Yearly Archives: 2012

Defending Freedom of the Press as an Institutional Guarantee: A Guide in Dealing With Historical and Jurisprudential Obstacle Courses

Mar 30, 2012 Paul HorwitzAdd a Comment

Randy Bezanson’s recent short piece, Whither Freedom of the Press?, is an instructive example of how to get around an obstacle—two obstacles, really. The first is the Supreme Court’s opinion in Citizens United v. FEC, 130 S. Ct. 876 (2010). In the course of striking down a law prohibiting the direct use of corporate or union treasury funds for electioneering communications, the Court stated that “the institutional press has [no] constitutional privilege beyond that of other speakers.”

The second obstacle is actually more formidable. In a recent article in the University of Pennslyvania Law Review, Freedom of the Press as an Industry, or for the Press as a Technology?: From the Framing to Today, Eugene Volokh takes on the view of some writers, including Justice Stevens in his dissent in Citizens United, that the Press Clause of the First Amendment provides some form of protection to the press as an “industry” or institution. Volokh argues that the Press Clause protects the press only “as a technology”—that it secures only “the right of every person to use communications technology,” and grants no special privileges to the professional or institutional press as such. Skillfully marshaling extensive historical sources, Volokh concludes that the evidence “point[s] powerfully toward the press-as-technology reading” of the Press Clause, “under which all users of mass communications technologies have the same freedom of the press” and journalists qua journalists have no unique privileges.

Volokh closes in a quietly brutal fashion. He acknowledges that “the Supreme Court has never limited itself to analyzing constitutional provisions based solely on historical sources,” thus leaving open the possibility of an institutional reading of the Press Clause. His research “simply” shows, he adds, that “an argument for a press-as-industry interpretation of the Free Press Clause must rely on something other than original meaning, text, purpose, tradition, or precedent.” Which is to say, virtually every standard interpretive source.

What do you do if, like Bezanson, you favor a different reading of the Press Clause, but you think Volokh has done a fair job “when judged by the spare and spartan doctrine of textualism and originalism?” What do you do when the biggest tree in the forest stands directly in your way and you are armed only with a knife? There are two basic options: move around it, or dig deep enough underneath it to bring the whole thing down. Bezanson’s article is a nice illustration of both methods. Whether he succeeds wholly in getting around his obstacle or not, this short piece is a pleasure to read just for its forensics.

The first lesson Bezanson teaches us is to go after the weakest link. In this case, that is Citizens United itself. As he notes, Justice Kennedy’s treatment of the press in his opinion is characteristically “offhanded.” Kennedy cites many cases concluding that the First Amendment rejects distinctions based on a speaker’s identity, and a smaller number of cases suggesting that the press is entitled to no special constitutional privileges. But he ignores many decisions and statutes treating the press differently, such as “exemptions from taxation and regulation, . . . differential postal rates, sales and use tax exemptions, and media exemptions under the campaign laws themselves.” Either these laws are all unconstitutional, or “the press guarantee means something different from the speech guarantee, which the Court denies.” Bezanson concludes that Kennedy’s broad statements are poorly grounded and that Citizens United ultimately says “nothing at all significant or important or even controversial about freedom of the press.”

This leaves Bezanson in a better position to take on Volokh himself. And where better to begin with the Press Clause itself? He makes the obvious point that it is “textually awkward” to simply read the Press Clause “out of the First Amendment.” The reader is primed to believe that it must mean something, and something non-trivial at that. This shifts the burden on Volokh.

Volokh has an answer, of course: the Press Clause simply means that all speakers, whether they belong to the institutional press or not, are entitled to use technologies of mass communication. In Bezanson’s view, Volokh presents a false dichotomy, under which the “press” either refers to something “institutional” or something “technological.” But “no legal scholar who has examined the ‘press’ question has seriously entertained the sparse and barren meanings” Volokh presents as the only alternatives. Rather, “the meaning and role and rights of the press under the First Amendment are complex, culturally and technologically situational, functional, and broadly historical questions.” Volokh’s rejection of this admittedly vague description is thus implicitly treated as a failure to think deeply and maturely about the issue: “As an originalist Professor Volokh will have none of that.”  What scholar wants to deny the capacity to think in “complex” ways about a deep social and historical question?

