Category Archives: Uncategorized
Mar 29, 2024 Mark Kende
During the hagiography surrounding the Bicentennial of the U.S. Constitution, Justice Thurgood Marshall dissented. For Marshall, the Constitution could only be celebrated as “a living document.” The original document, and “the government it devised,” was “defective from the start.” Marshall’s words were literally as well as figuratively true, in his view: the document’s flaws began with its preamble and its woefully underinclusive understanding of “We the People.”
Joy Milligan and Bertrall Ross’s recent article, We (Who Are Not) the People: Diversifying Constitutional Interpretation Regarding Fundamental Rights, proceeds from the same premise. “We were never the people,” the article begins arrestingly. Women, minorities, Native Americans, and slaves were irrelevant. The Constitution has procedural and substantive deficiencies, which are “inherent in the document as well as the institutions and rights it creates,” a problem that constitutional theorists and interpreters still have not dealt with sufficiently.
Milligan and Ross contend that the Voting Rights Act of 1965 was the first time that federal voting law truly promoted equality; thus, “No constitutional amendment can be said to have emerged from a functional, inclusive democracy until after 1965.” The article uses this notion to promote the idea that constitutional interpretation now must focus on becoming more egalitarian and democratic.
The article takes unenumerated rights as its focus. The problem here is that the U.S. Supreme Court has been looking back, not forward, by relying on history and tradition as its increasingly central test for constitutionality. The case of Dobbs v. Jackson Women’s Health Organization, nullifying the right to abortion, is a prime example.
This article shows the results of the lack of diversity in the formation—and interpretation—of the Constitution. For example, most constitutional theorists have been white men. But the Reconstruction Congress, and cases like U.S. v. Carolene Products, promoted democracy and egalitarianism. The latter case led to the “representation reinforcement” theory of John Hart Ely in Democracy and Distrust (1980). Despite the Constitution’s long-standing procedural flaws, however, that article focused on process. And Ely’s views were mainly about enumerated equality rights, not unenumerated substantive due process rights.
On the latter front, conservatives in the 1980’s started a successful campaign to overturn Roe v. Wade and eliminate any federal constitutional right to abortion. But the Court’s route to conservative victory on abortion has been more meandering, and its approach to substantive due process more complex or inconsistent. For example, the Court in 2015 supported a right to same sex marriage, rejecting the interpretive method used by the Court to oppose the right to abortion and assisted suicide and relying instead on the dignity-based reasoning of Lawrence v. Texas. There is a methodology conflict.
The authors also point out that the narrow approach of Washington v. Glucksberg and Dobbs are problematic. Those decisions emphasize thin notions of liberty. But as far back as the 1920’s, in Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court employed broader notions of liberty in upholding family rights as against the government.
Milligan and Ross argue that the key question in this area is whether the right is an implicit part of the ordered liberty of the United States. This approach was partly responsible for the Court’s endorsement of a right to use contraceptives, which remains largely undisputed. Moreover, Justice Anthony Kennedy wrote several opinions supporting gay rights. In the end, the authors argue that the tradition and history mode simply defaults to the views of white men, which are not sufficiently diverse to support the nation’s full values. This is the essence of Dobbs, which largely ignored women’s views and interests. And the white men in legislatures did not virtually represent women.
The authors also discuss Edmund Burke, Condorcet, and Dworkin in interesting ways. One of Milligan and Ross’s most important arguments is that a mathematical study based on the views of diverse people reaches a better result than a larger Condorcet approach. The authors show that above all, cognitive diversity makes a positive difference. It guarantees different perspectives. Crowds are wiser when diverse.
Then there is the constant debate over the level of generality in substantive due process cases. The right to abortion could be viewed as a right to privacy. Obergefell v. Hodges also was about a right to marry, not just same sex marriage. One must have a broadened view of history and tradition. The authors support an expanded Ely approach. But given Ely’s adamant opposition to the reasoning in Roe, he may not be an ideal example.
In sum, Milligan and Ross develop and extend Justice Marshall’s “dissent” splendidly. They show that diversity is not just something to prize in the present: its absence from the original Constitution and its formation left deep flaws, structural and procedural, in the document, flaws that are only deepened when we turn to interpret it through the lens of history and tradition. This article demands our attention.
Jan 19, 2024 Lyrissa B. Lidsky
Keith Whittington’s new article, Professorial Speech, The First Amendment, and Legislative Restrictions on Classroom Discussions, is a timely response to the growing body of “anti-woke/anti-Critical Race Theory” legislation and legislative proposals that aim to drive certain types of discussions of race, gender, and other controversial topics out of state university classrooms. The clarity of Whittington’s style makes complex doctrines easy to understand for educated, non-expert readers, and his careful extrapolation from existing First Amendment doctrines and principles fills an important gap in the law. Overall, the article meets the high bar it sets for itself by staking out “a new argument for protecting from legislative interference how faculty at state universities teach their courses.”
