Students and workers and prisoners - Oh, my! A cautionary note about excessive institutional tailoring of first amendment doctrine

UCLA Law Review

Volumn 54, Issue 6, 2007, Pages 1635-1679

  Moss, Scott A ^a  

^a UNIVERSITY OF COLORADO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34948845736     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (239)

1. Compare, e.g., C. Edwin Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 IOWA L. REV. 1 (1976) (arguing for less protection for commercial speech because it is unrelated to self-governance)
2. with Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. REV. 1 (2000) (arguing to the contrary because commercial speech is informational).
3. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 240 (2002) ("[P]ornography can be banned only if obscene ....");
4. Roth v. United States, 354 U.S. 476, 485 (1957) ("[O]bscenity is not within the area of constitutionally protected speech or press."). Many criticize the denial of constitutional protection to sexual or hateful speech.
5. See, e.g., Amy Adler, What's Left?: Hate Speech, Pornography, and the Problem for Artistic Expression, 84 CAL. L. REV. 1499, 1507 (1996) ("[T]here is no way to draw a principled distinction between 'art' and 'pornography,' or 'art' and 'hate speech'. . . .").
6. See, e.g., ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 11.6.2.4 (3d ed. 2006) ("Can the government require that the media make newspaper space or broadcast time available to respond to personal attacks?. . . Right to reply laws are allowed as to broadcast media, but not the print media.").
7. See Frederick Schauer, Towards an Institutional First Amendment, 89 MLNN. L. REV. 1256 (2005).
8. See generally id. at 1256-64 (discussing the range of possible breakdowns of speech protections).
9. Id. at 1263.
10. Id. at 1261-62 ("[B]roadcasting and . . . zoning of adult establishments [are] the only significant exceptions." (footnotes omitted));
11. see also id. at 1262 ("[T]he Court conceptualized the library as. . . a purchaser of books. . . the same conceptual hopper as the government providers of health care . . . government employers. . . [and] government funders of art . . . ." (emphasis added) (footnotes omitted)).
12. Id. at 1264.
13. Id. at 1273.
14. Id. at 1271.
15. Id. at 1272.
16. See Adam Winkler, The Federal Government as a Constitutional Niche in Affirmative Action Cases, 54 UCLA L. REV. 1931, 1961 (2007).
17. Paul Horwitz, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, 54 UCLA L. REV. 1497 (2007) [hereinafter Horwitz, Universities as First Amendment Institutions];
18. Paul Horwitz, Grutter's First Amendment, 46 B.C. L REV. 461, 589 (2005) [hereinafter Horwitz, Grutter's First Amendment].
19. Schauer, supra note 4, at 1271-72;
20. Frederick Schauer, The Supreme Court, 1997 Term - Comment: Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84 (1998) [hereinafter Schauer, Principles, Institutions, and the First Amendment].
21. See Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939) (rejecting the argument that the government can restrict speech as the "owner" of public property).
22. Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 648 (1981)
23. (quoting Va. Pharmacy Bd. v. Va. Citizens Consumer Council, 425 U.S. 748, 771 (1976)).
24. Schneider v. New Jersey, 308 U.S. 146, 163 (1939).
25. The Court in the 1960s and 1970s recognized students' rights to antiwar and antipolice expression. See Papish v. Bd. of Curators, 410 U.S. 667 (1973) (antipolice cartoon);
26. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (antiwar armbands).
27. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
28. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).
29. Morse v. Frederick, No. 06-278, slip op. at 2 (U.S. June 25, 2007).
30. Id. at 6.
31. Id. at 8.
32. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) ("[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy . . . of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.").
33. Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006). See generally Sonja Bice, Tough Talk From the Supreme Court on Free Speech: The Illusory Per Se Rule in Garcetti as Further Evidence of Connick's Unworkable Employee/Citizen Speech Partition (Marquette Univ. L. Sch., Research Paper No. 06-37, 2006), available at http://ssrn.com/abstract=942684.
34. Garcetti, 126 S. Ct. 1951.
35. CHEMERINSKY, supra note 3, § 11.4.4 (collecting cases).
36. Beard v. Banks, 126 S. Ct. 2572, 2578 (2006) (quoting Turner v. Safley, 482 U.S. 78, 87 (1987)).
37. See Turner, 482 U.S. 78 (upholding the rule against prisoners mailing letters to prisoners elsewhere).
38. See Bell v. Wolfish, 441 U.S. 520 (1979) (upholding rule against prisoners receiving hardcover books other than from publishers or bookstores).
39. See Beard, 126 S. Ct. 2572 (upholding the rule disallowing newspapers, magazines, or photographs to prisoners housed in unit for those who committed misconduct while incarcerated).
40. See generally Andrew M. Siegel, Equal Protection Unmodified: Justice John Paul Stevens and the Case for Unmediated Constitutional Interpretation, 74 FORDHAM L. REV. 2339, 2342 (2006) ("[T]he modern three-tiered approach to equal protection review has become more and more embedded into the sinews of the law over the last quarter century.").