Having hinted at the insufficiency of Volokh’s views and the incompleteness of Kennedy’s broad and unhelpful dicta about the Press Clause, Bezanson is in a better position to present his alternative vision. For Bezanson, a raft of excellent historical scholarship demonstrates that the Press Clause involved more than technology. Historically, it is closely linked to “our constitutional conceptions of freedom and democratic self-government.” The Framers believed, in the words of Press Clause scholar David Anderson, that “freedom of the press was inextricably related to the new republican form of government and would have to be protected if their vision of government by the people was to succeed.” Bezanson adds that his point “is not to establish that the Court or Professor Volokh is wrong,” but “to emphasize that there is a rich scholarship on the questions of the press’s meaning and rights that deserves attention and that a common thread in the scholarship is attention to purpose and function in defining and protecting the press.” In effect, he is saying to Volokh, you can have your historical evidence, but you’ve missed something deeper here. Of course, whether this scholarship is successful as a historical matter is precisely the point of Volokh’s article. But Bezanson treats the very existence of competing scholarship as evidence that something is missing from Volokh’s argument.

Having argued that there is some basis for differential treatment of the press, Bezanson then turns from history to policy, asking whether there are good justifications for a “constitutionally distinct press freedom.” This allows him to spend the rest of the piece side-stepping Volokh’s historical evidence and presenting a vision of the Press Clause itself, until we almost forget that Volokh’s alternative reading exists. Bezanson does a fine job presenting that vision, which distills years of his own work and that of other scholars.

For Bezanson, the press’s relationship to self-government poses “distinct dangers of compromising the press’ independence.” That independence turns on “the nature of the expressive and communicative decisions the press makes”—on the professionalized “journalistic editorial processes and judgments” that are consistent with “the assumptions of truth-seeking and public information and opinion upon which our democracy functions.” Those specialized functions, and their contribution to democracy, present “distinct freedom of the press questions, not just freedom of speech questions.” Finally, he argues that a distinct element of the press’s importance to public discourse is its independence from government. But government speech doctrine suggests that the government can speak as it wishes, including speaking as “the press.” Since Bezanson has already posited the importance of press independence, this allows him to argue that whatever government may do by way of aping the press, there must be some different institution called “the press” that remains constitutionally distinct from the government. That is true even in a world of shifting technology, in which millions have access to the technology of mass communication. Amidst this “cacophony” of voices, Bezanson argues, we need something more. We need a press that serves as “an essential voice with a purpose and function borne of independence and the needs of democratic self-government,” one characterized by press values of “disinterestedness and devotion to the unreachable, yet noble, ideal of truth.” Nothing less will do for a functioning democracy.

This is all skillfully accomplished. By linking Volokh to Citizens United, Bezanson can attack Volokh indirectly by criticizing Justice Kennedy’s typically broad statements. Rather than go after Volokh’s history directly, his summary of the competing scholarship allows defenders of an institutional version of the Press Clause to avoid feeling fatally undercut by Volokh’s evidence. By shifting his ground from history to policy reasons for a functionally oriented version of press freedom, he moves the discussion to safer ground. And he deploys one last technique: the sacrifice play. Many scholars of press freedom have argued that it includes some positive rights, especially a right to engage in newsgathering. Bezanson writes that he has “long been skeptical about many of these press claims,” but that they “do not lie at the center of things.” By throwing overboard claims for newsgathering protection or the protection of confidential sources, he leaves us with a diminished “functional” press, but avoids the difficulty of swimming against a stream of constitutional doctrine that generally disfavors positive privileges, let alone institutional privileges.