The article has five important components. First, Whittington identifies the threat recent legislative proposals pose to academic freedom, especially to freedom in state university classrooms. For readers well-versed in an area of study, the “backdrop” section of an article is usually its least valuable contribution. Here, however, the article’s “backdrop” section makes an important contribution by demonstrating the scope and scale of current legislative efforts to suppress curricular speech in state universities. Whittington is not exaggerating when he calls these new proposals an “unprecedented wave of legislative proposals aimed at curtailing teaching and discussing controversial topics relating to race and gender in state university classrooms.” It is impossible to read this section without being struck by the sheer number of laws proposed and passed to drive certain ideas out of college classrooms. These laws are the product of concerted efforts to “restrict[ ] the topics and perspectives that a professor may discuss or advance while performing his or her instructional duties.” These concerted efforts have already induced universities “to curtail programmatic and instructional activities that might incense state politicians.” And this is just the beginning.
Second, Whittington moves from this backdrop to the lessons of history. Drawing on McCarthy-era history and legal precedents, Whittington shows the genesis of the Supreme Court’s underdeveloped First Amendment academic freedom doctrines. In the McCarthy era, campuses restricted speech by refusing to hire or removing members of “subversive” organizations, and states imposed loyalty oaths as conditions of employment. This historical account serves as a pointed comparison to today’s controversies and a “what-could-go-wrong” klaxon about government targeting of professorial speech.
Third, Whittington provides a good analysis of the existing constitutional dimensions of academic freedom as it stands today. As he rightly points out, the Supreme Court has provided only ill-defined contours for any First Amendment right to “academic freedom.” Most Supreme Court pronouncements on the topic are merely dicta. He does an excellent job of assembling and scrutinizing them to discern foundational principles that might help resolve current academic freedom controversies.
His careful reading of Keyishian v. Board of Regents, which involved professors forced to avow they had never been Communists to work for a state university, provides a principled argument for extending constitutional academic freedom to professorial speech in state university classrooms. Keyishian labeled academic freedom“a special concern of the First Amendment” and emphasized the chilling effect on professors who fear being terminated for speaking on important matters. Justice Brennan recognized that legislative targeting of “subversive” speech outside the classroom risked casting “a pall of orthodoxy over the classroom”; therefore, such laws required drafting with “narrow specificity” in order to satisfy the First Amendment.
These principles should apply equally or even more forcefully to professorial speech within the classroom. Whittington quotes Justice Abe Fortas, who wrote, “It is much too late to argue that the State may impose upon the teachers in its schools any conditions that it chooses, however restrictive they may be of constitutional guarantees.” Although Whittington’s analysis here is convincing about the uncertainty regarding what might be called curricular speech in university classrooms, I expected him to give a nod to the Supreme Court’s Hazelwood v. Kuhlmeier decision. Hazelwood is distinguishable because it deals with the curricular speech of student journalists and their teacher at the high school level. But it deserves to be explicitly discussed and distinguished, since it gave great deference to school administrators in limiting the topics that could be discussed in the high school classrooms—simply because the topics were deemed too controversial. Hazelwood appears to have generated a split in the lower courts as to its applicability to higher ed. The key point, though, is that Hazelwood deserves consideration because anti-CRT laws don’t just target professorial speech; they target the contents of the curriculum within the college classroom. Moreover, the paucity of direct legal authority applicable to professorial speech within the classroom requires reasoning from analogous bodies of cases, as Whittington does in his analysis of government employee speech doctrines and government speech cases.
Fourth, Whittington analyzes the Supreme Court’s “government employee” speech cases—Pickering, Connick, and Garcetti—to discern how one might “extend the principles” of academic freedom cases to cases involving professorial speech within the classroom. In the government employee speech cases, the Supreme Court asks whether a government employee is speaking in her capacity as a citizen on a matter of public concern, in which case her speech receives considerable First Amendment protection, or as an employee, in which case it doesn’t. Of particular note is Garcetti, in which the Court refused to extend First Amendment protection to a prosecutor who was punished for writing an internal memo accusing the police of misconduct. Because the memo was “made pursuant to his duties” and “owe[d] its existence to a public employee’s professional responsibilities,” he was not speaking as a citizen and his speech was deemed “commissioned or created” by the employer. “On its face,” Whittington writes, “Garcetti is debilitating to many academic freedom claims in state universities, but the Court added an important proviso.” That “proviso” turns out to be dicta in a dissenting opinion arguing that the Court can’t possibly mean to apply Garcetti in the university context.
Applying the principles from the Court’s academic freedom cases, Whittington argues that we must distinguish professorial speech in the classroom from other kinds of government employee speech. He does a nice job of making caveats to allow for necessary regulations of professorial speech. He argues that academic classroom speech rights must be qualified by considerations of competence and germaneness. Whittington makes a persuasive case that “[p]rofessorial classroom speech that is neither germane to the class nor professionally competent is deserving of little constitutional protection.”
This section is probably the strongest part of the article. Drawing from legal doctrine and history, Whittington establishes that the anti-CRT bills are the very essence of censorship. I especially appreciated his application of the academic freedom principles he sets out to a set of difficult hypotheticals. There’s room for even more pushback against Garcetti‘s overly simplistic distinction between speech-as-citizen versus speech-as-employee, and I would be interested in his future exploration of the “professional speech regulation cases,” such as Gentile. After all, the key question in academic freedom cases is whether professors may, in the exercise of their professional expertise, choose how to handle classroom discussions on controversial topics. Professor Claudia Haupt’s work on “knowledge communities” emphasizes this aspect of professional speech. I hope also that Whittington will eventually discuss students’ right to receive information, and perhaps the public interest in the discovery of truth, as an aspect of the First Amendment liberty infringed by broad anti-CRT bills.