41. See, e.g., Gratz v. Bollinger, 539 U.S. 244 (2003);
42. Gratter v. Bollinger, 539 U.S. 306 (2003);
43. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
44. For further analysis of the applicability of strict scrutiny in this context, see infra Part III.B.
45. The Supreme Court has not heard a case specifically involving race discrimination against a public employee, in part because many public employment cases are cast as statutory rather than constitutional discrimination claims. See, e.g., Taxman v. Bd. of Educ., 91 F.3d 1547, 1552 (3d Cir. 1996). Still, it is well established that "employment practices which discriminate on the basis of race are subjected to strict scrutiny" under the Equal Protection Clause. Jan W. Henkel, Discrimination by Supervisors: Personal Liability Under Federal Employment Discrimination Statutes, 49 FLA. L. REV. 767, 788 (1997) (collecting cases);
46. see also Patrolmen's Benevolent Ass'n of N.Y. v. City of New York, 310 F.3d 43, 52 (2d Cir. 2002);
47. McNamara v. City of Chicago, 138 F.3d 1219, 1222 (7th Cir. 1998).
48. See Johnson v. California, 543 U.S. 499 (2005). For further analysis of the applicability of strict scrutiny in this context, see infra Part III. A.
49. Guido Calabresi and A. Douglas Melamed's classic article noted how all asserted entitlements compete with a contrary entitlement. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).
50. See Part II. A for a full elaboration of the waiver argument.
51. See Part II.B. 1 for a full elaboration of the risk argument.
52. See infra Part II.A.
53. See infra Part II.B.2.a.
54. See infra Part II.B.2.b.
55. See generally LESLIE J. HARRIS & LEE E. TEITELBAUM, CHILDREN, PARENTS, AND THE LAW 78-85 (2002).
56. See, e.g., Mark D. Rosen, Institutional Context in Constitutional Law: A Critical Examination of Term Limits, Judicial Campaign Codes, and Anti-Pornography Ordinances, 21 J.L. & POL. 223, 246, 249 (2005) ("Permitting localities to regulate such things as pornography would have led to a broader array of political communities. . . insofar as there would have been polities that regulated pornography and others that did not. . . . [L]ower levels of government might be given greater leeway to regulate the content of speech . . . ."). A state-federal distinction has been defended as comporting with the original intent of the framers of the U.S. Constitution, who saw the First Amendment's free speech guarantee as a limit on federal power that did not infringe upon state sovereignty.
57. See, e.g., William T. Mayton, From a Legacy of Suppression to the "Metaphor of the Fourth Estate," 39 STAN. L. REV. 139, 144 (1986) ("[I]n the allocation of powers upon which the Constitution was built . . . injurious speech was to be addressed by the states in the exercise of their residual police power. And that allocation, as James Madison explained, 'account[ed] for the policy of binding the hands of the federal government.'").
58. See, e.g., Mark D. Rosen, The Surprisingly Strong Case for Tailoring Constitutional Principles, 153 U. PA. L. REV. 1513 (2005);
59. Richard C. Schragger, The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 HARV. L. REV. 1810 (2004);
60. Christopher Serkin, Big Differences for Small Governments: Local Governments and the Takings Clause, 81 N.Y.U. L. REV. 1624 (2006) (arguing that the Takings Clause should apply differently to local governments than to higher levels of government because local governments are more responsive to property owners and more risk averse about avoiding constitutional litigation).
61. See Wallace v. Jaffree, 472 U.S. 38, 48-49 (1985) (stating that under the Establishment Clause of the First Amendment, it is a "firmly embedded" principle that "States have no greater power to restrain the individual freedoms protected by the First Amendment than does the Congress"). Justice Thomas has argued that the Establishment Clause should apply less strictly to state and local government
62. see Zelman v. Simmons-Harris, 536 U.S. 639, 677 (2002) (Thomas, J., concurring), but thus far to no avail; no other Justice, for example, joined his Zelman concurrence.
63. The Court has relaxed constitutional requirements for state and local governments only to the extent that it deems certain rights in the first eight amendments not to be "incorporated" into the Fourteenth Amendment's restrictions on states, on the ground that certain rights are insufficiently "fundamental" or "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937) (stating criteria for applying the Bill of Rights guarantees to states). Rights in the first eight amendments that apply less or not at all to states typically are not core rights like free speech but more technical, procedural rights, the key ones being the right to grand jury indictment in criminal cases
64. see Hurtado v. California, 110 U.S. 516 (1884), the right to a jury in civil cases
65. see Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211 (1916), and the right to a unanimous twelve-member criminal jury
66. see Burch v. Louisiana, 441 U.S. 130 (1979) (disallowing nonunanimous juries of six, but only after precedents allowing unanimous juries of six or nonunanimous juries of twelve).
67. See Roth v. United States, 354 U.S. 476, 503, 506 (1957) (Harlan, J., concurring in part and dissenting in part) ("I agree with Mr. Justice Jackson that the historical evidence does not bear out the claim that the Fourteenth Amendment 'incorporates' the First in any literal sense . . . .[N]o overwhelming danger to our freedom . . . is likely to result from the suppression of a borderline book in one of the States, so long as there is no uniform nation-wide suppression of the book, and so long as other States are free to experiment with the same or bolder books."
68. (citing Beauharnais v. Illinois, 343 U.S. 250, 294-95 (1952) (Jackson, J., dissenting) (asserting, as to the level of constitutional protection for speech, "[t]he inappropriateness of a single standard for restricting State and Nation . . . . I should not, unless clearly required, confirm to the Federal Government such latitude as I think a State reasonably may require for orderly government of its manifold concerns. The converse of the proposition is that I would not limit the power of the State with the severity appropriately prescribed for federal power"))).
