ dium, creating a risk that they may be exposed to offensive expression without pa¬ rental supervision. See id. at 748-49. The FCC has extended its definition of indecent

limited [than in the broadcast media]”). For a detailed critique of the scarcity ratio¬ nale, see M. Spitzer, Seven Dirty Words and Six Other Stories 7-42 (1986) (conclud¬ ing that the content of broadcast material should not be more strictly regulated than that of print). 58. See, e.g., Karst, "Equality as a Cen¬ tral Principle in the First Amendment,” 43 U.Chi.L.Rev. 20, 49-61 (1975), arguing that

of Broadcaster Rev. 223.

Discretion,” 1981 Sup.Ct.

60. Neither has the Court limited the FCC’s power to regulate broadcasts con¬ taining indecent language. See FCC v. Pacifica Foundation, 438 U.S. 726 (1978),

Red Lion is a "shaky” precedent. The Court has been unwilling to extend this

language to include any material "that de¬ picts or describes, in terms patently offen¬ sive as measured by contemporary commu¬ nity standards for the broadcast medium,

"limited spectrum” idea as a justification for a forced right of access. In Consolidat¬

sexual or excretory activities or organs,” whether or not such material includes the

ed Edison Co. v. Public Service Comm’n, 447 U.S. 530 (1980), for example, the Court rejected the argument that, because the limited space in a utility billing envelope is like the finite electromagnetic spectrum, a

"seven dirty words” of Pacifica. See "FCC Takes Actions on Regulation of Indecency and Obscenity,” FCC News, April 16, 1987, at 1 (quoting 56 F.C.C.2d 94, 98 (1975), quoted with approval in FCC v. Pacifica

§ 12-25

COMMUNICATION

AND

EXPRESSION

1007

"We are not prepared, however, to reconsider our longstanding ap¬ proach without some signal from Congress or the FCC that technologi¬ cal developments have advanced so far that some revision of the system of broadcast regulation may be required.” 61 The twentieth century technological revolution has fundamentally altered the map of our trifurcated communications system. The print¬ ing press has been replaced by the picture tube. The influence of the nation’s 1,730 daily newspapers is dwarfed by that of nearly 10,000 commercial and educational radio stations,62 not to mention the gargan¬ tuan television networks with their myriad affiliates. The typical family is tuned into its TV for more than a third of its waking hours, and television has become the primary source of news for a majority of the population.63 By 1977, broadcasting had grown to the point where the average American consumed four times as many words through the airwaves as through newsprint, and the disparity is increasing.64 The trouble lies in the fact that, although these powerful new media have acquired the functions of the press, they have not yet obtained the rights of the press. The rate of technological change has outstripped the ability of the law, lurching from one precedent to another, to address new realities. Novel communications are pressed into service while still in their infancy, and the legal system’s initial encounters with these newborns have a lasting influence. As one astute observer has explained, "[technical laymen, such as judges, perceive the new technology in that early, clumsy form, which then becomes

their image of its nature, possibilities, and use. This percep¬ tion is an incubus on later understanding.” 65

Foundation, 438 U.S. 726, 732 (1978) ). On this basis, the Commission in the spring of 1987 threatened enforcement actions — ranging from fines of $2,000 per day to revocation of a broadcaster’s license to op¬ erate — against one amateur broadcaster and three commercial radio stations, in¬ cluding WYSP-FM in Philadelphia for its airing of the Howard Stern show. See "FCC Takes Actions,” supra. In addition, the FCC warned that "airing indecent mat¬ ter after 10:00 p.m. does not necessarily render the broadcast permissible” because "recent evidence indicates that, at least on weekends, there is still a reasonable risk that children are in the listening audience at that hour.”

Id. at 2.

re FC Th n. 11 at 37 U. 46 S. c 6 8 . e C se entTh do fa th ab ct e lye ir o e 5, 19rin at 1, col 6. Anues Ti Ne lishYo 8 e me gs w edrk . s, ha . lo in be7, , mo Co Th n en d e of Pvrin Nog Se dmimi th at opg re ss ti e os ct io In re Re ceor Mo Ru e io n di p l e n. At fi Ed d Po an of tehm Pe a l li ea r ca it d t (t1i o¬ 2t8ic ria Rukin son48 Fe ack 28 9o8n l 29 30al l es g al d.R 3 8 1 , O , D e F [G FC bl ); g. oc a i e ti C, of nBer tr 10 F. iga rLnic on C in 2 esen roaa ¬ s e 1 .C.2 s se a ld(]c a (1 14 6 f caos es te -m d 98 3 ntch 6) "w, r no lo ont be ad leua e as na gema h ¬ d f t li mi th ev ni at he air driinng oct r tte e st ne g,, ri r ss ne ra , ti ve

of policy, serves the public interest,” and inviting Congress to repeal it). In Mere¬ dith Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987), the D.C. Circuit held that the FCC, in light of this 1985 conclusion, must ex¬ plicitly consider an individual broadcast¬ er’s claim, asserted in defense to an FCC enforcement proceeding, that application of the fairness doctrine to it violates the first amendment. In the 100th Congress, Senator Packwood introduced S. 827, a bill to repeal the fairness doctrine, see 133 Cong.Rec. S3741 (daily ed. Mar. 24, 1987). But in the Senate at least, the doctrine enjoys substantial support. By a vote of 59-31, the Senate approved the Fairness in Broadcasting Act, a measure co-3ponsored by Senators Hollings and Danforth that codifies the fairness doctrine. See 133 Cong.Rec. S5218-S5232 (daily ed. April 21, 1987). The bill was later vetoed by Presi¬ dent Reagan. 62. See Kaufman, "Reassessing the Fairness Doctrine,” N.Y. Times Magazine 17, 18 (June 19, 1983). 63. Id. at 17. 64. I. de Sola Pool, Technologies Freedom 21 (1983). 65. Id. at 7.

of

1008

COMMUNICATION

The response to cable TV adherence to arguably outmoded

AND

Ch. 12

EXPRESSION

is an example of how unreflective doctrines can threaten the expansion

of first amendment freedoms made possible by new technologies.66 In Loretto v. Teleprompter Manhattan CATV Corp .,67 the Court struck down a New York law which granted cable companies easy access to apartment-dwelling

customers

as an unconstitutional

taking of the

landlord’s property.68 The law was passed by the New York legislature in the face of fee-gouging by landlords in order to ensure tenants access to an important new medium of receiving — and perhaps sending — messages.69 The state court held that the law was a legitimate exercise of the police power, since it served the public purpose of "rapid development of and maximum penetration by a means of communica¬ tion which has important educational and community aspects,” 70 and the Teleprompter majority conceded that it had no reason to question that judgment. But the Court nonetheless held that, regardless of the public interests at stake, government authorization of a "permanent, physical occupation” — even of the most trivial kind71 — amounts to an unconstitutional taking. Apparently, CBS can be compelled to allow a political candidate to use its broadcast facilities to reach viewers, but Jean Loretto cannot be ordered to permit cable TV companies to reach her tenants. Yet the rights of the audience in each case seem indistin¬ guishable.72 In dissent, Justice Blackmun

accused the majority of slavish adher¬

ence to a "constitutional rule that is uniquely unsuited to the modern urban age.” 73 "The 19th-century precedents relied on by the Court,” he continued, "lack any vitality outside the agrarian context in which they were decided.” 74 The most significant feature of the Teleprompter decision is that the Court thought only in terms of the law of takings — the majority opinion never even mentioned the first amendment. A Court wedded to the inapposite doctrines of an irrelevant context is bound to be in for a jolt when it confronts still other problems presented by the explosion in communications technology. The pace of change may

soon render our trifurcated communications

66. This is not to say that new technolo¬ gies pose no dangers. Ample warnings to the contrary have been sounded. See P. Goodman, Growing Up Absurd (1960); T. Roszak, The Making of a Counter Culture (1969); P. Goldstene, The Collapse of Liber¬ al Empire (1977). The risks of a loss of community and of identification with medi¬ ating institutions make the Court’s re¬ sponse to the technological explosion all the more important. 67. 458 U.S. 419 (1982). 68. This aspect of the case is discussed in Chapter 9, supra. The implications of Teleprompter were narrowed by FCC v. Florida Power Corp., 107 S.Ct. 1107 (1987). 69. Id. at 444 n. 3 (Blackmun, J., joined by White and Brennan, JJ., dissenting). The legislature determined that "[i]n the electronic age, the landlord should not be able to preclude a tenant from obtaining CATV service (or to exact a surcharge for

structure —

allowing the service) any more than he could preclude a tenant from receiving mail or telegrams directed N.Y.2d 124, 141, 440 N.Y.S.2d N.E.2d 320, 328 (1981) (citing Cable TV by the State of New

to him.” 53 843, 851, 423 Regulation of York, Report

to the New York Public Service Comm’n. by Commissioner William K. Jones 207 (1981) ). 70. 458 U.S. at 425 (citation omitted). 71. The total amount of space occupied by the CATV installation amounted to IV2 cubic feet on the unused roof of the land¬ lord’s building. See id. at 437-38 n. 16. 72. The Court noted that the CATV company, not the tenants, had been given an enforceable right of access to the land¬ lord’s property. See 458 U.S. at 439. 73. Id. at 447 (Blackmun, J., dissent¬ ing). 74. Id. at 446.

COMMUNICATION

§ 12-25

AND

EXPRESSION

1009

print media, common carriers, broadcast media — obsolete.75 As com¬ puter terminals become ubiquitous and electronic publishing expands, the once obvious boundaries between newspapers and television, tele¬ phones and printing presses, become blurred.76 With all media using electronic forms of communications, the Court must face the fact that "[telecommunications policy is becoming communications policy.” 77 If the Teleprompter decision is any indication, the legalistic myopia which afflicted the Court’s decision could degenerate into acute astigmatism when the Court is forced to confront the convergence of three once distinct models of communications

regulation.78

Professor Lee Bollinger has argued in a perceptive essay79 that "the very similarity of the two major branches of the mass media provides a rationale for treating them differently,” 80 and that Congress’ decision to vindicate rights of access with respect to the electronic media but not the print media may be seen as simultaneously realizing two competing constitutional values: "access in a highly concentrated press and minimal governmental intervention.” 81 By regulating access in the electronic media exclusively, one achieves significant assurance that information not disseminated by the regulated (electronic) sector will be published by the unregulated (print) sector; and the competition provided by such publication should in turn help to offset any indirect tendency of access regulation to induce narrow or timid coverage within the regulated (electronic) sector.82 75. See I. de Sola Pool, Technologies of Freedom 232-34 (1983). 76. The distinction between "public” and "private” speech formulated in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), for example, is undermined by continuous online services which make credit information readily available to thousands of subscribers. 77. I. de ‘"ila Pool, Technologies Freedom, at 233.

of

78. This does not mean that the new technologies should, or constitutionally must, be deregulated. Indeed, we cannot depend upon those who own and control the new media to resolve the critical issues of access and responsible come from a iveness and cablecasters

availability in a publicly-

manner. "Newspapermen tradition of political combat¬ First Amendment principle; come from the tradition of

show business.” I. de Sola Pool, Technolo¬ gies of Freedom 239 (1983). If new path¬ ways of communication are controlled by mammoth communications conglomerates, we will hear not a diversity of tongues but only a few loud voices droning on with one common message. See Kaufman, "Reas¬ sessing the Fairness Doctrine,” N.Y. Times Magazine 17, 19 (June 19, 1983) (noting that "[n]ew technology alone . . . cannot guarantee a diversity of opinion if each communications outlet is flooded by pre¬ existing corporate communicators”). In this regard, FCC v. National Citizens

Comm,

for Broadcasting,

436

U.S. 775

(1978) (upholding FCC ban on joint owner¬ ship of radio or TV station and daily news¬ paper in same town), may represent an encouraging trend. Cf. Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985) (invalidating rules which required cable TV operators to transmit to their subscrib¬ ers every over-the-air television broadcast that was "significantly viewed in the com¬ munity”). For a discussion of the access issue, see Television generally Kreiss, of Cable and the"Deregulation Problem of Access Under the First Amendment,” 54 S. Cal. L. Rev. 1001 (1981); Lee, "Cable Franchising and the First Amendment,” 36 Vand.L.Rev. 867 (1983); Note, "Access to Cable Television: A Critique of the Affirm¬ ative Duty Theory of the First Amend¬ ment,” 70 Calif.L.Rev. 1393 (1982). 79. 75 Mich.L.Rev.

1 (1976). See also

Bollinger, "On the Legal Relationship Be¬ tween Old and New Technologies,” 26 Ger¬ man Yearbook of International Law 269 (1983). 80. 75 Mich.L.Rev.

at 36.

81. Id. 82. Id. at 32-33. Indeed, Bollinger maintains that Congress, even today, should be allowed to reverse its field and regulate newspapers, at least to some ex¬ tent, if it stops regulating broadcasters. Id. at 37.

1010

COMMUNICATION

AND

EXPRESSION

Ch. 12

It is conceivable that this argument could have been run in the opposite direction if Congress had chosen to leave the electronic media largely unregulated while legislating access to the print media instead. But the situations need not be quite symmetrical. Since each new medium tends to be widely perceived as "a law unto itself,” 83 the danger of escalating from a tolerable to an intolerable level of regula¬ tion may be minimized by initially focusing regulatory efforts on new technologies. If it is correct that "[a]ccess regulation in the print media would have immediately signified a pronounced break with traditional first amendment theory,” 84 with an attendant transformation in the boundaries of the legally thinkable and a corresponding increase in pressure to regulate still more deeply, then perhaps the initial selection of the electronic media as the regulated sector illustrates a way of exploiting new technology to permit regulatory experimentation while maintaining vital links with constitutional tradition.85 Even if first amendment concerns will eventually require a more candid equation between the new media and the old, with a consequent increase in broadcaster rights and a parallel diminution of newspaper rights, the juxtaposition of Red Lion and Tornillo may well represent an instructive if inadvertent paradigm for constitutional approaches to new technologies generally. § 12-26.

The

First Amendment

Freedom

of Association

Critics of the American Constitution as an unacceptably individual¬ istic document, one insufficiently sensitive to the social dimension of humanity and the communal dimension of society, will find at least a limited answer in the "freedom of association” that the Supreme Court has repeatedly described as among the preferred rights derived by implication from the first amendment’s guarantees of speech, press, petition, and assembly.1 For association in its communal sense — activity understandable only as it exists in the context of group experi¬ ence, as in a family or a commune, for example 2 — has recently begun to find a place in first amendment doctrine. Such association had been protected previously, if at all, only as an aspect of the less well 83. Kovacs v. Cooper, 336 U.S. 77, 97 (1949) (Jackson, J., concurring). See, e.g., Mutual Film Corp. v. Industrial Comm’n, 236 U.S. 230, 244 (1915) (film exhibition not entitled to first amendment protec¬ tion). Even after that view was retracted, see, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), the Court continued to uphold schemes for licensing films that would undoubtedly be struck down in the case of books. Compare Freedman v. Ma¬ ryland, 380 U.S. 51 (1965), and Times Film Corp. v. Chicago, 365 U.S. 43 (1961), with Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441 (1957). See § 12-36, infra. 84. Bollinger, supra note 57, at 21. 85. Id. at 25, 33-34. But see M. Spitzer, Seven Dirty Words and Six Other Stories 46-47 (1986) (criticizing Bollinger’s analy¬

sis). Print and broadcast, for example, are not fungible media. Millions cannot read, and many others strongly prefer broadcast for other reasons.

1. See, e.g., NAACP v. Claiborne Hard¬ ware Co., 458 U.S. 886 (1928); Buckley v. 12-26 Valeo, 424 U.S. §1 (1976); United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967); NAACP v. Button, 371 U.S. 415 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).

2. See, e.g., United States Dep’t of Agri¬ culture v. Moreno, 413 U.S. 528 (1973); New Jersey Welfare Rights Organization v. Cahill, 411 U.S. 619 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965).

§ 12-26

COMMUNICATION

AND

EXPRESSION

1011

pedigreed rights of privacy and personhood considered in Chapter 15. But, as we shall see, more recent developments portend an independent concern with association as such. If these developments continue, then believers in the richness and diversity of a pluralist society, where a variety of voluntary private associations and groups operate simultaneously to maximize opportuni¬ ties for self-realization and minimize the strength of centralized power,3 may begin to find comfort in the freedom of association. More

than a hundred

years ago, Alexis de Tocqueville observed

that the "most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them.” 4 It was for this reason that he thought the "right of association . . . almost as inalienable in its nature as the right of personal liberty.” 5 But the doctrine to which such a perception points — that "whatever action a person can [lawfully] pursue as an individual, freedom of association must ensure he can pursue with others” 6 — has only recently emerged in our constitutional law. Before Citizens Against Rent Control v. Berkeley ,7 the Supreme Court had quite consistently regarded arguments about freedom of association as reducible not to the question of whether those who act in concert are seeking together a goal they would be privileged to seek separately, but to the narrower question of whether the actors are seeking a goal independently protected by the first amendment— the Court’s focus being not on the right of association within the group but solely on the ends the group sought to attain.8 Nowhere is the point clearer than in the contrast between the Court’s careful scrutiny and frequent invalidation of state interference with group legal practice,9 Go

(19 R. Dah A Pre to 08) l, fac rn ; ( m Dem The H. Las Feou 195 k n¬ ory ocr ent 6);2 dat at of Sov (y1,9 C. 3 8 -4o3 D 21) Linions ic The ereInit f em ; genltl dbl oc raPr y i o ThegenGov (19 m,D. Tru cyo¬ c 6 e m e 5 ces )(;2d ed. 197an See als rTnhme Fed o s e 1, e No. 10, at 57 (J. )C.oo ed. 196 ntaFlroralisthe t 1). ke m plu vie pol par pro ¬ fes ralis ass wpoi soictica clu tiefsa,m ial l bs, sio t ili oci nt, easn, artei lab naluni org d olnisg or ons a n ,iou iza t e a pri , col oth n re tihoou ¬ lec s v tit er "to atelea thetiv ow fre lnisgv,ht and n l es e i i d exe ed wit the r atriees of the com i rci a h r i ten sean aut n so eff as to juspe¬ ect tif ce hor ive y ity " H it . . . sov lab For owe e¬of woreli Pol The ere and the N,at d: ng itic ure ory ign .9” ( Lib 67 alHar Mu 1 1 chh e v r of the953)W.es .tLh.o of thtey, pol a i Rubegv t a s bee an” osctica t v h h i nd et.tw is ew il l n een the vie tha latiinot ass si¬ ner t oci w mul wea med pub aut ati a hor ons nd tan ken iatelic thr t o the ind lef i e t ivi ty eat ousl o verp in the en griy See owRe. Nis The dQuuae For ir r bet lsst p. co For cr,i (19 Co mm t m 6 seenet H. vie ical ry mounni the plu 9). a¬ w r t Tyhe Dec alis of Ame poin Plu Kar r t lin iel r t a T. Low e The Endicaonf ,Lib lism (19 , e i ral , (19 61); ism 69) . ve

4. 1 A. de Tocqueville, Democracy America, 196 (P. Bradley, ed. 1945).

in

5. Id. 6. Raggi, "An Independent Right to Freedom of Association,” 12 Harv.Civ.Rts.Civ.Lib.L.Rev. 1, 15 (1977). 7. 454 U.S. 290 (1981). 8. For example, in Runyon v. McCrary, 427 U.S. 160, 175-76 (1976), the Court quite correctly rejected a freedom of associ¬ ation argument on behalf of racially segre¬ gated private academies and the parents who send their children to such academies, not on the plausible ground that individu¬ als and institutions have no right to do in concert that which is unlawful when done individually, but on the strikingly narrow ground that ending discriminatory admis¬ sion practices need not inhibit the teaching of any idea or dogma. See Raggi, supra note 6, at 26. 9. See United Transportation Union v. Michigan, 401 U.S. 576 (1971); United Mine Workers v. Illinois State Bar Associa¬ tion, 389 U.S. 217 (1967); Brotherhood of Railroad Trainmen v. Virginia ex rel. Vir¬ ginia State Bar, 377 U.S. 1 (1964); NAACP v. Button, 371 U.S. 415 (1963).

1012

COMMUNICATION

AND

EXPRESSION

Ch. 12

and the Court’s summary affirmance of a decision barely scrutinizing, and thus upholding, state interference with group medical practice.10 In both areas, the associational undertaking seemed indispensable to reasonably adequate service at a non-prohibitive cost; the only differ¬ ence was that health maintenance, and indeed survival, seemed to enjoy no special link to speech or petition, while litigation and lawyer¬ ing were obvious species of both.11 Not until Citizens Against Rent Control v. Berkeley 12 did the Court suggest that individuals acting in concert have an associational right to be as free to pursue lawful aims as they would if the same individuals pursued the same aims acting separately.13 In Citizens Against Rent Control , the city imposed a limit of $250 on individual contributions to committees formed to support or oppose referendum decisions; no such limitation on expenditures of an individual acting alone was imposed.14 Stating that such a limit could not validly have been imposed on solitary expenditures,16 the Court held this dichotomous situation un¬ constitutional: 'There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them. To place a Spartan limit— or indeed any limit — on individuals wishing to band together to advance their views on a ballot measure, while placing none on individuals acting alone , is 10. In Garcia v. Texas State Board of Medical Examiners, 421 U.S. 995 (1975), affg mem. 384 F.Supp. 434 (W.D.Tex.1974), the Court summarily affirmed a lower court decision upholding statutes which barred the operation of health mainte¬ nance organizations except where all deci¬ sions, non-medical as well as medical, were left with doctors. The plaintiffs were lowincome residents of San Antonio who had formed a consumer-controlled health main¬ tenance organization which planned by pooling its members’ resources to hire doc¬ tors on a salaried basis and thereby to lower the cost of medical care to its mem¬ bers. Because all doctor-controlled organi¬ zations existing in Texas delivered health care on a fee-for-service basis, the plaintiffs argued that only if consumers controlled non-medical decisions in such an organiza¬ tion would a non-fee-for-service plan be adopted. 11. See, e.g., NAACP v. Button, 371 U.S. 415, 430-31 (1963) (Harlan, J. dissent¬ ing): "Freedom of expression embraces more than the right of the individual to speak his mind. It includes also his right to advocate and his right to join with his fellows in an effort to make that advocacy effective . . . And just as it includes the right jointly to petition the legislature for redress of grievances . . . so it must in¬ clude the right to join together for pur¬ poses of obtaining judicial redress.” 12. 454 U.S. 290 (1981). 13. See also Roberts v. United

States

Jaycees, 468 U.S. 609, 623 (1984) ("An indi¬

vidual’s freedom to speak, worship, and to petition the Government for the redress of grievances could not be vigorously protect¬ ed from interference by the State unless a correlative freedom to engage in group ef¬ fort toward those ends were not also guar¬ anteed”). But both the Jaycees decision and the 7-0 ruling in Board of Directors of Rotary International v. Rotary Club of Du¬ arte, 107 S.Ct. 1940 (1987), in upholding state laws against all-male business estab¬ lishments (including clubs), made clear that associational rights provide no shield against otherwise valid anti-discrimination rules. 14. 454 U.S. at 296. 15. The Court endorsed its previous holding in Buckley v. Valeo, 424 U.S. 1 (1976), which struck down ceilings on polit¬ ical expenditures by individuals, even though the rationale of that holding, and its ability to endure, have been seriously questioned. See §§ 13-28, 13-29, infra. In Citizens Against Rent Control, the Court reaffirmed that "contributors cannot be protected from the possibility that others will make larger contributions.” 454 U.S. 290, 295 (1981). As to political contribu¬ tions under the circumstances of this case, the Court stated that Buckley permitted "limits on contributions to candidates and their committees” (emphasis added) but not "limitations on contributions to com¬ mittees formed to favor or oppose ballot

measures .” Court’s).

Id. at 297 (emphasis

the

§ 12-26

COMMUNICATION

AND

EXPRESSION

1013

clearly a restraint on the right of association. [The Berkeley ordi¬ nance] does not seek to mute the voice of one individual, and it cannot be allowed to hobble the collective expressions of a group.” 16 In Citizens Against Rent Control , the Court for the first time recognized constitutional protection of associational conduct not solely on the ground that the conduct was independently protected as speech or religion, but rather on the ground (at least in part) that the state had not sought to limit the conduct except when engaged in by persons banding together. What is nonetheless unclear is whether the princi¬ ple of that decision would in fact be extended to cases in which the conduct concededly could have been banned outright when engaged in by individuals. For example, the Court has upheld limitations on direct contributions to political candidates and their committees.17 Might it nevertheless strike down a statutory scheme that chooses not to restrict individual contributions to candidates, but does restrict group contributions to candidates? Part of the Court’s language in Citizens Against Rent Control — "[t]o place . . . any limit ... on individuals wishing to band together to advance their views on a ballot measure, while placing none on individuals acting alone, is clearly a restraint on the right of association” 18 — implies that the Court might well invalidate such a statutory scheme. However, the opinion could be read more narrowly since much of it focuses on the fact that limitations on contributions with respect to ballot measures are simply unconstitutional.19 On this view, Berkeley’s ordinance was struck down as unconstitutional whether applied to individuals or to groups — not solely because it restricted groups (as opposed to individuals) in a manner that penalized association as such. And, on this view, the hypothesized restriction on group contributions to candidates might be upheld. What the Court before Citizens Against Rent Control had recog¬ nized as implicit in the first amendment, and therefore in the liberty secured by the fourteenth, is a right to join with others to pursue goals independently protected by the first amendment — such as political advo¬ cacy,20 litigation (regarded as a form of advocacy),21 or religious wor16. Id. (emphasis added). In this case, the Court did not find an overriding gov¬ ernment interest that would justify in¬

18. Citizens Against Rent Control Berkeley, 454 U.S. 290, 296 (1981).

fringement on the group’s expressive asso¬ ciational rights. Rather, the goal that the City of Berkeley was allegedly seeking to

the view of the "Federal Courts of Appeals . . . that Buckley does not support limita¬ tions on contributions to committees

accomplish — "to make known the identity of supporters and opponents of ballot mea¬ sures ... [to prevent] individuals or cor¬ porations [who] speak through committees [from adopting] seductive names that may tend to conceal the true identity of the

formed to favor or oppose ballot measures.” Id. at 297 (emphasis the Court’s). 20. See, e.g., Cousins v. Wigoda, 419 U.S. 477 (1975) (autonomy of political par¬ ty); Tashjian v. Republican Party of Con¬ necticut, 107 S.Ct. 544 (1986) (right of polit¬ ical party to have non-members vote in its primary).

source” — was adequately achieved by an¬ other part of the ordinance that "requires publication of lists of contributors in ad¬ vance of the voting.” Id. at 298. 17. See Buckley v. Valeo, 424 U.S. 1, 26-27 (1976); Citizens Against Rent Con¬ trol v. Berkeley, 454 U.S. 290, 296-97 (1981).

19. Id. at 297-99.

v.

The Court endorsed

21. See, e.g., NAACP v. Button, 371 U.S. 415 (1963) (autonomy of group legal practice); In re Primus, 436 U.S. 412 (1978) (South Carolina’s application of its discipli¬ nary rules to an attorney’s solicitation by letter on behalf of the ACLU interferes

1014

COMMUNICATION

AND

EXPRESSION

Ch. 12

ship.22 Along with this positive right, the Court has also recognized its negative counterpart: the right not to join with others in their pursuit of such first amendment objectives.23 In striking down a state law that would have compelled the Democratic Party, at its National Conven¬ tion, to seat delegates chosen at a state primary that was open to non Democrats, the Supreme Court, quoting the first edition of this treatise, stressed that " '[f]reedom of association would prove an empty guaran¬ tee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association’s being.’ ” 24 But it would be a mistake to suppose that, unless Citizens Against Rent Control were extended to conduct altogether unprotected by the first amendment, "freedom of association” would add nothing whatever to rights otherwise protected. For one can at least imagine a legal system in which only the solitary pursuit of certain ends would be protected from majoritarian control by law — a system in which the very existence of group activity was thought sufficient to transform other¬ wise preferred rights into legally cognizable threats to the society as a whole. If the jurisprudence of freedom of association developed by the Supreme Court over the past four decades were to be summarized in a single sentence, it would be this: Ours is not such a system.25 To be sure, it is unclear how far the Court will carry its recently taken move in the opposite direction — toward a system in which concerted effort itself is seen as entitled to independent constitutional protection.28 But, however limited is our Constitution’s protection for the concerted with the freedom of political association granted by the first amendment). 22. See, e.g., Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976) (autonomy of religious hierarchy); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952) (same). 23. See also Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 1077 (1986) (holding constitutionally insufficient

24. Democratic Party of United States v. Wisconsin, 450 U.S. 107, 122 n. 22 (1981) (citation omitted). 25. That such a system was at least thinkable seems fairly clear. One thought¬ ful scholar has surmised that the Framers "had been so thoroughly educated by Rous¬ seau that they were fearful that the recog¬ nition of rights in associations would threaten not only the authority of govern¬

a union’s procedure to minimize risk that nonunion employees’ union dues might be temporarily used for support of political parties or political views); Roberts v. Unit¬ ed States Jaycees, 468 U.S. 609, 623 (1984)

ment but the liberty of individuals.” Howe, supra note 3, at 92. Compare the initial treatment of labor unions in Ameri¬ can law. See A. Blum, A History of the American Labor Movement (1972).

(dictum) ("Freedom of association . . . plainly presupposes a freedom not to asso¬ ciate”); Branti v. Finkel, 445 U.S. 507, 517 (1980) (discharging county public defenders solely on the basis of their lack of member¬

26. See, e.g., Citizens Against Rent Con¬ trol v. Berkeley, 454 U.S. 290, 294 (1981)

ship in the chief public defender’s party violated the subordinate public defenders associational rights); Abood v. Detroit Board of Education, 431 U.S. 209, 255 (1977) (requiring nonunion employees to support their collective bargaining agent in communication of ideas interferes with first amendment associational rights); Elrod v. Burns, 427 U.S. 347 (1976) (hold¬ ing violative of the first amendment the patronage practice in which a county sher¬ iff, on assuming office, would automatical¬ ly replace non-civil-service employees with members of his own party).

("[T]he practice of persons sharing common views banding together to achieve a com¬ mon end is deeply embedded in the Ameri¬ can political process. The 18th-century Committees of Correspondence and the pamphleteers were early examples of this phenomena (sic) and the Federalist Papers were perhaps the most significant and last¬ ing example. The tradition of volunteer committees for collective action has mani¬ fested itself in myriad community and pub¬ lic activities; in the political process it can focus on a candidate or on a ballot mea¬ sure. Its value is that by collective effort individuals can make their view known, when, individually, their voices would be faint or lost”).

COMMUNICATION

§ 12-26

AND

EXPRESSION

1015

pursuit of lawful but not especially "preferred” ends, at least it protects the concerted pursuit of those ends that would represent fundamental rights in the context of purely individual activity. Even if Citizens Against Rent Control were limited to situations in which the conduct at issue could not be banned when pursued individu¬ ally, an "abridgment of the first amendment freedom of association” could be defined as any insufficiently justified governmental rule, practice, or policy that interferes with or discourages a group’s pursuit of ends having special first amendment significance — such as literary expression, or political change, or religious worship. Government can abridge this implied first amendment freedom, and therefore be guilty of violating due process unless a showing of compelling necessity is made, in any of four ways: (1) directly punishing the fact cf member¬ ship in a group or association or the fact of attendance at a meeting of such a group or association; (2) intruding upon the internal organiza¬ tion, or integral activities, of an association or group, including its decisions of whom to include as members and its decisions as to which non-members to invite to take part in its processes; (3) withholding a privilege or benefit from the members of a group or association; and (4) compelling disclosure of a group’s membership or of an individual’s associational affiliations, either through a focused investigation or as part of a general disclosure rule, in circumstances where anonymity is likely to prove important to the continued viability of various associa¬ tional ties. The most obvious cases are those in which government seeks to outlaw an association or to punish the bare fact of affiliation with it. In these cases, the governing constitutional principle is twofold. First, an association or organization cannot be made illegal, whether on a conspiracy theory or otherwise, in the absence of a clear showing that the group is actively engaged in lawless conduct, or in such incitement to lawless action as would itself be punishable as a clear and present danger of harm that more speech could not avoid.27 And second, an individual cannot be punished for joining, associating with, or attending meetings of, an association or organization unless the association meets the first requirement and the individual is shown to have affiliated with it (a) with knowledge of its illegality, and (b) with the specific intent of furthering its illegal aims by such affiliation.28 Although each of these requirements took time to evolve,29 all are now firmly fixed as elements of first amendment jurisprudence.30 27. In Noto v. United States, 367 U.S. 290, 297-98 (1961), the Court reversed a conviction for membership in the Commu¬ nist Party because the evidence did not suffice to establish that the Party had en¬ gaged in unlawful advocacy. See § 12-9, supra. 28. See Elfbrandt v. Russell, 384 U.S. 11 (1966).

ca

ti

on

As s

s’

n

v. Do ud s,

33

9

U.

S.

38

2

(1

95

0)

(upholding federal statute requiring union officers, as condition of access to NLRB, to file affidavits of non-membership in organi¬ zations believing in violent overthrow), ef¬ fectively overruled by United States v. Brown, 381 U.S. 437 (1965), discussed in §§ 10-4 to 10-6, supra. 30. See § 12-9, supra.

1016

COMMUNICATION

AND

EXPRESSION

Ch. 12

Somewhat more difficult are those cases in which government makes no attempt to brand an association, or affiliation with it, as unlawful, but nonetheless interferes significantly either (a) with its internal structure or organization— -for example, by attempting to con¬ trol delegate seating procedures to a political convention,31 or by at¬ tempting to control defrocking procedures in a religious organiza¬ tion 32 — or (b) with an activity integral to the association in the sense that the association's protected purposes would be significantly frustrat¬ ed were the activity disallowed — as in the case of attempts to deny a campus organization the opportunity to use state college facilities to disseminate its views,33 or attempts to prevent labor unions from referring their members to union attorneys for assistance in litigation,34 or attempts to impose tort damages against boycotters who may cause injury to discriminatory businesses,35 or attempts to prevent a political party from seeking to broaden its appeal by including non-members in its primary election.36 In all such cases, the governmental interference violates the first and fourteenth amendments if it is justified only by marginal administrative concerns37 or by the existence of tional link to a group with a history of illegal or disruptive Such governmental interference also violates the first and amendments even if it is justified by a legitimate objective,

an associabehavior.38 fourteenth such as the

avoidance of conflicts of interest in attorney-client relationships, unless government shows that a serious impairment of the objective would

con at suc inv (19 te 75) t ali h m ofdathe pr by a , sta potf a nat rol o ed ted te ion ce Pa al anddur De con pol rt m i es oc 4 U Stvaenti v. Wis of Utniical ra50 .S 10y7 ti tes on c ted cco . a tha , a sta onsi ca hel (19 mp 81) te n, nno t d cheol to sea a del t par nat , t ty ion ega se rul n the ptairon tha vio in a maal n latS als FEty’s v. Nesa.¬ intf Se § 1n3e-r e e s e e o A C ra. Po Co Co 22, tio ct l n m¬ iti nal io se n (19cal (in 48 47 rvU.S mit 0 at . 0 va 85) te iv l on leixdpa fed e, sta e im e i etnidn t act tati co tur ral by polutor idgi¬s¬ m iti y es ion ons mi But ttseee Fed inf in § 13-cal cus 29, sed es era ra. lt R)i, v. Na Co El gh ( o ti 1 mm ( U 4 Woecti Co t o up¬ 59 .S. na97 198 ’n r o m 2s)t of feld hol k n comnitt atu era stiee d tbe y of con soltu, res ing l ictiio tri tri to cap a coct twainttal b s rping ihoinoty ita dutiotock, i o me ra of tha cor ut n l isc ns, mb ti t por u o e s ati s 4 v C Ma § 13- rs infn on) . han ed 42 rc r 2 a 9 a 19 hi (19 , (u ey 19; 1,9 U. 7, 1, S. ph , 9 or 79 ol o ) ma dinpol tha eac re sta jco qhu i t t h e c s a p c tat al ’sart orns g ti¬ aivree . W om m e y i m ig i in sotrid eac of two per enfro tctou od t m enet ne h son a, suyc, as ele gr fun vsar to pe 41 rf ct¬ iou cti h 9 U. in de orm s o c n p t t n on o he art s ati S. g leg a an yv’a ve47 ona on th¬e atned filli ca nt7 y s l no ncriee par ion tic s but ingm po q ket ty s to uiitrse or the wit sin res on the co , mm , me g pe h it c n t the tcsas act pur tee int par e v. Wi Pivairt froely De erna difty’s s mo i fer , l t m c e opne aycst; sin ined tha onl thcera int ¬r ti er i t y v anidti not th¬e co c na by the sta for mm l te e m exst aintte ot of de ele ed l h d cti ern e, er eg at on al es

functions, were

challenged), discussed in

§ 13-22, infra. 32. Serbian Eastern

Orthodox

Diocese

v. Milivojevich, 426 U.S. 696 (1976), invali¬ dated such attempted control by a state of the procedures of the Serbian Orthodox Church. See §§ 14-11, 14-14, 14-16, infra. 33. Healy v. James, 408 U.S. 169 (1972), invalidated such attempts by Central Con¬ necticut State College, which had sought to prevent a local chapter of Students for a Democratic Society (SDS) from holding meetings or otherwise organizing on cam¬ 34. Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 pus. U.S. 1 (1964), invalidated such attempts by a state which had sought to prevent a union from recommending lawyers of its choice to prosecute members’

personal in¬

jury claims. 35. NAACP v. Claiborne Hardware 458 U.S. 886 (1982).

Co.,

36. Tashjian v. Republican Party of Connecticut, 107 S.Ct. 544 (1986), discussed in § 13-22, infra. 37. See id. 38. See Healy v. James, 408 U.S. 169 (1972) (stressing that the local SDS chapter had been guilty of no misconduct but was being branded solely because of its affilia¬ tion with the national organization).

§ 12-26

COMMUNICATION

AND

EXPRESSION

1017

clearly occur in the absence of the challenged interference, and that no less intrusive regulation could prevent such impairment.39 The third set of cases, those in which associational ties are made the basis for denial of a governmental benefit or privilege, seemed to pose no problem as long as a sharp line could be drawn between rights and privileges.40 With the demise of that line,41 there arose the constitutional problem of governmental attempts to make nonmember¬ ship in disfavored associations a condition of various opportunities, or to condition such opportunities upon oaths of disaffiliation with such associations or their programs, or upon other sacrifices that could not be required, at least on pain of criminal punishment, of the populace generally. Shortly after the Civil War, in a pair of cases involving occupational restrictions upon former Confederate sympathizers,42 the Supreme Court began a line of doctrinal development that was to be interrupted for more than three-quarters of a century. Although the Court relied on the ex post facto and bill of attainder clauses to strike the restrictions down as punitive measures insufficiently related to occupational qualification,43 it was effectively holding that neither an individual’s beliefs nor an individual’s associations, without more, may be regarded as automatically disqualifying with respect to positions of significant public trust. In recent decades, the Court has fulfilled the promise of those early decisions by holding that mere membership in the Communist Party could not suffice to justify denial of an opportunity to practice law,44 to work in the merchant marine,45 to receive a security clearance,46 to travel abroad with the protection of a United States passport,47 to serve 39. See, e.g., United

Mine

Workers

v.

Illinois Bar Ass’n, 389 U.S. 217, 223-25 (1967). 40. See, e.g., McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892) (Holmes, J.) ("The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman”); Waugh v. Mississippi University, 237 U.S. 589, 596 (1915) (state may prevent students in public educational institutions from affiliating with fraterni¬ ties since "the right to attend” public uni¬ versities is not "absolute,” but "condition¬ al”).

41. Van Alstyne, "The Demise of the Right-Privilege Distinction in Constitution¬ al Law,” 81 Harv.L.Rev. 1439 (1968). See § 11-5, supra.

42. Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866) (invalidating denial of right to practice in federal courts for persons refus¬ ing or unable to swear absence of former Confederate sympathy); Cummings v. Mis¬ souri, 71 U.S. (4 Wall.) 277 (1866) (invali¬ dating denial of right to preach for persons refusing or unable to swear absence of for¬ mer Confederate sympathy).

