Jury asked to apply strict or intermediate scrutiny

Volokh, Eugene VOLOKH at law.ucla.edu
Tue Apr 8 10:16:16 PDT 2008


	Let me be clear:  I'm not arguing for a complexity exception to
the Seventh Amendment right to have a jury find the underlying
historical facts.

	I am, however, arguing that -- complex as the law may be -- the
instructions must reflect the law, including the relevant details as
developed in the precedents and not just the highest-level abstract
statement.  Saying the jury must decide whether the government has a
"compelling government interest," standing alone, and whether the law is
"narrowly tailored" to the interest doesn't adequately instruct the
jury; the jury must also be told what the precedents have said about how
one figures these things out, for instance about whether or not narrow
tailoring includes an underinclusiveness and a least restrictive
alternative component and the like.

	I am also suggesting that there is no Seventh Amendment right to
have a jury make what strike me as the legal judgments about whether the
interest supporting an ordinance is "compelling."  I had thought those
were legal judgments for courts, not factual judgments for juries; and
my sense is that the Seventh Amendment does not guarantee a right to
have juries determine such matters, or even to have them resolve
questions of application of law to fact.  Thus, for instance, it seems
to me that giving a jury a special verdict form asking them to find all
relevant historical facts (such as whether the police officer was
motivated by the content of the speaker's speech) would be
constitutionally permissible.  I'm not sure that this is the best
solution here, but I do think that it's better than just instructing the
jury in abstract doctrinal language, and in any event that it does not
violate the Seventh Amendment.  Am I mistaken in my understanding of the
Seventh Amendment rules here?