69. Buckley v. Valeo, 424 U.S. 1, 291 (1976) (Rehnquist, J., concurring in part and dissenting in part) ("For the reasons stated in the dissenting opinion of Mr. Justice Jackson in Beauharnais v. Illinois, and by Mr. Justice Harlan in his dissenting opinion in Roth v. United States, I am of the opinion that not all of the strictures which the First Amendment imposes upon Congress are carried over against the States by the Fourteenth Amendment, but rather that it is only the 'general principle' of free speech that the latter incorporates." (citations omitted)).
70. More recently, Justice Stevens has expressed a similar view, opining that local libraries can install Internet filters even though the U.S. Congress could not require such filters. United States v. Am. Library Ass'n, 539 U.S. 194, 220-23 (2003) (Stevens, J., dissenting) ("[L]ibraries that decided to use such software on all of their Internet terminals. . . did not act unlawfully. Whether it is constitutional for the Congress of the United States to impose that requirement . . . however, raises a vastly different question . . . . [L]ocal decisions tailored to local circumstances are more appropriate than a [federal] mandate . . . ." (internal citations omitted)). This is a less clear adoption of the Harlan-Jackson view (which Stevens did not cite) than Justice Rehnquist's for two reasons. First, Justice Stevens was not ruling directly on a local speech restriction, just opining that it would be better than the federal restriction actually at issue in the case. Second, libraries are a somewhat unique type of local government, one that necessarily makes its own speech choices in deciding which books to buy, and that arguably has its own speech rights, so it is far from clear that Justice Stevens would allow other kinds of local governments (such as school districts limiting student speech) to restrict speech more than the federal government. See generally Horwitz, Universities as First Amendment Institutions, supra note 13.
71. See Serkin, supra note 44.
72. See, e.g., R.A.V. v. St. Paul, 505 U.S. 377 (1992) (overturning a city ordinance against only those fighting words with certain discriminatory content); Texas v. Johnson, 491 U.S. 397 (1989) (overturning a state law against flag burning);
73. City of Houston v. Hill, 482 U.S. 451, 462 (1987) (overturning a city ordinance that "prohibits speech that in any manner. . . interrupt[s] an officer");
74. Cohen v. California, 403 U.S. 15 (1971) (overturning a state prosecution for profanity in the courthouse).
75. "Transaction costs" is a term that, sometimes confusingly, incorporates a variety of different costs. The present analysis focuses on costs that inhibit bargaining and free choice, which makes appropriate the broadest possible definition of transaction costs, "all obstacles to bargaining." ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 91-94 (4th ed. 2004).
76. See id. at 88-90;
77. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 55-56 (6th ed. 2003).
78. Connick v. Myers, 461 U.S. 138, 143-44 (1983) (alteration in original)
79. (quoting McAuliffe v. City of New Bedford, 29 N.E. 517, 517 (Mass. 1892)).
80. 342 U.S. 485 (1952).
81. Id. at 492 (emphasis added) (citations omitted).
82. Keyishian v. Bd. of Regents, 385 U.S. 589, 605-06 (1967) (invalidating a policy similar to that upheld in Adler).
83. Cook v. Hudson, 365 F. Supp. 855, 859 (D. Miss. 1973) (quoting Adler, 342 U.S. at 492) (allowing a public school policy barring public school teachers from enrolling their children in a racially discriminatory private school).
84. 126 S. Ct. 1951 (2006).
85. Id. at 1958 (emphasis added).
86. Donnell v. City of Cedar Rapids, 437 F. Supp. 2d 904, 929 n.13 (N.D. Iowa 2006) (one of the first cases to cite and apply Garcetti);
87. see also Ruotolo v. City of New York, No. 03 Civ. 5045 (SHS), 2006 WL 2033662, at *4 (S.D.N.Y. July 19, 2006) ("When a public employee goes 'to work and perform[s] the tasks he [i]s paid to perform,' that employee acts as a governmental employee and his speech is not protected by [the] First Amendment." (alterations in original)
88. (quoting Garcetti, 126 S. Ct. at 1960));
89. Logan v. Dep't of Corr., No. 1:04-cv-0797-SEB-JPG, 2006 WL 1750583, at *1 (S.D. Ind. June 26, 2006) ("If the speech giving rise to Defendant's punitive action against the speaker/employee occurred as part of the employee's job, then the government agency does not infringe any private liberties because the speech 'owes its existence to a public employee's professional responsibilities.'"
90. (quoting Garcetti, 126 S. Ct. at 1960)). For further discussion of these decisions, which appear to be the first three federal cases dismissing claims on the newly announced Garcetti doctrine
91. see Bice, supra note 25, at 18-20.
92. As of December 2006, for example, various cities and states had unemployment rates significantly higher than the federal rate of 4.5 percent: Detroit (71 percent higher); Mississippi (67 percent higher); Michigan (58 percent higher); District of Columbia (40 percent higher). Bureau of Labor Statistics, Civilian Labor Force and Unemployment by State and Selected Area, Seasonally Adjusted, available at http://www.bls.gov/news.release/laus. t03.htm (last visited Jan. 24, 2007).
93. Most risks that a new job will be worse than anticipated are not legally actionable. Only in certain jurisdictions can employees sue new employers for fraudulent misrepresentation, and even there only for certain types of clear misrepresentations. See generally Scott A. Moss, Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will, 67 U. PITT. L. REV. 295 (2005).