43. See §§ 10-2, 10-4, supra. 44. See Schware v. Board of Bar Exam¬ iners, 353 U.S. 232 (1957), discussed in § 15-13, infra. 45. Schneider

v. Smith, 390 U.S. 17

(1968) (construing a federal statute narrow¬ ly so as not to support any congressional delegation to executive officials of the au¬ thority to condition employment on Ameri¬ can merchant vessels upon non-membership in the Communist Party). 46. Greene v. McElroy, 360 U.S. 474 (1959) (to avoid a constitutional question, the Court construed a federal statute as authorizing the Secretary of Defense to revoke security clearances — and thus indi¬ rectly deprive individuals of their jobs with defense contractors — only after adversary hearings in which the affected individuals were "afforded the safeguards of confronta¬ tion and cross-examination” as a protec¬ tion against false charges of subversive as¬ sociation). 47. Aptheker v. Secretary of State, 378 U.S. 500 (1964), discussed in § 15-14, infra.

1018

COMMUNICATION

AND

EXPRESSION

Ch. 12

as an officer or employee of a labor union,48 or to work in a defense facility.49 And of course membership in, or affiliation with, such other national organizations as Students for a Democratic Society cannot suffice to justify denial of similar opportunities.50 On the other hand, even membership in an otherwise protected association, or adherence to an otherwise protected belief, can in certain very limited settings justify denial of a governmental benefit. It is clear, for example, that persons who hate children and speak ill of them — something the first amendment protects even if without great enthusiasm— have no right to work for a public day care center.61 Just so, Democrats have no right to consideration on equal terms with Republicans when the newly elected Republican governor of a state is choosing a speechwriter or a high-level special assistant. Although there is no similar justification for making party membership decisive in filling the ranks of lower government posts,52 the argument for allowing ideological criteria at levels of high policy significance seems sufficiently compelling to withstand first amendment attack.53 More generally, those associational activities that are demonstrably incom¬ patible with the mission of a given public agency or calling may be forbidden — not on a theory that public servants lose their constitutional rights when they assume government duty, but on a theory that such rights cannot be defined independent of the contexts in which they are asserted. Thus the Court has held that "[pjartisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in repre¬ sentative government and employees themselves are to be sufficiently free from improper influences.” 54 48. United

States v. Brown,

381 U.S.

437 (1965), discussed in §§ 10-4, 10-5, su¬ pra. 49. United States v. Robel, 389 U.S. 258 (1967), discussed in § 12-33, infra. 50. Healy v. James, 408 U.S. 169 (1972) (denial of opportunity to use local campus facilities). See also § 15-17, infra. 51. Cf. Rankin

v. McPherson,

107 S.Ct.

2891, 2904-05 (1987) (Scalia, J., joined by

party than the newly appointed Public De¬ fender of Rockland County, New York). 53. Elrod, 427 U.S. at 367-368 (dictum). In Pickering v. Board of Education, 391 U.S. 563 (1968), the Court held that a teacher could not be dismissed for criticiz¬ ing the Board of Education. The Court noted, however, that the relationship be¬ tween the teacher and the Board did not involve "the kind of close working relation¬ ship for which it can persuasively be claimed that personal loyalty and confi¬ dence are necessary to their proper func¬

Rehnquist, C.J., and White and O’Connor, JJ., dissenting), discussed in § 12-18, su¬ pra; Hollon v. Pierce, 257 Cal.App.2d 468, 64 Cal.Rptr. 808 (3d Dist. 1967) (city may discharge school bus driver who believes in the religious sacrifice of children).

tioning.” Id. at 570.

52. See Elrod v. Burns, 427 U.S. 347 (1976) (holding violative of the first amend¬ ment the patronage practice in which the Sheriff of Cook County, Illinois, on assum¬ ing office from a Sheriff of a different political party, would automatically re¬ place non-civil-service employees with members of his own party); and Branti v. Finkel, 445 U.S. 507 (1980) (holding uncon¬ stitutional the firing of Assistant Public Defenders solely on the basis that they were affiliated with a different political

hibition of federal employees’ taking an "active part in political management or in political campaigns”); Broadrick v. Okla¬ homa, 413 U.S. 601 (1973) (upholding state regulation of political activities by state employees more stringent than the federal law). See also United Public Workers of America v. Mitchell, 330 U.S. 75 (1947) (upholding constitutionality of Hatch Act

54. United States Civil Service Commis¬ sion v. National Association of Letter Car¬ riers, 413 U.S. 548 (1973) (upholding a pro¬

limitations activities). on federal employees’ political

§ 12-26

COMMUNICATION

AND

EXPRESSION

1019

The fourth set of cases, in some respects the easiest and in others the most difficult, are those in which government purports to be outlawing no organization, interfering in no association’s internal struc¬ ture or activities, and withholding no benefit because of belief or association, but simply inquiring of an organization who its members are, or of an individual what organizations he or cases are easy from one perspective: anonymity nized as absolutely essential for the survival of the glare of public disclosure, so healthy in other in the context of protected but unpopular groups

she has joined.55 The has long been recog¬ dissident movements; settings, may operate or beliefs as a clarion

call to ostracism or worse.56 Thus the Court has had little difficulty recognizing, in such classic cases as Talley v. California ,57 NAACP v. Alabama ex rel. Patterson ,58 and Shelton v. Tucker ,59 that "compelled disclosure . . . may constitute a restraint on freedom of associa¬ tion.” 60 Recently the Court has taken even further steps toward protecting dissident political groups by holding unconstitutional as applied to the Socialist Workers Party a statute that required disclo¬ sure of campaign contributors and recipients of campaign disburse¬ ments and that would be perfectly constitutional as applied to more traditional political parties.61 But from another perspective the cases are hard: knowledge is highly valued in our society, and secrecy often seems the shield of dangerous and irresponsible designs. Perhaps because the tension between these two perspectives has been so con¬ stant, the decisions in this fourth area have not produced a body of doctrine as cogent as in the first three. Early cases, never quite 55. Since involvement in partisan poli¬ tics is close to the first amendment’s core, and since compelled disclosure of political affiliations or contributions "in itself can seriously infringe on privacy and belief guaranteed by the First Amendment,” Buckley v. Valeo, 424 U.S. 1, 64 (1976), the Court has upheld such compelled disclo¬ sure only when nothing less intrusive could serve compelling national needs, and particularly the integrity of political processes themselves. See id. at 66 (disclo¬ sure of campaign contributions), discussed in § 13-31, infra; Nixon v. Administrator of General Services, 433 U.S. 425, 467 (1977) (archival screening of former Presi¬ dent’s papers). 56. Talley v. California, 362 U.S. 60, 64-65 (1960).

57. Id. (upsetting convictions based on ordinance which banned the distribution of handbills which did not carry the name and address of the author, printer, and sponsor). 58. 357 U.S. 449, 463-65 (1958) (revers¬ ing civil contempt judgment against NAACP for refusing to disclose its mem¬ bership list; likely adverse effect on NAACP’s ability to survive in Alabama after disclosure held not sufficiently justi¬ fied by state’s alleged need for the list, given lack of substantial relevance of such

list to the inquiry allegedly making the list important — i.e., whether NAACP was do¬ ing business in state in violation of foreign corporation registration statute), discussed in § 15-17, infra. See also Bates v. Little Rock, 361 U.S. 516 (1960) (amendment to ordinance involving occupational license tax requiring membership lists of all orga¬ nizations held invalid where the state could claim no need for information based on state interest in matters of taxation); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961) (upholding temporary injunction restraining enforcement of stat¬ ute requiring certain not-for-profit organi¬ zations to file membership lists). 59. 364 U.S. 479 (1960) (invalidating as overbroad an Arkansas statute which re¬ quired each teacher in a state-supported school, as a condition of employment, to file annually a list of every organization to which the teacher belonged or made a con¬ tribution in the preceding five years). See § 12-31, infra. 60. NAACP v. Alabama ex rel. Patter¬ son, 357 U.S. 449, 462 (1958). 61. Brown v. Socialist Workers Party, 459 U.S. 87, 95 (1982), discussed in § 1331, infra. See Stone & Marshall, "Brown v. Socialist Workers: Inequality as a Com¬ mand of the First Amendment,” Rev. 583.

1983 S.Ct.

1020

COMMUNICATION

AND

EXPRESSION

repudiated, upheld state power to ascertain the membership

Ch. 12 of the Ku

Klux Klan62 and the Communist Party.63 Later cases, now clearly representing settled law, refused to permit suspicion of connection with the Communist Party to justify compelled disclosure of the membership of the NAACP.64 In a parallel vein, early cases upheld contempt convictions for refusing to answer legislative questions about past or present Communist Party membership,65 while later cases held such questions impermissible at least when the membership was other than extremely recent.66 Finally, in what might best be viewed as an intersection of this fourth area with that of conditioned government benefits, a complex and confused set of precedents permits denial of bar membership, and of the opportunity to practice law, on the basis of refusal to discuss Communist Party membership;67 but only where it is clear that such refusal represents unwillingness to cooperate with a proper inquiry68 62. New York ex rel. Bryant v. Zimmer¬ man, 278 U.S. 63 (1928) (upholding compul¬ sory disclosure of the membership list of the Ku Klux Klan on the theory that the requirement would deter illegal activities which the organization was tempted to un¬ dertake). 63. States ing a Party Board

Communist Party of the United v. SACB, 367 U.S. 1 (1961) (uphold¬ requirement that the Communist reveal its membership because the could and did rationally conclude

that the Communist Party was part of "a world-wide integrated movement which employs every combination of possible means, peaceful and violent, domestic and foreign, overt and clandestine, to destroy the government itself’). 64. Gibson v. Florida Legislative Inves¬ tigation Committee, 372 U.S. 539 (1963) (holding that the president of the NAACP’s Miami branch could not be required to provide a legislative committee with a list of members and contributors because the committee investigating alleged Commu¬ nist infiltration of the NAACP had no "ad¬ equate foundation” of evidence showing "a nexus between the NAACP and subversive activities” to justify the inquiry). See Kalven, The Negro and the First Amend¬ ment 105-120 (1966). 65. See Braden v. United States, 365 U.S. 431 (1961) (sustaining contempt con¬ viction for failing to reveal Communist Party membership to HU AC subcommittee investigating Communist infiltration of ba¬ sic industries in the South); Wilkinson v. United States, 365 U.S. 399 (1961) (same); Barenblatt v. United States, 360 U.S. 109 (1959) (sustaining contempt conviction for refusing to answer questions concerning alleged Communist infiltration into educa¬ tion). Cf. Uphaus v. Wyman, 360 U.S. 72 (1959) (upholding contempt conviction for refusing to produce list of guests attending

summer camp and discussion sponsored by World Fellowship, Inc., at behest of New Hampshire attorney general, acting on be¬ half of state legislature as one-man investi¬ gating committee). The unease with which the Court even in 1957 approached these cases is evidenced by the readiness with which it reached results contrary to these on highly attenuated procedural theories. See, e.g., Sweezy v. New Hampshire, 354 U.S. 234 (1957) (reversing contempt convic¬ tion for refusing to answer questions put by state attorney general since it could not be stated with sufficient certainty that the state legislature had asked the attorney general to gather the kinds of facts about which he had inquired); Watkins v. United States, 354 U.S. 178 (1957) (reversing con¬ viction for contempt of Congress since the defendant had not been accorded an ade¬ quate opportunity to determine whether the questions were within the scope of the committee’s authority). 66. See, e.g., DeGregory v. Attorney General, 383 U.S. 825, 829-30 (1966) (re¬ versing a contempt conviction for refusal to answer questions put in 1963 about Communist Party membership prior to 1957: "There is no showing whatsoever of present danger of sedition against the State itself, the only area to which the authority of the State extends”). 67. Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971) (bar examiners could require an an¬ swer to a two-part inquiry into whether an applicant was knowingly a member of an organization advocating the overthrow of the government by force or violence, and also specifically intended to further the group’s illegal goals). 68. See In re Anastaplo, 366 U.S. 82, 88 (1961) (holding that an Illinois applicant could be denied bar admission on account of his refusal to answer questions dealing

§ 12-26

COMMUNICATION

AND

EXPRESSION

1021

rather than a simple assertion of a right not to be disadvantaged solely because of party affiliation.69 A final complication is introduced by the fifth amendment privilege against compulsory self-incrimination, whose interaction with first amendment rights of association and belief has not always been clearly enough understood. So long as an individual’s questions might be employed by the questioning dence, or as leads to evidence, in a future criminal individual, the fifth amendment, applicable to the

answers to official jurisdiction as evi¬ prosecution of that states through the

fourteenth,70 confers a privilege to be silent.71 Exercise of such a privilege can neither be equated with guilt72 nor be treated as a forbidden failure to cooperate with a proper inquiry73 and used by government as the basis for adverse treatment, including denial of a with Communist Party membership): "An applicant will not be admitted to the prac¬ tice of law ... so long as, by refusing to answer material questions, he obstructs a bar examining committee in its proper functions of interrogating and cross-exam¬

nal trial). Nor may one be convicted for failure to register as a gambler, Marchetti v. United States, 390 U.S. 39 (1968), to register a firearm. Haynes v. United States, 390 U.S. 85 (1968), or to pay the transfer tax on marijuana, Leary v. United

ining him upon his qualifications”. 69. Baird v. State Bar of Arizona, 401 U.S. 1 (1971); In re Stolar, 401 U.S. 23 (1971). The theory appears to be that in¬ quiry into party membership as an end in itself would be forbidden, but that such inquiry is permissible as a first step toward determining whether the individual had joined an illegal organization with the req¬ uisite knowledge and intent; the individu¬ al who frustrates even this first step as a

States, 395 U.S. 6 (1969), where the infor¬ mation received by compliance with the requirement could be used in a federal or state prosecution.

means of preventing the permissible deter¬ mination may thus be penalized. 70. Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront Commission of New York, 378 U.S. 52 (1964). 71. See Lefkowitz v. Cunningham, 431 U.S. 801 (1977) (state cannot deny right to hold political party office solely because of refusal to testify or waive immunity); Spevack v. Klein, 385 U.S. 511 (1967) (law¬ yer may not be disbarred for professional misconduct when the only charge is that the lawyer claimed the fifth amendment privilege rather than produce financial records conceded to be unrelated to profes¬ sional conduct); Albertson v. SACB, 382 U.S. 70 (1965) (order directing named mem¬ bers of Communist Party held to violate privilege against self-incrimination where admission of Party membership would be evidence to prosecute the registrant for illegal membership). One who is forced by government to speak under the threat of discharge or some other disability may in¬ voke the fifth amendment privilege to ex¬ clude the testimony and its fruits at any future criminal trial, Garrity v. New Jersey, 385 U.S. 493 (1967) (evidence so secured must be deemed coerced and hence is constitutionally inadmissible in a crimi¬

72. See Slochower v. Board of Educa¬ tion, 350 U.S. 551 (1956) (finding unconsti¬ tutional a city college professor’s dismissal following the professor’s valid assertion of the fifth amendment privilege to block a congressional inquiry into his past Commu¬ nist Party activities). 73. Earlier decisions suggesting that as¬ sertion of the fifth amendment privilege may be the basis for adverse treatment on an insubordination theory, see Lerner v. Casey, 357 U.S. 468 (1958) (approving the dismissal as a "security risk” of a fifth amendment-invoking subway operator who had refused to answer his employer’s ques¬ tions concerning Communist Party mem¬ bership); accord, Nelson v. Los Angeles, 362 U.S. 1 (1960); Beilan v. Board of Edu¬ cation, 357 U.S. 399 (1958), plainly cannot survive the rationale of Gardner v. Broder¬ ick, 392 U.S. 273 (1968) (holding unconsti¬ tutional the dismissal of a policeman be¬ cause of his failure to sign a "waiver of immunity” from prosecution after being called before a grand jury investigating police misconduct in connection with ille¬ gal gambling), and Lefkowitz v. Turley, 414 U.S. 70 (1973) (holding unconstitutional law providing for cancellation of public contracts for contractors refusing to waive immunity when called to testify concern¬ ing their contracts). For a powerful (but rejected) argument that these latter deci¬ sions should not control the case of a high policymaking official, see Lefkowitz v. Cun¬ ningham, 431 U.S. 801, 810 (1977) (Stevens, J., dissenting).

1022

COMMUNICATION

AND

EXPRESSION

Ch. 12

public benefit.74 But once the individual has been promised immunity from future prosecutorial use of compelled answers or their fruit, refusal to answer questions closely linked to a legitimate interest of government may be punished, both criminally and civilly.75 This principle in no way entitles government, however, to insist on informa¬ tion probing with unjustifiable breadth into beliefs or associations; the protections of the first amendment are in no way reduced by the grant of an immunity sufficient to eliminate claims otherwise available under the fifth.76

§ 12-27* Overbreadth: Facial Invalidation Deterrent Effect

as the Response

to

A law is void on its face if it "does not aim specifically at evils

within the allowable area of [government]

control, but . . . sweeps

within its ambit other activities that constitute an exercise” of protect¬ ed expressive or associational rights.1 Such overbreadth analysis ordi¬ narily compares the statutory line defining burdened and unburdened conduct with the judicial line specifying activities protected and unpro¬ tected by the first amendment; if the statutory line includes conduct which the judicial line protects, the statute is overbroad and becomes eligible for invalidation on that ground. Of course, almost every law, such as the ordinary trespass ordinance reviewed in Marsh v. Ala¬ bama,2 is potentially applicable to constitutionally protected acts; that danger does not invalidate the law as such but merely invalidates its enforcement against protected activity. A plausible challenge to a law as void for overbreadth can be made only when (1) the protected activity is a significant part of the law’s target, and (2) there exists no satisfac¬ tory way of severing the law’s constitutional from its unconstitutional applications so as to excise the latter clearly in a single step from the law’s reach. 74. See, e.g., Spevack v. Klein, 385 U.S. 511 (1967) (opportunity to practice law); Lefkowitz v. Turley, 414 U.S. 70 (1973) (opportunity to serve as public contractor). 75. See Gardner

v. Broderick, 392 U.S.

273, 278 (1968) (dictum): A public employ¬ ee may be compelled to answer questions "specifically, directly, and narrowly relat¬ ing to the performance of his official du¬ ties,” if his answers or the fruits thereof cannot be used in a subsequent criminal prosecution. See also Uniformed Sanita¬

eting protected by the first amendment). See Board of Airport Commissioners of Los Angeles v. Jews for Jesus, Inc., 107 S.Ct. 2568 (1987) (unanimously invalidating rule which proscribed all "First Amendment activities” in airport terminal). See gener¬ ally Monaghan, "Overbreadth,” 1981 S.Ct. Rev. 1; Note, "The First Amendment Overbreadth Doctrine,” 83 Harv.L.Rev. 844 (1970).

76. The first amendment rights assert¬ ed in Shelton v. Tucker, 364 U.S. 479 (1960), and NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), for exam¬ ple, did not depend in any way on a risk of criminal prosecution.

2. 326 U.S. 501 (1946) (trespass statute held not enforceable against distribution of religious literature on streets of company town). See also Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (Sherman Act held not applicable to concerted lobbying activities of businessmen); NAACP v. Button, 371 U.S. 415 (1963) (state barratry law held not enforceable against NAACP activities

12-27 1. Thornhill v.§ Alabama, 310 U.S. 88, 97 (1940) (statute prohibiting all picketing void on its face since it bans peaceful pick¬

sponsoring litigation directed against seg¬ regation); United States v. Spock, 416 F.2d 165 (1st Cir. 1969) (conspiracy law held not enforceable against protected advocacy of opposition to Vietnam War).

tion Men Ass’n v. Comm’r 392 U.S. 280 (1968).

of Sanitation,

§ 12-27

COMMUNICATION

AND

EXPRESSION

1023

In laws having these two characteristics, the usual approach

of

constitutional adjudication-— gradually cutting away the unconstitution¬ al aspects of a statute by invalidating its improper applications case by case — does not respond sufficiently to the peculiarly vulnerable charac¬ ter of activities protected by the first amendment. For an "overbroad” law of the sort described here "hangs over [people’s] heads like a Sword of Damocles.” 3 That judges will ultimately rescue those whose conduct in retrospect is held protected is not enough, "for the value of a sword of Damocles is that it hangs — not that it drops.” 4 The resulting deterrent to protected speech is not effectively removed if "the contours of regulation would have to be hammered out case-by-case — and tested only by those hardy enough to risk criminal prosecution [or other sanctions] to determine the proper scope of regulation.” 5 The only solution, then, is to strike down such an overbroad law altogether until it is rewritten or until an appropriate court authoritatively narrows it. The overbreadth doctrine has often been understood as an excep¬ tion to the rule that individuals generally may not litigate the rights of third parties.6 As the Supreme

Court recently described the doctrine,

"an individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.” 7 But, at least outside the context of purely 3. Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting) (federal statute authorizing dismissal of tenured government employees for "such cause as will promote the efficiency of the service” should have been held an overbroad re¬

Tertii,” 88 Harv.L.Rev. cussed in § 3-19, supra.

423 (1974), dis¬

ant Fo ot ( 5 4 47 U. S. 91, 03 198 he r 2 r of Stici¬ se5) Se cas rel pa a e . to c i e r ef v. J s, Co. 4t6e H. Muet of Mray o 7 striction on civil servants’ free expression se ry nsary , on de rights). (g (19ph 94l7 an 95 U. S c ra 4 84)r ntto pr lar ry . an , din -59 e a li i ju 4. Id. d ef wh ng chofes to¬ onrc fu al sio gtai nd ic ls n nvie gr a h st on roaiv za o 5. Dombrowski v. Pfister, 380 U.S. 479, at entgaetaul seir u t e iond or nbgr fdr,te c pr n s, ga ea har oh o 487 (1965) (Brennan, J.), discussed in § 3fu m 25 niz of the nodt mo ita th sp ibi 30, supra. But the Court is prepared to h r nd a e % at e ir ra ndi ting on ade ble n s io xp assume that persons advertising goods or is ng mi n e ni 37 41 s n4s3e U. v. Bu NA ed services for a profit — i.e., commercial s s 5, S t 1 A . tro b to st 2-)3;3 (1 CP (e f ar n a a 9 n speakers — will indeed be hardy enough. , tu Br if it ptriv rat pr ma 63) be infor te oc U.S. 350, Bates v. State Bar of Arizona, 433 va ce ohe ry ivi y ke l i m bi r tt "w lege o f id ean ex 379--81 (1977) (holding advertisement of tsigh v. e er ercor no f . i.rst . thmten pe nghet d tas S e d ti is t ag h¬ lawyers’ fees protected but refusingpokto t m e en ion c ed v strike down ban on its face; overbreadthan in pr A co . t f e r . pth iv n eA S d 5 5 U 3 S o i u doctrine held inapplicable to commercial 00 ek 15 .S rcec le f tat ct 78 , ser -1 . e, pa”) m (1adreeta (c ged speech); San Francisco Arts & Athletics, uc 7 e ; 96 s, r om r mb ce o t 4 y y I t d s c f m ss p¬ er Inc. v. United States Olympic Committee, ull ) nhca. ta e h u ¬ n e n t s l , y m y i u le to osbt in as an ov ptae po 107 S.Ct. 2971, 2981 n. 15 (1987) (upholding n g er¬t fr osnsp th i gi ta brrtu o exclusive grant to U.S. Olympic Committee or e oa nit nfr ng in e ed p am ts tra d yse ing by fif uom ro¬ of the word "Olympic” and noting that Co e ce vel cl cure neeme noth pr end th s a t oa v n me at nsg "the application of the overbreadth doc¬ nouse had ed ennt co s ea n traes t u a v r t t s ld ct e ro trine [to commercial speech] is highly ques¬ wteh tr ute pr ed co av rei ns oh tionable.”) See § 12-15, supra. ieml re r th ibi Co In ab tit c e d u u r t en ma in rtdo b¬e pli oa thti the eeodv 6. See e.g., Barrows v. Jackson, 346 t a o c g d e y l , rb e ) tn tr in re y U.S. 249, 255 (1953); United States v. c i t em d . aolnl e g lyy f rheead ont pl of tthh es no be ulat th th ri vi oy Raines, 362 U.S. 17, 21-22 (1960); Note, ol e gh f os te t e i e An ore on v. oef Ldo Co ate d In Ci tsCo "Standing to Assert Constitutional Jus s t s un ge ur y ci le t. l s

1024

COMMUNICATION

AND

EXPRESSION

Ch. 12

anticipatory challenges, overbreadth doctrine does not in fact possess a distinctive standing component. Rather, the doctrine recognizes that, even '"under 'conventional5 standing principles, a litigant has always had the right to be judged in accordance with a constitutionally valid rule of law.55 8 When an act, or course of conduct, contains elements that would permit it to be penalized under a properly drawn rule, a conviction for that act or course of conduct, returned under a statute and a jury charge creating a substantial risk that the defendant has instead been punished on a forbidden basis, must be set aside. When an appellate court takes this step in a ruling that focuses on the forbidden breadth of the law under which the conviction was obtained, it may appear to be vindictating the rights of third parties,9 but is in fact doing no more than judging the party before it by a permissible standard. § 12-28.

Requiring Concern

Substantial Overbreadth: with Deterrence

The

Diminishing

Implicit in overbreadth analysis is the notion that a law should not be voided on its face unless its deterrence of protected activities is substantial. Thus the Court has not struck down on their face trespass, breach of the peace, or other ordinary criminal laws in which the number of instances in which these laws may be applied to protected Taxpayers for Vincent, 466 U.S. 789 (1984), the Court refused to entertain an over¬ breadth challenge to a city ordinance which prohibited the posting of signs on public property. The Court held that the overbreadth doctrine was not applicable because the record did not indicate that

intact.” Brockett, 472 U.S. at 504. For further discussion of standing require¬ ments and the overbreadth doctrine, see

the ordinance would have any greater im¬

9. For examples of overbreadth cases that involve parties seeking only to be judged in accordance with constitutionally valid rules of law, see Schad v. Mount

pact on any third parties’ interests in free speech than it had on the first amendment interests of the parties themselves. The Court stated that those "challenging the ordinance have simply failed to demon¬ strate a realistic danger that the ordinance will significantly compromise recognized First Amendment protections of individu¬ als not before the Court. It would there¬ fore be inappropriate in this case to enter¬ tain an overbreadth challenge to the ordinance.” Id. at 802. In short, the Court did not need — and thus did not em¬ ploy — the overbreadth doctrine in Vincent, a point elaborated upon in dicta from Brockett: Courts need not entertain an overbreadth challenge "where the parties challenging the statute are those who de¬ sire to engage in protected speech that the overbroad statute purports to punish, or who seek to publish both protected and unprotected material. There is then no want of a proper party to challenge the statute, no concern that the attack on the statute will be unduly delayed or protected speech discouraged. The statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left

§ 12-32, infra. 8. Monaghan,

supra note 1, at 3.

Ephraim, 452 U.S. 61 (1981) (reversing con¬ viction of adult bookstore owner for viola¬ tion of statute that banned all live en¬ tertainment); Gooding v. Wilson, 405 U.S. 518 (1972) (reversing conviction under stat¬ ute that penalized use of "opprobrious words or abusive language”); Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940) (one prosecuted under an overbroad anti-picket¬ ing statute "does not have to sustain the burden of demonstrating” that he could not have been convicted under a more narrownly drawn, constitutional statute cover¬ ing his activities). Cf. Brandenberg v. Ohio, 395 U.S. 444, 448-49 (1969) (per curiam) (convictions under state statute which forbade "advocat[ing] . . . the du¬ ty, necessity or propriety of crime, sabo¬ tage, violence or unlawful methods of ter¬ rorism” must be reversed because trial judge’s instructions to jury did not "refine[ ] the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.”)

§ 12-28

COMMUNICATION

AND

EXPRESSION

expression is small in comparison to the number

1025

of instances of unpro¬

tected behavior which are the law’s legitimate targets. A statute drafted narrowly to reflect a close nexus between the means chosen by the legislature and the permissible ends of government is thus not vulnerable on its face simply because occasional applications that go beyond constitutional bounds can be imagined.1 In Broadrick v. Oklahoma ,2 the Supreme Court made a strong version of the substantiality requirement explicit and extended it beyond the area of criminal laws barely touching on protected expres¬ sion: when a statute regulates "conduct” as opposed to "pure speech,” its "overbreadth. . . . must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” 3 State employees in Broadrick had challenged Oklahoma statutory provisions forbidding all civil service employees to engage in political fund-raising, belong to any political party committee, be an officer or member of any partisan political club, run for any paid public office, or take part in the management or affairs of any political party or campaign "except to exercise [the] right [as citizens] privately to express . . . opinion[s] and vote.” 4 Adopting a view that had been expressed in two dissents in 1971 5 and 1972, 6 the Broadrick majority conceded that the language of the state’s law seemed to reach such protected acts as wearing cam¬ paign buttons and displaying bumper stickers but held that such applications, although substantial in absolute number, were insubstan¬ tial when compared with the law's legitimate applications.1 For this reason the Court rejected the employees’ facial challenge. Recognizing that a "censorial statute, directed at particular groups or viewpoints” 8 and in that sense regulating "pure speech” 9 could not be saved from overbreadth invalidation by this process of offsetting valid applications against a substantial number of invalid ones, the Broadrick majority in effect treated the state’s regulation of political activity the way an ordinary trespass or theft statute might be treated. In those settings, however, a doctrine of "comparative substantiality” seems both una¬ voidable and unlikely to chill or deter much protected speech; to apply that approach to a law dealing with a sensitive area — one bristling with first amendment dangers — is to reject the very premise of overbreadth analysis, by allowing the "sword of Damocles” to hang over a signifi¬ cant range of protected, and yet easily deterred, choices.10 28 1. See, e.g., Cox§ 1v.2- Louisiana, 379 U.S. 559 (1965) (Cox II) (statute prohibiting pick¬ eting "near” courthouse upheld against overbreadth challenge and found to be a

"precise, narrowly drawn” regulation, but prosecution held unconstitutional as ap¬ plied to demonstration which police offi¬ cials had indicated was permissible). 2. 413 U.S. 601 (1973). 3. Id. at 615. 4. Id. at 602-07 & n. 1. 5. Coates v. Cincinnati, 402 U.S. 611, 617-21 (1971) (White, J., joined by Burger, C.J. and Blackmun, J.).

6. Gooding v. Wilson, 405 U.S. 518, 528-30 (1972) (Burger, C.J.). 7. Broadrick, 413 U.S. at 609-18. 8. Id. at 616. 9. See §§ 12-2, 12-7, supra. The Court has since made clear that the requirement of substantial overbreadth also applies to statutes involving "pure speech.” See New York v. Ferber, 458 U.S. 747, 770-71 (1982) (rejecting overbreadth challenge to state statute which prohibited distribution of de¬ pictions of sexual performances by children under the age of 16). 10. See Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting).

1026

COMMUNICATION

AND

EXPRESSION

Ch. 12

Underlying this shift in approach has been the skepticism of the Nixon appointees to the Supreme Court, joined by Justice White, toward the reality and significance of the deterrence caused by an overbroad law.11 This skepticism has been nurtured and reinforced by an institutional concern expressed by as ardent a believer in first amendment values as Justice Black. Writing for the majority in Younger v. Harris ,12 where the Court required federal judges to abstain from resolving first amendment issues while state prosecutions were pending,13 Justice Black opined that testing the constitutionality of a statute on its face is to some degree "fundamentally at odds with the function of the federal courts” to resolve concrete cases and controver¬ sies.14 But such a claim hardly supports the Court’s obviously trouble¬ some distinction between "pure speech” regulations and "conduct” regulations,15 and the plain effect of the Burger Court’s reluctance to assume the existence of a significant chilling of protected speech is to lift from government the traditionally heavy burden of proving that first amendment rights are not being infringed. Despite a facial appearance of infringement, the upshot is a mounting burden on the individual to show that the apparent inhibition of protected expression is in fact highly probable and socially significant.16 Recent cases demonstrate, however, that the Court has not aban¬ doned as much as refined the overbreadth doctrine. The key develop¬ ment has been the Court’s greater reluctance to strike a law down altogether because of its potential to deter protected expression, and its greater willingness to allow state courts to narrow statutes in the application process.17 For example, in New York v. Ferber 18, the Court upheld without dissent a criminal conviction under a state statute which prohibited the distribution of depictions of sexual performances by children under the age of 16. The Court acknowledged that books and films which depicted child pornography were "pure speech,” but still found that the overbreadth would have to be "substantial” in order to invalidate the law — even in the context of a retrospective challenge by someone convicted under it.19 The Court found no such overbreadth in Ferber , even though it acknowledged 11. See, e.g., Branzburg v. Hayes, 408 U.S. 665 (1972); Laird v. Tatum, 408 U.S. 1 (1972). 12. 401 U.S. 37 (1971).

that "some protected expres-

by Justice Marshall, filed an opinion con¬ curring in the judgment. Justice Blackmun concurred in the result. Justice Ste¬ vens also filed an opinion concurring in the

13. Id. at 43-54. See § 3-30, supra. 14. 401 U.S. at 52.

judgment.

15. See § 12-7, supra, and note 9, su¬

co in th Si su mi e p emlme ha re sp ra la the Co imrc a s e u lm rol rt b ch an ec . ini v y , h aatl by pe all ma co e,rb th tic wh ed e o i rm en nd re o q i sty iuf tah re se pat se ev isn ge u ct edt at st en or si s es r u bl atcio pter soh pr mi ic aly t y tivn s o o g m hi S v. Roi¬ e. e Fr tec ti ht byed oto e b g es e, g¬ he i i . t , t e e & n. 9 (d1 d (u 1 1 U 4 er s, 40 .S.rs. , 0-1 9a7 m p ho o th 9n)pr pr 1 la st in ld f at ac g oh e w ¬ v. Oh ti na a ibtr un op e ra ce de to me itade l4 in 43 U ) 4 Ba r As Oh me St g 6 t.S.; 4s7, i6k2 m s(’ & io n.try2a0te (1 r -6a ta ha hn,o 97 3y te t l 8 d so fo in a l)a di i l nrg s -p§ 1 wy S suici ti cip of cl er 2er ee als on l prta¬ i so 15 o en in a. n t , e s) .

pra. 16. Contrast Speiser v. Randall, 357 U.S. 513 (1958) (invalidating state proce¬ dure because it placed burden on individu¬ al to show that infringement on free speech was unjustified). 17. Monaghan,

supra note 1, at 21-22.

18.

747

458

U.S.

(1982).

Justice

White’s opinion was joined by Chief Justice Burger and Justices Powell, Rehnquist and O’Connor. Justice O’Connor filed a con¬ Id .a curring opinion. Justice Brennan, joined t7 70 -7 1; s

§ 12-28

COMMUNICATION

sion, ranging from medical

AND

1027

EXPRESSION

textbooks to pictorials in the National

Geographic,” could fall prey to the statute.20 Because the Court doubted that these "arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute’s reach,” 21 neither the conviction nor the statute were dis¬ turbed. In the same spirit, the Court has been increasingly willing to perform reconstructive surgery on overbroad statutes rather than elim¬ inate entire laws, and it has trusted the states to rehabilitate their laws without violating the Constitution. In Brockett v. Spokane Arcades , Inc .22, Justice White, writing for a 6 to 2 majority, reviewed a lower court decision which, in an anticipatory challenge brought for declara¬ tory and injunctive relief, had invalidated in its entirety a Washington statute aimed at preventing and punishing the publication of obscene material. The statute declared to be a "moral nuisance” any place "where lewd films are publicly exhibited as a regular course of busi¬ ness” and any place of business "in which lewd publications constitute a principal part of the stock in trade.” 23 The statute defined "lewd,” in part, as that which "appeals to the prurient interest.” The word "prurient,” in turn, was defined as "that which incites lasciviousness or lust.” 24 Shortly after the law went into effect, several sellers of sexually oriented books and movies sought a declaratory judgment that the statute was "overbroad” and an injunction preventing any prosecu¬ tions under it. The Court of Appeals for the Ninth Circuit held that, "by including 'lust’ in its definition of 'prurient,’ the Washington state legislature had intended the statute to reach material that merely stimulated normal sexual responses, material that it considered to be constitutionally protected. Because in its view the statute did not lend itself to a saving construction by a state court and any application of the statute would depend on a determination of obscenity by reference” to an overbroad standard, the Ninth Circuit declared the statute as a whole null and void.25 The Supreme Court reversed. The Court agreed that the law’s use of the word "lust” was unacceptably broad and that only "material whose predominant appeal is to a shameful or morbid interest in nudity, sex, or excretion” could permissibly be restricted.26 But the Court found the ban on materials that excite only "normal” lust to be 21. 458 U.S. at 773. in th cas at ba th t d mi e at he efe r gh e ha be co fo di nda ant r st nt y nv ve en pr ma ict Th carib wa th u se ut s ot te e e ini § 1 s ri f d di ect t c gn it 2ho ar e eid R 27 stinno d 9, su lso.m Si se v. n e , gtue mi pr g a Ti 4 64 lar(1 th Cno iIsnc aU e ur 1 ly984 me h.a, 68 ..S. t , b ) in up a l w p m , l , aw ro os, hi e ho h t ch ld cu of iUb.i re ph i St rr ng a c pr en cy otaog se de.ed ha odu ¬ gari c e l k l an inanpst rlele cti re in to alar th g n e juhi loat f d w aor ncc t r iegfe, a ons ouse pu y t d r a o n v iv g e thise re meblis be ienrbth ca indu¬ r a s e c c nt he a i¬ e or et rt use " d ca le readth of [t h t he a g t h ac h la ed 'd t itse ar itim im ap¬ w wa g p rf pl ] Id autab 65 ate ermqu Ne s . 4 lyU 1- a 7isot w Yoica v. Fe 7 t . 5 3s. iibn S.52, rb 8 rk ti er on lge , s’

22.

472

U.S.

491

(1985).

Justice

O’Connor, joined by Chief Justice Burger and Justice Rehnquist, filed a concurring opinion. Justice Brennan, joined by Jus¬ tice Marshall, filed a brief dissenting opin¬ ion. Justice Powell did not participate. 23. Id. at 493. 24. Id. at 494. 25. Id. See J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482 (9th Cir. 1984). 26. 472 U.S. at 498, quoting A.L.I. Model Penal Code, § 207.10(2) (Tent. Draft No. 6, 1957). See § 12-16, supra.

1028

COMMUNICATION

AND

EXPRESSION

Ch. 12

severable from the ban insofar as it reached genuinely obscene matter. Citing the well-established rule that "a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it,” 27 the Court was "unconvinced that the identified overbreadth is incurable and would taint all possible applications of the statute.” 28 Brockett presented the Court with a persuasive array of factors in favor of only partial invalidation of the statute: the law contained a plainly constitutional definition of obscenity in addition to the contested phrasing; it included a severability clause; and the state courts had not yet had the opportunity to construe the statute.29 Thus the Court’s decision to avoid the extreme remedy of total invalidation was eminently understandable.30 This is not to say, however, that the Court has removed facial invalidation of entire statutes from its arsenal whenever it can imagine some constitutional applications of the contested law. In Village of Schaumburg v. Citizens for a Better Environment ,31 the Court by an 8 to 1 vote struck down in its entirety a municipal ordinance which prohib¬ ited the solicitation of contributions by charitable organizations that did not use at least 75 percent of their receipts for "charitable” — i.e., non-administrative — purposes. Noting first the settled principle that charitable appeals for funds are within the protection of the first amendment,32 Justice White’s opinion for the Court held that the "75percent limitation is a direct and substantial limitation on protected activity that cannot be sustained unless it serves a sufficiently strong, subordinating interest that the Village is entitled to protect.” 33 The Court rejected the sole argument the Village offered in support of its ordinance: that any organization which uses more than 25-percent of its receipts for fundraising, salaries and overhead is actually a for-profit enterprise. The Court stated simply that "this cannot be true of those organizations that are primarily engaged in research, advocacy, or public education and that use their own paid staff to carry out these functions as well as to solicit public support.” 34 Finding no other rationale to support the ordinance and no logical point of severability, the Court had no choice but to strike the law down in full. 27. 472 U.S. at 501, citing, inter alia, Cantwell v. Connecticut, 310 U.S. 296 (1940), and Marsh v. Alabama, 326 U.S. 501 (1946). 28. 472 U.S. at 503. 29. Id. at 506 n. 14; id. at 491-510 (O’Connor, J., concurring). Though not proceeding in overbreadth terms, the Unit¬ ed States Court of Appeals for the Seventh Circuit, when rejecting in its entirety the Indianapolis "pornography” statute, raised but then rejected the possibility that part of the ordinance might stand. See Ameri¬ can Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), affd mem. 106 S.Ct. 1172 (1986). Despite the law’s "strong severability clause . . . [n]o con¬ struction or excision of particular terms could save it [because] the [law’s] definition

of 'pornography’ is unconstitutional.” 771 F.2d at 332. See also § 12-17, supra. 30. However, if a conviction had been obtained under the law in its broad form, under instructions permitting the jury to find obscenity without finding any appeal to abnormal lust, then the conviction would have to be reversed whether or not such a finding could have been made on the facts at hand. See § 12-27, supra. 31. 444 U.S. 620 (1980). Justice Rehnquist dissented. 32. Id. at 628-32, citing, inter alia, Schneider v. State, 308 U.S. 147 (1939), and Cantwell v. Connecticut, 310 U.S. 296 (1940). 33. 444 U.S. at 636. 34. Id. at 636-37.