	Eugene

> -----Original Message-----
> From: Jonathan Miller [mailto:jmiller at swlaw.edu] 
> Sent: Tuesday, April 08, 2008 9:21 AM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Jury asked to apply strict or intermediate scrutiny
> 
> There is an unresolved debate in the Seventh Amendment 
> context as to whether there can ever be a complexity 
> exception to the right to a jury, the leading case is In re 
> Japanese Electronic Products Antitrust Litigation, 631 F.2d 
> 1069 (3d Cir. 1980), but the Supreme Court has never ruled on 
> it.  Many antitrust and RICO cases have a complexity at least 
> equal to the case you describe.  To some degree the issue has 
> become less pressing with the expansion of summary judgment, 
> which is where newspapers get their real protection in the 
> defamation context.
> 
> Jonathan Miller
> Southwestern Law School
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Monday, April 07, 2008 7:20 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Jury asked to apply strict or intermediate scrutiny
> 
> 	The problem, it seems to me, is that the jury is being 
> asked to apply legal terms of art that are left essentially 
> undefined.  Judges apply these terms -- "compelling state 
> interest," "narrowly drawn,"
> "significant government interest," even "ample alternative 
> channels" -- by comparing the case with the precedents.  But 
> the jury doesn't have access to the precedents, or to any 
> instructions boiling down those precedents (which in any 
> event strikes me as likely impossible).  They are just given 
> these legal terms of art, with no explanation.  
> 
> 	I don't think that can be right (or am I mistaken?).  
> It's rather like instructing libel jurors that they must 
> determine whether there's "actual malice," without explaining 
> what that means.  Only it's much more complex to explain the 
> terms at issue here, because they lack the one-line summary 
> that the Court has offered for "actual malice."
> 
> 	As to the Seventh Amendment, is there really a Seventh 
> Amendment right to have a jury apply strict scrutiny or 
> intermediate scrutiny, even if the underlying facts are 
> contested, or just a right to have a jury find the historical 
> facts (perhaps through a special verdict)?  Say that someone 
> is suing under 42 USC 1983, challenging a university 
> admission decision (public or private, under Title VI) on the 
> grounds that it was impermissible discriminatory against 
> whites; and say there's a factual question that the jury has 
> to decide, so the case can't be disposed of on summary 
> judgment in either direction.  Does the plaintiff have a 
> Seventh Amendment right to have the jury decide whether 
> race-based admission systems are narrowly tailored to a 
> compelling government interest?
> 
> 	Eugene
> 
> > -----Original Message-----
> > From: Janet Alexander [mailto:jca at stanford.edu]
> > Sent: Monday, April 07, 2008 1:39 PM
> > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > Subject: Re: Jury asked to apply strict or intermediate scrutiny
> > 
> > I don't see the problem.  It's a mixed question of fact and law, so 
> > the jury is going to have to understand the law it is asked 
> to apply.  
> > The instructions seem clear and as easy to apply as instructions in 
> > many other complicated areas of law.
> >  The instructions appear to have been tailored to the case at hand, 
> > which conforms to best practices in jury instructions, and 
> the court 
> > of appeals decision should be able to be incorporated into revised 
> > jury instructions that are comprehensible and helpful.  Even the 
> > dissent does not think that juries can't apply an instruction like 
> > this (just thinks
> > (a) the police officer defendants should win on the merits, 
> which is 
> > not the job of a court of appeals judge and (b) error was harmless, 
> > which seems to amount to the same thing).
> > 
> > Juries apply lots of complicated law through instructions, ranging 
> > from burdens of proof and burden-shifting to substantive 
> law such as 
> > antitrust.  Empirical studies show that juries do a good job of 
> > comprehending even difficult legal concepts when the 
> lawyers and judge 
> > do a good job of giving them the tools.  Is the idea that because 
> > First Amendment law contains legally complex doctrines, the 7th 
> > Amendment shouldn't apply?  If that's the case, then the 
> jury would be 
> > dead in much of modern complex litigation without going through the 
> > process of constitutional amendment.
> > 
> > P.S.  The opinion does not discuss the facts.  This was a section
> > 1983 action brought by Michael Marcavage, head of Repent 
> America (best 
> > known for claiming that Hurricane Katrina was retribution for the 
> > wickedness of New Orleans, manifested by tolerance of 
> homosexuality, 
> > abortion, and Mardi Gras) against Philadelphia police who 
> arrested him 
> > as he demonstrated at the Outfest event.
> > 
> >          Janet Alexander
> > 
> > At 11:43 AM 4/7/2008, Volokh, Eugene wrote:
> > >         I thought this wouldn't happen, but here's a 
> Third Circuit 
> > >opinion, Marcavage v. City of Philadelphia, 2008 WL 858677 (3d Cir.
> > >2007), http://www.ca3.uscourts.gov/opinarch/071049npa.pdf,
> > which seems
> > >to endorse this (though it reverses a district court 
> decision on the 
> > >grounds that the instructions didn't properly state the 
> intermediate 
> > >scrutiny test).  How can this possibly make sense, though, 
> given how 
> > >complicated these decisions are, and how much they 
> generally require 
> > >attention to a large body of Supreme Court and circuit
> > precedent that a
> > >judge could apply, but that a jury surely wouldn't be
> > instructed about?
> > >Or am I missing something, whether as a matter of theory or
> > of practice?
> > >
> > >
> > >         Here are some excerpts:
> > >
> > >         [The trial court instructed the jury,] "'The First
> > Amendment
> > >protects speech and other expressive activity in public
> > spaces-all of
> > >the activities at issue in this have taken place in public fora.
> > >However, the protections afforded by the First Amendment are not 
> > >absolute. Principles of religious tolerance do not relieve an 
> > >individual from complying with the laws of general 
> applicability, so 
> > >the right of free exercise does not relieve an individual of
> > the right
> > >to comply with a valid and neutral law of general applicability.
> > >
> > >         "'Even though First Amendment rights are to be
> > guarded, they
> > >may still be regulated by the state. The constitutional 
> guarantee of 
> > >liberty implies the existence of an organized society maintaining 
> > >public order, without which liberty itself would be lost in the 
> > >excesses of anarchy.*
> > >* *
> > >
> > >         "'The Plaintiff claims that the restrictions on his
> > activity
> > >were content-based. Discrimination against speech because of its 
> > >message is [sic] may be deemed unconstitutional. A restriction on 
> > >speech is content-based when it is based on the message of
> > the speaker
