Jury asked to apply strict or intermediate scrutiny
Scarberry, Mark
Mark.Scarberry at pepperdine.edu
Fri Apr 11 19:52:25 PDT 2008
But in the case that started this thread the **plaintiff** claimed his
first amendment rights had been violated. Are you saying that the court
(either the trial court or an appellate court) will undertake
independent review of the facts and hold the defendant liable if it
disagrees with the jury's verdict? I understand that the "constitutional
facts" underlying a judgment against a defendant can be revisited by the
court (e.g. under the NY Times v. Sullivan standard) so as to be sure
liability is not imposed in a way that violates the First Amendment, but
do you know of cases in which such facts were reviewed by a court so as
to **impose** liability where a jury had found for the defendant?
Mark S. Scarberry
Pepperdine University School of Law
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rosenthal,
Lawrence
Sent: Friday, April 11, 2008 5:07 PM
To: Jonathan Miller; Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Jury asked to apply strict or intermediate scrutiny
Although I do not want to defend jury instructions that leave critical
terms undefined or that effectively delegate to juries the
responsibility to decide questions of law, isn't this conversation a
little, um, academic? After all, under a long line of cases summarized
in Bose Corp. v. Consumers Union, and described even more recently as
embodying a general rule for appellate review in constitutional
litigation in Ornelas v. United States, to the extent that a First
Amendment case involves mixed questions of law and fact, an appellate
court (or a district court on post-trial motions) will undertake
independent review of the evidence supporting the jury's findings,
affording deference only to pure questions of historical fact. In First
Amendment cases, independent review is justified, among other reasons,
to ensure that First Amendment rights are not hostage to the
sensibilities of juries. For that reason, I regard the problem of
runaway juries in First Amendment litigatio!
n to more apparent than real.
Larry Rosenthal
Chapman University School of Law
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Jonathan Miller
Sent: Fri 4/11/2008 4:52 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Jury asked to apply strict or intermediate scrutiny
Eugene,
Since there are Evidence and Civil Procedure professors that have
focused their careers on the question of what precisely juries are good
for and what they offer our system, I am reluctant to run with the topic
too much more. My hunch is:
1) While runaway juries exist, so do runaway judges, and there is no
reason to assume greater consistency from a judge than from a jury. (I
think biases are likely to change between a judge and a jury, but I am
not certain the spread of variations of each would change. I would not
be surprised if it has been studied empirically.) The juries that I
have had contact with all adopted a commonsense solution that paid
attention to the law, but not just the law.
2) I would probably take issue with you on the picketing of funerals,
since that is a scenario where gross social breaches come into play as
much as a disfavored viewpoint. I think as a practical matter judges
sometimes turn issues over to a jury precisely because they want social
attitudes to come into play. It is as much a part of our system as the
rational application of legal rules. -- For example, as a junior
associate I had to do a memo on piercing the corporate veil for a client
that was entering into a Billion dollar plus joint venture in the United
States and was concerned about a massive catastrophe that could result
in liability going beyond the assets of the joint venture. Formally the
law seemed to protect the parents of the joint venture, but when I
looked at the actual cases involving massive catastrophes in the U.S. I
found that judges almost always found a way to let juries pierce the
corporate veil. I don't see that as a bad thing.
Regards,
Jonathan
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, April 11, 2008 2:21 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Jury asked to apply strict or intermediate scrutiny
A few thoughts:
1) A jury might legitimately make various judgment calls , for
instance about what constitutes negligent behavior, or for that matter
-- in those states that have jury sentencing, plus in all states as to
the death penalty -- about what sentence a defendant should get.
But when we move away from decisions that are specially targeted
to the facts of a particular case, and on to broader questions about
whether an ordinance is constitutional, does the "mini social consensus"
argument really work? Say that 9 out of 12 members of a civil jury --
chosen not for their representativeness, but based on a wide range of
factors such as whether they had an excuse to get out of jury service,
whether they were challenged for cause, or whether they were challenged
peremptorily -- conclude that some ordinance is not sufficiently
narrowly tailored to an important government interest. Is that really a
meaningful "mini social consensus"? Or is it just randomness? What
happens when 9 out of 12 members of a different civil jury in a
different case hold that the ordinance is constitutional?
2) I'm not saying there needs to be a special verdict in the
typical defamation case, where the jury instructions pretty accurately
capture the law, and the key questions are factual (what actually
happened, and who knew what when) or at most ask whether the
investigation was negligent.