94. See JOHN H. LANGBEIN & BRUCE A. WOLK, PENSION AND EMPLOYEE BENEHT LAW 291 (3d ed. 2000) ("A [pension] plan is permitted to exclude employees who have not completed one year of service."
95. (citing IRC 1410(a)(1)(A) (2000), and ERISA § 202(a)(1)(A) (codified at 29 U.S.C. § 1052(a)(1)(A) (2000))));
96. Elizabeth Hubbard, Age Discrimination: Coping With Ambiguity, Court Decisions and Clients Thoughts From the Plaintiffs Side, in LITIGATION, at 630-31 (PLI Litig. & Admin. Practice, Course Handbook Series No. 571, 1997) ("[I]f you have a pre-existing condition, the insurance carrier for a later employer may choose not to cover this condition for a period of time (typically, one year)."). More broadly, it is common for employers to provide new employees health insurance only after three months of employment - a norm sufficiently widespread to have become part of even broad legislative proposals to mandate employer-provided health care.
97. See, e.g., Jennifer Bender, The Impact of ERISA on California Health Care Law Following the United States Supreme Court's Pro-Preemption Interpretation, 26 WHITTIER L. REV. 1169, 1184 (2005) (recounting how even under a broad California bill to mandate employer-provided health insurance, "[t]o qualify for health coverage, an employee was required to work as least 100 hours per month for the same employer for at least three months").
98. When salespeople paid on commission leave their jobs, they often lose any right to commissions on sales they made for which their employer has not yet received full payment. See, e.g., Dwyer v. Burlington Broadcasters, Inc., 295 A.D.2d 745 (N.Y. 2002) (denying plaintiffs claim for her sales commissions under such circumstances).
99. Congress noted the risk of losing accrued benefits in enacting statutory protection for employees at risk of being terminated just before they reach the point at which their benefits vest or at which they become entitled to a payout of pension benefits, for example. See MARK A. ROTHSTEIN ET AL., EMPLOYMENT LAW § 4.27, at 602 (3d ed. 2004) ("[ERISA's] legislative history contains stories of employees who were fired after many years of faithful service, just before they were to become eligible for a pension or other employment benefit.").
100. See Scott A. Moss & Peter H. Huang, Judges' "Behavior" Problems: What Behavioral Economics and Happiness Research Say Employment Law Gets Wrong (unpublished manuscript, on file with authors).
101. See generally Russell Korobkin, The Endowment Effect and Legal Analysis, 97 NW. U. L REV. 1227 (2003).
102. See supra Part II.A.1 (discussing the waiver argument in context of "choosing" public schools).
103. Ruffin v. Commonwealth, 21 Gratt. 790, 1871 WL 4928, at *4 (Va. 1871) (emphasis added).
104. Contra State v. Dignan, 171 S.E. 527, 528 (W. Va. 1933) ("The principles of the Ruffin Case are not the law in this state. Here, all men are entitled to the protection of the Constitution, and this protection is not forfeited by even a convict except to the extent reasonably necessary to expiate the offense already committed.").
105. Turner v. Safley, 482 U.S. 78, 84 (1987) (citations omitted).
106. E.g., Owens v. Kelley, 681 F.2d 1362, 1364 (11th Cir. 1982) ("The probation requirements imposed . . . did not merely consist of perfunctory reports; instead, the conditions were obviously fashioned for the purpose of making probation a meaningful rehabilitative experience . . . . Nevertheless, all such efforts must. . . not violate the constitutional rights of the probationer.").
107. JOHN RAWLS, A THEORY OF JUSTICE passim (1999).
108. See supra Part I.
109. See generally POSNER, supra note 53, at 649-716 (analyzing various constitutional issues);
110. Eugene Kontorovich, The Constitution in Two Dimensions: A Transaction Cost Analysis of Constitutional Remedies, 91 VA. L. REV. 1135 (2005).
111. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (arguing for "free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment"). "That the Abrams dissent plays a central role in First Amendment case law and scholarship is not disputed . . . . [It] now carr[ies] the weight of precedem . . . ."
112. David Cole, Agon at Agora: Creative Misreadings in the First Amendment Tradition, 95 YALE L.J. 857, 886, 892 (1986). The marketplace theory has drawn substantial criticism.
113. See, e.g., Steven J. Heyman, Righting the Balance: An Inquiry Into the Foundations and Limits of Freedom of Expression, 78 B.U. L REV. 1275, 1352 (1998) ("Holmes's marketplace metaphor is unpersuasive as an account of the search for social and political truth -The outcome of the process . . . would not be an objective truth but merely an aggregate . . . [of] the interests and views of a majority."). Yet such criticism does not at all diminish the overlap between speech theory and economic theory, because criticisms of the marketplace theory of speech-for example, that it "conceives of individuals in an overly private way,"
114. id. - parallel the criticisms of free-market economics.
115. This is why so many traditional economic analysts of law have a libertarian orientation. See, e.g., POSNER, supra note 53, at 161-64 (characterizing various laws regulating consensual sexual behavior as "unjustifiable interferences with freedom of contract" unless the activities they ban "impose significant costs on third parties");
116. id. at 244 ("The economic arguments for criminalization of the drug trade are rather unimpressive.").
117. E.g., ROBERT G. BONE, THE ECONOMICS OF CIVIL PROCEDURE 125-57 (2003) (discussing how liberal pleading rules maximize autonomy but risk more harmful litigation, whereas strict pleading rules do the opposite).