§ 12-28 The

COMMUNICATION Court went

AND

EXPRESSION

1029

even further four years later in answering

a

question left open in Schaumburg : whether the "constitutional defi¬ ciencies in a percentage limitation on funds expended in solicitation are remedied

by the possibility of an administrative waiver of the limita¬

tion for a charity that can demonstrate financial necessity.” 35 Again, the Court found the restriction on charities unacceptably overbroad and invalidated it in full. Justice Blackmun’s opinion for the five-Justice majority in Secretary of State of Maryland v. Joseph H. Munson Co. found that the law was unlikely to prevent most forms of fraud and stated that "[i]t is equally likely that the statute will restrict First Amendment activity that results in high costs but is itself a part of the charity’s goal or that is simply attributable to the fact that the charity’s cause proves to be unpopular.” 36 The Court’s overbreadth analysis was both a testament to the doctrine’s vigor and an excellent study in its current application. The Court sought but could not find a "core of easily identifiable and constitutionally proscribable conduct that the statute prohibits.” 37 Thus the flaw in the statute was "not simply that it includes within its sweep some impermissible applications, but that in all its applications it operates on a fundamentally mistaken premise that high solicitation costs are an accurate measure

of fraud.” 38 Unlike the "lust” definition

attached to the state’s otherwise clearly permissible obscenity ban in Brockett ,39 the statute in Munson could not be trimmed of unconstitu¬ tional branches: it was rotten at its very root. 35. Joseph (1984), n. 9.

Secretary of State of Maryland v. H. Munson Co., 467 U.S. 947, 962 citing Schaumburg, 444 U.S. at 635 See § 12-24, supra.

36. 467 U.S. at 967.

Justice Stevens

filed a concurring opinion. Justice Rehnquist wrote a scathing dissent, which was joined by Chief Justice Burger and Justices Powell and O’Connor. Justice Rehnquist not only found the statute an unexception¬ able attempt by Maryland to control "the external, economic relations between char¬ ities and professional fundraisers,” id. at 979, but also took particular exception to the majority’s decision to declare the en¬ tire statute unconstitutional rather than invalidating it merely as applied to the parties in this case. Id. at 975-77.

37. Id. at 965-66. See also Houston v. Hill, 107 S.Ct. 2502, 2513 (1987) (invalidat¬ ing ordinance that forbade interrupting a

Ephraim, 452 U.S. 61 (1981), because the statute, which banned all live entertain¬ ment, was overbroad. Because the ordi¬ nance prohibited "a wide range of expres¬ sion that has long been held to be within the protections of the First and Fourteenth Amendments,” id. at 65, the defendants could not be convicted under it— even if, under another more narrowly drawn stat¬ ute, their own actions could permissibly be proscribed. In New York v. Ferber, 458 U.S. 747, 773 (1982), the Court later upheld a conviction for distribution of pornograph¬ ic depictions of children, even though it acknowledged that "some protected expres¬ sion . . . would fall prey to the statute.” Although the Court did not refer to Schad in Ferber, the two decisions may be harmo¬ nized by noting that the Court affords the type of speech at issue in Schad — live en¬ tertainment of all kinds — more generous protection than that at issue in Ferber — child pornography. See Ferber, 458 U.S. at 781 (Stevens, J., concurring in the judg¬ ment).

police officer in the course of duty; "[t]he enforceable portion of this ordinance is a general prohibition of speech that 'simply has no core’ of constitutionally unprotected expression to which it might be limited,” quoting Smith v. Goguen, 415 U.S. at 578). Similarly, the Court reversed the convic¬ tion of an adult bookstore owner for show¬ ing live nude dancing in Schad v. Mount

38. Munson, omitted).

467 U.S. at 966 (footnote

39. Brockett v. Spokane 472 U.S. 491, 503 (1985).

Arcades, Inc.,

1030

COMMUNICATION

§ 12-29.

AND

EXPRESSION

Ch. 12

The Limited Possibility of Judicial Reconstruction as an Alternative to Facial Invalidation: Trading Over¬ breadth for Vagueness Where First Amendment Privi¬ leges Cannot be Categorically Defined

When a court recognizes situations in which a law could be applied unconstitutionally, why does the court not simply promulgate a saving interpretation under its usual "duty to adopt that construction which will save the statute from constitutional infirmity”? 1 The answer is that a court can adopt an adequate saving construction only if the surviving portion of the statute clearly and unambiguously restricts conduct that is not privileged by the first amendment — and only such conduct. By pruning a statute of its overbroad sections, courts run the risk of leaving the remainder impermissibly vague. Consider first an example of permissible reconstruction of a statute or of a common-law rule: the Supreme Court's use of the New York Times Co. v. Sullivan 2 rule in lawsuits involving defamatory speech perfectly exemplifies the use of a categorical definition to distinguish expressive acts privileged by the first amendment (statements that are not deliberate or reckless falsehoods) from those open to government regulation; 3 rather than holding any state’s overbroad rule of liability for defamatory speech void on its face, the Court applies its categorical definition to excise the invalid applications of the state’s rule in a single step. Thus, in Time, Inc. v. Hill ,4 after holding that a judgment imposing civil liability on a publisher under a state’s "right to privacy” statute was rendered impermissible by the first amendment constraints of New York Times Co. v. Sullivan , the Court rejected an argument that "the statute should be declared unconstitutional on its face if construed by the New York courts to impose liability without proof of knowing or reckless falsity.” 5 While abiding by the general policy of refusing to substitute a Supreme Court interpretation of a state statute for that of the state’s own courts,6 Justice Brennan’s majority opinion indirectly achieved the same result — statutory reconstruction — by resting the 9 1. United States§ 12 v. -2 Delaware & Hudson Co., 213 U.S. 366, 407 (1909). See also Crowell v. Benson, 285 U.S. 22, 62 (1932); Ashwander v. TV A, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring). 2. 376 prohibits damages, famatory

U.S. 254 (1964) (first amendment a public official from recovering under state libel law, for a de¬ falsehood relating to his official

conduct unless he proves "actual malice”; that the statement was made with knowl¬ edge of its falsity or with reckless disre¬ gard of whether it was true or false), dis¬ cussed in § 12-12, supra.

Virginia, 421 U.S. 809 (1975) (newspaper advertisement of out-of-state abortion ser¬ vice held privileged); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (state prohibition of advertisement of drug prices invalid; "commercial speech” not wholly outside the scope of the first amendment privilege). See § 12-15, supra. 4. 385 U.S. 374 (1967). 5. Id. at 397. 6. See, e.g., Smiley v. Kansas, 196 U.S. 447, 455 (1905) ("the interpretation placed by the highest court of the State upon its

3. A categorical approach to distinguish privileged from unprivileged expression had also been taken in the commercial speech context, see, e.g., Valentine v.

statutes is conclusive” for the Supreme Court); cf. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499-500 (1941) (federal court abstention appropriate so that state courts may interpret unclear

Chrestensen, 316 U.S. 52 (1942) ("purely commercial advertising” not protected by the first amendment). But see Bigelow v.

state statute; "the last word” on the mean¬ ing of a state statute belongs to the state supreme court). See §§ 3-32, 3-40, supra.

§ 12-29

COMMUNICATION

AND

1031

EXPRESSION

Court’s refusal to invalidate the law as a whole upon the express expectation '"that the New York courts will apply the statute consis¬ tently with the constitutional command.” 7 The risk of introducing vagueness when attempting to reconstruct statutes reveals a structural relationship of general importance in the interplay of overbreadth and vagueness. This relationship is most sharply focused in a hypothetical statute: "It shall be a crime to say anything in public unless the speech is protected by the first and fourteenth amendments . ” This statute is guaranteed not to be over¬ broad since, by its terms, it literally forbids nothing that the Constitu¬ tion protects. The statute is nonetheless patently vague, although it is identical with the gloss Chief Justice Rehnquist would apparently put on every law in order to "save” it from an overbreadth challenge. In Arnett v. Kennedy ,8 he proposed to solve overbreadth problems by "construing” any challenged statute as excluding all constitutionally protected speech. The problem with that solution is that it simply exchanges overbreadth for vagueness.9 Indeed, the premise underlying any instance of facial invalidation for overbreadth must be that the Constitution does not, in and of itself, provide a bright enough line to guide primary conduct, and that a law whose reach into protected spheres is limited only by the background assurance that unconstitu¬ tional applications will eventually be set aside is a law that will deter too much that is in fact protected. The discussion of the risk of exchanging overbreadth for vagueness is not meant to show that these doctrines are somehow anomalous in first amendment

jurisprudence.

As Professor Monaghan

has observed,

"[i]n reviewing any case involving free expression, the Court invariably accepts the gloss the highest state court has placed on a state statute. To be sure, the statute, however narrowed in the state system, may still be constitutionally infirm; but any such defect is the product of substantive First Amendment principles rather than a special non¬ separability restriction imposed on the state courts by the First Amend¬ ment.” 10 The point is that courts must recognize that litigants are 7. Time, Inc. v. Hill, 385 U.S. at 397. See also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 507 (1985) (striking down only the impermissibly broad portion of a state statute regulating obscenity and find¬ ing that "the remainder of the statute re¬ tains its effectiveness as a regulation of obscenity"). Cf. New York v. Ferber, 458 U.S. 747, 773 (1982) (in upholding a state prohibition on child pornography, the Court "will not assume that the New York courts will widen the possibly invalid reach of the statute").

clearly stated to fall outside the reach of the restructured statute. Otherwise, the overbroad statute remains vague. See, e.g., Aptheker v. Secretary of State, 378 U.S. 500, 515-17 (1964) (" 'construing]’ " overbroad statute in order to find its "core of constitutionality” would inevitably in¬ ject an element of vagueness into its scope and application; "the plain words would thus become uncertain in meaning ... if courts proceeded on a case-by-case basis to separate out constitutional from unconsti¬ tutional areas of coverage”).

8. 416 U.S. 134, 158-63 (1974) (plurality opinion of Rehnquist, J., joined by Burger, C.J., and Stewart, J.).

v. in¬ w 8) la 94 (1 s s er nd fi ing nt w Wi 20 ro 9- ar t so51 n our al C e’s e 7, Se 50 outrht c , S. U.2. te ute ). -2 sta at gue 21 3 st va 3 of 1, 3 g in , pt rk ce l Yo ac . on ib v e ti ss .R ta i Ct n re rm p. w ve rp pe Su Ne (e te im

9. An overbroad statute can be given a saving construction only if it is possible to define a precise category of conduct privi¬ leged by the first amendment which can be

1032

COMMUNICATION

AND

EXPRESSION

Ch. 12

entitled to be judged according to permissible standards — both before and after courts decide to trim any provisions in a statute.

§ 12-30. Further Limits on the Use of Saving Constructions: Federalism and Separation-of-Powers Considerations Although a saving construction is possible in any area where the Court may draw on a precise categorical definition of first amendment privilege,1 considerations of the federal judicial role may prevent the Court from rehabilitating an unconstitutionally overbroad or vague statute. In dealing with state laws, the Court cannot simply substitute a saving reinterpretation of a statute for that authoritatively given the statute by the state’s highest court,2 although in such cases the Su¬ preme Court may of course decline to hold the statute facially void upon the expectation that the state’s courts will themselves give it the narrowing construction that the Court has said would save it.3 In cases involving federal laws, the Court is mindful that the lawmaking power lies with Congress, and that there is a difference between adopting a saving construction and rewriting legislation alto¬ gether.4 This difference was recognized most dramatically in Marchetti v. United States ,5 where the Court effectively barred the enforcement of the federal wagering tax statutes by holding that the fifth amendment was a complete defense to prosecution for noncompliance with the statutory registration requirements because compliance created sub¬ stantial risks of conviction for violating federal and state gambling laws. The Court declined to save the tax statutes by imposing a restriction, suggested by the government, on prosecutorial use of infor¬ mation obtained as a result of compliance with the registration require¬ ments. Such a use restriction could save the tax, but it might also impede the efforts of federal and state law enforcement authorities by requiring them to establish in each case that their evidence had not 12-30 1. See § 12-29,§ supra.

2. See § 12-29, supra, at note 6. Com¬ pare Freedman v. Maryland, 380 U.S. 51 (1965) (invalidating state scheme of prior censorship of obscene films for want of stringent procedural safeguards), with United States v. Thirty Seven Photo¬ graphs, 402 U.S. 363 (1971) (upholding fed¬ eral statute prohibiting the importation of obscene materials and providing for seizure by customs officials despite statute’s lack of explicit procedural safeguards; Court supplied such safeguards itself). 3. See, e.g., Time, Inc. v. Hill, 385 U.S. 374, 397 (1967), discussed in § 12-29, su¬ pra, text at note 4. Justice O’Connor sug¬ gested in Brockett v. Spokane Arcades, Inc., that "a federal court should await a definitive construction by a state court rather than precipitously indulging a facial challenge to the constitutional validity of a state statute.” 472 U.S. 491, 507 (1985) (O’Connor, J., concurring). Furthermore,

"[speculation by a federal court about the meaning of a state statute in the absence of a prior state court adjudication is partic¬ ularly gratuitous when . . . the state courts stand willing to address questions of state law on certification from a federal court.” Id. at 472 U.S. 509, 2805 (citation omitted). 4. See, e.g., United States v. Reese, 92 U.S. 214, 221 (1875) (for the Court to "in¬ troduce words of limitation” into overbroad criminal statute in order to make it consti¬ tutional "would, to some extent, substitute the judicial for the legislative depart¬ ment. ... To limit this statute . . . would be to make a new law, not to enforce an old one. This is no part of our duty.”); Scales v. United States, 367 U.S. 203, 211 (1961) ("[although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not . . . carry this to the point of perverting the purpose of a statute.”). 5. 390 U.S. 39 (1968).

§ 12-31

COMMUNICATION

AND

1033

EXPRESSION

been discovered on the basis of information derived from the tax and registration schemes.6 Whether Congress would think those impedi¬ ments worth enduring to uphold the tax could not be divined by the Court, turning as it would on nonconstitutional policy choices. Accord¬ ingly, the Court left the task of rehabilitation to the Congress.

§ 12-31. Relations Between Vagueness and Void for Vagueness Doctrine

Overbreadth — The

Vagueness is a constitutional vice conceptually distinct from over¬ breadth in that an overbroad law need lack neither clarity nor preci¬ sion,1 and a vague law need not reach activity protected by the first amendment.2 As a matter of due process, a law is void on its face if it is so vague that persons "of common intelligence must necessarily guess at its meaning and differ as to its application.” 3 Such vagueness occurs when a legislature states its proscriptions in terms so indefinite that the line between innocent and condemned conduct becomes a matter of guesswork. This indefiniteness runs afoul of due process concepts which require that persons be given fair notice of what to avoid,4 and that the discretion of law enforcement officials, with the attendant dangers of arbitrary and discriminatory enforcement, be limited by explicit legislative standards.5 But vagueness is not calculable with precision; in any particular area, the legislature confronts a dilemma: to draft with narrow particu¬ larity is to risk nullification by easy evasion of the legislative purpose; to draft with great generality is to risk ensnarement of the innocent in a net designed for others.6 Because 6. Id. at 58-60.

1 Tucker, 364 U.S. § 12-3v. 1. See, e.g., Shelton 479 (1960) (invalidating as an overbroad restriction on freedom of association an Arkansas statute clearly requiring each state teacher to file annually an affidavit listing without limitation every organiza¬ tion to which he or she belonged or regu¬ larly contributed). 2. See, e.g., Lanzetta v. New Jersey, 306 U.S. 451 (1939) (voiding statute making it criminal to be a member of a "gang”). 3. Connally v. General Construction Co., 269 U.S. 385, 391 (1926). See general¬ ly Note, "The Void-for- Vagueness Doctrine in the Supreme Court,” 109 U.Pa.L.Rev. 67 (1960). The Court applies an objective test for determining whether a statute is vague. In upholding a local ordinance requiring

licensing for the sale of products "designed or marketed for use” with illegal drugs, the Court found that the law’s meaning would be clear to a "business person of ordinary intelligence” and thus held that the law was not impermissibly vague. Vil¬ lage of Hoffman Estates v. Flipside, Hoff¬ man Estates, Inc., 455 U.S. 489, 501 (1982). But, in applying the vagueness doctrine,

that dilemma

can

rarely be

courts may scrutinize laws which criminal¬ ize omissions more closely than those which penalize affirmative acts. See, e.g., Kolender v. Lawson, 461 U.S. 352 (1983) (invalidating, on vagueness grounds, law which required persons to produce, on po¬ lice demand, "credible and reliable” identi¬ fication); Lambert v. California, 355 U.S. 225, 229 (1957) (reversing conviction of in¬ dividual who violated law which required all persons convicted of felonies to "regis¬ ter” with the police on grounds that the law failed to require "actual knowledge of the duty to register or proof of the probability of such knowledge and subse¬ quent failure to comply”). 4. See, e.g., Papachristou v. Jackson¬ ville, 405 U.S. 156, 162 (1972) (holding un¬ constitutional a vagrancy ordinance draft¬ ed in the terms of the archaic English poor laws), and cases collected in Grayned v. Rockford, 408 U.S. 104, 108 n. 3 (1972). 5. See, e.g., Papachristou, 405 U.S. at 162, and cases collected in Grayned, 408 U.S. at 108-09 n. 4. 6. See, U.S. 507, senting). U.S. 104,

e.g., Winters v. New York, 333 525 (1948) (Frankfurter, J., dis¬ See also Colten v. Kentucky, 407 107 (1972).

1034

COMMUNICATION

AND

EXPRESSION

Ch. 12

resolved satisfactorily, the Supreme Court will not ordinarily invalidate a statute because some marginal offenses may remain within the scope of a statute’s language.7 The conclusion that a statute is too vague and therefore void as a matter of due process is thus unlikely to be triggered without two findings: that the individual challenging the statute is indeed one of the entrapped innocent,8 and that it would have been practical for the legislature to draft more precisely.9 Discussions of vagueness

in first amendment

cases often borrow

"fair notice” concepts from vagueness challenges of other sorts. But in the first amendment area, the objectionable aspects of vagueness need not depend upon the absence of fair notice, for the first amendment’s demand for specificity is also a product of the concern for a statute’s chilling effect. "Those . . . sensitive to the perils posed by . . . indefinite language, avoid the risk . . . only by restricting their conduct to that which is unquestionably safe. Free speech may not be so inhibited.” 10 The fear, in short, is that the "notice” may be too effective.11 As a consequence, the Supreme Court requires more speci¬ ficity of a statute potentially applicable to expression sheltered by the first amendment than in other contexts,12 although no doctrinal formu¬ lation of the required increment in specificity has seemed possible. 7. See, e.g., Boyce Motor Lines, Inc., v. United States, 342 U.S. 337 (1952) (regula¬ tion requiring carriers to "avoid, so far as practicable” "congested” routes held not void for vagueness); United States v. Na¬ tional Dairy Products Corp., 372 U.S. 29 (1963) (provision of Robinson-Patman Act making it unlawful to sell goods at "unrea¬ sonably low prices” with the intent of hurt¬ ing competitors held not unconstitutionally vague as applied to sales below cost where specific intent to destroy competition shown). Compare Palmer v. Euclid, 402 U.S. 544 (1971) ("suspicious person ordi¬ nance” making it unlawful to wander about the streets or be out at late or un¬ usual hours held vague, although only "as applied” to appellant who discharged a fe¬ male passenger from a car late at night and then used a two-way car radio while parked on the street). 8. See Note, supra note 3, at 87. 9. See United

States v. Petrillo, 332

U.S. 1, 7-8 (1947). The Court will general¬ ly strike down an ordinance for vagueness only if the actual activity proscribed is vaguely defined; if a statute merely uses a vague formulation to subject certain indi¬ viduals to investigation but the prohibition itself is not unduly vague, the law may stand. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288-90 (1982) (upholding local ordinance which directs chief of police to consider whether appli¬ cants to operate coin-operated amusement establishments have "connections with criminal elements”).

10. Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (invalidating loyalty oath for state teachers which required the affiant to swear that he or she will "by precept and example promote respect for the flag” and American institutions and promote "undi¬ vided allegiance” to the United States Gov¬ ernment. 11. Justice O’Connor’s opinion for the Court in Kolender v. Lawson, 461 U.S. 352 (1983), questioned the primacy of lack of notice among the evils associated with vague statutes: "the more important as¬ pect of the vagueness doctrine 'is not actu¬ al notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.’ Where the legis¬ lature fails to provide such minimal guide¬ lines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors and juries to pursue their per¬ sonal predilections.’ ” Id. at 358, quoting Smith v. Goguen, 415 U.S. 566, 574-75 (1974). See § 12-38, infra. For critical analyses of the Court’s approach to the vagueness doctrine, see generally Jeffries, "Legality, Vagueness and the Construction of Statutes,” 71 Va.L.Rev. 189, 201-19 (1985), and Dan-Cohen, "Decision Rules and Conduct Rules: On Acoustic Separa¬ tion in Criminal Law,” 97 Harv.L.Rev. 625 (1984). 12. See, e.g., Smith v. Goguen, 415 U.S. 566, 573 (1974) (flag desecration statute that subjects to criminal liability anyone who

"treats contemptuously”

the United

§ 12-32

COMMUNICATION

AND

1035

EXPRESSION

Because vagueness closely parallels overbreadth in its deterrence of protected expression, the analysis of excessive vagueness in the first amendment area closely parallels that of overbreadth: The expression deterred by a vague statute must be both real and substantial.13 And a precise and narrow judicial reconstruction must be unavailable.14 But there is one difference. Overbreadth analysis is often perceived as an exception to the rule that an individual is not ordinarily permitted to litigate the rights of third parties; vagueness is not perceived as such an exception. The next section addresses that apparent anomaly.

§ 12-32. Third Party Standing in First Amendment Litigation: Differences Between Vagueness and Overbreadth Why should a litigant whose own conduct is not protected by the first amendment, and who could thus be penalized under a narrower or more precise statute, be given a prize — in the form of a ruling invalidat¬ ing the statute in advance and in its entirety — for bringing to judicial attention a statute’s potential unconstitutional applications to third parties? 1 The answer is that there is not likely to be a better party. Those whose expression is "chilled” by the existence of an overbroad or unduly vague statute cannot be expected to adjudicate their own rights, lacking by definition the willingness to disobey the law.2 In addition, such deterred persons may not have standing to obtain affirmative relief, since the hypothetical "chilling effect” of the mere existence of an overbroad or vague law does not by itself constitute the sort of "injury-in-fact” which confers standing.3 States flag is void for vagueness;

void for

vagueness doctrine "demands a greater de¬ gree of specificity” in first amendment as opposed to other contexts). In addition, a precise statute in an area involving first amendment interests reflects a specific leg¬ islative judgment which "has focused on the first amendment interests and deter¬ mined that other governmental policies compel regulation.” Grayned v. Rockford, 408 U.S. at 104 n. 5. Cf. Kolender v. Lawson, 461 U.S. 352, 358-59 n. 7 (1983) (striking down, on vagueness grounds, a law requiring persons who walk on city streets to provide "credible and reliable” identification to police and making crimi¬ nal their failure to do so on the grounds that, inter alia, "when a statute imposes criminal penalties, the standard of certain¬

fication” requirement on door-to-door can¬ vassers held invalid solely on vagueness grounds). 14. See, e.g., Screws v. United States, 325 U.S. 91, 98 (1945) (Douglas, J.) (plurali¬ ty opinion) (interpretation of vague legisla¬ tion which supports its constitutionality preferred; criminal and conspiracy provi¬ sions of federal law punishing "knowing” and "willful” deprivation of constitutional¬ ly protected civil rights interpreted to re¬ quire proof of specific intent in order to avoid question of statute’s constitutionali¬ ty).

1. See generally Note, "Standing to As¬ 2 12-3Tertii,” sert Constitutional § Jus 88 Harv.L. Rev. 423 (1974).

ty is higher”). 13. See, e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) (zoning ordinance regulating the locations of mo¬

2. See, e.g., Gooding v. Wilson, 405 U.S. 518, 521 (1972) (dictum).

tion picture theaters featuring "adult” movies "characterized by an emphasis” on sexual matters upheld against vagueness challenge; ordinance considered unlikely

13-16 (1972) (unlike a claim of "present objective harm,” such as threat of impris¬ onment or unemployment, the allegation

3. See, e.g., Laird v. Tatum, 408 U.S. 1,

to have "significant deterrent effect” on exhibition of films protected by the first amendment). But see Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610

of a subjective "chilling effect” produced by the "mere existence, without more” of the Army’s domestic surveillance system did not state a claim of injury in fact; federal courts thus lacked jurisdiction to

(1976) (local ordinance imposing an "identi¬

determine

whether

Army’s

program

was

.

1036

COMMUNICATION

AND

EXPRESSION

Ch. 12

While this rationale of "chilling effect” thus justifies relaxation of the rule against third-party claims, some nexus is nevertheless re¬ quired, even in first amendment cases, between the vice of the statute and the conduct of the litigant. Where the vice is vagueness, the litigant asserting the vagueness defense must demonstrate that the statute in question is vague either in all possible applications or at least as applied to the litigant’s conduct, and not simply as applied to some others.4 One may in turn posit two circumstances. A " perfectly vague ” statute is one which provides no "ascertainable standard for inclusion or exclusion” and is thus vague in all its applications.5 The ordinance in Coates v. Cincinnati 6 made it illegal for "three or more persons to assemble [on] any sidewalk [and] there conduct themselves in a manner annoying to persons passing by.” 7 The "annoying” criterion is not vague merely in the sense that it is an imprecise but comprehensible normative standard; it specifies no standard at all, because one may never know in advance what "annoys some people [but] does not annoy others.” 8 Being "perfectly” vague, the ordinance in Coates is vague in all its applications and does not present a problem of third-party standing. Alternatively, a statute may apply without question to a "hard¬ core” of conduct and apply only uncertainly to other activities. One to whose conduct a statute clearly applies may not challenge it on the basis that it is "vague as applied” to others. In Parker v. Levy,9 the Supreme Court sustained Captain Levy’s court-martial for public state¬ ments counseling enlisted men under his command to defy orders to go to Vietnam. The Captain was not permitted to argue the vagueness of the articles of the Uniform Code of Military Justice under which he was convicted because the broad scope of the articles (proscribing "conduct unbecoming an officer and gentleman” and "disorders and neglects to the prejudice of good order and discipline”) had been narrowed at least partially by authoritative military constructions, and Levy’s conduct was clearly within those somewhat more precise proscriptions. He therefore had fair notice that his conduct was punishable.10 When the Supreme Court declares a statute void on its face for overbreadth, such a holding implies two conclusions: first, that a saving construction is unavailable, usually because there is no precise overbroad) (dictum inasmuch as litigants asserted no personal chill whatever, see id. at 13-14 n. 7). See § 3-16, supra. 4. See, e.g., Parker 733, 753-58 (1974).

( 57 56 U. 41 v. Go Sm 6, S. 3 197 5 it gu 4a) cl gr th an h th pr en n,d ar in , at ea e d i c t of ste ar ip re pr trye e l tqu gu s art c o i ineci ex e la ee ut on n th hair g si pr t¬ es te er n ed o e t by em § 12 n ss su xtth s,at o the phw io prin qu a re -31 f r he e n a e ti asre g cl an th Co , of stMii Un ula , izJu e d at s de i t olni in co th foprion ta in efingtic oc s fe e cu e rmos s nd ry c cr e uc “ t o t rr f a mi ib n t Be f he edac l c ed l mi tcio fr di it ca so a vris ci ff ar li om u v l¬o s e th . letar st e ety st ia erseo y f s c n e ntie to an cr an va s yap rin d iaty a af aridmi se ecpli gen st gue ti,”re lys na e, c f t n at e o a n gu i a Da irs Pr l e. uteUsns g lSat s v. Nanomble g ta od i , t wa¬ (1 ry 29 io3i2c 37 itnesgU. uc ., sCoite n d 96 , a-3 t r S. was le l 3 pr he s to p.b,e ap 2 3) ss ec ld , s pr op 41 at 75 isi U. re th ri 7 S. 7- on us qu 58 at ir . e; ed .

v. Levy, 417 U.S.

5. See, e.g., Coates v. Cincinnati, 402 U.S. 611, 614 (1971); Smith v. Goguen, 415 U.S. 566, 578 (1974). 6. 402 U.S. 611 (1971). 7. Id. at 611-12. 8. Id. at 614. So, too, one could never

In reliable” identifi¬ know what “credible and cation was to be shown Parto the police in ke Kolender v. Lawson, 461 U.S. r, 352, 357-58 th (1983). eC ou 9. 417 U.S. 733 (1974). rt di st in gu is h

e

§ 12-33

COMMUNICATION

AND

EXPRESSION

1037

category of protected conduct which can be clearly enough stated to fall outside the reach of the statute; and second, that to attempt a limiting construction of a statute without such a determinate rule of first amendment privilege would turn an overbroad law into a vague one. Thus an overbroad law, even as enforced against unprotected conduct, is "perfectly vague”, since the law could be "saved” only by introducing a serious element of vagueness that would leave every person who is subject to the law uncertain whether the law can be enforced at all or will instead be held void for vagueness. One might therefore say that the "nexus” provided by a litigant challenging an overbroad law is the facial inseparability of protected expression and the unprotected ex¬ pression of the litigant. In this sense, the third-party exception is not truly needed in overbreadth cases where a saving construction is unavailable, just as the exception is not available in vagueness cases.

§ 12-33. Facial Invalidation and Substantive Values in First Amendment Jurisprudence: Less Restrictive Alterna¬ tives or Hidden Balancing? The conclusion that a statute is fatally overbroad or impermissibly vague is often accompanied by an assumption that legislatures possess the ingenuity needed to develop statutory schemes essentially as effec¬ tive as, but less sweeping or ambiguous than, the law judged void. This presumption is often stated in the language of "less restrictive alterna¬ tives.” 1 In practice, the Court rarely rests a finding of overbreadth or vagueness upon its discovery of a genuinely "less restrictive alterna¬ tive,” 2 although an affirmative showing that any alternative to the statute would be seriously ineffectual might negate the overbreadth or vagueness conclusion.3 Subject to this possibility, the Court’s approach has taken these two first amendment vices as decisive: because a statute is substantially overbroad or impermissibly vague, government must make use of less drastic means if it would regulate at all — whatever substantive reduction in efficacy a less drastic means might entail.4 3 § 12-3v. 1. See, e.g., Shelton Tucker, 364 U.S.

479, 488 (I960); see generally Note, "Less Drastic Means and the First Amendment,” 78 Yale L.J. 464 (1969). 2. In United States v. Robel, 389 U.S. 258, 267-68 (1967), the Supreme Court ex¬ pressly refused to inquire into the exis¬ tence of any practical "less restrictive al¬ ternatives.” But see Martin v. Struthers, 319 U.S. 141, 147-48 (1943) (holding ordi¬ nance banning door-to-door solicitation overbroad where intrusions on household¬

Talley v. California, 362 U.S. 60, 66-67 (1960) (Harlan, J., concurring) (striking down ordinance banning all distribution of

United States v. Robel, 389 U.S. at 267-68, to enter upon an evaluation of legislative alternatives would seem to imply that only the gravest peril could persuade the Court to accept a representation that it is impos¬ sible for government to proceed by narrow¬ er means. See Note, "The First Amend¬ ment Overbreadth Doctrine,” 83 Harv.L. Rev. 844, 917-18 (1970).

t e no b ng on si act eri h es p m rnt pr i fiuo ex at ul eg eer fr iv at i rn at on te c al unial mm nt co me ronn vtei ve groic ct’s cti i st a tr re a es an r y e b at t th as le ed d at us mee th ca ai th

ers and dangers of fraud could "so easily be controlled by traditional legal methods”). 3. The burden is on government to show that there are no less restrictive al¬ ternatives to statutory overbreadth. See

anonymous handbills; government had made no showing as to its actual experi¬ ence with alternative means of preventing fraud, false advertising and libel). See also Thornhill v. Alabama, 310 U.S. 88, 98 (1940). But the refusal of the Court in

1038

COMMUNICATION

AND

EXPRESSION

Ch. 12

At the same time, because the Court talks as though its invalida¬ tion of an overbroad or vague law leaves open other, essentially as effective, means of furthering the law’s permissible ends, the Court usually avoids making any overt comparision between the gravity of the regulatory need and the burden upon activities privileged by the first amendment but chilled by the law’s vagueness or overbreadth. Implicit in any such holding, of course, is a judgment that the reduced effectiveness entailed by a less restrictive alternative is outweighed by the increment in first amendment protection gained by demanding such an alternative. In United States v. Robel,5 for example, the Court held that Congress could not prevent every member of the Communist Party from working in any defense facility; less drastic means would have to be employed. The implicit judgment was that a rule of thumb which presumed all Communists to be security risks involved a sacrifice of associational rights not justified by the possibility that a more individu¬ alized screening process might not efficiently weed out all dangerous party members from sensitive defense jobs.6 While Robel clearly entailed a decision that the costs of more individualized screening could not justify the legislature’s wholesale invasion of associational rights, Chief Justice Warren pointedly denied in his opinion for the Court that the decision turned on any balancing of interests.7 Although that denial has been criticized as unpersua¬ sive,8 it seems more defensible if one recognizes that the "balance” struck in Robel reflects not the Court’s analysis of the competing interests demonstrably present in the particular case, but rather a general principle of first amendment jurisprudence: government must sacrifice its marginal regulatory interests in a "buffer zone” where the statutory scheme, while advancing valid but not compelling purposes conceivably attainable in no less restrictive way, nonetheless threatens significant inhibition of protected expression or association.9 In formu¬ lating its rules of privilege in the area of defamation, for example, the Court has stated that, if "the freedoms of expression are to survive,” they must have "breathing space that can be purchased only by allowing some constitutionally unprotected defamatory falsehoods to go unpunished.” 10 The doctrines of precisely the same function in areas to formulate a determinate rule of thus been forced to swallow laws entirety. the government’s supra.

interest. See § 12-23,

5. 389 U.S. 258 (1967). 6. Cf. United States v. Brown, 381 U.S. 437 (1965) (federal law making it a crime for a member of the communist party to serve as an officer or an employee of a labor union held a bill of attainder), dis¬ cussed in § 10-4, supra. 7. 389 U.S. at 268 n. 20.

overbreadth and vagueness serve where the Court has not been able first amendment privilege and has whole or invalidate them in their

8. See Gunther, "Reflections on Robel: It’s Not What the Court Did But the Way It Did It,” 20 Stan.L.Rev. 1140, 1148 (1968). Cf. Shelton v. Tucker, 364 U.S. 479, 493 (1960) (Frankfurter, J., dissenting). 9. See Note, "The Void-For- Vagueness Doctrine in the Supreme Court,” 109 U.Pa. L.Rev. 67, 75-85 (1960). 10. New York Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964).

COMMUNICATION

§ 12-34

AND

EXPRESSION

1039

In effect, when the Court’s choices have thus been limited to two extremes, it has selected a two-tiered mode of accommodation, one that implicitly "balances” against government wherever the latter’s interest seems dubious or marginal, but reserves the possibility of balancing for government whenever its interest is clearly compelling. Reduced to such a two-leveled or bivalent balancing process, little would be gained from more overt talk of balancing as such — talk that, even at its best, is only mildly illuminating. Indeed, far from representing the conclusory and dissembling devices some have seen in them, the doctrines of overbreadth and vagueness capture the essence of a demand that, in close cases, government must leave speech ample room to breathe. How best to do that is properly left to the majoritarian branches; when it must be done is a judgment properly enforced by the judiciary.

§ 12-34. Constitutional Two When

Limits on the Use of Prior Restraints:

Meanings

of "Prior”

the first amendment

was approved by the First Congress, it

was undoubtedly intended to prevent government’s imposition of any system of prior restraints similar to the English licensing system under which nothing could be printed without the approval of the state or church authorities.1 This intention was first invoked by the Supreme Court in the always-cited case of Near v. Minnesota 2 to strike down the state’s procedure for abating scandalous and defamatory newspapers as public nuisances.3 The view that prior restraints are especially burden¬ some on free speech helps explain the Supreme Court’s nearly absolute rejection of prior judicial restraints in the Pentagon Papers Case, New York Times Co. v. United States,4 and the Fair Trial Gag Order Case, Nebraska Press Association v. Stuart.5 The prior retraint doctrine has also been applied to void procedurally inadequate schemes of govern¬ mental censorship of films,6 books,7 and plays; 8 to strike down over12-34 1. See Near v. §Minnesota, 283 U.S. 697, 713 (1931). Indeed, a common view had been that the first amendment was de¬ signed to forbid nothing but such re¬ straints. See generally Emerson, ’The Doctrine of Prior Restraint,” 20 Law & Contemp. Probs. 648 (1955); Mayton, ’’To¬ ward a Theory of First Amendment Pro¬ cess: Injunctions of Speech, Subsequent Punishment, and the Costs of the Prior Restraint Doctrine,” 67 Cornell L.Rev. 245, 247-49 (1982). 2. 283 U.S. 697 (1931). 3. See also Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) (void¬ ing injunction against distribution of leaf¬ lets in residential neighborhood issued to

protect appellee’s privacy). For a discus¬ sion of Near, see Blasi, ’’Toward a Theory of Prior Restraint: The Central Linkage,” 66 Minn.L.Rev. 11, 15-19 (1981). 4. 403 U.S. 713 (1971) (per curiam). 5. 427

U.S. 539 (1976), discussed

in

§ 12-11, supra. 6. See, e.g., Vance v. Universal Amuse¬ ment Co., 445 U.S. 308 (1980) (per curiam) (striking down obscenity-nuisance statute); Freedman v. Maryland, 380 U.S. 51 (1965); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952). t

7. See, e.g., Bantam Books, Inc. v. Sulli¬ van, 372 U.S. 58 (1963). 8. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).