Anticipating potential counter-arguments, Whittington explores whether professorial speech is government speech, under the Supreme Court’s government speech doctrine. This somewhat ill-defined doctrine posits that the First Amendment does not constrain the government when it “speaks with its own voice.” Government must speak in order to govern, and when it does so, it may participate in the marketplace of ideas just like any other speaker. The government, as speaker, “necessarily must make decisions based on the content and viewpoint of the substantive issues on which it chooses to speak.”
Whittington begins his analysis of whether professorial speech is government speech by throwing public-school teachers to the wolves. He argues that public school curricula, and the use of those curricula by individual classroom teachers, “might readily be understood to be an example of [ ] government speech,” because the government has such a dominant role: it “creates the public school, determines the curriculum, chooses the textbooks, and employs the teachers.” Because the government’s role is so dominant, one could plausibly argue that, “the government necessarily has the right to determine what [teachers] will say.”This concession may—or may not be—pragmatic if one’s goal is to protect professorial speech. Clearly it is easier to justify treating professorial speech as a form of “private” (that is, non- governmental) speech than it is to justify treating the speech of public-school teachers as “private,” given the high degree of control the State currently exercises over curricular speech in public schools. The fact that the doctrine forces this binary choice upon us suggests that perhaps something is amiss with the doctrine. But that’s an article for another day.
Finally, Whittington makes a strong case for treating professorial classroom speech as “private” speech, to use the Court’s odd terminology, which is not subject to government control Within the frame of government speech doctrine, the Court has found the existence of government speech when “the government established the message; maintained control of its content; and controlled its dissemination to the public.” Whittington’s argument for why professorial speech lacks these characteristics hinges on the traditional independence of state universities from legislative dominance.
State universities have instead generally been understood to be peculiar institutions within the state government that operate with a high degree of autonomy from state political leaders. . . . If state university professors were engaged in government speech when in the classroom, then we would expect government officials to comprehensively direct what it is that professors say. Instead, state officials have contented themselves to intervene only to prohibit the discussion of certain ideas in the classroom, which looks far less like using classroom lectures as vehicles for communicating messages from the government and far more like the government censoring ideas that it does not like.
This argument is true but scary. Just because states haven’t previously controlled curricula at state universities doesn’t mean they can’t start. Would this turn previously “private” professorial speech into government speech subject to state control?
That question is what makes Whittington’s elucidation and extrapolation of First Amendment principles governing curricular speech so important. One can only hope courts will take Whittington’s analysis as a guide when asked to safeguard the curricula of state universities from state domination.
Dec 11, 2023 Mae Kuykendall
In African Founders: How Enslaved People Expanded American Ideals, David Hackett Fischer provides a comprehensive survey of African contributions to Americanism at its most aspirational. Fischer gives particulars of knowledge and skills advanced by Africans in the United States and prized by white people in various regional economies. His primary argument, though, is that Africans in bondage, and their descendants, as a result of their unique American experience, formed “a very powerful idea of equity for all, cast in a distinctive moral calculus that rose from the experience of human bondage.” He summarizes: “Africans both slave and free have long reflected on a deep moral paradox in America, between the continuing horror of race slavery and persistence of racial injustice on the one hand, and the hope of expanding ideals of human rights, social Justice, the rule of law, and dreams of liberty and freedom.”
Professor Fischer’s quest to name the African founding of America adopts a deeply empirical commitment that resists white ignorance and can inspire a broad critique of the American jurisprudential and popular attachment to lazy thinking, especially when race is the topic. The book provides a deep refutation of the reasoning process that has produced today’s climate of white resentment of Black visibility (ban on race studies), public role (attacks on prosecutors and judges), and access to all of American life (threats to corporations on hiring and resistance to housing integration).
The long history and importance of African and African-descended persons in the United States, with talents, intelligence, and character that have benefited the United States, provides an answer to the enduring insistence on treating their presence in white spaces as an anomaly-to be removed by violence and Jim Crow, or “color-blind” claims merged with theories of suspect race discrimination. By revealing the Black population’s part in making the nation, African Founders provides a starting point for a curiosity that might deflect willful amnesia and serves as the antithesis to the embrace of ignorance or alarm about Black presence in white spaces.
The setting for such a book, and a needed corrective, is captured by the late philosopher Charles Mills’s work on “white ignorance” in his lifelong work that addressed the epistemology, in a white-dominated academy, of conceptions of liberalism and of race:
White ignorance . . .
It’s a big subject. How much time do you have?
It’s not enough.
Ignorance is usually thought of as a passive obverse to knowledge, the darkness retreating before the spread of Enlightenment.
But . . .
Imagine an ignorance that resists.
Imagine an ignorance that fights back.
Imagine an ignorance militant, aggressive, not to be intimidated,
an ignorance that is active, dynamic, that refuses to go quietly–
not at all confined to the illiterate and uneducated but propagated
at the highest levels of the land, indeed presenting itself unblushingly
as knowledge.
Professor Fischer’s scholarship moves white ignorance away from the long embrace of the white majority’s preference for an uninformed stereotype by “going there”-to the site where ignorance must meet its enemy: the empirical world. Fischer’s book points its reader away from stereotypes and flattening treatment of African ethnic variety arising from African civilization, and toward the distinctively regional experiences of enslaved Africans in the colonies and then the United States. In so doing, he shifts the focus away from a story of victims needing redress and toward an understanding of the rightful presence in formative American spaces of African American talent.