118. See POSNER, supra note 53, at 167-71.
119. United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950), aff'd, 341 U.S. 494 (1951).
120. Id. at 205 (quoting indictment).
121. See, e.g., POSNER, supra note 53, at 694-96 (noting and analyzing such criticisms).
122. See infra Part II.B.1.a.
123. See infra Part II.B.1.b.
124. See, e.g., BONE, supra note 77, at 131 (analyzing alternative pleading rules by each rule's "expected error cost . . . the probability of an error multiplied by the social cost of the error if it materializes");
125. POSNER, supra note 53, at 563-64 ("In Hand Formula terms, due process is denied when B
126. See ROBERT S. PINDYCK & DANIEL L. RUBINFELD, MICROECONOMICS 621-22 (5th ed. 2001) (noting that a "negative externality" occurs when a party "has no incentive to account for the external costs that it imposes" and therefore "produces too much output" in the sense of undertaking the activity even when the costs exceed the benefits, because the party ignores the costs it imposes on others).
127. Bell v. Wolfish, 441 U.S. 520 (1979).
128. Turner v. Safley, 482 U.S. 78, 91 (1987).
129. See, e.g., Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006) (noting that if public employers did not have "a significant degree of control over their employees' words and actions. . . there would be little chance for the efficient provision of public services. Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions" (citations omitted));
130. Connick v. Myers, 461 U.S. 138, 151 (1983) ('"[T]he Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation . . . with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale . . . and ultimately impair the efficiency of an office or agency.'"
131. (quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1974)
132. (Powell, J., concurring in part))).
133. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 678 (1986) ("One teacher reported that on the day following the speech, she found it necessary to forgo a portion of the scheduled class lesson in order to discuss the speech with the class.");
134. id. at 683 ("The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order.").
135. There is a deference argument for public employment cases as well, as detailed below, but it is not based on public workplaces being institutions that involve the sort of specialized knowledge it takes to understand prison or school management.
136. See Fraser, 478 U.S. at 683 ("[D]etermination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.").
137. In upholding affirmative action in law school admissions, the Court in Grutter v. Bollinger, 539 U.S. 306 (2003), applied an interesting mix of strict scrutiny of and deference to the law school's race-conscious admissions process: The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits.
138. Id. at 328 (emphases added) (citations omitted).
139. See generally Scott A. Moss, Against "Academic Deference": How Recent Developments in Employment Discrimination Law Undercut an Already Dubious Doctrine, 27 BERKELEY J. EMP. &. LAB. L. 1 (2006) (collecting cases and critiquing doctrine based on its inconsistency with other doctrine and based on social norms and economic theory).
140. Connick v. Myers, 461 U.S. 138, 151-52 (1983) (emphasis added) (discussing the lowet court's decision in rejecting the public employee's speech claim).
141. Kearney v. Town of Wareham, 316 F.3d 18, 25 (1st Cir. 2002) ('"Courts may not sit as super personnel departments, assessing the merits - or even the rationality - of employers' nondiscriminatory business decisions."'
142. (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991))).
143. Beard v. Banks, 126 S. Ct. 2572, 2575-76 (2006)
144. (quoting Overton v. Bazzetta, 539 U.S. 126, 132 (2003)) (upholding a policy that "denies newspapers, magazines, and photographs to a group of specially dangerous and recalcitrant inmates" (internal quotation marks omitted)).
145. Jones v. N.C. Prisoners' Labor Union, 433 U.S. 119, 126 (1977);
146. see also Turner v. Safley, 482 U.S. 78, 84-85 (1987) ('"[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform' . . . [and should] accord deference to the appropriate prison authorities."
147. (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974))).
148. Jones, 433 U.S. at 132 (upholding prison officials' barring of unions because "prison officials concluded that . . . a prisoners' labor union would be detrimental to order and security in the prisons. It is enough to say that they have not been conclusively shown to be wrong in this view").
149. See supra Part II.A.1.
150. See supra Part II.A.
151. See, e.g., supra notes 94-95 and accompanying text.
152. Prisoners do suffer one nontrivial consequence of filing frivolous claims: Under the Prison Litigation Reform Act of 1996, if a prisoner files three federal lawsuits or appeals that are dismissed for failure to state a claim upon which relief may be granted, that prisoner is barred from filing any further lawsuits or appeals "unless the prisoner is under imminent danger or serious physical injury." 28 U.S.C. § 1915(g) (2000);
153. see Lewis v. Sullivan, 279 F.3d 526 (7th Cir. 2002) (applying and upholding § 1915(g) against constitutional challenge). This is a limited sanction, however, and it still leaves prisoners able to file at least two frivolous lawsuits.
154. Theriault v. Silber, 391 F. Supp. 578, 582 (W.D. Tex. 1975).
155. See Kearney v. Town of Wareham, 316 F.3d 18, 25 (1st Cir. 2002), for an illustration of courts' application of the employment-at-will rule.
156. See generally Moss, supra note 63.
157. See Jesse Rudy, What They Don't Know Won't Hun Them: Defending Employment-at-Will in Light of Findings That Employees Believe They Possess Just Cause Protection, 23 BERKELEY J. EMP. & LAB. L. 307 (2002).
158. Michael Selmi, Why Are Employment Discrimination Cases So Hard to Win?, 61 LA. L. REV. 555, 558 (2001).
159. I omit mention of schools here because while there is evidence that most employee and prisoner claims ultimately lose, there is less such evidence as to student speech claims.