1040

COMMUNICATION

AND EXPRESSION

Ch. 12

broad permit requirements 9; and to invalidate discriminatory taxes on the press.10 Indeed, the doctrine has been used to invalidate such a variety of restrictions on speech, under such a wide range of conditions, that some scholars have questioned the conceptual clarity of the term.11 There is much to this criticism, for the Court has often used the cry of "prior restraint” not as an independent analytical framework but rather to signal conclusions that it has reached on other grounds. Only rarely has the Court acknowledged the central feature of prior restraints: the doctrine imposes a special bar on attempts to suppress speech prior to publication, a bar that is distinct from the scope of constitutional protection accorded the material after publication.12 In order to test the extent and strength of the prior restraint doctrine, therefore, one must examine expression that is at least arguably outside the ambit of substantive first amendment protection, yet inside the ban on prior restraints.13 A frequent pitfall of both courts and commentators is to 9. See, e.g., National Socialist Party v. Skokie, 432 U.S. 43 (1977) (per curiam) (requiring procedural safeguards for state rule that barred Nazis from displaying swastika); Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) (parade permit); Staub v. Baxley, 355 U.S. 313 (1958) (permit to solicit membership in dues-paying organi¬ zation); Kunz v. New York, 340 U.S. 290 (1951) (permit for religious meeting); Saia v. New York, 334 U.S. 558 (1948) (permit to operate sound amplifiers); Cantwell v. Connecticut, 310 U.S. 296 (1940) (permit to solicit for charitable causes); Lovell v. Grif¬ fin, 303 U.S. 444 (1938) (permit to dis¬ tribute literature). Cf. Carroll v. Princess Anne, 393 U.S. 175 (1968) (injunction against public meeting). 10. See, e.g., Grosjean v. American Press Co., 297 U.S. 233, 250 (1936) (tax on gross receipts of newspapers with circula¬ tion over 20,000 copies per week invalid because it was a "deliberate and calculated device in the guise of a tax” to punish critics of Huey Long). The same Court dismissed, for want of a substantial federal question, an appeal of a state judgment upholding the application to newspapers of a nondiscriminatory tax on the gross in¬ come of businesses. See Giragi v. Moore, 301 U.S. 670 (1937), dismissing appeal from 49 Ariz. 74, 64 P.2d 819 (1937). In Murdock v. Pennsylvania, 319 U.S. 105 (1943), and Follett v. McCormick, 321 U.S. 573 (1944), a closely divided Court invalidated, as unconstitutional prior re¬ straints, general and nondiscriminatory oc¬ cupational license taxes applied to Jeho¬ vah’s Witnesses selling religious literature. See § 14-13, infra. The decisions distin¬ guished direct taxes on the exercise of first

amendment rights from indirect taxes on income, property or sales attributable to protected expression. But cf. City of Coro¬ na v. Corona Daily Independent, 115 Cal. App.2d 382, 252 P.2d 56 (1953), cert, denied 346 U.S. 833 (1953) (lower court upheld a license tax on the privilege of doing busi¬ ness as applied to newspapers; Justices Black and Douglas dissented on the au¬ thority of Murdock and Follett, 346 U.S. at 834). The alternate, and more persuasive, ground for the decisions in Murdock and Follett is that a tax on non-commercial solicitation falls unevenly, unduly burden¬ ing the exercise of expressive rights by those unable to afford more expensive means of communication. See § 12-23, su¬ pra; Emerson, The System of Freedom of Expression 421 (1970). 11. See, e.g., Jeffries, "Rethinking Prior Restraint,” 92 Yale L.J. 409, 437 (1982): "I suggest that . . . the conventional doc¬ trine of prior restraint be laid to one side. In my judgment, that doctrine is so far removed from its historic function, so vari¬ ously and discrepancy applied, and so oft¬ en deflective of sound understanding, that it no longer warrants use as an indepen¬ dent category of First Amendment analy_•

99

SIS*

12. See Jeffries, supra note 11, at 410. 13. Activities with no first amendment significance can of course be restricted without regard to the prior restraint doc¬ trine, see Arcara v. Cloud Books, Inc., 106 S.Ct. 3172 (1986) (prostitution), discussed in § 12-36, infra. Cf. S.E.C. v. Lowe, 556 F.Supp. 1359, 1366 (E.D.N.Y. 1983): "Pre¬ publication restraints are ordinarily justifi¬ able only when the nonprotected character

§ 12-34

COMMUNICATION

AND

EXPRESSION

1041

employ the doctrine in cases involving expression clearly within the first amendment guarantees, in ignorance of the fact that "[w]here the speech in question is in all events guaranteed by the First Amendment, attributing that guarantee to the circumstance of prior restraint is at best irrelevant and often misleading.” 14 Although the first amendment is not an absolute bar to prior restraints, the Supreme prior restraints comes

Court has repeatedly said that any "system of to this Court bearing a heavy presumption

against its constitutional validity.” 16 Apart from the historic stigma attached to the use of prior restraints, what is it that concerns the Court? Plainly, it is not the mere existence of "restraint,” since an individual ordinarily assumes a risk of subsequent punishment for conduct eventually found to be constitutionally unprotected.16

The

trouble is evidently that the restraint is "prior,” but prior to what? The Court has given two answers: 17 prior to a communication’s dissemof the content is ascertainable with 'rela¬ tive certainty’ prior to dissemination” (cit¬ ing first edition of this treatise).

also Neb Pre Ass v. Stu 427 U.S. 539,ras5k98a (197 ss (Br ’n J.,arcto,nc enn 6) ur¬ a rin in jud ("a inm,m fro mof ny to puuni gmseu pung bli ty nbts)eq ish c a m giv me appluent a fort totiiomnm en atnetri u¬ i i o e r s of th ia nity fro suapl m be¬ a t t eri m pre ssi F fo pu in alSecr o o exam eH¬. plve. Jos tarre ofbliSctaat of Manr r , tieon y eph yla Mun Co., 46”7).U.S. 947nd(198 t C son 4), he ourt inv a Mar sta tha pro¬ tut a t yela e hib lidat cha i f n und ngnad ite ed riti r eisn adm ged fro d pay exapising en ini ing m any mor tha 25% of sthtera amo raisses n e e tiv unt As an enf mec the rudl.e e orc han ismSe emp tehmeen Mar of , cret t yla owe Sta t d reg nd to fund ary ist te roed eny r r not in com waittio the 25% ailsiemris hn t, pli a whi gav risneceto the cha of "pri e I r res ch deteor d. at 969. The gCeour tra r¬ t min intth.at the law, by pro soli hib ed ” c i tion whe the cha was inottingin com ta¬ r p r li¬ anc wiet the pietry lim ita e h cen t "im a dire rest tage on pro ion, pos t ct r e Fir e[Adm]e act iction Id at c9t6e7d. s i t n Hav readm t svuibty resu sup st.a” ra cheent hat lt, i n not e Cng d note that ttihvee pro he 1 our corre c ral 1p, raitt res ctly issd was irre edu¬ ue or411 tra l evan i t "wh th.e Sesetant reg b e f orien- th:or afteethe mak tutelitt udliaftfe is le es r-t r esre cas he-fIadc. at 969 Sin the ncsetat was t ce e aim .” at an unc . sub e s ons ing resu the Cou vietitu the prio retsatntiv rt wed tio e lt, nal— nor in raint issu as at bes red t d t epe und e hanv¬ scho Saonmt det den e e tly erm lars leve a simiina c a t c t r h o i e n ven l latrive ticis ¬ tion ledint of Nema v. Min . erp r nes al r o 283 U.S 697eta(19 See Jeff sutpa, . tio31) ra ries n . , not 11, at 416 "Th real defe [in the state at issu : in Neea was thect sub sta r] e ute n-

tive standard for authorizing suppres¬ sion” — since the statute authorized judicial abatement of any newspaper or other peri¬ odical deemed "malicious, scandalous, and defamatory.” 283 U.S. at 701. 15. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); New York Times Co. v. United States (Pentagon Papers Case), 403 U.S. 713, 714 (1971) (per curiam); Nebras¬ ka Press Ass’n. v. Stuart, 427 U.S. 539, 556-59 (1976). See A. Bickel, The Morality of Consent 61 (1975). 16. Indeed, in some instances the chil¬ ling effect on the press of subsequent pun¬ ishment may far outweigh that of prior restraint. Consider, for example, the edi¬ tor of a small newspaper contemplating whether to publish a possibly defamatory article. If sued after the fact, the newspa¬ per could be ruined financially. If subject¬ ed to a prior restraint, the editor’s only loss may be the sunk costs of writing the article. In such a situation, a system of exclusively prior restraints may well pro¬ duce more "vehement, caustic, and some¬ times unpleasantly sharp” debate, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), than a scheme of ex post pun¬ ishments. See Mayton, supra note 1, at 246: "the preference for subsequent pun¬ ishment over injunctive relief diminishes the exercise of free speech.” But see Hunt¬ er, "Toward a Better Understanding of the Prior Restraint Doctrine: A Reply to Pro¬ fessor Mayton,” (1982).

67 Cornell

L.Rev. 283

17. The case law reflects greater confu¬ sion than the text suggests. "Despite an ancient and celebrated history, the doc¬ trine of prior restraints remains today cu¬ riously confused and unformed.” son, supra note 1, at 649.

Emer¬

1042

COMMUNICATION

AND

EXPRESSION

Ch. 12

ination,18 or prior to "an adequate determination that [the expression] is not protected by the First Amendment.” 19 While both meanings may describe a particular case, separately considered they suggest two distinct concerns. In some cases the primary concern is that any restraint before dissemination, however temporary, allows the government to destroy the immediacy of the intended speech, overriding the individual’s choice of a persuasive moment or an editor’s decision of what is newsworthy; dissemination delayed may prove tantamount to dissemination denied.20 In other cases the primary concern is that any system of censorship insufficient¬ ly constrained by the safeguards of the judicial process is apt to overreach; censors uncontrolled by courts tend to deny publication to material protected by the first amendment. In §§ 12-35 and 12-36, we consider pre-publication restraints; §§ 12-37 to 12-39 discuss restraints prior to an adequate judicial determination of first amendment issues. § 12-35.

Pr@“Pubiieation cance

Restraints:

Their

Procedural

Signifi¬

The extraordinary power of a prior restraint to foreclose timely expression is derived primarily from the body of procedural rules which form a backdrop to the doctrines in this field.1 An individual who speaks, or a newspaper that publishes, is ordinarily free in a subse¬ quent criminal prosecution to assert the claim that the speech or publication was protected by the first amendment. But when a court has issued an injunction, anyone who ignores it may forfeit the right to assert that constitutional defense in a subsequent prosecution.2 The so18. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975):

criminal prosecution. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 69-70 (1963);

"[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship

Monaghan, "First Amendment 'Due Pro¬ cess,’ ” 83 Harv.L.Rev. 518, 543-44 (1970).

are formidable.” 19. Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973) (order requiring newspaper to cease placing help wanted advertise¬ ments in sex-designated columns, stayed during pendency of judicial proceedings, held not a prior restraint once court had authoritatively ruled that the practice was unprotected speech). 20. See Carroll v. Princess Anne, 393 U.S. 175, 182 (1968); Wood v. Georgia, 370 U.S. 375, 392 (1962); Pennekamp v. Flori¬ da, 328 U.S. 331, 346-47 (1946); Bridges v. California, 314 U.S. 252, 268-69 (1941).

§ 12-35fear of prior re¬ 1. The heightened straints also derives from the fact that they are issued without any of the elabo¬ rate safeguards that normally attend a

2. Even if the procedural rules assuring this result were relaxed or abandoned as some propose, see Restraint Redish, "The Proper Role of the Prior Doctrine in First Amendment Theory,” 70 Va.L.Rev. 53, 97 (1984) (proposing that the collateral bar rule should apply only where an in¬ junction is issued "after a full and fair hearing by a competent judicial tribunal”); Note, "Defiance of Unlawful Authority,” 83 Harv.L.Rev. 626, 639-47 (1970), it might well remain the case that prepublication restraints, especially those affirmatively singling out the would-be disseminator, would deter far more protected conduct than criminal statutes ordinarily would. The latter is essentially a mute, imperson¬ al threat; being told personally not to pub¬ lish is apt to cause more second thoughts — no matter what defenses are ultimately available. See Blasi, "Toward a Theory of Prior Restraint: The Central Linkage,” 66 Minn.L.Rev. 11, 35-38 & 85-88 (1981) (ar¬ guing that self-censorship would still occur even without the collateral bar rule be¬ cause of the personalized nature of injunc-

§ 12-35

COMMUNICATION

AND

EXPRESSION

1043

called "collateral bar rule” insists that "a court order must be obeyed until it is set aside, and that persons subject to the order who disobey it may not defend against the ensuing charge of criminal contempt on the ground that the order was erroneous or even unconstitutional.” 3 The continued vitality of the collateral bar rule is in doubt; the Supreme Court has sometimes declined to follow it,4 and lower courts have curtailed its reach.5 But it is still frequently invoked, and whether the constitutional defense is lost depends on the source of the regulation. If a statute or regulation is void on its face because it is unconstitu¬ tionally overbroad or impermissibly vague or both, an individual may refuse to comply with the law’s requirements and still raise the law’s facial invalidity as a defense in a subsequent prosecution under it.6 This rule was applied and elaborated in Shuttlesworth v. Birmingham ,7 in which the Supreme Court overturned a conviction for engaging in a civil rights march in violation of a local ordinance which required a parade permit but which, as written, was overbroad and therefore facially void. In reviewing Shuttlesworth’s Supreme Court construed the language of the it within constitutionally permissible limits. Supreme Court that the statute, so construed, and that Shuttlesworth

conviction, the Alabama ordinance so as to bring It was argued before the was not void on its face,

could no longer challenge its constitutionality.8

Justice Stewart’s majority opinion disagreed, contending that, at the time the permit was refused, it "would have taken extraordinary tions and more aggressive, "expeditious en¬ forcement” by prosecutors). 3. Barnett, "The Puzzle of Prior Re¬ straint,” 29 Stan.L.Rev. 539, 552 (1977). At least one writer has concluded that the collateral bar rule provides the only cogent explanation why "injunctions plausibly can be claimed to have a First Amendment impact significantly greater than the threat of subsequent punishment.” Jef¬ fries, "Rethinking Prior Restraint,” 92 Yale L.J. 409, 431 (1983). Some lower courts have held that certain judicial or¬ ders prohibiting publication are not prior restraints precisely because they are not subject to the collateral bar rule. See, e.g., Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248-49 (7th Cir. 1975), cert, de¬ nied 427 U.S. 912 (1976); Waldo v. Lakeshore Estates, Inc., 433 F.Supp. 782, 788 (E.D. La. 1977), appeal dismissed 579 F.2d 642 (5th Cir.1978). 4. See, e.g., Maness v. Meyers, 419 U.S. 449 (1975) (allowing privilege against self¬ incrimination to be invoked at contempt hearing for failure to produce evidence); Branzburg v. Hayes, 408 U.S. 665 (1972) (permitting first amendment newsgather¬ ing defense to be raised in contempt pro¬ ceedings for failure to testify). 5. See, e.g., In re Timmons, 607 F.2d 120 (5th Cir. 1979); In re Halkin, 598 F.2d 176 (D.C. Cir. 1979); Goldblum v. NBC, 584

F.2d 904 (9th Cir. 1978); Glen v. Hongisto, 438 F.Supp. 10 (N.D. Cal. 1977); Cooper v. Rockford Newspapers, Inc., 50 Ill.App.3d 250, 8 Ill.Dec. 508, 365 N.E.2d 746 (1977). Some states have refused to adopt the col¬ lateral bar rule as a matter of state equity law. See, e.g., State v. Sperry, 79 Wash.2d 69, 483 P.2d 608 (1971); In re Berry, 68 Cal.2d 137, 65 Cal.Rptr. 273, 436 P.2d 273 (1968). 6. See, e.g., Staub v. Baxley, 355 U.S. 313 (1968) (holding that a labor organizer prosecuted for soliciting membership for her union without a permit could raise in her defense the facial unconstitutionality of the law); Lovell v. Griffin, 303 U.S. 444, 452-53 (1938) ("As the ordinance is void on its face, it was not necessary for appellant to seek a permit under it. She was enti¬ tled to contest its validity in answer to the charge against her”). 7. 394 U.S. 147 (1969). 8. See Cox v. New Hampshire, 312 U.S. 569, 576 (1941) (upholding convictions for violation of a state statute prohibiting a "parade or procession” upon a public street without a license where subsequently the New Hampshire Supreme Court had nar¬ rowly construed the statute to limit the discretion of the licensing authority to con¬ siderations clusively). of time, place, and manner ex¬

1044

COMMUNICATION

AND EXPRESSION

Ch. 12

clairvoyance” for anyone to predict the subsequent narrowing construc¬ tion.9 In contrast, a licensing statute valid on its face may not be ignored even if it has been invalidly applied. In Poulos v. New Hampshire ,10 the Supreme Court held that, because the relevant licensing law was constitutional on its face , an applicant who had been improperly re¬ fused a permit to hold religious services in a public park should have sought available judicial relief, even at the cost of some delay, rather than holding the services and attempting to defend against the subse¬ quent criminal prosecution by pointing to the permit’s unlawful refusal. However, the obligation to obey a facially valid licensing requirement is dissolved if the applicant could not obtain prompt judicial review of the administrative

decision refusing the applicant’s request for the li¬

cense.11 It is much more difficult in practice to ignore an injunction and then raise the defense of its unconstitutionality against a subsequent contempt charge. In Walker v. Birmingham ,12 a state court issued an injunction prohibiting parades without a permit. The language of the injunction tracked the language of the city ordinance which the Su¬ preme Court later found void on its face in Shuttles worth. The Court nonetheless upheld a contempt conviction for violating the injunction, on the ground that the demonstrators, not having challenged the injunction in court before marching, could not assert the unconstitu¬ tionality of the injunction in the contempt proceedings.13 The Court indicated in dictum that an individual could defend a conceded viola¬ tion of an injunction only by showing (1) that the court was without in personam

or subject matter jurisdiction to issue the injunction,14 or (2)

9. Shuttlesworth, 394 U.S. at 153. The Court did not decide whether, when expedi¬ tious judicial relief is available, rejected permit applicants must seek a narrowing construction of an apparently void law as a precondition to a facial challenge. 10. 345 U.S. 395 (1953). 11. A narrower reading of Poulos would emphasize that there was a long interval (seven weeks) between the refusal of the

12. 388 U.S. 307 (1967). 13. Id. Justice Stewart, writing for a bare majority, stressed the complete fail¬ ure of the defendants to seek dissolution of the injunction before disobeying it and con¬

,38

er

lk

Wa

cluded that "respect for judicial process is a small price to pay for the civilizing hand of law.” Id. at 321. The four dissenters found the ordinance invalid on its face and thought that its power to command respect gained nothing from its restatement in a

Id. at 328 (Warren,

C.J.,

joined by Brennan and Fortas, JJ., dissent¬ ing; id. at 345-46 (Brennan, J., joined by Warren, C.J., Douglas and Fortas, JJ., dis¬ senting). For critical commentary, see Rodgers, "The Elusive Search for the Void Injunction: Res Judicata Principles in Criminal Contempt Proceedings,” 49 B.U.L.Rev. 251, 270-84 (1969); Selig, "Reg¬ ulation of Street Demonstrations by In¬ junction: Constitutional Limitations on the Collateral Bar Rule in Prosecutions for Contempt,” 135 (1968).

4 Harv.Civ.Rts.-Civ.Lib.L.Rev.

.a .S 8U

¬ o re t as as t¬30 xg, 3 h h ,” al on Ciona ni L u i n ey it U mi at sss Ob rrty ri ol iri osuay ee c v,i or o y r S t rs N he ecas t e r ll r eocr k e o ra mnp the th or. f W e g ne ty te lf in wh se geedh Du a ldon eonui re il it o t e i tdh ne phun wh un e he . al deseMi (u e Se t 948) su , cica of (d1 is eastquo de l ) alny e er d ed47 ab 86 to th to 9 r t m a o s it(1 . on su tu i r n) Un ta ct re er de io ov v. y93 nvi p rs, Or ct de on g v. di t it2 co or htei Re Ac inis un n itc r id .L. rt s8, sd aiju o i V po t2e5 on ri tr i p t a g s Ch t ju ino ve St ic remp ia U. in er sd S. nte ard urt he s ra es e ri ha st pr th ju ed U. co of Gu co "T16

permit and the date of the scheduled ser¬ vice, during which the defendant could have obtained judicial review. Id. at 420 (Frankfurter, J., concurring). This inter¬ pretation of Poulos was approved by the Court in Shuttlesworth, 394 U.S. at 155 n. 4. See also § 12-39, infra.

court order.

§ 12-36

COMMUNICATION

AND

EXPRESSION

1045

that the injunction was not only an unconstitutional prior restraint, but that its challengers had sought judicial review before disobeying it "and had met with delay or frustration of their constitutional claims,” thus threatening the timely exercise of first amendment rights,15 or (3) that the injunction was "transparently invalid.” 16 But this last argu¬ ment is plagued by a curious paradox: if a court recognizes a broad "transparent invalidity” exception, it straint doctrine by virtually eliminating a person can violate an injunction and was an unconstitutional prior restraint,

may undermine the prior re¬ the collateral bar rule. When then argue as a defense that it the injunction is no different in

practice from a statute.17 Given the rules ordinarily requiring appellate challenge rather than open defiance of prior restraints, it becomes crucial to consider the standard by which such restraints will be judged in the appellate process — the topic of § 12-36. § 12-36.

The

Constitutionally

Supreme

Permissible

Court has spoken

Prior

Restraints

of constitutionally permissible

prior restraints as "exceptional cases.” 1 This impression has been reinforced by the Court’s decisions refusing to perceive threats to 15. Walker, 388 U.S. at 318. That the validity of an order may be challenged in a contempt proceeding if there was no oppor¬ tunity for effective review of the order prior to its violation is clear from United States v. Ryan, 402 U.S. 530 (1971) (since an order denying a motion to quash a grand jury subpoena duces tecum is not appealable, it may be disobeyed and the validity of the order raised on appeal from the contempt proceedings). See generally Wright, 3 Federal Practice and Procedure: Criminal § 702 (1982). But the mere op¬ portunity for review is not alone decisive. Where time does not allow an adequate remedy, the order may be violated without losing the constitutional defense. See, e.g., Thomas v. Collins, 323 U.S. 516 (1945) (re¬ versing contempt conviction of union orga¬ nizer served six hours before his scheduled speech with a temporary restraining order which enjoined him from soliciting union members without first obtaining an orga¬

void” orders and maintained that the col¬ lateral bar rule still applied to "arguably proper orders,” id. at 68, while admitting that the dividing line between the two is "not always distinct.” Id. at 69. The court’s reasoning, however, seemed to im¬ ply that all prior restraints "upon the right of the press to communicate news” that involve "pure speech” — as opposed to conduct — would be "transparently invalid” because they faced a "presumption of un¬ constitutionality” that was "virtually in¬ surmountable.” Id. Despite its protesta¬ tions to the contrary, the court of appeals may thus have erected in effect a categori¬ cal prohibition on prior press restraints.

col 2 (q Pr St Ba Cf . of u rn C Va. v.oti Un Aemph 4 . e o 4 t . e 5 ng iv n U. ce 30 32 er(1 (Wusen J. jto). , by , 8, S in hi me 4 s9 etdh te (an Re . J. dail80) a , , rtg ss at hn en s pa qui in beuin up be ti ho ¬ rt s ju g he n u t i n g l l ca cu ,it "d no i a t ) c d ra d mp oe tio t u di i pr se larre an is "ofs s ti nd st d a c uen tiior o i f o b r r r c sc nal s¬ ai ng im ti om nt en u in on ” it st ish al al y at ly a b ut e” le ) 1. .Near v. Minnesota, 283 U.S. 697, 716 (1931). In dictum,§ 12 Chief -36 Justice Hughes

nizer’s card as required by Texas statute; although defendant had disobeyed the or¬ der, the Court heard and sustained his contention that the order and the statute were unconstitutional prior restraints). 16. See Walker, 388 U.S. at 315; Unit¬ ed States v. Dickinson, 465 F.2d 496, 50910 (5th Cir. 1972). See S also In re Provi¬ dence Journal Co., 809ee NF.2d 63 (1st Cir. at 1986) (reversing criminal ’lcontempt sanc¬ L. J. published, tion applied to newspaper that ,J an in violation of a temporary restraining or¬ .2 der, private materials obtained from6, 1illegal 9 FBI surveillance program). The First87,Cir¬ at cuit limited its holding to "transparently39

gave three illustrations of such "exception¬ al cases”: (1) restraints during wartime to prevent the disclosure of military deploy¬ ments or obstruction of the military effort, (2) enforcement of obscenity laws, and (3) enforcement of laws against incitement to acts of violence or revolution. See id. at 716. ,

1046

COMMUNICATION

AND

EXPRESSION

Ch. 12

national security,2 to the sixth amendment rights of criminal defen¬ dants,3 to the psychological health of Holocaust survivors,4 or to a homeowner’s privacy 5 as sufficiently exceptional to justify prior re¬ straints. But prior restraints have been approved in the seemingly less momentous areas of film censorship,6 commercial advertising,7 and permit requirements to use public places for expressive activities.8 The relative importance of the government’s interests therefore cannot explain the cases.

Nor does it help to distinguish situations in which the "speech” involved does not merit first amendment protection from those in which it does merit such protection, the latter alone deserving the benefit of the full-blown presumption 2. See New York Times Co. v. United States, 403 U.S. 713 (1971). 3. See Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). But see KPNX Broadcasting Co. v. Arizona Superi¬ or Court, 459 U.S. 1302 (1982) (Rehnquist, Circuit Justice) (denying stay of state trial court order that directed that all sketches of jurors be reviewed by the court before being broadcast on television). 4. See National Socialist Party v. Sko¬ kie, 432 U.S. 43 (1977) (per curiam) (hold¬ ing that if a state wished to impose a prior restraint such as a prohibition on displays of the swastika during a Nazi rally, the state’s courts must either provide "immedi¬ ate appellate review” or allow a stay of the restraint pending review). See also Collin v. Smith, 447 F.Supp. 676 (N.D. Ill. 1978), affirmed 578 F.2d 1197 (7th Cir. 1978), cert, denied 439 U.S. 916 (1978), which over¬ turned several town ordinances aimed at barring the proposed march by a group of neo-Nazis in Skokie, Illinois, through an area populated by Jews, many of whom • were concentration camp survivors. The Seventh Circuit rejected Skokie’s justifica¬ tions for the ordinances, holding that speech which inflicts such "psychic trau¬ ma” is "indistinguishable in principle from speech that 'invite[s] dispute . . . [or] in¬ duces a condition of unrest, ... or even stirs people to anger.’ ” 578 F.2d at 1206, quoting Terminiello v. Chicago, 337 U.S. 1 (1949) (reversing conviction for making race-baiting statements under statute ban¬ ning speech that "stirs public to anger”). The court concluded that the shock effect of the words could only be "attributed to the content of ideas expressed,” 578 F.2d at 1206, quoting Street v. New York, 394 U.S. 576, 592 (1969) (holding that the statement "we don’t need no damn flag,” made while burning an American flag, was not so "in¬ herently inflammatory” as to come within the class of "fighting words”), and main¬ tained that, under the first amendment, the state could no more restrict a Nazi rally in Skokie than it could prohibit a

against prior restraints.9 A

civil rights march in Birmingham. For a discussion of Skokie as an exercise in the application of neutral principles, see L. Tribe, Constitutional Choices 219-20 (1985). 5. See Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971). 6. See Times Film Corp. v. Chicago, 365 U.S. 43 (1961); Fehlhaber v. North Caroli¬ na, 675 F.2d 1365 (4th Cir. 1982) (obscenity nuisance statute). 7. See, e.g., Posadas de Puerto Rico Assbciates v. Tourism Co. of Puerto Rico, 106 S.Ct. 2968 (1986); Donaldson v. Read Mag¬ azine, 333 U.S. 178, 189-191 (1948); FTC v. Standard Education Society, 302 U.S. 112 (1937); E. F. Drew & Co. v. FTC, 235 F.2d 735, 739-740 (2d Cir. 1956), cert, denied 352 U.S. 969 (1957), cited in Virginia State Board of Pharmacy v. Virginia Citizen’s Consumer Council, 425 U.S. 748, 771-72 n. 24 (1976). See also note 8, infra. 8. See, e.g., Cox v. New Hampshire, 312 U.S. 569 (1941) (upholding narrowly drawn parade permit law). 9. See Nebraska Press Association, 427 U.S. at 590-91 (Brennan, J., joined by Stewart and Marshall, JJ., concurring in judgment). In Lowe v. Securities and Ex¬ change Comm’n, 472 U.S. 181 (1985), for example, the Court was faced with a chal¬ lenge to the Investment Advisors Act of 1940 by the publisher of a semimonthly newsletter containing investment advice and commentary. Lowe was convicted of several securities-related offenses: misap¬ propriating funds from an investment cli¬ ent; engaging in the business of invest¬ ment advice without filing the required registration application with the regulato¬ ry authority; tampering with evidence to cover up the fraud of an investment client; and stealing from a bank. Id. at 183. The Securities and Exchange Commission (SEC) revoked Lowe’s registration under the Act and sought an injunction to prevent him from publishing or distributing investment advice newsletters in the future. Lowe

§ 12-36

COMMUNICATION

AND

EXPRESSION

1047

particular communication cannot authoritatively be called protected or unprotected at a point when, by definition, no court has yet determined the constitutional question. A licensing requirement for all films entangles non-obscene films along with those that would ultimately be held obscene. And speech in war-time which reveals military deploy¬ ments to the enemy is not ''protected” speech if the Court will not protect it. A more satisfactory resolution may be reached by abstract¬ ing the general characteristics of constitutionally permissible prior restraints from the list of exceptions the Court has approved officially or in dictum. The generalization which emerges from this analysis is a narrow set of circumstances in which the presumption against prior restraints may be overcome — where the expected loss from impeding speech in advance is minimized by the unusual clarity of the prepubli¬ cation showing of harm. In New York Times Co. v. United States,10 the government sought to prevent the publication by the New York Times and the Washington Post of the Pentagon Papers, classified documents dealing with United States activities in the Vietnam war prior to 1968. The government’s claim was that publication of the documents would prolong the war by providing the enemy with helpful information and would embarrass the United States in the conduct of its diplomacy. The government sought to fit its case within the military security exception to the prohibition against prior restraints suggested by Chief Justice Hughes in dictum in contended in part that the SEC’s injunc¬ tion was an invalid prior restraint. A dis¬ trict court denied for the most part the SEC’s injunctive relief, determining that Lowe’s publications were protected by the first amendment and that the Act must be construed to permit a publisher who is willing to comply with the Act’s reporting requirements to register for the limited purpose of publishing such material. See S.E.C. v. Lowe, 556 F.Supp. 1359, 1366 (E.D.N.Y. 1983). The circuit court of ap¬ peals reversed, holding that Lowe’s history of criminal conduct justified the character¬ ization of his publications as "potentially deceptive commercial speech.” 725 F.2d 892, 901 (2d. Cir. 1984). The Supreme Court overturned the injunction on the ground that Lowe was exempted from the Act’s coverage by virtue of section 202(a) (11)(D), which excludes from the Act’s defi¬ nition of "investment advisor” any person who is "the publisher of any bona fide newspaper, news magazine, or business or financial publication of general or regular circulation.” 472 U.S. at 187. The Court thus avoided "the constitutional issue [that it had] granted certiorari to decide.” Id. at 211. Regardless of the substantive consti¬ tutional protection accorded to Lowe’s speech, the SEC’s injunction would have been procedurally invalid unless it had is¬ sued subsequent to a proper judicial deter¬ mination that the speech in question was unprotected. As Thomas Emerson has

pointed out, "the doctrine deals with limi¬ tations of form rather than substance.” Emerson, "The Doctrine of Prior Re¬ straint,” 20 Law & Contemp. Probs. 648 (1955). Product and service — especially professional service — advertisements pres¬ ent hard cases, because they involve a strong potential for consumer deception and confusion. See, e.g., Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 676 (1985) (O’Connor, J., joined by Burger, C.J., and Rehnquist, J., concurring in part, con¬ curring in the judgment in part, and dis¬ senting in part) (suggesting that "state reg¬ ulation of professional advice in advertisements is qualitatively different from regulation of claims concerning com¬ mercial goods and merchandise, and is en¬ titled to greater deference”). Neverthe¬ less, the Court has adhered to the principle that restrictions upon such advertising may be "no broader than reasonably neces¬ sary to prevent the deception.” In re R.M.J., 455 U.S. 191, 203 (1982). And the remedy against potentially misleading ad¬ vertising "in the first instance is not neces¬ sarily a prohibition but preferably a re¬ quirement of disclaimers or explanation,” id., citing Bates v. State Bar of Arizona, 433 U.S. 350, 375 (1977). The topic of commercial supra.

speech is discussed in § 12-15,

10. 403 U.S. 713 (1971) (per curiam).

1048

COMMUNICATION

AND

EXPRESSION

Ch. 12

Near v. Minnesota .n The Court held that the government had not met the heavy burden of justifying a prior restraint.12 While a majority of the Justices was prepared to believe that the publication of the docu¬ ments would probably be harmful to the Nation,13 they were not persuaded that the publication of the Papers would surely cause the harm

alleged by the government.14

Unlike the situation hypothesized

by Chief Justice Hughes— the publication of "the sailing dates of transports or the number and location of troops” 15 — the causal allega¬ tions in the Pentagon Papers Case plainly could not be established as a matter of substantial certainty rather than speculation.16 Only the actual publication of the documents could determine the issue. By way of contrast, relative certainty can ordinarily be obtained in the context of prepublication restraints on the publication of obscene material or commercial advertisements. The existence of obscenity and the falsity of an advertiser's factual representations need not depend on contextual elements which take shape only after the material's dissemi¬ nation. Obscenity, as defined by the Court, exists in the eye of the legal finder of fact as surrogate for the "community;'' 17 the falsity of an advertiser's claims may be tested by reference to the information which the advertiser may be expected to have at hand to support its factual representations.18 A court’s determination that material is obscene or an advertisement false is thus as plausible before as after the communication's publication. This argument applies to an injunction that prohibits the dissemi¬ nation of those specific materials determined obscene in a judicial proceeding. It cannot account, however, for the increasingly common use of the blanket or "standards” injunction, which bars the distribu¬ tion of unnamed "obscene” materials and leaves the individual to interpret the term for himself.19 The standards injunction is frequently authorized by state obscenity-nuisance statutes, which define a "nui11. Near, 283 U.S. at 716. 12. New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam). See Henkin, 'The Duty to Withhold: gon Papers,” 120 "Developments in Security Interest Harv.L.Rev. 1130,

Right to Know and the The Case of the Penta¬ U.Pa.L.Rev. 271 (1971); the Law— The National and Civil Liberties,” 85 1189-1244 (1972).

13. Cf. Nebraska

Press Association, 427

U.S. at 591-92 (Brennan, J., concurring in the judgment). 14. See New York Times Co., 403 U.S. at 726-27 (Brennan, J., concurring) (gov¬ ernment must show that disclosure "must inevitably, directly, and immediately cause the occurrence of an event kindred to im¬ periling the safety of a transport already at sea. . . .”); id. at 730 (Stewart, J., joined by White, J., concurring) (govern¬ ment must show that disclosure "will sure¬ ly result in direct, immediate, and irrepa¬ rable damage to our Nation or its people”). 15. Near, 283 U.S. at 716.

16. Cf. Nebraska Press Association, 427 U.S. at 563 (Burger, C.J., opinion for the Court) (trial court’s determination that prejudicial publicity could impinge on de¬ fendant’s fair trial right does not justify a prior restraint on publication; the conclu¬ sion as to the impact of publicity was "speculative”). See discussion in § 12-11, supra. 17. Of course the point facially obscene material, whose obscenity depends on exploiting a special

holds only as to not as to matter on pandering or audience. See

§ 12-16, supra. 18. See Virginia State Board of Phar¬ ring). macy, 425 U.S. at 777 (Stewart, J., concur¬

19. The phrase "standards injunction” was coined by Professor Rendleman. See Rendleman, "Civilizing Pornography: The Case for an Exclusive Obscenity Nuisance Statute,” 44 U.Chi.L.Rev. 509, 555 (1977).

§ 12-36 sance” to '’obscene” Since the yet been

COMMUNICATION

AND

1049

EXPRESSION

include obscene materials and incorporate the definition of announced by the Supreme Court in Miller v. California .20 standards injunction operates against materials that have not determined to be obscene, it appears to violate the prior

restraint doctrine.21 But this argument is too simple: a criminal statute that barred exhibition of obscene films and imposed subsequent punishment on violators — concededly constitutional— would trigger, at first blush at least, the same self-censorship behavior among theater owners called upon to The Supreme Court, in ed on different grounds state judges to enjoin, exhibited obscene films

define for themselves the term "obscenity.” 22 Vance v. Universal Amusement Co.,23 invalidat¬ a Texas public nuisance statute that authorized on the basis of a showing that a theater had in the past, the future exhibition of movies not

yet found to be obscene. The majority argued that the statute re¬ strained speech to a much greater extent than a comparable criminal rule that punished exhibitions after they occurred. The Court accepted a lower court’s interpretation of the statute, which maintained that "a short-lived temporary restraining order could be issued on the basis of an ex parte showing” of obscenity and that "a temporary injunction of indefinite duration could be obtained on the basis of a showing of probable success on the merits.” 24 The Court thus invalidated the Texas statute because of "the absence of any special safeguards gov¬ erning the entry and review of orders restraining the exhibition of named or unnamed motion pictures.” 25 Whether or not the fact interpreted the Texas law correctly,26 the Court’s decision not to ground its opinion on the inherent characteristics of dards injunction paved the way for states to insulate nuisance from constitutional attack — by incorporating into them 20. 413 U.S. 15 (1973), discussed

in

§ 12-16, supra. At least nine states and "an indeterminable number of municipali¬ ties” have passed nuisance statutes specifi¬ cally targeted at obscenity. Note, "En¬ joining Obscenity As a Public Nuisance and the Prior Restraint Doctrine,” Colum.L.Rev. 1616, 1617 (1984).

84

21. See id. at 1619-20. 22. See Vance v. Universal Amusement Co., 445 U.S. 308, 320 (1980) (per curiam) (White J., joined by Rehnquist, J., dissent¬ ing). 23. 445 U.S. 308 (1980) (per curiam). Chief Justice Burger, joined by Justice Powell, dissented on the ground that the appeal presented no real and substantial controversy. Justice White, joined by Jus¬ tice Rehnquist, dissented on the view that the standards injunction was valid and "functionally indistinguishable from a criminal obscenity statute.” Id. at 324 (White, J., joined by Rehnquist, J., dissent¬ ing). 24. 445 U.S. at 316 n. 14. Tribe-Amer. Const. Law 2nd Ed. UTB — 25

Court in in Vance the stan¬ statutes

the necessary

25. Id. at 317. For a discussion of the procedural

issues in nuisance-obscenity

statutes, see Comment, "The Constitution¬ ality of North Carolina’s Nuisance Abate¬ ment Statute: A Prior Restraint on Nonobscene Speech,” 61 N.C.L.Rev. 685 (1983); Comment, "Regulation of Obscenity Through Nuisance Statutes and Injunctive Remedies — The Prior Restraint Dilemma,” 19 Wake Forest L.Rev. 7 (1983).

26. Chief Justice Burger, joined by Jus¬ tice Powell, argued that the majority mis¬ construed the Texas statute. "[Tjhere is a serious question as to whether the Texas statute even authorizes an injunction against a named film,” and, if it does, it is doubtful "that it can be obtained on a showing of probable success.” Id. at 319 (Burger, C.J., joined by Powell, J., dissent¬ ing). See also id. at 322-23 (White, J., joined by Rehnquist, J., dissenting) (ex¬ plaining that at a criminal contempt pro¬ ceeding, "the State would bear the burden of proving beyond a reasonable doubt that the film which allegedly violated the in¬ junction was obscene”) (footnote omitted).

1050

COMMUNICATION

AND

EXPRESSION

Ch. 12

procedural safeguards, such as guarantees of prompt judicial review.27 The Court instead might have focused on the effect and operation of the statute in Vance to generate a broader criticism of the standards injunction. It has been suggested, for example, that the chilling effect of an injunction is greater than that of a criminal prohibition because the injunction is a direct "personalized” command backed by the awe¬ invoking prestige and mystique of the judiciary.28 The nuisance statute may also influence prosecutorial decisions in a manner antithetical to first amendment interests: prosecutors may be more likely to bring actions against distributors of allegedly obscene materials when a standards injunction has already been issued.29 In Vance , an undue emphasis on the procedural shortcomings of the injunction statute blinded the Court to its more substantive flaws. A second difference between the classes of permissible and imper¬ missible prior restraints is found in the quality of the competing interests at stake. Little harm will ordinarily result from a brief postponement in publication of the protected communications which will be caught up in regulatory schemes directed at the prevention of unprotected commercially distributed messages. Delay is tolerable because the class of expression, both protected and unprotected, gener¬ ally lacks topical content.30 But restraints "of even a day or two” may be intolerable when applied to " 'political’ speech in which the element of timeliness may be important”.31 In the latter cases, the government could justify a prior restraint only upon showing that the injury which 27. After Vance, standards injunctions were upheld by several state appellate courts, see, e.g., State ex rel. Kidwell v. U.S. Mktg., Inc., 102 Idaho 451, 631 P.2d 622 (1981), appeal dismissed, 455 U.S. 1009 (1982); Chateau X. Inc. v. State ex rel. Andrews, 302 N.C. 321, 275 S.E.2d 443 (1981), and the Court of Appeals for the Fourth Circuit, see Fehlhaber v. North Carolina, 675 F.2d 1365 (4th Cir. 1982). But see Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 138 (9th Cir. 1980) (invalidat¬ ing nuisance statute as an impermissible prior restraint, citing Vance); Cosgrove v. Cloud Books, Inc., 83 A.D.2d 789, 443 N.Y.S.2d 450 (App. Div. 1981). The Su¬ preme Court has declined opportunities since Vance to pass on obscenity nuisance statutes, see, e.g., Brockett v. Spokane Ar¬ cades, Inc., 472 U.S. 491 (1985) (partially invalidating statute on overbreadth grounds), see § 12-28, supra; Avenue Book Store v. Tallmadge, 459 U.S. 997 (1982) (White, J., joined by Brennan and Mar¬ shall, JJ., dissenting from denial of certio¬ rari). 28. See Blasi, 'Toward a Theory of Pri¬ or Restraint: The Central Linkage,” 66 Minn.L.Rev. 11, 41 (1981): "injunctions ap¬ pear to have in the minds of many citizens a mystique that engenders compliance. Potential speakers who would think noth¬ ing of violating criminal laws in order to test their constitutionality or even as exer¬

cises in civil disobedience are reluctant to disobey injunctions. The personalized na¬ ture of the law’s command seems to cast a

29. See Comment, "Enjoining Obscenity as a Public Nuisance and the Prior Re¬ spell.” Doctrine,” 84 Colum.L.Rev. straint 1624-25 (1984).