3) If the claim is that "if the free speech issue involves a
disfavored viewpoint, then perhaps that also calls for a special
verdict," then this would likely apply here: Marcavage was not only
criticizing homosexuality, but expressing criticisms so strident that
many people would probably disfavor them. But beyond that, I take it we
can't have a legal rule that treats lawsuits by different speakers
differently based on how disfavored their viewpoint is (in the judge's
opinion); that itself would likely end up being
viewpoint-discriminatory. So while categorical distinctions between,
say, defamation cases and cases that call on the jury to apply strict or
intermediate scrutiny might make sense (in fact, I'd support them, for
reasons related to what I mentioned in #1 above), I doubt that narrower
distinctions would make sense.
4) Finally, let me stress again that, even if a properly
instructed jury could be asked to apply intermediate or strict scrutiny
for itself, that would require much more detailed instruction than just
giving it the language of the Court's top-level strict and intermediate
scrutiny tests, language that is essentially legalese that is given
meaning only by a broader body of cases that apply the tests.
Eugene
> -----Original Message-----
> From: Jonathan Miller [mailto:jmiller at swlaw.edu]
> Sent: Tuesday, April 08, 2008 8:25 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Jury asked to apply strict or intermediate scrutiny
>
> Juries are a legitimator and there is more than one type of
> legitimization at work within our legal system. One sort of
> legitimization is certainly that which comes from rational application
> of rules of law, but I suspect that another type of legitimization
> comes from the mini social consensus that a jury achieves. You need
> not go to the extreme of jury nullification to argue that juries bring
> a socially significant value to the table that goes beyond rational
> application of legal rules. Any trial attorney who argues a case
> entirely in terms of evidence that meets a legal standard is in
> trouble if he or she ignores whether their client is perceived by the
> jury as a good social actor.
> Would you argue that it is "wrong" when a trial attorney successfully
> draws upon a jury's emotions, life experiences or personal values?
>
> I am hardly discarding rational application of legal rules as very
> central to our legal system -- I think that is what summary judgment,
> judgment as a matter of law and jury instructions are for. But
> especially in an area of the law like free speech and defamation,
> where community standards have a role to play, I don't see a need to
> encumber a jury with a special verdict to ensure the most legally
> accurate result. (If the area of the law involves the protection of
> racial minorities I think the balance shifts and there may be a
> greater need for special verdicts, and if the free speech issue
> involves a disfavored viewpoint, then perhaps that also calls for a
> special verdict. But I certainly do not see a need for a special
> verdict in the typical defamation case.)
>
> Anyway, my bottom line is that juries have functions besides the
> rational application of legal rules to a set of factual
> determinations.
> If you agree with me that such is the case, even if we do not
> precisely specify them, then there may be situations where special
> verdicts force juries into just one aspect of their role at the
> expense of others.
>
> Make sense?
>
> 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 11:13 AM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Jury asked to apply strict or intermediate scrutiny
>
> Hmm; I'm not sure this quite works. I had thought that in court
> the "socially valid result" -- especially when determining the
> constitutionality of legislation -- is indeed generally the legally
> accurate result. Perhaps the legal rules may sometimes be wrong, but
> the solution is to fix the rules, not to have juries disregard them.
>
> Now there might be some exceptions in some situations, for
> instance in arguments supporting jury nullification. But even then,
> the theory is that the jury should act based on conscious judgment
> about its role, and not simply based on the jury's not being
> instructed about the meanings of legal terms.
>
> Moreover, I'd think this would be especially so when the
> question relates to the constitutionality of a practice, which is
> relevant to many different cases; I would doubt that
> 9 out of 12 voters on a quasi-randomly picked jury constitute the
> proper institution to decide which interests are compelling enough to
> justify speech restrictions, or what "narrow tailoring" means, or
> whether the Texas race-based admissions preference system is narrowly
> tailored to a compelling interest.
>
> Or is that mistaken, and should we indeed leave a good many such
> constitutional judgments to 9 jurors' discretion? Thanks,
>
> Eugene
>
> Jonathan Miller writes:
>
> > 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
> > > >>> _______________________________________________
> > > >>> To post, send message to Conlawprof at lists.ucla.edu To
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> > > >>>
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> > > >>
> > > >>
> > > > _______________________________________________
> > > > To post, send message to Conlawprof at lists.ucla.edu To
> subscribe,
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> > > >
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> > >
> > >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
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> _______________________________________________
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