Professor Fischer reports new discoveries of archaeological evidence of relentless cruelty in the destruction of bodies through forced labor. At the same time, he leavens that disheartening revelation of the American past by depicting what enslaved persons were able to contribute to the American “founding.” Though he does not address contemporary differences over “inclusion,” he provides an important, fog-clearing description of connections that have been enriching to America at large, and hence relevant to race jurisprudence and a shared culture today. Creativity within associations of enslaved persons nurtured collective work away from the “masters” and fashioned cultural connections that made for a more open, free, and creative America. Discussing the Hudson Valley and New York City, Fischer writes: “The rhythms of urban life allowed slaves to meet others in complex webs of voluntary association, defined by African ethnicity, place of origin, occupation, gender, and more.” These associations among Africans radiated into the whole culture, with the effect of transforming “multiple Afro-European cultures into a pluralist society.”
W.E.B. DuBois wrote that the construction of the racial category of “white” was used to exclude others at various points in history. It brought about, he said, a great emotional discovery of color as a difference in which “white, by that token, was wonderful.” More recently, Ibram X. Kendi argues that “powerful and brilliant men and women have produced racist ideas in order to justify the racist policies of their era…” The idea that “race,” though a creation used to subjugate, has become something so real that it must be declared to be not real, while at the same time arguing it is so real that it is uniquely dangerous, is a new move in the maintenance of white-centered justification of ideals and policies. An example of this move is the campaign that has arisen in the wake of Students for Fair Admissions v. Harvard College. The targets are corporations, private funds aimed at giving start up seed money to Black women, 150 colleges, and surely more to come. It is only fair to describe the campaign, in the words of Charles Mills, as “militant, aggressive, not to be intimidated,” “refusing to go quietly.” Not coincidentally, SFFA converges with the “militant, aggressive” Florida laws requiring an erasure in Florida public schools of the Black experience in America, if presenting that history makes white students “uncomfortable.”
The emotions embedded in the currently dominant judicial imagination about the American experiment produced the startling description in SFFA by the Chief Justice of the United States of university admissions as “a zero-sum game.”
At best, the phrase seems to lend a patina of economic reasoning to a claim arising from a quantifiable basis in human psychology rather than empirical evidence of the real world. But a recent survey on zero sum thinking suggests that “high-status groups (white people and men) are more likely to espouse” zero sum beliefs. In adopting this term, Roberts is positioning the court with those concerned with loss of white privilege, not those concerned with individual fairness. More significantly, the “zero sum” phrase negates higher education’s long-held cultural value: the admissions process is meant to build a learning community that reflects a talented demographic with historic injuries and historic strengths valuable to the academy.
Fischer’s account of the shared benefit to American society provided by members of the whole American community, emphatically including Black enslaved persons and African American citizens, casts doubt on that description. The tale of interpersonal connections across historic American legacies told by Fischer speaks more of collectivism than individualism. Yet Roberts’s meaning is hard to read as anything but an emotional embrace of individualism-more for me and less for you.
The story of the continuing impact on the Black American population of enslavement and Jim Crow is a proper and morally weighty basis for race conscious programs addressing a historical burden for which remedy is due and compelling. Fischer’s book helps to point from a historic injustice meriting a benefit to the Black minority, and authorized constitutionally, to the gain shared by the whole culture of working to add a Black presence to our elite educational institutions and other spaces.
Fischer is a white scholar who embarks upon the project of knowing. He wants to know, and for readers to know, who the people are who were brought here against their will and whose descendants have wound up subsumed into one undifferentiated category. In white fantasy they have been called “slaves”-and eventually, in the mouth of a member of the Supreme Court, “the blacks.” Yet those subject to the flattening one-dimensional depiction of their shared “race,” and allegedly simultaneous colorlessness in a “color-blind” legal world, are individuals whose ancestral story, talent, and shared yet varied experiences support reasons for universities to seek their contributions to an environment dedicated to advancing knowledge and culture. Narrow, self-referential attachment to a “game” of individual winners and losers betrays our “African founders'” legacy.
Nov 13, 2023 Leah Litman
Jessica A. Clarke,
Sex Discrimination Formalism, __
Va. L. Rev. __ (forthcoming 2023), available on
SSRN (Aug. 13, 2023).
What is sex discrimination? Or, more generally, what is discrimination?
This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.
In her timely new article, Sex Discrimination Formalism, Professor Jessica Clarke smartly unpacks the category of “formal equality” and shows that, at different points, it encompasses a family of different theories that sometimes travel together, but not always. Clarke argues that courts applying “formal” approaches to equality are sometimes using “but for” causation, asking whether some protected trait or characteristic is the but-for cause of differential treatment. But courts adopting a “formal” approach to equality sometimes use “anti-classification” theories of equality, asking if a protected trait or characteristic has been used to categorize or sort individuals. Finally, courts might use a “similarly situated” test that examines whether someone has been treated differently than someone who is “similarly situated” to them (but who does not have a particular trait or characteristic).