1616,

30. See A Quantity of Books v. Kansas, 378 U.S. 205, 224 (1964) (Harlan, J.) ("sex is of constant but rarely particularly topi¬ cal interest”). 31. Carroll v. Commissioner of Princess Anne, 393 U.S. 175, 182 (1968). In KPNX Broadcasting Co. v, Arizona Superior Court, 459 U.S. 1302 (1982) (Rehnquist, Cir¬ cuit Justice), Justice Rehnquist engaged in ad hoc balancing and refused to stay a judicial order that barred the broadcasting of courtroom sketches of jurors in a crimi¬ nal trial. While conceding that the order amounted to a prior restraint, id. at 1307OS, he argued that "of all conceivable reportorial messages that could be conveyed by reporters or artists watching such trials, one of the least necessary to appreciate the significance of the trial would be individu¬ al juror sketches.” Id. at 1308. This type of content-based analysis departs from the more limited scrutiny of time sensitivity and is at odds with basic assumptions of the first amendment, see § 12-18, supra.

§ 12-36

COMMUNICATION

AND

EXPRESSION

1051

it seeks to prevent is "irreparable.” The disclosure of government’s secrets, like the disclosure of an individual’s intimacies,32 would fall into this class — speech for which "more speech” 33 cannot be an alterna¬ tive remedy. Likewise licensing or permit systems which are adminis¬ tered pursuant to narrowly drawn, reasonable and definite standards are government’s only practical means of managing competing uses of public facilities (including traffic control), arranging the orderly assign¬ ment of limited space to competing expressive uses,34 and assigning police to protect the rights of demonstrators.35 Taken together, the requirements that government prove the unprotected character of the particular speech with certainty and show the irreparable nature of the harm that would occur if a prepublication restraint were not imposed, at least where timing is an important factor, sharply delimit the areas in which prepublication restraints can ever be justified.36 The Supreme Court has proven more willing to accept conjectural evidence as justification for a prior restraint when the form of the regulation appears less restrictive: when it can be characterized as an incidental restraint on speech rather than a gag order.37 In Haig v. 32. See, e.g., Commonwealth v. Wise¬ man, 356 Mass. 251, 249 N.E.2d 610 (1969), cert, denied 398 U.S. 960 (1969) (enjoining the commercial distribution of a film por¬ traying inhumane conditions in mental

Your Own,” in Problems in Public Expen¬ diture Analysis 127, 142-62 (S.B. Chase ed. 1968). Cf. Tribe, "Trial by Mathematics: Precision and Ritual in the Legal Process,” 84 Harv.L.Rev. 1329, 1373 n. 140 (1971).

hospital as invasion of patients’ rights of privacy; first amendment interests held to ula wit onl ind or mi eff . no ect ire tio y h r be served sufficiently by allowing the show¬ on spns are not rea ct pri res sat e lly f or e tra ing of the film to professional groups). But all Tehch Co h h t o h as eld x i ur e . , a r p amplr nts at see Cullen v. Grove Press, Inc., 276 F.Supp. tc a res b rio e ees an tri 727 (S.D.N.Y.1967) (refusing to enjoin same r a , trai unl ictt is dir not at exp cti nt i ect e res o film). Organization for a Better Austin v. vit an sssub on e ed li p s p i d mi I A ve or v C ies Keefe, 402 U.S. 415 (1971), is distinguisha¬ for su stanetx tu. l nan r ni ou ch te ca iparle ble in that the privacy right claimed by a s r Bo Inc 1l0sy6si S.C 31 (19 a thteiesSud¬ ok 7 . homeowner against the distribution of t pr s, Co , rej on. . the 2 re 86), of the ur as em ect literature in a residential neighborhood t o e n eofd Ap Ne Yo Co thi the clo ¬a has generally been thought to turn on the surw of rkan adurt bo pea co antg ul ns ok ls e t t degree of intrusion into the home itself, a pri re Th sbtoor hiatu be e s o d e e o t k factual question which cannot confidently Th st to a tpeud n or r troai cl pu e or bli d nt ose rs Cou be resolved in advance of the expressive . st uoan th e gr hea ered nu thac rt a is nt e ou t acts sought to be enjoined. an o p tute fre so lth n wa oc d cef ro que lic cu s s rfr onntl tihtea pre buttituthe sta cou 33. Whitney v. California, 274 U.S. 357, oiung te y f tio mi ti r nd t o i s n 377 (1927) (Brandeis, J., joined by Holmes, n n e tha "[dps rse,s or oth res tra on t Fir ]rtiAham r mear betripr J., concurring). y st ortenr c es int ights not onl wh edgm¬ a stsa dir pro tioennt er en ect t h s y 34. See §§ 12-23 to 12-25, supra. ex bue atls uwthe thly im ibit of e t p o t eree the ressta cur opfactthe s x h 35. See Blasi, "Prior Restraints on e e situ tai se rci onte les se v C Demonstrations,” 68 Mich.L.Rev. 1481, ri Pe r A e . lo x rc 1485-86 (1970). Boght Inc opl 65 N.. l. 32ar 33 4u9d 4 e ok s. Y. ., 3 ,a 1 5, 1 1 ” s 2 N 3 4 N 07, 15, 80 d .E 097 089 .Y , 36. One may wonder, if preventing vir¬ .S .2 , ( T N Y c r on . d eli ou 19 2d he or tually certain death of a dozen troops ew rt 85 k e cas ).an an ord clo a dboo would justify a prior restraint, why pre¬ a e s k¬ e l s i r sto or moog th ba onng pr venting a 50% chance of the death of two ea ev s ivzi re e dis oiefng ob tre ma d to aniouism¬ dozen would not justify the same re¬ te sc tri r e iaSe pe pri rene straint — i.e., why the Court should look to lse, e.g., Gayrm butio st o r r i e T I v M 7 n a s nc. . iian ty hsei 19 F.2d 1550 the certainty of the predicted harm with¬ a m t b t i . l (11 C re 1 Ge v. Sta e ,Cor out regard to its extent. The reason may ne th S ir. es, 983)2 te 6 x p3. r r A 6 S ; relate to the same factors that lead society el. we 68 94 la.al 57, 20 o.2 et d ( c d 4 U 9 ( o to invest more resources in saving a single 197 ernt, 197 .S en 25 04 . iBe ,r 5 ) P e v P Ro 6); d trapped miner than in reducing the loss of . ro x. el. us eo , o j p ch4 Th le 17 Ca 32m8 2, 130 Ceaclti "statistical lives” through mining safety. l.3 ea , .Rons 550 tePr.2 60 (19 d cer d pt ub nom 0 r. See Schelling, "The Life You Save May Be t, enie ,d 76) . d ,

1052

COMMUNICATION

AND

EXPRESSION

Ch. 12

Agee?* for example, the Court upheld the power of the Secretary of State to revoke a former CIA agent’s passport on the ground that his disclosures of sensitive information threatened national security. The Court found it unnecessary to balance Agee’s first amendment rights against the government’s foreign policy interests: it simply stated that revoking Agee’s privilege to travel abroad inhibited only his action, not his speech*9 The Court seemed to rely heavily on Agee’s "declared purpose” of directly disrupting American foreign intelligence opera¬ tions 40 and hinted that his disclosures were more akin to bullets than words and therefore were not protected by the Constitution.41 Even when the extreme sort of danger alleged in Agee is not involved, the government retains the power to limit the speech of certain former employees on the basis of secrecy agreements signed as a condition of employment.42

The Agee Court noted that the respondent had agreed

Van de Kamp v. Projection Room Theater, 429 U.S. 922 (1976). The U.S. Supreme Court distinguished Arcara from this line of argument, holding that the closure of the bookstore did not constitute a prior restraint. The Court maintained that "the order would impose no restraint at all on the dissemination of particular materials, since respondent is free to carry on his bookselling business at another location, even if such locations are difficult to find.” 106 S.Ct. at 3177 n. 2. Next, the Court upheld the closure because the order was "not imposed on the basis of an advance determination that the distribution of par¬ ticular materials is prohibited — indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.” Id. On remand, the New York Court of Appeals found that the closure violated freedom of expression as guaranteed in the state constitution. See Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 510 N.Y.S.2d 844, 503 N.E.2d 492 (1986).

that majority’s rationale was tantamount to holding that imprisoning those who crit¬ icize government policy only inhibits ac¬ tion, since prisoners retain the right to criticize government from their jail cells). Cf. Arcara v. Cloud Books, Inc., 106 S.Ct. 3172, 3177 (1986), discussed in note 37, supra: "every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities. One lia¬ ble for a civil damages award has less money ments yet no gives

to spend on paid political announce¬ or to contribute to political causes, one would suggest that such liability rise to a valid First Amendment

claim.” In Arcara, there was no sugges¬ tion that the closure order was directed at expressive conduct such as bookselling, see id. at 3177. It was instead triggered by a desire to curtail prostitution, an activity with no first amendment significance, at least in this context.

(3), finding that "an order prohibiting dis¬ semination of discovered material before

40. 453 U.S. at 283-85, 308-09. Agee had called a press conference in 1974 to announce his campaign against the CIA, id. at 283-84 n. 2, and had been deported by several Western democracies on the ex¬ press ground that his activities harmed their national security, see id. at 283 n. 1, 308 n. 59.

trial is not the kind of classic prior re¬ straint that requires exacting First

41. Id. at 285-86 n. 7, 308-09. There was undisputed evidence in the record that

Amendment scrutiny.” The Court noted that a party was free to distribute the same information governed by a protective

Agee’s campaign against the CIA and its operatives had enjoyed some grisly success: after his disclosures of the names and ac¬ tivities of alleged CIA agents operating abroad, several of the named individuals were murdered. See id. at 285 n. 7.

Similarly, in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984), the Court upheld a protective order issued un¬ der Federal Rule of Civil Procedure 26(c)

order, so long as "the information is gained through means independent of the court’s processes.” Id. at 34. 38. 453 U.S. 280 (1981). Chief Justice Burger delivered the opinion of the Court, in which Justices Stewart, White, Blackmun, Powell, Rehnquist, and Stevens joined. Justice Blackmun also filed a con¬ curring opinion. Justice Brennan, joined by Justice Marshall, dissented. 39. Compare id. at 309, with id. at 32021 n. 10 (Brennan, J., dissenting) (arguing

Agee’s counsel stipulated to the State De¬ partment’s allegations of harm, id. at 287 n. 11 — obviously in an effort to compel consideration of the case as a facial rather than as an applied challenge to the law, see ing). id. at 321 n. 10 (Brennan, J., dissent¬ 42. See United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), cert, denied 409

§ 12-36

COMMUNICATION

AND

1053

EXPRESSION

not to make any public statements about CIA matters, either during or after his employment by the Agency, without specific governmental approval.43 A suit for an injunction against unauthorized publication is not the government’s only recourse. In Snepp v. United States,44 the Court awarded the government an unprecedented form of relief: a construc¬ tive trust under which all the profits from a former CIA agent’s unauthorized book went into the public treasury. The government thus enforced the secrecy agreement action for monetary recovery.

through a pos ^-publication civil

The Supreme Court’s disdain for conjectural harms is justified by the fact that a requirement of ad hoc scrutiny of regulations on speech may itself constitute a de facto prior restraint.45 In the Pentagon Papers case,46 Justice Brennan remarked that "every restraint issued in this case [has] violated the First Amendment — and not less so because that restraint was justified as necessary in order to afford the courts an opportunity to examine the claim more thoroughly.” 47 The Court once tolerated systems for previewing publication and exhibition of materi¬ als only when those systems "assured an almost immediate judicial determination of the validity of the restraint.” 48 Yet when The Pro¬ gressive magazine attempted to publish an article on the manufacture of the hydrogen bomb, the Supreme Court — in a silent echo of the outraged dissenters in the Pentagon Papers case 49 — declined to order an expedited appeal, and The Progressive languished under prior restraint for almost seven months. The Progressive sought to publish a piece entitled, "The H-Bomb Secret; How We Got It, Why We’re Telling It,” in order to "provide the people with needed information to make informed decisions on an urgent issue of public concern.” 50 The government U.S. 1063 (1972) (granting injunction against publication, without government approval, of ex-CIA agent’s book about the Agency). 43. 453 U.S. at 309. 44. 444 U.S. 507 (1980) (per curiam). Justice Stevens dissented, joined by Jus¬ tices Brennan and Marshall. 45. See Emerson, "First Amendment Doctrine and the Burger Court," 68 Calif.L. Rev. 422, 457-58 (1980). 46. New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam). 47. Id. at 727 (Brennan, J., concurring). See also Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1304 (1983) (Brennan, Cir¬ cuit Justice) ("even a short-lived 'gag’ order in a case of widespread concern to the community constitutes a substantial prior restraint and causes irreparable injury to First Amendment interests as long as it remains in effect"); Redish, "The Proper Role of Prior Restraint Doctrine in First Amendment Theory," 70 Va.L.Rev. 53, 57 (1984) ("interim prior restraints are espe¬

conceded

that

cially disfavored because they authorize abridgement of expression prior to a full and fair determination of the constitution¬ ally protected nature of the expression by an independent judicial forum”). 48. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (striking down practice of state morality commission that in effect suppressed disfavored literature). See, e.g., M.I.C., Ltd. v. Bedford Township, 463 U.S. 1341, 1342 (1983) (Brennan, J., Circuit Justice) (granting stay of injunction against showing of allegedly obscene films because of projected six month delay in prosecuting appeal in state court). 49. 403 U.S. 713, 753 (1971) (Harlan, J., joined by Burger, C.J., and Blackmun, J., dissenting) (criticizing the "almost irre¬ sponsibly feverish” pace of the expedited appeal). 50. United States v. Progressive, Inc., 467 F.Supp. 990, 994 (W.D. Wis. 1979) (pre¬ liminary injunction issued Mar. 28, 1979), request for writ of mandamus denied sub nom. Morland v. Sprecher, 443 U.S. 709

1054

COMMUNICATION

much

AND

EXPRESSION

Ch. 12

of the information in the article had been either declassified or

gathered from the public domain,51 yet it advanced the novel thesis that "national security,, empowered it to censor information originating in the public domain "if[,] when drawn together, synthesized, and collat¬ ed,” such information presents "immediate, direct, and irreparable harm to the interests of the United States.” 52 Unlike Snepp and Agee, the authors of The Progressive piece had signed no secrecy pledges. While admitting that the issuance of an injunction in the case repre¬ sented a radical departure from nearly two centuries of legal tradition, the district court enjoined publication on the ground that, if the alleged spectre of nuclear proliferation materialized, the right to life, as well as the right to free speech, would be mooted

along with the case.53

The government’s dire predictions and the district court’s rhetoric would have been more plausible and more appropriate if the informa¬ tion that The Progressive sought to publish had been classified. The government’s success in censoring the article because of the way in which the material was "synthesized” amounts to nothing less than suppression of the creative talent of journalists in perceiving the significance of freely available information. The government objected not to the disclosure of the information per se but rather to what the article’s authors had done with it. The court ignored the fact that "drawing together” knowledge and ideas and attributing meaning to them is the essence of expression. Few would deny the danger of nuclear weapons

proliferation or the

unthinkable horrors which even a "limited” nuclear war would entail. Yet in the case of The Progressive article, this argues as much for publication as suppression. The piece served to inform the public debate, by demonstrating how easy it is to construct a nuclear bomb and how the government’s weapons security system is plagued with shortcomings. If there was risk involved in publishing the article, there was also risk involved in not publishing it. The world may be more likely to face a nuclear apocalypse if its leaders are not compelled to answer to an educated, and worried, public.

§ 12-37. First Amendment Due Process h Judicial Primacy the Resolution of First Amendment Claims

in

Once specific expressional acts are properly determined to be unprotected by the first amendment, there can be no objection to their (1979), case dismissed as moot, Nos. 791428, 79-1664 (7th Cir. Oct. 1, 1979).

nation to move

faster in developing a hy¬

" f i d t ho ed in wi, wethe art hat that iitd doe ind not confin th ce d ve ic t s i p r r le — co vtis ar th th npu ta e at bl , eal e nc l m of t ep h b to th iocp he ts yd om e e wa b. in¬ ma ro pu w Ev Id rt bl te gi s ” en ahtcei ay s te. e i rinn oonn c om f rp a lo v e to be as rma or th ha qu ey "T retri e g e es ke ti d h ti gdu ma d Id on Th co e ed hetd on tes t wa . :th e acuca rerre s o se he codue. at su ct c s t r o s ed lt t”, r d suf p po " , a incou sfii a rmoev cithe irnti g ld to saslil z¬e en co l f i d o b d iue t lwy rem m at io n

53. Id. at 995-96. The case was actual¬ ly mooted when another magazine pub¬ lished the same material. At least as of this writing, the world has not ended.

drogen weapon.” 52. Id. at 991.

Id.

1. The phrase is from Monaghan, "First 12-37 Amendment 'Due § Process/ ” 83 Harv.L. Rev. 518 (1970), where it is used to summa¬ rize two basic principles the author distills from the case law: that a judicial body,

§ 12-38

COMMUNICATION

AND

subsequent suppression or prosecution.

EXPRESSION But who

1055

can authoritatively

and finally determine what speech is protected? The Supreme Court’s answer has been that no forum except a court can be permitted to impose a valid final restraint on expressional activities, and that this allocation of authority is demanded by the first amendment.2 The allocation of such primacy to the judiciary rests on concern that an administrative censor is unlikely to be sensitive to the values of freedom of expression.3 Censorship both tends to develop its own institutional momentum and also lacks the procedural safeguards char¬ acteristic of the judicial process. The objection is not to any system of censorship or to the delegation of any decisional authority to an executive officer where first amendment interests may be affected. The objection is to any system which allows administrative determina¬ tions either directly or indirectly to determine finally the scope or application of first amendment privileges. In order to guarantee judi¬ cial primacy in first amendment jurisprudence, the Supreme Court has reached a number of specific conclusions about the structural and procedural characteristics of constitutional regulatory schemes which affect the exercise of speech rights; we consider those conclusions in §§ 12-38 and 12-39. § 12-38. The Problem of Overbroad Delegation The earliest major uses of overbreadth analysis came in the context of the Supreme Court’s facial invalidation of statutes which delegated dangerously discretionary power to lay juries 1 and executive licensors.2 following an adversary hearing, must de¬ cide on the protected character of the speech; and that the judicial determina¬ tion must precede or immediately follow any governmental action which restricts speech.

state courts issue discovery protective or¬ ders. The Court upheld the wide range of discretion afforded to trial judges on the

2. See, e.g., Freedman v. Maryland, 380 U.S. 51, 58 (1965). Cf. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325-26 (1979) (holding that an official seizure of pre¬ sumptively protected materials is not "rea¬ sonable” within the fourth amendment un¬ less a detached and neutral magistrate has issued a warrant particularly describing the items to be seized); Maryland v. Ma¬ con, 472 U.S. 463, 476 (1985) (Brennan, J., joined by Marshall, J., dissenting) (arguing

discovery.” Id. But see Vance v. Universal Amusement Co., 445 U.S. 308, 317 (1980) (per curiam) (invalidating obscenity-nuisance statute): "Nor does the fact that the temporary pri¬ or restraint is entered by a state trial judge rather than an administrative censor suffi¬

for reversal of "obscenity convictions based on arrests unsupported by any prior judi¬ cial determination of probable cause”). 3. See Emerson, "The Doctrine of Prior Restraint,” 20 Law & Contemp.Probs. 648, 658 & n. 34 (1955). On the proposition that "[cjourts alone are institutionally able consistently to discern, and to apply, the values embodied in the constitutional guar¬ antee of freedom of speech,” see Monaghan, supra note 1, at 522-24. In Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984), the Court declined to apply heightened first amendment scruti¬ ny to the procedures by which Washington

theory that "[t]he trial court is in the best position to weigh fairly the competing needs and interests of parties affected by

ciently distinguish this case from Freed¬ man v. Maryland [380 U.S. 51 (1965)]. . . . That a state trial judge might be thought more likely than an ad¬ ministrative censor to determine accurate¬ ly that a work is obscene does not change the unconstitutional character of the re¬ straint if erroneously enacted.” 1. See, e.g., Herndon v. Lowry, 301 U.S. 12-38 242, 261-63 (1937) §(invalidating a state sub¬ versive advocacy control statute which did not "furnish a sufficiently ascertainable standard of guilt” and thereby "license[d] the jury to create its own standard in each case”). 2. See, e.g., Lovell v. Griffin, 303 U.S. 444, 450-53 (1938) (invalidating an ordi-

1056

COMMUNICATION

Out of these cases emerged

AND

EXPRESSION

Ch. 12

the general rule that, while legislatures

"ordinarily may delegate power under broad standards . . . , [the] area of permissible indefiniteness narrows . . . when the regulation . . . potentially affects fundamental rights,” 3 like those protected by the first amendment. And where a law authorizes a system of prior licensing, the Supreme Court has consistently required the statutory delegation to provide "narrowly drawn, reasonable and definite stan¬ dards for the [administering] officials to follow.”4 Statutes which open-endedly delegate to administering officials the power to decide how and when sanctions are applied or licenses issued are overbroad because they grant such officials the power to discrimi¬ nate — to achieve indirectly through selective enforcement a censorship of communicative content that is clearly unconstitutional when achieved directly.5 This covert censorship cannot be checked adequatenance forbidding the distribution of litera¬ ture without the written permission of the city manager); Cantwell v. Connecticut, 310 U.S. 296, 305-07 (1940) (invalidating a state statute prohibiting solicitation of money for religious causes without prior approval of local officials, who are required to determine whether the cause is that of a "recognized” religion and to deny certifica¬ tion if it is not). 3. United States v. Robel, 389 U.S. 258, 274-75 (1967) (Brennan, J., concurring). 4. Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (reversing disorderly conduct conviction for holding meeting in city park without a permit, where permit adminis¬ tration had been based only on custom). The constitutional administration of a facially valid permit requirement is dis¬ cussed in Blasi, "Prior Restraints on Dem¬ onstrations,” 68 Mich.L.Rev. 1481 (1970). See also § 12-10, supra. 5. See, e.g., Secretary of State of Mary¬ land v. Joseph H. Munson Co., 467 U.S. 947, 964 n. 12 (1984) (state official’s discre¬ tion to waive a requirement that charities spend no more than 25% of their proceeds on administrative expenses does not save statute from being overbroad because "a statute that requires ... a license for the dissemination of ideas is inherently sus¬ pect. By placing discretion in the hands of an official to deny or grant a license, such a statute creates a threat of censorship that by its very existence chills free speech.”); Cox v. Louisiana, 379 U.S. 536, 557-58 (1965) (Cox I) (where Louisiana stat¬ ute prohibited all obstructions of "public passages”, discretionary enforcement to permit certain parades and street meetings but to disallow others held invalid). Cf. Marcus v. Search Warrant, 367 U.S. 717, 731-33 (1961) (state procedure giving law enforcement officials broad discretion to seize allegedly obscene publications found

to lack adequate safeguards to assure the protection of nonobscene materials). The Court has similarly shown aversion to criminal statutes that amount to "standardless sweep[s] allowing] police¬ men, prosecutors, and juries to pursue their personal predilections.” Smith v. Goguen, 415 U.S. 566 (1974). In Kolender v. Lawson, 461 U.S. 352 (1983), for exam¬ ple, the Court struck down a California statute that required persons who loiter or wander on the streets to identify them¬ selves and to account for their presence when requested by a police officer. The Court found that "the statute vests virtual¬ ly complete discretion in the hands of the police to determine whether the suspect has satisfied that statute and must be per¬ mitted to go on his way in the absence of probable cause to arrest.” Id. at 358. Just as the scheme in Bantam Books, Inc. v. Sulivan, 372 U.S. 58 (1963), discussed in § 12-39, infra, chilled expression, the Court feared that the law at issue in Kolender implicated "the constitutional right to freedom of movement,” id., and had the "potential for arbitrarily sup¬ pressing First Amendment liberties.” Id., quoting Shuttlesworth v. Birmingham, 382 U.S. 87, 91 (1965). See also Board of Air¬ port Commissioners of Los Angeles v. Jews for Jesus, Inc., 107 S.Ct. 2568, 2573 (1987) (invalidating overbroad rule that, on its face, banned all "First Amendment activi¬ ties” in airport, and rejecting limiting con¬ struction that would give airport "official alone the power to decide in the first in¬ stance whether a given activity” is permis¬ sible); Houston v. Hill, 107 S.Ct. 2502, 2511 (1987) (overturning overbroad rule that banned interruption of police officers, in part because it gave them "unfettered dis¬ cretion to arrest individuals for words or conduct that annoy

or offend them”).

§ 12-38

COMMUNICATION

AND

EXPRESSION

1057

ly by judicial review of the scheme as applied in particular cases.6 For first amendment protection often depends on balancing free speech rights and governmental interests in particular situations, which de¬ pends in turn on a close, after-the-fact scrutiny of the factual circum¬ stances by the reviewing court. Except in those rare instances in which bad faith is manifest,7 the abuse of administrative discretion is likely to find shelter behind a record of contradictory testimony and retrospective rationalization.8 A court may seek to make its own characterization of the expressive activity, but its perception of the facts is inherently subjective. When was a demonstration too obstruc¬ tive of traffic? A noise too loud? Violence imminent? The tendency is to be satisfied that the evidence is sufficient if the record is not "totally devoid of evidentiary support,” the minimal due process standard.9 Factual review is therefore an unreliable cure for an overbroad delega¬ tion, and thus the Supreme Court has consistently chosen facial invali¬ dation of statutes containing essentially standardless delegations in areas affecting first amendment

rights.10

6. See United States v. Reese, 92 U.S. 214, 221 (1875); Note, "The First Amend¬ ment Overbreadth Doctrine,” 83 Harv.L. Rev. 844, 876-82 (1970). 7. Id. at 870. 8. Id. at 868. And even where states do not act in bad faith, a licensing scheme "is inherently suspect. By placing discretion in the hands of an official to grant or deny a license, such a statute creates a threat of censorship that by its very existence chills free speech.” Secretary of State of Mary¬ land v. Joseph H. Munson Co., 467 U.S. 947, 964 n. 12 (1984). 9. See Thompson 199 (1960).

v. Louisville, 362 U.S.

10. In Posadas de Puerto Rico Associ¬ ates v. Tourism Co. of Puerto Rico, 106 S.Ct. 2968 (1986), however, the Court failed to invalidate a system of administrative licensing established by a statute and regu¬ lations that restricted advertisements of casino gambling aimed at citizens of Puer¬ to Rico. The licensing scheme was created by a narrowing construction adopted by the Superior Court of Puerto Rico, which authorized "the publicity of the casinos in newspapers, magazines, radio, television or any other publicity media, of our games of chance in the exterior with the previous approval of the Tourism Company regard¬ ing the text of said ad, which must be submitted in draft to the Company.” App. to Juris. Statement 38b, quoted in 106 S.Ct. at 2987 (emphasis added) (Stevens, J., joined by Marshall and Blackmun, JJ., dis¬ senting). As Justice Stevens commented, "A more obvious form of prior restraint is difficult to imagine.” Id. The majority

expressed no view on the prior restraint argument, on the ground that it had not been raised by the casino operators chal¬ lenging the statute, either in the lower court or in the Supreme Court, see 106 S.Ct. at 2980 n. 11. Had the Court faced the issue directly, it might have held that because of the lesser constitutional value accorded to commercial speech, see §§ 1215 and 12-18, supra, a state may require "a system of previewing advertising cam¬ paigns restrictions. to insure thatCentral they will not defeat” state Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557, 571 n. 13 (1980); see also Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 668 n. 13 (1985) (Brennan, J., joined by Marshall, J., concurring in part, concurring in the judgment in part, and dissenting in part) (explaining that "tradi¬ tional prior restraint principles do not ap¬ ply to commercial speech”). One difficulty with this approach is that it permits nonju¬ dicial determinations of what is "commer¬ cial speech.” As § 12-18 makes apparent, the dividing line between the "commer¬ cial” and the "political” is hazy at best, and licensing schemes for advertising therefore run a great risk of impermissibly chilling expression that enjoys full consti¬ tutional expression. Moreover, a system which permitted regulation of speech prior to a judicial determination of its constitu¬ tional status cannot be justified on the basis that the speech in question is unpro¬ tected, for that decision cannot be made until after judicial review. The Posadas scheme thus violated the procedural safe¬ guards required by the prior restraint doc¬ trine.

1058 § 12-39.

COMMUNICATION

AND

EXPRESSION

Ch. 12

Procedural

Overbreadth Overbreadth reasoning has also been used to invalidate schemes which failed to assure adequate judicial review of administrative acts affecting expressional activitives. An extreme illustration is Bantam Books , Inc. v. Sullivan,1 in which the Supreme Court declared unconsti¬ tutional the system of informal censorship practiced by the Rhode Island Commission to Encourage Morality in Youth. The Commission

was authorized by legislative resolution "to educate the public” con¬ cerning obscene material "manifestly tending to the corruption of the youth” and "to investigate and recommend the prosecution of all violations” of the state’s obscenity laws. The Commission carried out its mandate by notifying distributors about material the Commission found obscene, by notifying the police of its findings, and by informing the distributors that it had notified the police. The Court held "the vice of the system” to be the use of "these black lists ... as instruments of regulation independent of the law against obscenity. In . . . obviating the need to employ criminal sanctions, the State has at the same time eliminated the safeguards of the criminal process .... The Commission’s practice . . . provides no safeguards whatever against the suppression of nonobscene, and therefore constitutionally protected, matter.” 2 Bantam Books is an extreme

illustration because the "black-list¬

ing” there was entirely informal, and thus entirely free of any opportu¬ nity for judicial supervision short of facial invalidation.3 Almost all 12-39 1. 372 U.S. 58 §(1963).

2. Id. at 69-70. 3. The Court in Bantam Books enter¬ tained a facial challenge to a regulatory system by four publishers who had yet to suffer any criminal penalties at the hands of the Rhode Island authorities. Justice Harlan, in dissent, castigated the majority for countenancing such a "broadside at¬ tack” on the state procedures. 372 U.S. at 82 (Harlan, J., dissenting). "Any affected distributor or publisher wishing to stand his ground on a particular publication may test the Commission’s views by way of a declaratory judgment action or suit for in¬ junctive relief or by simply refusing to accept the Commission’s opinion and awaiting criminal prosecution in respect of the questioned work.” Id. at 78-79 (Harlan, J., dissenting). In Times Film Corp. v. Chicago, 365 U.S. 43 (1961), for example, the Court rejected a facial attack on a city ordinance that required all mo¬ tion pictures to be examined and licensed by a city official prior to exhibition and remitted the petitioners to a challenge of the application of the ordinance to specific films, id. at 46. Similarly, in Laird v. Tatum, 408 U.S. 1 (1972), the Court re¬ jected the claims of peace activists and others who sought declaratory and injunc¬ tive relief that their rights were being in¬

vaded by the Army’s alleged surveillance of public disorders and lawful civilian po¬ litical activities. The claimants could point to no specific Army activities direct¬ ed against them but contended instead that the mere existence of the surveillance pro¬ gram inhibited the exercise of their first amendment rights. The Court disagreed, holding that "[ajllegations of a subjective 'chill’ are not an adequate substitute for a claim of specific present objective harm or a13-14. threat of specific future harm.”

Id. at

The announcements of the commission in Bantam Books met this test — they were essentially warning shots in a closelytargeted enforcement program. Cf. Play¬ boy Enterprises, Inc. v. Meese, 639 F.Supp. 581 (D.D.C.1986) (enjoining Attorney Gen¬ eral’s Commission on Pornography from sending letters to distributors of Playboy and other publications informing them that they might be listed as distributors of pornography in the commission’s final re¬ port). In other contexts, however, courts have entertained anticipatory facial chal¬ lenges when specific threats have appeared less concrete and less imminent. In Amer¬ ican Booksellers, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), summarily affd. 106 S.Ct. 1172 (1986), for example, the court of appeals invalidated an Indianapolis anti¬ pornography statute on the ground that its

§ 12-39

COMMUNICATION

AND

EXPRESSION

1059

regulatory systems make formal use of the legal process in one way or another; few operate without generating any occasion for the use of ad hoc judicial safeguards. However, because all regulatory systems per¬ mit some administrative discretion, the vice in Bantam Books is to some extent an endemic problem, one most consistently dealt with by de¬ manding strict procedural safeguards as a precondition for any valid prior restraint of activities linked with the first amendment.4 The procedures which the Supreme Court has found required by the first amendment may be briefly summarized: (1) The burden of proof must rest on government to justify any restraint on free expres¬ sion prior to its judicial review 5 and on government to demonstrate the particular facts necessary to sustain a limitation on expressive behav¬ ior; 6 (2) The administrator of a censorship or licensing scheme regulat¬ ing speech activities must act within a specified brief period of time; 7 (3) The administrator of a censorship or licensing scheme must be required, by statute or authoritative judicial construction, either to issue a license or to go to court to restrain unlicensed expressive acts; mere denial of the license cannot create an enforceable legal bar to definition of "pornography” was unconsti¬ tutional, see id. at 332. The court rejected the suggestion that it should wait until the city had had an opportunity to administer the statute and develop a permissible inter¬ pretation of the term: "We gain nothing by waiting. Time would take a toll, how¬ ever, on the speech of the parties subject to the act. They must take special care not to release material that might be deemed pornographic, for that material could lead to awards of damages.” Id. at 327. See § 12-17, supra; see also Pierce v. Society of Sisters, 268 U.S. 510 (1925) (invalidating statute that did not become effective until two years after challenge was brought); Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986) (per curiam), summarily affd 107 S.Ct. 1559 (1987) (striking down cable tele¬ vision indecency statute that had never been enforced in a concrete factual situa¬ tion).

4. "[Procedural safeguards often have a special bite in the First Amendment con¬ text.” G. Gunther, Cases and Materials on Constitutional Law 1373 (10th ed. 1980). Special procedural safeguards have been erected in such areas as obscenity, see § 12-16, supra; Monaghan, "First Amend¬ ment ’Due Process’,” 83 Harv.L.Rev. 518, 520-24 (1970); vagueness, see Gunther, su¬ pra, at 1185-95 & 1373 n. 2; public forum permits, see Blasi, "Prior Restraints on Demonstrations,” 68 Mich.L.Rev. 1481, 1534-72 (1970); and rebates of union dues to nonmembers, see § 12-4; Ellis v. Rail¬ "The way Clerks, 466 U.S. 435, 443 (1984). insure purpose of these safeguards is to that the government treads with sensitivi¬ ty in areas freighted with First Amend-

ment concerns.” Chicago Teachers Union v. Hudson, 475 U.S. 292, _ n. 12 (1986) (invalidating union dues rebate scheme, in part because it failed to afford a reasona¬ bly prompt opportunity for dissenters to challenge the amount of the fee before an impartial arbiter). 5. See Freedman v. Maryland, 380 U.S. 51, 58 (1965) (striking down, for lack of procedural safeguards, motion picture cen¬ sorship statute which required exhibitors to submit films to an administrative board prior to their showing). 6. See Speiser v. Randall, 357 U.S. 513, 526 (1958) (invalidating statute which al¬ lowed tax assessor to deny tax exemptions to veterans and placed on claimant the burden of proving that he did not advocate the violent overthrow of the government). Cf. Smith v. California, 361 U.S. 147 (1959) (striking down statute which held booksell¬ ers criminally liable for possession of ob¬ scene books without the necessity of gov¬ ernment proving the bookseller’s knowledge of the contents of the books). 7. See Freedman, 380 U.S. at 59. See, e.g., Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968) (50 to 57 days too long); Inter¬ state Circuit, Inc. v. Dallas, 390 U.S. 676 (1968) (12 days, or earlier if practicable, held a permissible period). In United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971), the Court construed the statute authorizing customs seizures and forfeitures of obscene materials to allow no more than 14 days from the seizure of the goods to the institution of judicial proceed¬ ings.

1060

COMMUNICATION

AND

EXPRESSION

Ch. 12

expressive activities; 8 (4) No ex parte court order is valid if adversary hearing on the question of interim relief is practicable; 9 "Any restraint imposed in advance of a final judicial determination the merits must be . . . limited to preservation of the status quo

an (5) on for

the shortest fixed period compatible with sound judicial resolution;” 10 8. Freedman, 380 U.S. at 59. See, e.g., Blount v. Rizzi, 400 U.S. 410 (1971) (hold¬ ing unconstitutional a federal statute which enabled the post office to block the

463 (1985), a plainclothed detective entered an adult bookstore, browsed through it, and ultimately purchased two magazines, which the state later offered into evidence

delivery of mail administratively deter¬ mined to be obscene; the postmaster’s or¬ der became effective without judicial re¬ view, and the burden of obtaining judicial relief was placed on the individual).

at the trial of the bookstore’s owner for distribution of obscene materials. The Court held that a sale in the ordinary course of business did not constitute a

9. See Carroll v. President and Commis¬ sioners of Princess Anne, 393 U.S. 175, 181-183 (1968) (invalidating a 10-day ex parte order, issued without notice, re¬ straining a white supremacist group from holding public rallies or meetings). 10. Freedman, 380 U.S. at 59. In Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957), the Court upheld a statute per¬ mitting issuance ex parte of temporary or¬ ders against the distribution of obscene material. Justice Frankfurter’s opinion for the Court stressed the brevity of the restraint. In Freedman, 380 U.S. at 60, the Court understood the procedure in Kingsley to have postponed any restraint against sale until after a judicial decision following an adversary hearing. The issue often arises in the context of the application for a warrant authorizing the seizure under obscenity statutes of materials presumptively protected by the first amendment. In A Quantity of Books v. Kansas, 378 U.S. 205 (1964), and Marcus v. Search Warrants, 367 U.S. 717 (1961), the Court invalidated the large-scale seizures of obscene material in circum¬ stances where they effectively would con¬ stitute prior restraints and held that such seizures must be preceded by an adversary hearing. In Lee Art Theatre, Inc. v. Vir¬ ginia, 392 U.S. 636 (1968) (per curiam), the Court held that a warrant authorizing the seizure of materials presumptively protect¬ ed by the first amendment may not issue on the conclusory testimony of a police officer but must instead be based on affida¬ vits setting forth specific facts in order that the magistrate may "focus searchingly on the question of obscenity,” id. at 637, quoting Marcus, 367 U.S. at 732. And in Roaden v. Kentucky, 413 U.S. 496 (1973), the Court determined that police may not rely on the "exigency” exception to the fourth amendment’s warrant requirement in seizing allegedly obscene materials. But the Court has also upheld seizures of alleg¬ edly obscene materials by narrowing the meanings of "seizure” and "prior re¬ straint.” In Maryland v. Macon, 472 U.S.

