Category Archives: Uncategorized
Jun 27, 2022 Leonid Sirota
Alex Schwartz,
The Changing Concepts of the Constitution, _
Oxf. J. Leg. Stud. _(forthcoming 2022), available at
SSRN.
American readers, especially those of a textualist or originalist persuasion, will likely be familiar with the idea of corpus linguistics. As one well-known article promoting its use explains, it involves searching “for patterns in meaning and usage in large databases of actual written language” in order to clarify the meaning of legal texts that would otherwise be ambiguous or vague. But can techniques involving computer analysis of text help us understand unwritten rules―say, the United Kingdom’s constitution?
In his article, The Changing Concepts of the Constitution, Alex Schwartz sets out to do just that. Using big-data wizardry, Schwartz explores the way in which members of the UK Parliament speak about the constitution and about constitutional concepts such as parliamentary sovereignty, human rights, and the rule of law, and discerns changes in their use over time. The exercise is enlightening both to those studying the UK constitution itself and also, I submit, to those who are interested in the project of understanding constitutions, in all their diversity.
The UK constitution, one wit has said, “is no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also.” This is often paraphrased as “the constitution is just what happens.” But that is not quite right. Although legally free from binding constraint, the UK Parliament is nonetheless enmeshed in a web of ideas and understandings, some admittedly vague, about what the constitution allows and what it requires. These ideas and understandings can always be contested, and they change over time, partly in consequence of such contestation and partly, indeed, in consequence of “what happens.”
And a lot has happened in the last few decades: the UK’s marriage of convenience to and tumultuous divorce from the European Union; the consummation of a love-hate relationship with the European Convention on Human Rights, which begot the Human Rights Act 1998―which is now in strong danger of being disowned; Scotland and Wales becoming more autonomous with devolution, and in Scotland’s case, trying to decide whether to move out entirely. It seems plausible, and a number of scholars have argued, that these events and the debates surrounding them have changed the old understandings of the UK constitution, making it more legal and less political, more focused on rights and less on traditional notions of parliamentary sovereignty. Vernon Bogdanor, for one, has argued that the constitution has changed beyond all recognition.
Schwartz tests these claims by examining parliamentary debates about constitutional issues. American readers, mindful of the shape of political debate in recent years, may wince at the suggestion that this has anything to do with actual thinking about the constitution. Yet since Parliament has and frequently exercises the power to change the UK’s constitution, what is said there matters. As Schwartz puts it, “Changes in how political elites speak about the relevant concepts may have practical implications for how the boundaries of constitutional propriety are understood and enforced.”
But it is Schwartz’s method that makes his work especially interesting, both for its own sake and for the kind of results it enables him to get. The method is called “word embedding” and it produces a calculation of the degree to which various concepts are associated with that of the constitution itself, what he calls their “constitutional resonance.” More specifically, the more two words or phrases appear in similar contexts, the more closely connected they must be. If a word or phrase tends to be used in a similar context to “constitution,” the concept to which it refers must be closely related to that of the constitution in the minds of the speakers.
Such an analysis only becomes truly meaningful if applied to sufficiently large bodies of text. In this way, “the estimated change in constitutional resonance will reflect a change in the typical discourse surrounding that concept,” and not be influenced by what was said on a single occasion or even by the frequency with which a concept is debated. This is where big data techniques help. Schwartz was able to analyze the entirety of the parliamentary debates since Margaret Thatcher’s government took office in 1979 and identify all those in which reference was made to a range of constitutional concepts. The resulting corpus contained just over 200 million words, equivalent to roughly 750 Ulysses-length novels.
Separating it into sub-corpora according to time periods, one can also observe the changes, if any, in the constitutional resonance of the relevant concepts. As Schwartz explains, these changes are significant because “[a]s a concept acquires greater constitutional resonance—that is, as its meaning becomes more bound up with the meaning of the constitution—we would expect it to play a weightier role in contesting or determining prevailing notions of constitutional propriety,” and vice versa. The magnitude of these changes taken together also makes it possible to pass a judgment on claims, such as Bogdanor’s, about the UK constitution’s sub silentio amendment or even replacement.
Schwartz’s findings suggest no such dramatic change. While the resonance of “unwritten constitution” has steadily declined over the decades, it easily remains the most constitutionally resonant concept of all those he examines. The decline, to be sure, seems logical in light of constitutional changes such as the enactment of the Human Rights Act and of the (now-repealed) Fixed-term Parliaments Act 2011, as well as devolution. Logically too, “devolution” rose in constitutional resonance with the reforms of the New Labour government, but its rise has slowed considerably since then. Meanwhile, the constitutional resonance of “parliamentary sovereignty” declined―but it remains high, and the decline seems to have been arrested since 2015.
Other shifts in constitutional resonance that one might have expected seem not to have occurred at all. Notably, both “separation of powers” and “the rule of law” became less, not more, constitutionally resonant in the early 2010s, although they may have since recovered much of the lost ground. Surprisingly, too, “human rights” did not become more constitutionally resonant following the enactment of the Human Rights Act, although this may now be starting to change―perhaps, Dr Schwartz (plausibly) suggests, in response to repeated proposals for the Act’s repeal and/or replacement. In short, the way in which members of the UK Parliament speak about the constitution and related concepts has changed rather less than one might imagine since 1979.