160. BONE, supra note 77.
161. See FED. R. CIV. P. 8.
162. See Private Securities Litigation Reform Act, Pub. L. No. 104-67, 109 Stat. 737 (1995).
163. 441 U.S. 520 (1979).
164. 482 U.S. 78 (1987).
165. Bell, 441 U.S. at 549 (quoting prison warden).
166. Turner, 482 U.S. at 88.
167. See, e.g., Murdock v. Pennsylvania, 319 U.S. 105, 113-14 (1943) (striking down an ordinance requiring the purchase of a license to sell written materials: "It is a license tax - a flat tax imposed on the exercise of a
168. Schneider v. New Jersey, 308 U.S. 147, 162 (1939) (striking down ordinances restricting distribution of handbills in public, noting the validity of the government interest in clean streets, but holding diat "[a]ny burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press");
169. cf. Ad World, Inc. v. Doylestown, 672 F.2d 1136, 1141 (3d Cir. 1982) (disallowing an ordinance prohibiting door-to-door distribution of advertising material, which included community newspapers, and noting that "[t]he Supreme Court has tenaciously protected the right of a speaker to reach a potential listener and get the listener's attention. It does not seem onerous to impose on the potential listener some of the costs of this important freedom" (emphasis added) (citations omitted));
170. Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978) (disallowing an ordinance prohibiting disseminating materials that promote hatred based on heritage, and rejecting an argument that other important public policies, such as antidiscrimination goals, would be undercut by allowing such speech: "The Village . . . argu[es] . . . that it has a policy of fair housing, which the dissemination of racially defamatory material could undercut. We reject this argument without extended discussion. That the effective exercise of First Amendment rights may undercut a given government's policy on some issue is, indeed, one of the purposes of those rights" (emphasis added)).
171. Murdock, 319 U.S. at 113-14 (disallowing a license fee but noting the more permissible "nominal fee" option);
172. see also Am. Target Adver., Inc. v. Giani, 199 F.3d 1241, 1249 (10th Cir. 2000) (reviewing regulations of fundraising organizations, and upholding a "$250 regulatory fee . . . [that] does no more than defray reasonable administration costs" of state antifraud efforts but disallowing the requirement that an organization must "provide proof that it is bonded or provide a letter of credit in the amount of at least $25,000 . . . [as] a sizeable price tag upon the enjoyment of a guaranteed freedom");
173. MacDonald v. Chi. Park Dist., 132 F.3d 355, 363 n.8 (7th Cir. 1997) (holding that park-use fees for speech activities are permissible "absent a threat that the allegedly excessive fees are likely to suppress protected speech");
174. Nat'l Awareness Found, v. Abrams, 50 F.3d 1159, 1165 (2d Cir. 1995) (citing Murdock).
175. See, e.g., Church of Am. Knights of Ku Klux Klan v. City of Gary, 334 F.3d 676, 680-81 (7th Cir. 2003) (Posner, J.) (granting an injunction against restrictions and fees applicable to a proposed Ku Klux Klan rally, which would "require a heavy police presence, at some cost . . . in police overtime unless the police thin out coverage in other parts of the City . . . 'fencing and barricades that enforce separation of the Klan from other attendees, who, themselves, must be separated into separate enclosures for pro and con demonstrators and all three separated from the press, for its safety . . . [and] separate parking areas must be provided and guarded, and all attendees must be screened for weapons'"; holding that "a permit for a parade or other assembly. . . cannot be denied because the applicant's audience will riot. . . [and] a city cannot in lieu of denying the permit charge the applicant for the expense . . . of reining in the hecklers");
176. Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 972 F.2d 365, 367 (D.C. Cir. 1992) (upholding an order requiring the city to allow a "Ku Klux Klan parade[ ] from the Washington Monument down Constitution Avenue to Capitol Hill" even though "[a] violent counter-demonstration had been threatened, causing the full mobilization of the Metropolitan Police Department and the commitment of more than 3,500 police officers").
177. Gratz v. Bollinger, 539 U.S. 244, 275 (2003) (rejecting the argument "that '[t]he volume of applications and the presentation of applicant information make it impractical . . . to use the . . . system' upheld by the Court today in Grutter," which required individualized applicant scrutiny rather than the less individualized affirmative action "point system" (alterations in original) (quoting Brief for Respondent Bollinger at 6, n. 8));
178. see also Daria Roithmayr, Direct Measures: An Alternative Form of Affirmative Action, 7 MICH. J. RACE & L. 1, 9 (2001) (suggesting methods of individualized admissions scrutiny, following Grutter and Gratz: "[A] direct measures program undoubtedly will be both expensive and time-consuming for admissions committees, which will have to evaluate the entire applicant file including the personal statement. To avoid constitutional difficulty however, applications should in no way be pre-screened based on the racial identity of the applicants").
179. See generally David B. Wilkins & G. Mitu Gulati, What Law Students Think They Know About Elite Law Firms: Preliminary Results of a Survey of Third Year Law Students, 69 U. CIN. L. REV. 1213, 1224 (2001) (discussing law firms' use of cheap, easily visible "signals" to evaluate law students rather than complicated, expensive data such as references and analysis of coursework: "Grades and [School] Eliteness . . . [are] 'visible' and 'rankable' signals that make it easy . . . to make substantive distinctions among applicants. [R]ely[ing] heavily on these relatively inexpensive sorting criteria . . . narrow[s] the large pool of applicants . . . . References from Faculty and Relevance of Courses . . . are rarely scrutinized. Although arguably providing . . . more detailed[] information about a student's skill and interest level, both . . . are time consuming . . . .").
