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 . the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process. 2 -McCleskey v. Kemp The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirements for non­ arbitrary treatment of voters .... The formulation ofuniform rules to de­ termine [voter] intent ... is practicable and, we conclude, necessary. · -Bush v. Gore3 INTRODUCTION The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The consider­ able discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detec- * Assistant Professor of Law, Moritz College of Law, Ohio State University. A.B. 1989, Harvard; J.D. 1994, Yale. - Ed. I wish to thank David Barron, Susie Blumenthal, Erwin Chemerinsky, Amina El-Sayad, Rick Hasen, Ken Karst, Heather Gerken, Mark Rosen­ baum, Bill Rubenstein, and David Schwartz for their comments and encouragement. Special thanks to Erin Bernstein for her exceptional research assistance. This Article also benefited from comments made during law school faculty workshops at Santa Clara, Loyola-Chicago, Seton Hall, Villanova, University of Houston, Washington & Lee, and Ohio State Univer­ sity. Any errors are of course mine alone. 1. 394 U.S. 147, 151 (1969) (quoting Staub v. City of Baxley, 355 U.S. 313, 322 (1958)). 2. 481 U.S. 279, 313 (1987) (footnote omitted). 3. 531 U.S. 98, 105-06 (2000). 2409 2410 Michigan Law Review [Vol. 101:2409 tion. This is true in a variety of settings, whether discretion lies over speakers' access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment4 violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place?5 Is equal protection denied where the absence of uniform standards for vote recounts gives low-level bureaucrats wide latitude in determining which votes to count?6 The subject of this Article is the role of the courts in policing the distorting effects of discretion upon constitutional equality, particu­ larly where rights of political participation are at stake. It uses the term "First Amendment Equal Protection" to refer to those cases applying an especially searching mode of analysis where the govern­ ment threatens to undermine equality in the realm of expression.7 At the core of First Amendment Equal Protection, I argue, is the democratic ideal that all citizens should have an equal opportunity to participate in public discourse. The cases that I include under this rubric exhibit a heightened sensitivity to the threat to equality posed by excessive official discretion,.8 This sensitivity has led to stringent 4. Although using the term "First Amendment" throughout, this Article does not ad­ dress the religion clauses of the First Amendment but instead focuses on cases involving the speech, press, assembly, and petition clauses. This should not be taken as denying that the Establishment and Free Exercise Clauses have an egalitarian component. See Newdow v. United States Congress, 292 F.3d 597, 607-08 (9th Cir. 2002) (concluding that the words "un­ der God" in the Pledge of Allegiance violate the Establishment Clause's requirement of neutrality), amended by 328 F.3d 466 (9th Cir. 2003), cert. granted sub nom. Elk Grove Uni­ fied Sch. Dist. v. Newdow, 124 S. Ct. 384 (Oct. 14, 2003). The egalitarian aspects of the First Amendment's religion clauses, however, present a subject for another day. 5. See, e.g. , Thornhill v. Alabama, 310 U.S. 88, 91-92 (1940); Hague v. Comm. for Indus. Org., 307 U.S. 496, 501 (1939). 6. See Bush, 531 U.S. at 102-03. 7. The use of this term is meant to recall Professor Monaghan's use of the term "First Amendment 'Due Process' " in his article of the same title. Henry P. Monaghan, First Amendment "Due Process," 83 HARV. L. REV. 518 (1970). While Professor Monaghan focused on the special procedural rules that were at the time developing to safeguard liberty of expression, this Article focuses upon the egalitarian component of the First Amendment. lt takes up Kenneth Karst's insight that "the principle of equal liberty lies at the heart of the first amendment's protections against government regulation of the content of speech." Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. CHI. L. REV. 20, 21 (1975) [hereinafter Karst, Equality in the First Amendment]. 8. While libertarian rhetoric often surrounds First Amendment discourse, see, e.g. , Charles Fried, Th e New First Amendment Jurisprudence: A Th reat to Liberty, 59 U. CHI. L. REV. 225 (1992); David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334 (1991), implicit in my argument is that the egalitarian component of the freedom of speech has always been prominent. It thus takes issue with those who argue that equality "should be banished from moral and legal discourse as an explanatory norm," see, e.g. , Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 542 (1982), as well as those who contend that "the constitutional doctrine of free speech has developed without taking equality seriously," see, e.g. , CATHARINE A. MACKINNON, ONLY WORDS 71 (1993). June 2003) First Amendment Equal Protection 2411 tests designed to "smoke out" illicit motivations.9 Among the doctrines developed to cabin discretion in the realm of speech are rules requiring exceptionally clear standards where government re­ quires permission to speak in public places, and liberal rules regarding facial challenges, justiciability, and appellate factfinding.10 These safe­ guards against inequality in the realm of speech have for the most part endured, despite the changing makeup of the Court and judicial philosophies of its members. This searching mode of analysis contrasts sharply with the standard applied where nonspeech forms of equality are at issue. Outside the area of free speech, the Court generally exhibits a much greater toler­ ance for schemes that vest broad discretion in government officials. That is true even where the existence of such discretion may allow intentional group-based discrimination, including race discrimination, to persist undetected and thereby defy judicial remedy.11 Cases such as Washington v. Davis12 and McCleskey v. Kemp,13 for example, rest on a presumption that decisionmakers will generally exercise their discre­ tion free from racial bias. Even in the face of evidence showing a statistically significant disparate impact on those of a particular racial or ethnic group,14 the Court is loathe to find an equal protection viola­ tion without "smoking gun" evidence of illicit motive.15 Put simply, the Court exhibits a much greater willingness to trust government decisionmakers - to assume that they will exercise their discretion in a fair and unbiased manner - where race is concerned, than where speech is concerned. 9. Cf David A. Strauss, AffirmativeAction and the Public Interest, 1995 SUP. Cr. REV. 1, 26 (describing strict scrutiny as a means by which to "smoke out" illicit motivations). 10. See Richard H. Fallon, Jr., Th e Supreme Court 1996 Term - Fo reword: Implement­ ing the Constitution, 111 HARV. L. REV. 54, 96-97 (1997) [hereinafter Fallon, Implementing the Constitution) (identifying strict First Amendment rules for licensing schemes as a means by which to prevent discrimination on forbidden bases); Anthony G. Amsterdam, Note, Th e Void-for-Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67, 75 (1960) ("[T]he doctrine of unconstitutional indefiniteness has been used by the Supreme Court almost in­ variably for the creation of an insulating buffer zone of added protection at the peripheries of several Bill of Rights freedoms."). 11. Throughout this Article, I use the term "race" to include both race and ethnicity. 12. 426 U.S. 229 (1976). 13. 481 U.S. 279 (1987). 14. See, e.g. , McCleskey, 481 U.S. at 312-13 (holding that Georgia's capital sentencing system did not deny equal protection, despite disparities that "appear[] to correlate with race").