What are we to make of this potentially surprising finding? One thing to note, as Schwartz does, is that members of Parliament are not the only people who speak about the constitution. Judges and legal academics do too, of course, and their constitutional discourse may diverge from that of members of Parliament, given the different institutional settings in which it occurs. Schwartz does not mention this, but one might also usefully take an interest in the discourse of journalists, and indeed―if perhaps with more practical difficulties―that of the general public. In the absence of a legally binding constitutional text authoritatively interpreted by the one institution (or, for that matter, even in its presence, albeit to a lesser extent), these discourses are all important in their own way. Nonetheless, as noted above, the parliamentary view of the constitution matters a great deal, and to the extent that it comes as a surprise to others who study and discuss the UK constitution, they may need to ask themselves why that is the case.
Beyond this, there are lessons to be learned for all those who take an interest in constitutions, and perhaps especially in comparing “written” and “unwritten” constitutions. Schwartz’s findings support the view that “unwritten” constitutions, despite their superficial flexibility, can remain quite stable, at least so far as their fundamental structure is concerned. (I have elsewhere made this case in reference to New Zealand.) At the same time, one must keep in mind that the stability of background constitutional understandings is compatible not only with significant constitutional reform, which has occurred during the period studied by Dr Schwartz, but also with what has been described—rightly, in my view, as “constitutional vandalism,” such as Prime Minister Boris Johnson’s unsuccessful effort to suspend Parliament in 2019. To be sure, polities with “written” constitutions are not immune to “switches in time” either. But it may well be the case that the temptation to accept that “everything that happens is constitutional” is stronger in those with unwritten ones―and at the same more difficult to guard against.
Jun 1, 2022 Lyrissa B. Lidsky
In the past few years, a number of prominent voices—including then-candidate Donald Trump, Justice Clarence Thomas, Justice Neil Gorsuch, federal appeals court judge Lawrence Silberman, top Democratic election lawyer Marc Elias, and others—have called for the Supreme Court to reconsider its constitutionalization of defamation law that began with New York Times v. Sullivan. At first these voices seemed quixotic. But there is a growing debate among legal analysts about whether the constitutional parameters of defamation should be altered to strike a better balance between society’s interests in protecting individual reputation, safeguarding freedom of expression, and anchoring our public discourse in truth. Christina Tilley’s new article, (Re)Categorizing Defamation, enters this debate firmly on the side of tilting the playing field back toward plaintiffs, in the expectation that doing so will also help restore media credibility and provide United States citizens with the factual information we need to engage in democratic self-governance.
Although she expresses her prescription somewhat tentatively as merely a call for “reconsideration” of existing law, Tilley urges that defamation law should abandon fault-based liability in favor of a default regime of strict liability. Her rationales for this revolutionary call to return to the defamation law regime that existed prior to 1964 hinge crucially on her accounts of the role of agency in tort law, and the diminished level of “control” mainstream media have (or choose to exert) over their news product today. As she writes, “As publishers have ceded control over content production to in-house bot journalists and independent, amateur reporters, and have ceded control over content publication to platform algorithms, they no longer exercise the kind of control that justifies the use of a fault-based liability standard.” (P. 516.)
Whether one is persuaded that her solution is the correct one depends on whether one accepts her account of tort theory and doctrinal evolution and her evaluation of the weight that should be given to a limited set of mainstream media practices. It depends, too, on whether there are other considerations, such as the inevitability of journalistic error and the threats posed by defamation suits against non-media defendants, that should be brought to bear. But even if one does not accept that her solution is the best answer to the problem, her provocative discussion is well worth reading. I learned things about defamation law from Professor Tilley that I didn’t know despite studying it for 28 years.
The first contribution Tilley makes is to situate her analysis squarely within tort law. As she asserts, ever since the Supreme Court began constitutionalizing the tort of defamation, which encompasses the twin torts of libel and slander, in 1964, many scholars have preferred to examine defamation law through a First Amendment lens rather than a torts lens, and the Supreme Court’s continued intervention from 1964 until roughly the early 1990s stymied common-law developments. My own first “tenure article” in the mid-1990s, which was greatly influenced by the work of scholars Robert Post and David Anderson, also dealt with the relative neglect of tort law in defamation scholarship. I thus find it very encouraging to see a new scholar join us on this insufficiently trodden path—or at least insufficiently trodden in recent years.
Tilley undertakes to explain the anomalous status of the tort of defamation as a strict liability tort until 1964. This, in itself, is a noteworthy undertaking. In their seminal treatise on tort law, scholars Paige Keeton and William Prosser wrote: “Libel and slander have always been anomalies in the law of torts.” Professor Tilley adds to the standard explanations primarily by examining the history and evolving nature of the news publishing industry and drawing a parallel to the general evolution of tort law.