Clarke points out that Bostock v. Clayton County blended all of these different approaches as it engaged in a formal approach to Title VII. (In Bostock, the Court held that Title VII’s prohibition on discrimination because of sex entailed discrimination on the basis of sexual orientation and gender identity.) That is, Bostock could plausibly maintain that all of the three theories pointed toward the same conclusion. But there are times when the different approaches might yield different results. For pregnancy discrimination, some courts have concluded that sex is a but-for cause of the discrimination. But courts applying a “similarly situated” or “anti-classification” test have rejected arguments that pregnancy discrimination is a kind of sex discrimination.
These differences are not just academic. They help clarify some of what is happening in recent decisions concerning bans on gender-affirming care for individuals—an issue the Supreme Court has been asked to decide. Initially, courts were quick to recognize how “formal” approaches to equality, including the approach embodied in Bostock, would categorize bans on gender-affirming care as a species of sex discrimination. Sex is a but-for cause of the discrimination in those cases in the sense that an individual’s sex assigned at birth contributes to how an individual is treated. That also means the law classifies individuals on the basis of sex, because in order to determine whether an individual may receive certain treatments, someone would need to categorize them on the basis of sex assigned at birth.
But two courts of appeals have recently rejected claims that bans on gender-affirming care constitute sex discrimination. Yet both courts purported to adopt formal theories of equality. Clarke’s article is illuminating on how that might have happened, if courts were selectively toggling back and forth between different genres of formal equality. (Though Bostock pretty clearly suggests the different sub-categories of formal equality would treat bans on gender-affirming care as sex-based discrimination.)
Clarke’s article illuminates courts’ sometimes seemingly mercurial approaches toward formal equality as they assess claims of discrimination. It highlights (yet) another way that courts and lawyers maintain some room to maneuver, and toggle back and forth between different sub-categories of formal equality even when they purport to be just adopting and applying formal equality. It also explains how selecting a sub-category of formal equality can sometimes dictate an outcome in a case. This calls to mind the word of Cary Franklin analyzing another formalist theory (textualism), and describing how that theory has “shadow decision points.”
Clarke avoids the temptation to select one sub-category of formal equality as the “right,” hegemonic conception of formal equality. Instead, she reasonably encourages courts and litigants to consider how different theories operate in the real world, not in some normative vacuum. Yet she recognizes the reasons why courts have, to date, opted for more formal rules when assessing equality claims instead of engaging with sociological factors and substantive values that might counsel in favor of one approach to formal equality rather than another. Perhaps her article will provide them with some tools to dip their toes into those waters going forward.
Cite as: Leah Litman,
Toggle Boggle, JOTWELL
(November 13, 2023) (reviewing Jessica A. Clarke,
Sex Discrimination Formalism, __
Va. L. Rev. __ (forthcoming 2023), available on SSRN (Aug. 13, 2023)),
https://conlaw.jotwell.com/toggle-boggle/.
Oct 16, 2023 Helen Norton
When (if ever) should we decline to apply longstanding First Amendment doctrine to technologies and practices unknown to, and unknowable by, the 20th-century Court that developed that doctrine? This question requires us to consider whether and when 21st-century expressive technologies are distinguishable from—or instead analogous to—older forms of expression in meaningful ways. As Genevieve Lakier observed in a related context, “analogies will prove useful only to the extent they are used thoughtfully, to illuminate the similarities and dissimilarities that matter for the purposes of the law.”
As courts and legislatures engage with such analogical questions with growing intensity, their high stakes become increasingly clear. Examples include the debate—now before the Supreme Court—as to whether social media platforms’ content moderation practices are (or are not) similar to the curatorial discretion exercised by newspaper editors, such that they do (or don’t) deserve the same First Amendment protections. So too are courts and policymakers now struggling with whether the products of artificial intelligence (including, but not limited to, chatGPT) are similar to or meaningfully different from human expression for First Amendment purposes (consider, for example, here, here, and here).
In Beyond the Public Square: Imagining Digital Democracy, Mary Anne Franks challenges efforts to analogize social media to the traditional public square as exemplified by the Athenian agora or New York’s Times Square. In so doing, she demonstrates the value of analytical rigor when evaluating analogies between speech environments old and new.
As a stepping-off point, Franks recalls the Supreme Court’s 2017 decision in Packingham v. North Carolina. There the Court described social media as “the modern public square,” emphasizing that social media serve as “the principal sources for knowing current events” and “otherwise exploring the vast realms of human thought and knowledge.” Franks disputes this analogy as both misleading and misguided.
Franks first argues that this analogical claim is descriptively inaccurate. The public square as contemplated by the Court is a physical space that is open to the public and managed (if not owned) by the government. In contrast, social media platforms create speech environments that are virtual, operated for profit, and privately owned and controlled. Franks shows how these variations make for very different speech environments, each with distinct advantages and limitations.
Consider, for instance, how physical spaces—unlike virtual spaces—sometimes require us to encounter views we might otherwise avoid. As the Court itself observed in McCullen v. Coakley (just a few years before Packingham):
Even today, [public streets and sidewalks] remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There a listener often encounters speech he might otherwise tune out.
In this way, the public square’s physicality creates expressive opportunities unavailable in virtual spaces.
