Jury asked to apply strict or intermediate scrutiny
Jonathan Miller
jmiller at swlaw.edu
Tue Apr 8 11:07:52 PDT 2008
I think you are missing the reality that the socially valid result and
the legally accurate result based on precedent are not always the same
and there is a limit to what our society desires in terms of accurate
application of law to facts.
-----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 10:49 AM
To: conlawprof at lists.ucla.edu
Subject: RE: Jury asked to apply strict or intermediate scrutiny
My concern isn't about intelligence -- it's about a particular
skill, coupled with an information base.
The typical strict scrutiny or intermediate scrutiny court
decision involves a judge going through the
compare-and-contrast-with-the-precedents approach that we all learned in
law school. Is an interest compelling? Is the law narrowly tailored to
the interest? Well, you look at a bunch of cases, and compare your case
against each of the past ones. Is the law at least as underinclusive as
the law held to be unconstitutionally underinclusive in a past case? Is
the interest involved here more or less compelling than the interests
held to be compelling or not in past cases?
I don't think juries can be asked to do this, unless they too
are given all the relevant precedents (or rules distilled from those
precedents, which in many situations won't be clearly available) *and*
they are schooled in this sort of compare-and-contrast approach. This
isn't just a matter of asking, as in the actual malice situation,
whether as a matter of historical fact defendant knew the statement was
false, or knew it was quite likely to be false (even given the mushy
probability analysis there). It's a matter of having to do the sort of
analysis that law school teaches but that jury instructions cannot. Or
am I missing something here?
Eugene
> -----Original Message-----
> From: Robert Sheridan [mailto:rs at robertsheridan.com]
> Sent: Monday, April 07, 2008 11:54 PM
> To: Volokh, Eugene
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Jury asked to apply strict or intermediate scrutiny
>
> If the objection is that certain terms are not adequately
> defined in jury instructions, that's one thing, but if the
> real objection is to allowing supposedly dense juries to
> decide matters that only those really intelligent judges can
> decide by virtue of their superior intelligence and
> enlightenment, that's another.
>
> We've been allowing juries to decide cases involving 'malice'
> in the NYT v. Sullivan sense for decades, and in the
> 'man-endangering-state- of-mind' sense for a lot longer than
> that, not to mention 'the intent to vex, harass, or annoy'
> malicious mischief sense, as well.
>
> Judges, I respectfully submit, are better employed at
> distilling all those Conlaw cases into useful jury
> instructions w/o sticking their fingers into the fact-finding
> process, as well. Judges have these preconceived ideas, you
> know, which makes them see matters in a peculiar way,
> sometimes. Which is why we prefer to trust "twelve good men
> (and women) and true." At least since Andrew Hamilton argued
> a form of jury nullification in the Zenger trial, speaking of
> First Amendment notions. When was that, 1735ish?
>
> I wish I had as much faith in judges, or the evidence to
> support the faith, that some appear to have.
>
> Juries in my experience are usually good at sorting out the
> true from the false, given some exceptions as when children
> are the alleged victims of certain offenses, such as Salem,
> 1692, or the False Child Sexual Molestation Outbreak of the 1980s.
>
> Juries, unable to figure out "narrow tailoring" or
> "compelling state interest?" I think their BS detectors are
> apt to be pretty shrewd, perhaps more-so than in a lot of
> judges who may think they need to protect society from
> itself. Juries have acquitted in an astonishing number of
> alleged "obscenity" cases on the question of what
> "contemporary community standards" are, speaking of
> difficult-to- define terms.
>
> Maybe we shouldn't try to over-define "narrowly tailored" or
> "compelling state interest" and treat these as perfectly
> suitable standards for the community representatives to
> decide. Isn't this what juries are for? To tell government
> that some of its ideas are nonsense? And if not juries, who
> then? Certainly not judges.
>
> rs
> sfls
>
> Incidentally, John Grisham has a tasty new novel out called
> "The Appeal," in which the central thesis is the author's
> view that judges should be appointed, not elected, to
> eliminate the political targeting of judges come election
> time, as though the political appointment of judges
> eliminates the tendency "to dance with who brung you."
>
> On Apr 7, 2008, at 7:20 PM, Volokh, Eugene wrote:
>
> > 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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> >>
> >>
> > _______________________________________________
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> >
>
>
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