180. Moss, supra note 93, at 6.
181. Id. at 6-7.
182. For example, the majority of judges in three of the most populous federal district courts - the U.S. District Courts for the Southern District of New York, the Eastern District of New York, and the Central District of California (which combine for over 160 federal district and magistrate judges, a sizeable fraction of the total population of federal judges) - worked as government officials or lawyers, with the largest share of them having served as state or federal prosecutors. See Fed. Judicial Ctr., Biographical Directory of Federal Judges, http://www.fjc.gov/ public/home.nsf/hisj (last visited Mar. 6, 2007).
183. See infra Part III.B (discussing the inconsistency between deference and heightened scrutiny).
184. See, e.g., BONE, supra note 77, at 147 (noting that "process costs," specifically more elaborate litigation efforts, trade off with "error cost[s]").
185. See, e.g., id. at 203 (noting that parties spend litigation costs on discovery to remedy their lack of information).
186. See supra notes 115-119 and accompanying text.
187. See supra Part II.A. 1.
188. Schauer, Principles, Institutions, and the First Amendment, supra note 14, at 107-13, 118-19 (discussing range of views).
189. Schauer, supra note 4, at 1270.
190. 543 U.S. 499 (2005).
191. Id. at 502. To elaborate further: [Defendant] cites numerous incidents of racial violence . . . and identifies five major prison gangs in the State: Mexican Mafia, Nuestra Familia, Black Guerilla Family, Aryan Brotherhood, and Nazi Low Riders. The CDC [California Department of Corrections] also notes that prison-gang culture is violent and murderous. [I]f race were not considered in making initial housing assignments, [it] is certain there would be racial conflict . . . . The CDC claims that it must therefore segregate all inmates while it determines whether they pose a danger . . . . Id. at 502-03.
192. 482 U.S. 78 (1987).
193. Johnson, 543 U.S. at 510-11.
194. Id. at 514-15 (citations omitted).
195. See CHEMERINSKY, supra note 3, § 9.3.5.1 (noting splintered Court decisions as to the appropriate level of scrutiny for racial affirmative action).
196. 515 U.S. 200 (1995).
197. Id. at 237 (quotingFullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring)).
198. See, e.g., Emanuel Margolis, Affirmative Action: Deja Vu All Over Again?, 27 SW. U. L. REV. 1, 39 (1997) (noting that the Court declined to review three appellate cases striking down affirmative action in college admissions, scholarships, and public employment; "a 'cert. denied' pattern . . . that can only be described as discouraging" for supporters of affirmative action, "certainly in light of Adarand [Constructors, Inc. v. Pena] decided in the following year"). Of course, not all commentators saw Adarand as the end of affirmative action.
199. See, e.g., Jack Greenberg, Affirmative Action in Higher Education: Confronting the Condition and Theory, 43 B.C. L. REV. 521, 606-07 (2002) (noting indications that Justice O'Connor might uphold some affirmative action programs under strict scrutiny).
200. Gratz v. Bollinger, 539 U.S. 244 (2003).
201. Grutter v. Bollinger, 539 U.S. 306 (2003).
202. Id. at 328.
203. See supra notes 143-144 and accompanying text for more of this portion of Grutter.
204. 539 U.S. 306.
205. Id. at 328.
206. See, e.g., Lackland H. Bloom, Jr., Grutter and Gratz: A Critical Analysis, 41 HOUS. L. REV. 459, 468-69 (2004) (criticizing Grutter's deference argument: "Was the Court stating that diversity is a compelling state interest because the Michigan Law School says it is? Surely not. If so, then the Court has effectively dropped the standard of review from strict scrutiny to rational basis review"; also criticizing the Court's reliance on amici briefs, noting that "deferring to the conclusions of amici wholly untested by the adversarial process seems even more troublesome than deferring to the conclusions of a party to the litigation");
207. Pamela S. Karlan, Compelling Interests/Compelling Institutions: Law Schools as Constitutional Litigants, 54 UCLA L. REV. 1613, 1621-22 (2007) (criticizing Grutter for saying it was "'giving a degree of deference to a university's academic decisions' . . . . Nowhere in its prior decisions had the Court delegated responsibility for deciding the weight of a governmental interest to some other governmental entity"
208. (quoting Grutter, 539 U.S. at 328)).
209. Karlan, supra note 144, at 1622 (criticizing Grutter's "presumption of good faith": "[A] central idea underpinning strict scrutiny was the Court's belief that race was a sufficiently problematic criterion that its use cannot be 'presumed' to reflect 'good faith'" . . . . What is striking here is not that the Court thinks racial diversity . . . can be a compelling government purpose, but rather that it declares that racial diversity is compelling because schools think it is"
210. (quoting Grutter, 539 U.S. at 329)).
211. See, e.g., Bloom, supra note 144 ("[T]he Court could have offered a more persuasive explanation for the result it reached but probably felt precluded by precedent from doing so."