To be sure, the converse is also sometimes true. As Franks recognizes, online (and often asynchronous) speech environments free participants from the restraints of physical space and time and thus enable them to communicate quickly and inexpensively. This means more speakers engaged in dialogue and contributing to the marketplace of ideas, with more ideas and information available to listeners. At the same time, however, social media platforms—and the cheap, speedy, and abundant speech they make possible—also create unprecedented opportunities for speakers to threaten, deceive, manipulate, troll, and otherwise undermine meaningful public discourse.
Consider next the different speech environments facilitated by spaces that are managed by the government as opposed to those instead controlled by private actors. Government actors, of course, are constrained by the First Amendment when they regulate speech in the spaces they control, including certain public squares. Social media platforms, like other private actors, are not. Instead, they have First Amendment rights of their own. That the platforms themselves are free from constitutional constraint means they are free to moderate the speech environments they create and control—ideally to improve democratic discourse—even though they’re not constitutionally required to do so.
Indeed, private actors’ ability to moderate content can improve the speech environment, even as we can and will disagree about when and how they should go about doing so. Franks thus asserts that “protecting free speech in a private forum requires the exact opposite of what it takes to protect free speech in a public forum: private actors must be allowed to exercise their free-speech rights to counter, ignore, or exclude speech as they see fit, even when state actors would be restrained from doing so.”
Finally, think of the difference between speech environments that are—and are not—operated for profit. As Franks observes, “while social-media forums may feel like public spaces, and the companies that own them might exploit this perception to their advantage, their relationship to the public is fundamentally commercial and contractual.” Social media platforms’ primary objective is often to do whatever it takes to keep users online for as long as possible to spend more money and shed more data—see, for example, here, here, and here.
For all these reasons, Franks counsels us to resist the descriptive claim that social media platforms are simply an updated version of the public square. The two are instead meaningfully different—each with their own distinct advantages and limitations—in ways that matter to their ability to facilitate, or instead frustrate, public discourse.
Franks next challenges the normative claim that the public square (at least as imagined by the Court) is something we should want to replicate without qualification. To be sure, many of the most iconic moments in our nation’s history involve speech in this space. Think, as just one example, of the 1963 March on Washington for Jobs and Freedom and its culmination at the Lincoln Memorial. Like most histories, however, the history of the public square is complicated, and Franks reminds us of those complexities. As she recounts, this public square has too often excluded the less powerful—like women long relegated to the private sphere of home and family, like the unhoused and unemployed often removed from that square, like Black people denied entrance to that square by slavery, segregation, and more. For this reason, Franks writes: “[T]he public square, like all public spaces, has never been unregulated. It has always been selectively regulated, and in ways that tend to benefit more powerful members of society at the expense of less powerful members.”
Indeed, Tabatha Abu El-Haj has shown how some of these regulatory dynamics have worsened with time. During the 18th and 19th centuries, she explains, “[p]olitical assemblages were considered ordinary uses of public places and one was not required to obtain permission from local authorities prior to engaging in street politics. Legal regulation was limited to responding to breaches of the peace.” In contrast, El-Haj writes, “today the state typically regulates all public assemblies, including those that are both peaceful and not inconvenient, before they occur, through permit requirements.”
So Franks questions First Amendment rhetoric’s largely celebratory history of the public square, observing instead that these spaces have not been equally open (much less welcoming) to all. Given these complexities, Franks closes by imagining where else we might identify, cultivate, and celebrate spaces that contribute to healthy democratic dialogue. She urges that we “craft[] law and policy to ensure that no single host or forum, or even single medium, dominates the shaping of public opinion,” with at least some of these spaces “designed for reflection instead of performativity; accessibility instead of exclusion; and intellectual curiosity, humility, and empathy.”
In so doing, Franks aspires to replicate the curb-cut effect, where design choices intended to accommodate members of vulnerable groups turn out to benefit everyone. Just as those without mobility impairments—like parents with strollers, travelers with luggage, shoppers with carts, and runners with aching knees—prefer the curb cuts initially intended to support wheelchair users, so too does she hope that speech environments designed to accommodate those previously excluded will be more attractive to all. As an example, she suggests MetaFilter, a blog that permits anyone to view the site’s content but requires users to register and pay a one-time five-dollar fee before posting content, with mandatory waiting periods between posts. In this way, MetaFilter designs a space to encourage expressive reflection rather than impulsiveness. As Julie Cohen noted in a related context, we need not “privilege design for automaticity and reflexive amplification.”
First Amendment law and rhetoric have long celebrated the public square as the physical embodiment of the marketplace of ideas. And in recent years, the Court has described social media in similar terms. But are the public square and social media really so parallel, much less laudatory? Franks asks us to consider these questions anew, and urges us to design and support a variety of other spaces—physical and otherwise—where democratic dialogue can thrive.
Sep 12, 2023 Pat Gudridge
In their issue this past May, the editors of the Harvard Law Review included a very useful, very provocative student note entitled “Romer Has It.” This brief essay, never overbearing, positions its readers to think hard again and again, to challenge, to consider alternative paths. The Note is not an AI thinking machine taking over work at hand. It is akin instead to spiritual exercising, to a series of sometimes startling declaratory prods. Ignatius Loyola “pumps you up!”
I react illustratively here.