If this all sounds like damning with faint praise, it’s not. Bezanson’s article scores some nice points. History is painting a picture, not doing a sum, and even a sound use of originalism that neglects serious historical work in this area leaves something to be desired. It’s discomfiting, at least, to read an 80-page treatment of the historical meaning of the Press Clause that doesn’t mention the work of Paul Starr, William Siebert, Robert Martin, Anuj Desai, and Leonard Levy (cited once but peripherally in Volokh’s paper), among others, that doesn’t mention early postal subsidies for newspapers, that doesn’t fully grapple with the early development of competing themes of “free press” and “open press,” and so on. Volokh’s article is good as originalism but incomplete as history. There is much more room for Bezanson’s argument for a functional or institutional component of the Press Clause than Volokh’s dismissive conclusion implies. Although I am more sympathetic than Bezanson to the possibility of press rights relating to newsgathering, he does a fine job in a short space of presenting compelling arguments for his vision of the Press Clause.

But it is his forensics I find especially fascinating. Volokh’s superb article and Citizens United both pose serious challenges to defenders of institutional press freedom. By ridiculing the opinion and mostly leaving  Volokh’s article untouched while working around it, Bezanson gives us an artful example of lawyerly argument as jiu-jitsu.

New Comparative Constitutional Scholarship on Enforcing Second Generation Rights

Feb 8, 2012 Mark TushnetAdd a Comment

The Texas Law Review recently published an important symposium on Latin American constitutionalism. Many of the articles make important contributions to the field of comparative constitutional law, not least because the English-language literature in the field has been dominated by discussions of constitutional doctrine in Europe and North America. (Not surprisingly, the part of the literature on creating constitutions has had a wider geographical range.)

The two articles I have singled out deal with a phenomenon of growing importance outside the United States, the judicial enforcement of social and economic – so-called “second generation” – rights. Interpreting constitutions adopted or amended substantially much more recently than the U.S. Constitution has been, constitutional courts around the world have moved past the question on which U.S. scholars typically focus – whether courts should enforce second-generation rights – to consider how to do so. Or, perhaps more precisely, many courts have embarked on projects of enforcing second-generation rights, and their performance allows scholarly evaluation, informed by actual experience in additional to theoretical speculation, of judicial enforcement of second-generation rights.

These articles examine judicial performance in Brazil and Colombia, and offer rather different evaluations. Octavio Luiz Motta Ferraz examines litigation in Brazil over the right to medicine, and as his subtitle indicates he is not impressed. Right-to-medicine cases arise when an ailing person believes that he or she would benefit medically from a prescription drug not available through the nation’s health care system, and seeks a judicial order directing that the system make the medication available to the claimant. These right-to-medicine cases have been strikingly “successful” in Brazil, in the sense that large numbers of patients win their cases and get access to the medication – but at great cost to the nation’s health-care system. Motta Ferraz reports estimates that more than 40,000 lawsuits a year are filed, and that almost all are successful. He gives the example of one case that has, he says, become “paradigmatic.” The case involved a patient with Duchenne’s muscular dystrophy, a “genetic degenerative disease that affects muscle cells and progressively leads to the death of the patient.” A private clinic in the United States offered the only treatment with any promise, at a cost of more than $63,000, which Motta Ferraz observes is “about twenty times Brazil’s nominal GDP per capita.” Rejecting the government’s objection that ordering it to provide the treatment would stress its resources (and thereby undermine its ability to provide health care to large numbers of Brazilians less well-to-do than the claimant), the Supreme Federal Court held that the “inviolable rights to life and health” required that the treatment be provided.