212. Id. at 460.
213. "The Court was probably correct in concluding that none of the race neutral alternatives were workable . . . but it certainly could have done a better job of explaining why." Id. at 486.);
214. David Crump, The Narrow Tailoring Issue in the Affirmative Action Cases: Reconsidering the Supreme Court's Approval in Gratz and Gratter of Race-Based Decision-Making by Individualized Discretion, 56 FLA. L. REV. 483 (2004) (opining that "the narrow tailoring requirement [is] the 'Rodney Dangerfield' of the strict scrutiny approach, because it 'don't get no respect,'"
215. id. at 516, and that in Grutter and Gratz, "[the] Court's analysis of narrow tailoring. . . is weak and unpersuasive,"
216. id. at 485, because the Court seemed to disallow "point" systems in Grutter, but "fixed points used in more reasonable ratios," id. at 535, would be more narrowly tailored than an "open-discretion" system of the sort permitted in Grutter,"
217. id. at 528-29).
218. See Winkler, supra note 12, at 1941-43 (questioning granting "deference" to race-based decisions).
219. Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992) (upholding a federal consent decree featuring race-based affirmative action despite offering no analysis of narrow tailoring and even though the only cited evidence of past discrimination was that the percentage of minority police officers was lower than the percentage in the applicant pool and labor force, which typically is insufficient to justify state and local affirmative action);
220. Pagnucci v. City of New York, 785 F. Supp. 467 (S.D.N.Y. 1992) (upholding a federal consent decree featuring race-based affirmative action, with little analysis and no requirement of evidence beyond deferentially citing, and taking at face value, the view of the federal judge who had adopted the decree that it was narrowly tailored and was justified by past discrimination).
221. Jack M. Balkin, Plessy, Brown, and Grutter: A Play in Three Acts, 26 CARDOZO L. REV. 1689, 1727 (2005).
222. E.g., Reed v. Reed, 404 U.S. 71 (1971).
223. E.g., Romer v. Evans, 517 U.S. 620 (1996).
224. See id. at 634 ("'[A] bare... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'" (quoting Dep't of Agric v. Moreno, 413 U.S. 528, 534 (1973))).
225. A preference for men over women in appointing estate administrators intended "to accomplish the elimination of hearings on the merits... [is] arbitrary legislative choice." KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 772-73 (15th ed. 2004).
226. Id.
227. See, e.g., Balkin, supra note 149, at 1727 ("[T]he rational basis test has become stricter to protect groups like the mentally retarded, the children of illegal immigrants, and homosexuals.").
228. Craig v. Boren, 429 U.S. 190 (1976).
229. 482 U.S. 78 (1987).
230. Johnson v. California, 543 U.S. 499, 509-12 (2005).
231. See generally CHEMERINSKY, supra note 3, § 6.5 (collecting and discussing cases). 160. Rubin v. Coors Brewing Co., 514 U.S. 476, 490-91 (1995) (reversing a restriction on beer labels, under intermediate scrutiny applicable to commercial speech restrictions, and finding that the law at issue was "more extensive than necessary" toward the government's asserted goals, in light of "several alternatives" less restrictive of speech).
232. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 726 (1982).
233. The Court on numerous occasions has upheld gender discrimination under intermediate scrutiny. See, e.g., Nguyen v. INS, 533 U.S. 53 (2001) (upholding an Immigration and Naturalization Service (INS) rule favoring mothers over fathers); Rostker v. Goldberg, 453 U.S. 57 (1981) (upholding a requirement that men but not women register for the draft); cf. Michael M. v. Superior Court, 450 U.S. 464 (1981) (upholding gender-specific statutory rape laws; the plurality applied a form of heightened rationality scrutiny, but Justice Blackmun's concurrence, providing the fifth vote to uphold, was an application of intermediate scrutiny). The Court also has upheld a number of regulations of commercial speech under intermediate scrutiny. See, e.g., Bd. of Trs. v. Fox, 492 U.S. 469 (1989) (upholding a bar on commercial speech in the public university's student dormitories).
234. While the equal protection cases have not discussed expressly the extent to which "least restrictive means" is a requirement of intermediate scrutiny, the Court has discussed the matter extensively in cases addressing the regulation of commercial speech, which faces intermediate scrutiny as well; there, the Court expressly cited deference as a reason not to invalidate any law that is not the "least restrictive means" possible. See, e.g., Fox, 492 U.S. at 478 ("We uphold such restrictions so long as they are 'narrowly tailored' to serve a significant governmental interest, a standard that we have not interpreted to require elimination of all less restrictive alternatives.... [W]e have not insisted that there be no conceivable alternative, but only that the regulation not 'burden substantially more speech than is necessary'.... And we have been loath to second-guess the Government's judgment to that effect." (citations omitted) Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989))).
235. George C. Hlavac, Interpretation of the Equal Protection Clause: A Constitutional Shell Game, 61 GEO. WASH. L. REV. 1349, 1375 (1993).
236. Lawrence G. Sager, Of Tiers of Scrutiny and Time Travel: A Reply to Dean Sullivan, 90 CAL. L. REV. 819, 821 (2002) ("Taken at face value, intermediate scrutiny intimates that treating women as less than equals is bad, but not very bad. Accordingly, if we have reasonably good reasons for failing to live up to the requirements of equal regard, we should let the chips of gender injustice fall where they may.").
237. Balkin, supra note 149, at 1726.
238. Oliver Wendell Holmes, The Path of the Law, 110 HARV. L REV. 991, 1006 (1997) (reprinting 1897 Holmes address).
239. Schauer, Principles, Institutions, and the First Amendment, supra note 14, at 118.