Romer v. Evans was a 1996 Supreme Court decision announcing that a Colorado constitutional amendment violated the Fourteenth Amendment Equal Protection Clause. A popular initiative, the revision decreed that the state’s law could not incorporate civil or criminal remedies–-seemingly a very wide range-–responding to adverse conduct keyed to sexual orientation. Ten years earlier the Court had decided in Bowers v. Hardwick that federal notions of due process did not prohibit state laws criminalizing acts of “homosexual sodomy.” These acts were not constitutional concerns, Justice White wrote. Seven years after Romer, Lawrence v. Texas overruled Bowers, now depicting “homosexual sodomy” as a matter of personal privacy and constitutional liberty that Fourteenth Amendment due process norms indeed acknowledged. Subsequent decisions in federal and state courts led to Obergefell v. Hodges, Supreme Court recognition of same-sex marriages as due process-protected too. Lawrence and Obergefell looked like landmarks. Famously, Justice Kennedy wrote the Court’s majority opinions in Romer, Lawrence, and Obergefell. Justice Scalia dissented, famously too.
Dobbs v. Jackson Women’s Health Organization arrived on scene in 2022. The Harvard editors do not contest Justice Alito’s assertion that his majority opinion addresses due process only in connection with the matter at hand-–“right to life” and “right to choose” abortion questions. But there is still real reason to be concerned, they worry, given the general wording of the opinion’s insistence that due process scrutiny ordinarily does not reach state regulations of intimate decisions of individuals. They underscore the recent sharp surge in state legislation constraining individuals and institutions seeking to address health and educational troubles associated with facts of same sex life. “Don’t say gay!” “Ignore transsexuals!” If there are no ready due process norms, what constitutional resources are left for concerned lawyers and judges?
The answer, perhaps: Re-remember Romer?
In Romer, Justice Kennedy pushed Bowers off to the side. Instead of considering “due process of law,” he brought to bear its Fourteenth Amendment companion phrase “equal protection of the laws.” Why not enlist equal protection analysis again, the Note argues, this time to relocate Dobbs. We might treat it instead as plainly not within the vicinity of sexual orientation cases. To work this trick, we need a useful substitute calculus. The Note judges Kennedy’s own Romer majority opinion to be mostly not “it”-–incantation instead. One telling early critic declared that the opinion was apparently “missing six pages.” The Harvard editors also report that there are only a few, very brief references to Romer in opinions of now-sitting Justices. No problem! Undertaking an impressively intricate choreography of close readings, the Note extracts potentially apropos language. “[T]hree recurrent considerations” emerge, arguably probative in judging whether to treat “an anti-LGBTQ law as presumptively irrational under the Equal Protection Clause.” “Intermediate scrutiny” of a sort comes to mind, reminiscent of late twentieth century “rational basis with bite” protocols and the like.
This is the gist of the proposed inquiry (the subpart markers are my doing):
(1) Does the law implicate a classification based on (a) a group’s identity or (b) conduct? (2) If so, is that group (c) an unpopular one that (d) lacks functional access to the political process? (3) Was the law (e) explicitly or implicitly motivated by animus, or (f) an attempt to classify for classification’s sake? (Romer Has It, May 2023)
Romer becomes a six-part three-part test. Interesting questions abound.
Are we considering alternatives or conjunctions–“identify” or “conduct,” for example, or “identity” and “conduct”? How “unpopular”? At what point does obstructed political access become “[dys]functional”? Must a problematic law be entirely or mainly “motivated by animus,” or is it enough that “animus” is one of several prompts? What counts as “classify[ing] for classification’s sake”? There’s a lot to think about. All three of the main inquiries, however separated or overlapped, inhabit a common commitment. Romer “stands for the proposition that ‘governmental objectives steeped in animus’ can never be legitimate.” “’[L]aws that discriminate against gays will always be constitutionally doubtful … because they always arouse suspicion that they rest on a bare desire to harm a politically unpopular group.’”
Maybe our politics viewed constitutionally is in important part an accumulation of connotative figurations, ways of viewing clashing stances and attitudes. Justice Scalia, dissenting in Romer, might have thought so: German “kulturkampf” was business as usual in America, he insisted. Chief Justice Rehnquist’s opinion in the Falwell case? Robert Post? Missing in the Romer Note, William Eskridge took on Justice Scalia’s dissent directly in another metaphorically aware framing, across an important series of writings ultimately building up an alternative political sociology. (E.g., Eskridge, A Jurisprudence of “Coming Out”, 106 Yale L.J. 2411 (1997)). Are a few recent Supreme Court phrases, however carefully assembled, staging enough to frame judicial theater? Too weak tea? If we want ostensibly agnostic muddle, shouldn’t we want Dobbs? Or is the right question how–how intermediate scrutiny somehow points past Dobbs, manages oppositions less haphazardly, more emphatically? Isn’t that precisely the goal of intermediate scrutiny?
There are alternatives, we know.
For example, we might want to read closely federal district court judge James Moody’s opinion in Brandt v. Rutledge, released in late June this year (after the Harvard Note), declaring unconstitutional an Arkansas law barring physicians from providing or referring gender transition procedures if patients are under the age of eighteen. Extended, carefully written findings of fact figure powerfully. Looking at both anecdotal and structural accounts, Moody assembled unrebutted evidence of medical competencies, difficulties highly likely abated by successful gender management, piercing sufferings of children and parents prompted given interruption of treatment. All were relevant facts, Moody stressed. A quite terse summary of constitutional conclusions followed consistent with the thrust of the facts declared. Compelling facts appeared to resolve choice of law. Plainly not intermediate scrutiny.