Motta Ferraz finds this and similar results troubling – as he should. The Brazilian experience shows that enforcing second-generation rights through ordinary, case-by-case litigation is unsatisfactory, for several reasons. Motta Ferraz notes that this enforcement mechanism disproportionately favors relatively well-off litigants (well-off in terms of wealth, of course, not health) over poor litigants, because the former group are likely to be more knowledgeable about their rights and, perhaps more important, better able to get access to legal representation and so better able to get into court in the first place. In addition, the government’s invocation of what in other contexts would be described as a risk-risk tradeoff (the risk to the litigant’s health traded off against the risks to the health of a much larger number of people not before the court) shows how case-by-case litigation can interfere with the kind of planning that a sensible system of health care provision requires.

Notably, though, the difficulties Motta Ferraz describes arise from the form of the litigation (as well as from what Motta Ferraz describes as the “absolutist” characterization of the right to health by the Brazilian courts, an approach that in the end I think is not separate from the case-by-case litigation form). Courts in other constitutional systems have taken a different approach, most notably in developing litigation forms that induce consultation between the government and affected constituencies and also induce rational government planning to ensure that second-generation rights are respected.

César Rodriguez-Garavito describes one of these alternative litigation forms, drawing on Colombia court orders dealing with efforts to provide housing and social integration for “internally displaced persons,” most of whom were the victims of Colombia’s widespread political violence over the past generation. Opening his article with a dramatic depiction of a “hearing” in the Colombian Constitutional Court, which to all appearances could have been a hearing before a committee of the Colombian parliament, Rodriguez-Garavito analyzes the Court decision that led to the hearing. In 2004, the Court “mandated that the government formulate a coherent plan of action to tackle the IDPs’ humanitarian emergency and to overcome the unconstitutional state of affairs, …, ordered the administration to calculate the budget that was needed to implement such a plan of action and … instructed the government to guarantee the protection of at least the survival-level content … of the most basic rights – food, education, health care, land, and housing.”

Rodriguez-Gavarito then evaluates developments since 2004, listing several “major effects.” First, the decision changed the agenda for state bureaucracies. No longer could they ignore, or give a low priority to, the rights of IDPs. Rodriguez-Gavarito properly describes this effect as resulting from the exercise of a “destabilization right” of the sort identified by Charles Sabel and Roberto Unger. Second, it induced the agencies to coordinate their efforts, a particularly important effect given the cross-cutting nature of the needs of IDPs. Third, the decision induced participation by IDPs and supportive non-governmental organizations in the development of the relevant policies. Fourth, the decision had the effect of “reframing” the claims of IDPs. Rather than being seen by the public as persons in need of social assistance, they became seen as holders of constitutional rights.

Yet, Rodriguez-Garavito acknowledges, “the situation has changed little: although access to education and health care has dramatically improved, benefitting nearly 80% of IDPs, conditions with regards to all other [social and economic rights] continue to be unsatisfactory. To illustrate, 98% of IDPs live in poverty, only 5.5% have adequate housing, and only 0.2% of displaced families received the legally mandated emergency humanitarian assistance in the months immediately following their forced displacement.” One might wonder about the claim that little has changed if “access to education and health care has dramatically improved.” But, suppose we accept Rodriguez-Gavarito’s overall evaluation. Does this mean that the Court’s efforts failed – or “only” that achieving real change under the conditions in Colombia is quite difficult? The evaluation must in the end be comparative: Were the IDPs better off after the Court’s intervention than they would have been had the Court done nothing? The other effects Rodriguez-Gavarito identifies suggests that the answer is, “Yes.”

As I indicated at the outset, recent studies of judicial performance in enforcing social and economic rights suggests that the debate over second-generation rights should be reframed, so to speak. Instead of debating whether courts should enforce such rights, scholars might profitably turn their attention to other questions: When courts enforce such rights, how should they do so? Which litigation forms are appropriate and which inappropriate for these projects? What implications, if any, are there for the enforcement of first-generation rights if we conclude that traditional forms of litigation are unsuitable for enforcing second-generation rights? And, of course, is it possible to identify conditions under which the enforcement of second-generation rights is likely to be relatively more or relatively less successful?