> > >or the dislikes of an audience. For the state to enforce a 
> > >content-based exclusion it must show that its regulation is
> > necessary
> > >to serve a compelling state interest and that it is narrowly
> > drawn to
> > >achieve that end. If you find, by a preponderance of the
> > evidence, that
> > >any of the Defendants (1) acted to restrict Mr. Marcavage's
> > free speech
> > >activities because of the content of his message or his
> > viewpoint; and
> > >(2) that they did not have a compelling reason for doing 
> so, and (3) 
> > >that the restriction was not narrowly drawn to achieve that
> > end, then
> > >you must find Defendants' liable to Plaintiff for violating his 
> > >constitutionally protected rights.
> > >
> > >         "'The Defendants in this case claim that any
> > restrictions on
> > >Plaintiff's activity were restrictions on the time, place,
> > and manner
> > >of that activity. I instruct you that the government may impose 
> > >reasonable time, place, and manner restrictions on First Amendment 
> > >activity to further significant governmental interests. If 
> you find 
> > >that the Defendants' actions were (1) restrictions on the
> > time, place,
> > >and manner of Plaintiff's activity; (2) the restrictions
> > were designed
> > >to further a significant governmental interests, and (3) 
> that those 
> > >restrictions were reasonable, then you must rule for the
> > Defendants and
> > >against the Plaintiff.' ...
> > >
> > >         "Here, the district court instructed the jury that
> > they could
> > >return a verdict for the City if the challenged actions were: (1) 
> > >restrictions on the time, place, and manner of Plaintiff's 
> activity,
> > >(2) the restrictions were designed to further a significant 
> > >governmental interests, and (3) the restrictions were
> > reasonable. The
> > >court did not inform the jury of the government's obligation
> > to allow
> > >alternative channels of communications. In addition, the
> > jury was not
> > >told that a time, place, and manner restriction must be both 
> > >content-neutral and narrowly tailored.
> > >
> > >         "We realize that the court did inform the jury that any 
> > >regulation had to be content-neutral in another part of the
> > charge.That
> > >instruction does mitigate the court's failure to instruct 
> that time, 
> > >place, and manner restrictions must be content-neutral, and must 
> > >satisfy a compelling government interest. We note, however,
> > that even
> > >this instruction was incorrect. In fashioning the charge, 
> the court 
> > >placed the burden on Marcavage to prove that the Defendants'
> > >restrictions were content-based.... This belies the 
> Supreme Court's 
> > >oft-repeated pronouncement that 'when the government
> > restricts speech,
> > >the government bears the burden of proving the
> > constitutionality of its actions.'
> > >
> > >         "Moreover, the court's failure to instruct on the
> > obligation
> > >to provide an alternative channel for the speech was never 
> corrected 
> > >nor mitigated. That omission prevented the jury from determining 
> > >whether the reasonable restrictions that were imposed allowed an 
> > >alternate channel for Marcavage's speech. The error is significant 
> > >because Marcavage contends that the police and city
> > defendants required
> > >him to move to locations and that did not allow him an adequate 
> > >opportunity to have his message reach his target audience,
> > and that he
> > >was not able to adequately continue communicating his 
> message. These 
> > >are questions of fact that must be resolved.
> > >
> > >         "Appellees argue that the charge's requirement that the 
> > >restrictions be "reasonable" subsumed a finding that the 
> charge left 
> > >open an alternative channel of communication. We disagree.
> > In Pouillon
> > >v. City of Owoso, 206 F.3d 711, 717-718 (6th Cir.2000), the court 
> > >explained that the reasonableness of time, place, and manner 
> > >restrictions is a question of law comprised of the three 
> individual 
> > >determinations set forth in the Ward test. The sufficiency of any 
> > >alternate channels for communications is a component that must be 
> > >submitted to the jury. Absent that initial factual inquiry,
> > the jury is
> > >not competent to render a decision on whether a time, 
> place, manner 
> > >restriction is "reasonable." ...
> > >
> > >         "We are also concerned that the instructions were not 
> > >appropriately balanced. The charge provides extensive instructions 
> > >about the City's need to regulate Marcavage's activities and its 
> > >interest in doing so. For instance, the court instructed the
> > jury that
> > >First Amendment rights are not absolute, and that the city has an 
> > >interest in maintaining the order, peace, and public safety,
> > and even
> > >told the jury that without regulation, "liberty itself [may]
> > be lost in
> > >the excesses of anarchy." Those statements in isolation are
> > undeniably true.
> > >
> > >         "However, the court offered only minimal 
> instructions about 
> > >the importance of safeguarding the fundamental liberties 
> embodied in 
> > >the First Amendment. We can not help but be concerned that,
> > on balance,
> > >the jury could have concluded that the City's right was
> > paramount even
> > >absent a compelling state interest showing the least
> > restrictive means
> > >of furthering a compelling state interest.
> > >
> > >         "This does not mean that we disagree with the court's 
> > >statement that it did not have to inform the jury of every 
> nuance of 
> > >First Amendment jurisprudence. It certainly did not have to do so.
> > >However, it did have to provide an appropriately balanced
> > instruction
> > >to allow the jury to properly resolve the factual issues 
> underlying 
> > >Marcavage's legal claims. Taken as a whole, we do not
> > believe that the
> > >jury was informed that an individual such as Marcavage has First 
> > >Amendment interests that are as significant as the state's
> > interest in
> > >regulation. For example, the jury was not instructed that he has a 
> > >constitutionally protected right to hand out leaflet, display his 
> > >signs, and communicate to listeners. The only instruction in this 
> > >regard was that the "First Amendment protects speech and 
> expressive 
> > >activity in public spaces-and that the speech in this case
> > occurred in
> > >public fora." However, even that instruction is modified 
> by the next 
> > >sentence informing the jury that First Amendment rights are
> > not absolute.
> > >
> > >         "Thus, the instructions as a whole highlighted the state 
> > >interest in preserving public peace and order, while diminishing 
> > >Marcavage's interest in expression and speech. This is
> > exemplified by
> > >the court's summary informing the jurors that the government may 
> > >regulate speech, or else "liberty itself would be lost in
> > the excesses
> > >of anarchy.""
> > >
> > >         Many thanks,
> > >
> > >         Eugene
> > >_______________________________________________
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