In Romer, an unusual amicus curiae brief marked a surprising path.
Counsel of record Laurence Tribe wrote the brief. He was the author of American Constitutional Law, a full-barrel treatise, the first so acclaimed since Cooley’s a century earlier. Tribe represented Michael Hardwick in Bowers. Four other prominent academics joined as amici. Philip Kurland was a fierce Warren Court critic. Gerald Gunther specified first parameters of the equal protection “middle tier.” John Ely wrote Democracy and Distrust, succinctly outlining a principal constitutional architecture. Kathleen Sullivan emerged later, an expert navigator of the contested middle ground, a salvager of seemingly intractable crack-ups.
Surprisingly, the amicus brief ignored the Supreme Court opinions, doctrinal schemas and skirmishes largely preoccupying constitutional jurisprudence at the time. One phrase in the second sentence of the first section of the Fourteenth Amendment sufficed:
“No state shall … deny to any person within its jurisdiction the equal protection of the laws.” …
May a state set some persons apart by declaring that a personal characteristic that they share may not be made the basis for any protection pursuant to the state’s laws from any instance of discrimination, however invidious and unwarranted? [¶] The answer to that question must be no. … [¶] No extrapolation from precedents dealing with racial or other minorities, or from precedents dealing with rights of political or legal participation is needed …. [F]acial unconstitutionality flows directly from the plain meaning of the Fourteenth Amendment’s text. … Inserting a ban … in a state constitution entails not just a repeal of, or failure to enact or to enforce, laws protecting some citizens from discrimination, but rather puts the matter (and, in a sense, the group) beyond the reach of the state’s system for making or enforcing laws.” (Brief for Laurence H. Tribe, John Hart Ely, Gerald Gunther, Philip B. Kurland, and Kathleen M. Sullivan, as Amici Curiae in Support of Respondent, Romer v. Evans, U.S, (No. 94-1039), 1995 WL 17008432, at Pp. 3, 4, 7.)
The Constitution is clear.
Justice Kennedy seized the point-–elaborating, buttressing, ramifying:
Amendment 2 confounds th[e] normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. (Romer at P. 633.)
[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. … (Romer at Pp. 634-35.). The breadth of the amendment is so far removed from the particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. … A State cannot … deem a class of persons a stranger to its laws. (Romer at P. 635, emphasis added.)
The result is clear.
What are we to make of clarity?
Judge Moody’s powerful opinion in Brandt succeeds, if it does, because the facts of the case, as alleged by plaintiff attorneys, manifestly not well-challenged by defense counsel, put the trial judge in position to reach and write a clear, carefully detailed conclusion. Adverse medical consequences following from legislative restrictions are made to show precisely, both in general and in tragic individual cases. The manifest force of Moody’s narrative also organizes his legal analysis-–its confidently brief confirming summary of the law at hand. This decisive two-step notably follows a familiar form–a working stricture first dramatically pressed in the Field Code in 1848. Professor Pomeroy characterized this new normalcy:
[T]he existence of a legal right in an abstract form is never alleged…; but, instead …the facts from which that right arises are set forth, and the right is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff’s primary right and the defendant’s corresponding primary duty have arisen…. (John Norton Pomeroy, Remedies and Remedial Rights According to the Reformed American Procedure 487-88 (1876).)
Clarity–-its realization-–is the locomotive’s engine. In 2023, a century and a half later, Judge Moody’s opinion is exemplary. “Ancestral recall”?
In Romer? Professor Tribe’s phalanx and Justice Kennedy’s majority insist that Equal Protection Clause language is itself clear. The amicus brief and the majority opinion plainly look closely at the Colorado amendment, determining that it is something like the legal equivalent of a mob scene–-“mobscene,” not law in truth therefore, not law’s “equal protection.” No extensive history reports appear in detail. The constitutional terms enforced ultimately figure outside time. We are made aware of something like an artifact–-a memorial, a monument, a set realization. Whatever is of moment in 1866 or 1868 is of moment in 1996 and 2023. A fitting response to enormities–to conjunctions too many or too complicated to disentangle, to convert to analyzable parts? This is pretty much the idea Professor Tribe and Justice Kennedy convey. The amicus brief and the majority opinion countered the all-aggregating Colorado enactment by putting the Fourteenth Amendment Equal Protection Clause in opposition, presenting it as itself clearly encompassing, as itself a normative entirety.
“Equal protection of the laws” needs to appear to be a redounding expression, an emblematic sequencing. Provocatively, Justice Kennedy begins his opinion with an affiliating gesture, quoting Justice Harlan dissenting in Plessy v. Ferguson. Near the end he similarly quotes Justice Bradley warning in the Civil Rights Cases. Both passages start from hostilities tied to “race,” reframed to encompass hostilities tied to “classes.” Apt circumstances of concern call to mind threatening entanglings of a type already at hand-–encountered, countered, variously re-encountered, re-countered. Isn’t this the thematic precisely “shining through” the idea of “the equal protection of the laws”? What “is” is at once sometimes what “was”. Hugo Black’s careen emblematic? Chambers v. Florida and the Ku Klux Klan?
Maybe we should read Romer-–all three of its principal analyses (Scalia’s opinion too)-–as tensely “basic”? “The way we live now”?