"search” within the meaning of the fourth amendment, id. at 468-69, and noted that the purchase by the police "of a few of a large number of magazines and other materials offered for sale” did not raise the specter of a "prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizures of First Amendment materials.” Id. at 470. In Heller v. New York, 413 U.S. 483 (1973), the Court upheld the seizure of a single copy of a film and its detention as evidence where there was "no showing or pretrial claim that the seizure of the copy prevented continuing exhibi¬ tion of the film.” Id. at 492. Even though the seizure did not amount to a prior re¬ straint, the Court still required that it be made pursuant to a warrant and that there be an opportunity for a prompt post-seizure judicial determination of obscenity, see id. at 493. The Court has also ruled that no stan¬ dard higher than mere probable cause is required by the first amendment for issu¬ ance of a warrant to seize allegedly ob¬ scene materials. See New York v. P.J. Video, Inc., 475 U.S. 868 (1986). Such a warrant must therefore be evaluated under the same probable-cause standard used to review warrant applications generally — that there be a "fair probability” that evi¬ dence of a crime will be found in the par¬ ticular place to be searched. See id. at 1615-16. A persuasive case can be made, however, that allegedly obscene materials should be treated differently. The Su¬ preme Court itself has been incapable of articulating a precise definition of "obscen¬ ity,” see § 12-16, supra. It is difficult to believe that a magistrate, armed only with the bare affidavit of an investigator and a sketchy decription of the work at issue, will be able to do any better. "A mere listing of sex acts depicted in a film, or a description of excerpted scenes, says little about the predominant effect of the film considered as a whole[,] . . . whether the film, considered as a whole, has any artis¬ tic value[,] . . . [and] how the film should be regarded in light of contemporary com-

§ 12-39

COMMUNICATION

AND

EXPRESSION

1061

(6) A scheme of censorship or licensing must assure a "prompt final judicial decision” reviewing any "interim and possibly erroneous denial of a license;” 11 (7) If a prior restraint is ordered by a court, the state must either stay the order pending its appeal or provide immediate appellate review.12 The Court’s commitment to these procedural safe¬ guards, as well as to the substantive values that underlie the first amendment, remains powerful. As the Constitution stands poised to enter its third century, its majestic guarantees of free expression deserve no less. munity standards.” 475 U.S. at _ (Mar¬ shall, J., joined by Brennan and Stevens, JJ., dissenting). This problem is com¬ pounded by the fact that many affidavits do not contain descriptions of every scene (or even most of the scenes) of the film in question. Id. There is therefore a grave danger in such situations that the authori¬ ty to define ''obscenity,” rests not with the judiciary but rather with the police. 11. Freedman, 380 U.S. at 59. See also Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 316-17 (1980) (striking down state nuisance statute which authorized in¬ junctions against future exhibition of un¬ named films not yet found obscene). The requirement of a deadline for a final judi¬ cial decision applies to the trial stage. In¬ terstate Circuit, Inc. v. Dallas, 390 U.S. at 690 n. 22. It is clear that it is the decision, and not merely the hearing, which must be prompt.

See, e.g., Teitel Film Corp. v. Cu¬

sack, 390 U.S. at 142; Southeastern Pro¬ motions, Ltd. v. Conrad, 420 U.S. 546, 562 (1975). 12. See National Socialist Party of America v, Skokie, 432 U.S. 43 (1977) (per curiam) (where state court enjoined a dem¬ onstration by the Nazi Party and Illinois Supreme Court refused a petition for expe¬ dited appeal of the injunction order, the state was required to allow a stay of the injunction). M.I.C., Ltd. v. Bedford Town¬ ship, 463 U.S. 1341, 1342-43 (1983) (Bren¬ nan, Circuit Justice) (granting stay of pre¬ liminary injunction which prohibited applicants from showing allegedly obscene films because state appellate review would not be forthcoming for up to six months). On the difficulties of obtaining timely re¬ view, see Rendleman, "Free Press-Fair Trial: Review of Silence Orders,” 52 N.C.L. Rev. 127 (1973).

Chapter 13 RIGHTS OF POLITICAL PARTICIPATION § 13-1. Political Participation: Rights Poised Between Procedu¬ ral Due Process and the Freedoms of Expression and Association Voting rights subsume such distinct concerns as the citizen’s oppor¬ tunity to cast a vote, the community’s chance to be represented within a larger polity in proportion to its population, the racial group’s ability to prevent the purposeful dilution of its voting power, the candidate’s capacity to gain a place on the ballot, and the constituent’s chance to contribute to a chosen candidate. These distinct interests, however, spring from a common root. They share a concern with the election process that is both a source and a product of our federal scheme of representative government. At their core, all voting-related rights are rights to participate in this process, and the import of the process for our system of government freights them with their indisputable mo¬ ment.1 Given their essential character as parts of the election process, rights relating to the franchise stand poised between procedural due process, with its guarantee that an individual may participate in the application of general rules to that individual’s particular situation,2 and the first amendment, with its guarantee that an individual be allowed to participate in the most general communicative processes that determine the contours of our social and political thought.3 At the same time, election-related rights display the special feature that the equality with which they are made available, rather than the fact of their availability or absence, ordinarily proves decisive. Although most of the law in this area is thus part of equal protection doctrine,4 its unique significance — and its close relationship to both due process and free speech — justifies its separate analysis at this point under the general heading of "preferred rights,” before the general Model Equal Protection is itself set forth.5 1. In Wesberry v. 3Sanders, 376 U.S. 1, § 1 -1 17 (1964), the Court testified to the funda¬ mental character of the right to vote: "No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” 2. See Chapter 10, supra.

of

3. See Chapter 12, supra. Rights to vote on referenda or other direct popular measures, to campaign for such measures, or to win the opportunity to present them to the public, are of course closely allied with rights pertaining to the choice of gov¬ ernmental representatives. Such "plebi¬ scite rights” will be separately discussed in § 13-17 of this chapter. 4. See Chapter 16, infra. 5. Id.

1062

§ 13-3

1063

RIGHTS OF POLITICAL PARTICIPATION

§ 13-2. Apportionment While a discussion of the complete abnegation of an identifiable group’s right to vote may seem logically antecedent to a discussion of the dilution of the franchise through malapportionment, the latter subject will be addressed first. Historically, it was the reapportionment issue that first compelled the courts to assay the scope and content of the right to vote. Moreover, the reapportionment cases draw to the surface many of the theoretical conundrums that underlie other aspects of the right to vote. When the long-standing judicial reluctance to interfere in the political task of apportionment finally yielded to the manifest need to rectify gross malapportionment, the Court envisioned no great difficul¬ ty in resolving the substantive issues that the Court had just brought within its purview: " Judicial standards under the Equal Protection Clause are well developed and familiar . . . . ” 1 History has proved the Court more hopeful than clairvoyant. Courts and commentators have divided sharply on the criteria that should govern apportionment.2 Even where a particular rule is universally embraced, its philosophical premises seldom command a clear consensus — a situation that presages controversy when a more subtle problem arises whose solution is sensitive to the premises accepted. The general precepts of apportion¬ ment doctrine are, nonetheless, easy to articulate. There is a guaran¬ tee of some form of mathematical equality: every individual has the right to have her district represented in proportion to its population. There is, as well, a more elusive guarantee of fair representation: certain mathematically palatable apportionment schemes will be over¬ turned because they systematically circumscribe the voting impact of specific population groups. The following sections seek to define these principles more sharply. § 13-3. The Quantitative

Dimension:

One

Person, One

Vote

The Court’s first substantive venture into the " political thicket” 1 came in Gray v. Sanders ,2 where the plaintiffs challenged Georgia’s county-unit method of tallying votes in Democratic party primary elections for state- wide offices. The method closely paralleled the electoral college system used to elect the President: Georgia candidates toward 1. Baker (1962).

v. Carr,13-369 U.S. 186, 226 2 §

2. See, e.g., the contrasting views es¬ poused by the contributors to Reapportion¬ ment in the 1970s (N. Polsby ed. 1971). The uncertainty about the proper standard of review for apportionment schemes was manifest in Baker itself. Writing for the majority, Justice Brennan held the appor¬ tionment issue justiciable because "it has been open to courts since the enactment of the Fourteenth Amendment to determine . . . that a discrimination reflects no poli¬ cy, but simply arbitrary and capricious ac¬ tion.” Id. at 226. The language points

the rational relation standard

of

equal protection review. See §§ 16-2 to 16-3, infra. But the rational relation stan¬ dard of review would support only the most limited judicial intervention in matters of legislative apportionment — a result seem¬ ingly at odds with the aggressive tone of Baker. See Casper, "Apportionment and the Right to Vote: Standards of Judicial Scrutiny,” 1973 Sup.Ct.Rev. 1, 7.

1. The less-than-neutral phrase was coined by Justice Frankfurter in Colegrove v. Green, 328 U.S. 549, 556 (1946). § 13-3 2. 372 U.S. 368 (1963).

1064

RIGHTS

OF POLITICAL

for positions such as Governor

Ch. 13

PARTICIPATION

and United States Senator were nomi¬

nated by a vote of the state’s counties, in which each county was allocated a number of votes and all the votes allocated to a given county were imputed to the candidate who had received a plurality of that county’s popular vote. The Supreme Court held that a unit-vote system in elections for a single office in a single constituency contravened the equal protection clause.3 Justice Douglas, writing for the Court, em¬ phasized the citizens’ votes that were "wasted” when small popular vote margins were translated into a sweep of all of the county’s votes.4 Although he carefully delimited the decision so as to exclude issues of legislative apportionment,5 the logical implications of the decision proved hard to confine. In brief, the opinion implied that there existed a personal right to cast a vote that was the mathematical equivalent of the vote cast by any other member of the same constituency. Justice Stewart put the proposition succinctly in a concurring opinion: "Within a given constituency, there can be room for but a single constitutional rule — one voter, one vote.” 6 Problems concerning congressional apportionment

were

squarely

posed by Wesberry v. Sanders ,7 another Georgia case. The plaintiffs, residents of an allegedly underrepresented Atlanta congressional dis¬ trict, objected to the fact that the district contained almost 20 percent of the state’s population but elected only 10 percent of the state’s representatives in Congress. Relying upon article I, § 2, which pro¬ vides that Representatives shall be chosen "by the People,” the Court struck down Georgia’s districting system.8 Justice Black, writing for the majority, rooted his conclusion in an historical argument: Article I, § 2, was said to have been intended to govern intrastate congressional apportionment,

so as to eliminate population disparities among

dis¬

tricts. Although the Court’s historical scholarship may have been suspect,9 the Court made clear its independent conviction that there 3. Id. at 379. 4. One spectre that plainly troubled the Court was that of the winner of the popu¬ lar vote losing the election. It is common¬ ly suggested, in reference to the electoral college, that such mere possibilities are not relevant; rather, the focus should be upon the patterns of results that the challenged arrangements actually entail. See gener¬ ally Auerbach, "The Reapportionment Cases: One Person, One Vote — One Vote, One Value,” 1964 Sup.Ct.Rev. 1, 32-34. 5. 372 U.S. at 378 6. Id. at 382. See also id. at 381 ("one person, one vote”). In subsequent cases and commentaries, the equal population rule was generally capsulized as "one man, one vote.” Later, in apparent recognition of the fact that the franchise does extend to both sexes, the Court fortunately re¬ turned to the more universal "one person, one vote” formula. See Mahan v. Howell, 410 U.S. 315, 319 (1973). 7. 376 U.S. 1 (1964).

8. "[C]onstrued in its historical context, the command of Art. I, § 2, that Represent¬ atives be chosen 'by the People of the sev¬ eral States’ means that as nearly as is practicable one man’s vote in a congres¬ sional election is to be worth as much as another’s.”

Id. at 7-8.

9. The majority’s attempt to show that Article I, § 2, was concerned with intra¬ state population disparities seems uncon¬ vincing in light of the evidence adduced by Justice Harlan in dissent. See id. at 3032. See also Kelly, "Clio and the Court: An Illicit Love Affair,” 1965 Sup.Ct.Rev. 119. Justice Harlan conceded that the Framers expected Congress to use its pow¬ ers under §§ 4 and 5 of Article I to ensure that there were no substantial intrastate population disparities. He contended, however, that Congressional action was to be the exclusive remedy for malapportion¬ ment. 376 U.S. at 23, 30 n.13, 33-39. Sig¬ nificantly, he did not comment on the probability that legislators who had achieved their positions through malappor-

§ 13-3

RIGHTS

OF POLITICAL

1065

PARTICIPATION

existed a basic right to have one’s legislative representatives appor¬ tioned according to population. The decision was based upon a straightforward notion: "[0]ne man’s vote . . . is to be worth as much as another’s.” 10 The reapportionment revolution reached full strength in Reynolds v. Sims 11 and its companion cases.12 Unlike Wesberry, Reynolds and its companions dealt with state legislative apportionment rather than congressional apportionment; consequently, the cases were cast in equal protection terms rather than in terms of article I, § 2. While the source of the doctrine varied, its content was largely the same: the Court insisted that equal numbers of voters should elect equal numbers of representatives. Reynolds , the case the Court chose to bear the principal opinion, dealt with the gross malapportionment of the Ala¬ bama state legislature. Ratios between constituency populations ranged as high as 46 to 1 in the state senate and 16 to 1 in the lower house. A majority of each house of the legislature could be elected from districts comprising about 25 percent of the state’s population. Not surprisingly, the Court invalidated this apportionment scheme. In doing so, it ascribed broad constitutional status to the premise that informed the Gray and Wesberry opinions: "[A]n individual’s right to vote for State legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.” 13 The conclusion: again, one person one vote. More specifically, representation in a state legislature must be closely based upon population unless a legitimate state objective demands otherwise.14 The Reynolds opinion did little to illuminate the specific scope and content of the one person, one vote rule. Left unclear were the types of legislatures which would be covered by the rule, the degree of mathe¬ matical equality among districts required, and the types of state policy which could justify extraordinary deviations from mathematical equali¬ ty. These issues were left to a process of ongoing judicial resolution, which will be assayed in the following sections. Reynolds and its companions did, however, resolve several pivotal problems. Specifically, in Maryland Committee for Fair Representation v. Tawes, the Court held that the equal population rule applied to both houses of a bicameral

state legislature.16 In Lucas

tionment would be unlikely to remedy such electoral schemes. 10. 376 U.S. at 8. 11. 377 U.S. 533 (1964).

12. Several reapportionment cases be¬ fore the Court at the same time as Reyn¬ olds received full dress opinions. See Lu¬ cas v. Forty-Fourth Colorado General Assembly, 377 U.S. 713 (1964); Roman v. Sincock, 377 U.S. 695 (1964); Davis v. Mann, 377 U.S. 678 (1964); Maryland Com¬ mittee for Fair Representation v. Tawes, 377 U.S. 656 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964). Several oth¬ er apportionment cases before the Court at

v. Forty-Fourth

that time were disposed of by per curiam orders. 13. 377 U.S. at 568. 14. See id. at 579. 15. 377 U.S. 656 (1964). 16. The Court rejected the validity of Maryland’s "federal plan" in which the lower house was apportioned on the basis of population and the upper house appor¬ tioned so as to give each county one vote regardless of its population. The Court, adopting the view that the relevant con¬ cern was the "combined total representa¬ tion" of the state legislature, invalidated both houses of the legislature. Id. at 672,

1066

RIGHTS

OF POLITICAL

PARTICIPATION

Ch. 13

Colorado General Assembly,11 the Court dispelled any notion that an otherwise impermissible apportionment could be saved by its adoption through popular referendum,18 and in Reynolds it ruled that an appor¬ tionment would not be saved by its origin in the state constitution.19 Finally, Lucas imposed upon the state the burden of justifying devia¬ tions from the equal population standard. The imposition of this burden was of singular practical importance, given the difficulty of proof and argument in matters so elusive as proper representation. Scope

of the Guarantee

The equal population rule has been held to extend to a variety of election situations. Reynolds v . Sims 1 and its companions brought state legislative districting within the compass of the one person, one vote mandate. The rule, as we have seen, applied to both houses of a

.

9

§ 13-4. The

bicameral state legislature. And the Court’s earlier pronouncement in Gray v . Sanders 2 had brought statewide executive offices within the proposition’s reach. The relevance of the rule of mathematical equality to local govern¬ ments confounded the Court for a time. Early decisions tended to except local apportionment from the Reynolds rule, but the distinctions on which this exception was based were eroded over time. The Court’s first pronouncements on the subject of local apportionment came in Sailors v. Board of Education 3 and Dusch v. Davis.4 Sailors involved the school consolidation plan of Kent County, Michigan. The county school board was selected by representatives of local school boards, each such board casting one vote regardless of the population it represented. The Court unanimously held the one person, one vote rule inapposite on these facts — first, because the county board was basically appointive rather than elective,5 and second, because the board was administrative rather than legislative.6 each house on the basis of population. The Court invalidated the popularly endorsed federal plan, explaining that "[a]n individ¬ ual’s constitutionally protected right to cast an equally weighted vote cannot be denied even by a vote of a majority of a State’s electorate.” Id. at 736.

1. 377 U.S. 533 (1964).

18. In a one person, one vote referen¬ dum, Colorado voters had opted for a feder¬ al plan, rather than one that apportioned

2. 372 U.S. 368 (1963). 13-4 3. 387 U.S. 105 §(1967).

.

17. 377 U.S. 713 (1964).

4 t58

sidered as sovereign entities.” 377 U.S. at 575.

S.a

resentation in the Senate; but "[political subdivisions . . . counties, cities, or what¬ ever — never were and never have been con¬

7U.

37

674. See also Reynolds v. Sims, 377 U.S. at 568. Some were dismayed that the Court would hold unconstitutional the very accommodation of majoritarianism and ter¬ ritoriality that the Framers had settled upon for the federal government. See, e.g., Lucas v. Forty-Fourth Colorado General Assembly, 377 U.S. 713, 756-57 (1964) (Stewart, J,, dissenting on the ground that the federal plan ensured some representa¬ tion of small localities). The Reynolds Court, however, thought the analogy to the federal legislature ill-founded: states are sovereignties and as such are provided rep¬

4. 387 U.S. 112 (1967). See also Dallas County v. Reese, 421 U.S. 477 (1975) (per curiam). 5. Sailors, 387 U.S. at 109. 6. Id. at 109-10. The Court left open the question whether there were lawmak¬ ing offices that must be elective rather than appointive. See § 16-10, note 1.

§ 13-4 In Dusch

OF POLITICAL

PARTICIPATION

1067

v. Davis 7 the Court upheld the election system for

Virginia Beach’s consolidated city council, even though the at-large election system imposed the requirement that at least one council member reside in each of the city’s seven boroughs, which varied greatly in population. The Court reasoned that the plan did not violate the one person, one vote principle because the council members who were required to reside in particular boroughs were, nonetheless, repre¬ sentatives of the entire city population rather than of the borough in which they resided. Thus each council member represented the same number of people. In Avery v. Midland County 8 the Court explicitly extended the rule of Reynolds v. Sims to local governmental units with "general responsi¬ bility.” Overturning the selection process for the Commissioner’s Court of Midland County, the Court declared that the Equal Protection Clause extended to any body that possessed "general governmental powers over an entire geographic area.” 9 For such subdivisions, the Court expressly rejected the propriety of non-population apportionment criteria such as the number of qualified voters, land area, miles of .

3

1

RIGHTS

county road, and taxable values.10 The Court handed down its next edict on the scope of the one person, one vote rule in Hadley v. Junior College District .n This case involved a challenge to a Missouri statute allowing the creation of a junior college district only half of whose trustees were elected by member districts accounting for almost 60 percent of its population. The Court, in disapproving this electoral scheme, held that "as a general rule, whenever a state or local government decides to select persons by a popular election to perform governmental functions, the equal protection clause of the fourteenth amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, so far as practicable, that equal numbers of voters can vote for proportionately equal numbers

of officials.12 Although

this holding

appeared to abandon Avery’s limitation of the Reynolds rule to bodies with "general governmental powers,” the Court fell short of extending the one person, one vote standard to all local elections. Hadley de¬ clined to apply that standard to "case[s] in which a state [opts to elect] certain functionaries whose duties are . . . far removed from normal governmental

activities and

. . . disproportionately affect different

groups.” 13 Hadley held that the election of school board trustees did not fall within this excepted category because such officials performed 7. 387 U.S. 112 (1967). 8. 390 U.S. 474 (1968). 9. Id. at 484-86. 10. Id. at 478. But see § 13-25, infra, note 10.

12. Id. at 56. The language is notewor¬ thy because it says that "so far as practica¬

the Court stressed that "mathematical actitude is not required.” Id. at 58.

56. Ida.t

11. 397 U.S. 50 (1970).

ble” there must be equality. Ostensibly the Court applied the more stringent test of mathematical equality to this matter of local apportionment. Elsewhere, however, ex¬

.

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traditionally important governmental functions, which did not dispro¬ portionately affect specific groups.14 Since Hadley , however, the Court has twice declined to apply the one person, one vote principle to specialized local bodies. Salyer Land Co. v. Tulare Lake Basin Water Storage District 15 held the Reynolds rule inapplicable to the election of members of a water district whose primary purpose was to provide for the acquisition, storage, and distri¬ bution of water for farming in the surrounding river basin.16 Ball v. James 17 reached the same conclusion in the context of a much larger water district, which not only stored and delivered water but also generated and supplied electricity for many of the residents of the State.18 In Ball , the Court held that the district’s purpose was '"suffi¬ ciently specialized and narrow” and that its activities affected landown¬ ers "so disproportionately” as to release it from the demands of the Reynolds rule.19 Whether the Court will extend Salyer and Ball to special purpose local bodies that are not primarily concerned with supplying water and power remains unclear.20 Taken together, Hadley , Salyer , and Ball give the Court much room for maneuver in deciding whether a particular local unit with specialized responsibilities is subject to the requirements of the Reynolds rule.

§ 13-5. One Person, One Vote: The Requisite Approximation Equality

of

Even where the one person, one vote principle governs, a recurring question is how far from precise mathematical equality an apportion¬ ment scheme may stray before it violates the Constitution. In Reyn¬ olds , the Court emphasized that it was not requiring precise numerical equality of the state legislative districts: "[W]e mean

that the Equal

14. Id. at 53-54, 56.

in Ba Ju Wh su th th ll e s a g i t t g t , eos t Co ho ice wa e ba p nt h re so p se 16. Indeed, the Court went so far as to th urt th prldi an ed wea miis an f d o at ’s e ov ng d te we s find that certain voters who did not have i es prsi arc Ser id. e at se e t o 38 nt Th thporni Co ma ivire to ap property interests in the basin had no right e et ur p 6. ial us y tyfus th re ly , in Saaryt an Ba. e to sp ly to vote at all. See §§ 13-11, 16-50, infra. ll e ec ly d as i er on iunn pu th pe mo "t al 17. 451 U.S. 355 (1981). Justice Stew¬ ra at reH ti rpo g git frufo d o art wrote for the majority, joined by Chief on se ove s ncfrm v we i¬ Ju al Po r de r t v ifit wte nm s lci Justice Burger and Justices Powell, Rehnohn otee efleer, b thsticv”i a t s l e s o h h o i x s ct y l at’s nt e ee os . cl n v quist, and Stevens. Justice White, joined , th sp w laol g ebo cae ap ud teod a c e e e n p d a c d by Justices Brennan, Marshall, and Blackl ia a pr sty leeal li pp gi o a mun dissented. See also § 13-11, infra. tre In sl fe in pwehr tzhedort ar fa w e at d i l i ad e e p io icy r d y r a c s d t t e le ureer¬ l ouh oese he ho ne elfy 18. As in Salyer, the Court isnot only c en rt t se sc tuhld dst erle te ch tora to nt s ha held that the one person, one vote standard a e g o d h to t t , 4 se U l th pe eme th loc bo e to eimsla 51 .S was inapplicable, but also held that resi¬ em e rm d t pl ur al . y dents of the district who did not own land aj at i3t (c op oy e Ju 73 or s on t itn . h t -7co th itPo cu ha ad biecee had no right to vote at all. See §§ 13-11, is heioon 4 nc yowe t r ri v. U ry)F.r re pilnl by edeKr Sc n 16-56, infra. ni ng je io ho e a d odil Di cte n No 15mer39 U. on62 (1e s¬ 9 , s S 5 . 1 d 6 t . 19. 451 U.S. at 362. The Court’s con¬ cu ric in § 13 in bu no 9), th fr a ss t t te clusion that the district’s activities dispro¬ a, ed of th [K 11, d. . hat " r . s e portionately affected landowners seems e s o a ra me 45 be me qu U.son at 37 n.2 doubtful. Unlike the district in Salyer, the r] 1 S. in 3 en es . g ti district in Ball provided electricity to hun¬ on ed dreds of thousand of state residents — land.” owners and nonlandowners alike. See id. at 365. 15. 410 U.S. 719 (1973).

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Protection Clause requires that a State make an honest and good faith effort to construct districts ... as nearly of equal population as is practicable.” 1 Taken literally, this formulation is troublesome. If no non-population constraints are imposed and if a jurisdiction proceeds diligently, virtually exact equality of legislative districts is practicable.2 Unless the Court’s practicability language is to be deemed superfluous, one or both of the following propositions must be true: first, there are permissible non-population constraints; second, states need not expend the effort to reduce interdistrict inequality below a certain threshold. The first of these propositions will be dealt with in the following section; the second will be addressed here. The facts of the 1964 reapportionment decisions were such that the cases shed scant light on the degree of mathematical equality the Court would exact from the states. In all of the cases, the malapportionment was gross and indisputable; 3 hence Court disapproval of the schemes was not inconsistent with the proposition that some modicum of mathe¬ matical deviation would be tolerated. And as we have seen, the "practicability” language of Reynolds does little to clarify matters. The failure of the 1964 decisions to clarify the requisite degree of equality probably traces to the Court’s inability to fashion a theory which accommodated the need for exact equality that flowed so imperatively from the logic undergirding one person, one vote, with the judicial reluctance to intrude upon what was primarily a legislative domain when the error to be corrected was rather small.4 While the Court seemed to resolve this tension in favor of the latter consideration, it never made explicit its process of resolution. By the time the Court next considered the reapportionment prob¬ lem, the pendulum had swung in favor of demanding almost exact mathematical equality — v. Adams ,5 invalidating structed so as to comply that no deviations from

again, without explicit explanation. In Swann a Florida apportionment plan purportedly con¬ with the Reynolds mandate, the Court declared strict equality would be sanctioned unless they

were de minimis 6 or justified by "a satisfactory explanation grounded on acceptable state policy.” 7 Though the Court failed to define the 1. 377 U.S. at 577 (emphasis added). § 13-5 See also 377 U.S. at 579 ("substantial equality of population among the various

to 1 or more. In every case, districts com¬ prising 45.1 percent of the population or

districts”).

less could elect a majority of the house’s members. In most cases the disparities were substantially more pronounced than these outer limits suggest. See generally

2. See R. Dixon, Representative Gov¬ ernment (1968). But the Court was firm upon the impracticality of effecting exact

Auerbach, "The Reapportionment Cases: One Person, One Vote — One Vote, One Value,” 1964 Sup.Ct.Rev. 1, 16-17.

equality: "We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathe¬ matical exactness or precision is hardly a workable constitutional requirement.” 377 U.S. at 577. See also Roman v. Sincock, 377 U.S. 695, 710 (1964).

3. Every legislative house that was deemed constitutionally repugnant had a maximum population variance ratio of 2.4

4. See Reynolds v. Sims, 586 (1964); Davis v. Mann, 693 (1964); Ely v. Klahr, 403 (1971); White v. Weiser, 412 (1973). 5. 385 U.S. 440 (1967). 6. Id. at 444. 7. Id.

377 U.S. 377 U.S. U.S. 108, U.S. 783,

533, 678, 114 795

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range of deviations that would be deemed that Swann olds.

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de minimis , it was evident

imposed a significantly stricter standard than had Reyn¬

The Supreme Court tightened the reins still further in Kirkpatrick v. Preisler , a decision that overturned a Missouri apportionment plan allowing only minuscule deviations from numerical equality.8 The Court held that even slight deviations were permissible only if they were unavoidable despite good faith efforts to achieve absolute equali¬ ty.9 The Court, in other words, rejected the de minimis defense of population deviations and instead embraced an unwavering practicality standard: in its congressional districting plans a state was required to approximate precise mathematical equality as closely as possible. Kirkpatrick failed to announce whether the standard of strict equality applied to all apportionment schemes or pertained only to the appor¬ tionment of congressional districts. In Mahan v. Howell ,10 however, the Court chose the latter course, upholding the apportionment of Virgin¬ ia’s House of Delegates despite substantial interdistrict population deviations. The Mahan court held that the rigid standards enunciated in Kirkpatrick were inapplicable to problems concerning state legisla¬ tive apportionment.11 The distinction articulated in Mahan

has been honored

in subse¬

quent cases. The Court reaffirmed the applicability of Kirkpatrick's strict equality standard to Texas congressional districting in White v. Weiser,12 yet on the same day announced two state legislative apportion¬ ment decisions in which it employed the more lax standard of equali¬ ty.13 In one of these decisions, Gaffney v. Cummings,14 the Court held that population deviations ranging up to 7.83 percent in Connecticut legislative districts did not establish a prima facie case of invidious discrimination. A decade later, the Court once again affirmed the Mahan distinction in a pair of cases decided on the same day. In Karcher v. Daggett 15 the Court rejected an argument that a congres¬ sional districting plan is per se valid if the maximum population deviation among districts is smaller than the statistical imprecision of 8. 394 U.S. 526 (1969). variance ratio involved in approximately 1.06 to 1, deviated from the ideal 3.13%. 9. 394 U.S. at 531.

The population Kirkpatrick was and no district by more than

See also Wells v.

Rockefeller, 394 U.S. 542 (1969). Kirkpat¬ rick left no room for doubt about the strin¬ gency of the test it espoused: ’'the State must justify each variance, no matter how small.” 394 U.S. at 531. The record in the case showed that the Missouri legisla¬ ture had before it an alternative plan with smaller deviations from the mathematical ideal. 394 U.S. at 532. 10. 410 U.S. 315 (1973). 11. The Mahan distinction had been hinted at in earlier decisions reaching all the way back to Reynolds v. Sims, in which the Court had opined that "[sjomewhat more flexibility may ... be constitution¬

ally permissible with respect to state legis¬ lative apportionment than in congressional districting.” 377 U.S. 533, 578 (1964). The Court almost certainly overstated the case, however, when it insisted that the "dichot¬ omy between the two lines of cases has consistently been maintained.” at 322,

410 U.S.

Justices Brennan, Marshall and Douglas dissented from the Court’s opinion in Ma¬ han, contending that the absolute equality rule should govern all aoportionments. Id. at 349. 12. 412 U.S. 783 (1973). 13. Gaffney v. Cummings, 412 U.S. 735 (1973); White v. Regester, 412 U.S. 755 (1973). 14. 412 U.S. 735 (1973). 15. 462 U.S. 725 (1983).

§ 13-6

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available census data.16 The Court reiterated the Kirkpatrick holding that no population deviation that could practicably be avoided was permissible in congressional districting plans.17 In Brown v. Thom¬ son 18, however, the Court wrote that in state legislative districts, population disparities ranging up to 10% were de minimis and did not require justification by the state. As in prior cases, the Court made little effort to justify this distinction between congressional and state legislative apportionment schemes.19 While there may be some justifi¬ cation for distinguishing between congressional and state legislative apportionment when considering how far a state may stray from exact equality in pursuit of a legitimate objective, no such rationale supports a distinction concerning the appropriateness or extent of the de minimis defense. An appropriately formulated standard of interdis¬ trict equality, allowing minor deviations, could well be applied to both types of cases.20 § 13-6. One Person, One Vote: Deviations mate State Goal

Justified by a Legiti¬

Apart from those deviations from the one person, one vote standard that have been tolerated as de minimis , avoidable deviations have been sanctioned where designed to effectuate a substantive state policy deemed legitimate by the Court. Here, as was the case with the de minimis defense, different standards obtain with respect to state and local apportionment on the one hand and congressional districting on the other. With respect to state legislative apportionment, the Court was quick to sound a permissive note. While espousing the one person, one vote principle, Reynolds acknowledged that its application was limited by relevant state goals: "So long as the divergences from a strict population standard are based on legitimate considerations inci¬ dent to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible . . A9.1 16. The maximum population deviation in the case was approximately .7%; the

is repugnant, as suggested by Kirkpatrick v. Preisler, 394 U.S. 526 (1969). If the

state presented evidence that the predict¬ able undercount in census data was at least 1%. See id. at 728, 735.

cutoff level were determined by the devia¬ tions that would be expected from strict equality due to shifts in population and the administrative difficulty of drawing dis¬ trict lines precisely, an acceptable standard could be formulated. Moreover, a state that attempted to aim precisely for the cutoff level rather than for strict equality

17. Id. at 731-34. 18. 462 U.S. 835 (1983). 19. In Gaffney v. Cummings,

412 U.S.

735 (1973), the Court averred that "there are fundamental differences between con¬ gressional districting under Article I . . . and . . . state legislative reapportion¬ ments governed by the Fourteenth Amend¬ ment.” Id. at 741-42. The Court, howev¬ er, failed to explain why the difference in the constitutional source of the rights should bear the consequence that the Court has given it.

20. While there is, perhaps, no non-arbitrary way to choose a cutoff point sepa¬ rating minimal from substantial inequality for purposes of such a standard, it is not clear why the choice of an arbitrary level

would court the danger that the "natural” deviations mentioned would push the total amount of inequality outside of the accept¬ able range.

1. 377 U.S. at 579. Reynolds indicated that the burden of proof rested upon the state to justify the deviations. The normal § 13-6 presumption of legislative rationality com¬ mands minimal support in the apportion¬ ment context. That presumption derives from the fact that the legislature acts in the community’s

interest, a fact of uncer-

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Reynolds identified some conceivably justifiable state policies: "A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportion¬ ment scheme.” 2 But the Court was quick to limit the range of acceptable justifications for deviations from the equal population rule: "[Njeither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from popula¬ tion-based representation.” 3 It also rejected keeping districts a man¬ ageable size,4 balancing urban and rural interests in the state legisla¬ ture 5 and discriminating against areas because of their disproportionate number of military personnel,6 as justifications for deviations from the equal population rule. On a more general level, the Court insisted that the proffered state justifications could only modify, not "'submerge,” the equal population principle.7 When the Court assumed its more stringent posture on deviations from mathematical equality in Swann v. Adams* it preserved the exception as formulated in Reynolds. Deviations from mathematical equality would be sanctioned if justified by "a satisfactory explanation grounded on acceptable state policy.” 9 The Court reaffirmed that sentiment in Brown v. Thomson when it held that a substantial popula¬ tion variance in an apportionment scheme for the Wyoming legislature was justifiable in light of the state’s longstanding and neutrally-applied policy of using counties as the basic units of representation.10 tain validity when the very complaint in the case is that the legislature does not accurately reflect the community. See R. Dixon, Representative Government (1968); Washington, "Does the Constitution Guar¬ antee Fair and Effective Representation to all Interest Groups Making up the Electo¬ rate,” 17 How.L.J. 19 (1971). Cf. Kramer v. Union Free School District No. 15, 395 U.S. 621, 628 (1969). 2. 377 U.S. at 578. Of the justifications advanced for deviations from the equal population rule, the desire to preserve lo¬ cal political boundaries is the most com¬ monly voiced and most frequently accept¬ ed. Reynolds acknowledged that ignoring extant political lines would invite partisan gerrymandering. See 377 U.S. at 578-79. See also Wells v. Rockefeller, 394 U.S. at 550-51 (Harlan, J., dissenting); id. at 547 (White, J., dissenting). Reynolds also rooted the political subdivision exception in the fact that "[l]ocal government enti¬ ties are frequently charged with responsi¬ bilities incident to the operation of state government,” 377 U.S. at 580, and that much state legislative activity is "directed to the concerns of particular political sub¬ divisions.” Id. at 580-81. 3. 377 U.S. at 579-80. 4. Id. at 580. 5. Davis v. Mann, (1964).

377 U.S. 678, 692

6. Id. at 691. 7. Reynolds, 377 U.S. at 578. 8. 385 U.S. 440, 444 (1967). 9. Id. at 444. In Mahan v. Howell, 410 U.S. 315, 328 (1973), the Court testified to the continuing vitality of the rule by sus¬ taining the apportionment of the Virginia legislature notwithstanding a variance of 16.4% among house districts. The vari¬ ance had been produced by the legisla¬ ture’s efforts to respect political subdivi¬ sion lines when constructing legislative’s districts. Two years later, in Chapman v. Meier, 420 U.S. 1 (1975), the Court held that a population variance of 20% in a court-ordered reapportionment plan for the North Dakota legislature was "constitu¬ tionally impermissible in the absence of significant state policies or other accept¬ able considerations that require adoption of a plan with so great a variance.” Id. at 24 (emphasis added). In general, courtordered plans for state and local apportion¬ ment are tested more strictly than legisla¬ tively-ordered plans. Id. at 26-27; Connor v. Finch, 431 U.S. 407, 414 (1977). 10. 462 U.S. 835, 847-48 (1983). In Brown, in an opinion by Justice Powell joined by Chief Justice Burger and Justices Rehnquist, Stevens, and O’Connor, the Court dealt with a strange set of facts. The Wyoming apportionment plan resulted in a maximum deviation of 89% from pop-

§ 13-6

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1073

Local government apportionment proposals have been judged by standards essentially identical to those applied to states. If anything, the Court has been more receptive to justifications for deviation from mathematical equality in the context of local government apportion¬ ment. As we have already observed, the Court explicitly recognized the need for experimentation at the local level and the consequent impru¬ dence of applying a strict version of the one person, one vote concept to the apportionment of local governing bodies. In Abate u. Mundt ,n this inclination to accede to the decisions of the local governing units led the Court to approve the apportionment of a county legislature which deviated from strict mathematical equality by a maximum range of 11.9 percent. The deviation was justified by the need to respect the boundaries of the towns that comprised the county. The Court recog¬ nized the legitimacy of this concern.12 Although it is settled that certain state policies can justify devia¬ tions from a strict one person, one vote standard, several aspects of the rule are unsettled. First, the scope of permissible justifications re¬ mains unclear. While compactness, contiguity, and the preservation of political subdivisions are concededly legitimate goals, possibilities such as protecting incumbents and ensuring political fairness beget more uncertainty. Second, the Court appears to waver concerning the appli¬ cable equal protection standard. At times its language suggests that state justifications for deviations from one person, one vote must survive the strict scrutiny usually reserved for cases dealing with suspect classifications or implicating fundamental rights.13 At other times, it appears to apply the rational relation test.14 Third, the Court has yet to decide whether a balancing test, in which the magnitude of the state’s deviation from equality is weighed against the value of the policy affected by the deviation, is the appropriate standard. The Court has been much

less solicitous of justifications advanced

in the context of congressional apportionment. ulation equality. But the League of Women Voters, which brought the suit, challenged not the state apportionment plan as a whole, but only the legislature’s decision to grant a representative to the state’s least populous county. The issue for the Court, then, was not whether Wyo¬ ming’s policy justified a statewide legisla¬ tive plan with an 89% maximum devia¬ tion, but only whether the state’s policy justified the incremental deviation from equality resulting from the provision of representation to the county. In a sepa¬ rate concurrence, Justice O’Connor, joined by Justice Stevens, underscored this fact. She stated that the interest in preserving county boundaries would almost certainly not justify a statewide legislative plan with an 89% maximum deviation. Writing that "there is clearly some outer limit to the magnitude of the deviation that is constitu¬ tionally permissible even in the face of the strongest justifications,” Justice O’Connor

In Kirkpatrick v. Preis-

pointed to the 16.4% maximum deviation in Mahon as approaching constitutional limits. Id. at 849-50. Justice Brennan, joined by Justices White, Marshall, and Blackmun, dissented. 11. 403 U.S. 182 (1971). 12. Id. at 187. 13. Reynolds, for example, made clear that not all state justifications would be deemed legitimate. This inquiry into the urgency of the state’s goal smacks of strict scrutiny. See also Mc.han v. Howell, 410 U.S. 315, 340-41 (1973) (Brennan, J., dis¬ senting). 14. Beyond the fact that it indicated that not all state objectives would be ac¬ ceptable, Reynolds gave no hint that any¬ thing other than the rational relation test would apply. See Casper, "Apportionment and the Right to Vote: Standards of Judi¬ cial Scrutiny,” 1973 Sup.Ct.Rev. 1, 15.