According to standard but contested accounts of the history of tort law, courts moved away from strict liability in the mid-nineteenth century, and fault-based liability became the “default basis for liability in a culture that was changing to value action and innovation rather than passivity and obedience.” (P. 444.) Yet courts continued to apply strict liability in libel and slander cases, pushing the tort of defamation farther outside the mainstream and leaving it alongside strict liability for ultrahazardous (or abnormally dangerous) activities and the keeping of wild animals.
Why did defamation law persist as a strict-liability tort even after tort law shifted toward fault-based liability? To answer this question and justify the approach, Tilley develops an extended analogy between news publication and engaging in abnormally dangerous activities. She centers the rationale for strict liability around the “wrongfulness . . . aris[ing] from a conscious, self-interested forfeiture of human agency.” (P. 446.) The strict liability torts “all involve a choice by the defendant to recruit for his own purposes an instrumentality, substance, or process that is volatile and not responsive to human control.” (P. 446.) The instrumentality, in defamation cases, is words, which are an “ultrahazard” by virtue of the fact that they may escape from the bounded meaning intended by their author and thus do injury when received and interpreted by a reader or listener.
Tilley argues that the degree of agency—that is, control over the content and dissemination of information—the news industry exercises has varied over its history. More specifically, she writes that “the degree of human agency operating to produce words for mass dissemination was at its lowest point in the early years of the Republic, reached a zenith fifty years ago, and has been in steady decline ever since.” (P. 439.) She contends that as the degree of control varies, so should the standards of tort liability imposed. Negligence may be an appropriate regime for defendants who exercise a high degree of control over a harm-causing instrumentality and attempt to restrict its “mischief,” but strict liability is appropriate where defendants have chosen to forego that control.
Her historical analysis of the news industry convincingly demonstrates that the Supreme Court decided New York Times v. Sullivan at an anomalous time. The mainstream press then constituted a “highly centralized, elite, and regular group of institutions following a conventional business model to deliver information to the public.” According to Tilley, the high degree of control over news content exercised by what she terms the “professional press” at the time the Supreme Court decided New York Times v. Sullivan in 1964 may have justified the move toward a fault-based regime. The business model of the news industry enabled plaintiffs to identify “wrongful” behavior by the journalist, editor, and publisher according to professional standards. She shows how the common law had already adopted doctrines to ameliorate the harshness of strict liability to protect defendants who were furthering the goal of citizen education about public matters.
Presumably the courts might have continued to adapt the law to changing circumstances, as they have in other common law countries, had the Supreme Court not stymied tort law’s evolution when it constitutionally converted defamation from a strict liability tort to one in which a case may “sit within strict, intentional, or negligent tort, contingent on a court’s assessment of fact-intensive litigate [and speech] characteristics in any given case.” (P. 488.) Tilley laments the obstacles Sullivan and its progeny imposed on defamation reform in light of dramatic changes in the news industry since 1964, particularly in its exercise of “agency.” As she writes, “The ascent of the electronic speech distribution platforms, the disaggregation of the content production function from the content publication function, and the increasing use of artificial intelligence to both produce and individualize the delivery of content have all diluted the editorial control that was the unspoken linchpin for the fault regime introduced decades ago.” (P. 507, emphasis added.)
Professor Tilley contends that the law must adapt to these changes in the news industry lest defamation law become even more toothless in protecting reputation. Without defamation law reform, plaintiffs will increasingly find it difficult “to locate and prove human fault in the circulation of defamatory information.” (P. 507.) The result will be to “increasingly immunize from liability publishers of untrue and harmful information.” (Id.) She argues that the current structure of defamation law may have already undermined public trust in the mainstream media as purveyors of truthful information, and predicts this undermining of public confidence will accelerate under the influence of the developments she describes unless defamation law undergoes a recalibration.
The recalibration she recommends is a return to strict liability. According to her analysis, the reimposition of strict liability (in all cases?) would better safeguard individual dignity and would set “an expectation of careful speech even in an electronic environment.” (P. 508.) Moreover, it would reduce the “increasingly arbitrary” and complex constitutional categories into which the Supreme Court has sliced defamation doctrine: public official, public figure, private figure, media defendant, non-media defendant, matter of public concern, and so on. The result of “subjecting all speakers to the same liability scheme” would be “greater predictability” for both plaintiffs and defendants, a reduction of litigation costs, and, perhaps, a reduction in jury awards. (Id.) Moreover, it just might enhance our democracy by refocusing the tort on the falsity of the speech rather than the defendant’s intent. Free expression values would still receive protection. Tort law could adapt to protect the media from catastrophic liability when engaged in efforts to perform its watchdog role and provide us with the information necessary for democratic self-governance.
(Re)Categorizing Defamation makes an original contribution to the scholarly debate over whether defamation law currently strikes the wrong balance between protecting individual reputation, safeguarding free expression, and anchoring our public discourse in truth. Even if other scholars may dispute that a return to strict liability is the solution rather than, say, a more selective abrogation or modification of constitutional doctrines and/or a doctrine-by-doctrine rebalancing through tort law, Professor Tilley’s work must be reckoned with.