Parchment and Obligation

Jan 6, 2012 Louis Michael SeidmanAdd a Comment

Presidents of the United States do not unilaterally extend their term of office, jail all their opponents, or rule by decree. The Supreme Court does not (or at least does not usually) declare its favored candidate to be President. Congress does not abolish the Supreme Court or create an official religion. Why not?

In an important new article, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011), Daryl Levinson reminds us that these familiar facts about our world are deeply perplexing and that the usual explanations for them are manifestly inadequate.

It is not as if the problem is new.  At the founding, many of the framers disparaged “parchment barriers,” which, they thought , would do little or nothing to constrain self-interested government officials. James Madison’s famous solution to the problem was to divide power so as to create conflict between various institutions of government.  This conflict, he thought, would provide built-in protection for minority rights.

As Levinson correctly points out, the Madisonian solution is woefully inadequate. First, there is no reason to suppose that individual actors will be loyal to the institution they find themselves in rather than to their political ends.  A Democratic member of Congress who favors President Obama’s policies might well also favor extensive delegation of congressional power to the President as the best means to put those policies in place.  Second, Madison’s solution works only if the institutional arrangements that produce conflict are themselves stable.  But what, other than parchment barriers, prevents powerful political actors from overturning these arrangements?

Levinson improves on Madison’s solution by bringing modern tools of game theory, political science, and political psychology to bear on the problem.  For example, in circumstances where everyone will benefit from coordinating their activities, it is possible for groups to develop strategies that, over time, prevent selfish defection.  Thus, Democratic presidents leave office when their term ends in part because they fear that if they don’t, Republican Presidents will extend their terms.

Even when these strategies fail, existing political arrangements may be reinforced by a feedback loop.  The arrangements serve to empower groups which, once empowered, use their power to protect those arrangements.  For example, the Constitution’s free speech guarantees led to the creation of vast media enterprises that, in turn, have a vested interest in protecting free speech guarantees.

People also become acculturated to particular political arrangements and make investments that are premised on the continuing existence of those arrangements.  As a constitution ages, these habits and commitments strengthen the bonds linking us to existing institutions and practices.

Levinson convincingly argues that unlovely, self-executing forces like these protect political stability in a way that neither parchment barriers nor mere moral obligation can.  His argument therefore marks an important advance in legal and political theory.  Indeed, for reasons that I describe below, the advance may be more important than Levinson himself realizes.

Where Levinson goes wrong, at least in my judgment, is in claiming that the forces he describes reinforce constitutional commitment. Instead of demonstrating why constitutions work, he has actually shown why they are unnecessary. Constitutionalists regularly claim that without constitutional obligation, our politics would quickly become tyrannical or chaotic or both.  But all the phenomena that Levinson writes about work against tyranny and chaos whether or not there is a constitution.  Indeed, Levinson’s central point is that moral obligation to obey constitutional commands is neither necessary nor sufficient to produce order and liberty.  It is somewhat mysterious, then, why he thinks that his argument explains constitutional commitment.

To be sure, as Levinson argues, written constitutions sometimes serve as useful focal points.  But, as he also points out, older constitutions inevitably become increasingly disconnected from social reality.  An old constitution like ours might actually prevent us from reaching sensible and efficient solutions to our problems. For just this reason, in many cases we have abandoned the Constitution itself as a focal point and substituted, in its stead, judicial decisions, often far removed from constitutional commands, as a basis for political settlement.  The Supreme Court’s decision in Bush v. Gore is only the most dramatic and notorious example of this pervasive phenomenon.

What Levinson has really accomplished, then, is quite revolutionary.  He has shown us why the myth of constitutional obligation should be dispelled.   There is simply no reason to believe that our social and political fabric would unravel if we gave up on the idea that we must obey commands written more than two centuries ago by people who knew nothing of our world.  The sooner we recognize that these people have no solution for our modern problems, the sooner we can get on with the kind of serious and unfettered debate that holds out some hope of solving them.