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ler 15 the Court acknowledged

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the possibility of justifying deviations

from the equal population standard: "Art. I, § 2 . . . permits only the limited population variances ... for which justification is shown.” The Court proceeded to reject the justifications Missouri had offered for the deviations in that case. Of particular note was the Court’s unwill¬ ingness to accept the need to keep political subdivisions intact — a position very much at odds with its attitude toward preserving political boundaries in the context of state and local apportionment.16 Since Kirkpatrick , the Court has appeared somewhat more willing to recog¬ nize potentially valid justifications for minor deviations from political equality. In White v. Weiser, the Court treated as an open question whether preserving the constituencies of incumbents could justify some population variance.17 And in Karcher v. Daggett , the Court listed a variety of policies that might support some variance; it included in this list the policy rejected in Kirkpatrick of respecting municipal bounda¬ ries.18 But in both these cases the Court held that the states had not shown that the population variances were in fact necessary to promote the policies in proach in these apportionment exact equality

question.19 The Court’s relatively non-deferential ap¬ cases breeds the suspicion that, as far as congressional is concerned, the possibility of justifying deviations from is more theoretical than real.

§ 13-7. The Qualitative Dimension: tation

Fair and Effective Represen¬

When Chief Justice Warren proclaimed one person, one vote an essential component of our constitutional regime, he paid some heed to the non-quantitative components of that regime as well: "achieving . . . fair and effective representation for all citizens is . . . the basic aim of legislative apportionment.” 1 The key word is "representation.” Ostensibly it imports more than the mere right to cast a vote that will be weighed as heavily as the other votes cast in the election. But how much more? The 1964 reapportionment case did nothing to illuminate this problem.2

In the years since Reynolds , however, the qualitative

15. 394 U.S. 526, 531 (1969). 16. 394 U.S. at 533-34. See also White v. Weiser, 412 U.S. 783, 790-91 (1973). The Court in similar fashion rejected the compactness goal: "A State’s preference for pleasingly shaped districts can hardly justify population variances.” 394 U.S. at 536. The Court emphasized the difference in the standards applicable to state and congressional apportionment plans when, in Mahan v. Howell, 410 U.S. 315, 321 (1973), it suggested that since there were generally more state legislative seats than congressional seats in a given state, politi¬ cal subdivisions could probably be given more recognition in electing state repre¬ sentatives than in electing members of Congress. See generally Martin, "The Su¬ preme Court and State Legislative Appor¬ tionment: The Retreat from Absolutism,” 9 Val.U.L.Rev. 31, 39 (1974).

17. 412 U.S. 783, 791 (1973). 18. 462 U.S. 725, 740 (1983). The other policies listed as potentially justifying some variance were making districts com¬ pact, preserving the cores of prior districts, avoiding contests between incumbent rep¬ resentatives, and preserving the voting strength of minority groups. 19. Karcher v. Daggett, 462 U.S. 725, 742-44 (1983); White v. Weiser, 412 U.S. 783, 791-92 (1973).

1. Reynolds v. Sims, 377 U.S. 533, 56566 (1964). 2. Some

commentators § 13-7

have

accused

the Reynolds Court of taking a unidimen¬ sional approach to the apportionment prob¬ lem and of equating equal representation and equal population. See, e.g., R. Dixon,

§ 13-7

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OF POLITICAL

dimensions of the apportionment Court with increasing frequency.

PARTICIPATION

1075

puzzle have been thrust upon the

Claims concerning the qualitative aspect of the right to fair repre¬ sentation have arisen from two distinct apportionment practices. First, apportionment plans sometimes provide that the residents of certain districts are to elect more than one representative. Assuming that such plans allocate representatives to districts in direct proportion to district population, the plans will comply with the equal population rule. Yet multimember district plans may work to submerge particu¬ lar minority groups.3 The "winner-take-all” character of the typical election scheme creates the possibility that a specific majority will elect all of the representatives from a multimember district whereas the outvoted minority might have been able to elect some representatives if the multimember district had been broken down into several single member districts. The decision to use multimember districts, then, may serve to eradicate the voice that a minority would otherwise have had in the election halls.4 Second, apportionment plans often rely on gerrymandering — the drawing of district lines so as to delimit the voting power of cognizable groups of voters.5 A majority might attempt to abridge or dilute the voting power of a minority by grouping minority voters disproportionately in one or a few districts. While minority voters might thus be assured of a controlling influence in those few districts, they would have no impact on the choice of repre¬ sentatives outside of those districts. Because any vote in excess of a majority (or a plurality) is in a sense wasted, such a plan would render essentially irrelevant the ballots of many of the minority voters. Con¬ versely, the majority might draw district lines so as to spread minority Representative Government 17, 267-71, 582-83 (1968). These commentators have denied the validity of this equation and stressed the import of the qualitative di¬ mension of apportionment. See, e.g., id. at 582-83; A. Degrazia, Apportionment and Representative Government 53-63 (1963); Sickels, "Dragons, Bacon Strips and Dumnnells — Who’s Afraid of Reapportionment?,” 75 Yale L.J. 1300 (1966). Fir gr on ot cr be it he en ou st, i r coif mu al di nd re s z l si t s ed lt eg d ereds im vo po rict .th gr ly eennt ¬i¬ josof s ea m em tin di we s or ansm de y ing te em be g st r a nt ll i le rdi be r Thric ar mu s er s st r ts gu e lt r me as th ip — de v th imwh e nt fi at emil c oti v ctso.wte e c n toe a ab n r l b h h o e a er st g te a ed i s as tth si nge of th ctiodis — de ou lity ze e n¬ e cl t init de pr les th tri com in e an o olp ec s c s ti ct s rea As a res line res f aorr¬ s ge id i p thes, ar reult, s di onal en n ro st l e a p t ts p re r y ovort asre ac to tihcts . po e i t en ei p pe r for ultahe fac tha ted eaucall of the rcoonhas ns t t h y m mp¬ t of ea up ion th el le atiem ar e t ec t ¬ on ne ch t tiss dparce h h i e i a cu t o p n n Sier Baghb di ha la in srmes nz or st e aeln ve r h—a sD ri ltea D E "M f, o ct i l r t s e i ul tr ct s. v e i Vo Onct 'O or Ma th Th ti-Vi t s a e n e n o e l e m See’ , l ( 1 L Pr y 19 .J 3 emat 75 Yal c¬ 0 in . 66 9 e bee ci ) . r pl e? ,”

ond, multimember districts allegedly of¬ fend the Constitution for logistical reasons. Representatives of such districts are said to command undue significance in the legisla¬ ture because of the prospects that several members of the same district will vote in a bloc. 4. A minority, even in a fair apportion¬ ment scheme, would probably lack the power to ensure that the policies it favors are adopted by the legislature. It is, after all, a minority. But it would have a voice in the formulation of policy, and this voice has value independent of its ability to cast a deciding ballot, first because minority spokesmen might persuade the majority on any given occasion and second, because such spokesmen might alter the long-run character of political thought by their par¬ ticipation in legislative deliberations. 5. Gerrymandering is sometimes de¬ fined more broadly as apportioning so as to delimit the voting power of a group. So defined, it embraces the use of multimem¬ ber districts as well as the unscrupulous crafting of district lines. For the sake of clarity, we will use gerrymandering in its narrower sense.

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voters out among a number of districts, thereby guaranteeing that they comprise a minority in every district and that they can elect no representative.6 In confronting these two apportionment practices, the Court has often proceeded in an uncertain and confusing manner. This lack of clarity was perhaps predictable, because the qualitative aspects of fair apportionment can be assayed only by addressing issues far more subtle than those involved in the one person, one vote context.7 In recent years, however, a set of articulable standards has begun to emerge for determining when an apportionment plan accords a population group less voting power than is its due. These standards vary according to whether the population group is defined by its race or by its political and ideological views; we shall survey each of these emerging dards in turn.

stan¬

§ 13-8. Vote Dilution and Racial Groups The Court first confronted an attempt to cancel out the voting power of a racial minority in Gomillion v. Lightfoot,1 a case which antedated the reapportionment revolution by several years. The Ala¬ bama law contested in Gomillion had redrawn the boundaries of the City of Tuskegee so as to exclude almost all of the city’s black popula¬ tion from the city limits.2 Justice Frankfurter, writing for the Court, declared the law unconstitutional: "When a legislature thus singles out 6. Although the spectre of multimem¬ ber districts and gerrymanders is conjured most often when dealing with the abridg¬ ment of minority rights, the possibility ex¬ ists that these two techniques might be employed to confine the political power of the electoral majority. Judicious use of multimember districting and gerrymander¬ ing might relegate a majority to a much

tually asked of this Court in this case is to choose among competing bases of represen¬ tation — ultimately, really, among compet¬ ing theories of political philosophy — in or¬ der to establish an appropriate frame of government ... for all of the States of

smaller portion of a state’s elected repre¬ sentatives than would be the case under an apportionment plan that used all single member disticts and randomly drew dis¬ trict lines. The resulting scheme could condemn a popular majority to representa¬ tion by a minuscule portion of the elected legislators. For example, if a jurisdiction consisting of 540 Republicans and 460 Democrats were subdivided randomly into 10 districts, Republicans would probably be elected in six or more districts. However, if malevolent Democrats could draw dis¬ trict lines with precision, they might be able to isolate 100 Republicans in one dis¬ trict and win all the other district elections by a margin of one or two votes, thus capturing 90% of the state legislature while commanding only 46% of the popu¬ lar vote. Although the risk of such out¬ comes is minimized by the fact that power over districting is likely to be lodged in the group that constitutes the electoral majori¬ ty, this will not always be the case.

seem to vindicate Frankfurter’s prediction. It does not follow, however, that judicial abstinence is always in order. Some theo¬ ries of representation are surely constitu¬ tionally unacceptable. For example, the Court should feel free to reject a theory of representation that would completely deny votes to members of certain religions. The problem troubling Justice Frankfurter was how the Court was to choose among com¬ peting theories of which none was obvi¬ ously unconstitutional. The Court can minimize the need to make such choices by forcing the states to make and articulate them, but no strategy can avoid the neces¬ sity for at least some hard substantive deci¬ ciary. of political theory by the federal judi¬ sions

7. In his dissent in Baker v. Carr, Jus¬ tice Frankfurter admonished: "What is ac¬

the Union.” 369 U.S. 186, 300 (1962). Cases dealing with the qualitative aspects of the right to fair representation may

1. 364 U.S. 339 (1960). 2. The Court observed: "The result of 13-8 Negro petitioners the act is to deprive§ the discriminatorily of the benefits of residence in Tuskegee, including, inter alia, the right to vote in Municipal elections.” Id.

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a readily isolated segment of a racial minority for special discriminato¬ ry treatment, it violates the Fifteenth Amendment.” 3 The exact im¬ port of this holding, however, remained unclear. In Gomillion, the Court had struck down an overt and purposeful scheme to deprive a minority racial group of all of its voting power. The question remained whether other devices that diluted or minimized a racial minority’s voting power would violate constitutional standards. The Court began to address this question in Whitcomb v. Chavis, 4 in which the plaintiffs urged the Court to overturn the multimember district for Marion County, Indiana because it operated to minimize the voting strength of blacks living in a ghetto within the county. Al¬ though declining to rule the multimember district illegal,5 the Court did make clear that on an adequate record other multimember districts could be overturned for this vice.6 The plaintiffs had contended that if Marion County were subdivided into single member districts, the ghetto area would elect three members of the House and one Senator, whereas the extant scheme afforded them "almost no political force or con¬ trol.” 7 For the Court, the mere fact that the ghetto did not have a number of elected representatives proportionate to its population did not adequately establish that ghetto residents had less opportunity than did other residents of the county to "participate in the political processes and to elect legislators of their choice.” 8 The Court conclud¬ ed that the challengers had failed to discharge their burden of proving that the use of multimember districts operated "to minimize or cancel out the voting strength of racial or political elements of the voting population” 9 or that it was motivated by an intent to discriminate against the allegedly disadvantaged groups.10 3. Id. at 346. 4. 403 U.S. 124 (1971). Some years ear¬ lier, in Wright v. Rockefeller, 376 U.S. 52 (1964), the Court had upheld with little discussion another districting plan chal¬ lenged by members of a racial minority. The plaintiffs in Wright had assailed the districting of Manhattan County in which number of the county’s a disproportionate blacks and Puerto Ricans were confined in one of the county’s four districts. The effect of the plan was that there almost inevitably would be one minority candidate and three non-minority candidates chosen in any election. There was no reason to believe that minorities would elect a small¬ er total number of representatives under the plan than under a racially neutral scheme, so its impact was not racially dis¬ proportionate. Since the Court also re¬ jected the contention that the boundaries were drawn with the intent of fencing mi¬ norities in, nothing remained of plaintiffs’ claims under the fourteenth and fifteenth amendments. 5. 403 U.S. at 159-60.

6. Id. at 143.

Indeed, the Court left

open the possibility not only that a particu¬ lar multimember district might be shown

to be unconstitutional, but also that multi¬ member districts might eventually be de¬ clared illegal per se if persuasive evidence could establish that such districts general¬ ly cancelled out the voting power of minor¬ ity groups. 7. Id. at 129. 8. Id. at 149. 9. Id. at 143. 10. Id. at 149. The Court also held that the plaintiffs had failed to discharge their burden of showing that the use of multi¬ member districts was unconstitutional for other reasons. Plaintiffs had argued that residents of multimember districts were unduly advantaged because of the possibili¬ ty that their representatives would vote as a bloc. The Court, however, remained ag¬ nostic: ''The theory that plural representa¬ tion itself unduly enhances a district’s pow¬ er and the influence of its voters remains to be demonstrated in practice and in the day-to-day operation of the legislature. Neither the findings of the trial court nor the record before us sustains it, even where bloc voting is posited.” Id. at 147. Nor was the Court willing to overturn the mul¬ timember district because of alleged math-

1078

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Court first held a multimember

Ch. 13

district unconstitu¬

tional in White v. Regester.11 Reiterating Whitcomb's learning that "plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question,” 12 the Court found the requisite showing in an amalgam of historical and contemporary evi¬ dence. The record supported the district court’s findings that blacks and Mexican-Americans had been historically discriminated against in the election processes of Dallas and Bexar counties; that they had in fact elected only a few representatives since Reconstruction days; that, in the most recent election, the white-dominated organization that effectively controlled candidate selection in Dallas had relied upon racial campaign tactics in white precincts to ensure the defeat of candidates supported by the black community; and that cultural barri¬ ers combined with the most restrictive voter registration procedures in the nation operated effectively to exclude Mexican-Americans from the political processes of Texas even longer than blacks were formally excluded by the white primary.13 White v. Regester and Whitcomb v. Chavis appeared to suggest that plaintiffs could make out a claim of vote dilution without proving discriminatory intent, but each opinion was ultimately ambiguous on this point. In Mobile v. Bolden ,14 the Court resolved this ambiguity in favor of requiring plaintiffs to show discriminatory intent; according to a majority of the Justices, neither the fourteenth nor the fifteenth amendment could invalidate an innocently motivated apportionment scheme.15 The Court was notably unclear in explaining what kind of proof was necessary to satisfy the intent requirement it had estabematical dents.

overrepresentation of its resi¬ While not disputing the

mathematical basis of the plaintiffs’ argu¬ ment, the Court observed that the mathe¬ matical model relied upon did not take into account any "political or other factors which might affect the actual voting power of the residents, which might include party affiliation, race, previous voting character¬ istics or . . . other factors which go into

culties,” to devise a plan that did not em¬ ploy multimember districts. Id. at 692. There was no hint in Connor that the districting scheme did not pass constitu¬ tional muster; the Court struck it down on prudential grounds, creating a virtually per se rule against court-ordered multi¬ member district plans in the absence of exigent circumstances. See also Chapman v. Meier, 420 U.S. 1 (1975).

the entire political voting situation.” Id. at 146. The Court thus concluded that

12. Id. at 766.

"the real-life impact of multi-member dis¬ tricts on individual voting power has not been sufficiently demonstrated ... to

13. Id. at 766-68.

warrant

on

be

departure from prior cases.” Id.

st

do

a mu lt re p cbk di di so on no im l u d an t tistri gr v. Jo n-c emb 40 , In Co on ct hn ons er 2 n o so tia ju U. al 6i9ng u(n1 d th Co nor ad n, tu di 97s. S. e 0 ur dr 1 ci ap ¬th ¬ t essc ) , ati a p s h pr lly eddeim fo so ormu n r ste ov -c me tilt ri I bo ide hroe of th st onim le ct n a e t in h itds uasteuesd pote meenmbgisolv th fes vok¬ g e de p w t e aer ju syerv th Coers rdi tur th radli s¬ di e e re e. st is ur ct em "or t tr cia co i d i a y n ed , b ffi ic l ur su se t ¬ t, rm nt ou nt a ce

fo

ru

wn

14. 446 U.S. 55 (1980). 15. A plurality opinion, written by Jus¬ tice Stewart and joined by Chief Justice Burger, Justice Powell, and Justice Rehnquist, set forth the intent requirement. Id. at 62, 66. Justice White, in a dissenting opinion, explicitly adopted this standard. Id. at 94. Justice Blackmun, concurring in the result, assumed arguendo that intent had to be shown, opined that it was shown, but found the relief afforded by the district court to be excessive. Justice Stevens con¬ curred in the judgment. Justices Brennan, Marshall, and White dissented.

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lished.16 But the Justices left no room for doubt that lower courts had to find such intent; a mere finding that a districting scheme effectively excluded a racial minority from a community’s cient to establish a constitutional violation.

political life was insuffi¬

Congress responded to the Court’s opinion in Bolden by amending section 2 of the Voting Rights Act to restore the effects standard used by many lower courts prior to Bolden. The amendment made clear that a violation of the Act could be proved by showing discriminatory effect alone and established as the relevant legal standard the test enunciated by the Court in Whitcomb and White v. Regester .17 Accord¬ ing to the Senate Report which accompanied the amendment, the intent test established by Bolden "ask[ed] the wrong question.” 18 The "right” question, the Report stated repeatedly, was whether "as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candi¬ dates of their choice.” 19 In Thornburg u. Gingles,20 the Supreme Court reviewed a district court’s determination that a North Carolina redistricting plan violated the amended section 2 and, in the process, the Court set forth a detailed 16. The plurality opinion in Bolden found that evidence of the electoral

abridgment of’ for the words in section 2 italicized above. Congress also enacted a

scheme’s discriminatory impact, combined with proof of past and present discrimina¬ tion on the part of government officials, was insufficient to show improper intent in the case. Id. at 73-74. The opinion, how¬ ever, gave little indication of what kind of proof would satisfy the intent requirement. Two years later, in Rogers v. Lodge, 458 U.S. 613 (1982), a 6-3 majority of the Court upheld a finding of purposeful discrimina¬ tion that was based on proof nearly identi¬ cal to that offered in Mobile. Id at 623-27. Taken together the opinions gave courts little or no guidance regarding what kind

new subsection which stated that "a viola¬ tion ... is established if, based on the totality of the circumstances, it is shown that the political processes leading to nom¬ ination or election in the State or political subdivision are not equally open to partici¬ pation by members of a [protected] class of citizens ... in that its members have less

of proof was necessary to establish inten¬ tional discrimination. Justice Marshall powerfully argued in his dissent in Bolden that inquiry into motive should be avoided when the claim is that a constitutionally protected right has been abridged and not simply that something to which the citizen has no independent right or entitlement has been distributed in a discriminatory manner. 17. At the time Bolden was decided, section 2 of the Voting Rights Act provided that "no voting qualification or prerequi¬ site to voting or standard practice, or pro¬ cedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the Unit¬ ed States to vote on account of race or color.” (emphasis added). Bolden inter¬ preted section 2 as "intended to have an effect no different from that of the Fif¬ teenth Amendment itself.” 446 U.S. at 61. In 1982, Congress substituted the words "in a manner which results in a denial or

opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which mem¬ bers of a protected class have been elected to office in the State or political subdivi¬ sion is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have mem¬ bers of a protected class elected in numbers equal to their proportion in the popula¬ tion.” 42 U.S.C. § 1973. 18. S. Rep. No. 97-417 at 36 (1982). 19. Id. at 28. See also id. at 2, 27, 29, 36. The Senate Report also charged the intent standard with being "unnecessarily divisive” and with placing an "inordinately difficult” burden of proof on plaintiffs. Id. at 36. 20. 106 S.Ct. 2752 (1986). Justice Bren¬ nan wrote for the Court in an opinion joined in part by Justices White, Marshall, Blackmun, and Stevens. Justice O’Connor concurred in the judgment, in an opinion joined by Chief Justice Burger and Justices Powell and Rehnquist. Justice Stevens, joined by Justices Marshall and Blackmun, concurred in part and dissented in part.

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legal standard for adjudicating section 2 claims.21 The Court started from the premise that minority voters challenging an apportionment scheme must prove that the use of that scheme "operates to minimize or cancel out their ability to elect their preferred candidates.” 22 Plain¬ tiffs would be deemed to have established this claim when they had shown that a "bloc voting majority [was] usually . . . able to defeat candidates supported by a politically cohesive, geographically insular minority group.” 23 Under this standard, the Supreme Court stated, two factors became of primary importance. First, a court must deter¬ mine whether minority group members had in fact experienced "sub¬ stantial difficulty electing representatives of their choice.” 24 Second, a court must determine whether "significant” racial bloc voting existed.25 When these two factors appeared in conjunction, the Court concluded, plaintiffs should be held to have established their section 2 claim.26 Justice O’Connor, joined by Chief Justice Burger and Justices Powell and Rehnquist, argued that the Court had applied incorrectly the test enunciated in Whitcomb and White v. Regester and had failed to respect congressional intent. She argued that the Court’s standard resulted in the "creation of a right to a form of proportional representa¬ tion in favor of all geographically and politically cohesive minority groups” and that neither Congress nor the Court had ever contemplat¬ ed going so far.27 Yet, as Justice O’Connor herself noted, any theory of vote dilution will result in the incorporation of some elements of proportional representation into the electoral system.28 When those bringing such claims are members of minority races, not only the Voting Rights Act, but also our history and Constitution suggest that this cost is well worth bearing. § 13-9. Vote Dilution and Political Groups While the Supreme Court grappled with the many claims of vote dilution brought by plaintiffs representing racial groups, it rarely confronted vote dilution claims brought by members of political or ideological groups. The first Supreme Court case presenting such a 21. The Court held that under the stan¬ dard articulated, the lower court had ruled correctly as to four of the North Carolina districts and incorrectly as to one. 22.

106 S.Ct. at 2765.

the clause in the amended

section 2 that

"nothing in this section establishes a right to have members of a protected class elect¬ ed in numbers equal to their proportion in the population.” 42 U.S.C. § 1973. 106 S.Ct. at 2784.

See

23. Id. at 2766 (emphasis omitted). 24. Id. at 2766 n.15. 25. Id. 26. The Court stressed that plaintiffs could establish a section 2 claim even though in one or a few elections racial bloc voting was absent and/or a minority candi¬ date won. The key questions were wheth¬ er racial bloc voting usually occurred and whether minority candidates usually lost. Id. at 2770. "[ A] ny 27. Id. at 2785 (O’Connor, th J., concurring eo in judgment). Justice O’Connor here noted ry of vo te di

ne re to so ex on a me te s suces of mi ly vmoe tha¬ n t at s t r t r in to th en pr ma e ari so nor re g e gt op i f k l m be es y the mi ty ere gr an thh orel e tiec e d ou no nc tw riId e Cf Npo ra ee at la "T Co onto¬ t . t n t . r h y of Pr e, tu e Imge Renst e ti pi op pe.” se on 9r4a Ya L. 16 or (1 (a re¬¬ 3 ti 98 n a r ti le r J. th tat l pr 4) in gaun ato v e in n e s pr laat ion eolpo is co al g y e ns r ,” ecrt st se re ge b i i t o s t toieo t ems hnet nl titys ha q rcanaa a t y t u fu uir ac m r a t luls i ti em e n i ll ed hi p n d o e o on ren ma y , ev ru r a s i ll jo esle) en ty y . ri ta ty ti on

§ 13-9

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claim was Gaffney v. Cummings / in which the Court upheld a Connecti¬ cut reapportionment plan drawn with careful attention to party voting habits. There was no factual dispute: "The record abounds with evidence, and it is frankly admitted by those who prepared the plan, that virtually every Senate and House district line was drawn with the conscious intent to create a districting plan that would achieve a rough approximation of the statewide political strengths of the Democratic and Republican parties, the only two parties in the State large enough to elect legislators from discernible geographic areas.” 2 The Court thought it idle "to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it,” 3 and then inveighed against the futility of the "politically mindless approach” of demanding "that those who redistrict and reapportion should work with census, not political, data.” 4 After making this pronouncement, the Court fell silent for more than a decade regarding voter apportionment plans designed to affect the voting strength of political and ideological groups. In Davis v. Bandemer ,5 the Court returned to this question and inserted itself foursquare into political apportionment schemes. The plaintiffs in Bandemer were Indiana Democrats who challenged a partisan reapportionment accomplished by the Republican-dominated legislature. The plaintiffs complained that the legislature had inten¬ tionally drawn district lines and established multimember districts so as to deprive the state’s Democrats of their rightful share of voting power. Six members of the Court declared that claims involving political apportionment were justiciable under the Equal Protection Clause. Relying in part on Gaffney's implicit finding of justiciability,6 the Court also argued that the issue in the case presented none of the identifying characteristics of a nonjusticiable political question.7 The six Justices, however, failed to agree on the standard that courts should use in deciding political apportionment claims. Justice White, in his plurality opinion on the merits, began by asserting that the plaintiffs were required to prove both intentional discrimination against a polititum 1. 412 U.S. 735 § (1973). 13-9 2. Id. at 752.

and

the Gaffney

holding no doubt

reflects the Court’s greater sensitivity to racial discrimination than to discrimina¬ tion along other lines.

3. Id. 4. Id. at 753. The Court’s holding ap¬ peared to conflict with dictum in Wright v. Rockefeller, 376 U.S. 52 (1964), in which the Court addressed a vote dilution claim brought by members of a racial group. In Wright, as in Gaffney, plaintiffs attacked a districting plan on the ground that it in¬ tentionally minimized the voting power of a population group in specific districts while maintaining its power in the jurisdic¬ tion as a whole. The Wright Court found no such intention and rejected the plain¬ tiffs’ challenge to the scheme. The Court assumed, however, that if a showing of intent had been made, the plan would have been invalidated in spite of its overall neu¬ tral impact. The conflict between this dic¬

5. 106 S.Ct. 2797 (1986). Justice White wrote for the Court, joined by Justices Brennan, Marshall, Blackmun, and, as to justiciability, by Justices Powell and Ste¬ vens as well. 6. Id. at 2803-04. 7. "Disposition of this question does not involve us in a matter more properly decid¬ ed by a coequal branch of our Government. There is no risk of foreign or domestic disturbance, and in light of our cases since Baker we are not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided.” Id. at 2805. See also § 3-13, supra.

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cal group and a discriminatory effect on that group.8 The plaintiffs, Justice White stated for the plurality, had easily met the intent requirement; 9 the opinion thus focused on whether the plaintiffs had shown the requisite effects. The proper standard involved what he called a "threshold”: "unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistent¬ ly degrade a voter’s or a group of voters’ influence on the political process as a whole.” 10 The mere disadvantaging of a political party in one or two elections, the plurality stated, would not suffice: "equal protection violations may be found only where a history (actual or projected) of disproportionate results appears.” 11 Because the plain¬ tiffs had not shown such a history of voter degradation, they had not established a violation of the equal protection clause. Justice Powell, joined by Justice Stevens, dissented from all but the part of Justice White’s opinion that asserted justiciability. Justices Powell and Stevens articulated a different standard for deciding politi¬ cal apportionment challenges, under which they concluded that the plaintiffs had proved their case. Charging that the plurality opinion established no clear guidelines for either legislatures or courts,12 the two Justices recommended a multi-faceted approach. According to Justices Powell and Stevens, courts should look into "the shapes of voting districts and adherence to established political subdivision boundaries, . . . the nature of the legislative procedures by which the apportionment law was adopted, . . . legislative history reflecting contemporaneous

legislative goals, . . . evidence concerning popula¬

tion disparities and statistics tending to show vote dilution.” 13 The evidence that the plaintiffs had presented regarding these factors, these two Justices concluded, entitled them to a finding that an equal protection violation had occurred. In a strongly argued opinion joined by Chief Justice Burger and Justice Rehnquist, Justice O’Connor concurred in the judgment, but attacked the majority’s holding that claims of partisan apportionment were justiciable. Justice O’Connor argued for these three Justices that the equal protection clause could not supply judicially manageable standards for resolving political apportionment claims and that the inevitable result of holding such claims justiciable would be to move towards a requirement of roughly proportional representation for every 8. Id. at 2808 (White, J., joined by Bren¬ nan, Marshall, and Blackmun, JJ., as to the merits). 9. Justice White strongly suggested that the intent requirement in this context was quite minimal. "[Q]uite aside from the anecdotal evidence, the shape of the House and Senate Districts, and the al¬ leged disregard for political boundaries [in this case], we think it most likely that whenever a legislature redistricts, those re¬ sponsible for the legislation will know the likely political composition of the new dis¬ tricts. ... As long as redistricting is done by a legislature, it should not be very

difficult to prove that the likely political consequences of the reapportionment were intended.” omitted).

Id. at 2808, 2809

(footnote

10. Id. at 2810. The effects test articu¬ lated by Justice White in Bandemer is clearly more difficult to meet than the effects standard the Court has used in de¬ termining racial apportionment claims. See § 13-8, supra. 11. Id. at 2814. 12. Id. at 2831 (Powell, J., concurring and dissenting). 13. Id. at 2832 (footnote omitted).

§ 13-9

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cohesive political group.14 Claims of racial gerrymandering, these three Justices noted, presented a different question: they were justicia¬ ble because of the greater warrant the equal protection clause gave the Court to intervene in matters affecting race and because of the greater need to protect members of minority races against violations of their voting rights.15 Indeed, Justice O’Connor wrote, evidence suggested that political — as opposed to racial — gerrymandering was a "self-limiting enterprise” which could not go beyond narrow bounds.16 In these circumstances, the costs of intervention far outweighed any possible advantages that could derive from it. Justice White’s opinion for the Court on the justiciability issue failed adequately to deal with Justice O’Connor’s concerns. He equated the Court’s decision to intervene in the case with the Court’s determi¬ nation in Baker v. Carr to hear claims relating to the disparate size of election districts.17 Yet the two kinds of intervention are surely dis¬ tinct. Although the Baker Court did not itself announce the one person, one vote rule, that rule was looming on the near horizon; the Baker Court had little reason to fear that no judicially manageable standard could be found. The Court in Bandemer had every reason to fear such an eventuality. Neither Justice White’s nor Justice Powell’s approach to the question of partisan apportionment gives any real guidance to lower courts forced to adjudicate this issue; thus, Justice O’Connor’s apprehension that courts will resort to a standard of rough proportional representation appears well-founded.18 Further, interven¬ tion in Baker was necessary in a way in which intervention in Bandemer was not. The political system boasted no mechanism that would keep inequalities in district size within an acceptable range. In contrast, as Justice O’Connor noted, the political system itself may be able to keep partisan gerrymandering within narrow bounds. Of 14. Id. at 2817 (O’Connor, concurring in the judgment). See Lowenstein & Stein¬ berg, "The Quest for Legislative Districting in the Public Interest: Elusive or Illuso¬ ry?”, 33 UCLA L.Rev. 1 (1985) (arguing that there are no politically neutral crite¬ ria for districting — e.g., that the standards of compactness and keeping political subdi¬ visions intact favor Republicans). Cf. Lev¬ inson, "Gerrymandering and the Brooding Omnipresence of Proportional Representa¬ tion: Why Won’t It Go Away”, 33 UCLA L.Rev. 257 (1985) (arguing that proportion¬ al representation is the inevitable result of focusing on individual voting rights rather than giving some "right” or priority to political structures). See also Cain, "Sim¬ ple vs. Complex Criteria for Partisan Ger¬ rymandering”, 33 UCLA L.Rev. 213, 226 (1985) ("Partisan gerrymandering is more like pornography than [it is like] racial discrimination: It occurs between con¬ senting parties (each will do it to the other if given the chance), what is offered is a matter of taste, and any attempt to ban it would lead to more harm 15. Id. at 2820.

than good”).

16. Id. "In order to gerrymander, the legislative majority must weaken some of its safe seats, thus exposing its own incum¬ bents to greater risks of defeat — risks they may refuse to accept after a certain point. Similarly, an overambitious gerrymander can lead to disaster for the legislative ma¬ jority: because it has created more seats in which it hopes to win relatively narrow victories, the same swing in overall voting strength will tend to cost the legislative majority more and more seats as the gerry¬ mander becomes more ambitious.” Id. at 2820-21 (citations omitted). 17. Id. at 2804-05 (majority opinion). See Baker v. Carr, 369 U.S. 186 (1962), discussed in § 13-2, supra. 18. It is interesting to note that Justice White and Justice Powell each accused the other of articulating a standard that would lead to a system of court-ordered propor¬ tional representation. See 106 S.Ct. at 2814-15; id. at 2832 n.13 (Powell, J., con¬ curring and dissenting). Each appears cor¬ rect in his evaluation of the other’s ap¬ proach, even if incorrect as to his own.

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course, the results that Bandemer will spawn remain uncertain, but the Court may well come to regret involving the judiciary so deeply in this delicate political sphere. § 13-10.

Restrictions

on the Franchise

Every state, as well as the federal government, imposes some restrictions on the franchise. Although free and open participation in the electoral process lies at the core of democratic institutions, the need to confer the franchise on all who aspire to it is tempered by the recognition that completely unlimited voting could subvert the ideal of popular rule which democracy so ardently embraces. Moreover, in deciding who may and who may not vote in its elections, a community takes a crucial step in defining its identity. If nothing else, even though anyone in the world might have some interest in any given election’s outcome, a community should be empowered to exclude from its elections persons with no real nexus to the community as such. Few cases, however, are so clearly defined. This section attempts to identify the doctrinal structure within which the constitutionality of franchise restrictions is appraised. The Constitution endows the states with the power to determine qualifications for voting even in federal elections, subject to the power of the Congress to override the qualifications states create. Article I, § 2, provides that Members of the House of Representatives are to be elected by the people and that the voters should have the qualifications requisite to vote for members of the state assembly.1 The Constitution originally conferred the power to elect Senators upon the state legisla¬ tures, but the seventeenth amendment provided for the popular elec¬ tion of Senators by voters with the same qualifications required of voters for members of the House of Representatives. Article I, § 4, conditions this state power qualifications on congressional Manner of holding Elections for prescribed in each State by the may at any time by Law make

to prescribe voting

acquiescence: "The Times, Places and Senators and Representatives, shall be Legislature thereof; but the Congress or alter such Regulations, except as to

the Places of chusing Senators.” 2 The Court has explicitly ruled that article I, § 4, invests Congress with broad power to regulate the entire -10 1. Article I, § §2,13instructs that voters for Representatives should have "the Qual¬ ifications requisite for electors of the most numerous Branch of the State Legisla¬ ture.” Similarly, § 1 of the seventeenth amendment provides that voters for Unit¬ ed States Senators "shall have the qualifi¬ cations requisite for electors of the most numerous branch of the State legisla¬ tures.” These qualifications clauses had the basic purpose of "prevent[ing] the mis¬ chief that would arise if state voters found themselves disqualified from participation in federal elections.” Tashjian v. Republi¬ can Party of Connecticut, 107 S.Ct. 544,

556 (1986). Thus, although the qualifica¬ tions clauses apply to party primaries for House and Senate seats, id., a party rule that would permit voting in primaries for these federal offices by non-party members who could not vote in primaries for State legislative office does not offend the clauses. Id. See the discussion of Tashji¬ an in § 13-22, infra. 2. On several occasions, the Supreme Court has also bottomed the power of Con¬ gress to override state-fashioned voting qualifications on the necessary and proper clause. See United States v. Classic, 313 U.S. 299 (1941); Wiley v. Sinkler, 179 U.S. 58 (1900).

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PARTICIPATION

1085

spectrum of voting qualifications in congressional elections.3 Although the Constitution does not explicitly concede Congress dominion over the qualifications of voters in presidential and vice-presidential elections, the Court has nonetheless ruled that Congress possesses the same power over such elections that it enjoys with respect to congressional elections.4 Since the Constitution does not confer upon Congress any general authority to regulate the qualifications for voters in state elections, those qualifications are the exclusive province of the state governments except insofar as they contravene the Constitution or a statute validly enacted by Congress pursuant to some other constitutional authoriza¬ tion. In Oregon v. Mitchell ,5 the Court considered the constitutionality of the Voting Rights Acts Amendments of 1970 whereby Congress, purportedly acting under the authority conferred by the enforcement clauses of the fourteenth and fifteenth amendments, lowered the mini¬ mum voting age in state elections to 18 years and barred the use of literacy tests in state elections. In a sharply divided opinion, the Court upheld the proscription of literacy tests as a proper means of enforcing the fourteenth and fifteenth amendments in light of the historical evidence demonstrating that such tests had been a vehicle of racial discrimination.6

In contrast, the Court struck down

the 18-year-old

vote provisions of the Act because "Congress [had] made no legislative findings that the 21-year-old vote requirement was used by the States to disenfranchise voters on account of race,” 7 and there was probably no evidence to support such a finding. Mitchell thus establishes that Congress may not justify a general regulation of state voting qualifica¬ tion requirements by reference to the Civil War Amendments.8 Whether

enacted by the states or by the federal government,

restrictions on the franchise must not abrogate constitutionally guaran¬ teed rights: the fifteenth amendment bars racial restrictions; the nineteenth bars gender restrictions; the twenty-fourth bars poll taxes in federal elections; and the twenty-sixth bars minimum voting ages in excess of 18 years. The most formidable constitutional obstacle for most franchise restrictions, however, is the equal protection clause of the fourteenth amendment. That clause requires, at the least, that a franchise restriction be based upon a principled distinction between the enfranchised and disenfranchised groups; ordinarily it requires that a franchise restriction be shown necessary to serve a compelling state interest. 7. Id. at 130. 36

6

(1

93

2)

.

4. Oregon v. Mitchell, 400 U.S. 112, 124 (1970); Burroughs v. United States, 290 U.S. 534 (1934).

5. 400 U.S. 112 (1970), discussed in § 514, supra.

8. The Court’s holding that Congress could lower the voting age to 18 in federal but not state elections triggered enough chaos to ensure passage of the twenty-sixth amendment, lowering the voting age to 18 for all elections.

1086 § 13-11.

RIGHTS OF POLITICAL PARTICIPATION Restricting the Franchise sons

to "Primarily

Ch. 13

Interested” Per¬

At times, states have limited the right to vote in particular elec¬ tions to persons who have a special interest or stake in their outcome.1 Such limitations on the franchise spring, ostensibly, from the percep¬ tion that voters with an "interest” in the election would cast more fully considered ballots and that such voters should thus be accorded a greater voice in determining the election’s outcome. Although the Supreme Court has accepted this argument in one context, the Court has generally proved unwilling to allow such restrictions on the fran¬ chise to survive. Kramer

v. Union

Free School District No. 15 2 constituted the

Court’s first vigorous sally into this legal realm. In Kramer , a childless bachelor who neither owned nor leased real property challenged a New York statute that limited the vote in certain school district elections to owners or lessees of taxable property, their spouses, and the parents or guardians of children who attended district schools. The state at¬ tempted to justify the law by invoking the need to confine the franchise to the group that was " 'primarily interested’ in school affairs.” The Court declined to pass upon the legitimacy of the asserted state interest but, applying vigorous equal protection scrutiny, found the statute unconstitutional because it was not carefully and precisely tailored to effect that interest.3 The Court explicitly assumed that the state was concerned not with subjective interest, but rather with an objective stake in the outcome of the election.4 Having so construed the state interest, the Court held the franchise restriction ill equipped to serve it with the precision demanded by the strict standard of review. The Court found the restriction both underinclusive and overinclusive: "The classifications . . . permit inclusion of many persons who have, at best, a remote and indirect interest in school affairs and, on the other hand, exclude others who have a distinct and direct interest in the school meeting decisions.” 5 The most salient aspect of endorsement of strict scrutiny franchise. The Court bottomed franchise to exacting scrutiny

the Court’s opinion in Kramer for interest-based restrictions the need to subject restrictions on the fundamental character

was on on of

its the the the

right to vote,6 suggesting that right-to-vote cases challenge the very presumption upon which the minimal scrutiny standard is based — namely, that the elected officials who enacted the statute fairly repre¬ sent the community.7 § 13-11infra. 1. See also § 13-17, 2. 395 U.S. 621 (1969).

might have been filled through appoint¬ ment.” Id. at 628-29. See also Harper v. Virginia Board of Elections, 383 U.S. 663, 665 (1966).