For example, her work might spur further engagement with the history of defamation law’s status as an outlier in the development of tort law. Arguably, this status stems as much from the tort’s origins in the ecclesiastical courts and subsequent developments within seigneurial courts and the Court of Star Chamber as it does from its evolution in U.S. common law.
Second, her extended analogy between words and ultrahazardous activities might spur further debate as well. While words may, as she suggests, have unpredictable consequences when unleashed on the world, query whether those consequences manifest the same level of dangerousness to the community as explosives or other ultrahazardous activities. The justification for strict liability has often been explained in terms of non-reciprocal risk. The defendant, by choosing to appropriate to her use something that is especially dangerous and uncontrollable, poses a risk to other community members disproportionate to the risks they impose upon her through “ordinary” activities such as driving a car or playing a sport. Given that we all wield words about others in our daily lives, I find implausible the analogy of words to instrumentalities that are abnormally dangerous or inherently unsafe. Furthermore, the equation of physical harm and reputational harm in her extended analogy is one that requires further justification. The analogy trucks on the idea of words as a threat to community “safety,” a construct I fear would justify far more censorship than we have at present. But, of course, this argument is precisely the kind that provocative and original scholarship is meant to engender.
A third fruitful debate that this article might inspire concerns the changing practices of the news business, and particularly the reliance on algorithms to write news stories. She contends that the forfeiture of agency by the news media justifies a return to strict liability, presumably across the board. Before joining her in this conclusion, scholars should really engage with this topic to discover exactly what percentage of stories are written by algorithm. Even if strict liability would be appropriate for algorithm-written stories, why is it justified as a broad prescription for defamation law? What about news stories written by human actors and vetted by editors before publication? Surely some news outlets engage in traditional journalistic processes and do in fact choose to exercise a high degree of agency before publication. According to her logic, strict liability might not be justified in these cases, but altering her liability regime to account for these cases would produce a defamation law regime every bit as complicated as the one we have now.
Fourth, and most significantly, Tilley’s analysis points toward areas that she or others might engage to round out the picture she draws. Her article largely ignores defamation cases involving non-media defendants, though she suggests that strict liability will apply equally to them. I speculate that she would not view a defendant posting on social media as exercising a high degree of agency in the way she is using the term. Although the user of social media certainly has a high degree of control over her words and whether to publish them or not, she does not ordinarily investigate their truth using professional standards, vet her words through an editor, nor control the breadth of their dissemination once posted on social media. Is strict liability the appropriate regime by which to evaluate this speech, no matter who the user criticizes or what topic she addresses? What effect might a strict liability regime, with the current potential for multi-billion-dollar lawsuits such as those in the Smartmatic and Dominion Voting Systems cases, have on those of us non-media actors who use social media to participate in public discourse? This topic is worth exploring, and I am eager to see what Professor Tilley does if she chooses to undertake it.
May 4, 2022 Maya Manian
David S. Cohen, Greer Donley, and Rachel Rebouche,
The New Abortion Battleground, 122
Col. L. Rev. __ (forthcoming 2022), available at
SSRN.
The Supreme Court appears poised to overrule fifty years of precedent holding that pre-viability prohibitions on abortion are unconstitutional. In a leaked draft opinion of Dobbs v. Jackson Women’s Health Organization, Justice Alito proclaims that Roe v. Wade and Planned Parenthood v. Casey must be overruled and abortion left to the states to regulate. During oral argument in Dobbs, Justice Kavanaugh suggested that overturning Roe would return the Court to a position of “neutrality” on abortion. Justice Kavanaugh’s assertion falls in line with claims by anti-abortion jurists that reversing Roe would simplify abortion law by returning the issue to the states and getting the federal courts out of the hot-button issue of abortion.
In their draft article The New Abortion Battleground, forthcoming in the Columbia Law Review, David Cohen, Greer Donley, and Rachel Rebouche thoroughly disprove the notion that abortion law will become simpler if and when the Court overturns Roe. Given increasingly pitched polarization between red and blue states, the authors show how the abortion wars will continue in the federal courts—but will shift from constitutional battles over fundamental rights to liberty and equality to fights over principles of federalism and interstate comity raised by interjurisdictional conflicts between states and between the federal government and the states. The article is a must read for scholars and legal advocates preparing for the aftermath of the Supreme Court’s decision in Dobbs.
The article describes interstate conflicts over abortion that will inevitably emerge given that some states will seek to restrict their citizens’ out-of-state travel for abortion care while other states will seek to protect the provision of abortion care to out-of-state patients within their borders. Potential conflicts could also arise between an actively abortion-supportive federal government and anti-abortion states. The article’s primary contribution is to map out the complex legal questions that will ensue from Roe’s reversal on both the horizontal and vertical axes of interjurisdictional conflict. While a few scholars in the past have discussed the conflict of laws and other legal issues raised in this context, Cohen, Donley, and Rebouche provide a much needed scholarly update on states’ ability to regulate interstate abortion travel—travel that will be inevitable in a post-Roe world.
