Michigan Law Review Volume 101 Issue 7 2003 First Amendment Equal Protection: On Discretion, Inequality, and Participation Daniel P. Tokaji Moritz College of Law, Ohio State University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Courts Commons, First Amendment Commons, Law and Race Commons, Legal History Commons, and the Supreme Court of the United States Commons Recommended Citation Daniel P. Tokaji, First Amendment Equal Protection: On Discretion, Inequality, and Participation, 101 MICH. L. REV. 2409 (2003). Available at: https://repository.law.umich.edu/mlr/vol101/iss7/4 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact
[email protected]. FIRST AMENDMENT EQUAL PROTECTION: ON DISCRETION, INEQUALITY, AND PARTICIPATION Daniel P. Tokaji* [A]n ordinance which ... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official - as by requiring a permit or license which may be granted or denied in the discretion of such official - is an unconstitutional censor ship or prior restraint upon the enjoyment of those freedoms. - Shuttlesworth v. City of Birmingham1 In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants .