Jury asked to apply strict or intermediate scrutiny
Volokh, Eugene
VOLOKH at law.ucla.edu
Tue Apr 8 11:02:36 PDT 2008
Two thoughts:
(1) Perhaps strict and intermediate scrutiny are indeed too
abstract. I've certainly criticized strict scrutiny myself, see
http://www.law.ucla.edu/volokh/scrutiny.htm, though on other grounds, so
I wouldn't mind replacing it with something else. But it's the legal
rule we have. Does it really make sense to have judges apply one legal
rule in summary judgment cases and similar contexts, but have juries
apply a different legal rule -- just based on the lay meaning of the
abstract labels that the courts have chosen to use in the highest-level
definition of the test -- in cases that can't be dismissed on summary
judgment?
(2) My sense is that there often will be quite a few issues of
historical fact, especially when the challenge is to executive
decisionmaking. If a police officer arrests me for violating some
speech-restrictive ordinance, there'll be the issue of historical fact
about whether he singled me out because of the content of my speech, but
also legal questions about whether the ordinance is constitutional.
Likewise, let me return to a question I posed earlier in this
thread. There's currently a lawsuit against the University of Texas
that alleges that Texas's admissions system is unconstitutionally
race-based even under Grutter/Gratz. The ultimate legal decision may
well require answering questions of historical fact (exactly how is
Texas's system really structured, and exactly what pluses it gives black
and Hispanic applicants) and questions of law (is the system, as it is
structured, narrowly tailored to a compelling government interest). Say
the jury has to answer the factual questions (for instance, assume the
lawsuit asks for damages rather than an injunction, whether or not
that's so for this particular lawsuit). Should the jury then also be
asked whether the law is "narrowly tailored to a compelling government
interest," and then left free to decide for itself what those terms
mean?
Eugene
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> Jonathan Miller
> Sent: Tuesday, April 08, 2008 10:57 AM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Jury asked to apply strict or intermediate scrutiny
>
> What you are proposing is certainly consistent with Fed. R. Civ. P.
> 49(a) on Special Verdicts. Naturally the more you use
> special verdicts the more you divorce the jury system from
> offering a grounding in commonly shared social values and
> evaluations of problems. A lot of our First Amendment
> doctrine has gotten very abstract and I wonder if there may
> not be many scenarios where the best social result is giving
> leeway to a jury, letting any real arbitrariness get dealt
> with through Judgment as a Matter of Law or avoided through
> the earlier filter of Summary Judgment. If there is enough
> of a factual issue so that it is truly a jury issue, how much
> legal precision do we really want?
>
> Jonathan
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Tuesday, April 08, 2008 10:16 AM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Jury asked to apply strict or intermediate scrutiny
>
> 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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