First, on the horizontal axis, the authors provide an overview of possible interstate conflicts as anti-abortion states attempt to punish abortion care provided to their citizens out-of-state and abortion-protective states seek to protect their providers from out-of-state prosecutions or civil lawsuits. Estimates are that as many as twenty-six states will ban almost all abortion services when Roe is overturned. In contrast, fifteen states thus far have passed state laws protecting abortion access within their borders. (Pp. 6-7.) It is not farfetched to imagine anti-abortion states criminalizing the out-of-state abortions that will be a necessary part of a post-Roe legal landscape. The authors point out that a Missouri legislator has already introduced such a bill. (P. 7.) Similarly, abortion-supportive states are already proposing and passing legislation protecting clinicians who provide lawful in-state care to out-of-state patients.
With respect to interstate conflict, the authors focus on criminal law conflicts in particular (although interstate civil lawsuits are also possible if more states copy the Texas SB8 bounty hunter civil law ban on abortion). States could potentially deploy existing criminal laws to prosecute out-of-state abortion or pass laws specifically targeting extraterritorial abortion for criminal prosecution. In our federal system, states generally do not have the authority to regulate conduct outside their borders. However, as the article explains, the “general rule against extraterritorial application of criminal law has enough gaps to allow prosecution of a wide variety of crimes that take place outside the jurisdiction of a state.” (P. 20.)
A few scholars have debated legal questions about extraterritorial restriction of abortion in the past, but that debate has not been updated in years nor has this scholarship accounted for the new realities of abortion provision through telemedicine with abortion pills. The article parses out the existing literature on state regulation of abortion travel, and clearly explains how medication abortion works whether through telehealth or self-managed abortion. The authors conclude that the constitutional uncertainty on many of these questions combined with new technologies of abortion care “will keep the Court mired in difficult abortion controversies long after Roe’s destruction.” (P. 23.) On the other side, abortion-supportive states could seek to thwart interstate criminal and civil investigations for abortion travel. States could pass laws protecting their providers from anti-abortion interstate civil lawsuits, criminal subpoenas, and extradition; indeed Connecticut has already passed one. The authors argue that these abortion-protective laws would likely not raise issues that could be challenged in the courts (depending upon how they are drafted) but could threaten basic principles of comity between the states. Interstate conflict could intensify as states engage in a tit-for-tat over abortion, guns, and other controversial topics, which could have larger consequences in our federal system.
Second, on the vertical axis, the authors discuss potential conflicts between the federal government and state governments. In particular, the authors focus on the potential for federal law on medication abortion (abortion through the use of pills regulated by the FDA) to preempt state laws that overregulate or ban medication abortion. More boldly, the authors suggest that the federal government could lease federal land to abortion providers to ensure access to care in every state. Both the FDA preemption and federal lands arguments carry much legal uncertainty and will “spark new debates about the balance of state-federal power in abortion law.” (P. 49). As the authors explain throughout the article, case law is quite thin on many of these issues and there are no clear answers to the legal questions around interjurisdictional legal conflict that will emerge in a post-Roe world.
Another important contribution of the article is its proposals for state legislative and federal government action that could preserve access to abortion care in a post-Roe world. These proposals range from state legislation to protect abortion providers to enterprising suggestions such as leasing federal land to abortion clinics.
While there will certainly be disagreements about what legal strategies should be prioritized by reproductive rights and justice advocates, the article provides a much needed overview of the landscape of potential conflict post-Roe that will inevitably reach the federal courts. Although the authors cannot offer clear legal conclusions on many of the interjurisdictional conundrums that will explode in a post-Roe world, the article accomplishes its goal of painting the overall picture of these conflicts. As the authors aptly note: “The picture we paint is labyrinthine, and the ground we cover is largely unexplored: some states will assume roles as interstate abortion police, others will attempt to protect all abortion provision however they can, while the current federal government will have the opportunity to create new spaces, within and outside of hostile states, for abortion access.” (P. 16).
The authors persuasively show that overturning Roe v. Wade will not end the abortion wars in the U.S. and that the Supreme Court will not escape the conflict under a pretense of “neutrality” with regard to abortion.
Apr 15, 2022 Mark Kende
Professor David Han addresses the question of how technological change is having an impact on constitutional rights interpretation. He focuses on the Fourth Amendment and the First Amendment. His central thesis is that the rule-based approach employed by the Supreme Court in these areas no longer functions adequately. The Court has long justified its reliance on a categorical interpretive modality on the ground that it has many advantages, such as clarity, predictability, history, and formalism. Han argues that despite these ostensible benefits, the rule-based approach cannot accommodate the rapid pace of technological change. His arguments are quite persuasive, with only a few exceptions.