3. Id. at 631. 4. Id.

6. Id. at 626-27. The Court added that the need for exacting scrutiny is not dimin¬ ished because, "under a different statutory scheme, the offices subject to election

e e¬ th ¬ rlwyas r m i co fa it un at ng th t ti s. no nd vo on a s ti e lec em s se wa on th,e i st rs t ge ote in ug v ed ct eat ri po s urre ist o atc d isn sl ng th gi vit s Le erha ool t wa h es sc , de er eat l r o am rSt al e f re Kr h T tu y kb la ke or is g Y li e ns g. Led io in t ct se ll w ec e ri ca pe Ne el th st

5. Id. at 632.

§ 13-11

RIGHTS

OF POLITICAL

PARTICIPATION

1087

In Cipriano v. City of Houma f a companion case to Kramer , the plaintiff challenged a Louisiana statute which permitted only property taxpayers to vote in elections called to approve the issuance of public utility revenue bonds. The state asserted that property taxpayers had a special pecuniary interest in the election because the efficiency of the utility system directly affected property values. The Court reserved

property owner alike.” 10 In Phoenix v. Kolodziejski ,n the Court ex¬ tended the Cipriano rule to elections called to approve the issuance of general obligation bonds.12 Under Arizona law, only otherwise quali¬ fied voters who were also real property taxpayers were permitted to vote on such bond issues. The state sought to justify this restriction by observing that, under Arizona law, property taxes had to be levied in amounts sufficient to service the general obligation bonds, which in turn were secured only by the taxing power of the issuing municipality and not by the revenues of particular facilities as was the case with

.

.

3

the question whether the state "might, in some circumstances, constitu¬ tionally limit the franchise to qualified voters who are also 'specially interested’,” 9 and held simply that the restriction did not serve this interest with the requisite precision since "the benefits and the burdens of the bond issue fall indiscriminately on property owner and non¬

revenue bonds. Rejecting the state’s conclusion that property taxpay¬ ers’ special stake in the outcome of the election warranted the restric¬ tion of the franchise to them, the Court noted that all residents have a substantial interest in public facilities; that non-property tax revenues were available to service the bonds; and that the ultimate incidence of the property tax might lie not upon the property owner but upon those who would eventually pay the higher prices or rents charged by the owner to cover the tax. The Court thus found that "there is no basis for concluding that non-property owners are substantially less interest¬ ed in the issuance of these securities than are property owners.” 13 Although Kramer, Cipriano , and Kolodziejski each invalidated at¬ tempts to confine the franchise to persons with a special interest in the election in question, they all reserved the question whether, in proper circumstances, such a restriction of the franchise would be permissible. In Salyer Land Co. v. Tulare Lake Basin Water Storage District ,14 the Court addressed that question and answered it affirmatively. The Court ruled that a statute restricting the vote for directors of a water storage district to landowners in that district, and weighting votes by value of lands held, need only be subjected to minimal scrutiny, because the water district was endowed with few general governmental powers and because its limited purpose of regulating the district’s water supply involved an activity disproportionately affecting landowners; since the state’s restriction entrusted the franchise to those who bore the primaassumption that franchise restrictions in general bond elections were constitutional, applied its holding prospectively only. Id. at 213-15.

8. 395 U.S. 701 (1969). 9. Id. at 704. 10. Id. at 705. 11. 399 U.S. 204 (1970).

. 212 .Sa.t 39U9

12. The Court, recognizing the extent to which persons might have relied on the

1088

RIGHTS

OF POLITICAL

PARTICIPATION

Ch. 13

ry burdens and reaped most of the benefits of the district’s special activities, the statute was upheld as rational.15 In Ball v. James ,16 the Court extended the Salyer holding when it approved yet another scheme restricting the vote for directors of a water district to landowners in the district. The water district in Ball , unlike that in Salyer , supplied not only water but also electricity to residents of the state; indeed, 98% of the district’s revenues came from sales of electricity whereas only 2% derived from charges assessed for water deliveries.17 The five-member

majority nonetheless held that the

district’s purpose was so specialized and narrow and that its activities affected landowners so disproportionately as to subject the franchise restriction to only minimal review.18 The Court found this standard easily satisfied, again asserting that landowners bore most of the burdens and reaped most of the benefits of the district’s operations.19 Justice White, in a spirited dissent, challenged each of the Court’s findings. He argued that the district, in supplying both water and electricity, "exercise[d] broad governmental power” and that consumers of electricity, rather than landowners, shouldered the primary burdens of the district’s activities.20 Justice White’s assertions appear clearly correct; the Court in Ball had treated as controlling a precedent which had only superficial application. The Court seems unlikely, however, to follow Salyer and Ball in cases that do not involve specialized and apparently proprietary local bodies.21 Salyer and Ball rest on the most problematic of foundations 22 and should be treated as a limited excep¬ tion to the powerful general principle that interest based restrictions are constitutionally disfavored.

§ 13-12. Residency, Voting

Durational

Residency

Requirements,

and

Perhaps the most striking exception to the constitutional presump¬ tion against interest-based restrictions on the franchise is a rule so well established that it is rarely conceived as an "exception” at all: the rule that a state or municipality may restrict the franchise to its bona fide 15. The Court made no oncile its holding with its in Kramer v. Union Free No. 15, 395 U.S. 621, 629

attempt to rec¬ pronouncement School District (1969), that the

school district’s lack of general governmen¬ tal powers did not diminish the need for strict scrutiny. 16. 451 U.S. 355 (1981). See also § 134, supra, text at notes 17-20, and note 20. 17. Id. at 381-82. 18. Once again, the Court did not even attempt to reconcile its holding with its statement in Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969), that the absence of general governmental pow¬ ers had no bearing on the level of review. Neither did the Court attempt to distin¬ guish Cipriano v. Houma, 395 U.S. 701

(1969), which had necessarily held that the provision of electrical and gas utility ser¬ vices was a sufficiently important govern¬ mental function to require application of strict scrutiny. 19. 451 U.S. at 371. 20. Id. at 379, 383-85. 21. The "proprietary” nature of the water district appeared of great signifi¬ cance to the Ball majority. It stressed that the district "cannot enact any laws gov¬ erning the conduct of citizens, nor does it administer such normal functions of gov¬ ernment as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services.” Id. at 366. 22. See § 16-56, infra.

§ 13-12

RIGHTS

OF POLITICAL

PARTICIPATION

1089

residents.1 The rule recognizes that nonresidents may be affected by and interested in what a state or municipality does, but nonetheless accepts territory as the best available means of drawing a boundary for purposes of the franchise. The rule ordinarily applies even to cases in which a municipality or other state subdivision exercises direct extra¬ territorial powers over individuals residing beyond the subdivision’s geographic confines. In Holt Civic Club v. Tuscaloosa ,2 the Court reviewed a variety of Alabama statutes which extended Tuscaloosa’s police, sanitary, and business-licensing powers to individuals residing within three miles of the city’s corporate boundaries. The majority applied minimal scrutiny and found the rational relationship test fully satisfied.3 Although a footnote in the opinion suggests that the Court might rule differently when a municipality can exercise all of its powers beyond its corporate limits,4 the decision clearly indicates that most schemes permitting a subdivision to exercise extraterritorial pow¬ ers will meet constitutional muster. The Court, however, has struck down various efforts by the states artificially to circumscribe the concept of residency. In Dunn v. Blumstein , for example, the Court held unconstitutional one method that some states had adopted to assess the bona fides of a prospective voter’s purported residency.5 The Court there ruled that durational residency requirements — requirements that a prospective voter must have been a resident for some specified period of time — are subject to strict scrutiny and, when assayed by that stringent standard, prove constitutionally deficient at least if they set a period as long as several months as a precondition for voting.6 The plaintiff in Dunn challenged a Tennessee law that required residence in a state for a year and in the county for three months before a citizen became eligible to vote. The state did not deny that the 13-12 1. See Dunn v. §Blumstein, 405 U.S. 330, 343 (1972); Pope v. Williams, 193 U.S. 621 (1904). 2. 439 U.S. 60 (1978). Justice Rehnquist wrote for the Court, joined by Chief Justice Burger and Justices Stewart, Blackmun, Powell, and Stevens. 3. The Court stated that "a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders,” id. at 68, and questioned whether any distinction could be drawn between those subject to a municipality’s direct extraterritorial pow¬ ers and those burdened by ''the indirect extraterritorial effects of . . . purely in¬ ternal municipal actions,” id. at 69. 4. See id. at 73 n.7. See also id. at 76 (Stevens, J., concurring). The Court noted that Tuscaloosa had no authority to levy ad valorem taxes, invoke the power of emi¬ nent domain, or zone property within the police jurisdiction. In dissent, Justice Brennan, joined by Justices White and

Marshall, chided the Court for "ceding to geography a talismanic significance,” Id. at 81, and observed that the Court does not "provide any standards for determining when those subjected to extraterritorial municipal legislation will have been 'gov¬ erned enough’ to trigger the protections of the Equal Protection Clause.” Id. at 86. 5. 405 U.S. 330 (1972). See also Evans v. Cornman, 398 U.S. 419 (1970) (declaring unconstitutional a Maryland statute that denied the franchise to persons living on the grounds of the National Institutes of Health, a federal enclave carved out of Maryland property); Carrington v. Rash, 380 U.S. 89 (1965) (declaring unconstitu¬ tional a Texas statute that denied the fran¬ chise to certain residents because they be¬ longed to the armed forces). See § 13-14, infra. 6. The Court thus overruled its earlier pronouncement in Drueding v. Devlin, 380 U.S. 125 (1965) (per curiam), upholding Ma¬ ryland’s durational residency require¬ ments.

1090

RIGHTS

OF POLITICAL

PARTICIPATION

Ch. 13

plaintiff was in fact a resident (in the usual sense of someone intending to remain), but it denied him the right to vote because he had recently arrived in the state. The Court proffered two reasons for subjecting the franchise restriction to strict scrutiny. First, relying principally on Kramer v. Union Free School District No. 15 7 and Reynolds v. Sims,6 it concluded that an "exacting test” is required for statutes that burden the right to vote.9 Second, it ruled that strict scrutiny was warranted because the durational residency requirement penalized those persons who moved from one jurisdiction to another and thereby burdened the fundamental

right to travel.10 Having thus resolved that the franchise

restriction was unconstitutional unless it was " necessary to promote a compelling state interest,” 11 the Court examined the interests articulat¬ ed by the state and found them inadequate to sustain the voting restriction. The Court acknowledged the urgency of preventing voting by non-residents but insisted that this goal could be realized by some less restrictive means than the durational residency requirement, in an era of sophisticated communications. The Court also questioned the ability of the durational residency requirements to prevent voter fraud, particularly since the record did not reveal that the state attempted to verify the statements of prospective voters that they had indeed been in residence for the requisite period. If a prospective voter were willing to swear falsely that he was a resident, he would presumably be willing to swear falsely about the duration of his alleged residency; the only effect of the requirement, therefore, would be to deny the vote to some persons who were in fact residents.12 The second interest advanced

in

support of the durational residency requirement — ensuring "knowl¬ edgeable voters” — devolved into three distinct claims, all of which the Court found wanting. First, it rejected the contention that the require¬ ment was needed to ensure that the voter had become part of the community, insisting that a simple residency requirement would serve this end as well. Second, the Court deemed illegitimate the asserted state interest in ensuring that the community has had ample time to impress its views on the voter; states have no right, the Court conclud¬ ed, to so insulate themselves from novel ideas.13 Third, the Court found the durational residency requirement too crude a device to effect the state interest in limiting the franchise to voters familiar with local issues; undoubtedly, some new residents were well versed in local issues and some long-time residents were uninformed

about them.

7. 395 U.S. 621 (1969).

'c

8. 377 U.S. 533 (1964). 9. 405 U.S. at 336-37. 10. 405 U.S. at 338-42. infra.

See § 16-8,

11. 405 U.S. at 342. 12. The Court also observed that the one-year residency requirement for living within the state could not possibly be nec¬ essary to detect voting fraud if, as the statute apparently contemplated, county officials required only "Tthree months to as¬ en n certain the bona fides of eas prospective vot¬ s er’s alleged residency. Id. eeat ’hso 347. pe sf or

in in al ma pe l te om tt rt r er es to [mt o co go is aiim mi hen wsh we nipesa mm To t pa ve ngr¬id ss ra un at rn el ib 'iAlt to pohf lmae of a [c in sew le. mi ly’s moe treans, no mcoknt’ th om a dif t h ] an e an mo ¬ g r fe eresere in ht Ev v. eCo n39 re t] , te 8 an r n n r of op m ma nUo.S. tbe at th 423 ebsat 'Diffo ex s anin an gr yor t e . si.’ fre cl y io , ou s pe fr th refr ud Ci n’ p v. ncan in e pr rs om H on 3 U a 7esch g 4 ia U a 35oum Se 95al .SC.a t 05-is v. Ra 05 38no.S. U. t so S. 0 sh rr 5 a e 70e. , 89 . 9,4 (1 in 6 .” 96 , gt 5) o . n

RIGHTS

§ 13-14

OF POLITICAL

PARTICIPATION

1091

Despite the force of these arguments, the Court in 1973 upheld 50day voter residency requirements as "necessary” to serve the states’ "important interest in accurate voter lists.” 14 The dissenters,15 while insisting that 30 days would give the states ample time to achieve their aims, did not question the permissibility of at least minimal durational rules. § 13-13.

Implications clusionary

of Voter Zoning

Residency

Requirements

for Ex¬

If territorially-based franchise restrictions (i.e., residency require¬ ments as prerequisites for voting) are to be squared with the basic principle that voting eligibility rules must not be used to fence out persons of any distinct group or persuasion,1 it follows that zoning and other regulations must not be employed to ensure that only persons belonging to the same racial, ethnic, ideological, or socioeconomic group live (and vote) in a given state, municipality, or other political subdivi¬ sion. Although countervailing associational rights of the community itself justify some limitations designed to preserve a community’s character,2 the casualness with which the Court has upheld restrictions frankly intended to preserve "property values” by excluding persons unable to afford large-lot single-family dwellings3 is understandable only if one recognizes both that this argument linking exclusionary zoning to the franchise has received little attention in the past and that its implications are perhaps too far-reaching to fit comfortably in a judicial approach that stresses deference to state and local autonomy. § 13-14.

Voting by Military Personnel or Others Initially Moving to a Community for a Limited Purpose

In Carrington v. Rash,1 the Supreme Court ruled that a state could not deny the franchise to a bona fide resident simply because he was a member of the armed forces. At issue was a Texas constitutional provision that barred from voting any member of the military who moved his home to Texas during his tour of duty. Texas sought to justify the franchise restriction on two grounds. First, it argued that the restriction was necessary to avert "concentrated balloting of milita¬ ry personnel, whose collective voice may overwhelm a small local 14. Marston v. Lewis, 410 U.S. 679 (1973) (per curiam); Burns v. Fortson, 410 U.S. 686 (1973) (per curiam). 15. Justices Marshall.

Douglas,

Brennan,

and

§ 13-13 to be us ca re vo th ed nn at ti qu or opte ngpe ex ir of dif rs rs cl em f e tpe h 1 ty ude § 13 ons sup en norti ng 3 3; U hecti o8ld 9 t p e r 1 e s R v of ,Ca 2, .S ve 9,ing 4 . a, as 80 rr . h ,o itn o a se .. ' " (1 u f h ct t f g t’ o t. en b w th965) po ato o ciec f he ay r he e , pu n nga y u i l vo a is co ma m s p e t n t sti th eprrm an in e§ io1n3 bl y itnf e iins p e d di th ,” ap urtaan 14 csiila st at , i;o d po p¬l ns ri na rt e c l t io ly i ng nm en

may not be employed to the end of fencing cognizable groups in or out of particular voter districts. See §§ 13-8 and 13-9, su¬ pra. See also § 13-15, infra. 2. See the discussion of Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) in § 1517, infra. 3. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977); James v. Valtierra, 402 U.S. 137 (1971), discussed in § 16-58, infra. Contrast the poll-tax cases dis¬ cussed in § 13-15, infra. 1. 380 U.S. 89 (1965). § 13-14

1092

RIGHTS

OF POLITICAL

PARTICIPATION

civilian community.” 2 The Court stressed that Texas might deny the vote to military personnel stationed in the state who bona fide residents, but it held that the state had no legitimate in distinguishing among bona fide residents on the basis

Ch. 13 properly were not interest of their

military status: " 'Fencing out’ from the franchise a sector of the population because of the way they may vote is constitutionally imper¬ missible.” 3 Second, the state contended that the restriction was justi¬ fied because of the transient nature of military personnel. The Court again stressed that the state was free to fashion tests of residency that would exclude transients; it could not, however, deny the ballot to prospective voters who passed those tests on the ground that they were members of the military.4 Employing language that presaged the conclusive presumption cases,5 the Court held that because the right to vote is so fundamental, military personnel must be permitted to demon¬ strate that their ties with the state are sufficiently close to entitle them to ballots. The Court’s logic would seem to apply with equal vigor to laws denying the franchise to students or indeed to any other group whose original decision to enter a community might have been unrelated to any wish to remain but who might in the interim have developed deeper ties: as long as the members of such a group can satisfy the traditional tests of residency to which a state subjects all other prospec¬ tive voters, there is no constitutionally sufficient warrant for excluding them from the franchise. § 13-15.

Poll Taxes

and Literacy Tests

The twenty-fourth amendment forbids conditioning the right to vote in federal elections on the payment of a poll tax, but the Constitu¬ tion does not explicitly address itself to poll taxes in state elections. In Breedlove v. Suttles 1 and Butler v. Thompson ,2 the Supreme Court upheld the right of states to make payment of a poll tax a prerequisite to participating in state elections. But in Harper v. Virginia Board of Elections ,3 the Court dramatically reversed ground and declared uncon¬ stitutional the Virginia poll tax it had upheld 15 years earlier in Butler. The Court could divine no state interest that would enable the poll tax to withstand strict scrutiny since "[v]oter qualifications have no rela¬ tion to wealth nor to paying or not paying this or any other tax.” 4 Prior to Harper , the Court had found a legitimate state interest in some literacy tests. In Lassiter v. Northampton Election Board ,5 the Court upheld the constitutionality of a North Carolina provision re2. Id. at 93-94. 3. Id. at 94. 4. "But if they are in fact residents, with the intention of making Texas their home indefinitely, they, as all other quali¬ fied residents, have a right to an equal opportunity Id.

for political representation.”

5. "[T]he presumption here created is . . . definitely conclusive — incapable of being overcome by proof of the most posi¬

tive infra. character.”

Id. at 96. See § 16-32,

1. 302 U.S. 277 (1937). 13-15 2. 341 U.S. 937§ (1951) (per curiam). 3. 383 U.S. 663 (1966), discussed more fully in §§ 16-10, 16-47, infra. 4. Id. at 666. 5. 360 U.S. 45 (1959).

§ 13-15

RIGHTS

OF POLITICAL

PARTICIPATION

1093

stricting the franchise to persons who passed a literacy test.6 The Court acknowledged that states could not exercise their power over the franchise in a capricious manner, but it held that the literacy test had "some relation to standards designed to promote intelligent use of the ballot.” 7 Lassiter , however, antedated the era of exacting scrutiny of restrictions on the franchise. Although it seems unlikely that the Court would invalidate all literacy tests, it is not clear how they could survive the properly herculean demands of strict equal protection review. Even assuming that a state may properly limit the franchise to "informed” voters, a literacy test is both underinclusive and overinclusive since some literate persons are completely uninformed on public issues and, especially in an age of electronic communications,8 some illiterate persons are knowledgeable on many public matters. Al¬ though literate persons as a group are undoubtedly better informed than the illiterate, the Court has discredited such group analysis when rights as fundamental

as the franchise are implicated.9

While Lassiter upheld the North Carolina literacy test, it under¬ scored two scenarios in which a literacy test might be unconstitutional because it was invidiously discriminatory. First, a literacy test may be unconstitutional on its face because it gives a state official unfettered power to make literacy determinations, power the official could exercise unconstitutional insofar as it is in fact applied in a discriminatory manner.11 Finally, the Court has upheld the power of Congress to suspend literacy tests and to provide other extraordinary remedies in 6. By the time Lassiter was decided, the Supreme Court had already determined that literacy requirements could not be

8. Even if the Court could plausibly say in 1959 that a state might reasonably equate illiteracy with political ignorance

used in conjunction with "grandfather clauses” to flout the prohibitions of the fifteenth amendment by imposing a restric¬ tion on voting which was in fact based on race. In Guinn v. United States, 238 U.S. 347 (1915), the Court invalidated the

"in our society where newspapers, periodi¬ cals, books, and other printed matter can¬ vass and debate campaign issues,” 360 U.S. at 52, such a view in the television-saturat¬ ed 1980’s would be much harder to main¬ tain.

"grandfather clause” of Oklahoma’s consti¬ tution under which all voters were re¬ quired to be able to read and write except that an inability to read and write would not disqualify voters, and descendants of

9. See §§ 13-11, 13-14 supra. 10. For this proposition, the Lassiter Court cited Davis v. Schnell, 81 F.Supp. 872 (S.D. Ala. 1949), affirmed 336 U.S. 933

voters, who were "on January 1, 1866, or at any time prior thereto, entitled to vote (1949). In Davis, the test was the citizen’s ability to "understand and explain” an ar¬ under any form of government, or who at ticle of the Federal Constitution; the legis¬ that time resided in some foreign na¬ lative background of that pliable literacy tion. ...” The Court found the clause test rendered transparent its nature as a violated the fifteenth amendment since its vehicle for racial discrimination. See also obvious effect was to impose the literacy Louisiana v. United States, 380 U.S. 145, test upon former slaves and their descend¬ 152 (1965) (holding unconstitutional Louisi¬ ants. See also Lane v. Wilson, 307 U.S. ner.10 * ana statute requiring applicant for regis¬ 268, 275 (1939) (state statute allowing only tration to give a reasonable interpretation n invidious 12 days for registration for those who had of any section of the state or federal consti¬ been disenfranchised by unconstitutional tution read to him by the registrar; statute Second, "grandfather clause” held unconstitutional even a provided no check on the registrars and literacy because the fifteenth amendment "nullifies the test requirement sophisticated as well as simpleminded fair on was used "with phenome¬ its face nal success to keep Negroes from vot¬ is modes of discrimination”). See § 5-14, su¬ pra. ing. . . .”) 7. 360 U.S. at 51.

1094

RIGHTS

OF POLITICAL

PARTICIPATION

Ch. 13

states and municipalities where the use of such tests has coincided with low voter participation, a linkage Congress reasonably found to be indicative of past discriminatory practices.12

§ 13-16.

Disenfranchising ing Trial

Persons

Convicted

of Crime

or Await¬

In Richardson v. Ramirez,1 the Supreme Court held that, because § 2 of the fourteenth amendment apparently contemplates the disen¬ franchisement of convicted criminals,2 the equal protection clause of the fourteenth amendment does not invalidate state laws which deny the ballot to ex-felons.3 The Court opined that the drafters of the fourteenth amendment "could not have intended to prohibit outright in § 1 . . . [the disenfranchisement of criminals] which was expressly exempted

from the lesser sanction . . . imposed by § 2.” 4

The Court’s attempt to read these sections of the fourteenth amendment in pari materia appears fundamentally misconceived. Al¬ though the Court argues fairly persuasively that § 2 of the fourteenth amendment establishes that the framers accepted the disenfranchise¬ ment of those convicted of crimes, that section provides no warrant for circumscribing the reach of the equal protection clause which, as the Court had previously emphasized,5 is not bound to the political theories of a particular era but draws much of its substance from changing social norms and evolving conceptions of equality. If measured against such conceptions in a manner consistent with general equal protection analysis, denial of the franchise to convicted criminals would appear unconstitutional. Because the restriction infringes upon the right to vote, it would be sustained only if it were necessary to secure a compelling state interest. But it is not needed to prevent voter fraud since registration provisions and criminal sanctions constitute less oppressive means of realizing that end even if convicted criminals are unusually prone to indulge in such fraud. Nor can the state’s interest in an informed electorate sustain the restriction, since some convicted criminals are, no doubt, even more informed and discerning than their law-abiding fellows. The state interest in deterring crime and punish¬ ing criminals is surely compelling, but attempts to justify franchise restriction as an additional penal sanction would founder in the face of alternative criminal sanctions that do not encumber 12. South Carolina v. Katzenbach, 383 U.S. 301 (1966); Katzenbach v. Morgan, 384 U.S. 641 (1966); § 5-14, supra. 1. 418 U.S. 24 §(1974). 13-16 2. Section 2 provides: "Representatives shall be apportioned among the several States according to their respective num¬ bers . . . But when the right to vote at any election ... is denied to any of the male inhabitants of such State, being twen¬ ty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or oth¬ er crime, the basis of representation there¬

the right to vote.6

ed.) in shall be reduced . . . ”. (Emphasis add¬ 3. Davis v. Beason, 133 U.S. 333 (1890), had upheld a law denying the franchise to bigamists, but the only constitutional issue raised in that case concerned the free exer¬ cise clause of the first amendment. 4. 418 U.S. at 43. 5. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 669 (1966). 6. This argument highlights a sublimi¬ nal tension in constitutional doctrine. Be¬ cause the denial of the vote is not a unique¬ ly needed sanction, it fails to survive strict scrutiny; on the other hand, the imposi-

RIGHTS

§ 13-17

OF POLITICAL

PARTICIPATION

1095

Even if the holding of Richardson v. Ramirez 7 is accepted, howev¬ er, its rationale plainly does not extend to persons incarcerated await¬ ing trial but not yet finally convicted. Although the Court has thus far had occasion to vindicate the right of such detainees to vote by absentee ballot only where the state would allow them to do so if incarcerated outside the counties of their residence,8 and although no right to cast an absentee ballot need exist if alternative means of voting are adequately provided,9 it should be clear that absolutely foreclosing or significantly burdening an unconvicted detainee’s opportunity to vote would be unconstitutional. 10 § 13-17.

The Power to Recognize Distinctive Voter Direct Referendum Elections

Interests in

The principles "applicable in gauging the fairness of an election involving the choice of legislative representatives” have been deemed "of limited relevance ... in analyzing the propriety of recognizing distinctive voter interests in a 'single-shot’ referendum” where voter will is expressed directly rather than through elected representatives, and where the existence of a single, discrete issue makes it far easier "to determine whether its adoption or rejection will have a dispropor¬ tionate impact on an identifiable group of voters.” 1 For example, when a proposed county reorganization contains provisions that could significantly shift power and responsibility from towns within the county either to cities located in the same county or to the more distant county government itself, it is appropriate for the state to recognize the separate and potentially conflicting interests of town and city dwellers by requiring that the reorganization be separate¬ ly approved by a majority of each.2 There is, after all, no absolute constitutional requirement that a change be instituted by a political unit whenever a majority of the people in the unit favor it; from the Constitution itself to a wide array of intermediate devices such as the tion of a prison sentence on a convicted criminal is assumed to comport with the equal protection clause despite the fact that there are probably alternative sanc¬ tions and that neither society nor the crim¬ inal can conclusively be shown to be bene¬ fited by imprisonment for some crimes. 7. 418 U.S. 24 (1974). 8. See O’Brien v. Skinner, 414 U.S. 524 (1974) (holding wholly irrational a state’s decision to permit detainees to vote by absentee ballot along with others physical¬ ly incapacitated if detained outside home county but not if detained near home). 9. McDonald Comm’rs,

v. Board

of Election

394 U.S. 802, 808 (1969).

10. Cf. Goosby v. Osser, 409 U.S. 512 (1973) (holding the issue to be left open by McDonald and thus proper for a threejudge court).

1. Town of Lockport v. Citizens for Community Action, 430 7 U.S. 259, 266 § 13-1 (1977) (upholding provision of New York Constitution whereby county charter can be adopted only if approved by a majority of the city dwellers voting in the county and by a majority of the voting noncity dwellers; citizens favoring a proposed charter for Niagara County are not de¬ prived of any constitutional right when its adoption fails for want of a majority ap¬ proval by noncity voters, notwithstanding a favorable vote by a majority of those voting in the entire county). 2. Id. The Court noted the absence of any indication that this state requirement tended in general to "favor city to town voter, or town to city voter,” id. at 272 n. 18. Had such an inherent tendency been demonstrable, the requirement would clearly have denied equal protection to the category disfavored.

1096

RIGHTS

OF POLITICAL

PARTICIPATION

very institution of representative government,

Ch. 13

our political system has

hedged the power of popular majorities to work their will.3 To give one group a veto over the larger community’s wishes even when all have "substantially identical interests” would violate equal protection,4 but one-shot proposals differently affecting several political communities may be subject to voter approval or veto in each.5 Such provisions for what might be called "advice and consent” by each of several distinctly affected geographically or functionally defined constituencies might be analogized to systems for policy-making by centrally appointed officials whose power is checked and partially decentralized by requirements of consultation and consent by each of the groups on whom the power is exercised. So long as the result is not the systemic favoring of one group or interest over another,6 or the delegation of unaccountable power to groups not acting as politically responsible units,7 no constitutional right is violated by the procedure. Acceptance of this argument merely formalizes the pervasive prac¬ tice of giving separate and distinct weight, when making specific political decisions, to each of several differently affected groups. But that practice should be sharply distinguished from state systems of weighted or otherwise skewed legislative representation. It is one thing to pay more attention to, say, landowners or environmentalists on a particular policy issue with special impact on them; it is something else again for the state to translate this supposedly greater interest of a law req a sta up the Cou (19 he 7 t r 1 e t auisr¬ a ilnd a re ap in ),60 g pr fe % o r in¬ sub end to vaal pol pre div uAml initi of bo curreq nd de cal isi tho r u ed rbete su ingissuit on’ miugg ch pee qdun s hht rm iers one "o esm. pe th to avjio ap e ne en rso pe l r a itte th t vo ar pri y e Cour r disst n, thte” fr nci ma e t pr ing om pl la em es uis e, ppo e"nn hien i t t by no sc r s h h t ide ting tioant gr ere or coaati de¬ pehem t o ove eogtohnr bo ntif in ed oup thandeenfsav nd ia de r t tlors eyr ed bl bte no sec oyf fi fo e Co dn r n ns es maeq sbe sai to b¬e tor msof th paonc e puin y ue nt b d of out fr lagt.ithe fra 'fe ly ec om on ’ nce nch au v w th the wda i4s0e3 U.S saet 5. ey ill ote y . . ” 60% approval is Because a law requiring mathematically equivalent to a law requir¬ ing only majority approval but weighting

"no” votes 1.5 times as heavily as "yes” votes, the ruling in Gordon v. Lance serves to underscore the sense in which voting is distinct from expressing an opinion. For there is no doubt that a law allocating 1.5 La times as much access to a public forum to nc e, speakers who oppose bonded indebtedness 40 3 as to speakers who favor it would violate U. S. first amendment principles. See § 12-24, 1 supra. In the voting context, a supermajority rule operates not to skew the expression of views but to tilt against their direct translation into certain kinds of political outcomes — something a juris¬ diction must be able to do with respect to

those things that it deems fundamental. Otherwise, states could not, for example, create state constitutional "rights” more generous than those secured by the federal Constitution and resistant to change by ordinary majorities. Because supermajori¬ ty rules do have this deliberate effect, they can presumably be put in place only by the more rigorous processes jurisdictions adopt for constitution-making or constitutionamending. Otherwise, the mere majority of the moment could freeze its views into law in a way that only a much larger majority could thereafter undo — a possibil¬ ity that would seem hard to square with the premises of a "republican form of gov¬ ernment,” art. IV, § 4, discussed in §§ 313 and 5-23, supra. 4. Town of Lockport, supra note 1 at 269 (dictum). 5. For example, "a proposal that sever¬ al school districts join to form a consolidat¬ ed unit could surely be subject to voter approval in each constituent school dis¬ trict.” Id. at 271 (dictum). 6. See note 2, supra. 7. See Eubank v. Richmond, 226 U.S. 137 (1912); Cusack Co. v. Chicago, 242 U.S. 526 (1917); Washington ex rel. Seattle Ti¬ tle Trust Co. v. Roberge, 278 U.S. 116 (1928); cf. City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976).

RIGHTS

§ 13-18

OF POLITICAL

group into a disproportionate number

PARTICIPATION

1097

of representatives for the group

in a decision-making body exercising continuing power over a whole class of issues. Now that the Supreme Court has clearly expressed its approval of recognizing distinctive voter interests in the one-shot case, there is even less need than might previously have been thought to accept the far more drastic step of recognizing distinctive voter inter¬ ests in the context of representation.8 § 13-18.

Regulation of Candidates, Elections

Campaigns,

Conventions,

and

Democracy envisions rule by successive temporary majorities. The capacity to displace incumbents in favor of the representatives of a recently coalesced majority is, therefore, an essential attribute of the election system in a democratic republic. Consequently, both citizens and courts should be chary of efforts by government officials to control the very electoral system which is the primary check on their power. Few prospects are so antithetical to the notion of rule by the people as that of a temporary majority entrenching itself by cleverly manipulat¬ ing the system through which the voters, in theory, can register their dissatisfaction by choosing new leadership. But in the political marketplace, much as in its economic analogue, laissez faire is not always a satisfactory alternative. Without at least some government regulation of elections, election day — if such a "day” could itself be chosen without collective measures— -would yield only the cacophony of an atomized body politic, not the orchestrated voice of an electorate. Although this electoral chaos might not be susceptible to control by prevailing government officials, neither would it permit the orderly selection of their successors. And so the government comes to regulate certain aspects of the electoral process: the eligibility of candidates and voters; ballot access by independent candidates and political parties; conduct during election campaigns; and the financing of such campaigns. Constitutional review of election and campaign regulation amounts, in large part, to accommodating the fear of a temporary majority entrenching itself with the necessity of making the election a readable barometer of the electorate’s preferences. It is not surprising, therefore, that the vigor of judicial review of election laws has been roughly proportioned to their potential for immunizing the current leadership from successful attack. Thus, courts have reviewed rather summarily laws that specify eligibility requirements for particular candidates,1 but have more carefully appraised the fairness and open¬ ness of laws that determine which political groups can place any candidate of their choice on the ballot.2 8. See § 13-11, supra.

§ 13-18 be some eligible 1. There will ordinarily candidate to represent any given political persuasion, and there may be no great virtue in having multiple candidates sup¬ port a given view. Tribe-Amer.Const.Law

2nd Ed. UTB — 26

2. That courts should proceed in pre¬ cisely this manner is the conclusion of An¬ derson v. Celebrezze, 460 U.S. 780, 793 n.15 (1983) (quoting the preceding language from this treatise’s first edition), discussed in § 13-20, infra. Similarly, laws regulating eligibility to vote are carefully scrutinized by the courts.

1098 § 13-19.

RIGHTS Candidate

OF POLITICAL

PARTICIPATION

Ch. 13

Eligibility Requirements

The states demand a variety of qualifications from potential politi¬ cal candidates.1 Since these state-enacted eligibility requirements bar certain persons from holding political office, they must satisfy the requisites of the equal protection clause. The threshold question is whether, as a rule, these eligibility requirements are evaluated by the lower tier equal protection test or whether they demand more exacting judicial scrutiny. Because candidate eligibility requirements do not, as a class, infringe upon constitutionally fundamental rights or draw suspect classifications, they are generally assessed only under the lower tier test discussed in § 16-2, and are sustained so long as they rational¬ ly relate to a legitimate state interest. In Clements v. Fashing ,2 the Court upheld two provisions of the Texas Constitution restricting a public official’s ability to become a candidate for another public office — a "serve-your-term” provision that prohibited officeholders from cutting short their current terms in order to serve in the state legislature,3 and a "resign-to-run” rule providing that the holders of certain offices automatically resign their positions if they become candidates of any other elected office.4 A plurality of the Justices, refusing to characterize candidacy as a fundamental right, found that "the existence of barriers to a candidate’s access to the ballot does not itself compel close scrutiny.” 5 Heightened scrutiny would be required only if the restriction "unfairly or unneccessarily announce their candidacy, or shall in fact become a candidate, in any General,

See §§ 13-10, 13-11, supra. This is appro¬ priate in part because controlling who is eligible to vote obviously has a profound impact on who can be elected. One eligi¬ ble candidate may adequately reflect the perspective of those who might have voted for a candidate who has been excluded, but the fact that some voters might represent the viewpoints of a disenfranchised person or group is hardly relevant, since votes, unlike candidates, are additive.

Special or Primary Election, for any of¬ fice . . . other than the office then held, at any time when the unexpired term of the office then held shall exceed one (1) year, such announcement or such candidacy shall constitute an automatic resignation of the office then held.”

no

by Ju Re wa jo st in hn s un ic e qu ce b C 9 -1 o J B J P 13 § e us us nl d y hi ur is owd 1. See also § 13-21, infra, on candidate e t t y g ¬ iOc er t, Th ic ho filing fees. el an Ju f e’eC e ld F ,d st s d e nol nton ef in or icee n 2. 457 U.S. 957 (1982). ehn al eth gr e ms of irvneolo a firg asvi tre. ou th el y s eble am ou es ri tros as so ats ps 3. Article III, § 19, of the Texas Consti¬ s . gh s to enadd gh a ca th tution, required officeholders to serve out t to re oci e pr at nd mvea their current terms of office before they vi as id ri es e do nior nctth t so at gh en e ee may be eligible to serve in the legislature: ctih e an ts t se ws, to -brasee p i n a at di squ y rt e ¬ ic Se vi m se eidraes th ionca " D u "No judge of any court, Secretary of r e¬ d la e ve i t at L alndi E ve ual 88 State, Attorney General, clerk of any r l n h d a e11 wn:. at (1ect Ha lo 11 Mo court of record, or any person holding a 45 8 e 9 1 35 r r p 7 ov v.Lmetnh is so7, mo1 . t7h5i)ons fa e¬ U. lucrative office under the United States, er . ter an. ,” in r m S. od , eRvevse in a ceoth bo e th atnly or this State, or any foreign government at d, y¬ a i . a e u t st n nt ng 96 he is shall during the term for which o c b P a a s i r ne an ec o 3. r y bong ut r ciet a oma a e"sid elected or appointed, be eligible toTh the d is acesc bo es to befuneunnt fiogh a yv’as n r t” st ho ti ri , u t d ndi m amhi T ld ma vitbi o t Legislature.” t f he eff s em ennka hus 4. Article XVI, § 65, of the Texas Con¬ ingt,o jorcuy ng a r b t c f loorts t bl o er an i r i a a o l g t o stitution provided, in relevant part: s.v.di F l e la n¬ yl in hTtu 3m9 U.se o d S. 6 u n rn 34 gua 36 (1 (esr No acyc4h5e S. "[I]f any of the officers named herein e 97 6 te 2 , 4 Cal U 99 , g1e0 n.0) (1 e ,No [i.e., District Clerks, County Judges, Dis¬ 0 .L.C 97 6, 71 te 09 .Rhi b Re 35 36 (1 2) sh , pr trict Attorneys, County Commissioners, ev.L e 7, 97 ; v. 7 ou ob .. 3 Justices of the Peace, and Sheriffs] shall l a )) d bl re je y ct ed .

§ 13-19

RIGHTS

OF POLITICAL

PARTICIPATION

1099

burdens the availability of political opportunity.” 6 The plurality ob¬ served that, as applied to the only appellee who alleged that he would run for the state legislature, the "serve-your-term” provision operated simply to require that he complete his four-year term as Justice of the Peace before becoming eligible for the legislature; since "legislative elections are held every two years,” the only effect was to impose a "maximum 'waiting period’ of two years for candidacy by a Justice of the Peace for the legislature,” which the plurality deemed a "