Regarding the Fourth Amendment, he draws a dichotomy between older law enforcement methods and new, more constant forms of modern surveillance. The Court has found that newer mechanisms such as the GPS, mass tracking, and data analysis break old barriers and clearly violate privacy interests. These modern tools make monitoring “relatively easy and cheap.” By contrast, beepers, bank records, logs, and pen registers are not nearly as effective. Han relies heavily on Orin Kerr’s view of the Fourth Amendment and new technology, encompassed in the flexible concept of an “equilibrium adjustment” approach. In other words, as the privacy invasion becomes more serious, the need to protect Fourth Amendment rights increases. See United States v. Jones, 565 U.S. 400 (2012) (GPS); Carpenter v. United States, 138 S. Ct. 2206 (2018) (cell phone pings). These Court decisions therefore found Fourth Amendment violations.
Han then turns to the First Amendment case of Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), which dealt with incitement. The Court adopted a three-part test, finding that the government cannot prohibit advocacy of the use of force unless the advocacy is geared to producing imminent lawlessness and is likely to produce it. Brandenburg was decided at a time when the major efforts at incitement involved speeches at rallies, or the use of leaflets and the like. Such methods imposed an inherent limit on how widespread the incitement could be. With the Internet and social media, those limitations has vanished. A group’s members can interact in real time, so there is not just one leader and changes on the ground can be communicated instantly. The rally that President Trump spoke at, prior to the January 6 Capitol riots, did not just motivate that crowd to violence– it energized a political base intent on denying President Biden’s victory.
Professor Han makes clear that the primary purpose of his article is not to analyze and propose new legal doctrines in each area. Han wants to rise above such an approach and arrive at a meta-legal view of how the Supreme Court should accommodate technology changes. Nonetheless, he does cite authors like Tushnet and Sunstein, who have advocated a broader approach to incitement and support placing less value on outrageous speech in this new context. And he makes some doctrinal assertions that I think are incorrect. For example, labeling “fake news” illegal in his view would have a chilling effect and could lead to government abuse, despite his awareness of its possible damaging impact. This understates the harm against which these dangers must be balanced, given that our democracy is literally eroding. But he is willing to entertain the option of middle-tier or intermediate judicial scrutiny in this area, in contrast with the Court’s often bedrock resort to strict scrutiny.
Han also does a good job of discussing even newer questions about expression, such as computer code, bots, search engine results (that can be based on biased algorithms), speech that is a product of artificial intelligence, and still others. But another problematic area where he is still very pro-speech is in supporting the rights of confined pedophiles to utilize the Internet. Packingham v. North Carolina, 137 S. Ct. 1730 (2017).
Most of the article goes past specific doctrinal areas to the broader question embodied in the title. Here, Han makes a powerful argument. In considering the effect of new technologies, courts should seize the opportunity to transparently and realistically reassess the assumptions and values present in longstanding Supreme Court decisions in these areas. As discussed, in some situations, new doctrines should result. But flexibility should be built in, as there may be even more technological changes to come. He essentially criticizes the violent video game case, Brown v. Entertainment Merchants Association, 564 U.S. 668 (2011), where the Court refused to consider such expression to be obscene because it was not sexual.
Professor Han argues that the Court can take an incremental approach to these questions. He suggests, colorfully, that there is a “pathological aversion” to complexity in First Amendment doctrine. He also discusses the pros and cons of comparing the First Amendment and Fourth Amendment here. Bluntly, he says there is value in “provisional doctrinal approaches.”
One possible addition would have been a discussion of the proportionality approach to speech used in countries like South Africa and Western Europe. That avoids the constant focus on content neutrality above all in the First Amendment area. But this is a fine article on its own terms.
Mar 7, 2022 Rebecca Zietlow
In recent years, some historians and legal scholars have taken to calling the Reconstruction Era the Second Founding of our Constitution. In The Second Founding and the First Amendment, William C. Carter joins these scholars and asks what it would mean if courts took the Second Founding seriously. Carter argues persuasively that the Reconstruction Amendments altered the entire constitution. If Carter is correct, then the Court should take seriously what it once observed, that there is “one pervading purpose” to the Reconstruction Amendments, “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.” Although the Reconstruction Amendments were not limited to that purpose, it is undeniable that unlike other constitutional provisions, the Reconstruction amendments – the 13th, 14th and 15th Amendments – were adopted with a particular group of people in mind, people who were formerly enslaved.
The Reconstruction Amendments expanded the constitution to protect those who had previously been excluded and disempowered. It follows that the Court should consider the experiences of enslaved people when interpreting those provisions. Until now, however, the perspective of formerly enslaved people has been largely absent from the conversation about the meaning of the constitutional changes wrought by Reconstruction. In The Second Founding and the First Amendment, William C. Carter seeks to remedy that oversight. Carter argues that we should interpret the constitution from the perspective of the disempowered people who were the intended beneficiaries of constitutional change. Moreover, formerly enslaved people and their free Black allies helped to create this constitutional meaning, actively participating in the antislavery movement and Civil War which brought about the end of slavery and the Reconstruction Era.
Like the founding of the original constitution, the Second Founding was a unique constitutional moment which established a new constitutional order. The Thirteenth Amendment prohibited slavery and involuntary servitude. The Fourteenth Amendment recognized all people born in the United States, even if they were enslaved, as citizens of the United States and entitled to individual rights. The Fifteenth Amendment prohibited states from denying the right to vote on the basis of race in order to enfranchise newly freed slaves. These Amendments transformed our constitution from one which sanctioned the institution of slavery and the denial of the humanity of millions of people who lived in our country into a document that recognized all people as rights bearing individuals who are entitled to constitutional protections. As Reconstruction Congress member Massachusetts Senator Charles Sumner proclaimed, the new Constitution would be “interpreted uniformly and thoroughly for human rights.”
To determine the content of those rights, Carter argues, interpreters must consider the views and experiences of enslaved people whose rights had been denied. “[B]y listening to enslaved persons’ voices, we credit them as part of the contemporary polity whose understanding should matter in constitutional interpretation, rather than merely as passive beneficiaries to, or forgotten members of, the Second Founding.” (p. 1066) Carter explains that the views of enslaved people are important to constitutional interpretation “not only because of (their) privileged access to descriptive or normative truth, but simply to correct its previous suppression.” (p.1092). To remedy the oversight, Carter describes restrictions on the free speech of enslaved persons and their allies during the pre-Civil War era. Along with historical accounts, Carter relies on narratives published by fugitives from slavery in the antebellum era. Those narratives include powerful testimony about life under slavery and served as important political tracts in the antislavery movement.
Slaveholders lived in daily fear of slave revolts or escapes, so did everything they could to prevent communication that would encourage or aid any sort of resistance or escape. Slaveholders punished enslaved people for speaking out against slavery or criticizing their masters in any way. Enslaved people were also affected indirectly by restrictions which slave state imposed on abolitionists who criticized slavery. Critics of slavery argued that slavery was undermining our nation’s founding ideals, including, most notably, freedom of expression. Conflicts over antislavery speech often escalated into violence. Proslavery mobs attacked abolitionist printing presses, notably murdering antislavery journalist Elijah Lovejoy. Thus, suppressing free speech was a central component of the legal structure of slavery, and the denial of freedom of speech was arguably a badge or incident of slavery.
Carter argues that courts should take this history into account when interpreting the First Amendment today. Recently, the United States Supreme Court adopted this approach when holding that the Fourteenth Amendment incorporated the Second Amendment against state and local governments in McDonald v. City of Chicago. Considering the experiences of enslaved people sheds light on First Amendment doctrines. For example, the perspective of enslaved people calls into question the state action doctrine. Carter points out that threats of violence silenced enslaved people more than government action. Considering the perspective of enslaved people also supports the Court’s doctrine against compelled speech and viewpoint discrimination.
Recent years have been marked by a reckoning with our nation’s history of slavery. During the 1960s, an era which historians refer to as the Second Reconstruction, civil rights activists relied on the First Amendment in their movement to reinvigorate and enforce the Reconstruction Amendments. However, we have really only begun to understand the impact of slavery on all of our constitutional principles, in large part due to renewed activism of participants in a new movement for racial and economic justice which I have elsewhere called the Third Reconstruction. Carter makes a persuasive argument that the Reconstruction Amendments mandate such a reckoning, acknowledging the fact enslaved people played a central role in the battle against slavery and in favor of constitutional change. Starting from the bottom up provides a new and important perspective for constitutional interpretation.
Feb 9, 2022 Pat Gudridge
In their irrepressibly interesting essay, Samuel Bray and Paul Miller argue hard against the idea that notions of fiduciary duty writ large ought to be welcomed within the analytical apparatus of United States constitutional law. They worry about ensuing anachronism – indeed, repeatedly underscore this concern.
The 1787 constitution may be roughly contemporary with the law of trusts, for example. In the fiduciary notions we now try to group abstractly, however, much that is important dates from nineteenth and twentieth century developments – plainly coming too late to the party to figure as constitutional contemporaries. Bray and Miller concede that there is a very old practice of treating classical notions of loyalty and disinterest and the like as adding emphasis – maybe even urgency – to constitutional discussion. They do not deny the existence of Plato and Cicero, Locke and Hume, or their gangs of adherents. “But this language offers moral guidance and political wisdom,” they write, “not enforceable duties with remedies that can be awarded by courts.” (P. 1483.) Surely we can all agree with this. Plato and Benjamin Kaplan were and are in no way pursuing the same project. Bray and Miller lower their boom.
Against this long history of a figurative and legally thin understanding of public office as a trust, it becomes easier to recognize the fiduciary constitutionalist project for what it is: an earnest and literalistic misreading of the tradition and an insistence on taking figurative language that works across thousands of years of political theory and treating it as if it were an invocation of an inevitably more particular body of legal or equitable claims and remedies. (Pp. 1483-84.)
The individual explorations leading to this conclusion are carefully developed. The overall argument looks to be straightforward.
Notably, Bray and Miller do not deny the possibility that “figurative language” and “more particular” terms might coexist within legal writings, both concerned with what ought to be emphasized or marginalized or proscribed. Why such doubling? Signaling efforts are evident – either openly or implicitly – in installations of operative legal text, whether primary or secondary. This push and pull, we might think, both assembles legal statements and puts them in relief, working as a choreography of sorts. Normative backdrops emerge, underscore commitments and reveal rejections (steps toward or away). Bray and Miller are concerned that we not confuse “figurative” and “particular” modes. But they are provocatively silent regarding the affirmative possibilities presented by this doubling.
The past half-century has witnessed extraordinary explosions of close creative thinking as to the implications of fiduciary duties in prominent fields of law. ERISA has provided one such context, regularly explored by the Supreme Court and other federal adjudicators, building up a considerable distinctive technicality. The American Law Institute, after two not-too-happy earlier tries, relatively recently (in this century) adopted a third Restatement of the Law of Agency. Much of the credit, it appears, rightly rests with reporter Deborah DeMott, cited by Bray and Miller as an early theorist of fiduciary duty considered abstractly. The Restatement, though, is deeply immersed in concrete agency circumstances. Fiduciary duty vocabularies are at points strikingly recast, treated as not yet fully set and thus still amenable to recasting. Ideas about agency (not necessarily trusts concerns, for example) re-animate fiduciary ideas, now changed accordingly. The new Restatement is blockbuster legal artistry.
The monster jam remains, however, the two-decade sequence of temblors rattling and re-rattling corporate finance law, beginning in the mid-1970s. Whether tender-offer-forced, negotiated, or essentially unilateral, mergers and other acquisitions multiplied dramatically, shocks and aftershocks accumulating. The monetary costs, the commercial and employment disruptions felt sometimes over and over, the huge sums redistributed – all contributed to waves of aggressive and defensive litigation, mostly in Delaware courts. Longstanding corporate law fiduciary principles, or at least their decisive corollaries, changed repeatedly, within surprisingly short periods of time, as judges sought to manage the turmoil. In American legal history, there are very few common law exercises quite so closely, dramatically recurringly.
Professors Bray and Miller likely know all this too. They don’t want to discuss it. No one, it is easy to think, believes that any or all of the great piles of Delaware chancery court decisions, Supreme Court ERISA interpretations, or Agency (Third) provisions, however wondrous, are part of the immediate corpus of United States constitutional law. But there is surely much we can learn from the particularities of all this work. Legally purpose-built organizations are sometimes beset and go awry. Lawyers, judges, or legislators respond, often adjusting or indeed retooling parameters of modern American fiduciary duty enforcement or nonenforcement. What we learn from these substantial efforts may not, in the end, strike us as relevant to American constitutional law. But maybe it would seem so sometimes, and the fact that it is once-removed would not undercut this usefulness if we were persuaded of its aptness.
Learning of this sort would be unabashedly “metaphorical.” Or we might call it a legal version of “wisdom.” Bray and Miller’s fundamental distinction would still hold up. Indeed, they might note, robust procedural and remedial regimes more immediately coincide (or coexist) with constitutional law as such. Familiar distinctions between rights and remedies and substance and procedure, accompanied often by careful segregations of immediately pertinent legal materials, set boundaries. We all know, though, that these boundaries are not walls. We recall William Rehnquist’s extraordinary triptych in Rizzo v. Goode, indirectly invisibly regulating the reach of important constitutional norms. We remember from the same era Abram Chayes and Owen Fiss arguing fiercely about the implications and relative priorities of remedies and rights; and too, the persisting debates about how closely (or not) the Rules Enabling Act distinction between substance and procedure confined Benjamin Kaplan’s 1966 rules rewrites. Again, the significance for constitutional law at the time was obvious even if one step removed. These were and are still important illustrations of separated but interacting bodies of law. No appeals to abstraction of the sort that Bray and Miller criticize are involved. (Henry Smith’s recent reworking of the relationships of law and equity is perhaps another example.)
A final note: Bray and Miller do not commit themselves to the proposition that constitutional law as we understand it should ordinarily overlap 1787 understandings, but they do note that the proponents of fiduciary incorporation seem to suppose so. There is more to explore here. Perhaps originalists would prefer a strong presumption against “metaphor” or “wisdom” counseling strongly specified interpretive choices when enough, or important enough, 1787 terms look to be relatively open textured. Would later constitutional amendment terms properly control if interpretations of seemingly open 1787 terms are not inconsistent with later inclinations? The same questions multiply as we consider once-removed modern statutes and common law – in particular, newer detailed reworkings of fiduciary ideas (not abstract formulas). Maybe original understanding matters “enough” practically only if there are a sufficient number of well-defined important 1787 terms. Maybe we need a theory of 1787 fundamentals therefore.
But where would that come from? It may help to borrow a reverse “metaphor” from John Rawls. There needs to be a set of 1787 “constitutional basics” somehow primary. But this set itself requires justification – its own corollary “thin theory” of the good to be treated as itself constitutionally basic. All of this would have to be taken up first, before later “metaphors” come on stage. What if we are not entirely satisfied with the derived thin theory? Would we then turn to the work of reconciling the initially “original” thin theory with later ostensible glosses – circumspect updated amalgams in the end, as it were?
Bray and Miller write provocatively. They push their readers further.
